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Counter-Terrorism Bill

I support the amendment. Many Members of the Committee will have seen the report in the Times on 6 October, which said that the Government have effectively dropped the proposals to extend pre-charge detention to 42 days and that they would, "““effectively confine the controversial proposal … to the legislative dustbin””." So why are we debating this again? It is a criminal offence to waste police time and I wonder whether that offence also extends to wasting the time of the Committee. This debate is an unhelpful distraction. It distracts us at a time when we should be concentrating our energies on more pressing issues: that is, the economy; other sensitive parts of this Bill, such as inquiries and inquests; post-charge questioning, which we on these Benches would like to see play a useful role in terrorist investigations, but with suitable safeguards; or things that will really aid us in the prosecution of terrorism, such as the use of intercept evidence, a measure that should be in the Bill, but is not. The proposal to extend pre-charge detention fails on three significant grounds; namely, necessity, desirability and practicability. Let me be clear: the proposal is unnecessary, undesirable and unworkable. I shall address each of those points briefly. When the Government first put forward the proposal to extend pre-charge detention from the current 28-day limit, we made it clear that there needs to be evidence to support that; that we would need to see this evidence; that the Government need to make the case; and that we would consider it seriously. On these Benches, we take the terrorist threat to this country every bit as seriously as do the Government. As I said at Second Reading, there is no difference between us on that. Wherever possible, we strive for agreement on security matters. But the Government have signally failed to demonstrate need. What they have relied on is a hypothetical scenario—what they call ““pragmatic inference””—to make the case. Sir Ian Blair has said explicitly, "““We have never put forward a case that there is evidence of a need for an extension””." The Government have relied primarily on the complexity of modern plots and, therefore, the difficulty of investigation. If that constituted overwhelming justification, one would expect that those who had to mount the prosecution would indicate their support for the measure. But just the opposite is the case. The Director of Public Prosecutions has made clear that he does not think that it is necessary. The prosecutors do not perceive any need for the period of 28 days to be increased. He collapsed the Government’s case for a hypothetical situation. He said: "““It is possible to set up all sorts of hypotheses. Anything is possible. The question is whether it is remotely likely””." Many other experienced figures have similarly said that it is unnecessary, including the noble and learned Lord, Lord Falconer, a former Lord Chancellor, the noble and learned Lord, Lord Goldsmith, a former Attorney-General, the Lord Advocate and many former Lord Advocates, some of whom are here today. In its report dated 8 October, the Joint Committee on Human Rights commented that it is hard, "““to see how the Government can plausibly claim that there is a pressing necessity to extend further the maximum period … when the existing power to detain for more than 14 days … has only ever been used in a small number of cases and has not been used at all for well over a year””." So the Government’s case is not good enough as grounds for taking power to keep people in detention for periods much longer than any other comparable democracy thinks necessary to confront the terrorist threat, a point just made by the noble Lord, Lord Dear. Moreover, Parliament must balance the evidence for this measure, such as it is, against its desirability—my second point—and against its wider effects. In his very powerful intervention, the noble Lord, Lord Dear, repeated a remark he made some time ago to the effect that the previously described proposal to extend pre-charge detention to 42 days was a propaganda coup and a recruiting sergeant for al-Qaeda. The Home Office’s own risk assessment for the proposal stated, "““It puts at risk the flow of community intelligence””." That is the Government’s own department. Community intelligence is a priority area for counterterrorism work. We have not got it quite right yet, but these proposals will hinder us unnecessarily in trying to get it right, and I personally attach a great deal of importance to the development of community intelligence. Let me be clear: these are security warnings. The proposal to extend pre-charge detention has real potential security drawbacks. Let us assume for a moment that if this proposal was desirable and necessary, which it is not, would we consider it workable? The answer is no. The former Home Secretary, Charles Clarke, made clear his view that the procedures to be established are so cumbersome that the police and the prosecuting authorities will be most unlikely to seek their extension. And as the noble Lord, Lord Dear, mentioned, Mr Andy Hayman, the former assistant commissioner for special operations, wrote recently that the process the police and the prosecution would have to go through just will not work. We have to take the comments of the police in this respect seriously since they will be involved in trying to make these procedures work. Indeed, Mr Hayman went further and wrote that at the height of a terrorist investigation it would distract efforts to solve or prevent the crime by forcing the police to prepare a ““politically acceptable”” case for an extension. The last thing we need in such circumstances is the taint of spinning. That leads me to the final objection to this proposal. The apparent safeguards the Government have put in place not only make the proposal unworkable, they also make it constitutionally worrying. The Constitution Committee said that they run the risk of conflating the roles of Parliament and the judiciary. They will place on Parliament demands to act in a quasi-judicial manner. The safeguards are also inadequate to attain their ostensible objective—the prevention of the abuse of power. The excessively broad drafting of these provisions could actually lead to such abuses. Were Parliament able to conduct the sort of scrutiny of an order for the reserved power that it should if it were to provide a real safeguard against the abuse of executive power, it would be in great danger of prejudicing any subsequent trial, with all the adverse consequences for justice that could entail. On the other hand, if it were to avoid that danger, Parliament would be prohibited from conducting real scrutiny. The Secretary of State has herself said that much the greater part of the material aspects could not be debated by Parliament, so it would not provide any real safeguard. Indeed, it would put itself in danger of conniving with acts over which it had no real control. That would not be worthy of either House, nor of our democracy, and the Government should not put forward proposals which risk the reputation of Parliament in this way. As the noble Baroness, Lady Manningham-Buller, said in her maiden speech, we are all trying to facilitate the work of the police, intelligence and security services to detect and counter terrorism, and we are all agreed on that. But to fulfil our constitutional role, we must ensure that our laws in this sensitive area of national life are relevant and proportionate. The proposal to extend pre-charge detention to 42 days fails on both grounds, and that is why we oppose it.