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Counter-Terrorism Bill

I remain uneasy about it. It is rather like the French system, which the noble Lord, Lord Carlile, described to us. It makes me decidedly uncomfortable. If the Government insist that an adverse inference may be drawn from a suspect’s exercising the right to silence under post-charge questioning, how confident can we be that the interests of justice are being served? If that insistence is not maintained, there remains the problem that continued questioning of the suspect in detention fails to secure the balance between defence and prosecution that procedures in a trial are designed to safeguard. Threshold charging and post-charge questioning will no doubt make the need to extend pre-charge detention beyond 28 days rarer, but they are not flawless means to justice. We are in the disagreeable situation in which the means to secure liberty and justice and the means to secure safety are inescapably in tension. Like all noble Lords, I do not want Parliament to grant excessive powers to government or their agencies to curtail civil liberties. Our enemies indeed seek to destroy the freedoms that we cherish and that we are proud to claim distinguish our political culture. To overreact to terrorist threats would indeed be to allow our enemies a victory. I agree with that argument. But I do not think that the Government are overreacting in the provision for 42 days. The Government have sought strenuously to ensure that civil liberties are protected in this Bill. Contrary to the noble Baroness, Lady Mallalieu, I believe that the safeguards are substantial. The Bill is in no sense a charter for arbitrary government. The Bill would make contingency provision only for the extension of pre-charge detention, which would be exceptional and never routine. The Bill does not allow the Home Secretary to invoke the power other than in circumstances of a ““grave exceptional terrorist threat””. It does not even allow the Home Secretary to take the initiative to activate the power. The reserve power to extend pre-charge detention beyond 28 days could be activated by the Home Secretary only after she had received a joint report from the DPP and a chief constable setting out reasonable grounds for it in the existing situation. The Home Secretary must then take legal advice to ensure that all the legally prescribed conditions for activating the power have been met. Parliament would have to approve the activation of the power within—now—seven days. The Home Secretary's decision to activate the power would still be subject to judicial review. The Independent Reviewer of Terrorist Legislation, the noble Lord, Lord Carlile of Berriew, would subsequently report to Parliament within six months on the propriety of the Home Secretary's activation and use of the power and Parliament would debate his report. If the reviewer and Parliament found fault with the Home Secretary, the Home Secretary could not survive politically. That is certainly not the ““subjective, unfettered discretion”” for the Home Secretary that the noble Baroness, Lady Neville-Jones, claimed it to be in her speech at Second Reading. The Bill also contains powerful safeguards once the power is activated. It would not be for the Home Secretary to commit individuals to detention, but for a judge following application by the DPP to do so. It is not the case, as some seem to suppose, that the Government are demanding that Parliament give the Home Secretary the power to bang up anyone as a suspected terrorist at the suggestion of the spooks and the cops. Just as under existing legislation no individual can be detained beyond 48 hours without the approval of a district judge, and beyond 14 days without the approval of a senior judge, so under this Bill no one could be detained beyond 28 days without the DPP having approved the application being made and a senior judge having authorised the extension of detention. Detention could only be extended at any point after the first 48 hours for up to seven days, and after 14 days, a senior judge would have to approve each period of extension for up to a further seven days. The whole power to extend pre-charge detention beyond 28 days up to 42 days would lapse after a maximum of 60 days from inception. Unlike the noble Lord, Lord Thomas of Gresford, who anticipated that the judges would be manipulated by the Executive, I am confident that the judges would not give their approval if they were not truly convinced that an extension of detention was genuinely necessary in the interests of securing evidence to bring an appropriate charge. We can expect the judges to be sceptical and rigorous. They have a fine record of defending civil liberties against the wrongful use of power by successive Home Secretaries. In the field of terrorism, we have seen the judicial challenge to control orders. I have rehearsed these points, which must be well known to your Lordships, because I do not think that they have been given sufficient weight in the estimation of some noble Lords who are critical of the Government and because I am not always sure that the Government’s critics outside Parliament are fully aware of them. Forty-two literary celebrities have taken the Liberty whip. Can such a quantity of intellectuals—and quantity is presumably as important as quality here—be wrong? It is not inconceivable. After all, 364 economists who write to the Times were wrong about the 1981 Budget. Have all the celebrity writers, as good citizens of the democracy they wish to defend, studied the detailed provisions of the Bill? There may be flaws in some aspects of the Bill—we shall need to examine the provisions for parliamentary oversight—but those issues are for other debates. The issue now is simply whether there should be a power of any kind to extend pre-charge detention beyond 28 days. I believe that, with suitable safeguards, there should, and that the amendment is misconceived.