Police Reform and Social Responsibility Bill

Lord Pannick Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords, we are proceeding in the usual orderly way of your Lordships’ House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops’ Bar.

There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.

As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15—Counter Terrorism Command in the Metropolitan Police—and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.

What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way—having accountability of that kind—will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.

It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.

In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis who have been able to take refuge in this country who committed vast atrocities during the 1971 war in that country. They, too, should be the subject of investigation.

In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.

I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.

The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.

I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view—I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening—but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.

I do not think that I have to declare an interest—indeed, it would be sexist to do so—when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country—or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.

These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary—and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there may be good reasons for changing it in future. Furthermore I hope, and indeed apprehend, that the Director of Public Prosecutions would want to consult widely on the universal jurisdiction and might well wish to issue a code of practice. That might involve some changes to the current code. After all, the Crown Prosecution Service has a special code for dealing with rape cases which is non-statutory. It would be extremely foolish to make it statutory because it would be prevented from change. The same applies to the universal jurisdiction.

I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.

I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.

[Lord Pannick]

I was a witness to the discussions in the Bishops’ Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D’Souza, made the same point.

I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have also advised, again on a pro bono basis, Jewish community groups in this country concerned about this aspect of the law.

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[Lord Campbell-Savours]

As a non-lawyer, I wonder whether I can ask the noble Lord a lay man’s question. What kind of considerations would the public interest considerations be in the application for a warrant in a case like this? What would the DPP have in mind?

[Lord Pannick]

The DPP dealt with that matter in the evidence that he gave to the Public Bill Committee. He was very reluctant to address hypotheticals but said:

“There may be a case where there is a very powerful argument … the example that is given by others and therefore not from my mouth is where you have a fraught and difficult peace negotiation that has to take place in 24 hours in a country and you need international leaders there. I do not know. There may be a situation where you would have to carefully consider the arguments one way or the other”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 134.]

[Lord Campbell-Savours]

I—

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[Lord Pannick]

I will just finish my answer, then I will happily give way to the noble Lord. If he is saying that public interest has no role in this area then his quarrel is with the code for Crown prosecutors, but his amendment does not address that.

[Lord Campbell-Savours]

When the noble Lord said that the DPP was totally independent, he appeared to be saying that they would not have political considerations in mind. If peace negotiations were about to take place, surely that is a political consideration. It is precisely those sorts of areas that might cause the public some concern, even though the justification may be merited.

[Lord Pannick]

I am grateful to the noble Lord. It is of course the experience of all those who have held the sensitive and difficult office of Director of Public Prosecutions and Attorney-General—we are fortunate to have two former Attorney-Generals here—that they have to address these sensitive and difficult questions. There is nothing unusual about this area that singles it out from the problems that are faced, if not on a daily basis then I am sure on a weekly or monthly basis, by those who hold that office. I am sure that they will be able to assist the House regarding this matter.

My point is that the noble Lord’s amendment seeks to give an advisory role to the DPP in relation to a matter that the magistrate simply has no role under existing law to determine. I suggest with respect that that is not a sensible way to proceed, nor would it be sensible to confer on the magistrate a new role, which the magistrate has never had, of having to consider the criteria in the code for Crown prosecutors of whether there is a realistic prospect of conviction or whether the public interest justifies a decision being taken.

The other amendment, Amendment 245AA, would include in the legislation criteria that told the DPP how to exercise his discretion. It would be quite unprecedented for Parliament to tell the DPP what criteria to adopt in exercising his functions, nor do the courts do so. Indeed, it was highly controversial that the Appellate Committee of this House decided in July 2009 to require the DPP even to publish guidelines on whether he would prosecute for assisting a suicide. I declare an interest as counsel for Mrs Purdy in that case. Parliament and the courts have, for good reason, preferred to leave the DPP to develop his own criteria in the code for Crown prosecutors. Amendment 246 raises very different issues—

[Lord Thomas of Gresford]

Does the noble Lord agree that it would surely be right that the DPP should apply the same standards when he is considering one of these cases that come from abroad as he would for a person within the domestic jurisdiction?

[Lord Pannick]

I certainly agree that the DPP should apply the same standards in the sense that he asks whether there is a realistic prospect of conviction and whether the public interest justifies a prosecution. The application of those principles, though, will inevitably depend on all the facts and circumstances of the individual case. It would be unprecedented for Parliament to tell the DPP in detail how to apply his discretion, and there is nothing in what the DPP said to the Public Bill Committee that should cause concern to noble Lords about the manner in which he proposes to exercise this new power if he is given it.

[Lord Phillips of Sudbury]

I think it is fair that I ask the noble Lord this. He has said several times now that the consent of the Attorney-General to one of these prosecutions is required. My understanding, and I want to get this quite clear, is that the Attorney-General can issue a nolle prosequi that his consent is not required.

[Lord Pannick]

It amounts to the same thing. If the Attorney-General takes the view that it is inappropriate for a prosecution to continue, they will say so. The purpose of the provision of English law is to ensure that the Attorney-General is able, in this sensitive and important context, to take a view on whether it is appropriate.

[Lord Phillips of Sudbury]

My Lords, to pursue the point, there is a vast difference, with respect, between getting the consent of the Attorney-General as a prerequisite and the right of the Attorney-General to intervene by way of nolle prosequi. The noble Lord is mistaken in what he draws from that.

[Lord Pannick]

My understanding is that consent is required. In any event, with great respect, I do not see the practical difference. Other noble Lords will assist the Committee in that respect.

[Lord Goldsmith]

My Lords, this is a delicate and sensitive matter and I will spend a few moments on it. I entirely understand why noble Lords who have spoken have raised the points that they have. There are some footnotes as well, but two major things emerge from the debate so far. First, it is interesting that, despite the fact that certain noble Lords have said, “Let’s leave the system exactly as it is, there’s nothing wrong with it”, everybody who has spoken so far has proposed a change to the present system, either by supporting the Government or by tabling amendments as the noble Lord, Lord Campbell-Savours, has done—

Identity Documents Bill

Lord Pannick Excerpts

Tuesday 21st December 2010 Lords Chamber

[Lord Howarth of Newport]

My Lords, I will speak briefly about two issues. We certainly accept the convention that the noble Baroness is under no obligation to tell the House what the advice of the law officers was. However, I am surprised, not least in the light of the earlier observations by my noble and learned friend Lord Morris of Aberavon, to hear her assert that she is under no obligation to tell the House whether she received advice from the law officers. I wonder whether part of the reason for her difficulty earlier in the afternoon was that the advice of the law officers was not consistent. Perhaps they disagreed among themselves, which put her in an embarrassing and difficult position. Perhaps she would be willing to cast any light on that; if she would, I think that the House would be interested.

The second issue is the one that I raised earlier. I am genuinely unclear, from what the Minister said this afternoon, whether the Government are asserting financial privilege and hiding behind a ruling of the Speaker and whether they are content that this extension of the doctrine of financial privilege to cover matters of expenditure as well as measures concerned with revenue raising is an appropriate new doctrine for them to espouse and to use for their political convenience. As I suggested earlier, if that is the case, there are large implications for this House, which we should ponder and take seriously. Will the Minister tell us in plain terms whether the Government consider that this is a matter of financial privilege and therefore outside the authority and competence of this House to vote on?

[Lord Pannick]

My Lords—

[Baroness Anelay of St Johns]

My Lords, perhaps I might remind the House that we have in a sense invented procedure this afternoon to assist the Minister to make a statement of explanation. Noble Lords will understand that of course we expect a noble Lord on the opposition Front Bench to be able to put the opposition view. Other noble Lords might wish to put very brief questions. We allowed a little latitude to the noble Lord, Lord Howarth. Perhaps we might now return to the normal convention of making brief interventions so that my noble friend can return to the assurance, which she has given very clearly to the House, that at all times she has taken the appropriate legal advice and, as she has tried to assure the House, that the Government have acted properly. Of course I understand that matters of parliamentary procedure and privilege, and constitutional issues, have been raised by the opposition Front and Back Benches. I also understand that these will be debated on another day. Our minds today are concentrated on one Bill and one or two Motions.

[Lord Pannick]

I am grateful to the noble Baroness. I shall confine myself to brief questions. First, the Minister indicated that legal advice had been taken. Will she accept that there is a difference, which concerns noble Lords, between taking legal advice on these matters and taking legal advice from the law officers?

The second matter arises out of the noble Baroness’s statement that it is a convention that Ministers do not confirm whether or not legal advice has been sought from the law officers. Does she accept that it is a different matter if she has given a specific assurance to the House that legal advice will be sought from the law officers and that it is entirely appropriate that she should confirm to the House whether her own assurance has been fulfilled?

My third and final question is: will she also accept that it is not a universal rule that the Government do not tell the House whether legal advice has been sought from the law officers? There are many, many examples of the Government telling this House and the other place that legal advice has been sought from the law officers. Professor Edwards’s book, Law Officers of the Crown, gives many examples, the most recent of which, of course, relates to the legality of the invasion of Iraq.

[Baroness Neville-Jones]

My Lords, it is not clear to me how much more help I can be to the House. I have tried very hard to be of help. Perhaps I can take up the points that have been made. I was asked in the House—I am looking at Hansard—whether the advice was from the law officers. I said that I was not sure but would seek to confirm it. That is indeed what I undertook to do. I am advised that I am not in a position to disclose either the fact of seeking that legal advice or its contents. That is why I am not able to take what I have said to the House this afternoon any further. The only way that I could do that would be—

Identity Documents Bill

Lord Pannick Excerpts

Tuesday 21st December 2010 Lords Chamber

[Baroness O'Cathain]

No, I am not. Please listen to what I have said. The self-righteousness coming from the other side is quite sickening.

I abstained in the debate because I felt that there was a moral justification for the money to be repaid to the people who were conned by those opposite into spending money on ID cards. There is no point in denying that by trying to be the people who support everybody out there and by adopting a high moral tone and self-righteousness. Rubbish.

[Lord Pannick]

My Lords, I hope that I will not be accused of being self-righteous if I say that I share the concerns that have been expressed by the noble Lords, Lord Hunt of Kings Heath and Lord Howarth of Newport.

Behind the moral issue and the issue of principle, I think that there is a legal issue. The Minister will recall, as mentioned by the noble Lord, Lord Hunt of Kings Heath, that it was suggested to her on the previous occasion when we debated the matter that she might wish to take specific advice from the law officers as to whether the Government’s approach is consistent with this country’s obligations under the European Convention on Human Rights. The concern, which is very simple indeed, is that the Bill removes a property right without any compensation, in breach of Article 1 of the First Protocol to the ECHR and, therefore, that the amendment that noble Lords approved was not only wise but necessary.

When we last debated this matter, the Minister’s answer was that the ID card remained the property of the Government and therefore there was no difficulty. With respect, however, that is no answer at all. It is very well established in the case law of the European Court of Human Rights—indeed, it is common sense—that, when the Government grant a licence or an authorisation to do something, that of itself establishes a property right. If that licence or that authorisation is then removed by the Government, contrary to the expectation that has been created, the Government have a duty, other than in the most exceptional circumstances, to pay compensation. That legal obligation is precisely consistent with the substance of our debate on the previous occasion and with the amendment that was approved by noble Lords.

I therefore join the noble Lord, Lord Hunt of Kings Heath, in asking the Minister to explain whether she has indeed taken specific advice from the law officers, to deal in more detail with the substance of this concern and to explain to noble Lords how it can be that what the Government intend to do is consistent with this country’s international obligations.

[Lord Campbell of Alloway]

If there is a breach of human rights, of course that is a worry, but it is the job of the Court of Human Rights to put it right. If we are concerned with a matter of principle—I understand what the noble Lord is saying—surely the policy of a previous Government cannot be constitutionally binding on the next Government. Whether it is unfortunate and whether there is criticism, the policy of this Government was in fact accepted by this House. If we have got it wrong and the noble Lord is right, that will not affect the validity of this piece of legislation in this country. However, if an application is later made to the Court of Human Rights, it may decide that the point of principle here is that this Government—I do not always agree with them or, indeed, with any Government—have the entitlement in constitutional principle to reject the advice of the previous Government.

[Lord Pannick]

I have, of course, enormous respect for the knowledge and judgment of the noble Lord, Lord Campbell of Alloway, but on this occasion, with respect, I do not agree with his opinion. It is part of the law of this country that the Minister, like all other Ministers, has a positive duty under the Human Rights Act to confirm to this House and the other place that the legislation that the Government are bringing forward is consistent with the European Convention on Human Rights. That is the law of this country. I respectfully ask the noble Baroness to tell this House, consistent with her duty under the law of this land, why she is confident—if she is—that this proposal is consistent with our international obligations.

[Baroness Hamwee]

On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.

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[Baroness Neville-Jones]

I repeat to the House that the Government believe that this legislation is compatible with the European Convention on Human Rights. I do not think that I am obliged to say whether or not we have consulted the law officers, nor to say what legal advice we have taken. However, we believe it to be compatible with the convention. As we take our duties seriously, that is a clear statement to the House that we believe that we are acting lawfully.

[Lord Pannick]

Does the Minister appreciate that the question is not simply whether or not the Government are satisfied that the Bill that they are putting forward is compatible with the convention? Will she address the point that on the previous occasion, and in the debate today, a specific concern has been raised about why it is feared that the Government’s position is incompatible with the convention? That is why it was suggested to the Minister on the previous occasion that specific advice should be taken from the law officers on this precise point. I am sure that it would assist the House if the Minister were at least able to say whether she went back to the law officers in the light of the debate on the previous occasion, and in the light of the specific concern that was raised, in order to assure herself and noble Lords that that point had been considered and the Government were satisfied with regard to it.

[Baroness Neville-Jones]

I do not think that I am able to enlighten the House any further on the question of taking legal advice. We believe our actions to be lawful.

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[Baroness Neville-Jones]

This is a matter for the House, but I should like to answer the other points that have been made.

[Lord Pannick]

I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.

[Earl Attlee]

I think that it is appropriate for the Minister to carry on with the rest of her speech, answer the other questions that noble Lords have asked and wait to see whether further inspiration arrives.

Identity Documents Bill

Lord Pannick Excerpts

Wednesday 17th November 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, my name is on Amendment 2. I led the opposition from these benches to the Identity Cards Bill. I spent a good deal of one year of my life opposing it. I am therefore utterly delighted that this Bill is before the House. However, I have to say that, for me, it is slighted by the denial of reimbursement of the fee paid by 12,000 of our fellow citizens when they took out this card. Had they been told at the time they took out the card that they were in danger of losing the card and not being reimbursed, then that would be different. Had the coalition partners in their election manifestos said not merely that they would revoke the whole of the ID card scheme, but not compensate those who had taken cards in the interim, then that would be different. But neither of those circumstances prevails. I really do not think that it is remotely acceptable, for the reasons which the noble Lord, Lord Hunt of Kings Heath, laid out in moving the amendment. It simply is not acceptable to say, “Ah, but they should have realised”, which is what it boils down to.

Governments must set an example of the standards they expect of private industry. Had private industry engaged in a tactic of this sort, noble Lords on all the Benches would have been up in arms, and rightly so. I feel probably more strongly than I ought to that there is a simple, basic issue of fairness in this. Since this coalition launched itself as a coalition on the basis of fairness, I felt compelled, contrary to the wishes of my Whips, to put my name to this amendment, and I have done so with some conviction.

[Lord Pannick]

My Lords, I support noble Lords who have spoken. Will the noble Baroness tell the House whether she disputes that the card is property for the purposes of Article 1 of the First Protocol to the European Convention on Human Rights? Its cancellation is therefore a deprivation of property and compensation is payable. It would be most unfortunate if those whose cards are being taken away need to litigate this matter.

[Lord Maxton]

My Lords, unlike the noble Lord, Lord Phillips, I supported the introduction of ID cards. I still oppose this Bill in abolishing them. But certainly I think that the Government are being very petty in terms of refusing compensation to those who bought the cards, particularly as it appears that they are paying compensation to contractors which supplied machinery, software and everything else to set up the ID scheme. They will be paid full compensation. The argument is that they have a contract between the Government and them.

I would argue that the people who bought ID cards equally have a contract between themselves as individuals and the Government from whom they purchased the card. If that is the case, they are as much entitled to compensation as the companies which are being compensated for loss of earnings and profits as a result of the card scheme being cancelled. Will the noble Baroness spell out exactly what compensation is being paid to these companies? I gather that the computers holding the information will be physically smashed up. Will she also include the cost of that smashing up? There must be a cost to the public purse involved in all of that. Perhaps the noble Baroness will spell some of that out during her speech.

Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Lord Pannick Excerpts

Monday 19th July 2010 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I want to comment on the interesting statement by the Minister. I speak as the chair of Justice, which is the UK-based human rights and law reform organisation whose mission is to advance access to justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. This House will know that that international commission set up a panel of eminent jurists who reported last year on the issue of terrorism and in February 2009 produced a report, Terrorism, Counterterrorism and Human Rights, in which it recommended that there should be a review of counterterrorism legislation in this country because of its concern that there had been so much erosion of civil liberties and of some of the protections and safeguards that are so important to our system, which is admired around the world.

We therefore welcome the Government's review. The steps they are taking to reinstate many of the liberties that we saw eroded are greatly welcomed by human rights lawyers. However, we are concerned that the Government are still going to continue with the 28-day pre-charge detention relating to terrorism, even for six months. In our view, with great care taken to look at the evidence, we are confident that 28 days is not necessary. We make the argument that it is not necessary because plainly it is at odds with the right to liberty. Also, the period is far longer than any other western democracy has in place, and there is a lack of effective safeguards.

I remind the House of a number of the facts of the cases that have come before the courts in recent times. Our review of the use of the 28 days over the period since 2006, when 14 days was raised to 28 days, found that six suspects had been held for as long as 27 or 28 days. Three of those were released without charge. Three were charged with terrorism offences but, of those three, two were acquitted and only one was convicted. In that one instance where there was a successful conviction, it appears that the great majority of admissible evidence was already available to the police at the time of arrest; it was certainly available before the 14 days were up.

We have also seen that five of the six suspects held for up to 28 days were arrested in the context of Operation Overt, the liquid bomb plot. I should declare that I was one of the counsels in that case so I am familiar with it in some detail. Indeed, all three men who were ultimately convicted were charged within 12 days of their arrest—the 28 days were not necessary in that case either.

Justice urges the House that to defer a decision on this matter even for six months is too long. I remind noble Lords that in other western democracies, particularly in common law countries, there is nothing like this erosion of safeguards and protections. In Canada, there is a requirement to charge within a day; in the United States, it is two days; in South Africa, it is two days; and in New Zealand, it is two days. Even in other parts of Europe which do not have the common law system, to which I am so committed, the position is different. For example, in Germany the period is two days; in Spain, it is a maximum of five days; and in France, it is a maximum of six days. Charging is expected to take place within those limits.

We are concerned that there is an incompatibility with Article 5 of the European Convention on Human Rights. We think that it is highly likely that Schedule 8, the authorisation procedure, will be found incompatible with the requirements of Article 5. We ask the Government to look again at whether there is even a need to have the six months’ extension which is now being considered.

However, I say all of that in the context of our view that the Government are taking the right steps in having this inquiry into what is needed. Clearly, no country should roll over in the face of terrorism and special steps have to be taken, but it is our view that the extension to 14 days, which was introduced, is adequate to the challenges that we all face.

[Lord Pannick]

My Lords, I share the concerns expressed by the noble Baroness, Lady Kennedy of The Shaws. I appreciate that we are debating this issue in the context of the Government’s very welcome announcement that they will conduct a review of the 28-day pre-charge detention limit. However, I am unpersuaded that there is any basis for continuing this power, even on a temporary basis.

There are three points which your Lordships will wish to have well in mind. First, this is an extraordinarily exceptional power. English law normally requires that suspects be charged or released within four days. The pre-charge detention limit for terrorist cases was limited to seven days until 2003, when it was raised to 14 days. English law jealously restricts the power of the state to detain people without charge, and rightly so. It is only when charged that the person concerned has the right to be told the accusation against him and to respond to it. For the state to hold a person without charge for up to four weeks is inevitably a very substantial interference with their freedom and inevitably has a very damaging effect on their work, family relationships and reputation in the community.

Secondly, there must, therefore, be a very heavy onus on the Government to justify such an interference with basic liberty. The real question is whether they can meet that heavy onus. I suggest that they have failed to identify any practical experience whatever which establishes, or indeed even suggests, that a 14-day limit would not suffice. This is, of course, not a new problem. The Home Office has all the relevant information. Will the Minister in her reply please identify for the House whether there are any cases in which pre-charge detention after 14 days was necessary to the successful prosecution of a terrorist suspect? It is surely not sufficient for the noble Baroness to assert—and who can disagree with the assertion?—that it is impossible to be sure that there might never in the future be an occasion when more than 14 days might be required, as she put it.