42 days looks doomed, killed off by the Lords

On the big issues, it’s the House of Lords not the Commons that so often rises to the level of events. Yesterday’s debate on the counter-terrorism Bill was one of those. We have come a long way it seems, from the bad old days of internment.

That “deal” with the DUP was one of the reasons given by former Lord Chancellor and head of the judiciary Lord Falconer for opposing the 42 day detention limit.

“I find it worrying that somebody could be detained in prison on the basis of a deal done with another political party. That is something that we have never accepted in this country before”.

By the sound of it, the government will be defeated by about 2 to 1 when it comes to a vote before the end of the month, helped along by Gordon Brown’s old cabinet colleagues the lawyers Lords Falconer and Goldsmith. Internment and why today’s global terrorism is different from the IRA campaign inevitably cropped up. And Ken Maginnnis launched a furious attack on the ongoing NI judicial inquiries for blackening the reputation of the former RUC special branch. Would the Met and and the Security Service suffer a similar fate if 42 days were to pass?

Lord Maginnis regarded 42 days as a form of detention without trial, which would bring the government under international pressure:

Let me forecast to the Government what they will inevitably do when they come under international pressure, as they will if they go down the route of extended detention without trial. They will do what they have done in Northern Ireland. They will abandon those police and intelligence agencies that are currently striving to defend our community against the evil that threatens us. I hope that the Government recognise that this is what the police and intelligence agencies here in Great Britain expect and fear. They have seen the Government’s willingness to accept phrases such as “a force within a force” as something discreditable in relation to the RUC’s Special Branch. What do they think Special Branch and the intelligence agencies really are?

This was a springboard for launching an attack on the current inquiries:

Today’s police and security personnel have seen the Government spend multiples of millions of pounds sterling on inquiries where the actions of security services in the 1970s or 1980s are judged against the comparative normality of 2008 and where the security of the then serving officers is disregarded and their approaching old age is disrupted by what they see as a treacherous attempt to criminalise them. That is the background evidence against which our security services are asked to work today. For example, in Northern Ireland, over £60 million has been spent to date looking at the Hamill, Nelson and Wright cases. Almost £10 million per annum is being spent to maintain a Police Ombudsman’s office with almost 150 staff—one member of staff for every 50 police officers on the ground, or £1,500 per annum per policeman in Northern Ireland to be policed by PONI. Against that craven reaction to terrorist propaganda, how can our current security forces anywhere in the UK have the confidence that they will not be the sacrificial lambs?

Not that Lord Maginnis was wholly against any form of internment.

Thirty-five years ago, I saw how internment without much high-grade intelligence, based on perception and prejudice, resulted in many of the wrong people being detained without any judicial safeguards. It saw alienation and a loss of community support.

I am not opposed to internment, by which I mean the real thing, where we have evidence to tender in a closed court that simply cannot be revealed in open court because it would infringe the security of a valuable source of information or the use of electronic devices, or would endanger security personnel working under cover. That is as opposed to this 42-day compromise, which assumes that, if we keep suspects long enough, we will break them. We might break an innocent person and get a confession, but there is not a defence lawyer in the country who cannot argue successfully that duress, not guilt, was the reason for the confession. The hardened, conditioned, brainwashed terrorist whom I have known for 30 years in Northern Ireland will concentrate on the cracks in the wall or the individual bits of dandruff on the interrogator’s shoulders—whatever—and it will not matter whether it is 28, 42, 56 or 90 days. He will resist and resist and he will win the day.

But it was a woman in a rumpled cardigan who put the bullet into the back of the neck of 42 day proposal. Former head of MI5, Lady Manningham- Buller (her Lord Chancellor father was known as “Bullying Manner”) dispatched it in a very few words in her maiden speech.

I have weighed up the balance between the right to life—the most important civil liberty—the fact that there is no such thing as complete security and the importance of our hard-won civil liberties. Therefore, on a matter of principle, I cannot support the proposal in the Bill for pre-charge detention of 42 days.

Recalling as I do vividly the early morning internment was imposed, August 9 1971, it’s striking how nowadays, the reasons for its failure are so completely taken for granted, and regarded as just a small kink in the golden thread of British justice. Former Attorney General and NI Secretary Lord Mayhew made the point:

Just as internment in Northern Ireland in the 1970s put us on the back foot and encouraged the violence we were resisting, so this proposal will predictably harm us.

Two former Met commissioners, Imbert and Condon, divided for and against 42 days and another former senior spook Lady Park, a scourge of the IRA and Sinn Fein took a different view from Manningham -Buller

I remain committed to the urgent need to extend the powers on pre-charge detention seven days at a time when asked for, for up to 42 days. The enemy is not the IRA but a global, amorphous organisation that uses rare forms of Arabic to communicate. It is highly skilled in new communications technology and its tentacles reach into Saudi Arabia, Indonesia, Pakistan and Malaysia. The men and women with the necessary linguistic and professional knowledge to extract intelligence from vast quantities of material seized are hard pressed.

The technical case against 42 days was put by a retired law lord, (most senior appeal court member) Lord Steyn.

I am mystified by the purpose of the Government in embarking on this wholly unnecessary legislation. I asked myself whether it was for a tawdry political objective to wrong-foot political opponents, but I would not readily accept that because it would mean that the Government, instead of pursuing the public interest, were guilty of an abuse of power. I continue to be mystified about the Government’s motivation in bringing forward this senseless legislation.

But there is a second and wholly separate reason why the 42-day provision in the Bill deserves to be rejected by this House. The so-called protections in the Bill are illusory and constitutionally illiterate. While the Bill makes provision for judicial oversight it is meaningless, because before a person is charged there is no evidence for a court to test. More importantly, the supposed parliamentary oversight is non-existent because Parliament cannot in our system examine individual cases. The attempt to create a provision for compensation possibly amounting to £3,000 per day is truly absurd.

Lord Ahmed, for a peer a youngish representative of Muslim communities, had no doubt about the impact of 42 days on them.

Last week, I asked a young man about the Government’s proposal and he said, “Sir, I believe that our anti-terror laws are now on a par with McCarthyism and the experience of the Jewish community within Europe during the last century”. I cannot support the 42 days on the one hand, yet talk about the experience of the Muslim youth on the other, as the junior Minister did last week. If that is how young people feel, I am afraid that the Government’s rhetoric about winning hearts and minds will be doomed to failure. You cannot demonise peoples’ faith and marginalise young individuals, then expect to win any support from those you have alienated.

It’s very hard to see how 42 days can survive this onslaught. Unless any deal is far more sweeping than anything which may or may not have been dangled before the DUP.