This is not the first time the Lords has opposed the Commons over anti-terrorist legislation, much of which has been highly contentious, with notable past defeats including Tony Blair's attempt to increase the maximum time a terrorist suspect can be held without charge from 28 days to 90 in 2005. In 2008, another attempt to extend it to 45 days was made, briefly accepted and then overturned by the Lords. Law Lords led by Lord Philips of Worth-Matravers have also recently attacked controversial control orders which can be used to prevent a suspect from seeing evidence being used against him or her, effectively denying them the right to make an appeal. The Common's opposition to the creation of the new post was backed by MPs from the Conservatives, the Liberal Democrats and some cross-party members.
A group of peers led by Lord Lloyd of Berwick (pictured right), a retired Law Lord, demanded that the new post be created and won the vote by 145 votes to 102. He said that the commissioner would act as the "the eyes and ears of the judge," entirely independently, in those cases where the police try to extend a suspect's detention prior to a charge being made.
In essence, the new commissioner will help to ensure that innocent people will not be detained for any longer than is necessary. Fears that it might lead to guilty people being freed are dismissed by former Chief Inspector of the Constabulary Lord Dear, who says he believes "that the greater good that may be achieved by the creation of the commissioner post far outweighs any potential disadvantage." The commissioner will be granted access to secret evidence, available to neither the suspect nor the suspect's lawyer, in order to be able to advise the judge on the best course of action.
Although Lord Lloyd points out that the creation of the post will reassure Britain's 2.4 million strong Muslim community, of which some members have been feeling (not without reason) distinctly alienised and even criminalised by various legislation and the extreme opinions of a small minority of the non-Muslim population, it will be of equal service to anyone of any other background who is unfortunate enough to be falsely suspected of plotting or carrying out terrorist offences.
The Guildford Four were wrongly convicted and sentenced to life imprisonment in the 1970s. After many years in prison, their convictions were overturned. The people who carried out the bombings for which they were blamed remain free. Had the commissioner for terrorism supects have existed then, these innocent people might never have been convicted - and the police investigation would have continued, perhaps eventually capturing the real perpetrators before the trail went cold.
Had the commissioner have existed in the 1970s, the trial of the Guildford Four - wrongly convicted and imprisoned for a number of years after being sentenced to life for bombing attacks they did not carry out - may well have had a very different outcome. When an innocent person is convicted of a crime they did not commit, the investigation into that crime ends which allows the real perpetrator to remain free. The police are, unfortunately, not infallible and in some cases may be too keen to be seen to be achieving results which can lead to wrongful convictions - the new commissioner will decrease the likelihood of innocent people ending up in jail and increase the likelihood of guilty people facing prosecution.
House of Commons ministers have argued that one commissioner will be insufficient to cover the entire country and that the plan will cost far more than Lord Lloyd claims. How much is too much to ensure innocent people remain at liberty and terrorists, who seek to or may even successfully kill large numbers of men, women and children, are removed from society and given the long sentences they deserve?