[2nd Allotted Day]
As amended in the Public Bill Committee, further considered.
[Relevant documents: The Second Report from the Joint Committee on Human Rights, on Counter-Terrorism Policy and Human Rights: 42 Days, HC 156, the Ninth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 199 and the Government Response, Cm. 7344, the Tenth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Annual Renewal of Control Orders Legislation 2008, HC 356, the Twentieth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 554, and the Government Response contained in the letter dated 5th June 2008 from Rt Hon Tony McNulty MP, Minister of State, Home Department, the Twenty-first Report from the Committee, on Counter-Terrorism Policy and Human Rights: 42 Days and Public Emergencies, HC 635 and the Government Response contained in the letter dated 6th June 2008 from Rt Hon Tony McNulty MP, the letter dated 4th June 2008 from Rt Hon Tony McNulty MP, on special advocates and control order legislation, the letter dated 4th June 2008 from Rt Hon Tony McNulty MP, on pre-charge detention: 28 days annual renewal, and the letter dated 9th June 2008 from the Chairman of the Committee to Rt Hon Jacqui Smith MP, Secretary of State for the Home Department.]
New Clause 20
Grave exceptional terrorist threat
‘(1) In this Act “grave exceptional terrorist threat” means an event or situation involving terrorism which causes or threatens—
(a) serious loss of human life,
(b) serious damage to human welfare in the United Kingdom, or
(c) serious damage to the security of the United Kingdom.
(2) For the purposes of subsection (1)(b) an event or situation causes or threatens damage to human welfare only if it causes or threatens—
(a) human illness or injury,
(c) damage to property,
(d) disruption of a supply of money, food, water, energy or fuel,
(e) disruption of a system of communication,
(f) disruption of facilities for transport, or
(g) disruption of services relating to health.
(3) The event or situation mentioned in subsection (1)—
(a) may occur or be inside or outside the United Kingdom, and
(b) may consist in planning or preparation for terrorism which if carried out would meet one or more of the conditions in that subsection.’.—[Jacqui Smith.]
Brought up, and read the First time
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following: Amendment (a) to the proposed new clause, in subsection (1), leave out from ‘which’ to end and insert
‘amounts to a public emergency threatening the life of the nation, in accordance with Article 15 of the European Convention on Human Rights.’.
Government new clause 21—Power to declare reserve power exercisable
Government new clause 22—Report of operational need for further extension of maximum period of detention
Government new clause 24—Notification of chairmen of certain committees
Government new clause 25—Statement to be laid before Parliament
Government new clause 26—Parliamentary scrutiny
Government new clause 27—Parliamentary scrutiny: prorogation and adjournment
Government new clause 28—Duration
Government new clause 29—Independent review and report
Government new clause 30—Amendment to the Civil Contingencies Act 2004
Government new clause 32—Independent legal advice
New clause 1—Extension of detention under section 41 of the Terrorism Act 2000—
‘(1) The Terrorism Act 2000, Schedule 8, Part III (extension of detention under section 41) is amended as follows.
(2) After sub-paragraph (6) of paragraph 29 (warrants of further detention) there is inserted—
“(7) Nothing in this Part is to be read as requiring the judicial authority to act in a manner inconsistent with the right of the specified person to a fully judicial procedure in Article 5(4) of the European Convention on Human Rights.”.
(3) After sub-paragraph (d) of paragraph 31(notices) there is inserted—
“(e) a statement of the suspicion which forms the basis for the person’s original arrest and continued detention, and
(f) the gist of the material on which the suspicion is based.”.
(4) Before sub-sub-paragraph (a) of sub-paragraph 32(1) (grounds for extension) there is inserted—
“(aa) there are reasonable grounds for believing that the person has been involved in the commission, preparation or instigation of a terrorist offence,”.
(5) Sub-paragraph (1) of paragraph 33 (representation) is deleted and there is inserted in its place—
“(1) The person to whom an application relates shall be entitled—
(a) to appear in person before the judicial authority and make oral representations about the application,
(b) to be legally represented by counsel at the hearing,
(c) to legal aid for such representation,
(d) to be represented by a special advocate at any closed part of the hearing of the application, and
(e) through his representative, to cross examine the investigating officer.”.
(6) After sub-paragraph (3)(b) of paragraph 33 there is inserted—
“if the judicial authority is satisfied that there are reasonable grounds for believing that the exclusion of the person and/or his representative is necessary in order to avoid any of the harms set out in sub-paragraphs (1) to (g) of paragraph 34(2) below.”’.
New clause 2—Lower threshold for charging in terrorism cases—
‘(1) When deciding whether there is sufficient evidence to charge a person with an offence having a terrorist connection, a Crown Prosecutor may apply the “Threshold Test” for charging if the conditions in subsection (3) below are satisfied.
(2) The “Threshold Test” for charging is met where there is at least a reasonable suspicion that the suspect has committed an offence having a terrorist connection.
(3) The conditions which must be satisfied for the Threshold Test to apply are—
(a) it would not be appropriate to release the suspect on bail after charge;
(b) the evidence required to demonstrate a realistic prospect of conviction is not yet available; and
(c) it is reasonable to believe that such evidence will become available within a reasonable time.
(4) The factors to be considered in deciding whether the Threshold Test of reasonable suspicion is met include—
(a) the evidence available at the time;
(b) the likelihood and nature of further evidence being obtained;
(c) the reasonableness for believing that evidence will become available;
(d) the time it will take to gather that evidence and the steps being taken to do so;
(e) the impact the expected evidence will have on the case;
(f) the charges that the evidence will support.
(5) Where a Crown Prosecutor make a charging decision in accordance with the Threshold Test, the person charged shall be immediately informed of the fact that they have been charged on the standard of reasonable suspicion.
(6) When the person charged on the Threshold Test is brought before the Court it shall be the duty of the Crown Prosecutor to inform the Court of that fact.
(7) The Court shall set a timetable for the receipt of the additional evidence and for the application of the normal test for charging as set out in the Code for Crown Prosecutors.
(8) The Chief Inspector of the Crown Prosecution Service shall report annually on the operation of the Threshold Test in terrorism cases.’.
New clause 3—Bail for terrorism offences—
‘(1) The Terrorism Act 2000, Schedule 8, is amended as follows.
(2) After paragraph 37 there is inserted—
38 The judicial authority with power to extend detention under section 41 has power to release the suspect on bail, with conditions.”’.
New clause 31—Compensation for detention—
‘(1) The Secretary of State must, within twelve months of the date on which this Act is passed, make regulations providing for a compensation scheme (“the scheme”) governing payments made to suspects who are detained under the provisions of Schedule [Amendments relating to period of pre-charge detention] and not charged with an offence.
(2) The scheme shall specify levels of payments to be made to suspects so detained and different levels may be set for different periods of detention.
(3) The Secretary of State may by order vary the levels of compensation set by the scheme.
(4) Regulations and orders made under this section are subject to affirmative resolution procedure.’.
New clause 33—Expiry or renewal of extended maximum detention period: further parliamentary safeguards—
‘(1) The Terrorism Act 2006 is amended as follows.
(2) After subsection (6) of section 25, there is inserted—
“(6A) The Secretary of State and the panel appointed under section 36 must lay annual reports before Parliament on the operation of the extended period of pre-charge detention.
(6B) No motion to approve a draft order under subsection (6) may be made by a Minister of the Crown until one month has elapsed since the publication of the reports laid under section (6A).”.
(3) In section 36—
(a) in subsection (1) for “person” there is inserted “panel of persons”;
(b) in subsection (2)—
(i) for “That person” there is inserted “The panel”;
(ii) for “he” there is inserted “it”; and
(iii) for “his” there is inserted “its”;
(c) in subsection (3)—
(i) for “That person” there is inserted “The panel”; and
(ii) for “his” there is inserted “its”;
(d) in subsection (4), for “That person” there is inserted “The panel”;
(e) in subsection (6)—
(i) for “a person” there is inserted “the persons”; and
(ii) for “his” there is inserted “their”.
(4) In section 36, after subsection (1) there is inserted—
“(1A) A person may not be appointed under subsection (1) unless—
(a) the Secretary of State lays a report on the appointment process before both Houses of Parliament, and
(b) a Minister of the Crown makes a motion in both Houses to approve the report laid under this subsection.”.’.
New clause 36—Power to declare reserve power exercisable (No. 2)—
‘An order made by the Secretary of State under section [Power to declare reserve power exercisable] shall be treated for the purposes of the Human Rights Act as subordinate legislation and not primary legislation.’.
New clause 37—Power to declare reserve power exercisable (No. 3)—
‘The grounds on which an order made by the Secretary of State under section [Power to declare reserve power exercisable] shall be subject to judicial review shall include—
(a) that a grave exceptional terrorist threat has not occurred or is not occurring;
(b) that the reserve power is not needed for the purpose of investigating the threat and bringing to justice those responsible; and
(c) that the need for the power is not urgent.’.
New clause 38—Amendment to section 25 of the Terrorism Act 2006—
‘(1) Section 25 of the Terrorism Act 2006 (c. 11) (expiry or renewal of extended maximum detention period) is amended as follows.
(2) After subsection (3), insert—
“(3A) (a) The Secretary of State may only make an order under subsection (3) if she is reasonably satisfied that making the order is necessary for the effective investigation of terrorist offences.
(b) In determining what is necessary for the effective investigation of terrorist offences the Secretary of State must take into account the availability of post-charge questioning, the practice of the Crown Prosecution Service in relation to the weight of evidence required to bring charges and any changes to the relevant law of evidence or procedure since this Act came into force.”’.
New clause 39—Habeas Corpus (No. 2)—
‘(1) Nothing in this Act shall prevent or restrict a person who is detained under this Act or a person duly authorised on behalf of that person from making an application to a Justice of the High Court for habeas corpus.
(2) It shall be a condition of the detention that the person detained shall be produced forthwith to a Justice of the High Court or to a senior immigration judge authorised to sit as a member of the Special Immigration Appeal Commission who shall enquire as to—
(a) the circumstances of the detention;
(b) the enquiries that are being made;
(c) the likelihood of the detained person being charged within 42 days of any offence of terrorism or related serious indictable offence.
(3) If the Justice of the High Court or senior immigration judge is not satisfied as to the likelihood of the person detained being charged within 42 days that person shall be released forthwith from detention subject to any conditions the judge may impose.’.
Government amendment No. 4
Government new schedule 1—‘Amendments relating to period of pre-charge detention
Government amendment No. 5
Amendment No. 98, in schedule 2, in page 64, line 25, at end insert—
‘(2) “emergency” means a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.’.
Amendment No. 99, page 64, line 26, leave out paragraph 39.
Amendment No. 100, in page 65, line 29, at end insert
‘if the following conditions are satisfied—
(a) there is an emergency;
(b) making the derogating power available is strictly required by the emergency; and
(c) the availability of the derogating power is consistent with the UK’s other international obligations.’.
Amendment No. 101, page 66, line 6, leave out sub-sub-paragraph (b).
Amendment No. 102, page 66, line 8, leave out ‘that the Secretary of State is’ and insert
‘the Secretary of State’s reasons for being’.
Amendment No. 103, page 66, leave out lines 9 to 15 and insert—
‘(a) that there is an emergency;
(b) that making the derogating power available is strictly required by the emergency; and
(c) that the availability of the derogating power is consistent with the UK’s other international obligations.’.
Amendment No. 104, page 69, line 6, leave out ‘30’ and insert ‘seven’.
Amendment No. 105, page 69, line 9, leave out ‘30’ and insert ‘seven’.
New clauses 20 to 22, 24 to 30 and 32, and new schedule 1, introduce amendments to strengthen considerably the safeguards that we want to apply to any future use of the provision in this Bill for a reserve power to extend the period for which terrorist suspects could be held before charge. The Government believe that such a reserve power should be available, for use if necessary, to protect our national security and, most importantly, our people against the threat that we face from terrorism.
That threat is real and serious. First, the threat is unprecedented in scale. Some 65 terrorists have been convicted in our courts since the start of 2007, and there are more than 200 groupings and 200 individuals of concern to agencies in the UK today. Secondly, the threat is more ruthless than any we have faced before. It aims for mass casualties, uses suicide methods, and would use dirty bombs given half a chance.
Nobody underestimates the threat that we face, but if the Government are so determined to clamp down on the threat from terrorism, why does not the Home Secretary, as a first step, scrap the Human Rights Act 1998, which has done so much to stop undesirable people who may pose a serious threat being kicked out of the country? If she is so serious about this, she should scrap that Act.
As I will demonstrate today, I believe that it is possible to find a way both to safeguard our individual civil liberties and rights and to protect the people of this country—and that is what we are setting out to do.
Thirdly, the threat is more complex and international than ever before. Terrorists living and working in our society have learned how to use technology to cover their tracks. They travel a network, sharing experiences and learning from mistakes. Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas. That alone creates huge technological and logistical challenges for investigators.
On the issue of 42 days, can the Home Secretary explain why she said a few weeks ago on Radio 4 that she had no idea how many days would be required?
Our starting point has always been not the maximum number of days for which it should be possible to hold somebody, but whether there was a case for more than 28 days at all, and what safeguards should apply. I have been very clear from the outset that there had to be—
Just a minute. I am responding to the intervention by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). There will be plenty of time for other interventions.
I have been clear from the outset that there had to be an upper limit so that no individual could be detained indefinitely. The figure of 42 has been arrived at by assessing with the police and others the minimal additional period that, in our judgment, would make a significant difference in the sort of circumstances in which an extension would even be considered.
On the issue of the threat, would my right hon. Friend like to comment on the statement made this morning by Lord Stevens about the state of the threat? Will she also confirm that she or her Ministers have discussed the proposals fully with the Director of Public Prosecutions?
The important point that Lord Stevens made this morning is the point that I was about to make about the threat. Given the ferocity of what is planned and the use of suicide methods, the police may well need to step in early to prevent a plot from coming to fruition. It is that combination of factors that means that police may need longer to get to the bottom of who and what is involved and then build a case on the basis of evidence that is admissible in court.
We have discussed this with the DPP and he has given evidence to the Committee chaired by my right hon. Friend the Member for Leicester, East (Keith Vaz) and the Public Bill Committee.
The nature of the threat and the need to intervene early have meant that the police have had to hold a small number of suspects for the full 28 days since the higher limit was introduced in July 2006. It is this that leads our most senior police officers to say, as Lord Stevens and others have, that they can foresee circumstances when it may be necessary—in order fully to investigate and charge—to hold terrorist suspects for more than 28 days.
The Home Secretary is aware that the current system for charging places the responsibility for making that decision firmly in the hands of the Crown Prosecution Service. It is on the CPS that the responsibility falls. If the facts given by the Home Secretary mean that police fears are justified, why have the police been unable to persuade the CPS that there is any necessity for the extension? The CPS has to make those decisions, and will continue to have to make them.
It is the responsibility of this House and the Government to make a judgment and to bring forward laws that will then be implemented. If the hon. and learned Gentleman were ever in government, I would be very surprised if he then wanted to take a different approach.
I have described the risk. We cannot wish that risk away, and we should not try to.
I shall give way in a moment. The risk has been identified, and it is for us as law-makers to take the necessary precautions to respond to and cover the risk.
On the issue of complexity, the Madrid bombings involved 29 suspects, investigations spanning seven countries, 300 witnesses and tons of evidence in electronic and paper form. Why did the Spanish authorities need only five days to bring charges, when the Home Secretary is arguing for 42?
As many people have made clear during the course of the debate, there are fundamentally different systems in different countries with different thresholds for charging. In Spain, 14 people were arrested in January this year. It was only last week that they reached the stage equivalent to our charging, which means that a form of preventive detention was used that lasted 138 days. There are very different systems in different countries.
There are those who say that the advice of the police is not enough. I agree. Their voice is important, but it is not the only one. Striking the right balance between civil liberties and the rights of all our citizens to live free from terrorist attack evokes strong views. It is important to us all. That is why it has been important to me to consult closely.
If the Home Secretary wants to use this power only in grave and exceptional terrorist cases, why is she not prepared to do so under emergency powers? Is it because she does not want the safeguards in the Civil Contingencies Act 2004? That is what lawyers think. It is also what David Pannick thinks, and it is what I think. Is that not the truth?
Although I have great respect for what the hon. Gentleman says and thinks, let us make it quite clear that the Civil Contingencies Act—[Interruption.] No, I am afraid that it is not right. The Civil Contingencies Act would not contain any of the individual safeguards with regard to the review of extended detention by a judge that our proposals include, so it would be more draconian than our proposals.
The Home Secretary might have noticed that I have tabled a new clause relating to habeas corpus. Does she accept that habeas corpus depends on whether a person is being lawfully detained? If a person was being lawfully detained under the provisions of the Bill, habeas corpus would not apply. Does she accept the proposals in principle that lie behind my new clause, which would ensure that habeas corpus was available and that the judge would decide the question of whether a person should be detained?
I agree with the principle argued by the hon. Gentleman. It is the principle behind habeas corpus, which is that the court must determine whether it has the power to detain a person. That is already enshrined in schedule 8 to the Terrorism Act 2000, which is the basis of our proposals in our provisions. A detainee will need to be brought before the court after 48 hours of detention and then at least every seven days after that. He or she therefore cannot be detained beyond 48 hours other than on the authorisation of a judge. The hon. Gentleman makes an important point about the principle of habeas corpus, which is enshrined in the principles of the proposals that we are putting forward.
I am going to make a little progress now. As I said, it has been important for me to consult closely with colleagues from all parties, with the Muslim community and with organisations such as Liberty, and to design proposals to get that balance right.
I want to thank the Home Secretary and my right hon. Friend the Prime Minister for the various meetings we have held to address the concerns about the impact that counter-terrorism legislation has on law-abiding British Muslim communities. What safeguards can my right hon. Friend guarantee to ensure that individuals who are arrested and detained for more than 28 days are fully compensated for the immense damage done to them and to their families and communities?
I am glad that my hon. Friend has been willing to engage in such a constructive way in ensuring that we deliver provisions that safeguard all our people regardless of their background. He identifies the wholly exceptional nature of holding anybody in detention beyond 28 days and for up to 42 days. I know that he, like others in the community, has expressed concern about those who have subsequently been released without being charged, and because of the representations that he has made, I have asked my officials to develop an ex gratia scheme that, because of the exceptional circumstances, would be available to compensate those who had been detained and then released without charge, or who had faced any other executive action. I hope that that offers my hon. Friend some reassurance, both about the exceptional nature of our proposals and about the fact that they are designed to protect all our communities, regardless of their background.
I shall make a bit of progress.
This is a good example of the consultation and the work that we have been willing to undertake to design the proposals so that we get the balance right. My right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing and I have been doing that for the best part of a year. In fact, my right hon. Friend has been doing it for longer. Anybody who compares our initial proposals from last July with what we are proposing now will see how far we have moved. We are not proposing a permanent, automatic or immediate extension to pre-charge detention beyond 28 days. Instead, the Bill contains a reserve power that could be used only in exceptional circumstances, only with the support of the DPP, only with the backing of Parliament in a vote in both Houses, and only with strong judicial safeguards, and for a temporary period before it automatically lapsed.
I am listening to what the Home Secretary is saying, but is this not essentially hollow macho legislation that is not so much about keeping terrorists in detention for 42 days but about keeping the Prime Minister in Downing street for two years? If he falls on this tonight, he will be out of Downing street within 42 days.
If people compare that intervention with the approach that my right hon. Friend the Minister of State and I have taken, they will understand where the charge of being hollow and macho should lie.
We have also made it clear that decisions about the detention of individuals will, as I have explained to the hon. Member for Stone (Mr. Cash), be made by a judge. They will involve a full adversarial hearing with the suspect represented, and each extension will be for a maximum of only seven days.
On the narrow point about the damage that the Home Secretary is likely to do to the constitutional settlement by giving this House and Parliament an effectively quasi-judicial role, which is what she has just outlined, the doctrine of the separation of powers is a delicate balance, which keeps our constitution effective. She is damaging that balance with the proposals that she is making today.
It is wholly appropriate for Parliament to be given the function of approving an order that commences a piece of primary legislation, and wholly appropriate for the courts to assess on a case-by-case basis, as they will do, whether the police and the CPS need more time to collect and examine evidence, so that once that order is commenced, any given individual can be detained for a longer period. That is a completely appropriate use of the parliamentary role, which is separate from the judicial role in overseeing individuals’ detention.
I listened very carefully to the Prime Minister’s answer to my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) at Prime Minister’s questions. The Prime Minister told him that Parliament would debate whether there was a grave and exceptional terrorist threat. I have to say to the Home Secretary that that is not what is said in her amendments. Parliament will be asked to approve an order stating that there is an
“operational need for further extension of”
“maximum period of detention”.
As the request for the operational need will arise from particular cases, how can that approval be given without the House debating and having information about those specific cases? I am afraid that the Prime Minister is misleading the House on the matter. He may be doing so inadvertently, but that is what he has been—
Order. The hon. and learned Gentleman knows what he must do: he must withdraw that remark.
I apologise, Mr. Speaker. I qualified it; the misleading must have been inadvertent.
Order. The hon. and learned Gentleman should withdraw the remark.
I withdraw the remark.
I think that I made clear what the wholly different functions of Parliament and the judiciary were in the process.
Many of us recognise that in the national interest, in extreme circumstances, a conspiracy may take longer to unravel. We are not tempted to support unprincipled opportunism on this issue. [Interruption.] It is no good shouting at me; it is like shouting at the reflection in the mirror. Like my hon. Friend the Member for Glasgow, Central (Mr. Sarwar), I am concerned that if suspects are detained for six weeks, they may have to give up a considerable part of their private lives, and there may be a considerable risk to their jobs and mortgages. Will the Home Secretary confirm that we will give them adequate compensation if they are found to be innocent?
My hon. Friend has raised the point with me before, and I hope that he is reassured by the commitment that I gave my hon. Friend the Member for Glasgow, Central (Mr. Sarwar) about the work now under way to look at taking a wholly exceptional ex gratia approach to compensating those released after 28 days who are subsequently not charged.
In considering the provisions, some have said, “Show me the evidence now that we need 42 days.” I have published evidence of the growing scale and complexity of plots. Frankly, the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate.
I very much understand the point that my right hon. Friend makes about the evidence that she can give for the need for a period of more than 28 days. It is a matter of practical fact that in one case it took my local police force 27 days, 20 hours and 40 minutes to charge someone. The chief constable is both honest and experienced in terrorism. I asked him whether that period was needed. He said that it was, and what is more, he believes that the time is close when he will need more than 28 days.
My hon. Friend makes a very important point, identifying the challenge facing those whom we task with investigating some of the most serious offences in this country. It is to respond to that that we have brought forward our proposals.
The first of the vaunted safeguards is that the power would be used when there was a grave and exceptional terrorist threat. That is defined as circumstances in which there is
“loss of human life…illness or injury…homelessness…damage to property…disruption of a supply of money, food, water, energy…communication… transport, or…health.”
Can the Home Secretary give us an example of something that is not a grave and exceptional terrorist threat?
I am rather disappointed that my hon. and learned Friend has not read the new clause in sufficient detail. The last part of the list that he read out is a qualification of the second part of the first definition. I would have thought that with his legal background, he would have been more careful in reading the new clause.
Speaking as someone who comes from a part of the United Kingdom that has suffered very badly from terrorism over the past 30 years, I think that the members of our party take very seriously any threat to national security, and any actions that may give publicity to terrorists. On the power that the Home Secretary is seeking today, if the matter is to be debated in the House every time there is a severe threat, will it not give terrorists an opportunity to get the oxygen of publicity that she so much wants to deny them?
We would bring forward the order that requires a parliamentary debate at times—I believe that they would be wholly exceptional times—when there was a grave and exceptional terrorist threat and it had become clear to the Director of Public Prosecutions and the chief constable that the barrier of 28 days was likely to be met before they finished an investigation. As I have said on many occasions, I believe that that would be wholly exceptional, but when we need the power, it will be extremely important that it is in place.
I will make a little progress, and then I will give way again.
We have listened to those who say that until now there has been no need to extend the period beyond 28 days. That is why the legislation ensures that there can be no extension of pre-charge detention until and unless the evidence supports it—until there is a “grave exceptional terrorist threat” that might require a longer investigation time.
Will the Home Secretary give way?
No. Some have said that we should use the Civil Contingencies Act if we want to detain suspects beyond the current limit. We do not believe that the Civil Contingencies Act, which is designed to deal with events such as floods and pandemics, could legally be used for the purposes of criminal detention, and we certainly need to ask whether the use of that legislation, which would effectively mean the declaration of an emergency, would give a propaganda victory to terrorists; that is the point that the hon. Member for East Antrim (Sammy Wilson) made. Incidentally, the use of that Act would also mean that people could be held in detention not for up to 42 days, but potentially for up to 58 days. That is the basis of my contention that that would be a more draconian approach to dealing with the challenge than the approach that the Government have taken.
I am grateful to the Home Secretary for giving way; she has been very generous. Will she bear in mind the fact that when the Director of Public Prosecutions gave evidence to the Home Affairs Committee he made the point that if someone was held for 24 or 25 days without at least being charged on reasonable suspicion, it would make the prosecution unsuccessful in many instances? Is that not a factor in deciding whether to go beyond the 28 days? I must say that I am by no means persuaded that there is any justification for what is being proposed.
Of course, because the prosecutors and the police would have such a significant role in determining whether a further investigation would enable someone to be brought to charge, it is their responsibility to provide the Home Secretary with a report, so that consideration can be given to whether to bring in the order.
To return to the Civil Contingencies Act, although we do not think that it is the right vehicle on its own, there are aspects of the approach taken in the Act that we have been able to adapt in the Bill’s proposals, such as the need to define the nature of the exceptional circumstances in which the reserve power could be used, and the need to gain parliamentary approval for the use of the powers.
I am grateful to my right hon. Friend for giving way. As she knows, this is an issue on which I have had some concerns. Will she spell out some more examples of how the proposal might work in practice, accepting that there will never be an absolute case that can be advanced? Will she particularly touch on the extent to which the involvement of the United Kingdom in events that take place outside the United Kingdom is germane to the argument that she is putting to the House?
I am coming to the detail about the amendments, to show that we have been willing to go further to provide the reassurance that colleagues in all parts of the House have sought. In response to my hon. Friend, first, we are clearer in the Bill about the trigger for any use of the power. The power could be brought into force only where it is needed for investigating serious terrorist offences arising out of a grave and exceptional terrorist threat. People have asked what that means. We know that people have plotted to devastate our transport system, to blow up Bluewater shopping centre and, as I said, to use a dirty bomb. We have also seen plots to ensure multiple atrocities. We have seen plots on an international scale that would have brought death on a considerable scale to British people.
Will the Home Secretary give way?
The hon. and learned Gentleman is on the Front Bench. He has had plenty of time in the Chamber and in Committee to take up these points.
In response to my hon. Friend the Member for Blackpool, South (Mr. Marsden), that is the order of threat that the provision is aimed to deal with—an event or situation involving terrorism that causes or threatens serious loss of human life, serious damage to human welfare or serious damage to the security of the UK. That set of circumstances is a higher test than originally proposed and is similar to the test in the Civil Contingencies Act.
If the Home Secretary is so confident that that is a higher test, why have she and the Prime Minister explicitly avoided allowing judicial review of her decision?
It will be possible judicially to review the Home Secretary’s decision on the basis of reasonableness. I have always been clear about that.
A further safeguard is that the use of the power would be limited to investigations involving only the most serious offences—for example, murder, conspiracy to cause explosions, acts preparatory—that is, those carrying a life penalty.
In the Prime Minister’s letter to Back Benchers, he said that the Government do not see judicial review as the way forward. What did he mean by that?
The right hon. Gentleman knows that he has made the case to me for the widening of the scope of judicial review. In our view there is an important role for Parliament to play in the process. There is an important role for the judiciary to play in determining the reasonableness of the Home Secretary’s decision, and the individual decisions about an extension of pre-charge detention in any given case. I believe that that is an appropriate use of judicial oversight and review and parliamentary decision making.
No, I will not.
Order. The Home Secretary is here to put her case to the House. All the interruptions are causing other hon. Members not to be able to hear the case that is being put. That is unfair in many ways. I ask hon. Members to try to use some measure when they ask to intervene. Some of us know that that is a way of allowing hon. Members to put their own case on the record. They should be careful about that.
Secondly, our amendments will strengthen the role of Parliament, bringing forward the vote on the Home Secretary’s making of the order from 30 days to seven days. On making the order, the Chairs of the Intelligence and Security Committee, the Home Affairs Committee and the Joint Committee on Human Rights will be informed of the decision, and we will seek and publish legal advice for Parliament.
I am grateful to the Home Secretary. She is being extremely generous. Perhaps it would help the House if she explained whether she envisages that the circumstances of intelligence revealing that there was a specific and serious threat—for instance, against the people working in the City of London or in other areas of London—would operate the trigger that she referred to. About 8,000 of my constituents work on the front line of the world terrorist threat in London. Anything she can do to improve protection of them will be much welcomed by the country.
The hon. Gentleman well understands the nature of the threat that we face. It aims to cause mass casualties among the sort of people that he describes. That is the type of serious terrorist threat that we are seeking to tackle. He is right to remind us whom we are trying to protect.
Thirdly, our amendments reinforce the temporary nature of the power, reducing the length of time that it can be in force from 60 days to 30 days, with no renewal at the end of that period. In addition to that, there are other safeguards. Individual detention beyond 28 days would, as under present proposals, be considered by a judge. Any application for an extension beyond 28 days would require the approval of the Director of Public Prosecutions. The judge may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that further detention is necessary for the investigation of a serious terrorist offence.
The independent reviewer will report within six months of the reserve power ceasing to be available. A parliamentary debate will take place on that report, which will cover whether, looking back, individual suspects were held in accordance with requirements governing detention, whether proper procedures were followed for applications for detention beyond 28 days, and whether it was reasonable in all the circumstances for the Home Secretary to make the order.
I thank my right hon. Friend for giving way, for the way in which she has conducted the debate through both the Home Affairs Committee and the Public Bill Committee, and particularly for the safeguards that have been put in place. Does she agree that it would have been preferable, when we had the debate on 90 days, to have gone through a similar process and for the safeguards to have been written in at that time? Would that not have saved the Government some embarrassment? Is there now no excuse for colleagues who voted for 90 days to have serious reservations about what is proposed today?
I believe that the threat now is greater and the safeguards are more real. I therefore hope that we can achieve the support of the House for our proposals.
The Home Secretary will have heard the Prime Minister saying no fewer than four times during Prime Minister’s questions that he was relying on advice from the security services. She will also be aware that the website of the security services said that the security services were neutral. Something has clearly changed since that statement was made. Will she publish the security services’ advice on the matter?
As I spelled out when I was speaking about the nature of the threat, one of the arguments for what we are proposing is the growing scale of the threat that we face. It was the director general of the Security Service at the end of last year who identified the concerns about 2,000 individuals, 200 networks and 30 plots in this country. It is his description of the scale of the threat that has led us to consider what sort of response we need to make.
Clearly, the Government have rowed back from their original 90 days, but there has always been the qualification that it is possible to restrict the liberties protected by the convention—the words are there—when something amounts to a public emergency threatening the life of the nation, so why does not the Home Secretary rely on that, like all other countries do? Why have we seen every few years under this Government an increase in the powers of the state over the citizen, when no other comparable country equally threatened has thought it necessary to move in the same direction?
I am not completely clear what the hon. Gentleman is arguing, but I have spelled out the nature of the threat that we face, the requirement on us to take that threat seriously and the proportionate way in which we are addressing that. That is the basis of what we originally proposed in the Bill and it is strengthened by the amendments that I am putting forward today.
My right hon. Friend is absolutely right to argue that the Civil Contingencies Act and the invocation of a state of emergency would be wholly the wrong approach and would give the oxygen of publicity to terrorists, but I, and I am sure others, remain deeply unconvinced that the proposed definition would not effectively catch almost all forms of terrorist activity, and would therefore not constitute an exceptional circumstance that generates the need for exceptional powers.
That is why the definition that we have set down requires serious loss of life or serious impact on human welfare, and it is that arm of the definition that is qualified by the list beneath it or serious threat to national security. I am willing to discuss this at further length with my hon. Friend and others, and I have no doubt that it will be scrutinised in detail when the Bill arrives in the House of Lords, but our intention in proposing the definition was precisely to limit the circumstances in which it will be possible to use the power. I hope that my hon. Friend accepts that that was the intention. It was also the reason why, in a spirit of developing consensus, we looked extremely closely at the wording in the Civil Contingencies Act, and built our definition on that. It is stronger than what we originally proposed, and I believe that it will tightly define the circumstances in which the power can be used. Of course that will quite rightly be subject to further scrutiny, not only today but when the Bill reaches the House of Lords.
Earlier today the Prime Minister told us that, under the Bill, the Home Secretary would make a statement in the House showing that there was a grave exceptional threat. In fact, the Home Secretary will have to make a statement saying only that there is a grave exceptional threat. Those words are not a requirement for the triggering of the power; they are simply a requirement of parliamentary liturgy that we will have to go through.
It is the role of the Home Secretary to make the order, but it is an important parliamentary safeguard that the making of the order has to be approved by Parliament. As I have said previously, Parliament’s role in approving the order is not a negligible or an insignificant safeguard. I am constantly surprised at parliamentary colleagues who believe that their role is so insignificant in the thinking of a Home Secretary. Trust me—Home Secretaries think very carefully about what they have to explain to Parliament and what they need to have approved by Parliament.
I want to take the Home Secretary back to the exchange that we had during Home Office questions on Monday, when I challenged her on her admission in her conversation with Andrew Marr during his programme on Sunday that the security services were not pressing for this extension. She said that I was “plain wrong”. I looked at the transcript, and that is exactly what she said. As my hon. Friend the Member for Croydon, South (Richard Ottaway) made clear, the director general of the Security Service made it clear that it is neutral on this matter; it is not pressing for it. So for the Prime Minister and for her to say that they are following the advice of the security services in bringing this forward is just plain wrong.
The hon. Gentleman is just plain wrong again. I have been very clear in my response as to what the director general of the Security Service has said on the record about the scale of the threat that we face. It is the scale of the threat that we face that is at the heart of the proposals that we are bringing forward and the way in which we seek to address them. If the hon. Gentleman wants to make debating points about the scale of the threat, that is up to him, but I believe that this is a serious threat that we need to address.
Terrorism is an assault on our civil liberties, on our democracy and on our values. Our response to terrorism must continue to be based on those values and liberties, ardently pursued through our democratic framework, primarily through our criminal justice system. But we cannot allow ourselves to be lulled into a false sense of security that might lead us to put at risk the liberty of all in Britain to live lives free from the threat of terrorist outrage and atrocity. In opposing terrorism, we must not lose sight of our values. For me, getting the balance right between individual freedom and collective security must always be at the heart of what we do. Our response must reinforce our shared values, not weaken them, because it is on those values that our security ultimately depends.
We have approached the Bill to build a consensus on how we can protect those values at the same time as protecting our national security. We have talked, we have listened, we have moved. Other than in circumstances involving a grave exceptional threat, the pre-charge detention limit for terrorist suspects will remain exactly as it is now. Indeed, that limit continues to be subject to annual renewal by Parliament.
I hope that we never need to extend the period, but the question that hon. Members need to ask themselves is whether they are confident that we will never need 29, 30 or 31 days to bring a terrorist suspect to charge, to put them in front of a court. The proposals that we will vote on today are better, fairer and more proportionate as a result of the process of parliamentary scrutiny and debate that they have undergone, but the time has come for hon. Members to decide. It is the job of Government, police and prosecutors to protect the public from terrorist attack, and thereby to defend everybody’s right to life, but today it is the job of Parliament to give them the tools to do that. We need the support of the House for the proposals in the Bill. We need the support of the House to do the right thing for this country’s security, and I commend the amendments to the House.
“It is the job of Parliament to give them the tools”? It is the job of Parliament to defend the liberties that we have had for centuries.
I rise to oppose the Government’s new clauses and to support amendments Nos. 4 and 5 to remove 42 days from the Bill. Today, there are essentially two arguments to deal with. The first is: have the Government made their case for 42 days? If not, this change should be rejected out of hand, because in this country we do not give away freedom without good cause. Secondly, if they have made their case, are the powers proportionate and are the checks and balances to prevent improper use of the powers adequate?
The issue of how long we incarcerate those on whom we have insufficient evidence to charge with any crime has become one of the defining debates of the last decade in this country. Notably, this week marks the anniversary of the signing of Magna Carta. For almost 800 years, we have built on the right of habeas corpus, founded in that ancient document: the fundamental freedom from arbitrary detention by the state. The liberty of the person is in our blood, part of our history, part of our way of life; Conservatives, Labour, Liberal Democrats, Democratic Unionists—all parties. Liberty is the common strand that binds us together, and we have shed blood to protect it, both abroad and at home.
Today the Government ask us to sacrifice some of that liberty. The Home Secretary offers a Faustian bargain: to trade a fundamental liberty for a little extra security. Yet, as the debate has gone on, the case for 42 days has first crumbled and then collapsed. So, after months of debate, what are the basic facts? The right hon. Lady said in her speech that the Home Secretary properly takes advice from the police but that that is not enough and we need to examine the evidence that they present. I think that that is what she said, so let us do so: let us look at the evidence that was presented by the Home Secretary’s own witnesses.
Let us start with Sir Ian Blair, the Metropolitan Police Commissioner. In his evidence to Parliament, the commissioner said explicitly:
“We have never put forward a case that there is evidence of a need for an extension”.––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 11, Q3.]
He based his support for 42 days on “a pragmatic inference” based on trends in a number of plots and on those plots’ complexity. In support of that, he and his counter-terrorism chief initially claimed that 15 terrorist plots had been thwarted since the 7/7 bombings. It was on that basis that he presented his evidence to the Bill Committee. But then it transpired that there had been a mistake. The corrected evidence revealed the true picture, which is that between 2003 and 2005, there were nine plots, three a year, and there have been four since the beginning of 2006, two a year. So, the number of plots, far from increasing, has actually decreased over the past three years. That is a good thing, but it is not an argument for extra powers, and although we should not underestimate the threat, we should not overstate it either.
The second witness who the Home Secretary brought before us was Mr. Peter Clarke. He argued exactly what was argued in the debate about 90 days, and he told us how complex and technical anti-terror cases were becoming. His example of a technically challenging case was that of Dhiren Barot. There is no doubt that it was a technically challenging case, but it was a case in which charges were successfully brought within 14 days—not 28 days, but 14—which is hardly evidence that we need three times as long. Mr. Clarke offered the observation that in the Barot case, police officers had occasion to sleep at the office. Frankly, I should prefer that police officers sleep at the office for two weeks than risk putting innocent people in a cell for six weeks.
Is the shadow Home Secretary saying that he rules out the possibility that at some point there will be cases that are sufficiently complex to take more than 28 days to unravel? If he does not rule that out, what would he as Home Secretary do about them?
The hon. Gentleman has heard me any number of times say that we will listen to the evidence. As I develop my case, he will hear that finding the evidence in the first place was difficult. Indeed, it was made more difficult by the Government, and that evidence does not support what the hon. Gentleman is saying.
Will the right hon. Gentleman give way?
In a moment. I want to get to the end of this part of my argument, because it is very important to this particular point.
The third witness was Ken Jones, the president of the Association of Chief Police Officers, who said that the police, operating under the current 28-day limit were “up against the buffers”. That is the claim being made: not that we might be, but that we are up against the buffers. He based his judgment on the most complex counter-terrorism investigation in our history, Operation Overt, in respect of the alleged plot to blow 10 airliners out of the sky at Heathrow in August 2006. In that case, five people were held for 27 or 28 days. One can see why that superficial analysis leads us to the idea that we are up against the buffers, but it is only a superficial analysis. I asked Mr. Jones yesterday whether he had examined the detailed evidence in Operation Overt. He told me that he had not had the opportunity. I did look at the evidence. Three of the five suspects were held for the maximum period. More than half were innocent.
No, they were found not guilty.
Innocent. That demonstrates—[Interruption.] We can reiterate the argument that we had last time. The last time I used “innocent”, Labour Members exploded in uproar at the idea that those people might be innocent, so I told Labour Members that I had asked the police at the time whether they were concerned sufficiently to put those three people under control orders. “No,” they said. I asked whether they were sufficiently concerned to put them under overt or covert surveillance? “No,” they said. I asked whether they were carrying on any further investigations into them? “No,” they said. I give way to the ex-Home Secretary.
The right hon. Gentleman’s latter point is very important, because in some of the cases that he cites, a lesser charge could have been offered. From all parts of the House, a case has been put that in respect of post-charge questioning, there is an opportunity for the police to continue doing what today’s proposal of a 14-day extension allows in the most serious cases and for the most serious charge. Is it not either muddled thinking or, at its very best, a paradox, that those who are against the extension—with all the safeguards—to 42 days are happy for people to be charged with a lesser offence and then to be held in prison while questioning continues?
The point that the right hon. Gentleman conflates—he has heard me argue this—is that the inability to question post-charge forces police and, more importantly, the Crown Prosecution Service, to defer charging because they are unable to continue gathering information about the case from the individual once the charge has been made. That is not the same point as the point that he makes. It is a very important point, but it is not the one that he made.
Will the right hon. Gentleman give way?
If the hon. Gentleman will forgive me, I want to go through this point. It is quite important. I always give Members an opportunity to intervene later in my speeches. [Interruption.] I shall, however, give way to the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), if he wants.
No, obviously not.
Three of the five suspects—more than half—were held for the maximum period and they were innocent. That demonstrates not a virtue but a serious danger with further extension, namely that the longer one holds people without charge, the more likely they are to turn out to be innocent. Incidentally, of the six cases that John Stevens cited as taking us to the brink—they are, I think, the words that he used—half were proved innocent. There is a danger intrinsic in the extension when it involves cases in which there is no apparent evidence or not sufficient evidence in that there is more of a risk of detaining people who are innocent than of detaining those who are guilty.
I shall give way to my hon. Friend the Member for Canterbury (Mr. Brazier)
Does my right hon. Friend agree that there is a certain irony in the right hon. Lady the Home Secretary citing the Madrid bombing as one of the most extreme examples of complexity, when her Government have welcomed two former Guantanamo bay suspects, who are not British citizens, back to Britain despite the fact that the Spanish police are desperate to get hold of them?
My hon. Friend makes his point, but it would take me rather offline to follow him down that route.
Let me return to the point about innocence, because Ministers now intimate—if they do not say so outright—that they will pay compensation in cases where innocent people are detained for longer than 28 days. Could we ever have a more explicit admission of the inevitable failure of the law or of the foreseeable injustices that it will bring? It is for this House to search its conscience—to determine whether putting in place a system of six weeks’ detention, when on current experience half or more cases are likely to be proved innocent, will serve the vital interests either of our national security or, very importantly, of British justice.
Will my right hon. Friend give way?
No. I have a small but important point to get through, and then I shall take some interventions.
What about the other two cases in which people were held for 28 days? They are implicitly held up as the illustration that, due to the complexity of investigations, 28 days is proving inadequate. Is that really what those cases show? The key question is, when was the evidence available on which the charges were based? Ministers and officials have been asked a number of times—the Home Secretary has been asked a number of times—to answer that question, and they have implied that the evidence was obtained very late in the 28-day period.
During our numerous meetings, when we were trying to reach a consensus, I asked the Home Secretary three times to show me the facts that demonstrated that evidence gathering had delayed the decision to charge in Operation Overt. But she failed to explain—even in the most general terms, or on a Privy Council basis, which I would have been perfectly happy to accept—what the evidence was or when it was acquired. I was forced to establish the facts myself and then to check them with the investigating team at Scotland Yard. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, checked them with the Crown Prosecution Service. The facts are as follows: in neither of the two cases was the evidential basis of the charge encrypted data, evidence requiring complex forensic analysis or intelligence from overseas. In one case, it comprised telephone records, handwritten and printed literature, an unencrypted CD and a receipt, all of which were available within four days of arrest. The second case was based on witness statements, mobile phone text messages and a single unencrypted computer file, all of which were available within 12 days of arrest.
That does not mean that the police should be criticised—far from it. They should be commended for their handling of that operation, as I have said on several occasions. Nor does it mean that the CPS acted improperly—it rightly looked to gather as much evidence as possible under the rules that it is given by this House within the time frame that Parliament sets it. However, it does show that in the most complex terrorism investigation in our history, all the evidence on the only two suspects charged after 21 days was in the possession of the police within four and 12 days respectively. I suspect that that is why the Director of Public Prosecutions does not believe that the extension is at all necessary or foresee circumstances in which it will be necessary in future.
The right hon. Gentleman is basing his whole argument on his assertion that there is no evidence that proves that these powers are necessary. Surely the only evidence that there could possibly be would be a catastrophic failure of the criminal justice system that meant that the police were unable to charge somebody before the end of the 28 days and that person then going on to commit a major atrocity. That is precisely what we are all trying to avoid. [Interruption.]
Hon. Members should not heckle the hon. Gentleman—he is well intentioned in this matter. I would say two things to him. First, he is making a case for indefinite detention. Secondly, this is why we asked the Government to consider using the Civil Contingencies Act 2004. The Home Secretary says that it is not capable of being used, although David Pannick, the Government’s counsel of choice—the man who wrote the textbook on these subjects—says that it is. I offered the Home Secretary sufficient changes to make it usable in such circumstances, because it contains some protections that are worth having but are not available in the Bill. That was the “CCA plus” offer that people have read about in the papers. We did that on the basis of the argument made by the Home Secretary’s predecessor.
Will my right hon. Friend give way?
If my hon. Friend will forgive me, I have not finished my answer.
I will not give way for the moment—forgive me.
The Home Secretary reminds us time and again that she is, in her words, “responsible” for national security. She is right to stress that. A Home Secretary must take advice from all members of the law enforcement agencies, but she must check and ask questions; she must establish the facts, as we have been doing this afternoon. That is her responsibility. As the evidence in favour of extending pre-charge detention has evaporated under scrutiny, it has been replaced with growing evidence that the pre-charge detention proposals risk making us less, not more safe. The former chief inspector of constabulary has described the proposal on 42 days as a “propaganda coup” for al-Qaeda. They are a gift to “propagandists” that will drive the brainwashed to “acts of martyrdom”, according to one former Metropolitan police commissioner. They are a threat to local community intelligence, according to the Government’s own impact assessment on the Bill. The proposal is wrong in principle and dangerous in practice.
The right hon. Gentleman has built his case on the instance of the two cases where, he says, the evidence was available on the 12th day, at the latest. Why, then, does he believe that the Crown Prosecution Service kept those individuals in detention through to the 27th or 28th day? Did it do that recklessly, or was there a reasonable belief that further evidence could be uncovered that would be material to a prosecution?
The hon. Gentleman raises a perfectly reasonable point. I am not surprised that he does so, because the Minister for Security, Counter-Terrorism, Crime and Policing has attempted on several occasions to misrepresent this point of view. I have said that the CPS did not act recklessly. There are issues that police forces and prosecutors have to decide on in every case. If they have 20 or more suspects to deal with, a prioritisation process inevitably takes place, as we saw in the Overt case. All those charged with the most serious charge of conspiracy to murder were charged before 21 days, and the massive majority of them were charged before 14 days. It is entirely understandable that the prosecutors and the police focus on that area first. That is why I am concerned—it is not an accusation but a concern—that one of the effects of this will be to leave until the end of the process the people who are innocent, or against whom there may be a suspicion although they are innocent. There is a serious danger that extending it any further will mean more innocent people being put in a cell for six weeks.
Does my right hon. Friend agree that the problem of extending the 28-day period is that it will have the opposite effect to that which the hon. Member for Brent, North (Barry Gardiner) suggests, because it will make it easier for people to say, “We’ve got plenty of time, so we need not speed up this process to the maximum”? Is not that something that any innocent person caught up in this must worry about?
I understand my right hon. Friend’s point, although I do not agree with it, in truth. However, there is a subtle related point. The CPS will seek to obtain a so-called full code charge—one with a 51 per cent. plus chance of conviction—because that is its guidance. If it is unable to obtain it, it may well want to use all the time available to try to do so instead of using the lower so-called threshold charge. The two people I mentioned were charged under the threshold charge arrangements. It is entirely possible—I do not know; it is pure surmise—that there was an attempt to obtain a full code charge. That is entirely legitimate and entirely the proper way for the CPS to act. The situation is not its fault, but our fault, because it arises directly out of the rules system that we created for it.
My right hon. Friend referred to people being released right up against the buffers, as it were. The Government are saying that the nightmare scenario is that someone would be released after 28 days and then go on to commit some heinous offence. They are also saying that the numbers of people involved in the exercise of 42 days’ detention would be very small and in circumstances of grave threat. Surely it is hard to imagine any circumstances where if someone had to be released after 28 days, they would not be under the most intense surveillance thereafter. It is hard to see how even if they were released under those circumstances, they could then precipitate an atrocity on the scale that the Government anticipate.
My hon. Friend makes a good point. There are two aspects that relate to a small number of cases involving one, two or three people. This is where the Home Secretary differs from me in wanting the scope to act. It is entirely possible that the security agencies and the police could put a small number of people under close surveillance—through a control order, I suppose, if one believes that they work. It could be overt surveillance—there is no reason why a police car could not be put outside a house—or covert surveillance. All those things are possible.
My hon. Friend reminds me of something that I forgot to say earlier. Implicit in some of the arguments made is that the people in question are a threat or danger to the public. The image conjured up is one of some sort of dangerous terrorist who will go out to bomb the nearest station or plane. Indeed, the Home Secretary implied that when she spoke of 28 days’ detention putting the public at risk.
Will the right hon. Gentleman give way?
No, not at this point.
As a result of the procedures that I described before, the people dealt with last under the system tend to be the least dangerous. They were not the ones charged with conspiracy to murder. In fact, in the two cases that we are talking about, they were subsequently released on bail. If they were released on bail, the courts clearly did not think that they posed an ongoing threat to the public. I am afraid that that argument falls in tatters, too.
Can I gently suggest to the right hon. Gentleman that there is a big contradiction at the heart of his position? On the one hand, he cloaks himself in the principles of ancient civil liberties, going back to Magna Carta and so on, but on the other, he goes on to advocate alternative devices to get round those very civil liberties. For example, he advocates the use of the Civil Contingencies Act 2004, post-charge questioning and intercept evidence, and he advocates the charging of someone with a lesser offence and holding them while a potentially greater offence is investigated. That is a contradiction in his position. Is it principled or is it practical?
Earlier, I did not pull up the former Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), when he attributed that view to me. It is not my view, and has never been my view. However, let us take one of the hon. Gentleman’s cases of an incursion on our civil liberties. He says that the use of intercept evidence in court is such an incursion. No, the incursion on our civil liberties occurs when the intercept is made. That is why there are warrant arrangements and controls on intercepts. Not using such evidence in court has nothing to do with civil liberties—it is to do with a judicial decision and an intelligence decision. He should have got his case a bit straighter.
Some weeks ago, the Government were clearly at risk of losing this aspect of the Bill, so they conjured up a series of so-called safeguards. Interestingly, given what was just said to me, they are an attempt to import—almost in the words of the Home Secretary—a diluted version of the Civil Contingencies Act into the Bill. Again, this comes as something of a surprise. The House will recall that Ministers spurned the Civil Contingencies Act model for months and said that it was inappropriate, fundamentally flawed and a draconian response. I begin to wonder who wrote the Act—I thought that it was this Government.
If the Civil Contingencies Act is draconian, it is hard to understand why, in her proposals, the Home Secretary’s deliberately diluted the safeguards that are supposedly based on the Act. The Home Secretary says that the 42-day power of detention could be invoked only if there were a grave, exceptional terrorist threat. The point was made by the hon. Member for Foyle (Mark Durkan) earlier that that is not a condition for invoking an extension beyond 28 days; it is merely a notification requirement. Even then the notification requirement will not refer to that, but to an operational necessity. It is merely a notification requirement, entirely irrelevant to the unfettered discretion that the Home Secretary will retain.
Even if it were relevant, let us consider what could constitute a grave, exceptional terrorist threat. The hon. and learned Member for Medway (Mr. Marshall-Andrews) made this point earlier: the small print of the new clause refers to events that cause or threaten
“(a) serious loss of human life
(b) serious damage to human welfare in the United Kingdom, or
(c) serious damage to the security of the United Kingdom.”
I am being charitable on this. Those definitions are so broad—a massive expansion of the criteria in the Civil Contingencies Act—that virtually any terrorist plot would satisfy them. The Dhiren Barot plot in 2004 to set off a dirty bomb would easily meet those conditions, but the charging was concluded in 14 days. The Operation Crevice fertiliser bomb plot in 2004 would also meet the definition, but all the charges were brought within 14 days. The 21/7 attacks would certainly qualify, but again all the charges were brought within 14 days. The definition of grave, exceptional threat is not only irrelevant to the power of the Home Secretary to order 42 days’ detention, it simply does not matter at all.
The right hon. Gentleman has given a set of examples, but I am not sure that they are germane to his original question. I put this question to him: if he does not think that the definitions in the Bill constitute an adequate definition of a grave and serious threat, what criteria would he present to the House?
The hon. Gentleman raises an important point, and I will try to give him the most serious answer I can—[Interruption.]—the one that the hon. Gentleman’s question deserves, namely, yes. There are two categories of circumstance with regard to a threat to the state that the Government might face. One is a situation that obviously worries the Home Secretary, where perhaps 25 people are arrested and we are left with one, two or three at the end for whom we do not quite have enough evidence. We can deal with that, as was pointed out by my hon. Friend the Member for New Forest, East (Dr. Lewis), by a variety of other mechanisms, including—[Interruption.] Surveillance, I say to the Security Minister—I think that is who he is. It certainly can be dealt with that way, but it can also be dealt with by the threshold test for prosecution—the reasonable suspicion test.
The other circumstance is where there are a vast number of attacks on the state at the same time. The Security Minister—the Minister for Security, Counter-Terrorism, Crime and Policing—referred to it as the three 9/11s test. Under those circumstances, we would be overwhelmed, and we would need a definition of a state of emergency. This is what the Government object to. The matter is important because full judicial review can apply a test as to whether a state of emergency applies, in a way we cannot as individuals discussing the matter in the House of Commons. That is the point of distinction, which is why we offered the Home Secretary very early on in the process a modification to get “CCA plus”, as it was known in the jargon at the time, if she wanted it. We were willing to do that.
At the beginning of the right hon. Gentleman’s contribution, he rightly reminded the House of the history of this country, and the right hon. Member for Witney (Mr. Cameron) mentioned during Prime Minister’s questions the untimely death of Airey Neave. I gently remind the shadow Home Secretary, however, that his Government were responsible for internment without charge and without limit of hundreds, if not thousands, of Irish people. Would he therefore inform the House when and how he changed his principles on civil liberties?
I regret to tell the hon. Gentleman that I was not a Member of the 1972 Government. I never believed in internment; it was a dreadful mistake, and the hon. Gentleman is exactly right about that. One of the problems that we have to address today is whether we learn from that mistake or not. That is what we are trying to do in this exercise.
I want to take the right hon. Gentleman back to the important point that he was making, and one of its consequences. The definitions in the Bill are such that if, like the right hon. Gentleman and myself, one has occasion to read the documents on such matters, one has to conclude that such threats exist now. It follows, therefore, that one trigger is already present, and if the Government seek to activate the procedure, the only thing that the House of Commons can profitably discuss is whether the police have in detention persons whom it is necessary to hold for a period longer than 28 days. In other words, we will be left with the absurdity of the House of Commons behaving like a court.
The right hon. Gentleman is exactly right. He is very experienced in this area and he knows the subject backwards. He has, in fact, been used by the Government on the matter. He points out what is fundamentally flawed in the Bill. This House is not a court. It cannot be and it should not be.
Having served in Northern Ireland, I suggest to my right hon. Friend that internment was not just a mistake, but counter-productive. It went directly against the armed forces because terrorists were able to go into communities and recruit actively, on the basis of internment, much better than they could otherwise. We do not want to make that mistake in this country with communities from whom we seek co-operation.
That is exactly right, and that is why so many of the chief constables and ex-chief constables whom the Home Secretary does not quote feel that the measure is very dangerous.
Geoffrey Dear, Her Majesty’s former inspectorate of constabulary, who said in terms that many of his currently serving colleagues say the same.
The other problem is that there are no additional judicial safeguards over and above what we have now for the individual. The House need not take my word for that; indeed, David Pannick QC, a leading practitioner in the field, the Government’s counsel of choice and the man who literally wrote the textbook, provided a formal legal opinion on the Bill:
“Not only do the Amendments fail to replicate the safeguards in the 2004 Act but they fail, significantly or meaningfully, to provide similar or analogous safeguards.”
That is the point that the hon. Member for Reading, West (Martin Salter) raised earlier.
The truth is that the Government’s so-called concessions are not a serious attempt to sustain consensus by providing proper checks and balances of the Home Secretary’s now draconian powers. They are a vain attempt to save face. The Government have salami-sliced the safeguards, watered down the checks and buried an issue of high principle in a blizzard of fine print.
I am grateful to the right hon. Gentleman for giving way. Why are those Members who are opposed to the principle of 42 days’ detention without charge prepared to accept the Civil Contingencies Act or the existing legal possibility of derogating to the European convention on human rights? It is because both the CCA and the power of derogation could be used only in exceptional circumstances. The fear in the Muslim community in my constituency, and in Muslim communities up and down the country, is that if the 42-day period goes on the statute book in the terms proposed, it would become routine, with all the negative consequences for our security and for community cohesion that we have heard about.
I am glad that I gave way to the hon. Lady.
There is nobody in the House—not one person—who does not feel horror at the loss of life or the pain and mutilation suffered by the victims of terrorism. But two wrongs do not make a right, least of all if what we do is ineffective, unnecessary or even counter-productive, as the hon. Lady has just pointed out.
I have no sympathy whatever for terrorists. However, to put the issue in real terms, not on paper, I want hon. Members to imagine what it feels like for someone who is innocent under the proposed regime. They are taken from their bed in the early hours of the morning, which is what normally happens. They are locked in a cell for six weeks—1,000 hours—and they do not know why: not what they are accused of, not what the suspicions are, not what the evidence is. They do not know what is happening to their job. They do not know what is happening to their reputation. They do not know what is happening to their wife or their neighbours. They do not know what is happening to their children, who sometimes face the harsh cruelty of other children. They do not know that for six weeks—1,000 hours. No money on this earth will compensate for that.
What we have is the worst of all worlds: a symbolic assault on liberty that is unnecessary, a change in the law that is counter-productive and a procedure that is unworkable. We do not defend our liberties by sacrificing our liberties. We must reject the Government’s proposals.
I begin by thanking the right hon. Member for Haltemprice and Howden (David Davis) not just for giving formal evidence to the Select Committee on Home Affairs when we considered the Government’s counter-terrorism proposals, but for the private notes that he sent me and other members of the Committee, which were extremely helpful in allowing us to make our final determination.
The right hon. Gentleman and others are quite right: this is an occasion of high politics, because this is Parliament, and of high drama, because of the outcome of the vote. More importantly, however, this is an occasion of high stakes, because we are dealing with the protection not just of our people, but of the liberties of individuals. Everyone, in all parts of the House, will take the issue and this debate very seriously indeed.
Last year, the Committee held an inquiry into the Government’s counter-terrorism proposals. It began as a short inquiry, looking into the way in which those proposals had developed and at the 28-day period. Shortly afterwards, however, following the Prime Minister’s statement to the House, we extended the inquiry to cover a number of other aspects. We took evidence from Sir Ian Blair, the Metropolitan Police Commissioner, the deputy assistant commissioner, Peter Clarke, the director of human rights for the police, the director of Liberty, Shami Chakrabarti, and the Prison Service.
We sought the opinion of the members of what was called the Forest Gate two— Mr. Mohammed Abdul Kahar and Mr. Abul Koyair, who had been detained by the police and then released. We also took evidence from Rachel North, a writer and one of the survivors of 7/7, as well as from the right hon. Member for Haltemprice and Howden, speaking for the Opposition, and the then Liberal spokesperson, the right hon. Member for Sheffield, Hallam (Mr. Clegg). [Interruption.] We did indeed take evidence from the Home Secretary—I am coming to her, but she has to wait her turn.
Those evidence sessions and the fact that we took evidence from a wide variety of individuals and organisations were important, because we wanted to produce a thorough report and to ensure that we covered all the points that were made to us. We also took evidence from the Home Secretary, who answered 149 questions and appeared before us twice, on one occasion at very short notice, leaving Cabinet before time to get to us. The co-operation that we received from the Government and others was extremely helpful.
We came to the conclusion that there was absolutely no evidence to support a permanent extension of the 28-day period to 42 days. We felt that the nature of permanence was such that no information placed before us could justify such an extension.
Did the right hon. Gentleman take evidence from Mr. Khurshid Ahmed, the chairman of the British Muslim Forum? I ask because Mr. Ahmed was reported yesterday as having views that justified the headline “UK’s top Muslim backs ‘42 days’”, but he is quoted this morning as saying:
“In some cases 28 days have been needed but there has not been a case demonstrated to go beyond.”
Anyone could have given evidence to our Committee. We did not take evidence from that particular gentleman, although he has said that he is in favour of the extension. As the hon. Gentleman will know, we could not take evidence from absolutely everyone involved. I have read a list of those involved, but anyone could have submitted evidence to us.
Despite saying that there was no case for an extension of the permanent limit of 28 days, we made it clear not just in the most recent report, but in a previous report, when the Committee was chaired by my right hon. Friend the now Secretary of State for Innovation, Universities and Skills—some of the members who contributed to the 2006 report are still serving on the Committee—that the current limit of 28 days might prove inadequate in the future. Both the Home Secretary and, more particularly, the Metropolitan Police Commissioner told us that they foresaw circumstances in which an extension would be necessary. The right hon. Member for Haltemprice and Howden and the former spokesman and current leader of the Liberal Democrats both saw that as a possibility in certain circumstances. We noted that Lord Goldsmith, the former Attorney-General, who was part of the Government when they put forward their proposal for 90 days, also envisaged the possibility of an extension in the future.
We considered at some length Liberty’s proposals that part 2 of the Civil Contingencies Act 2004 could be used in those exceptional circumstances where we both felt that it would be necessary to go beyond 28 days. We concluded, however, that the Act as drafted was not intended to deal with a situation of that kind. I pay tribute to Shami Chakrabarti and Liberty for the way in which they have engaged not just with the Select Committee, but with hon. Members and the Government. It is common knowledge that Liberty met the Home Secretary, the Prime Minister and others to discuss the legislation. It is right to engage with organisations such as Liberty, which has a wealth of knowledge and experience that can be put to great use. We felt that the Civil Contingencies Act 2004 was not the right vehicle, however, because we did not believe that the best way to deal with a situation of this kind was to have a state of emergency. Indeed, as the House knows, if the 2004 Act is adopted, it will take the period well beyond what is envisaged in the Government’s proposals.
We urged the Home Secretary to begin urgent discussions with other parties to try to build consensus. I know that she and others have been criticised for engaging with Members of Parliament. Some very cynical points have been made—not so far in today’s debate, if I may say so, but outside the House—about why the Prime Minister, the Home Secretary and the Minister for Security, Counter-Terrorism, Crime and Policing should be discussing matters with Members of Parliament. Of course they should. That is the nature of government. How dreadful it would be if the Government decided on a particular course of action and then never consulted anybody else. I hope that Home Secretary will not mind my having a slight dig at her—I am, after all, supporting her tonight: if only the Government had done the same thing over police pay, there would have been a different scenario. That aside, this engagement is extraordinarily important and has helped to bring a better proposal before the House; it has certainly moved a long way since the original proposals were made in July last year.
I am grateful to the right hon. Gentleman, my neighbour in Leicestershire, for giving way. I am listening to what he says, I understand that he is supporting the Bill and I think that engagement can, indeed, lead people to change their minds. However, I also understand that he and his Committee were originally against any extension to 42 days, so will he take the opportunity to crush the churlish and ridiculous rumour that at some stage in his discussions with the Home Secretary and the Government, the issue of knighthoods or anything like that was mentioned?
If a knighthood were on offer, it would sit better on the shoulders of the hon. Gentleman, representing as he does a county seat in Leicestershire. [Interruption.] No, it was certainly not offered—but I do not know; there is still time.
To be serious again, as I am sure the hon. Gentleman was seeking to be in making that ridiculous comment, our conclusion was endorsed by 11 votes to one in a cross-party inquiry that included four Conservative Members—the hon. Members for Newark (Patrick Mercer), for Monmouth (David T.C. Davies), for Hertsmere (Mr. Clappison) and for South-West Devon (Mr. Streeter)—and a Liberal Democrat, the hon. Member for Taunton (Mr. Browne). Our conclusion was that there may be in future the possibility of an extension, and we set out very clearly the grave and exceptional circumstances that might exist.
The right hon. Gentleman does an excellent job of chairing the Committee and of encouraging consensus there, which is very important for Select Committees. Does he agree, however, that great concern was expressed by some members of the Committee about 42 days and that, in the end, the report was almost unanimously signed off because we wanted to make it clear that if there were to be an extension beyond 42 days, safeguards had to be in place. That did not necessarily imply full support for an extension beyond that period.
The hon. Gentleman is absolutely right; of course there was controversy about this issue in the Committee, as there is in the House more widely. The fact remains that by 11 votes to one, the Committee decided that there was a possibility of exceptional circumstances arising in the future and we set out carefully the wording, referring to “grave” and “exceptional” circumstances in which an extension might be sought. The only member of the Committee to vote against was my hon. Friend the Member for Walsall, North (Mr. Winnick), for whom I have the highest regard. He has been absolutely consistent on this matter from the time that he put forward the 28-day rule. I have huge respect for him and I recall his saying to the Committee that he felt that this was opening a window that we would, in his words, regret. He feared that the Government would use the provision in future to claim that exceptional circumstances demanded a further extension.
I shall give way in a moment. The fact is that the Committee decided in a near unanimous report that, in future, such circumstances might arise, just as the Civil Contingencies Act 2004 accepts that an emergency situation could arise in future.
Does my right hon. Friend accept that my hon. Friend the Member for Walsall, North (Mr. Winnick) was absolutely right to express his concerns about this matter? It has come to pass in a very few weeks that the Government want 42 days, and I suspect that in a couple of years’ time, another Home Secretary will want even more. That is the nature of proposals that endlessly give politicians more powers over the process of detention.
I have known my hon. Friend for many years. He was the first Member to support me when I was selected to stand in Leicester, East, so I have a high regard for him and for the way in which he defends the civil liberties of his constituents, but he is wrong. That is not what is being proposed today, and I am glad to be able to clarify that for him. We have made it very clear that this is not a permanent extension and I would not vote for a permanent extension beyond 28 days—[Interruption.] No, I would not. This is a specific extension on an emergency basis. The Select Committee said in 2006, before I was even a member of it, that there would be circumstances in the future in which the period should be extended. In December, the Committee, which I now chair, decided by 11 votes to one that there would be grave and exceptional circumstances, and the Government have merely adopted our language.
I give way to the hon. and learned Member for Beaconsfield (Mr. Grieve), who has just taken silk.
I am most grateful to the right hon. Gentleman. He has looked carefully at the Government’s proposals and I agree with him that the phrase “grave exceptional terrorist threat” might, given its ordinary English meaning, be taken to connote the sort of emergency that is akin to the Civil Contingencies Act 2004. However, does he agree that if we look at new clause 20, we find that the definition of a “grave exceptional terrorist threat” is extremely wide—much wider than that of a state of emergency? Does he also agree that the bizarre aspect of the Government’s proposals is that the basis will not be a grave exceptional terrorist threat, which Parliament will be asked to decide on in any case, as we will be asked to vote on an order that is simply a report on an operational need for a further extension of the maximum period of detention? Will the right hon. Gentleman please explain what the Home Secretary seems to have been incapable of explaining—how the House will be able to carry out its scrutiny processes in practice and how the Civil Contingencies Act in any way approximates to what the Government are actually doing?
I am satisfied that the safeguards that the Government have put in place will deal with all the issues that the hon. and learned Gentleman has mentioned. I am satisfied that the proposed parliamentary scrutiny is sufficient. I am pleased that the Home Secretary has lowered the period from 30 days to seven. Of course, if we could all have our lives again, it would have been much better if the Civil Contingencies Act had been amended so that these proposals were not brought forward, but we are not there at the moment, and I am satisfied that Government’s changes will deal with that situation—[Interruption.]
I am satisfied about that, and I am quite clear that the parliamentary, judicial and administrative scrutiny that the Home Secretary and the Government propose to give to Parliament and the judges is sufficient to deal with this issue.
I am grateful to my right hon. Friend for giving way. I certainly will not say anything unkind. I would not do so in any circumstances, especially after his kind words about me.
My right hon. Friend sent out an e-mail to colleagues urging—together with a number of my hon. Friends—support for the Government. It says:
“We are adamant that the legislation”,
which is now being debated,
“will affect only those who would use terrorism against our people”.
How do we know that? Is there not a danger that we will be declaring people guilty who may not be guilty and who may be released? Those are very dangerous words. I hope he will reflect on that.
I cannot believe that any e-mail that I could send out could be regarded as dangerous. I and many colleagues, some of whom are here today, were concerned to ensure that people understood, because if my hon. Friend considers the signatories to that letter, he will see that many of them, including me, represent large numbers of members—
And voted for the 90 days, of course.
And voted for the 90 days. But those people represent members of the ethnic minority communities, which will be affected by the legislation. That is why—
So will everyone.
Yes, everyone will be affected, but the figures suggest that proportionately more of those who have been detained are members of the ethnic minority communities. That is why it was extremely important that we, representing those constituents, were able to say that.
I am grateful to my right hon. Friend for giving way. On the letter that he and other of my hon. Friends signed, the less said the better. He knows well and good what Muslim communities in this country think about the Bill, but does he not understand that it is not sufficient merely to assert that he is satisfied with the process of parliamentary scrutiny? Will he explain to us how Parliament can exercise scrutiny without having facts in front of it?
I know that my hon. Friend is upset because I did not ask her to sign the letter, but I knew that she would not sign it, so there was no point in putting the text before her. She will know very clearly from the text of that letter what it says and why it was sent out—
How can we exercise scrutiny?
I say to my hon. Friend—
How can we exercise scrutiny?
I say to my hon. Friend that I am satisfied that we will be able to do so. If I was not satisfied with what the Home Secretary has said and if I believed—
You are easily satisfied.
No, I am not easily satisfied.
Yes, you are.
Order. The right hon. Gentleman is replying to an intervention. I call Mr. Vaz.
Thank you, Madam Deputy Speaker. My hon. Friend and I go back a long way.
I represent a constituency that, by 2010, will have a majority of Asian people living in it. It will be the only city in Europe in which a majority of the citizens are from ethnic minority communities. I would not vote for this measure if I felt that they would be disproportionately affected in any way.
I will not take any more interventions.
All right, I give way to my hon. Friend the Member for Reading, West (Martin Salter), who is a member of the Select Committee.
I thank the Chairman of the Home Affairs Committee for giving way. He is perhaps having a tougher time than any of the Front Benchers at the moment.
Does my right hon. Friend agree that it is somewhat bizarre that those on the Conservative Benches are now praying in aid the Civil Contingencies Act when four members of the Home Affairs Committee put their names to the following words:
“We considered…that Part 2 of the Civil Contingencies Act (CCA) 2004 could be used in exceptional circumstances…However, we concluded that this was not an intended use of the powers under the CCA, that there were significant legal problems and it would not be sensible for a national state of emergency to be triggered in the middle of a major investigation.”
Is it not crystal clear that when Conservative Members have had an opportunity to examine that proposal, they have found it wanting?
My hon. Friend will not draw me down the road of criticising members of the Committee, as I am due in Monmouth on Sunday and Monday. I do not want to upset the hon. Member for Monmouth, who is not responsible for what his Front Benchers say almost in the same way as we are not responsible for our Front Benchers. However, I will say that it is very clear that the Committee—this is where all this started—made it clear that there would be exceptional circumstances. That is what the Government have accepted. If the Government are prepared to accept the words of an all-party Select Committee—albeit achieved in controversial ways, as was the case, because this is a controversial subject—I am happy to accept that.
I shall give way once more, to the hon. Member for Newark (Patrick Mercer).
I am most grateful to the right hon. Gentleman, whose chairmanship I admire and enjoy.
May I make it quite clear that I and the three other Conservative members of the Home Affairs Committee looked carefully at the Civil Contingencies Act—I was a member of the Committee that considered the Bill—and we quite clearly understood that there were powers within the legislation that, were they modified, could be highly sensible, highly useful and directly applicable in the rare circumstances that the Chairman and other members of the Committee agreed might exceptionally occur?
Indeed, that is exactly what the discussion was all about, but at the end of the day we concluded that there were exceptional circumstances. We did not feel that we could use the Civil Contingencies Act, which is what we said at the end of the report. But the hon. Gentleman is absolutely right—this was considered.
Once again, I am grateful to the Chairman of the Home Affairs Committee for his generosity. That, surely, is entirely consistent with the point that Conservative Front Benchers and my right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, have been making.
The shadow Home Secretary has always believed that the Civil Contingencies Act is sufficient for the needs of the Conservative party on this issue, but we as a Committee concluded by 11 votes to one that it was not.
Will the right hon. Gentleman give way?
No, I will not. I have been speaking for 21 minutes, and it is important that other Members have an opportunity to take part in the debate.
I want to raise with the House the issue of community engagement—my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) has already raised it—and the specific concerns of the community. I say this to my hon. Friend and others in the House: she mentioned the letter that was signed by 17 Members of the House, but obviously, as we know, not by her. However, my hon. Friends the Members for Birmingham, Perry Barr (Mr. Mahmood), for Glasgow, Central (Mr. Sarwar), for Dewsbury (Mr. Malik) and for Tooting (Mr. Khan) all signed it.
I say to my hon. Friend that they did not do so under duress. They happily signed the letter.
Order. I remind all hon. Members that there should be decorum as well as debate in the House.
Thank you, Madam Deputy Speaker. To be very clear, before the hon. Member for Blaby (Mr. Robathan) jumps to his feet, none of those people was offered a knighthood for signing the letter. It is not in my power to give such honours. They signed the letter in good faith because they believed that the safeguards that had been offered by the Government were sufficient for the communities that they represent. Of course they have—
Will my right hon. Friend give way?
No, I will not give way again. Of course those Members represent people other than members of the Muslim faith, but each and every one of them is respected and acknowledged within their communities. It is extremely significant that they should all have singed the letter.
I thank the right hon. Gentleman for giving way. I want to ask about him and other Members who signed the letter being satisfied about the scrutiny that will be offered and the safeguards, and how those will offer protection to the communities that those Members represent. In the event of the procedure being put in place and Parliament being convened, possibly during a recess or an election, what will hon. Members tell the families and communities who come to them and whose loved ones have been detained? What will those Members say in this Chamber, and what can they say, that will make scrutiny effective and make them credible as representatives in front of their own constituents?
The hon. Gentleman has considerable knowledge of these issues because of what happens in Northern Ireland, so we listen to him with enormous care, but the proposed safeguards are sufficient. The Home Secretary will not come to the Dispatch Box and discuss individual details of cases: she cannot do that.
What do Members tell their constituents?
If the constituents are detained under the current law, the current law must take its course.
What if they are detained under this procedure?
I assure the hon. Gentleman, and my hon. Friend the Member for Glasgow, Central, that under the emergency provisions proposed by the Home Secretary there will be redress for those who feel that they have been treated unfairly. In my view, the procedure is very simple. It will allow the House to decide whether to endorse what the Home Secretary is proposing, and that is good enough for me.
Will the right hon. Gentleman give way?
No, I will not. I gave way to the hon. Member for Foyle (Mark Durkan) because of his knowledge of these matters.
As I have told the Home Secretary in conversations with her, and said publicly in articles that I have written, I am also concerned about community engagement. It is clearly important for us to bring communities with us; we cannot win the war on terrorism unless we do that. Only last week, the Home Secretary announced the provision of £12.5 million that she hopes will be spent on preventive work in the community—
I think that the money will be of great benefit to the people of Islington and Hackney, and to those all over the country, as they seek to work and engage with the Government on this issue. I do not think it right for us to feel that we cannot carry communities with us, although I am keen to ensure that the resources that the Government are allocating are allocated fairly and do the job that they are intended to do.
Finally, let me say something about references to the director general of MI5 and the police. I have not heard the director general of MI5 say—to me or to the Committee—that he wants the period to be extended from 28 days to 42, and the Government are not maintaining that he has said it to them, because that is not his job. The job of the director general of MI5 is to advise the Government about the threat. In his speech, which was presumably on the record—if he did not want it to be reported, he should not have made it to the Society of Editors—the director general, Jonathan Evans, was very clear indeed. Some of the facts have already been given by the Home Secretary. At least 2,000 individuals who are believed to be a direct threat to the safety of our citizens are currently in the United Kingdom, there have been 20 known plots, and 200 suspect groups are being monitored. There have been 15 attempted terrorist attacks in Britain. It is a matter of record, because it is in our report, that the Committee met the director general of MI5. We were not prepared, quite rightly, to discuss what he said to us, but he has said publicly that those threats exist, and are real and growing. That is the advice that he can give.
In their evidence, the police—Sir Ian Blair, Peter Clarke and others—made it clear to us that they wanted the current period to be extended. I think that Sir Ian Blair talked about “up to 60 days”. The police have made the case, and it is not for the security services to do so; nor is it for the Director of Public Prosecutions to do so. I have enormous respect for Ken Macdonald, and we readily agreed that he should appear before the Committee because he had not given evidence for its 2006 report. He made it clear that he did not consider the current period sufficient, but he also said that it was not up to him to decide whether it should be extended. That judgment can be made only by Parliament, and he will deal with whatever Parliament decides.
I think it quite wrong for Members to start passing the buck to those outside, saying that this or that individual is against the proposal.
It is all part of the debate.
It is part of the debate, but it is not a conclusive part of the debate to say that because Jonathan Evans has not said that he wants an extra 14 days, we are not prepared to give him those 14 days. That is for us to decide.
I am very pleased with what the Government have done since these proposals were announced a year ago. This is the right course of action.
Will my right hon. Friend give way?
I hope that the dialogue will continue, but I firmly believe that the Home Secretary has conducted this matter properly, giving Members of Parliament an opportunity to express their concerns. Let me end by saying this to her. If she were proposing a permanent extension from 28 days to 42, I would not vote for this measure. I shall be voting for it because it is an emergency, temporary provision that will allow a permanent situation to be dealt with for that very short period. I know that the Home Secretary has given us those guarantees, and I look forward to her repeating them when she winds up the debate.
I am pleased to follow the right hon. Member for Leicester, East (Keith Vaz). In my speech, I shall first explain why an extension of detention without charge matters to ordinary people and their freedoms, then I shall examine the weakness of the Government’s case for such an extension and the feeble parliamentary safeguards offered by Ministers, and finally I shall argue that such excessive powers may be seen as illegitimate by substantial sections of our nation, and may act as a recruiting sergeant for the extremists.
Let me begin by trying to explain why the powers of executive detention contained in the Bill and the amendments are so serious. They are not powers that apply just to other people; they are powers that could apply to any one of us here today. We could be arrested on our way home, in a case of mistaken identity, and locked up—if the Government have their way—not for one day or seven days, but for six weeks. What would a person’s employer think? What would their family think? Surely, they might say, the police could not really detain someone without some pretty clear evidence, using powers under a terrorism Act. As every street gossip will tell you, there is no smoke without fire.
We know, however, that of the six people who have come close to being detained for close to the existing limit of 28 days, half have been released without charge or any subsequent proceedings. Indeed, as was pointed out by the right hon. Member for Suffolk, Coastal (Mr. Gummer), who is no longer in the Chamber, it is inevitable that if these powers go on to the statute book they will be used for lower-priority cases, because the easier cases will have been dealt with first. The number of innocent people who are detained under the new powers is therefore likely to be particularly high.
Does the hon. Gentleman realise that one of our amendments would limit the use of an extended period of pre-charge detention to the most serious terrorist offences, which would carry a life sentence for those found guilty?
The point, surely, is that if the Home Secretary had evidence that the most serious offences had been committed, there would be no need to extend the period without charge, because she would be able to go ahead and charge the people. My fundamental point stands: on the basis of the existing track record, this will affect people who may well be found to be entirely innocent. We know that three of those six people spent a month of their lives not even knowing what offence they had been accused of committing.
We could all name cases in which great injustices have already been perpetrated. One such case is that of the Algerian pilot Lotfi Raissi; an even more tragic case is that of the young Brazilian Jean Charles de Menezes. Most recently, there is the case of the students who were arrested for having terrorist materials, when they were writing a research report on Islamic extremism. The police do a commendable job in difficult circumstances, but they are human and therefore fallible. That is why we have a system of justice, and why checks and balances are crucial. It is also why we should not lightly concede yet another rise in the period of detention without charge.
Does the hon. Gentleman accept that holding people for six weeks when they do not know what they are being held for is in itself coercive? From the big miscarriages of justice in the 1980s, we know what innocent people will sign even when they have been held for far less than six weeks.
I am grateful for the hon. Lady’s intervention, and I entirely agree.
Let me take the Government’s case at face value. The Home Secretary argues that the Government need to extend the period of detention for terrorist suspects from 28 to 42 days because of the increased complexity of terror cases, citing the recent increase in the number of computer files and comparing the alleged airline bombing case in 2006 with the Dhiren Barot case of 2004.
However, that argument rebounds on the Government in a very simple way. An extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed in the way that the Prime Minister and the Home Secretary implied.
The argument about increasing complexity is often put forward, but is there not a case for expanding the capacity to deal with complex cases, rather than the length of time for which people can be held without charge?
I am grateful to my hon. Friend, and she is of course absolutely right, but I want to make another point. It has been said that it might be necessary to read material equivalent to one third of the contents of the US Library of Congress within the proposed legal limit of 42 days. If so, that would require 240,000 police officers working eight-hour shifts—a total equivalent to all the police officers in this country, plus 100,000 others on loan from a friendly neighbour.
In fact, the tools available to the police have also increased in power so that sense can be made of large amounts of data. Clearly, search engines are available to others, as well as to Members of this House. Moreover, the Government do not seem to take the problem too seriously: they legislated in 2000 to make it an offence to withhold data encryption keys, but that offence did not come into force until 2007. So much for the sense of urgency.
We have also heard that an inability to sift through data, whether encrypted or not, was not the cause even in those few cases that went close to the 28-day limit. In fact, the essential data issues were sorted out relatively quickly, as the right hon. Member for Haltemprice and Howden (David Davis) showed very effectively. Liberty has pointed out that in two of the three cases in which people were subsequently charged, the evidence relied on to bring those charges was obtained within not 27 days, or 26 days, but within four and 12 days, respectively.
No other common-law country has seen the need to do such violence to its freedoms. The Government like to bog the debate down in comparisons with Roman-Dutch law, but I am leaving countries that use such law entirely aside. I am talking only about countries such as Canada, the US, Australia and New Zealand, which have legal traditions exactly parallel to our own. Canada retains a traditional 24-hour detention period without charge.
Is the hon. Gentleman saying that Lord Carlile’s statements to the Committee were inaccurate and misleading? He said that the US Attorney-General had executive witness detention capability and was allowed to hold people for up to a year. He also said that similar powers were held by France and other countries, and that legal systems differ so much that comparisons are nonsensical. Was Lord Carlile being inaccurate? Was he misleading us?
I am grateful for that intervention, but I specifically did not make a comparison with inquisitorial systems such as the French one. If the hon. Lady had been listening to me, she would have heard me say that Canada retains a traditional 24-hour period of detention without charge. In the US, the period is two days. Australia has extended the period to 12 days, in part because of the special cooling-off periods between interrogations. There are no provisions in the Bill to put in place the equivalent cooling-off periods that might justify an extension of detention along the lines introduced in Australia.
The possible length of detention without charge is already more than twice as long in Britain as it is in other common law countries, even though we all face the same threats and technologies.
How long does the hon. Gentleman think the detention period should be? Should it be one day, or two, or a week?
I am sorry that the hon. Gentleman was not present for the Second Reading debate, as I remember that another Labour Member made exactly the same challenge. I made my position very clear then. At the moment, I am very happy with a period of 28 days. We should stick with that period because that is what we voted for, but we need to regard it as an emergency measure and keep it under constant review—especially given the lack of evidence that even 28 days is necessary. The hon. Gentleman asks about alternatives to the knee-jerk, Kafkaesque extension of detention without charge that is being proposed, but I believe that all the alternatives are much to be preferred.
The Bill allows questioning to continue after charge, and we welcome that. We should also allow intercept evidence, as is the case in Australia and the United States. The Committee considering the Bill took evidence from Sir Ken Macdonald, the Director of Public Prosecutions, who said that his counterparts in the countries that I have named found our refusal to use intercept evidence astonishing.
Most importantly of all, Sir Ken has described the considerable flexibility that the Crown Prosecution Service has to bring charges, which it can do even if it is felt at the time that the chances of a successful conviction are less than 50 per cent.—the normal test. In fact—this is crucial—Sir Ken pointed out that the CPS had had a 92 per cent success rate with terrorist convictions since the beginning of last year. As a result, he is on record as saying that the new powers are unnecessary. That is significant precisely because, if it is possible to secure a 92 per cent. conviction rate in cases brought after terrorist events have happened, as has been the case over the past two years, Sir Ken has the flexibility to achieve even more success should he decide to bring charges before a terrorist event occurs.
Detention without charge for terrorist suspects has already risen from seven days to 14 days and then 28 days, just since 1997. The sad truth is that Ministers are using this simple number as a proxy to persuade the public that the Government are tough on terror. In fact, such blunt instruments run the substantial risk of alienating the communities that we need to have on board if we are to fight terror effectively.
I am grateful to the hon. Gentleman for giving way again, and I assure him that I am listening to him. A letter from the president of the Association of Chief Police Officers, which has been placed in the Library, makes it clear that
“the more recent 28-day period was used in the course of an operation in 2006 that is currently sub judice and cannot be discussed publicly due to the imminent trial.”
Does the hon. Gentleman agree that that letter shows that the 28-day period is being used? If so, why is he claiming that there is no evidence that 28 days is appropriate?
The hon. Lady may not be aware of a rule of this House that sub judice proceedings can be discussed during discussion of proposed legislation. If she has a fact that she would like to put before us, as opposed to assertions and opinions, perhaps she will do so. As I have mentioned, what we know from ACPO’s evidence is that there have been six cases that have gone near to, but not up to, the limit of 28 days. Therefore, it is, I believe, accepted in all parts of the House—I hope the hon. Lady accepts this, too—that there is no evidence for any extension beyond 28 days. Even Ministers put the case for an extension in entirely contingent terms, and talk about what may happen in the future if a whole series of other events occur.
The police need intelligence, and they need witnesses prepared to give evidence. Britain’s most senior Muslim police officer, Assistant Commissioner Tarique Ghaffur, has warned that these arbitrary powers could have counter-productive effects in the Muslim community, exactly as internment had in Northern Ireland in the ’70s. As the hon. Member for Foyle (Mark Durkan) has correctly warned us, internment drove a wedge between communities and the security services. Intelligence dried up, witnesses refused to come forward to give evidence, and the scars remain to this day. Tough macho measures proved horribly counter-productive, exactly as these measures may. I agree that there is not a precise parallel between what is proposed in the Bill and internment, but there is a parallel in terms of the sentiment and motivation behind these proposals and, as a result, there may very well be a parallel in the unfortunate counter-productive effects. Have we not learned the lessons of 30 years ago?
May I read to the hon. Gentleman a quote from Sir Ian Blair’s evidence to the Public Bill Committee? He said:
“What we have said repeatedly is that, given the circumstances that the UK has faced over the last few years, the growth in the number of plots, the number of conspirators in each plot and the magnitude of their ambition, a pragmatic inference can be drawn that sooner or later we are going to need more than 28 days.”––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 11.]
Does the hon. Gentleman think the Government should disregard that?
The hon. Gentleman makes a point that has been made from the Government Front Bench on a number of occasions. Indeed, I have conceded that there is no evidence for the Government’s case other than the possibility that there may be circumstances which have not yet occurred. If the hon. Gentleman feels that fundamental freedoms that have been part of the rule of law and due process in this country for centuries should be ditched on the basis of a hypothetical circumstance, he will vote accordingly, but he will not have Liberal Democrat Members going along with him.
Should we not bear in mind that some of the Members who are so enthusiastic about the increase to 42 days were no less enthusiastic about voting for 90 days?
The hon. Gentleman is absolutely right. I am even more encouraged, however, by the number of people who voted for and supported 90 days but who now recognise that circumstances have completely changed. They include Lord Falconer, the former Lord Chancellor, and Lord Goldsmith, the former Attorney-General, both of whom highlight the point I have made: that the change in the nature of the threshold test means that circumstances are fundamentally different from when we last considered the issue of extension of detention without charge.
May I offer my hon. Friend an alternative quote from Sir Ian Blair? He has said on the record very clearly and simply:
“We do not have a case that has required us to go beyond 28 days.”
Does my hon. Friend not agree that that comment, taken alongside similar comments from Sue Hemming of the Crown Prosecution Service and Sir Ken Macdonald, the Director of Public Prosecutions, probably provides the most powerfully damning indictment of the Government’s case?
That is absolutely right. The evidence that Sir Ken Macdonald gave to the Public Bill Committee made it clear that the CPS is heavily involved in all these investigations from the earliest stage, so the evidence that Sir Ken gave is particularly telling.
Will the hon. Gentleman not consider the relationship between cause and effect when pondering an earlier intervention quoting Sir Ian Blair on the number of plots there are, and the increase in the number? Will the hon. Gentleman speculate about why there is such an increase, and why we are discovering more plots now? Is that because of provocation?
I would not like to go as far as that, but the hon. Gentleman makes a point that I hope other Members will take into account.
I wish now to turn to the so-called safeguards in the Government’s amendments to the Bill.
Before the hon. Gentleman moves on to the important matter of the safeguards, may I return to the issue of international comparisons, as that adds power to his argument as to why 42 days is not required? Liberty’s figures are very clear for other common-law jurisdictions—they show that other countries do not need more than a week—but the power of that argument is given extra force because, both across the Floor of the House and through written parliamentary answers, the Government have admitted that they have undertaken no similar comparison. They are not in a position to criticise those figures, because they have not investigated the comparisons properly themselves.
I am grateful to the hon. Gentleman for his intervention, which has clarified the point.
I think the Home Secretary would now like to seek to clarify matters.
I hope that the hon. Gentleman would want to advise the hon. Member for Billericay (Mr. Baron) to take a good look at a letter I placed in the Library yesterday, which clearly spells out our view of the international comparisons.
I am delighted that the Home Secretary has been spurred to answer in the nick of time ahead of this debate.
I have no doubt that the hon. Gentleman and the Home Secretary will continue that interesting joust elsewhere afterwards.
Let me now turn to the so-called safeguards in the Government’s amendments. First, it would still be up to the Home Secretary to determine whether the conditions for extended detention had been met. In theory, her decision has to be in response to a “grave exceptional terrorist threat”, but that need hardly constrain her, as even the possibility of a threat remote from these islands would be enough. New clause 20 states:
“In this Act ‘grave exceptional terrorist threat’ means an event or situation involving terrorism which causes or threatens—
(a) serious loss of human life”.
That is not by any means restricted to the United Kingdom. This could almost be regarded as the “Tongan clause” as it would allow any “grave exceptional terrorist threat” in Tonga to trigger the extension by the Home Secretary of the period of detention without charge from 28 days to 42 days. That is not exactly the sort of safeguard this Parliament is used to having in connection with a matter involving fundamental freedoms.
The hon. Gentleman is right to analyse this area of the Government’s proposals, because it is key to whether they are workable. However, I am by no means persuaded that the Home Secretary needs the existence of a “grave exceptional terrorist threat” to extend the maximum period of detention, because as the Bill is drafted that is not a prerequisite for doing so. All that is required is a report that such a further extension is needed because it is necessary for one or more of the purposes set out in a subsection that is, effectively, about detaining people, obtaining evidence and carrying out analysis of that evidence.
I am grateful to the hon. and learned Gentleman for his intervention. That is above my legal pay grade, but I am sure that if this Bill were by some mischance to be put on to the statute book, it would keep many of his legal colleagues in fruitful employment for many years to come.
Once the Home Secretary had triggered the extension beyond 28 days, there would be a seven-day period within which a debate and a vote would have to be held. Executive detention is thus automatically extended by these provisions to 35 days before Parliament would have the opportunity to set it aside.
I turn to the point about what would trigger these powers. Interestingly, my right hon. Friend the Member for Leicester, East (Keith Vaz) writing in Tribune last week said:
“There must be a genuine national emergency, the discovery of multiple and complex plots aimed at causing massive loss of life, the extent of which would overwhelm the capacity and resources of the police and security services and relate to a life and death situation with hundreds of people caught in a terrorist outrage.”
I am sure we would all agree that in such circumstances there might be a case, but is it correct that this is not the trigger that would give the Home Secretary the powers to ask this House to extend the emergency powers?
The hon. Lady is correct to point that out. I have searched in vain for the amendment tabled by the right hon. Member for Leicester, East containing precisely the provisions that he suggested in that article; I fear that it does not appear to have made the amendment paper. Perhaps it will be a last-minute addition, rather like the Home Secretary’s letter in the Library.
In any case, it is very hard to see how the House will tread the narrow line between debate that could be prejudicial to a court case and general blather, which would simply boil down to whether the House trusted the judgment of the Home Secretary. That is hardly confidence-inspiring, and it is certainly not a serious check on the potential abuse of Executive power, so those who would believe that there are genuine safeguards in the Bill are misplacing their faith.
The fight against terrorism is far too important to be reduced to populist symbols that would substantially curb our hard-won freedoms. This cause is central to the Liberal Democrats’ belief in the rule of law, and in checks and balances on arbitrary power. The Government run the risk, with these provisions, of giving the terrorists exactly what they want, which is clear evidence of an insensitive and oppressive state. We must not, and we must never, become what we are fighting.
I rise to speak to the new clauses and amendments that stand in my name, which have been tabled to give effect to recommendations made in the Joint Committee on Human Rights reports. I approach this issue with my eyes open; I am not wearing rose-tinted glasses. I remind the House that I was the first to raise concerns over the activities of extremists, from early 1998, when I was warning about Abu Hamza, Bakri Mohammed, Abu Qatada and many others. In those days, everybody thought that I was a bit of a nerd and nobody took any notice of me. I hope that today they will take notice of what I have to say, as they did after 9/11, but not before. As a consequence of what I did, I suffered hate mail, death threats and vitriolic personal attacks. In addition, five of my constituents—more than the number for any other constituency—were killed on 7 July 2005, so I do not approach this matter with any liberal leanings.
I voted for 90 days, because at that time I saw no other option. I have since changed my position, because the Government have not made their case for new powers, we have experience of the 28-day maximum, the safeguards are not adequate, alternatives are available and I do not believe that the proposals will make us safer. In fact, they risk alienation and division in our society.
The Joint Committee on Human Rights has reported on 11 separate occasions on counter-terrorism policy, and an array of our reports lie on the Table, tagged for today’s debate. They all start from the same basic premise: that the state has a positive obligation in human rights law to protect us all from terrorism and violence; and that the state has a duty to prosecute and to make prosecution more effective and, as far as possible, to do so as part of ordinary criminal law. Each erosion of the normal process is, in itself, a result for the terrorist, who would undermine our freedoms and way of life. We run the risk of doing his work for him.
Would the hon. Gentleman be good enough to explain to the House why he thinks that the opportunities made available through habeas corpus would not be able to satisfy the criteria that he has just described in terms of civil liberties?
I am grateful to the hon. Gentleman for that intervention, and I shall come to that point later.
I do not believe that the Government have made their case for the need for 42 days. In the evidence that they have given to us, the threat level has been described as “about the same”. There have been assertions of a growing threat in terms of numbers, but no qualitative analysis or assessment has been provided. We should never underestimate the threat, which is of course serious, but equally we should not over-hype it. We need to give a clear and accurate picture in order to maintain public confidence. I think that it is instrumental that the three most recent attacks have been somewhat amateurish affairs, as we all know.
The numbers that we are given could mean either that there are more plots and plotters, which would be worrying, or that the substantial extra resources that we have given the security services mean that they know more about such people than they knew before, when they were below their radar—that, of course, would be reassuring. The numbers relate to the general level of the threat, and that is not relevant to the 42-day debate at all. What is relevant to the debate is when the plotters are subject to arrest, if and when these plots become crystallised. We do not have much information about such matters, other than in respect of the cases that we know about. Such cases are far fewer in number than the thousands that we are told exist.
Although the director of MI5 is prepared to give a lecture to the society of newspaper editors on this issue, he is not prepared to repeat his lecture to a parliamentary Committee and to take questions on it from such a Committee. We invited him to do so. We did not want to talk about the secret squirrel stuff. We wanted only to discuss the broad issues, but he was not prepared to come before us. We wrote to him in December 2007 asking for his assessment of the increase, but we have yet to receive a reply to that letter.
When we considered this matter in Committee, we were given some evidence by Sir Ian Blair of a growing threat. I am concerned, as I hope my hon. Friend is, that if we should decide at some point that we would need an extension of the time in which to examine evidence concerning somebody who is suspected of committing a terrorist attack on this country, that should not happen in a heated situation after some event. We should take such a decision after a calm and collected discussion, such as we are having this afternoon. Can he comment on that?
I entirely agree with my hon. Friend that we need to discuss this in a rational way, and I shall be giving her an alternative, my amendment (a), which I hope she can support. It answers the point.
The Government pray in aid a variety of plots and trials, but they have all been dealt with under the existing arrangements satisfactorily and effectively. The Dhiren Barot case has been trotted out again, but that was dealt with under the 14-day rule. That was one of the cases that they used in the argument for 90 days, which led to the compromise of 28 days, so that is an old argument that was dealt with two years ago. The parliamentary Labour party briefing refers to eight other plots, which were all dealt with under the 14-day rule, except the alleged airline plot, which was dealt with under the 28-day provisions. There is no evidence of anyone having been released when they not should not have been. The 28-day power has not been used for a year, and it has hardly been used at all. Yet, this new power is being sought on spec for what we are told are future extreme cases.
I wanted to ask the Home Secretary this earlier. Have we seen one shred of evidence that the figure of 42 days—or any other number above 28 days—has been justified? The figure appears to have been plucked out of the air speculatively to reassure people, yet it has not one shred of evidence to support it.
The hon. Lady makes her point, and I shall not demur from it. We are told that the reserve power is needed for a “grave, exceptional terrorist threat”. On 23 January, in the Daily Mirror, my right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing asked us to imagine two or three 9/11s. On the “Today” programme on 2 June he said that there was a
“substantial threat against the nation”
and that we have a
“backstop for truly exceptional situations”
He also mentioned the “nightmare” and the “doomsday scenario”. If that is so, the powers are already in place. I am talking about the power to derogate from article 5—the right to liberty—and to disapply a fundamental right that goes back to the Magna Carta of 1215.
My amendment (a) provides a system to enable that derogation to take place. If there is a public emergency threatening the life of the nation, article 15 permits derogation from—that is, disapplication of—the right to liberty. A co-ordinated, large-scale attack on the nation’s political, military and financial institutions, such as 9/11 in the US, would meet that test, never mind two or three 9/11s at the same time.
Under derogation, the Government are entitled to take the measures that are strictly required for the exigencies of the situation. Derogation is not a new solution. The Belmarsh detainees were held under a derogation power, and the case failed on discrimination grounds. The control order powers in the Prevention of Terrorism Act 2005 provided for derogating control orders, but they have not been used.
My amendment sets out a process to enable the Secretary of State to make a designated derogation order in anticipation of any future need because of such a terrorist attack. It incorporates safeguards such as judicial review and parliamentary approval, and this proposal would give the Government everything that they profess to need—an emergency reserve power for the truly exceptional cases, with appropriate safeguards.
Why will not the Government accept my amendment? As has begun to emerge, the Government want the reserve power not for the extreme cases, but for far less than their public statements suggest. They want that power not for two 9/11s or for a substantial threat against the nation. The letter from the Minister to the Human Rights Committee on 6 June states:
“The definition of grave exceptional terrorist threat which we now propose would cover events or situations similar to the bombings in July 2005, or a plot to blow up a shopping centre or a plot to commit terrorist atrocities overseas involving serious loss of life. We do not think any of these are covered by the Civil Contingencies Act definition of an emergency.”
The July 2005 bombings were dealt with under the 14-day regime. The shopping centre example would not be a multiple plot. Atrocities overseas may be nothing to do with us. Today we had another letter from the Home Secretary that said that the attempted airline plot would have been a case in point, but that was dealt with under the 28-day procedure.
The implication from the briefing sent to the parliamentary Labour party is that all the cases listed, which were dealt with under 14 or 28 days, would in future be subject to the 42-day maximum. The power is not meant for exceptional cases but for the sort of cases that have been dealt with adequately so far under existing powers.
The hon. Gentleman makes a case exclusively based on the application of the European convention on human rights and the Human Rights Act 1998, and the derogation in article 5. Why does he insist on that route, rather than that of habeas corpus, under which the court would have the right to make a proper inquiry if given that power in statute by this House?
First, I will come to habeas corpus, as I promised the hon. Gentleman earlier. Secondly, we are subscribers to the European convention on human rights—and rightly so—and I propose a way in which we can lawfully do what the Government wish us to do in cases of major emergency.
We have now had experience of the 28-day limit. I remind the House that 28 days was to be an exception, with the norm being 14 days and the issue subject to annual review. The DPP tells us that he has managed reasonably comfortably. Sue Hemming, the chief prosecutor, says that 28 days has proved to be “sufficient”. We have already heard the figures for the alleged airline plot. Six were held beyond 14 days, with two charged just before 28 days and three released just before. The latter were not re-arrested or subject to control orders.
The 28-day limit has been used only in two other cases. Up to now we have had no quantitative analysis of those cases, although the Opposition Front-Bench team produced some yesterday, which showed that there was little questioning of the suspects during that period. We have heard today that in fact the evidence to support a threshold charge was probably in place by 14 days for the two who were held up to the 28-day limit. However, until we receive the detail, we cannot be certain that that was the case. We must also take into account the possible urgency of the investigation. If we had had a 42-day limit, would those three people have been held for that time in the hope that some evidence might turn up, rather than for 28 days?
The judicial safeguards proposed in the Bill are effectively the same as those for 28 days, save that the DPP and the chief constable have to authorise the application for the extension. The existing process is not fully judicial in accordance with article 5. The Government say that it involves a proper judicial hearing, but the case of Garcia Alva v. Germany in the European Court of Human Rights makes it clear that the criteria that the Government operate do not match those that the court expects.
Even if there were no problem with the process for 14 days, or even 28 days, it is wrong to say that neither would there be a problem for 42. The longer the period of detention, the more stringent the procedural safeguards need to be. The Government say that there has been no challenge to the extension process in court on the grounds of incompatibility, but there was: the case of Naseel Hussain, which was one of the first 28-day cases. It failed on a Catch-22: the High Court said that it could not review the decision of the High Court judge to extend the period of detention.
That ruling would also, in effect, exclude habeas corpus. That court case decided that the warrant of further detention was a judicial hearing for the purposes of article 5.4. If that is so, that is the judicial hearing that would be required by habeas corpus, so any application for habeas corpus would be struck out by the court as an abuse of process. New clause 35 is very important because it would overcome that particular problem.
That still does not resolve the problem of why the hon. Gentleman prefers to go down the route of the European convention on human rights and judicial review, when habeas corpus would be available.
I support the hon. Gentleman’s new clause and I see it as a matter not of either/or, but of both.
We hear that there will be an ex gratia compensation scheme. We can infer therefore that the Government accept that the provisions do not comply with article 5, because article 5.5 provides for compensation for someone held in breach of article 5. As the compensation scheme is to be confined solely to cases under these arrangements, and not applied generally to people held on charge and released, one can only assume that that is the case. We must also consider the impact that that would have on other suspects—for example, those who may have been held on bail for a long time and then acquitted. They will say, “Well, the Muslims are getting money, why aren’t we?” That could have an impact on community relations.
New clause 1, which I tabled, suggests improvements to the judicial process including entitlement to judicial process; a statement of the basis for arrest; the gist of the material forming the grounds for suspicion to be given to the suspect; a special advocate for the closed part of the hearing; and entitlement for the judge to look at whether there are reasonable grounds for the belief that the suspect is involved in terrorism and, in other words, to check whether the arrest was justified in the first place. At the moment, judges are entitled only to consider whether the investigation was necessary and has been conducted diligently.
New clause 37 would provide for judicial review of the Home Secretary’s decision, if the existing arrangements stay in place, on whether there is a grave threat, whether a reserve power is needed and whether it is needed urgently. I am not sure whether the Government agree that those should be subject to judicial review; I suspect not.
New clause 36 would provide that similar provisions to those in the Civil Contingencies Act should apply to the Human Rights Act and the emergency regulations, so that the courts could intervene and quash them if they were considered to be unlawful. I think that the Government agree with the point and it would be appropriate to include it in the Bill.
On the question of parliamentary safeguards, the independent legal advice to the Home Secretary on whether the reserve power is needed would ask the same questions as a court, essentially considering whether an individual’s detention would be appropriate. That will be passed on to the Select Committee Chairs, including me if I am still in office—I suspect that I probably will not be, considering the way that I am going. If I were still in office, on Privy Council terms, it is not quite clear what I would be able to do with that information. I would not be able to check whether it was accurate or to get advice on it. I would not be entitled to share it with members of my Committee. I would be entitled only to read it and to think, “Mm, interesting.” I would not even be entitled to refer to it in a debate on extension before the House. Although the fact that it would be shared is welcome—I am a prurient, nosey chap who likes to know what is going on—it would not achieve a great deal.
The safeguard allowing us to have debates within seven rather than 30 days is welcome, as is the fact that Parliament would be recalled. However, the debate will be even more circumscribed than we originally thought, not just for the reasons advanced by the hon. and learned Member for Beaconsfield (Mr. Grieve) but because the questions will be the same all the way through. The DPP and police report to the Secretary of State will be in similar terms to the application that they will have to make in an individual case. Independent legal advice to the Secretary of State will again raise the same issues. The advice to Parliament would be redacted to prevent any prejudice to the trial. The same issues will arise with the Secretary of State’s order as arise with individual cases, as she will have to be satisfied about them when she comes to make the order. When Parliament comes to approve the order, it will consider the same issues again. Therefore, because we cannot risk prejudicing a trial, the debate may only be very general. It will consider the sort of things that we debated in the previous cases on the back of the statement, which is hardly sufficient to justify the possible deprivation of liberty not only of the suspect in custody but of any other suspects arrested over the next 30 days. Inevitably, too, it would be a whipped vote.
Does the hon. Gentleman agree that although it is absolutely right that the order would also cover the arrest of anybody else in the following 30 days, the trigger mechanism clearly implies that it would be precipitated by one case? That is the most likely outcome. Those circumstances will make it even more difficult to debate the issues surrounding the making of the order in this House, because the generality probably will not be there. The debate will be entirely dependent on the report, which will be made to the Secretary of State in the first place, on the operational need for an extension, relating probably to individuals.
The hon. and learned Gentleman is correct. The same argument will continue in the debate on the reviewer’s report six months later. Of course, we do not know when that will happen, because if the period of extension is repeated—if it is set for 30 days, then for another 30 days, then for another 30—will that six-month review take place after the expiry of the first 30 days or of the subsequent 30-day periods? Putting that to one side, the chances are that the reviewer’s report will come before the House while the suspect is awaiting trial, so there is an even greater risk of prejudice when debating the reviewer’s report.
The hon. Gentleman is making a very powerful case. Does he accept that the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve) is strengthened if one looks at the detail of what the Government are proposing in new clause 22? New clause 22(5) states that the report on which the whole thing is based
“must also state that each of the persons making the report is satisfied that the investigation in connection with which the detained person or persons is or are detained is being conducted diligently and expeditiously.”
That means that there will have to be an individual case. If there is no individual case, there cannot be an extension.
The hon. Gentleman is entirely correct, and his point adds weight to the argument.
The other safeguard, we are told, is that the power will be reduced in length to 30 days. That is an improvement on what we had originally, but it can be renewed back to back indefinitely by the repetition of the same process. It could go on to 30, 60, 90 or 120 days. Who knows?
There are alternatives. The Joint Committee on Human Rights first proposed a package of alternatives in 2006 that offers a coherent, human rights-compliant alternative. For the big emergency cases—the 9/11s—we have the derogation process. For all the others, there are alternatives.
The most important alternative is threshold charging. Many Members, I suspect, do not understand what threshold charging involves. It means that the individual is charged on the basis of reasonable suspicion of the commission of the offence based on admissible evidence, as opposed to arrest, which can be based on inadmissible evidence. It is predicated on how the investigation is anticipated to proceed. We can compare that test with the normal full code test of “more likely than not”. Some 50 per cent. of terror cases so far have been charged on that basis. It has proved very effective in practice, with a conviction rate of more than 90 per cent. In my view, it is important that that process is made statutory with appropriate safeguards, and my new clause 2 will do that.
Incidentally, if we use the threshold test as our international comparator rather than the full code test, we see that the threshold test in some of the other common law countries, such as America and some of the continental countries, is not that dissimilar from some of the questions that investigatory magistrates have to pose. Both sides of the debate have probably overstated their case for and against international comparators, but if the threshold test is used, the position is perhaps a little clearer.
The second alternative is the new offence of acts preparatory to terrorism. It is a broad offence, and when charged on the threshold basis and in combination with that threshold test, it provides a broad and easy process for the prosecution service to follow. As we have heard, two of the alleged airline plotters were charged within 28 days with acts preparatory to terrorism on the threshold test. If, within 28 days, a reasonable suspicion cannot be established on the threshold basis that the accused has committed an act preparatory to terrorism—a very broad offence—the chances of our getting them for anything are probably negligible.
I am listening with great interest to my hon. Friend. Given the research he has done, can he explain to me and the House what is wrong with a holding charge? A holding charge is used in criminal jurisprudence in every other aspect of crime, so why should it not be entirely available in terrorism cases?
I think that the holding charge system is dishonest; it would undermine the justice system and bring us into disrepute. It would also run the risk that a suspect who had committed a more serious crime would be released on bail when he appeared before the court. I do not recommend that route.
Will my hon. Friend give way?
I need to make some progress, as many Members want to speak.
Alternative No. 3 is post-charge questioning, which we debated yesterday. Alternative No. 4 is my new clause 3, which proposes police bail with conditions similar to control orders for people on the fringe of plots, such as the inciters and funders—the sort of people we were talking about earlier. They could be closed down entirely while their computers were analysed. They could be prevented from communicating and from going where they want to go. That option was suggested at Paddington Green during our visit there.
Alternative No. 5 relates to intercept evidence and the Chilcot review. Alternative No. 6 is more specialisation in the CPS, as is already happening. Alternative No. 7 would be more active case management by judges. Why are judges not tougher on some of the unjustified delaying tactics and obstruction deployed by defence teams? Alternative No. 8 involves a suggestion put to us by the Director of Public Prosecutions and relates to incentives for those on the periphery to give evidence—for example, lower sentences and witness protection, although obviously with appropriate safeguards.
The Government response to that package is that they do not look at it as a package. They accept that such proposals would reduce pressure to go beyond 28 days, but say that they would not entirely eliminate the risk of running out of time. However, for that matter, 42 days or 90 days would not entirely eliminate that risk. As the DPP said to the Public Bill Committee, it is always possible to posit hypothetical scenarios; the question is whether they are “remotely likely”.
When the Joint Committee made its recommendation about putting threshold charging on a statutory basis, the Government response, in terms of the impact on affected communities, was:
“Communities most likely to be affected may react adversely if they perceive that terrorist cases are uniquely charged on a lower evidential threshold.”
The inference of the Government’s position must be that such communities would not react adversely if they perceived that people in such cases would uniquely be detained for 42 days. What a non sequitur. If the threshold charge created an adverse reaction, surely a 42-day period would, too.
We have only to look at the briefing issued by the Equality and Human Rights Commission to see what Muslim people really think. The Government say that Muslim communities are no different from any others—they want to be protected from terrorism. Of course they do. They want to be protected from the backlash. Of course they do. However, it is appropriate to note that in London everybody came together after 7 July and there was the opposite of a backlash. People were concerned to ensure that the Muslim community was protected and reassured.
Finally, would the proposal make us safer? It is not a deterrent to terrorism, but an investigation tool. It could make things worse if the consequences are alienation, less co-operation, less information and less intelligence. There are risks in lesser cases—not in extreme doomsday cases, because derogation deals with those—that someone who should be charged is released after 28 days with no control order. What if they are released after 42 days? The offence of acts preparatory to terrorism and the other examples I gave offer an alternative package for such cases. The risks need to be balanced against the effect of releasing an innocent person, even with compensation, after six weeks.
I regret to say that the Government have not made a case for the need for 42 days. Even if they had, derogation is available. We have experience of 28 days. Alternatives are available. The safeguards are inadequate. The proposal will not make us safer and I hope the House will not accept it.
Order. Before I call the next hon. Member to speak, may I say to the House that I appreciate that the matters under discussion are extremely complicated, but a very large number of hon. Members are seeking to catch my eye, and I am sure that the House wants to hear as many contributions as possible from hon. Members in all parts of the Chamber? If everybody makes a big effort to make their remarks as brief as possible, it would be appreciated by all hon. Members.
When the House debated the 90-day detention limit last year, I abstained—not happily, because I do not happily go against the advice of my Front-Bench colleagues, but because I did not feel that the Government had made a sufficiently detailed case for the extension. Since then I have twice said to the Prime Minister—once in Prime Minister’s Question Time and once when he made a statement about security—that a detailed case would need to be made if we were to be persuaded to change our minds. I am sorry to say that although the Government have gone some way down that road, they have not yet given any concrete reason why the extension is necessary, except to say that it may be required at some future event. That is a reasonable way to go, and I shall come to that point later.
Let me refer back to the time when the Operation Crevice plotters were under investigation and on trial, and the Security Service carried out its biggest ever investigation; it should be congratulated on the success of that. Although the Intelligence and Security Committee received regular briefings about the progress of those cases, we did not know whether there had been any problems to do with the length of time for which the people concerned were detained, or whether it was causing any difficulty in bringing the charges and trials to a successful conclusion. It turns out that there was not any such problem in either of those cases, which are the two largest cases that the Security Service and the police have ever undertaken.
One of the difficulties today has been that the Prime Minister said a few hours ago in Question Time that it was the Security Service that wanted the measures introduced; his words were very clear. The Home Secretary said exactly the same in her opening remarks today. I have known that that was not the case for some time, but until yesterday I felt myself unable to say why I knew that. Yesterday, on the Security Service website, Jonathan Evans, the director general of the Security Service, made it absolutely clear that that is the Security Service’s position, saying that
“we are not, and never have been”
“the Government on pre-charge detention time limits.”
That is absolutely clear. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, suggested—inadvertently, I think—that the Prime Minister misled the House. I do not say that, but the Prime Minister was wrong to say that the Security Service had wanted an increase in the time, and I am sorry to say that the Home Secretary was wrong to say exactly the same thing a couple of hours ago.
I do not believe that the case has been made. I do not have a problem with the principle of detaining someone for longer if there is cause for it. Neither do I object in principle to someone saying, “We do not want to do it when or if there is a major terrorist incident.” I am not happy about the Executive taking more powers for themselves, no matter what safeguards they write into a Bill. I am not making a party point; I would say exactly the same if our party was in government. The Government may want to plan ahead, but God forbid there should be an incident in which all the measures that we are discussing are necessary. This is the time to say, “The Executive have quite enough power. We must turn to the judiciary to decide the matter.”
If the Government came forward with a proposal that a High Court judge should consider individual cases when the police or security services said that they were in difficulty and needed more time, and the case was made to the judge, it would be acceptable for the period of detention to be extended. I say that because I believe that the British public trust the judiciary. I am sorry to say that they do not trust an overweening Executive. Again, that is not a party point. I am afraid that when Governments say, “This has to happen, otherwise something dreadful will take place,” the public view it rather cynically. If a High Court judge were to say the same thing, that would be largely acceptable to the British people.
I am grateful to my right hon. Friend, and Friend he is. I have listened carefully. What he is requesting is in the Bill, according to my reading. If an extension from 28 days is to be made, a High Court judge must approve that, on the evidence presented to him or her.
That is the safeguard to which I was referring, but it is the Executive who will take the original decision. It is the authorities who will say, “This is what we are going to do. Now we will go and check it with a judge.” Provided it is within the law, the judge will have to obey what Parliament has decided to do. If we take the Executive out of that equation, we will re-establish the trust that that process will happen independently and fairly.
My right hon. Friend is making a powerful point. Precisely because the statute defines what is lawful, is it not the case that if the circumstances described in the statute create an opportunity to exclude habeas corpus, we get into a ridiculous and impossible situation? That is where we seem to be moving.
My hon. Friend, typically, has made that point four times, and I expect he will make it four times more.
I will, until it is accepted.
That is a point that my hon. Friend is making. I shall make my own.
I have been listening to the right hon. Gentleman’s argument, which has some force to it. However, he seems to have disregarded the fact that before signing the order, the Home Secretary must take independent legal advice from a non-Government lawyer. That requirement provides the necessary safeguards.
I do not want to move into controversial areas, but the former Prime Minister took legal advice about a certain piece of paper from his own Law Officers. But I do not want to go down that road, and I want to be as brief as I can.
Perhaps I can help my right hon. Friend a little. It is low hurdle that the judge has to consider. He does not have to consider whether the suspect is guilty or not; he simply has to consider whether proceedings are marching to time and whether there is likely to be new evidence. That is a low hurdle and does not involve the judiciary as we would accept it.
That is absolutely right.
There are further problems with the Bill. I accept that the Prime Minister and the Home Secretary have been looking for consensus, and I accept that that should not be a party political matter. The trouble is that the moment the Government realised that they had to start making concessions, they did not make the Bill better—they made it rather worse. In order to try and buy off some of the usual suspects, if I may use that phrase about some of my friends on the Government Benches, the Government introduced the concession of consulting Parliament.
Parliament, of all people, should have no role to play in the matter. I shall not rehearse the arguments that others have expressed much more eloquently than I have about what would happen if a particular case—because it must be a particular case—came in front of Parliament to decide, after someone had been in the slammer for more than 28 days. That concession makes the Bill worse rather than better and the one thing that I can say is that that measure has not got a chance of surviving scrutiny at the other end of the Palace because it is not our business to second-guess judicial or Executive decisions of a judicial nature.
If the Government, when they finally come back with what will be a much reformed Bill, are prepared to say—I am prepared to concede that there may be an event that is so cataclysmic, or it may be necessary to prevent a serious event from happening— that, because of the complicated nature of inquires, there must be detention for longer than 28 days, let that decision be taken independent of the Executive by a senior High Court judge. I believe that would be acceptable and if the Government proposed it, I would support it.
It is a great pleasure to follow the right hon. Member for East Hampshire (Mr. Mates).
I rarely quote from The Sunday Telegraph, but today I want to quote from an article by Matthew d’Ancona in that paper because he presents the case and asks the appropriate question better than I could when he says:
“We face a threat that is indeed new in scale, ambition, and complexity. The question is whether we have what it takes as a society to respond to novelty with new strategies.”
I had the privilege of being a member of the Committee that considered the Bill. It was a privilege because, unlike other Committees on which I have sat, it took a significant amount of evidence, so that everyone began to feel that they understood the wide parameters of the Bill that we were possibly attempting to improve, but most certainly hoping to achieve consensus on and support for.
The evidence spanned that from the secretary of the Coroners Society, the Home Office terrorism specialist, Lord Carlile, the Metropolitan Police Commissioner, the Association of Chief Police Officers, Justice and Liberty. A vast range of excellent evidence was presented and carefully scrutinised by the Committee. We wanted to understand all opinions on terrorism, whether about intercept, pre-charge detention or reserve powers, so that we could ensure that we carefully walked the line that we have to walk between supporting and determinedly enabling individual civil liberties, while at the same time delivering a secure society for everyone.
I probably found the evidence of ACPO, the Metropolitan Police Commissioner and Lord Carlile to be the most convincing, but all of it was very valuable. The evidence of ACPO and the Metropolitan Police Commissioner, which was added to by a letter that I understand was placed in the Library, outlined the extreme and exceptional nature of potential and actual terrorist activity. Clearly, the argument made by both was to say: put on the shelf a power that we could need. We have taken cases to 27 and a half days—only two, that is right; maybe six—but when that power of detention is required, it should be to hand. That was a persuasive argument that I supported.
I genuinely have a great deal of time for my hon. Friend, but is not the argument that she puts forward the reason why she voted for 90 days in 2005?
My hon. Friend is absolutely right that we have a great deal of support and affection for each other. I do not believe that I had then the amount of evidence or information that I have now. I have seriously taken time to garner the information that is available, and perhaps I should have done so previously, but the evidence presented by ACPO was clear. In the interval between November 2006 and 2007, it saw a rise in the number of people identified as causing concern, possibly involved in terrorist activity, from 1,600 to 2,000. During the same period, we had 15 terrorist attempts. I had not previously understood the quantity and capabilities of the terrorist group, but I think I understand them better now, and I hope that the House will respect this information.
The add-on factor, which, again, I found quite compelling, was that such people do not just have an identity; they have multiple identities. We are looking at a situation in which many more people are potentially highly problematic to us. Added to that was the complexity of the situation. We have all spoken about the global nature of terrorism and its investigation and about an informal network that is working within communities. In addition, there is the use of mobile phones, internet communications and the rest, which makes the issue very complex.
There is one more factor. The House knows about it, but it is important for me to state it. There is a language input. Some languages are becoming more and more a part of a world that could be attached to terrorist activity, and oftentimes we have very few people with the competence to understand them, especially when those languages become colloquial. I say to the House, with a smile, certainly as I look at the hon. Member for Reigate (Mr. Blunt) on the Opposition Front Bench, that one of them is an Afghan language known as Dari. He would have expected that to be a problem, would he not?
The hon. Gentleman does not think so. In fact, of course, the problem is serious and I found the evidence quite compelling.
Crucially, we also wanted to see how the civil libertarian argument could be supported. We held very clear sittings during which we took evidence from Justice and from Liberty. Our concern was to consider the alternatives to extending the 28-day period. Was it true, for example, that we really would become the most anti-libertarian country in the world if we did so? Again, I shall use Lord Carlile as my textbook, but there were others whom I could have used. He said no, that each and every legal system is different, and that comparisons are very difficult to make. In the USA, the detention period is not two days at all. He said that the US Attorney-General has executive witness-detention capabilities and that they can hold people for up to a year.
I am interested in that point. Did Lord Carlile inform the Committee that the US federal material witness statute has been held by the federal court in Idaho not to apply at all to suspects?
As the hon. Gentleman will guess, Lord Carlile did not make that statement to the Committee. However, he did make statements that many of us checked, including the statement that we are not the most anti-libertarian country at all. We compare very favourably with others. The other statement that I would make quite determinedly is that many of the countries that we compare ourselves with, such as Canada or Australia, most certainly have not faced the hideousness of 15 very serious terrorist attempts, and most certainly have not seen 52 of their citizens die and 800 seriously affected as a result of terrorism. It is not true that comparisons are easy. I do not choose to make them; most particularly, I state that they should not be made.
My hon. Friend does not realise that there was an attempt not so very long ago to kidnap the Canadian Prime Minister. In Canada, there is a one-day detention period—one day alone.
I did know about the Canadian Prime Minister, but I forgot about him. Perhaps I should not have done.
We also looked at post-charge questioning, because, again, it is a crucial issue. Is it true that we could question people post-charge and get the same quality of information? The response was that in the view of many in the legal system, which, again, includes Lord Carlile, post-charge questioning is certainly not a silver bullet. They believe that it will make a limited difference to cases. We persistently asked Lord Carlile about threshold testing, which was an important issue for us. He said:
“It is desirable in as many cases as possible that people should be charged with something approaching the criminality of which it is reasonably suspected that they are guilty and on which a prima facie case will be presented.”
When we asked whether it was more capable of supporting a person’s civil liberties, he replied:
“I do not see that as being any more human-rights compatible than a properly judicially supervised extended detention period that results in proper charges being brought on a sound basis, without the necessity to use the threshold test, which is undoubtedly second-best, as the Crown Prosecution Service recognises.”––[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 122.]
We were concerned to see the evidence that we took factually represented.
Did the hon. Lady also consider how many innocent people might be held for 42 days and then released without any charges being brought? In her view, how many such people would be a reasonable number given her estimate of the extent of the threat?
The right hon. Gentleman makes an important point. Of course, nobody in this House would ever want an innocent person to be held. To date, we have not seen any innocent person being held—[Hon. Members: “Yes, we have.”] All right, up to 14 days, but not 28 days. The fact is that we face exceptional circumstances involving horrific terrorist activities. Hon. Gentlemen decry the fact that I had forgotten for a moment that six, or perhaps three people were held beyond 14 days. None of us is perfect; I wish that we were. As we have seen, the terrorist only has to be lucky once, so sometimes the balance of the law must clearly be seen to protect the individual.
I entirely agree that none of us is perfect, but does my hon. Friend agree that it would be a highly imperfect system that led to even relatively small numbers of persons being held for up to six weeks, then released without charge back to their communities feeling troubled, bitter and angry? Would not that be entirely counter-productive in terms of community cohesion and getting the intelligence that is the only way in which we will effectively fight terrorism?
If I thought for one moment that the Bill would result in that scenario, I would not support the Government, but I do not believe that it will.
As my parliamentary neighbour, I hope that my hon. Friend will consider the prospect that in supporting this measure there is a danger that she will erect a wall of resentment between herself and her Islamic community and that that wall may extend next door between me and my Islamic community—and I do not want that.
My hon. Friend says it as it is. To date, I have not received one letter from my Muslim community. I have spoken to the imams, who have no reservations about this—and let me tell him that if they had, they would have expressed them.
The fact is that I really do not need any other Member to tell me my responsibilities. I have made sure that my community is comfortable with this measure. Is it enthusiastic? Of course it is not. I would not claim that it was, but I do not need any Member to tell me where my responsibilities lie. I want to end—
Will the hon. Lady give way?
I have tried to conclude three times, Mr. Deputy Speaker, but here we go.
I am grateful to the hon. Lady. Some of her hon. Friends have raised concerns about the legislation’s impact, if it goes through. I ask her to reflect on the views of a former Metropolitan Police Commissioner, Lord Condon, who said
“If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women—to all other intents and purposes, they are good people—to be misguided, brainwashed and induced into acts of martyrdom.”—[Official Report, House of Lords, 13 December 2005; Vol. 676, c. 1175.]
Is that not the point that her hon. Friends were making a moment ago? Does she not share those concerns? Does she not attach any importance at all to the views of the former head of the Metropolitan police?
As I just said, I have spoken to my Muslim community. I was very clear about addressing the issues and to date, no member of it has made a statement that the measure would ratchet up concerns. The hon. Gentleman is right to present the case, but I am saying to him that I do not have that problem. Perhaps Stockton, South is an exception to the rule; I do not happen to believe that it is. I would like to end—
(Birmingham, Selly Oak) (Lab): Will my hon. Friend give way?
I think that it is time for me to end. I have attempted to do so four times.
I end by quoting from a book that I read some time ago and recommended to the Public Bill Committee. It is a clear, well-executed book, called “Celsius 7/7” by the hon. Member for Surrey Heath (Michael Gove). I believe that what he says in that book needs at least to be heard, even if it is not agreed with. He says:
“We cannot be serious about defending liberty unless we ensure, through proper parliamentary accountability, that legislation designed to deal with a specific terrorist threat is on the Statute book for only as long as the threat exists. But we also cannot be taken seriously when we try to defend democracy unless we ensure that we show resolution in framing the laws necessary to prevent terrorists operating freely.”
That is my position, which is why I shall vote with the Government tonight.
I rise to support Government amendments Nos. 4 and 5, which seek to delete the 42-day requirement from the Bill. Amnesty International published a report entitled “2007: The State of the World’s Human Rights”, in which Amnesty’s general secretary, Irene Khan, says that fear of immigrants, fear of crime and fear of terrorism are used by states to suppress basic human rights. She develops that argument by saying that giving one group of people security at the expense of other people’s rights is bound to fail, and that many anti-terrorist measures and laws have failed because they do not give that point enough consideration. They have
“done little to reduce the threat of violence…and much to damage human rights and the rule of law”.
I regret to say that that those words are a reflection of what has been happening under this Government in this Parliament for some years now. Although the Government have decided that Ministers will no longer use the term “the war against terrorism”, the need remains to ensure that we continue to feel under threat.
We must remember that each and every one of us has a right to freedom, and yet the Government are prepared to weaken it—a task that is far easier against the background of terrorist and violent threats. Everyone knows that Government policies—whichever Government they might be—tend to be created in the tabloid press, and it is difficult to have a meaningful discussion on security and penal policy without sinking deeply into the quagmire of superficial politics.
In saying that, I also readily acknowledge that the Government have a very difficult job to carry out. No one here would demur from the view that one of the prime duties of any Government is to ensure the security of their citizens. However, that raises the question of the balance to be struck between that obligation and the rights of the state. That balance is key to this whole debate. As Sir Ian Blair told us in evidence to the Public Bill Committee:
“Your job is to balance civil liberties against the threat. That is what Parliament is engaged in.”––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 22, Q26.]
I venture to suggest that today’s problems cannot be addressed effectively by simply eroding civil liberties.
There has been enough talk about balancing the freedom of the individual with the security of society. Of course that is important and it must be central to our debate. However, many people believe that the scales have tipped far too heavily towards the state’s interests, at the expense of the guaranteed rights that we have recognised for a century and more—rights and freedoms that meant that we stood out as an example of a civilised system that provided for the interests of the individual, alongside the interests of the society or state. That used to be the situation, at any rate.
We saw that keeping individuals under lock and key without going to court was inflammatory in Ireland and that it led to an intensification of the problems there in the 1970s and 1980s. I am not saying that the proposal for 42 days equates to internment, but clearly the same tensions come into play, negating rights that were guaranteed and increasing the number of those who turn to violence. It appears that the Government have simply not learned the lessons of history. I regret to say that that failure could be very expensive, although I hope that I am wrong about that.
To be fair, the Minister for Security, Counter-Terrorism, Crime and Policing has attempted to create a consensus on the issue over the past few months, and his office has been open to Opposition Members. The Bill contains some things that are helpful and acceptable, and they will be supported alongside certain safeguards. However, I am afraid that those on both sides of the Public Bill Committee came to the conclusion that there were misgivings about the Bill and about the mistakes made.
The Minister of State did his best to build a consensus, so it is surprising to think that a consensus had been built up over the past two years on the 28-day limit. Many of us who were vehemently opposed to 90 days were eventually persuaded, pragmatically, to fall in line with 28 days. Now, a mere two years later, that consensus has sadly disappeared. One must ask whether there is now a compelling and urgent reason to revisit that decision—a decision of the whole House that was arrived at by consensus. Sadly, I do not think that such a case has been made at all, and I say that with respect to the Minister of State and the Home Secretary. In all the discussions that we have had in the past seven or eight months, we have not seen any evidence whatever to justify the move, let alone any compelling and/or urgent evidence.
Several people have been quoted in this debate and several Committees and non-governmental organisations have been referred to. I shall avoid all that, as it can be taken as read. However, it is telling that both the Home Secretary and Sir Ian Blair say that there have been no cases in which the full 28 days were necessary. I have no desire to reel off all the quotations—I am sure that they are on the record—but hon. Members should think of the perfectly innocent people who are brought in and arrested. There seems to be an awful presumption among some people in the House that everybody who is arrested is, by definition, guilty. Good God, we have not reached that stage yet, and I hope that we never do.
We must also think about something that has not been mentioned hitherto—the effect of keeping an innocent person under lock and key without advising them of exactly what charges they are facing. I have represented clients as a solicitor and a barrister. I have seen innocent people in custody being questioned for three or four days and it has left an indelible mark on several of them. It has caused psychological problems in some cases. Let us magnify that up to 42 days and see where we go from there. How will those people’s nearest and dearest feel when they return home totally innocent, but wrecked psychologically?
I emphasise that the hon. Gentleman makes a key point, particularly in the context of concern about a very small number of people being able to wreak a large amount of damage. Will he bear in mind that, given the policy on prisoner releases, putting someone in jail for six weeks is equivalent to sentencing someone found guilty in a criminal court to three months in prison and releasing them halfway through?
The hon. Gentleman makes his case strongly, and I am obliged to him for that.
Let me mention another issue gained from my experience—and I know that other people in the Chamber have practised criminal law. There is also a very real risk of false confessions being drawn out after a long period in custody. If that happened, it would not be the first time. However many so-called safeguards are in place, the person is still under lock and key and still has to live with himself or herself for 24 hours a day.
I imagine that the hon. Gentleman will recall the historic cases of miscarriages of justice—the Guildford four and the Birmingham six—which were all based on confessional evidence. In the case of the Guildford four, the evidence was drawn while they were in detention under the prevention of terrorism Act.
That is absolutely right and it took many years to try to put things right there. Clearly, we do not want to go into that area again.
There seems to be quite a lot of evidence that detention, particularly in pre-charge detention conditions, is extremely stressful for an individual so detained. In the course of inquiries I made into the background of the provisions, it was brought to my attention that in at least one case, there had been concern about the mental health of the person detained.
I shall give way, but I hope that it will be the final time.
I thank the hon. Gentleman and I agree with what he is saying. Does he agree that raising questions about compensation almost makes the situation worse, not least in respect of people who have been kept in custody for murder and then released without charge? The whole thing will bring further chaos into the situation. Does the hon. Gentleman agree that it is wrong to suggest that compensation can somehow make up for six weeks of someone’s life and the changes to it that those weeks will bring?
That is absolutely right. Offering compensation seems to me a tacit admission that there is a fault with the Bill.
I mentioned pragmatism earlier. Let me be perfectly honest and say that, despite my regard for civil liberties, if proper, urgent and telling evidence had been produced of the need to bring in the proposed law, I would seriously have had to reconsider the position, take off my civil libertarian hat or wig and start thinking carefully. However, nothing of that sort has been produced, including during the whole period of the Public Bill Committee. I have heard nothing to persuade me even the slightest way towards the Government’s view. We know that the Law Society has made its view clear, as has the Joint Committee on Human Rights. As I said, I shall not mention the various bodies that have provided evidence, but I stress again that when it comes to evidence, I have seen nothing of a persuasive nature.
When the Home Secretary was interviewed on Radio 4 a few months ago, she admitted that she had no idea at all how many days were required. I intervened on the right hon. Lady earlier, but I am none the wiser. If, as we are told, the alleged plots are becoming more and more complex to unravel, why is the magic figure now half that of the previously recommended 90 days? Can anyone explain that?
In evidence to the Public Bill Committee on 22 April, Sir Ian Blair said:
“There is no magic figure; that is absolutely fair.”
He went on:
“Our job is to suggest that sooner rather than later something will happen that will make 28 days insufficient. The Government have suggested 42 days and that is a matter for Parliament to consider.”––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 21-22, Q26.]
I say to Sir Ian Blair that that is hardly evidence on which I shall act to erode civil liberties.
The hon. Gentleman is making a powerful case. Does he agree that, under this procedure, arresting someone who was a terrorist could be a disaster for the anti-terrorism campaign, because there might be no evidence or knowledge of what that terrorist had been up to? They might not know the network and all the other members of it would be alerted by that single arrest. Evidence would then get destroyed, which would make things very difficult.
Again, that is a strong point and I am obliged to the right hon. Gentleman for making it.
Today, we find out whether the debate is either well timed or an act of sheer desperation. We heard—
Will the hon. Gentleman give way?
Not at the moment.
We heard from Lord Stevens that there is a real need for this measure and that some evidence is now coming through. I ask the question: are the Government using Lord Stevens as some kind of outrider to avoid having to “sex up” evidence, as they did with the Iraq dossier? I do not know, but I would not put it past them.
That was only 45 minutes.
Yes, that is quite right. As a responsible Member of Parliament, I say that if any evidence had been produced to me, I would have reconsidered. I would have looked carefully at the measure.
I thank the hon. Gentleman for giving way. Is the evidence that he requires witnessing somebody being released after 28 days with the police having been unable to find any evidence, and that individual committing an atrocity—blowing up a city centre, a tube station or an aircraft?
Is the hon. Gentleman suggesting that a control order would not immediately kick in, with intensive covert and overt surveillance? That is a preposterous notion.
To add to what the hon. Gentleman is saying, the point that has just been made applies to any number, whether it is 42 or 90.
Indeed it does.
I shall deal briefly with the safeguard—the parliamentary scrutiny. It is a complete fig leaf and a waste of time, for two main reasons. If we are given merely an outline of the case and the need for an extension on the view of the Secretary of State, Parliament will nod it through and vote yes. What if the matter goes to appeal and a court says no? Where will we be at that point? That is one of the problems involved with dressing Parliament up in a quasi-judicial function—a constitutional experiment that is doomed to failure.
On the other hand, if we are given all the details, as we arguably should be if we are to supervise the thing properly and scrutinise it, that will make a fair trial impossible. In the rush to try to get Back Benchers on board, the Government have made a complete mess of this part of the Bill. It is not even logical, let alone workable. It is nothing other than a fig leaf and, in the words of the Joint Committee on Human Rights,
“a virtually meaningless safeguard against wrongful exercise of the power.”
“By definition, pre-charge detention is detention in circumstances where no evidence has been offered to charge a suspect with a criminal offence. No amount of additional parliamentary or judicial scrutiny can hope to overcome the fundamental lack of fairness caused by detaining a suspect without charge for ever increasing periods of time”.
This part of the Bill is flawed. I have not touched on some of the opinions of various informed people on whether it is compliant with human rights, but I will not go down that road now. I know, however, that the Government have their opinion, and it is a moot point to say the least. Whatever we legislate and whenever we legislate, we should do it proportionately. This part of the Bill is not proportionate in any way. It is bad law, it has no evidential basis, it is unconstitutional and it is downright wrong. It has no place in any modern democracy.
I want to focus on new clause 20 and amendment (a). Like many Members, I was a teenager in the 1970s. I was thoroughly aware—as we all were—of the terrible events involving the IRA in Northern Ireland, and, of course, the appalling miscarriages of justice suffered by the Birmingham Six and the Guildford Four. Similarly, like so many others here, at the time of both 7/7 and 9/11 I had friends and associates in the eye of the storm. Those experiences, and the history of legislation generally, have convinced me that we must do our best not to legislate in hot blood, and not to make hasty decisions in particular circumstances.
I do not mean in anything that I say today to decry anyone’s commitment to security or liberties, or to be soft on terror. This is not some macho or self-righteous exercise. Equally, however, I do not want the Bill to become a victim of mission creep, as has happened in other contexts recently. Two or three years ago, for instance, we passed legislation relating to the Regulation of Investigatory Powers Act 2000 which, in my view, is potentially going down that road.
That is why I want to concentrate on new clause 20. It is because we prize liberty so much that the nature and scale of the threat, and the triggers to it, are so important. They are important not merely to the making of a case to convince us here today or the House of Lords tomorrow, but because they must convince, and appear appropriate to, the broader communities in the country—not just ethnic communities, but others—who must be kept on board in any democracy and in any legislation that we pass. Public scepticism about politics and politicians will always be prevalent, and is arguably more prevalent now than for many years. That is why we need to go the extra mile to convince people, and to spell out why the Government want this reserve power.
Ideally, I should like to hear more details from Ministers about the links between what might happen here in the United Kingdom and what might happen overseas. There has been some reference to that this afternoon, but I want to hear more. As for the broader issue of the sort of incident that would cause the reserve power to kick in, the Home Secretary has given a number of further details, both in response to an interesting and useful intervention from the hon. Member for Castle Point (Bob Spink) and in the letter to the Joint Committee on Human Rights.
Let me return to one of the central questions that have danced around today’s debate: the question of whether we as parliamentarians would have a role, or a right to take a view, were the reserve power to kick in. I heard what was said by my hon. Friend the Member for Hendon (Mr. Dismore); I have also spent some time trying to follow the twists and turns of the various reports from the Joint Committee and the most recent letter that he has received from the Home Secretary. I agree with him that our discussion has featured many red herrings, many misleading comparisons between inappropriate jurisdictions, and the bandying of many not very robust and, frankly, intellectually dishonest arguments by Members on both sides of the debate. However, I must say, with all respect to my hon. Friend and his Committee’s report, that just as I do not want the Bill to lead to mission creep, I do not want to see it result in judicial creep. One of the issues that we must address this afternoon is the oxygen of publicity, and how it will affect any reserve powers given to the House.
I am not a lawyer, but I am an historian, and I know something—although perhaps not as much as I should—about the doctrine of the separation of powers. I am rather mystified by the blithe assumption made by several hon. Members that we have a great doctrine of the separation of powers in this country. We certainly do not have it as it exists in the US.
There is an enormous inconsistency in this matter, especially among some Opposition Members. They often complain that Parliament does not have a strong enough role in legislation, but when we are given a stronger role, they seem unwilling to take it up. It is not a question of excluding judges and lawyers—indeed, we have been given chapter and verse today about how they will have a role in the process—but I do not believe that they should be in the driving seat on this issue.