[Relevant documents: The Nineteenth Report from the Joint Committee on Human Rights, on Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HC 394, the Second Report from the Committee, on Counter-Terrorism Policy and Human Rights: 42 days, HC 156, and the Twentieth Report from the Committee, on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 554.]
I beg to move,
That the draft Terrorism Act 2006 (Disapplication of Section 25) Order 2008, which was laid before this House on 21st May, be approved.
The Government agreed during the debates that we had during the passage of what became the Terrorism Act 2006 that there should be a requirement for the annual renewal by Parliament of section 23 of the Act, which extends the maximum period of detention of terrorist suspects from 14 to 28 days. The order before us, therefore, disapplies section 25 of the Terrorism Act 2006 for a period of one year beginning with 25 July 2008, thereby extending the maximum period of pre-charge detention for terrorist suspects of 28 days for a further year.
Without rehearsing our deliberations on the most recent Counter-Terrorism Bill, I can say that, as the House will know, nothing in it impacts on this provision. Indeed, the provision for a specific extension beyond 28 days—in grave and exceptional circumstances—is predicated and built on the annual renewal of 28 days. The measure is important in itself, and in the context of the Bill. Pre-charge detention has been the subject of considerable debate over the past 12 months in this House and, in the broader sense, in the Select Committee on Home Affairs and the Joint Committee on Human Rights. I do not want to go over those debates here, but it is worth reminding ourselves why Parliament agreed to the exceptional 28-day limit.
As the House will be aware, terrorist investigations can be hugely time-consuming and the increase from 14 to 28 days was, the House judged, necessary, primarily as a result of greater use of encrypted computers and mobile phones, the increasingly complex nature of terrorist networks that have to be investigated and, not least, the increasingly international nature of terrorist networks, meaning greater language difficulties and a greater need to gather evidence from abroad. The safety of the public is, of course, paramount and it is the responsibility of the Government and security and law enforcement agencies to protect our citizens from the threats posed by terrorism.
The first priority must be to stop terrorist activity taking place rather than dealing with its consequences. However, where we do identify those who are engaged in terrorism, we need to ensure that we have the right tools to investigate and prosecute those involved. In much police work, the investigation takes place after a crime has been committed. In such cases there will often be a victim, possible suspects, witnesses to the crime and forensic material from the crime scene. The police will investigate the crime and may arrest the suspect when they have already gathered a considerable amount of admissible evidence. In such cases, only a few days may be needed to question the suspect before a decision is taken on whether to charge them for an offence.
The House knows that terrorism cases are different, but none the less, to the full extent possible, they should be dealt with in the normal and routine context of our laws. However, because of the severe consequences of a terrorist attack, the police and security services invariably need to intervene before it takes place. Critically, they may need to intervene at a very early stage in an investigation, before they have had the opportunity to gather any admissible evidence, and on the basis of limited intelligence about who and what is involved. As Assistant Commissioner Bob Quick said recently, in his evidence to the Counter-Terrorism Bill Committee:
“In some investigations, we have seen that”—
attack planning activities—
“materialise so quickly that on public safety grounds we have had to act pre-emptively before we have had the opportunity to exploit pre-arrest evidential opportunities. That places a huge burden on the senior investigating officer.”––[Official Report, Counter-Terrorism Bill Public Bill Committee, 22 April 2008; c. 14, Q8.]
Few would disagree with the need to pre-empt such attacks. That is why UK legislation has, since 2000, provided specific powers of arrest and detention in relation to terrorism.
The provisions for extended pre-charge detention for up to 28 days in the Terrorism Act 2006 take account of these practical and unique difficulties, and the decision to increase pre-charge detention limits from 14 to 28 days has, I believe, been justified by subsequent events and it means that we have been able to bring forward prosecutions that otherwise might not have been possible. Indeed, both the police and the Director of Public Prosecutions have made it clear that the 28-day limit is necessary. From when the power came into force in July 2006, six people have been held for between 27 and 28 days, three of whom were charged.
We accept that the Government should endeavour to provide detailed statistical information on the use of the 28-day limit in advance of the renewal debates and, once the joint Home Office-police review of pre-charge detention statistics has been completed, we expect to be able to provide more detailed information on the outcome of detention, including the charges brought against those charged. Let us be clear: the application for extension is a rigorous process. A Crown Prosecution Service lawyer makes the application for extensions beyond 14 days, and the senior investigating officer is present. Defence solicitors are provided in advance of each application with a written document setting out the grounds for the application. The applications are usually strenuously opposed and can last several hours. The officer may be questioned vigorously by the defence solicitor about all aspects of the case.
Some have accused the police of holding a suspect for the maximum period simply because it is available. I have to say that that is abject nonsense. The police investigate as quickly as possible. They must do so, and they are obliged to do so under the law. Nothing in the Terrorism Act 2000, or afterwards, changes that. The essential principle of arresting someone with a view to charging at the earliest opportunity pertains under terrorism law, as it does with all other law. The police investigate as quickly as possible—they must do. They would not detain anyone for longer than was absolutely necessary, which has been clearly demonstrated by the fact that only six people have been held for the maximum period since the power came into force, and none has been held for the maximum period since the 28-day limit was renewed last year.
Indeed, when applying to the court for an extension of detention, the police and CPS have to present substantial evidence for further detention. A judge may not grant extensions of detention where he or she is not satisfied that the investigation is being pursued diligently and expeditiously. Judges can, of course, grant fewer than the full seven days’ extension requested—they have done so—and, indeed, they can grant no extension if they feel further detention is not justified.
In an evidence session of the Public Bill Committee on the Counter-Terrorism Bill, Sue Hemming, the head of the counter-terror division in the CPS, made it clear that that view prevails. She said:
“We certainly did not keep people in unnecessarily. There has to be a certain amount of time for the police to investigate… If you arrest people, the police have to look at what the plot is, who is involved and what the evidence is. As with any case, the pre-charge detention time has to allow a certain amount of time for the police to investigate and question. I seriously dispute any allegation that we kept people in any longer than we had to.”
In the same session, Ken Macdonald, the Director of Public Prosecutions said:
“The idea that we have sufficient evidence after 14 days, but, for some reason best known to ourselves wait until days 26 or 27 to charge is wrong.”––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 55, Q141.]
Those who keep putting about the myth that somehow those who were held for a period closer to 27 or 28 days were incarcerated while the prosecution and the police twiddled their thumbs or did some knitting are palpably wrong. I deprecate the comments of Liberty, which were utterly wrong, on the eve of the recent consideration of the Counter-Terrorism Bill on fact and fiction about the existing 28-day pre-charge detention limit. Liberty spoke rather cleverly, as it does, about the Government and the police—and, I presume, the CPS and the DPP—sexing up the evidence. It is not for anyone, in the House or established pressure groups, to second-guess after the event the investigating, prosecuting and policing strategy of the police or the CPS and DPP during frenetic days of frenetic activity. It is a shame when that happens.
I am afraid that a former Member, David Davis, perpetuates the myth on his website, and that is a matter for profound regret. By all means let people take up the matter with me or with the Government—the politicians and those who argue policy positions—but I deprecate people attacking, by implication if nothing else, the integrity of our police and the prosecution service.
Liberty also issued a much less duplicitous document, entitled “The Real Consensus”, with a sub-heading, “Extensions Beyond 28 days: Unnecessary and Counter-productive”, which, for at least today’s debate, I will pray in aid. I did not do that last week or the preceding week, but a series of quotations, with which hon. Members will be familiar, emphasise the consensus that has emerged on 28 days. Whatever our view of the Counter-Terrorism Bill, that broad consensus, albeit flaking round the edges in some quarters, about 28 days still exists and commands the House’s support.
To put the record straight, I cannot speak for anyone but myself, but I have never once questioned the need for 28 days. I proposed it and it was agreed in November 2005. I therefore do not associate myself with any remarks about 28 days being unnecessary. However, I emphasise that the consensus that was reached on 28 days remains, and there is no justification for moving to 42 days.
Order. I know that the Minister will resist the temptation to go down other alleyways.
I shall, of course, Mr. Deputy Speaker. I am grateful to my hon. Friend for his support for the renewal of the order. I share his view that there is a consensus on 28 days, except for extraordinary and exceptional circumstances. I shall say no more than that.
I genuinely and sincerely believe that for all hon. Members, getting the balance right between individual freedom and collective security must always be at the heart of what we do. I think that most hon. Members would agree that there is no contradiction between pursuing our counter-terrorism objectives and defending our freedoms and civil liberties. Fourteen days remains the only permanent, statutory maximum provision for pre-charge detention, and 28 days—the subject of the renewal order—is for exceptional circumstances. However, that exceptional power continues to be necessary as a result of the growing scale and complexity of terrorist investigations.
All hon. Members appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter it. Terrorism is a huge international challenge, but it is a particular challenge for democracies, which must strive to protect individual liberties while ensuring collective security. It is vital to strike the balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively, thus enabling the police to deal with the complexity of modern terrorism investigations. The order seeks to do that, and it is right to make it the subject of an annual debate. I say with regret that, given the nature of the threat, the absolute need for section 25 of the 2006 Act to be disapplied remains. I hope that hon. Members agree, and I commend the order, which achieves that purpose, to the House.
We will not oppose the order. The Minister’s speech contained much good sense and I agree with much of what he said. Now is not the time for a rehearsal of the powerful arguments for and against the extension to 42 days; we are here to discuss 28 days. I was struck by the Minister’s remarks about a consensus; he even said nice things about Liberty and its comments on 28 days. I want to sign up to that spirit of consensus about 28 days, and support the Minister on it.
It is worth stating the obvious: the need for Parliament to renew section 23 of the 2006 Act annually demonstrates that the extension from 14 to 28 days is already an exceptional power. We must scrutinise it annually because it is such a dramatic departure from normal practice in this country.
As I said, Her Majesty’s Opposition will not oppose the order, which keeps the maximum period of detention without charge at 28 days. We do not oppose it because there is a consensus, as the Minister observed, but it is based on the evidence currently available to us. I would like to place on record not only the view of my former right hon. Friend the Member for Haltemprice and Howden but that of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). They both made it crystal clear, in the same terms, that in future, 28 days must be tested on the evidence available every time we test the proposition for it—in other words, annually—so that the figure is not set in stone for all time or even for a reasonably long time. It must be examined each year in the light of evidence available. That could lead to the House agreeing to a different figure.
The hon. Gentleman speaks about a consensus. I presume that no one will vote against the order tonight. Moreover, no one in the other place, despite the many differing views there, voted against 28 days on the basis that it was too long. There is clearly a consensus on 28 days in both Houses.
The hon. Gentleman is right. There is a consensus, given the evidence currently available. That may change. Let me give some evidence to support the hon. Gentleman’s remarks and those of the Minister, which also reflect my view, about the consensus on 28 days, which has been agreed by the House and the other place.
In evidence to the Select Committee on Home Affairs, the Director of Public Prosecutions said:
“Well, we welcomed the increase to 28 days and we felt that a period of 14 days was not sufficient. It seems to us that 28 days has been effective and has provided us with powers, if you like, supervised by the courts, which have been useful to us as prosecutors in making appropriate charging decisions within that period. We are, on the basis of what has occurred since then, satisfied with 28 days. We have not had any cases which would require a longer period than that”
The former shadow Home Secretary recently received a parliamentary answer in which the Home Secretary stated that
“from 20 January 2004 to date, 11 individuals have been held for over 14 days pre-charge detention, six individuals were held for the maximum 27-28 days, of which three individuals were charged, and three individuals were released without charge.”—[Official Report, 2 June 2008; Vol. 476, c. 745W.]
The figures showed that of the four suspects held without charge for up to 20 days, all were charged.
Twenty-eight days is longer than we would like to see in our common law—when I say “we”, I mean most of those who want to scrutinise these propositions, which have implications for civil liberties. Twenty-eight days is a long time; indeed, it is certainly longer than in other parts of the western, industrialised, democratic world. None the less, we believe that the extension from 14 days to 28 days was right, on the evidence available since it came into effect, including the evidence as of today.
The Minister and hon. Members will be relieved to hear that I will not recite anything about the extension to 42 days that the House voted on recently, although not because I shy away from the arguments that my friend and colleague, the former Member for Member for Haltemprice and Howden put forward; indeed, there were powerful and passionate arguments on both sides. Rather, before closing my remarks, I would like to ask a couple of questions about two issues mentioned in the debate held this time last year, when my hon. and learned Friend the Member for Beaconsfield, now the shadow Home Secretary, stood in my position and debated the issue with the Minister.
The first question relates to concerns raised about the operation of what was then the recently introduced code H of the Police and Criminal Evidence Act 1984, dealing with terrorist cases. It seems moderately clear that the rules designed to cover the detention of a person for what is usually 24 or 48 hours are not suitable when someone is in custody for a much longer period. Can the Minister share his thinking, or any evidence, on how frequently individuals have been transferred to prison from police cells during the period of detention, and on how the system has operated in bringing them back to police stations for further interviews?
Other concerns were raised about how code H could in theory allow for a person to be questioned for hour after hour, over a period that could extend to 28 days. I am sure that that has not happened in practice. However, can the Minister give us his analysis of how the code is operating? There are, I am sure, breaks for rest. Could he shed any light on that, provided that doing so would not breach any operational or national security considerations?
The reason that is important is not a wishy-washy, bleeding-heart liberal reason, as some outside this place might characterise my questions—I am sure that the Minister would not characterise them like that—but because of fears that any statement made in a period running up to 28 days could be challenged by defence counsel at any future trial, on the basis of a suggestion that coercion had been involved in the defendant’s giving of evidence, because of excessive and prolonged questioning, which had perhaps taken place without the benefit of any requisite breaks. That concern is thrown up by what, last year, was the relatively new code H under the 1984 Act.
My second and final question also relates to something that was raised in last year’s debate, and is about how longer periods of detention without charge might allow for press speculation that made the prospect of a fair trial difficult or impossible. The Minister said that he hoped that the Crown Prosecution Service would put out a paper on that issue. Can he give us an update on that, and on what his thinking is on the subject?
Both my questions concern the operation of the regime to which the order relates. To conclude, I hope that we can get away from the idea that those who propose the longest period of detention without charge are the toughest on terrorists. Her Majesty’s Opposition believe that the House must be robust in doing our best to protect the security of the people in our country. However, that must always be balanced—this is always a difficult judgment—against our British values, parts of which rely on an adherence to civil liberties, as one of our principal weapons in defeating those who wish to harm us. It is in that spirit of friendly inquiry to the Minister that I close my remarks.
I rise in part to speak to the Joint Committee on Human Rights reports that have been tagged to today’s debate, all of which start from the basic premise that we have a duty to protect the public from terrorism and violence.
As has been said, it is important to recognise that the 28-day extension was to be an exception and that, as my right hon. Friend the Minister said, it amounted to a compromise. If we are considering extending that exception, we have to proceed with caution and consider the matter properly, bearing in mind that the power has not been used for at least a year since it was last renewed. It is Parliament’s duty to scrutinise the Government’s request, as put forward in the order.
I for one would not try to second-guess the Government’s assessment, although that is not primarily because of the reason advanced by the hon. Member for Bury St. Edmunds (Mr. Ruffley) about evidence to support the Government’s case; rather, it is simply that we have practically no evidence at all, one way or the other, of how the 28-day rule has operated in practice, on the very few occasions on which it has been used.
Of course, we have plenty of evidence about the general level of the terrorist threat, but that is a red herring in this debate, because the 28-day power comes into effect only once a plot has crystallised and those involved have been arrested, and once it has been shown that the 14-day period is inadequate for their questioning. What we need to consider is not the general level of the threat, but cases where people have been arrested, questioned and ultimately charged.
To enable Parliament to review the issues properly and effectively, we need a detailed and meaningful analysis. I had hoped that the independent reviewer would be in a position to provide that. The Government said that it was the intention to provide the independent reviewer’s report before the renewal debate. They are as good as their word, because it was published this morning, although that has not really given hon. Members enough time to scrutinise properly what the independent review has to say, never mind the time for a Select Committee such as mine or the Home Affairs Committee to read what he had to say. I hope that in future the Government will make the report available 28 days before the debate, as we have recommended, so that it can be properly considered. Indeed, it was a pity that the report was not available for the debates a couple of weeks ago, because the independent reviewer has brought forward useful information for both sides of the argument, as it were, on 42 days.
We now have the independent reviewer’s report, but he says nothing at all about the use of the 28-day procedure. In his 2006 report, he did not give any detail at all—not even the number of cases—about the 28-day cases in that period. In paragraph 103 of his report, he says:
“I have not been asked by Ministers to provide a detailed analysis of this system. It would be difficult for me to do so in any meaningful way without becoming effectively embedded in some cases from arrest to verdict, to gain the full picture. This has not been part of the reviewer’s tasks, but could be included if required by Parliament. I should welcome clarity as to whether this is required”.
I am sure that we would all welcome clarity on that issue. Someone needs to get into these cases to find out what has been going on, so as to avoid the kind of speculation that my right hon. Friend the Minister says is coming forward from Liberty’s putting two and two together to make five about what has been going on. The only way in which we can answer these questions is by having an independent person who can get into the meat and find out what has gone on.
My right hon. Friend has indicated, in response to our recommendation that there should be an detailed annual report from the Home Secretary, that the Government will put a memorandum in the Library containing relevant information, such as the breakdown of detention periods and the charges that have been brought. In fact, we have no information on any of the cases from the past two years, except for the fact that the power has not been used at all since it was last renewed a year ago.
We need to have some facts, however, as is made clear in Lord Carlile’s report. We know that six people have been held for the maximum period, as my right hon. Friend said, and that three have been charged and are awaiting trial. That obviously means that three were released when they came up against the 28-day wire. Once the cases that have been prosecuted are over, we shall need to analyse them to find out what evidence was available and at what stage.
My right hon. Friend has attacked Liberty for saying that the charges should have been brought earlier. It may well be that those individuals could have been charged within 14 days on the threshold charge basis, but that the Crown Prosecution Service decided to hang on to see whether it could get sufficient evidence to bring a full code charge within 28 days. I am not saying that that is right or wrong as a factual analysis, or indeed whether it is desirable to hold people longer in order to bring a full code charge as opposed to a threshold charge. We simply do not know. In future debates on renewal—assuming that we have such occasions—we need to be able to discuss whether it is better to hold people longer to get a full code charge than to charge them on a threshold basis at the earliest opportunity. That is a debate that we ought to have in Parliament as part of the way in which these cases are dealt with. As Lord Carlile says, one of the problems with a threshold charge is that it could amount to an abuse, although in practice I do not think that that has been the case, as my Committee noted in its previous report on the 42-day issue.
We need to know when and how often people are being questioned, although I accept that that is not conclusive in relation to the need to hold someone for a particular period. Most of an inquiry is taken up not by questioning but by other activities such as breaking down computers, analysing phone records and making inquiries overseas. The fact remains, however, that we need to know the answers to these questions. The hon. and learned Member for Beaconsfield (Mr. Grieve) gave us some figures on that when we were looking at the post-charge questioning issue a couple of weeks ago. On that basis, people were not questioned for any great length of time in the 28-day period, if his figures were right. We need to know what was going on in that regard. We also need to know what charges were ultimately brought, the reasons those charges were chosen and, ultimately, whether the individuals were convicted. That is the kind of detailed, qualitative analysis that we need when we are having these renewal debates, to ensure that the 28-day power is being used properly and that any exceptional extensions are appropriate.
We must also remember the three people who were not charged. There is no reason why we should not start to carry out some of this analysis of their cases now. For example, we could find out what interviewing took place and over what period, and whether the investigation was conducted with the urgency required of the system. I make no allegations about whether it was or not; I am quite happy to accept my right hon. Friend’s word that it was conducted with urgency. However, that is his assurance—
My right hon. Friend says that it is also the DPP’s assurance, and that might well be the case. However, that does not give the same guarantee as an independent assessment would give, which I think will be necessary in future to ensure public confidence that a case has been scrutinised as effectively and in as much depth as possible. My Committee would like to see an independent review, perhaps by the Metropolitan Police Authority, although the Government’s previous response to that proposal was that it would not be appropriate because of prosecution decisions. Perhaps a review by the CPS inspectorate, working with the MPA—most of these cases end up being prosecuted in London—would be a good way of carrying out a combined analysis of what has been going on behind the scenes.
There has been no assessment of the impact of the provision on individuals. We are told in the explanatory notes:
“An Impact Assessment has not been prepared for this instrument as it has no impact on business, charities or voluntary bodies.”
We are also told that the impact on the public sector is likely to be negligible. We know nothing about the impact on the individuals who have been held for 28 days: the three who were released and who were innocent, and the three who were charged. We know nothing about the impact on their mental health, their families or their employment position. The Government told us in their last letter to us that they had obtained no independent medical evidence on the psychological effects on the individuals concerned or, more generally, on what could be expected on an objective view.
It is my Committee’s view that the Government ought to obtain and make available to Parliament general advice on the psychological impact of being held without charge for such long periods and—when it is possible to do so—to provide an actual assessment of the impact on the individuals concerned, in terms of their mental health and of the broader impact on their lives. We could do that now in relation to the three who were released without being charged.
Our main concern relates to the so-called judicial hearings around the extension process. We do not believe these hearings to be fully adversarial, there is limited disclosure, and the suspect and the lawyer are excluded for much of the hearing. The focus is on whether the investigation is conducted efficiently rather than on whether there is sufficient evidence to justify the arrest and continued detention in the first place. The case of Garcia Alva v. Germany in the European Court of Human Rights sets out in detail what is expected and goes on to say:
“The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the ‘lawfulness’…of their deprivation of liberty…the court has to examine ‘not only compliance with the procedural requirements…but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention…The proceedings must be adversarial and must always ensure ‘equality of arms’ between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention…The court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information…is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice.”
The decision goes on to say that
“this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence.”
If we look at the proceedings that we now have under schedule 8, we see that it is clear, on any objective analysis, that what is now happening does not meet the requirements of the European Court of Human Rights and, by extension, article 5. It is also interesting to note that Lord Carlile, in paragraph 105 of his report, seems to agree. He says that
“judges should be permitted to intervene more and make greater demands as the length of detention is extended.”
More importantly, he goes on:
“The government should consider empowering judges to scrutinise the reasons for detention, and the adequacy of the work done to bring the case to charge, from the 7th day after arrest.”
So we should be concerned not only with the procedure and the fact that the case has been conducted efficiently, which is what we have already. Lord Carlile is saying that we should also scrutinise the reasons for the detention in the first place, which I have advocated in the House on previous occasions. The last time we debated these issues, a number of amendments were tabled on that point.
It is not true to say that these proceedings have not been challenged in the courts. They were challenged in the case of Naseel Hussein, but he was caught in a Catch-22 situation when the High Court said that it would not review the decision of a High Court judge to extend his detention. That could also have the effect of excluding a potential habeas corpus application as an abuse of process. Habeas corpus requires the person doing the detaining clearly, directly and with sufficient particularity to provide the facts relied on as constituting a valid and sufficient ground for the detention of the person concerned. It is pretty clear that the schedule 8 application does not do that, because the focus is not on the reasons for detention—which is what habeas corpus requires—but on the course of the investigation. That reinforces the point about schedule 8 not meeting the requirements of article 5 or habeas corpus.
I think that we need to see amendments to the procedure to make sure that we comply. We need to see a statement of the basis of the arrest given to the detainee and the gist of the material forming the grounds of suspicion given to the suspect. We need special advocates for the closed part of the hearing and, importantly, we need entitlement for the judge to look at whether there are reasonable grounds for the belief that the suspect was involved in terrorism in the first place, and reasonable grounds to justify the arrest and the continued detention.
I am not going to oppose my right hon. Friend the Minister today and I hope that he will see my comments in the intended light—as an attempt to make a constructive contribution to the debate. I think that we need a lot more information about what has been going on in a qualitative way in the cases that we have already seen. I also think that he needs to look at the judicial safeguards as these provisions will be challenged ultimately in the European Court and I do not think that they will stand up.
I am pleased to follow the hon. Member for Hendon (Mr. Dismore), who speaks on this issue with a good deal of sense after looking at it very carefully and thinking about it deeply. We on the Liberal Democrat Benches will not oppose this temporary annual disapplication. No one should underestimate the serious threats from terrorism and terrorists. We need to be resolute and forearmed in meeting them, but we must do so in a way that is seen to be proportionate.
Our judgment is that 28 days’ detention in present circumstances can be viewed as proportionate, given the evidence from Operation Overt, the investigation in 2006 into the Heathrow bomb plot. I accept that that is longer than any comparable common law country: Australia has 12 days—the longest—the United States two days and Canada one day as the traditional period before a writ of habeas corpus can be served. We will not oppose the need for 28 days temporarily in the UK, partly because it is widely accepted that we face a greater threat in this country than in many others—due not least to our misguided participation in the illegal invasion of Iraq, which is this Government’s sad and lasting legacy on this issue. That does not mean, however, that 28 days should be seen as permanent or that we will not oppose this in future.
As the Minister said in the debate last year, other developments such as post-charge questioning need to be taken into account in deciding whether 28 days is proportionate and appropriate. Indeed, four developments have taken place since the 28-day period was placed on the statute book in November 2005. First, we now have proposals for post-charge questioning in the Counter-Terrorism Bill. Secondly, the Chilcot report has made recommendations for the admissibility of intercept evidence in court, which our counterparts in the United States and Australia find to be essential. We look forward to Ministers’ proposals, particularly in light of the comments of Sir Ken Macdonald, the Director of Public Prosecutions, to the Public Bill Committee on the Counter-Terrorism Bill. I quote what he said, as it is relevant to the temporary extension to 28 days:
“Certainly, in other jurisdictions, they regard that material”—
he was referring to intercept evidence—
“as absolutely indispensable. The Americans told me that they could not remember an organised crime prosecution in the United States that last proceeded without intercept material. The Australians told me that people who did not use this material were not ‘serious’ about prosecuting organised crime”.––[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 48, Q124.]
For organised crime, we could certainly read terrorism as well.
The third development since we put this provision on to the statute book is that the Government have rightly put more resources into the Security Service and into counter-terrorist policing on a substantial scale. That increase inevitably reduces the need for an extension of the period of detention without charge, as greater complexity can be handled with greater resources.
Fourthly, and perhaps most significantly, there has been a substantial development in the flexibility of the threshold test, as Sir Ken Macdonald has pointed out. The Crown Prosecution Service does not need to ensure that there is a 50 per cent. chance of a successful conviction. Moreover, it is relevant in assessing Sir Ken’s margin of manoeuvre to look at the Crown Prosecution Service’s success rate with terrorist charges, which has been running at no less than 92 per cent. since the beginning of last year. Clearly, a 92 per cent. success rate after the event can and must inform the CPS about the chances of conviction before the event. It strongly suggests that the CPS has been somewhat conservative in allowing charges to be brought and can therefore have more flexibility in future. Again, that provides a strong argument for reconsidering even 28 days, let alone extending it further.
The Liberal Democrats will not oppose the extension, while recognising that the arguments in its favour are weakening as our other precautions strengthen, and we merely ask Ministers to accept that principle, as did the Minister precisely on this matter last year. Making progress on the four areas that I mentioned can make the need for lengthy periods of detention without charge unnecessary, and whether an extension beyond 14 days is necessary will warrant reconsideration before next year.
I apologise for arriving a little late and missing the Minister’s contribution, but I was here to hear the hon. Member for Bury St. Edmunds (Mr. Ruffley) speaking for the Opposition. I will be brief. Clearly, the House will pass this order and it is clearly essential that we do so in the interests of this country’s security, but I want to make a couple of points that I hope the Minister will take into account in his reply to this short debate.
The first is that we are discussing 28 days now because that was the compromise that Parliament agreed to the last time this matter came before the House. It was certainly the case before we discussed and passed 42 days a few days ago. That previous compromise was due to the hard work of my fellow member of the Home Affairs Committee, my hon. Friend the Member for Walsall, North (Mr. Winnick), who tabled the amendment that was to gain the House’s agreement. At that stage, as we all know, this was an extension of existing law. In accepting and passing this order as we doubtless will today—it seems to be agreed by all parties—it is essential that we look to two particular aspects highlighted by the Chairman of the Joint Committee on Human Rights, my hon. Friend the Member for Hendon (Mr. Dismore). I hope that the Minister will respond to both those aspects in his reply.
The first is the impact on individuals who have been held by the police for up to 28 days. We in the Home Affairs Committee took evidence from the two gentlemen who were referred to as the “Forest Gate Two” and it is important to try to get a feeling of what it was like for such people to be detained under legislation for a period of time. Their evidence was strong, compassionate and compelling. It is important that we see the impact of this legislation and this House’s decisions on individuals detained such as the “Forest Gate Two”, but I would like to go further and consider the impact on communities. I make that point in all our debates on counter-terrorism legislation.
I know that the Government are very proud of their record in providing £12 million from the Department for Communities and Local Government for proper engagement with communities—by and large, members of the Muslim communities and their organisations. It is important to view our legislation in the light of its impact on communities, as we need to carry communities with us if we are to continue to make the case—as we have to, and as the head of MI5 made when he addressed the Society of Editors last November—for dealing with a growing threat. As we make that case, we need to carry communities with us.
The second point, which was made by my hon. Friend the Member for Hendon and which I support strongly, is the need for the Government to provide more information. Obviously, the Select Committee process allows Ministers to come to the Committee and answer questions on issues of fact. I see in the House the hon. Member for Colchester (Bob Russell), another member of the Home Affairs Committee. During that Select Committee process—when we took evidence from, among others, Sir Ken Macdonald, Ministers and those affected by the legislation—we elicited information from the police on the number of people being held for up to 28 days. That was the first time we were told that nobody was held on the dot for 28 days—indeed, people were being released beforehand—but there must be a better way of getting such information to the House. That is especially important in view of Government decisions taken during the debate on 42 days to provide additional information and to seek the views of the Chairmen of the Joint Committee on Human Rights and of the Home Affairs Committee, whoever they may be in future, on any decision to extend the detention period.
Once we have accepted the principle of consulting the Chairs of the relevant Select Committees, there is nothing wrong in those circumstances with regularly providing information to the Chairpersons of those Committees, whoever they may be. Therefore, the need for us to table parliamentary questions and to have inquiries on the issue will, in a sense, not be as important, because we will regularly receive that information.
I hope that the Minister, rather than wait for another year to go past, will regularly provide that information, some of which was mentioned by my hon. Friend the Member for Hendon. It will better inform members of the relevant Committees of the number of people being detained and the reasons for their detention. I say that in a friendly way to the Minister, because I believe that he and the Home Secretary, in this difficult, dangerous and sensitive area, persisted in ensuring that so many people were consulted on the last piece of legislation to go through the House. In the spirit that the Home Secretary and the Minister have addressed the issue over the last few days, weeks and months, I hope that he will be more forthcoming with the information that he provides.
Before the Chairman of the Home Affairs Committee sits down, would he like to advise the House of the thinking of the Americans we met with regard to intercept evidence and the fact that Americans do not need 28 days? They look to Britain with some surprise because we do not use intercept evidence and we need 28 days, let alone 42.
The hon. Gentleman is absolutely right. We did indeed take evidence on that very subject when we went to Washington. As the hon. Member for Eastleigh (Chris Huhne) made clear, this was a recommendation of the Select Committee and we said to the Government, “Here is an example of a tool that can be used to find out who these terrorists are so that if you prosecute, you can have a successful prosecution.” That is why we put it forward. The Government have not quite accepted it.
When the Prime Minister last addressed the House on the issue, I suppose he accepted the principle, but he said that there were lots of practical difficulties, no doubt associated with the security services, which were reluctant to have intercept evidence used in prosecutions, but that is certainly what we were told by the Americans. I will not go down the route of whether they thought 28 days or 42 days was desirable, because that would open up another debate and I think the House has probably had enough of that over the last 10 days. On intercept evidence, the hon. Member for Colchester (Bob Russell) is right, as the hon. Member for Eastleigh pointed out. On post-charge questioning, that is exactly what the Home Affairs Committee suggested and exactly what the Government accepted.
Finally, let me make these remarks in the same spirit that the Government have approached counter-terrorism legislation over the last six months. I urge the Minister to consider this area and provide as much information to Parliament as possible, so that when we vote and decide on those critical issues, we are the best informed that we possibly can be with the information provided by the Government.
I, too, apologise for not being present to hear the Minister’s earlier remarks.
I am grateful to the right hon. Member for Leicester, East (Keith Vaz), the Chairman of the Home Affairs Committee, for raising the issue of intercept evidence, which is an important option that I encourage the Government to consider carefully for the future. Like every speaker so far, I support the motion. I do so because I feel I have a duty to support it.
I represent many thousands of constituents who work in London, which is on the front line of the world terrorist threat. Those people work to keep this country in the manner to which it has become accustomed and they put their lives on the line, so they must look to us in the House to give them the maximum possible protection from that terrorist threat. I would hate to send out a message to the world terrorist community that Great Britain has gone soft on terrorism or in its resolve to take every possible measure to counter terrorism.
All right hon. and hon. Members support the motion. Many of them supported the extension from 28 days’ detention to 42, but some, on principle, did not. Perhaps Front Benchers will use their winding-up speeches to explain why the extension by 14 days to 28 days without charge was right and a principled move, but the extension by 14 days to 42 days is somehow different and wrong in principle. I see the pragmatic differences, but I do not yet understand and no one has explained to me the difference in principle between those two extensions. I see advantages in the extensions, but I see no difference in principle. I would like an explanation of that.
I am surprised that the hon. Gentleman does not see any principle being involved. Does he not accept that in non-terrorist cases the longest period for which a person can be held—the maximum—is 96 hours, after which they must be released or charged? The increase for terror suspects, which in my view was necessary and justified up to 28 days, is one thing, but it baffles me when he says that going beyond 28 days, perhaps to any figure, makes no difference and that no principle is involved.
I am grateful to the hon. Gentleman for that intervention because he allows me to make my point again. I see that there is a principle involved, but I do not see the difference in principle in changing 96 hours to 28 days, and from 28 days to 42 days. I do not see the difference in principle in those extensions. That is the point I was making. If he thinks it right to detain people without charge for 28 days, but not for 42, I would like him to meet me afterwards to explain where the principle in that difference lies, because I just do not see it.
I believe that we must send a strong message to the international terrorist community that Britain is not opening its borders for business from those terrorists and that we are retaining our maximum vigilance and our maximum defence for all our constituents, particularly those who work in London and face that terrorist threat.
I would like two simple assurances from the Minister. If we ever see evidence that the 28-day measure, which we are extending tonight, is being abused, I would like the matter to be brought back before the House so we can deal with it. If and when the terrorist threat abates, I would like us to go back to the situation that endured before we introduced 28 days, or indeed 42. I am sure that he will be able to give me those assurances.
On the hon. Gentleman’s last point, I can do no better than to paraphrase the hon. Member for Surrey Heath (Michael Gove), who, on page 136 of his excellent little book “Celsius 7/7”, talks about the broad Islamist threat in precisely those terms: as and when the threat increases, it is right and proper that a democracy takes all the power it requires, within its value system, to meet that threat. Equally, as and when that threat abates, so should those extraordinary powers. As I said, without going down the pathway of the Counter-Terrorism Bill, all that we seek to do in going beyond 28 days is predicated rightly and properly on the annual renewal of 28 days’ detention. For terrorist cases, 14 days is the norm, 28 days is the exception, and beyond 28 days—I shall not dwell on that debate—is utterly the exception to the exception. Partly to answer the hon. Gentleman’s point further, that is why we did not come back to the House with a proposal for a universal extension beyond 28 days, annually renewed or otherwise—we have sought to outline why there are grave and exceptional circumstances in which a period beyond 28 days is required.
Broadly, I am grateful to the House for the nature of the debate. It should be a detailed debate. As I said, as and when greater collective awareness of the ins and outs of those detained beyond 14 days is possible, that will happen. I hope that that can happen by next year, not least because a goodly number of those suitably charged beyond 14 days are already in the courts, and some are about to go before them, so matters will be resolved one way or another. None of the 11 charged beyond 14 days has yet been convicted, and to return to the point of my hon. Friend the Member for Hendon (Mr. Dismore), they are allowed due process before we start crawling all over the statistics relating to how they got to that position in the first place. As and when all the information is available on those detained beyond 14 days before charge, it will be right and proper to dissect that information retrospectively.
As I said in my opening statement, this is a serious and sensitive matter—we do not depart leisurely, or in anything but a very serious spirit to respond to a threat, from the 14-day norm accepted by the House for terrorism offences. I accept the broad sweep of colleagues’ comments that, hopefully, post-charge questioning, intercept as evidence, resources, greater use of the threshold test, and greater use of acts preparatory and other elements put into legislation, will mean eventually that more people are charged as close to arrest as possible. But I am afraid that I do not share the faith of the hon. Member for Eastleigh (Chris Huhne) that any of those elements will eradicate the need to go beyond 14 days, given the nature of the current threat.
As I said during last week’s debate, collectively, things such as the broader prevention agenda and the broader battle for hearts and minds—for want of a better phrase—should obviate the need for using such extraordinary legislation, by ensuring, first, that more and more individuals are dissuaded from the path of violent extremism in the first place, and secondly, that they are charged much closer to arrest than is currently possible. However, I cannot guarantee that. It is the Government’s responsibility to make the judgment on the balance between guaranteeing public safety and otherwise.
In answer to some direct questions, at least nine of the 11—if not all—were transferred to prison at day 14 and then brought back for interview, principally at Paddington Green, as and when required. In passing, let me say that the detention of individuals beyond 14 days is about not just interviewing them, but as much, if not more, about the investigatory process in which the police need to be engaged to get the evidence in order to put questions to such individuals in the first place. Invariably, as in the code, such individuals are transferred to prison post-14 days and then returned for interview. Code H says clearly that there should be eight hours’ complete freedom from questioning on any given day. It is not the case that, other than during those eight hours, there is routine questioning on a regular basis. Often in terrorist cases, the investigation goes on and the individual will not say anything, and there is an iterative-type process. That goes back to the point about the times that individuals were apparently interviewed after 14 days—a point made with a degree of sophistry, I would say, by those to whom I referred earlier. Interestingly, there has been no case whatever of an accusation of oppressive questioning by any of the individuals kept post-14 days.
On the other point made by the hon. Member for Bury St. Edmunds (Mr. Ruffley), a Crown Prosecution Service paper—I think that it was already published—has set out in detail the extension process, and is still available on the website. We have not done a special paper on the impact of questioning on the right to a fair trial and those other elements of which he spoke, but that might be worth considering.
At the Report stage of the last Bill on this matter, I said clearly that there would be a review of the impact on communities of all our counter-terrorism legislation. My right hon. Friend the Member for Leicester, East (Keith Vaz) made an entirely fair point in that regard. Although there are plenty of assertions about the impact post-14 days of the legislation that we are renewing today, there is no significant evidence. But as I said at a conference on stop-and-search powers last Saturday, although we are considering section 44 and the code of practice associated with it, such stop-and-search powers will have more impact on communities than the legislation under consideration. We have published information on numbers held and charged, and will try to prepare more.
I am afraid that my right hon. Friend the Member for Leicester, East slightly misreads the Bill considered last week, in the sense that we seek not to consult the relevant Select Committee Chairmen on the process, but inform them—unless I have misread the Bill—
That is my hon. Friend’s view, and he is entirely welcome to express it, although while he is on his feet rather than from a sedentary position, if I may say so.
My hon. Friend the Member for Hendon is entirely wrong about schedule 8 and article 5 and the right to a fair trial—it is a tedious, circular debate. He says glibly that defendants are excluded from large parts of the hearings—wrong, as Sue Hemming said in her evidence. Just because one says something often enough, a bit like Dorothy in “The Wizard of Oz”, it does not mean that it comes true. Sue Hemming was very clear that in some cases the process had ex parte elements, but they were very limited. Although the law did not require anything further than the gist of the case, in many instances, certainly beyond 14 days, she was very clear that substantially more than that was provided.
For as long as this legislation has annual renewal, however, it is right and proper that there is due scrutiny. I freely accept that, and I commend the House for the way in which it has taken place. We think that the renewal is proportionate—it is certainly temporary and rightly so. The one thing that I will not forgive the hon. Member for Eastleigh for—it is either sloppy thinking, or if he believes it, he is profoundly wrong—is the notion that we only face a threat, regardless of individuals’ position, because of actions taken by this country in relation to Iraq. That is profound twaddle and nonsense of the finest order.
The Minister knows perfectly well, and will be able to confirm if he consults Hansard, that I never said “only”. What I did say was that if there was a justification for our having already extended the period to 28 days, more than double the period allowed by any other common law jurisdiction—Australia’s limit, for instance, is 12 days—it was that we faced a greater threat. The threat is greater precisely because of the foreign policy actions of this Government, who involved themselves in an illegal invasion of Iraq.
If that was clarity, I think that the hon. Gentleman has some difficulties in a broader sense. His view remains profoundly wrong, as indeed are his comparisons with international jurisdictions, based on our system or otherwise—but I will not rehearse those arguments either, because we have significant evidence, and it is rather tedious when people fall into the trap of indulging the sophistry of others.
That said, however, I am grateful to the House for the manner in which the order has been debated. I commend it to the House.
Question put and agreed to.
That the draft Terrorism Act 2006 (Disapplication of Section 25) Order 2008, which was laid before this House on 21st May, be approved.