I am delighted to open the debate and I am gratefulthat the relevant authorities agreed that both Select Committee reports can be debated at the same time. Not only does that make better use of the Minister’s time, but it makes a great deal of sense because they examine essentially the same issues.

On the way in which we discuss terrorism legislation and the lessons that can be drawn from the debate on 90-day pre-charge detention, an early conclusion of the Select Committee on Home Affairs was that

“in our view the primary origin of the difficulties experienced by the Government lies in the lack of care with which the case for a maximum 90 day detention period was promoted.”

I make that point at the outset because, this afternoon, we need to look for ways to ensure that when we consider terrorism legislation in future, we learn some of the lessons from the difficult period that the House of Commons and Parliament as a whole went through last year when we dealt with a vital piece of legislation. I make that point not to get at or to over-criticise the Government, but to say that we need to move on and ask how we can do things better.

We have in front of us two reports on similar issues, but with different approaches. To some extent, they reached different conclusions, and careful reading shows that the two Committees asked slightly different questions. I have no doubt that if last year’s debate on pre-charge detention had taken place after the inquiries by the two Committees, the debate would have been better and the House would have reached a consensus much more easily on the appropriate detention period.

I hugely welcome the reports from both the Home Affairs Committee, which the right hon. Gentleman chairs, and the Joint Committee on Human Rights. I simply want to echo what he said. He is quite right—there is absolutely no doubt in my mind about this—that the debate on detention periods was not sufficiently informed by sensible discussion and the laying of the groundwork beforehand. That must be avoided in future.

I welcome the hon. Gentleman’s comments.

My immediate conclusion is that with new terrorism legislation mentioned in the Queen’s Speech as a distinct possibility in the coming Session, it would be enormously valuable to have a commitment to subject that or any controversial elements of it— whether an extension to the detention period or another relatively important measure— to the pre-legislative scrutiny of a draft Bill. That would give the House space for more detailed examination than last year. I have no doubt that if that had happened last year, first, a consensus would have been reached on the 28 days—that was agreed in the end, but after much division in the House—and, secondly, there could probably have been agreement on how the detention period would be kept under review. That is not just a procedural point. An early report of my Committee, published in 2005 just before the general election, considered the general question of terrorism legislation and, in particular, relations with the Muslim community, which tend to be most directly affected because of the nature of current terrorism.

We drew a number of conclusions. One recommendation was:

“The Government has now made a commitment to new anti-terrorism legislation and a review of existing powers. It is essential, in our view, that British Muslims are engaged fully in this review from the earliest possible moment.”

The recommendation continued:

“It follows from what we say that the new terrorism legislation cannot and must not simply be a set of police and judicial powers. It must be part of an explicit broader anti-terrorism strategy. In the context of international terrorism, it must explicitly and specifically set out how British Muslim leaders will be supported in assisting British Muslims in resisting extremist views.”

It goes without saying that last year’s terrorism legislation provided no opportunity for that type of engagement with the Muslim community or any part of the wider community.

Does my right hon. Friend recall that Lord Carlile gave useful evidence to the Committee? We asked him—I believe that I asked the question—whether he knew of any Muslim organisation that was in favour of 90 days. He said that he could not give any such information.

My hon. Friend is absolutely right. The truth is that there was no opportunity to engage in a serious discussion, based on the evidence, with any organisations in the Muslim community. Like many hon. Members, they were trying to make a decision based on what turned out to be inadequate and partial information. We warned of the dangers in the report that we are discussing when we said:

“Extended pre-charge detention carries the danger, which should not be underestimated, of antagonising many who currently recognise the need for co-operating with the police, and hence the need to be very cautious before extending the period of detention beyond 28 days.”

What matters is not just what legislation the House passes, but the process we go through before we pass it. There are lessons on that to be drawn from both reports.

On the process of policy making, we highlight the fact that there was no formal Association of Chief Police Officers business case. It is fair to say that that is not the only time that that has happened. Having been a Minister with responsibility for the police, I have been in receipt of an extensive analysis—ACPO usually refers to that as a business case—of a particular problem to justify perhaps a new piece of legislation or a particular type of operation or investment in a certain area. No such formal process was undertaken by ACPO, and that was confirmed to us in evidence to the Committee. It was clear that there was no rigorous scrutiny or challenge to the ACPO case by the Home Office or No. 10 Downing street. That again was confirmed to us during our inquiry.

Returning to my earlier intervention, that situation coloured the entire debate because it was obvious to those of us who made inquiries at thetime that the ACPO case was not well researched and that its key committee had been divided on whetherthe submission to the Government, on which the Government subsequently relied, was a good one. Anyone who bothered to make inquiries round the back about what had gone on quickly discovered that the Government were relying on what appeared to be a flawed case. That in itself was not helpful in achieving the rational debate that we needed.

Let us remind ourselves that the written material that had been submitted to the Government when they supported 90 days consisted in its entirety of three ACPO press releases and two sides of A4 describing two operations. That was all there was in writing, and that was confirmed by Assistant Commissioner Hayman, who gave the lead evidence for the Metropolitan police.

Does the right hon. Gentleman agree that it was almost impossible for the House to condone the evidence that was put before it and that the use of the ricin case, in which the suspect was held for two days, was a bad example in terms of evidence given to us as a reason for granting 90 days?

One thing that was unsatisfactory about the process was that when the Committee was able to look in great detail at a substantial numberof cases in private evidence, the case for going beyond 14 days was compelling. There was not a compelling case for going to 90 days, but a very good case could be made for 28 days. With due respect, when most hon. Members voted for 28 days, they could not have done so on the basis of the evidence because the evidence was not in front of the House. Whatever the reason for the way in which Members voted—I was one of those who voted for 90 days, partly from having been involved in such matters as a Home Office Minister—none of us could base our votes on a considered examination of the evidence. One could argue that in some ways the police case was stronger for an extension of detention powers than came across at the time, although they could not, in our view, make the case for 90 days.

We put it to Assistant Commissioner Hayman that the police were certain of the need for the maximum period to go beyond 14 days, but that the

“question of whether the maximum period should be 90 days”—

was—

“much more…an instinctive judgment of what”—

felt about right. Mr. Hayman agreed. He said:

“That is absolutely fair. I know that sounds pretty flaky. I expect members are sitting here thinking, ‘Crikey, there should be more basis for that’, but that was the question that was asked.”

To be fair, he went on to say that it was a difficult judgment and that the police gave a professional judgment. I do not disrespect him for that, but yes, I thought it was rather flaky to base the case for suchan enormous extension of detention pre-charge ona maximum period without more evidence. We concluded that the extension to 28 days was convincing; we did not find the arguments for 90 days compelling at all. Ministers said that on the same limited evidence—those few bits of paper—they had found the case compelling. We found that surprising.

There was no division in the Committee on the central proposition—that the nature of the threat has changed. Some witnesses said that it is not very different from the threat that we faced from the IRA. We felt, however, that the centrality of mass murder as the aim of terrorist actions, the willingness to use suicide bombings and the international links put the threat on a different order of magnitude. That is to take nothing away from the horrific actions of the IRA and others and their willingness to take human life as part of their activities, but the centrality of mass murder as the prime political tactic of current terrorism puts it in a different category.

The Committee therefore tried to understand the nature of the policing involved in trying to tackle that terrorism. My hon. Friend the Member for Hendon (Mr. Dismore) will speak for himself, but there was a slight distinction between our Committee and the Joint Committee on Human Rights, which considered the legal framework in which things took place. We, onthe other hand, spent considerable time trying to understand the day-to-day practical realities of policing the threat. One of our early conclusions was that the police now inevitably move to arrest much earlier in an investigation than they would with any other type of crime. We caused a stir by suggesting that there was a preventive element to those arrests. The report by the Joint Committee on Human Rights used different language. It stated:

“Nowadays we are told arrests are usually intelligence-driven: suspects are arrested first, then the case against them can begin to be built.”

That is inevitable. One reason why there is a case for an extended period of pre-charge detention is precisely because the fear of allowing a bombing or similar event to happen requires people to act more quickly.

One of our conclusions was that there should be judicial oversight of the decision to arrest early in terrorism cases. The Forest Gate raid was in part—we read in the papers, at least—prompted by the danger that authorities in other countries would trigger action that would undermine the investigation. Had there been judicial oversight of the case, however, there is no doubt that the police would have been protected from some of the subsequent criticism, which said that they moved too early and in too precipitate a way. If it had been a bank robbery conspiracy, there is no way that the police would have intervened as early as they did in their investigation, because they would have taken a different judgment of the risk involved in allowing the conspiracy to develop.

Another of our early conclusions was that we should consider judicial oversight of the initial decision to undertake major arrests under the Terrorism Act 2006.

I am grateful to the right hon. Gentleman for giving way so frequently, because it helps in this setting. What sort of oversight is his Committee thinking about? I raise the question because in our common law system, judges are on the whole reluctant to get dragged into such processes. They are the referees of criminal trials, not the proactive and inquisitorial agents of justice. Unless we create a new category of judge, the role that the judiciary can fulfil in our system is likely to be limited. I found his Committee’s proposals on that interesting but difficult to reconcile with our system.

I do not want to put too many words into the mouths of my Committee members, who did not necessarily address the issues explicitly, so I shall put forward my view. We probably need to be sufficiently imaginative to understand how some of the strengths of the continental systems can be adapted to our legal traditions. I do not propose a full panoply of investigating judges and all the rest of it, but it would be valuable to consider whether there is a category of judge that would be capable of taking an independent legal view on some operational decisions. We can construct such processes in our tradition. The moves, highlighted in the Joint Committee’s report, towards the development of a specialist section of the Crown Prosecution Service, concentrating on attempting to ensure that we secure terrorist convictions, begin to point us in that direction. It would not be wholesale importation of a system through the channel tunnel, but learning lessons and asking, “How do we do this in a British manner?”

May I make this suggestion, which I shall develop in my comments? The truth is that an investigating magistrate on the continent is not a judge at all, but an independent prosecutor. In our country, there is a long tradition of prosecutors being ministers of justice: they should be capable of bringing impartial thinking to bear on what they do. It may be that the right hon. Gentleman is thinking of introducingsome sort of independent prosecutor’s oversight ofthe system, and that in reality this is an exercise in semantics, because the person could do that job justas well.

The hon. Gentleman is right: there is a danger of getting hung up on language. The Joint Committee did not like our use of “preventive detention”, but I found a description in its report of exactly what we were talking about, albeit in different language, so there is not very much difference between the two Committees.

Similarly, the prosecutor’s role could be enhanced. However, our fundamental point is that the policeare currently asked to make a judgment about the investigation that they require to secure a conviction, and an operational decision about protecting the public from a level of risk at a certain point in their investigation. There is every case for bringing in an independent or different element to assist the police, and for the police not to have to shoulder the entire responsibility.

I am listening with great interest to the right hon. Gentleman’s comments and entirely take the point that those who say that the situation is identical to the situation with the IRA are wrong. None the less, he made an interesting point about what I would call preventive arrests, or arrests at an early stage when police are gathering evidence on a likely terrorist incident. There was plenty of that in Ulster, and I shall develop those comments later. Why the difference?

The difference is a matter of degree or judgment. Despite the appalling atrocities committed during the conflict in Northern Ireland, we were not—at least not most of the time—facing an enemy for whom maximum death among the civilian population was the primary objective of every action that they took. There was a casualness and an arbitrariness about the willingness of the IRA to take life and not to apologise for it, but the scale of the threat does not turn something white into something black; it shifts the boundaries of the judgments that have to be made. We ask an enormous amount of the police in making the judgment about whether we will secure enough information and evidence on which we can base a satisfactory conviction, and about whether we are making the right intervention to protect the public from the risk. Bringing other elements into that discussion would be useful.

In private session, in conversations with operational officers at Paddington Green police station and in public session, our Committee was able to consider several recent cases. Some have subsequently gone to court, but others have not yet done so, and I shall not go into them in detail. We went through the elements of the police case and found some things that they had prayed in aid—the difficulties in obtaining translation, the time for prayer, and multiple representation of the same clients by the same firm of solicitors—not proven at all. They may have been issues and difficulties for investigations, but they did not provide a sound basis for a longer detention period.

Other elements—the need to arrest early, the international nature of investigations, the problems involved with computer encryption and difficulties of forensic capacity when there are many different suspects and activities—persuaded us, on the basisnot of theory but of actual cases that had been investigated, that there was a convincing case for going up to 28 days. However, we did not reach the conclusion at that stage that the case had been made for going further. We said that

“the growing number of cases and the increase in suspects monitored by the police and security services make it entirely possible, and perhaps increasingly likely, that there will be cases that do provide that justification. We believe, therefore, that the 28 day limit may well prove inadequate in the future.”

I can say, without giving away any confidences, that the head of MI5’s recent ballpark figures on the number of conspiracies and of people involved in them is of quite a different order of magnitude from the numbers that were kicking around even at the time of our inquiry earlier this year. Things are getting more difficult and more challenging.

That leads me to two conclusions. The first is that if our assessment had been done this time last year, the House could have settled on 28 days without much division and with half the pain. The second is that we need a mechanism for keeping the matter under review, partly because of its history. It is unlikely to be satisfactory if we simply wait for the Government and police to return and say, “Well, we had another look at it, and now we want 45 days, or 60 days.” It will take some time to undo the damage caused to the process’s credibility by the way in which the argument was first made. Even if it had been advanced in a much more satisfactory and well argued way, it might have carried the House, but not the public. That is why we suggested—although there could be other ways to do it—that the Government use an independent committee of Privy Councillors to review the evidence. The Newton committee showed how effective that can be. The noble Lord Carlile clearly plays a vital role for all of us in analysing the issues independently. Something along those lines would be useful.

We considered alternatives that would allow us not to need extended detention: using intercept evidence, lowering the charge threshold, using post-charge questioning, allowing inferences from witness silence and so on. Our Committee agreed that they would all be useful. Having considered a significant number of cases, though, we came to the conclusion that they would not resolve the problem. Even if we used intercept evidence, problems with the nature of the information and associated problems with disclosure would mean that in some cases it could not be used, even though it might be enormously important as a basis for the police investigation.

That knocks on to the limited effect that lowering the threshold is likely to have. Post-charge questioning is difficult. The vast majority of serious terrorist suspects never say a word from beginning to end. They are not going to say more after a charge. We were convinced that some way down the line, people on the fringes of a conspiracy might see it as in their interests to spill what beans they have, but it would not allow much to be done about the prime suspects. As most judges have a history as criminal lawyers and most criminal lawyers advise their clients not to say anything that they do not want to say, the reality is that judges are not likely to invite juries to draw too many inferences from the silence of a defendant, whatever the House says. That is what we have found.

Our view is that lots of procedural changes should be introduced—I shall not discuss them in detail—but the point of principle is that they would not reallysolve the problem. There would always be terrorist conspiracies that would not be prosecutable despite the changes, and the issue of detention would therefore continue to arise. Hopefully, the number of cases would be smaller, and clearly everybody will agree that the more people we can prosecute the better, but the changes would not solve the problem.

I am sorry for having spoken for so long, as other hon. Members are here, but I took all the interventions that arose. I hope that the Minister will give us an indication of the Government’s current thinking on their plans for legislation this year. Perhaps he will also assure us that some lessons have been learned from the problems of last year’s Bill and that an extensive consultation period and the opportunity for pre-legislative scrutiny will be available to the House. If we can reach decisions after a lot of debate but without too much division, so much the better.

I am pleased to have the opportunity to follow my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and to have had the advantage of hearing his remarks. I thank him for allowing my Committee’s report to piggyback on his, so that we can combine both in one debate. I hope that when my hon. Friend the Minister replies, he will acknowledge that we have saved him at least one debate.

For once.

I make no apologies for starting where my right hon. Friend the Member for Southampton, Itchen left off in his remarks about the background to how the matter came into being. Coming from a human rights perspective, our report disagreed with several of the Home Affairs Committee conclusions—I shall deal with those later—but we agree on some important issues.

Both our Committees are engaged on Parliament’s behalf in the same enterprise—holding the Government to account and asking them to justify their legislation and policy on combating terrorism. Equally important, we are both in the business of providing suggestions for effective, acceptable and, in our case, human rights compatible ways to achievethe Government’s vital objective of safeguarding the people of this country from terrorism. As we have said repeatedly in all our reports on counter-terrorism, the Government have a clear and onerous human rights obligation under article 2 of the European convention on human rights to take positive steps to protect everyone in the United Kingdom against terrorist attack—an obligation that is often not recognised by human rights people or journalists. At the same time, human rights law places some limitations on the measures that may be taken to meet that duty.

The Home Affairs Committee inquiry was tremendously valuable in subjecting to close examination the case made by the police and Government for extending the period of pre-charge detention in terrorism cases, but unfortunatelythat examination had to come after the passage ofthe Terrorism Act 2006. We entirely agree withthe Committee’s conclusion that many of the Government’s difficulties during the Bill’s passage arose from the speed with which it was drafted and presented to Parliament. The Home Affairs Committee inquiry fulfilled the task of examining the police arguments for extended detention, but we believe that the Home Office should have done that before introducing the Bill in the first place.

Our Committee also received evidence from the police during our legislative scrutiny of the Bill, but we could not do as detailed an evaluation as necessary in the short time available. We and the last Parliament’s Joint Committee on Human Rights repeatedly faced extraordinary time pressures in conducting the required legislative scrutiny, which included obtaining the necessary evidence to report our views on counter-terrorism legislation, to inform parliamentary debate sufficiently early given the speed with which the legislation was put through both Houses. We were encouraged by the then Home Secretary’s commitment on 2 February that during this Session, the Government would publish a draft Bill consolidating existing terrorism legislation, which is currently spread over a number of Acts, to enable pre-legislative scrutiny before they proposed any further legislation proper. The then Home Secretary also told us that the Bill would provide an opportunity to amend existing terrorism legislation. We believe, and I think the Home Affairs Committee concurs, that it is essential for parliamentary Committees and Parliament as a whole to have time to consider any new legislative proposals that the Government wish to introduce, especially if they include measures such as a further extension of the period of pre-charge detention or changes to the control order regime.

The Government’s intentions relating to this Session’s legislation are not at all clear now. There are rumours that the consolidating legislation might take the form of a consolidation Bill, which would be subject to accelerated parliamentary procedure and would therefore have minimal opportunity for amendment. I hope that in his reply, my hon. Friend the Minister will dispel those rumours and give the House a clear outline of the Government’s intentions.

We were certainly given the impression that there would be some form of consolidating legislation, but my impression when the matter was raised during debate on control orders was that we would have the opportunity of a complete overview of the entire armoury of anti-terrorism proposals, including the opportunity to amend them, introduce new ideas and remove some things completely.

I am grateful for the hon. Gentleman’s comment, because that was the view that we, too, were led to believe. I hope that that position has not changed and that my hon. Friend the Minister will confirm both that the rumours that have been flying around are not true and that the Government will allow proper scrutiny of all aspects of counter-terrorism legislation as a piece. I hope, too, that they will debate with us ideas that our Select Committees and other parties put forward.

My Committee intends to scrutinise any legislation or draft legislation for its human rights implications, even if formal pre-legislative scrutiny is undertaken by another Committee, including under the new Public Bill Committee procedure. We are concerned to ensure that even if the new legislation goes through under the Public Bill Committee procedure, that does not exclude either the Home Affairs Committee or my Committee from doing the proper job that we are appointed by Parliament to do.

Apart from time, the other main factor affecting our scrutiny of Government proposals is the adequacy of the evidence and information that are provided. One of the judgments that we on the Joint Committee on Human Rights are continually called on to make is whether proposed measures are proportionate to their objectives. In other words, when considering counter-terrorism proposals, we have to judge whether the inevitable interferences with individuals’ rights and the impact on human rights law and standards go only so far as is necessary to meet the specified purposes set out in the European convention, such as the interests of national security. We also need to consider whether proposed measures meet the conditions set out in the convention, such as those under which persons may be lawfully detained, under article 5. In the absence of more detailed information on the precise nature and level of the threat from terrorism or on the threat posed by individuals, such as those subject to control orders, that is an exceedingly difficult judgment for us to make, so as to inform Parliament about the human rights compatibility of proposed legislation and policy.

We recognise the important work that has been carried out by Lord Carlile, who is the independent reviewer, and by the Intelligence and Security Committee. However, we consider that neitherprovides the degree of parliamentary involvement that is necessary to provide the basis for informed debate and decisions by Parliament on counter-terrorism legislation and policy. In our report, we called for more direct parliamentary accountability. We said that the concept of an arms-length monitoring body, charged with oversight of the security and intelligence agencies, independent of the Government and those agencies, and reporting directly to Parliament, was worthyof consideration. The Government rejected that recommendation. They also rejected the Home Affairs Committee suggestion, which my right hon. Friend the Member for Southampton, Itchen repeated, that an independent committee could be established to review the maximum detention period annually. I would urge the Minister to reflect further on those points.

In case thereis any doubt, I am a member of the Home Affairs Committee. I concur with the overwhelming majority of the recommendations in its report, but I have some reservations on the issue that the hon. Gentleman has raised. We keep being told that committees of Privy Councillors should be able to consider whether we have a replacement for Trident and other major questions of public policy, but my concern is that the House will be presented with a fait accompli on those issues. We will be told that the wise men and women who represent the three major parties in the House will have weighed up the evidence to such an extent that mere Members of Parliament voting in the House will not have enough wisdom to overturn their suggestions. Quite a few of us have that concern, so I should be interested to hear the hon. Gentleman’s view on that.

I certainly understand the hon. Gentleman’s position, which I suspect is shared by many. However, the fact remains that we cannot realistically expect the intelligence services, the Government or anyone else to give all the detailed information to Parliament, as that might prejudice national security. The problem with the existing system is that reports from the Intelligence and Security Committee often come late in the day and go to the Prime Minister. That Committee does not report directly to Parliament. The advantage of a committee that reported to Parliament would be a greater degree of confidence in the views expressed by any such body.

We hope that the Government will also look more favourably on our recommendation that counter-terrorism legislation should contain sunset clauses that limit it to a maximum of five years, and should be subject to parliamentary review of its operation.

To turn to our report’s substantive conclusions and recommendations, and the Government’s response, I should like to explain the context of our report. It is the third in a series of reports that we have produced in our continuing open inquiry into counter-terrorism policy and human rights, on which we embarked at the start of this Parliament. The first of those reports considered the then Terrorism Bill and related matters. It was in that report, therefore, that we set out our views on the extension of the pre-charge detention period. In the light of the evidence that was then available to us, the Committee concluded that

“the proportionality case for any increase from the current14 day limit has not so far been made out”.

I should mention in parentheses that my personal view was different, as was that of my right hon. Friend the Member for Southampton, Itchen. I voted for the 90-day extension and was in a minority on my Committee, as one might expect. However, I do not think that anyone could say that I have been soft on terror during my period in Parliament. Indeed, until 9/11 I was seen as the nerd who took an interest in such matters. The day after I seemed to become the world’s leading expert on extremism in Britain. However, any views that I express on the issue must be in the context of the rule of law and the importance of human rights. That has become even more important to me since I took up my job of chairing the Committee.

The Committee did not rule out the possibility that evidence might be forthcoming to justify an extension of the detention period, subject to improvements in procedural safeguards. That position obviously differs slightly from the Home Affairs Committee view, and since that time my Committee has not explicitly re-addressed the question.

My Committee’s second report dealt with the order that maintained in force the control orders regime, under sections 1 to 9 of the Prevention of Terrorism Act 2005. We considered, agreed and published that report in the short period between the laying of the order and the debates to approve it, which took place on 15 February in both Houses. We accepted in principle that a control orders regime that imposed preventive measures after a proper judicial process was capable of being human rights compatible, but we described the control orders regime contained in the 2005 Act as, in our view, a de facto derogation from articles 5.4 and 6.1 of the convention. We therefore seriously questioned the renewal of the provisions without Parliament being given a proper opportunity for debate on whether a derogation was justifiable. In other words, are the extraordinary measures in the 2005 Act strictly required by the exigencies of the threat that our country faces?

The report that we are debating today is our third in the series. We also intend to report soon on the Council of Europe convention on the prevention of terrorism, on how intercept evidence might be made available in terrorist court cases, and on other aspects of counter-terrorism policy. We will, of course, also scrutinise any further legislation that the Government bring forward. A number of those subjects are identified in the report that we are debating today.

We are trying to look forward in a constructive way, to help the Government to produce human rights compatible suggestions to improve counter-terrorism. In our earlier reports, we were necessarily reacting to concrete legislative proposals that the Government had advanced. In the current report we set out to make and examine positive proposals for

“more enduring ways of making the Government’s counter-terrorism strategy compatible with our human rights obligations.”

Our focus is on ways of making easier the effective prosecution of terrorist suspects, and on possible alternatives to lengthy pre-charge detention.

Article 2 places a clear duty on states to prosecute those who are suspected of involvement in terrorist activity. The main obstacles to prosecution under the criminal law are well known. They were identified by the Newton report and flow from the fact that much information against terrorist suspects is likely to be derived from intelligence. Such intelligence information may not cross the threshold of admissibility, and may fall short of the criminal standard of proof.

Section 17 of the Regulation of Investigatory Powers Act 2000 prevents the use of intercept evidence in court. Even if such evidence were admissible, the security and intelligence agencies are opposed to its use in open court for fear of compromising sources or methods. The agencies are also concerned about the breadth of disclosure requirements in English criminal law. However, that does not seem to be a problem for other countries, where enforcement agencies regard our position with disbelief, especially as intercept material supplied from a foreign agency can, I understand, be used, unlike that from a UK source.

We looked at a number of ways of overcoming those obstacles to prosecution, some of which we ruled out. We ruled out the use of special advocates in specialist terrorist criminal trials as being incompatible with many of the most basic principles of a fair trial. Following discussions on a visit to France and Spain about the investigating magistrate systems in those two countries, we concluded that nothing from those very different systems should be grafted on to our adversarial common law system. I listened with interest to the point that the hon. Member for Beaconsfield (Mr. Grieve) made in his intervention, with which we concur.

We considered that the role of the Crown Prosecution Service should be developed, so that it becomes more proactive in relation to the investigation of offences. In many ways, the CPS fulfils the role of the investigating magistrates in the continental jurisdictions. By building on that role we could import some of the advantages of their activities, albeit in the sense of how they operate, rather than in a structural sense. The growing specialisation in terrorist cases should be supported and strengthened. We havecalled for CPS relationships with the police andthe intelligence services to be enhanced, so that investigations can be structured to maximise the prospects of the information obtained being usable as evidence in a criminal trial.

I now come to the first area of significant disagreement between the JCHR and the Home Affairs Committee. Although members of our Committee welcomed the introduction of the new offence of acts preparatory to terrorism, we were concerned when the Home Affairs Committee found that the power of pre-charge detention was being used for the purposes of prevention, rather than investigation. My right hon. Friend suggested that the difference between us might be semantic, but we were concerned when his Committee recommended that statutory authorisations should be provided for such arrangements, which seems to go a little beyond semantics. As we said in our report, preventive detention per se is not permissible under article 5(1), and any statutory authorisation would require a derogation from that article. We are pleased that the Government clarified the position to some extent in their response to us and that they do not intend to amend legislation to permit preventive detention.

We recommended that attention should be turned urgently to relaxing the ban on the use of intercept, and I believe that the tide of opinion is turning onthat issue, with the Director of Public Prosecutions,the Attorney-General and the Metropolitan Police Commissioner all indicating that it should be looked at favourably. However, I also noted the rather sceptical—

indicated dissent.

My hon. Friend the Minister shakes his head. I do not know whether he wishes to make an intervention, but the DPP was certainly very much in favour of relaxing the ban when he spoke informallyto us. The Attorney-General also spoke in favourof intercept when he was in America, and the Metropolitan Police Commissioner said only two or three weeks ago that we should look favourably at it. I do not know whether my hon. Friend wants to intervene now or respond later.

Later.

The Minister will respond later.

I suppose that my right hon. Friend was echoing the Home Secretary’s rather sceptical comments in the Queen’s Speech debate to the effect that intercept was not a “silver bullet” and that it could not get around the need to take difficult decisions on matters such as pre-charge detention and control orders. I certainly agree that it is not, by any stretch, a complete panacea in terms of counter-terrorism policy, but it would significantly strengthen the prospects of successful prosecutions and of putting terrorism suspects behind bars as the result of fair trials and judicial sentences, rather than without any form of judicial process. As I mentioned earlier, my Committee will shortly be considering possible ways in which the ban could be relaxed, and I would be interested to hear the Minister’s comments on the issue, including on the timing and nature of any work that the Home Office is doing on it.

When we came to consider alternatives to lengthy pre-charge detention, we were struck by what the DPP told us in an informal meeting. He told us that in most terrorist cases the threshold test for bringing charges—the test of reasonable suspicion—was used on the basis of some evidence. That is in accordance with the code for Crown prosecutors, which provides for the test to be applied when it is proposed to keep the suspect in custody, but the necessary evidence to apply the full code test is not yet available. We were therefore somewhat surprised that the police had said in evidence to the Home Affairs Committee that the threshold test was not applicable in terrorism cases. In their response to our report, the Government said that the test

“could apply in some terrorism cases”.

They added that because it will not apply in all cases,

“it is not a relevant factor in considering the appropriate time limit for pre-charge detention.”

We were impressed by what the DPP told us about the threshold charge system. The use of the threshold test did not feature in parliamentary debates on the extension of the pre-charge detention period, which is a pity because it has to be an important and relevant factor. Perhaps my hon. Friend the Minister can clarify the differences between the evidence given to the Home Affairs Committee, to our Committee and in the Government’s response to our Committee about the extent of the use of the threshold test in terrorism cases. If the position is as he said it is in his response to our Committee, I would also invite him to reconsider the Government’s position that the use of the test is not relevant to the length of the pre-charge detention period. In our view, it provides an important way to resolve some of the issues that gave rise to the debate over the extension.

I, too, look forward to some clarification from the Minister on this point. I think that one reason why the issue was not raised in debate was that it was so obvious—certainly for someone like myself. The threshold test issue has been around for a long time, and in the ordinary criminal cases in which I have been involved as a prosecutor, it is perfectly clear that the decision to charge is often taken on limited evidence, with the certainty in the background that a great deal more evidence will be obtainable thereafter. It never crossed my mind that terrorism cases might have to be subjected to some different regime. That, I think, is why the issue simply did not crop up in debate.

I also suspect that many of those who were involved in the debate did not have a chance to research the issue and, probably more to the point, were probably not even aware of its existence. Our discussion with the DPP left us very impressed with the opportunities that the system would offer, including the fact that a charge can be levelled on the basis of suspicion when the evidence is there at a very low level, on the understanding that the way in which terrorism cases are investigated will mean that huge amounts of evidence will become available as the case progresses and will ultimately justify the full charging test. The hon. Gentleman has therefore made an important intervention.

Subject to adequate safeguards, we also recommend a relaxation of the existing rules on post-charge questioning, including the possibility of a court being permitted to draw adverse inferences from a refusal to answer questions. That would be compatible with human rights law and would be another useful tool in dealing with some of the concerns that the police have about the need to extend the period of pre-charge detention. My right hon. Friend expressed some scepticism about that proposal and, again, it is not a panacea in itself, but it would be yet another of the reforms that we could introduce in the criminal justice process to strengthen the hand of the police.

When I met the head of the anti-terrorism unit, long before all these issues came along, I looked at some of the unit’s many criticisms of the process, and one of them was that it could not interview suspects after charge. My right hon. Friend may well be right and suspects may not answer questions, but the fact that a court could draw inferences from that, as we think it should be able to do, would very much strengthen the hand of the prosecution when suspects do not co-operate. At the moment, such an inference cannot be drawn. In their response to us, the Government say that they will consult on a review of the Police and Criminal Evidence Act 1984, including on this point, and I would be grateful if my hon. Friend the Minister could address the issue and let us know what progress has been made.

Another issue that we highlighted was raised with us by the DPP and privately with me on earlier occasions by the anti-terrorism unit. It related to the incentives to those who may be on the periphery of a plot to give evidence. The DPP calls for a more structured procedure, such as systemising lower sentences and proper witness protection arrangements, and we thought that the Government should urgently consider ways of enhancing incentives to give evidence, with the appropriate safeguards that one would expect, to ensure that some of the problems that have arisen in the past—for example, with the supergrass trials—are not repeated.

We share the Home Affairs Committee concern that judicial oversight of pre-charge detention is not adequate, although we do not, as we explained, agree with its proposals or with Lord Carlile’s that such oversight be carried out on the basis of an investigative approach. That would create major problems as regards a detained person’s right of access to a court to challenge the legality of his detention. Article 5 requires judicial control over the extension of pre-charge detention in the full sense of an adversarial hearing. In their response to our report, the Government say that they are carefully considering the proposals of Lord Carlile and others on judicial oversight. Again, perhaps my hon. Friend the Minister can tell us where that thinking has got to.

There is no doubt that the subject that we are debating is fundamental to the nature and future of our society. I am sure that my right hon. Friend would agree that both Committees recognise the seriousness and difficulty of the issues that the Government face in constructing an effective counter-terrorism policy while at the same time observing the essential standards of the rule of law and human rights. I hope that, for their part, the Government recognise that both Committees, from our different perspectives, are engaging constructively with those questions in our work and seeking to make positive proposals to assist with that policy. I hope that the Government will become rather more receptive to those proposals than they have been in the past. I also hope that they are persuaded that, in introducing new or consolidating legislation during this Session, they should allow sufficient time for proper parliamentary consideration and scrutiny. By now, experience must have demonstrated to them that that would be in their interests, as well as those of Parliament. More important, it would be in the interests of the country and of keeping it safe from terror.

It is a pleasure to follow the hon. Member for Hendon (Mr. Dismore), and I thank him for the report that his Committee has prepared. I also congratulate the right hon. Member for Southampton, Itchen (Mr. Denham) on a very fine and incisive opening speech.

On Monday, I spent some time at Belmarsh prison and had the salutary experience of briefly glimpsing a 32-year-old man who was starting a 40-year sentence. Whatever one thinks about the deliberations of the Government and the Opposition parties on these issues, or about the rights and wrongs of the crimes committed by the people we are discussing, it is none the less a chilling fact that, for the rest of his life, that man will spend 19 hours a day locked down. I want to record my thanks to the governor and staff of Belmarsh for the work that they do and the extremely humane way in which they handle the prisoners. I was terribly impressed.

It is tempting for someone like me, who has spent a long time fighting terrorism at the sharp end, to think that he has the answers and can, as a practitioner rather than a theoretician, say, “It wasn’t like that in my day; this is what we did in hot blood, on the end of a rifle or a baton, to people who had tried to carry out particular acts, and who indeed killed friends and colleagues.” I would not pretend for one moment thatI have the answers. I was extremely interested to hear the right hon. Member for Southampton, Itchen talking about witnesses who have long service and experience in Ulster and who said that there is no difference between what happened in the three decades of that campaign and what is happening now. There are huge differences and people with the sort of experience that I have could be drawn down very wrong avenues, to make some very wrong conclusions. None the less, there are valid comparisons to be made, andI shall ask the Minister a couple of questions; some of the matters on which I shall ask him for illumination arise from my practical experience, and some are based on experience that I gathered in later years, in what I hope was a more mature way than when I was a young, roaring infantry officer.

A panoply of ideas has been put forward to try to make pre-charge detention more or less effective—we have talked, for instance, about intercept; although we have not mentioned it yet, the report mentions the business of preferring a lesser charge; and post-charge questioning is another such idea—but anyone who has seen those things in practice would not begin to think that any of them is a silver bullet, to borrow the phrase. None the less, I think that they are all useful tools, which may make it possible not to have to extend the period of pre-charge detention. Anyone who argues that the problems can be solved with any one tool is wrong.

My first question to the Minister arises from the fact that I disagree slightly with the right hon. Member for Southampton, Itchen about the business of earlier arrests. My experience in Ulster was that we frequently carried out arrests that were referred to, rightly or improperly, as preventive arrests, at an early stage of the terrorist process. The devices that we were dealing with were unlikely to kill more than, say, dozens of people—and clearly, dozens was too many, but none the less a 1,000 lb bomb in a crowded city centre would kill a lot of people. The only devices that have been successfully detonated so far in our current campaign against Islamist fundamentalism are similar.

I fully appreciate that the young man whom I talked about earlier is serving a 40-year sentence for tryingto design—forgive the phrase—weapons of mass destruction, dirty devices and the like, but I ask the Minister to be clear and to throw some light on the business of why, if we were arresting IRA terrorists at an early stage, we did not then feel the need to talk about such judicial oversight as has been discussed by the right hon. Member for Southampton, Itchen and, very eloquently, my hon. Friend the Member for Beaconsfield (Mr. Grieve). Where does the difference between the two lie, and why should it apply? In my day, we had seven days to detain those people; that was all. As far as I can remember—I should not want to suggest that I was an expert, having been very much at the blunt end—we always managed to produce a successful charge against terrorists within seven days. My view was that when we went to 14 days life would be made slightly easier for counter-terrorism in all its styles, but I began to quail when we moved to 28 days, let alone the proposed 90 days.

I am probably arguing against myself, but perhaps the Minister can help me with this one. I thought that one of the arguments that might be made for a 90-day period of detention, or even more, was about contamination. That problem is something that we did not experience at the hands of the IRA; however, most notably after 9/11 in America, several hoax and genuine threats of the use of contaminative agents of one sort or another have been made. They make it extremely difficult to get to the scene of the crime. I understand, although I do not necessarily accept, the arguments about de-encryption of disks, hard drives and the rest, but I wonder why the Government have not mentioned this issue. It is probably not helpful of me to say it, from the Opposition’s point of view, because I find it quite persuasive. The Minister looks a little confused, but I should be interested to hear his views.

One of the arguments that we have deployed, particularly on the 90-day detention period, is the argument of resource. I think that the Government made the case extremely badly this time last year, and I have no doubt that we shall return to it, either in the fullness of time or, more sinisterly, hard on the back of the next incident, which is coming, I suspect, shortly. May I have clarification from the Minister that he has looked into the argument closely, and can he convince me that if a number of terrorist suspects with overseas connections are held and there are difficulties with translation, encryption, hard drives or all the other things that we have talked about before, the argument is not actually just about resource? Could not we achieve our aim with more police, legal officers and analytical experts, and if our security forces in their broadest sense were properly resourced—as they would have been if we had taken the warning of 9/11 properly, sensibly and maturely, and begun to expand our security forces as we should have done? The Minister has heard me make this argument many times before. Can he reassure me that the argument founders, or is it still a live and valid argument?

My next point is about intercept. It is terribly important to try to divorce it from the campaign in Northern Ireland. I hope that I am not compromising anything by saying this, but I think that it is now widely known that our most active source of covert intelligence against the IRA was intercept, which was used against what used to be called citizen band radio. That is no longer really very relevant. I am talking about 10 or more years ago, when it would have been disastrous to the security forces’ efforts if that style of intelligence gathering had been compromised. I am not convinced that we have managed to pull ourselves out from under the shadow of Northern Ireland. I continue to be concerned about the fact that in recent conversations with Greater Manchester police, officers have said to me, “Please understand that we desperately need intercept evidence to be made admissible. Currently on a regular basis we are turning back individuals, mainly from Manchester airport, who are hellbent on killing themselves in one or another theatre of operations abroad, who have come to terms with death, but whom we can arrest only on lesser charges. They end up with a £50 fine in the magistrates court, at best, and then we return them to the community, prepared to die, at ease with themselves, and determined on their course of jihad. We need desperately to be able to use intercept to prosecute these people—to nail them and send them down.”

I find that desperately persuasive. Those are police officers. None of us in the House is doing what they do. We sit on comfortable seats in warm buildings every day of the week, while those people are out risking their lives, trying to prevent gangsters and thugs from carrying out the inevitable suicide attack, in this case in the centre of Manchester. I simply do not understand why the intercept case is not being pursued with much greater energy and determination by the Government. I should be awfully grateful for a reply about that from the Minister.

My next point is about lesser charging. In my younger days, I was probably the victim of Royal Ulster Constabulary blarney: if it held a terrorist suspect beyond the seven days, it did him for tax evasion, bald tyres or something like that. I suspect that that never really happened—that it was a bit of Irish myth that one tended to believe as an ordinary soldier. However, I am extremely impressed by volume I of the Home Affairs Committee report, paragraph 103 of which states:

“The use of lesser charges was opposed by a wide range of witnesses, who raised serious practical and moral objections. We do not think it would be an appropriate response to the challenges of counter-terrorism investigations.”

As far as I am concerned, that conclusion closes the argument. It impresses me hugely and I am grateful to the right hon. Member for Southampton, Itchen for coming to it. I also read the report’s conclusionson post-charge questioning. To my mind, they are fascinating. As paragraph 104 makes clear, the legislation states:

“A detainee may not be interviewed about an offence after they have been charged with, or informed that they may be prosecuted for it, unless the interview is necessary…to prevent or minimise harm or loss to some other person, or the public…to clear up an ambiguity”

or it is

“in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted.”

That strikes me as very applicable. I challenge slightly what the right hon. Gentleman said about the vast majority of individuals remaining silent after arrest. Having visited a trial currently going on at the Old Bailey, my impression is that that is not the case. I should be interested if the Minister threw some light on the issue. If post-charge questioning is relatively easy to do and the legislation exists to do it, why are we not doing it? Would it not help?

The key difference between the two reports is that the Joint Committee on Human Rights particularly emphasised the need for a court to be able to draw adverse inferences; the Home Affairs Committee report did not focus particularly on that issue. Being able to draw such inferences makes a difference: if a suspect knew that if he refused to answer questions, the judge would say to the jury, “He wouldn’t answer; members of the jury can decide why he didn’t”, that would concentrate his mind. If he did not answer, the jury would know where it stood.

That intervention is well made, I am sure. I have no doubt that better trained legal minds than mine will clear up that point.

The main point is about the 28 days or 90 days. I shall be brief about that because to my mind it is very simple. According to my experience, the extension to14 days seemed reasonable and probably desirable. I found 28 days difficult to swallow and 90 days impossible to swallow.

My case is simply this: in 1975, I arrived in Northern Ireland as a second lieutenant and came across men on the street who had just been released from internment. They struck me as reasonable and balanced. If we looked at their backgrounds or questioned them carefully, we found that they were certainly republicans. Their families might well have had a history of violence, and they were certainly sympathetic to the cause.

I am generalising hugely; there were others, of course, who clearly were bad hats. However, many had been changed from being reasonable men into extraordinarily angry men, from principled men into firebrands and from passive men into active supporters and recruiters for a violent cause. I worry very much that if we go beyond the current limits, which I can just about take, we will be in danger of creating a whole new generation of recruiting sergeants—people who will move back into the vulnerable communities from which they have been drawn in the first place. If they endure 90 days in the sort of conditions that I have just seen in Belmarsh, where individuals on remand are treated in precisely the same way as hardened criminals who have been found guilty and face a 40-year sentence, they will go back to their communities and preach the word. Alternatively, they will be used as icons for those who choose to preach the word in a most ardent and articulate way. That would be a huge mistake and weaken our efforts against terror. Rather than helping, it would make things more difficult.

The hon. Member for Newark (Patrick Mercer) certainly has more extensive and recent military experience than I. We listened with great interest to what he said about his experience in Northern Ireland.

I am glad that we have the opportunity today to discuss the two reports. I am a member of the Home Affairs Committee, and I enjoyed—if that is the right word—our inquiry. At the end of the day, I could not go along with the report; I voted against, for reasons that my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) knows about. However, I hope that he, other members of the Committee of all political persuasions and I came to certain common conclusions.

There is a difference between the IRA murders and the terrorist threat that we now face. The IRA murdered indiscriminately; for example, 21 people were murdered in Birmingham, quite near my constituency, in November 1974. The IRA certainly did not take steps to minimise the murders. There was alsothe Guildford bombing, and the bombing on Remembrance day 1987 in Northern Ireland, where most of the atrocities were committed. Of course, there were also loyalist murder gangs who murdered ordinary civilian Catholics who were in no way involved in paramilitary activity.

I suppose that the present-day mass murderers are different to this degree: they bring religion into it. They believe that they are carrying out the will of the god in whom they believe and that they will go to paradise. I doubt whether the IRA murderers took the view that they would go immediately to heaven, but the present-day terrorists believe that they will, and that they will wake up with 72 virgins or otherwise.

Sometimes it is said that those of us opposed to any further extension of detention time place far too much emphasis on civil liberties at the expense of protecting this country against terror. That accusation is common. It is not necessarily made by the Government, but the argument has gone—even more so since 7/7—that we are so interested in civil liberties that we do not understand the acute terrorist threat.

I do not believe that that accusation is right in any way. The hon. Member for Newark said that he was satisfied with seven days, and could accept 14 days and just about swallow 28 days. It is interesting to note that in the House of Commons and the House of Lords, the debates on the increase in the period of detention without charge from seven to 14 days occurred without any Divisions. Of course, there were reservations; only a very odd House of Commons and House of Lords would be willing to increase that period without expressing concern and reservation, bearing in mind this country’s long tradition that people should not be held for such a long period without being charged or released. The 14 days was agreed to in the House of Commons on 20 May 2003, without any Division; in the Lords, it was agreed to in October of that year—again, without a Division.

I have tried to recollect my views at the time. I am almost certain that I did not participate in the debate because in 2003—before 7/7, of course—I was persuaded that since there could be an acute terrorist attack, it would be reasonable to increase the period from seven to 14 days. I always went along with the view that some atrocity would happen, and I continue to take that view.

My concern arose when it was proposed that the period should be 90 days. It is interesting that the28-days amendment was accepted, again, without a vote. The hon. Member for Newark said that he swallowed it with some difficulty—so be it—but there was no vote. The Conservative Opposition did not vote against 28 days; neither did the Liberal Democrats. Of course, just as when we moved from seven to 14 days, there were concerns and reservations. We would all like to reduce the period when it is appropriate to do so, but, given the circumstances at the time and the terrorist threat faced by this country, it was agreed to increase it.

There is a reference in paragraph 144 on page 45 of the Home Affairs Committee report to what I would describe as a foolish and rather misguided move by Government ultra-loyalists in the House of Lords to extend the period to 60 days. As stated in the report, it was defeated by 210 to 108 votes. I understand that the Government decided that they would not involve themselves one way or the other but would leave it to the Lords to decide. It would have been much better if the Government had told the ultra-loyalists that it was a foolish step to take and had tried to persuade them—perhaps they would not have succeeded—not to do what they did.

The extension to 14 days did not come into force until 20 January 2004, and much was made of that in the debate on 90 days on 9 November last year, as hon. Members may recall. The extension to 28 days came into force on 25 July. There is an interesting point that the Minister may wish to explain. If there was such urgency, if it was essential that 90 days should be brought into force, why was there such a delay before the Act came into force? There seems to have been, shall we say, a certain lack of urgency, despite what the Government said in the debate last year.

I tried to find out how many of those who were detained and then released were later charged with terrorist offences. I tabled two parliamentary questions and on each occasion was told that it was not possible to answer on grounds of cost. It is an impertinence to the House of Commons that we should be denied an answer on an issue as important as how many people are detained, released and then charged—or not charged, as the case may be—with terrorist offences.

I am glad that my hon. Friend the Minister has given me a note assuring me that the Home Office is looking into the matter. I hope that he will not mind my mentioning this, as in some respects it was a private conversation. I asked him whether we could have the information for this debate, but he said, “No, it has taken too much time.” Taken too much time? How many people have been held and then released? I know that the Home Office computers are not always what they should be, but I should not have thought that obtaining the information would be so difficult. Perhaps the Minister will explain the problems when he replies.

Bearing in mind that 28 days has been in operation for some five months only, I hope there will not be a move by the Government to reintroduce 90 days. There is a rumour going around—in fact, more than one rumour—that they will, but it would be wrong to do that. It would certainly divide the House again, but, for all I know, the proposal may be carried. Some of those who voted for 28 days as opposed to 90 days—but perhaps not my hon. Friend the Minister—may change their mind. I have not carried out a survey among colleagues who voted for 28 days as opposed to 90 days, but neither have I found many who have changed their mind. Indeed, I have yet to find anyone who has.

It is clear that any proposal for 90 days or, indeed, for 45 or 60 days—there are other rumours—would cause the same difficulties for the Government. There will be the same bitterness and controversy in Labour’s ranks. I should have thought that we could avoid that.

If there were compelling, clear, hard evidence that an extension is necessary, I believe that the House of Commons would agree to one. But since the 90 days debate—in the past few weeks—the Attorney-General has said that he has not seen any evidence that persuades him to support an extension. Imagine the Government reintroducing the proposal. Even if the Attorney-General were to change his mind by that time, it is obvious that Labour critics such as myself and Conservative and Liberal Democrat Members would endlessly quote what he had said. The most senior Law Officer in the land has said that he has seen no evidence to justify an extension beyond 28 days.

My advice to the Government—they may not want any advice from me; so be it—is to accept the fact that Parliament agreed to double the detention period from 14 to 28 days. To repeat myself, it has been in operation for only five months, the most senior Law Officer has stated that he has seen no evidence to justify an extension, and both Select Committee reports had reservations and so on but came to the same conclusion. In such circumstances, I hope that the Government will let the matter rest for the time being.

I am pleased to speak in this debate on two such excellent reports.

Terrorist attacks involve gross violations against the individuals who are killed or injured, obviously, and gross violations of the fundamental values of civilised democratic societies. We live in a world where terrorist attacks are a reality and we must adapt to the current climate. Some of the new terrorism powers, such as the offence of acts preparatory to terrorism, are therefore entirely justified, but others, such as control orders and the extension of the power to detain without charge, bypass traditional principles of due process and so present us with a challenge to find the line between security and liberty.

It is critical that counter-terrorist measures respect human rights and the rule of law. If their sweep is too broad or arbitrary, they may be counter-productive, in that they risk alienating the very sections of the community whose close co-operation and consent is required if terrorism is to be defeated.

There is concern that the Government may seek to bring back a provision for 90 days detention without providing supporting evidence. I hope that they have heard enough to understand that, having been bitten in the first outing, they should not come back to the House unless their evidence is incontrovertible.

The Home Affairs Committee report focused on problems with how the arguments were presented and on over-politicisation of the issue. It concluded that pre-charge detention has become as much if not more about preventing possible future crimes as the investigation and prosecution of crimes that it is suspected have been committed. That shifts us from traditional principles of British justice. The summary states:

“It is clear that the change in the nature of the terrorist threat has lead to an increasing number of cases in which the arrest has come earlier than would be otherwise the case, because these arrests are primarily intended to protect the public by disrupting terrorist conspiracies. One of the key conclusions of our inquiry”—

which was controversial—

“is that the preventive element of some arrests under the Terrorism Acts should be given clearer and more explicit recognition. Preventive detention is a significant new development, and one that was not made explicit during the passage of the Act.”

So, detention because of what someone might do in future rather than what they are suspected of having done in the past constitutes a real change to our traditional right to liberty and a significant shift in the scales of justice away from innocent until proven guilty.

Having read the report from the Joint Committee on Human Rights that came out after ours, it is important for me to clarify the intention of the Home Affairs Committee. We are not suggesting that the power of detention should be used in circumstances when nobody dreamt for a moment that they would be able to bring a case to court, but more that in a case where everything in an investigation is leading towards an arrest that would lead to conviction, the police might decide that they needed to go in earlier than they would if a more minor offence was under investigation. I want to draw the distinction, because we certainly were not advocating a general power to go round taking people off the streets on the grounds that sometime in the future it might be necessary to arrest them. It might be useful to make that clear. It is clear from both reports that our report has been slightly misinterpreted and possibly includes some infelicitous language on the subject.

I thank the right hon. Gentleman for that helpful clarification.

I turn now to the general subject of detention. The level of threat that we are informed we are facing is so great that I am sure no politician of any persuasion in the House of Commons would simply say that there can be no change to and no infringement of civil liberties, rights or freedoms. I have not found it helpful that we have stood accused of being soft on terrorism because we have raised concerns, put arguments and questioned the draconian request for such a great extension. The shift has to be demonstrated to be vital to the safety of the state and its citizens, because detention without charge strikes at the heart of British justice. That is why the Government were defeated on the last outing we had on the matter of 90 days. However, as the right hon. Member for Southampton, Itchen (Mr. Denham) said, we did shift to a doubling of the time for which someone could be held and that was quite an extension on skimpy evidence—more of a compromise than an evidence-based shift.

I hope that the Government were bitten by that experience and that if they come back again, they will do so based on sound evidence. The police did not help the Government with their argument, although I hear today that there was more evidence than we were privy to. The quality of the evidence presented in the House and the example of the ricin terrorist skipping the country considerably damaged the case for those of us who were trying to make an honest judgment about the evidence before us. The aeroplane plot, which the police and intelligence service foiled brilliantly last summer, did not point to their conclusion either. It strained resources and went to the wire in terms of the 28-day limit—the police say that they were up against it and able to bring charges on the 27th day at the eleventh hour. To me, that is a resource issue and not entirely to do with curtailing freedoms.

The problem for the Liberal Democrats has always been that civil liberties seem to go as the first rather than the last resort. One problem is that when we are trying to work together and to trust the Government, the argument that is made for accommodating an extension against our usual liberties is that it will be used only in extreme circumstances and that great care will be taken, with great supervision. Then, to use a well-worn example, we see the farcical absurdity of an old man being held under anti-terrorist legislation for heckling at a Labour conference.

indicated dissent.

I see the Minister shaking his head, but that probably was an accidental and not very brilliant example. My next example puts in a nutshell some of the difficulties that we face as Members of Parliament in representing our constituents. Into my surgery came Mouloud Sihali. He was tried and acquitted in relation to the Wood Green ricin plot, but it is clear that the authorities still suspect him.

As I have mentioned, the ricin plot was used as justification for extending the period for which people can be detained without trial. It is true that one person skipped to Algeria, but he was actually released after only two days, so even under the law as it stood the police could have kept him in detention for much longer if they had wanted to and he could have been charged with acts preparatory to terrorism. I keep returning to this point: if he was a major terrorist whose existence would justify detention without trial for 90 days, why did the police let him go after two?

Mr. Sihali came to see me because he is under a virtual control order, without being under a control order per se. Despite being cleared and acquitted of the ricin plot and freed—he was allowed to go completely free—for five months, he is now tagged, under curfew, not allowed to have a mobile phone, to use the internet or to have visitors to his room, and he has to report each day to the police. My concern is that he was completely free for five months. If the authorities are convinced he is a terrorist, why was he allowed to wander round completely free for five months? Did they change their mind back and forth as to whether he was a terrorist, and if they have changed their mind, how good was the basic evidence?

Mr. Sihali is facing deportation as a threat to national security, but the evidence will be judged in secret and will never be seen by either a normal court or Mr. Sihali. He has been convicted of a passport offence and was in this country illegally, so I do not have a problem—nor does he—with deportation on those grounds. However, he is facing deportation on the grounds of being a threat to national security and if he is deported on those grounds, for the rest of his days he will have the stigma of having been thought to be a terrorist. That is an awful burden to carry, unless he really is a terrorist. The point is he will not have the chance to argue his innocence and he argues that he should be given a chance to clear his name.

I had sitting in front of me in my surgery the whole problem in a nutshell. It was about the issue and legality of some of the powers under the Terrorism Act 2000—about control orders and secret evidence, the terrorist threat and civil liberties. If we get it wrong either way we face huge consequences—either letting a terrorist go free or tarring an innocent man for life. He is one of my constituents, but would I be fighting to help an innocent man or aiding a terrorist? I have no idea without knowing what the secret evidence is. The only route that I can follow is to get a meeting with the Home Secretary, which I am trying desperately to do.

For me, that sums up how the legislation comes down to the coal face of reality when we try to deal with such issues. I would prefer it if the reports made some suggestion that might allow a charge to be made on other grounds, by using the lower threshold, post-charge questioning or intercept evidence—anything that would enable steps to be taken towards bringing a charge or prosecution—rather than this no-man’s land where I, Mr. Sihali and a great number of people have no idea where the truth lies.

As the report by the Home Affairs Committee indicated, the nature of the terrorist threat might well have changed beyond all recognition compared tothe threat posed by terrorism connected with Irish republicanism. However, although the nature of terrorism might be changing, it is absolutely essential that the rules and framework of international law within which it must be tackled do not change. The close scrutiny by the Joint Committee on Human Rights of the Government’s counter-terrorism legislation has sent a clear message: national laws might change in the wake of an attack to the extent required by human rights law, but the applicable human rights rules should not.

I found it interesting that the Joint Committee on Human Rights used France and Spain as examples where prosecutions are public and where open trials go on according to criminal procedures. By contrast, in the UK there appeared to be a fear among the police and security services that criminal prosecution using intercept evidence would inevitably lead to sensitive sources being revealed in open court, which leaves the need to resort to the use of administrative detention, control orders and memorandums of understanding with foreign countries instead of prosecution.

The Joint Committee report also makes a number of suggestions that many hon. Members have spoken about today, so I will not hold up the Chamber by reiterating them all. Apart from those matters that I have already mentioned, on which the report is good, I note the stress that it places on the importance of turning intelligence into evidence. That is critical. We need to move more towards evidence rather than simply holding on to intelligence in the hope that, in time, further evidence will be accidentally produced. I hope the Government will make a note of that, particularly the section on intercept evidence. The irony is that the Government are willing to lock up suspects without charge, but not to use intercept evidence to prove their case and to convict. What is the purpose of incarceration without a conviction?

The Liberal Democrats wish to see the bar on intercept evidence in criminal trials removed. The inadmissibility of intercept evidence must be a major factor in not being able to bring charges. We presume that much evidence must be gathered by way of intercept, and that it would not meet the relevant charging standards. Continuing inadmissibility means that charges cannot be brought so easily. Earlier this year, Lord Carlile reiterated his view that

“there might possibly be a few cases in which it would be appropriate and useful to deploy in a criminal prosecution material derived from public system telephone interceptions and convertible into criminal evidence".

The JCHR concluded that

“the ban on the use of intercept evidence in court should now be removed, and attention should be turned urgently to ways of relaxing the ban.”

As we heard from other Members, the Attorney-General too has come out recently on post-charge questioning and so on.

I shall summarise. Our country faces a deadly threat. All sides in the House agree on that. We are fortunate that our police and intelligence services have been able to disrupt and prevent so many attempts to bring death and mayhem to our streets. Laws that prevent an act from taking place by restricting liberty or removing due judicial process must, as the right hon. Member for Southampton, Itchen said, be kept under constant scrutiny and examination, and be constantly improved, lest they cross the line of absolute necessity.

Section 44 of the Terrorism Act 2000, for example, allows stops without reasonable grounds for suspicion. Applications under that provision are made for particular areas, and once they are made the police do not need to apply the normal grounds in order to stop and search. Since coming into force, that section has been applied over the whole of London all the time. Once a power is given, its use can be seen as convenient—it is there in perpetuity rather than being used only for the extreme circumstances for which Parliament granted it.

I urge the Government to heed and take seriously the findings and conclusions of both these excellent reports.

It is a pleasure to take part in the debate and I welcome the opportunity to discuss the reports. I am grateful to the Select Committee on Home Affairs and the Joint Committee on Human Rights for producing them. They both strike me as being full of useful and interesting material that can make a powerful contribution to the debate.

We have to face up to the fact that when serious legislation has come to the Floor of the House over the past 12 months and beyond, we have been in the midst of a rather fevered debate. That is profoundly unsatisfactory, because there clearly is a common meeting of minds on many of the things on which we have to make a decision, just as there has been today.

I start with something that may seem so basic that it is not worth saying. I entirely agree with the Home Affairs Committee that we face a serious terrorist threat. I have had the opportunity of debating that in the past, but I restate my belief now, not least because I deal with community cohesion matters for my party, that my experience leads me to suppose that the extent of the threat may be understated. I have no difficulty with the figures recently put forward by Dame Eliza Manningham-Buller. I regret to say that they are entirely in keeping with the impressions that I get when travelling up and down the country doing my community cohesion work.

After the July bombings, there was a slight sense that the Government, perhaps with a desire to reassure the public, projected the impression that the bombers came from Planet Tharg—that they were from outer space—and that those monsters who had suddenly appeared in our midst could be isolated and removed. My conclusion, painful though it may be, is that that does not bear scrutiny. The bombers undoubtedly have international connections, as do other terrorists threatening our country, but they are also a home-grown phenomenon. They are deeply embedded in certain sections of our society and, as I said, they are angry and alienated, and have chillingly distorted perspectives about the general state of the world and the society in which they live.

That is a big challenge for us all. It is precisely that challenge that has always coloured my approach and that of my party to the matter of security. At the end of the day, there are no short cuts to be had. I fear very much that the problem will be with us for some time—we could easily be talking of one or two generations. It will be a battle for hearts and minds. It will not be a clash of civilisations, but a battle about values. We will win that debate if we are strong in asserting our own values, which will allow a much better environment to exist, in which people of diverse faiths and backgrounds can live in peace, prosperity and freedom, than the alternatives.

For that reason, we must be careful how we deal with the security issues relating to terrorism. In all our debates—whether over 90-day detention or over control orders, which oddly enough I believe better highlight the problem—we must be careful that what we do does not give even an impression that might undermine our core values of freedom and the rule of law in the process.

Language matters. Even the way in which the Government come to the House to ask for more powers matters, because it can send out powerful signals about the underlying intentions that they—and we, if we co-operate—have. Many of the communities from which the bombers and terrorists spring are affected by profound paranoia, believing that inimical forces are working against them, their religion and their community. Our actions can therefore act as a powerful fuel, making the engagement process that can bring them out of that mindset much more difficult.

It is with that in mind that I shall deal with some of the issues that both Committees have considered. I start with 90-day detention. Much has been said, and I do not wish to go over old ground. However, the simple fact is that when 90-day detention was introduced in the Commons, the case for it was not properly made. A decision taken by an ACPO committee—as I said earlier, it was soon revealed by subsequent inquiry that it could have been divided on the question, with some members feeling that they were being hijacked into making a precipitate decision that might have an adverse impact on relations with the Muslim communities in Britain—was translated into flimsy bits of paper, as highlighted by the right hon. Member for Southampton, Itchen (Mr. Denham). In the course of two weeks of polemic, it was elevated into holy writ.

That illustrates precisely how not to approach such debates. I have always accepted that there were powerful arguments for extending the 14-day period to 28 days. I entirely agree with the right hon. Gentleman that we did not decide 28 days on a rational basis. It was a compromise, based on gut feelings and talking to people. I suspect that we probably got it about right. Indeed, I have seen persuasive evidence for 28 days. However, it is a regrettable fact that, at the time we debated it, I doubt we had a rationale behind the decisions. The evidence simply was not available for the 90-day detention period and I am interested to learn that the Attorney-General’s current view is that an extension beyond 28 days is not justified. I am pragmatic, as is my party, about these issues. If powerful and persuasive arguments can be advanced which indicate that a move from 28 days needs to be made, we will consider it and if necessary we will restrict our distaste for it. However, at the moment the argument is not there and I will need a lot of persuasion and evidence to shift my position. That is not to say that, on our part, moving from 28 days becomes the ditching of some holy writ; it does not. But we must bear it in mind that every day that we extend the principle of pre-charge detention, we are subtly completely undermining some of our basic, core legal principles, and it rapidly turns into detention without trial.

The hon. Gentleman makes some important points. Will he acknowledge that one of the difficulties is that if we consider statements by Ministers, there is not much that justifies the case for an extension beyond 28 days? The Chancellor, for example, has spoken on this matter a number of times over the past year and generally used words that are similar to those used in the conclusions of the Home Affairs Committee report—a willingness to go beyond 28 days if the evidence justifies it, but no more than that. In addition, I am not aware that the Home Secretary has said anything that significantly varies from what the Committee said.

One of the difficulties is that a number of newspaper stories claim that somebody from some newspaper has been told that there is the intention to introduce a measure to extend the 28 days, but the story is not sourced with any great authority. The Attorney-General’s view may reflect the current Government position that they will consider the issue, but that a case has not been made for an extension. In which case, it would be enormously helpful if they could make it clear whether that is their position and that they would not rule out a change if the evidence exists. Some of the background noise in the media about this subject may be contributing to the wider problems that the hon. Gentleman quite rightly raised.

I agree entirely. In fairness, I do not know the circumstances in which the Chancellor said what he said, although it was taken up by the newspapers. If the Government’s current position is, indeed, that there are no grounds for departing from28 days, they should simply say so. That would, for the moment, put the debate to rest. If the debate has to be reopened at some later date because of further material that the Government wish to present, that is fine and we would consider it. The danger is that the occasional comments that emerge and that may have been distorted appear—perhaps not to the press, but certainly to the public—to be a bit like kite flying. Such statements seem to indicate that somebody is positioning themselves to make an announcement, or alternatively is engaging in an internal competition with others, to point out that their credentials on issues of security cannot be impeached from either the right, the left or anyone who believes that security is paramount. That is regrettable as these are important issues. We should not be making suggestions about what we would be prepared to do unless we have to face up to a situation in which it is time to persuade people that it needs doing. Tone does matter.

I mentioned control orders. I am a beneficiary of control orders, as I discovered, rather bizarrely, six months after the debate that my award for parliamentarian of the year was on the back of my performances at the Dispatch Box over a 36-hour period during the control order spat. However, what is so ridiculous is that it is now known as the debate about whether or not to have control orders. That was not the subject of the debate. Everybody accepted that there was a need for control orders following the Belmarsh ruling in the House of Lords. The debate was actually about whether there should be a sunset clause. I was glad to see a reference in the Joint Committee’s report to the need to have sunset clauses—perhaps rather longer ones than we envisage, but nevertheless there is a recognition of the need to keep anti-terrorism legislation under review. When I spent 36 hours atthe Dispatch Box—not, mercifully, continuously but a 36-hour period without much sleep—we were debating a quite narrow issue. That is not conducive to sensible debate either.

I shall try to make this my last intervention. The hon. Gentleman needs to explore a possible contradiction in his position. I agree that we will face this problem for a generation or more, but the concept of the legislation we are introducing having sunset clauses of one, three or five years sits against that. There is a constant need to review legislation to see whether it is appropriate, and one reason why I welcomed the announcement by a previous Home Secretary for a consolidated terrorism Bill is that we need a framework of anti-terrorism legislation that will last for a generation—that is the nature of the problem that we face. I hope the consolidated Bill is more than a legal device for sticking everything into one piece of legislation.

The right hon. Gentleman makes a good point. One of the problems in the debate on control orders was that, as he will recollect, the sense of urgency when it was announced was such that the whole thing was rushed through Parliament in a way that was bound to raise hackles. He may recollectthat in Committee and on Report vast chunks of amendments were sensibly tabled to the Bill, but there was no opportunity to consider them—causing fury not only for our party, but on the Labour Back Benches. There was a remorseless sense that unless one signed up immediately to support the Bill, one was almost treasonable or aiding and abetting terrorists. That is a very bad state in which to legislate.

I entirely welcome the suggestion that we should have full legislation and, as the right hon. Gentleman will recollect, the final compromise came when the Home Secretary wisely announced at the Dispatch Box that although he was not prepared to concede a sunset clause, he was prepared to concede to Lord Carlile’s review. Major consolidating legislation would then offer the opportunity for amendment and full debate on every aspect of our anti-terrorism legislation. I repeat what I said when I intervened on the hon. Member for Hendon (Mr. Dismore): I hope that the Government keep that promise. The suggestion that this consolidating legislation may just be a rubber stamp exercise to bring together everything that is currently on different statutes into one piece of legislation, would be, to my mind, a flagrant breach of the undertaking that I understood had been promised at the time.

I hope that the Minister will tell the Home Secretary that it is in the interests of the Government and, indeed, the public that we should have an opportunity for reviewing the armoury of legislation that we now have—some of which has never actually been used or may not even have come into effect. We need a sensible and comprehensive piece of legislation. That can be done, but it means that people have the right to question what it is made up of.

There are many references in the reports to thresholds for prosecutions and holding charges. I appreciate from that that it is probable that we who are lawyers and have participated in earlier debates may have failed hon. Members by not communicating something that was obvious to us, but not to others. I am afraid that that sometimes happens and I was struck by the bit in the report dealing with thresholds for prosecutions. It has long been the case that the test for the threshold as to whether to charge may be a lower threshold where there is reasonable anticipation that more material will come to light. In the context of drug importation and all sorts of other things with which I have been involved, such as ordinary crime, that is a common place. Therefore, it is something that was always in the back of my mind when considering the necessity for a 90 day pre-charge detention. I imagined that it was in the back of the Government’s mind as well and I shall be interested to hear from the Minister about that. I may be a bit muddled, but I should be grateful for clarification as to why, apparently, it might not apply to certain terrorism cases, because I am mystified by that. I do not see why terrorism cases are any different in their nature from any other form of criminal activity in this respect.

On holding charges, I am slightly concerned that we might be giving a mistaken impression. Of course charging someone with a holding charge merely as a pretext for detention cannot be tolerated, but charging someone with an offence for which there is plainly material to justify it and when one intends to bring them to trial, with the knowledge that there are other, more serious matters that one wishes to investigate so that one is happily able to marry the two things together from the point of view of preventing crime, is perfectly acceptable and, indeed, is done all the time.

rose—

rose—

I shall give way to the right hon. Gentleman first, because he rose marginally more quickly than the hon. Gentleman.

Our Committee’s view was that if one could charge someone with acts preparatory to terrorism under the new legislation, believing that one would be able to do more than that, that would clearly be fine, but the other end of the spectrum—charging someone for not having lights on their bicycle—would not be acceptable. The difficult area perhaps—this does occur—is whether it would be acceptable to charge someone and detain them for, say, immigration offences, which could affect a large number of other people but would not necessarily lead to a terrorism charge. Our feeling was that if the offence was directly related to the terrorism, that is fine, but if one is on a fishing expedition to find something else with which to charge someone as a reason for detaining them, one is getting into a difficult and, at best, a grey area.

I understand the point perfectly, but police investigating an alleged terrorist plot may well go to someone’s house and find three or four passports of different nationality. There is clear evidence that the individual involved has committed serious passport offences. I would expect him to be charged with and prosecuted for those offences in any event, and if he is convicted he will receive an appropriate penalty and he may, if he is a foreign national, be deported. If that facilitates further inquiry and investigation into the terrorist conspiracy, that is the good fortune of the investigators. As a prosecutor who has been involved in many prosecutions in the past, I feel entirely comfortable with that. What one cannot do is trump up charges or take something that is utterly trivial and use that as an excuse. In that respect, I see the distinction.

I am grateful to the hon. Gentleman for that clarification, because it was one of the points that I was going to make and was made to us very strongly by the Director of Public Prosecutions when we met him. We could end up causing more problems than we solve, however, because once someone has been charged, they can apply for bail, and if it is a trivial offence, they may well get it and therefore they are out and about, and we have lost track of them.

That is always a risk, and I am sure that those who charge people are always mindful of the problems that can be caused, but let us consider what happens in some cases, particularly if a foreign national is in this country illegally, for example. If someone has been arrested on one matter and there is clear evidence of alleged criminality, it is probably likely that he will be remanded in custody, which may be greatly to the advantage of both the security of people and the investigation.

Another issue that was raised is adverse inferencesin terrorism cases in post-charge interviews. I am a believer that there can be no logical reason for not facilitating post-charge interviews. Provided that such an interview is subject to suitable safeguards, itshould be perfectly possible to draw, in respect of a post-charge interview, the adverse inferences that can be drawn in respect of a pre-charge interview. Indeed, it would be illogical if that were not possible. If I may say so to the Minister, I think that if it requires primary legislation, he will have the support of Opposition Members. We will have to examine the issue in detail, but I do not see it as a serious difficulty.

Much has been said about intercept evidence. I fully accept that it is not a panacea and that it presents difficulties. Linked to that is the issue of judicial oversight, which has cropped up in the context of dealing with intercept evidence and possibly managing a public interest immunity process or, more widely, supervising terrorism investigations altogether.

I am half-French by background, but I could not claim to be an expert on the French system. However, I do worry slightly at times that there seems almost to be a group of mermaids sitting on a rock across the channel—the French system seems to have a magnetic attraction for the British Government. Somehow, things are all so much simpler and easier in France because of the administrative powers that can be had, the long detention of people under investigation, and the investigating and examining magistrates. I happen to believe that our common law system is superior, but that is not to say that we should not be looking at what the French are doing.

As I said in an intervention, an examining magistrate is not really an independent judge at all. He is a sort of super-prosecutor designed to provide some level of public reassurance of independence outside the mainstream prosecution service. One need only go and see the way in which such a person operates, including meeting the police and the prosecutors at intervals, to see that he is in fact a prosecutor. We have a long tradition in this country of trusting prosecutors to take independent decisions in the interests of justice. If we are looking for a model such as the one suggested, it is within the Crown Prosecution Service and through the DPP that we should probably be seeking the sort of person we want, rather than—if I may use this expression—tainting the judiciary by using that title for something that is alien to judges.

The right hon. Member for Southampton, Itchen will remember that when we had the control order debate, Parliament wanted to give the judges the power to scrutinise the process. The judges did not like that a bit. They went along with it, but they were not happy with it, because they felt that it was dragging them into an arena that was not their key role.

When we went to France and Spain, I had an open mind but was probably slightly in favour of importing the investigating magistrate system. However, having had discussions with Judge Brugière in Paris, my views started to change quite rapidly. It was clear that the system there is absolutely integrated with the law enforcement process. Judge Brugière was proud not only of his close links with the French anti-terrorism police but of his links with the French intelligence services, so it is correct to say that such persons are not part of the judiciary as we would see it. A much more parallel role would be that of the DPP and the CPS, which is why we came to the recommendations that we did.

I understood that from reading the report. The French system may provide greater flexibility, but it also shows that if an examining magistrate gets a bee in his bonnet, that can lead to terrible miscarriages of justice or, at the very least, to people being detained sometimes for very long periods that turn out to be unjustified. We need to bear that in mind. Countries have different systems. The French and ourselves strive for justice, but we should not abandon lightly some of the principles that we enjoy in this country.

I am conscious that I have spoken for longer than I intended and I shall bring my remarks to a close, covering only, I suspect, some of the issues raised in the two very valuable reports that we are considering. I hope that the Government use the opportunity provided by this debate and other opportunities that may arise for dialogue with other political parties and those outside the House, to understand that there is a real willingness to tackle the issue together. The problem that we are discussing is a common one. We are all equally likely to be blown up or killed. The threat is fairly ubiquitous. None of us wishes to jeopardise the security of the public. It is a long-term problem, but we have to get our country through it successfully as a free and peaceful place, and the maintenance of freedom requires quite a lot of vigilance. Shortcuts, in my experience, do not work. It is with that in mind that I hope we can approach any review that we carry out of our anti-terrorism legislation.

The Government welcome both reports. They are studied and well informed and offer a lot of food for thought, so I congratulate my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and my hon. Friend and next-door neighbour, constituency-wise—he does not live next to me—the Member for Hendon (Mr. Dismore). The debate is timely. I have copious notes on the questions, but I do not have every specific answer, not least because of where we are, which I want to come on to. I am referring to the Government’s response not just to the two reports, but more broadly in respect of counter-terrorism.

I think that a number of things should be recognised. Before dealing with them, let me say in passing that one of the last occasions on which I faced the hon. Member for Newark (Patrick Mercer) in a parliamentary forum was on 7 July 2005. I think there is an apocryphal story about it, but it is also in my memory. I do not think that we were discussing terrorism and ID cards in connection with what was then the Identity Cards Bill, but we were discussing ID cards. I commend the hon. Gentleman on his sources, because very soon after I received a bit of paper, he did too. Without wishing to be unkind, mine had more on it, but it had information that there had been a series of bombs on the underground network.

As the hon. Member for Beaconsfield (Mr. Grieve) said, if anything the threat has grown since then, so Dame Eliza Manningham-Buller did not make a slip of the tongue in the number that she quoted in her recent speech. The intelligence services have previously published lower numbers, but we face a threat that, although it may not be growing exponentially in the strict mathematical sense, is certainly growing apace. Our response must grow likewise.

I accept all the points made by the hon. Member for Beaconsfield about—if I may paraphrase—semiotics, symbolism, voice and language, and the sensitivities that surround all these issues. However, although I do not impugn anyone in the Chamber, if we are tohave a mature and reflective parliamentary debate those points go strongly both ways. Impugning and undermining the Government’s motivation for particular proposals is as unhelpful to robust debate as Government outriders impugning the motivation of others. I do not do that in this Chamber, nor shall I do it as and when, which is likely, a terrorism Bill is introduced in this Session.

I do not want to go into the events of August other than to acknowledge both their measure and magnitude, and that they happened. However, it is important to note that there has not been, thus far, an emergency Government response or another 36-hour pirouette at the Dispatch Box by the hon. Memberfor Beaconsfield. The Government have not rushedto judgment, or to amend and fill—suitably or otherwise—gaps in the terrorism legislation. That is right and proper. Hon. Members are aware that the Prime Minister charged the Home Secretary with examining in the round everything that we do in the counter-terrorism effort. That effort includes legislation, as well as action in the propaganda battle and in the war of values and ideas that has been mentioned by hon. Members, which is the nature of what we are dealing with as much as a war on terror.

It is important also to say that at the appropriate moment we hope to publish some of the parts of the review that can be published, including a review of where we are with legislation. I am not offering any timetable, or any definitive answers to the question of what such a Bill would contain. There is, however, active discussion now rather than absolute silence on whether there should be a Bill and on whether there are significant legislative gaps on which we should proceed in focusing on counter-terrorism activities.

My right hon. Friend the Member for Southampton, Itchen already knows that one should not over-interpret what one reads in the newspapers, or listen unduly to the noises off merely because there is silence from the main stage. The noises off are not terribly helpful. We are about the business of trying to get where we need to be on a consensual basis. Given the sensitivities, I accept that in this area above all others things are far better done—and the country is far better served—if we move forward consensually.

For rhetorical purposes or otherwise, there have been suggestions that have over-egged the pudding as to the certitudes of some alternatives. There are, and there will remain, huge problems—the Attorney-General recognises that as much as anyone—surrounding the legal framework that should be put in place to secure intercept evidence as a further valuable weapon. The issue should be turned around and people should ask: if matters were as simple as is sometimes suggested, what would be the perverse interest of this or any Government in resisting the urge to grasp such a simplistic, obvious panacea? Serious issues are being considered—not least with the legal framework. Public interest immunity was one model, but there may be others. I hope that we shall give an informed view on that in the not too distant future, based on the current review and the views of the Attorney-General and his work.

The matter is not, contrary to what some suggest, one of simply flicking a switch so that everything is fine and another element in the exercise is completed. The hon. Member for Beaconsfield shakes his head. I do not want to be partisan, but the right hon. Member for Haltemprice and Howden (David Davis) ended his Evening Standard article barely weeks ago by saying, in effect, that introducing intercept evidence and post-charge questioning would mean “job done”. He put it in those stark, simplistic terms, which let down both him and the debate. Intercept evidence is actively being considered. Notwithstanding the point that was made by the hon. Member for Taunton (Mr. Browne)—he has now left—about Privy Councillors, there has, as far as I am aware, been engagement at Privy Council level with the security services and others about the nature of those issues and concerns. If there are ways to adopt it, the likelihood is that they will be examined. If there are reasons not to do so, so that we need to shut down that option, the Government will say so equally. The review is needed and it will come to fruition in the near future.

Intercept has been under active evidence consideration for ever. The Minister and I have been having these discussions for a very long time and I return to the point that those at the sharp end are saying that they need it, and quickly. I absolutely accept that it is not a panacea and that were it to be introduced that would not mean that the job was done, but can the Minister give us any idea of when the review might be complete?

As I said, as soon as possible, I hope. I do not have the whole timetable to hand, nor in my head, because we are coming to the end of the review and it will duly report to the Prime Minister. Were there to be a terrorism Bill in this Session, it would need to be sooner rather than later. One would have thought that the Government would take that legislative opportunity to declare whether intercept evidence should be available, and if so, whether changes to primary legislation were necessary.

I accept the points made about some of the other elements in both reports. Some of them are nothing to do with legislation. I was interested, for instance, in the dialogue about examining magistrates, and on that I think that I am on the same side as my hon. Friend the Member for Hendon. Being in the middle of things, I do not understand the notion that the Government are rushing headlong, siren-led or otherwise, to a French administrative model. The hon. Member for Beaconsfield was, I think, entirely accurate in saying that the French see justice rooted in their own system, and my hon. Friend the Member for Hendon said the same. Given the extent of the difference in the substantive and historical legal base, the worst of all worlds is probably to graft a bit from one on to the other.

The point made in my hon. Friend’s report about the growing and more proactive role of the Crown Prosecution Service in the prosecution of such cases was well made. Behind that, some of the other issues that we need to examine, even if the activity level stays as it is, touch on the capacity of the courts, the CPS and others on the criminal justice side.

I take umbrage at the notion that the Government, the Association of Chief Police Officers or anyone else, in a terribly lazy fashion, wanted 90 days because of resources and the notion that if we were really serious, we would give all the available resources to the service and it could do in 14 days what we have requested to be done on the cheap in 90 days. That is not the case.

By 2008, as Dame Eliza has suggested, the service’s budget will have doubled. Hon. Members drew out elements about encryption, the international dimension and the seamless nature of the threat between the domestic and the international. Translation and other elements hinted at by Peter Clarke in August are involved. In some cases, the magnitude of things, the level of expertise and the capacity of that level of expertise that are involved are such that this is nothing to do with resources in the main. There are only so many Urdu or Farsi speaking cryptologists who can sit down to try to crack the code on a mobile phone, a computer or whatever else. Doubling the resources overnight will not create another pot of such expertise. The point made about resources is not well made, and I do not accept it.

We are still examining all the issues raised about28 days—I shall be as frank as that. I do not know where the Government will alight in terms of the review, but I do know that we have a right and duty to examine such an issue. We should do so in the broader context. We should consider it in the context of whether or not to allow intercept evidence and whether to enhance the capabilities and capacities of the prosecution and all sorts of other agencies who are party to this.

We should seriously review the point about post-charge questioning. I was struck by the honesty of the report by my hon. Friend the Member for Hendon, which implied, at the very least, even if it was not explicit, an adverse inference from the exercising of the right to silence. I was also grateful for the comments made by the hon. Member for Beaconsfield. It must be the case; otherwise we would have post-charge questioning with nothing about the inference from silence and, as my right hon. Friend the Member for Southampton, Itchen suggested, terror suspects would say nothing and one would not be further forward in the process. We need to bite that proverbial bullet too.

In the balance of civil liberties versus our security, some will say that any negative inference on the exercising of the right to silence is a step that they do not want to take. That is a perfectly logical view, but I was grateful that the report said there could be post-charge questioning in that context and looking in that regard.

I would assume that the inference post-charge is exactly that which currently exists pre-charge. I was not suggesting that a different or further inference could be drawn. I want to make that clear, although the Minister probably understood what I was saying.

I did, and I am grateful for the hon. Gentleman’s comments.

I cannot be sure, but the review might re-examinethe legal framework, more recent judgments, Lord Carlile’s comments about control orders, and issues surrounding threshold, which, to be frank, I do not want to delve into for fear of being giggled at by the lawyers. In substance, the Government’s responses to both reports said that they thought the threshold argument had substance in some terrorist cases, but not in all. The contradiction to which some have alluded, about their saying that in one but not in the other, does not exist.

I may want to come back to the Minister on the threshold charge when he has finished his remarks on it. I wanted to emphasise the point about post-charge interviews. We made it clear that human rights law presents no obstacle to the relaxation of the current restriction, not just on post-charge questioning but on drawing adverse inferences. We recommended positively that the Home Office should amend the Police and Criminal Evidence Act 1984 to achieve both those objectives.

I accept that, as it is precisely the point on which I was congratulating my hon. Friend’s Committee. As an aside, in substance we have before us a review of the whole of PACE. As part of the process, it might well be appropriate to take the counter-terrorism-related aspects of PACE to one side and deal with them in quicker fashion than the longer-term review that is overdue or due now.

I am sorry that that does not take us much further in terms of current thinking on legislation. I assure both Committees and this Chamber that we are looking in substance at all the suggestions that have been made. This labours the point, and I apologise for doing so, but none offer an alternative to our current position. They may well enhance some aspects of it, and we might reach the stage where a package means that we do not have to open up the 28 days—I simply do not know.

It might be that the emphasis should be on 28 days and no more. I do not know whether we could collectively come up with a set of extraordinary circumstances where we might go beyond that, what the level of evidence that would be required for such a scenario would be or what the judicial oversight and all the other areas that would be involved would be. Within this whole panoply there is a duty on us all to revisit constantly the balance between liberty and public security. I want to come back to points made about pre-legislative scrutiny and the consolidated Bill.

If, when the Attorney-General made his remarks that he has not seen any evidence—

indicated dissent.

I do not know why the Minister is shaking his head in dismissal. The Attorney did make remarks, and they were publicised, so I do not understand why the Minister is making a dismissive sign towards me or towards somebody else. This is a serious debate. I have been listening with interest to what he has to say, and I treat his remarks with respect. My question is a simple one: when the Attorney made his remarks, was he reflecting Government policy?

I was shaking my head because, with no disrespect to my hon. Friend, it is not for me to tell this Chamber what the Attorney-General had in his head when he made his remarks. He was rightly and properly making a contribution to the debate.

Was it Government policy?

As I have tried to make clear throughout our debate, Government policy is being determined as we speak during the course of the review of our counter-terrorist response, including legislation, which is taking place across the whole of government. With respect to my hon. Friend, it was right and proper for me to shake my head because I cannot tell him what was in the Attorney-General’s mind when he said what he did. In that context, my hon. Friend’s question was not really appropriate. That is why I was shaking my head, and I hope that he will forgive me.

There must be scope and space for mature and reflective debate across government and across Parliament, so that we end up with the package and the legislation that we all require and accept is necessary to take our challenge to this threat far more seriously. By the by, in response to a comment that I think was made by the hon. Member for Beaconsfield, I am not aware of any terrorism provision in the legislation from 2000, 2001, 2005, or 2006 that has not yet been brought into force.

I shall address another entirely unnecessary point. I was the person in charge of this at the time, and once we got the 28-day provision through one of the most serious points that the Government took into account from all quarters of the House was that there should be very plainly a code of conduct as to how the provision was operated. When we take the time not only to draft that code of conduct but to consult on it before empowering it, we are told, “It couldn’t be that urgent because you took so long between Royal Assent and starting the process.” That is not entirely fair. Throughout that process, as part of a little transition thing, I was intimately involved.

I do not want to fall out with the Minister in the course of a pleasant and useful debate. We examined the time scale of the formal consultation when the Government first said that they wanted to have 28-day detention and we concluded that it could have been done more quickly. As he will be aware, this had a relevance, because it cropped up in the context of a particular investigation, when the 28 days provision had not yet come into operation.

Again, I shall not go down there. We could revisit that, but we are not going to listen and do things in the interests of consensus and be lambasted for it.

I want to make two further points about legislation. Clearly, where the review ends up and where the demand for legislation ends up will, in part atleast, determine the nature of any subsequent consolidation—that is not to weasel out of a promise. For example, if there were a Bill in March or April and all the elements that I have described, including some of the most contentious previous legislation, were aired and discussed significantly during the normal parliamentary process, it would not make sense to reopen the matter by way of consolidation half a Session later.

Lord Carlile said clearly—I believe that everyone agrees—that everything should be consolidated. Hon. Members here today have suggested in various ways that we should revisit some of the issues that have already been discussed in previous Acts, and that may happen in a subsequent Bill. The Government will have to take a view on whether the substance of another terrorism Act is sufficient in revisiting the matter and giving Parliament an opportunity to examine other elements, if the Bill is as extensive as that—I simply do not know at the moment—and whether there should be a subsequent technical consolidation or a balance between the two. I can honestly tell the House that that door is being left open and is almost predicated on the nature, substance and depth of any Bill, if there is a Bill. I am very clear that public scrutiny, if possible, at the start of a terrorism Bill would not be sufficient for the purposes of my right hon. Friend the Member for Southampton, Itchen and my hon. Friend the Member for Hendon in wanting scrutiny on any proposals.

If we decide that there should be legislation, we would want to get that under way sooner rather than later, but I take the point that some pre-legislative scrutiny, albeit post-introduction scrutiny, might be in order. We have discussed letting the broader public know what may or may not be in a Bill, and I accept the point made by the hon. Member for Beaconsfield about semiotics, symbolism, how we do what we do, and his pertinent point about going to Parliament to ask it to do things in this area in such a way. I shall take those points to heart and reflect on them.

I am grateful to the Minister and want to put it on the record that I understand frommy experience the pressures on Government: that sometimes the timing of the legislative programme is influenced by all sorts of other matters and that legislation must be slotted in. In those circumstances and given the priority of the matter, my Committee and, I suspect, the Joint Human Rights Committee would be inclined to adjust our timetables and schedules to allow pre-legislative scrutiny, albeit more truncated, if necessary, than we would ideally like.

I am sure that that is entirely right and proper of the Committee. Were that to be the case, we would try to facilitate it and provide as much assistance as possible. This is all predicated on the Government coming back with our review of where we are, and what we want to do and not do about gaps in legislation. I want the process to be as open, consensual and informed as possible.

I am not sure whether the Minister is saying that he will come straight back with a Bill, or that there will be a policy statement before that in the form of a White Paper or a statement in the House, which in itself could form part of an early stage of scrutiny.

I am saying candidly and honestly that I do not know. We are more than three quarters of the way into the review, and legislation is included in that. We are close—but not yet there—to informing the Prime Minister of those deliberations. We shall then see where things go from there. All I was trying to suggest is that, as my right hon. Friend suggested, the Committee may feel sufficiently serious about the matter to have some form of scrutiny, albeit truncated, as and when there is a Bill. That would be above and beyond what the new-fangled modernisation monster might provide with every Standing Committee being a Select Committee of some sort with limited public hearings on their Bills at the start of the process. We must wait and see, but my contention—I will not go there. We must wait and see.

I have deliberately not revisited where we have come from, because that is appropriate for another time, not now. I have deliberately not discussed Irish terrorism versus where we are now, although I fully respect the background and experience of the hon. Member for Newark. That is an interesting debate, but it is a moot point in terms of where we are now.

I have tried to address in a limited and narrow way the concerns about legislation and the future that were expressed in both reports, and the wider concerns about how we do what we do, consensus and having as open and transparent a debate as possible on why we are proposing what we are proposing, what the outcome will be and where we have come from in terms of both previous legislation and any body of evidence, such as that offered by ACPO, the service and so on.

I am happy for both Committees, as well as Opposition Members, to engage in the debate generally, and more specifically as and when there may be legislation.

Question put and agreed to.

Adjourned accordingly at three minutes to Five o’clock.