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Mr. Bermingham: Does my hon. Friend agree that the current preferred thinking is that the refusal of access to a solicitor during an interview would be a breach of article 6.3 and that the court would rule against us, as it appears that the idea of a fair trial--equality of arms--is paramount and the right exists throughout the rest of the United Kingdom?

Mr. McNamara: If I understood my hon. Friend correctly, I agree.

Article 6.3, which should be enforced, does not appear in the legislation. I seek an undertaking that there will be access to a solicitor. That is implicit in the Bill, but not specific. I tabled the new clause in the hope that, when their Lordships in one place or another read our debates to see what was intended, a statement from the Front Bench will be on the record.

Mr. Harry Cohen (Leyton and Wanstead): I want to speak mainly to amendments Nos. 173 and 178, although I would also like to say a word about Government amendment No. 64.

Clause 40 concerns arrest without warrant. Liberty issued a briefing note for our Second Reading debate. It said:

The Government intends to retain the arrest powers of the PTA which entitle the police to arrest without warrant anyone who they have reasonable grounds for suspecting. Liberty has long been concerned about the existence and operation of this power and considers that it should not be retained for the following reasons:


it is unnecessary: there is no evidence that the PACE powers of arrest are inadequate.


it is too wide: it permits a police officer to arrest where the person is not suspected of committing any offence . . .

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powers have been used in the past simply as an intelligence gathering device.


These points are particularly important in view of the widened definition of terrorism.

That is quite a critique of the power, on the use of which amendment No. 173 is designed to put only a small restraint.

I am concerned about people being held incommunicado. One of my first cases as a Member of Parliament, in the 1980s, was when a constituent came to my advice surgery and reported that she had been to the police because she thought that her son had disappeared and she wanted to report the fact and get their help to find him, but it later transpired that the police were holding him and had not informed her. That was a dreadful abuse of civil liberties.

The police have increasing powers to hold people, but the rights of both the person detained and the family are very important.

Dr. Godman: I remind my hon. Friend that he dealt with a case involving my nephew, Luke, who was detained for eight hours in a police station in his constituency. He will confirm that my nephew was innocent of any misdemeanour.

Mr. Cohen: I cannot remember all the cases that I have had in 17 years in Parliament, but I am happy that my hon. Friend has put that on the record and that I was able to help his nephew. I am happy to help all my constituents in such circumstances.

Lord Lloyd of Berwick's report on his inquiry into legislation against terrorism--Cm 3420--has been quoted a lot. Paragraph 9.26 on page 48 says:

In England and Wales, whether a person is arrested under PACE or under the PTA, he has the right to consult a solicitor and to have the solicitor present during interview. He is also entitled to have someone he knows informed of his arrest. These rights may be delayed on the authority of a superintendent if he reasonably believes that such communications might be detrimental to the investigation for one or more specified reasons. The maximum period during which a detainee may be held incommunicado corresponds with the length of time for which he may be detained without further authority. Thus, in non-terrorist cases the rights of access may be delayed up to 36 hours whereas a terrorist suspect may be held incommunicado for up to 48 hours. Furthermore, in terrorist cases an officer of Assistant Chief Constable rank or above may order that consultations with a solicitor are to take place within the sight and hearing of a uniformed officer of at least the rank of inspector.

That makes it clear that, in non-terrorist cases, the norm is 36 hours. If the period is to last longer than that, it is not unreasonable that the reason for the delay and denial of rights should be specified. A simple explanation would suffice, perhaps involving the suspicion of terrorism, but some concrete justification should be given and someone should not be kept an extra 12 hours and denied those rights without genuine suspicion. That would subvert PACE, because every case could be treated as a terrorist case and a person detained for an extra 12 hours without anybody being notified.

7.30 pm

Mr. Bermingham: Does my hon. Friend agree that, if those games of holding persons incommunicado--the purpose of which is to put pressure on prisoners--are played, those actions would be subject to subsequent

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inquiry by the court and, after 2 October, by the European Court of Human Rights? It is ludicrous that we should lose cases because of unnecessary provisions such as the ones before us.

Mr. Cohen: That is a good point. It would not be difficult to give a reason, because the Government's proposals in the legislation against terrorism consultation paper suggest that a written record should be kept of the outcome of the review of the case. Lord Lloyd also made it clear that delay had to be for specified reasons.

Lord Lloyd also pointed out that a survey of those detained under the PTA in Britain in 1989-90 found that legal advice was delayed in some 26 per cent. of cases and there was a delay in informing someone of a person's detention in 44 per cent. of cases. Those are high figures, and I hope that we will not see a return to such wholesale denial of rights. In a sense, the Bill would legalise those delays.

Other hon. Members have mentioned the European Court of Human Rights and its judgment in Murray v. United Kingdom. The court found that the denial of access to a lawyer, when combined with the trial court's right to draw adverse inferences from silence under questioning, violated the detainee's rights under article 6 of the European convention on human rights. Consequently, the circumstances that gave rise to the successful challenge in the Murray case could now arise throughout the United Kingdom. I would like an assurance that the Government have addressed that point so that we will not face similar judgments in future.

Amendment No. 178 seeks to ensure that a detained person has access to his or her family after four hours of detention and that the first review of the case should be completed by then. I admit that the figure of four hours has been plucked out of the air, but a review of the case could reasonably be completed within that time. It would be better than a long time without any proper review and the denial of rights of the person being held.

The amendment would amend the review process. I want to ensure that individual rights are maintained, although that is outside the review process. However, the amendment would build on the existing requirement for a review officer to inform the detained person of his rights as soon as continued detention has been authorised, by adding a requirement that the first review must be completed and the decision notified to the detained person within four hours of his arrest. At that point, the detained person would have to be notified of his rights, otherwise--as far as I can see--he would be left without having been notified of his rights for an indefinite period. The amendment would extend the civil liberties of the person involved.

I am concerned about the drafting of Government amendment No. 64, which is not as tight as I would have hoped. The Government may be able to reconsider in the other place. The amendment repeatedly mentions doing things

as soon as is reasonably practicable.

That is a bland requirement, and no explanation for undue delay need be given. No indication is given of how long that requirement could be. The amendment also states:

The person named must be . . . a friend of the detained person . . . a relative, or . . . a person who is known to the detained person who is likely to take an interest in his welfare.

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What if none of those categories applies? For example, people from abroad might have no one in those categories in this country. Much abuse is being heaped on beggars at the moment. If they were taken into a police station under these powers, they might have nobody in those categories available.

The amendment also states:

Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right . . . in respect of the police station to which he is transferred.

Will that mean that he will be denied those rights at the first police station he is taken to, with the excuse that he will eventually be transferred, thus increasing the delay? It also states that a detained person may

consult a solicitor as soon as is reasonably practicable, privately and at any time.

However, that right is negated later in the amendment, when it provides that

a detained person . . . may consult a solicitor only in the sight and hearing of a qualified officer.

Bang goes the right to privacy.

Mr. Bermingham: Does my hon. Friend know why is it necessary to put such provisions in the Bill, which will open us up to litigation in the European Court after 2 October, because the European convention on human rights contains the right to private consultation?

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