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Mr. Hogg: Does my right hon. Friend agree that much of what he is saying and quoting reinforces the proposition that the 2001 Act, which was introduced as emergency legislation, contains a host of provisions that could not by any stretch of the imagination be regarded as emergency measures, but were never subject to any proper scrutiny?
David Davis: My right hon. and learned Friend reiterates the point made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith). We on the Conservative Benches have argued time and again that measures that involve relatively draconian powers require much greater scrutiny than is possible these days in this House of Commons—even when they are not emergency powers.
The committee says on the question of identity theft:
- "we are not convinced that all the relevant measures in Part 10 address it effectively".
- "The Government are assured that these powers are effective and proportionate".
We agree strongly with the committee's recommendation on terrorist property, particularly in relation to extending the power of seizure to non-cash items. The Government say that the powers in the terrorism Act already allow such seizures, yet the committee has clearly identified a problem. We ask the Home Secretary for greater reassurance than that given in the published response, which states that current powers are adequate to tackle the problem.
We also agree with the view that
- "open hearings in an ordinary Magistrates Court are not the appropriate forum for handling cash seizures in terrorist cases".
The committee echoes and endorses concerns raised by the Opposition—and most often by my right hon. and learned Friend—during the passage of the Bill in 2001 on the so-called Henry VIII powers, but the Government dismissed the committee's recommendation. We strongly agree with the committee. May I take this opportunity to urge the Home Secretary to reconsider his view—most of all on legislation such as this which impinges so fiercely on individual civil liberties?
That brings me to the most controversial aspect of the legislation, on which the committee again echoes our view. I refer to detention powers in part 4 relating to foreign nationals. The committee's conclusion in paragraph 203 is unequivocal:
- "the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency."
It is undoubtedly the case that such detention is a serious infringement of civil liberties. I do not find the argument that such people can "always leave the country" particularly persuasive. On the one hand, to return to some countries might, in effect, be to return to death; on the other, releasing people whom we believe to be international terrorists to travel the world seems a peculiar policy. The difficulty is that if the Government are right about those 14 people held under the Act, releasing them could put hundreds or thousands of innocent lives at risk. The Home Secretary is right, and I must recognise that. Nevertheless, because it is such a serious infringement of civil liberty, I agree that the Government should heed the committee's request and seek an alternative. I am glad that the Home Secretary has undertaken to review part 4 over the next six months. I assume that in that review he will consider and seek alternatives. The difficult question is: which alternative will work?
One area in which I disagree with the Newton committee is on the possibility of tagging, curfews or daily visits to police stations as an alternative to such detention. That is impractical for serious terrorist crimes, let alone for suicide bombers. I welcome the fact that the Government have said that they have no intention of going down that route, although it may be useful for the more minor terrorist crimes. Another solution is needed.
Everyone agrees that the most desirable way to deal with terrorists is to bring them before the courts. That is where the Home Secretary should be concentrating his efforts—looking at aspects of the law that make prosecution more difficult and seeing whether they can be corrected. The Newton committee highlights one aspect in particular, on which we believe the Government should act. Paragraph 208 states:
- "In our view one way of making it possible to prosecute in more cases would be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court".
We understand previous objections to ending the ban: principally, that it would reveal sensitive information about our intercept capability. We believe, however, that the balance of the argument has moved on, especially post-11 September. For example, al-Qaeda sees the United States as its No. 1 enemy. One should assume that its training and tactics are directed against that target. In the United States, however, extensive details of intercept capacity are published. They are a matter of public record. They will therefore already be accounted for in al-Qaeda's behaviour, training and tactics. It is difficult therefore to see how knowledge of our much smaller intercept capacity could make much difference to the training and tactics of al-Qaeda, especially when that is measured against the value of such information in court.
The committee put up an interesting idea for protecting the evidence from the sort of excursions that we hear so much about in relation to lawyers representing terrorists. The idea of an examining magistrate, or having that as a phase of the evidence gathering, is sensible. I must admit that when I first read it, probably like the Home Secretary, I did not see exactly where it was going. As a phase of evidence gathering, however, and as a way of introducing a cut-out to protect the evidence and the methods used, it seems an eminently sensible approach. The Home Secretary has said that the matter of intercept evidence is one of a number of options under review. That review should be concluded quickly. The ban on intercept communications evidence should be dropped, and I hope that he will again look closely at the committee's proposal, as it is eminently sensible.
Mr. Oaten: I am encouraged by the right hon. Gentleman's comments. For clarity, is the thrust of his argument that if alternative measures were put in place,
such as the acceptance of intercept communications as part of evidence, the Conservatives would support the removal of part 4?
David Davis: Yes, indeed. The issue that we are considering is one that the hon. Gentleman raised in an intervention on the Home Secretary. In relation to those 14 cases, if he is entirely persuaded beyond reasonable doubt that they are terrorists or would-be terrorists, and they would be expected to be convicted in a process that absorbed those changes, that is a good reason for part 4 to go. That is what we want, ideally, as a result of the review process.
The difficulty for the House is that we cannot know what the Home Secretary knows. We cannot test each of those cases. Perhaps the committee could do so—perhaps its members will tell us that they did test that proposal. We cannot do so, however. I am taking it on faith—something that one does rarely with Ministers when in opposition—that the Home Secretary will make a judgment about that in the process of that review.
David Davis: I knew that that would provoke everybody. I shall give way first to the ex-Home Office Minister and come to the others shortly.
Mr. Denham: I am grateful to the right hon. Gentleman. This is an important point on which to understand the Opposition's view. For the sake of argument—I am not familiar with the individual cases either—let us suppose that seven of the cases could be resolved as criminal cases, were the intercept information available, but the other seven relied on information obtained by the security services through methods that they could not possibly disclose in a criminal trial. Would we not have to conclude that circumstances would exist in which part 4 needed to remain? The alternative would be to release those individuals.
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