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2.47 pm
Mr. Chris Smith (Islington, South and Finsbury) (Lab): As one of the Privy Councillors who sat on the Newton committee, I welcome the opportunity that the debate provides for a serious discussion about the difficult issues raised by the Act. I also welcome the consultation that the Government have put in motion, but I am disappointed that they have rejected so conclusively the recommendations that we made in the
report—reiterated today—about part 4. The Government are almost pre-empting, in what they have said, the outcome of the consultation. Over the course of the next six months—from today and over the consultation period—I hope that we can give serious consideration to the criticisms levelled by the Newton committee and its suggestions for possible alternatives.
Mr. Hogg: Does the right hon. Gentleman agree that his point is reinforced by the fact that the Joint Committee on Human Rights shares the views of the Newton committee?
Mr. Smith: There are many voices to be listened to—in both Houses and among the wider public—on the issue, and I hope that the Government will be in listening mode rather than made-up-their-mind mode during the consultation period.
It is difficult to balance the competing and crucially important issues that face any Government in these circumstances. On the one hand, there is the need to protect public security; on the other, the need to safeguard the civil liberties of the individual. Both duties are incumbent on any Government. When there is the potential for those two requirements to collide, Governments face a difficult task. They must try to find the solution that preserves the most of each of those principles, and that is the task that my right hon. Friend the Home Secretary must undertake.
I want to concentrate on part 4 of the 2001 Act. As it stands, it is not satisfactory. Members of the Privy Counsellor Review Committee included dyed-in-wool Islington libertarians like me, and others of a rather different provenance, such as the right hon. Member for North-West Cambridgeshire (Sir Brian Mawhinney). However, our conclusions about part 4 were unanimous.
The Committee identified a number of problems. First, and most importantly, it offends against every principle of liberty and justice on which our democracy is founded to detain people in this country, potentially indefinitely and without specific charge or proper trial. That is true regardless of who they are or where they come from. If it is at all possible to find another way to address these serious issues and difficulties, we should strive as hard as we can to find it. Simply dismissing out of hand the recommendations of the Newton committee does not amount to the strenuous work that is needed.
Secondly, the existence of part 4 required a derogation from the European convention on human rights. It is noteworthy that, in putting together our response to terrorism, we are the only country in Europe to have sought such a derogation. Other European nations have found robust responses to the problems of terrorism. Rightly, they are as exercised as we are about the dangers of terrorism, but they have not needed the same derogation.
Vera Baird : I hope that my right hon. Friend is not making a false point. No other country has derogated, but high-ranking lawyers have suggested that the French terrorist measures in particular are in breach of the convention.
Mr. Smith: My hon. and learned Friend tempts me to say that some of our EU partners uphold the principles
of the convention and other provisions more in name than in reality. However, it remains the case the UK has actively sought a derogation. I believe that, if at all possible, we should try to avoid doing so.Thirdly, part 4 uses what is effectively an immigration procedure to answer a terrorism problem. I believe that we ought to answer terrorism problems through the action of the criminal law, and if necessary with specialist terrorist measures. We should not spatchcock into the procedure measures supposedly prepared in response to immigration issues.
The Privy Counsellor Review Committee also identified the central problem that the procedures under part 4 apply only to foreign nationals suspected of being connected with al-Qaeda and associated organisations, and not to UK nationals. However, the committee received evidence that about half of all those suspected of terrorist activity in this country are UK nationals. We should be trying to address those issues every bit as actively as those relating to foreign nationals.
I hasten to add that the evidence received by the committee showed, without a shadow of doubt, that the Home Secretary has applied the procedures under part 4 conscientiously, assiduously and with the utmost care. It is important to put that firmly on the record. However, those procedures and the principles behind them are deeply flawed and they are not wholly effective.
In our report, we propose a range of alternatives. I readily acknowledge that none of those alternatives is, by itself, a solution. Indeed, we should not be looking for a single alternative solution to part 4. The committee has tried to put together a range of measures that might add up to an answer. There could be other options that it was not possible for us as a committee to imagine or consider, but that the Home Secretary and the Home Office really should be considering during the next six months. Simply to say that there is no alternative to part 4 is not enough.
Several of the options that we proposed have already been mentioned during the debate, but I should like to highlight a few of them. The first is the removal of the blanket ban on the use of intercept evidence in open court. In the United States, that happens as a matter of course. Indeed, there have been some successful prosecutions of terrorist associates in the US on the basis of intercept evidence acquired not just by the US intelligence services but by foreign intelligence services. That evidence was used in the US court system and there is no reason that we should not begin to go down that road.
In the paper that the Government issued this morning, they say that they are reviewing the matter, but they have been reviewing it for years and it is about time that we came to a conclusion and decided that intercept evidence can be used. It does not have to be used—it would be entirely up to the prosecuting authorities to decide whether to use it—but it could be used in court.
Sir Brian Mawhinney: Can the right hon. Gentleman help me? My recollection is that we were given evidence
that although British intercept evidence has not been used in British court cases it has already been used in a French court case. Is my memory right?
Mr. Smith: I think that the right hon. Gentleman is correct, although I am struggling with my own memory about that point, but I recall that it was mentioned to the committee.
David Davis: I commend the right hon. Gentleman for his part in the production of the report. When he was looking at the American use of intercept evidence, could he identify any major differences in law—other than the Regulation of Investigatory Powers Act 2000, which we should have to amend—that made it easier to use such evidence in the US than in this country?
Mr. Smith: Not that I am aware of; indeed, it seemed to us that the factors preventing the use of such evidence in our courts, rather than being legal issues, were more to do with process and organisation.
The committee made other suggestions. Much reference has been made to our proposal that an investigating judge system could be used to sift sensitive evidence before a matter is brought to trial. We believe that such a procedure could help the whole process. It could help to establish the validity of a case; indeed, establishing that something could be brought into the open could assist the intelligence authorities to make judgments about whether such evidence could be produced, and so forth. That could be a very helpful element in the process.
We also suggested that the Government could consider the use of prosecution for other offences that the courts could view as aggravated ones when sentencing in relation to terrorism. Again, that has been successful in the United States where the use of racketeering legislation has been effective. We proposed that more formal use should be made of plea-bargaining. I urge the Government to go beyond the notion of simply an admission of guilt producing a lighter sentence, because many other ways of co-operating could be encouraged, particularly in relation to terrorism offences. Such arrangements need to be put to much greater use.
We proposed a much greater use of surveillance. Of course I appreciate that close surveillance will require substantial increases in resources; I am very pleased that the Government are putting extra resources into the intelligence services, the staffing of MI5 and enhancing certain police provision. Rather than simply prosecuting people and locking them up, we should, as an alternative, maintain close and effective surveillance. That option seems not only desirable as a means of avoiding incarceration without trial, but it may be more sensible in countering terrorism.
The FBI told us very openly when we were in Washington that, in many cases, it prefers to keep people under watch than to take them in and lock them up because it finds out a lot more about their intentions and those of their organisations by watching them, keeping them under surveillance, following them and knowing what they are planning to do. We ought to think seriously about that as well.
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