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Mr. Kidney : I am really nervous about disclosing evidence that ends up putting at risk the lives of people who have helped us to collect the information. In relation to the right hon. Gentleman's reference to Lord Carlile, all that Lord Carlile mentions on page 215 of his review is
"the possible use as evidence in criminal trials of intercepted communications on public telephone systems".
I therefore wonder whether the right hon. Gentleman just supports Lord Carlile on public telephone systems or on the broader intercept debate.
David Davis: It is on the broader intercept debate. The line that is best thought through is that of the Newton committee, which considered the matter. It was not a committee nominated by Liberty. It included past Cabinet Ministers and all its members were, I think, Privy Councillors, one of whom had been a Minister with responsibility for security in Northern Ireland. They did not take the issue lightly and they came up with a procedure, which I shall discuss in a minute, that was designed to protect not just intercept evidence but other sensitive intelligence sources.
As an aside, the head of the FBI in the United States says explicitly that he would not have been able to bring many racketeers in the US to justice—a similar sort of problem—had he not had the opportunity to use intercept evidence.
Lembit Öpik : Although my intervention does not relate to that specific point, to avoid interrupting the right hon. Gentleman later, may I ask him the same question that I asked the Home Secretary about motive? In the north of Ireland, a great deal of progress has been made by considering the motives behind terrorism. Does he feel that the Government have paid sufficient attention to considering the motives of international terrorists? That is not to condone what they do, but perhaps we would get further with that than with having as our sole methodology the attempt to suppress the opportunity to terrorise, as the Government seem to be doing.
David Davis: To be fair to the Home Secretary, his first duty in this respect is to prevent the outcome of terrorist attempts. He cannot be held responsible for reading or misreading terrorists' motives.
To a large extent, many western Governments misread the motives of al-Qaeda. That is something that is not well understood. Of the five conditions of change or difference that the Home Secretary has laid down, I did not agree with his first one, which was about the nihilistic approach. There have been nihilists in the past, but the approach of al-Qaeda is rather more pointed than that. The Home Secretary properly says that his first job is to stop terrorists.
Mr. Allen
: So that I am clear on Conservative policy, am I right in remembering from the earlier debate to
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which the right hon. Gentleman contributed that were he the Home Secretary, he would release all the people, in this context, now detained in Belmarsh?
David Davis: No, the hon. Gentleman is not right. I talked to the previous Home Secretary about this very issue. I said that whatever our differences and disagreements in public about the principles, I would not be calling for the release of any individuals, precisely because of the knowledge that he has. I do not think that Hansard would show what the hon. Gentleman describes as being my view.
Mr. Hogg : With regard to the Belmarsh detainees, it is clear that house arrest will not be employed against them in the near future. Does my right hon. Friend accept that if those people were to be released, it is fanciful to suppose that they would constitute a threat to the state, because they will be the subject of the most intense surveillance—and they will know that they are the subject of the most intense surveillance? It is implausible to argue that, in those circumstances, they will try to be involved in terrorism or to make contact with terrorists.
David Davis: My right hon. and learned Friend has shared some of his career with me in the Foreign Office. We are both fully aware of the power of intense surveillance, both in terms of controlling the operation of would-be terrorists and in providing information that is useful for prosecuting those would-be terrorists in future. I think that in substance my right hon. and learned Friend is right, although I would not have phrased the matter in quite the way that he did.
I return to the point that the Home Secretary made yesterday, which is that there is no alternative.
Sir Patrick Cormack : Will my right hon. Friend give way?
David Davis: I will give way in a moment. I want to get to the end of this section of my speech.
Sir Patrick Cormack: It is on the point that my right hon. Friend is making.
Sir Patrick Cormack: I am provoked by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). If these people had not been in Belmarsh in the first place, they would not be subject to any sort of surveillance. Does that not illustrate the necessity of having a mechanism, whether the one being proposed or another one, for putting people who are suspected of terrorist activities under proper supervision?
David Davis:
I agree with the conclusion but not with my hon. Friend's premise. It does not follow that if these people were not in Belmarsh they would not be under surveillance. It is entirely likely that they would have been under surveillance if they had not been in Belmarsh. The thrust of the debate is about what the proper surveillance and control is. I hope that we can come to that in a moment.
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I shall finish with the issue of the Home Secretary's allegation that there is no alternative. It picks up the point that was made earlier. We recommended taking up the Newton committee proposal that we put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in a way that protects our security services but that is also fair to the defendant. This is relevant to what Lord Carlile says. I cannot remember the page number, but Lord Carlile raises the problem of the Special Immigration Appeals Commission procedures and the fact that nothing has happened to respond to his own recommendations with regard to those procedures. That is one thing that would help, and we supported that idea.
We also supported also the idea of an extra charge. I think that the Home Secretary, from what he said earlier, is taking up the idea of acts preparatory to terrorism. We would also look at laws based on the American anti-racketeering laws, which are designed specifically to deal with the same problems of difficulties in obtaining evidence. We would look at any procedure that protected the traditional rights to justice and liberty of the British subject, but which would advance our ability to catch, to prosecute and to convict terrorists. As I think the Home Secretary agreed, that must be the main thrust.
That raises the issue of the way in which the Government are attacking the problem. In the area of security, the Government have a unique advantage. They have access to data about the activities of terrorists, and knowledge of what they could and could not do in bringing charges given specific problems of evidence. They should have spent the past three years analysing and identifying cases where a change in the law would allow prosecutions to be brought on the basis of available evidence. They should then have discussed those matters with the Opposition parties, and they would have undoubtedly received support for that approach. I am sure that I am right. I certainly speak for the Conservative party, and I suspect that I speak for the Liberal Democrats, too. I see the Liberal Democrat spokesman nodding.
Mr. Mark Oaten (Winchester) (LD): The right hon. Gentleman does not speak for my party.
David Davis: I agree with the hon. Gentleman. I do not speak for the Liberal Democrats. I am glad to have that clarification. I would hate that confusion to be promulgated.
We should recognise that the problem that we face arises as a result of poorly drafted legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable, but we should not repeat it now. We should take time to get things right. That is why I offered support to the Government in extending part 4 powers for a limited time. The Home Secretary has said that that will not work. That begs the question why he laid a draft statutory instrument a few weeks ago to achieve exactly that outcome. The explanatory note to that SI read:
"The House of Lords expressly stated that the Act remains a valid, enforceable and effective enactment"
If the Home Secretary has concerns—to be fair to him, he expressed them to me in private some while ago, before we had this debate—he will remember that I said that we would be willing to put in place a short piece of primary legislation to ensure that the process worked. Far from doing nothing, the Opposition have done everything in their power not just to offer alternatives, but to create time for the Government to consider the alternatives and any other reasonable ways of finding an answer to this difficult problem.
As I have said, I agree with the Home Secretary that this is about a qualitatively different sort of terrorism that has been true, and known to have been true, for three and a half years, not three and a half weeks. What we are considering today should have been dealt with in the much longer term, as was promised by the Government, within six months of the publication of the Newton report, but they did not deliver.
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