Mr. Grieve: Does the hon. Gentleman agree that the fact that Lord Carlile highlighted the need for a special advocate goes to the heart of his anxieties that the mere extension of detention time could be subject to abuse, and that the need for a special advocate highlights the highly unusual nature of the procedure that the Government are seeking to adopt?
The hon. Gentleman is absolutely right. This is a base level against which we can measure the proposals. Without all those safeguards, we have a non-startersomething that is clearly outwith the
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provisions of the Human Rights Act. Therefore, we should not even be considering such a proposal. Indeed, the suggestion that we include such proposals in the Bill does not bear a moment's examination.
Martin Linton : Does the hon. Gentleman accept that the length of time that it takes to investigate terrorist offences has created a new situation? As I said to my hon. Friend the Member for Walsall, North (Mr. Winnick), after 7/7 it took two weeks to access the sites and a further six weeks to make complete examination. A total of 42 days was required for investigation, so a 14-day limit would have been counter-productive. Suppose the Tavistock square bomber did not get on a No. 30 bus but instead walked the streets of London and was arrested the same day without any evidence on his person. He would have had to be released before the second incident on 21/7. Does the hon. Gentleman not accept that there are new circumstances in which a longer period is required to complete an investigation of terrorist offences?
Mr. Heath: I do not want to reduce the hon. Gentleman's proposition to the absurd, but exactly the same arguments would apply if the investigation took 365 days or two years. It is our responsibility in the House to achieve a balance, but as I shall explain, there are alternatives that allow for proper investigation without a substantial departure from the traditional law of this country as proposed by the Home Secretary.
Mark Fisher : Having dealt with the ways in which Lord Carlile does, and does not, agree with the Home Secretary's proposals, does the hon. Gentleman agree that a number of hon. Members will be impressed by the fact that the police have endorsed a 90-day detention period? Although they may have reservations about such a long detention, they may be persuaded to support the Government by the police endorsement. The police deserve the respect of every hon. Member for the difficult job that they do, but it is not for them to lay down the law. It is for us to make the law. The job of the police is to enforce the law that we lay downit is not to make fine distinctions between civil rights and the law. Does the hon. Gentleman agree that it is our job to protect civil rights? If the House starts to detain fellow citizens in prison without charge for 90 days it is going down the wrong road.
Mr. Heath: I agree. I have worked closely with the police over the years. As the hon. Gentleman may know, I was chairman of a police authority and I have worked with the National Criminal Intelligence Service. I have a great deal of respect for the police but, equally, they have a distinctive approach to the matter. They rightly wish to secure successful prosecutions and to protect the public but they always want increased powers. It is the job of the House and, indeed, the Home Secretary to assess the balance between those proper requests for additional powers and their effect on the liberty of the subject.
To return to the point made by the hon. Member for Battersea (Martin Linton) about the length of time needed for investigation, a puzzling argument has been
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made about the time needed to crack an encryption. I am not an expert on the subject, and do not pretend to be, but specialists tell me that it does not take 14 days but perhaps 14 years to solve an encryption without the key. People can make educated guesses to decipher an encrypted message, but their investigation will not be completed in a comfortable period of 90 days. Why, as I said earlier, has an offence that we put on the statute book with the passage of the Regulation of Investigatory Powers Act 2000 lain idle for five years? Why on earth have people not been prosecuted for refusing to give an encryption key? If that is not the problem, what is the argument about?
Mr. Hendrick: The hon. Gentleman is extremely generous. The idea of the provision is obviously that it pre-empts the use of computers in that way. We know that information can be stored, coded and encrypted, so the legislation is there before the bombs go off, not after the bombs go off. That is the whole point.
My hon. Friends and I have tabled two amendments in this group. Amendment No. 92 is a paving amendment; amendment No. 93 is the substantive amendment. We have attempted to put in some of the safeguards that my noble Friend Lord Carlile of Berriew suggested. Amendment No. 93 raises the decisionmaking authority from a district judge to a High Court judge, which will inevitably be conceded by the Government. It would be helpful if they did so now.
The amendment suggests three scenarios for an extension of detentiondelays due to forensic analysis, one of the possible problems that was identified earlier; delays due to encryption, which, as I said, I find difficult to understand, but I am prepared to accept that that may be an issue, which can be pursued; and delays due to the need to gather international data or mobile phone records, which I accept may take a certain amount of time when authorities abroad are involved.
The amendment lays down the condition that the judge must satisfy himself that no other charge is possible. That comes back to the potential for prosecution under section 53 of RIPA. It also takes account of the other terrorist offences covered by the Bill. There is a further requirement for the judge to vet police lines of questioning, which relates to the issue raised by the hon. Member for Beaconsfield about the Police and Criminal Evidence Act 1984 protocols, which will need to be revised. I hope we will get a clear indication of how they will be revised if the proposal is accepted.
: On encryption, it is possible for someone to walk off the street into a store and buy a 192-bit encryption device, which is based on American military technology. Our security services are able to access that technology and counter it. They need the initial period of a few weeks to work out what the code is. I appreciate
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that the hon. Gentleman keeps referring to the maximum pre-charge detention as three months, but he does not emphasise that that is a maximum. There are weekly reviews. By their own admission, the police do not expect, other than in the most exceptional circumstances, the period of detention to be anywhere near that long. It is entirely misleading not to make it clear that there is constant review throughout the process and that three months is a maximum.
Mr. Heath: We are giving a power. We have no idea how it will be used. If the House gives a power to the investigating authorities, they can use it as they see fit. The hon. Gentleman may be right that it will be used on relatively few occasions. He may be wrong about that. I start by considering the power that we are giving, which is the capacity to detain for 90 days without charge. That is a very serious matter indeed.
On the other point made by the hon. Member for Wansdyke (Dan Norris), as I understand it, the encryption can be removed either in a relatively short period or not at all. If someone is serious about stopping a criminal offence and putting someone before a court, there is a perfect pretext, if I may say so, if they refuse to give the key to the encryption. I cannot for the life of me understand why that is not used.
Why are we proposing safeguards to proposals that we reject? Because our job is to improve the Bill in Committee. I hope that that will be accepted at face value. The sunset clause that was mentioned is a further substantial improvement to the Bill.
I shall repeat the second question in case of any doubt: do we support 28 days in preference to 90 days? Yes, of course, because it would be a move in the right direction. That does not mean that we accept 28 days; it means that 28 days is preferable to 90 days, which, as far as I am concerned, is a no-brainer.
We are sincere in our view that the best outcome is consensus across this House and between the Houses, and I repeat that there are better ways of achieving the objective. It has been mischievously suggested that we are discussing minor offences in other parts of the legal spectrum, but we are discussing lower-order terrorism offences. The Home Secretary knows our view that if there is no prima facie case for a lower-order offence such as acts preparatory to terrorism, there is no argument for holding a suspect. We must examine ways of exempting lower-order terrorism offences from bail, because I accept the Home Secretary's point that it would be a major difficulty if we were to go down that escalatory route without proper bail conditions.
The threshold used by the Director of Public Prosecutions in charging guidelines should be re-examined. Where there is a reasonable likelihood that admissible
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evidence will be available, then proper grounds exist for a charge, which is a power that is not being used sufficiently at the moment.
If we do not reach a consensus, there will be increasing frustration that we have not been able to find a satisfactory way through this maze. The Bill is unacceptable for all sorts of reasons. If we have the opportunity, we will support amendment No. 28 to reduce the period to 28 days. [Hon. Members: "Oh."] For goodness' sake, that is hardly a revelationI have said it at least six times. Whether or not amendment No. 28 is accepted this evening, we shall vote against clause 23, because the Government are employing the wrong approach. Even at this late stage, we hope that a consensus is reached in this House rather than in another place in order to find a way to produce acceptable, effective and appropriate defences against terrorism.