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The Secretary of State for the Home Department (Mr. Charles Clarke): I hope that it will help the House if I set out the Government's attitude to the amendments and new clauses in this group before the debate concludes.
On amendment No. 9, I want to express my appreciation to Conservative Front Benchers for spotting a typographical error and correcting it. In the spirit of consensus that orients everything that we do, we urge the House to accept amendment No. 9.
It is worth setting out the background to amendment No. 8, which I am glad the hon. Member for Beaconsfield (Mr. Grieve) has acknowledged is a probing amendment. Both the police and the Crown Prosecution Service have suggested that it should be possible for Crown prosecutors or their territorial equivalents to make such applications, because in complex terrorist cases the prosecutor will be closely involved from an early stage. The prosecutor will advise the police on which evidence might be useful in court and which might not, and will work with the police in determining which leads might be the most profitable to follow up. Crucially, the prosecutor will also confer closely with the police on the question of when there is sufficient evidence to justify bringing a charge. So the prosecutor will be very familiar with the case and well placed to make an application to the judge for extended detention. I hope that on that basis the hon. Gentleman will consider withdrawing his probing amendment.
On amendments Nos. 12 and 13, I want to make it clear that the purpose of clause 24 is not to change things but to put beyond doubt what had until recently been believed to be the case. The position was thrown into doubt by an application for judicial review decision case in Northern Ireland. In that case, an individual was being held while DNA samples were being analysed, and he challenged the legality of his continued detention. He was released on the advice of senior Crown counsel. Prior to that, it had been thought that continued detention for such a purpose was lawful—that remains the view on the mainland—but we want to put the matter beyond doubt. Clause 24 therefore sets out the grounds on which a person may be detained. Again, I hope that in the light of that explanation the hon. Member for Beaconsfield will withdraw his probing amendment.
I now turn to the substance of the debate—the relationship between the length of pre-charge detention and the protections and safeguards that are in place.
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In this context, I want to comment on Lord Carlile's report to express appreciation for his approach in conducting it and to indicate our attitude on several of the proposals that have been made, which overlap with some of the amendments.
Amendments Nos. 10 and 11 suggest that the extension of somebody's period of detention could be dealt with in a more flexible way. There is force in those arguments, and we are prepared to consider that with a view to coming back on Report with an agreed way forward on the matter.
On the level of the judge who takes the decision, we support Lord Carlile's proposals, as I said on Second Reading. That is the subject of amendments Nos. 29, 30, 31, 32 and 16. We are ready to table an amendment and intend to do so on Report. I take very seriously the point made by the hon. Member for Stone (Mr. Cash). It is important that the judge is a specialist in this field. We shall ensure that the hon. Gentleman's comments are taken into account in the proposal that we make on Report. On the general range of issues involved in this matter, I can give the House the assurances that have been sought from me in a variety of ways.
Keith Vaz: As the Home Secretary knows, before this debate the Attorney-General expressed concerns about these issues. Has the Home Secretary had an opportunity to speak to him, or to other Law Officers, to reassure him?
Mr. Clarke: The Attorney-General can speak for himself, but yes, I have spoken about this to the Law Officers, including the Attorney-General. His view is that the changes that I am suggesting we table on Report will go a long way towards meeting any of the concerns of those in the legal system and in this House.
On amendment No. 17, which deals with the relevant PACE—Police and Criminal Evidence Act 1984—code, I understand the points that are being made, and I am again prepared to say that we are ready to come back to the House with a solution that will deal with this in an effective way. We acknowledge that the concerns raised by Opposition Front Benchers are genuine, and it is our job to try to deal with them. That is not as straightforward as it might sound, because it is a question of precisely which PACE code would operate, but I am prepared to give an assurance that we will consider the issues that have been raised.
Mr. Grieve:
I hope that the Home Secretary does not think that I am being churlish, but I feel bound to ask him why, in view of the fact that these issues were well ventilated before today, they were not included in the Bill when it was first published. [Interruption.] After all, the Home Secretary had a draft Bill that came in for a considerable amount of criticism. The Committee is a late stage in the passage of a Bill to give assurances about what will happen. Can the Home Secretary assure us that all this will be in place for the Report stage next Wednesday?
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Mr. Clarke: I hate to say that my hon. Friends, in accusing the hon. Gentleman of being churlish, are being churlish themselves, but perhaps I can be churlish in return by saying that we have said from the outset, as the right hon. Member for Haltemprice and Howden (David Davis) knows well, that we are ready to debate those questions in the round. As a number of colleagues on both sides of the House have recognised, there is a relationship between the safeguards and protections that are thought to exist and the length of time that should apply. I will not say that it is a trade-off—that is not quite the right way to put it—but there is a relationship in how they are all taken forward. That is why I am taking this opportunity to set out the Government's position in what I hope is a holistic way. We can thus see how things relate to one another in the proper way.
Mr. Kenneth Clarke: The Home Secretary gave us an insight into the opinion of the Attorney-General, who has been reported as expressing grave reservations, but the Home Secretary said that the Attorney-General is now of the view that some of the present shape of the Bill goes a long way towards meeting judicial concerns. Is that a full and rounded picture of the Attorney-General's current position? The Bill may have gone a long way, but is he satisfied that what is before us is likely to comply with our human rights obligations?
Mr. Charles Clarke: The Attorney-General is completely satisfied on that point, and it is precisely because he is that I could put a certificate on the Bill.
Mr. Clarke: I shall give way again in a moment.
I was saying that I was prepared to look at the points raised in amendments Nos. 10, 11, 29, 30, 31, 32, 16 and 17 and at ways of coming back on Report with the changes that are needed. To be candid, I should like to do that on the basis of consensus in the House, a point to which I shall return in a second.
I want to make some observations about Lord Carlile's criticisms, which came into the discussion. In paragraph 61 of his report, Lord Carlile said:
"I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest."
I hope that the Liberal Democrats will think carefully about those remarks when they decide to vote against clause stand part.
In paragraph 111 of the report, Lord Carlile stated:
"I regard the current proposals . . . as providing a set of useful and necessary additions to the law to counter terrorism."
I want quickly to go through Lord Carlile's criticisms of the procedures.
The first was that clause 5, which deals with acts preparatory to terrorism, is too narrow and does not cover facilitation offences. We believe that those offences are already covered by existing law and we shall discuss that with Lord Carlile. On clause 6, he argues that "training for terrorism" is too wide and should not
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have worldwide extent. We do not agree; without its wide geographical scope the clause would have little point, as most terrorist training takes place abroad.
Lord Carlile questions the necessity for clause 8—"Attendance at a place used for training"—as there will be offences of giving and receiving terrorist training. We want clause 8 to deal with that issue, because we want to cover all those who attend terrorist training camps and to avoid people being able to claim that they were there only in a journalistic or humanitarian capacity.
Lord Carlile raised five points sharply about clause 23, which we are currently debating. The first was that pre-charge detention beyond 14 days should be authorised by a senior circuit judge, with appeal to a High Court judge. I have acknowledged that, and agreed as early as Second Reading that we would take steps to implement that recommendation.
The second point was that there should be an opportunity for a defendant to make representations against continued detention, with oral hearings at the discretion of the judge. That process happens already, but if clarity is needed to show that it happens we shall be prepared to offer it.
Thirdly, Lord Carlile said that there should be weekly decisions about extensions of detention, with reasons given in writing. The Bill already provides for weekly decisions, although I have to add the qualification that I have just made in response to amendments Nos. 10 and 11: reasons are given, although not normally in writing. It would be possible to require that, but the reasons could be only that the test in the legislation was satisfied. We are ready to consider that, although we do not believe that it is necessary.
6.15 pm
We have more difficulty with Lord Carlile's recommendation that the judge should supervise the investigations and require specific lines of inquiry to be pursued. Amendments Nos. 92 and 93 deal with that. That would effectively introduce the continental system of investigating magistrates. As I have said in the House and elsewhere, I personally have sympathy with that approach, especially in some cases. However, there is currently no consensus about such a dramatic change in our legal system. It would not be sustainable for us to try to legislate to that effect. That is a difference of opinion with Lord Carlile, not on principle—I am sympathetic to his position—but because the reform is so substantial compared with how we have done things in the past that we could not simply introduce it in the Bill.
Lord Carlile's final point is that special advocates should be able to see all the intelligence material, make representations on behalf of the detained and advise the judge. That follows on from the recommendation to introduce investigating magistrates. Without them, there is no need to "advise the judge". The detained person is already entitled to legal representation, so it is difficult to understand precisely what special advocates would add. Again, I am prepared to consider that if there is a way of dealing with the point directly.
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