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Mr. Grieve: I hope that the Home Secretary will forgive me if I seek clarification of something that he has already tried to explain. Will he concede the principle that the judge should be able to say that detention should not simply be for another seven days but should be able to require a return in 48 or 72 hours if he believes that that shorter period is appropriate? Is the Home Secretary prepared to include that in the Bill?
Mr. Clarke: I am prepared to discuss doing precisely that with the hon. Gentleman and other colleagues. There is an advantage to what he suggests. He is right to highlight giving more flexibility to judges to decide how to supervise the process. The fact that the time period is under judicial supervision is not highlighted enough. We are now suggesting that it should be supervised by a High Court judge. That is an important part of the process, which should reassure some who have been worried. To avoid doubt, I stress that the police perceive judicial supervision to be important. If colleagues read the evidence that the police gave to the Joint Committee on Human Rights, they will find that the police set out the advantages of that process for an investigation.
Mr. Heath: I am especially grateful that the Home Secretary went through all that Lord Carlile had to say instead of cherry-picking, which is unhelpful to both sides of the argument. He said that he agreed with some recommendations but not otherswe are in the same position.
I wish to make two points. First, the proposal for judicial supervision of an investigation is a substantial judicial innovation, but no greater than 90 days of detention without charge. Secondly, I ask the Home Secretary to be fair in acknowledging that Lord Carlile said that some cases had not been successfully prosecuted in the absence of the new offences that the Bill introduces. They provide new opportunities for prosecutors to bring people before a court.
Mr. Clarke: They do, and the hon. Gentleman is right that Lord Carlile's report was produced before the Bill was published. Nevertheless, the core question remains: is there an ability to charge? Earlier, the hon. Gentleman cited the encryption cases and outlined his concerns about them. I can do no better than quote from the speech that the hon. Member for Belfast, East (Mr. Robinson), who is in his place, made on Second Reading. On encryption, he said:
"The reality might be different. Three people might be responsible for what was intended to be a series of suicide bombings, two of whom might have given up their lives in the process. Those two might be the ones responsible for the encryption, and no matter what legal redress one might have against the remaining person, he could not decode the files even if he wanted to."[Official Report, 26 October 2005; Vol. 438, c. 388.]
The point that I am making in quoting the hon. Gentleman is that I agree that the number of times on which any pre-trial detention would be needed would be
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narrowed, but the circumstances might still exist in which we were unable to bring charges, even in relation to lower-level terrorist charges.
Mr. Cash: As the Home Secretary knows from discussions that we have had on this matter, the question of the Human Rights Act 1998 has been raised by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), by the hon. Member for Somerton and Frome (Mr. Heath) and by Lord Carlile. My new clause 3 would disapply the Act for this purpose. Let us consider the possibility of our getting a 90-day limitthe Home Secretary knows that I have considerable sympathy with the proposals relating to the upper limitsbut of the matter then being referred to the courts. I think that the Home Secretary is being a little optimistic, given that Lord Carlile's reportwhich the hon. Member for Somerton and Frome did not mentionspecifically states:
I am sure that the Home Secretary realises that there would be a serious problem involving huge delays if there were to be such a challenge in the courts and, irrespective of what he says about the Attorney-General's view, the provisions were to be struck down. We would lose a vast amount of time and place the public at serious risk if there were a successful challenge.
Mr. Clarke: I appreciate the hon. Gentleman's general support for our proposals. However, I would not advise the House to accept his new clause, because it would not be correct for us to suspend the operation of the European convention on human rights in this context. He has asked a series of hypothetical questions about what might happen if cases were taken to the European Court. Of course, everyone will have a different opinion on that, and he is right to cite what Lord Carlile has said. My duty before the House is to say explicitly that I have given the Bill its certificate based on advice that I received, including that of the Attorney-General, that it was compliant with the European convention. That is the basis on which I operate.
On the question of safeguards, I am always ready to look at review procedures, sunset clauses and so on, but I do not hold out a great deal of hope that that will be the path to resolving the issues that have been raised. They are genuine issues, and this brings me to the points raised by my hon. Friend the Member for Walsall, North (Mr. Winnick). I want to pay respect to the way in which he has conducted his discussions on the Bill. I can reveal to the House that we have had private discussions on it, and that my hon. Friend is absolutely principled in what he is saying. He has put forward his views consistently, and with no spirit of political intrigue or anything of that kind. He approaches the matter in an entirely proper way.
My hon. Friend raised an important additional point, which I also mentioned on Second Reading, as did the hon. Member for Somerton and Frome. It is very important that the elected Chamber should try to reach consensus on this matter. There are a range of different opinions in this complex matrix of issues about lengths
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of time and about safeguards, and I completely agree that that is the approach that we should try to take. Why do I say that? Not simply because it is politically more convenient, but because it is very important indeed that this democratic House should speak to the nation in a direct way when dealing with terrorism. It is difficult for us to reach agreement, because there are genuine differences of opinion, but my starting point is that we should try to do so, and that is what I want to do. It is critically important for right hon. and hon. Members to talk to their constituents and their communities. My hon. Friend's concerns about the alienation of the community are real ones, and they have been echoed by other hon. Members. We need to address them with our constituents in the best possible way.
My only cavil with my hon. Friend's remarks is that I think that he traduces the police a little when he suggests that they have not proposed the 90-day period in a considered way, and that my ministerial colleagues and I have not considered the police's proposal in a serious way. I certainly have, and I and my ministerial colleagues right across the Government have tried to analyse carefully what has happened. The police have given the best of their professional advice. That is what they should do. That is how they operate, and that is their responsibility. That is what they have done, and the suggestion that they have not operated in a professional way is not right.
Mr. Michael Mates (East Hampshire) (Con): Many Members have said that the police are alone in wanting this extension, but the Minister for Policing, Security and Community Safety made a remark some days ago indicating that more than the police within the security apparatus are involved in that. Can the Home Secretary help us on that point?
Mr. Clarke: The police believe that 90 days is right, and the Crown Prosecution Service believes that 90 days is right, for the very detailed reasons that I gave in an answer a moment ago. The security services believe that an extension is right and support the recommendation that 90 days is right, but they do not believe that they are professionally competent to judge whether 90 days is right compared with other times. That issue led to confusion in discussing those matters, not least in front of the right hon. Gentleman's Committee, the Intelligence and Security Committee, but the whole of the services involved in this support the police position.
However, it is the police and the CPS that have the responsibility for conducting these situations. Therefore, all other services have said, "While we support the case for change in general from what we have seen, and while we support the particular police proposal of 90 days, we think that that particular proposal comes from their policing and prosecutorial experience."
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