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Kate Hoey (Vauxhall) (Lab): Does the shadow Home Secretary agree that sometimes even Metropolitan police commissioners can get it wrong, as happened in my constituency recently when someone was shot at Stockwell tube? Local people were told for some time that that person was a terrorist, but we then found that everything was absolutely wrong—
Madam Deputy Speaker: Order. I am afraid that that matter is sub judice.
David Davis: I will not talk about that particular matter, Madam Deputy Speaker, but the hon. Lady makes an important point. There have been well over 800 arrests for terrorist offences in the period since 9/11, yet in that time only between 20 and 30 convictions have been obtained. There is great scope for error here. The fact that this is a very difficult area of policing, as the Home Secretary said, makes the risk of error even greater.
Mr. Gordon Prentice (Pendle) (Lab): We heard last week that 28 days was at the outer limits of what would be acceptable under the European convention on human rights. Does the right hon. Gentleman agree that we should have the written opinion of the Attorney-General before we proceed?
David Davis: I will call the hon. Gentleman my hon. Friend if he is not careful. If he waits for a moment I will come to that point.
Ian Lucas: It is of course correct that this is an extremely difficult issue, but 90 days was proposed because the police made the initial request. Why is the right hon. Gentleman rejecting the police's request for 90 days and trying to impose his own arbitrary deadline of 28 days?
David Davis:
The point was made best by the Chairman of the Home Affairs Committee, the right hon. Member for Southampton, Itchen (Mr. Denham), who said, quite rightly, that while a case for some extension had been made, there had been no attempt at all to quantify it. I have been through Mr. Hayman's evidence in some detail. The only quantification concerns a fictional case, not actual cases that have been presented, or might have been presented, to the courts.
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That includes the case to which the hon. Member for Sunderland, South (Mr. Mullin) referred, in which the suspect went off to Algeria having been released after two days.
Clare Short: Is the right hon. Gentleman aware that Gareth Peirce, a solicitor who has been involved in many of these cases from the Birmingham Six onwards and who has taken part in an analysis of the detention of people up to 14 days, says that for 95 per cent. of the time, detainees are not questioned but held for hours and even days in their cells? It has been suggested that the police may feel that they have a very long time and therefore not use it, but the evidence is that they are doing that already.
David Davis: The right hon. Lady reinforces my point. I should make it clear that I do not blame the police for that. They often face scarce resources and many pressures on their time. If they are counter-terrorist police, they will be trying to deal with other issues, perhaps an immediate risk to the public. All those reasons may lead to an extension beyond what is necessary.
The question before the House is this: have Ministers made a robust, convincing and evidence-based case for 90 days ? Indeed, have they even made a case of which they themselves are convinced? The Attorney-General's spokesman has said publicly that he, the Attorney-General, is not convinced of the case. He is one of the Government's most senior Law Officers, but however senior he may be, he is not the Minister in charge of this legislation—that responsibility falls to the Home Secretary.
Mr. Cash: Will my right hon. Friend give way?
David Davis: Before I give way to my hon. Friend, I must allow myself enough time to comprehend his question. I may need to seek an extension of my speech.
Last Wednesday, in Committee, the Home Secretary withdrew the 90-day proposal—scarcely a sign of confidence in it. On Saturday, he said publicly that 90 days was not crucial. On Monday, he emerged from the Home Office to announce that he would table amendments to reduce the time limit from 90 days, but those amendments were never tabled. We have heard his account of it, but the whole House knows the real reason. By yesterday, only a day after the Home Secretary signalled his desire to listen to the mood of the House, listening was off the agenda, because he had lost control of the matter. The whole House knows who has seized control and who has brought back the 90-day proposal that was withdrawn last week and introduced the fig leaf of the so-called sunset clause. The Prime Minister, not the Home Secretary, has brought back the 90 days—the same man who, as Leader of the Opposition, twice failed to support a Conservative amendment on the prevention of terrorism Acts.
John Mann (Bassetlaw) (Lab):
The right hon. Gentleman will be aware of the disquiet among some of his closest colleagues about his party taking a position that is not that proposed by the police. In his discussions
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with the police over the past three months, has he heard any specific proposals from anywhere within the Association of Chief Police Officers that would match his proposal of 28 days, or for any period less than 90 days?
David Davis: My conversations with the police have been in order to seek evidence to support any case. I will tell the hon. Gentleman as much as I can about the Privy Council briefing, which was informative, inasmuch as it demonstrated that there was no substantive case for 90 days. The suspect who ran off to Algeria was released after two days. It was intimated that the evidence material to that case was found after a few weeks, not after 90 days. On the decryption of hard disk data, we suggested using the Regulation of Investigatory Powers Act 2000, which puts a four-year sentence on withholding decryption codes. We suggested increasing that sentence, and that does now appear in the Bill. Then the police said, "If we charge them, we can't interview them", so we raised the possibility of interview after charge.
All those things may be incursions on civil liberties, but they are much smaller incursions than those in the Bill. What worried me in my discussions with all the authorities—counter-terrorism authorities, agencies, police, the Home Office—was that they were not looking for the least harmful outcome: they were looking for a simple headline outcome. I was very unhappy about that, and I told the Home Secretary so.
Mr. Charles Clarke: The right hon. Gentleman has made that argument frequently. Does he accept that there are easily imaginable circumstances in which those who have the encryption key are dead and it no longer exists? In those circumstances, his solution of forcing people to give up the encryption key simply would not succeed.
3 pm
David Davis: We are considering circumstances after arrest. When one times the arrest will be dictated by what has been done with the encryption codes. There is a series of other options. For example, surveillance can be used before arrest. I could devise a fictional circumstance, such as that in Mr. Hayman's letter, that argues for 10 years' detention. The Government must focus, as I have asked them to do probably a dozen times, on providing serious evidence, which we will consider seriously. Until then, we must go for what was described by a Labour Member as the outer limit of what is acceptable.
David Davis: I feel under some duty to give way to my hon. Friend.
Mr. Cash: On the Attorney-General's position, my right hon. Friend may know that I received a reply from the Solicitor-General about compatibility with convention rights. It states:
"Given the long-standing convention on not disclosing the content of Law Officer advice or whether or not such advice exists, it would be wrong to comment further on this issue."—[Official Report, 7 November 2005; Vol. 439, c. 2W.]
My right hon. Friend rightly said that the Secretary of State takes responsibility. Does he agree that "Erskine May" and other authorities clearly state that the Secretary of State can decide to release that advice if he deems it expedient to do so? Will he ask the Home Secretary why he does not?
David Davis: The Secretary of State can release advice if it is expedient to do so and, I suspect, if it is helpful to his case, which "Erskine May" does not add. We can easily work out why he does not want to release information.
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