Mr. Kidney : Given what the hon. Gentleman has just said about the Liberal Democrat proposal on questioning after charge, is he saying that whatever the total length of detention may be, whenever a charge is laid there would never be questioning beyond 28 days after arrest?
Mr. Kidney: I pursue this point because of what the hon. Gentleman said about the idea that the longer a person is detained, the less reliability can be given to anything said in interview. Let us consider the example of a suspect who has been detained for 28 days, and who is then charged with an offence unrelated to terrorism, such as fraudulent use of a credit card. I choose that example because Mr. Hayman cited such a case. As it stands, the police would grant bail or put before the court. If put before the court, the accused could apply for bail and the court would have the power to grant that. Is the hon. Gentleman saying that there would be another change in the law to prevent such a person having the right to bail at all, or would the ability to question depend on whether the court held the person in custody?
Mr. Carmichael: No. On the question of lesser charges, I hope that the hon. Gentleman has simply misunderstood and is not misrepresenting my case. We have always said that it is a question of other terrorist charges, which is why I made specific reference to acts preparatory to terrorism. On the question of a person being held for a particular length of time, leading to a greater danger of evidence being obtained unfairly in the view, subsequently, of the trial judge, that is no barrier to questioning. However, the longer that a person is held, the more careful the police and the prosecution must be about the nature, extent, duration and circumstances of such questioning. The court will consider the circumstances in which the person has been held. [Interruption.] In England and Wales, all such matters can be dealt with through the Police and Criminal Evidence Act 1984 code, as my hon. Friend the Member for Cambridge (David Howarth) says from a sedentary position. What, therefore, is the hon. Gentleman's point about bail?
Mr. Carmichael: That question relates to cases where a charge other than a terrorist is charge is brought in the first instance. In Scotland, at least, it would be for the court to decide whether or not a person is admitted to bail. Such a question would be determined on the basis of the procurator fiscal bringing charges. I am not familiar with the concept of police bail, but I see no barrier to questioning taking place after someone has been admitted to bail. Perhaps the hon. Gentleman knows of examples to the contrary. I am mindful of the fact that I am skirting around a subjectEnglish evidence and procedurein which I am scantily qualified.
Surely the point is obvious. We are talking about a few cases of suspected terrorism. If the
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hon. Gentleman is suggesting that someone who is granted bail would hang around to be questioned, that is rather fanciful.
Mr. Carmichael: I am glad that we have finally got to the kernel of the issue. There is no question of bail being given when terrorism charges are brought. In any jurisdiction in the United Kingdom, the nature of the offence is always a substantial factor, and in such cases bail is not given.
David Howarth : The test for remanding in custody instead of granting bail, taking the prosecution's case at its highest, is whether there is a substantial risk that the defendant would abscond, commit a further offence or interfere with witnesses. On the basis of that test, I cannot see how any terrorist suspect could be given bail.
Mr. Carmichael: We are now on safe territory that I understand. Exactly the same test is applied in Scotland, and I can see no such circumstances in which any court would grant bail. In the event that it did, it would almost certainly be followed by a swift and successful bail appeal by the Crown.
A number of matters outwith the scope of the Bill need to be addressed, such as the PACE code. We also have the right to ask why section 57 of the Regulation of Investigatory Powers Act 2000 has not yet been brought into force. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) did point out to me last night, however, that the intelligence services commissioner's report of earlier this year makes it clear that section 57 has not been introduced yet because the extent and nature of encryption has not been as great as was envisaged when the Act was passed by this House. Members who have put great reliance on encryption would do well to consider that point.
Mr. Heath : I am still puzzled by the question of the implementation of section 57 of the 2000 Act. The Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), assured me at the Dispatch Box during our deliberations in Committee that he would write to me to explain why the Government have not implemented it. It would have been useful to have had that response before Report, and certainly before Third Reading.
I want to conclude by saying a few words about the nature of the debate in this House, and outside it, in the past few weeks. The debate in this Chamber has been of the highest possible quality. Contributions from Members in all parts of the House have been well motivated, sincere, well informed and passionate. That debate has done a great deal, notwithstanding some of the press comment today, to restore the standing of this House.
The debate outside this House, however, has caused me some concern. The role played by the Association of Chief Police Officers has crossed lines that, frankly, should not have been crossed. I was going to say a great deal more about this issue that might have proved fairly controversial. However, I shall not say too much today, because the time for that debate is when the dust has settled and tempers have cooled. There is, however, a distinction to be drawn between briefing, which is quite appropriate for a body such as ACPO, and lobbying, which is not. ACPO clearly crossed that line, something with which the House must concern itself.
The Bill leaves this House with much work still to be done. We see ourselves as involved in a process; we will play the fullest possible part in that. We hope that at the end of the process in the other place what we have is rather better than what we face today.
Michael Connarty (Linlithgow and East Falkirk) (Lab): I rise to welcome the Bill, as amended. I did not vote for those amendments; I voted for the 90-day provision. Those who know me, such as my hon. Friend the Member for Sunderland, North (Bill Etherington), know that I am not someone whom the Whips approach and that I have voted many times with my conscience and according to what I think is correct for my constituents. In this case, I had serious reservations. The Bill is amended as it is because the Government lost the argument many times in Committee. At that time they appeared to be conciliatory and to accept that even though, when a Government lose an argument, they may be able to press the vote and get their Members through the Lobby, they then have to reach a proper compromise. In some cases they did, and that is why I welcome the Bill, as amended.
My hon. Friend raised the question of moving away from the 14-day provision. We got locked into thinking that we were giving the police the power to slam someone up for 90 days almost automatically, rather than the detention being seriously reviewed again and again. I regret that our law did not originally state that people could be held for only seven days before the case went to the High Court for proper review. I believe that holding for seven days anyone who might prove innocent would be traumatic for them and their family, for their personal relations and for their relationship with their community, whether or not that is a Muslim community. When we moved to 14 days, we moved beyond what was, without review, a reasonable step. The debate should have been about how many times one could go back and ask, at a review, for another seven days and about why that request should be granted each time.
I was therefore much more interested in a number of issues on which the Government have made significant moves. I was not so concerned about the idea of time,
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but the debate became fixated on that idea. If we had been more skilful, we might have got a better amendment that would have allowed the reasonable renewal of detention for seven days, but within a very strict process, which I will mention later.
The question of definition is still difficult, although we have moved a long way. I have discussed this at length with my constituency party and my constituents, some of whom went through experiences similar to those mentioned by my hon. Friend. I represent a large section of the mining community in West Lothian. On incitement, the people to whom I spoke said that they want people to be stopped from inciting. On encouragement, they want people to be stopped from encouraging.
Acts of glorification have to be defined in a proper, fixed and recognised context. "Glorification" is such a vague term that lack of definition could lead not only to miscarriages of justice, but to a waste of time by the police and those involved in intelligence and research. That time should be focused on proper concernsgoing to war in Iraq has not improved our ability to fight international terrorism and is a glaring example of our chasing the wrong enemy.
I heard a number of Members refer in the debates in Committee and elsewhere to the Jenny Tonge test or the Cherie Blair test: whether glorification could be inferred from what someone has said. When I discussed that with people whom I regard as serious and intelligent, they laughed. What they wanted was a Mr. Hamza test, in which it would be clear whether someone was doing something that could incite or encourage terrorism. We were told that the powers available would not deal with such situations, and they wanted that dealt with before we got into what seemed like silly arguments about what people had said.
I have often been to Palestine and seen the victims of what was clearly sniper shooting by the Israeli Government. I have seen the families of children killednot in confrontations with soldiers, but by the mischance of being in the wrong place when soldiers decided to continue shooting. That leads one to understand why people cross the barrier of what is reasonable and commit acts against other innocents in anger and stupidity. That is not to condone those acts; indeed, one can completely deprecate them. I can see why Jenny Tonge might say what she did and why Cherie Blair might say what she did. That is not glorification of terrorism, and the fact that it was described in those terms was inappropriate and downgraded our discussions in the eyes of the public who followed what we were saying.