---

John Bercow (Buckingham) (Con): My right hon. and learned Friend has just explained that one weakness of the Bill is that most of its provisions fail to add to what already exists on the statute book. Does he agree that a sign of the weakness in which the Government find themselves intellectually is that Ministers have taken refuge in arguing that opinion poll evidence shows that people support the Bill? Given that my right hon. and learned Friend and I are both staunch opponents of the death penalty, as are most Labour and Liberal Democrat Members, can he envisage circumstances in which Labour Members would seek to argue that opinions should be followed simply because it is public opinion? We have a responsibility to exercise our judgment.

Mr. Clarke: Hon. Members on both sides have been resisting for many years the simplistic argument that the criminal law should be written in line with the opinion polls of the day. I can remember when the vast majority of the public would have supported hanging and flogging. Many police officers have expressed great disquiet over the years about the constraints on their powers of arrest, questioning and restraint, and they have pressed for more powers. Heaven forfend that we see the day when the criminal law, including the most
 
10 Nov 2005 : Column 523
 
essential provisions that bear on the liberty of the individual, are determined by focus groups or newspaper headlines and leaders. The arguments used by Ministers on occasion, both inside and outside the House, have strongly suggested that that is the approach that we should adopt.

We have been told to consult our constituents on the issue. I live near the constituency of Sherwood and I was astonished to hear that the hon. Member for Sherwood (Paddy Tipping) has been showered with representations on the issue. I have received only two, one for and one against. I might ask my two correspondents what their feelings were based on and what they thought was lacking in the powers available to the police and the present period of detention of 14 days. I could ask them what had led them to the conclusion that 14 days, which was introduced only in January last year, was too short and that 90 days were necessary. I suspect that neither of my constituents, enlightened though they may have been by the opinions of The Sun, would have been aware of the present constraints, the basis for arrest and charge or the present state of the law. If they had been asked what the case for 90 days was, I would have been interested to see if they could have produced a response, because no Minister has yet been able to provide concrete argument to explain why 90 days is preferable to 14 days, except that I should ask my chief constable. That is what is at the heart of the legislation, and that is why the House has done a good job putting it in its present state.

The only argument that has been introduced to justify the provisions in the Bill that extend the law—the extension to 90 days and the creation of the new offence of encouragement of terrorism, which are the two dramatic and draconian measures—is that they are needed to face the new threat of modern terrorism. We are told that we must now understand that what we have done in the past to waive our normal civil liberties to deal with extremist terrorism—mostly from Ireland—is overtaken by the modern terrorism, for which the rules of the game have changed. That, we are told, is why we need to toughen up particular provisions.

I find that argument faintly preposterous. I do not like being fobbed off with the argument that I do not understand modern terrorism. Apparently, Irish terrorists were simpler folk and less sophisticated measures were necessary to deal with them. They were decent fellows, apparently, who did not do too much harm and gave a bit of warning. They did not pose the risk of mass murder that we now face from disaffected Islamic youth. Well, I do not believe that. It contradicts my recollection that it was always a mistake to underestimate the sophistication and cunning of the IRA. It knew exactly what it was doing. It went in for mass murder and, when it gave warnings, they were usually slightly misleading, so that the police could be blamed for the casualties that resulted. I do not see that modern terrorism has moved on very much when I recall the outrages in public houses in Birmingham, in which young people were blown up by weapons deliberately designed to cause mass injury in two underground bars.
 
10 Nov 2005 : Column 524
 
Both were, by repute, frequented by under-age drinkers, which is why they were chosen. I could describe many other similar outrages.

Mary Creagh: Does the right hon. and learned Gentleman agree that, when we were dealing with the threat of IRA terrorism in the 1970s and 1980s, terrorists did not have mobile phones, the internet was in its infancy and in most cases the terrorists spoke the same language as us? There were none of the interpretation and translation issues that we find in the current threat.

Mr. Clarke: I shall deal with some of those points. First, the mobile phone has proved a great aid to investigation of crime of all kinds. One can intercept mobile phone conversations much more easily than most other forms of communication. I do not understand why the Government adhere to the tradition in parts of the police and security services of not using intercept evidence. I support such use. Indeed, I have always thought resistance to it faintly preposterous; it is getting more preposterous as time goes by. In that sense, things are not moving in the direction that the Bill suggests.

Of course, there is the argument that today's terrorists are more multilingual, but most of those who attacked us were British-born, spoke perfectly good English and were educated in this country. Certainly, the international links, which the IRA also had, involve a certain amount of multilingual activity, but it is not impossible to find interpreters. We do not have to wait three months to find someone who speaks Arabic. Perhaps if we improved our relationships with the Muslim community, we would receive a constantly ready supply of helpful Arabic speakers. I do not accept the argument about interpretation.

Encryption is usually given as the main reason why things should now take longer because the codes to what is encrypted are refused. However, the weapons being used are not that high-tech. Computer technology is not normally required to design today's terrorist bomb. Reference has been made to communications and planning, but if the only man who knew the codes was dead, it would take someone months and months, unless they were lucky, to decrypt the material on a computer. The idea that the difficulties of modern computer technology justify giving the powers originally in the Bill is not acceptable.

The changes in the situation are not that dramatic, but the Bill was introduced in the heat of the public reaction to terrible and dramatic events, as though that was something new. The importance of tackling such events is the same as ever, but the exploitation of emotion after the underground bombs should not allow us all to be persuaded that we face grave new threats that justify the erosion of our liberties.

I am delighted to say that, due to the state to which the Bill has been brought by the House, our noble colleagues in the other place will have almost carte blanche to address it and to find what can be made sensible out of the improved but somewhat battered Bill that is about to receive its Third Reading. I invite them to have a go and rewrite large stretches of the measure with all vigour. There are some distinguished people in the upper House who will be able to improve the current Bill beyond all recognition.
 
10 Nov 2005 : Column 525
 

I shall not rehearse the arguments that I have already made in Committee and on Report. We have an extremely difficult clause 1, with the new offence of encouragement to terrorism, into which the ill-fated reference by the Prime Minister to the glorification of terrorism has been rolled. I fail to see the need for that new offence, as incitement to violence can be covered in other ways. The present definition in the Bill is quite appalling. It will catch radical campaigners of both the right and left, and immerse us in international controversy on a scale that should be avoided.

We all talked at length about detention without charge. It is extremely important that in all normal circumstances—apart from extreme situations—we do not allow the police of our country to hold people without charge indefinitely, and persistently to continue to question them. The House was persuaded to move to 14 days, with effect from the early part of 2004. The Australians are still in a ferocious internal controversy about whether to move to 14 days. The 90-day period is preposterous and I have yet to hear a good case for 28 days. The only case that would induce me to vote for 28 days would be that it was better than 90 days, and that if we did not vote for it the Bill would leave the House of Commons unchanged. I hope that the Lords address that point.

I am rather worried about a consensus that seems to be growing about questioning after a charge has been laid. There are restrictions on the ability to question after someone has been charged in this country, although in my opinion—unless they have changed since the days when I practised—they are not as absolute as some people have assumed. If there is new evidence, questioning can be resumed, and I do not quite see what the difficulty is meant to be. Before we sweep away the whole question of allowing the police to continue to question a suspect after he or she has been charged with an offence, we should hesitate and exercise some care.

I agree with those who say that, if the idea is that we should bring in someone without sufficient evidence to bring a charge against them and persist in questioning them day after day for a month—let alone three months—we are likely to start to produce evidence or confessions that no one will regard as reliable because of the undue pressure put on the suspect since he or she was brought in.

I mention en passant, because I kept going on about it, that the extraterritorial application of the Bill is absolutely extraordinary. I do not wish to have bizarre litigation in this country with people arguing from strange parts of the world about whether they were terrorists or freedom fighters when they made a speech that someone has decided justifies their being arrested on a visit to London. I really do think that we must comply with our international obligations, but we must not go one inch beyond what we have committed ourselves to.

My final point causes me most concern. The atmosphere of the past two or three days, when the Prime Minister made the foolish decision to intervene and stake his own authority on the proposition that got defeated last night, has been extremely unpleasant. An attempt has been made to whip up popular fervour. I have no idea whether the Government were associated
 
10 Nov 2005 : Column 526
 
with The Sun newspaper's campaign, but the close connections between the present Government and the Murdoch press are well known.

The Home Office's encouragement to ACPO and the chief constables to start going in for political lobbying was taking ACPO into very dangerous territory indeed. We all have the highest respect for the opinion of chief constables and indeed for the police who are at the sharp end of the fight against terrorism, but to start lobbying for a political position in Parliament is not what ACPO and chief constables should do.

I return to the point that I made when my hon. Friend the Member for Buckingham (John Bercow) intervened. If we pass criminal law of any kind in the House in response to populist campaigns on the back of well-publicised crimes and if we are all told that we should go out and just take an opinion poll or read the newspapers, we will have some appalling legislation. Indeed, it is the danger that we might slip into that that gives a role to the upper House and, indeed, to the courts.

Whenever I see a chance being taken to try to bounce Parliament into some ill-considered, populist measure that impinges on personal liberty, I think how lucky in some ways the Americans are to have the Supreme Court to make sure that their Congressmen cannot do that. It is probably wise that we remain signatories to the European convention on human rights, and I do not resent British judges feeling themselves bound by that convention to make the principles of human rights override populist legislation.

We have an upper House, and it is very sad that we have got into a state where this House is increasingly passing silly, ill-considered, populist legislation, with everyone relying on the fact that the upper House will rewrite it. This is by no means the first Bill in the past five years that we have allowed to leave the Commons with all hon. Members on both sides of the House knowing perfectly well that some of its provisions will not last five minutes once it gets to the House of Lords and that, fortunately, the House of Lords will rewrite it and send it back.

The last time that something similar happened, we had all-night sittings when a bizarre attempt was made to bully this House and the upper House into agreeing to provisions on control orders that, I am glad to say, both found quite unacceptable, and the Government had to compromise. I hope on this occasion that having had a bloody nose on the Floor of this House—this is where Governments of all complexions should get a bloody nose when they step an inch too far—the Government will not try to start imposing some of the worst features of the Bill on either this House or the House of Lords.

The Bill should never have been introduced. It contains some of the silliest and most curiously drafted pieces of criminal law that we have seen for a long time, and the House of Lords will probably make it much more sensible. I hope that the Home Secretary will finally reveal to us whether he is the gentle face of the Government, or genuinely the conciliatory and more liberal policy maker in the Government. If he has more arguments with the Prime Minister about whether they should tough it out, or reason with their colleagues in Parliament to reach an acceptable consensus, I will be grateful.
 
10 Nov 2005 : Column 527
 

If we have no more bombs, the Home Secretary's assertion that we might try to move the whole thing on to a more stable basis and come back in a year's time to make a genuine attempt to get a consensus in a less charged atmosphere will be welcome. We all hate terrorism and we would like the broadest possible agreement on what should be done to enable people to protect us from it. A more measured view is the way to go about that, rather than trying to take through Bills such as this.

2.51 pm

---