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“not designed to deal with people under long-term detention.”—[ Official Report, 2 November 2005; Vol. 438, c. 901.]
The then Home Secretary, the right hon. Member for Norwich, South (Mr. Clarke) replied that he understood the points being made and was
“ready to come back to the House with a solution that will deal with this in an effective way. We recognise that the concerns raised by Opposition Front Benchers are genuine...I am prepared to give an assurance that we will consider the issues that have been raised.”—[ Official Report, 2 November 2006; Vol. 438, c. 919.]
A week later, on Report, the Home Secretary said:
“We welcome that suggestion... we can see grounds for having a separate code”,
and agreed with what my hon. Friend the Member for Beaconsfield had argued, saying:
“Such a code would be laid before Parliament and be subject to the affirmative resolution procedure...I can give a firm guarantee that the appropriate codes and their equivalents will be brought forward.”—[ Official Report, 9 November 2005; Vol. 439, c. 329.]
The then Home Secretary gave a “firm guarantee” back in November. The Government had almost five months between then and the Terrorism Bill receiving Royal Assent on 30 March to prepare a consultation paper on the draft code. Why was that consultation paper not published immediately after the Bill received Royal Assent? It took until May before the Home Office got round to consulting on the code at all. The code is certainly important, which is why we suggested its revision, but it has not been controversial. The need for it was agreed on all sides. As the Minister said, the Home Office received 26 responses to its consultation paper and they were described as generally “positive”. So why the delay?
After my right hon. Friend the Member for Maidenhead (Mrs. May) raised the matter on 8 June, the Prime Minister claimed:
“The reason that we are unable to introduce it”—
“quickly is that the Conservatives insisted on a longer consultation period, which prevented us from doing that.”—[ Official Report, 14 June 2006; Vol. 447, c. 763.]
How could he possibly claim that? We did not insist on a longer consultation period. We said that a new code of practice would be needed. Are the Government now saying that they would have preferred to introduce 28-day detention without the safeguard of a code?
The delay has been unnecessary and is the result of the now all too familiar Home Office incompetence. Consequently, one year after the atrocities on 7 July and almost eight months after the Home Secretary’s “guarantee”, the provisions on the extension of detention without trial will still not be in force. The Prime Minister claimed that powers to detain terrorist suspects for longer were
“responsible, right and necessary to protect this country’s security.”—[ Official Report, 9 November 2005; Vol. 439, c. 299.]
In that case, was not it responsible, right and necessary to introduce the code without delay so that the new powers could be implemented?
The Prime Minister first revealed that the Government were considering a longer period to detain suspects without charge at his infamous press conference on 5 August last year. From that point, it should have been obvious to the Government that safeguards would be necessary to ensure the proper treatment of people detained for unprecedented periods of time. Why did not work on those safeguards begin then? Why were they not included when the draft Terrorism Bill was published in September?
The Government cannot claim that somehow we caused the delay by opposing the provision to detain suspects for 90 days. First, we supported 28 days. Secondly, whatever the extended length of detention beyond the current 14 days, it should have been clear that a new code was needed to ensure proper safeguards.
Mr. Hogg: My hon. Friend says that we supported 28 days. That is true in a limited sense. We opposed 90 days and 60 days. Many of us would have preferred the existing 14 days. My hon. Friends who supported 28 days did so only to avoid the longer period.
Nick Herbert: I respect my right hon. and learned Friend’s point of view on the matter. He has clearly and consistently made known his objections to any extension beyond 14 days. Nevertheless, it was the official Opposition’s position that we would support 28 days, and we did that.
Let us consider the practical consequences of delay. The suspects who were detained after the police raids in Forrest Gate earlier this month have now been released. There appears to be no evidence linking them to terrorist acts that would justify their detention. However, what if that had not been the case? What if police intelligence, which, in the words of the Assistant Commissioner of Police of the Metropolis,
“raised serious concerns for public safety” ,
had been correct? What if the police had needed to hold the suspects for longer than 14 days to gather evidence and perhaps prevent another atrocity? They would not have been able to do so. [Interruption.] If the Home Secretary disagrees, he should intervene. Surely the police could not have detained the suspects for longer than 14 days. It is self-evident, because the order has not commenced.
The House agreed the necessity for a longer period of detention in November. Eight months later, the measure remains unavailable to the police. The delay, according to the Prime Minister’s argument, has put national security at risk. That is consistent with the Government’s record on law and order—long on grandstanding gestures to capture headlines, short on the practical measures of ordinary competence that are necessary to ensure public safety.
The Home Secretary has conceded that
“from time to time”
“is dysfunctional in the sense that it does not work”.
Rather than blaming officials, when will the Government accept that Ministers have responsibility for their Departments, and are responsible for the delay?
I have two specific questions about the operation of the new code H. It provides for the transfer to a designated prison
“as soon as is practicable”
of suspects for whom a warrant has been issued authorising detention for more than 14 days, unless the detainee requests to remain in a police station, or it would otherwise hinder or delay the investigation. The Minister explained that Lord Carlile, the Government’s adviser, strongly recommended the provision. Why 14 days, which appears to be an arbitrary limit? Half the respondents to the consultation were in favour of the ability to transfer prisoners to a prison, but half were against.
“Although we recognise that police detention facilities are not suited for prolonged detention, imprisoning persons who have not been charged with a criminal offence seems to us to blur a fundamental distinction between pre-charge detention and detention on remand. In practical terms, we are also concerned that it could lead to interference with a suspect’s right to access legal advice”.
Will the Minister confirm whether that is the case? How will the proper legal requirements for the conduct of interviews and so on be ensured in prison? Will prisoners have to be transferred back to properly equipped police cells for interviews?
Secondly, the code provides that detainees may receive visits from friends, family or others, at the custody officer’s discretion. To what extent will that provision be subject to supervision or review? Should such visits be left to the discretion of a single custody officer? What appeal procedure will be available if the custody officer decides not to allow the visits?
The Minister will appreciate that the detention of suspects for such periods will inevitably be controversial. We need only look back a few weeks to the detention of the suspects in Forest Gate to realise that that is the case. Granting visits to suspects will therefore be important, and there should be proper accountability and supervision.
I hope that the Minister can answer our constructive questions and that the House will support the code so that the powers, which the House has agreed are needed to counter terrorism, can be brought into force without further delay.
1.46 pm
Lynne Featherstone (Hornsey and Wood Green) (LD): Liberal Democrats strongly opposed the extension of detention without charge from 14 days to 90 days. We voted against the measure on Second Reading principally because we regarded the proposal as a breach of the ancient and fundamental right of habeas corpus, and the right to know the basis on which one is held and to challenge it in the courts.
The terrorism that threatens the safety of our citizens at this time in history has meant an uneasy rebalancing of the scales. The Government’s desire for 90-day detention was not supported by any case that was made sufficiently satisfactorily to gain the votes of a majority of hon. Members, and the provision fell. The 28-day detention period is the limit to which Liberal Democrats felt able to go without abdicating our commitment to civil liberties, which we in the United Kingdom value so deeply. It represents a doubling of existing police powers—it is quite an extension.
Although I shall restrict myself narrowly, in the way in which the Minister desires us to do, I must stress that we voiced concerns about the original proposal. The longer that a person is held in custody, the greater the likelihood that a court will eventually realise that any evidence was obtained under duress. Code H is therefore important because whatever evidence is obtained must be valuable and valid in order to be presented in a court.
I agree with the hon. Member for Arundel and South Downs (Nick Herbert) that, for something that was so urgent and pressing, the extraordinary delay in its implementation beggars belief. The Government explain it by citing work and consultation on the code of practice, but I understand that the work did not even commence until a month after Royal Assent.
We have previously agreed that a separate code of practice should be produced for those detained after arrest under section 41 of the Terrorism Act 2000. Given that that has been done, we are minded to support the Government. However, I should like the Minister to expand on some aspects of the code.
Will there be extra training for those who supervise the detention or will they simply receive normal prison training? What supervision will there be of what happens to detainees during their sojourn before charge? To whom will relatives complain or present their problems? How will we know about such matters? Will those detained under the 28-day rule come under the inspection regime of the prison or will there be a special inspection for them?
It is crucial that individuals held for 28 days be treated in such a way that their detention does not inflame the sensitivities of the communities from which they are likely—at least at present—to come. While it may be necessary—and we have now agreed to it—to remove liberty before charge for 28 days to gather evidence, it is crucial that the conduct of that detention should not exacerbate the present tinderbox situation. We have all seen the events in Forest Gate. I support the police going in to investigate, but it is crucial that their behaviour does not further damage community relations.
On the issue of the detention of those younger than usual, I refer to the recent arrest and detention of two 16-year-olds. The Minister indicates that it was only
one, but the principle is the same, whether it is one, two or 10. Will he say how younger people will be supported during the period of detention? Will they be flanked by adults to support them while providing evidence?
If the Minister can give satisfactory answers to those questions, the Liberal Democrats will support the motion, and if and when detention for 28 days without charge comes into practice, I hope that it is used appropriately and professionally.
1.52 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Much of the ground has been covered in the substantive debates on the Terrorism Act 2006, so I shall be brief. My hon. Friend the Member for Arundel and South Downs (Nick Herbert) said that he hoped that the code would be passed by the House, but I take a different view, not because of the contents of the code, but because the passage of the code is a condition present to the extension of the time period for detention from 14 days to 28 days. If one takes the view, as I do, that we should not extend the period of detention, one inevitably has to oppose the code, even if it is an improvement on the current position.
My hon. Friend the Member for Beaconsfield (Mr. Grieve) was right to secure an undertaking from the Government that a code would be published and brought to the Floor of the House. He should be commended for that, but the essential point is whether we want to extend the period of detention. If the answer is no, the House should not pass the code. It is not necessary, desirable, just or proportionate to increase the period of detention from 14 days to 28 days. It also increases the risk of injustice. Anyone who practises in the criminal courts, as I do regularly, knows very well that the period of detention is a time of great stress for the detained person. If the period is an extended one, those detained are capable of wrongly incriminating themselves. We are embarking on a course of action that is likely to have that effect, and it is primarily for that reason that I opposed the extension of the detention period when we debated it last year.
I have also expressed, on many occasions, my dissatisfaction with the process. Statutory instruments and codes are not amendable, but they can have a heavy impact on the rights of citizens. This code is an important document. It has been the subject of consultation, and one is grateful for that, but the House cannot amend it. We must either approve it as a whole or reject it. Matters of this kind should be amendable, which could be achieved by putting them into the schedule of the Bill. I regard this as a very unsatisfactory process. Matters of this kind should be dealt with under primary legislation, and when they are detailed and complex they should be included in schedules, so that they are amendable.
I am aware—we have just heard so from the hon. Member for Hornsey and Wood Green (Lynne Featherstone)—that there will be no support for voting to oppose the order. I therefore do not propose to divide the House, but I do protest against what we are doing and against the extension of the detention period. To anybody who says that the Conservative
party signed up to 28 days, I admit that that is true, as my hon. Friend the Member for Arundel and South Downs said in terms. But we did so because a 28-day period was a darn sight better than 90 or 60 days. It was the best deal that we could make. That is not an assertion of principle, but of pragmatic fact, and—speaking for myself—I am thoroughly against an extension of the detention period to 28 days.
1.56 pm
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): My heart sank when my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said that he did not propose to divide the House on this matter. I support the arguments that he advanced, especially on the relationship of statutory instruments to primary legislation and the fact that they are not available at the time of consideration of the original legislation. In fact, the Modernisation Committee is considering the process of legislation and may make recommendations on that point.
I shall concentrate on the issue of civil liberties, paragraphs 7.2 and 7.3 in the guidance notes, and on the statement made by the Minister of State that
“In my view the provisions of the Police and Criminal Evidence Act 1984 (Code of Practice C and Code of Practice H) Order 2006 are compatible with the Convention rights.”
I asked him about that and, like most Ministers nowadays, he gaily asserted that it is a matter of routine. My objections, like those of my right hon. and learned Friend, revolve around the most basic concepts of what Britain stands for and our civil liberties. It is unconscionable that a person should be held without charge for 28 days. Fourteen days is an awfully long time, but we are talking about six weeks in the life of an individual. If the provisions are misused, careers will be wrecked, families may be broken up and great financial burdens will be imposed.
It is cynically suggested that we should accept such provisions because they will eventually be shipwrecked in the House of Lords by a judgment declaring their incompatibility. However, the statutory instrument gives us an opportunity to reflect on the provision’s incompatibility with the European convention on human rights and the possibility that the Law Lords will rule in that way. That is the judgment of many well-regarded lawyers. I suggest that it is cynical to fail to address head-on the relationship between the case law and the status of the European Court of Justice, because that is what the Government are doing. They are playing with the themes. They have brought us to the point where British citizens may be held for up to 28 days without knowing what they are charged with. That is contrary to the traditions of our common law and our history of liberty, and it is very difficult for people in those circumstances to mount a defence.
I am opposed to the code of practice—both emotionally and because of who I am and whom I represent—because I believe that the Government’s declaration of compatibility is fraudulent.
Mr. Greg Knight (East Yorkshire) (Con): My hon. Friend is making a powerful case. What period of detention would he regard as acceptable?
Madam Deputy Speaker (Sylvia Heal): Order. I must intervene, as we are not discussing the period of detention but rather the code of practice that applies to legislation already agreed in the House.
Mr. Shepherd: I understand, Madam Deputy Speaker. That is why I have tried to focus on the fact that the code is a crucial part of the 2006 Act, and a requirement of it. A successful vote against the motion would shipwreck the concept of 28 days. However, I know that that concept will inevitably be shipwrecked in any case, under the existing arrangements that the Government have put in place to protect Britain, by the European Court of Human Rights.
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