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Westminster Hall

Thursday 7 December 2006

[Mr. Greg Pope in the Chair]

Terrorism (Detention and Human Rights)

[Relevant documents: Fourth Report from the Home Affairs Committee, Session 2005-06, on Terrorism Detention Powers, HC 910, and the Government’s response thereto, Cm 6906, and the Twenty-fourth Report from the Joint Committee on Human Rights, Session 2005-06, on Counter-Terrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HC 1526, and the Government’s response thereto,Cm 6920.]

Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Watts.]

2.30 pm

Mr. John Denham (Southampton, Itchen) (Lab): I am delighted to open the debate and I am gratefulthat the relevant authorities agreed that both Select Committee reports can be debated at the same time. Not only does that make better use of the Minister’s time, but it makes a great deal of sense because they examine essentially the same issues.

On the way in which we discuss terrorism legislation and the lessons that can be drawn from the debate on 90-day pre-charge detention, an early conclusion of the Select Committee on Home Affairs was that

I make that point at the outset because, this afternoon, we need to look for ways to ensure that when we consider terrorism legislation in future, we learn some of the lessons from the difficult period that the House of Commons and Parliament as a whole went through last year when we dealt with a vital piece of legislation. I make that point not to get at or to over-criticise the Government, but to say that we need to move on and ask how we can do things better.

We have in front of us two reports on similar issues, but with different approaches. To some extent, they reached different conclusions, and careful reading shows that the two Committees asked slightly different questions. I have no doubt that if last year’s debate on pre-charge detention had taken place after the inquiries by the two Committees, the debate would have been better and the House would have reached a consensus much more easily on the appropriate detention period.

Mr. Dominic Grieve (Beaconsfield) (Con): I hugely welcome the reports from both the Home Affairs Committee, which the right hon. Gentleman chairs, and the Joint Committee on Human Rights. I simply want to echo what he said. He is quite right—there is absolutely no doubt in my mind about this—that the debate on detention periods was not sufficiently informed by sensible discussion and the laying of the groundwork beforehand. That must be avoided in future.

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Mr. Denham: I welcome the hon. Gentleman’s comments.

My immediate conclusion is that with new terrorism legislation mentioned in the Queen’s Speech as a distinct possibility in the coming Session, it would be enormously valuable to have a commitment to subject that or any controversial elements of it— whether an extension to the detention period or another relatively important measure— to the pre-legislative scrutiny of a draft Bill. That would give the House space for more detailed examination than last year. I have no doubt that if that had happened last year, first, a consensus would have been reached on the 28 days—that was agreed in the end, but after much division in the House—and, secondly, there could probably have been agreement on how the detention period would be kept under review. That is not just a procedural point. An early report of my Committee, published in 2005 just before the general election, considered the general question of terrorism legislation and, in particular, relations with the Muslim community, which tend to be most directly affected because of the nature of current terrorism.

We drew a number of conclusions. One recommendation was:

The recommendation continued:

It goes without saying that last year’s terrorism legislation provided no opportunity for that type of engagement with the Muslim community or any part of the wider community.

Mr. David Winnick (Walsall, North) (Lab): Does my right hon. Friend recall that Lord Carlile gave useful evidence to the Committee? We asked him—I believe that I asked the question—whether he knew of any Muslim organisation that was in favour of 90 days. He said that he could not give any such information.

Mr. Denham: My hon. Friend is absolutely right. The truth is that there was no opportunity to engage in a serious discussion, based on the evidence, with any organisations in the Muslim community. Like many hon. Members, they were trying to make a decision based on what turned out to be inadequate and partial information. We warned of the dangers in the report that we are discussing when we said:

What matters is not just what legislation the House passes, but the process we go through before we pass it. There are lessons on that to be drawn from both reports.

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On the process of policy making, we highlight the fact that there was no formal Association of Chief Police Officers business case. It is fair to say that that is not the only time that that has happened. Having been a Minister with responsibility for the police, I have been in receipt of an extensive analysis—ACPO usually refers to that as a business case—of a particular problem to justify perhaps a new piece of legislation or a particular type of operation or investment in a certain area. No such formal process was undertaken by ACPO, and that was confirmed to us in evidence to the Committee. It was clear that there was no rigorous scrutiny or challenge to the ACPO case by the Home Office or No. 10 Downing street. That again was confirmed to us during our inquiry.

Mr. Grieve: Returning to my earlier intervention, that situation coloured the entire debate because it was obvious to those of us who made inquiries at thetime that the ACPO case was not well researched and that its key committee had been divided on whetherthe submission to the Government, on which the Government subsequently relied, was a good one. Anyone who bothered to make inquiries round the back about what had gone on quickly discovered that the Government were relying on what appeared to be a flawed case. That in itself was not helpful in achieving the rational debate that we needed.

Mr. Denham: Let us remind ourselves that the written material that had been submitted to the Government when they supported 90 days consisted in its entirety of three ACPO press releases and two sides of A4 describing two operations. That was all there was in writing, and that was confirmed by Assistant Commissioner Hayman, who gave the lead evidence for the Metropolitan police.

Lynne Featherstone (Hornsey and Wood Green) (LD): Does the right hon. Gentleman agree that it was almost impossible for the House to condone the evidence that was put before it and that the use of the ricin case, in which the suspect was held for two days, was a bad example in terms of evidence given to us as a reason for granting 90 days?

Mr. Denham: One thing that was unsatisfactory about the process was that when the Committee was able to look in great detail at a substantial numberof cases in private evidence, the case for going beyond 14 days was compelling. There was not a compelling case for going to 90 days, but a very good case could be made for 28 days. With due respect, when most hon. Members voted for 28 days, they could not have done so on the basis of the evidence because the evidence was not in front of the House. Whatever the reason for the way in which Members voted—I was one of those who voted for 90 days, partly from having been involved in such matters as a Home Office Minister—none of us could base our votes on a considered examination of the evidence. One could argue that in some ways the police case was stronger for an extension of detention powers than came across at the time, although they could not, in our view, make the case for 90 days.

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We put it to Assistant Commissioner Hayman that the police were certain of the need for the maximum period to go beyond 14 days, but that the


felt about right. Mr. Hayman agreed. He said:

To be fair, he went on to say that it was a difficult judgment and that the police gave a professional judgment. I do not disrespect him for that, but yes, I thought it was rather flaky to base the case for suchan enormous extension of detention pre-charge ona maximum period without more evidence. We concluded that the extension to 28 days was convincing; we did not find the arguments for 90 days compelling at all. Ministers said that on the same limited evidence—those few bits of paper—they had found the case compelling. We found that surprising.

There was no division in the Committee on the central proposition—that the nature of the threat has changed. Some witnesses said that it is not very different from the threat that we faced from the IRA. We felt, however, that the centrality of mass murder as the aim of terrorist actions, the willingness to use suicide bombings and the international links put the threat on a different order of magnitude. That is to take nothing away from the horrific actions of the IRA and others and their willingness to take human life as part of their activities, but the centrality of mass murder as the prime political tactic of current terrorism puts it in a different category.

The Committee therefore tried to understand the nature of the policing involved in trying to tackle that terrorism. My hon. Friend the Member for Hendon (Mr. Dismore) will speak for himself, but there was a slight distinction between our Committee and the Joint Committee on Human Rights, which considered the legal framework in which things took place. We, onthe other hand, spent considerable time trying to understand the day-to-day practical realities of policing the threat. One of our early conclusions was that the police now inevitably move to arrest much earlier in an investigation than they would with any other type of crime. We caused a stir by suggesting that there was a preventive element to those arrests. The report by the Joint Committee on Human Rights used different language. It stated:

That is inevitable. One reason why there is a case for an extended period of pre-charge detention is precisely because the fear of allowing a bombing or similar event to happen requires people to act more quickly.

One of our conclusions was that there should be judicial oversight of the decision to arrest early in terrorism cases. The Forest Gate raid was in part—we read in the papers, at least—prompted by the danger that authorities in other countries would trigger action that would undermine the investigation. Had there been judicial oversight of the case, however, there is no
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doubt that the police would have been protected from some of the subsequent criticism, which said that they moved too early and in too precipitate a way. If it had been a bank robbery conspiracy, there is no way that the police would have intervened as early as they did in their investigation, because they would have taken a different judgment of the risk involved in allowing the conspiracy to develop.

Another of our early conclusions was that we should consider judicial oversight of the initial decision to undertake major arrests under the Terrorism Act 2006.

Mr. Grieve: I am grateful to the right hon. Gentleman for giving way so frequently, because it helps in this setting. What sort of oversight is his Committee thinking about? I raise the question because in our common law system, judges are on the whole reluctant to get dragged into such processes. They are the referees of criminal trials, not the proactive and inquisitorial agents of justice. Unless we create a new category of judge, the role that the judiciary can fulfil in our system is likely to be limited. I found his Committee’s proposals on that interesting but difficult to reconcile with our system.

Mr. Denham: I do not want to put too many words into the mouths of my Committee members, who did not necessarily address the issues explicitly, so I shall put forward my view. We probably need to be sufficiently imaginative to understand how some of the strengths of the continental systems can be adapted to our legal traditions. I do not propose a full panoply of investigating judges and all the rest of it, but it would be valuable to consider whether there is a category of judge that would be capable of taking an independent legal view on some operational decisions. We can construct such processes in our tradition. The moves, highlighted in the Joint Committee’s report, towards the development of a specialist section of the Crown Prosecution Service, concentrating on attempting to ensure that we secure terrorist convictions, begin to point us in that direction. It would not be wholesale importation of a system through the channel tunnel, but learning lessons and asking, “How do we do this in a British manner?”

Mr. Grieve: May I make this suggestion, which I shall develop in my comments? The truth is that an investigating magistrate on the continent is not a judge at all, but an independent prosecutor. In our country, there is a long tradition of prosecutors being ministers of justice: they should be capable of bringing impartial thinking to bear on what they do. It may be that the right hon. Gentleman is thinking of introducingsome sort of independent prosecutor’s oversight ofthe system, and that in reality this is an exercise in semantics, because the person could do that job justas well.

Mr. Denham: The hon. Gentleman is right: there is a danger of getting hung up on language. The Joint Committee did not like our use of “preventive detention”, but I found a description in its report of exactly what we were talking about, albeit in different language, so there is not very much difference between the two Committees.

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Similarly, the prosecutor’s role could be enhanced. However, our fundamental point is that the policeare currently asked to make a judgment about the investigation that they require to secure a conviction, and an operational decision about protecting the public from a level of risk at a certain point in their investigation. There is every case for bringing in an independent or different element to assist the police, and for the police not to have to shoulder the entire responsibility.

Patrick Mercer (Newark) (Con): I am listening with great interest to the right hon. Gentleman’s comments and entirely take the point that those who say that the situation is identical to the situation with the IRA are wrong. None the less, he made an interesting point about what I would call preventive arrests, or arrests at an early stage when police are gathering evidence on a likely terrorist incident. There was plenty of that in Ulster, and I shall develop those comments later. Why the difference?

Mr. Denham: The difference is a matter of degree or judgment. Despite the appalling atrocities committed during the conflict in Northern Ireland, we were not—at least not most of the time—facing an enemy for whom maximum death among the civilian population was the primary objective of every action that they took. There was a casualness and an arbitrariness about the willingness of the IRA to take life and not to apologise for it, but the scale of the threat does not turn something white into something black; it shifts the boundaries of the judgments that have to be made. We ask an enormous amount of the police in making the judgment about whether we will secure enough information and evidence on which we can base a satisfactory conviction, and about whether we are making the right intervention to protect the public from the risk. Bringing other elements into that discussion would be useful.

In private session, in conversations with operational officers at Paddington Green police station and in public session, our Committee was able to consider several recent cases. Some have subsequently gone to court, but others have not yet done so, and I shall not go into them in detail. We went through the elements of the police case and found some things that they had prayed in aid—the difficulties in obtaining translation, the time for prayer, and multiple representation of the same clients by the same firm of solicitors—not proven at all. They may have been issues and difficulties for investigations, but they did not provide a sound basis for a longer detention period.

Other elements—the need to arrest early, the international nature of investigations, the problems involved with computer encryption and difficulties of forensic capacity when there are many different suspects and activities—persuaded us, on the basisnot of theory but of actual cases that had been investigated, that there was a convincing case for going up to 28 days. However, we did not reach the conclusion at that stage that the case had been made for going further. We said that

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