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7 Dec 2006 : Column 156WH—continued

I can say, without giving away any confidences, that the head of MI5’s recent ballpark figures on the number of conspiracies and of people involved in them is of quite a different order of magnitude from the numbers that were kicking around even at the time of our inquiry earlier this year. Things are getting more difficult and more challenging.

That leads me to two conclusions. The first is that if our assessment had been done this time last year, the House could have settled on 28 days without much division and with half the pain. The second is that we need a mechanism for keeping the matter under review, partly because of its history. It is unlikely to be satisfactory if we simply wait for the Government and police to return and say, “Well, we had another look at it, and now we want 45 days, or 60 days.” It will take some time to undo the damage caused to the process’s credibility by the way in which the argument was first made. Even if it had been advanced in a much more satisfactory and well argued way, it might have carried the House, but not the public. That is why we suggested—although there could be other ways to do it—that the Government use an independent committee of Privy Councillors to review the evidence. The Newton committee showed how effective that can be. The noble Lord Carlile clearly plays a vital role for all of us in analysing the issues independently. Something along those lines would be useful.

We considered alternatives that would allow us not to need extended detention: using intercept evidence, lowering the charge threshold, using post-charge questioning, allowing inferences from witness silence and so on. Our Committee agreed that they would all be useful. Having considered a significant number of cases, though, we came to the conclusion that they would not resolve the problem. Even if we used intercept evidence, problems with the nature of the information and associated problems with disclosure would mean that in some cases it could not be used, even though it might be enormously important as a basis for the police investigation.

That knocks on to the limited effect that lowering the threshold is likely to have. Post-charge questioning is difficult. The vast majority of serious terrorist suspects never say a word from beginning to end. They are not going to say more after a charge. We were convinced that some way down the line, people on the fringes of a conspiracy might see it as in their interests to spill what beans they have, but it would not allow much to be done about the prime suspects. As most judges have a history as criminal lawyers and most criminal lawyers advise their clients not to say anything that they do not want to say, the reality is that judges are not likely to invite juries to draw too many inferences from the silence of a defendant, whatever the House says. That is what we have found.

Our view is that lots of procedural changes should be introduced—I shall not discuss them in detail—but the point of principle is that they would not reallysolve the problem. There would always be terrorist conspiracies that would not be prosecutable despite the changes, and the issue of detention would therefore
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continue to arise. Hopefully, the number of cases would be smaller, and clearly everybody will agree that the more people we can prosecute the better, but the changes would not solve the problem.

I am sorry for having spoken for so long, as other hon. Members are here, but I took all the interventions that arose. I hope that the Minister will give us an indication of the Government’s current thinking on their plans for legislation this year. Perhaps he will also assure us that some lessons have been learned from the problems of last year’s Bill and that an extensive consultation period and the opportunity for pre-legislative scrutiny will be available to the House. If we can reach decisions after a lot of debate but without too much division, so much the better.

2.55 pm

Mr. Andrew Dismore (Hendon) (Lab): I am pleased to have the opportunity to follow my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and to have had the advantage of hearing his remarks. I thank him for allowing my Committee’s report to piggyback on his, so that we can combine both in one debate. I hope that when my hon. Friend the Minister replies, he will acknowledge that we have saved him at least one debate.

The Minister for Policing, Security and Community Safety (Mr. Tony McNulty): For once.

Mr. Dismore: I make no apologies for starting where my right hon. Friend the Member for Southampton, Itchen left off in his remarks about the background to how the matter came into being. Coming from a human rights perspective, our report disagreed with several of the Home Affairs Committee conclusions—I shall deal with those later—but we agree on some important issues.

Both our Committees are engaged on Parliament’s behalf in the same enterprise—holding the Government to account and asking them to justify their legislation and policy on combating terrorism. Equally important, we are both in the business of providing suggestions for effective, acceptable and, in our case, human rights compatible ways to achievethe Government’s vital objective of safeguarding the people of this country from terrorism. As we have said repeatedly in all our reports on counter-terrorism, the Government have a clear and onerous human rights obligation under article 2 of the European convention on human rights to take positive steps to protect everyone in the United Kingdom against terrorist attack—an obligation that is often not recognised by human rights people or journalists. At the same time, human rights law places some limitations on the measures that may be taken to meet that duty.

The Home Affairs Committee inquiry was tremendously valuable in subjecting to close examination the case made by the police and Government for extending the period of pre-charge detention in terrorism cases, but unfortunatelythat examination had to come after the passage ofthe Terrorism Act 2006. We entirely agree withthe Committee’s conclusion that many of the Government’s difficulties during the Bill’s passage arose from the speed with which it was drafted and
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presented to Parliament. The Home Affairs Committee inquiry fulfilled the task of examining the police arguments for extended detention, but we believe that the Home Office should have done that before introducing the Bill in the first place.

Our Committee also received evidence from the police during our legislative scrutiny of the Bill, but we could not do as detailed an evaluation as necessary in the short time available. We and the last Parliament’s Joint Committee on Human Rights repeatedly faced extraordinary time pressures in conducting the required legislative scrutiny, which included obtaining the necessary evidence to report our views on counter-terrorism legislation, to inform parliamentary debate sufficiently early given the speed with which the legislation was put through both Houses. We were encouraged by the then Home Secretary’s commitment on 2 February that during this Session, the Government would publish a draft Bill consolidating existing terrorism legislation, which is currently spread over a number of Acts, to enable pre-legislative scrutiny before they proposed any further legislation proper. The then Home Secretary also told us that the Bill would provide an opportunity to amend existing terrorism legislation. We believe, and I think the Home Affairs Committee concurs, that it is essential for parliamentary Committees and Parliament as a whole to have time to consider any new legislative proposals that the Government wish to introduce, especially if they include measures such as a further extension of the period of pre-charge detention or changes to the control order regime.

The Government’s intentions relating to this Session’s legislation are not at all clear now. There are rumours that the consolidating legislation might take the form of a consolidation Bill, which would be subject to accelerated parliamentary procedure and would therefore have minimal opportunity for amendment. I hope that in his reply, my hon. Friend the Minister will dispel those rumours and give the House a clear outline of the Government’s intentions.

Mr. Grieve: We were certainly given the impression that there would be some form of consolidating legislation, but my impression when the matter was raised during debate on control orders was that we would have the opportunity of a complete overview of the entire armoury of anti-terrorism proposals, including the opportunity to amend them, introduce new ideas and remove some things completely.

Mr. Dismore: I am grateful for the hon. Gentleman’s comment, because that was the view that we, too, were led to believe. I hope that that position has not changed and that my hon. Friend the Minister will confirm both that the rumours that have been flying around are not true and that the Government will allow proper scrutiny of all aspects of counter-terrorism legislation as a piece. I hope, too, that they will debate with us ideas that our Select Committees and other parties put forward.

My Committee intends to scrutinise any legislation or draft legislation for its human rights implications, even if formal pre-legislative scrutiny is undertaken by another Committee, including under the new Public Bill Committee procedure. We are concerned to ensure that even if the new legislation goes through under the
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Public Bill Committee procedure, that does not exclude either the Home Affairs Committee or my Committee from doing the proper job that we are appointed by Parliament to do.

Apart from time, the other main factor affecting our scrutiny of Government proposals is the adequacy of the evidence and information that are provided. One of the judgments that we on the Joint Committee on Human Rights are continually called on to make is whether proposed measures are proportionate to their objectives. In other words, when considering counter-terrorism proposals, we have to judge whether the inevitable interferences with individuals’ rights and the impact on human rights law and standards go only so far as is necessary to meet the specified purposes set out in the European convention, such as the interests of national security. We also need to consider whether proposed measures meet the conditions set out in the convention, such as those under which persons may be lawfully detained, under article 5. In the absence of more detailed information on the precise nature and level of the threat from terrorism or on the threat posed by individuals, such as those subject to control orders, that is an exceedingly difficult judgment for us to make, so as to inform Parliament about the human rights compatibility of proposed legislation and policy.

We recognise the important work that has been carried out by Lord Carlile, who is the independent reviewer, and by the Intelligence and Security Committee. However, we consider that neitherprovides the degree of parliamentary involvement that is necessary to provide the basis for informed debate and decisions by Parliament on counter-terrorism legislation and policy. In our report, we called for more direct parliamentary accountability. We said that the concept of an arms-length monitoring body, charged with oversight of the security and intelligence agencies, independent of the Government and those agencies, and reporting directly to Parliament, was worthyof consideration. The Government rejected that recommendation. They also rejected the Home Affairs Committee suggestion, which my right hon. Friend the Member for Southampton, Itchen repeated, that an independent committee could be established to review the maximum detention period annually. I would urge the Minister to reflect further on those points.

Mr. Jeremy Browne (Taunton) (LD): In case thereis any doubt, I am a member of the Home Affairs Committee. I concur with the overwhelming majority of the recommendations in its report, but I have some reservations on the issue that the hon. Gentleman has raised. We keep being told that committees of Privy Councillors should be able to consider whether we have a replacement for Trident and other major questions of public policy, but my concern is that the House will be presented with a fait accompli on those issues. We will be told that the wise men and women who represent the three major parties in the House will have weighed up the evidence to such an extent that mere Members of Parliament voting in the House will not have enough wisdom to overturn their suggestions. Quite a few of us have that concern, so I should be interested to hear the hon. Gentleman’s view on that.

Mr. Dismore: I certainly understand the hon. Gentleman’s position, which I suspect is shared by many. However, the fact remains that we cannot
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realistically expect the intelligence services, the Government or anyone else to give all the detailed information to Parliament, as that might prejudice national security. The problem with the existing system is that reports from the Intelligence and Security Committee often come late in the day and go to the Prime Minister. That Committee does not report directly to Parliament. The advantage of a committee that reported to Parliament would be a greater degree of confidence in the views expressed by any such body.

We hope that the Government will also look more favourably on our recommendation that counter-terrorism legislation should contain sunset clauses that limit it to a maximum of five years, and should be subject to parliamentary review of its operation.

To turn to our report’s substantive conclusions and recommendations, and the Government’s response, I should like to explain the context of our report. It is the third in a series of reports that we have produced in our continuing open inquiry into counter-terrorism policy and human rights, on which we embarked at the start of this Parliament. The first of those reports considered the then Terrorism Bill and related matters. It was in that report, therefore, that we set out our views on the extension of the pre-charge detention period. In the light of the evidence that was then available to us, the Committee concluded that

I should mention in parentheses that my personal view was different, as was that of my right hon. Friend the Member for Southampton, Itchen. I voted for the 90-day extension and was in a minority on my Committee, as one might expect. However, I do not think that anyone could say that I have been soft on terror during my period in Parliament. Indeed, until 9/11 I was seen as the nerd who took an interest in such matters. The day after I seemed to become the world’s leading expert on extremism in Britain. However, any views that I express on the issue must be in the context of the rule of law and the importance of human rights. That has become even more important to me since I took up my job of chairing the Committee.

The Committee did not rule out the possibility that evidence might be forthcoming to justify an extension of the detention period, subject to improvements in procedural safeguards. That position obviously differs slightly from the Home Affairs Committee view, and since that time my Committee has not explicitly re-addressed the question.

My Committee’s second report dealt with the order that maintained in force the control orders regime, under sections 1 to 9 of the Prevention of Terrorism Act 2005. We considered, agreed and published that report in the short period between the laying of the order and the debates to approve it, which took place on 15 February in both Houses. We accepted in principle that a control orders regime that imposed preventive measures after a proper judicial process was capable of being human rights compatible, but we described the control orders regime contained in the 2005 Act as, in our view, a de facto derogation from articles 5.4 and 6.1 of the convention. We therefore seriously questioned the renewal of the provisions
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without Parliament being given a proper opportunity for debate on whether a derogation was justifiable. In other words, are the extraordinary measures in the 2005 Act strictly required by the exigencies of the threat that our country faces?

The report that we are debating today is our third in the series. We also intend to report soon on the Council of Europe convention on the prevention of terrorism, on how intercept evidence might be made available in terrorist court cases, and on other aspects of counter-terrorism policy. We will, of course, also scrutinise any further legislation that the Government bring forward. A number of those subjects are identified in the report that we are debating today.

We are trying to look forward in a constructive way, to help the Government to produce human rights compatible suggestions to improve counter-terrorism. In our earlier reports, we were necessarily reacting to concrete legislative proposals that the Government had advanced. In the current report we set out to make and examine positive proposals for

Our focus is on ways of making easier the effective prosecution of terrorist suspects, and on possible alternatives to lengthy pre-charge detention.

Article 2 places a clear duty on states to prosecute those who are suspected of involvement in terrorist activity. The main obstacles to prosecution under the criminal law are well known. They were identified by the Newton report and flow from the fact that much information against terrorist suspects is likely to be derived from intelligence. Such intelligence information may not cross the threshold of admissibility, and may fall short of the criminal standard of proof.

Section 17 of the Regulation of Investigatory Powers Act 2000 prevents the use of intercept evidence in court. Even if such evidence were admissible, the security and intelligence agencies are opposed to its use in open court for fear of compromising sources or methods. The agencies are also concerned about the breadth of disclosure requirements in English criminal law. However, that does not seem to be a problem for other countries, where enforcement agencies regard our position with disbelief, especially as intercept material supplied from a foreign agency can, I understand, be used, unlike that from a UK source.

We looked at a number of ways of overcoming those obstacles to prosecution, some of which we ruled out. We ruled out the use of special advocates in specialist terrorist criminal trials as being incompatible with many of the most basic principles of a fair trial. Following discussions on a visit to France and Spain about the investigating magistrate systems in those two countries, we concluded that nothing from those very different systems should be grafted on to our adversarial common law system. I listened with interest to the point that the hon. Member for Beaconsfield (Mr. Grieve) made in his intervention, with which we concur.

We considered that the role of the Crown Prosecution Service should be developed, so that it becomes more proactive in relation to the investigation of offences. In many ways, the CPS fulfils the role of
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the investigating magistrates in the continental jurisdictions. By building on that role we could import some of the advantages of their activities, albeit in the sense of how they operate, rather than in a structural sense. The growing specialisation in terrorist cases should be supported and strengthened. We havecalled for CPS relationships with the police andthe intelligence services to be enhanced, so that investigations can be structured to maximise the prospects of the information obtained being usable as evidence in a criminal trial.

I now come to the first area of significant disagreement between the JCHR and the Home Affairs Committee. Although members of our Committee welcomed the introduction of the new offence of acts preparatory to terrorism, we were concerned when the Home Affairs Committee found that the power of pre-charge detention was being used for the purposes of prevention, rather than investigation. My right hon. Friend suggested that the difference between us might be semantic, but we were concerned when his Committee recommended that statutory authorisations should be provided for such arrangements, which seems to go a little beyond semantics. As we said in our report, preventive detention per se is not permissible under article 5(1), and any statutory authorisation would require a derogation from that article. We are pleased that the Government clarified the position to some extent in their response to us and that they do not intend to amend legislation to permit preventive detention.

We recommended that attention should be turned urgently to relaxing the ban on the use of intercept, and I believe that the tide of opinion is turning onthat issue, with the Director of Public Prosecutions,the Attorney-General and the Metropolitan Police Commissioner all indicating that it should be looked at favourably. However, I also noted the rather sceptical—

Mr. McNulty indicated dissent.

Mr. Dismore: My hon. Friend the Minister shakes his head. I do not know whether he wishes to make an intervention, but the DPP was certainly very much in favour of relaxing the ban when he spoke informallyto us. The Attorney-General also spoke in favourof intercept when he was in America, and the Metropolitan Police Commissioner said only two or three weeks ago that we should look favourably at it. I do not know whether my hon. Friend wants to intervene now or respond later.

Mr. McNulty: Later.

Mr. Dismore: The Minister will respond later.

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