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7 Dec 2006 : Column 170WH—continued

Sometimes it is said that those of us opposed to any further extension of detention time place far too much emphasis on civil liberties at the expense of protecting this country against terror. That accusation is common.
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It is not necessarily made by the Government, but the argument has gone—even more so since 7/7—that we are so interested in civil liberties that we do not understand the acute terrorist threat.

I do not believe that that accusation is right in any way. The hon. Member for Newark said that he was satisfied with seven days, and could accept 14 days and just about swallow 28 days. It is interesting to note that in the House of Commons and the House of Lords, the debates on the increase in the period of detention without charge from seven to 14 days occurred without any Divisions. Of course, there were reservations; only a very odd House of Commons and House of Lords would be willing to increase that period without expressing concern and reservation, bearing in mind this country’s long tradition that people should not be held for such a long period without being charged or released. The 14 days was agreed to in the House of Commons on 20( )May 2003, without any Division; in the Lords, it was agreed to in October of that year—again, without a Division.

I have tried to recollect my views at the time. I am almost certain that I did not participate in the debate because in 2003—before 7/7, of course—I was persuaded that since there could be an acute terrorist attack, it would be reasonable to increase the period from seven to 14 days. I always went along with the view that some atrocity would happen, and I continue to take that view.

My concern arose when it was proposed that the period should be 90 days. It is interesting that the28-days amendment was accepted, again, without a vote. The hon. Member for Newark said that he swallowed it with some difficulty—so be it—but there was no vote. The Conservative Opposition did not vote against 28 days; neither did the Liberal Democrats. Of course, just as when we moved from seven to 14 days, there were concerns and reservations. We would all like to reduce the period when it is appropriate to do so, but, given the circumstances at the time and the terrorist threat faced by this country, it was agreed to increase it.

There is a reference in paragraph 144 on page 45 of the Home Affairs Committee report to what I would describe as a foolish and rather misguided move by Government ultra-loyalists in the House of Lords to extend the period to 60 days. As stated in the report, it was defeated by 210 to 108 votes. I understand that the Government decided that they would not involve themselves one way or the other but would leave it to the Lords to decide. It would have been much better if the Government had told the ultra-loyalists that it was a foolish step to take and had tried to persuade them—perhaps they would not have succeeded—not to do what they did.

The extension to 14 days did not come into force until 20 January 2004, and much was made of that in the debate on 90 days on 9 November last year, as hon. Members may recall. The extension to 28 days came into force on 25 July. There is an interesting point that the Minister may wish to explain. If there was such urgency, if it was essential that 90 days should be brought into force, why was there such a delay before the Act came into force? There seems to have been, shall we say, a certain lack of urgency, despite what the Government said in the debate last year.

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I tried to find out how many of those who were detained and then released were later charged with terrorist offences. I tabled two parliamentary questions and on each occasion was told that it was not possible to answer on grounds of cost. It is an impertinence to the House of Commons that we should be denied an answer on an issue as important as how many people are detained, released and then charged—or not charged, as the case may be—with terrorist offences.

I am glad that my hon. Friend the Minister has given me a note assuring me that the Home Office is looking into the matter. I hope that he will not mind my mentioning this, as in some respects it was a private conversation. I asked him whether we could have the information for this debate, but he said, “No, it has taken too much time.” Taken too much time? How many people have been held and then released? I know that the Home Office computers are not always what they should be, but I should not have thought that obtaining the information would be so difficult. Perhaps the Minister will explain the problems when he replies.

Bearing in mind that 28 days has been in operation for some five months only, I hope there will not be a move by the Government to reintroduce 90 days. There is a rumour going around—in fact, more than one rumour—that they will, but it would be wrong to do that. It would certainly divide the House again, but, for all I know, the proposal may be carried. Some of those who voted for 28 days as opposed to 90 days—but perhaps not my hon. Friend the Minister—may change their mind. I have not carried out a survey among colleagues who voted for 28 days as opposed to 90 days, but neither have I found many who have changed their mind. Indeed, I have yet to find anyone who has.

It is clear that any proposal for 90 days or, indeed, for 45 or 60 days—there are other rumours—would cause the same difficulties for the Government. There will be the same bitterness and controversy in Labour’s ranks. I should have thought that we could avoid that.

If there were compelling, clear, hard evidence that an extension is necessary, I believe that the House of Commons would agree to one. But since the 90 days debate—in the past few weeks—the Attorney-General has said that he has not seen any evidence that persuades him to support an extension. Imagine the Government reintroducing the proposal. Even if the Attorney-General were to change his mind by that time, it is obvious that Labour critics such as myself and Conservative and Liberal Democrat Members would endlessly quote what he had said. The most senior Law Officer in the land has said that he has seen no evidence to justify an extension beyond 28 days.

My advice to the Government—they may not want any advice from me; so be it—is to accept the fact that Parliament agreed to double the detention period from 14 to 28 days. To repeat myself, it has been in operation for only five months, the most senior Law Officer has stated that he has seen no evidence to justify an extension, and both Select Committee reports had reservations and so on but came to the same conclusion. In such circumstances, I hope that the Government will let the matter rest for the time being.

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3.47 pm

Lynne Featherstone (Hornsey and Wood Green) (LD): I am pleased to speak in this debate on two such excellent reports.

Terrorist attacks involve gross violations against the individuals who are killed or injured, obviously, and gross violations of the fundamental values of civilised democratic societies. We live in a world where terrorist attacks are a reality and we must adapt to the current climate. Some of the new terrorism powers, such as the offence of acts preparatory to terrorism, are therefore entirely justified, but others, such as control orders and the extension of the power to detain without charge, bypass traditional principles of due process and so present us with a challenge to find the line between security and liberty.

It is critical that counter-terrorist measures respect human rights and the rule of law. If their sweep is too broad or arbitrary, they may be counter-productive, in that they risk alienating the very sections of the community whose close co-operation and consent is required if terrorism is to be defeated.

There is concern that the Government may seek to bring back a provision for 90 days detention without providing supporting evidence. I hope that they have heard enough to understand that, having been bitten in the first outing, they should not come back to the House unless their evidence is incontrovertible.

The Home Affairs Committee report focused on problems with how the arguments were presented and on over-politicisation of the issue. It concluded that pre-charge detention has become as much if not more about preventing possible future crimes as the investigation and prosecution of crimes that it is suspected have been committed. That shifts us from traditional principles of British justice. The summary states:

which was controversial—

So, detention because of what someone might do in future rather than what they are suspected of having done in the past constitutes a real change to our traditional right to liberty and a significant shift in the scales of justice away from innocent until proven guilty.

Mr. Denham: Having read the report from the Joint Committee on Human Rights that came out after ours, it is important for me to clarify the intention of the Home Affairs Committee. We are not suggesting that the power of detention should be used in circumstances when nobody dreamt for a moment that they would be able to bring a case to court, but more that in a case where everything in an investigation is leading towards an arrest that would lead to conviction, the police might decide that they needed to go in earlier than they would if a more minor offence was under investigation.
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I want to draw the distinction, because we certainly were not advocating a general power to go round taking people off the streets on the grounds that sometime in the future it might be necessary to arrest them. It might be useful to make that clear. It is clear from both reports that our report has been slightly misinterpreted and possibly includes some infelicitous language on the subject.

Lynne Featherstone: I thank the right hon. Gentleman for that helpful clarification.

I turn now to the general subject of detention. The level of threat that we are informed we are facing is so great that I am sure no politician of any persuasion in the House of Commons would simply say that there can be no change to and no infringement of civil liberties, rights or freedoms. I have not found it helpful that we have stood accused of being soft on terrorism because we have raised concerns, put arguments and questioned the draconian request for such a great extension. The shift has to be demonstrated to be vital to the safety of the state and its citizens, because detention without charge strikes at the heart of British justice. That is why the Government were defeated on the last outing we had on the matter of 90 days. However, as the right hon. Member for Southampton, Itchen (Mr. Denham) said, we did shift to a doubling of the time for which someone could be held and that was quite an extension on skimpy evidence—more of a compromise than an evidence-based shift.

I hope that the Government were bitten by that experience and that if they come back again, they will do so based on sound evidence. The police did not help the Government with their argument, although I hear today that there was more evidence than we were privy to. The quality of the evidence presented in the House and the example of the ricin terrorist skipping the country considerably damaged the case for those of us who were trying to make an honest judgment about the evidence before us. The aeroplane plot, which the police and intelligence service foiled brilliantly last summer, did not point to their conclusion either. It strained resources and went to the wire in terms of the 28-day limit—the police say that they were up against it and able to bring charges on the 27th day at the eleventh hour. To me, that is a resource issue and not entirely to do with curtailing freedoms.

The problem for the Liberal Democrats has always been that civil liberties seem to go as the first rather than the last resort. One problem is that when we are trying to work together and to trust the Government, the argument that is made for accommodating an extension against our usual liberties is that it will be used only in extreme circumstances and that great care will be taken, with great supervision. Then, to use a well-worn example, we see the farcical absurdity of an old man being held under anti-terrorist legislation for heckling at a Labour conference.

Mr. McNulty indicated dissent.

Lynne Featherstone: I see the Minister shaking his head, but that probably was an accidental and not very brilliant example. My next example puts in a nutshell some of the difficulties that we face as Members of Parliament in representing our constituents. Into my
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surgery came Mouloud Sihali. He was tried and acquitted in relation to the Wood Green ricin plot, but it is clear that the authorities still suspect him.

As I have mentioned, the ricin plot was used as justification for extending the period for which people can be detained without trial. It is true that one person skipped to Algeria, but he was actually released after only two days, so even under the law as it stood the police could have kept him in detention for much longer if they had wanted to and he could have been charged with acts preparatory to terrorism. I keep returning to this point: if he was a major terrorist whose existence would justify detention without trial for 90 days, why did the police let him go after two?

Mr. Sihali came to see me because he is under a virtual control order, without being under a control order per se. Despite being cleared and acquitted of the ricin plot and freed—he was allowed to go completely free—for five months, he is now tagged, under curfew, not allowed to have a mobile phone, to use the internet or to have visitors to his room, and he has to report each day to the police. My concern is that he was completely free for five months. If the authorities are convinced he is a terrorist, why was he allowed to wander round completely free for five months? Did they change their mind back and forth as to whether he was a terrorist, and if they have changed their mind, how good was the basic evidence?

Mr. Sihali is facing deportation as a threat to national security, but the evidence will be judged in secret and will never be seen by either a normal court or Mr. Sihali. He has been convicted of a passport offence and was in this country illegally, so I do not have a problem—nor does he—with deportation on those grounds. However, he is facing deportation on the grounds of being a threat to national security and if he is deported on those grounds, for the rest of his days he will have the stigma of having been thought to be a terrorist. That is an awful burden to carry, unless he really is a terrorist. The point is he will not have the chance to argue his innocence and he argues that he should be given a chance to clear his name.

I had sitting in front of me in my surgery the whole problem in a nutshell. It was about the issue and legality of some of the powers under the Terrorism Act 2000—about control orders and secret evidence, the terrorist threat and civil liberties. If we get it wrong either way we face huge consequences—either letting a terrorist go free or tarring an innocent man for life. He is one of my constituents, but would I be fighting to help an innocent man or aiding a terrorist? I have no idea without knowing what the secret evidence is. The only route that I can follow is to get a meeting with the Home Secretary, which I am trying desperately to do.

For me, that sums up how the legislation comes down to the coal face of reality when we try to deal with such issues. I would prefer it if the reports made some suggestion that might allow a charge to be made on other grounds, by using the lower threshold, post-charge questioning or intercept evidence—anything that would enable steps to be taken towards bringing a charge or prosecution—rather than this no-man’s land where I, Mr. Sihali and a great number of people have no idea where the truth lies.

As the report by the Home Affairs Committee indicated, the nature of the terrorist threat might well
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have changed beyond all recognition compared tothe threat posed by terrorism connected with Irish republicanism. However, although the nature of terrorism might be changing, it is absolutely essential that the rules and framework of international law within which it must be tackled do not change. The close scrutiny by the Joint Committee on Human Rights of the Government’s counter-terrorism legislation has sent a clear message: national laws might change in the wake of an attack to the extent required by human rights law, but the applicable human rights rules should not.

I found it interesting that the Joint Committee on Human Rights used France and Spain as examples where prosecutions are public and where open trials go on according to criminal procedures. By contrast, in the UK there appeared to be a fear among the police and security services that criminal prosecution using intercept evidence would inevitably lead to sensitive sources being revealed in open court, which leaves the need to resort to the use of administrative detention, control orders and memorandums of understanding with foreign countries instead of prosecution.

The Joint Committee report also makes a number of suggestions that many hon. Members have spoken about today, so I will not hold up the Chamber by reiterating them all. Apart from those matters that I have already mentioned, on which the report is good, I note the stress that it places on the importance of turning intelligence into evidence. That is critical. We need to move more towards evidence rather than simply holding on to intelligence in the hope that, in time, further evidence will be accidentally produced. I hope the Government will make a note of that, particularly the section on intercept evidence. The irony is that the Government are willing to lock up suspects without charge, but not to use intercept evidence to prove their case and to convict. What is the purpose of incarceration without a conviction?

The Liberal Democrats wish to see the bar on intercept evidence in criminal trials removed. The inadmissibility of intercept evidence must be a major factor in not being able to bring charges. We presume that much evidence must be gathered by way of intercept, and that it would not meet the relevant charging standards. Continuing inadmissibility means that charges cannot be brought so easily. Earlier this year, Lord Carlile reiterated his view that

The JCHR concluded that

As we heard from other Members, the Attorney-General too has come out recently on post-charge questioning and so on.

I shall summarise. Our country faces a deadly threat. All sides in the House agree on that. We are fortunate that our police and intelligence services have been able to disrupt and prevent so many attempts to bring death and mayhem to our streets. Laws that prevent an act from taking place by restricting liberty or removing due judicial process must, as the right hon. Member for
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Southampton, Itchen said, be kept under constant scrutiny and examination, and be constantly improved, lest they cross the line of absolute necessity.

Section 44 of the Terrorism Act 2000, for example, allows stops without reasonable grounds for suspicion. Applications under that provision are made for particular areas, and once they are made the police do not need to apply the normal grounds in order to stop and search. Since coming into force, that section has been applied over the whole of London all the time. Once a power is given, its use can be seen as convenient—it is there in perpetuity rather than being used only for the extreme circumstances for which Parliament granted it.

I urge the Government to heed and take seriously the findings and conclusions of both these excellent reports.

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