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7 Dec 2006 : Column 177WH—continued

4.2 pm

Mr. Dominic Grieve (Beaconsfield) (Con): It is a pleasure to take part in the debate and I welcome the opportunity to discuss the reports. I am grateful to the Select Committee on Home Affairs and the Joint Committee on Human Rights for producing them. They both strike me as being full of useful and interesting material that can make a powerful contribution to the debate.

We have to face up to the fact that when serious legislation has come to the Floor of the House over the past 12 months and beyond, we have been in the midst of a rather fevered debate. That is profoundly unsatisfactory, because there clearly is a common meeting of minds on many of the things on which we have to make a decision, just as there has been today.

I start with something that may seem so basic that it is not worth saying. I entirely agree with the Home Affairs Committee that we face a serious terrorist threat. I have had the opportunity of debating that in the past, but I restate my belief now, not least because I deal with community cohesion matters for my party, that my experience leads me to suppose that the extent of the threat may be understated. I have no difficulty with the figures recently put forward by Dame Eliza Manningham-Buller. I regret to say that they are entirely in keeping with the impressions that I get when travelling up and down the country doing my community cohesion work.

After the July bombings, there was a slight sense that the Government, perhaps with a desire to reassure the public, projected the impression that the bombers came from Planet Tharg—that they were from outer space—and that those monsters who had suddenly appeared in our midst could be isolated and removed. My conclusion, painful though it may be, is that that does not bear scrutiny. The bombers undoubtedly have international connections, as do other terrorists threatening our country, but they are also a home-grown phenomenon. They are deeply embedded in certain sections of our society and, as I said, they are angry and alienated, and have chillingly distorted perspectives about the general state of the world and the society in which they live.

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That is a big challenge for us all. It is precisely that challenge that has always coloured my approach and that of my party to the matter of security. At the end of the day, there are no short cuts to be had. I fear very much that the problem will be with us for some time—we could easily be talking of one or two generations. It will be a battle for hearts and minds. It will not be a clash of civilisations, but a battle about values. We will win that debate if we are strong in asserting our own values, which will allow a much better environment to exist, in which people of diverse faiths and backgrounds can live in peace, prosperity and freedom, than the alternatives.

For that reason, we must be careful how we deal with the security issues relating to terrorism. In all our debates—whether over 90-day detention or over control orders, which oddly enough I believe better highlight the problem—we must be careful that what we do does not give even an impression that might undermine our core values of freedom and the rule of law in the process.

Language matters. Even the way in which the Government come to the House to ask for more powers matters, because it can send out powerful signals about the underlying intentions that they—and we, if we co-operate—have. Many of the communities from which the bombers and terrorists spring are affected by profound paranoia, believing that inimical forces are working against them, their religion and their community. Our actions can therefore act as a powerful fuel, making the engagement process that can bring them out of that mindset much more difficult.

It is with that in mind that I shall deal with some of the issues that both Committees have considered. I start with 90-day detention. Much has been said, and I do not wish to go over old ground. However, the simple fact is that when 90-day detention was introduced in the Commons, the case for it was not properly made. A decision taken by an ACPO committee—as I said earlier, it was soon revealed by subsequent inquiry that it could have been divided on the question, with some members feeling that they were being hijacked into making a precipitate decision that might have an adverse impact on relations with the Muslim communities in Britain—was translated into flimsy bits of paper, as highlighted by the right hon. Member for Southampton, Itchen (Mr. Denham). In the course of two weeks of polemic, it was elevated into holy writ.

That illustrates precisely how not to approach such debates. I have always accepted that there were powerful arguments for extending the 14-day period to 28 days. I entirely agree with the right hon. Gentleman that we did not decide 28 days on a rational basis. It was a compromise, based on gut feelings and talking to people. I suspect that we probably got it about right. Indeed, I have seen persuasive evidence for 28 days. However, it is a regrettable fact that, at the time we debated it, I doubt we had a rationale behind the decisions. The evidence simply was not available for the 90-day detention period and I am interested to learn that the Attorney-General’s current view is that an extension beyond 28 days is not justified. I am pragmatic, as is my party, about these issues. If powerful and persuasive arguments can be advanced which indicate that a move from 28 days needs to be made, we will consider it and if necessary we will
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restrict our distaste for it. However, at the moment the argument is not there and I will need a lot of persuasion and evidence to shift my position. That is not to say that, on our part, moving from 28 days becomes the ditching of some holy writ; it does not. But we must bear it in mind that every day that we extend the principle of pre-charge detention, we are subtly completely undermining some of our basic, core legal principles, and it rapidly turns into detention without trial.

Mr. Denham: The hon. Gentleman makes some important points. Will he acknowledge that one of the difficulties is that if we consider statements by Ministers, there is not much that justifies the case for an extension beyond 28 days? The Chancellor, for example, has spoken on this matter a number of times over the past year and generally used words that are similar to those used in the conclusions of the Home Affairs Committee report—a willingness to go beyond 28 days if the evidence justifies it, but no more than that. In addition, I am not aware that the Home Secretary has said anything that significantly varies from what the Committee said.

One of the difficulties is that a number of newspaper stories claim that somebody from some newspaper has been told that there is the intention to introduce a measure to extend the 28 days, but the story is not sourced with any great authority. The Attorney-General’s view may reflect the current Government position that they will consider the issue, but that a case has not been made for an extension. In which case, it would be enormously helpful if they could make it clear whether that is their position and that they would not rule out a change if the evidence exists. Some of the background noise in the media about this subject may be contributing to the wider problems that the hon. Gentleman quite rightly raised.

Mr. Grieve: I agree entirely. In fairness, I do not know the circumstances in which the Chancellor said what he said, although it was taken up by the newspapers. If the Government’s current position is, indeed, that there are no grounds for departing from28 days, they should simply say so. That would, for the moment, put the debate to rest. If the debate has to be reopened at some later date because of further material that the Government wish to present, that is fine and we would consider it. The danger is that the occasional comments that emerge and that may have been distorted appear—perhaps not to the press, but certainly to the public—to be a bit like kite flying. Such statements seem to indicate that somebody is positioning themselves to make an announcement, or alternatively is engaging in an internal competition with others, to point out that their credentials on issues of security cannot be impeached from either the right, the left or anyone who believes that security is paramount. That is regrettable as these are important issues. We should not be making suggestions about what we would be prepared to do unless we have to face up to a situation in which it is time to persuade people that it needs doing. Tone does matter.

I mentioned control orders. I am a beneficiary of control orders, as I discovered, rather bizarrely, six months after the debate that my award for
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parliamentarian of the year was on the back of my performances at the Dispatch Box over a 36-hour period during the control order spat. However, what is so ridiculous is that it is now known as the debate about whether or not to have control orders. That was not the subject of the debate. Everybody accepted that there was a need for control orders following the Belmarsh ruling in the House of Lords. The debate was actually about whether there should be a sunset clause. I was glad to see a reference in the Joint Committee’s report to the need to have sunset clauses—perhaps rather longer ones than we envisage, but nevertheless there is a recognition of the need to keep anti-terrorism legislation under review. When I spent 36 hours atthe Dispatch Box—not, mercifully, continuously but a 36-hour period without much sleep—we were debating a quite narrow issue. That is not conducive to sensible debate either.

Mr. Denham: I shall try to make this my last intervention. The hon. Gentleman needs to explore a possible contradiction in his position. I agree that we will face this problem for a generation or more, but the concept of the legislation we are introducing having sunset clauses of one, three or five years sits against that. There is a constant need to review legislation to see whether it is appropriate, and one reason why I welcomed the announcement by a previous Home Secretary for a consolidated terrorism Bill is that we need a framework of anti-terrorism legislation that will last for a generation—that is the nature of the problem that we face. I hope the consolidated Bill is more than a legal device for sticking everything into one piece of legislation.

Mr. Grieve: The right hon. Gentleman makes a good point. One of the problems in the debate on control orders was that, as he will recollect, the sense of urgency when it was announced was such that the whole thing was rushed through Parliament in a way that was bound to raise hackles. He may recollectthat in Committee and on Report vast chunks of amendments were sensibly tabled to the Bill, but there was no opportunity to consider them—causing fury not only for our party, but on the Labour Back Benches. There was a remorseless sense that unless one signed up immediately to support the Bill, one was almost treasonable or aiding and abetting terrorists. That is a very bad state in which to legislate.

I entirely welcome the suggestion that we should have full legislation and, as the right hon. Gentleman will recollect, the final compromise came when the Home Secretary wisely announced at the Dispatch Box that although he was not prepared to concede a sunset clause, he was prepared to concede to Lord Carlile’s review. Major consolidating legislation would then offer the opportunity for amendment and full debate on every aspect of our anti-terrorism legislation. I repeat what I said when I intervened on the hon. Member for Hendon (Mr. Dismore): I hope that the Government keep that promise. The suggestion that this consolidating legislation may just be a rubber stamp exercise to bring together everything that is currently on different statutes into one piece of legislation, would be, to my mind, a flagrant breach of the undertaking that I understood had been promised at the time.

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I hope that the Minister will tell the Home Secretary that it is in the interests of the Government and, indeed, the public that we should have an opportunity for reviewing the armoury of legislation that we now have—some of which has never actually been used or may not even have come into effect. We need a sensible and comprehensive piece of legislation. That can be done, but it means that people have the right to question what it is made up of.

There are many references in the reports to thresholds for prosecutions and holding charges. I appreciate from that that it is probable that we who are lawyers and have participated in earlier debates may have failed hon. Members by not communicating something that was obvious to us, but not to others. I am afraid that that sometimes happens and I was struck by the bit in the report dealing with thresholds for prosecutions. It has long been the case that the test for the threshold as to whether to charge may be a lower threshold where there is reasonable anticipation that more material will come to light. In the context of drug importation and all sorts of other things with which I have been involved, such as ordinary crime, that is a common place. Therefore, it is something that was always in the back of my mind when considering the necessity for a 90 day pre-charge detention. I imagined that it was in the back of the Government’s mind as well and I shall be interested to hear from the Minister about that. I may be a bit muddled, but I should be grateful for clarification as to why, apparently, it might not apply to certain terrorism cases, because I am mystified by that. I do not see why terrorism cases are any different in their nature from any other form of criminal activity in this respect.

On holding charges, I am slightly concerned that we might be giving a mistaken impression. Of course charging someone with a holding charge merely as a pretext for detention cannot be tolerated, but charging someone with an offence for which there is plainly material to justify it and when one intends to bring them to trial, with the knowledge that there are other, more serious matters that one wishes to investigate so that one is happily able to marry the two things together from the point of view of preventing crime, is perfectly acceptable and, indeed, is done all the time.

Mr. Denham rose—

Mr. Dismore rose—

Mr. Grieve: I shall give way to the right hon. Gentleman first, because he rose marginally more quickly than the hon. Gentleman.

Mr. Denham: Our Committee’s view was that if one could charge someone with acts preparatory to terrorism under the new legislation, believing that one would be able to do more than that, that would clearly be fine, but the other end of the spectrum—charging someone for not having lights on their bicycle—would not be acceptable. The difficult area perhaps—this does occur—is whether it would be acceptable to charge someone and detain them for, say, immigration offences, which could affect a large number of other people but would not necessarily lead to a terrorism charge. Our feeling was that if the offence was directly
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related to the terrorism, that is fine, but if one is on a fishing expedition to find something else with which to charge someone as a reason for detaining them, one is getting into a difficult and, at best, a grey area.

Mr. Grieve: I understand the point perfectly, but police investigating an alleged terrorist plot may well go to someone’s house and find three or four passports of different nationality. There is clear evidence that the individual involved has committed serious passport offences. I would expect him to be charged with and prosecuted for those offences in any event, and if he is convicted he will receive an appropriate penalty and he may, if he is a foreign national, be deported. If that facilitates further inquiry and investigation into the terrorist conspiracy, that is the good fortune of the investigators. As a prosecutor who has been involved in many prosecutions in the past, I feel entirely comfortable with that. What one cannot do is trump up charges or take something that is utterly trivial and use that as an excuse. In that respect, I see the distinction.

Mr. Dismore: I am grateful to the hon. Gentleman for that clarification, because it was one of the points that I was going to make and was made to us very strongly by the Director of Public Prosecutions when we met him. We could end up causing more problems than we solve, however, because once someone has been charged, they can apply for bail, and if it is a trivial offence, they may well get it and therefore they are out and about, and we have lost track of them.

Mr. Grieve: That is always a risk, and I am sure that those who charge people are always mindful of the problems that can be caused, but let us consider what happens in some cases, particularly if a foreign national is in this country illegally, for example. If someone has been arrested on one matter and there is clear evidence of alleged criminality, it is probably likely that he will be remanded in custody, which may be greatly to the advantage of both the security of people and the investigation.

Another issue that was raised is adverse inferencesin terrorism cases in post-charge interviews. I am a believer that there can be no logical reason for not facilitating post-charge interviews. Provided that such an interview is subject to suitable safeguards, itshould be perfectly possible to draw, in respect of a post-charge interview, the adverse inferences that can be drawn in respect of a pre-charge interview. Indeed, it would be illogical if that were not possible. If I may say so to the Minister, I think that if it requires primary legislation, he will have the support of Opposition Members. We will have to examine the issue in detail, but I do not see it as a serious difficulty.

Much has been said about intercept evidence. I fully accept that it is not a panacea and that it presents difficulties. Linked to that is the issue of judicial oversight, which has cropped up in the context of dealing with intercept evidence and possibly managing a public interest immunity process or, more widely, supervising terrorism investigations altogether.

I am half-French by background, but I could not claim to be an expert on the French system. However, I do worry slightly at times that there seems almost to be a group of mermaids sitting on a rock across the
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channel—the French system seems to have a magnetic attraction for the British Government. Somehow, things are all so much simpler and easier in France because of the administrative powers that can be had, the long detention of people under investigation, and the investigating and examining magistrates. I happen to believe that our common law system is superior, but that is not to say that we should not be looking at what the French are doing.

As I said in an intervention, an examining magistrate is not really an independent judge at all. He is a sort of super-prosecutor designed to provide some level of public reassurance of independence outside the mainstream prosecution service. One need only go and see the way in which such a person operates, including meeting the police and the prosecutors at intervals, to see that he is in fact a prosecutor. We have a long tradition in this country of trusting prosecutors to take independent decisions in the interests of justice. If we are looking for a model such as the one suggested, it is within the Crown Prosecution Service and through the DPP that we should probably be seeking the sort of person we want, rather than—if I may use this expression—tainting the judiciary by using that title for something that is alien to judges.

The right hon. Member for Southampton, Itchen will remember that when we had the control order debate, Parliament wanted to give the judges the power to scrutinise the process. The judges did not like that a bit. They went along with it, but they were not happy with it, because they felt that it was dragging them into an arena that was not their key role.

Mr. Dismore: When we went to France and Spain, I had an open mind but was probably slightly in favour of importing the investigating magistrate system. However, having had discussions with Judge Brugière in Paris, my views started to change quite rapidly. It was clear that the system there is absolutely integrated with the law enforcement process. Judge Brugière was proud not only of his close links with the French anti-terrorism police but of his links with the French intelligence services, so it is correct to say that such persons are not part of the judiciary as we would see it. A much more parallel role would be that of the DPP and the CPS, which is why we came to the recommendations that we did.

Mr. Grieve: I understood that from reading the report. The French system may provide greater flexibility, but it also shows that if an examining magistrate gets a bee in his bonnet, that can lead to terrible miscarriages of justice or, at the very least, to people being detained sometimes for very long periods that turn out to be unjustified. We need to bear that in mind. Countries have different systems. The French and ourselves strive for justice, but we should not abandon lightly some of the principles that we enjoy in this country.

I am conscious that I have spoken for longer than I intended and I shall bring my remarks to a close, covering only, I suspect, some of the issues raised in the two very valuable reports that we are considering. I hope that the Government use the opportunity provided by this debate and other opportunities that may arise for dialogue with other political parties and
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those outside the House, to understand that there is a real willingness to tackle the issue together. The problem that we are discussing is a common one. We are all equally likely to be blown up or killed. The threat is fairly ubiquitous. None of us wishes to jeopardise the security of the public. It is a long-term problem, but we have to get our country through it successfully as a free and peaceful place, and the maintenance of freedom requires quite a lot of vigilance. Shortcuts, in my experience, do not work. It is with that in mind that I hope we can approach any review that we carry out of our anti-terrorism legislation.

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