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7 Dec 2006 : Column 184WH—continued

4.29 pm

The Minister for Policing, Security and Community Safety (Mr. Tony McNulty): The Government welcome both reports. They are studied and well informed and offer a lot of food for thought, so I congratulate my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and my hon. Friend and next-door neighbour, constituency-wise—he does not live next to me—the Member for Hendon (Mr. Dismore). The debate is timely. I have copious notes on the questions, but I do not have every specific answer, not least because of where we are, which I want to come on to. I am referring to the Government’s response not just to the two reports, but more broadly in respect of counter-terrorism.

I think that a number of things should be recognised. Before dealing with them, let me say in passing that one of the last occasions on which I faced the hon. Member for Newark (Patrick Mercer) in a parliamentary forum was on 7 July 2005. I think there is an apocryphal story about it, but it is also in my memory. I do not think that we were discussing terrorism and ID cards in connection with what was then the Identity Cards Bill, but we were discussing ID cards. I commend the hon. Gentleman on his sources, because very soon after I received a bit of paper, he did too. Without wishing to be unkind, mine had more on it, but it had information that there had been a series of bombs on the underground network.

As the hon. Member for Beaconsfield (Mr. Grieve) said, if anything the threat has grown since then, so Dame Eliza Manningham-Buller did not make a slip of the tongue in the number that she quoted in her recent speech. The intelligence services have previously published lower numbers, but we face a threat that, although it may not be growing exponentially in the strict mathematical sense, is certainly growing apace. Our response must grow likewise.

I accept all the points made by the hon. Member for Beaconsfield about—if I may paraphrase—semiotics, symbolism, voice and language, and the sensitivities that surround all these issues. However, although I do not impugn anyone in the Chamber, if we are tohave a mature and reflective parliamentary debate those points go strongly both ways. Impugning and undermining the Government’s motivation for particular proposals is as unhelpful to robust debate as Government outriders impugning the motivation of others. I do not do that in this Chamber, nor shall I do it as and when, which is likely, a terrorism Bill is introduced in this Session.

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I do not want to go into the events of August other than to acknowledge both their measure and magnitude, and that they happened. However, it is important to note that there has not been, thus far, an emergency Government response or another 36-hour pirouette at the Dispatch Box by the hon. Memberfor Beaconsfield. The Government have not rushedto judgment, or to amend and fill—suitably or otherwise—gaps in the terrorism legislation. That is right and proper. Hon. Members are aware that the Prime Minister charged the Home Secretary with examining in the round everything that we do in the counter-terrorism effort. That effort includes legislation, as well as action in the propaganda battle and in the war of values and ideas that has been mentioned by hon. Members, which is the nature of what we are dealing with as much as a war on terror.

It is important also to say that at the appropriate moment we hope to publish some of the parts of the review that can be published, including a review of where we are with legislation. I am not offering any timetable, or any definitive answers to the question of what such a Bill would contain. There is, however, active discussion now rather than absolute silence on whether there should be a Bill and on whether there are significant legislative gaps on which we should proceed in focusing on counter-terrorism activities.

My right hon. Friend the Member for Southampton, Itchen already knows that one should not over-interpret what one reads in the newspapers, or listen unduly to the noises off merely because there is silence from the main stage. The noises off are not terribly helpful. We are about the business of trying to get where we need to be on a consensual basis. Given the sensitivities, I accept that in this area above all others things are far better done—and the country is far better served—if we move forward consensually.

For rhetorical purposes or otherwise, there have been suggestions that have over-egged the pudding as to the certitudes of some alternatives. There are, and there will remain, huge problems—the Attorney-General recognises that as much as anyone—surrounding the legal framework that should be put in place to secure intercept evidence as a further valuable weapon. The issue should be turned around and people should ask: if matters were as simple as is sometimes suggested, what would be the perverse interest of this or any Government in resisting the urge to grasp such a simplistic, obvious panacea? Serious issues are being considered—not least with the legal framework. Public interest immunity was one model, but there may be others. I hope that we shall give an informed view on that in the not too distant future, based on the current review and the views of the Attorney-General and his work.

The matter is not, contrary to what some suggest, one of simply flicking a switch so that everything is fine and another element in the exercise is completed. The hon. Member for Beaconsfield shakes his head. I do not want to be partisan, but the right hon. Member for Haltemprice and Howden (David Davis) ended his Evening Standard article barely weeks ago by saying, in effect, that introducing intercept evidence and post-charge questioning would mean “job done”. He put it
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in those stark, simplistic terms, which let down both him and the debate. Intercept evidence is actively being considered. Notwithstanding the point that was made by the hon. Member for Taunton (Mr. Browne)—he has now left—about Privy Councillors, there has, as far as I am aware, been engagement at Privy Council level with the security services and others about the nature of those issues and concerns. If there are ways to adopt it, the likelihood is that they will be examined. If there are reasons not to do so, so that we need to shut down that option, the Government will say so equally. The review is needed and it will come to fruition in the near future.

Patrick Mercer: Intercept has been under active evidence consideration for ever. The Minister and I have been having these discussions for a very long time and I return to the point that those at the sharp end are saying that they need it, and quickly. I absolutely accept that it is not a panacea and that were it to be introduced that would not mean that the job was done, but can the Minister give us any idea of when the review might be complete?

Mr. McNulty: As I said, as soon as possible, I hope. I do not have the whole timetable to hand, nor in my head, because we are coming to the end of the review and it will duly report to the Prime Minister. Were there to be a terrorism Bill in this Session, it would need to be sooner rather than later. One would have thought that the Government would take that legislative opportunity to declare whether intercept evidence should be available, and if so, whether changes to primary legislation were necessary.

I accept the points made about some of the other elements in both reports. Some of them are nothing to do with legislation. I was interested, for instance, in the dialogue about examining magistrates, and on that I think that I am on the same side as my hon. Friend the Member for Hendon. Being in the middle of things, I do not understand the notion that the Government are rushing headlong, siren-led or otherwise, to a French administrative model. The hon. Member for Beaconsfield was, I think, entirely accurate in saying that the French see justice rooted in their own system, and my hon. Friend the Member for Hendon said the same. Given the extent of the difference in the substantive and historical legal base, the worst of all worlds is probably to graft a bit from one on to the other.

The point made in my hon. Friend’s report about the growing and more proactive role of the Crown Prosecution Service in the prosecution of such cases was well made. Behind that, some of the other issues that we need to examine, even if the activity level stays as it is, touch on the capacity of the courts, the CPS and others on the criminal justice side.

I take umbrage at the notion that the Government, the Association of Chief Police Officers or anyone else, in a terribly lazy fashion, wanted 90 days because of resources and the notion that if we were really serious, we would give all the available resources to the service and it could do in 14 days what we have requested to be done on the cheap in 90 days. That is not the case.

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By 2008, as Dame Eliza has suggested, the service’s budget will have doubled. Hon. Members drew out elements about encryption, the international dimension and the seamless nature of the threat between the domestic and the international. Translation and other elements hinted at by Peter Clarke in August are involved. In some cases, the magnitude of things, the level of expertise and the capacity of that level of expertise that are involved are such that this is nothing to do with resources in the main. There are only so many Urdu or Farsi speaking cryptologists who can sit down to try to crack the code on a mobile phone, a computer or whatever else. Doubling the resources overnight will not create another pot of such expertise. The point made about resources is not well made, and I do not accept it.

We are still examining all the issues raised about28 days—I shall be as frank as that. I do not know where the Government will alight in terms of the review, but I do know that we have a right and duty to examine such an issue. We should do so in the broader context. We should consider it in the context of whether or not to allow intercept evidence and whether to enhance the capabilities and capacities of the prosecution and all sorts of other agencies who are party to this.

We should seriously review the point about post-charge questioning. I was struck by the honesty of the report by my hon. Friend the Member for Hendon, which implied, at the very least, even if it was not explicit, an adverse inference from the exercising of the right to silence. I was also grateful for the comments made by the hon. Member for Beaconsfield. It must be the case; otherwise we would have post-charge questioning with nothing about the inference from silence and, as my right hon. Friend the Member for Southampton, Itchen suggested, terror suspects would say nothing and one would not be further forward in the process. We need to bite that proverbial bullet too.

In the balance of civil liberties versus our security, some will say that any negative inference on the exercising of the right to silence is a step that they do not want to take. That is a perfectly logical view, but I was grateful that the report said there could be post-charge questioning in that context and looking in that regard.

Mr. Grieve: I would assume that the inference post-charge is exactly that which currently exists pre-charge. I was not suggesting that a different or further inference could be drawn. I want to make that clear, although the Minister probably understood what I was saying.

Mr. McNulty: I did, and I am grateful for the hon. Gentleman’s comments.

I cannot be sure, but the review might re-examinethe legal framework, more recent judgments, Lord Carlile’s comments about control orders, and issues surrounding threshold, which, to be frank, I do not want to delve into for fear of being giggled at by the lawyers. In substance, the Government’s responses to both reports said that they thought the threshold argument had substance in some terrorist cases, but not in all. The contradiction to which some have alluded, about their saying that in one but not in the other, does not exist.

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Mr. Dismore: I may want to come back to the Minister on the threshold charge when he has finished his remarks on it. I wanted to emphasise the point about post-charge interviews. We made it clear that human rights law presents no obstacle to the relaxation of the current restriction, not just on post-charge questioning but on drawing adverse inferences. We recommended positively that the Home Office should amend the Police and Criminal Evidence Act 1984 to achieve both those objectives.

Mr. McNulty: I accept that, as it is precisely the point on which I was congratulating my hon. Friend’s Committee. As an aside, in substance we have before us a review of the whole of PACE. As part of the process, it might well be appropriate to take the counter-terrorism-related aspects of PACE to one side and deal with them in quicker fashion than the longer-term review that is overdue or due now.

I am sorry that that does not take us much further in terms of current thinking on legislation. I assure both Committees and this Chamber that we are looking in substance at all the suggestions that have been made. This labours the point, and I apologise for doing so, but none offer an alternative to our current position. They may well enhance some aspects of it, and we might reach the stage where a package means that we do not have to open up the 28 days—I simply do not know.

It might be that the emphasis should be on 28 days and no more. I do not know whether we could collectively come up with a set of extraordinary circumstances where we might go beyond that, what the level of evidence that would be required for such a scenario would be or what the judicial oversight and all the other areas that would be involved would be. Within this whole panoply there is a duty on us all to revisit constantly the balance between liberty and public security. I want to come back to points made about pre-legislative scrutiny and the consolidated Bill.

Mr. Winnick: If, when the Attorney-General made his remarks that he has not seen any evidence—

Mr. McNulty indicated dissent.

Mr. Winnick: I do not know why the Minister is shaking his head in dismissal. The Attorney did make remarks, and they were publicised, so I do not understand why the Minister is making a dismissive sign towards me or towards somebody else. This is a serious debate. I have been listening with interest to what he has to say, and I treat his remarks with respect. My question is a simple one: when the Attorney made his remarks, was he reflecting Government policy?

Mr. McNulty: I was shaking my head because, with no disrespect to my hon. Friend, it is not for me to tell this Chamber what the Attorney-General had in his head when he made his remarks. He was rightly and properly making a contribution to the debate.

Mr. Winnick: Was it Government policy?

Mr. McNulty: As I have tried to make clear throughout our debate, Government policy is being
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determined as we speak during the course of the review of our counter-terrorist response, including legislation, which is taking place across the whole of government. With respect to my hon. Friend, it was right and proper for me to shake my head because I cannot tell him what was in the Attorney-General’s mind when he said what he did. In that context, my hon. Friend’s question was not really appropriate. That is why I was shaking my head, and I hope that he will forgive me.

There must be scope and space for mature and reflective debate across government and across Parliament, so that we end up with the package and the legislation that we all require and accept is necessary to take our challenge to this threat far more seriously. By the by, in response to a comment that I think was made by the hon. Member for Beaconsfield, I am not aware of any terrorism provision in the legislation from 2000, 2001, 2005, or 2006 that has not yet been brought into force.

I shall address another entirely unnecessary point. I was the person in charge of this at the time, and once we got the 28-day provision through one of the most serious points that the Government took into account from all quarters of the House was that there should be very plainly a code of conduct as to how the provision was operated. When we take the time not only to draft that code of conduct but to consult on it before empowering it, we are told, “It couldn’t be that urgent because you took so long between Royal Assent and starting the process.” That is not entirely fair. Throughout that process, as part of a little transition thing, I was intimately involved.

Mr. Grieve: I do not want to fall out with the Minister in the course of a pleasant and useful debate. We examined the time scale of the formal consultation when the Government first said that they wanted to have 28-day detention and we concluded that it could have been done more quickly. As he will be aware, this had a relevance, because it cropped up in the context of a particular investigation, when the 28 days provision had not yet come into operation.

Mr. McNulty: Again, I shall not go down there. We could revisit that, but we are not going to listen and do things in the interests of consensus and be lambasted for it.

I want to make two further points about legislation. Clearly, where the review ends up and where the demand for legislation ends up will, in part atleast, determine the nature of any subsequent consolidation—that is not to weasel out of a promise. For example, if there were a Bill in March or April and all the elements that I have described, including some of the most contentious previous legislation, were aired and discussed significantly during the normal parliamentary process, it would not make sense to reopen the matter by way of consolidation half a Session later.

Lord Carlile said clearly—I believe that everyone agrees—that everything should be consolidated. Hon. Members here today have suggested in various ways that we should revisit some of the issues that have already been discussed in previous Acts, and that may
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happen in a subsequent Bill. The Government will have to take a view on whether the substance of another terrorism Act is sufficient in revisiting the matter and giving Parliament an opportunity to examine other elements, if the Bill is as extensive as that—I simply do not know at the moment—and whether there should be a subsequent technical consolidation or a balance between the two. I can honestly tell the House that that door is being left open and is almost predicated on the nature, substance and depth of any Bill, if there is a Bill. I am very clear that public scrutiny, if possible, at the start of a terrorism Bill would not be sufficient for the purposes of my right hon. Friend the Member for Southampton, Itchen and my hon. Friend the Member for Hendon in wanting scrutiny on any proposals.

If we decide that there should be legislation, we would want to get that under way sooner rather than later, but I take the point that some pre-legislative scrutiny, albeit post-introduction scrutiny, might be in order. We have discussed letting the broader public know what may or may not be in a Bill, and I accept the point made by the hon. Member for Beaconsfield about semiotics, symbolism, how we do what we do, and his pertinent point about going to Parliament to ask it to do things in this area in such a way. I shall take those points to heart and reflect on them.

Mr. Denham: I am grateful to the Minister and want to put it on the record that I understand frommy experience the pressures on Government: that sometimes the timing of the legislative programme is influenced by all sorts of other matters and that legislation must be slotted in. In those circumstances and given the priority of the matter, my Committee and, I suspect, the Joint Human Rights Committee would be inclined to adjust our timetables and schedules to allow pre-legislative scrutiny, albeit more truncated, if necessary, than we would ideally like.

Mr. McNulty: I am sure that that is entirely right and proper of the Committee. Were that to be the case, we would try to facilitate it and provide as much assistance as possible. This is all predicated on the Government coming back with our review of where we are, and what we want to do and not do about gaps in legislation. I want the process to be as open, consensual and informed as possible.

Mr. Dismore: I am not sure whether the Minister is saying that he will come straight back with a Bill, or that there will be a policy statement before that in the form of a White Paper or a statement in the House, which in itself could form part of an early stage of scrutiny.

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