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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1020-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
The Government's Counter-Terrorism Proposals
Monday 22 October 2007 JACQUI SMITH MP, and MR DAVID FORD Evidence heard in Public Questions 172 - 243
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Monday 22 October 2007 Members present Keith Vaz, in the Chair Mr Richard Benyon Ms Karen Buck Mr James Clappison Mrs Ann Cryer Mrs Janet Dean Patrick Mercer Margaret Moran Gwyn Prosser Martin Salter Mr Gary Streeter Mr David Winnick ________________ Witnesses: Jacqui Smith MP, Secretary of State for the Home Department, and Mr David Ford, Head, Counter-Terrorism Bill Team, Home Office, gave evidence. Q172 Chairman: Can I bring the Committee to order and welcome the Home Secretary to this session of the Committee's report into the Government's counter-terrorism proposals. We also welcome David Ford from the Team. Home Secretary, good afternoon. The Government announced in July of this year a new package of counter-terrorism proposals. Do these proposals mark a deliberate shift of tone in the way in which the Government wishes to approach this very important subject? Jacqui Smith: I think the shift of tone really was, to be fair, set down by my predecessor when earlier, in announcing that we were going to bring forward a Counter-Terrorism Bill, he was very clear that this was one which had been the subject of cross-government consideration of counter-terrorism legislation, would be subject to a period of consultation, would wherever possible be based on cross-party consensus and considerable consultation and work with local communities. That has been the basis on which we have taken forward the consultation of the proposals for the Counter-Terrorism Bill up until now and I think there has been widespread welcome of the consultative approach that we have taken up until this point. Q173 Chairman: Tony McNulty, your Junior Minister, at a recent meeting said that the rules of the game had not changed as a result of the terrorist atrocities, which was quite different to what the previous Prime Minister has been saying, which was that the rules of the game had changed as far as terrorism and the response of the Government is concerned. Which currently represents the Government's view? Jacqui Smith: I am very clear that the nature of the threat that we now face is serious and sustained. I think it has brought a focus on to the need to ensure that we have the right legislation, and in fact other ways of countering terrorism, in place. What Tony was referring to was some people who have argued that that therefore implies a fundamental re-writing of the basis of the way in which we view, for example, the rights and the legal structures in this country. I do not believe that is necessary but I do believe that we face a very serious and sustained threat from terrorism and we need therefore to be clear about and to build as far as possible support for provisions that are necessary in order to counter that threat. Q174 Chairman: How many responses have you received to the consultations that you have started? Jacqui Smith: The consultation runs until a week on Wednesday. We have already received 50 responses to that. As well as a series of meetings that officials and others have held with organisations, we have also held five consultation meetings across the country, to which I think 200 people have been invited and about 120 have attended. Last week Tony McNulty as well, along with, I think, Lib Dem and Tory spokespeople, addressed a meeting that was brought together by Muslim News to talk specifically with members of the Muslim community about the proposals in the legislation. So it has been a pretty wide-ranging consultation. As you know, Chairman, the nature of consultations is that the last week is quite often the time when people respond to them and there is still a week and a half to go so I hope we will be getting more responses. Q175 Chairman: You cannot tell us anything about the thrust of those responses, whether people or organisations are saying "We don't think 28 days is enough. We really think now is the time to put up the limit"? Jacqui Smith: I think the broad response to consultation has been a welcome for the process, a welcome for the vast majority of proposals that we are putting forward, some questions about some of the details, but it would be only fair I think to say, Chairman, still some scepticism about the proposals to extend the pre-charge questioning and detention period beyond 28 days. Q176 Chairman: The Prime Minister at the end of his statement on 25th July said this, referring to a number of organisations, including this Committee, that they all recognize that there may be a case for going beyond 28 days in certain instances. When you started this process, was it the view of yourself and the Prime Minister that there should be an extension of some kind; you did not know the actual number of days but now is the time to put up the period beyond 28 days and leave it up to the great national debate to find out how many those days should be, or did you have a firm figure in your mind as to exactly how many days it should be increased to? Jacqui Smith: My view is that sometimes in the past this debate has been dogged by an emphasis on the end point in terms of the maximum number of days as opposed to the arguments for and the process for extending that period beyond 14 days the last time we debated this and 28 days now. In answer to the first part of your question, I am convinced, as the Prime Minister expressed in that statement, and as others, Sir Ian Blair in front of your Committee, for example, are convinced, that we face a trend and a situation, both in terms of the seriousness of the threat and the way in which that threat is developing, that may well make it necessary, if we are to be confident of bringing to justice those who might be guilty of planning or carrying out serious attacks, murder and maiming of British people, that it may well be necessary to go beyond 28 days. Part of the reason for putting that argument as we did in our consultation document, but also setting down the various different actions, is not because somehow or another we are abrogating our responsibility as government, because of course, it will be our responsibility to come forward at the end of this process with proposals, but recognizing, one, the sensitivity around the issue, and, two, the fact that actually, many of the people who have previously not, arguably, been willing to engage in a debate about how we might go beyond 28 days have now actually been willing to engage in discussion, not least Liberty in the proposals that have come forward in terms of the Civil Contingencies Bill route. So given that there was that willingness of people to engage in the debate, I think the approach that we took was right in saying we believe that there is a case but it is important that we build consensus both around that case and about what the most appropriate way of going forward would be. Q177 Chairman: Of course, you are aware that last year, when the Committee examined this proposal with enormous interest and with great dedication, they concluded that none of the evidence that we have received in the current and recent investigations would have justified a maximum detention period longer than 28 days. What specific evidence do you have to put before this Committee and Parliament to persuade us that it should be a longer period? Jacqui Smith: The first point is that I accept that there has not been a circumstance in which it has been necessary up to this point to go beyond 28 days, and I think everybody has been very open about that. We have made a case based on what I believe to be the increasing complexity, the increasing international links, the increasing challenge of the investigation of the plots that are in place. Just to give an example of the increasing complexity of the cases, in the Dhiren Barot case in 2004, for example, there were 274 computers seized, compared with 400 computers in the alleged airline plot last year. In addition, there were approximately 2,000 computer disks, CDs and DVDs in the Dhiren Barot case compared with approximately 8,000 computer disks, CDs and DVDs in the alleged airline plot last year. This year, at the time of the arrests of three men who were convicted in June this year for internet-based incitement to murder, the computers, the hard drives and the other media seized together amounted to 3 TB of data. For those members of the Committee like myself who are not IT specialists, that represents in perspective almost a third of the entire content of the US Library of Congress. That goes alongside, of course, the range now of material that is being seized, a greater use of encrypted computers, multiple mobile phones, as terrorists in many cases are deliberately using the opportunities of multiple media in order to be able to cover their tracks. In relation to international links, in 2004 Peter Clarke, who I know has appeared in front of the Committee, commented that at that time it was the largest counter-terrorism operation ever seen in the UK, which needed close co-operation between the UK, the USA, Canada and Pakistan. If we look at the most recent operation in Glasgow and London, that involved firstly, a mix of nationalities. It involved an arrest in Australia. It demonstrates, I think, that as you get increasing international links, the pace of the investigation quite often can be dictated not just by the resource and the ability that there is to investigate within the UK but also can be limited or coupled with difficulties experienced in reconciling different legal or evidential practices in different countries as well as simply the process of making contact and getting information from one organisation to another. Q178 Chairman: That is extremely helpful to us. There is no specific example that you can bring us today where you have required more than 28 days? Jacqui Smith: No, there is not, and I think this comes to the heart of the argument which we obviously need to make in terms of taking this forward. I believe that, had there been a case where the decision that Parliament had previously made to limit the time to 28 days had resulted in somebody having to be, for example, freed without charge who potentially might then have gone on and committed another terrorist offence, I would be in front of the Committee today, Chairman, answering questions, quite rightly, about why all of us in the Government had not proposed and had not succeeded in putting in place the necessary ability to bring that person to justice. Given the trend of evidence that we are seeing and the range of people who are making the same argument that I am making, which is that we believe it is very likely in a very small number of cases that there will come a time when more than 28 days will be needed to question somebody, then it is reasonable and proportionate for us to be asking Parliament to discuss that now in order to come forward with a way through. Q179 Martin Salter: Home Secretary, your number crunchers must have been looking at this trend, so tell us when, on the basis of the best evidence you have at your disposal, you think we will hit that point where investigating officers from the Counter-Terrorism branch and the Security Services as a whole will need more than 28 days. You must be able to plot this on a graph. Jacqui Smith: I do not think it is quite as straightforward as being able to plot it on a graph but you can certainly plot the figures that I have just given to the Committee in terms of the increasing complexity of the evidence that needs to be gathered, in terms of the increasing complexity of the international links, but this is a matter of judgement. It is a matter of judgement that needs to be based on the evidence of the trend that we have seen; it needs to be based I think as well on the fact that since 2000 we have seen 16 plots primarily targeting the UK, of which there was a successful attack on 7 July - three failed and 12 foiled - on the basis that this year alone, of course, we had a total of 32 individuals convicted of terrorist offences in ten cases. There is not a single linear graph that we can demonstrate but I think when you bring together the sustained and increasing level of threat, the nature of the sorts of investigations that are under way, it is likely... I think Sir Ian Blair suggested, if I remember rightly, two or three cases in the next five years. I would not like to say that there is objective evidence for that but I think there is very strong evidence of a trend that is heading in that direction. Q180 Martin Salter: Some of the critics of the proposals to go beyond 28 days are saying that we should not be making legislation on a purely precautionary principle. Is there not a strong case to say that we make the absolute worst legislation when we do it in the panic that follows a disaster, with the media in full cry? You can cite many examples of that. What is the case for making legislation on a precautionary basis, with the cold hard facts in front of us? Jacqui Smith: I think you are absolutely right about the way in which sometimes legislation is not best made in the immediate aftermath of a crisis. That of course, to go back to the Chairman's opening questions, is part of the reason for changing the approach that we are taking with this Counter-Terrorism Bill so that this is something that will have been subject to a period of scrutiny and consultation before it is brought forward and, of course, this enables us, unlike, incidentally, the Government's preferred approach for extending the potential period of pre-charge detention beyond 28 days, would enable us, if it were brought forward in legislation, to have some very detailed and important, because of the nature of what is being proposed, discussions now in Parliament, not in the heat of the moment, not responding to an atrocity, not responding to the scenario I outlined earlier where somebody who had not been charged was released and went on to commit another crime, where, quite rightly, there would be accusations flying around and questions being asked and concern about that situation. It strikes me that the situation in which we find ourselves now and the way I hope that we as a government have set it up is the appropriate way to consider, on a precautionary basis, but nevertheless on a basis informed by evidence, the ability to be able to make that decision now and plan for the future on that basis. Q181 Mr Winnick: You said today, Home Secretary, that you cannot point to a case where more than 28 days is necessary. Do you accept that when you were in the Government, although you certainly were not Home Secretary, that it was an error on the part of the Government to try two years ago in November 2005 to get 90 days' detention agreed to by Parliament? Jacqui Smith: Not only was I not Home Secretary but that was before I was Chief Whip as well, which I have quite often thanked my lucky stars for! Q182 Mr Winnick: No doubt. Yes or no? Jacqui Smith: No, I do not think it was a mistake because I think it raised some important arguments. Clearly, Parliament's view was different to that being proposed by the Government at that particular point. Q183 Mr Winnick: Is it not interesting, Home Secretary, that no-one in the Government, as far as I understand it, the Prime Minister or any one of his colleagues, including yourself, is actually suggesting it should be 90 days? Would you not therefore agree that Parliament was right to take the decision which it did in 2005? Jacqui Smith: I think the best legislation probably comes from the creative tension and inter-relationship between what the Government proposes and what Parliament scrutinises and changes, and I suspect that has been the process we have gone through here. Mr Winnick: That is a good politician's answer! Q184 Mrs Cryer: Home Secretary, We have now had a full year of the 28-day detention powers. What lessons do you personally draw from that period of a full year and how things have worked out during that period? Jacqui Smith: The first thing, of course, that we have learned about that time period is of course that that extension from 14 to 28 days has been necessary and has been used. It has been used, of course, in 11 cases where people have been held longer than 14 days, where in eight of those cases those people have been charged as a result of that period of being held for questioning and investigation. We have also undertaken discussions with both the police and the judiciary about the way in which that process has operated, and there may well be some specific issues that come out of that that we will want to look at in terms of how that operates but they do tend to be quite specific, I think. What we have also learned from looking at the way in which the process for applying for extensions beyond 28 days has happened is that there is, quite rightly, rigorous scrutiny by the judicial authorities of the application brought forward, post 14 days of course, by the CPS for the extension of that period; that sometimes there has been, quite rightly, robust questioning of the senior investigating officer as to the way in which the investigation is proceeding so that we can be confident that that is happening quickly and everything necessary is being done. That, of course, is a condition of the agreement of an extension of that particular time period. So I think we have learned it is necessary, I think we have learned that the safeguards are working in a reasonably robust way, and there may well be some tweaks and some specific elements of the way in which it has operated that we might want to look at and reflect on. Q185 Mr Streeter: I do not wish to be too negative or cynical but how do you know that police activity simply has not expanded to fit the time available? If you give them 28 days, of course they will take it. Have you really asked them to submit crunchy evidence to you that that has not happened and can you give the Committee that confidence? Jacqui Smith: How do I know? One, because I have asked them and two, because, of course, it is a condition of the extension of a detention period that, as I described, the senior investigating officer can convince the judge that the case is being proceeded with diligently and as quickly as possible; that it is the law that when the CPS.,and in the case, for example, of probably the most significant use of this last summer in the alleged airline plots, the CPS made available to that investigation senior prosecutors who on a daily basis were able to look at the evidence and to determine whether or not the point had been reached at which a charge could be made. I have asked, because I know specific points are being raised about the point at which people were being interviewed, the way in which resources were being used to investigate the evidence and I am reassured by what the Metropolitan Police have told me about the way in which those inquiries were carried out about that. However, I will not expect you just to take that from me and I will be writing to this Committee and to the JCHR and to the Opposition spokespeople with some more background about some of the questions that I know have been raised about how quickly and appropriately those investigations have been carried out. Q186 Mrs Cryer: Staying with police operations and pre-charge detention, we are given to understand that there is not another Western country that has anything approaching the 28 days that we already have for detaining people before charge. We also understand that even in the United States, with very similar problems to our own, perhaps greater, they have to charge within 48 hours. Could you just comment on that and how we sit with the rest of the world? Jacqui Smith: I think there is a PhD thesis or two in the issue of different approaches to pre-charge detention and international experiences thereof. We, for example, have tried to make some of the information available about some of the international comparisons. The paper that we published about the French system I think demonstrated the very different approaches that they take in France in terms of the whole way in which they have a more investigatory approach through their judiciary. Others I know have referred to the Australian experience, where of course, although there is a 14-day period, there is also the ability to stop the clock and stand down, so at least there is the possibility of extending well beyond that time period. In other jurisdictions as well there may well be more of a use of elements like plea bargaining, which still we have not, I do not think, managed or, because of the nature of our system and the sorts of cases that we are looking at, has not been used in this country as much as it has, for example, in the US. I think there may well be situations in which in some other countries decisions are made to charge people on lesser offences in order then to be able to continue the investigation. This comes partly as well to issues around post-charge questioning. I think there are questions about whether or not we want to be in a position where we are charging people with what would effectively be holding offences. We have always taken the approach in this country, I think, of investigating and charging at the right time with the most appropriate offence. Q187 Patrick Mercer: Home Secretary, a few brief questions on police powers, if I may. Do you think there should be an external review of the way the police exercise their powers of pre-charge detention? Jacqui Smith: Of course, there are already quite a few independent and external ways in which that is considered. We have the Independent Reviewer of Terrorism, for example, who looks overall at the way in which those powers are used and which we are proposing, were we to go forward with the Government's preferred option, should look at individual cases as well where there was an extension of the detention period. There is, of course, the scrutiny that comes where somebody is held for longer than 14 days and is transferred, for example, to Belmarsh, that comes through the Inspector of Prisons in those particular cases. There are the individual, independent visitors who can visit people in custody when they are being detained. So I think there is already a range of ways in which there can be independent scrutiny of the way that process is working. Q188 Patrick Mercer: The Joint Committee on Human Rights suggested that the Metropolitan Police Authority might carry out such a review. What do you think? Jacqui Smith: I think it would be partly up to the Metropolitan Police Authority but I am not convinced, given my previous answer, that there is a big gap here that necessarily needs to be filled. Q189 Patrick Mercer: Thank you. We have touched on this already but do you think the role played by the Independent Reviewer, Lord Carlile, needs to be changed or adapted in any way? Jacqui Smith: As you say, I think it is reasonable. One of the things that we are proposing with the consideration of the individual cases and the ability to be able to report more frequently on the use of an extended period of pre-charge detention is one of the ways that I think we recognize the responsibility to ensure independent and external scrutiny of any decision to extend the pre-charge detention period. Q190 Patrick Mercer: Lastly, whether the 28-day limit is extended or not, do you think the Metropolitan Police should submit an annual report to Parliament on the operation of terrorist detention powers, with full statistics, analysis, etc, for anyone that has been detained for more than 14 days? Jacqui Smith: I noted that the Commissioner felt that if Parliament thought that was a good idea, he would look into it. If the Commissioner felt it was possible to do that, without, of course, either prejudicing ongoing investigations or those cases which would by definition take some time to come to court and are sub judice in the interim, if it were possible to do that, I would welcome the largest amount of information being made available to Parliament as possible. Q191 Chairman: Before we turn to the impact on the communities of these proposals, can I just summarise your position so far? There is a serious threat. Twenty eight days is not enough. You have not made a decision as to how much more than 28 days you want. You want a national debate in order to achieve a consensus. Right so far? Jacqui Smith: Correct. Q192 Chairman: The Commissioner wants between 50 and 90 days. Is it really possible for a Home Secretary to go for a level that is below what the Metropolitan Police Commissioner has asked for? Jacqui Smith: Arguably, of course, that is what happened last time round. I think this is going back to what I said previously, one of those areas where the views of the police and other agencies are absolutely fundamental and need to be taken into consideration but, by the nature of the debate that we have had previously and that we are having now, I understand both the exceptional nature of this, the way for some people that it is pretty fundamental in terms of the way in which we view the individual's rights and therefore I think it is right that this is a discussion and a debate which calls on the widest range of views and tries to find a way through this which will maintain and build confidence in the ability of the state in the broadest sense to be able to counter terrorism. Q193 Ms Buck: Can I ask a few questions about the impact on Muslim communities? We are all agreed, and the Prime Minister said, that it was important to win hearts and minds, but then it becomes a little less clear about how one measures whether one is doing that and what we can do to ensure that we do win that particular argument. We heard very differing interpretations from Lord Carlile and Liberty on the perceived impact of extended detention powers on the communities. I wondered if you could tell us, firstly, how you know what those impacts are, how you are measuring that process and who you are communicating with and how in the debate with representatives of Muslim communities? Jacqui Smith: The first thing is to go back a stage to the point I made or half-made earlier. In my view and from my experience as a constituency MP, the most difficult time for Muslim communities was actually, in recent years, probably immediately post 7/7 in London. In other words, the most difficult thing that could happen for the way in which we live together in this country I think would be a successful terrorist attack and the aftermath of that. Therefore, I think one of the ways that perhaps we ought to argue as well the case for extending beyond 28 days is that if, as I believe it does, that makes it more likely that we are able to foil plots and to bring people to justice, that in itself mitigates against the danger that a successful terrorist atrocity would have on community relations, but it is because, as well, we know that we have a case to make that we have engaged in this sort of consultation process that we have been through, that we have specifically invited community organisations to come to those and engage with us and discuss the particular elements of what is being proposed in the counter-terrorism legislation here but more widely across government of course, it is the reason why we have invested considerable money, largely through the Department for Communities and Local Government, in the work around building cohesive communities, preventing extremism, working with the vast majority of those in the Muslim community who have the same abhorrence of the sort of murder and maiming that comes from terrorism as anybody else across the country would have, to actually, in the way in which you have quoted the Prime Minister, build that argument about hearts and minds and actually, to go back a stage, to try to get to a position where communities and individuals do not feel it necessary to turn to terrorism in order to further their political or ideological views. Q194 Ms Buck: I have a lot of sympathy with what you say but that did not quite answer the question. How actually are we tracking what impact that does have? We heard from Lord Carlile and Liberty two very different interpretations. Like yourself, as a constituency MP with a large Muslim and diverse population, I can say that many older people and people representative of communities would take that argument completely. Many of the younger Muslims, particularly those who are targeted by the radical organisations, would not. Jacqui Smith: No, I accept that. In answer to the question are we specifically tracking the impact of this particular proposal, no, but we do have, through the cross-government work led by the Department for Communities and Local Government, an ongoing survey of community attitudes which would include some of the elements of whether or not people were feeling disenchanted about the way in which the Government was dealing with this particular issue. That is one way. Q195 Ms Buck: Is that something you could arrange to share with the Committee? Jacqui Smith: I will ask Hazel Blears if she can share it with me and I can share it with the Committee. Q196 Ms Buck: As with stop and search, to some extent, of course, there is a degree of trade-off between the participation of the community in providing information and co-operating and outcomes. I wonder whether you feel that there is any risk that detaining significant numbers of people who are then released without charge can in itself have a detrimental impact upon co-operation and, of course, upon the whole hearts and minds and the support of the community. Looking at the figures, I think it is right to say that about half of those people who have been arrested and detained under terrorism legislation since September 11 have been released without charge. As with stop and search, what you are building up is a pool of people who have been detained, possibly for increasing lengths of time, and then released without charge, sometimes with enormously damaging consequences for their own lives. What do you make of that trade-off? Do you think people might be less likely to provide information to the police if they think someone could then end up being detained for a month or more and released without charge? Do you think that that pool of people who have been detained and released without charge are themselves feeding back into the community a negative assessment of our justice system? Jacqui Smith: I think this comes back to the argument that I made previously. I think, of course, it is possible that anybody who is detained for any reason who is then released without charge will have some sort of potential ill will towards the authorities that detained them. Of course, that is obviously going to be the case, which is why I think it is so important that the safeguards around extending any period of detention are very clearly there. It is why I think, for example, we need to explain very clearly the facts of the cases and actually, you referred to the numbers of people who have been arrested under terrorism legislation and then released without charge. Actually, since 11 September 2001 there have been 1,228 arrests. Of those, 36% of those arrested have gone on to be charged. For comparison's sake, in 2004-2005 those arrested for other notifiable offences who went on to be prosecuted was 38%. I know there are some elements who would argue that there is a very disproportionate use of terrorism laws. Those figures, for example, would suggest that that is not the case. So I think there is a requirement on the Government to be able to explain the justification for and in fact the practice of the use of these particular measures but sometimes, I have to say, it is of course part of the argument that those who would want to support terrorism would make to undermine the measures that are actually being taken to try and prevent it. I am not saying that is the vast majority of the community because the vast majority of the community, as you rightly say, want to support law enforcement agencies in preventing those sorts of atrocities but there is part of the argument that is actually about suggesting there is something disproportionate here when in fact some of the figures suggest that there is not. Q197 Mr Winnick: Home Secretary, the previous Attorney General, the most senior law officer, said last year that he himself could see no evidence to support extending the 28 days. If the most senior law officer said that, would you agree that it is very difficult for parliamentarians to come to a different conclusion? Jacqui Smith: No. I think it might be possible for parliamentarians to come to a different conclusion on the basis of the case that I have made actually. I have not, you will note, and neither has anybody else, made the case that there has already been a case that needed to go beyond 28 days but I have, I hope, spelt out some of the evidence that provides an argument that the trend is certainly in the direction, as several others have said, where it is at least likely that it might be necessary to go beyond 28 days, and then I think the responsibility of parliamentarians is, of course, to challenge and to interrogate the evidence and the arguments but is also to consider the responsibility to act in the face of that at a point at which it is possible to do that in a considered and well-scrutinised way, as opposed to having to potentially act in a situation where the system had arguably failed and there were considerable difficulties. Q198 Mr Winnick: Is there not something rather odd? Two years ago the Government said it wanted 90 days. The following year the Attorney General, as I have said, the most senior law officer, said he had seen no evidence to justify going beyond 28 days. I would have thought the very fact that there is such a contradiction in government weakens the case for extending the present limit and, for all the reasons you have already stated, that no case has yet emerged where more than 28 days is necessary. Jacqui Smith: If this were a cast-iron, bang-to-rights case, I suspect we would not be discussing it here in this Select Committee today at such length. We would not have had the debates and the focus that we have put on it in the consultation. This is a difficult decision which depends, yes, on evidence but also on judgement, and in my judgement the time is now right to consider how we go beyond 28 days. Q199 Mr Winnick: The present situation in non-terrorist cases is that a suspect can only be held for a maximum of 96 hours. That is correct, is it not? Jacqui Smith: Yes. Q200 Mr Winnick: So the situation is therefore Parliament has recognized the difficulties about the evidence and the rest of it, so that at the moment someone can be held seven times the period of time that a non-terrorist suspect can be held. Would you confirm that? Jacqui Smith: Yes. Q201 Mr Winnick: Thank you very much. Liberty has said that having a longer period than 28 days would amount in effect to internment. If one does not accept that - and I do not accept that, however much I am opposed to extending it - would you not see, arising indeed from the questions Mrs Buck has asked you, that there would be seen a connection of a kind between what happened in Northern Ireland and a longer period of detention if it went up to 56 or 60 days or beyond? Jacqui Smith: I think there is a risk of that if people are going around calling this proposal internment when, as you rightly say, it absolutely and clearly is not, internment, of course, being a way of preventing a potential act from happening and our proposals being completely about the ability to hold somebody for questioning and investigation with the explicit intent either of releasing them or of charging them and bringing them to justice. There is a fundamental difference between what we are proposing and internment and I am not convinced the debate is helped by calling it something it is not. Q202 Mr Winnick: You believe that within, say, the Muslim community, again arising from what Karen Buck asked you, it would not be seen in the light of internment rather than what you have just said? Jacqui Smith: I hope it would not be, because it is not. Q203 Mr Benyon: Home Secretary, do you go along with the phrase "Justice delayed is justice denied"? It is not a trick question. Jacqui Smith: I probably do, like I think a bird in the hand is worth two in the bush and a stitch in time saves nine. Q204 Mr Benyon: No, it is much more fundamental than that because what you are asking us to do in Parliament is to go to some pretty fundamental principles that have underpinned our justice system since 1215. This is really important and I want to know that you are looking at this in a historical context, as much as just trying to apply modern-day modes of operating by terrorists. Do you accept that this is really fundamental stuff? Jacqui Smith: Yes, I accept that what we are proposing to do does raise fundamental issues about people's liberty and the way in which our system responds to that, and that there is a very careful balance that in all of these areas we need to maintain between the liberty of the individual and their rights and the approach we take to tackling terrorism, and I think you are right that we need to have a historical context for that but actually, it is precisely because of the nature and scale of the threat that we face now, the types and complexity of the plots, that I think it is appropriate to consider those principles in the light of the current circumstances that we face. Q205 Mr Benyon: Just for the record, would you be prepared to reject once and for all the suggestion from the President of ACPO that there should be no upper limit on pre-charge detention? Jacqui Smith: In the sort of spirit of consultation we of course put forward four proposals, including one which effectively would have no upper limit. My view is, and I think we even made it clear in the consultation document, that it is the role of Parliament to set the maximum time period and therefore I cannot see a situation in which I would be coming forward without a maximum time period for detention. Q206 Mr Benyon: If you proceed with the proposal to extend the pre-charge detention limit, what proposals would you be prepared to put in the Bill that would ensure that a High Court Judge would have a say on a regular basis over the circumstances of that case and whether that charge period should be continued? Jacqui Smith: The current proposal that we have made alongside the extension is that any period beyond 28 days would need to be subject to a request made to a High Court Judge, cleared by the Director of Public Prosecutions; that the process should then be, as I described it earlier, challenged in terms of making sure that this was an investigation that was proceeding quickly, that there was some likelihood that extending that period of detention would lead to the gathering of more evidence or something that would make it more likely to be charged. Those are the proposals that we have put forward, so I think the short answer to your question is "yes". Mr Benyon: I hope we hear more of what those are in the future. Q207 Gwyn Prosser: Home Secretary, in the case of the alleged airline plot, we are told that an application for extension of detention was limited by the judges to a lesser time. Are there any other instances where a judge has either refused an extension or limited an extension or put conditions on the extension? I ask the questions in the context of those who oppose any extension at all because judicial oversight is not much more than, in their phrase, a rubber stamping exercise. Jacqui Smith: I think potentially there may have been some cases where extension has been refused. Let me check up on that and write to you about that one. There has been one circumstance in which an extension has been granted but for a shorter period of time. As far as I am aware there have not been any other cases where an extension has been granted but for a shorter period of time. One of the reasons why I described the sort of process which is gone through to wean, if you like, any extension of the period was to emphasise that I hope this is not seen as a rubber stamping exercise. I can be clear that the judiciary do not see it like that and I am clear also from what I understand has been the quite right, quite correct, pressure and scrutiny that the senior investigating officers have been put under that they do not see it as a rubber stamping to extend the period either. Q208 Mr Streeter: Under current law as you have already said, Home Secretary, if the police want more than 14 days it has to go to a judge for him or her to give that approval. Can you describe the kind of hearing that takes place when that application is before a judge? Jacqui Smith: Yes. Between 14 and 28 days, as I have said, all the applications to extend are considered and made by the Crown Prosecution Service. In granting that, the judge will want to test, first, that there are reasonable grounds for further detention in order to obtain or to preserve evidence; secondly, that the investigation is being conducted diligently and expeditiously and, in order to do, that it is quite often the case that the senior investigating officer will be questioned by the defence solicitor. The cases are pretty strenuously contested and go on, I understand, for several hours. Q209 Mr Streeter: Would you describe that as a full adversarial hearing? Jacqui Smith: I think I would. Yes, I would describe it as a full adversarial hearing. Q210 Mr Streeter: When the Joint Committee on Human Rights are calling for a full adversarial hearing before a judge when deciding further pre-charge detention extensions, why are they doing that if it already exists, do you think? You do not know, do you. Jacqui Smith: I think you might need to ask them. Q211 Mr Streeter: Okay. You are confident that the judicial oversight is robust and the defence has a chance to put his or her case? Jacqui Smith: I am confident. Q212 Gwyn Prosser: The Government has also put forward an option for Parliament to discuss and debate individual cases of applications for extension. A lot of us have difficulty in seeing how this would work in the context of sub judice rules, et cetera, and having such debates take place on sensitive matters in an open chamber. Can you enlighten us on that? Jacqui Smith: The suggestion we put forward in our preferred option was, in terms of parliamentary oversight, that there should be a requirement firstly for the Home Secretary to report to Parliament those circumstances where an extension had been granted; secondly that there should be the ability for the independent reviewer of terrorism legislation to consider the individual cases where an extension had been granted and, thirdly, perhaps quarterly, that should be reported to Parliament. Now I agree with you, of course, that it would not be appropriate for Parliament either to try to substitute its judgment for or even to debate in detail the particular circumstances of a case that was sub judice or even a case, for example, where somebody had been released without being charged, I think that would be inappropriate. What I think we are trying to do here, however, is to recognise, as Mr Benyon identified, that this is a significant and important extension and that, therefore, it is right that Parliament should be both informed and facilitated as far as possible within the constraints on discussing individual cases to be able to scrutinise and consider the way in which the process is being carried out. Q213 Margaret Moran: "Impractical, unprincipled and poorly conceived" and "mad" and "draconian" are some of the comments, the latter of course from Tony McNulty your Minister, on the Liberty proposal to have Parliament agree emergency powers under the Civil Contingencies Act. How or why then have you put forward such an option in your options paper? Jacqui Smith: Tony, of course, I can remember coming to see me when I was Chief Whip to make the case for the consultative approach that we are taking to counter-terror legislation. Now, putting forward options does not mean that ministers cannot take a view about whether or not they are or are not likely to be successful. Certainly I think it was right to put forward that proposal as one of the options. I think that some of the criticisms which are wrapped up in Tony's words are also justified. It is quite difficult to envisage a situation where it would be a good idea in the heat of a terrorist operation to have to bring forward an affirmative order, as would be necessary in the case of the civil contingency legislation and to have that subject to full debate. Nor do I think that necessarily the definition of emergency within that Bill would cover all of the eventualities where it might be necessary to consider going beyond 28 days. For those two reasons, for example, I have not been convinced about that particular option as part of the process at the consultation but I think it was important, in the spirit of being open about the various different options and the shortcomings of them, perhaps whether or not there are ways of combining elements of those as we go forward, that we put those forward in our consultation document. Q214 Margaret Moran: Liberty clearly believe that putting forward such a proposal for Parliament to declare a national state of emergency would act as a strong disincentive on yourself, for example, to do precisely that. Is that the main argument against it or are there other arguments? What would you perceive the impact and perception might be on taking such a step on the terrorists themselves? Jacqui Smith: Of course it is not and should not be the decision of the Home Secretary as to whether or not in any specific case a period of detention is extended. The fact that there needed to be a parliamentary debate would not impact on me or on the Government but it might impact on the sort of resource that was able to be directed at the operation as opposed to forming what was going to be happening in a parliamentary debate. I think there is a question about, if you were in the middle of an investigation and it was fast moving how much it is possible for a government minister, or anybody in fact, to be able to contribute to that debate. That is my first concern. As I said, however, as well, I do think the definition of an emergency within the Civil Contingencies Act is that it has to be something which must have occurred, be occurring or be about to occur. We think that there is some legal doubt, for example, over whether or not a situation like the disruption of the alleged airline plot last year would meet that criteria once the suspects had been arrested. There is an issue about whether or not it would do what it was set out to do. I do think the interesting thing, however, of course, about this proposal is - to come back to the justification of whether or not a case has been made to go beyond 28 days - Liberty, very helpfully in my mind, have been able to engage in the debate not only about whether or not we should go beyond 28 days but in the case of this option how we should go beyond 28 days, which suggests to me some recognition that there may be a requirement to go beyond 28 days. Q215 Mrs Dean: Home Secretary, could you tell us your opinion of the fourth option on the list, that is the proposed judge-managed investigations on the continental model? Do you accept the view of Lord Carlile that certain elements of the continental system could be imported, with a senior judge supervising the activities of the police during their investigation? Jacqui Smith: If we were to go down that particular route it would be a pretty fundamental shift in our legal system. It would imply a very big change in the way in which cases are investigated and trials are conducted. I think it would require us to examine and radically change the adversarial nature of our legal system at the moment. It would mean judges acting much more akin, as we see in France, of course, to those who are the investigating officers, a function which at the moment rests very clearly with the police in this country, and moving away from their judicial role. Those are pretty fundamental changes, it seems to me, for what is not clearly an advantage through this route. Whilst I am remaining, of course, completely open until the end of the consultation, I think you can see that I am not convinced that that sort of radical rewriting of our system is appropriate in these circumstances. Q216 Mr Streeter: In the war against terror we want to use every weapon available. Would it be fair to say the Government is overdoing a focus on one weapon, namely banging people up for longer and longer periods before charged? What about intercept evidence? Why are we one of the few jurisdictions in the world not to treat this as admissible in trials? We know you set up this review by the Privy Counsellors, can you say how it is progressing, what your approach is to this subject at the moment and when you will hear on this? Jacqui Smith: I agree with you that we need a range of different tools in order to counteract terrorism and, of course, interception is a highly effective intelligence-gathering tool. It is precisely in order to be able to protect its effectiveness that we need to be very confident, were there to be the suggestion that it would be used as evidence, that its effectiveness as that sort of a tool would not be undermined by using it as evidence. I completely agree with you, we are all on the same page here, if there was an easy way in which we could bring more terrorists to justice we would all want to do it but we do have a responsibility also to make sure, as we have previously said, that the necessary safeguards could be put in place to protect and dictate capabilities and that the potential benefits outweigh the risks. That is why in setting up the Privy Counsellor review we have asked them specifically to consider whether or not, in their view and in the view of those giving evidence to them, the use of intercept would lead to an increasing number of successful prosecutions; what the risks are, because there would undoubtedly be some exposure of the capabilities and the processes which are currently used for interception; what the resource implications are of any changes in the way that we would use intercept; what the implications are of the new communications technology and also the international experience and whether or not there is anything we can learn internationally. Because I suspect it is quite important - well not I suspect, it is quite important - that this is an independent review which is able to look at all the evidence and take the time it needs and to come to a conclusion, I have not been in touch with them about, one way or the other, how they are getting on. I am letting them get on with the job and I think that is important. Q217 Mr Streeter: Could you encourage them to look particularly at the experience in the United States where the Committee was last week. Some of the evidence we heard from very high ranking lawyers was that they have a very brief law over there which did protect sources. They do use intercept evidence without some of the bureaucracy which we have heard about from our own police force and also in a way that protect sources. I think most of us came away thinking, "Well, why do we not have that law over here?" I am sure the Privy Counsellors will look at that. Jacqui Smith: I am sure they have heard what you said and I am sure they will. Q218 Martin Salter: In many ways, Home Secretary, you have answered the same sort of question on intercept evidence. I would just like to reiterate the point about the experience we encountered in the United States. If you and your officials get a chance to read through the evidence from Sir Ian Blair I would suggest that, certainly in my view, one of the more unimpressive parts of that evidence was the reason being given for not taking on board the use of intercept evidence. It was purely about the bureaucracy and the time it would take to transcribe all this evidence because it would all have to be disclosed to the defence counsel. That is precisely the system that is in place in the United States and causes them no problems whatsoever. I do think if there is an argument that is going to be put forward against the use of intercept evidence it needs to be a little bit more honed than "We have not got enough secretaries to take all the shorthand down". Jacqui Smith: I think it is slightly more sophisticated than that. Q219 Martin Salter: I am sure it is. Jacqui Smith: I think there is an important issue about, if you are in a position where you need to disclose or even, incidentally, if you are in a position where somebody else needs to make a decision about whether or not you need to disclosure, you have to transcribe all the evidence and if you have to transcribe all of the evidence that has come from intercept that is quite a considerable resource. Martin Salter: If I may add to that, Chairman. We are in this ludicrous situation where intercept evidence from foreign powers is admissible in a British court but intercept evidence obtained in the UK is not acceptable. That is clearly ludicrous and needs to be resolved. Q220 Mr Clappison: A couple of new subjects, Home Secretary. The Government's proposal to allow post-charge questioning on a much wider basis than is presently the case where post-charge questioning can only take place in very limited circumstances. What views have been expressed to you in consultation on this and what is the latest stage of thinking? Jacqui Smith: I think I am right in saying that there has been pretty widespread support for the proposals around post-charge questioning. There have been some questions about the safeguards and the way in which it will be implemented but it has been pretty well received. Q221 Mr Clappison: That is very clear. Can I ask about another subject of interest, enhanced sentences, because you also proposed enhanced sentences for offences relating to not specifically terrorist offences but ordinary offences which are charged as such but which lead to terrorism and have a terrorism background to them. We have heard two possible routes which the Government could go down. One of allowing the judge to hear the evidence about the cases and then determining at the end of the case that an enhanced sentence is appropriate and the other approach being one suggested I think by the Law Society that such an offence be charged as an aggravated offence at the outset, as one of the ingredients of the offences. What is your thinking on that? Jacqui Smith: This is an area where I think, whilst there has been some support for the idea of enhanced sentences - because as you rightly say, certainly in cases probably of more minor offences of forgery or burglary to obtain money, where there is a terrorist link, it seems right that actually that should be recognised in the severity of the sentence - there is a discussion about whether or not that should be something which is determined by the judge but feeds into the sentence or whether or not that is something which should be determined by the jury in terms of the nature of the offence. I think our view is the latter. We propose the former not least because the latter - the view from prosecutors as well - having terrorist aggravated offences would tend to lengthen trials and jeopardise convictions because of the need to prove that terrorist connection. This is one of the areas where the consultation has been very useful in thinking through some of the detail of how we can go forward. Q222 Mr Clappison: I imagine there is very general support for the principle of more serious and heavier sentences for people convicted of offences under the Terrorism Act? Jacqui Smith: This is, of course, one of the reasons why it was proposed by Lord Carlile in fact. Q223 Mr Clappison: On a slightly different note, one of the striking things about other evidence we have heard is the scale of the problem you face and complexity of the problem which is faced by the security services. I think we were told 2,000 individuals who were suspected of involvement in terrorism, 200 networks and 30 plots is the latest state of the figures. I do not know if you are able to assist with this but is it the case that a significant number of those 2,000 individuals are not in fact United Kingdom citizens? Are you able to say? Jacqui Smith: I am not able to say but my view would be that actually it is not the case that lots of them are not United Kingdom citizens. Q224 Mr Clappison: There are a number who are not UK citizens? Jacqui Smith: Yes, there would be a number. Q225 Mr Clappison: You are keeping your powers of deportation under review in respect of such people, actively considering deportation? Jacqui Smith: We actively consider in those cases obviously exclusion where it is appropriate and deportation where that is appropriate as well. Q226 Mr Clappison: The 2,000 figure I think covers people who are in the country at the moment, not people who are liable to exclusion but prevented from coming in. I think I am right in saying in the last two years we have only actually seen nine deportations on the grounds of national security and another 24 cases being considered. Jacqui Smith: I think it is over 100 who are excluded. Q227 Mr Clappison: Those are people who are not yet in the country. The 2,000 are people who are inside the country and having to be monitored by the security services and are adding to the burden which falls upon the security service because they need monitoring. Jacqui Smith: It is the nature, however, of those who are likely to become involved in terrorist related activity that they might well travel and have periods abroad. Q228 Mr Clappison: You are keeping these powers under active review? Jacqui Smith: Yes, of course. Q229 Margaret Moran: Your proposal to require terrorism offenders released from prison to notify their whereabouts and travel plans, much akin to the requirements under the sex offenders legislation, how practical is that? How much of a burden would that be on our police, particularly considering according to a PQ I put down recently that the sex offender's travel restrictions have not been extensively used and that we heard in the States the sharing of data, for example, between the UK and the US on sex offenders register particuarly has not happened yet? Is this a practical option? Jacqui Smith: I think it is. Notwithstanding any shortcomings that there might be in the sex offenders process actually that has proved to be pretty successful with 97% compliance with sex offender notification and, of course, we would be talking of a smaller number of people who come under the provisions of the Terrorist Notification and Travel Orders. If you like they fall into two areas. Firstly, with respect to the notification, the requirement to tell the police where you are living and to notify them if you intend to travel, of course gives the police intelligence about where you might be living, if you may be travelling backwards and forwards, the sorts of activities which might suggest that you had not seen the error of your ways and might be returning to terrorism. The travel orders, in particular circumstances where the police believe that was necessary to prevent somebody going overseas, I think would be an important extra tool which would be able to be used for those who finished their sentences. Q230 Mrs Dean: In the consultation, were any significant concerns expressed about the Government's proposals in respect of data sharing powers and the DNA database? If they were, how would the Government address them? Jacqui Smith: Once again, I think this was an area where there was general understanding and support for what was being proposed but, quite rightly, there were some specific questions and there will be some specific issues that will come out about the safeguards around both of those areas. Mr Ford: Certainly in the consultation we have had there have been no questions raised about data sharing. By and large, it is not a subject people have been interested in. DNA, there has been interest to people, often in the context of wider issues about DNA and the national DNA database rather than specific proposals we have. Q231 Chairman: Home Secretary, before I close the session I want to ask you a question about Iraqi interpreters and the very welcome statement by the Prime Minister on 8 October that the interpreters and locally engaged staff will be given concessions in order to come to the United Kingdom following a campaign by The Times newspapers and others. What involvement has the Home Office had in these decisions? Jacqui Smith: The Home Office has been fully involved in the review right from the point back in August where the decision was made to specifically review this issue and, obviously previously in terms of the general approach to those coming from Iraq. The Foreign Secretary made the ministerial statement which spelt out the outline framework of the proposals that we are putting forward, including the measures to help both current staff who, you are right, we will be supporting with either local packages of financial assistance or with a particular scheme with an exceptional ability to be able to come directly to the UK in certain circumstances. Q232 Chairman: Have the applications begun? Jacqui Smith: I do not believe the applications have actually begun. Q233 Chairman: Do we have a timetable when they might start applying? Jacqui Smith: Depending on the fine-tuning of the proposals, which the Foreign Secretary said in his written ministerial statement we would be doing by the end of this month, I think it would be possible to begin that process very quickly after that. Q234 Chairman: I shall bring in Mr Winnick in a moment but if we can talk about numbers, originally the figure was put at 20,000, it was then put down at 600, and I think the figure of 200 was mentioned. There must be some kind of estimate as to how many people might be making these applications. Jacqui Smith: In terms of directly, currently employed, it is much closer to the 600 than to the 20,000. Q235 Chairman: Right. Presumably if they make their application and the application is turned down, for whatever reason it be turned down, they have the right of appeal in the normal way that people have when they apply for entry clearance? Jacqui Smith: Yes, they would have a right of appeal although of course this is not a normal route to entry clearance, and I think it is quite important that it is clear in the light of the considerable bravery and contribution these staff have made a specific and exceptional route has been determined. Q236 Mr Winnick: It is always welcome when governments respond to public and parliamentary pressure, Home Secretary, and like the chair one much welcomes the decision which has been taken, but can I ask you why it took so long for the decision to be reached? Originally the response from the Government as reported in the newspapers was quite negative. Jacqui Smith: I do not think it was. I thought the response was we were going to set up the review in order to find a way through. Q237 Mr Winnick: The impression was that the British Government was not following the procedures and practice of the American Government. Jacqui Smith: Perhaps you cannot always believe everything you read in the newspapers, even those as august as the Times. Chairman: Mr Mercer. I do not know whether he is a Times reader. Q238 Patrick Mercer: Whether I am or not, will the same provisions apply to other theatres? Jacqui Smith: No. These arrangements are specifically in relation to the situation in Iraq. Q239 Patrick Mercer: Therefore what future consideration is being given to a similar situation in Bosnia, Afghanistan and the like? Jacqui Smith: I think we would need to consider the particular circumstances in those cases but this explicitly and exceptionally relates to those who served alongside us in Iraq. Q240 Mr Winnick: Can I ask a related question about Iraqis already here, Home Secretary? Is it the practice at the moment, bearing in mind the situation in that country, that no one is sent back there? Jacqui Smith: No, it is not the situation that there is a blanket lack of removal. Quite a few, for example, have taken packages of voluntary assistance and volunteered to return back to Iraq. Perhaps, in order to make sure I do not mislead the Committee, the best way might be if I write to you about the specifics of the current position in relation to those individuals. Mr Winnick: Who have applied for asylum because of the situation in Iraq. Thank you. Q241 Chairman: That would be very helpful. Could you also write to us and tell us when the first interpreters actually make the applications? Home Secretary, the Committee decided this afternoon when we started our session in private to call the Shadow Home Secretary and the Liberal Democrat spokesman, Mr Clegg, to give evidence as well as seeking evidence from the Security Services and the victims of terrorism and one of the persons involved in the Forest Gate affair. Could you help us by letting us know if there is a timetable for the publication of this Bill when we are going to be able to look at the clauses? Do you know when you will be publishing it? Jacqui Smith: Two separate things. I would certainly hope within the next fortnight to be able to send the Committee some draft clauses in some of the specific areas we have discussed today, not the area of pre-charge detention, because it is obviously important we fully consider the responses to the consultation. We have previously said we would want to introduce this Bill sometime before Christmas. Q242 Mr Winnick: Would you authorise the security authorities to give evidence before us, even if it is in private? Jacqui Smith: I am not sure that is my role, but let me check. Mr Winnick: Send us a note? Q243 Chairman: There is no need to do that, just tell them we are coming for them! If you could tell them that, that would be very helpful. Jacqui Smith: They probably know you are coming for them! Chairman: Thank you very much, Home Secretary and Mr Ford. |