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I think that the time has come for us to stop looking foolish.

Dr. Julian Lewis: Is not the best example historically of the tendency that my right hon. and learned Friend was describing in that very revealing quotation of President Richard Nixon, who knew perfectly well that his conversations were being tape-recorded, but still could not prevent himself from incriminating himself?

Mr. Howard: That is certainly an interesting example. I suspect that the implications of it are quite far-reaching. I might want to reflect on them before readily agreeing to the proposition advanced by my hon. Friend, but it is certainly an interesting thought.

I believe that it is time to allow intercept evidence to be used to help secure the conviction of those who are guilty of terrorism and other serious offences. I hope that we shall see legislation that will achieve that outcome on the statute book in this Session.

2.28 pm

Mr. Robert Marshall-Andrews (Medway) (Lab): It is a pleasure and a privilege, as always, to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). The sentiments and views that he expressed I agree with entirely, and, indeed, it has meant that I can expunge totally from my speech the long passage that I had on intercept evidence, so he has done the House a considerable service.

I want to start with, and to spend some time on, the issue of imprisonment without charge or trial, and I shall begin by dealing with zealotry—not “their” zealotry but mine. I am zealous on the subject of civil liberty, which is the reason why I joined the Labour party and one of the reasons why I am still in it. I believe that civil liberty is the most important part of our political agenda, and it is our defining characteristic as a nation. It is worth repeating what the shadow Home Secretary, the right hon. Member for Haltemprice and Howden (David Davis), said in his speech, in a slightly different
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way. My parents’ generation did not fight—and in some cases die—in the last war for the national health service, the repeal of section 28 or many of the other entirely laudable and worthy things mentioned during the Lord Chancellor’s speech. Indeed, if we had given in to the blandishments of Herr Hess at the beginning of the war, we would probably now have a perfectly acceptable national health service—providing, of course, that one is not Jewish, black, gay, Serbian or any of the other persecuted minorities who came to this country and received here the security and freedom for which we are famous. I echo what the right hon. Gentleman said: that this House should give up the smallest part of those liberties through our collective gritted teeth.

I have said that I am zealous, but I am not a zealot on this subject. If the Government persuaded me that the risk to my constituents, or any other constituents, of mass murder and terrible crime was so great and they asked me to subscribe to a reasonable period of extension in order to assuage or minimise that risk, I would agree with them and vote for them because I would regard that as no more than my duty, however zealous I may be about my mainspring in politics.

The burden that the Government carry in these circumstances is a high one. This is not simply a question of the balance of probabilities—whether something may or may not be better. A high burden is involved when we are discussing liberties of this nature, including the ultimate liberty: the liberty not to be incarcerated without trial.

I accept that we are in a position of considerable risk, which has inevitably been increased by our foreign policy during the past seven years. The risk was increased by our decision to invade Iraq, but that does not mean that it has any bearing on whether it was right or wrong to invade; if I had believed that the invasion of Iraq was legal and necessary, I would have voted for it, notwithstanding the additional risk that would undoubtedly have been incurred. We must understand that, and I mention it only because we face an additional risk and we must take it into account.

I listen with respect to the head of MI5 and I have read his speech with considerable care, but it is simply respect. We have all considered the Butler report, some have done so in more detail than others, and we realise that the speech may deserve respect, but it is not holy writ. Therefore, we must examine the primary facts in order to decide whether the Government have crossed the high threshold in persuading us that this is necessary.

The Government have not done so on this occasion, for the most prosaic and obvious reason: they have not brought forward a single example in which the existing regime has failed us. The last time that we debated this, the then Home Secretary said that he had consulted his advisers, the National Technical Assistance Centre, and their advice was unequivocally that 14 or even 28 days is not enough time adequately to investigate heavily encrypted material. He said that almost exactly two years ago. In the ensuing time, there has not been one occasion on which the 28-day period has not been sufficient for the decryption of that material. If they came forward and said that they could cite four verifiable cases—I am not talking about names—in
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which we have been severely embarrassed and worried about our position, I would take a different view, but they have not done so.

I am sceptical about consultation on this matter, because I do not see what there is to be consulted about. The new Home Secretary brings a new, human and attractive face to her office, somewhat in contrast to those who have held it during the past 10 years. It is important that the new face should not be cosmetic. There is a feeling that consulting on this issue has a cosmetic ring to it. The principle is clear: we should not give away this liberty unless we are certain that it is necessary to do so. The Government must persuade this House as to whether it is certain to be necessary on the basis of the evidence that they have. It is as simple as that.

The scepticism extends to the unavoidable fact that we are now told that a period of 56 or 58 days, substantially less than before, is necessary for the police and the agencies to do their job. If that is the case, why were we Whipped two years ago to vote for 90 days? The threat has not receded since, so if 90 days was necessary then, it is necessary now. The unanswerable conclusion to draw from that is that these figures are not based on scientific analysis by the police or the agencies but represent the greatest number of days that can be got past Westminster. Ninety days did not work and the consultation period is, in truth, a draw-down process to see how close one can get before the weaker people who believe in this will give way. It is a bad way to do business, particularly on this issue.

May I deal briefly with the encryption problem that lies at the root of this, because I simply do not understand the approach? In the Police and Criminal Evidence Act 1984, the Prevention of Terrorism Act 2005 and other statutes, offences are specifically made and orders may be made compelling those who are suspected of crime or who are arrested to give up their encryption. They must provide the passwords or make the encryption legible and readable in English. If they do not do so, the power exists for them to be imprisoned. If a contempt of court is involved, that imprisonment can be endless. I simply do not understand why this power cannot be employed in order to solve precisely this problem.

Finally on this issue, what is wrong with the holding charge? It is used throughout criminal jurisprudence and there is nothing improper about it. A simple example is that when someone is found in possession of an offensive weapon, for example a knife, which is believed by the police to have been the weapon used in a murder and the murder cannot be proved until one has had the knife forensically examined, the holding charge for the possession of the knife is a perfectly reasonable way to proceed. The person is kept in custody while the necessary investigations are carried out. In dealing with terrorism, a wealth of offences can be used, not least possession of material likely to assist a terrorist. That provision is drawn so wide that in certain circumstances “Scouting for Boys” could be a part of such material. I am not suggesting that “Scouting for Boys” would be the basis for a holding charge, but possession of any material—if one does not have any material, there is not much of a case—could form the basis for a holding charge while investigations take place and that would not inhibit subsequent inquiry and interview. For these purposes,
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one does not even need a new Bill allowing interrogation after charge, which I would agree with in a spirit of reconciliation on this particular issue.

I shall move to a short piece of the Queen’s Speech that disturbed me and will disturb many judges and practising lawyers. It has little priority, because it follows provisions on transport and employer relations. It says:

I say to the Minister, in one simple, compendious sentence, that we do not need any more legislation to reform the criminal justice system. To put a slight gloss on that, I can say that what would be desirable would be a large and compendious Bill that had as its purpose scrapping most of the legislation that has been passed in the last 10 years in the cause of so-called reform of the criminal justice system.

In the last 10 years, the Government have suffered from legislative hyperactivity syndrome in respect of criminal justice matters. I have been to the Home Office only once. I went there briefly to see a Minister who subsequently fell from grace: these things happen. I did not explore the building, but in my mind’s eye I can see a vast, probably subterranean, room—similar to that immortalised by Roald Dahl in “Charlie and the Chocolate Factory”—out of which are churned ever more impenetrable subsections, deliberately designed to cause dismay and chaos in the criminal justice system.

The figures are interesting. In the whole of the 19th century, 34 Acts were passed that affected criminal justice. In the first half of the 20th century, there were 15. In the second half of the 20th century and up to this date, there have been 48, of which 35 have been passed by this Government. It is something of a feat to pass, in 10 years, more criminal justice Acts than were passed in the whole of the 19th century. Some 400 new offences have been created and 500 new sentences. Some of the figures that are kited are far higher, but I have removed from the count old offences that have been retreaded as new offences.

Why has that happened? Have our citizens become more venal or wicked in that period? No. As the Government never tire of trumpeting, accurately, crime has fallen steadily and consistently in the course of the last 10 years. We are therefore confronted by an extraordinary rule of mathematics, for which a knowledge of higher calculus is presumably necessary. It is that the fewer crimes are committed, the more crimes it is necessary to create. We will eventually reach a point on the graph at which the crimes are so few and the new offences so many, that every person arrested will be able to have their own personalised, hallmarked crime that can bear their name in perpetuity.

Behind that crass state of affairs lie some uncomfortable truths that we need to understand. As this is the Queen’s Speech debate, I can range a little wider into history to try to explain why we have had that wholly unnecessary blizzard of legislation and the dire effects that it has had on the administration of justice. The reason has nothing to do with jurisprudence or penology, but entirely to do with politics. Let us reflect on the remarkable fact that before the 1970s no manifesto of any major party contained any reference to crime and punishment. The reason for that was the widely held and wholly accurate
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perception that crime and punishment were not the business of politics, but of theology. Wickedness was not something that the House of Commons could control. We could have some effect on some of the areas that might give rise to crime, such as housing, impoverishment, indolence—if necessary—and educational deprivation, but on major areas of society, such as the mass media, the family, God and religious beliefs, it was rightly believed that this House had very little jurisdiction.

All of that changed in the 1970s, for two reasons. First, we embraced sociology as a science, rather than simply an enjoyable pastime. Secondly, the Conservative party perceived a wonderful political truth that they could use to devastating effect. The Labour party has always been the party of civil liberty—the reason that I joined it—partly because of trade union emancipation and partly because of a more liberal, Bloomsbury-type approach to society. The Conservatives perceived that they could gain an enormous political advantage. It was not difficult to portray that wonderful aspect of the Labour movement as meaning an approbation of the sinner and an indifference to the victim and it worked extraordinarily well. From the 1970s onwards, our reputation for being soft on crime was one of the albatrosses that were hung around the emaciated neck of the Labour party. It did us terrible damage, until the advent of new Labour. One of the precepts of the new Labour project was the essential need to outflank and eventually ambush the Tory party on the issues of law and order and to display a muscular, populist, Murdoch-pleasing legislation, running to hundreds of sections to persuade the people of our credentials. So has begun a Dutch or even worse auction on crime and punishment, and penology. It has done us no good at all.

Indeed, positive harm has been done to the criminal justice system. So manic has the process been, that many offences, and an even larger number of sentencing rules and rituals, are simply incomprehensible to those who pass them, those who receive them and the victims who hear them being handed out with a sense of stunned disbelief. A typical example is to be found in a Bill that is before Parliament at present. A couple of years ago, a gentleman called Sweeney committed an exceptionally serious assault and had a sentence passed on him that was totally inappropriate for the crime that he had committed. It was an insult to the victims and an affront to justice, and it caused an avalanche of criticism in the press of a perfectly good judge. As the judge carefully explained, he had no choice but to pass that wholly inappropriate sentence as a result of the Criminal Justice Act 2003, one of the great products of the Willy Wonka room in the Home Office.

As a result of the outcry, we now have, enshrined in the Criminal Justice and Immigration Bill, an attempt to rectify the Sweeney problem. I shall read out a little of the provision, and I hope that the House will try to follow along. Clause 12(2) states:

Subsection (3C) states:

So there we are—that has sorted out the situation, then. My friends and colleagues in the criminal justice system will no doubt be looking forward to that.

The process that I have described has caused chaos in the criminal courts and repeated injustice in respect of victims and the sentencing of offenders. I invite the Minister or the Secretary of State to attend judicial seminars, as I do in my capacity as a recorder of the Crown court. It would be a pleasure to see the Minister there anyway, but I would invite her to appear before the judges, who, even to this day, remain members of the best cadre of such professional people in the world. I would like her to experience their raw anger and incredulity at the byzantine processes, the ludicrous homilies and mantras and the wholly inappropriate sentences that they are forced to wheel out day after day to burnish the Government’s populist credentials.

David Davis: Can we come too?

Mr. Marshall-Andrews: Let me think about that.

If the Minister accepts my invitation, I warn her to expect a severe custodial sentence, which she will not have the slightest chance of understanding.

2.51 pm

Mr. Alan Beith (Berwick-upon-Tweed) (LD): We have just heard a telling speech from the hon. and learned Member for Medway (Mr. Marshall-Andrews). My only qualification of it is that he could have made it with greater comfort from the Liberal Democrat Benches. In voting against the provisions of the Criminal Justice Act 2003, for example, he would have been in no danger of remonstrance from our Whips, because we were deeply opposed to those provisions—and are, indeed, to the plethora of multiplied criminal justice legislation to which he so rightly referred. [Interruption.] The hon. and learned Gentleman has a good record of voting against his own party, but it would be much more comfortable for him to vote as part of a party in which his position was ideologically acceptable.

The hon. and learned Gentleman also touched on something to which I hope all parties will listen: the danger of the politicisation of the criminal justice argument. The corollary of the process that he described, in which new Labour sought to outflank the Tories, is that opponents have to be described as soft on crime and drugs. Most of the leaflets that I have seen that have accused the Liberal Democrats of being soft on crime or drugs have been produced by the Labour party, which was confusing opposition to the practice of the sinner with opposition to legislation that does not deal with the problem that it is supposed to address.

All parties should listen to that message; perhaps the danger will come to us Liberal Democrats some day if we feel a need to retaliate as a party against being criticised as soft and we feel that other parties are not
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supporting sensible measures. However, everyone in politics must get away from dismissing civil liberties-based opposition as if it were support for conduct that civil libertarians believe either is not to be regulated by the state or is being addressed by measures that do such grievous harm to civil liberties that they should not be supported.

I also want to turn to the interesting speech made by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I am one of the four members of the Privy Council inquiry; I am working alongside three extremely good people and I shall not comment on or prejudge the inquiry’s results. I hope that the Home Secretary does not do so either. I hope that she was misquoted, that—I am being charitable—the story that appeared in The Times compounded various things that she had said for different purposes and that neither she nor other Ministers have prejudged an inquiry that the Government set up.

One of the reasons the inquiry was set up was that there have long been disagreements within Government and among Ministers on that very issue—including, I am sure, when the right hon. and learned Gentleman was in power. Today we have heard the case for the prosecution, but I am also obliged to listen to the case for the defence and examine the evidence produced by both. I look forward to our meeting the right hon. and learned Gentleman in the course of the inquiry; he will find that extremely helpful and valuable.

I want to turn to some of the concerns of the Justice Committee, as we have now been renamed—as the Government rename their Departments, so the Select Committees are renamed: the former Constitutional Affairs Committee is becoming the Justice Committee, although it is still closely interested in constitutional affairs. Before I mention those concerns, I mention in passing a constituency concern that I felt when I read this part of the Queen’s Speech:

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