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Jacqui Smith: As I shall say when I make my argument, in my view the maximum time period is not the most important issue. The most important issue is whether people feel that in all circumstances in the future there would never be a time when 28 days would be insufficient. If people believe that, the argument arises how and through what process it would be possible to extend beyond that.

Mr. Adrian Bailey (West Bromwich, West) (Lab/Co-op): Like other hon. Members, I have participated in the police liaison scheme, and 18 months ago I had the opportunity to see the sheer scale and complexity of investigations undertaken by the West Midlands police that involved mobile phones and computers. Will the Home Secretary undertake, during the course of her speech, to demonstrate clearly just how necessary it is to have this extension so that such investigations can be undertaken thoroughly?

Jacqui Smith: My hon. Friend makes a very important point. The complexity of the investigations that he identifies is part of the argument that I shall make. In particular, senior police officers are clear that the combination of the changing nature of investigations to pre-empt and prevent potential terrorist actions and the scope and complexity of modern-day terrorist plots has the potential to impact on their ability to bring charges against terrorist suspects in the time currently available.

Chris Huhne (Eastleigh) (LD): I am grateful to the Home Secretary for finally giving way. She said that she was of the same view as the Director of Public Prosecutions. Is she aware of the record of the evidence of the Select Committee on Home Affairs? The right hon. Member for Leicester, East (Keith Vaz), the Chairman of the Committee, who is in his place, questioned Sir Ken Macdonald personally. The right hon. Gentleman said:

Sir Ken Macdonald said—it is absolutely clear from the record:

He is satisfied with the position, but the Home Secretary, bringing forward a new Bill, is clearly not. How can she say that she has the same position as him?

Jacqui Smith: The argument that I shall make is about the trend of the complexity of investigations and the fact that we, as parliamentarians, need to be in a position to respond to what happens in future. I shall make a bit of progress and make that argument.

Mr. Frank Field (Birkenhead) (Lab): Is not a division clearly appearing in the House, between those who believe that we should remain passive and see what the terrorists inflict on us, and then react accordingly, and those who believe that at some stage we may need these extra powers, and that we should have them ready for the police to use before atrocities are inflicted on us? Those of us who quite rightly worry about the police abusing powers can look at their use of the existing powers. Is it not right that only a very small minority
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have been kept in detention for the maximum period? Most people have left. There is no evidence that if we extend the period, the police will automatically want to keep people for 42, 90 or 180 days, or whatever maximum we lay down.

Jacqui Smith: My right hon. Friend is completely right. The police, like prosecutors, want to bring people to charge and to court as quickly as possible if they believe that there is a case to answer. The idea that it would somehow serve the police to maintain people in detention, when they were able to bring a charge, is fallacious. Also, it is a condition of the close work between the police and the Crown Prosecution Service during these investigations that a charge must be brought as soon as possible.

My right hon. Friend also makes the important point that we have a decision to take in the House about whether to ignore the potential risk or act now. Later in my speech I shall explain how we do that.

Hugh Bayley (City of York) (Lab): Will my right hon. Friend give way?

Mr. Paul Goodman (Wycombe) (Con): Will the Home Secretary give way?

Patrick Mercer (Newark) (Con): Will the Home Secretary give way?

Jacqui Smith: I want to make a little progress.

In much police work, investigation necessarily follows the crime. The presence of a victim is the start point. Forensic material from a crime scene and the ability to gather evidence facilitate an investigation, and very often help to identify a suspect. Upon arrest, only a few days may be needed to question the suspect before a decision is taken on whether to charge them with an offence. Terrorism is different. Because of the severe consequences of an attack, the police and the Security Service often need to intervene before a planned crime takes place. Critically, they may need to intervene at a very early stage in an investigation, before they have had the opportunity to gather admissible evidence, and perhaps with very incomplete intelligence about who is involved.

Mr. Paul Goodman: I am very grateful to the Home Secretary for giving way. She will know that a major trial in connection with Operation Overt and the alleged aeroplane plot is to begin this week. Two people—one is a constituent of mine, and the other may be—were apparently charged on the 28th day, although it has been claimed that the police had sufficient evidence to charge them on the 21st day or before. Can the right hon. Lady definitively rule out the possibility of that occurrence?

Jacqui Smith: It is obviously difficult to talk about individual trials, especially ones that are due to start tomorrow, but the allegation to which the hon. Gentleman refers has been made on numerous occasions. I have sought assurances from the police that no such action has taken place, and they have
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frequently told me that none has. I have communicated that to some of the people who have made that allegation, but nevertheless it continues to be made—I know not for what purpose. However, I can reassure the hon. Gentleman that the occurrence to which he refers did not take place.

Mr. David Blunkett (Sheffield, Brightside) (Lab): I am very grateful for my right hon. Friend’s generosity in giving way, and for the way in which she has presented her case, both now and over the past few weeks. Will she confirm that, in the incident that has just been drawn to the House’s attention, and in the very few cases—six, I think—that have reached 28 days, there is an important question concerning what people are charged with? While further investigation and questioning are very welcome after a charge has been brought, they cannot rectify a perennial problem with the CPS. That is that a lower charge is often made—

Madam Deputy Speaker (Sylvia Heal): Order. The matter of the charges is clearly a decision for the CPS.

Jacqui Smith: My right hon. Friend makes the very important point that, in our system, we should want and expect the most appropriate charge to be brought.

The gravity of the intended crime demands that our police and security forces act as soon as they can. Few would disagree with the need to pre-empt such attacks, but counter-terrorist investigations are challenging not only for the need to act swiftly and without detailed pre-emptive intelligence. There is a second challenge, and it has to do with the amount, and often the geographical location, of material that the police then seize and through which they may well need to search for evidence to make a charge.

Locating that material from countries overseas—such as Iraq, Pakistan and Afghanistan—and then combing through it can pose particular challenges.

Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): Will my right hon. Friend give way?

Patrick Mercer: Will the Home Secretary give way?

Mr. John Baron (Billericay) (Con): Will the Home Secretary give way on that point?

Jacqui Smith: To understand the growth of that challenge, and how the nature and scale of terrorism have changed, I intend to make a simple comparison. However, the hon. Member for Billericay (Mr. Baron) wants to intervene on the specific point of challenging investigations, and I am sure that he will.

Mr. Baron: The Home Secretary will be aware that, although seven different countries and a total of 300 suspects were involved in the investigation into the Madrid bombings, the 29 suspects who were charged were charged within five days. In many democracies other than ours, the pre-charge period is less than eight days. Will she explain what makes it so difficult for police in this country to investigate cases, compared with forces in Spain and other countries?

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Jacqui Smith: The example to which the hon. Gentleman refers involves charges made after the event, but he repeats a claim made by many people in the course of this argument—that, compared with other comparable democracies, this country takes a disproportionate approach to these matters. I ask hon. Members to consider what happens in France, where the investigative magistrates system means that people are often held for up to four years while terrorist cases are investigated— [ Interruption. ] The point is that it is actually quite difficult to make comparisons between the regime in the UK and that in other countries: only the other day, the Metropolitan Police Commissioner described it as like comparing apples and goats. There is a significant difference. People who make the case—as some have done in putting forward their argument—that we should look to regimes such as Russia or even Zimbabwe as examples of the way in which we should carry out— [ Interruption. ] People have made the argument in terms of such international comparisons, so I have to ask Members whether they think that all things considered we have a fairer and better regime in the UK than in some other countries. Notwithstanding the difficulty of making comparisons, I think they will accept that we do.

Mr. Dominic Grieve (Beaconsfield) (Con): I accept that comparing common-law jurisdictions with non-common-law jurisdictions is not easy, but does the Home Secretary accept that in common-law jurisdictions, with which we certainly have equivalence, there will be, and is, no country that has 28 days’ pre-charge detention, and that we have the longest period?

David Howarth (Cambridge) (LD): Zimbabwe.

Mr. Grieve: I am referring principally to respectable countries.

Will the Home Secretary also accept that whatever else she may say about the French system, it is a post-charge form of detention? Secondly, I rather hoped that she might acknowledge in the House that our common-law system has greater safeguards for the individual, and that she would wish to maintain them rather than move to a continental model.

Jacqui Smith: First, I do not accept that the charge period in France is equivalent to that in the UK. Secondly, the hon. and learned Gentleman is slightly closer to a fair comparison when he talks about common-law countries, but we should remember that in the UK nobody is held beyond 48 hours unless it is with the express permission of a judge. Sometimes, some of the discussion suggests that in some way or another the period of detention is unregulated and not judicially supervised. It is not. I return to my former argument.

Some of the people who make the argument about international comparisons need to answer this question: “Where would you, as a terrorist suspect, feel most confident about receiving justice?” I do not believe it would be in some of the countries that are being used as comparisons to the UK.

Keith Vaz (Leicester, East) (Lab): Although the Select Committee found that there was no evidence for going beyond 28 days, we said that there was a case,
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building on the Civil Contingencies Act 2004, for looking at emergency situations. My right hon. Friend’s definition of an emergency situation in the Bill is quite different from our suggestion. Will she be prepared to look again at the definition during the passage of the Bill to see whether it can be changed?

Jacqui Smith: I am coming to the point that my right hon. Friend makes. Part of the reason for introducing the legislation as we did—for the process that we have gone through, and for the pleasure that I had of appearing before his Select Committee three times—was to ensure that we gave the most effective consideration to all the issues, including the one that he has raised. I can give him an undertaking that it is the sort of issue we need to examine carefully as the Bill progresses through Parliament.

To understand the growth of the challenge, and how the nature and scale of terrorism has changed, I offer a simple comparison. In 2001 the police investigated the last major IRA case, in which they had to analyse the content of one computer and a handful of floppy discs. The suspects used their own names, and their activities were confined to the Republic of Ireland and the UK.

In 2004 the police and the security services had to investigate Dhiren Barot, the key conspirator in an al-Qaeda operation in the UK. The case led to the seizure of 270 computers, 2,000 computer discs and a total of 8,224 exhibits.

Lynne Featherstone (Hornsey and Wood Green) (LD): Will the Home Secretary give way?

Patrick Mercer: Will the Home Secretary give way?

Jacqui Smith: No, not for a moment.

There were seven co-conspirators, and during the investigation police carried out inquiries in the USA, Pakistan, Malaysia, the Philippines, Indonesia, France, Spain and Sweden. In another very recent case, 30 addresses were searched within two hours of the start of the arrest phase of the operation; 400 computers and 8,000 computer discs were seized, and there were over 25,000 exhibits. That operation, too, involved significant international connections.

The trends are very clear. Terrorists, living and working in our society, have learned how to use technology to cover their tracks. They travel and network, sharing experiences and learning from mistakes.

Mr. George Howarth: I am grateful to my right hon. Friend, who is being generous in giving way. A good comparison is that of wearing a hard hat on a building society— [ Interruption. ] Not Northern Rock. On a building site, someone may hope that a brick will never fall on their head, but it is as well to be prepared for the possibility that that might happen.

Jacqui Smith: My right hon. Friend makes a point about what I would call a precautionary approach much more colourfully, and very effectively.

Margaret Moran (Luton, South) (Lab): With reference to the complexity of the technology, does my right hon. Friend not agree that we are dealing with ever more
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complex encryption systems, which are more widely available and infinitely more complex than even two or three years ago, and will continue to become more complex in the future, and that we therefore need to plan to enable our forensic investigators to unencrypt very deeply encrypted material if we are to prevent further terrorist attacks?

Jacqui Smith: My hon. Friend has considerable expertise in information technology, and she is right of course—not just in the examples that I have given but in other ways—to say that technology is becoming more sophisticated. Notwithstanding the changes that we have made to the law to help investigators to crack encrypted information, it is becoming more complex, and terrorists are learning lessons and using that technology.

David Davis (Haltemprice and Howden) (Con): To deal with this problem, in 2000 a criminal offence of withholding passwords and encryption keys to hard drives was passed into law. The offence of using such things for terrorism has been increased recently. How often has that offence been used in terrorist cases?

Jacqui Smith: I do not know the answer to that question, but I will make sure that the right hon. Gentleman gets a response. However, what I was saying was that notwithstanding that change in the law, my hon. Friend the Member for Luton, South (Margaret Moran) was making an important point about the development of technology. What we know about terrorists and their plots is that they are increasingly making use of those developments in technology.

David Davis: I thank the right hon. Lady for giving way a second time. Her argument is that the terrorists are using more and more complex techniques, which are difficult for the state to deal with, yet she cannot tell us whether the state has used the proper legal apparatus and criminal charges to overcome the problem. If she cannot make that judgment, how on earth can she judge how many days she needs?

Jacqui Smith: I am sorry that I gave way to the right hon. Gentleman again.

Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas for the movement of money and people, for command and control, for the sharing of advice and instructions, and for training. The ferocity and the complexity of today’s terrorist threat therefore means that there is a corresponding need for our law enforcement agencies to intervene early, and then to find and process what can be very large quantities of seized material.

Those factors, and the constant evolution of the threat, are the basis for the view that it may be necessary in future, in exceptional circumstances, for terrorist suspects to be held for more than the current limit of 28 days before charge. That view is shared by Lord Carlile, the independent reviewer of terrorism legislation. The view has the cross-party support of members of the Select Committee on Home Affairs,
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and it is a view shared by senior police officers. As Robert Quick, assistant commissioner specialist operations and the chair of the Association of Chief Police Officers terrorism and allied matters committee, set out in a letter to me of 28 March,

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