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“a pragmatic inference can confidently be drawn from statistical and empirical evidence arising from recent investigations that circumstances could arise in the future which render existing pre-charge detention limits inadequate to ensure a full and expeditious investigation of detained persons.”
I will ensure that a copy of that letter, which gives the clear and unequivocal advice of senior police officers, is available for Members in the House of Commons Library.
Mr. Grieve: The problem with the Home Secretary’s utterances is that we have heard all this before. A member of the ACPO TAM committee has said one thing, but the Home Secretary glosses over the fact that other members of that committee disagree. Would she like to tell the House the names of the members of that committee, and which of them support this measure and which do not?
Jacqui Smith: The hon. and learned Gentleman asserts that members of ACPO are opposed to this. On that basis, he really needs to name them— [ Interruption. ]
Jacqui Smith: I find the distain with which the hon. and learned Member for Beaconsfield (Mr. Grieve) treats this country’s most senior counter-terrorism policeman and his opinion somewhat disappointing. He might like to refer to the statement made yesterday by Ken Jones, the president of ACPO, in which he made clear his view and that of ACPO that the proposals in the Bill are necessary, proportionate and pragmatic. He was speaking on behalf of chief police officers. If the hon. and learned Gentleman would like to quote people who are against that view, he should stand up and give us their names.
A future risk has been identified, and there is consensus about the nature of that risk. The challenge for us, as law-makers, is how to take the necessary precautions to respond to it. There are three options open to the House. First, as was suggested, we could hope that the risk does not materialise—or think that if it did, we could rush through emergency legislation.
Secondly, some have argued that we could use the existing provisions of the Civil Contingencies Act 2004 if we needed to extend pre-charge detention. I agree with the Home Affairs Committee, the Joint Committee on Human Rights and Lord Carlile that that Act is not appropriate for these purposes. It is probably not even legally capable of fulfilling them, and it is certain that the use of that Act would be a draconian response compared with the proposals in the Bill. However, we have listened carefully to those who have raised that possibility.
Patrick Mercer: The Home Secretary is seeing how difficult it is to build consensus. Will she confirm that when giving evidence to the Home Affairs Committee, of which I am a member, the shadow Home Secretary did not accept an extension beyond 28 days at all?
Jacqui Smith: I have had numerous amicable conversations with the shadow Home Secretary. His proposal of using the Civil Contingencies Act as a response to the risk implies that he, quite responsibly, recognises that there is a risk to which we must determine a response. I argue that that Act is neither legally capable of providing that response, nor appropriate in such circumstances. Our proposals are more appropriate.
David Davis: I am very happy to speak for myself on this. Let me be crystal clear: there is not one shred of evidence for an extension beyond 28 days—full stop. When we deal with Ministers who conjure up nightmare scenarios—whether or not we agree with them, or believe that they are probable—we try to give them answers. As I shall explain in my speech, the answer to the nightmare scenario is the Civil Contingencies Act. I do not think that it will ever be needed, but that is the answer. There is no reason whatever to go beyond 28 days.
Jacqui Smith: The right hon. Gentleman has accepted in his proposition that even if we are talking about a nightmare scenario, as he describes it, it is nevertheless a scenario that exists, and he has proposed a way of dealing with it.
Throughout the process, I have tried to take a constructive approach. That is why we have listened, and have looked closely at the principles of the Civil Contingencies Act, as we were asked to do by the Home Affairs Committee. We have translated key elements of the Act into our proposals. They include provisions to limit any extension to pre-charge detention to exceptional circumstances, and provisions strictly limiting the time for which it is available. Following the consultation, we are not now proposing a permanent, automatic or immediate extension of pre-charge detention beyond the current maximum limit of 28 days. We have moved a considerable way from that option.
Keith Vaz: I am grateful to the Home Secretary for giving way to me a second time. She is absolutely right: we did consider the Civil Contingencies Act, but we dismissed it because we felt that legal difficulties would prevent it from doing what needed to be done in an emergency situation. That brings me back to my earlier intervention. Will she look at the definition of an emergency? We considered a situation in which there were multiple plots at a given time, which overwhelmed the police. We felt that that would be when an emergency would arise.
Jacqui Smith: I am sorry; perhaps I did not make myself clear enough to my right hon. Friend previously. The answer to his question is yes.
We will build on the principles of the Civil Contingencies Act, but we will come forward with our own proposals. First, we propose a reserve power, not to be used lightly, which would mean that a higher limit could become available only if there was a clear and exceptional operational need, and its use was supported by the police and the Crown Prosecution Service and approved by the Home Secretary. Secondly, even if brought into force, the higher limit could remain available only for a strictly limited period—up
to 60 days—with no possibility of renewal. Thirdly, as in the Civil Contingencies Act, the bringing into force of the availability of the extended period would be subject to parliamentary approval by both Houses. Under our proposals, that would need to happen within 30 days. Fourthly, whether any individual is held under that power will be a decision for a senior judge, who can approve periods of detention of up to seven days. Individual decisions about any extension to a person’s period of detention will rightly remain a matter for a judge.
Martin Salter (Reading, West) (Lab): On that point, critics of the Government have argued that Parliament is incapable of having a meaningful debate on the reserve powers mentioned in the Home Secretary’s proposals, but has not the House for many years had meaningful debate on the extension of the prevention of terrorism Act powers? Does the Home Secretary not accept that her proposals would be substantially improved if the House, instead of having to wait 30 days, had the opportunity to vote on the reserve powers within a far shorter time—say, within 10 or even seven days? We could then have a meaningful impact on the process that she is setting out.
Jacqui Smith: First, I agree with my hon. Friend that I am not as dismissive of the House’s ability to play a role in holding a Home Secretary to account as others appear to have been in their opposition to the legislation. Secondly, of course the proposition of using the Civil Contingencies Act would involve a parliamentary decision on whether to bring the relevant order into operation. Thirdly, the issue that my hon. Friend raises is precisely the sort of issue on which I have no doubt that there will be discussion in Committee, where, I give him my assurance, we will continue with the consensus-building approach that we have taken up to now. Under our proposals—
Madam Deputy Speaker: Order. It is obvious that at this moment the Home Secretary is not prepared to give way. I remind hon. Members who seek to intervene that there are further speeches from Front-Bench spokesmen and a time limit on Back-Bench contributions, so interventions should be brief.
Jacqui Smith: Under our proposals, in normal circumstances, no one will be able to be held as a terrorist suspect for more than 28 days—as now. Even in the exceptional circumstances that may trigger the new power becoming available—which we expect to be rare—no one could be held for more than 42 days at most. Other than in those exceptional circumstances, the pre-charge detention limit will remain exactly as it is now. Indeed, that limit will continue to be subject to annual renewal by Parliament. If not renewed, the limit would revert to 14 days.
Mr. Shailesh Vara (North-West Cambridgeshire) (Con): Will the Home Secretary give way?
Jacqui Smith: I will give way again, but I hope that no one will criticise me later for taking a long time.
Mr. Vara: The right hon. Lady has been very generous in giving way. The parliamentary scrutiny to which she refers is a sham, and it would be helpful if she would concede that point. If she wants to, she can get an extension to 42 days without any consideration by Parliament.
Jacqui Smith: I have previously expressed my surprise at the extent to which parliamentarians are willing to call their own activities a sham. The hon. Gentleman may shake his head, but the proposition put forward by the right hon. Member for Haltemprice and Howden (David Davis) to the use the Civil Contingencies Act itself requires parliamentary approval. I presume that he is not suggesting that his right hon. Friend is proposing a sham.
Jacqui Smith: No, I am not giving way to the hon. and learned Gentleman again.
In bringing forward these proposals, I seek to give hon. Members the fullest possible opportunity for debate and scrutiny. The Bill is an important one that has already generated considerable interest both in Parliament and outside, and there are clearly issues of genuine concern to Members on both sides of the House. But from the outset we have tried to take a different approach to this legislation—to be open and consultative and to try to forge consensus where possible. I hope that that approach will carry over into the debate this afternoon—that it will be a positive and constructive one that demonstrates the seriousness and diligence with which the House deals with terrorism.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): Will the Home Secretary give way?
Jacqui Smith: For his effort, I will give way to the hon. Gentleman.
Mr. Carmichael: I am grateful to the right hon. Lady for giving way. All those whom she has prayed in aid in support of her Bill today are those whose jurisdiction extends only to England and Wales. Has she consulted the police in Scotland? Has she consulted Scotland’s senior Law Officer and the head of the prosecution service, the Lord Advocate, and does she have the support of the Lord Advocate—an independent, non-political Law Officer—for the measures that she has brought before the House today?
Jacqui Smith: During the course of the Bill’s development, there has been considerable discussion with representatives of the Scottish Executive, and that will continue during its consideration.
The measures in the Bill are precautionary, proportionate and necessary if we are to have in place protections to deal with the exceptional circumstances that none of us wants to see happen, but which all of us have a duty to prepare for, in case they do. I do not anticipate that even in these circumstances we shall often need to invoke the reserve power. Indeed, it is my sincere hope that we will never need to use these powers. But in view of the nature and scale of the terrorist threat that I have set out today, I would rather
have the necessary powers on the statute book, there for use if we need them, than face the prospect of terrorist suspects walking free because the police have not been given the time that they need to gather evidence and charge them with an offence.
International terrorism presents one of the greatest threats to the UK. In this country we will always respond to terrorism through the rule of law and the criminal justice system. We task our police, our prosecutors and our courts with bringing to justice those who threaten British lives and our way of life through terrorism. They deserve our support as parliamentarians in providing the tools that they need to pursue, to investigate and to prosecute, and they need us to adapt those tools as circumstances change. I commend the Bill to the House.
5.30 pm
David Davis (Haltemprice and Howden) (Con): Where possible, the Conservative party will always strive for consensus on security matters. In this Bill, there is much that we can support, and we will work with the Government to improve and strengthen the Bill in those areas. However, there is a line that a free country cannot cross without convincing justification. I have always taken Benjamin Franklin’s view:
“Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety”.
However, the proposal to extend detention without charge up to 42 days gives up essential liberties without delivering any additional, even temporary, safety. In fact, it is likely to make us less, not more, safe.
Last October, the Prime Minister said that
“the character of our country will be defined by how we write the next chapter of British liberty—by whether we do so responsibly and in a way that respects and builds on our traditions, and progressively adds to and enlarges rather then reduces the sphere of freedom.”
The Prime Minister was right. Regrettably, some of what is proposed today does precisely the opposite.
The Bill contains many detailed provisions. We have called for some of the measures for years, such as post-charge questioning, and we welcome action at last in that area. There are measures that we can support in principle, such as making terrorism an aggravating factor in sentencing, notification requirements for those convicted of terrorist offences and travel restrictions on those convicted of terrorist offences. We may challenge the Government on other issues, depending on their case.
In her speech, the Home Secretary did not cover the proposal to appoint a coroner, to forbid the appointment of a jury and to hold an inquest in secret when terrorism is involved. Why can that not be achieved by having security-cleared coroners and juries similar to those used in secret espionage trials in the cold war? I want the Minister to answer that question when he replies to the debate.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
My right hon. Friend is being too generous to the Home Secretary. Clause 64 allows the appointment of specially appointed coroners and juries to be dispensed with in any cases where the Government
think it in the public interest to do so. Anything that might embarrass the Government could be deemed to be in the public interest.
David Davis: My right hon. and learned Friend has accused me of something that I have never been accused of before—being too generous to the Home Secretary. The simple truth is that the comments by the Secretary of State for Defence in the past couple of weeks on inquests and how coroners should not criticise the Government in any way adds strength to my right hon. and learned Friend’s point. We will test that proposal in Committee and on Report to ensure that it is necessary, proportionate and cannot be provided in some other way. My right hon. and learned Friend has my word on that.
Mr. Henry Bellingham (North-West Norfolk) (Con): Does my right hon. Friend share my concern that bereaved families and their legal representatives could be excluded from the process? Does he agree that the Home Secretary should leave those important considerations on coroners to the draft coroners Bill, which should be introduced?
David Davis: I entirely agree with my hon. Friend. That is one route through the issue. The purpose of an inquest is to provide information to the public, as has been established in case law and statute over the century. I accept my hon. Friend’s point, and, as I have said, we will test it in Committee and on Report.
I am also concerned about the proposal to make it a criminal offence to attempt to elicit information about members of the armed forces that is likely to be useful to a terrorist. Existing laws already cover that point, so I can see no benefit in introducing the provision—again, we will test that point.
We have pressed for a further range of measures, which are entirely absent from the Bill: lifting the ban on using intercept evidence in court to bring terrorists to justice; establishing a dedicated border police force to check for terrorist suspects and fugitives coming in and out of the UK; tightening the rules on extremists entering the UK to preach hatred; and banning radical groups, such as Hizb ut-Tahrir, that serve as an antechamber for terrorism. The Government can and should do much more to protect this country from the terrorist threat that we face, before resorting to draconian measures that sacrifice our fundamental freedoms. Frankly, it is nothing short of perverse that, in the same breath, the Government release guilty terrorists convicted in the proper way, such as Yassin Nassari, while asking for powers to lock up innocent people for six weeks at a time.
I put it to the Home Secretary that the Government are ignoring those very real threats to our security because they have allowed themselves to become fixated on two proposals, two great gestures, that have become the hallmarks of the Government’s security strategy: identity cards—that great white elephant—and the extension of detention without charge. Today, we address the second: the proposal to extend pre-charge detention.
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