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What is at stake? It is the principle of habeas corpus—an individual’s right not to be held for prolonged periods without the state bringing criminal
charges against him. That ancient right dates back to the Magna Carta of 1215; it is one of our most basic, fundamental freedoms that millions died defending in the last century. We Conservatives will not give it up lightly. It should be borne in mind that in five years the maximum period of detention has already quadrupled from seven days to 28—the current maximum limit that the House agreed at the time should be used only in the most exceptional circumstances. We heard that argument yet again today.
For non-terrorist cases, the limit is a mere four days. We have by far the longest period of detention without charge in the free world. Incidentally, before I talk about the other countries, I should say that I listened to the Home Secretary yet again confuse pre-charge detention with pre-trial detention. She compared the treatment on the continent with what is effectively remand, not pre-charge detention, in this country. However, putting that aside, which country has the longest period of detention without charge in the common law world? It is Australia, which allows 12 days’ detention without charge. [Interruption.] We can talk about Zimbabwe in a second, if somebody wants me to; I shall come back to that. Canada allows one day. Even in the United States, which suffered the ultimate horror of 9/11, American citizens can be held for only two days before charge. If we were to extend the period still further, we would be in the same league as which countries? The first one, Zimbabwe, has been offered, and even China allows its police to hold suspects for only 37 days.
What is the evidence that might lead us to sacrifice even further this basic, fundamental freedom? There is none. Our senior law enforcement officers do not support an extension, whatever the Home Secretary says. Incidentally, on the question of naming people who have talked to us about the issue, I should say that, given the Government’s track record on the treatment of public servants who in the public interest disagree with them, the last thing I would do is name for the Home Secretary those who have given us evidence on this matter.
The senior law enforcement officers do not support an extension—nor does the senior prosecutor, the Director of Public Prosecutions. I listened with fascination to the Home Secretary trying to square what he said with what she believes. The former Attorney-General does not support an extension, nor does the former head of counter-terrorism at the Crown Prosecution Service. Neither this Home Secretary, nor the previous one, nor the one before—nor anyone else—has provided a shred of evidence that we need longer than 28 days.
Mr. Quentin Davies (Grantham and Stamford) (Lab): Will the right hon. Gentleman give way?
David Davis: I give way to my honourable namesake.
Mr. Davies:
I am grateful to the right hon. Gentleman for giving way. What would happen if—it is not an overwhelmingly likely contingency—he were Home Secretary and after the police had arrested a whole network of terrorists, perhaps after a terrible incident,
they said to him that there was simply no way in which they could get through all the evidence, decrypt all the data and so forth, within 28 days? What if they desperately needed more time if they were to bring charges? What would he do in the absence of the powers that the Bill will give the Government?
David Davis: In a minute, I shall come to exactly the hon. Gentleman’s case and work through it for him; he is getting a bit ahead of himself.
Before he was nobbled by No. 10, even Lord West, the Government Security Minister, said when he was asked that he was not convinced of the need for the extension. I have spoken to the police— [ Interruption. ] The Home Secretary can choose to believe it or not. The police have coped perfectly well in every terrorist investigation that this country has faced to date. She organised some of the meetings, so she knows who they are. Lord Dear, the former chief constable for the west midlands, writing yesterday, said that an extension is unnecessary and that many chief constables agree privately with that assessment. She can challenge that, too, if she wishes.
Madam Deputy Speaker: Order. May I remind the right hon. Gentleman to use the usual forms of address when referring to other Members of Parliament?
David Davis: Of course I will, Madam Deputy Speaker.
The head of MI5 has not even mentioned pre-charge detention when setting out the security challenges that we face, whether briefing in public or in private on Privy Council terms. The most that the Home Secretary can cite is Sir Ian Blair, who offers no evidence at all but merely draws a “pragmatic inference”—her words—that we might at some unspecified point in the future, faced with some unspecified threat, require an unspecified extension of detention without charge. That cannot be a sufficient basis for giving up a fundamental, basic right enjoyed in this country for 800 years.
Jacqui Smith: Does the right hon. Gentleman accept that I actually cited the most senior counter-terrorism police officer in this country, as well as the Association of Chief Police Officers? Will he dissociate himself from the dismissive comments about those senior police officers made by his Front-Bench colleague?
David Davis: The Home Secretary cited Ken Jones, the ACPO chief, at one point. I remember that when he first raised this issue I asked him directly—this is a conversation that I can repeat to her, as can he—whether he had at that point checked with the TAM committee, because I had been told by a member of that committee that he had not, and he said that, honestly, no he had not. I am afraid that the raw truth is that the headline “Senior public official agrees with Government” is an unsurprising one, and that many chief officers are worried about this, for reasons on which I am about to elaborate.
Instead of presenting evidence, the Government have tried, unsuccessfully, to make two hypothetical cases, one of which was mentioned by the hon. Member for
Grantham and Stamford (Mr. Davies). The first is the sort of case originally laid out by Andy Hayman, a previous senior terrorism officer, to justify 90 days. He described a scenario with more than 20 suspects, multiple locations, multiple targets, and multiple computers with encrypted files in different languages and dependent on foreign intelligence—a scenario posing an imminent threat and requiring early arrests. In fact, Operation Overt, the investigation into the alleged plot to attack 10 airliners at Heathrow in 2006, had every one of those characteristics; the court case is going to start this week. It was the biggest single terrorist plot that Britain has ever faced, yet the police were able to charge every suspect within 28 days, and those facing the most serious charge—conspiracy to murder—were charged within 21 days. Of the five held until the 27th or 28th day, two were charged with serious but lesser—significantly lesser—offences based on evidence that the police obtained before the 28 days, and three were innocent. Let us remember this point. Six people in total have gone the full 28 days; fully half those people were innocent. Apart from the natural justice aspect—
Mr. Frank Field: The right hon. Gentleman has cited a whole collection of people who, thank God, have not been affected by bombing outrages. How does he answer my constituent, Andy Brown, who came down to London when working for Liverpool airport to attend a conference to increase access to the airport for people with disabilities, whose body was blown asunder by the London bombing, and who, when he finally returned home, did so without either of his legs? The point that his wife, Jan, puts is that if it is at all possible, by detaining people longer, that we prevent one other family’s life from being destroyed in this way, that is a price worth paying, in that those who have lost their liberty temporarily can be compensated, but there is no adequate compensation for my constituent.
David Davis: The first thing I would say to his constituent—everybody will have enormous sympathy with somebody in that position; of course they will—
Mr. Field: The crucial thing that we are being asked to do is not to exchange names; the electorate is looking at our judgment. None of us knows what terrible events may lie before us between now and the next election. That is what the Opposition will be judged on and what my party will be judged on.
David Davis: The right hon. Gentleman is exactly right. We will be judged on our judgments—the judgment that we bring to bear to improve, enhance and maximise the protection of the public. The argument that I shall continue to make is that the measures proposed will not do that. When the Select Committee on Home Affairs took evidence on the event to which the right hon. Gentleman refers, Rachel North appeared on behalf of the victims. When asked about 42 days, she effectively said, “Not in my name.” I asked the right hon. Gentleman to intervene when he initially said that he objected to the word “innocent”—
David Davis: Whether the right hon. Gentleman likes it or not, I am going to answer the question. He objected to the word “innocent”.
Mr. Field: I said “not charged”.
David Davis: And I am going to give him the difference between the two. He objected to the word “innocent”—
Mr. Field: I did not. I said “not charged”.
Madam Deputy Speaker: Order. Sedentary remarks should not be made.
Mr. Field: He won’t give way—that’s why.
Madam Deputy Speaker: I understand that people want to put the record straight, but there is a way of doing that.
David Davis: The right hon. Gentleman objected. He wanted to say, “Not charged”, and the difference is as follows. I went to see the police who ran that operation, and I talked to them about the three people who were released uncharged. I said to them, “In that case, did you put them on control orders, where the level of proof is lower?” They said, “No.” I asked, “Did you put them under surveillance?” They said, “No.” I asked, “Have you got them under continuing investigation?” They said, “No.” I asked, “Are you telling me they are innocent?” They said, “Yes.” The Home Secretary arranged for me to see those gentlemen and the man who ran Operation Overt. “Innocent” is the word, and the right hon. Gentleman will have to live with it, whether he likes it or not.
Mr. Bailey: Will the right hon. Gentleman give way?
David Davis: No, not for the moment. I have to make a little progress. I shall give way shortly.
I have one other point that relates directly to the constituent of the right hon. Member for Birkenhead (Mr. Field). What does he think that putting three innocent people in prison, in effect, for a month does to community relations and to intelligence? Does it not reinforce the recruiting sergeant for terrorism argument? I shall come back to that point, but how does he think that such action affects the risk to the public at large? The effect would not be what he tries to claim.
What if there were someone, as referred to by the Home Secretary, whom the police felt was guilty, but in circumstances where all the evidence was not available? We have heard in the past few days from the Director of Public Prosecutions. He said that in a terrorist case it is not necessary to have a 50 per cent. probability of conviction before charge—a very important issue. He said that in such cases the criterion is reasonable suspicion. That is the criterion for charging, so what is the criterion for holding beyond 28 days? Presumably it must be less than reasonable suspicion. So what is it? Is it unreasonable suspicion? It simply does not stand up. Reasonable suspicion is a very low criterion, but on that basis we still get 92 per cent. conviction rates.
Jacqui Smith:
The right hon. Gentleman is wrong. The threshold test requires reasonable suspicion, and it
requires that it is likely in the foreseeable future that sufficient admissible evidence will be gained in order to meet the criteria for the full code test, which does require that a conviction is more likely than not. It is not true that the Director of Public Prosecutions has said that one would need less than a 50 per cent. chance in order to charge.
David Davis: The right hon. Lady should look again—that is exactly what he said. The simple truth is that a likelihood of finding evidence in the next couple of weeks gives the police their 42 days. The simple truth is that if the 28-day point is reached, and a policeman has a reasonable suspicion and expects to find the evidence in the 42-day period that the right hon. Lady wants, he can charge. That is why the Director of Public Prosecutions does not agree with her—the right hon. Lady, I beg her pardon. [Hon. Members: “What’s wrong with “her”?] I will be careful.
Beyond that, there are still control orders and the option of surveillance. We are talking about one, two or three cases, and we have not even talked about the ability to use intercept evidence, post-charge questioning or the other measures that we have proposed to alleviate the pressure on the police. Faced with that evidence, the Home Secretary’s predecessor changed ground and put a different hypothetical case. He conjured up a worst case, nightmare, doomsday scenario. “What if there were five Heathrow plots, with five gangs of terrorists acting in a co-ordinated way, aiming to bring down 50 aircraft? We could be overwhelmed,” he said. More recently, the Minister for Security, Counter-Terrorism, Crime and Policing coined the idea of three simultaneous 9/11 attacks. I will leave the House to make its judgment on the probability of that hypothetical scenario.
Rob Marris: There were three simultaneous 9/11 attacks—two on the World Trade Centre and one on the Pentagon.
David Davis: And the Americans take the view that they need 48 hours to deal with that, not 28 days—let us be clear about that. I believe that the Minister meant attacks three times as large as 9/11, but let us move on.
Even in those circumstances, we could be in a position to trigger the Civil Contingencies Act 2004, which allows detention for a maximum of 58 days. I remind hon. Members that we are not proposing an alternative, but saying that the Government already have the requisite powers. We do not say that we believe that such matters will arise and that the Government should therefore put the measure in place. If they believe that such events might happen, they already have the power to deal with them and they do not need others. They have not understood that straightforward case. The Civil Contingencies Act is rightly capable of being challenged and overruled by judicial review if the emergency does not exist. That provision is rightly subject to approval in the House as soon as possible, but within a maximum of seven days. It is rightly available only in a case of genuine emergency. The Home Secretary tried to intimate that, without actually saying it, throughout her speech.
Before the Government say that the Civil Contingencies Act will not work, we have a formal legal opinion from the Government’s lawyer of choice, David Pannick QC. He says, in terms, that it will.
Mr. Robert Marshall-Andrews (Medway) (Lab): Before the right hon. Gentleman leaves alternative periods of imprisonment, I remind him that he mentioned in an intervention the Regulation of Investigatory Powers Act 2000 and its provisions to charge people with refusing to give up encryption. That power also exists under the Police and Criminal Evidence Act 1984 and the Prevention of Terrorism Act 2005. In so far as the refusal constitutes contempt of court, RIPA allows for incarceration, until the encryption is given up and the encrypted material translated, indefinitely—never mind 58 days, but indefinitely. In those circumstances, does he understand the Government’s argument on encryption?
David Davis: The answer is, “Patently not.” The point of my intervention on the Home Secretary was that, to make a judgment on how long one needs—famously, she has had some trouble with that—one has to assess one’s technical capacity. If one does not even know whether one has used one’s full capacity, how on earth can one make a judgment about how long one needs? It is not possible. The judgment is flawed and based simply on a political, not a security, calculation.
The Government have failed to demonstrate that an extension of detention without charge is necessary either on the basis of the evidence or in relation to the nightmare hypothetical scenarios that Ministers have dreamed up. The danger is that extending pre-charge detention—yet again—would make Britain less safe. I am now dealing directly with the point that the right hon. Member for Birkenhead made.
First, such extension risks serving as a recruiting sergeant for terror because it is a disproportionate response, which will drive young Muslim men into the arms of extremists. Let us be clear: that is not a human rights point, but a security warning.
Mr. Bailey: Will the right hon. Gentleman give way?
David Davis: Not at the moment.
Lord Condon—another name for the Home Secretary to play with—the former Metropolitan Police Commissioner, has warned against the proposal:
“I fear that it will play into the... hands of the propagandists, who will encourage young men and women to be misguided, brainwashed and induced into acts of martyrdom.”
The second risk is that extended detention without charge alienates the local community. That cuts off the vital local intelligence, which is crucial to our counter-terrorism effort. Peter Clarke, who was, until his recent retirement, probably the most highly regarded counter-terrorism officer in the country said:
“We must increase the flow of intelligence coming from communities. Almost all our prosecutions have their origins in intelligence that came from overseas, the intelligence agencies or from technical means. Few have yet originated from... ‘community intelligence’”.
Will another extension of pre-charge detention increase the flow of community intelligence? We can read the Home Office’s impact assessment, which was published with the Bill:
“Muslim groups said that pre charge detention may risk information being forthcoming from members of the community in the future.”
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