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I shall set out what we welcome in the Bill, as well as what we deplore in it. There are good and bad things in what Ministers have brought forward. The good things include the use of intercept evidence in limited cases—in our view, too limited—and the ability to
question people after charge, again in a limited and incipient form. Those are innovations with the potential to help substantially the attack on terrorism, particularly if combined with the benefits of greater flexibility in the decision to charge already being exercised by the Director of Public Prosecutions, as we have heard. It is the innovations in law, together with the innovations in practice through the variation in the test applied by the DPP, which make the bad elements of the Bill both redundant and harder to understand.
Most of my speech will be taken up with attempting to meet the various arguments advanced by the Home Secretary to justify the further extension of the period of detention without charge. We on the Liberal Benches will fight tooth and nail against these provisions, which we believe will prove to be a serious erosion of hard-won freedoms. Just as crucially, the measures will prove to be counter-productive, as we have heard from the hon. Member for Foyle. Effective policing depends on intelligence, and successful conviction depends on evidence and witnesses. These provisions will ineluctably undermine both.
Nor are we persuaded of the need to abandon juries in coroners’ courts or to give the Secretary of State extraordinary powers to appoint special coroners. That may seem a minor matter, but it is far from being so. Coroners’ courts were one of the first and most fundamental bulwarks against the abuse by the state of its monopoly of the legal use of force.
Mr. Hogg: I support the hon. Gentleman’s point. The Bill confers on the Secretary of State the power not only to appoint a special coroner, but to sack any particular special coroner and then appoint another one who is more suited to his or her taste.
Chris Huhne: The right hon. and learned Gentleman reinforces my point. Frankly, this part of the Bill is an outrage against the traditions of this House and our constitutional traditions.
Only if the cause of death could be independently established—this is the history of coroners’ courts—could citizens be sure that there was a whistleblower who would be alert to the corruption of state power. That is precisely why the Secretary of State should not have the right directly to appoint or dismiss a special coroner, and why juries are an essential part of the process of reaching judgments of fact, particularly in cases of death in custody.
We will seek to amend the Bill in Committee before we agree to sacrifice the good elements to get rid of the ugly ones, but there should be no doubt that if we on the Liberal Benches fail to exclude in Committee the provisions for an extension of detention without charge, we will vote against the Bill as a whole. The ugly parts, in their impact and their risks, substantially overwhelm the welcome parts.
Mr. William Cash (Stone) (Con): On the question of tooth-and-nail opposition, will one of the Liberal amendments be to reduce the number of days from 28 to, say, 14 or even fewer days, as was originally intended? What was it that led to this miraculous conversion to the acceptance of 28 days, compared with 14?
Chris Huhne: The hon. Gentleman well knows that, sadly, my party is not yet in a position to carry the House on its own. We look forward to that day, but the reality was that his party was the one that wanted to compromise on 28 days. That is precisely why, to avert the greater harm, we fell in with that proposal. However, I think we should discuss whether it might be desirable to consider regularly, perhaps annually, as we have for other elements of terrorism legislation, whether it is necessary to extend up to the 28 days. My current judgment is that such an extension is justifiable.
It is already possible for someone to be held for four weeks without their knowing what they are charged with or being able to prepare any defence. To extend that to six weeks—a 50 per cent. increase—is deeply intrusive into hard-won civil liberties. Anyone present could, as a result of mistaken identity—there are many such cases on record—be held for six weeks in such a way. Any innocent citizen going about their normal life could be subject to a police and security services mistake.
That has already happened, with three people held for nearly the maximum period under existing law and then released without charge. It was also the case with 23-year-old Mohammed Abdul Kahar and 20-year-old Abul Koyair, after a raid on their home in Forest Gate, London, during which Mr. Kahar was shot in the shoulder. Both were later released without charge. Six Pakistani men were arrested at Gatwick on suspicion of terrorism in January this year, but were later released when it emerged they were all relatives of a key aide of General Musharraf. Mistakes are human. As we have heard from Opposition Members, it is certainly possible for the security services to make serious errors. I make no assumption that the errors are malicious; it is simply in the nature of being human that mistakes are made.
As the right hon. Member for Haltemprice and Howden (David Davis) pointed out, a mistake with terrible consequences was made in the extradition case of Lotfi Raissi, who spent five months in Belmarsh, accused of being a ringleader in the 9/11 attacks on the twin towers. The Algerian pilot suffered extraordinary stress, the loss of his job, blacklisting which denied him his right to fly, and the breakdown of his marriage. The only question now is whether he is entitled to compensation. An even more serious mistake was made by the police in the case of Jean Charles de Menezes. I make this point again merely to remind the House that the law exists to protect the weak, and mistakes can and do happen that can prove devastating for those involved. The incarceration of an innocent person for six weeks is not a matter to be taken lightly.
The Home Secretary argued that the extension may be necessary because of the complexity of information technology, and the sheer scale of evidence and encryption. The point on encryption was devastatingly dealt with by the hon. and learned Member for Medway (Mr. Marshall-Andrews), when he pointed out that someone can be charged on this count alone under part III of the Regulation of Investigatory Powers Act 2000, section 49 of which makes it an offence not to disclose a key to protected information. The maximum penalty—even if we do not go down the contempt of court road that he suggested—is two years’ imprisonment, during which time other offences could certainly be investigated.
For the sake of the argument, however, let us assume that the material can be read. The Home Secretary has also argued that cases are becoming extraordinarily complex. In one recent case that she mentioned, there were three terabytes of evidence on computer—the equivalent of a library a third the size of the US Library of Congress or more than 10 million books. This point is a boomerang for the Government, because an extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed as the Home Secretary implies. Indeed, if it were necessary to read material equivalent to a third of the US Library of Congress within the proposed legal limit of 42 days, I calculate that that would require 238,095 police officers working eight-hour shifts. That is all the police officers in this country, plus 100,000 on loan from a friendly neighbour. [Interruption.] If the Government really believe that this is a cogent point— [Interruption.] Would the Home Secretary like to intervene? If the Government really believe that this is a cogent point, they would need to propose a period of detention far longer— [Interruption.]
Mr. Deputy Speaker: Order. We cannot have sedentary interventions from either the Front Benches or the Back Benches. If the Home Secretary is seeking to make an intervention, perhaps she would do so in the normal way.
Chris Huhne: Thank you, Mr. Deputy Speaker. As I was saying, if the Government really believe that the point about complexity is cogent, they will need to propose a far longer period of detention than 42 days, or even 90 days. Of course, the Government are not proposing such an extension because that argument is entirely spurious. No one searches every document. The police and the security services will have to go on using search engines for key terms as all the rest of us do.
Curiously, even though other countries are faced with similar threats, none of those whose system of law is most directly comparable with ours has chosen to extend the period of detention to anything like the current 28 days, let alone 42. It is true that Canada alone clings to the traditional habeas corpus, with a period of detention without charge of just one day—due, no doubt, to the influence of our sister party over many years.
Pete Wishart (Perth and North Perthshire) (SNP): Why does the hon. Gentleman believe that the Government have this obsession with 42 days? Does he, like me, suspect that it is all about posturing to make them look tough on terrorism and us look soft, and if that is the case, is that not the most ridiculous way to try to take forward this very important issue?
Chris Huhne: I do not know what goes on inside the minds of Government Front-Bench Members; as the hon. Gentleman points out, reading their motives is quite a mystery. Therefore, I will try to deal with the arguments as they are put forward in the Bill and the House, rather than make any assumptions about ulterior motives the Government might have. However, as the hon. Gentleman suggests, playing the numbers game is certainly easier than addressing some of the other means of tackling terrorism.
Mr. Cash: The hon. Gentleman mentioned the crucial question of habeas corpus. Is he implying that the Bill’s proposals somehow exclude habeas corpus? I am sure he is aware that nothing can exclude habeas corpus. Does he not accept that?
Chris Huhne: I was merely referring to the traditional period of one day, and I shall now continue that point by observing that the United States and two other common law jurisdictions—South Africa and New Zealand—have extended the period to two days. Ireland has seven days—as, indeed, we had in extremis when we were fighting the more deadly threat in sheer numbers of republican terrorism. Only in Australia has the period of detention been extended to 12 days, but it is still less than half the period under our own current legislation, let alone under what is proposed. Also, there are specific reasons for doing that in Australia, as the law has significant restrictions on questioning, including time restrictions.
Are all these countries that are so comparable to our own country in their legal traditions so wrong? Are the threats that we face so unique that they require us to abandon our historical safeguards against the abuse of state power? The Liberal Democrats are not persuaded.
Moreover, there is a real risk that these provisions will prove to be wholly counter-productive in the prosecution of terror. Effective policing always requires the co-operation of the policed, without which intelligence is almost impossible to glean. Where will the willing informers be if the British state is seen to have declared war on a minority community? Prosecution requires witnesses to give evidence, but will the witnesses be forthcoming if their families and friends feel that they are aiding and abetting a state that is using disproportionate and discriminatory powers?
These are not idle worries. The Home Affairs Committee has stated:
“Extended pre-charge detention carries the danger, which should not be underestimated, of antagonising many who currently recognise the need for cooperating with the police”.
The Equality and Human Rights Commission astonishingly warned yesterday that if this legislation went through, it might take the Government to court. It also stated:
“In relation to the principle of non-discrimination, the Commission is concerned as to the potentially adverse impact the proposals will have on Muslim and other ethnic minority communities and on community relations more generally.”
“The Commission believes, if the Bill becomes law, this will present difficulties for policing ‘with consent’ and for the prevention and detection of terrorist offences where co-operation and public confidence in the police service is an important consideration.”
Having heard what the hon. Member for Foyle has had to say, I do not seek to draw an exact parallel between the proposals in the Bill and what happened when internment was imposed in Northern Ireland on 9 August 1971. Internment is still the most dreadful warning of what can happen when a civilised and democratic state is seen by a large part of its own community to have stooped to the methods it abhors. Internment triggered a deluge of violence, leading to 25 deaths within the month. The remaining trust, eroded
as it had been, between the Catholic community in Northern Ireland and the security services was destroyed, and the chance of winning hearts and minds had gone for ever. It was arguably the point at which the British state could no longer win the peace. That was ultimately recognised with the end of internment in December 1975.
I should say something at this point about the much-vaunted parliamentary safeguards suggested by the Home Secretary. We are told that this would not be an automatic extension of the period of detention without charge, because Parliament would have to debate the matter. However, the proposals only guarantee that any parliamentary debate would be held 16 days after the maximum length of time that a suspect could be held. By that time, either the suspect would be charged, in which case any debate would be dealing with a matter that was sub judice, or they would have been released without charge, in which case the debate would be academic.
Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): Those of us who were in Parliament in the 1990s were asked to vote year after year on the prevention of terrorism legislation, and we know that on a whipped vote parliamentary scrutiny is not as valuable as my Front-Bench team suggests.
Chris Huhne: I am grateful to the hon. Lady for making that point and giving us a timely reminder of what can happen when enormous public pressures are involved. Other hon. Members have made that point; the hon. Member for Foyle gave a telling example about a former Secretary of State for Northern Ireland.
Mr. Garnier: Further to the point made by the hon. Member for Hackney, North and Stoke Newington (Ms Abbott), what practical consequence does the hon. Gentleman think paragraph 41 and the paragraphs following it in schedule 1 will have on the decision that the Government or the prosecutors have taken to detain someone?
Chris Huhne: The hon. and learned Gentleman is far more versed in these matters than I am, and I would not like to speculate on that point.
I wish to finish discussing this issue by pointing out that, in effect, it would be parliamentary scrutiny of an Executive decision undertaken entirely after the event and without any capacity to influence that decision. If we vote for these provisions, let no-one here pretend that we have done other than extend the period of detention without charge. There will be no vote before the fact—we will not even have the ability to oppose a statutory instrument.
Some have suggested that the period before parliamentary approval should be shortened, perhaps to a week or 10 days. That would improve the provision’s appearance, but the reality would remain fatally flawed. Why? Because we are dealing with a fatal mixing of the legislative and the judicial. If there is to be a debate on whether to extend detention while someone is being so detained, it is surely dangerous for us to look at the matter. What are the Government to say? They are bound to want to give details of the case in a prejudicial manner, noting the extreme seriousness
of the circumstances and so forth. Alternatively, Ministers will clam up and say, “Trust us, but we cannot tell you anything.” Debate will either be constitutionally outrageous or a pointless impossibility. Parliament should make the law, and not get involved in individual cases.
Ministers are entitled to ask what alternatives we would suggest in the face of a heightened threat. The Bill itself makes a good start on doing that, and I hope that we can build on that in Committee. First, the Bill contains the suggestion that intercept evidence would be used only in cases of asset freezing, but it does not go far enough. Such evidence should be admissible in all cases. That would give the prosecution the option to use it, even if it does not want to go ahead for reasons of avoiding disclosure and compromising techniques and sources.
Mr. Carmichael: I am a former prosecutor. Those who suggest that lawyers working in our prosecution service, be they procurators fiscal or those working for the Crown Prosecution Service, are not capable of making those decisions and are not sufficiently well motivated to do so, and that they would want to put our security services at risk when making these decisions do them a grave disservice.
Chris Huhne: I agree with my hon. Friend’s point.
I reiterate that the Chilcot report pointed out various options. Some sort of judicial intervention has proved to be the way forward in both the United States and Australia, and if those jurisdictions can handle the matter, I am sure that we can.
Mr. Hogg: The hon. Gentleman has rightly referred to intercept evidence being available for use, for example with regard to the asset-freezing procedures. Will he also bear in mind the fact that the Bill provides that such material can be excluded from the knowledge of the citizen and that the citizen’s interest be represented only by a special advocate? Does he agree that such an arrangement would be profoundly unsatisfactory?
Chris Huhne: I am open to the possibility—I am sure the right hon. and learned Gentleman has thought this through—that there must be a screening procedure in matters of national security. I understand that that is the case in the jurisdictions of both the United States and Australia. The details of these matters need to be gone through in Committee. I agree with him that we must ensure that proper and adequate safeguards are put in place for the defendant.
It should be possible to continue questioning someone after they have been charged with an offence and not merely, as the Bill proposes, on that particular offence or on terrorist offences, but potentially on others related to it. That would allow an escalation of charges as evidence is assessed and accumulated. Equally, proper safeguards of the sort set out by the Joint Committee on Human Rights must be in place, and those are not contained in this Bill as they should be. I am thinking about video recording, the presence of legal advisers, a prohibition on repeated and
harassing questioning, and so forth. The prosecuting authorities should be able to give assurances to key witnesses, not just about witness protection but about immunity from prosecution.
Perhaps the most important change since this House last discussed these matters has already happened. I am talking about the reduction in the threshold applied by the Director of Public Prosecutions from the 50 per cent. likelihood of a conviction before proceeding with a charge. I heard the debate between the Front-Bench spokespeople for the Government and the official Opposition. When one examines Sir Ken Macdonald’s evidence to the Home Affairs Committee, one clearly sees that the official Opposition have the matter when it comes to the points that the DPP was making. It has never been the case that the CPS has to have a court-ready case at the point of charge, and there is inevitably flexibility in making that decision. That flexibility is precisely what has persuaded some of the foremost advocates of 90 days’ detention two years ago now to oppose an extension even to 42 days. Lord Falconer, the former Lord Chancellor, has said:
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