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“If it is not necessary because you don’t need it to fight terrorism effectively, then you shouldn’t do it. I strongly believe that the debate about should it be 28 days, 42 days or 90 days has moved on because of the threshold standard. We should recognise that we have addressed effectively the question of the time it takes to investigate”.
We also have this on the authority of Sir Ken Macdonald, the DPP. In his evidence to the Home Affairs Committee, to which I referred when I intervened on the Home Secretary, he stated that
“if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible.”
The full code test is that the prospect of conviction is more likely than not. Sir Ken went on:
“I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period”.
Sir Ken made it clear that he was satisfied with the position as it stands in respect of detention without charge. The Government’s attempt to pray him in aid of their position is quite wrong.
Moreover, Sir Ken’s approach is working. He makes that clear in an interview with The Times today, which has appeared with felicitous timing. The figures suggest that the DPP and the CPS have more room to amend their judgments about charging beyond the flexibility that they have already described. If the charging decision were broadly in line with the policy as it has been declared to the Home Affairs Committee—that is, that a prosecution would be more likely than not—we would expect a broadly equal balance of convictions and acquittals at the end of the trial. However, the CPS special counter-terrorism unit has enjoyed a 92 per cent. conviction rate against 77 per cent. in other trials. Since the beginning of last year, Sir Ken’s figures show an extraordinary consistency. The conviction rate, including those who plead guilty, is 92 per cent. for cases that concluded last year and 92 per cent. for the
cases so far this year. There is clearly a lot of room left, in his judgment, to continue to apply flexibility.
The Liberal Democrats accept that our society faces a serious threat from al-Qaeda and from terrorism. In certain respects, the threat is greater than it was during the long fight against republican terrorism. These terrorists are not afraid to die, they do not give warnings and they want to cause mass casualties. We do not deny the need to reinforce our defences against such a threat or to ensure that we have the legislative powers to deal with it. However, the argument is a debate about means, not ends. The means that the Government have proposed are not proportionate to the threat and are not grounded in the reality of the response from many ethnic minority communities. They run a terrible risk of being counter-productive.
Some elements of the Bill are struggling to emerge as an alternative approach to the prosecution of terrorists: the use of intercept evidence and post-charge questioning. There is emerging consensus on an approach that does not play the numbers game with the days of detention but would implement practical measures that are consistent with our traditions. We will not vote against the Bill on Second Reading because we aim to nurture that approach and to delete the destructive positions for increased detention without charge that could in our view prove injurious to civil liberties and the successful prosecution of terrorism. Whatever else, we must never become what we are fighting.
Let me end with an appeal to the Home Secretary. We are in favour of consensus. We strive for it. Yes, there is new consensus. It encompasses the Liberal Democrats, the Conservatives, many Labour rebels, Justice, Liberty, Sir Ken Macdonald, Lord Goldsmith, Lord Falconer, former chief constables such as Lord Dear, the Joint Committee on Human Rights, the Home Affairs Committee and the Equality and Human Rights Commission—the list goes on. If the Government were serious about consensus, they would realise that public and expert opinion does not want a further extension of pre-charge detention. They should join the consensus now and amend the Bill.
6.45 pm
Keith Vaz (Leicester, East) (Lab): The Home Secretary, the shadow Home Secretary and the hon. Member for Eastleigh (Chris Huhne) have reminded the House of the importance of the debate. The Home Affairs Committee concluded last year:
“It is clear both from the evidence given to us and from other sources...that the terrorist threat facing the UK is real, acute and growing.”
The common cause among all parties, regardless of their views on the extension of the period of detention, is the acknowledgement that terrorists want to destroy our way of life, our liberty and our democracy. We know this from the country’s leading authority on security, the MI5 director general, Jonathan Evans. Last November, in a speech to the Society of Editors, he estimated that at least 2,000 individuals posed a direct threat to our security and added:
“There remains a steady flow of new recruits to the extremist cause”.
That is the highest number ever, and there is no sign of its reducing.
An important role of a Government, if not the most important, is the protection of their citizens. In the aftermath of the 7/7 attacks in 2005, the Government and Parliament have been engaged in a constant debate, most notably on the power to detain individuals suspected of terrorist offences without charge, and on the fine judgment that has to be made on the balance between individual liberty and collective security. There is now a new world order, with new dangers and a need for new ways to deal with them.
I want to welcome the conciliatory and open-minded approach of the Prime Minister and the Home Secretary in developing the Bill. Its provision on pre-charge detention has moved significantly from the proposals that we first heard last July. Since the Government’s bid for 90 days, the rhetoric has been abandoned. In fact, they have accepted most of the Select Committee’s recommendations. The Home Secretary has appeared before the Committee twice and answered more than 149 questions. She has met many right hon. and hon. Members.
During the Committee’s inquiry, which we extended, we took evidence from a wide range of people and groups. Many of them have been referred to already: the Director of Public Prosecutions, Sir Ken Macdonald; Lord Goldsmith; Shami Chakrabarti from Liberty; the Metropolitan police; the Forest Gate Two, Mohammed Abdul Kahar and Abul Koyair; and the Opposition spokespersons, the right hon. Member for Haltemprice and Howden (David Davis) and the right hon. Member for Sheffield, Hallam (Mr. Clegg).
Mr. Carmichael: Given that the Bill has UK-wide application, did the right hon. Gentleman consider requesting evidence from the Scottish Law Officers?
Keith Vaz: Scotland has its own Committee structure and its own Ministers, so we did not seek evidence from those Law Officers.
In our report published in December, we concluded that neither the police nor the Government had made a convincing case that the limit of 28 days was inadequate. The DPP told us that
“our day-to-day experience as prosecutors has been that the 28-day period has been useful and effective.”
He repeated that view, as the hon. Member for Eastleigh said, in The Times this morning. That is the view of the man who has to agree that there is enough evidence to prosecute.
In a report produced under my predecessor in 2006, the Committee stated that
“the current limit may prove inadequate in future owing to the growing number of cases and the increase in suspects monitored by the police and security services make it entirely possible, and perhaps increasingly likely.”
Sir Ian Blair, the Metropolitan Police Commissioner, agreed with that proposition. Others who gave evidence to the Committee from all parties accepted the notion of very exceptional circumstances. Indeed, Liberty, which counts among its former officers two leading members of this Government over the past 10 years, proposed the use of the Civil Contingencies Act 2004 in such circumstances. However, the majority of the Committee deemed that that would be unworkable in
such exceptional circumstances—such as a national emergency—and it was felt that there were significant legal problems.
Ms Abbott: Does my right hon. Friend accept that, contrary to the suggestion that we sometimes hear from the Treasury Bench, at no time has Liberty said that it will accept an extension beyond 28 days?
Keith Vaz: I agree with my hon. Friend. She is absolutely right that Liberty has never accepted that there should be an extension. However, the Committee concluded by a vote of 11 to one, with my hon. Friend the Member for Walsall, North (Mr. Winnick) opposing, that:
“If, in...exceptional circumstances, a temporary extension of the pre-charge detention period is deemed essential to secure successful prosecutions of terrorist suspects, the Government should consider building support for proposals that effectively reform the powers of the CCA, secure Parliamentary scrutiny and judicial oversight, but stop short of the requirement to declare a full-scale state of emergency.”
I am grateful to all the members of the Committee who took part in our deliberations, particularly the hon. Members for Newark (Patrick Mercer) and for Reading, East (Mr. Wilson), who did a special amount of work to try to reach the compromise that the Committee finally accepted.
I am pleased that our recommendations have assisted the Government in formulating their proposals. The Bill contains many of the safeguards that we recommended. I also welcome their reliance on the consent of the Director of Public Prosecutions. However, there are three imperatives that I want the Home Secretary to deal with vigorously over the next two months.
First, I remain concerned about the length of time that may elapse before Parliament has to approve the reserve power of extended detention, because 30 days is too long and too late for effective parliamentary scrutiny. Involving Parliament earlier would allow for more transparency, better scrutiny and better accountability. Secondly, there must be a genuine national emergency. That was envisaged by the Committee as the discovery of multiple and complex plots aimed at causing massive loss of life, the extent of which would
“overwhelm the capacity and resources of the police and security services.”
That definition is different from what the Government have in the Bill. I was pleased to hear from the Home Secretary that she was prepared to think about the definition of an emergency.
Thirdly, this place is the last place that should do anything that would act disproportionately against the Muslim and wider south Asian communities. It is a matter of record—some of the studies were referred to by the Front-Bench spokesmen of both Opposition parties—that members of the Muslim community are disproportionately affected. We should bear in mind the words and experience of the hon. Member for Foyle (Mark Durkan). I do not understand the Northern Ireland issue as well as I ought to, but I listened with great care to what he said about the impact that detention powers had not just on his community in Northern
Ireland but on the Irish community in this country. That is why we have to tread very carefully. I want to see positive engagement by the Government with the communities affected. Without their co-operation and engagement with decision makers, I am afraid that we cannot win this fight.
I welcome a number of other aspects of the Bill that the Government have accepted further to our report. We concluded that the possibility of post-charge questioning would be an important tool in securing prosecutions. I am very pleased that that recommendation has been accepted and features in the Bill, along with the codes of practice that were also recommended. The Committee was also clear that it was ridiculous that British prosecutors could not use intercept evidence in court. The Prime Minister has accepted that in principle in his statements to the House on security issues, although of course there are issues that need to be considered.
I am therefore happy to support the Bill on Second Reading. It contains valuable and worthwhile proposals in the fight against terrorism. I accept the need for reserve powers, but in very exceptional circumstances, which I believe still need to be defined in the Bill. I hope that in Committee, the Home Secretary will work to build the consensus necessary to convince the House that the safeguards that she has proposed will meet the concerns that have rightly been raised and deal with the three imperatives that I have mentioned. As I said earlier, I am pleased that she is prepared to consider at least one of those points. We know that in the current climate some of our precious liberties have to be sacrificed for the protection of the public. None the less, although terrorists do not stop and question the rights and wrongs of what they do, we must—or we will become what we seek to destroy.
6.54 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): It is a pleasure to follow the right hon. Member for Leicester, East (Keith Vaz). He is entirely right to say that there is always a difficult balance to be struck between individual liberty and collective security. Speaking for myself, my presumptions always favour the former. Save in exceptional circumstances, I do not ever favour the latter. It is from that perspective that I approach the Bill, which I think favours the state too much at the expense of the individual. Left to my own devices, were there to be a Division, I would vote against the Bill in the Lobby. I regret that our fire will, I think, have to be postponed until later stages.
Before I say anything about the Bill in detail, I have three preliminary points that are relevant to the totality of what I want to say. First, we need to keep in mind the fact that there have been four substantial pieces of legislation since 2000 that have touched on terrorism. Indeed, a whole host of other powers and offences are relevant. When there is an argument for change, a compelling case for it has to be made.
Secondly, and differently, we need to keep in mind the fact that when we give powers to officials, those powers are always capable of being abused, and almost certainly will be. When we consider the implementation of powers, we should never do so from the perspective of the ideal implementation, but always from the perspective of abusive implementation.
My last point, too, is related to that. We must remember that when the House surrenders powers to the Executive, we never get them back. The effect is cumulative. Whenever we examine a Bill that surrenders powers, we must keep in mind not just the present but the past and the prospective. The overall weight is what ultimately matters.
The Bill is important, and I had hoped to have more ample time to concentrate on five matters: pre-charge detention, inquests, restrictions on the press and whistleblowers, asset-freezing proceedings and post-charge questioning. I recognise that in the five minutes and 40 seconds remaining to me, I will not have an opportunity to do that. In any event, right hon. and hon. Members who have spoken about pre-charge detention, particularly my right hon. Friend the Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, have said all that I could sensibly say about that. I shall therefore concentrate on matters that have, perhaps unfairly, received less attention.
Oddly enough, the first such matter is inquests. The changes with regard to inquests are very important, and it is indicative that the Home Secretary did not refer to them at all. I suspect that she had a good reason not to do so, as I am about to outline. Let us keep in mind the fact that the changes to inquest law are being made against the background of the Defence Secretary going to the High Court to try to restrict a coroner’s ability to reach unflattering verdicts. I acknowledge at once that jury trials in inquests are relatively rare, but they can be very important, especially when there is a need to secure public acceptance of the verdict. That was the motive behind the decision of Lord Justice Scott-Baker in the Princess Diana inquest—and quite right, too.
The Bill does two things with regard to inquests. First, it gives the Secretary of State an unappealable right to dispense with juries in circumstances set out in clause 64. Those circumstances are if the Secretary of State thinks that it is in the national interest, or that having a jury would imperil the relationship between the United Kingdom and another country, or that it is
“otherwise in the public interest”—
an all-embracing phrase. Such a decision will be unappealable, subject to judicial review. I can well understand that a Government faced with defaults on the part of its agents would conclude that it was not in the public interest for society as a whole to know about those faults.
The second limb has to do with the relationship between the UK and another country. Let us say that one of the people on the special rendition planes died, and that the person had been dead when the aircraft was on British soil. I can see that this Government would say, “Oh, no, no, we don’t want a jury-based inquest into that; it might imperil our relationship with the US.” This is very dangerous stuff.
Mr. Garnier: My right hon. and learned Friend has experience as a Minister and as a senior member of the Bar. From his experience, can he recall any espionage case that was tried with a jury at the central criminal court, say, from which national security information has leaked to the detriment of the state?
Mr. Hogg: I do not think that I would go as far as that. I am not sure that I could agree with that proposition.
My other point about inquests has to do with coroners. In clause 65, the Government are taking unto themselves a very interesting power. For reasons of the public interest, the Government can sack an ordinary coroner and replace him or her with a specially appointed coroner. If the latter does not come up to snuff either, he or she can be sacked too, and another appointed instead. Those are the hallmarks of an authoritarian Government, and we should have no part of it.
Another part of the Bill has received no attention at all, save glancingly from my right hon. Friend the shadow Home Secretary. Clause 69 deals with whistleblowers and the press, and on the face of it, it is a wonderfully innocuous provision. It makes it a criminal offence to elicit or publish
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