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7.49 pm

Mr. Ben Wallace (Lancaster and Wyre) (Con): When the Bill was introduced, the Home Secretary said that it was partly the result of lessons learned from previous legislation, such as the Regulation of Investigatory Powers Act 2000, so that those working at the coal face who every day face the threat that we talk about from our comfort zones would be able to put things right. The hope was that it would bring the lessons learned from the past into the present day, but I see no evidence of that in the Bill. Rather it seems to have come off the top of the head of some special adviser or focus group in response to public opinion. The Government have not learned the lesson from the last debate about detention without trial and have decided to reintroduce the measure, despite all the inevitable consequences.

The Bill’s justification is that terrorism is different, that it has severe consequences, and that often the resulting trials are very complicated. But organised crime has severe consequences, too: evidence trails from drug running or any other type of organised crime are incredibly complicated, and the perpetrators of such crime take advantage of technology like anybody else. Paedophiles make exactly the same efforts to cover their tracks. The Government are not introducing proposals today to include those types of crime. Try telling the victims of paedophiles and organised crime that they are not as important as the victims of terrorists. In fact, there are more victims of organised crime and paedophiles than there are of terrorists.

Another justification is that today’s terrorists are different from the previous lot, but that is not the case. Terrorism is always countered in the same way. A number of my Conservative colleagues have personal experience of facing down and combating terrorism. I myself have had many experiences in Northern Ireland and here in countering terrorism when some Government Members were doing their best to prevent us from doing that job. Good counter-terrorism is intelligence-led; it needs community support and informers. Failure means that we all face serious consequences, but failures there are. There is no such thing as a 100 per cent. successful counter-terrorism policy, because counter-terrorism is a premeditated activity, often relying on the coverage given by communities.

I am sure that the Home Secretary did not mean to mislead the House, but one cannot simply compare a straightforward IRA case with a complex al-Qaeda case. Many IRA plots were incredibly sophisticated, extending to countries such as Libya, France and America, involving many people and using technology to avoid detection, and often—much more regularly than the present-day terrorists—they hit their targets, causing 3,000 deaths. The IRA came into this House and blew up one of its Members and bombed the Cabinet. As the hon. Member for Bethnal Green and Bow (Mr. Galloway) said, the IRA used real bombs that worked every time. We should not pretend that because today’s terrorists are different, we should compromise more of our liberties. They are the same.
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They may have more ambitions, but most IRA bombs in the centre of London went off; they were not towed to the car pound by an overzealous car-parking attendant. The IRA were more and more successful, and we should not forget that.

The hon. Member for Foyle (Mark Durkan) is right. He and I would never have seen eye to eye in Northern Ireland. Members of his communities may have been the victims of some of my activities. We would have debated what level of security was right for living with the threat, although we may not have agreed. I am sure that, in my time, we did things that may not have been received sympathetically, but we ensured that we undertook other counter-terrorist activities. Counter-terrorism is not just about convicting; it is often about disrupting terrorist organisations or operations. One day, one is sure there will be a conviction, but one needs the political courage to recognise that one cannot always get it right. One has to admit that sometimes mistakes are made in counter-terrorism.

Counter-terrorism is about a balance between extremes. We could do nothing or we could do everything. We could have internment and Guantanamo Bay. We could even put the pressures on police forces that may have led to the Birmingham Six and the Guildford Four convictions. Getting the balance right so that we protect our liberties while ensuring that we catch the criminals is the important part of the debate. It is an act of political cowardice to go quickly to the extreme. One Labour Member said that one should wear a hard hat in case part of a building falls on one’s head; I can understand that if one is working on a building site, but out in a field one would look ridiculous wearing a hard hat as some form of risk coverage. We must strike the right balance.

The Bill is a missed opportunity. Not one of the 20 recommendations in the report to Ministers from ACPO on RIPA about how to make our surveillance more efficient has been included in the Bill. Instead, there has been an attempt on spurious grounds to lock people up without trial for 42 days—an arbitrary figure if ever there was one.

The Home Secretary likes to say that technology allows terrorists to co-ordinate and hide their activities, but we have huge amounts of technology on our side. We have GCHQ at Cheltenham and the police, and often such technology means that we do not need 42 days, or even one hour, but the Home Secretary will not tell us about the weapons that we have at our disposal—perhaps rightly, for the sake of security. She would rather let it be thought that the advantage is one-sided—that only the terrorists can use technology. The challenge in modern crime-fighting is to stay one step ahead, but that must not be at the expense of our civil liberties. When we do that, we fail not only the victims, but the whole of society. The challenge to the Government is to have the political courage to say to victims of terrorist incidents, that, unfortunately, sometimes we cannot do it all, but we act in the best interests of the whole nation and to defend all our liberties.

7.58 pm

Mr. Andrew Dismore (Hendon) (Lab): The Joint Committee on Human Rights, which I chair, has produced 10 reports on counter-terrorism policy in this Parliament alone, and three are tagged for today’s
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debate. They all start from the same basic premise in human rights law: the state’s positive obligation to protect us all from terrorism and violence, and the state’s duty to prosecute those who are guilty and to make that prosecution more effective.

I agreed with the Home Secretary when she set out her principle that the strongest level of public protection to both secure prosecution and protect hard-won liberties should be the aim. The Bill brings forward improvements such as post-charge questioning, but the debate has rightly focused on pre-charge detention, and I do not agree with the Government on their approach.

Two and a half years ago I voted for 90 days maximum, and at that time I saw no alternative, but now I have changed my view. I cannot support going beyond 28 days for four reasons. First, there is now a coherent, alternative, human rights-compliant package of measures. Secondly, we have active experience of operating the 28-day maximum rule. Thirdly, the Government have not yet made their case for the need to go beyond 28 days. Fourthly, even if the 42-day proposal could be justified, the safeguards are woefully inadequate.

Many of the items in the alternative package were first advocated in our report of July 2006—an alternative system that would enable prosecution to take place more easily and avoid unnecessary detention. We have heard a lot tonight about threshold charging and the ability to charge people on reasonable suspicion of commission of an offence looking forward to what evidence may or may not emerge. We were told by the chief Crown prosecutor that 50 per cent. of terrorist cases are now charged on the threshold basis. We have the new offence of acts preparatory to terrorism, which is very broadly drawn. The combination of the very broad offence and the very low threshold is important. Frankly, if someone cannot be charged after 28 days on a threshold basis with acts preparatory to terrorism, they will not be caught on anything.

On post-charge questioning and the drawing of adverse inferences, I am concerned that we may sleepwalk into that position by consensus, and we need to make sure that we have proper safeguards. We are concerned about the Government response that it will ultimately be for prison governors to decide whether questioning should be allowed.

Mr. Grieve: I want to reassure the hon. Gentleman that while we want to see post-charge questioning, systems need to be implemented to make it effective and fair. Indeed, our judgment is that unless such systems are implemented, the danger to the Government is that post-charge questioning will be successfully challenged and the intention behind the changes will be negated.

Mr. Dismore: I will not go through the particular safeguards, because the hon. Member for Eastleigh (Chris Huhne) has outlined them.

In his evidence to the Committee, the Director of Public Prosecutions said that intercept evidence would be useful along with the acceptance of the Chilcot review. My Committee recommended more specialisation
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within the Crown Prosecution Service drawing on experience overseas of the examining magistrates system, which has actually happened.

My Committee called for more active case management in judicial intervention in 2006. In part, that was an attempt to deal with defence tactics such as the suspects all choosing the same lawyer, which makes it difficult to conduct inquiries. In 2006, the DPP suggested that incentives should be introduced for people to give evidence, which might involve appropriate safeguards, lower sentences and witness protection.

When we visited Paddington Green, the lack of availability of police bail was mentioned—of course, police bail would not apply to major suspects, flight risks or key players. It was stated that there are often people on the fringes who are not flight risks—perhaps they were involved in funding—whose computers could be broken down while they are on police bail, subject to strenuous conditions such as those used with control orders. That recommendation came from the police who deal with such cases. So far, the Government response to that package has been to pick holes in each individual suggestion, and they have not been prepared to consider the package in its entirety. However, they have accepted that some parts of the package would reduce the pressure to go beyond 28 days.

We have experience of the 28-day limit with regard to the airline plot. Six people were held beyond 14 days. Three of them, as we have heard, were released just before 28 days and were innocent, and two of them were charged just before 28 days with acts preparatory to terrorism on the threshold charge basis. So far, because those cases have not come to trial yet, there has been no qualitative analysis of what went on in the police stations—there has been speculation—and we need to see that. The DPP has said that it has managed reasonably comfortably with 28 days, and chief prosecutor Sue Hemmings told my Committee that 28 days has proved to be sufficient.

The Government have not made their case. The consensus approach has been commendable, but my Committee produced a 101-paragraph report on the 42-day issue to which the Government responded in a mere four paragraphs without answering any of our arguments.

MI5 refused to appear before my Committee. It is happy to appear before a committee of editors, but it will not answer questions about the level of threat. MI5 has said that there are a lot more plots and suspects. If there are in fact more plots, it is, of course, worrying, but it could be that MI5 is more aware of the plots that already exist, which is safer. Unless we can probe that point with MI5, we do not know the answer to that question. It seems to my Committee that the level of threat is more or less the same as it was when we dealt with 28 days in this House.

We have heard the arguments about a doomsday scenario—three 9/11s on one day—which would be a civil emergency. My Committee criticised the argument about the Civil Contingencies Act 2004, because the 2004 Act does not provide for pre-charge detention. However, it would not be impossible to amend the 2004 Act, if necessary, to deal with that particular issue.

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There is, of course, an impact on the communities affected. The Government response to our point on threshold charging stated:

That is precisely the point in relation to the problems that would follow the introduction of 42-day detention. The key point is not whether the power is actually used, because the decision in principle would have that effect.

No additional judicial safeguards have been proposed, and the existing safeguards on 28 days are already inadequate. A statement to Parliament and approval by Parliament are not good enough, and we cannot debate those issues properly without prejudicing a trial. Consider how many times in this debate already we have been reminded of the sub judice rule. How on earth can we actually discuss in any meaningful way on a whipped vote the question of somebody’s liberty or continued detention? It is simply not possible to go into the level of detail necessary to consider whether a time limit should be extended for the purposes of a particular investigation. That approach confuses parliamentary and judicial functions.

My Committee wants to see additional safeguards on 28 days. At the moment, the judge is not even allowed to question the basis of the arrest and whether there were reasonable grounds for the arrest. The judicial procedure is not a fully adversarial hearing, and we think that there should be special advocates for the closed part of the hearing and that restrictions on disclosure should be at least subject to an overriding requirement that the hearing be fair.

On habeas corpus, my Committee believes that this Bill and previous legislation exclude habeas corpus. The Government say that there has been no legal challenge, but in fact there was in the case of Nabeel Hussain. The High Court said that it could not review a decision by a High Court judge, and it also found that the warrant of further detention hearing was a judicial hearing. An application for habeas corpus would therefore be struck out as an abuse of process, because of that very judicial hearing.

Many other aspects of the Bill need improvement: post-charge questioning requires further consideration; threshold charging needs more safeguards; the control order regime needs to be looked at; and special advocates are also important. My Committee is extremely concerned about inquests, but I have insufficient time to discuss that matter, except to say that public interest immunity law could provide the answer, because it can apply to inquests.

My Committee will table amendments to give effect to the sort of things that we think should be implemented, based on our previous reports, and I will support the Second Reading of the Bill tonight in order to have that opportunity.

8.7 pm

Patrick Mercer (Newark) (Con): It is a pleasure to follow the hon. Member for Hendon (Mr. Dismore). I am delighted to hear that he has changed his view from
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supporting the 90-day limit, which we discussed some time ago, to supporting a limit that in my view is still far too overblown.

I want to discuss two things—consensus and history. I was extremely pleased to hear my hon. Friend the Member for Wycombe (Mr. Goodman) discuss the al-Karam school in my constituency, which has achieved such notable results not only in terms of a reasoned and thinking approach to the problems that we have discussed today, but in terms of academic results. I have listened to those Sufi gentlemen at length, and I hope that I have absorbed a great deal of what they have to say.

On consensus, the threat that we are discussing today will certainly become a reality. Every day that passes, I think that the clock is running down before we experience a serious, concerted and lethal attack against this country. When that happens, I hope that Labour Members will not engage in cheap political point scoring about the views expressed by Conservative Members and some other Labour Members. It concerns me that there is a huge amount of cynicism over a subject that should be well above party politics.

I want to pick up the points that the hon. Member for Foyle (Mark Durkan) has made so eloquently. I think that I am the only Member in the Chamber at the moment who has experienced internment—at least, it was internment from my side of the equation. I know that the hon. Member for Foyle has clear views on internment, but I want to use it as a yardstick of history to talk to the Government, without in any way trying to patronise them, about the problems that I saw as a young officer through 11 tours in Northern Ireland in the ’70s, ’80s and ’90s.

I joined my battalion in 1975. Internment had come and gone, but I and many others had to try to pick up the pieces of that deeply flawed policy, which aided and abetted terrorism. Personally, I think that if we had not gone into that particular cul de sac, we would certainly have brought the IRA to its knees—perhaps temporarily—by about 1980. We had another two decades of trouble. Many of my friends were killed and injured in Northern Ireland, and I salute their memories. I very much hope that the Government look at the lessons of history and do not make the same mistakes and errors that were perpetrated all those years ago in Ulster.

To pick up the point made by the hon. Member for Bethnal Green and Bow (Mr. Galloway), I should say that I fully acknowledge that this terrorism is not of the same nature. The IRA was visible and it killed and injured almost daily, despite the fact that big mouths such as me reckoned that we had them taped—of course we had not. The fact remains that in summer 2006, our enemies intended to bring down up to nine aircraft and kill in the region of 3,000 passengers and as many people as possible on the ground when the aircraft crashed. On top of that, our enemies intended to fracture both the international relationship between the United States and the United Kingdom and a coalition that—rightly or wrongly—was pursuing war on two fronts and carrying out the so-called “war on terror”, which is not a phrase that I like to use.

Those grand strategic aims put the IRA’s campaign into a completely different light. Yes, the IRA killed, yes it was visible—but it killed dozens rather than
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hundreds or thousands. It is against that latter eventuality that we have to prepare ourselves. In my view, 14 days is quite enough. I operated in Ulster with seven days, and we made that work. However, we are where we are; to me, 28 days is more than we need, and that is underlined by the fact that nobody—with one possible exception—has had to be detained for that length of time.

My next point is that, as Lord Dear said, our enemies will use the issue as a propaganda coup if we take it any further. Our enemies are not amateurs; they are not just ignorant gunmen or bombers. They do not wish to throw away their lives unnecessarily. They fully understand that they hurt us not just with bombs and bullets; a liberal democratic society is probably hurt more by propaganda. If we hand them this tool, they will use it mercilessly. First and foremost, they will use it in exactly the same way as the IRA did—to suggest that this is a racist or anti-religious Act directed purely and simply at the Muslim community. In the same way, the IRA suggested that internment was directed purely at Roman Catholics. That was not true, but it was enough that the IRA managed to persuade the international media that it was.

On the “Today” programme this week, that precise point has been made—that if the Act goes through, it is likely to conflict with race relations legislation. Whatever the truth and reality and no matter how lawyers argue, the Act will be perceived as anti-Muslim. It will act as the most perfect recruiter. I do not wish to labour the point, but let us remember those who were improperly detained in Northern Ireland under internment. They were completely innocent. They may have been republicans, but they were innocent of violent acts. When they returned to their communities, they became magnets—the most powerful advocates of the twisted version of the republican cause. I believe that we have already seen something similar in the operations at Forest Gate and the like, as a result of which recruitment for jihadists who would wish us ill has leapt ahead.

Sammy Wilson (East Antrim) (DUP): The hon. Gentleman is making a powerful point that resonates with many of us from Northern Ireland. However, does he not also accept that almost any piece of terrorist legislation will be interpreted in exactly the way he has described by those who wish to use it as a propaganda tool?

Patrick Mercer: I take the hon. Gentleman’s point entirely, but I would say this: we have gone far enough. We have legislation that takes us to 28 days; to my mind, we are lucky to have got away with that as much as we have. If we go any further, I suggest that we will hand a perfect victory to our enemies.

My last point has already been made. The one effect that we noticed when internment finished was that intelligence sources across the political divide dried up. The “carefully nurtured” touts, to use an Ulster phrase, whom we had turned, deployed and made to flourish—whom we were paying, frankly—suddenly ceased to provide the crucial golden flow of intelligence and information.

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