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(6) After sub-paragraph (3)(b) of paragraph 33 there is inserted—
“if the judicial authority is satisfied that there are reasonable grounds for believing that the exclusion of the person and/or his representative is necessary in order to avoid any of the harms set out in sub-paragraphs (1) to (g) of paragraph 34(2) below.”’.
New clause 2— Lower threshold for charging in terrorism cases—
‘(1) When deciding whether there is sufficient evidence to charge a person with an offence having a terrorist connection, a Crown Prosecutor may apply the “Threshold Test” for charging if the conditions in subsection (3) below are satisfied.
(2) The “Threshold Test” for charging is met where there is at least a reasonable suspicion that the suspect has committed an offence having a terrorist connection.
(3) The conditions which must be satisfied for the Threshold Test to apply are—
(a) it would not be appropriate to release the suspect on bail after charge;
(b) the evidence required to demonstrate a realistic prospect of conviction is not yet available; and
(c) it is reasonable to believe that such evidence will become available within a reasonable time.
(4) The factors to be considered in deciding whether the Threshold Test of reasonable suspicion is met include—
(a) the evidence available at the time;
(b) the likelihood and nature of further evidence being obtained;
(c) the reasonableness for believing that evidence will become available;
(d) the time it will take to gather that evidence and the steps being taken to do so;
(e) the impact the expected evidence will have on the case;
(f) the charges that the evidence will support.
(5) Where a Crown Prosecutor make a charging decision in accordance with the Threshold Test, the person charged shall be immediately informed of the fact that they have been charged on the standard of reasonable suspicion.
(6) When the person charged on the Threshold Test is brought before the Court it shall be the duty of the Crown Prosecutor to inform the Court of that fact.
(7) The Court shall set a timetable for the receipt of the additional evidence and for the application of the normal test for charging as set out in the Code for Crown Prosecutors.
(8) The Chief Inspector of the Crown Prosecution Service shall report annually on the operation of the Threshold Test in terrorism cases.’.
New clause 3— Bail for terrorism offences—
‘(1) The Terrorism Act 2000, Schedule 8, is amended as follows.
(2) After paragraph 37 there is inserted—
38 The judicial authority with power to extend detention under section 41 has power to release the suspect on bail, with conditions.”’.
New clause 31— Compensation for detention—
‘(1) The Secretary of State must, within twelve months of the date on which this Act is passed, make regulations providing for a compensation scheme (“the scheme”) governing payments made to suspects who are detained under the provisions of Schedule [Amendments relating to period of pre-charge detention] and not charged with an offence.
(2) The scheme shall specify levels of payments to be made to suspects so detained and different levels may be set for different periods of detention.
(3) The Secretary of State may by order vary the levels of compensation set by the scheme.
(4) Regulations and orders made under this section are subject to affirmative resolution procedure.’.
New clause 33— Expiry or renewal of extended maximum detention period: further parliamentary safeguards—
‘(1) The Terrorism Act 2006 is amended as follows.
(2) After subsection (6) of section 25, there is inserted—
“(6A) The Secretary of State and the panel appointed under section 36 must lay annual reports before Parliament on the operation of the extended period of pre-charge detention.
(6B) No motion to approve a draft order under subsection (6) may be made by a Minister of the Crown until one month has elapsed since the publication of the reports laid under section (6A).”.
(a) in subsection (1) for “person” there is inserted “panel of persons”;
(i) for “That person” there is inserted “The panel”;
(ii) for “he” there is inserted “it”; and
(iii) for “his” there is inserted “its”;
(i) for “That person” there is inserted “The panel”; and
(ii) for “his” there is inserted “its”;
(d) in subsection (4), for “That person” there is inserted “The panel”;
(i) for “a person” there is inserted “the persons”; and
(ii) for “his” there is inserted “their”.
(4) In section 36, after subsection (1) there is inserted—
“(1A) A person may not be appointed under subsection (1) unless—
(a) the Secretary of State lays a report on the appointment process before both Houses of Parliament, and
(b) a Minister of the Crown makes a motion in both Houses to approve the report laid under this subsection.”.’.
New clause 36— Power to declare reserve power exercisable (No. 2)—
‘An order made by the Secretary of State under section [ Power to declare reserve power exercisable] shall be treated for the purposes of the Human Rights Act as subordinate legislation and not primary legislation.’.
New clause 37— Power to declare reserve power exercisable (No. 3)—
‘The grounds on which an order made by the Secretary of State under section [ Power to declare reserve power exercisable] shall be subject to judicial review shall include—
(a) that a grave exceptional terrorist threat has not occurred or is not occurring;
(b) that the reserve power is not needed for the purpose of investigating the threat and bringing to justice those responsible; and
(c) that the need for the power is not urgent.’.
New clause 38— Amendment to section 25 of the Terrorism Act 2006—
‘(1) Section 25 of the Terrorism Act 2006 (c. 11) (expiry or renewal of extended maximum detention period) is amended as follows.
(2) After subsection (3), insert—
“(3A) (a) The Secretary of State may only make an order under subsection (3) if she is reasonably satisfied that making the order is necessary for the effective investigation of terrorist offences.
(b) In determining what is necessary for the effective investigation of terrorist offences the Secretary of State must take into account the availability of post-charge questioning, the practice of the Crown Prosecution Service in relation to the weight of evidence required to bring charges and any changes to the relevant law of evidence or procedure since this Act came into force.”’.
New clause 39— Habeas Corpus (No. 2)—
‘(1) Nothing in this Act shall prevent or restrict a person who is detained under this Act or a person duly authorised on behalf of that person from making an application to a Justice of the High Court for habeas corpus.
(2) It shall be a condition of the detention that the person detained shall be produced forthwith to a Justice of the High Court or to a senior immigration judge authorised to sit as a member of the Special Immigration Appeal Commission who shall enquire as to—
(a) the circumstances of the detention;
(b) the enquiries that are being made;
(c) the likelihood of the detained person being charged within 42 days of any offence of terrorism or related serious indictable offence.
(3) If the Justice of the High Court or senior immigration judge is not satisfied as to the likelihood of the person detained being charged within 42 days that person shall be released forthwith from detention subject to any conditions the judge may impose.’.
Government new schedule 1— ‘Amendments relating to period of pre-charge detention
Amendment No. 98, in schedule 2, in page 64, line 25, at end insert—
‘(2) “emergency” means a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.’.
Amendment No. 99, page 64, line 26, leave out paragraph 39.
Amendment No. 100, in page 65, line 29, at end insert
‘if the following conditions are satisfied—
(b) making the derogating power available is strictly required by the emergency; and
(c) the availability of the derogating power is consistent with the UK’s other international obligations.’.
Amendment No. 101, page 66, line 6, leave out sub-sub-paragraph (b).
Amendment No. 102, page 66, line 8, leave out ‘that the Secretary of State is’ and insert
‘the Secretary of State’s reasons for being’.
Amendment No. 103, page 66, leave out lines 9 to 15 and insert—
‘(a) that there is an emergency;
(b) that making the derogating power available is strictly required by the emergency; and
(c) that the availability of the derogating power is consistent with the UK’s other international obligations.’.
Amendment No. 104, page 69, line 6, leave out ‘30’ and insert ‘seven’.
Amendment No. 105, page 69, line 9, leave out ‘30’ and insert ‘seven’.
Jacqui Smith: New clauses 20 to 22, 24 to 30 and 32, and new schedule 1, introduce amendments to strengthen considerably the safeguards that we want to apply to any future use of the provision in this Bill for a reserve power to extend the period for which terrorist suspects could be held before charge. The Government believe that such a reserve power should be available, for use if necessary, to protect our national security and, most importantly, our people against the threat that we face from terrorism.
That threat is real and serious. First, the threat is unprecedented in scale. Some 65 terrorists have been convicted in our courts since the start of 2007, and there are more than 200 groupings and 200 individuals of concern to agencies in the UK today. Secondly, the threat is more ruthless than any we have faced before. It aims for mass casualties, uses suicide methods, and would use dirty bombs given half a chance.
Philip Davies (Shipley) (Con): Nobody underestimates the threat that we face, but if the Government are so determined to clamp down on the threat from terrorism, why does not the Home Secretary, as a first step, scrap the Human Rights Act 1998, which has done so much to stop undesirable people who may pose a serious threat being kicked out of the country? If she is so serious about this, she should scrap that Act.
Jacqui Smith: As I will demonstrate today, I believe that it is possible to find a way both to safeguard our individual civil liberties and rights and to protect the people of this country—and that is what we are setting out to do.
Thirdly, the threat is more complex and international than ever before. Terrorists living and working in our society have learned how to use technology to cover their tracks. They travel a network, sharing experiences and learning from mistakes. Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas. That alone creates huge technological and logistical challenges for investigators.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): On the issue of 42 days, can the Home Secretary explain why she said a few weeks ago on Radio 4 that she had no idea how many days would be required?
Jacqui Smith: Our starting point has always been not the maximum number of days for which it should be possible to hold somebody, but whether there was a case for more than 28 days at all, and what safeguards should apply. I have been very clear from the outset that there had to be—
Jacqui Smith: Just a minute. I am responding to the intervention by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd). There will be plenty of time for other interventions.
I have been clear from the outset that there had to be an upper limit so that no individual could be detained indefinitely. The figure of 42 has been arrived at by assessing with the police and others the minimal additional period that, in our judgment, would make a significant difference in the sort of circumstances in which an extension would even be considered.
Keith Vaz (Leicester, East) (Lab): On the issue of the threat, would my right hon. Friend like to comment on the statement made this morning by Lord Stevens about the state of the threat? Will she also confirm that she or her Ministers have discussed the proposals fully with the Director of Public Prosecutions?
Jacqui Smith: The important point that Lord Stevens made this morning is the point that I was about to make about the threat. Given the ferocity of what is planned and the use of suicide methods, the police may well need to step in early to prevent a plot from coming to fruition. It is that combination of factors that means that police may need longer to get to the bottom of who and what is involved and then build a case on the basis of evidence that is admissible in court.
We have discussed this with the DPP and he has given evidence to the Committee chaired by my right hon. Friend the Member for Leicester, East (Keith Vaz) and the Public Bill Committee.
The nature of the threat and the need to intervene early have meant that the police have had to hold a small number of suspects for the full 28 days since the higher limit was introduced in July 2006. It is this that leads our most senior police officers to say, as Lord Stevens and others have, that they can foresee circumstances when it may be necessary—in order fully to investigate and charge—to hold terrorist suspects for more than 28 days.
Mr. Dominic Grieve (Beaconsfield) (Con): The Home Secretary is aware that the current system for charging places the responsibility for making that decision firmly in the hands of the Crown Prosecution Service. It is on the CPS that the responsibility falls. If the facts given by the Home Secretary mean that police fears are justified, why have the police been unable to persuade the CPS that there is any necessity for the extension? The CPS has to make those decisions, and will continue to have to make them.
Jacqui Smith: It is the responsibility of this House and the Government to make a judgment and to bring forward laws that will then be implemented. If the hon. and learned Gentleman were ever in government, I would be very surprised if he then wanted to take a different approach.
I have described the risk. We cannot wish that risk away, and we should not try to.
Jacqui Smith: I shall give way in a moment. The risk has been identified, and it is for us as law-makers to take the necessary precautions to respond to and cover the risk.
Mr. John Baron (Billericay) (Con): On the issue of complexity, the Madrid bombings involved 29 suspects, investigations spanning seven countries, 300 witnesses and tons of evidence in electronic and paper form. Why did the Spanish authorities need only five days to bring charges, when the Home Secretary is arguing for 42?
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