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Jacqui Smith: As many people have made clear during the course of the debate, there are fundamentally different systems in different countries with different thresholds
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for charging. In Spain, 14 people were arrested in January this year. It was only last week that they reached the stage equivalent to our charging, which means that a form of preventive detention was used that lasted 138 days. There are very different systems in different countries.

There are those who say that the advice of the police is not enough. I agree. Their voice is important, but it is not the only one. Striking the right balance between civil liberties and the rights of all our citizens to live free from terrorist attack evokes strong views. It is important to us all. That is why it has been important to me to consult closely.

Mr. Oliver Heald (North-East Hertfordshire) (Con): If the Home Secretary wants to use this power only in grave and exceptional terrorist cases, why is she not prepared to do so under emergency powers? Is it because she does not want the safeguards in the Civil Contingencies Act 2004? That is what lawyers think. It is also what David Pannick thinks, and it is what I think. Is that not the truth?

Jacqui Smith: Although I have great respect for what the hon. Gentleman says and thinks, let us make it quite clear that the Civil Contingencies Act— [ Interruption. ] No, I am afraid that it is not right. The Civil Contingencies Act would not contain any of the individual safeguards with regard to the review of extended detention by a judge that our proposals include, so it would be more draconian than our proposals.

Mr. William Cash (Stone) (Con): The Home Secretary might have noticed that I have tabled a new clause relating to habeas corpus. Does she accept that habeas corpus depends on whether a person is being lawfully detained? If a person was being lawfully detained under the provisions of the Bill, habeas corpus would not apply. Does she accept the proposals in principle that lie behind my new clause, which would ensure that habeas corpus was available and that the judge would decide the question of whether a person should be detained?

Jacqui Smith: I agree with the principle argued by the hon. Gentleman. It is the principle behind habeas corpus, which is that the court must determine whether it has the power to detain a person. That is already enshrined in schedule 8 to the Terrorism Act 2000, which is the basis of our proposals in our provisions. A detainee will need to be brought before the court after 48 hours of detention and then at least every seven days after that. He or she therefore cannot be detained beyond 48 hours other than on the authorisation of a judge. The hon. Gentleman makes an important point about the principle of habeas corpus, which is enshrined in the principles of the proposals that we are putting forward.

Several hon. Members rose

Jacqui Smith: I am going to make a little progress now. As I said, it has been important for me to consult closely with colleagues from all parties, with the Muslim community and with organisations such as Liberty, and to design proposals to get that balance right.

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Mr. Mohammad Sarwar (Glasgow, Central) (Lab): I want to thank the Home Secretary and my right hon. Friend the Prime Minister for the various meetings we have held to address the concerns about the impact that counter-terrorism legislation has on law-abiding British Muslim communities. What safeguards can my right hon. Friend guarantee to ensure that individuals who are arrested and detained for more than 28 days are fully compensated for the immense damage done to them and to their families and communities?

Jacqui Smith: I am glad that my hon. Friend has been willing to engage in such a constructive way in ensuring that we deliver provisions that safeguard all our people regardless of their background. He identifies the wholly exceptional nature of holding anybody in detention beyond 28 days and for up to 42 days. I know that he, like others in the community, has expressed concern about those who have subsequently been released without being charged, and because of the representations that he has made, I have asked my officials to develop an ex gratia scheme that, because of the exceptional circumstances, would be available to compensate those who had been detained and then released without charge, or who had faced any other executive action. I hope that that offers my hon. Friend some reassurance, both about the exceptional nature of our proposals and about the fact that they are designed to protect all our communities, regardless of their background.

Several hon. Members rose

Jacqui Smith: I shall make a bit of progress.

This is a good example of the consultation and the work that we have been willing to undertake to design the proposals so that we get the balance right. My right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing and I have been doing that for the best part of a year. In fact, my right hon. Friend has been doing it for longer. Anybody who compares our initial proposals from last July with what we are proposing now will see how far we have moved. We are not proposing a permanent, automatic or immediate extension to pre-charge detention beyond 28 days. Instead, the Bill contains a reserve power that could be used only in exceptional circumstances, only with the support of the DPP, only with the backing of Parliament in a vote in both Houses, and only with strong judicial safeguards, and for a temporary period before it automatically lapsed.

Mr. Angus MacNeil (Na h-Eileanan an Iar) (SNP): I am listening to what the Home Secretary is saying, but is this not essentially hollow macho legislation that is not so much about keeping terrorists in detention for 42 days but about keeping the Prime Minister in Downing street for two years? If he falls on this tonight, he will be out of Downing street within 42 days.

Jacqui Smith: If people compare that intervention with the approach that my right hon. Friend the Minister of State and I have taken, they will understand where the charge of being hollow and macho should lie.

We have also made it clear that decisions about the detention of individuals will, as I have explained to the hon. Member for Stone (Mr. Cash), be made by a judge.
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They will involve a full adversarial hearing with the suspect represented, and each extension will be for a maximum of only seven days.

Mrs. Eleanor Laing (Epping Forest) (Con): On the narrow point about the damage that the Home Secretary is likely to do to the constitutional settlement by giving this House and Parliament an effectively quasi-judicial role, which is what she has just outlined, the doctrine of the separation of powers is a delicate balance, which keeps our constitution effective. She is damaging that balance with the proposals that she is making today.

Jacqui Smith: It is wholly appropriate for Parliament to be given the function of approving an order that commences a piece of primary legislation, and wholly appropriate for the courts to assess on a case-by-case basis, as they will do, whether the police and the CPS need more time to collect and examine evidence, so that once that order is commenced, any given individual can be detained for a longer period. That is a completely appropriate use of the parliamentary role, which is separate from the judicial role in overseeing individuals’ detention.

1 pm

Mr. Grieve: I listened very carefully to the Prime Minister’s answer to my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) at Prime Minister’s questions. The Prime Minister told him that Parliament would debate whether there was a grave and exceptional terrorist threat. I have to say to the Home Secretary that that is not what is said in her amendments. Parliament will be asked to approve an order stating that there is an


As the request for the operational need will arise from particular cases, how can that approval be given without the House debating and having information about those specific cases? I am afraid that the Prime Minister is misleading the House on the matter. He may be doing so inadvertently, but that is what he has been—

Mr. Speaker: Order. The hon. and learned Gentleman knows what he must do: he must withdraw that remark.

Mr. Grieve: I apologise, Mr. Speaker. I qualified it; the misleading must have been inadvertent.

Mr. Speaker: Order. The hon. and learned Gentleman should withdraw the remark.

Mr. Grieve: I withdraw the remark.

Jacqui Smith: I think that I made clear what the wholly different functions of Parliament and the judiciary were in the process.

Dr. Nick Palmer (Broxtowe) (Lab): Many of us recognise that in the national interest, in extreme circumstances, a conspiracy may take longer to unravel. We are not tempted to support unprincipled opportunism on this issue. [Interruption.] It is no good shouting at me; it is like shouting at the reflection in the mirror. Like my hon. Friend the Member for Glasgow, Central (Mr. Sarwar), I am concerned that if suspects are detained for six
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weeks, they may have to give up a considerable part of their private lives, and there may be a considerable risk to their jobs and mortgages. Will the Home Secretary confirm that we will give them adequate compensation if they are found to be innocent?

Jacqui Smith: My hon. Friend has raised the point with me before, and I hope that he is reassured by the commitment that I gave my hon. Friend the Member for Glasgow, Central (Mr. Sarwar) about the work now under way to look at taking a wholly exceptional ex gratia approach to compensating those released after 28 days who are subsequently not charged.

In considering the provisions, some have said, “Show me the evidence now that we need 42 days.” I have published evidence of the growing scale and complexity of plots. Frankly, the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate.

Tony Lloyd (Manchester, Central) (Lab): I very much understand the point that my right hon. Friend makes about the evidence that she can give for the need for a period of more than 28 days. It is a matter of practical fact that in one case it took my local police force 27 days, 20 hours and 40 minutes to charge someone. The chief constable is both honest and experienced in terrorism. I asked him whether that period was needed. He said that it was, and what is more, he believes that the time is close when he will need more than 28 days.

Jacqui Smith: My hon. Friend makes a very important point, identifying the challenge facing those whom we task with investigating some of the most serious offences in this country. It is to respond to that that we have brought forward our proposals.

Mr. Robert Marshall-Andrews (Medway) (Lab): The first of the vaunted safeguards is that the power would be used when there was a grave and exceptional terrorist threat. That is defined as circumstances in which there is

Can the Home Secretary give us an example of something that is not a grave and exceptional terrorist threat?

Jacqui Smith: I am rather disappointed that my hon. and learned Friend has not read the new clause in sufficient detail. The last part of the list that he read out is a qualification of the second part of the first definition. I would have thought that with his legal background, he would have been more careful in reading the new clause.

Sammy Wilson (East Antrim) (DUP): Speaking as someone who comes from a part of the United Kingdom that has suffered very badly from terrorism over the past 30 years, I think that the members of our party take very seriously any threat to national security, and any actions that may give publicity to terrorists. On the power that the Home Secretary is seeking today, if the matter is to be debated in the House every time there is a severe threat, will it not give terrorists an opportunity to get the oxygen of publicity that she so much wants to deny them?

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Jacqui Smith: We would bring forward the order that requires a parliamentary debate at times—I believe that they would be wholly exceptional times—when there was a grave and exceptional terrorist threat and it had become clear to the Director of Public Prosecutions and the chief constable that the barrier of 28 days was likely to be met before they finished an investigation. As I have said on many occasions, I believe that that would be wholly exceptional, but when we need the power, it will be extremely important that it is in place.

Several hon. Members rose

Jacqui Smith: I will make a little progress, and then I will give way again.

We have listened to those who say that until now there has been no need to extend the period beyond 28 days. That is why the legislation ensures that there can be no extension of pre-charge detention until and unless the evidence supports it—until there is a “grave exceptional terrorist threat” that might require a longer investigation time.

Mr. Bernard Jenkin (North Essex) (Con): Will the Home Secretary give way?

Jacqui Smith: No. Some have said that we should use the Civil Contingencies Act if we want to detain suspects beyond the current limit. We do not believe that the Civil Contingencies Act, which is designed to deal with events such as floods and pandemics, could legally be used for the purposes of criminal detention, and we certainly need to ask whether the use of that legislation, which would effectively mean the declaration of an emergency, would give a propaganda victory to terrorists; that is the point that the hon. Member for East Antrim (Sammy Wilson) made. Incidentally, the use of that Act would also mean that people could be held in detention not for up to 42 days, but potentially for up to 58 days. That is the basis of my contention that that would be a more draconian approach to dealing with the challenge than the approach that the Government have taken.

Mr. David Winnick (Walsall, North) (Lab): I am grateful to the Home Secretary for giving way; she has been very generous. Will she bear in mind the fact that when the Director of Public Prosecutions gave evidence to the Home Affairs Committee he made the point that if someone was held for 24 or 25 days without at least being charged on reasonable suspicion, it would make the prosecution unsuccessful in many instances? Is that not a factor in deciding whether to go beyond the 28 days? I must say that I am by no means persuaded that there is any justification for what is being proposed.

Jacqui Smith: Of course, because the prosecutors and the police would have such a significant role in determining whether a further investigation would enable someone to be brought to charge, it is their responsibility to provide the Home Secretary with a report, so that consideration can be given to whether to bring in the order.

To return to the Civil Contingencies Act, although we do not think that it is the right vehicle on its own, there are aspects of the approach taken in the Act that we have been able to adapt in the Bill’s proposals, such
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as the need to define the nature of the exceptional circumstances in which the reserve power could be used, and the need to gain parliamentary approval for the use of the powers.

Mr. Gordon Marsden (Blackpool, South) (Lab): I am grateful to my right hon. Friend for giving way. As she knows, this is an issue on which I have had some concerns. Will she spell out some more examples of how the proposal might work in practice, accepting that there will never be an absolute case that can be advanced? Will she particularly touch on the extent to which the involvement of the United Kingdom in events that take place outside the United Kingdom is germane to the argument that she is putting to the House?

Jacqui Smith: I am coming to the detail about the amendments, to show that we have been willing to go further to provide the reassurance that colleagues in all parts of the House have sought. In response to my hon. Friend, first, we are clearer in the Bill about the trigger for any use of the power. The power could be brought into force only where it is needed for investigating serious terrorist offences arising out of a grave and exceptional terrorist threat. People have asked what that means. We know that people have plotted to devastate our transport system, to blow up Bluewater shopping centre and, as I said, to use a dirty bomb. We have also seen plots to ensure multiple atrocities. We have seen plots on an international scale that would have brought death on a considerable scale to British people.

Several hon. Members rose

Mr. Grieve: Will the Home Secretary give way?

Jacqui Smith: The hon. and learned Gentleman is on the Front Bench. He has had plenty of time in the Chamber and in Committee to take up these points.

In response to my hon. Friend the Member for Blackpool, South (Mr. Marsden), that is the order of threat that the provision is aimed to deal with—an event or situation involving terrorism that causes or threatens serious loss of human life, serious damage to human welfare or serious damage to the security of the UK. That set of circumstances is a higher test than originally proposed and is similar to the test in the Civil Contingencies Act.

David Davis (Haltemprice and Howden) (Con): If the Home Secretary is so confident that that is a higher test, why have she and the Prime Minister explicitly avoided allowing judicial review of her decision?

Jacqui Smith: It will be possible judicially to review the Home Secretary’s decision on the basis of reasonableness. I have always been clear about that.

A further safeguard is that the use of the power would be limited to investigations involving only the most serious offences—for example, murder, conspiracy to cause explosions, acts preparatory—that is, those carrying a life penalty.

David Davis: In the Prime Minister’s letter to Back Benchers, he said that the Government do not see judicial review as the way forward. What did he mean by that?

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