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11 Jun 2008 : Column 325

Jacqui Smith: The right hon. Gentleman knows that he has made the case to me for the widening of the scope of judicial review. In our view there is an important role for Parliament to play in the process. There is an important role for the judiciary to play in determining the reasonableness of the Home Secretary’s decision, and the individual decisions about an extension of pre-charge detention in any given case. I believe that that is an appropriate use of judicial oversight and review and parliamentary decision making.

Several hon. Members rose

Hon. Members: Give way!

Jacqui Smith: No, I will not.

Mr. Speaker: Order. The Home Secretary is here to put her case to the House. All the interruptions are causing other hon. Members not to be able to hear the case that is being put. That is unfair in many ways. I ask hon. Members to try to use some measure when they ask to intervene. Some of us know that that is a way of allowing hon. Members to put their own case on the record. They should be careful about that.

Jacqui Smith: Secondly, our amendments will strengthen the role of Parliament, bringing forward the vote on the Home Secretary’s making of the order from 30 days to seven days. On making the order, the Chairs of the Intelligence and Security Committee, the Home Affairs Committee and the Joint Committee on Human Rights will be informed of the decision, and we will seek and publish legal advice for Parliament.

1.15 pm

Bob Spink (Castle Point) (UKIP): I am grateful to the Home Secretary. She is being extremely generous. Perhaps it would help the House if she explained whether she envisages that the circumstances of intelligence revealing that there was a specific and serious threat—for instance, against the people working in the City of London or in other areas of London—would operate the trigger that she referred to. About 8,000 of my constituents work on the front line of the world terrorist threat in London. Anything she can do to improve protection of them will be much welcomed by the country.

Jacqui Smith: The hon. Gentleman well understands the nature of the threat that we face. It aims to cause mass casualties among the sort of people that he describes. That is the type of serious terrorist threat that we are seeking to tackle. He is right to remind us whom we are trying to protect.

Thirdly, our amendments reinforce the temporary nature of the power, reducing the length of time that it can be in force from 60 days to 30 days, with no renewal at the end of that period. In addition to that, there are other safeguards. Individual detention beyond 28 days would, as under present proposals, be considered by a judge. Any application for an extension beyond 28 days would require the approval of the Director of Public Prosecutions. The judge may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that further detention is necessary for the investigation of a serious terrorist offence.


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The independent reviewer will report within six months of the reserve power ceasing to be available. A parliamentary debate will take place on that report, which will cover whether, looking back, individual suspects were held in accordance with requirements governing detention, whether proper procedures were followed for applications for detention beyond 28 days, and whether it was reasonable in all the circumstances for the Home Secretary to make the order.

Martin Salter (Reading, West) (Lab): I thank my right hon. Friend for giving way, for the way in which she has conducted the debate through both the Home Affairs Committee and the Public Bill Committee, and particularly for the safeguards that have been put in place. Does she agree that it would have been preferable, when we had the debate on 90 days, to have gone through a similar process and for the safeguards to have been written in at that time? Would that not have saved the Government some embarrassment? Is there now no excuse for colleagues who voted for 90 days to have serious reservations about what is proposed today?

Jacqui Smith: I believe that the threat now is greater and the safeguards are more real. I therefore hope that we can achieve the support of the House for our proposals.

Richard Ottaway (Croydon, South) (Con): The Home Secretary will have heard the Prime Minister saying no fewer than four times during Prime Minister’s questions that he was relying on advice from the security services. She will also be aware that the website of the security services said that the security services were neutral. Something has clearly changed since that statement was made. Will she publish the security services’ advice on the matter?

Jacqui Smith: As I spelled out when I was speaking about the nature of the threat, one of the arguments for what we are proposing is the growing scale of the threat that we face. It was the director general of the Security Service at the end of last year who identified the concerns about 2,000 individuals, 200 networks and 30 plots in this country. It is his description of the scale of the threat that has led us to consider what sort of response we need to make.

Simon Hughes (North Southwark and Bermondsey) (LD): Clearly, the Government have rowed back from their original 90 days, but there has always been the qualification that it is possible to restrict the liberties protected by the convention—the words are there—when something amounts to a public emergency threatening the life of the nation, so why does not the Home Secretary rely on that, like all other countries do? Why have we seen every few years under this Government an increase in the powers of the state over the citizen, when no other comparable country equally threatened has thought it necessary to move in the same direction?

Jacqui Smith: I am not completely clear what the hon. Gentleman is arguing, but I have spelled out the nature of the threat that we face, the requirement on us to take that threat seriously and the proportionate way in which we are addressing that. That is the basis of what we originally proposed in the Bill and it is strengthened by the amendments that I am putting forward today.


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Ms Karen Buck (Regent's Park and Kensington, North) (Lab): My right hon. Friend is absolutely right to argue that the Civil Contingencies Act and the invocation of a state of emergency would be wholly the wrong approach and would give the oxygen of publicity to terrorists, but I, and I am sure others, remain deeply unconvinced that the proposed definition would not effectively catch almost all forms of terrorist activity, and would therefore not constitute an exceptional circumstance that generates the need for exceptional powers.

Jacqui Smith: That is why the definition that we have set down requires serious loss of life or serious impact on human welfare, and it is that arm of the definition that is qualified by the list beneath it or serious threat to national security. I am willing to discuss this at further length with my hon. Friend and others, and I have no doubt that it will be scrutinised in detail when the Bill arrives in the House of Lords, but our intention in proposing the definition was precisely to limit the circumstances in which it will be possible to use the power. I hope that my hon. Friend accepts that that was the intention. It was also the reason why, in a spirit of developing consensus, we looked extremely closely at the wording in the Civil Contingencies Act, and built our definition on that. It is stronger than what we originally proposed, and I believe that it will tightly define the circumstances in which the power can be used. Of course that will quite rightly be subject to further scrutiny, not only today but when the Bill reaches the House of Lords.

Mark Durkan (Foyle) (SDLP): Earlier today the Prime Minister told us that, under the Bill, the Home Secretary would make a statement in the House showing that there was a grave exceptional threat. In fact, the Home Secretary will have to make a statement saying only that there is a grave exceptional threat. Those words are not a requirement for the triggering of the power; they are simply a requirement of parliamentary liturgy that we will have to go through.

Jacqui Smith: It is the role of the Home Secretary to make the order, but it is an important parliamentary safeguard that the making of the order has to be approved by Parliament. As I have said previously, Parliament’s role in approving the order is not a negligible or an insignificant safeguard. I am constantly surprised at parliamentary colleagues who believe that their role is so insignificant in the thinking of a Home Secretary. Trust me—Home Secretaries think very carefully about what they have to explain to Parliament and what they need to have approved by Parliament.

Mr. Mark Harper (Forest of Dean) (Con): I want to take the Home Secretary back to the exchange that we had during Home Office questions on Monday, when I challenged her on her admission in her conversation with Andrew Marr during his programme on Sunday that the security services were not pressing for this extension. She said that I was “plain wrong”. I looked at the transcript, and that is exactly what she said. As my hon. Friend the Member for Croydon, South (Richard Ottaway) made clear, the director general of the Security Service made it clear that it is neutral on this matter; it is not pressing for it. So for the Prime Minister and for her to say that they are following the advice of the security services in bringing this forward is just plain wrong.


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Jacqui Smith: The hon. Gentleman is just plain wrong again. I have been very clear in my response as to what the director general of the Security Service has said on the record about the scale of the threat that we face. It is the scale of the threat that we face that is at the heart of the proposals that we are bringing forward and the way in which we seek to address them. If the hon. Gentleman wants to make debating points about the scale of the threat, that is up to him, but I believe that this is a serious threat that we need to address.

Terrorism is an assault on our civil liberties, on our democracy and on our values. Our response to terrorism must continue to be based on those values and liberties, ardently pursued through our democratic framework, primarily through our criminal justice system. But we cannot allow ourselves to be lulled into a false sense of security that might lead us to put at risk the liberty of all in Britain to live lives free from the threat of terrorist outrage and atrocity. In opposing terrorism, we must not lose sight of our values. For me, getting the balance right between individual freedom and collective security must always be at the heart of what we do. Our response must reinforce our shared values, not weaken them, because it is on those values that our security ultimately depends.

We have approached the Bill to build a consensus on how we can protect those values at the same time as protecting our national security. We have talked, we have listened, we have moved. Other than in circumstances involving a grave exceptional threat, the pre-charge detention limit for terrorist suspects will remain exactly as it is now. Indeed, that limit continues to be subject to annual renewal by Parliament.

I hope that we never need to extend the period, but the question that hon. Members need to ask themselves is whether they are confident that we will never need 29, 30 or 31 days to bring a terrorist suspect to charge, to put them in front of a court. The proposals that we will vote on today are better, fairer and more proportionate as a result of the process of parliamentary scrutiny and debate that they have undergone, but the time has come for hon. Members to decide. It is the job of Government, police and prosecutors to protect the public from terrorist attack, and thereby to defend everybody’s right to life, but today it is the job of Parliament to give them the tools to do that. We need the support of the House for the proposals in the Bill. We need the support of the House to do the right thing for this country’s security, and I commend the amendments to the House.

David Davis (Haltemprice and Howden) (Con): “It is the job of Parliament to give them the tools”? It is the job of Parliament to defend the liberties that we have had for centuries.

I rise to oppose the Government’s new clauses and to support amendments Nos. 4 and 5 to remove 42 days from the Bill. Today, there are essentially two arguments to deal with. The first is: have the Government made their case for 42 days? If not, this change should be rejected out of hand, because in this country we do not give away freedom without good cause. Secondly, if they have made their case, are the powers proportionate and are the checks and balances to prevent improper use of the powers adequate?


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The issue of how long we incarcerate those on whom we have insufficient evidence to charge with any crime has become one of the defining debates of the last decade in this country. Notably, this week marks the anniversary of the signing of Magna Carta. For almost 800 years, we have built on the right of habeas corpus, founded in that ancient document: the fundamental freedom from arbitrary detention by the state. The liberty of the person is in our blood, part of our history, part of our way of life; Conservatives, Labour, Liberal Democrats, Democratic Unionists—all parties. Liberty is the common strand that binds us together, and we have shed blood to protect it, both abroad and at home.

Today the Government ask us to sacrifice some of that liberty. The Home Secretary offers a Faustian bargain: to trade a fundamental liberty for a little extra security. Yet, as the debate has gone on, the case for 42 days has first crumbled and then collapsed. So, after months of debate, what are the basic facts? The right hon. Lady said in her speech that the Home Secretary properly takes advice from the police but that that is not enough and we need to examine the evidence that they present. I think that that is what she said, so let us do so: let us look at the evidence that was presented by the Home Secretary’s own witnesses.

1.30 pm

Let us start with Sir Ian Blair, the Metropolitan Police Commissioner. In his evidence to Parliament, the commissioner said explicitly:

He based his support for 42 days on “a pragmatic inference” based on trends in a number of plots and on those plots’ complexity. In support of that, he and his counter-terrorism chief initially claimed that 15 terrorist plots had been thwarted since the 7/7 bombings. It was on that basis that he presented his evidence to the Bill Committee. But then it transpired that there had been a mistake. The corrected evidence revealed the true picture, which is that between 2003 and 2005, there were nine plots, three a year, and there have been four since the beginning of 2006, two a year. So, the number of plots, far from increasing, has actually decreased over the past three years. That is a good thing, but it is not an argument for extra powers, and although we should not underestimate the threat, we should not overstate it either.

The second witness who the Home Secretary brought before us was Mr. Peter Clarke. He argued exactly what was argued in the debate about 90 days, and he told us how complex and technical anti-terror cases were becoming. His example of a technically challenging case was that of Dhiren Barot. There is no doubt that it was a technically challenging case, but it was a case in which charges were successfully brought within 14 days—not 28 days, but 14—which is hardly evidence that we need three times as long. Mr. Clarke offered the observation that in the Barot case, police officers had occasion to sleep at the office. Frankly, I should prefer that police officers sleep at the office for two weeks than risk putting innocent people in a cell for six weeks.

Dr. Palmer: Is the shadow Home Secretary saying that he rules out the possibility that at some point there will be cases that are sufficiently complex to take more than 28 days to unravel? If he does not rule that out, what would he as Home Secretary do about them?


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David Davis: The hon. Gentleman has heard me any number of times say that we will listen to the evidence. As I develop my case, he will hear that finding the evidence in the first place was difficult. Indeed, it was made more difficult by the Government, and that evidence does not support what the hon. Gentleman is saying.

Tony Lloyd: Will the right hon. Gentleman give way?

David Davis: In a moment. I want to get to the end of this part of my argument, because it is very important to this particular point.

The third witness was Ken Jones, the president of the Association of Chief Police Officers, who said that the police, operating under the current 28-day limit were “up against the buffers”. That is the claim being made: not that we might be, but that we are up against the buffers. He based his judgment on the most complex counter-terrorism investigation in our history, Operation Overt, in respect of the alleged plot to blow 10 airliners out of the sky at Heathrow in August 2006. In that case, five people were held for 27 or 28 days. One can see why that superficial analysis leads us to the idea that we are up against the buffers, but it is only a superficial analysis. I asked Mr. Jones yesterday whether he had examined the detailed evidence in Operation Overt. He told me that he had not had the opportunity. I did look at the evidence. Three of the five suspects were held for the maximum period. More than half were innocent.

Mr. Frank Field (Birkenhead) (Lab): No, they were found not guilty.

David Davis: Innocent. That demonstrates— [Interruption.] We can reiterate the argument that we had last time. The last time I used “innocent”, Labour Members exploded in uproar at the idea that those people might be innocent, so I told Labour Members that I had asked the police at the time whether they were concerned sufficiently to put those three people under control orders. “No,” they said. I asked whether they were sufficiently concerned to put them under overt or covert surveillance? “No,” they said. I asked whether they were carrying on any further investigations into them? “No,” they said. I give way to the ex-Home Secretary.

Mr. David Blunkett (Sheffield, Brightside) (Lab): The right hon. Gentleman’s latter point is very important, because in some of the cases that he cites, a lesser charge could have been offered. From all parts of the House, a case has been put that in respect of post-charge questioning, there is an opportunity for the police to continue doing what today’s proposal of a 14-day extension allows in the most serious cases and for the most serious charge. Is it not either muddled thinking or, at its very best, a paradox, that those who are against the extension—with all the safeguards—to 42 days are happy for people to be charged with a lesser offence and then to be held in prison while questioning continues?


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