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David Davis:
The point that the right hon. Gentleman conflates—he has heard me argue this—is that the inability to question post-charge forces police and, more importantly, the Crown Prosecution Service, to defer charging because they are unable to continue gathering information about the case from the individual once the
charge has been made. That is not the same point as the point that he makes. It is a very important point, but it is not the one that he made.
Chris Bryant (Rhondda) (Lab): Will the right hon. Gentleman give way?
David Davis: If the hon. Gentleman will forgive me, I want to go through this point. It is quite important. I always give Members an opportunity to intervene later in my speeches. [Interruption.] I shall, however, give way to the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), if he wants.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): indicated dissent.
David Davis: No, obviously not.
Three of the five suspects—more than half—were held for the maximum period and they were innocent. That demonstrates not a virtue but a serious danger with further extension, namely that the longer one holds people without charge, the more likely they are to turn out to be innocent. Incidentally, of the six cases that John Stevens cited as taking us to the brink—they are, I think, the words that he used—half were proved innocent. There is a danger intrinsic in the extension when it involves cases in which there is no apparent evidence or not sufficient evidence in that there is more of a risk of detaining people who are innocent than of detaining those who are guilty.
David Davis: I shall give way to my hon. Friend the Member for Canterbury (Mr. Brazier)
Mr. Julian Brazier (Canterbury) (Con): Does my right hon. Friend agree that there is a certain irony in the right hon. Lady the Home Secretary citing the Madrid bombing as one of the most extreme examples of complexity, when her Government have welcomed two former Guantanamo bay suspects, who are not British citizens, back to Britain despite the fact that the Spanish police are desperate to get hold of them?
David Davis: My hon. Friend makes his point, but it would take me rather offline to follow him down that route.
Let me return to the point about innocence, because Ministers now intimate—if they do not say so outright—that they will pay compensation in cases where innocent people are detained for longer than 28 days. Could we ever have a more explicit admission of the inevitable failure of the law or of the foreseeable injustices that it will bring? It is for this House to search its conscience—to determine whether putting in place a system of six weeks’ detention, when on current experience half or more cases are likely to be proved innocent, will serve the vital interests either of our national security or, very importantly, of British justice.
Dr. Julian Lewis (New Forest, East) (Con): Will my right hon. Friend give way?
David Davis: No. I have a small but important point to get through, and then I shall take some interventions.
What about the other two cases in which people were held for 28 days? They are implicitly held up as the illustration that, due to the complexity of investigations, 28 days is proving inadequate. Is that really what those cases show? The key question is, when was the evidence available on which the charges were based? Ministers and officials have been asked a number of times—the Home Secretary has been asked a number of times—to answer that question, and they have implied that the evidence was obtained very late in the 28-day period.
During our numerous meetings, when we were trying to reach a consensus, I asked the Home Secretary three times to show me the facts that demonstrated that evidence gathering had delayed the decision to charge in Operation Overt. But she failed to explain—even in the most general terms, or on a Privy Council basis, which I would have been perfectly happy to accept—what the evidence was or when it was acquired. I was forced to establish the facts myself and then to check them with the investigating team at Scotland Yard. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, checked them with the Crown Prosecution Service. The facts are as follows: in neither of the two cases was the evidential basis of the charge encrypted data, evidence requiring complex forensic analysis or intelligence from overseas. In one case, it comprised telephone records, handwritten and printed literature, an unencrypted CD and a receipt, all of which were available within four days of arrest. The second case was based on witness statements, mobile phone text messages and a single unencrypted computer file, all of which were available within 12 days of arrest.
That does not mean that the police should be criticised—far from it. They should be commended for their handling of that operation, as I have said on several occasions. Nor does it mean that the CPS acted improperly—it rightly looked to gather as much evidence as possible under the rules that it is given by this House within the time frame that Parliament sets it. However, it does show that in the most complex terrorism investigation in our history, all the evidence on the only two suspects charged after 21 days was in the possession of the police within four and 12 days respectively. I suspect that that is why the Director of Public Prosecutions does not believe that the extension is at all necessary or foresee circumstances in which it will be necessary in future.
Chris Bryant: The right hon. Gentleman is basing his whole argument on his assertion that there is no evidence that proves that these powers are necessary. Surely the only evidence that there could possibly be would be a catastrophic failure of the criminal justice system that meant that the police were unable to charge somebody before the end of the 28 days and that person then going on to commit a major atrocity. That is precisely what we are all trying to avoid. [ Interruption. ]
David Davis:
Hon. Members should not heckle the hon. Gentleman—he is well intentioned in this matter. I would say two things to him. First, he is making a case for indefinite detention. Secondly, this is why we asked the Government to consider using the Civil Contingencies Act 2004. The Home Secretary says that it is not capable of being used, although David Pannick, the Government’s
counsel of choice—the man who wrote the textbook on these subjects—says that it is. I offered the Home Secretary sufficient changes to make it usable in such circumstances, because it contains some protections that are worth having but are not available in the Bill. That was the “CCA plus” offer that people have read about in the papers. We did that on the basis of the argument made by the Home Secretary’s predecessor.
Dr. Julian Lewis: Will my right hon. Friend give way?
David Davis: If my hon. Friend will forgive me, I have not finished my answer.
Rob Marris (Wolverhampton, South-West) (Lab) rose—
David Davis: I will not give way for the moment—forgive me.
The Home Secretary reminds us time and again that she is, in her words, “responsible” for national security. She is right to stress that. A Home Secretary must take advice from all members of the law enforcement agencies, but she must check and ask questions; she must establish the facts, as we have been doing this afternoon. That is her responsibility. As the evidence in favour of extending pre-charge detention has evaporated under scrutiny, it has been replaced with growing evidence that the pre-charge detention proposals risk making us less, not more safe. The former chief inspector of constabulary has described the proposal on 42 days as a “propaganda coup” for al-Qaeda. They are a gift to “propagandists” that will drive the brainwashed to “acts of martyrdom”, according to one former Metropolitan police commissioner. They are a threat to local community intelligence, according to the Government’s own impact assessment on the Bill. The proposal is wrong in principle and dangerous in practice.
Barry Gardiner (Brent, North) (Lab): The right hon. Gentleman has built his case on the instance of the two cases where, he says, the evidence was available on the 12th day, at the latest. Why, then, does he believe that the Crown Prosecution Service kept those individuals in detention through to the 27th or 28th day? Did it do that recklessly, or was there a reasonable belief that further evidence could be uncovered that would be material to a prosecution?
1.45 pm
David Davis:
The hon. Gentleman raises a perfectly reasonable point. I am not surprised that he does so, because the Minister for Security, Counter-Terrorism, Crime and Policing has attempted on several occasions to misrepresent this point of view. I have said that the CPS did not act recklessly. There are issues that police forces and prosecutors have to decide on in every case. If they have 20 or more suspects to deal with, a prioritisation process inevitably takes place, as we saw in the Overt case. All those charged with the most serious charge of conspiracy to murder were charged before 21 days, and the massive majority of them were charged before 14 days. It is entirely understandable that the prosecutors and the police focus on that area first. That is why I am concerned—it is not an accusation but a concern—that
one of the effects of this will be to leave until the end of the process the people who are innocent, or against whom there may be a suspicion although they are innocent. There is a serious danger that extending it any further will mean more innocent people being put in a cell for six weeks.
Mr. John Gummer (Suffolk, Coastal) (Con): Does my right hon. Friend agree that the problem of extending the 28-day period is that it will have the opposite effect to that which the hon. Member for Brent, North (Barry Gardiner) suggests, because it will make it easier for people to say, “We’ve got plenty of time, so we need not speed up this process to the maximum”? Is not that something that any innocent person caught up in this must worry about?
David Davis: I understand my right hon. Friend’s point, although I do not agree with it, in truth. However, there is a subtle related point. The CPS will seek to obtain a so-called full code charge—one with a 51 per cent. plus chance of conviction—because that is its guidance. If it is unable to obtain it, it may well want to use all the time available to try to do so instead of using the lower so-called threshold charge. The two people I mentioned were charged under the threshold charge arrangements. It is entirely possible—I do not know; it is pure surmise—that there was an attempt to obtain a full code charge. That is entirely legitimate and entirely the proper way for the CPS to act. The situation is not its fault, but our fault, because it arises directly out of the rules system that we created for it.
Dr. Julian Lewis: My right hon. Friend referred to people being released right up against the buffers, as it were. The Government are saying that the nightmare scenario is that someone would be released after 28 days and then go on to commit some heinous offence. They are also saying that the numbers of people involved in the exercise of 42 days’ detention would be very small and in circumstances of grave threat. Surely it is hard to imagine any circumstances where if someone had to be released after 28 days, they would not be under the most intense surveillance thereafter. It is hard to see how even if they were released under those circumstances, they could then precipitate an atrocity on the scale that the Government anticipate.
David Davis: My hon. Friend makes a good point. There are two aspects that relate to a small number of cases involving one, two or three people. This is where the Home Secretary differs from me in wanting the scope to act. It is entirely possible that the security agencies and the police could put a small number of people under close surveillance—through a control order, I suppose, if one believes that they work. It could be overt surveillance—there is no reason why a police car could not be put outside a house—or covert surveillance. All those things are possible.
My hon. Friend reminds me of something that I forgot to say earlier. Implicit in some of the arguments made is that the people in question are a threat or danger to the public. The image conjured up is one of some sort of dangerous terrorist who will go out to bomb the nearest station or plane. Indeed, the Home Secretary implied that when she spoke of 28 days’ detention putting the public at risk.
Rob Marris: Will the right hon. Gentleman give way?
David Davis: No, not at this point.
As a result of the procedures that I described before, the people dealt with last under the system tend to be the least dangerous. They were not the ones charged with conspiracy to murder. In fact, in the two cases that we are talking about, they were subsequently released on bail. If they were released on bail, the courts clearly did not think that they posed an ongoing threat to the public. I am afraid that that argument falls in tatters, too.
Rob Marris: Can I gently suggest to the right hon. Gentleman that there is a big contradiction at the heart of his position? On the one hand, he cloaks himself in the principles of ancient civil liberties, going back to Magna Carta and so on, but on the other, he goes on to advocate alternative devices to get round those very civil liberties. For example, he advocates the use of the Civil Contingencies Act 2004, post-charge questioning and intercept evidence, and he advocates the charging of someone with a lesser offence and holding them while a potentially greater offence is investigated. That is a contradiction in his position. Is it principled or is it practical?
David Davis: Earlier, I did not pull up the former Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), when he attributed that view to me. It is not my view, and has never been my view. However, let us take one of the hon. Gentleman’s cases of an incursion on our civil liberties. He says that the use of intercept evidence in court is such an incursion. No, the incursion on our civil liberties occurs when the intercept is made. That is why there are warrant arrangements and controls on intercepts. Not using such evidence in court has nothing to do with civil liberties—it is to do with a judicial decision and an intelligence decision. He should have got his case a bit straighter.
Some weeks ago, the Government were clearly at risk of losing this aspect of the Bill, so they conjured up a series of so-called safeguards. Interestingly, given what was just said to me, they are an attempt to import—almost in the words of the Home Secretary—a diluted version of the Civil Contingencies Act into the Bill. Again, this comes as something of a surprise. The House will recall that Ministers spurned the Civil Contingencies Act model for months and said that it was inappropriate, fundamentally flawed and a draconian response. I begin to wonder who wrote the Act—I thought that it was this Government.
If the Civil Contingencies Act is draconian, it is hard to understand why, in her proposals, the Home Secretary’s deliberately diluted the safeguards that are supposedly based on the Act. The Home Secretary says that the 42-day power of detention could be invoked only if there were a grave, exceptional terrorist threat. The point was made by the hon. Member for Foyle (Mark Durkan) earlier that that is not a condition for invoking an extension beyond 28 days; it is merely a notification requirement. Even then the notification requirement will not refer to that, but to an operational necessity. It is merely a notification requirement, entirely irrelevant to the unfettered discretion that the Home Secretary will retain.
Even if it were relevant, let us consider what could constitute a grave, exceptional terrorist threat. The hon. and learned Member for Medway (Mr. Marshall-Andrews) made this point earlier: the small print of the new clause refers to events that cause or threaten
“(a) serious loss of human life
(b) serious damage to human welfare in the United Kingdom, or
(c) serious damage to the security of the United Kingdom.”
I am being charitable on this. Those definitions are so broad—a massive expansion of the criteria in the Civil Contingencies Act—that virtually any terrorist plot would satisfy them. The Dhiren Barot plot in 2004 to set off a dirty bomb would easily meet those conditions, but the charging was concluded in 14 days. The Operation Crevice fertiliser bomb plot in 2004 would also meet the definition, but all the charges were brought within 14 days. The 21/7 attacks would certainly qualify, but again all the charges were brought within 14 days. The definition of grave, exceptional threat is not only irrelevant to the power of the Home Secretary to order 42 days’ detention, it simply does not matter at all.
Mr. Marsden: The right hon. Gentleman has given a set of examples, but I am not sure that they are germane to his original question. I put this question to him: if he does not think that the definitions in the Bill constitute an adequate definition of a grave and serious threat, what criteria would he present to the House?
David Davis: The hon. Gentleman raises an important point, and I will try to give him the most serious answer I can— [ Interruption. ] —the one that the hon. Gentleman’s question deserves, namely, yes. There are two categories of circumstance with regard to a threat to the state that the Government might face. One is a situation that obviously worries the Home Secretary, where perhaps 25 people are arrested and we are left with one, two or three at the end for whom we do not quite have enough evidence. We can deal with that, as was pointed out by my hon. Friend the Member for New Forest, East (Dr. Lewis), by a variety of other mechanisms, including— [ Interruption. ] Surveillance, I say to the Security Minister—I think that is who he is. It certainly can be dealt with that way, but it can also be dealt with by the threshold test for prosecution—the reasonable suspicion test.
The other circumstance is where there are a vast number of attacks on the state at the same time. The Security Minister—the Minister for Security, Counter-Terrorism, Crime and Policing—referred to it as the three 9/11s test. Under those circumstances, we would be overwhelmed, and we would need a definition of a state of emergency. This is what the Government object to. The matter is important because full judicial review can apply a test as to whether a state of emergency applies, in a way we cannot as individuals discussing the matter in the House of Commons. That is the point of distinction, which is why we offered the Home Secretary very early on in the process a modification to get “CCA plus”, as it was known in the jargon at the time, if she wanted it. We were willing to do that.
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