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11 Jun 2008 : Column 349

Chris Huhne: The point, surely, is that if the Home Secretary had evidence that the most serious offences had been committed, there would be no need to extend the period without charge, because she would be able to go ahead and charge the people. My fundamental point stands: on the basis of the existing track record, this will affect people who may well be found to be entirely innocent. We know that three of those six people spent a month of their lives not even knowing what offence they had been accused of committing.

We could all name cases in which great injustices have already been perpetrated. One such case is that of the Algerian pilot Lotfi Raissi; an even more tragic case is that of the young Brazilian Jean Charles de Menezes. Most recently, there is the case of the students who were arrested for having terrorist materials, when they were writing a research report on Islamic extremism. The police do a commendable job in difficult circumstances, but they are human and therefore fallible. That is why we have a system of justice, and why checks and balances are crucial. It is also why we should not lightly concede yet another rise in the period of detention without charge.

Ms Abbott: Does the hon. Gentleman accept that holding people for six weeks when they do not know what they are being held for is in itself coercive? From the big miscarriages of justice in the 1980s, we know what innocent people will sign even when they have been held for far less than six weeks.

Chris Huhne: I am grateful for the hon. Lady’s intervention, and I entirely agree.

Let me take the Government’s case at face value. The Home Secretary argues that the Government need to extend the period of detention for terrorist suspects from 28 to 42 days because of the increased complexity of terror cases, citing the recent increase in the number of computer files and comparing the alleged airline bombing case in 2006 with the Dhiren Barot case of 2004.

However, that argument rebounds on the Government in a very simple way. An extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed in the way that the Prime Minister and the Home Secretary implied.

Lynne Featherstone (Hornsey and Wood Green) (LD): The argument about increasing complexity is often put forward, but is there not a case for expanding the capacity to deal with complex cases, rather than the length of time for which people can be held without charge?

Chris Huhne: I am grateful to my hon. Friend, and she is of course absolutely right, but I want to make another point. It has been said that it might be necessary to read material equivalent to one third of the contents of the US Library of Congress within the proposed legal limit of 42 days. If so, that would require 240,000 police officers working eight-hour shifts—a total equivalent to all the police officers in this country, plus 100,000 others on loan from a friendly neighbour.

In fact, the tools available to the police have also increased in power so that sense can be made of large amounts of data. Clearly, search engines are available to others, as well as to Members of this House. Moreover,
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the Government do not seem to take the problem too seriously: they legislated in 2000 to make it an offence to withhold data encryption keys, but that offence did not come into force until 2007. So much for the sense of urgency.

We have also heard that an inability to sift through data, whether encrypted or not, was not the cause even in those few cases that went close to the 28-day limit. In fact, the essential data issues were sorted out relatively quickly, as the right hon. Member for Haltemprice and Howden (David Davis) showed very effectively. Liberty has pointed out that in two of the three cases in which people were subsequently charged, the evidence relied on to bring those charges was obtained within not 27 days, or 26 days, but within four and 12 days, respectively.

No other common-law country has seen the need to do such violence to its freedoms. The Government like to bog the debate down in comparisons with Roman-Dutch law, but I am leaving countries that use such law entirely aside. I am talking only about countries such as Canada, the US, Australia and New Zealand, which have legal traditions exactly parallel to our own. Canada retains a traditional 24-hour detention period without charge.

Ms Dari Taylor (Stockton, South) (Lab): Is the hon. Gentleman saying that Lord Carlile’s statements to the Committee were inaccurate and misleading? He said that the US Attorney-General had executive witness detention capability and was allowed to hold people for up to a year. He also said that similar powers were held by France and other countries, and that legal systems differ so much that comparisons are nonsensical. Was Lord Carlile being inaccurate? Was he misleading us?

Chris Huhne: I am grateful for that intervention, but I specifically did not make a comparison with inquisitorial systems such as the French one. If the hon. Lady had been listening to me, she would have heard me say that Canada retains a traditional 24-hour period of detention without charge. In the US, the period is two days. Australia has extended the period to 12 days, in part because of the special cooling-off periods between interrogations. There are no provisions in the Bill to put in place the equivalent cooling-off periods that might justify an extension of detention along the lines introduced in Australia.

The possible length of detention without charge is already more than twice as long in Britain as it is in other common law countries, even though we all face the same threats and technologies.

2.45 pm

Chris Bryant: How long does the hon. Gentleman think the detention period should be? Should it be one day, or two, or a week?

Chris Huhne: I am sorry that the hon. Gentleman was not present for the Second Reading debate, as I remember that another Labour Member made exactly the same challenge. I made my position very clear then. At the moment, I am very happy with a period of 28 days. We should stick with that period because that is what we voted for, but we need to regard it as an emergency measure and keep it under constant review—especially given the lack of evidence that even 28 days is necessary.
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The hon. Gentleman asks about alternatives to the knee-jerk, Kafkaesque extension of detention without charge that is being proposed, but I believe that all the alternatives are much to be preferred.

The Bill allows questioning to continue after charge, and we welcome that. We should also allow intercept evidence, as is the case in Australia and the United States. The Committee considering the Bill took evidence from Sir Ken Macdonald, the Director of Public Prosecutions, who said that his counterparts in the countries that I have named found our refusal to use intercept evidence astonishing.

Most importantly of all, Sir Ken has described the considerable flexibility that the Crown Prosecution Service has to bring charges, which it can do even if it is felt at the time that the chances of a successful conviction are less than 50 per cent.—the normal test. In fact—this is crucial—Sir Ken pointed out that the CPS had had a 92 per cent success rate with terrorist convictions since the beginning of last year. As a result, he is on record as saying that the new powers are unnecessary. That is significant precisely because, if it is possible to secure a 92 per cent. conviction rate in cases brought after terrorist events have happened, as has been the case over the past two years, Sir Ken has the flexibility to achieve even more success should he decide to bring charges before a terrorist event occurs.

Detention without charge for terrorist suspects has already risen from seven days to 14 days and then 28 days, just since 1997. The sad truth is that Ministers are using this simple number as a proxy to persuade the public that the Government are tough on terror. In fact, such blunt instruments run the substantial risk of alienating the communities that we need to have on board if we are to fight terror effectively.

Ms Dari Taylor: I am grateful to the hon. Gentleman for giving way again, and I assure him that I am listening to him. A letter from the president of the Association of Chief Police Officers, which has been placed in the Library, makes it clear that

Does the hon. Gentleman agree that that letter shows that the 28-day period is being used? If so, why is he claiming that there is no evidence that 28 days is appropriate?

Chris Huhne: The hon. Lady may not be aware of a rule of this House that sub judice proceedings can be discussed during discussion of proposed legislation. If she has a fact that she would like to put before us, as opposed to assertions and opinions, perhaps she will do so. As I have mentioned, what we know from ACPO’s evidence is that there have been six cases that have gone near to, but not up to, the limit of 28 days. Therefore, it is, I believe, accepted in all parts of the House—I hope the hon. Lady accepts this, too—that there is no evidence for any extension beyond 28 days. Even Ministers put the case for an extension in entirely contingent terms, and talk about what may happen in the future if a whole series of other events occur.

The police need intelligence, and they need witnesses prepared to give evidence. Britain’s most senior Muslim police officer, Assistant Commissioner Tarique Ghaffur,
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has warned that these arbitrary powers could have counter-productive effects in the Muslim community, exactly as internment had in Northern Ireland in the ’70s. As the hon. Member for Foyle (Mark Durkan) has correctly warned us, internment drove a wedge between communities and the security services. Intelligence dried up, witnesses refused to come forward to give evidence, and the scars remain to this day. Tough macho measures proved horribly counter-productive, exactly as these measures may. I agree that there is not a precise parallel between what is proposed in the Bill and internment, but there is a parallel in terms of the sentiment and motivation behind these proposals and, as a result, there may very well be a parallel in the unfortunate counter-productive effects. Have we not learned the lessons of 30 years ago?

Mr. Adrian Bailey (West Bromwich, West) (Lab/Co-op): May I read to the hon. Gentleman a quote from Sir Ian Blair’s evidence to the Public Bill Committee? He said:

Does the hon. Gentleman think the Government should disregard that?

Chris Huhne: The hon. Gentleman makes a point that has been made from the Government Front Bench on a number of occasions. Indeed, I have conceded that there is no evidence for the Government’s case other than the possibility that there may be circumstances which have not yet occurred. If the hon. Gentleman feels that fundamental freedoms that have been part of the rule of law and due process in this country for centuries should be ditched on the basis of a hypothetical circumstance, he will vote accordingly, but he will not have Liberal Democrat Members going along with him.

Mr. Winnick: Should we not bear in mind that some of the Members who are so enthusiastic about the increase to 42 days were no less enthusiastic about voting for 90 days?

Chris Huhne: The hon. Gentleman is absolutely right. I am even more encouraged, however, by the number of people who voted for and supported 90 days but who now recognise that circumstances have completely changed. They include Lord Falconer, the former Lord Chancellor, and Lord Goldsmith, the former Attorney-General, both of whom highlight the point I have made: that the change in the nature of the threshold test means that circumstances are fundamentally different from when we last considered the issue of extension of detention without charge.

Mark Hunter (Cheadle) (LD): May I offer my hon. Friend an alternative quote from Sir Ian Blair? He has said on the record very clearly and simply:

Does my hon. Friend not agree that that comment, taken alongside similar comments from Sue Hemming of the Crown Prosecution Service and Sir Ken Macdonald,
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the Director of Public Prosecutions, probably provides the most powerfully damning indictment of the Government’s case?

Chris Huhne: That is absolutely right. The evidence that Sir Ken Macdonald gave to the Public Bill Committee made it clear that the CPS is heavily involved in all these investigations from the earliest stage, so the evidence that Sir Ken gave is particularly telling.

Frank Cook (Stockton, North) (Lab): Will the hon. Gentleman not consider the relationship between cause and effect when pondering an earlier intervention quoting Sir Ian Blair on the number of plots there are, and the increase in the number? Will the hon. Gentleman speculate about why there is such an increase, and why we are discovering more plots now? Is that because of provocation?

Chris Huhne: I would not like to go as far as that, but the hon. Gentleman makes a point that I hope other Members will take into account.

I wish now to turn to the so-called safeguards in the Government’s amendments to the Bill.

Mr. Baron: Before the hon. Gentleman moves on to the important matter of the safeguards, may I return to the issue of international comparisons, as that adds power to his argument as to why 42 days is not required? Liberty’s figures are very clear for other common-law jurisdictions—they show that other countries do not need more than a week—but the power of that argument is given extra force because, both across the Floor of the House and through written parliamentary answers, the Government have admitted that they have undertaken no similar comparison. They are not in a position to criticise those figures, because they have not investigated the comparisons properly themselves.

Chris Huhne: I am grateful to the hon. Gentleman for his intervention, which has clarified the point.

Jacqui Smith rose—

Chris Huhne: I think the Home Secretary would now like to seek to clarify matters.

Jacqui Smith: I hope that the hon. Gentleman would want to advise the hon. Member for Billericay (Mr. Baron) to take a good look at a letter I placed in the Library yesterday, which clearly spells out our view of the international comparisons.

Chris Huhne: I am delighted that the Home Secretary has been spurred to answer in the nick of time ahead of this debate.

Mr. Baron rose—

Chris Huhne: I have no doubt that the hon. Gentleman and the Home Secretary will continue that interesting joust elsewhere afterwards.

Let me now turn to the so-called safeguards in the Government’s amendments. First, it would still be up to the Home Secretary to determine whether the conditions for extended detention had been met. In theory, her decision has to be in response to a “grave exceptional
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terrorist threat”, but that need hardly constrain her, as even the possibility of a threat remote from these islands would be enough. New clause 20 states:

That is not by any means restricted to the United Kingdom. This could almost be regarded as the “Tongan clause” as it would allow any “grave exceptional terrorist threat” in Tonga to trigger the extension by the Home Secretary of the period of detention without charge from 28 days to 42 days. That is not exactly the sort of safeguard this Parliament is used to having in connection with a matter involving fundamental freedoms.

Mr. Grieve: The hon. Gentleman is right to analyse this area of the Government’s proposals, because it is key to whether they are workable. However, I am by no means persuaded that the Home Secretary needs the existence of a “grave exceptional terrorist threat” to extend the maximum period of detention, because as the Bill is drafted that is not a prerequisite for doing so. All that is required is a report that such a further extension is needed because it is necessary for one or more of the purposes set out in a subsection that is, effectively, about detaining people, obtaining evidence and carrying out analysis of that evidence.

Chris Huhne: I am grateful to the hon. and learned Gentleman for his intervention. That is above my legal pay grade, but I am sure that if this Bill were by some mischance to be put on to the statute book, it would keep many of his legal colleagues in fruitful employment for many years to come.

Once the Home Secretary had triggered the extension beyond 28 days, there would be a seven-day period within which a debate and a vote would have to be held. Executive detention is thus automatically extended by these provisions to 35 days before Parliament would have the opportunity to set it aside.

3 pm

Lynne Jones (Birmingham, Selly Oak) (Lab): I turn to the point about what would trigger these powers. Interestingly, my right hon. Friend the Member for Leicester, East (Keith Vaz) writing in Tribune last week said:

I am sure we would all agree that in such circumstances there might be a case, but is it correct that this is not the trigger that would give the Home Secretary the powers to ask this House to extend the emergency powers?

Chris Huhne: The hon. Lady is correct to point that out. I have searched in vain for the amendment tabled by the right hon. Member for Leicester, East containing precisely the provisions that he suggested in that article; I fear that it does not appear to have made the amendment paper. Perhaps it will be a last-minute addition, rather like the Home Secretary’s letter in the Library.


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