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In any case, it is very hard to see how the House will tread the narrow line between debate that could be prejudicial to a court case and general blather, which
would simply boil down to whether the House trusted the judgment of the Home Secretary. That is hardly confidence-inspiring, and it is certainly not a serious check on the potential abuse of Executive power, so those who would believe that there are genuine safeguards in the Bill are misplacing their faith.
The fight against terrorism is far too important to be reduced to populist symbols that would substantially curb our hard-won freedoms. This cause is central to the Liberal Democrats’ belief in the rule of law, and in checks and balances on arbitrary power. The Government run the risk, with these provisions, of giving the terrorists exactly what they want, which is clear evidence of an insensitive and oppressive state. We must not, and we must never, become what we are fighting.
Mr. Andrew Dismore (Hendon) (Lab): I rise to speak to the new clauses and amendments that stand in my name, which have been tabled to give effect to recommendations made in the Joint Committee on Human Rights reports. I approach this issue with my eyes open; I am not wearing rose-tinted glasses. I remind the House that I was the first to raise concerns over the activities of extremists, from early 1998, when I was warning about Abu Hamza, Bakri Mohammed, Abu Qatada and many others. In those days, everybody thought that I was a bit of a nerd and nobody took any notice of me. I hope that today they will take notice of what I have to say, as they did after 9/11, but not before. As a consequence of what I did, I suffered hate mail, death threats and vitriolic personal attacks. In addition, five of my constituents—more than the number for any other constituency—were killed on 7 July 2005, so I do not approach this matter with any liberal leanings.
I voted for 90 days, because at that time I saw no other option. I have since changed my position, because the Government have not made their case for new powers, we have experience of the 28-day maximum, the safeguards are not adequate, alternatives are available and I do not believe that the proposals will make us safer. In fact, they risk alienation and division in our society.
The Joint Committee on Human Rights has reported on 11 separate occasions on counter-terrorism policy, and an array of our reports lie on the Table, tagged for today’s debate. They all start from the same basic premise: that the state has a positive obligation in human rights law to protect us all from terrorism and violence; and that the state has a duty to prosecute and to make prosecution more effective and, as far as possible, to do so as part of ordinary criminal law. Each erosion of the normal process is, in itself, a result for the terrorist, who would undermine our freedoms and way of life. We run the risk of doing his work for him.
Mr. Cash: Would the hon. Gentleman be good enough to explain to the House why he thinks that the opportunities made available through habeas corpus would not be able to satisfy the criteria that he has just described in terms of civil liberties?
Mr. Dismore: I am grateful to the hon. Gentleman for that intervention, and I shall come to that point later.
I do not believe that the Government have made their case for the need for 42 days. In the evidence that they have given to us, the threat level has been described as “about the same”. There have been assertions of a growing threat in terms of numbers, but no qualitative analysis or assessment has been provided. We should never underestimate the threat, which is of course serious, but equally we should not over-hype it. We need to give a clear and accurate picture in order to maintain public confidence. I think that it is instrumental that the three most recent attacks have been somewhat amateurish affairs, as we all know.
The numbers that we are given could mean either that there are more plots and plotters, which would be worrying, or that the substantial extra resources that we have given the security services mean that they know more about such people than they knew before, when they were below their radar—that, of course, would be reassuring. The numbers relate to the general level of the threat, and that is not relevant to the 42-day debate at all. What is relevant to the debate is when the plotters are subject to arrest, if and when these plots become crystallised. We do not have much information about such matters, other than in respect of the cases that we know about. Such cases are far fewer in number than the thousands that we are told exist.
Although the director of MI5 is prepared to give a lecture to the society of newspaper editors on this issue, he is not prepared to repeat his lecture to a parliamentary Committee and to take questions on it from such a Committee. We invited him to do so. We did not want to talk about the secret squirrel stuff. We wanted only to discuss the broad issues, but he was not prepared to come before us. We wrote to him in December 2007 asking for his assessment of the increase, but we have yet to receive a reply to that letter.
Kali Mountford (Colne Valley) (Lab): When we considered this matter in Committee, we were given some evidence by Sir Ian Blair of a growing threat. I am concerned, as I hope my hon. Friend is, that if we should decide at some point that we would need an extension of the time in which to examine evidence concerning somebody who is suspected of committing a terrorist attack on this country, that should not happen in a heated situation after some event. We should take such a decision after a calm and collected discussion, such as we are having this afternoon. Can he comment on that?
Mr. Dismore: I entirely agree with my hon. Friend that we need to discuss this in a rational way, and I shall be giving her an alternative, my amendment (a), which I hope she can support. It answers the point.
The Government pray in aid a variety of plots and trials, but they have all been dealt with under the existing arrangements satisfactorily and effectively. The Dhiren Barot case has been trotted out again, but that was dealt with under the 14-day rule. That was one of the cases that they used in the argument for 90 days, which led to the compromise of 28 days, so that is an old argument that was dealt with two years ago. The parliamentary Labour party briefing refers to eight other plots, which were all dealt with under the 14-day rule, except the alleged airline plot, which was dealt with under the 28-day provisions. There is no evidence
of anyone having been released when they not should not have been. The 28-day power has not been used for a year, and it has hardly been used at all. Yet, this new power is being sought on spec for what we are told are future extreme cases.
Anne Main (St. Albans) (Con): I wanted to ask the Home Secretary this earlier. Have we seen one shred of evidence that the figure of 42 days—or any other number above 28 days—has been justified? The figure appears to have been plucked out of the air speculatively to reassure people, yet it has not one shred of evidence to support it.
Mr. Dismore: The hon. Lady makes her point, and I shall not demur from it. We are told that the reserve power is needed for a “grave, exceptional terrorist threat”. On 23 January, in the Daily Mirror, my right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing asked us to imagine two or three 9/11s. On the “Today” programme on 2 June he said that there was a
“substantial threat against the nation”
“backstop for truly exceptional situations”
He also mentioned the “nightmare” and the “doomsday scenario”. If that is so, the powers are already in place. I am talking about the power to derogate from article 5—the right to liberty—and to disapply a fundamental right that goes back to the Magna Carta of 1215.
My amendment (a) provides a system to enable that derogation to take place. If there is a public emergency threatening the life of the nation, article 15 permits derogation from—that is, disapplication of—the right to liberty. A co-ordinated, large-scale attack on the nation’s political, military and financial institutions, such as 9/11 in the US, would meet that test, never mind two or three 9/11s at the same time.
Under derogation, the Government are entitled to take the measures that are strictly required for the exigencies of the situation. Derogation is not a new solution. The Belmarsh detainees were held under a derogation power, and the case failed on discrimination grounds. The control order powers in the Prevention of Terrorism Act 2005 provided for derogating control orders, but they have not been used.
My amendment sets out a process to enable the Secretary of State to make a designated derogation order in anticipation of any future need because of such a terrorist attack. It incorporates safeguards such as judicial review and parliamentary approval, and this proposal would give the Government everything that they profess to need—an emergency reserve power for the truly exceptional cases, with appropriate safeguards.
Why will not the Government accept my amendment? As has begun to emerge, the Government want the reserve power not for the extreme cases, but for far less than their public statements suggest. They want that power not for two 9/11s or for a substantial threat against the nation. The letter from the Minister to the Human Rights Committee on 6 June states:
“The definition of grave exceptional terrorist threat which we now propose would cover events or situations similar to the bombings in July 2005, or a plot to blow up a shopping centre or a plot to commit terrorist atrocities overseas involving serious loss of life. We do not think any of these are covered by the Civil Contingencies Act definition of an emergency.”
The July 2005 bombings were dealt with under the 14-day regime. The shopping centre example would not be a multiple plot. Atrocities overseas may be nothing to do with us. Today we had another letter from the Home Secretary that said that the attempted airline plot would have been a case in point, but that was dealt with under the 28-day procedure.
The implication from the briefing sent to the parliamentary Labour party is that all the cases listed, which were dealt with under 14 or 28 days, would in future be subject to the 42-day maximum. The power is not meant for exceptional cases but for the sort of cases that have been dealt with adequately so far under existing powers.
Mr. Cash: The hon. Gentleman makes a case exclusively based on the application of the European convention on human rights and the Human Rights Act 1998, and the derogation in article 5. Why does he insist on that route, rather than that of habeas corpus, under which the court would have the right to make a proper inquiry if given that power in statute by this House?
Mr. Dismore: First, I will come to habeas corpus, as I promised the hon. Gentleman earlier. Secondly, we are subscribers to the European convention on human rights—and rightly so—and I propose a way in which we can lawfully do what the Government wish us to do in cases of major emergency.
We have now had experience of the 28-day limit. I remind the House that 28 days was to be an exception, with the norm being 14 days and the issue subject to annual review. The DPP tells us that he has managed reasonably comfortably. Sue Hemming, the chief prosecutor, says that 28 days has proved to be “sufficient”. We have already heard the figures for the alleged airline plot. Six were held beyond 14 days, with two charged just before 28 days and three released just before. The latter were not re-arrested or subject to control orders.
The 28-day limit has been used only in two other cases. Up to now we have had no quantitative analysis of those cases, although the Opposition Front-Bench team produced some yesterday, which showed that there was little questioning of the suspects during that period. We have heard today that in fact the evidence to support a threshold charge was probably in place by 14 days for the two who were held up to the 28-day limit. However, until we receive the detail, we cannot be certain that that was the case. We must also take into account the possible urgency of the investigation. If we had had a 42-day limit, would those three people have been held for that time in the hope that some evidence might turn up, rather than for 28 days?
The judicial safeguards proposed in the Bill are effectively the same as those for 28 days, save that the DPP and the chief constable have to authorise the application for the extension. The existing process is not fully judicial in accordance with article 5. The Government say that it involves a proper judicial hearing, but the case of Garcia Alva v. Germany in the European Court of Human Rights makes it clear that the criteria that the Government operate do not match those that the court expects.
3.15 pm
Even if there were no problem with the process for 14 days, or even 28 days, it is wrong to say that neither would there be a problem for 42. The longer the period
of detention, the more stringent the procedural safeguards need to be. The Government say that there has been no challenge to the extension process in court on the grounds of incompatibility, but there was: the case of Naseel Hussain, which was one of the first 28-day cases. It failed on a Catch-22: the High Court said that it could not review the decision of the High Court judge to extend the period of detention.
That ruling would also, in effect, exclude habeas corpus. That court case decided that the warrant of further detention was a judicial hearing for the purposes of article 5.4. If that is so, that is the judicial hearing that would be required by habeas corpus, so any application for habeas corpus would be struck out by the court as an abuse of process. New clause 35 is very important because it would overcome that particular problem.
Mr. Cash: That still does not resolve the problem of why the hon. Gentleman prefers to go down the route of the European convention on human rights and judicial review, when habeas corpus would be available.
Mr. Dismore: I support the hon. Gentleman’s new clause and I see it as a matter not of either/or, but of both.
We hear that there will be an ex gratia compensation scheme. We can infer therefore that the Government accept that the provisions do not comply with article 5, because article 5.5 provides for compensation for someone held in breach of article 5. As the compensation scheme is to be confined solely to cases under these arrangements, and not applied generally to people held on charge and released, one can only assume that that is the case. We must also consider the impact that that would have on other suspects—for example, those who may have been held on bail for a long time and then acquitted. They will say, “Well, the Muslims are getting money, why aren’t we?” That could have an impact on community relations.
New clause 1, which I tabled, suggests improvements to the judicial process including entitlement to judicial process; a statement of the basis for arrest; the gist of the material forming the grounds for suspicion to be given to the suspect; a special advocate for the closed part of the hearing; and entitlement for the judge to look at whether there are reasonable grounds for the belief that the suspect is involved in terrorism and, in other words, to check whether the arrest was justified in the first place. At the moment, judges are entitled only to consider whether the investigation was necessary and has been conducted diligently.
New clause 37 would provide for judicial review of the Home Secretary’s decision, if the existing arrangements stay in place, on whether there is a grave threat, whether a reserve power is needed and whether it is needed urgently. I am not sure whether the Government agree that those should be subject to judicial review; I suspect not.
New clause 36 would provide that similar provisions to those in the Civil Contingencies Act should apply to the Human Rights Act and the emergency regulations, so that the courts could intervene and quash them if they were considered to be unlawful. I think that the Government agree with the point and it would be appropriate to include it in the Bill.
On the question of parliamentary safeguards, the independent legal advice to the Home Secretary on whether the reserve power is needed would ask the same questions as a court, essentially considering whether an individual’s detention would be appropriate. That will be passed on to the Select Committee Chairs, including me if I am still in office—I suspect that I probably will not be, considering the way that I am going. If I were still in office, on Privy Council terms, it is not quite clear what I would be able to do with that information. I would not be able to check whether it was accurate or to get advice on it. I would not be entitled to share it with members of my Committee. I would be entitled only to read it and to think, “Mm, interesting.” I would not even be entitled to refer to it in a debate on extension before the House. Although the fact that it would be shared is welcome—I am a prurient, nosey chap who likes to know what is going on—it would not achieve a great deal.
The safeguard allowing us to have debates within seven rather than 30 days is welcome, as is the fact that Parliament would be recalled. However, the debate will be even more circumscribed than we originally thought, not just for the reasons advanced by the hon. and learned Member for Beaconsfield (Mr. Grieve) but because the questions will be the same all the way through. The DPP and police report to the Secretary of State will be in similar terms to the application that they will have to make in an individual case. Independent legal advice to the Secretary of State will again raise the same issues. The advice to Parliament would be redacted to prevent any prejudice to the trial. The same issues will arise with the Secretary of State’s order as arise with individual cases, as she will have to be satisfied about them when she comes to make the order. When Parliament comes to approve the order, it will consider the same issues again. Therefore, because we cannot risk prejudicing a trial, the debate may only be very general. It will consider the sort of things that we debated in the previous cases on the back of the statement, which is hardly sufficient to justify the possible deprivation of liberty not only of the suspect in custody but of any other suspects arrested over the next 30 days. Inevitably, too, it would be a whipped vote.
Mr. Grieve: Does the hon. Gentleman agree that although it is absolutely right that the order would also cover the arrest of anybody else in the following 30 days, the trigger mechanism clearly implies that it would be precipitated by one case? That is the most likely outcome. Those circumstances will make it even more difficult to debate the issues surrounding the making of the order in this House, because the generality probably will not be there. The debate will be entirely dependent on the report, which will be made to the Secretary of State in the first place, on the operational need for an extension, relating probably to individuals.
Mr. Dismore:
The hon. and learned Gentleman is correct. The same argument will continue in the debate on the reviewer’s report six months later. Of course, we do not know when that will happen, because if the period of extension is repeated—if it is set for 30 days, then for another 30 days, then for another 30—will that six-month review take place after the expiry of the first 30 days or of the subsequent 30-day periods? Putting that to one side, the chances are that the reviewer’s
report will come before the House while the suspect is awaiting trial, so there is an even greater risk of prejudice when debating the reviewer’s report.
David Howarth: The hon. Gentleman is making a very powerful case. Does he accept that the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve) is strengthened if one looks at the detail of what the Government are proposing in new clause 22? New clause 22(5) states that the report on which the whole thing is based
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