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That means that there will have to be an individual case. If there is no individual case, there cannot be an extension.

Mr. Dismore: The hon. Gentleman is entirely correct, and his point adds weight to the argument.

The other safeguard, we are told, is that the power will be reduced in length to 30 days. That is an improvement on what we had originally, but it can be renewed back to back indefinitely by the repetition of the same process. It could go on to 30, 60, 90 or 120 days. Who knows?

There are alternatives. The Joint Committee on Human Rights first proposed a package of alternatives in 2006 that offers a coherent, human rights-compliant alternative. For the big emergency cases—the 9/11s—we have the derogation process. For all the others, there are alternatives.

The most important alternative is threshold charging. Many Members, I suspect, do not understand what threshold charging involves. It means that the individual is charged on the basis of reasonable suspicion of the commission of the offence based on admissible evidence, as opposed to arrest, which can be based on inadmissible evidence. It is predicated on how the investigation is anticipated to proceed. We can compare that test with the normal full code test of “more likely than not”. Some 50 per cent. of terror cases so far have been charged on that basis. It has proved very effective in practice, with a conviction rate of more than 90 per cent. In my view, it is important that that process is made statutory with appropriate safeguards, and my new clause 2 will do that.

Incidentally, if we use the threshold test as our international comparator rather than the full code test, we see that the threshold test in some of the other common law countries, such as America and some of the continental countries, is not that dissimilar from some of the questions that investigatory magistrates have to pose. Both sides of the debate have probably overstated their case for and against international comparators, but if the threshold test is used, the position is perhaps a little clearer.

The second alternative is the new offence of acts preparatory to terrorism. It is a broad offence, and when charged on the threshold basis and in combination with that threshold test, it provides a broad and easy process for the prosecution service to follow. As we have heard, two of the alleged airline plotters were charged within 28 days with acts preparatory to terrorism on the threshold test. If, within 28 days, a reasonable suspicion cannot be established on the threshold basis that the accused has committed an act preparatory to terrorism—a very broad offence—the chances of our getting them for anything are probably negligible.

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Mr. Marshall-Andrews: I am listening with great interest to my hon. Friend. Given the research he has done, can he explain to me and the House what is wrong with a holding charge? A holding charge is used in criminal jurisprudence in every other aspect of crime, so why should it not be entirely available in terrorism cases?

Mr. Dismore: I think that the holding charge system is dishonest; it would undermine the justice system and bring us into disrepute. It would also run the risk that a suspect who had committed a more serious crime would be released on bail when he appeared before the court. I do not recommend that route.

Ms Dari Taylor: Will my hon. Friend give way?

Mr. Dismore: I need to make some progress, as many Members want to speak.

Alternative No. 3 is post-charge questioning, which we debated yesterday. Alternative No. 4 is my new clause 3, which proposes police bail with conditions similar to control orders for people on the fringe of plots, such as the inciters and funders—the sort of people we were talking about earlier. They could be closed down entirely while their computers were analysed. They could be prevented from communicating and from going where they want to go. That option was suggested at Paddington Green during our visit there.

Alternative No. 5 relates to intercept evidence and the Chilcot review. Alternative No. 6 is more specialisation in the CPS, as is already happening. Alternative No. 7 would be more active case management by judges. Why are judges not tougher on some of the unjustified delaying tactics and obstruction deployed by defence teams? Alternative No. 8 involves a suggestion put to us by the Director of Public Prosecutions and relates to incentives for those on the periphery to give evidence—for example, lower sentences and witness protection, although obviously with appropriate safeguards.

The Government response to that package is that they do not look at it as a package. They accept that such proposals would reduce pressure to go beyond 28 days, but say that they would not entirely eliminate the risk of running out of time. However, for that matter, 42 days or 90 days would not entirely eliminate that risk. As the DPP said to the Public Bill Committee, it is always possible to posit hypothetical scenarios; the question is whether they are “remotely likely”.

When the Joint Committee made its recommendation about putting threshold charging on a statutory basis, the Government response, in terms of the impact on affected communities, was:

The inference of the Government’s position must be that such communities would not react adversely if they perceived that people in such cases would uniquely be detained for 42 days. What a non sequitur. If the threshold charge created an adverse reaction, surely a 42-day period would, too.

We have only to look at the briefing issued by the Equality and Human Rights Commission to see what Muslim people really think. The Government say that Muslim communities are no different from any others—they
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want to be protected from terrorism. Of course they do. They want to be protected from the backlash. Of course they do. However, it is appropriate to note that in London everybody came together after 7 July and there was the opposite of a backlash. People were concerned to ensure that the Muslim community was protected and reassured.

Finally, would the proposal make us safer? It is not a deterrent to terrorism, but an investigation tool. It could make things worse if the consequences are alienation, less co-operation, less information and less intelligence. There are risks in lesser cases—not in extreme doomsday cases, because derogation deals with those—that someone who should be charged is released after 28 days with no control order. What if they are released after 42 days? The offence of acts preparatory to terrorism and the other examples I gave offer an alternative package for such cases. The risks need to be balanced against the effect of releasing an innocent person, even with compensation, after six weeks.

I regret to say that the Government have not made a case for the need for 42 days. Even if they had, derogation is available. We have experience of 28 days. Alternatives are available. The safeguards are inadequate. The proposal will not make us safer and I hope the House will not accept it.

Several hon. Members rose

Mr. Deputy Speaker (Sir Michael Lord): Order. Before I call the next hon. Member to speak, may I say to the House that I appreciate that the matters under discussion are extremely complicated, but a very large number of hon. Members are seeking to catch my eye, and I am sure that the House wants to hear as many contributions as possible from hon. Members in all parts of the Chamber? If everybody makes a big effort to make their remarks as brief as possible, it would be appreciated by all hon. Members.

Mr. Michael Mates (East Hampshire) (Con): When the House debated the 90-day detention limit last year, I abstained—not happily, because I do not happily go against the advice of my Front-Bench colleagues, but because I did not feel that the Government had made a sufficiently detailed case for the extension. Since then I have twice said to the Prime Minister—once in Prime Minister’s Question Time and once when he made a statement about security—that a detailed case would need to be made if we were to be persuaded to change our minds. I am sorry to say that although the Government have gone some way down that road, they have not yet given any concrete reason why the extension is necessary, except to say that it may be required at some future event. That is a reasonable way to go, and I shall come to that point later.

3.30 pm

Let me refer back to the time when the Operation Crevice plotters were under investigation and on trial, and the Security Service carried out its biggest ever investigation; it should be congratulated on the success of that. Although the Intelligence and Security Committee received regular briefings about the progress of those
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cases, we did not know whether there had been any problems to do with the length of time for which the people concerned were detained, or whether it was causing any difficulty in bringing the charges and trials to a successful conclusion. It turns out that there was not any such problem in either of those cases, which are the two largest cases that the Security Service and the police have ever undertaken.

One of the difficulties today has been that the Prime Minister said a few hours ago in Question Time that it was the Security Service that wanted the measures introduced; his words were very clear. The Home Secretary said exactly the same in her opening remarks today. I have known that that was not the case for some time, but until yesterday I felt myself unable to say why I knew that. Yesterday, on the Security Service website, Jonathan Evans, the director general of the Security Service, made it absolutely clear that that is the Security Service’s position, saying that


That is absolutely clear. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, suggested—inadvertently, I think—that the Prime Minister misled the House. I do not say that, but the Prime Minister was wrong to say that the Security Service had wanted an increase in the time, and I am sorry to say that the Home Secretary was wrong to say exactly the same thing a couple of hours ago.

I do not believe that the case has been made. I do not have a problem with the principle of detaining someone for longer if there is cause for it. Neither do I object in principle to someone saying, “We do not want to do it when or if there is a major terrorist incident.” I am not happy about the Executive taking more powers for themselves, no matter what safeguards they write into a Bill. I am not making a party point; I would say exactly the same if our party was in government. The Government may want to plan ahead, but God forbid there should be an incident in which all the measures that we are discussing are necessary. This is the time to say, “The Executive have quite enough power. We must turn to the judiciary to decide the matter.”

If the Government came forward with a proposal that a High Court judge should consider individual cases when the police or security services said that they were in difficulty and needed more time, and the case was made to the judge, it would be acceptable for the period of detention to be extended. I say that because I believe that the British public trust the judiciary. I am sorry to say that they do not trust an overweening Executive. Again, that is not a party point. I am afraid that when Governments say, “This has to happen, otherwise something dreadful will take place,” the public view it rather cynically. If a High Court judge were to say the same thing, that would be largely acceptable to the British people.

Ms Dari Taylor: I am grateful to my right hon. Friend, and Friend he is. I have listened carefully. What he is requesting is in the Bill, according to my reading. If an extension from 28 days is to be made, a High Court judge must approve that, on the evidence presented to him or her.

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Mr. Mates: That is the safeguard to which I was referring, but it is the Executive who will take the original decision. It is the authorities who will say, “This is what we are going to do. Now we will go and check it with a judge.” Provided it is within the law, the judge will have to obey what Parliament has decided to do. If we take the Executive out of that equation, we will re-establish the trust that that process will happen independently and fairly.

Mr. Cash: My right hon. Friend is making a powerful point. Precisely because the statute defines what is lawful, is it not the case that if the circumstances described in the statute create an opportunity to exclude habeas corpus, we get into a ridiculous and impossible situation? That is where we seem to be moving.

Mr. Mates: My hon. Friend, typically, has made that point four times, and I expect he will make it four times more.

Mr. Cash: I will, until it is accepted.

Mr. Mates: That is a point that my hon. Friend is making. I shall make my own.

Mr. Bailey: I have been listening to the right hon. Gentleman’s argument, which has some force to it. However, he seems to have disregarded the fact that before signing the order, the Home Secretary must take independent legal advice from a non-Government lawyer. That requirement provides the necessary safeguards.

Mr. Mates: I do not want to move into controversial areas, but the former Prime Minister took legal advice about a certain piece of paper from his own Law Officers. But I do not want to go down that road, and I want to be as brief as I can.

Mr. Baron: Perhaps I can help my right hon. Friend a little. It is low hurdle that the judge has to consider. He does not have to consider whether the suspect is guilty or not; he simply has to consider whether proceedings are marching to time and whether there is likely to be new evidence. That is a low hurdle and does not involve the judiciary as we would accept it.

Mr. Mates: That is absolutely right.

There are further problems with the Bill. I accept that the Prime Minister and the Home Secretary have been looking for consensus, and I accept that that should not be a party political matter. The trouble is that the moment the Government realised that they had to start making concessions, they did not make the Bill better—they made it rather worse. In order to try and buy off some of the usual suspects, if I may use that phrase about some of my friends on the Government Benches, the Government introduced the concession of consulting Parliament.

Parliament, of all people, should have no role to play in the matter. I shall not rehearse the arguments that others have expressed much more eloquently than I have about what would happen if a particular case—because it must be a particular case—came in front of Parliament to decide, after someone had been in the slammer for more than 28 days. That concession makes the Bill
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worse rather than better and the one thing that I can say is that that measure has not got a chance of surviving scrutiny at the other end of the Palace because it is not our business to second-guess judicial or Executive decisions of a judicial nature.

If the Government, when they finally come back with what will be a much reformed Bill, are prepared to say—I am prepared to concede that there may be an event that is so cataclysmic, or it may be necessary to prevent a serious event from happening— that, because of the complicated nature of inquires, there must be detention for longer than 28 days, let that decision be taken independent of the Executive by a senior High Court judge. I believe that would be acceptable and if the Government proposed it, I would support it.

Ms Dari Taylor: It is a great pleasure to follow the right hon. Member for East Hampshire (Mr. Mates).

I rarely quote from The Sunday Telegraph, but today I want to quote from an article by Matthew d’Ancona in that paper because he presents the case and asks the appropriate question better than I could when he says:

I had the privilege of being a member of the Committee that considered the Bill. It was a privilege because, unlike other Committees on which I have sat, it took a significant amount of evidence, so that everyone began to feel that they understood the wide parameters of the Bill that we were possibly attempting to improve, but most certainly hoping to achieve consensus on and support for.

The evidence spanned that from the secretary of the Coroners Society, the Home Office terrorism specialist, Lord Carlile, the Metropolitan Police Commissioner, the Association of Chief Police Officers, Justice and Liberty. A vast range of excellent evidence was presented and carefully scrutinised by the Committee. We wanted to understand all opinions on terrorism, whether about intercept, pre-charge detention or reserve powers, so that we could ensure that we carefully walked the line that we have to walk between supporting and determinedly enabling individual civil liberties, while at the same time delivering a secure society for everyone.

I probably found the evidence of ACPO, the Metropolitan Police Commissioner and Lord Carlile to be the most convincing, but all of it was very valuable. The evidence of ACPO and the Metropolitan Police Commissioner, which was added to by a letter that I understand was placed in the Library, outlined the extreme and exceptional nature of potential and actual terrorist activity. Clearly, the argument made by both was to say: put on the shelf a power that we could need. We have taken cases to 27 and a half days—only two, that is right; maybe six—but when that power of detention is required, it should be to hand. That was a persuasive argument that I supported.

Mr. Winnick: I genuinely have a great deal of time for my hon. Friend, but is not the argument that she puts forward the reason why she voted for 90 days in 2005?

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