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“ Habeas corpus is probably the oldest of the prerogative writs. Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms. Consistently with this, an
application for a writ of habeas corpus has virtually absolute priority over all other court business.”
However, it is only available when there is a question of illegal detention, and the arrangements under this Bill will, effectively, restrict the application of habeas corpus.
The most important constitutional authorities have suggested that the Supreme Court Act 1981 should be amended to ensure that habeas corpus is added to the forms of relief, so that it runs at least parallel to the other alternatives. I do not believe that judicial review under the Human Rights Act is the right way to proceed.
Jacqui Smith: The hon. Gentleman makes a very important point, and I undertake to look very carefully at his new clause and to talk further with him about how we can be assured that the principles that he has outlined will be carried forward in our proposals.
Hon. Members have spoken passionately today about the importance of getting the right balance between national security and individual liberty. I applaud the conviction with which hon. Members have expressed their views. Parliament has shown again how it is a most formidable defender not only of our liberties, but of the protections that we need to have in place to ensure that all in Britain can enjoy those liberties. For precisely that reason, the reserve power that we seek in the Bill will be subject throughout to the most searching parliamentary safeguards, in addition to having to meet high legal thresholds.
It is because we understand the value of individual liberty that we believe that the power should be held in reserve, for use only if we need it in exceptional circumstances and only for a temporary period, just as my right hon. Friend the Member for Leicester, East (Keith Vaz), who is not now in his place, has argued. He and other hon. Members have also rightly emphasised the importance of the impact of our actions on communities; we must always be aware of that community impact. In addition to the investment that we announced last week, we will review the impact of our counter-terror legislation on our communities, but we are clear that terrorists target all communities, regardless of faith or race, and that our legislation is designed to protect all communities, regardless of faith or race.
It is not after we pass a piece of legislation in this House that Muslim children get bullied in the playground or that young Muslim men feel unable to travel on the tube without getting suspicious glances. Such situations occur in the wake of events such as 9/11 and 7/7, where not only do the criminal actions of a violent and extreme minority cause death and destruction, but they can cause recriminations, unfairly and wrongly, against those communities. That is what we need to safeguard against, and that is what our provisions are aimed at.
The right hon. Member for Haltemprice and Howden (David Davis) and the hon. Member for Eastleigh (Chris Huhne) have made much today of an allegation that in the case to which reference has been made, where two people were detained for up to 27 or 28 days and then subsequently charged, somehow it would have been possible to charge them before the 27th or 28th day. Others have scandalously referred to
that as being “sexed-up” evidence. The claim that there was sufficient evidence to charge suspects after four and 12 days but that the charging decision was somehow delayed is a slur on the Crown Prosecution Service and on those who investigated that case. The CPS must charge a person at the earliest possible point, and that happened in this case. The Director of Public Prosecutions has said:
“When the material is sufficient, and the prosecutor...believes that a charge should be laid, it will be laid. The idea that we have sufficient evidence after 14 days, but...wait until 26 or 27 days to charge is wrong.” ——[ Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 55, Q141.]
Of course, nobody can be detained unless the detention is needed for the purposes of gathering evidence, and we have been clear about that in the Bill. The judge would not agree to continued detention unless it was needed and he was satisfied that the investigation was being carried out diligently and expeditiously. So, alongside a scandalous slur on the police officers carrying out that investigation and on the prosecutors who worked day in, day out to bring a charge, there is also a suggestion that the judges themselves made the wrong decision.
Mr. Grieve: My right hon. Friend the Member for Haltemprice and Howden (David Davis) made no slur on the police or the Crown Prosecution Service. He made a statement of a number of facts about when the evidence was available, and I note that the Home Secretary has not challenged those in any way. Those were the only points that he made and he went out of his way to say that he was not suggesting that the overall period of detention was in some way wrong, merely that it was on the fourth and 12th day that the evidence had been available. If the Home Secretary disagrees with that, perhaps she will tell the House that my right hon. Friend is wrong.
Jacqui Smith: The clear implication of what the right hon. Member for Haltemprice and Howden (David Davis) said was that people could have been charged earlier. That is fundamentally wrong, and what is more, he has had personal assurances from senior police officers that that was not the case.
We have also rightly heard concerns about the circumstances in which people would be detained. People have claimed that detainees would not be able to see their families, or that they would not have cooling-off periods. That is wrong. Anybody detained will be told on arrest the grounds for that arrest. Any hearings for extended detention would include specific details of the investigation. Those detained may receive visits from friends, family and others likely to take an interest in their welfare. In any 24-hour period, the detainee must be allowed at least eight hours for rest, free from questioning, thus providing the cooling-off period that the hon. Member for Eastleigh (Chris Huhne) suggested did not exist. Detainees should be offered exercise, and cells must be cleaned, heated and ventilated. To suggest that those things would not happen, as some have done, is also wrong.
A further misconception in this debate—and a disappointment to me—has been the suggestion that there can be no appropriate role for Parliament in this
process. I have understandably been challenged about what Parliament will be able to debate in such circumstances. First, contrary to the contention advanced by the hon. and learned Member for Medway (Mr. Marshall-Andrews), the statement made by the Home Secretary to Parliament will need to be clear that a grave and exceptional terrorist threat has occurred or is occurring. New clause 32 makes it clear that legal advice with which the Home Secretary can properly be satisfied will need to be made available to Parliament in order to support that debate.
Parliament will be able to debate the general security threat; the progress of the investigation; the police numbers involved; the number of suspects detained; the outline of the plot; the what, why and when; the number of countries involved; whether the Home Secretary’s decision was properly founded; and whether she had indeed received reports from the police and the DPP. That would be a full debate. I believe in the role of Parliament, and we have embedded that safeguard in our proposals.
Mr. Grieve: Will the Home Secretary answer the point that was made so properly by the hon. and learned Member for Medway (Mr. Marshall-Andrews) that the use of the term “grave and exceptional terrorist threat” is defined in a way that means that it is nothing of the kind? It is not akin to the definition in the Civil Contingencies Act 2004, or an emergency; it could be any terrorist matter brought to the notice of the Home Secretary.
Jacqui Smith: I explained earlier the type of grave and exceptional threat that would be necessary, and I have explained how Parliament could test that.
I hope that hon. Members will agree that in this House we should always rely on force of argument and the rule of law to counter terror. Today hon. Members have heard the arguments, and we have all now to make a decision on the protections that we need to ensure that the rule of law continues to run. The British people place their trust in us to take the right decisions to protect them. I cannot and will not wish away the threat from those whose aim and sole intent is to blow up our citizens, of all races and religions, on our streets.
When it comes to dealing with terrorism, my view is straightforward. We cannot simply hope for the best. We must have plans in place that mean that we can cope with the worst. The question that everybody needs to answer is whether they are confident that no police investigation would ever need to hold somebody for longer than 28 days. I greatly prize consensus. It has motivated me in bringing forward these proposals. However, important as consensus is, I prize the interests of Britain’s security above it. We should do the right thing to protect our people, and that is what I am asking the House to support me in this evening.
It being Six o’clock, Mr. Speaker put forthwith the Question already proposed from the Chair, pursuant to Orders [1 April and 10 June] .
Clause read a Second time, and added to the Bill.
Mr. Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
‘(1) The Secretary of State may by order declare that the power conferred by Part 4 of Schedule 8 to the Terrorism Act 2000 (c. 11), inserted by Schedule [Amendments relating to period of pre-charge detention] to this Act, to apply for and extend detention under section 41 of that Act beyond 28 days (“the reserve power”) is exercisable.
(2) No such order may be made unless—
(a) an order is already in force under section 25 of the Terrorism Act 2006 (c. 11) (extension of maximum period of detention to 28 days), and
(b) the Secretary of State has received a report complying with the requirements of section [Report of operational need for further extension of maximum period of detention] (report of operational need for further extension of maximum period of detention).
(3) The effect of an order under this section is that the reserve power is exercisable in the case of all persons—
(a) then detained under section 41 of that Act, or
(b) subsequently detained under that section at a time when the order is in force.’.
New Clause 22
‘(1) The report required by section [Power to declare reserve power exercisable] (2)(b) is a report by—
(a) the Director of Public Prosecutions and the chief officer of a police force in England and Wales,
(b) the Crown Agent and the chief constable of a police force in Scotland, or
(c) the Director of Public Prosecutions for Northern Ireland and the Chief Constable of the Police Service of Northern Ireland,
(a) state that each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the purposes mentioned in subsection (3) below, and
(b) give details of the grounds for that belief.
(3) The purposes referred to in subsection (2)(a) are—
(a) to obtain, whether by questioning or otherwise, evidence that relates to the commission by the detained person or persons of a serious terrorist offence,
(b) to preserve such evidence, or
(c) pending the result of an examination or analysis of any such evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining such evidence.
(4) In subsection (3)(a) a “serious terrorist offence” means—
(a) an offence under the Terrorism Act 2000 (c. 11) or the Terrorism Act 2006 (c. 11), or
(b) any offence that has a terrorist connection,
in respect of which an offender who has attained the age of 21 (in England and Wales, 18) is liable on conviction to a sentence of imprisonment for life.
(5) The report must also state that each of the persons making the report is satisfied that the investigation in connection with which the detained person or persons is or are detained is being conducted diligently and expeditiously.
(6) Until the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of custody for life etc), subsection (4) has effect with the omission of the words “(in England and Wales, 18)”.’.
‘(1) The Secretary of State must on making an order under section [Power to declare reserve power exercisable] forthwith notify—
(a) the chairman of the Home Affairs Committee of the House of Commons,
(b) the chairman of the Joint Committee on Human Rights, and
(c) the chairman of the Intelligence and Security Committee.
(2) The Secretary of State must also, as soon as reasonably practicable, provide each of those persons with a copy of—
(a) the report received under section [Report of operational need for further extension of maximum period of detention] (report on operational need for further extension of maximum period of detention), and
(b) the legal advice obtained under section [Independent legal advice] (independent legal advice).
(3) The information received under subsection (1) and the documents received under subsection (2) are to be held by the recipients subject to the terms of their oath as a privy counsellor (or if any recipient is not a privy counsellor, on corresponding terms).
(4) The references in subsection (1) to the Home Affairs Committee of the House of Commons and the Joint Committee on Human Rights shall—
(a) if the name of the Committee is changed, be taken (subject to paragraph (b)) to be references to the Committee by its new name;
(b) if the functions of the Committee at the passing of this Act (or functions substantially corresponding to those functions) become functions of a different committee, be taken to be references to the committee by whom the functions are for the time being exercisable.’.
‘(1) After making an order under section [Power to declare reserve power exercisable] the Secretary of State must lay before Parliament a statement to the following effect.
(2) The statement must state that the Secretary of State is satisfied—
(a) that a grave exceptional terrorist threat has occurred or is occurring,
(b) that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible,
(c) that the need for that power is urgent, and
(d) that the provision in the order is compatible with Convention rights (within the meaning of section 1 of the Human Rights Act 1998 (c. 42)).
(3) The statement may include such other information as to the reasons for the decision to make the order as appears to the Secretary of State to be appropriate.
(4) The statement must not include—
(a) the name of any person then detained under section 41 of the Terrorism Act 2000 (c. 11), or
(b) any material that might prejudice the prosecution of any person.
(5) The statement must be laid before Parliament within two days after the day on which the order was made or, if that is not practicable, as soon as is practicable.’.
‘(1) Where an order under section [Power to declare reserve power exercisable] is made—
(a) the Secretary of State must as soon as is reasonably practicable lay the order before Parliament, and
(b) the order shall lapse at the end of the period of seven days beginning with the date of laying unless during that period each House of Parliament passes a resolution approving it.
(2) If the order lapses under this section, the officer having custody of a person whose detention—
(a) was authorised by virtue of the reserve power, and
(b) is not otherwise authorised by law,
must release that person immediately.
(a) prevents the making of a new order, or
(b) affects anything done by virtue of the order before it lapsed.’.
‘(1) If when an order is made under section [Power to declare reserve power exercisable] Parliament stands prorogued to a day after the end of the period of five days beginning with the date on which the order is made, Her Majesty shall by proclamation under the Meeting of Parliament Act 1797 (c. 127) require Parliament to meet on a specified day within that period.
(2) If when an order is made under that section the House of Commons stands adjourned to a day after the end of the period of five days beginning with the date on which the order is are made, the Speaker of the House of Commons shall arrange for the House to meet on a day during that period.
(3) If when an order is made under that section the House of Lords stands adjourned to a day after the end of the period of five days beginning with the date on which the order is made, the Speaker of the House of Lords shall arrange for the House to meet on a day during that period.
(4) In subsections (2) and (3) a reference to the Speaker of the House of Commons or the Speaker of the House of Lords includes a reference to a person authorised by Standing Orders of the House of Commons or of the House of Lords to act in place of the Speaker of the House of Commons or the Speaker of the House of Lords in respect of the recall of the House during adjournment.’.
‘(1) An order under section [Power to declare reserve power exercisable] lapses at the end of the period of 30 days beginning with the day on which the order was made.
(2) If an order lapses under this section, the officer having custody of a person whose detention—
(a) was authorised by virtue of the reserve power, and
(b) is not otherwise authorised by law,
must release that person immediately.
(a) prevents the making of a new order, or
(b) affects anything done by virtue of the order before it lapsed.’.
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