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Some have accused the police of holding a suspect for the maximum period simply because it is available. I have to say that that is abject nonsense. The police investigate as quickly as possible. They must do so, and they are obliged to do so under the law. Nothing in the Terrorism Act 2000, or afterwards, changes that. The essential principle of arresting someone with a view to charging at the earliest opportunity pertains under terrorism law, as it does with all other law. The police investigate as quickly as possible—they must do. They would not
detain anyone for longer than was absolutely necessary, which has been clearly demonstrated by the fact that only six people have been held for the maximum period since the power came into force, and none has been held for the maximum period since the 28-day limit was renewed last year.
Indeed, when applying to the court for an extension of detention, the police and CPS have to present substantial evidence for further detention. A judge may not grant extensions of detention where he or she is not satisfied that the investigation is being pursued diligently and expeditiously. Judges can, of course, grant fewer than the full seven days’ extension requested—they have done so—and, indeed, they can grant no extension if they feel further detention is not justified.
In an evidence session of the Public Bill Committee on the Counter-Terrorism Bill, Sue Hemming, the head of the counter-terror division in the CPS, made it clear that that view prevails. She said:
“We certainly did not keep people in unnecessarily. There has to be a certain amount of time for the police to investigate... If you arrest people, the police have to look at what the plot is, who is involved and what the evidence is. As with any case, the pre-charge detention time has to allow a certain amount of time for the police to investigate and question. I seriously dispute any allegation that we kept people in any longer than we had to.”
In the same session, Ken Macdonald, the Director of Public Prosecutions said:
“The idea that we have sufficient evidence after 14 days, but, for some reason best known to ourselves wait until days 26 or 27 to charge is wrong.” ——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 55, Q141.]
Those who keep putting about the myth that somehow those who were held for a period closer to 27 or 28 days were incarcerated while the prosecution and the police twiddled their thumbs or did some knitting are palpably wrong. I deprecate the comments of Liberty, which were utterly wrong, on the eve of the recent consideration of the Counter-Terrorism Bill on fact and fiction about the existing 28-day pre-charge detention limit. Liberty spoke rather cleverly, as it does, about the Government and the police—and, I presume, the CPS and the DPP—sexing up the evidence. It is not for anyone, in the House or established pressure groups, to second-guess after the event the investigating, prosecuting and policing strategy of the police or the CPS and DPP during frenetic days of frenetic activity. It is a shame when that happens.
I am afraid that a former Member, David Davis, perpetuates the myth on his website, and that is a matter for profound regret. By all means let people take up the matter with me or with the Government—the politicians and those who argue policy positions—but I deprecate people attacking, by implication if nothing else, the integrity of our police and the prosecution service.
Liberty also issued a much less duplicitous document, entitled “The Real Consensus”, with a sub-heading, “Extensions Beyond 28 days: Unnecessary and Counter-productive”, which, for at least today’s debate, I will pray in aid. I did not do that last week or the preceding week, but a series of quotations, with which hon. Members will be familiar, emphasise the consensus that has emerged on 28 days. Whatever our view of the Counter-Terrorism Bill, that broad consensus, albeit flaking round the edges in some quarters, about 28 days still exists and commands the House’s support.
Mr. David Winnick (Walsall, North) (Lab): To put the record straight, I cannot speak for anyone but myself, but I have never once questioned the need for 28 days. I proposed it and it was agreed in November 2005. I therefore do not associate myself with any remarks about 28 days being unnecessary. However, I emphasise that the consensus that was reached on 28 days remains, and there is no justification for moving to 42 days.
Mr. Deputy Speaker (Sir Michael Lord): Order. I know that the Minister will resist the temptation to go down other alleyways.
Mr. McNulty: I shall, of course, Mr. Deputy Speaker. I am grateful to my hon. Friend for his support for the renewal of the order. I share his view that there is a consensus on 28 days, except for extraordinary and exceptional circumstances. I shall say no more than that.
I genuinely and sincerely believe that for all hon. Members, getting the balance right between individual freedom and collective security must always be at the heart of what we do. I think that most hon. Members would agree that there is no contradiction between pursuing our counter-terrorism objectives and defending our freedoms and civil liberties. Fourteen days remains the only permanent, statutory maximum provision for pre-charge detention, and 28 days—the subject of the renewal order—is for exceptional circumstances. However, that exceptional power continues to be necessary as a result of the growing scale and complexity of terrorist investigations.
All hon. Members appreciate the seriousness of the terrorist threat that we face and the importance of having the right measures in place to counter it. Terrorism is a huge international challenge, but it is a particular challenge for democracies, which must strive to protect individual liberties while ensuring collective security. It is vital to strike the balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively, thus enabling the police to deal with the complexity of modern terrorism investigations. The order seeks to do that, and it is right to make it the subject of an annual debate. I say with regret that, given the nature of the threat, the absolute need for section 25 of the 2006 Act to be disapplied remains. I hope that hon. Members agree, and I commend the order, which achieves that purpose, to the House.
7.5 pm
Mr. David Ruffley (Bury St. Edmunds) (Con): We will not oppose the order. The Minister’s speech contained much good sense and I agree with much of what he said. Now is not the time for a rehearsal of the powerful arguments for and against the extension to 42 days; we are here to discuss 28 days. I was struck by the Minister’s remarks about a consensus; he even said nice things about Liberty and its comments on 28 days. I want to sign up to that spirit of consensus about 28 days, and support the Minister on it.
It is worth stating the obvious: the need for Parliament to renew section 23 of the 2006 Act annually demonstrates that the extension from 14 to 28 days is already an exceptional power. We must scrutinise it annually because it is such a dramatic departure from normal practice in this country.
As I said, Her Majesty’s Opposition will not oppose the order, which keeps the maximum period of detention without charge at 28 days. We do not oppose it because there is a consensus, as the Minister observed, but it is based on the evidence currently available to us. I would like to place on record not only the view of my former right hon. Friend the Member for Haltemprice and Howden but that of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). They both made it crystal clear, in the same terms, that in future, 28 days must be tested on the evidence available every time we test the proposition for it—in other words, annually—so that the figure is not set in stone for all time or even for a reasonably long time. It must be examined each year in the light of evidence available. That could lead to the House agreeing to a different figure.
Mr. Winnick: The hon. Gentleman speaks about a consensus. I presume that no one will vote against the order tonight. Moreover, no one in the other place, despite the many differing views there, voted against 28 days on the basis that it was too long. There is clearly a consensus on 28 days in both Houses.
Mr. Ruffley: The hon. Gentleman is right. There is a consensus, given the evidence currently available. That may change. Let me give some evidence to support the hon. Gentleman’s remarks and those of the Minister, which also reflect my view, about the consensus on 28 days, which has been agreed by the House and the other place.
In evidence to the Select Committee on Home Affairs, the Director of Public Prosecutions said:
“Well, we welcomed the increase to 28 days and we felt that a period of 14 days was not sufficient. It seems to us that 28 days has been effective and has provided us with powers, if you like, supervised by the courts, which have been useful to us as prosecutors in making appropriate charging decisions within that period. We are, on the basis of what has occurred since then, satisfied with 28 days. We have not had any cases which would require a longer period than that”
The former shadow Home Secretary recently received a parliamentary answer in which the Home Secretary stated that
“from 20 January 2004 to date, 11 individuals have been held for over 14 days pre-charge detention, six individuals were held for the maximum 27-28 days, of which three individuals were charged, and three individuals were released without charge.”—[ Official Report, 2 June 2008; Vol. 476, c. 745W.]
The figures showed that of the four suspects held without charge for up to 20 days, all were charged.
Twenty-eight days is longer than we would like to see in our common law—when I say “we”, I mean most of those who want to scrutinise these propositions, which have implications for civil liberties. Twenty-eight days is a long time; indeed, it is certainly longer than in other parts of the western, industrialised, democratic world. None the less, we believe that the extension from 14 days to 28 days was right, on the evidence available since it came into effect, including the evidence as of today.
The Minister and hon. Members will be relieved to hear that I will not recite anything about the extension to 42 days that the House voted on recently, although not because I shy away from the arguments that my friend and colleague, the former Member for Member for Haltemprice and Howden put forward; indeed, there were powerful and passionate arguments on both sides. Rather, before closing my remarks, I would like to ask a couple of questions about two issues mentioned in the
debate held this time last year, when my hon. and learned Friend the Member for Beaconsfield, now the shadow Home Secretary, stood in my position and debated the issue with the Minister.
The first question relates to concerns raised about the operation of what was then the recently introduced code H of the Police and Criminal Evidence Act 1984, dealing with terrorist cases. It seems moderately clear that the rules designed to cover the detention of a person for what is usually 24 or 48 hours are not suitable when someone is in custody for a much longer period. Can the Minister share his thinking, or any evidence, on how frequently individuals have been transferred to prison from police cells during the period of detention, and on how the system has operated in bringing them back to police stations for further interviews?
Other concerns were raised about how code H could in theory allow for a person to be questioned for hour after hour, over a period that could extend to 28 days. I am sure that that has not happened in practice. However, can the Minister give us his analysis of how the code is operating? There are, I am sure, breaks for rest. Could he shed any light on that, provided that doing so would not breach any operational or national security considerations?
The reason that is important is not a wishy-washy, bleeding-heart liberal reason, as some outside this place might characterise my questions—I am sure that the Minister would not characterise them like that—but because of fears that any statement made in a period running up to 28 days could be challenged by defence counsel at any future trial, on the basis of a suggestion that coercion had been involved in the defendant’s giving of evidence, because of excessive and prolonged questioning, which had perhaps taken place without the benefit of any requisite breaks. That concern is thrown up by what, last year, was the relatively new code H under the 1984 Act.
My second and final question also relates to something that was raised in last year’s debate, and is about how longer periods of detention without charge might allow for press speculation that made the prospect of a fair trial difficult or impossible. The Minister said that he hoped that the Crown Prosecution Service would put out a paper on that issue. Can he give us an update on that, and on what his thinking is on the subject?
Both my questions concern the operation of the regime to which the order relates. To conclude, I hope that we can get away from the idea that those who propose the longest period of detention without charge are the toughest on terrorists. Her Majesty’s Opposition believe that the House must be robust in doing our best to protect the security of the people in our country. However, that must always be balanced—this is always a difficult judgment—against our British values, parts of which rely on an adherence to civil liberties, as one of our principal weapons in defeating those who wish to harm us. It is in that spirit of friendly inquiry to the Minister that I close my remarks.
7.16 pm
Mr. Andrew Dismore (Hendon) (Lab): I rise in part to speak to the Joint Committee on Human Rights reports that have been tagged to today’s debate, all of which start from the basic premise that we have a duty to protect the public from terrorism and violence.
As has been said, it is important to recognise that the 28-day extension was to be an exception and that, as my right hon. Friend the Minister said, it amounted to a compromise. If we are considering extending that exception, we have to proceed with caution and consider the matter properly, bearing in mind that the power has not been used for at least a year since it was last renewed. It is Parliament’s duty to scrutinise the Government’s request, as put forward in the order.
I for one would not try to second-guess the Government’s assessment, although that is not primarily because of the reason advanced by the hon. Member for Bury St. Edmunds (Mr. Ruffley) about evidence to support the Government’s case; rather, it is simply that we have practically no evidence at all, one way or the other, of how the 28-day rule has operated in practice, on the very few occasions on which it has been used.
Of course, we have plenty of evidence about the general level of the terrorist threat, but that is a red herring in this debate, because the 28-day power comes into effect only once a plot has crystallised and those involved have been arrested, and once it has been shown that the 14-day period is inadequate for their questioning. What we need to consider is not the general level of the threat, but cases where people have been arrested, questioned and ultimately charged.
To enable Parliament to review the issues properly and effectively, we need a detailed and meaningful analysis. I had hoped that the independent reviewer would be in a position to provide that. The Government said that it was the intention to provide the independent reviewer’s report before the renewal debate. They are as good as their word, because it was published this morning, although that has not really given hon. Members enough time to scrutinise properly what the independent review has to say, never mind the time for a Select Committee such as mine or the Home Affairs Committee to read what he had to say. I hope that in future the Government will make the report available 28 days before the debate, as we have recommended, so that it can be properly considered. Indeed, it was a pity that the report was not available for the debates a couple of weeks ago, because the independent reviewer has brought forward useful information for both sides of the argument, as it were, on 42 days.
We now have the independent reviewer’s report, but he says nothing at all about the use of the 28-day procedure. In his 2006 report, he did not give any detail at all—not even the number of cases—about the 28-day cases in that period. In paragraph 103 of his report, he says:
“I have not been asked by Ministers to provide a detailed analysis of this system. It would be difficult for me to do so in any meaningful way without becoming effectively embedded in some cases from arrest to verdict, to gain the full picture. This has not been part of the reviewer’s tasks, but could be included if required by Parliament. I should welcome clarity as to whether this is required”.
I am sure that we would all welcome clarity on that issue. Someone needs to get into these cases to find out what has been going on, so as to avoid the kind of speculation that my right hon. Friend the Minister says is coming forward from Liberty’s putting two and two together to make five about what has been going on. The only way in which we can answer these questions is by having an independent person who can get into the meat and find out what has gone on.
My right hon. Friend has indicated, in response to our recommendation that there should be an detailed annual report from the Home Secretary, that the Government will put a memorandum in the Library containing relevant information, such as the breakdown of detention periods and the charges that have been brought. In fact, we have no information on any of the cases from the past two years, except for the fact that the power has not been used at all since it was last renewed a year ago.
We need to have some facts, however, as is made clear in Lord Carlile’s report. We know that six people have been held for the maximum period, as my right hon. Friend said, and that three have been charged and are awaiting trial. That obviously means that three were released when they came up against the 28-day wire. Once the cases that have been prosecuted are over, we shall need to analyse them to find out what evidence was available and at what stage.
My right hon. Friend has attacked Liberty for saying that the charges should have been brought earlier. It may well be that those individuals could have been charged within 14 days on the threshold charge basis, but that the Crown Prosecution Service decided to hang on to see whether it could get sufficient evidence to bring a full code charge within 28 days. I am not saying that that is right or wrong as a factual analysis, or indeed whether it is desirable to hold people longer in order to bring a full code charge as opposed to a threshold charge. We simply do not know. In future debates on renewal—assuming that we have such occasions—we need to be able to discuss whether it is better to hold people longer to get a full code charge than to charge them on a threshold basis at the earliest opportunity. That is a debate that we ought to have in Parliament as part of the way in which these cases are dealt with. As Lord Carlile says, one of the problems with a threshold charge is that it could amount to an abuse, although in practice I do not think that that has been the case, as my Committee noted in its previous report on the 42-day issue.
We need to know when and how often people are being questioned, although I accept that that is not conclusive in relation to the need to hold someone for a particular period. Most of an inquiry is taken up not by questioning but by other activities such as breaking down computers, analysing phone records and making inquiries overseas. The fact remains, however, that we need to know the answers to these questions. The hon. and learned Member for Beaconsfield (Mr. Grieve) gave us some figures on that when we were looking at the post-charge questioning issue a couple of weeks ago. On that basis, people were not questioned for any great length of time in the 28-day period, if his figures were right. We need to know what was going on in that regard. We also need to know what charges were ultimately brought, the reasons those charges were chosen and, ultimately, whether the individuals were convicted. That is the kind of detailed, qualitative analysis that we need when we are having these renewal debates, to ensure that the 28-day power is being used properly and that any exceptional extensions are appropriate.
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