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We must also remember the three people who were not charged. There is no reason why we should not start to carry out some of this analysis of their cases now.
For example, we could find out what interviewing took place and over what period, and whether the investigation was conducted with the urgency required of the system. I make no allegations about whether it was or not; I am quite happy to accept my right hon. Friend’s word that it was conducted with urgency. However, that is his assurance—
Mr. Dismore: My right hon. Friend says that it is also the DPP’s assurance, and that might well be the case. However, that does not give the same guarantee as an independent assessment would give, which I think will be necessary in future to ensure public confidence that a case has been scrutinised as effectively and in as much depth as possible. My Committee would like to see an independent review, perhaps by the Metropolitan Police Authority, although the Government’s previous response to that proposal was that it would not be appropriate because of prosecution decisions. Perhaps a review by the CPS inspectorate, working with the MPA—most of these cases end up being prosecuted in London—would be a good way of carrying out a combined analysis of what has been going on behind the scenes.
There has been no assessment of the impact of the provision on individuals. We are told in the explanatory notes:
“An Impact Assessment has not been prepared for this instrument as it has no impact on business, charities or voluntary bodies.”
We are also told that the impact on the public sector is likely to be negligible. We know nothing about the impact on the individuals who have been held for 28 days: the three who were released and who were innocent, and the three who were charged. We know nothing about the impact on their mental health, their families or their employment position. The Government told us in their last letter to us that they had obtained no independent medical evidence on the psychological effects on the individuals concerned or, more generally, on what could be expected on an objective view.
It is my Committee’s view that the Government ought to obtain and make available to Parliament general advice on the psychological impact of being held without charge for such long periods and—when it is possible to do so—to provide an actual assessment of the impact on the individuals concerned, in terms of their mental health and of the broader impact on their lives. We could do that now in relation to the three who were released without being charged.
Our main concern relates to the so-called judicial hearings around the extension process. We do not believe these hearings to be fully adversarial, there is limited disclosure, and the suspect and the lawyer are excluded for much of the hearing. The focus is on whether the investigation is conducted efficiently rather than on whether there is sufficient evidence to justify the arrest and continued detention in the first place. The case of Garcia Alva v. Germany in the European Court of Human Rights sets out in detail what is expected and goes on to say:
“The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the ‘lawfulness’...of their deprivation of liberty...the court has to examine ‘not only compliance with the procedural requirements...but also the reasonableness of the
suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention...The proceedings must be adversarial and must always ensure ‘equality of arms’ between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention...The court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information...is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice.”
The decision goes on to say that
“this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence.”
If we look at the proceedings that we now have under schedule 8, we see that it is clear, on any objective analysis, that what is now happening does not meet the requirements of the European Court of Human Rights and, by extension, article 5. It is also interesting to note that Lord Carlile, in paragraph 105 of his report, seems to agree. He says that
“judges should be permitted to intervene more and make greater demands as the length of detention is extended.”
“The government should consider empowering judges to scrutinise the reasons for detention, and the adequacy of the work done to bring the case to charge, from the 7th day after arrest.”
So we should be concerned not only with the procedure and the fact that the case has been conducted efficiently, which is what we have already. Lord Carlile is saying that we should also scrutinise the reasons for the detention in the first place, which I have advocated in the House on previous occasions. The last time we debated these issues, a number of amendments were tabled on that point.
It is not true to say that these proceedings have not been challenged in the courts. They were challenged in the case of Naseel Hussein, but he was caught in a Catch-22 situation when the High Court said that it would not review the decision of a High Court judge to extend his detention. That could also have the effect of excluding a potential habeas corpus application as an abuse of process. Habeas corpus requires the person doing the detaining clearly, directly and with sufficient particularity to provide the facts relied on as constituting a valid and sufficient ground for the detention of the person concerned. It is pretty clear that the schedule 8 application does not do that, because the focus is not on the reasons for detention—which is what habeas corpus requires—but on the course of the investigation. That reinforces the point about schedule 8 not meeting the requirements of article 5 or habeas corpus.
I think that we need to see amendments to the procedure to make sure that we comply. We need to see a statement of the basis of the arrest given to the detainee and the gist of the material forming the grounds of suspicion given to the suspect. We need special advocates for the closed part of the hearing and, importantly, we need entitlement for the judge to look at whether there are reasonable grounds for the belief that the suspect was involved in terrorism in the first place, and reasonable grounds to justify the arrest and the continued detention.
I am not going to oppose my right hon. Friend the Minister today and I hope that he will see my comments in the intended light—as an attempt to make a constructive contribution to the debate. I think that we need a lot more information about what has been going on in a
qualitative way in the cases that we have already seen. I also think that he needs to look at the judicial safeguards as these provisions will be challenged ultimately in the European Court and I do not think that they will stand up.
7.30 pm
Chris Huhne (Eastleigh) (LD): I am pleased to follow the hon. Member for Hendon (Mr. Dismore), who speaks on this issue with a good deal of sense after looking at it very carefully and thinking about it deeply. We on the Liberal Democrat Benches will not oppose this temporary annual disapplication. No one should underestimate the serious threats from terrorism and terrorists. We need to be resolute and forearmed in meeting them, but we must do so in a way that is seen to be proportionate.
Our judgment is that 28 days’ detention in present circumstances can be viewed as proportionate, given the evidence from Operation Overt, the investigation in 2006 into the Heathrow bomb plot. I accept that that is longer than any comparable common law country: Australia has 12 days—the longest—the United States two days and Canada one day as the traditional period before a writ of habeas corpus can be served. We will not oppose the need for 28 days temporarily in the UK, partly because it is widely accepted that we face a greater threat in this country than in many others—due not least to our misguided participation in the illegal invasion of Iraq, which is this Government’s sad and lasting legacy on this issue. That does not mean, however, that 28 days should be seen as permanent or that we will not oppose this in future.
As the Minister said in the debate last year, other developments such as post-charge questioning need to be taken into account in deciding whether 28 days is proportionate and appropriate. Indeed, four developments have taken place since the 28-day period was placed on the statute book in November 2005. First, we now have proposals for post-charge questioning in the Counter-Terrorism Bill. Secondly, the Chilcot report has made recommendations for the admissibility of intercept evidence in court, which our counterparts in the United States and Australia find to be essential. We look forward to Ministers’ proposals, particularly in light of the comments of Sir Ken Macdonald, the Director of Public Prosecutions, to the Public Bill Committee on the Counter-Terrorism Bill. I quote what he said, as it is relevant to the temporary extension to 28 days:
“Certainly, in other jurisdictions, they regard that material”—
he was referring to intercept evidence—
“as absolutely indispensable. The Americans told me that they could not remember an organised crime prosecution in the United States that last proceeded without intercept material. The Australians told me that people who did not use this material were not ‘serious’ about prosecuting organised crime”. ——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 48, Q124.]
For organised crime, we could certainly read terrorism as well.
The third development since we put this provision on to the statute book is that the Government have rightly put more resources into the Security Service and into counter-terrorist policing on a substantial scale. That increase inevitably reduces the need for an extension of the period of detention without charge, as greater complexity can be handled with greater resources.
Fourthly, and perhaps most significantly, there has been a substantial development in the flexibility of the threshold test, as Sir Ken Macdonald has pointed out. The Crown Prosecution Service does not need to ensure that there is a 50 per cent. chance of a successful conviction. Moreover, it is relevant in assessing Sir Ken’s margin of manoeuvre to look at the Crown Prosecution Service’s success rate with terrorist charges, which has been running at no less than 92 per cent. since the beginning of last year. Clearly, a 92 per cent. success rate after the event can and must inform the CPS about the chances of conviction before the event. It strongly suggests that the CPS has been somewhat conservative in allowing charges to be brought and can therefore have more flexibility in future. Again, that provides a strong argument for reconsidering even 28 days, let alone extending it further.
The Liberal Democrats will not oppose the extension, while recognising that the arguments in its favour are weakening as our other precautions strengthen, and we merely ask Ministers to accept that principle, as did the Minister precisely on this matter last year. Making progress on the four areas that I mentioned can make the need for lengthy periods of detention without charge unnecessary, and whether an extension beyond 14 days is necessary will warrant reconsideration before next year.
7.36 pm
Keith Vaz (Leicester, East) (Lab): I apologise for arriving a little late and missing the Minister’s contribution, but I was here to hear the hon. Member for Bury St. Edmunds (Mr. Ruffley) speaking for the Opposition. I will be brief. Clearly, the House will pass this order and it is clearly essential that we do so in the interests of this country’s security, but I want to make a couple of points that I hope the Minister will take into account in his reply to this short debate.
The first is that we are discussing 28 days now because that was the compromise that Parliament agreed to the last time this matter came before the House. It was certainly the case before we discussed and passed 42 days a few days ago. That previous compromise was due to the hard work of my fellow member of the Home Affairs Committee, my hon. Friend the Member for Walsall, North (Mr. Winnick), who tabled the amendment that was to gain the House’s agreement. At that stage, as we all know, this was an extension of existing law. In accepting and passing this order as we doubtless will today—it seems to be agreed by all parties—it is essential that we look to two particular aspects highlighted by the Chairman of the Joint Committee on Human Rights, my hon. Friend the Member for Hendon (Mr. Dismore). I hope that the Minister will respond to both those aspects in his reply.
The first is the impact on individuals who have been held by the police for up to 28 days. We in the Home Affairs Committee took evidence from the two gentlemen who were referred to as the “Forest Gate Two” and it is important to try to get a feeling of what it was like for such people to be detained under legislation for a period of time. Their evidence was strong, compassionate and compelling. It is important that we see the impact of this legislation and this House’s decisions on individuals
detained such as the “Forest Gate Two”, but I would like to go further and consider the impact on communities. I make that point in all our debates on counter-terrorism legislation.
I know that the Government are very proud of their record in providing £12 million from the Department for Communities and Local Government for proper engagement with communities—by and large, members of the Muslim communities and their organisations. It is important to view our legislation in the light of its impact on communities, as we need to carry communities with us if we are to continue to make the case—as we have to, and as the head of MI5 made when he addressed the Society of Editors last November—for dealing with a growing threat. As we make that case, we need to carry communities with us.
The second point, which was made by my hon. Friend the Member for Hendon and which I support strongly, is the need for the Government to provide more information. Obviously, the Select Committee process allows Ministers to come to the Committee and answer questions on issues of fact. I see in the House the hon. Member for Colchester (Bob Russell), another member of the Home Affairs Committee. During that Select Committee process—when we took evidence from, among others, Sir Ken Macdonald, Ministers and those affected by the legislation—we elicited information from the police on the number of people being held for up to 28 days. That was the first time we were told that nobody was held on the dot for 28 days—indeed, people were being released beforehand—but there must be a better way of getting such information to the House. That is especially important in view of Government decisions taken during the debate on 42 days to provide additional information and to seek the views of the Chairmen of the Joint Committee on Human Rights and of the Home Affairs Committee, whoever they may be in future, on any decision to extend the detention period.
Once we have accepted the principle of consulting the Chairs of the relevant Select Committees, there is nothing wrong in those circumstances with regularly providing information to the Chairpersons of those Committees, whoever they may be. Therefore, the need for us to table parliamentary questions and to have inquiries on the issue will, in a sense, not be as important, because we will regularly receive that information.
I hope that the Minister, rather than wait for another year to go past, will regularly provide that information, some of which was mentioned by my hon. Friend the Member for Hendon. It will better inform members of the relevant Committees of the number of people being detained and the reasons for their detention. I say that in a friendly way to the Minister, because I believe that he and the Home Secretary, in this difficult, dangerous and sensitive area, persisted in ensuring that so many people were consulted on the last piece of legislation to go through the House. In the spirit that the Home Secretary and the Minister have addressed the issue over the last few days, weeks and months, I hope that he will be more forthcoming with the information that he provides.
Bob Russell (Colchester) (LD):
Before the Chairman of the Home Affairs Committee sits down, would he like to advise the House of the thinking of the Americans we met with regard to intercept evidence and the fact
that Americans do not need 28 days? They look to Britain with some surprise because we do not use intercept evidence and we need 28 days, let alone 42.
Keith Vaz: The hon. Gentleman is absolutely right. We did indeed take evidence on that very subject when we went to Washington. As the hon. Member for Eastleigh (Chris Huhne) made clear, this was a recommendation of the Select Committee and we said to the Government, “Here is an example of a tool that can be used to find out who these terrorists are so that if you prosecute, you can have a successful prosecution.” That is why we put it forward. The Government have not quite accepted it.
When the Prime Minister last addressed the House on the issue, I suppose he accepted the principle, but he said that there were lots of practical difficulties, no doubt associated with the security services, which were reluctant to have intercept evidence used in prosecutions, but that is certainly what we were told by the Americans. I will not go down the route of whether they thought 28 days or 42 days was desirable, because that would open up another debate and I think the House has probably had enough of that over the last 10 days. On intercept evidence, the hon. Member for Colchester (Bob Russell) is right, as the hon. Member for Eastleigh pointed out. On post-charge questioning, that is exactly what the Home Affairs Committee suggested and exactly what the Government accepted.
Finally, let me make these remarks in the same spirit that the Government have approached counter-terrorism legislation over the last six months. I urge the Minister to consider this area and provide as much information to Parliament as possible, so that when we vote and decide on those critical issues, we are the best informed that we possibly can be with the information provided by the Government.
7.44 pm
Bob Spink (Castle Point) (UKIP): I, too, apologise for not being present to hear the Minister’s earlier remarks.
I am grateful to the right hon. Member for Leicester, East (Keith Vaz), the Chairman of the Home Affairs Committee, for raising the issue of intercept evidence, which is an important option that I encourage the Government to consider carefully for the future. Like every speaker so far, I support the motion. I do so because I feel I have a duty to support it.
I represent many thousands of constituents who work in London, which is on the front line of the world terrorist threat. Those people work to keep this country in the manner to which it has become accustomed and they put their lives on the line, so they must look to us in the House to give them the maximum possible protection from that terrorist threat. I would hate to send out a message to the world terrorist community that Great Britain has gone soft on terrorism or in its resolve to take every possible measure to counter terrorism.
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