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19 Nov 2008 : Column 301

Mr. John Gummer (Suffolk, Coastal) (Con): If I may help the Minister—

Mr. Coaker: No. Before the right hon. Gentleman attempts to come to my rescue, let me say that I stand here because sometimes one makes judgments. I believe that the best way forward is to have a draft Bill, which hon. Members can scrutinise in the Library and the Vote Office, and to introduce it when appropriate.

Mr. Gummer: As someone who has always opposed an extension beyond 28 days and was pretty unhappy about 28 days, I commend the Government for preparing a Bill. However, would not it be valuable for the Government to hear the House’s views about the measure in the quietude outside the time when it might have to be used, so that they could ensure that it dealt with the concerns of the majority of hon. Members?

Mr. Coaker: When things have calmed down and the Bill that we are considering has passed through all its stages, we might, perhaps three or four months down the road, need to think about how we discuss the other measure.

Instead of reintroducing the proposals for a reserve power in this House, the Government have taken action to have those protections ready to be presented to Parliament should they be needed. I therefore ask the House to agree to Lords amendments Nos. 4 to 14.

I ask hon. Members to agree to amendment No. 115 and note the minor consequential amendment that is required to tidy up the Bill after the removal of schedule 2.

Mr. Hogg: The Minister invites us to disagree to amendment No. 3 because it is unnecessary. I have examined the Bill and I cannot see any residual power that would enable the Government to extend pre-charge detention beyond 28 days. However, will he give us an undertaking that no power is concealed in the Bill, which can be exercised by statutory instrument, that would enable the Government to extend pre-charge detention beyond 28 days?

Mr. Coaker: There is no provision in the Bill for extending the maximum period of pre-charge detention beyond 28 days. That is why we disagree with amendment No. 3. I hope that that reassures the right hon. and learned Gentleman. If he has looked through the measure and found no such provision, it is not there. I hope that that puts in Hansard the reassurance that he would like.

Amendment No. 15 was clause 33 when the Bill left this House. The provision was added during the Commons Committee stage and contained minor Government amendments to the pre-charge detention scheme in schedule 8 to the Terrorism Act 2000 that were unrelated to the reserve power. However, it was inadvertently removed during a debate in the other place, despite agreement that it should remain in the Bill. The Government amendments made minor changes to schedule 8 to the 2000 Act, correcting an earlier omission of a consequential amendment and removing the requirement for the Lord Chief Justice to consult the Lord Chancellor before designating a magistrate to hear pre-charge detention extension applications for terrorist suspects for up to 14 days. I therefore ask the House to disagree to the Lords amendment, but offer amendments in lieu, which
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will place the clause in a more appropriate place and add a minor consequential amendment to that part of the measure.

As I have said, amendment No. 3 was an Opposition amendment to facilitate the debate on pre-charge detention. I hope that, with those reassurances, hon. Members will agree to disagree to the amendment.

Damian Green: The Minister has ended up facing both ways, in that he assured my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that the Government had no intention in this Bill of bringing back detention for longer than 28 days. However, the Minister also said that he had produced a Bill—I am happy to confirm for my right hon. and learned Friend that it exists in physical form and is also available online and in the Library—which thus tells us that the Government have every intention of bringing the proposal back, if they can get away with it. That is puzzling, frankly, as well as disturbing.

4.45 pm

The draft Bill is extremely relevant to the motion to disagree with the Lords in their amendment No. 3, which the Minister rightly said was a declaratory amendment designed simply to facilitate the House of Lords and make it clear what it was debating. I had hoped that all the amendments in the group with which the Government will move to agree would mean the last appearance of one of the Government’s great failures of this Parliament. The attempt to persuade Parliament to damage essential liberties managed to inspire an enormously wide coalition, which included all Opposition parties, many Labour Members who care about freedom, senior police officers, both serving and retired, the Director of Public Prosecutions, as the hon. Member for Eastleigh (Chris Huhne) mentioned, the former head of the security services, the former Labour Lord Chancellor and many more.

All those people considered the issue and did what we all need to do in such circumstances, which is to weigh up the security argument as well as the argument about basic freedoms. The reason we are discussing the very desirable Lords amendments in the group today is that the Government’s proposal to extend pre-charge detention from 28 to 42 days failed on three significant grounds: practicability, necessity and desirability. The proposal failed on all three, in that it was unnecessary, undesirable and, in both its original form and the form in which it has returned in the draft Bill, unworkable.

Mr. Gummer: My hon. Friend admitted that he was confused about why we are in this position. Is he also confused about why the Government will not agree to have a gentle debate on the draft Bill in a tranquil moment, so that we can at least ensure that if that Bill were to be introduced in an emergency, it would be the best Bill that could be produced in those circumstances?

Damian Green: My right hon. Friend makes an extremely good point, and one that I was about to come to. The key point in this group of amendments is how they intersect with the draft Bill and what we should do about it. As we decide whether to remove the stark, declaratory new clause proposed by Lords amendment No. 3, it is important for us to consider both the fact
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that the Government have produced the draft temporary provisions Bill and the way they wish Parliament to address it—or, as it would seem, not to address it—in the current period of calm.

Like many in all parts of the House, we on the Conservative Benches have made it clear all along that we would look at any evidence that supported any extension of pre-charge detention. Everything that we have said and argued throughout this long process has been predicated on the basis that if Ministers came forward with any credible evidence that persuaded us there should be an extension of pre-charge detention, we would look at it seriously and take a view on it. I am sure that that is true of the Home Affairs Committee and all the other bodies that have been weighing up that difficult balance.

As we stand here today at the last stage of this Bill’s legislative scrutiny, the truth is that at no stage has any credible evidence been produced to support the Home Secretary’s contention that extending the 28-day limit was necessary. The fact that such a wide coalition—of experts as well as Opposition parties—has assembled against the Government is very clear evidence that they never had a case for extending beyond 28 days. It is a tribute to their lordships that they not only defeated the proposal, but did so with the largest majority on a whipped vote that anyone in the other place can remember. It was not just defeated, but knocked out of court altogether.

Those who are in favour of reforming the House of Lords should acknowledge that, in this instance, it did its job superbly and could not have done it better—not least because the size of its majority has dominated the terms of the debate in this House, too. The majority in the other place was so big that even this Government did not have the nerve to try to ram the proposal through under the Parliament Act.

On the substantial issue, there should be no difference between Front Benchers because, wherever possible, we strive for agreement on security matters. The Home Secretary has said all along that she wants a consensual solution, and so do we, as it goes without saying that there is no division on fighting terrorism; it is the method of doing so that has divided us during the Bill’s passage, as this group of amendments shows.

Let me move on to the temporary provisions Bill. The Minister will already have been made aware from comments on both sides of the House that we regard this as a deeply unsatisfactory process. As he said, the Bill is in the Library, we can all read it, we can all think about and discuss it, but the one thing we cannot do is to undertake any of that in an organised way. When pre-legislative scrutiny was introduced into our procedures, it was a very good and useful reform. Surely if formal pre-legislative scrutiny should be used at all, it should be in respect of a Bill that is already published and that the Government know they would dream of introducing only in an extreme emergency—at a point when people’s emotions would be running extremely high. As it happens, we have the chance to discuss the Bill at the moment in a calm and reflective atmosphere. I cannot think of conditions in which pre-legislative scrutiny would be more appropriate.

Mr. Hogg rose—

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Mr. Deputy Speaker: Order. I am in some difficulty, as the hon. Gentleman’s suggestions would be more appropriate for another day. Reference to the Bill is appropriate, but if the hon. Gentleman continues to pursue this line of argument much further, I shall have to stop him. Does the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) wish to intervene?

Mr. Hogg: I do not think that my comment will offend against what you said, Mr. Deputy Speaker. I simply wanted to make the point that if the Bill is introduced in an emergency, the probability is that it will be done in one day and the House will not have a chance to amend it.

Mr. Deputy Speaker: Order. I do not want to keep intervening, but that matter would also be more appropriate for another occasion.

Damian Green: The Government’s motion to disagree with their lordships needs to be seen from the perspective of their ultimate intention. The Minister has assured us that there are no powers in the Bill to bring back pre-charge detention beyond 28 days, yet we know from the draft Bill that the Government wish to keep that power in reserve. I hope that the House will take that into account when it hears the Minister asking us to agree to disagree with their lordships on this matter. His case is materially weakened by the existence and content of the draft Bill and by the fact that we are not allowed to scrutinise it properly. I am sure that all Members will bear that in mind when deciding whether to give the Government the benefit of the doubt on this group of amendments.

Mr. Winnick: I hope that there will not be a vote on Lords amendment No. 3, but if there is, I will not vote with the Opposition. I may not vote with the Government either, just in case that is used in evidence against me at some later stage. I had to be very careful about how I voted in the Home Affairs Committee. As my right hon. Friend the Member for Leicester, East (Keith Vaz) is aware, I voted against the measure. Had I not done so, that would certainly have been used as evidence against my point of view on Second Reading.

In the end, as we know, the 42-day proposal was defeated in the House of Lords and carried by a majority of nine in the House of Commons. I am sure it was simply a coincidence that nine happened to be the number of Democratic Unionists who were present and voted on that occasion, but in any event the majority was just nine. Obviously a fair number of members of my own party took the same view that it was necessary to detain people for 42 days before charging them.

There is no doubt that the Government have not abandoned their wish to introduce the 42 days’ provision. They have made absolutely no secret of that. The Home Secretary was quite frank when she came along on 13 October, after the defeat of the measure in the House of Lords. She did not suggest for a moment that the Government had changed their mind.

The Government are, of course, perfectly entitled to change their mind, but the fact that I strongly disagree with them on this issue does not mean that they have to do so. They have stuck to their opinion: they still believe that detaining people for 42 days before charging them
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is justified. That is the difference of opinion between the Government and those of us who take quite another point of view.

Many people, including the outgoing Director of Public Prosecutions, have said that they see no necessity for people to be detained for more than 28 days. I reminded the Home Secretary in the Home Affairs Committee last week that not one but two former directors general of MI5 were opposed to it. She was a bit surprised, and asked me to name the second; I replied that it was Stella Rimington. It is obvious that quite a large body of people who know all about the dangers of terrorism are not persuaded by any means that it is necessary—at least at this stage—to detain people for longer than 28 days. It should also be borne in mind that three years ago the House doubled the period of pre-charge detention from 14 days to 28.

Pete Wishart: The hon. Gentleman is advancing a powerful argument. Given the Government’s determination to see this through and try to secure the 42-day measure, and given the total opposition to which the hon. Gentleman rightly refers, would it not provide added security for the measure to be included in the Bill, at least to ensure that it is stopped in its tracks?

Mr. Winnick: Obviously the hon. Gentleman and I do not disagree on the issue of pre-charge detention, but my hon. Friend the Minister made it perfectly clear in response to an intervention that the measure we are discussing cannot be used to extend pre-charge detention beyond 28 days. If there were some mechanism allowing it to be so used, I would be inclined to vote, and indeed to press for a vote; but as the Minister has said what he has said and it is in Hansard, I see no need to put to the vote an amendment that would without doubt be defeated. Indeed, I wonder from a tactical point of view whether voting for it would serve the interests of those of us who see no justification for an extension beyond 28 days. However, this is not my amendment, and it is up to the Opposition to decide what to do.

I do not want to go against your wishes with regard to the other Bill, Mr. Deputy Speaker. It has been published, as we know. Last Thursday, along with other members of the Home Affairs Committee, I pressed the Home Secretary on the issue. Whether we want it to be debated at some stage is another matter, although I should like to see it completely dropped.

I do not believe that 28 days should be set in concrete. I have said before, and I repeat today, that if there is compelling evidence that it is absolutely essential for the security of our country that we should go beyond 28 days, I will vote for it—others may not, but I will. However, there is no such evidence, and all the authorities that have been mentioned have also made it clear that there is no justification for it. I would like the extension provision to be dropped, but as there is no mechanism in the measure before us for extending the period, I urge that the amendment not be pressed to a Division.

5 pm

Chris Huhne: The Liberal Democrats are very pleased that the Government have decided not at this time to press for any further extension of the period of detention without charge. We are not in any way being softer on terrorism or less enthusiastic about bringing terrorists
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to justice than any other party, but there is a fundamental disagreement about the correct and most effective way of tackling this situation. As the hon. Member for Walsall, North (Mr. Winnick) pointed out, this House passed this measure by only nine votes and nearly rumbled the Government in their arguments on the extension of the period of detention without charge, and the House of Lords then comprehensively did so, with a substantial majority voting against. There is no doubt that over the whole period that we have been considering this matter the arguments of the Government—of Ministers and the Prime Minister—have been comprehensively lost. I wish now to summarise why it is appropriate to press these amendments withdrawing the relevant provisions in the Bill to a vote.

This country already has a period of detention without charge of 28 days. Ministers have in the past suggested that international comparisons are always difficult, but international comparisons between our country as a common law jurisdiction and other common law jurisdictions are not difficult. We have a longer period of detention without charge than any other common law jurisdiction. It is, in fact, more than double the length of the next longest period of detention without charge of such a country, which is Australia’s period of 12 days. Even in Australia, the provisions for extending the period to 12 days specifically introduce periods of cooling off in between the interviewing of suspects.

As I have pointed out, Sir Ken Macdonald, the outgoing Director of Public Prosecutions, clearly said that he did not need these powers precisely because conviction rates on terrorism are running substantially ahead of the Crown Prosecution Service’s general success rate in serious crime. That shows that there is the necessary flexibility for the CPS to bring charges; it can bring charges against people, and it is unnecessary to hold them for prolonged periods.

What is, perhaps, most important is that this country has always attempted to respect the principle of people being innocent until proven guilty, and the people who are most likely to be caught up in a prolonged period of detention without charge are the innocent, precisely because they are likely to resist and to fail to give any evidence. As a result, we have discovered that the majority of those who have been held right up to, or very near, the end of the period of 28 days have been totally innocent—innocent in the sense that there has been no desire to conduct further investigations or, as we know from what the Home Office has said, to take any further action taken against them of the sort that would be available under other provisions.

There is a real risk that if we were to go down the road of extending detention without charge from 28 days in the draft Bill that the Home Secretary has placed in the Library, we would alienate a very substantial section of the ethnic minorities whom we need for our intelligence leads to find terrorists. Indeed, we also need them to come to court to give evidence as witnesses. As we know, the parallels are not exact, but there is no doubt that when the House went over the top and introduced disproportionate powers to tackle Irish terrorism in Ulster—internment—it had a dramatically counter-productive effect on the minority Catholic community’s willingness to give evidence and come forward as witnesses.

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