 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
WitnessesLord
Carlile of Berriew QC, Independent Reviewer of
Terrorism
André Rebello,
Secretary, Coroners’ Society of England and
Wales
Tony McNulty MP, Minister of
State, Home Office
Jennifer Morrish,
Legal Adviser, Home Office
David Ford,
Head of Terrorism Legislation, Home Office
Public Bill CommitteeThursday 24 April 2008
(Afternoon)
[John Bercow in the Chair]Counter-Terrorism Bill1
pm
The
Chairman:
I welcome our expert witness and other
interested observers to this afternoon’s evidence session. For
the record, I ask our witness to formerly introduce
himself.
Lord
Carlile:
I am Lord Carlile of Berriew
and I am the independent reviewer of terrorism legislation for the
purposes of my attendance this
afternoon.
The
Chairman:
Thank you. As the Committee knows, we have 45
minutes with you and have agreed that for up to 15 minutes questions
will focus on matters other than pre-charge detention without
trial.
Q
311311
Mr.
Dominic Grieve (Beaconsfield) (Con): Good afternoon, Lord
Carlile. I want to touch on post-charge questioning and, in particular,
on whether judicial supervision of that process is needed. Do you wish
to express a view on
that?
Lord
Carlile:
I believe that post-charge questioning could
be subject to a code of practice, or an amended code of practice, which
would not require judicial supervision, as long as the code of practice
was clear enough. Something similar to code C under the Police and
Criminal Evidence Act 1984 could be used to regulate that procedure. My
own view is that post-charge questioning is—this is contrary to
what seems to be some people’s impression—very much not a
silver bullet and will make limited difference to
cases.
Q
312
Mr.
Grieve:
I do not think that there is huge disagreement
about that. Its use would be limited, but there seems to be a unanimous
view—I think that this is correct—that it would be a
useful extra. The concern expressed is that it is a departure from
normal practice. At that stage, usually the person will be awaiting
trial, so post-charge questioning could be oppressive. It might be
sensible, therefore, to regulate it by requiring an application to the
courts.
Lord
Carlile:
I have no objection to that viewpoint, but I
think that it is probably unnecessary. At any stage, when a person is
asked to answer post-charge questions, they will be fully represented
by their lawyers. Nobody has ever suggested that the process should
take place in the absence of their lawyers. I would have thought that
that was sufficient protection, just as it is when people are
questioned pre-charge about very serious offences, which happens all
the time. However, I have no particular objection if the Committee or
Parliament feel happier with the injection of a judge to supervise the
process. I am sure that the judges would do as they were
told.
Q
313
Mr.
Grieve:
I turn then to data sharing, on which the Bill
contains a considerable amount of new legislation. As we perceive
it—I think that we have probably understood it
correctly—part of it will bring the work of the Security Service
and the Secret Intelligence Service on to a statutory footing in this
area. Nevertheless, in some ways, the powers involved represent a
radical departure and envisage the ability to share information,
explicitly on a statutory basis, for reasons other than crime
prevention or dealing with crime. The concept of national security is
not necessarily highly defined. Do you have a view on
that?
Lord
Carlile:
It is very difficult to define exactly the
concept of national security. The security services certainly have a
need to share information, as do other control authorities, which is
the generic term that I use for the police, the security services,
Revenue and Customs and so on. I go to a lot of airports and seaports
and I have seen some bad examples of useful information being available
but not shared. I believe that any information that is potentially
useful in the prevention and detection of terrorism should be shared by
appropriate bodies. If that requires placing it on a statutory footing,
again, I have no possible objection. I would support
it.
Q
314
Patrick
Mercer (Newark) (Con): My Lord, I have asked every witness
for their comments about plea bargaining or plea mitigation, and we
have had interesting and varied answers. May I hear what your views
are?
Lord
Carlile:
I have been at the Bar for 37 years and I
have been plea bargaining for 37 years. There is nothing new about it,
as any practising lawyer knows, but the issue is about whether we
should put it on a statutory footing. Now, we probably need to place it
on a statutory footing, but we should not lose the best of what we have
been achieving over the years. The so-called Goodyear direction is
already extremely valuable. It is a hearing in which the defence can
ask the judge, in open court, to hear both sides and give a view as to
what the likely sentence would be if there were a guilty plea at that
stage.
What
I am worried about, is us adopting the American system of plea
bargaining. I have examined the so-called 5K1 procedure in considerable
detail, and I have read transcripts of a complex procedure of that
kind. Very much less is recorded in writing in the United States than
in the United Kingdom. It is naïve to say that we can simply
adopt American practices, because they would not be permitted by courts
as evidence. The product would not be good evidence in courts in the
United Kingdom. If we are going to structure plea bargaining, we must
ensure, first, that it is done in a fair way. Secondly, reductions in
sentence must be real—they must be substantial. If someone is
facing a sentence of 40 years, it is no use having plea bargaining that
reduces it to 36 years. That is unrealistic. Thirdly, there must be a
procedure to give proper credit in a proper way—which may be
highly confidential and possibly not even at the time of
sentence—to people who supply substantial information that
assists the prosecution and conviction of others. I hope that that
answers your question.
Q
315
Patrick
Mercer:
Liberty made the entirely reasonable point that,
while it understood the need and supported the theory, at least, of
plea bargaining, there
had to be “justice”—its word, not mine—for
the victims of the crime. For the sake of argument, suppose that a
40-year sentence was reduced to four. How would that sit with you in
terms of the perceived fairness for those survivors, relatives or
whoever, who were expecting a heavier sentence?
Lord
Carlile:
That is a matter for the court. You have
given an extreme example; I cannot think of a situation in which a
40-year sentence would be reduced to four. However, if a 40-year
sentence were reduced to, for example, 15 years, and the consequence
was that 1,000 lives were saved, that would seem to me to be entirely
proportionate. We are talking about the crux of English administrative
law—proportionality. The reduction must be proportional to the
information that has been given. The record of administrative court
judges in recent years shows that they are pretty good at applying the
proportionality test, and I suspect that most judges would quickly get
used to that kind of situation. If you look at the records of Diplock
courts in Northern Ireland—as you will know, Mr.
Mercer, as I think that you have some Northern Ireland
experience—
Lord
Carlile:
Yes, I gathered that. The record of Diplock
courts in Northern Ireland in dealing with all these issues is
extremely good, and compares very well with the records of judge and
jury courts in England and Wales.
Q
316
Tom
Brake (Carshalton and Wallington) (LD): May I return
briefly to the question of post-charge questioning? You have said that
you are comfortable with that, and for a code of practice to be put in
place to deal with it, with or without judicial oversight. Should there
be a different approach if the post-charge questioning is about a new
matter, rather than that with which the person was originally
charged?
Lord
Carlile:
I am not sure that
post-charge questioning is necessary if it is about a new matter. I
know that some lawyers are in the room. They may or may not agree that
if there is an entirely new matter, then there is a new arrest, and the
whole process of pre-charge questioning starts again. If someone is in
custody for robbery and they are then arrested for a murder, there is
an entirely separate set of proceedings for that murder.
The real
point that I want to make about post-charge questioning is that by and
large people will not answer the questions anyway. You have to realise
that the value of the adverse inference, which would be brought into
play if people failed to answer post-charge questions, is limited,
particularly if people refuse to answer questions on the advice given
by their solicitor. In that case, they can then say in court,
“My solicitor told me that we had not had full disclosure and I
was advised not to answer questions.” On the whole, juries do
not pay particular regard to an adverse inference in that
situation.
Q
317
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Lord Carlile,
what is your view of the proposals in the draft Bill concerning
coroners’ inquests? How would the rights of the bereaved
families be properly protected? That is question one. May I ask a
second
and similar one? What about the public interest in ensuring that the
state and public bodies are held to account and are seen to be held to
account?
Lord
Carlile:
The coroners’
provisions were introduced in the Bill after I was asked to report on
the proposals in the draft Bill. I am not completely happy about the
coroners’ proposals because they have reduced too far the
transparency of inquests. Having said that, it is clear that national
security must be protected. There are some cases and inquests in which
having a jury is not a realistic option because of the public interest
and the national security aspects that might arise. The relevant clause
in the Bill is drawn rather more widely than it needs to be. I am also
firmly of the view that a special advocate procedure needs to be
inserted if inquests are to take place in the broad parameters that
were introduced into the Bill at a fairly late stage, so that the
interests of families, the deceased and others will be protected as
special advocates protect people in judicial hearings of control
orders, with a sight of all the closed material. Special advocates have
proved peculiarly useful and successful recently in control orders
cases in the High Court, and that could be replicated in
coroners’ inquisitions.
I have a
sense of disappointment that the proposals of the independent committee
that looked into inquests have been so heavily diluted by the
Government that they bear little resemblance to the committee’s
conclusions. The add-ons in the Bill leave me feeling slightly
uncomfortable. There is certainly room for
amendment.
Q
318
Mr.
Llwyd:
With regard to the issue of
transparency and of public bodies being held to account, special
advocates deal with the bereaved family aspect, but inevitably there is
a feeling that things are going on behind closed
doors.
Lord
Carlile:
National security has been protected behind
closed doors for centuries. Spy trials take place in camera. The
control orders cases involve special advocates. Under whatever new
inquest procedure we have, the coroner, whoever he or she is, will have
to produce a detailed written judgment. Like the control orders cases,
it may turn into two judgments: a closed judgment and an open judgment.
The open judgment is issued to the public, but there must be enough
reasoning to satisfy the proper requirements of
transparency.
The
Chairman:
Two colleagues have indicated that they want to
come in on matters other than pre-charge. We are about to reach our
limit, but I will take those two on the understanding that the
questions are brief. I know that our witness will be succinct; he has
already demonstrated that in his
answers.
Q
319
Ms
Dari Taylor (Stockton, South) (Lab): I am interested in
the way in which people are talking more and more about using intercept
as evidence. I would be grateful if you could give us your view about
how intercept evidence might be useful, limited or perhaps not used at
all.
Lord
Carlile:
The Chilcot inquiry has now reported and I
broadly agree with its conclusions. I have always been in favour of the
availability of intercept evidence. My own view, having examined an
awful lot of terrorism cases, is that intercept
evidence would be useful in a very small number of very serious cases:
possibly one or
two in the next three or four years. That is not a scientific analysis,
but an educated guess. Competent terrorists, if I may use that
expression, are very counter-intuitive about intelligence efforts. One
hears stories, although this is only a hypothetical example, of
terrorists going into a park and lying prone, face down on the grass,
so as to talk to one another head to head. Those kinds of people do not
say things on telephones that would be much use to anyone. Also, it is
absolutely vital that national security should be protected. That
applies in every single country that I know of that admits intercept
evidence, and I do not know of any comparable country where there is an
exception to that rule.
Q
320
Ms
Taylor:
Yes. I have been led to believe that the
technology that is used is becoming much more complex and that it will
ensure that tracing will become so much more difficult that intercept
will become less and less available to us.
Lord
Carlile:
I cannot comment on the technology because I
am not an expert on it, but I would have said that the balance stays
roughly the same as technology develops. The state’s ability
with technology increases and the terrorists’ interest in
technology increases, so although the actual technology used changes,
we are roughly in the same
position.
Q
321
Mr.
David Heath (Somerton and Frome) (LD): I would like to
have asked whether your view is that the safeguards for post-charge
questioning, particularly the lack of an extant text of the changes to
the basic codes of conduct, were satisfactory, but I will instead ask a
very specific question about part VII of the Terrorism Act 2000. You
drew attention in your report to your experience of its operation in
Northern Ireland. However, it has been put to me that the fact that
that has now been repealed as part of the normalisation process means
that its reintroduction in Northern Ireland will be seen as a
regressive step, albeit as part of a UK-wide provision. Do you
recognise that and would you care to comment on
it?
Lord
Carlile:
No and yes. No, I do not recognise it
because it is not a comment that has been made to me by anyone in
Northern Ireland. I go to Northern Ireland fairly frequently, where I
talk to all of the political parties, visit community centres and
obtain anecdotal evidence wherever I can. I have not heard that said. I
think that it is viewed with satisfaction in Northern Ireland that part
VII has been repealed, and rightly so. It has actually been replaced by
something that is extraordinarily like part VII but is in fact public
order legislation, so very similar powers are available. As a matter of
logic, Northern Ireland is and remains part of the United Kingdom, so I
cannot see a logical argument for not including Northern
Ireland.
Q
322
Mr.
Ben Wallace (Lancaster and Wyre) (Con): With regard to
your prediction for the use of intercept, Lord Carlile, could you
clarify that the use of surveillance transcripts or footage has been
incredibly useful in achieving convictions? In the example that
you used of two men in the park, their conversation would be under
surveillance, probably direct if it was a public place, and would
therefore be admissible in a court of law. Is not the nub of the
problem that the differences between the definitions of surveillance
and interception need to be re-examined before we debate whether it is
admissible?
Lord
Carlile:
I think that it is simpler than that, if I
may say so, Mr. Wallace. There is a specific ban on the use
of the product of conversations on a public telephone system. It seems
illogical to have such a ban, when what you have rightly called
surveillance interception is available. I have been involved in
numerous cases in which telephone calls have been intercepted, not
through the telephone system but by placing a bug in the ceiling of the
room, and used as
evidence.
Incidentally,
may I just add one sentence, please, Chairman? Intercept evidence could
prove immensely useful in the detection of ordinary crime. It will
probably be least useful in the detection of terrorist crime. The FBI
has illustrated well how, for example, you can sting huge drugs or
money-laundering conspiracies with the use of interception as a primary
investigation
tool.
Q
323
Mr.
Grieve:
Lord Carlile, you are aware of the issues and
debate that have taken place on the matter. Why do you feel that this
is a proportionate response to the threat? In particular, may I press
you on the point about which we have heard, that a lot of evidence is
being required on a contingency basis rather than for actual use, at
present?
Lord
Carlile:
The decision to seek the evidence on a
contingency basis is made by the Government. It is a political decision
that I assume is related to potential legislative difficulties. I
entirely understand that, but for this purpose, I am no
politician—indeed, others may say that I am not for other
purposes. I am here simply to advise on the merits of the situation. My
view is that it is proportional. I can give a number of reasons and
examples for that.
I will give
you a sort of headline. In two cases so far, suspects have been charged
using what is called the threshold test, and I think that you are aware
of the tests used by the Crown Prosecution Service. In two cases,
suspects have been charged using the threshold test at or very near to
the current limit of pre-charge detention. I do not view the threshold
test as hugely satisfactory. It is desirable in as many cases as
possible that people should be charged with something approaching the
criminality of which it is reasonably suspected that they are guilty
and on which a prime facie case will be presented. I have heard it said
that the way to deal with that is simply to produce holding
charges—the threshold test almost encourages that—and to
produce the real charge at some later stage. I do not see that as being
any more human-rights compatible than a properly judicially supervised
extended detention period that results in proper charges being brought
on a sound basis, without the necessity to use the threshold test,
which is undoubtedly second-best, as the Crown Prosecution Service
recognises.
Q
324
Mr.
Grieve:
May I come back on the point that you have raised
about there being two cases in which the charges were brought very
close to the end of the 28-day period; I cannot remember whether it was
26 or 27
days—
Lord
Carlile:
It was 27
days.
Q
325
Mr.
Grieve:
Twenty seven. There has been a difficulty with
that. You may be able to look into it and help the Committee by writing
to us.
I choose my
words with care in identifying the cases, as I am extremely conscious
that both may well still be sub judice. It has been suggested not, I
wish to emphasise, that the police somehow deliberately delayed
charging, but that, as it turned out at the end of the process, it was
not a case in which it could be said that 27 days were needed to
formulate the case. The evidence on which the charges were eventually
brought was, in fact, available considerably earlier in the process. In
saying that, I make no criticism of the police and the fact that they
may have wished to have looked at other aspects in the intervening
period. Are you able to help the Committee on that
matter?
Lord
Carlile:
Yes. It is very difficult to talk about sub
judice cases, as Mr. Grieve recognises. However, I believe
that there will be cases among the current considerable crop waiting to
be tried in which people will be tried for lesser offences than might
otherwise have been the case. I believe that there have been cases in
which people have been charged when greater evidence might have been
made available by following up sensitive intelligence or other evidence
that is inadmissible for the time being. I believe that there are cases
where encrypted material that has not been dis-encrypted—if such
a word exists—has not been accessed. I think that there have
been cases where inquiries overseas, which might have led to a more
realistic and serious charge, have not been completed. Those are some
examples.
This may be
straying from Mr. Grieve’s question, but the simplest
example that I usually give about cases in which more than 28 days
might be needed, subject to appropriate controls, is when a terrorist
is injured at the time of arrest and is unfit to be interviewed for 28
days. That happened in Glasgow. The unfortunate Mr. Ahmed
died more than 28 days after he was burned in the event. Had he become
fit to be questioned, it is certainly arguable—arrest being a
mixed matter of fact and law—that he had been under arrest
throughout that period and that time had therefore run out. That is
arguable and were I in a case of that kind I would undoubtedly argue it
with a reasonable prospect of
success.
Q
326
Mr.
Heath:
The example of Kafeel Ahmed is very interesting.
The man was in a Jeep Cherokee armed with explosives that crashed
through the doors of the terminal building at Glasgow airport. Had he
regained consciousness, is it inconceivable that he might have been
charged with an offence and therefore been remanded in
custody?
Lord
Carlile:
Of course it is right that he would have
been, but the issue is whether he could have been asked questions.
Nobody can predict how a suspect will react during questioning. Most do
not answer questions, but
some do. It is potentially very valuable to the
police and extremely valuable to the inquiry to carry out interviews.
Sometimes the effect of interviewing is to draw to the attention of the
person being interviewed the real strength of the potential prosecution
case. In some cases, that can lead to their pleading guilty or
providing
information.
Q
327
Mr.
Heath:
My point is that if with the provision for
post-charge questioning there was no problem with continuing
questioning, surely it is inconceivable that that individual would have
been released, whether after 28, 42 or 90 days, without charge under
those
circumstances.
Lord
Carlile:
I think—at least I hope—that
it is inconceivable. However, my point is that he could not then have
been questioned under the present provisions. As to post-charge
questioning, the rules will have to be drawn very carefully
indeed.
Lord
Carlile:
With great respect, it is
simplistic to say that post-charge questioning will cure that
problem.
Q
328
Mr.
Heath:
I am not saying that. I am saying simply that you
do not need an extension of pre-charge detention to maintain somebody
like Mr. Kafeel Ahmed in custody without facing
charge.
Lord
Carlile:
I agree
entirely.
Q
329
Mr.
Adrian Bailey (West Bromwich, West)
(Lab/Co-op): Earlier we spoke to representatives of Liberty. I
quoted to them a publication in which Liberty said that there would
certainly be people arrested and then discharged after 42 days, thus
incurring a loss of liberty and potentially more devastating
consequences for their standing in the community, their jobs and so on.
When I challenged that, they stated that under the 14 to 28-day
provisions, people under the process of judicial scrutiny had been
arrested and then released. Are you satisfied that the proposals in
this legislation will pre-empt, as far as humanly possible, any
possibility of anybody being detained for 42 days and then
discharged?
Lord
Carlile:
No. I do not think that anybody could ever
say anything other than no in answer to as straightforward a question
as that. But so what? Many people are released and not prosecuted after
they have been arrested for all kinds of criminal offences, including
murder and other offences right at the top of the criminal calendar.
Many people are acquitted after being in custody for a very long
time.
If
you compare what happens in this country with what happens in other
comparable countries—for example, France or
America—people are frequently released after very long periods
in custody, having been charged with a vestigial offence, which is not
proceeded against in court. It is part of the ordinary ways of the
criminal world—of the investigation of crime—that
sometimes the wrong people are arrested, and sometimes the right people
are arrested but there is the wrong sort of evidence against them and
they get away with it. I have never heard Liberty making an objection
in general terms to people not being compensated in every instance in
which they are arrested but not prosecuted. I think that they are being
inconsistent.
Q
330
Mr.
Bailey:
So you are satisfied that the proposals are
proportionate in the balance of securing convictions and
inhibiting—
Lord
Carlile:
I should have answered the other part of
your question, because really you asked me two questions. The answer to
that is no, I am not entirely satisfied. I have been, I hope,
completely consistent about this, from the time I first started writing
about post-arrest questioning. In my view, the judges who deal with
these matters—extensions of detention—at the present time
do a perfectly serviceable job; indeed, they do a very good job. I am
not sure that the public need more reassurance: I think that you need
more reassurance. We live in a peculiar political village here and I
think that the public take a rather different view about these matters.
But more reassurance should and can be
given.
I hope that,
consistent with the views that I have expressed in the past,
Mr. McNulty and Mr. Coaker and their colleagues
will have another look at these provisions, with a
view to possible amendment, to strengthen the role of the judges in
extension of detention. That would also be consistent not only with my
views as independent reviewer, but with some views expressed by the
Newton committee of Privy Councillors some years ago. There is
obviously room for compromise and amendment here,
still.
Q
331
Patrick
Mercer:
During our deliberations we have talked about the
comparisons, which might be made by our enemies, between an extension
beyond 28 days and internment. What are you views,
please?
Lord
Carlile:
This is a loose, unhelpful use of language.
When I think of internment, I think of regulation 18B, which was
carried out during the second world war in a much less well-scrutinised
manner than, for example, control orders—the system of law did
not work well—and of the regrettable period of internment in
Northern Ireland.
I
have friends who are now retired judges who played their part in
hearing internment hearings in Northern Ireland. Not one of them that I
have spoken to felt comfortable about it, because the
“evidence” that was presented was poorly scrutinised,
almost entirely hearsay and, at best, was reputational only. What is
proposed already and what could be achieved here is a much more
rigorous judicially-supervised system. Indeed, as I have said
repeatedly, my view is that if the right, more developed system of
judicial control was introduced, a fair number of those who have been
held for up to 28 days already would be held for less
time.
There is
absolutely no doubt—no one in this room would feel that it was
so—that what is being proposed bears any close resemblance to
internment. The fact remains that the word “internment”
is deeply emotive and pejorative. Would you accept that, whatever we do
and say, our enemies will interpret it as
that?
Lord
Carlile:
No, I do not. We go back to the old Burkean
thing about politicians needing to be pillars of what is right, not
weathercocks of public opinion. If you harken too much to that kind of
remark, you will not even be weathercocks of public opinion; you will
be weathercocks of a limited opinion that is not public
opinion.
As I go around airports and
seaports, I take the trouble to stop and talk to real people who have
been searched. For the most part, they are delighted that they have
been searched and say, “I wish it happened more often, it makes
me feel safer.” The Daily Mail reader has quite a lot to
say on this subject, which is not always paid attention to in this
Palace. I have to say that I am not an enthusiastic reader of the
Daily Mail normally.
Q
333
Tom
Brake (Carshalton and Wallington) (LD): I have
a couple of questions. On the issue of pre-charge
detention periods and those that apply in other countries, should we be
taking into account the practice in other countries and comparing a
proposal for 42 days with what exists in other countries? The report
produced by Liberty identifies that the UK has by far and away the
longest pre-charge detention period. Do you feel that such views are
justified?
Lord
Carlile:
No. Liberty’s
report is deeply misleading. I had a conversation some time ago with
Juge Brugière—I just use him as an example. He is the
leading French juge d’instruction: a sort of hybrid between a
judge and a prosecutor. It is quite clear to me that far more people
spend far more time in custody in France on suspicion of something
called association de malfaiteur—which, I suspect, we are all
committing by being in this room today—and are then released
without a proper trial taking place.
I read
Liberty’s remarks about the United States and I just did not
recognise where it was coming from. I sat in a room with an assistant
Attorney General of the United States not so long ago and had a
conversation with him about something that one can describe as
Executive witness detention. In the United States, without releasing
the figures to the public—he refused to tell me how many were
involved—they are allowed to hold people for up to a year if
they are potential witnesses, let alone suspects, of terrorist acts.
Mr. Padilla, who is or was a United States citizen, was
arrested years ago on suspicion of having parts of a dirty bomb in
O’Hare airport, Chicago. By Executive act, they removed his
citizenship rights and put him in a so-called brig—a one-person
prison—off the coast of Florida.
Therefore, I think that Liberty
has been grossly misleading about this: every comparable country,
perhaps by different means such as a very small holding charge, has at
least as long periods of detention as are envisaged in this country. If
we have the right protections, we can do an awful lot better than any
comparable country in the world.
The
Chairman:
A number of colleagues are seeking to catch my
eye. I need them to be very tight in their
questions.
Q
334
Mr.
Wallace:
I would like to bring you back, Lord Carlile, to
the judicial oversight of the detention without charge, the extended
detention, and your comments about internment. Currently, I am at a
loss to see what the judge will be doing in the oversight, as one of
the reasons given for early detention is that we are acting on
intelligence and we need time to convert that intelligence into
evidence. Yesterday Sir Ian Blair said that we often make arrests where
we have lots of
intelligence but nothing to submit as evidence and we need that extra
time. Setting aside your suggestion of a more investigative judge to
test the evidence, how will the current system allow the judge
overseeing the process to test the intelligence put before
him?
Lord
Carlile:
The current system that is proposed, as I
understand it, allows the judge to review what is being presented by
the police and the other control authorities and to determine whether
detention is justified on the basis of that material. That is
insufficient; I think that we can do better. The judge should be given
a more inquisitorial role. It is absolutely vital that the Government
have rightly envisaged senior circuit judges being involved in the
procedure: for example, the judges at the Old Bailey who are all senior
circuit judges and are used to analysing criminal evidence and criminal
legal issues every day of the working year. They are the right sort of
judges for this. You do not want commercial judges doing this kind of
work, although they are often more brilliant people. The judge could
carry out a detailed inquisitorial role and should be allowed, for
example, to call for certain types of inquiries to be made, so that the
role is
developed.
Q
335
Mr.
Jamie Reed (Copeland) (Lab): This is not a legal point,
so please indulge me. Many witnesses have claimed
that the Bill’s provisions would, if passed, amount to a
propaganda coup for Islamic fundamentalists, and for al-Qaeda in
particular. Do you have a view on
that?
Lord
Carlile:
I do not accept that. The Government have
now given a great deal of resources to the prevents strand of
counter-terrorism strategy, and they are right about that. I was at a
conference organised by the national co-ordinator for ports policing
last week, and the most important part of that conference was about
prevents. That is a culture change in the police and it is one that
they have embraced very well. But I do not see the period of detention
as a recruiting ground. As we see in academic studies, the extent to
which anything is a recruiting ground is very uncertain, even the war
in Iraq. I think that the prevents strategy is terrible important but
it does not have much to do with
this.
Q
336
Mr.
Llwyd:
Your views on the use of intercept are well known;
we heard them earlier. Could you distinguish between the non-use of
intercept to collect evidence to convict a terrorist and its use,
permitted in the Bill, to freeze
assets?
Lord
Carlile:
The freezing of assets, as any Minister
would know to their discomfort, has been thrown into high relief by a
decision of Mr. Justice Collins in the High Court today. The
provisions in the Bill relating to the freezing of assets—the
clause dealing with the United Nations provisions for the freezing of
assets—will have to be examined much more closely now. The
freezing of assets on the basis of proper evidence with a fair system
of law—that was Mr. Justice Collins’ essential
point in the judgment today—is a perfectly legitimate part of
the fight against terrorism. The use of intercept evidence is thinly
connected—I am not sure quite where the question is
going.
Q
337
Mr.
Llwyd:
If I have read the Bill correctly, intercept
evidence will be permissible in connection with asset
freezing.
Lord
Carlile:
That is a perfectly acceptable and tenable
view. It is quite possible that terrorists may be using others to deal
with their assets, and I can see no reason why intercept should not be
used to deal with that. Having said that, you know as well as I that
most big terrorist bombs cost next to nothing. The amount of assets
seized in the past year in direct connection with terrorism has been
less than £10,000, as far as the Metropolitan police is
concerned.
The
Chairman:
We have just over a minute left: a short
question from Dominic Grieve, and a short answer from our witness,
please.
Q
338
Mr.
Grieve:
To come back to the 28-day versus 42-day issue, we
have heard from you about the brig in the United States and
inquisitorial methods in France, but when Sir Ken Macdonald came here
on Tuesday he was absolutely clear that he was satisfied with the
system that we have in this country, in particular that we do not have
holding charges—that is not something he relies on. He
said:
“I have said this
on a number of occasions...we do not perceive any need for the
period of 28 days to be increased. Of course, people have argued to the
contrary, and you have heard some evidence to the
contrary. Various scenarios have been put up, and anything is possible,
but the question is whether it is remotely
likely.”——[Official Report, Counter-Terrorism
Public Bill Committee, 22 April 2008; c. 53,
Q136.]
Why do you think that you
are better placed than he to do an analysis of whether 28 days is
sufficient?
Lord
Carlile:
There are two points.
First, the Director of Public Prosecutions accepts the use of the
threshold test and you, as a Committee, and Parliament will have to
examine whether the threshold test, which is a much lower standard than
the normal code of Crown prosecutors test for prosecuting, is an
acceptable test for charging people with extremely serious
offences.
Secondly,
I have great regard for Sir Ken Macdonald; I know
him, I have worked with him and I think that he is extremely good at
his job. All I would say is that I have spent the last six and a half
years looking at terrorism case after terrorism case, and many of the
suspects have not been charged with a crime. I look at every detail,
including the background intelligence, in every single control order
case, for example. My belief, for what it is worth—you will have
to make your own evaluation of it—is that, as I have said
earlier, there is a small number of extremely serious cases to which
the threshold test might apply.
I would like to say one final
thing, Chairman. I want us to have an enduring corpus of terrorism law.
I would not like to see someone released—a scientist, for
example—who then took part in some future terrorism plot, and
then have to observe the reaction in both Houses of Parliament to such
an event
occurring.
The
Chairman:
Lord Carlile, I am extremely grateful to you, as
I think the Committee is, for your time, your expertise and, if I may
say so, your exemplary succinctness. We will move on to the next
witness and we need a speedy turnaround for that purpose. Thank you
very
much.
1.47
pm
Welcome to our
next witness. For the record, would you be good enough, please,
formally to introduce
yourself?
AndrÃ(c)
Rebello:
I am AndrÃ(c) Rebello and I am Her
Majesty’s Coroner for the City of Liverpool. I am also the
honorary secretary of the Coroners’ Society, which makes me the
executive officer of the Coroners’
Society.
The
Chairman:
Thank you. We will go straight into questioning.
In view of who you are and the evidence that you have given, we will
start by focusing on part 6 of the
Bill.
Q
339
Mr.
Grieve:
Good afternoon. Part 6 of the Bill deals with a
completely new procedure for coroners’ inquests in terrorism
cases. When did your organisation first know of the Government’s
intention to legislate in this
fashion?
AndrÃ(c)
Rebello:
Probably within the last two or three weeks,
if
that.
Q
340
Mr.
Grieve:
So, you were not consulted at all on this part of
the Bill before it came out, were
you?
AndrÃ(c)
Rebello:
Not at all.
Q
341
Mr.
Grieve:
From your organisation’s
perspective, and in view of what a coroner’s inquest is designed
to achieve, do you think that this proposal in the Bill will enable the
transparency and fairness in the procedure to be preserved, or does it
present you with
difficulty?
AndrÃ(c)
Rebello:
It presents tremendous
difficulty. However, we live in a very different age from Victorian
times, when the coroners law was, in effect, written. Having said that,
the whole point of an inquest is to bring out into the public view
matters of public interest that appertain to sudden and unexpected
deaths. Of course, if it is the case that a coroner hears evidence that
cannot form part of the public deliberations, there is no transparency
and the public do not know what is going on, and it is even worse if
the coroner is appointed by a Secretary of State, bearing in mind that
it would appear that the Secretary of State would be certificating and
also being a judge in his or her own cause.
Q
342
Patrick
Mercer:
I am sure, Mr. Rebello, that you would
agree that one of the strengths of the coroner’s court is the
independence of the
coroner.
AndrÃ(c)
Rebello:
Absolutely.
Q
343
Patrick
Mercer:
What is your view, therefore, about the proposal
for inquests in some circumstances to be held only before suitably
trained and cleared
coroners?
AndrÃ(c)
Rebello:
I have serious reservations about that,
because the coroner service is, in fact, 110 different coroner
services. It is a local judicial service, and every coroner should be
able to deal with every type of
case.
AndrÃ(c)
Rebello:
I do not see it being practical at all,
because an investigation starts when a death is reported, and the
coroner is involved throughout the investigation process. The coroner
does not sit as an umpire or judge who arbitrates between different
parties, but causes the investigation and is part of it. If the
investigation by those who are investigating for other purposes is in
any way inadequate or insufficient, the coroner has to supplement that
investigation. It would be very difficult for a coroner who is seized
of a death within his or her jurisdiction then to progress the
investigation, or for someone else to be parachuted in to hear the
case. The system is not the same as an adversarial
system.
Q
345
David
T.C. Davies (Monmouth) (Con): Earlier, I thought I
detected an implication that you think the law is in need of updating.
Do you feel that is best done in the way that it has been done, by
tacking measures on to a Bill on terrorism, or would you welcome and
like to see a coroners Bill that deals with all sorts of
issues?
AndrÃ(c)
Rebello:
I would like to see a coroners Bill that
deals with all sorts of issues, but a coroners Bill without any funding
is no use whatever. If a coroners Bill is announced in the next
Queen’s Speech, but it relies on local infrastructure and on
local authorities funding the coroner service from their current
budgets, that would not bring about real coroner reform. Real reform
will come with investment in infrastructure, the training and
development of coroner’s officers as a national service with
qualifications to become a coroner’s officer, and pushing up the
standards throughout. You cannot get reform on the cheap, otherwise it
is no more than a change in nomenclature.
Tagging coroner reform on to
the special cases with which this Bill deals is concerning. I take a
slightly different view from INQUEST on the worth of juries. As you
probably appreciate, with 110 coroners and about 450 coronial office
holders, we are a very broad college. Many of my colleagues like having
juries and think that they provide a lot. I agree, but when you have
limited resources and when not all coroners have courts, delay is built
into the system. I must make it absolutely clear that an inquest before
a coroner sitting alone is not inferior to an inquest before a coroner
sitting with a jury. I am comfortable sitting with juries and do not
have a problem with that, but they cannot be questioned about their
fact-finding exercises, whereas a coroner has to explain his or her
decision and must be able to give reasons for it. You cannot get that
with a jury case. If some of the information that comes to the coroner
cannot be aired publicly, you can, as Lord Carlile said, end up with
two sets of reasons—one for public consumption, which will be
gibberish and will not make sense, and one for private consideration,
presumably by the administrative court and higher courts. Of course,
their subsequent deliberations will not make sense because they will
not be able to explain how they have come to their judgments
either.
Q
346
Tom
Brake:
What do you think will be lost without juries,
particularly in relation to the families of those
involved?
AndrÃ(c)
Rebello:
I do not think that anything will be lost by
losing juries, but an awful lot will be lost if the family and other
properly interested persons are excluded from the inquest
process.
Q
347
Tom
Brake:
Perhaps I can put the question the other way. What
do you think is added by having
juries?
AndrÃ(c)
Rebello:
Cost, and the fact that the electorate are
carrying part of the responsibility. The electorate have the right to
vote and they appoint you as their representatives, but with that
advantage comes responsibility, such as the responsibility to play a
part in the legal system by sitting on a jury. I quite enjoy sitting
with juries, but during the three or four weeks that one jury inquest
lasts, I could probably hear 20 or 30 other cases. Of course, there are
families waiting in a queue for the death certificate to be issued and
to understand by what means their loved ones have died. The system is
not designed or funded for
2008.
Q
348
Mr.
Crispin Blunt (Reigate) (Con): Given that coroners have
the power to direct that the public should be excluded from any part of
the inquest in the interests of national security, do you think that
the powers in the Bill are necessary at the
moment?
AndrÃ(c)
Rebello:
They might be necessary with regard to
intelligence information and counter-terrorism information if it is in
the interests of national security. It would be unsafe for society were
some classes of information to be made available, perhaps with regard
to ongoing surveillance and things of that nature. Because these
matters tend not to come to coroners at the moment, I cannot give you
any examples, but there may well have been examples in cases that I
have dealt with that I have not been told about. For those matters, the
answer is yes. As for other countries and other things generally in the
public interest, the matter is exceptionally
wide.
Q
349
Mr.
Blunt:
I am intrigued when you say that as a coroner you
might not have been told things in relation to an inquest. Will you
elaborate on what sort of things they might
be?
AndrÃ(c)
Rebello:
I suppose that if the police who have been
investigating a sudden and unexpected death have intelligence that is
part of an ongoing inquiry with regard to counter-terrorism
surveillance, I would not be told about it. I am told about an awful
lot of things that do not come into the public arena, but there may
well be some categories of information that cannot be aired in a public
court because they would put investigations and the lives of citizens
and of those carrying out the surveillance and their families at risk.
I do not know if that has happened, but it may well have
happened.
AndrÃ(c)
Rebello:
There was mention of a draft coroners Bill
in the draft Queen’s Speech last year. It missed the cut for the
Queen’s Speech, but the Ministry of Justice tells me that it is
optimistic that it might be included in the draft Queen’s Speech
this May. What is your question with regard to
that?
Q
351
Mr.
Blunt:
Would it not be preferable in your judgment that
these proposals regarding coroners’ courts should come forward
as part of a wholesale re-evaluation of the role of coroners’
courts in that legislation, rather than being taken piecemeal
here?
AndrÃ(c)
Rebello:
It would enable more consideration of the
proposal in the context of the other proposals. The written submission
that I sent to the Committee makes fairly clear my views with regard to
the last copy of the draft Bill that I saw. It does nothing in itself.
An awful lot of work that is non-legislative change would be the real
reform. The Home Office position paper on creating a national service
linking death certification and coroners seemed a much more sensible
reform, but it will cost money. It is for the Government to decide how
money should be spent. My real concern is that if we have a coroners
Bill, there will be public expectation that things will be better.
Nothing in the draft Bill that I have seen shows that things would be
better without further investment. The draft Bill is supposed to be
cost-neutral.
Q
352
Mrs.
Sharon Hodgson (Gateshead, East and Washington, West)
(Lab): One of the strengths of the system has been that
coroners are independent. What is your view of the proposal that
inquests in some circumstances should be held before suitably trained
and cleared coroners appointed by the Secretary of
State?
AndrÃ(c)
Rebello:
I am very uncomfortable about that. I think
that it drives a coach and horses through the separation of powers. If
a suitably qualified or specially ticketed coroner needs to be brought
in, it certainly cannot be any part of the Executive that appoints the
coroner. Well, it could be, but our rule of law would be going out the
window.
Q
353
Mr.
Heath:
We have often had the Azelle Rodney case quoted to
us as an obvious example of something that is now awaiting this
legislation.
AndrÃ(c)
Rebello:
Not before my
court.
Q
354
Mr.
Heath:
Is the society aware of other inquests that are
being held over because of perceived difficulties about releasing
information, which would suggest why the Government perceive this as so
urgent that they must pre-empt the coroners legislation?
AndrÃ(c)
Rebello:
Not that I am aware of. The Coroners’
Society consists of all coroners. It has no central Government funding
and everything it does is done by coroners, as a hobby I suppose, and
in addition to running jurisdictions and sitting as coroner. We do not
have a lot of time to get together to discuss cases or things of that
nature. We work very long hours.
Q
355
Mr.
Heath:
I appreciate that. I used to appoint coroners in my
own area, so I know some of the work that they do. Have you had any
discussions, formally or informally, with your colleagues who have been
dealing principally with the military inquests as a result of the
conflicts in Iraq and Afghanistan? Are there any instances from them
that might suggest an urgent need for this
provision?
AndrÃ(c)
Rebello:
There is an urgent need for greater
assistance in getting evidence before those inquests. In the written
submission, you will see that I was in contact with the Ministry of
Defence. At that stage I did not have any of the cases to do with Iraq
or Afghanistan, and I could write without having any conflict, or
showing bias in any of the cases that I was going to hear. I was very
concerned that there seemed to be a bland approach from the Ministry of
Defence about the fact that that US service personnel would not come to
give evidence at inquests. That is not what I was asking. I was asking
for our Government to make a more strenuous request of their colleagues
in the United States, asking them to facilitate those witnesses coming
to this country to assist coroners by giving evidence, so that everyone
could understand the means and circumstances in which loved ones had
died.
The suggestion
that United States personnel were not coming was something that I found
unacceptable. I expect every citizen to co-operate with the
coroner’s inquest by giving evidence, and even more I expect
Government Departments to co-operate and assist with evidence being
brought before inquests, so that families can understand the
circumstances in which their loved one has died. Especially when
someone has been on active service for this
country.
Q
356
Mr.
Heath:
I absolutely concur, and I am grateful to you for
that. I have one last question. Taking into account the crucial role of
the independent coroner’s court, if one was to accept that there
might be, in terms of national security, a need to exclude some
material from the public gaze, can you conceive of circumstances in
which it would be appropriate for a coroner’s court to exclude
material not on the grounds of national security but, as it says in the
Bill,
“in the interests
of the relationship between the United Kingdom and another
country.”?
AndrÃ(c)
Rebello:
No. Public interest immunity applications
are made before coroners’ courts, and coroners determine those
cases. That could be more widely used, and could deal with some
national security issues. The sensitivity of that material would depend
on whether properly interested persons, as well as the public and
media, might have to be excluded from the court. In some cases, I
suspect that we have a sliding scale as to who needs to be excluded. I
am particularly concerned about our responsibility with regard to the
Human Rights Act. I heard the Minister on Tuesday say that the Bill was
compliant with the Human Rights Act, but that is not my
view.
Q
357
Ms
Taylor:
I have been listening carefully to your response,
Mr. Rebello, and I was prompted by the thought that our
security services do not exist in absentia, but actually work with
other countries. If the security services say that there would be a
problem if evidence was secured from another country, would you accept
that it was absolutely in the interests of our national security that
that information was not
presented?
AndrÃ(c)
Rebello:
If that was presented to me, I would hear a
public interest immunity application and deal with it on its merits. I
am sure that the case would be made out if the scenario that you
described was true.
Q
358
Mrs.
Hodgson:
Returning to the answer that you gave to my
earlier question, will you expand on your comment that the rule of law
would go out of the window if there were specially appointed
coroners?
AndrÃ(c)
Rebello:
That would be the case if
the specially appointed coroners were appointed by the Secretary of
State.
Q
359
Mrs.
Hodgson:
And if they were suitably
trained and cleared and if there are specific
circumstances?
AndrÃ(c)
Rebello:
But you cannot pick your own tribunal.
Basically, the case comes before the court and the judge, whoever they
are, is the person who tries it. What we would be doing here is
throwing out the person who should ordinarily hear that case according
to the Coroners Act and replacing them with what the public might
perceive to be a Government stool pigeon who would side with the
Government. That is probably not the case at all, but if we needed
specially trained coroners, there are only 110 coroners, so why should
not every coroner be specially trained and security cleared? If that
were the case, there could be no accusation that the Executive was
interfering with the judiciary.
Government policy is a matter
for the Government, and coroners will abide by whatever Parliament
decides. The only reason why I am here is to give evidence and advice
from the point of view of an experienced coroner and on behalf of the
Coroners’ Society with regard to practical problems. There is no
point in passing legislation if it will lead to a lack of public
confidence in the Executive and—worse still—in the
judiciary. Every year, I deal with up to 3,000 deaths and hold 500
inquests, and I hear 95 per cent. of those inquests personally.
Yesterday, I heard nine cases and finished at 7 o’clock at
night. I dealt with nine separate families who all had needs, and they
have to have confidence that I will inquire and not just rubber-stamp
what those who were investigating did. Many of those are hospital
deaths and other deaths involving state intervention, and I will call
people to account and call them to explain. The main purpose of an
inquest is to register the death, but a most important purpose is to
learn lessons to prevent future fatalities. There has to be public
scrutiny.
Interestingly, the third
category of cases that the ministerial certificate can be issued for is
matters in the public interest. Coroners do not do anything that is not
in the public interest, and all matters determined at an inquest are in
the public interest. If you are dealing with a sensitive case in which
someone died by their own hand, and if there is a lot of medical
history showing suicidal ideation or self-harm, or if there were lots
of marital disputes enclosed in the psychiatric reports, a lot of that
is not in the public interest. Therefore, you ensure that you protect
the integrity of family life and do not air people’s linen in
public, but you bring into the public arena those matters of public
interest.
Q
360
Mr.
Heath:
This is really just a corollary of what you have
just said about the position of the appointed coroner with regard to
the Executive effectively appointing the judiciary. You have already
suggested that you think that these provisions are
probably outwith human rights legislation. I
suggest
that they may also be entirely in conflict with the statutory
requirement for the independence of the judiciary, which is now placed
in statute law. Do you agree that the fact that it is not even the Lord
Chancellor who is responsible for this but the Secretary of State, by
which we may infer that the Home Secretary will be responsible for
certification, brings it directly into
conflict?
AndrÃ(c)
Rebello:
I am glad of that clarification because I
did not know whether it would be the Justice Secretary who appointed
the coroner, but they are still part of the same
Executive.
Q
361
Mr.
Grieve:
May I return to your important comment about the
fact that there are 110 coroners, which you made in answer to the
question about the ability of coroners to be designated to do this
special work? Can you think of any reason why those who are appointed
to be coroners around the country would not be capable, if there was
some new area on which you needed training, to be trained in order to
fulfil the criteria laid down in the
Bill?
AndrÃ(c)
Rebello:
Absolutely not.
The
Chairman:
Thank you. Are there any further questions for
our witness? There are not. Mr. Rebello, thank you very much
for your time and expertise.
2.12
pm
Sitting
suspended.
2.15
pm
On
resuming—
The
Chairman:
I welcome our next set of witnesses. For the
record, would you please identify
yourselves.
Mr.
Tony McNulty:
I am Minister of State at
the Home
Office.
David
Ford:
I am the official responsible for
counter-terrorism.
Jennifer
Morrish:
I am one of the Home Office legal
advisers.
The
Chairman:
I can hear you and see the name plates, but the
acoustics are poor, so I suggest that our witnesses keep the volume up
during the course of the afternoon. We have up to two and a quarter
hours. It is an open sitting, in which colleagues can raise anything
that relates to any of the 92 clauses or six schedules in the Bill. We
will begin the questioning with Dominic
Grieve.
Q
362
Mr.
Grieve:
I will turn to 42-day pre-charge detention. I hope
that that does not mean that we run out of time to ask about other
things.
I want
to ask about the Director of Public
Prosecutions’ opinion, which you will have had a strong chance
of hearing. He is, after all, the person in charge of the
prosecution system in this country. On top of that, because of the
Government’s changes to the conduct of investigations, the Crown
Prosecution Service is now embedded in the investigative process. You
probably heard me read out the quote to Lord Carlile containing the
Director of Public Prosecutions’ emphatic view that he is
completely comfortable with 28 days’ pre-charge detention and
can see no grounds for extending it—the only grounds being so
hypothetical that he does not think that they are remotely likely. Why,
in those circumstances, are you seeking to move to 42 days’
detention?
Tony
McNulty:
Because we have to weigh the countervailing
pressure and information from other sources, not least the police, as
indicated on Tuesday and in the subsequent letter from the head of the
Metropolitan police anti-terrorism unit and the three counter-terrorism
units throughout the country. I also heard the DPP say, entirely
fairly, on Tuesday that 28 days and the scope and efficacy
of that period was wholly a matter for him. To go beyond that in any
way, shape or form was, first, a matter for Parliament rather than for
him, which I think that he repeated on a few occasions. Secondly, were
the power to be introduced by Parliament, he would certainly use it. We
have to weigh up a range of different pressures, as it is responsible
for the Government to
do.
Q
363
Mr.
Grieve:
Nevertheless, one might have thought that he would
be the person most likely to urge an extension if he considered that it
prevented him, or was likely to prevent him, from being able to carry
out the work on which effectively he is judged. That is, whether he can
successfully prosecute those who have committed serious offences that
clearly require trial, and lengthy terms of imprisonment on
conviction.
Tony
McNulty:
With respect, that is to see this proposal
in the same context as the last one discussed in 2005. I think that I
made it clear as early as last April, at the Joint Committee on Human
Rights, that the Government did not take the view that there was an
imminent reason to go beyond 28 days, but that there were sufficient
experience, evidence and practicalities in the area that could lead
one, as it has led us and the police, to the conclusion that we should,
now, in a period of calm temper and reason, make contingency and
reserve power. To be fair, he shared the view that this was the time to
at least explore that, rather than at a time of heightened emergency.
Therefore, we are not in exactly the same position that we were in
2005. At the time, I remind you, as Mr. Macdonald did on
Tuesday, that he was all in favour of an
extension.
Q
364
Mr.
Grieve:
On that first point, presumably there must be
agreement—and you are not suggesting otherwise—that the
Government do not believe that even the extension from 14 to 28 days is
an ideal arrangement under our principles of freedom under the law,
because we have that on an annual renewal basis as an extraordinary
power?
Tony
McNulty:
No, I have made it very clear on a number of
occasions that for the Government the settled view in terms of
terrorism cases permanently put on the statute books is quite rightly
14 days. The 28 days is an exception, which is why—as
Mr. Grieve indicates—we do that on an annual renewal.
Quite
rightly, all the subsequent paraphernalia from that extension in the
Bill rests on that annual renewal. So if at any
stage in the future—were the Bill to be secured—the
28-day annual renewal fell, all of that paraphernalia for the reserved
power to go beyond 28 days would fall as well. It has quite
deliberately been constructed in that
fashion.
Q
365
Mr.
Grieve:
I do not want to get bogged down in the legal
niceties of Mr. Pannick’s opinion on the Civil
Contingences Act. I would like to focus on an area where there may be
some agreement. If this House and the Government wanted to, there is no
reason, is there, why we could not put together a package based on the
principles of the CCA, which would enable an extension in a state of
emergency?
Tony
McNulty:
I think that I would broadly
support that. My only hesitation is that we think that we have sought
to reflect that type of view in the model before us, in as strong as
possible legal terms. The CCA is very explicitly not about playing
around with criminal proceedings and there are at least a range of
legal views. I should have prefaced my remarks by saying that, unlike
the hon. and learned Gentleman, I am no lawyer. The CCA would be wholly
inappropriate for changing things such as pre-charge detention or any
other aspect of criminal proceedings, which is essentially where
Pannick is, and so I accept the
point.
Q
366
Mr.
Grieve:
The CCA defines circumstances in which a state of
emergency can be declared, and that is potentially judicially
reviewable, if that is done by the Executive rather than being
sanctioned through
Parliament.
Tony
McNulty:
As I understand it—I repeat that I am
no lawyer—it is the subsequent action and the regulations that
are judiciable, not the initial
decision.
Q
367
Mr.
Grieve:
Yes, forgive me. I think that that is absolutely
right. The decisions made thereunder could be judicially reviewed on
the basis that there was no basis for declaring a state of emergency in
the first
place.
Tony
McNulty:
In essence, as Liberty said earlier, the
three key elements are the emergency, the parliamentary scrutiny and
the
judiciability.
Q
368
Mr.
Grieve:
Therefore, to clarify, the Bill as presented by
the Government is not similar to that extent to the principles of the
CCA, because the circumstances in which an extension could be taken
from 28 to 42 days do not require the criteria under which a state of
emergency exists under that
Act.
Tony
McNulty:
No, because what we are trying to
do—as I tried to indicate to Liberty earlier—is to say,
as the police have done, that there is a gap between the law as it is
now and that full-on, full-blown position of national emergency. So we
do have some definition of circumstances à la CCA and we do have
the parliamentary scrutiny—which I am sure we will deliberate
on—to some extent. We quite deliberately say, “This
initial decision in terms of executing these provisions should, in the
first instance, be a political decision and not a judicial one”.
So the judiciability point I do
concede.
Q
369
Mr.
Grieve:
I can have one last bite at the cherry. I am
moving on here and I apologise for doing so. I have also apologised to
the Committee because I
have to go early. You had the opportunity of hearing from the Coroners
Society representative. Why was there no consultation with the coroners
before that part of the Bill was
introduced?
Tony
McNulty:
To be fair, I am afraid that I missed that
bit. I was out of the room at the tail end of Lord Carlile’s
evidence. This was a belated introduction at the behest of colleagues.
I regret that there was not the appropriate consultation. There should
have
been.
Q
370
Mr.
Grieve:
It would be rather helpful to the Committee if you
could amplify, “at the behest of colleagues”. What
suddenly happened to bring that into the
Bill?
Tony
McNulty:
You will know that there are a range of
cases—I cannot talk in complete detail about them—that
are pressing and extant and which need to be determined. Otherwise, as
other colleagues have suggested, it would be more than appropriate to
leave these provisions and others to a coroners reform Bill that
colleagues tell me is likely to be forthcoming in the subsequent
Session. The proposal is essentially for a range of pressing reasons,
which is why it was introduced so late and why, regrettably, there was
not appropriate consultation with the coroners and other interested
groups.
Q
371
Kali
Mountford (Colne Valley) (Lab): When we were considering
90 days, I and others proposed 60 days. The reason I did so,
as I am sure you are aware, is that the West Yorkshire force and my own
particular division in Huddersfield were the arresting officers after
the London bombings. Having reviewed the evidence that they had
collected, they advised me that they did not think that 90 days was
necessary, but they were determined that 60 days would be enough. They
are still of that view. Will you explain why you think that 42 days
will be sufficient? Were there an atrocity now, would we regret being
so careful in restraining
ourselves?
Tony
McNulty:
I understand the point, but I do not think
so. We have seen over two days of evidence gathering that there is an
array of views on pre-charge detention. No doubt we will return to this
during our deliberations on the Bill. The views range from those given
by Justice on Tuesday—that we could go beyond 48 hours and that
it was fairly comfortable with seven days, but no more—right up
to those of Lord Carlile and some of those in the police, who do not
have to trouble themselves with parliamentary niceties, and I
understand why. They follow the logic and say that it should be pretty
much indefinite.
As I
indicated earlier, the first question that we asked in this process was
whether there was a compelling reason to go beyond 14 and make 28 days
permanent, as Mr. Grieve indicated earlier. The answer was
no for all the reasons that people have gone through. However, given
the evidence, the trends, the intelligence and everything else that is
in the public domain, is there a compelling reason to make the
provision that we have made? We think that there is. In operational
terms, the best advice from the police is that they need the additional
14 days, or rather they need the ability to go to a judge to secure
more than 28 days. As people have inferred from our deliberations and
more general
matters, I think that that is sufficient in these
extraordinary circumstances. I do not think that we will be coming back
to the well for more, as it were, to ratchet it up after every single
incident in the way that was implied by Liberty. I say that with a
degree of confidence in the context of our other
deliberations.
I
say yes, potentially, to the introduction of
intercept as evidence; yes, potentially, to post-charge questioning,
although it is of limited value as we have heard; and, yes,
potentially, to greater use of acts preparatory and other precursor
elements from which we have had some success. I agree with the Joint
Committee on Human Rights and many Committee members who say that all
those things will be very useful in making my position come to pass
that the law is 14, the exception is 28 and the ultra-exception is
beyond that. I am mindful of the Chair’s comments about
pithiness, but all that must be seen in the context of everything else
that we are seeking to do. As colleagues around the table have rightly
said, the legislation is but one part of the overall counter-terrorism
strategy.
Q
372
Tom
Brake:
To pursue that point, can you give the Committee
any more precise information about the criteria that were used to
arrive at 42 days and about what factors were weighed in arriving at
that figure? The confusion among the public is that a number of
different extension times have been proposed, yet this one has been
arrived at. I, and I suspect many other hon. Members, feel that we have
had no clear guidance about how this figure was arrived at rather than
any
other.
Tony
McNulty:
Let me say, without being mischievous, that
I do not think that the confusion is the public’s. I will move
on from that. It needs to be seen in the round of the entire approach
that I have described, and I do not say that to be laborious. The first
decision made, quite rightly, was whether to consolidate—pocket,
if you will—the 28 days. I think the answer is that, not least
for the reasons suggested by Mr. Grieve, these are very
serious matters and we do not take this action lightly. I am a tolerant
sort of person and the hairs on my neck do not bristle, but they do
when I am told constantly, not least in the Liberty document, that we
are doing this for purely political reasons, to try to put the Liberals
or the Tories in a hole that says they are soft on terrorism. Nothing
could be further from the truth.
I know it is laborious, but 14
is the norm, 28 is the exception, which is annually renewable, quite
rightly. I have certainly been involved in the last annual renewal
process, although I am not sure about the last two, and I hope I will
be involved in the next one. That is a proper, detailed and serious
debate. As I have said to Miss Mountford, it is appropriate to say to
the police, the reviewer of terrorism and others that while on their
terms the logic may be for unlimited repeat on a seven-day basis, and I
understand the operational reasons for that, we are a democracy and we
do not want that. Instead, we must ask them what is the operational
basis, in these exceptional circumstances, that they could
tolerate.
I repeat,
we need to see the matter as a whole because of all the other assorted
reasons. It is a tragedy that this has boiled down to some sort of
bingo around the number of days as that is almost the last element that
matters. In the context of the use of intercept
evidence, the threshold test, acts preparatory, post-charge questioning
and all these things, and not in the context of thinking up a number
and doubling it or what would be nice for them, the police are asked
what is the least period that they could sustain or feel they would
require in these extraordinary circumstances that go beyond 28 days.
That is how we arrived at 42.
When the CCA
was introduced into the debate as we were making our deliberations,
that was useful for setting out an absolute outlier. If you agree with
Pannick, unequivocally or otherwise, and believe that the case for
pre-charge detention in the CCA is appropriate, the most that will give
you is 58 days, so that was one parameter. Our other parameter was
whether to go permanent or otherwise on 28 days. I am comfortable about
where we are now on democratic civil liberties and in other terms, with
14 as the permanent figure, 28 the exception and, beyond
that, these provisions in extraordinarily rare circumstances. I am
comfortable with that if, as I am sure the whole Committee would want,
all the other elements play a positive role in the way that we all
hope.
David
Ford:
When we were developing the proposal, as the
Minister said, the starting point was not the number of days, but
whether we needed to go beyond 28 days. From the outset, we were clear
that there would have to be some upper limit. In a way, that is in
itself a safeguard in this area. Any judgment about what that upper
limit should be is, to some extent, going to be arbitrary. The 28-day
limit was to some extent arbitrary, so it will always be a matter of
judgment on the number of days.
Q
373
Tom
Brake:
You have clearly done a lot of research into this.
Can you tell us at what point, although I know that it is not possible
to cite a typical case because there is no such thing, on average, you
would expect Parliament to be approving the extension?
Tony
McNulty:
The strict answer is within 30 days, because
that is what is in the Bill. However, I said clearly, which goes to
Mr. Grieve’s point—I understand entirely why
he has had to go—that it is a matter that we should explore
further in Committee. Mr. Salter, and again I understand why
he is not here today, has been in the press saying why not seven to 10
days, or why not mirror more closely the CCA provision that says that
you have to come to the House within seven days. I genuinely say that
these are matters that we can and should explore. The one compelling
point that people make is that if it is 30 days—I remind the
Committee that the Bill says “within” 30 days—then
clearly the order could have been commenced and someone duly detained
for up to 42 days, before Parliament has had any say on it other than
the compulsory report to Parliament that the Home Secretary will simply
write within two days. That is an area we should explore
further.
Q
374
Andrew
Gwynne (Denton and Reddish) (Lab): Minister, earlier we
heard from Liberty about the comparisons with other common-law
jurisdictions regarding how long people can be held without charge. We
also heard Lord Carlile’s view. Can any meaningful comparisons
be made with these jurisdictions?
Tony
McNulty:
I hope that it can be taken as read that I
am no lawyer, but I repeat that I think that the comparisons are
invidious. I do not say that because they are not terribly helpful to
the Government’s case—certainly not as presented by
Liberty where, particularly with the graph, they verge on sophistry. As
Lord Carlile said earlier, common-law comparisons, which one would
think would be more appropriate, and even those with America, as we
heard in some of our deliberations, are stretching it. That is
particularly true in the context of what plea bargaining and holding
charges mean in a United States context, how they use and intercept
evidence, and some of the more arcane aspects of the Patriot Act. I had
not heard Lord Carlile’s point about holding a witness for up to
a year; that was interesting.
If, given
their history and recent political situations, parallels with
common-law jurisdictions are inappropriate, it becomes all the more
troublesome when we are looking at inquisitorial versus accusatorial
systems. There, we are not apples and oranges, we are raisins and
passion fruit. The distinctions are so unclear as to be untrue. I was
very struck by—and in principle I agree
with—Liberty’s paper, and the importance subsequently put
by Ms Chakrabarti on the charge. Clearly, there is some sanctity and
importance around the charge in the British system and even with my
limited knowledge of European jurisdictions, I can find no equivalent.
When they talk about the convalida in Italy being its equivalent, it is
not——not on the criteria offered by Liberty. I am sure
that the three defendants in the Meredith Kercher case, who have just
had a six-month review of their detention—not a charge, their
detention—would probably agree with that. As Lord Carlile said,
the gardez-vous, and other elements in the French system, again, from a
very limited grasp of French law, come nowhere close to being a charge.
However, in both cases, how long someone can have pre-trial detention
depends ultimately on what they are accused of. That could range up to
four years, and I am with Lord Carlile when he says that if we look at
the details of these other jurisdictions, the least that we can say is
that none of them detains people prior to trial for any less time than
we do, and in many cases, certainly more.
I am not attacking other
jurisdictions, that is not my business, but I think that all
comparisons, including those with civil law, are invidious. When I was
out for a cigarette on the terrace of the House of Commons, I bumped,
as you do, into the new Australian Attorney-General. We discussed in
part the Counter-Terrorism Bill and I asked him, by the by, how often
they had used their own counter-terrorism legislation. They have not.
The notion included in the nature of the threat must be put into
context. That is not to diminish a very real threat that Australian
tourists and businesses face from jihadist terrorism in Indonesian and
other contexts, and it is not to say that they do not use Executive
powers and control orders, because they do. However, their own body of
counter-terrorism legislation has never been used. I find these things
very invidious and not terribly helpful.
Q
375
Mr.
Adam Holloway (Gravesham) (Con): I have heard from Liberty
that this will be a driver of radicalisation if we do it. What do you
say to that and what research might your Department have done into
it? Secondly, Mr. Rebello made the interesting point about
perhaps training and security-clearing all coroners. What is your view
on that?
Tony
McNulty:
On the first point, I take that very
seriously, as a student of history and politics for the best part of 30
years, not least of the Irish situation. There are reasons for taking
these things very seriously. Let me answer in a kind of strange way.
There are no doubt aspects of our counter-terrorism legislation that
that charge can be laid at. But not this. Even if it could be laid at
this, then what is the evidence over the last two years, having doubled
from 14 to 28, albeit on an annual basis, of such disquiet in the
community over this? I cannot find any from any exploration I have
done.
On
the broader counter-terrorism legislation, we are concerned, as the
Metropolitan Police Authority has shown, about—I cannot remember
whether it was Liberty who mentioned it earlier—the use of
something like section 44 stop and search under terrorist legislation.
Funnily enough, I think that on the day of the Bill’s Second
Reading, I had a whole range of interested parties in to start the
process of a full review of the impact on the community of section 44.
I understand when people talk about propaganda coups and impacts on
communities in that regard, which is why we are looking at it, but I do
not see it here. I do not see it here because that is to fall into the
same trap that many observers did in the ’70s and ’80s
and assume that by default or otherwise, the Muslim
community——of which there are many, so to call it the
Muslim community is erroneous anyway——are somehow
predisposed towards the people who are doing this sort of thing. That
is profoundly and utterly wrong in the same way that those who charged
me and others in the Irish community in London and elsewhere in the
’70s and ’80s as somehow being at least fairly well
disposed towards what the Provisional IRA and others were doing were
wrong. That is equally profoundly wrong.
I do not accept the starting
premise in terms of these provisions, but I understand, as I have said
and others have been saying for some time, that the prevent agenda, the
community engagement and all those other aspects—I welcome the
establishment of the Quilliam Foundation the other day and its voice in
these deliberations—are hugely important. This is but one part
of our overall counter-terrorism strategy. Anyone with any sort of
background in history, politics or the military will understand that if
all you have is force of legislation to combat something, you are on a
fairly sticky wicket. It must be seen in the widest and broadest
context.
I was talking
to colleagues on the other point, which is not my area of specialism, I
freely admit, and I will take the Coroners Society’s views very
seriously, not simply about the potential to vet all 110 coroners
currently. The difficulty is compulsion. I do not think that, as the
law is currently drafted, you could compel every single one of the 110
to be vetted as a principle and part of taking on the role. But I
repeat what I said to the shadow Home Secretary, there is much to
explore and hopefully we will get the latitude in Committee to explore
those elements under the coroners, because of our lateness, which I
freely admit, and the lack of opportunity to fully consult in the way
we would normally.
Q
376
Mr.
Holloway:
On this point about drivers of radicalisation,
what do you and your Department see as the main ingredients in that
mix? What is it that is causing this?
Tony
McNulty:
I think they are just hugely
diverse. I know that it is slightly outside the remit
of the Bill, but I will pursue it if I may, Mr. Bercow. They
range from the disquiet of an individual about their lot in life all
the way through to a whole range of perceived grievances that a group
of individuals feel are imposed on them because they happen to be born
into a particular part of the community or society. What are the key
drivers? Well, not the classic ones, from all my reading. So it is not
that anyone remotely involved in violent jihadist extremism are the
poor, the dispossessed and all that sort of socio-economic group that
you think. Are the drivers around the relative lack of success for some
in the Muslim community and others? Well, they may well be. Is what we
are doing in terms of foreign affairs part of a driver? It might well
be. Funnily enough, the Government have always said that, but they
bristle—as would most democratic people—at the idea that
our foreign policy actions cause the terrorism. As far as I am aware,
no one in the Government has ever said that what we are doing in Iraq
or Afghanistan or anywhere else is not used as a motivator or driver by
those who would radicalise people, but that is slightly different from
drawing a causal link directly from any of the Government’s
foreign affairs actions. Therefore, it is as much about those perceived
grievances from individuals and groups, and that is why working with
our assorted Muslim communities and all communities to try to ensure
that that engagement, cohesion and commitment to the broader values
that we all share, which is the core of our prevent strategy, is
paramount.
David
Ford:
It might be worth adding that we consulted very
widely on the Bill before it was introduced, and that involved
discussions with not only a large number of Muslim organisations, but
other faith groups. It was not just specifically Muslim
organisations.
David
Ford:
There was a range of opinions. I think that
what came out of the regional seminars and the meetings that we had
with them was that there was a disquiet about anti-terrorism
legislation as a whole, but what did not come out were concerns about
particular measures such as pre-charge detention. One of the issues
that was of concern to most of the people we spoke to was section 44,
which deals with stop- and-search powers, because most people had had
some experience of that and it was clearly a real issue.
The other thing that came
across very clearly was the fact that members of those communities,
like members of all communities, do not sit and read legislation and do
not see it in that detailed way. There was a general concern about some
things such as section 44, but when you sat down and explained some of
the bits of the legislation and what the safeguards were, that was
sometimes enough for people. It was just that they did not understand
it, as you would not expect most people to.
Q
378
Mrs.
Hodgson:
Expanding on the quote about the process of
consultation, you have explained that there was not time to consult
with the Coroners’ Society. You mentioned faith groups and
Muslim groups, but did you consult other stakeholders and if so, how
long was the process and what were the
findings?
David
Ford:
We started the process in June last year. We
wrote to over 100 organisations and invited them to meet us if they
wanted to do so. We held five regional seminars: in Birmingham, Leeds,
Edinburgh, Belfast and Manchester. We held meetings here in London. We
had a large number of meetings with people who could not come to the
regional seminars. We had an e-mail address that members of the public
could use to send us their comments and views. It all went very
well.
Q
379
Mrs.
Hodgson:
I have one further comment about the evidence we
heard from Mr. Rebello from the Coroners’ Society.
Responding to Mr. Holloway on the point about training all
110 coroners, he made quite a strong statement—I do not know
whether you were in the room. He said that he was very uncomfortable
about the idea of appointed coroners and that he felt that the rule of
law would go out of the window. You have already said that you will
look into that whole aspect because it was added to the Bill at quite a
late stage, but do you want to respond to that
now?
Tony
McNulty:
I do not think that we would agree with that
point, and nor would we agree that the provisions are not
ECHR-compliant, but we will look at those issues. These provisions were
brought forward because of some compelling cases and because it needed
to be done in a timely fashion. My understanding is that the
appointment of coroners by the Secretary of State is simply to mirror
existing coroners law that might or might not be addressed in a
subsequent coroners reform Bill, rather than being something—I
know that you will not believe this—nefarious, underhand or that
is part of the dark arts on behalf of the Government. It is not about
Executive-appointed special coroners for special cases.
“Government stooges” was the phrase that I heard. Most of
our public appointments are made by a Secretary of State; judges are
ultimately appointed by a Secretary of State. I would not call any of
our judges Government stooges. It is much more about the focus on the
independence of those public officials subsequent to the appointment.
It does nothing other than reflect current law, which is that the
Secretary of State must make the
appointment.
Q
380
Mr.
Blunt:
In bringing forward this legislation, how much do
you regret that we are challenging Benjamin Franklin’s famous
statement:
“Any
society that would give up a little liberty to gain a little security
will deserve neither and lose
both.”?
Tony
McNulty:
I do not regret it because I do not agree
that we are challenging it. I think that if Benjamin Franklin were
here, he would be sitting on my side of the table. To determine it
otherwise would suggest that we might as well all have packed up and
gone home as democrats when we went from 48 hours to three or four
days. I take from Franklin’s words the serious import about the
balance between our liberty and our security, but I would not be here
making the case had I not started from the premise that we have the
balance right and echo in terms what he
said.
“In
principle, it is enormously important that something as significant as
individual liberty, which is such an important part of this
country’s background, should not be undermined or removed unless
you can show that that is necessary, not just that it might be
desirable at some future stage.”——[Official
Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c.
67,
Q176.]
Tony
McNulty:
Yes, I agree absolutely with that. I think
that this Bill concurs with that
entirely.
Q
382
Mr.
Blunt:
But do you accept that a trade-off is being made
between liberty, which for many people is totemic, and the additional
security that you are seeking to obtain through these
measures?
Tony
McNulty:
I think that this line of questioning would
be utterly appropriate if I were sitting here saying that I want 42
days, Executive pre-charge detention with no judicial oversight, no
parliamentary scrutiny and nothing from day one to day 42 other than
lock ‘em up. I would then concur with what you are suggesting.
Parliament’s settled view of some time ago—2003, I guess,
although I cannot remember exactly—was 14 days. Even that is an
exception just for terrorism trials, with seven days the norm. I
utterly concur with
that.
Because I am a
great fan of Franklin and because I endorse what Lord Goldsmith says, I
am comfortable arguing, as Parliament did in 2005-06, that 28 is
allowed exceptionally and on an annual renewal rather than a permanent
basis because of that precise balance between liberty and security.
However, with all the other things that we are embarking on, from the
prevention aspects through to precursor offences, I am still told by
those who know far more than I that in exceptional circumstances there
may be a requirement to go beyond the temporary provision for 28 days.
I have to take that very seriously. That is why, by utter exception and
with oversight from the judiciary and Parliament as indicated in the
Bill, the legislation is presented as it is. That is precisely because
we are so serious about this issue. It is right that we concentrate on
the balance between liberty and
security.
Q
383
Mr.
Blunt:
But you will accept that there are divided counsels
on the necessity for this among the people who have to implement
it.
Tony
McNulty:
No, I thought that that was a rather obtuse
point on Tuesday. Overall, the ACPO cabinet and, importantly for me,
the incoming national terrorism co-ordinator and his three colleagues
who run the counter-terrorism units in the west midlands, West
Yorkshire and the north-west tell me as one that there may be
exceptional circumstances that require this provision. I have to listen
to
that.
Q
384
Mr.
Blunt:
I understand that. I was referring in particular to
the DPP. Obviously, we heard from
ACPO—
Tony
McNulty:
No, with regret, let us nail this canard.
The DPP has quite rightly said that he can achieve, based on all
circumstances and experience over the last two years, what he needs to
achieve as the chief prosecutor within 28 days. I am not asking him to
demur from that.
He said quite rightly and very fairly that it is not his job as a public
servant and the Director of Public Prosecutions to gainsay or tell
Parliament what he wants beyond that. He is quite comfortable with the
28 days. He rightly said—I think on two or three
occasions—in his evidence that it is your job, collectively as
Parliament, to determine what the legislative framework within which he
works should be. He demurred from giving an opinion on going beyond 28
days.
“I have
expressed my professional view, which is derived from our operational
experience, on whether 28 days is sufficient and is likely to remain
so, and our conclusion is that it
is.”——[Official Report, Counter-Terrorism
Public Bill Committee, 22 April 2008; c. 53,
Q136.]
Tony
McNulty:
Yes, and that in most circumstances is the
collective consensual position of everybody I have spoken to on this,
except for those who would seek to go to indefinite—and I am not
going there—and the person from Justice the other day who cried
in his beard because we went beyond 48
hours.
Q
386
Mr.
Blunt:
But presumably you would prefer it if the matter
were not producing the controversy that it
is?
Tony
McNulty:
The more the substance of the model that is
before this House is looked at in detail in the ways that I have tried
to explain today, the more the controversy falls away. Should there be
serious discussion about these serious matters? Absolutely. But I would
say as genuinely and as openly as I can to all colleagues on all sides,
please look at what is before the House, and do not get lost in
thinking that this is just another 90-day debate and all that we have
done is think of another number. It is most profoundly not the same as
what was on offer before. Your side, Crispin, do yourselves a
disservice by not getting on to the detail and substance of what the
model is, and instead arguing about what you think it should be. That
is probably part of the reason for some discomfort in your own
ranks.
Q
387
Mr.
Blunt:
What I seek to understand is the importance, in the
discussions on these proposals, of achieving consensus if
possible.
Tony
McNulty:
It is still there. I say—as I have
said already—let us talk about the principles that
Mr. Grieve outlined earlier. I do not think that I could
concede on or go anywhere with judiciability. This is such a serious
matter that at least the commencement of such legislation should be
quite properly done by the Executive. On his third point, Ã la
Civil Contingencies Act, we will probably not get very far. But on his
point about the appropriate and effective nature of parliamentary
oversight, let’s talk, as the advert says. In terms of the
definition of the emergency—whether there is anything more that
we can do on that—certainly, let’s talk. I am very
comfortable that the consensus thus far on whether the provision is
needed on a permanent basis tomorrow is, “No”. Do we need
to go from 14 to 28 days on a permanent basis? The answer is no. We are
getting a slow consensus by accretion, and it is my job to ask
everybody not to put political motivation on me, but to cast politics
aside and deliberate on this model in the interests of public security
and the nation. We are almost there.
Q
388
Mr.
Blunt:
Given all the evidence about the change from
28 to 42, the titanic importance that that has taken on, and the fact
that you have made it clear in your evidence that that change is only
one small part of a vast raft of measures that you are taking to
address terrorism, I am at a loss to understand why the Government are
so firmly stuck on this position, when it is not required at the
moment. If it is required, you will have to come to Parliament anyway,
under the provisions that you are putting forward, to invoke it. It
seems a very strange judgment, given how important it is that we try to
move forward on the legislation in as unified a fashion as
possible.
Tony
McNulty:
First, this is what the police and
counter-terrorism experts tell me that they may need. We clearly accept
that it is done on a contingent and reserve-power basis. Secondly, as a
Government we have the responsibility to listen to that and, yes, put
it into the context of everything else that we are doing, but then make
a judgment. It is essentially the difference between the conclusions of
the Home Affairs Committee and the Joint Committee on Human Rights. The
former says that no compelling case has been made to go beyond 28 days
on a permanent basis, but if we want to do so, we should at least use
the template of the CCA and do it in this, this and this way. The JCHR
says that whatever the position of the Government, let us see whether
intercept as evidence, precursor offences, post-charge questioning, the
threshold test and all the others work, before we consider whether a
further extension is needed in extreme or emergency circumstances or
otherwise.
As I have
tried to say, I hope that all the other things that we are doing work,
including the threshold tests and other things from the DPP. I am in
the strange position of pushing what is quite rightly a contentious
piece of legislation, which has been seriously deliberated upon, and
which I hope—because of all the other things that I and others
are doing—is never invoked. On balance, I think that the right
judgment is to let us have the provision there anyway. I would not want
to be deliberating on these matters in the middle of an
emergency.
Q
389
Mr.
Bailey:
Liberty and a number of our colleagues in the
Chamber have, on occasions likened this legislation to internment
without trial. What would you say in response to
that?
Tony
McNulty:
I would share the view of the Lord Carlile
and other people that that is profoundly wrong. First, it is wrong in
purely definitional terms as internment means indefinite detention by,
to put it crudely, Executive action, while neither the model in front
of us nor any other model is indefinite detention. More than that, it
is troublesome because it does the radicalisers’ job for them. I
am too young to invoke Rule 18B from the war—I should think that
the Lord Carlile is too young for that as well, so I apologise to him.
When people talk about internment, they naturally turn to the Irish
situation and the bungled use—although any use would be
inappropriate—of internment. I have looked into this and I knew
much about it previously, but for example, Operation Demetrius: 4am,
10th August 1971. Some 342 were arrested, God knows how many doors were
kicked in, 116 were released within 48 hours and to quote Bishop and
Mallie, from their book, “The Provisional IRA”:
“Among those trawled in
were ancient and long-retired republicans, youthful revolutionaries
from the People's Democracy, trades unionists, respectable middle-class
civil rights activists, a drunk picked up at a bus stop and several
people held on mistaken identity. A number of people on the Army list
turned out to be
dead.”
My problem with
that is not purely the incompetence, but that only some months after
Bloody Sunday in Derry, there is your recruiting sergeant for, in this
case, the Provisional IRA. Worse, that incompetence was legendary,
partly because the British Army might have known about Operation
Demetrius, but so did the Provisional IRA and most of them had legged
it. The negative side was enormously troublesome for what the Army was
seeking to do in Northern Ireland.
To come close to either calling
what we already have on the statute books, or what this legislation
seeks to do, anything like internment is utterly irresponsible in the
worst degree, never mind invoking Che Guevara, Herbert Marcuse and
others in the way that the Lord Dear does. That is why I was probably a
wee bit intemperate with him on Tuesday, for which I apologise to him
by remote control and indirectly.
Ultimately, internment did not
work; it did no harm at all to the IRA, the Provisionals were long
gone, and it actually did enormous harm in the context of what the UK
was trying to do in Northern Ireland at the time. This legislation is
nowhere near that. I am trying to think of something beyond my earlier
allusion to raisins and passion fruit as a comparison; it is a woefully
irresponsible, intellectually sloppy and a down right fallacious
comparison, if I can put it in such measured
terms.
Q
390
Mr.
Bailey:
You seem to feel strongly about it. You have made
some valid points that Parliament would understand. How can you
convince the public, and in particular those people who are using the
issue to accuse the Government of being the recruiting sergeant for
Muslim terrorists, that it is not the
same?
Tony
McNulty:
By engagement and hopefully trying to get,
as I have been trying to do for 18 months, proper discussion and
discourse on what we are trying to do. That has been enormously
difficult. Let me just say in passing that, in addition to what David
said about consulting people from June onwards after the previous Home
Secretary, Dr. Reid, made it clear that there would be a
Counter-Terrorism Bill, in the wake of the alleged airline plot of
August 2006, which I do not want to go into too much detail on, there
was an equivalent five or six months of consultation and discussion
within Government on every aspect of our counter-terrorism strategy,
including the legislation.
What annoys me as much as
intellectually sloppy comparisons such as that with internment are
those who, some time ago now—I made reference to this at
ACPO’s counter-terrorism conference in Brighton—describe
this Bill as a knee-jerk reaction to the latest set of events, which is
profoundly not the case. Before London-Glasgow the most significant
event was the alleged airline plot, which is no sub judice, so I do not
want to go into it in any detail. So from August 2006 until June 2007
the Government deliberated on what their counter-terrorism strategy and
their response to something as serious as that plot should be. In the
very early part of that process, rather like in other times as
alluded to this morning, the instant reaction was to ask whether
immediate legislative action was required, but the answer was no, so we
could take our time on that.
As most colleagues would agree,
coroners and maybe one or two of the other areas aside, there is broad
consensus around much of the rest of the Bill because it simply
improves and builds upon existing legislation. It is quite right that
this area should be contentious, but it has not dropped from the sky.
It is not a knee-jerk reaction. If I get passionate about issues such
as internment, it is because it is such a sloppy and utterly
illegitimate comparison.
Q
391
Mr.
Heath:
I will just pick up the last point that the
Minister made. There is a great deal of consensus
about substantive parts of the anti-terrorism legislation and the
corpus of work that has already happened and is continued in this Bill.
We need to keep on making that point because it is an important one. I
do not want to argue about matters that we shall develop in Committee;
there is no point in that. First, may I ask a question about the
inquests? The Minister has made it pretty plain that he is prepared to
discuss this part of the Bill. Perhaps it is not area in which he feels
he has greatest expertise, given that it comes from another Department.
Is he aware of what consideration was given to the use of PII as a
mechanism and why it is felt to be inadequate as a way of presenting
matters that are sensitive in national security terms to a
coroner’s court without
disclosure?
Tony
McNulty:
I am, but I do not feel that I can go into
it, to be perfectly fair. But let me use the question to hook on some
other things that I wanted to say anyway. We said, through the usual
channels this morning, that I am happy to and have subsequently put in
train an informal seminar for the Committee on the Chilcot review and
where the Chilcot implementation group is in terms of intercept as
evidence. Quite fairly, the Committee may feel before 15 May that it
wants to come back to try to hook legislative elements of intercept as
evidence on to the Bill. Quite fairly, that will happen. Please indulge
me momentarily at least, Mr.
Bercow.
Secondly, I
repeat what I said earlier to the Committee: my officials stand ready
to help, within reason, any member of the Committee on technical
information or other aspects of the Bill. Given the belated insertion
of the coroners material into the Bill, it might be appropriate, not
necessarily in this fashion, but before we get to part 6, to have a
similar informal seminar where, as much as we can, the raison
d’être behind where we have got to with coroners and
answers to the sort of question that you have just put can be
forthcoming from the appropriate and relevant officials. To be entirely
fair to both colleagues either side of me, it is not their bailiwick
either and it would be unfair to push them in that direction too. But I
am happy to ensure that we have a similar informal seminar to go into
part 6 in more depth with the requisite people. That is a clumsy way of
answering the
question.
Mr.
Heath:
It is a very good way of answering it. We are aware
that the Ministry of Justice has been leading on the Coroners Bill and
matters relating to it.
Jennifer
Morrish:
One thing I would say is that public
interest immunity is used to keep sensitive material out of legal
proceedings, whereas this proposal does precisely the
opposite.
Mr.
Heath:
In effect the mechanism takes it out of public
proceedings, but let us not debate that now.
Tony
McNulty:
I am happy to put that one in train too. Let
me say to Mr. Blunt that I have reported that back to
officials, and we will hopefully get that informal grouping on the
Chilcot review on intercept as evidence in a timely fashion before 15
May.
Q
392
Mr.
Heath:
Can I move on to the second point that I wanted to
ask about? Minister, you said earlier that you had already put in train
a review of the use of section 44 of the Terrorism Act 2000 with
respect to its effect on the Muslim community. Can I suggest that there
is a wider issue here? As you recognise, through the whole body of
anti-terrorism law we are giving exceptional powers to the police and
security services to deal with exceptional circumstances. I am
convinced that, in the main, those powers are used responsibly and
appropriately, but there are also a lot of instances where they are not
used appropriately. I will give an example from my own
experience.
My
daughter is a 20-year-old university student in London. Three of her
friends were stopped and searched in the Kings Cross area only a few
weeks ago under section 44 of the Terrorism Act 2000. It is my belief
that they had given no cause for suspicion; they were perfectly
ordinary, white, middle-class students. I do not believe that there was
any reason why they should have given cause for suspicion, nor did they
provide any cause for suspicion upon search. If that sort of abuse
takes place it alienates a far wider community. I ask you to review not
only the way in which powers are used, but also to ensure that
individual constables are educated in the exercise of their duty to
ensure that they are in line with what their chief constables and
Ministers would want them to do.
Tony
McNulty:
Two small points. First, I want to amplify
Mr. Davies’s point made from a sedentary position. As
a serving special he knows that 44s are random and therefore suspicion
is not needed. Secondly, the Lord Carlile is on the review group, and
he has quite fairly said—I have taken this to heart—that
we must look at the mote in our own eye in terms of how Ministers, that
is me, sign off the permission for the 44s in the first place. That is
part of the exercise. Is it appropriate for a force to always be under
a section 44 so that therefore those powers exist, whereas other powers
are drawn far more narrowly? We are looking at all aspects of that law,
but I wanted to say something about other aspects of the law.
The Regulation of Investigatory
Powers Act 2000 is not counter-terrorism legislation. Funnily enough,
it is about the investigatory powers that exist and regulation of them.
A rather obtuse point was made earlier by Mr. Crossman,
about how appalling it was that down in Portsmouth, Poole, Bournemouth
or somewhere, counter-terrorism legislation was being used to chase
down parents who were seeking to evade and break the rules for school
admissions. No. If the authorities were utilising surveillance and
other powers properly under
the law, that should have been controlled by the Regulation of
Investigatory Powers Act. That Act goes way beyond counter-terrorism.
People are a bit free in saying that counter-terrorism legislation is
being used for all sorts of things—I am not suggesting that that
is true of the hon. Gentleman. However, as I have said, I take these
issues seriously—not least Mr. Holloway’s
point about radicalisation—and see that the misuse of some of
these broader laws can, at the very least, give succour to our enemies
as they seek to radicalise, and at worst be quite abusive for
people.
Q
393
Mr.
Heath:
I am glad that you have mentioned
RIPA, Minister, and the part of it that was subsequently amended by the
Terrorism Act 2006, which deals with encryption keys. Can the
Government provide any satisfactory explanation of why they took so
long to bring into force what was described as being a key part of the
arsenal against
terrorism?
Tony
McNulty:
As far as I understand it, and then
Mr. Ford can give you the correct answer, it was because of
practicability and the need to work closely with the industries to get
the draft and subsequent codes of practice aligned so that they worked
effectively. Now give them the right answer,
David.
David
Ford:
It is not my area, but I think that they did
not want to introduce the measure until they had reached a certain
point with the technology. Again, there was the need to consult fully
on the codes of practice before it could be brought
in.
Tony
McNulty:
Sure. We have only recently put the codes of
practice on a formal footing by means of statutory instruments. The
measure rightly goes to matters of practicability and technology, and
it is yet another weapon in our armoury, which hopefully means that we
never have to go down this route again. There are now quite severe
penalties for withholding encryption keys and other aspects relating to
the information technology involved in those
cases.
David
Ford:
We will ensure that you have the information on
the delay. However, the Home Secretary wrote last week about this power
and its use, and I think that copies are in the Library of the House.
Tony
McNulty:
Perhaps you will have a look at that first
and get back to us if you need further
information.
Q
395
Ms
Taylor:
There is great interest in radicalisation, so I
would like to suggest that, if people have not read Michael
Gove’s book on terrorism, it is well worth reading. It is a
well-rounded book that I would recommend you pick
up.
My interest and
concern is in using intercept as evidence. I feel a lot more
comfortable knowing that there will be an informal seminar on
intercept; that will be very valuable. I am concerned that the
technology is complex and that tracing it becomes less feasible and
less accurate. Also, using intercept evidence could show gaps in the
intelligence and security services’ knowledge. Further, there
could be a capability gap, as minority languages, such as the Afghan
language of Dari, which is spoken by so few and is very
colloquial,
would be very difficult to translate. Lastly, by tracing the
evidence—I have said this once before today, because I am
concerned—you will put the finger on operatives who are out
there helping the security agencies, and who, increasingly, are
Muslims. I have three
points—
Tony
McNulty:
Let me start by saying that I am very
grateful to everyone who has mentioned the Chilcot review over the
course of our two days’ deliberation and has recognised it as a
serious piece of work that discusses many of the concerns that my hon.
Friend has highlighted. Those concerns remain. Nine or 10 hurdles
remain for the implementation group that follows on from the review.
The Prime Minister has said that there is enthusiasm to get on with it,
but they are relatively high hurdles, which people should be mindful
of. It is not, as one or two witnesses have indicated, simply a matter
of flicking a switch on and off: we will have it or we will not have
it. If we are going to do it, let us do it right.
I remind the
Committee that the Chilcot review was cross-party, as, I think—I
will double check—is the implementation group. The review
comprised Lord Anderson from our party, Lord Beith from the Liberals,
and Lord Hurd from the Conservatives, and, happily, they came up with a
unanimous position. Therefore, it is in everyone’s interests to
push on. In addition to those concerns is the concern that many
witnesses have alluded to that technology is ever changing, as indeed
is communications technology. That is not simply about mobile phones,
but the start of voice-over internet protocols. We could have a fairly
radical transformation of the utilisation of communications that 10 or
50 years hence may make the mobile phone redundant, let alone the phone
hanging on the wall in your living
room.
All those
matters have to be factored in. Chilcot is very aware of them and we
are very serious about working through those issues to get to a
position where we can have intercept as evidence. I think that people
understand that. If you had said at the very beginning, just before
Marconi or Edison or whoever invented the telephone, that any
intercepts could be used as evidence and your legal framework grew up
with the technology, that would be very different from asking at this
stage how we can utilise intercept product from phones and other things
as evidence. So,
yes.
Q
396
David
T.C. Davies:
Minister, you started your case quite
passionately. Taking you back to your summary of the DPP’s
comments, there is consensus in some areas. We all agree that terrorism
is wrong and that we should be doing something about it. However, are
you not undermining the validity of your own case by trying to suggest
that Ken Macdonald agrees with your position? It is quite clear to
those of us who have been on the Committee and taken the evidence that
he does not see any reason to go beyond 28 days. There is an honest
disagreement there and trying to pretend otherwise simply undermines
your position.
Tony
McNulty:
If I have given that pretence, I apologise
to the Committee and to him. I have not sought to do that. I am saying
that the common position that we all share is in asking whether there
is a compelling reason to go beyond 28 days under the circumstances in
which we went from 14 to 28. The answer is no. Are there practical
reasons why we should go beyond 28 days, given the evidence of the
DPP, Miss Hemming and others? Again, the Government say
no.
On the compelling
evidence from the police and others with their informed view that we
should in extremis go beyond 28 days in the model afforded in the Bill,
I have not said—forgive me if you have interpreted it this
way—that Ken Macdonald is right there with us because quite
palpably he is not. To be fair to him, he said that his job was to talk
about the efficacy of 28 days and whether he felt, other than in the
six cases that went to the 27 or 28-day term, that they were really
struggling to make effective use of the 28-day period. I accept that he
said no in all honesty. My only point was that he said that it is a
matter for the Committee and subsequently Parliament to determine the
framework within which he operates, rather than a judgment for him. I
think that that is an equally fair and honest
point.
David
Ford:
A key part of the proposal on
pre-charge detention is that you will not be able to go beyond 28 days
without the DPP saying that he needs
it.
Q
397
David
T.C. Davies:
I think that we all agree
with that. I do not wish to single out the Minister, but I heard one of
his colleagues on Second Reading give the strong impression that there
was no difference of opinion between Ken Macdonald and the Government.
Clearly, there is an important difference of opinion and there is no
point in trying to pretend
otherwise.
Q
398
Mr.
Wallace:
May I ask two questions? The first relates to the
prevent strategy and its effect on radicalisation. Is it not the case
that there has been an increase in plots and in individuals being
radicalised in the last three to four
years?
Tony
McNulty:
We certainly know, purely from what we
disrupt, that there have been more plots. We know from what the
Security Service and the police tell us that it is very likely from
what they cover and beyond that the number of people involved is
growing, too. That was made clear by Jonathan Evans, the director
general of MI5, and an array of others, including Eliza
Manningham-Buller before him and the Home Secretary very recently. That
is very clearly the case and it is a fair point,
surely.
Q
399
Mr.
Wallace:
That troubles me, because in your earlier
answers, Minister, you said that there is no evidence to suggest that
the bulk of the counter-terrorism legislation that has been introduced
by the Government has had an effect on radicalisation; that there has
been a growth in it. Clearly, if there are more people being attracted
to extreme forms of Islam and there are more plots—some of
which, I grant you, will be because more plots are being uncovered and
police forces are getting better at mapping the communities—
there is, certainly anecdotally, some form of linkage. There could be
that linkage; you could not rule out a linkage between the growth in
people seeking their way out through extreme Islam and some of the
legislation that has been
introduced.
Tony
McNulty:
I would not rule it out entirely, but it
would be foolish not to include your caveats and qualifications. I say
that because as we have come to know more about this particular threat
over the last few years, the one thing that we have learned is that
there is a time lag. When one explores the key radicalisation pinch
points of some of the key principals now behind bars who were involved
in some of the significant plots in recent years—2003 or so
onwards—they were either Bosnia, Chechnya or something way back
there, rather than very recent events.
Bear in mind also that, with
regard to many of the significant plots—7/7, 21/7 and certainly
those covered by Operations Crevis and Rhyme and the others that the
hon. Gentleman will know about—although they come to trial in
late 2006, 2007, or 2008, the precursor activity was way back in 2001
or 2002. At least some of these plots predate 7/7. So it is very hard
to draw the causal inferences from a law that, in effect, was signed
into law in June/July 2006 and cast any causal link with that law and
the increasing numbers of those who have been radicalised as well as
those active in violent extremism.
As Mr. Wallace
implied, that is not to say that I can rule out a causal link entirely;
I do not think that I could do that. Equally, however, you said quite
fairly that exposing further numbers of people, getting hold of and
uncovering more and more plots and eventually disrupting them, is at
least in part a function of the huge increase that there has been in
the resources of the police and other services over that period and us
collectively getting better at doing that. So that is at least a factor
too. There is a whole melange there, in terms of precursor and causal
factors.
Q
400
Mr.
Wallace:
I do not disagree with much of what the Minister
says. I think that it is important that we recognise that
radicalisation has certainly not reversed in the last four or five
years.
Tony
McNulty:
Certainly not; I do not want to give that
impression.
Q
401
Mr.
Wallace:
I have pored over the “Tackling Extremism
Together” initiative, which was quickly drawn up and put into
place after 7/7. Unfortunately, we are still going in the wrong
direction and we can lay blame for
that.
Tony
McNulty:
You must share that with us in another
forum, if we are going in entirely the wrong direction; I would be very
interested in hearing those
views.
Q
402
Mr.
Wallace:
Going beyond the issue of detention without
charge, and let us say that the Government gets it, I share some of
Lord Carlile’s concerns. He mentioned one concern—I am
not sure whether you were in the room at the time—regarding the
judicial oversight on someone in detention. In that situation, my
reading of the Bill is that the DPP will come and present a reason why
that person should
continue in detention and the High Court judge will make their views
known, or will make a decision on that.
I am summing up Lord Carlile,
but he believes effectively that we are not yet in a position to have
judges able to properly test effectively the intelligence.
Sir Ian Blair made it clear yesterday that, at
apprehension of individuals, there is a lot of intelligence and not a
lot of evidence, and he was going to use that detention time to convert
that intelligence into
evidence.
In defending
someone’s liberty, when that person is standing in the court and
the judge is having to make that decision, is it not appropriate that
the judge should be able to test quite strongly the intelligence that
may be put in front of him by the Executive, if he is going to agree to
a further extension? I think that Lord Carlile envisages investigative
judges, perhaps like those on the continent. We could perhaps have
specialist, trained judges. Do you not think that that is something we
should
do?
Tony
McNulty:
You are entirely right to say that Lord
Carlile ultimately favours a sort of investigatory judge or magistrate
model from Europe, but I think that earlier he was trying to question
whether it was possible to have some sort of hybrid investigative-type
magistrate or judge for the post-28 day period, and I think that we
could usefully explore that. I do not want to go down the road of
having an overall investigative magistrate and all that that would
imply for our legal system.
Judge Judge has also said that
it might well be that we take the route of having a specific panel of
judges who have more expertise in those matters. That is also
interesting, not least because supposedly one of the
safeguards—I use that word advisedly—that was made in
2005 was the requirement to be very explicit about the level attained
by the judge who would sit in the case. Towards the end of the process,
we went for circuit judges. Judge Judge said, very straightforwardly,
that although they are lovely people, some of them have no notion or
experience of terrorism at all and that it is not the level of judge
that is important for oversight, but their experience. He suggested a
panel of judges who have suitable expertise in terrorism, regardless of
where they sit in the bench from top to bottom, and that is also worth
exploring.
I
also invoke what the Director of Public Prosecutions
and Sue Hemming said to the Committee on Tuesday. She suggested that
this was not a cake walk anyway, and that the notion that the judges
only start to get robust by about day 21 or 24 or prior to day 28 is
erroneous. They are quite robust the very first time they go back for
an extension of detention powers beyond the seven days, as alluded to
in part 55 or 56 of the evidence from the Director of Public
Prosecutions and from Miss Hemming. I think that all those are very
valuable points that are worth exploring, save for the idea of turning
our entire process into the investigative magistrate model, and that is
a reasonable position. The Joint Committee on Human Rights is almost in
the same sort of place, but it is certainly not something that we would
put forward at this stage, and we will probably not do so at
all.
Q
403
Kali
Mountford:
You said that you do not want to be legislating
after an atrocity. If the House does not accept the need for 42-day
pre-charge detention, what will be your main objection to legislating
if there were to be an
atrocity?
Tony
McNulty:
It would be purely the
practicalities—this is not meant to diminish the import and
seriousness of these mattes—of legislating on a kind of
dangerous dogs basis, if I may put it like that, and in the middle of
the public disquiet and furore of a clear and pressing emergency. I am
not entirely sure that that is Parliament at its best. I would far
rather legislate on a reserve and contingent basis at leisure, taking
it very seriously. We would then have that reserve and contingent power
should we need to utilise it. That is my strongest reason for objecting
to doing that in the wake of the sort of emergencies
envisaged.
Q
404
Kali
Mountford:
Have you considered some of the other
practicalities? Would the House have the time, for example? I am
thinking about the limits that would be placed on the House, given that
we would perhaps have had suspects in detention for some time. We would
be up against time constraints, so perhaps the parliamentary time scale
would have an impact, even though we have put legislation through the
House in a single day.
Tony
McNulty:
I entirely agree. It is not just the
principle of it, which is the best way to legislate, but certainly all
the practicalities that you have mentioned are entirely right, and I
suggest that that is not the way to do
business.
Tony
McNulty:
I repeat, which I have not done for a while,
that to an extent it is already utilised. I am no lawyer, but I am told
by those who know far better than I do that there may be scope for it
to be utilised further. I am not saying anything about Mr.
Mercer in any way, but if it cannot be given at this end of the
equation, then it has to be given at the other end. I am troubled by
weakening the sanctity—as described by Liberty earlier—of
the charge. I know that the hon. Gentleman was suggesting holding
charges and all those sorts of things, but I do not want to get to a
stage in which, without invoking any other jurisdiction, there is an
over-inflation of a holding charge to get to a lesser position via plea
bargaining. I am not sure whether that is an area in which we want to
be. If the lawyers and prosecutors tell me that there is a limited role
for plea bargaining above and beyond where we are now, bearing it in
mind that we do use the threshold test significantly, then I am very
happy to listen. I do not think that that is outwith, or even
pre-empts, what we are trying to do in this
Bill.
Q
406
Patrick
Mercer:
So, you are sympathetic to Lord Carlile’s
view that it might be formalised in
legislation?
Tony
McNulty:
Potentially, but I am in the hands of others
in that regard. I do not know that area well. I know that plea
bargaining is used in fairly limited circumstances. Now, along with
threshold tests, it may be of some value.
Q
407
Mr.
Holloway:
This may be one for both the Minister and
Jennifer Morrish. What would happen in practice today if someone such
as Mr. Quick came to the Home Secretary and said, “We
have this group of people and we have had them for 27 days. It is
absolutely imperative that they do not go back on the streets”?
What could you
do?
Mr.
McNulty:
No.1, I would say that that would not happen. On
the premise that it did happen, I would say to Mr. Quick,
“I am a Minister of the Crown and I do not do operations. Go
back to your prosecutor colleagues and your police colleagues and
secure the information and evidence that you need to charge. You have
24 hours or you will have to
release.”
Jennifer
Morrish:
There would be no lawful authority to detain
beyond 28
days.
Tony
McNulty:
That is the stark reality. If there is not
sufficient evidence on a holding charge basis, threshold test basis or
any of the other bases that we have talked about to charge that person
on the 28th day, the person in question would be released despite the
intelligence detail—it may be that the process of translating
that intelligence into admissible evidence had not been completed. That
is the stark practicality of it. Ms Morrish is whispering to me that if
the situation is that severe, control orders or something similar could
be used, but that is the only
alternative.
Tony
McNulty:
Surely, if the 28 days are spent. As the
hon. Gentleman and many of his colleagues have said to me on, control
orders are not an entirely satisfactory weapon in our armoury. It is
either out the door or a control order. Happily, given the recent House
of Lords judgment—and doubtless that will be
challenged—there will be a 16-hour limit rather than 12, which
is what we are testing at the moment. As a Government, we have never
said that control orders were a satisfactory alternative. The stark
reality is a control order regime of whatever description we think
proportionate or we say to someone, “Out the door and off you
go”.
Q
410
Mr.
Blunt:
May I ask a general question about post-charge
questioning and how useful it is likely to be in getting admissions in
evidence or intelligence from people who will be subject to post-charge
questioning? Can you give us a sense of the importance of this
legislation?
Tony
McNulty:
Throughout my time in this area and as a
Member of Parliament, many colleagues have said that that could be a
useful area to get on the statute book. I have never been of the view
that it would be the panacea or silver bullet but share the views of
those who, over the two days of deliberations, have said that it may be
of some value. That is why the Government would absolutely support its
introduction. Quite rightly, at least in England and Wales, the
negative inference must be part of it, but as both Mr. Quick
on Tuesday and Lord Carlile have said, its uses will be limited, but it
may have some value. That is why it is in
the Bill. Others have said that, if we have
intercepted evidence and post-charge questioning, Bob’s your
uncle and we do not need pre-charge detention. It was never as stark or
as simple as that, but it will be of some value, which is why we have
incorporated
it.
Q
411
Mr.
Blunt:
There have been examples in which Indonesians have
pursued a strategy of turning former terrorists to the side of the
authorities, and have then got an enormous amount of information from
them. Are there circumstances in which that might apply, after someone
is charged? During the process of questioning, could people be brought
face to face with the reality of what they have been up
to?
Tony
McNulty:
Potentially, but not just as a consequence
of the availability of post-charge questioning.
David
Ford:
People can already be questioned after charge
for intelligence purposes—that facility is already available. It
is voluntary, but people can be questioned about offences other than
those with which they have been charged, for intelligence
purposes.
Tony
McNulty:
But it is a moot point in the broader sense
of the prevent strategy and trying to deal and work with people who
have turned away from precursor organisations such as Hizb
ut-Tahrir—like many of those involved with the Quilliam
Foundation—or others who have been a little deeper than that in
terms of being proponents of violent extremism. It is not quite about
turning them, but about changing their views and their being used as
part of the prevent and community cohesion strategies in the broader
sense. That is
important.
David
Ford:
Also, in the Serious Organised Crime and Police
Act 2005, we put turning Queen’s evidence on to a statutory
basis. There is now legislation to cover that, and that can get a
reduction in sentence. The police and people who are involved in
terrorism are aware of those provisions and will, obviously, use them
as fully as they can in terrorist cases.
Q
412
Mr.
Blunt:
I have one more question about intercepts. We thank
the Minister for offering to make his officials and those on the
implementation group available for a briefing, which would be immensely
useful. Obviously, the earlier that happens, the more helpful it will
be. Is there the slightest possibility that the group’s work
will be progressed sufficiently to be added to the Bill at a later
stage in its proceedings?
Tony
McNulty:
That calls for speculation. I am not sure,
but I suspect that the honest answer is no, given that even Sir John
Chilcot said that he thought it would take 10 months to a year to work
through all the impediments to implementation. On the premise that he
is right, and I have no reason to suspect that his judgment and
estimate about the work is not right, the answer is probably no. With a
fair wind—speculatively—the tail end of the Bill’s
parliamentary passage will be September or October, so with those two
caveats, I suspect
not.
The
Chairman:
Colleagues, I have just one more Member on my
list who wants to pose a question. He has already asked one, but he is
welcome to ask another. Needless to say, I have no desire to prolong
proceedings beyond what colleagues want, but if they want to come in
again, they are welcome to do
so.
Q
413
Mr.
Wallace:
I return to judicial oversight. The Bill provides
for parliamentary approval, but it seems more logical that if you have
a High Court judgment, the next step is not to go back to Parliament,
because it is allowed very little information. Lord Goldsmith pointed
that out as well and noted that you are not going to be told much about
the detail. You will be told only that there is a need and be asked to
make a decision based on a statement. The Bill is quite clear about
what you will be told. Instead of doing that, why not go to a more
senior group of judges? Once you handed it over to judicial oversight,
why did not you keep it
there?
Tony
McNulty:
Again, as I implied earlier, I think that
that is a very fair point and one worthy of exploration. I know that
many colleagues have said—I think wrongly—that
parliamentary oversight is erroneous. I thought that quite a few were
dismissive, on Second Reading, of the role of
Parliament.
I think
too that Lord Goldsmith was slightly off kilter when he suggested that
the distinction between an individual case and Parliament’s role
was not very clear. Let us be very clear that Parliament’s role
within 30 days is to confirm or otherwise the Home Secretary’s
decision under order to commence the legislation. Its role is not to
pass comment on an individual’s case—whether one
individual case, an individual plot or whatever—that prompted
the DPP and the chief constable to go to the Home Secretary to seek the
trigger. Its role is to deliberate on her decision to commence the
legislation under order. It is entirely appropriate for the grown-up
men and women who fill the House of Commons to have that debate, rather
than to invoke individuals
entirely.
It does
depend in part upon what the Home Secretary’s report
says—he is entirely right in that regard—and what those
broad circumstances are. They will not be the circumstances of the
individual involved in the plot, the individual sitting in pre-charge
detention at 20 or 21 days, or whatever else. It is demeaning to
suggest that Parliament cannot grasp the distinction between those two
very distinct processes. A
point that we should explore is, “Why not find some other role
for Parliament, to oversee the legislation and maintain at the earliest
opportunity the judicial oversight of the execution of the law, as well
as of the individual
cases?”
Q
414
Ms
Taylor:
Minister, I think that the answer could again be
yes, but here goes—[
Interruption.
]
.
I am being picked
on.
Ms
Taylor:
Could there be a realistic concern that if a
person is charged with a lesser offence, because of time constraints,
that could easily blow open the investigation, by ensuring that what
evidence the police, special branch or whoever wants to collect becomes
obvious to those who are not coming forward, and they then go to
ground, making the evidence impossible to retrieve? Is there a concern
here that we should be
articulating?
Tony
McNulty:
As the prosecutor said on Tuesday, and Ms
Chakrabarti said I think today, no one is saying, “Just get them
for nicking a bicycle.” That is a reasonable thing to say. There
would potentially be concerns if by day 27 or 28, with all the
paraphernalia that we are talking about, whatever you charged the
individual with was a lesser offence to the extent that it was
bailable. All that you suggest would prevail if a person went straight
out on bail and there was not a handle on all the other elements of the
plot or activities that that individual was involved in. That is what
the DPP and Miss Hemming said—certainly regarding that recent
case that she was involved in. They work very hard in a very focused
way to secure, quite rightly under our rule of law, the appropriate
charges with appropriate and admissible evidence within that time
constraint. That is absolutely right and
proper.
Further
consideration adjourned.—[Mr. Alan
Campbell.]
Adjourned
accordingly at eleven minutes to Four o'clock till Tuesday 29 April at
half-past Ten
o'clock.
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