Counter-Terrorism Bill

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Schedule 1

Amendments relating to period of pre-charge detention
Mr. McNulty: I beg to move amendment No. 75, in schedule 1, page 70, line 3, after ‘(5)’ insert ‘to (7)’.
The purpose of the amendment is to correct an oversight in a series of the consequential amendments outlined in schedule 1. It will ensure that the definition of “senior judge” in the stated paragraph is omitted when reading schedule 8 of the Terrorism Act 2000 if the maximum limit reverts to 14 days. It is a minor technical amendment, which makes no change to the effect of the existing policy, and I commend it to the Committee.
Amendment agreed to.
Question proposed, That this schedule, as amended, be the first schedule to the Bill.
Mr. Grieve: As this is a schedule stand part debate, Mr. Bercow, I wondered whether the Minister was going to introduce and justify it, but I notice his hesitation, which may indicate that he wishes other people to speak first. I am perfectly happy to speak first as to why I think schedule 1 should not stand part of the Bill.
When habeas corpus, which is often cited, was introduced in the 17th century to deal with the mischief of individuals being locked up by the Executive without being brought before a court, there was no proper time that the Executive could lock a person up without bringing them before a court. There might of course be some slight delay. If somebody was arrested on a Saturday afternoon, there might be no magistrate available until Monday morning, although magistrates in those days could sometimes be found to come out and do special sessions.
There might be other reasons why there would be some short delay when a person was in the custody of the constable or other person in authority before they appeared before the court, but the idea that there was some sort of investigative process which allowed the police, or, prior to the police, the watch, to detain somebody without having charged them was unheard of. This was, of course, in marked contrast to the system which prevailed in continental countries, where the power of the Executive to inquire into crime provided an excuse—as it still does today—to detain people at times for quite long periods upon a charge having been laid but never actually brought before the tribunal to try the matter. The difference is between common law systems and inquisitorial systems.
Before I suddenly give the impression that I am seeking a return to a 17th-century practice, let me say that I am the first to accept that there is some merit to having a system by which the police can detain a person for a short period before charging them. That is in fact why the system itself emerged in the late 19th century, before it became formalised in statute. The police argued—very reasonably, I think—that, having arrested somebody, there was a lot to be said for being able to ask them a few questions, essentially to check whether they might have got the wrong end of the stick. There was also a short window of opportunity, which allowed the police to go and lay their hands on any papers or evidence that might be thought useful in bringing the case. It remains true, however, that the common law system historically provided for a very short period of time for the police to do that. Under our legal principles, it is not so much an investigative period as a period sufficient for the police to decide whether they might have got it wrong, without going through the paraphernalia of charging somebody.
As the Minister will doubtless confirm, although there have been some extensions, for ordinary crime in this country four days remains the outer time limit for which a person can be detained for questioning, and that applies to very serious crime indeed. In some common law jurisdictions, the principle of detention for 24 hours only remains operational, with the intention that it is still the system that started to exist in this country in the late 19th century.
As far as terrorist cases are concerned, we are not talking about extending 28 days—in fairness, the Government have already accepted that 28 days is an emergency procedure. We are talking about extending the period from 14 days, first to 28 days, which we are currently doing in the annual renewal under the 2005 Act, and then to 42 days, having previously rejected the Government’s initial attempt two years ago to move it to 90 days. Is there a case for such an extraordinary power to be given to the police, and ultimately to the state? The Government envisage that the Home Secretary in particular will have a key role in using and developing the 42-day process.
Speaking for myself, and I expect for most of my hon. Friends, I hope that we are essentially pragmatists. Being pragmatists, if somebody comes along and makes a powerful and persuasive case for why an exceptional or extraordinary power is needed due to some particular circumstances, we should be prepared to consider it. Equally, in the past, Parliament has been asked to depart from the ordinary principles of our common law on a number of occasions, including by past Conservative Governments when detention without trial was introduced in Northern Ireland. History has shown that in doing such things, we almost certainly made a colossal mistake. Far from improving matters, or the safety and security of the public, whatever short-term safety and security that may have been improved was fatally undermined by maintaining some of the grievances that fuelled the conflict, long after any efficaciousness of the measure had worn off. I consider schedule 1 with that in mind.
The Government have said a number of things about schedule 1, and there are a number of points on which I profoundly disagree. Perhaps I may take up a little of the Committee’s time to run through the issues which, I think, make it a flawed document.
Martin Salter: In the context of what the hon. and learned Gentleman is about to say, may I remind him what Conservative Members have said on the matter? I take him back to a Home Affairs Committee report that is not often quoted—not the one a few months ago, in which I was involved, which cited exceptional circumstances very much as laid down in the Bill, but that of June 2006. It recommended unanimously that
“the growing number of cases and the increase in suspects monitored by the police and security services make it entirely possible, and perhaps increasingly likely, that there will be cases that do provide that justification. We believe, therefore”—
I emphasise that “we” means that it was agreed on an all-party basis—
“that the 28 day limit may well prove inadequate in the future.”
Has the hon. and learned Gentleman had a chance to reflect on the views of some of his colleagues?
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Mr. Grieve: I will move on to that in a moment. One of the most noteworthy issues in our debate has been whether there is evidence that 28 days is proving insufficient. As I think the hon. Gentleman might find himself conceding in the course of the debate, it appears that absolutely no one has been able to come forward and say that 28 days is not sufficient at present. No evidence to this Committee suggested that, and when the Home Affairs Committee took its evidence back in the autumn of 2007, there was no one available to make such an argument. As the hon. Gentleman knows, a number of individuals, ranging from the Director of Public Prosecutions, from whom we heard only a fortnight ago, to Lord Goldsmith, who was the Attorney-General at the time of the debate on extension to 90 days, were utterly emphatic that they could think of no circumstances at present—one cannot go into hypotheses—in which they considered that anything beyond 28 days would be required. In fairness to the police, although I shall come to some of the flaws in the presentation of their case, they have acknowledged that they have never required more than 28 days in any case so far.
I say to the hon. Gentleman that whatever was said in 2006, or indeed in the debate in 2005 on changing to 90 days, in which I was heavily involved, some of the anxieties that were expressed then do not seem to have materialised. Moreover, as he will know, we have pointed out that although the Civil Contingencies Act 2004 is an imperfect instrument for the purposes of lengthening detention, if there were multiple plots sufficient to trigger a state of emergency, which they almost certainly would, it could provide for an extension. I shall return to that in a moment, although I do not wish to take up too much of the Committee’s time.
We are debating whether there should be an extension beyond 28 days not in a state of emergency but on the basis of a decision taken by the Secretary of State, following a report from a chief officer of police and the DPP, on the need to operate a new reserve power. It is not about a state of emergency at all. I say to the hon. Gentleman that the evidence is overwhelming that those who are the most intimately involved have found no objective basis to justify going beyond the already lengthy period of 28 days—a month.
When I consider a month’s detention, it troubles me to think what that means in practice. I know that in at least one case in which an individual was detained for the full 28 days, he had no mental health problems at the start of his detention. At the end of the period, concern was expressed that he was developing serious mental health problems. The case is perfectly documented, and the Minister will know about it. I do not want to go into the detail of individual names and cases. Detaining somebody for such a long period, not in a prison or a normal environment, but in Paddington Green police station, in considerable isolation, is an extremely oppressive thing to do to the human psyche. I have seen a copy of bits of the report of a psychologist who had treated such a detainee, detailing concerns that such treatment was likely to lead to mental health breakdown. These are not slight matters.
Ms Dari Taylor (Stockton, South) (Lab): If the hon. and learned Gentleman is not persuaded by my hon. Friend the Member for Reading, West, is there a chance that he will be persuaded by Lord Carlile? In evidence to us, he said:
“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.”——[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 123, Q325.]
He referenced encrypted material, inquiries abroad and people who are unfit to give evidence. Is that evidence not persuasive to the hon. and learned Gentleman?
Mr. Grieve: The hon. Lady’s comments raise two separate issues. As has become quite clear to me from listening to Lord Carlile, not just in his evidence to the Committee, but when discussing this matter with him in seminars that I have attended in the last 12 months, he would like to bring about a radical transformation of the investigative system for terrorism in this country. That is quite clear in some of his earlier reports. He advocates not 42 or 90 days pre-charge detention, but a shift to what I can only describe as a semi-continental model where if the police can justify to a judge the need for further detention because more evidence might become available, they should be allowed to detain such an individual till kingdom come. In fairness to him, he does not envisage that happening because he thinks that there would come a point at which the judiciary would intervene and say that the person must be released.
Lord Carlile has never been an advocate for 42 days pre-charge detention. As I understand it from reading his reports and from speaking and listening to him, he advocates an open-ended system argued on the back of his belief that material would progressively emerge. I have two points to make about that. First, as a matter of principle that system does not commend itself to me. It is for the same reason that I went back to basics at the start of my speech. I wanted to remind the Committee and myself what we consider to be acceptable in this country in the investigation of crime. Terrorism is crime like any other. This is not an inquisitorial system, but one where traditionally, the purpose of arrest is to bring a charge, not to detain somebody while inquiries and investigations are carried out.
I am perfectly prepared to see some latitude in the system. We did not object to some of the extensions that have taken us to 14 days and I was prepared to compromise on 28 days to try to achieve a consensus in the House in 2005. However, for the reasons that I gave a moment ago—particularly the example that I cited about the effect on individuals of such long periods of detention—I regard 28 days as the outer limit of the acceptable. Those are the very words that I remember using to the right hon. Member for Norwich, South (Mr. Clarke) when I had negotiations with him in 2005 prior to their breakdown when Mr. Blair stepped in and insisted that he would have 90 days and nothing else. I remember discussing that in the Home Office at that time. That is why I have always considered that 28 days is pushing the outer limits of what is acceptable. While I appreciate Lord Carlile’s point, I disagree with him on principle.
Secondly, I have more than a slight niggle. Theoretically, if somebody is detained for a very long period, something may turn up. Investigators may succeed in getting into an encrypted code or something else may happen, but that must be contrasted with what Sir Ken Macdonald, the Director of Public Prosecutions, said. He is the man who ultimately carries the can both for the failure of the Crown Prosecution Service to prosecute and for the CPS doing a botched job. I hope that I do not paraphrase incorrectly how he put it to me and the Committee, but his experience is that if one has not got what one is looking for within 28 days, it is most unlikely that one will get it thereafter.
As for the encryption key, one is either going to get it or one is not. One of our arguments with the Government—I continue to be very concerned about the matter—is that the penalty for failing to provide encryption should be sufficiently heavy to have some weight. However, if one does not have an encryption key and one cannot break the encryption within 28 days, it is questionable whether one will get it thereafter.
One of the issues that we have debated over and over is whether anyone knows of a case of someone being released on day 28 about whom the police have said at a later date, “Oh, this is a disaster. He has disappeared, and we want him.” It is has not yet happened. That is precisely because, as the hon. Lady will be aware from the evidence given to the Committee, the Director of Public Prosecutions and the police, very properly in my view, operate a threshold test on whether to bring a prosecution. That requires turning the reasonable suspicion that the police need to justify arrest into evidence.
It is worth bearing it in mind that the police need a reasonable suspicion to arrest people; they cannot just pick people off the street, although given the many examples that are brought before me as shadow Attorney-General I wonder whether the police have been reminded of that fact. They need to have reasonable suspicion. That suspicion can be grounded on hearsay, intelligence material and all sorts of other things that cannot be used in court.
The key issue for the police when arresting someone, and for the Crown Prosecution Service, is to convert the reasonable suspicion, which may be based on information that cannot be used in court, into evidence. In his evidence to the Committee, Sir Ken Macdonald said that they always find it possible to obtain the information that they want within the 28 day period. We shall doubtless hear more about this during the Bill’s passage through the House, but I have had plenty of opportunities to try to find out more about the cases in which people have been detained up to the limit.
I have to be careful because of the sub judice aspects, so the Committee will have to take parts of this on trust, although I will happily amplify the matter privately. The evidence is overwhelming in cases that went right through to the limit that the basis on which the charges were eventually brought—I do not criticise the police—had been available a considerable time before; indeed, in most cases it was found within the previous 14-day period. As I say, the fact that I am talking about current cases makes it impossible for me to go into further detail. I apologise to the Committee for that.
Those are the facts. That is not to say that there may not one day be a case in which the evidence emerges on day 26. That is why we have been prepared to tolerate 28 days, with an annual review. Even that is something on which I keep an open mind. The sooner we can go back to 14 days the better. However, those are the facts that we have before us.
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Martin Salter: Does the hon. Gentleman agree that we need to be careful about praying in aid people in our arguments here? Sir Ken Macdonald clearly said to the Committee that, while the DPP is able to use the powers comfortably at the moment, he would be equally comfortable about using new powers. Is not the nub of the debate whether we legislate either—in my view—in blind panic after an outrage or on the precautionary principle? Were the hon. Gentleman’s arguments against 28 days—because we have managed with 27—not similarly deployed when we moved from seven to 14 days and from 14 to 28 days—moves that his party was happy to endorse?
Mr. Grieve: On the second point, people who wished to argue against extending from seven to 14 days had a great number of good grounds for doing so. They were entitled to point out the dramatic nature of the change that such an extension brought about. To finish that point, we are talking about moving from 28 to 42 days. I have made my position clear. We voted for 28 days—I certainly did, although I know that I have one or two colleagues who did not, because they had serious doubts about the civil liberties issues. I was prepared to go for 28 days, above all to try and build that which is often so elusive in this place—a consensus. One of the most extraordinary things is just how extensive that consensus, which the Minister and the Government are now trying to overturn, was.
David T.C. Davies (Monmouth) (Con): I thank my hon. Friend for giving way, although I am slightly reluctant to interrupt his eloquent arguments. However, does he regret the way in which the DPP’s comments have clearly been misrepresented, given that he was obviously uncomfortable with any extension? My recollection is that he made it perfectly clear that, were someone to be charged after 28 days and before 42 days, then the CPS might have some difficulty bringing forward a prosecution, because of the length of time that the person had been kept in isolation.
Mr. Grieve: I agree entirely with my hon. Friend. The DPP is a member of the Executive arm of the state, admittedly through the prosecution service. Parliament decides the periods that individuals can be detained. It would be extraordinary for the Director of Public Prosecutions to come before a Committee, or anyone else, and say, “Well, if Parliament gives me a power, I can tell you that I object to it so much that I will not use it.” If he felt so strongly, his duty then would be to resign, but that is not his job. That, however, does not in any way detract from what the DPP actually said to us. The DPP said that he could see no necessity whatsoever to go beyond 28 days and that the only arguments put forward in favour were in what I interpreted as the realms of extreme hypotheses, which did not appear to bear any relation to the reality of the decisions that he was having to make.
If anyone wanted a clearer argument against going beyond 28 days, it is that we are engaging in a debate that appears to be based, at least partly, on a fantasy, from the DPP’s point of view. That could not have been made clearer. I have to say to the hon. Member for Reading, West, who was creative and ingenious in making his arguments, that trying to use the DPP to support the point of view that he was presenting to the Committee was pushing things a little bit. The DPP gave evidence in the autumn and has done so again. The second time, he could not have been more starkly clear that he disagreed with the Government’s reasoning on the matter. By virtue of the CPS now being intimately involved with the charging process—and, indeed, often with the arresting and investigative process, from its earliest stages—he seems to be a person who is in a good position to know what is going on.
If I may move back into the text of schedule 1, the Government’s arguments are that we should not worry, although perhaps I am being unfair to the Minister. The Minister might appreciate that people may worry. However, the Government have put in safeguards that ought to provide reassurance that schedule 1 is acceptable. I must say to the Minister that I profoundly disagree with that argument. First, it is not about a power to be invoked in an emergency; it is about a power to be invoked when the Home Secretary decides that it should. I accept that the report on the operational need for a reserved power must be made, but I hope that I may be forgiven for just the smallest element of cynicism. It is not as though the police and the Home Secretary operate entirely separately. There will always be cross-referencing, quite properly, between the two, and it seems to me that the Home Secretary will have powerful influence over determining whether an extension should be sought.
Any Minister who comes before Parliament, having invoked the powers, will be unable to give the House very much detail about what is going on, because the matter will be under investigation or sub judice. There will also be an inevitable delay that will negate most of the value of the parliamentary scrutiny procedure, as the person will already have been inside for 35 days or more before we get around to considering the matter. Once that Minister has given information, Parliament will have no alternative, in my view, but to make judgments based on insufficient material. That is not the Minister’s fault, but throwing in the provision as a sop is inadequate. I would much prefer it not to be there at all, because it asks us to do something that we cannot properly do.
The second part of schedule 1 concerns the court, and I accept that there are some separate arguments on that matter. I shall explain to the Committee why the court procedure worries me as well. Judges are not there to regulate investigative powers, except in so far as they are brought before the courts subsequently in challenges about what took place. It is an unusual use of the judiciary to start putting them in that position. I think that the Minister knows—I certainly know, from private conversations—how uneasy the judiciary are about being dragged into such processes.
The same applies to issues such as control orders. It is not that the judiciary will not do them—Parliament requires them to, and they will—but the judiciary exist to uphold processes of fairness, transparency and equality of arms between parties. Being asked to get involved in administrative and policing decisions, where the material available and what can be disclosed to one person or another inevitably means that there is no equality of arms, is something that they regard, not surprisingly, with a certain degree of distaste. I accept that we already get them to do that in a number of settings. We sometimes ask, for instance, for warrants to be issued and detention periods to be subject to review, but that should not detract from the fact that Parliament should be wary about extending the powers. Either we are moving towards an inquisitorial system, in which case we need to take our entire common law system, put it through the mincer and come out with something else, or we are progressively moving towards a hybrid system that provides inadequate safety checks, which was one reason why I had so much unease about Lord Carlile’s views.
My experience is that asking the court to authorise further detention in individual cases, admittedly on seven-day review periods, is not a happy thing. Seven days is a long time. Somehow, the fact that we have seven-day reviews appears acceptable, but seven days is longer than the period for which we are allowed to detain people normally, outside terrorism cases. We are progressively expanding the power of administrative detention—that is what it is, even if it is for the purpose of bringing charges—further and further. I find that aspect of the matter, which we will debate in more detail, a source of particular anxiety.
Finally, I note that the Government provide for independent review and report. I have nothing against that, but the measure does not go anywhere towards meeting the mischief that the proposals will create.
I wish to conclude my speech reasonably soon, but I should first like to return to the issue of the Civil Contingencies Act so that the Minister and the Committee understand where the official Opposition are coming from. When the Government first came back with proposals to go beyond 28 days, we highlighted that, in an emergency, the astonishing powers—some might argue—that we have given to the Government in the Civil Contingencies Act allow for a period of detention that is in practice much longer, if the Government are minding to use them.
I accept that there might be multiple plots, as was suggested, but if a situation in which three aeroplanes have been destroyed in the north Atlantic and more than 1,000 people are dead—and if there is great public anxiety and the threat or possibility of more incidents—is not a state of emergency, I cannot think what would be. I have always accepted that, in states of emergency, the Government might have to take action that departs from the normal standards of civil liberties and criminal justice procedure. We have specifically provided for that in the Civil Contingencies Act. It is also provided in the European convention on human rights that those are circumstances in which the state might have to take draconian action. I do not wish to see those things happen, but if they do, I for one would be prepared, if necessary, to support a Government measure to introduce such a provision.
Mr. Adrian Bailey (West Bromwich, West) (Lab/Co-op): Frankly, I am astounded by the hon. and learned Gentleman’s comments, because surely the whole purpose of the Bill is to give the Government and the legal system the capacity to pre-empt exactly the scenario that he has envisaged. Does he agree that one of the Government’s most important functions is to have the capacity and ability to prevent just the sort of disaster that he outlined? Would not the public reasonably expect the Government to take such precautions?
Mr. Grieve: If I understand the hon. Gentleman correctly, he wishes to have such a power not because a state of emergency has arisen, but to ensure that none arise. On that basis, if I may say so, the Government would be justified in taking complete powers under the Civil Contingencies Act to exercise whenever they happen to desire them. The hon. Gentleman must ask at what point we fetter the Executive and at what point we give them unlimited powers. If we wish to live in a free society, the idea that we shall succeed in doing so while giving the Executive unlimited powers to use whenever they just happen to fit their bill—that is usually argued on the basis that we should not worry about such matters because the Executive are a universally benevolent organisation—is a mistaken view to adopt, given the lessons of history, and all the more so because that is, in fact, entirely unnecessary.
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I come back to my point about the lack of necessity. The Prime Minister has been naughty in that he has kept repeating at the Dispatch Box that, when enacting the provisions under the schedule, he is meeting the points raised by the Opposition about emergencies. He is not. There is no requirement for a state of emergency to initiate the provisions. That is where we disagree fundamentally with the Government. A state of emergency can arise not only because bombs have gone off or we have key intelligence, but because multiple bombs are about to go off. That also justifies it.
The situation must be an emergency, and the Bill is not about emergencies. That is why we were so clear when we said to the Government that, if they considered that the Civil Contingencies Act was not a good vehicle for extending detention in an emergency, we were willing in a state of emergency to consider amendments being made to legislation to improve it. The Government have never come back on that. Their proposal has nothing to do with a state of emergency, but is an assessment of the need for such an extension in an individual case. For the reasons that I gave earlier, I do not consider that to be an acceptable way for Parliament to proceed.
I fully acknowledge that there might be a fundamental, philosophical difference between myself, as a Conservative, and the hon. Gentleman, as a member of the Labour party, although it is right to say that many members of his party share the visceral disquiet about what is involved in implementing the Government’s measures. However, unfortunately, none of them appears to be represented on the Committee for the purposes of the debate.
Mr. Bailey: The hon. and learned Gentleman’s point about a fundamental, philosophical difference is legitimate. I am sure that you, Mr. Bercow, would not allow me to point out other areas where the Conservative party seems to be in favour of an infringement on individual liberties, such as sus laws. The hon. and learned Gentleman outlined an emergency situation in which he would find it acceptable to use the 58 days scheduled under the Civil Contingencies Act, but does he agree that it would be completely inappropriate for our security services, having identified an imminent bomb threat, then to declare a state of emergency to alert those who would carry it out and give them the opportunity to avoid the security services?
Mr. Grieve: The hon. Gentleman bases his comments on an entirely false premise. To begin with, he must get round the point that has been made clearly by the Director of Public Prosecutions that such a thing is not likely to arise in the first place because of the existing powers by which the security services and the police can intervene, and because of their ability to arrest people and to charge them with the right offences. I shall return to investigating matters after charge.
Secondly, if the Government believe that the country is facing such an emergency that it needs state of emergency powers, they will have come to Parliament for those powers to be enforced. The hon. Gentleman said that such matters would alert people to the fact that the Government knew what was going on.
Patrick Mercer: Further to the points made by the hon. Member for West Bromwich, West, how does he believe that we proceeded in Northern Ireland, when we were frequently in receipt of intelligence that may or may not have been defendable, but for which a slightly different, but parallel, prevention of terrorism Act, was used for precisely that purpose? Plots had to be interdicted—of course they did, lives had to be saved. That would be no different this time.
Mr. Grieve: My hon. Friend brings his experience from Northern Ireland to bear on the matter, which is why I find the arguments made by the hon. Member for West Bromwich, West rather fantastical. In any event, my view is fairly clear: only in a state of emergency should one depart so radically from the principles of civil liberty and the freedom of the individual that are enshrined in our current law and that we are in danger of eroding far too far.
Martin Salter: Would the hon. and learned Gentleman agree that, far from the arguments that have been put forward being fantastical, the hon. Member for Newark is forgetting his own history? It was his signature that was on the recommendation last year from the Home Affairs Committee, when we rejected the use of a CCA, saying:
“However, we concluded that this was not an intended use of the powers under the CCA, that there were significant legal problems and that it would not be sensible for a national state of emergency to be triggered in the middle of a major investigation.”
Does he not agree that members of his own party have said that his arguments are not sensible and that we should be reminded of this point?
Mr. Grieve: I am sure that my hon. Friend the Member for Newark, whom I suspect will be speaking in this debate, will have every opportunity to explain his views to the hon. Gentleman. In any event, I return to the point that we acknowledged that the CCA was not necessarily the best vehicle for providing for an extension of detention in a state of emergency. The Government have never come back on that issue, although there have been numerous attempts by the Prime Minister to suggest that they have.
Ms Taylor: I am attempting to see where we can meet across the differences that we clearly have and I would like to persuade the hon. and learned Gentleman that, understanding the nature of the risks and the threats is something that we must all put our minds to. Over the weekend I was reading the briefing paper “Inside the Crevice”, which said that the problem we are attempting to cope with is that political criminals can be as intelligent—if not more so—as those who oppose them. If they win, they simply edit their crimes out of history; if they lose, they melt back into the population to await more favourable circumstances. The risks and threats are enormous, and to not see them as they are would be to seriously not represent our constituencies and our country. This power is for emergency purposes only; it is on the shelf to be used. Does the hon. and learned Gentleman acknowledge that?
Mr. Grieve: No, actually. I hope that the hon. Lady will forgive me for sounding rather critical of her, although I do not mean it in that way, but there is a degree of hysteria that creeps into these debates. We face a terrorist threat; I have absolutely no doubt that it is a serious terrorist threat, I am deeply pessimistic that we can prevent further terrorist outrages, I fear that the state of the world and the problems that we have in our own country, particularly around Islamic fundamentalism, will mean that we will suffer terrorism for probably quite a prolonged period and I think that people will die. Although there are lots of things that we must try to do to tackle this pernicious problem, that is the reality of the world in which we live. I do not in any way think other than that and it has always been my view.
I also say to the hon. Lady that these are the sorts of problems that this country has in different ways faced at other times in its history. Bearing in mind that, admittedly as a result of war, 60,000 civilians were killed in this country in the course of the second world war without the fabric of society or the state crumbling into dust, it is worth pointing out that human beings are resilient. We have to protect people to the best of our ability and win the argument. I do not like the word “war”. We are in a war. It is a values war that we have to win. We have to do that by persuading people that the benefits of western pluralist democracy—which is what we enjoy in this country as long as we stand up for it—are superior, and, as a result, gradually grind out, exclude and persuade those who have alternative views of their mistake.
It is very easy to become a suicide bomber. Looking at the literature, and looking at the information with which we have been confronted over the past few years, the thing that has struck me most forcefully is the sheer banality of the activity that leads people to making a terrible mess in their kitchens and emerging out of them with material that can kill 60 people on an underground train.
Catching people is, on its own, not a solution. One of the arguments we have over and over again about the criminal justice system in this country—I keep making this point—is that we are making a mistake if we think that we will reduce crime by prosecuting more people. Prosecution and convictions may be important, but ultimately crime is reduced when people stop committing it. Exactly the same thing applies to terrorism.
If we start forfeiting and throwing away the civil liberties that we cherish, I fear that, far from helping ourselves, we will make the problem worse. We will create martyrs and we will create examples, which will be difficult to counter, of young men being released after 39 days with serious mental health problems because they have been detained for that period in unacceptable conditions. A real sense of grievance will be implanted that the state behaves harshly and tyrannically towards people.
I come back to my starting point: there is simply no evidence for such a major departure from our current principles. If there was evidence, as a pragmatist, I would say to the Minister, “I may dislike this intensely, but I would be prepared to contemplate it.” However, we are being asked to carry out this extension and allow the Government to have this as a reserve measure because of a hypothetical set of circumstances that many people think is unlikely to arise. All the evidence shows that when reserve powers exist, they end up being used. For those reasons, too, we should be wary of it.
Coming back to the point where we disagree philosophically, as a Conservative, I derive great comfort from the fact that my forebears upheld the civil liberties we now enjoy, and which transformed this country, sometimes in periods of great conflict, into the free society we enjoy today. We are contemplating measures that my father and grandfather would have considered outrageous. We should bear that in mind, because that is not the sort of society in which I wish my children and grandchildren to be brought up or one that we should be prepared to make sacrifices in order to maintain.
Ms Taylor rose—
Mr. Grieve: I was about to sit down, but out of courtesy to the hon. Lady who seems so intent on intervening, I will take one more intervention.
Ms Taylor: We are not talking in hypothetical terms at all. We have had some of the most serious terrorist actions in Britain over the past few years. They have been shocking for all of us. However, the real point that I want to put to the hon. and learned Gentleman is that we have a prevent strategy, to which I thought that the whole House had signed up. It is a strategy that involves Muslims and any other groups in Great Britain that want to be involved. I thought that was profoundly about hearts and minds, and would say as a last throw that, although there is not enormous ethnicity difference in my constituency, 2.7 per cent. of my constituency are of Pakistani descent, and not one of those people has spoken to me in critical terms about the Bill. I ask the hon. Gentleman to see my statements as honourable and honest, across the House.
Mr. Grieve: I have no reason to think that the Government’s prevent strategy has been embarked on for other than the most laudable reasons. The hon. Lady may or may not know that I do quite a lot on diversity issues for my party, partly because at one time I considered it had done insufficient work on them; that was one reason why I committed myself to them, and another was that I have a growing ethnic minority community in my constituency, mainly of south Asian origin. Some are Muslims and others have different religious views and are from are from different places. Diversity seems to me a matter of great seriousness and importance, in which we should all be involved.
11.45 am
Some aspects of the prevent strategy are not likely to be very useful. If I have a criticism it is that one cannot compartmentalise the activities and ethos that the state seeks to create in a country in the way the hon. Member for Stockton, South seems, to some extent, to be suggesting. I do not think it works to say that we can erode the traditional civil liberties that have been regarded as key aspects of our national culture and character, but that that does not matter because at the same time we are running a prevent project, seeking to give money here and there, be nice and sort out people’s problems elsewhere. I do not think that works. If I were offered the choice between having a prevent strategy at all or maintaining our civil liberties, my answer would be that the best prevent strategy we could have would be the maintenance of our civil liberties. However, that is not to suggest that a prevent strategy may not be of great value as well. There are aspects of the prevent strategy that I wholeheartedly support.
The best prevent strategy is the way we behave—the leadership that individuals provide in society and, beyond that, the extent to which we free people to express their views to each other. This country is full of moderate people. One of the things that alarms me is that people of moderate viewpoints seem to be increasingly silenced by the regulation, bureaucracy and other things that we progressively foist on them. We should live in a better society, better able to cope with the strains and stresses to which it is subject, if we addressed that issue too. However, to return to the point at issue, the measure will damage community cohesion and our ability to win the battle with terrorism in the longer term. On the evidence available, the benefits that will flow from it are either minimal or non-existent. For those reasons the Government would be wise to withdraw the relevant part of the Bill, and to accept that there is no consensus in the House and, I suspect, no majority for their proposal.
Martin Salter: I have a short contribution to make to the debate. I have considerable time for the hon. and learned Member for Beaconsfield and I put it to him that one of the best prevent strategies, if we are using that term, would have been for the country and Parliament not to have endorsed the war in Iraq. That led to far more concern in minority, and particularly Muslim, communities than any system of amendment to pre-charge detention or specific counter-terrorism proposals. I think that we should get that in context.
My starting point in speaking to schedule 1 is that for those of us who served on the Select Committee on Home Affairs there is something of the Groundhog day experience about this debate. In our all too brief scrutiny sessions at the start of the Public Bill Committee, we heard from the same people who gave evidence to the Home Affairs Committee. As I said in an earlier intervention, I start from the premise that back in June 2006, all parties on the Select Committee accepted that there may well come a point when 28 days is not enough. Collectively, we are better than just praying in aid witness A versus witness B because that becomes a bit of a sterile argument. Hon. Members from all parties support our arguments.
I have only been in this place 11 years, which I suppose is a fair time now, but I have learnt that we are not as good as we could be in scrutinising legislation. That is why there is a strong case for an upper House and I totally reject those Labour Members who go down a unicameral road. I have also learnt that whenever we try to do anything in a hurry we cock it up big time. That might be in relation to much less important issues, but it is true—whether it is the poll tax, the Child Support Agency or dangerous dogs legislation. Goodness knows how many asylum Acts were introduced by the previous Conservative Administration and to some extent built upon by the current Administration.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Does the hon. Gentleman not realise that what he has just said about lack of scrutiny in this place, rushing measures through, and making what he calls cock ups, applies to bringing a reserved power to the Floor of the House?
Martin Salter: No, not in this case. One could argue about the programme motion, but last autumn the Home Affairs Committee had a very intensive inquiry, which followed an intensive inquiry back in the summer of 2006. That was followed by evidence sessions under the excellent chairmanship of Mr. Bercow and line-by-line deliberation. This is probably one piece of legislation that has been scrutinised well. I appeal to right hon. and hon. Members to ensure that we scrutinise it on the basis of the evidence and that we do not simply pray in aid people who come from different sides of the argument.
As I said in an intervention, the Home Affairs Committee rejected the use of the Civil Contingencies Act last autumn. At the time, we said that we had considered the proposal from Liberty that part 2 of the Act could be used in exceptional circumstances where the complexity of a suspected terrorist plot was likely to overwhelm the capacity of the police and security services. The Home Affairs Committee concluded that
“it would not be sensible for a national state of emergency to be triggered in the middle of a major investigation”.
That was alluded to earlier. I can think of nothing more damaging to a major, sensitive and delicate investigation by the security services and counter-terrorism branch than to declare a national state of emergency—and I know the hon. Member for Newark agrees with me on that. That would only give those who wish us harm advance notice and the ability to bring forward their evil plans. Hon. Members should pause to reflect on whether they want to put their names to such a ludicrous proposal.
Mr. Grieve: I am sorry that I did not pick up on this when I replied to the hon. Gentleman earlier, but I am troubled by his reasoning in relation to the grounds for having a state of emergency or arresting people in the first place. The purposes of arrest provided for in the Bill exist not because intelligence suggests that people are about to do something, but because having arrested them, the conclusion has been reached that there are a number of set criteria under paragraph 39 that require an extension to be granted. The argument that declaring a state of emergency after people have been arrested and there appears to be a big plot will in some way alert people to what is going on seems to be entirely specious.
Martin Salter: It is anything but specious. That argument would certainly have gained little support if not outright derision in the private sessions that the Home Affairs Committee had with the security services. Given the complex nature of the networks, lifting somebody alerts a lot of other people at the same time.
Mr. Llwyd: Will the hon. Gentleman give way?
Martin Salter: No. The other reason why the CCA is totally inappropriate is that it moves us to this rather crude 58 days, which I would have thought sits rather uncomfortably with those who find 42 days a problem. It also allows for the process to go straight to judicial review—this is why Liberty was happy to put its name to an unintended use of the CCA.
By doing this, we hand that decision, which should rightly and properly be the decision of the Home Secretary, scrutinised by Parliament, straight to the law courts and to the hands of the judiciary. There are things that the judiciary should be doing and there are things that Parliament should be doing, which is yet another reason why this is a clumsy use of legislation for which it was not intended. It is also the reason why the arguments are fundamentally flawed. Those criticisms were borne out by the decisions of Conservative Members on the Home Affairs Committee to reject that way forward.
Patrick Mercer: The hon. Gentleman calls 58 days crude. Why is it less crude than 42?
Martin Salter: I do not call 42 days crude, I am just pointing out that those Members who are uncomfortable with 42 appear to be adding their names to the use of legislation which could detain people without trial for 58 days. I am happy if the hon. Gentleman wishes to counter that point.
Patrick Mercer: Perhaps my ears are deceiving me, but I thought that the hon. Gentleman said that 58 days was crude.
Martin Salter: We can spend an awful lot of the Committee’s time arguing the definition of crude. I should have thought that those people uncomfortable with 42 days would have been even more uncomfortable with 58 days.
It is important to put the record straight. I have a huge amount of time for the hon. Member for Monmouth. We are at the absolute polar opposites of the political spectrum, but that makes our relationship all the more interesting and I am looking forward to visiting his constituency. But he did mislead the Committee on the evidence given by Ken Macdonald, the Director of Public Prosecutions, during our evidence session on the 22 April. In answer to a question from the hon. Gentleman at column 53, Ken Macdonald did not, as the hon. Gentleman sought to point out, say that he was uncomfortable. He refused to express a view. He said:
“It is not for us”—
meaning the DPP—
“to say whether we do or do not want legislation, and I am not prepared to express a view about that—that is not my job.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 53, Q136.]
I raise this only to put on the record what actually occurred on the afternoon of 22 April, not people’s misinterpretations of it.
David T.C. Davies: Let me be clear. I was not referring to the evidence that Ken Macdonald gave to this Committee on 22 April, I was referring to the original evidence that he gave to the Home Affairs Committee—at which I am sure the hon. Member was present—where he made his discomfort quite clear.
Martin Salter: Ken Macdonald, Director of Public Prosecutions, is on the record as saying:
“It is not for us to say whether we do or do not want legislation, and I am not prepared to express a view about that”.
I take Sir Ken Macdonald at his word.
It is also worth saying that in answer to Question 149 at column 57 about whether or not the Government proposals are human rights-compliant, Ken Macdonald said:
“My view is that this provision would be lawful if sufficiently controlled by the judiciary, which it would be.”
He then went on to say:
“I am quite satisfied that this provision would be lawful. As I have said, if it was in law, we would use it if we ever found it necessary to do so.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 57, Q149.]
That takes me back to where I started. The nub of this debate is how we legislate, and whether we legislate in the aftermath and in haste or whether we take advantage of the calm before—sadly—an inevitable storm.
It was interesting to hear Conservative Members’ criticisms of the Government’s economic policy as the credit crunch bites and the problems from America find their way across the Atlantic. Apparently the Government, whom I support, failed to fix the roof when the sun was shining. At the moment, the sun is shining to the extent that we are not, as far as I am aware, about to face a major terrorist outrage in the next few weeks. But who knows? While the sun is shining, however, why do we not fix the legislative roof in a sensible way, rather than waiting for the inevitable panic—the tabloid and media outcry—that will follow the next inevitable terrorist outrage?
12 noon
I come now to the previous extensions of pre-charge detention. Again, the Home Affairs Committee looked at the issue in some detail. In 1974, we saw an increase from 24 to 48 hours. The hon. Member for Newark helpfully drew some parallels from his experience in Northern Ireland—it was a different era, but there are lessons to be learned. The Terrorism Act 2000 extended the maximum period of detention to seven days, and we had a further change in 2003. That was under the rule of Lord Goldsmith, who—I am very keen to put this on the public record—was one of the more appalling witnesses to come before us. Hon. Members will forgive my irreverence, but I have a problem with Ministers who discover principles after they leave office. I remember him telling us, in answer to questions from myself, that there was a good case for going from seven to 14 days, given the technology that was increasingly becoming available to terrorist networks. The problem that he has with the current proposals is that he no longer thinks that that process is happening: he thinks that we have somehow reached a ceiling, that the terrorist networks are not learning, that there are no developments in the internet and in communications techniques, that international terrorism is set in aspic and that nothing is improving. He therefore thinks that we need to stay where we are. It was all right to change things while Lord Goldsmith was drawing a ministerial salary and he could make the arguments for a change, but now that he is not, the terms of the debate have somehow changed.
David T.C. Davies: I wonder whether I could give the hon. Gentleman the quote from Sir Ken Macdonald to the Home Affairs Committee. He said:
“I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period, so that is a practical problem which could face prosecutors.”
Does that sound like an endorsement of the Government’s proposals?
Martin Salter: The hon. Gentleman is getting hung up on this point. I am not seeking to pray in aid Sir Ken Macdonald on one side of the argument or the other—I am just saying that it is fundamentally flawed for the hon. Gentleman to do so. Given the five safeguards built into the Bill, a judge would not approve an extension beyond 28 days in such circumstances. The police will not automatically receive the right to detain people for 42 days; safeguards are built in at every stage of the process. Even with our current limit of 28 days, there have been times—the Minister will correct me if I am wrong—when the judiciary has refused a further extension on the same grounds. The hon. Gentleman should have no fears in that respect.
The proposal is temporary, time limited and subject to judicial and parliamentary oversight. It has a number of safeguards built in, one of which involves a measure of parliamentary oversight that, as hon. Members will be aware, I am not happy about. I hope that I have argued clearly that if we extend pre-charge detention—doing so is a pretty serious thing—we should carry the can as a Parliament and as parliamentarians; we should not sub-contract these matters to the judiciary, judicial processes or judicial reviews, as we would with the CCA.
My problem is with having a debate after 30 days. We can have very little impact on the process after 30 days. We cannot debate the circumstances of the individual under arrest, and it is quite right and proper that we do not, so what would have changed between seven days and 30 days? What would that debate be about? It would be a pretty heavy debate for us to have in Parliament, and no Home Secretary would survive losing the vote—certainly more than once. It would be about the security situation facing us and whether the Government and the Home Secretary were right to respond to a request for an extension of powers, possibly to 42 days, from a given chief constable and—hon. Members should take some comfort from this—the Director of Public Prosecutions. In fact, that is safeguard number six while Sir Ken Macdonald is in place.
We have had sensible, measured debates in Parliament in precisely those circumstances. We could not talk or mention the individuals who were arrested for the events in Glasgow and Haymarket, but in the aftermath of the Government’s statement a reading of Hansard shows that we had sensible debates on the way forward and good contributions from both sides of the House. Look at the debates on the extension of the Prevention of Terrorism Act, which I think ended in 1998 or 1999. I certainly remember two debates in this House in the time that I have been here. We were not discussing individual IRA or loyalist atrocities, we were discussing the security situation in Northern Ireland and if it was right and proper for the powers to be extended for a further year. It is in that context that we could have the debate if the Government’s proposals go through. If we are having that debate in that context—I appeal to the Minister to listen to this point, certainly if he wants my vote on the Floor of the House, which I suspect he might—we should bring forward real parliamentary oversight that means something, because there is no reason why we cannot have it at a much earlier stage.
Mr. Wallace: Following on from that point, given that the request from the chief constable and the DPP will most likely be based on intelligence and in line with the Bill asking for the process of changing that intelligence into evidence, it is highly unlikely that those individuals will put before this House even general intelligence of the situation so that we can have a proper debate about it. This is about intelligence, so how are we, in this House, to debate whether it is appropriate to use those powers at that time?
Martin Salter: I am rather sad about that intervention because the hon. Gentleman clearly has not absorbed anything that I said earlier in developing the argument. We have had debates on terrorist situations and threats to life and limb and to civil society in the context of extending the Northern Ireland legislation many times before, and we are capable of doing so again without falling foul of the sub judice rule, which is the prime criticism of the parliamentary oversight. I believe that we can do it.
I struggle with the concept that our particular system of jurisprudence and pre-charge detention is a trigger for al-Qaeda targeting Britain. I found the evidence from Lord Dear unconvincing in that regard. We have seen appalling loss of life as a result of al-Qaeda atrocities in Pakistan, Iraq, Afghanistan, Bali, Kenya, the USA, Spain and the UK. Those are jurisdictions with totally different legal and pre-charge detention systems. There is no golden, black or evil thread linking those jurisdictions, and to claim that there is is utter nonsense.
Patrick Mercer: That was not how I perceived Lord Dear’s views. The hon. Gentleman may be misrepresenting him. Surely Lord Dear’s point was that al-Qaeda, or whatever organisation it wishes to masquerade as on a particular day, is sufficiently flexible, thoughtful and determined to use, measure and tailor its methods to counteract any particular jurisdiction that it is trying to unsettle. I do not think that our enemies see a particular black thread linking us, but they do have an ability to take advantage of our weakness.
Martin Salter: I do not think that our points are necessarily contradictory. Lord Dear is not the only one to propose that somewhere in a cave in Waziristan somebody is poring over legal books and making comparisons between the French system of pre-trial detention, the Spanish system and the British system and deciding on a target. I would suggest that major events and iconic symbols of western civilisation are far more likely to be targeted irrespective of where they are based or the system of jurisprudence.
Mr. Grieve: I am sorry to interrupt the hon. Gentleman, but is the point not the one that I made earlier. I am not talking about people in Waziristan looking through legal books. The evidence seems to suggest that those who have been committing atrocities in this country are living in towns and other places rather close to him and me—in some cases, on the very edge of my constituency, where ordnance was buried in woods. Those individuals went through our state education system, as provided for by the Government, and are sufficiently alienated and wicked to want to kill people. Surely the point is that adding to senses of injustice and undermining our own values, which we must assert in our own society, is unlikely to be conducive to converting people from the error of their ways.
Martin Salter: The hon. and learned Gentleman and I share, if not a common boundary, a common region, and my constituency too has had experience of Metropolitan police counter-terrorism operations. However, he conveniently omitted a common thread from his intervention: although educated in the state system and, at some point, appearing quite anglicised—if I may use that word—many such individuals feel sufficiently alienated to spend time at terrorist training camps in Afghanistan and Waziristan. Furthermore, he did not mention the controlling minds and willing troops that target individuals—that is how terrorist networks operate. It is absurd to suggest that people decide to become suicide bombers having become alienated in a comprehensive school in Buckingham and that there is no link to global Islamic networks. I am sure that he is far too intelligent to make that argument.
The hon. and learned Gentleman brings me nicely to my final point about diversity and the impact on minority communities. I am pretty conscious of this stuff. I am in my 25th year of public life in Reading, which is a diverse community; it is probably as diverse as, if not more so than, any of the constituencies represented by members of this Committee—[Interruption.] Not Harrow, but most of them. I am acutely aware that what we do and say in this place impacts on people outside and how they see their place in the world through their end of the telescope. Most of my Muslim constituents—they are primarily of Kashmiri and Pakistani origin—are looking for security, to live their lives in peace and for the state to provide protection from those who would do them as much harm as they would the rest of us. Do not forget that Muslims were victims of 7/7 as well, and will almost certainly be victims in future terrorist atrocities. However, I do not detect a broad undercurrent of concern about us doing the right thing to protect this country and our homes from those who would do us harm.
12.15 pm
I read in an article by the hon. Member for Newark:
“The solution must lie in a combination of extra resources, canny adaptation of the Civil Contingencies Act and a real willingness to set this issue above party politics.”
The proposal before us is almost unrecognisable from the crude, blunt instrument that was the 90 days proposal. The quality of debate is much enhanced. The level of parliamentary scrutiny is intense, and I have respect for those Members across the political divide, both in this Committee and in the Home Affairs Committee, with whom I have worked. I have enjoyed working with them on the issue. I know from private conversations, which I will not reveal, the core instincts of many Conservative Members on the issue. The shadow Home Secretary boasts at private Tory party meetings that he personally defeated Tony Blair on the issue—Tony Blair’s only defeat in Parliament. If it were not a badge of honour for the shadow Home Secretary, and if we were prepared to grow up a little and reach across to each other, we could deliver consensus, but that would require the Opposition to come forward with proposals, rather than carping about the proposals that are on the table.
Mr. Grieve: The hon. Gentleman underestimates and misunderstands the principles on which my right hon. Friend the Member for Haltemprice and Howden (David Davis) has stood consistently on the matter. The other thing that I find odd is the hon. Gentleman’s reference to “consensus”. We had an intense and difficult debate on the move from 14 to 90 days, and it seemed to me that a consensus emerged—the 28-day consensus. Some of my colleagues and some of his wanted to stick at 14 days and some would have been happier to go back to seven. Some wanted 56 and some may have wanted 90. The truth is that, after extensive debate, the will of the House could not have made itself clearer. I find it peculiar that the Government now appear to be in difficulty in getting a majority in the House for their proposals. I suggest to the hon. Gentleman that that is because the Government have decided—for reasons that remain unclear to me—to break the consensus. As he talks about consensus, why not stick to what we have?
Martin Salter: I thank the hon. Gentleman for those comments. There is clearly no consensus about what constitutes a consensus. My consensus is clear—
Mr. Heath: It is when people agree with one another.
Martin Salter: It is exactly as the hon. Gentleman says from a sedentary position. Let us talk about a group of people who agreed with each other, including Liberal Democrat and Conservative Members. The consensus was there. We would not have known it from the press coverage of the recommendations of the Home Affairs Committee, but let us bear in mind that two Liberal Democrat members, the whole of the Conservative team, and all bar one—inevitably—of the Labour team on the Home Affairs Committee agreed the following:
“If, in these exceptional circumstances”—
having rejected the CCA—
“a temporary extension of the pre-charge detention period is deemed essential to secure successful prosecutions of terrorist suspects, the Government should consider building support for proposals that effectively reform the powers of the CCA, secure Parliamentary scrutiny and judicial oversight, but stop short of the requirement to declare a full-scale state of emergency. We urge the Government to begin urgent discussions with other parties on this basis.”
That is the consensus: accepting that there will be exceptional circumstances, and that we need temporary and reserve powers. That was agreed to by Liberal Democrat, Conservative and Labour Members. What has changed?
Tom Brake (Carshalton and Wallington) (LD): I thank the hon. and learned Member for Beaconsfield for setting out in a clear, methodical and erudite manner some of the basic principles that apply to our judicial system and some of its history. He went back to the 17th century, I think. I shall not go back that far, as we do not have the time. It is certainly worth considering the recent history of the time that I have spent in the House, including the Acts that we have passed and the way in which the number of days’ detention has increased from seven to 14 to 28. We then had the debate about whether the limit should move to 90 days, and we are now revisiting the matter with the prospect of a 42-day period.
The hon. and learned Gentleman said that we on the Opposition Benches are pragmatists. That is true; we are liberal pragmatists, and if the Government had deployed convincing arguments that there was a need for a 42-day limit, we would have had to consider them carefully and decide whether the proposal required our support. I am afraid that that is not the case.
The hon. Member for Reading, West, said that we should not be in the business of quoting people, although I note that he went on to quote Sir Ken Macdonald when it suited him, and to quote many reports to support his own arguments. I make no apologies for quoting people, because what the people who are central to the decision-making, legal and policing processes have to say is pertinent to the debate. They are the people who will have to deliver.
We would expect organisations such as Liberty to have a clear view on the extension, and my first quotation is that Liberty says that it would have expected the Government to give
“urgent and compelling reasons for revisiting the issue”
just two years after it was last debated, but that in its view there had been no such justification.
We know that the Home Affairs Committee has said that the police and the Government have not made a convincing case for extension beyond 28 days. The hon. Member for Reading, West, who is no longer in his place, quoted Sir Ken Macdonald a number of times, but he did not quote something that Sir Ken said in our evidence session. In answer to a question asked by the hon. and learned Member for Beaconsfield, he said that in his experience
“we have managed comfortably with 28 days, and have therefore not asked for an increase. It is possible to set up hypothetical situations in which you might have nothing after 28 days but suddenly get evidence after that time. I repeat: anything is possible”.
Anything is indeed possible, but he went on to say that
“the question is whether it is remotely likely.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 58, Q150.]
Reading between the lines, he was clearly saying that in his view, it was not remotely likely. The Director of Public Prosecutions is key to the decision-making process, and his view is that the extension is not required.
We also heard evidence from Lord Goldsmith, whose views the hon. Member for Reading, West rather dismissed, commenting adversely on the fact that now Lord Goldsmith is no longer a Minister, he seems to adopt a position different from the one that he held as a Minister. I wonder whether the hon. Gentleman held the same view of Lord Goldsmith when he was in the Government, or whether he has changed his view on the former Attorney-General. Lord Goldsmith was asked whether post-charge questioning, the use of intercepts and plea bargaining would change the need for a longer period of pre-charge detention. He said that he did not think that there was a need for a longer period even without some of those things. The evidence is that people who have a fundamental and significant role have made clear their position on the decision between 28 and 42 days.
We might look at history. In the middle of the IRA terror campaign, the limit was seven days. I shall not draw exact parallels between the two situations. We are clearly in a much more challenging technological situation as far as obtaining evidence and de-encrypting material are concerned. It is interesting that one of the witnesses who gave evidence to us was clear that the technology available to the secret service and the police force is also moving forward at pace and keeping up to speed with what is available to terrorists.
A number of hon. Members have pointed out that this proposal could be counter-productive. The Home Office’s own equality and impact assessment has highlighted that Muslim groups said that pre-charge detention might put at risk information coming from members of the community in future. The proposal could therefore have a detrimental effect on the availability of such information. The European Court of Human Rights has questioned whether the proposal would be in breach of human rights law and the Race Relations Act 1976
Mr. McNulty: It was the Joint Committee on Human Rights.
Tom Brake: I thank the Minister for that, and for his best wishes on my birthday. What better way to spend it than on this critical subject?
We have discussed whether there are better alternatives. I think that all Opposition members of the Committee agree that the alternatives and additions that have been put forward are not silver bullets. No one claims that intercept will be the silver bullet. No one claims that post-charge questioning with appropriate judicial oversight will provide a silver bullet. However, those provisions all add to the tools and techniques that are available to allay our concerns.
It has been said that there are safeguards in this process, in particular the role of Parliament. Very few of our witnesses thought that that would provide much help with scrutiny. Lord Goldsmith said very clearly:
“On parliamentary scrutiny, I confess to being rather troubled... I do not understand on what basis Parliament could decide whether it is right to extend the period.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 65-66, Q174.]
Again, that is the view of someone who is very knowledgeable on this subject and who believes that the safeguards are at best illusory.
Mr. McNulty: I notice that no amendments have been tabled on this point and that is entirely a matter for the hon. Gentleman. Were this system to prevail, would he sit in the camp of my hon. Friend the Member for Reading, West in bringing the vote and scrutiny of Parliament earlier to seven or 10 days, would he seek to eradicate parliamentary scrutiny altogether or would he do it in another way? Will he explore that issue for a moment for my enlightenment?
Tom Brake: I thank the Minister for his intervention. That is something that we would need to look at should the matter arise. I am sure that he will appreciate that we have not tabled any amendments because we did not want to give credibility to the Government’s proposal. Tabling amendments suggesting ways of improving on the matter would give support to a position that my party cannot support.
Mr. Heath : It is a shame that the hon. Member for Reading, West could not join us for the speech subsequent to his own. What he was proposing was bringing an unacceptable process forward. It would still be an unacceptable process. The only merit of bringing it forward would be that at least that process, however inadequate, would take place before the entire custody period, which we find so objectionable, had been completed. That is the problem with the Government proposal.
Tom Brake: I thank my hon. Friend for underlining that bringing the process forward would not address the fundamental flaw of the Government proposal.
Mr. John Heppell (Nottingham, East) (Lab): The hon. Gentleman states that he has not tabled any amendments because to do so would give the Government’s position credibility. Can we therefore assume that there will be no Liberal Democrat amendments on Report?
12.30 pm
Tom Brake: I am not in a position to give the hon. Gentleman that assurance. We will have to wait and see. On the question about amendments and 28 or 42 days, our position is that we do not seek to amend something that we think is unamendable. We do not want to see it take place.
We are willing to be pragmatic. Members will be aware that when the Minister gave evidence before us on 24 April, he was given the opportunity in responding to a question to put on the record any appropriate information about how the particular figure of 42 days was arrived at. If he had given the Committee a convincing body of evidence about the reasons for the change, it would have made it much more difficult for us to define our position. I have looked carefully at his response. He was asked to provide precise information about the criteria used to arrive at 42 days, and his response was:
“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.”
I am not sure whether it is, but if this debate revolves around some sort of bingo, it is because there has been a distinct lack of hard evidence from the Government to enable Opposition Members to come to any conclusion other than the one supported by many senior witnesses: that there is no compelling evidence for 42 days, and that we should remain at 28 days. That is certainly the position that we on the Opposition Benches will maintain.
Ms Taylor: I have no doubt that there is a commonality of purpose across the House. I am sure that every Member wants to establish measures that will enable the pursuit of terrorists and prevent acts of terrorism. I am disappointed that we seem unable to achieve consensus. The reserve powers asked for are to be used in an emergency and temporarily, should they be required. I was of the belief that that is an appropriate request to the House. That does not seem to be the case, according to Opposition Members.
I have attempted in the days since we took evidence to consider the arguments made by many in this room about why they believe that there are other, equally valuable opportunities to pursue a prevent strategy. I shall limit my words—not totally—to the Civil Contingencies Act 2004, particularly the threshold test. It was spoken about a great deal. I am not a lawyer; it has taken me a while to understand where people are coming from. Equally, I want to say a word or two about protecting and enhancing civil liberties.
I want to say to everybody that I am appalled by the statement that the Bill is about the Government looking tough on terrorism. That is an appalling idea. I hope that whenever we move into the realm of risk and threat to our people and our country, the last thing that we want to do is look tough. My hope is that we can establish the right judicial process and the right parliamentary scrutiny process, not that we can look tough. That is an obscene way of putting things.
Ms Taylor: I will always resist a bat and ball game. I have been here for 11 years and I know that to achieve serious legislation I will constantly and absolutely focus on the deliberation to achieve the best, and not play some political bat and ball game, which the greater majority of the British public would totally resist, putting all our comments in the bin.
We are attempting to understand the risk, the threat. We are attempting to put together a legal process and structure that will give the police, the judiciary and the agencies, the best controlled manner and the best powers to fit their needs, should that be required. I know that he was not, and probably still is not, the most popular person, but I say to everyone in the House that Rumsfeld had it in a word, a phrase, when he said that the absolute fact is—[ Interruption. ]—I am being careful. The fact is that we just do not know; there are “Unknown unknowns.” That is frightening for all of us. I do not say that to scare people, I say it to acknowledge that we have young men from good homes with a reasonable professional life and families whom they prize, acting as suicide bombers. Those are certainly unknown unknowns.
It is crucial for me to restate some of the information produced by the “Inside the Crevice” report. The statements made were clear and will be acknowledged across the House. When terrorists have a mission in life, whether because they are angry, feeling guilty or have serious dislocation, they will be willing to risk anything to realise their objectives. Understanding that statement is crucially important.
On that note, I want to move carefully to the Civil Contingencies Act and the threshold test. I have carefully read all the statements made on this test from across the House; the belief of some that it is valuable and necessary to achieve what we wish, and the views of others who believe that it is not satisfactory. I have come to the conclusion that it is not satisfactory on two bases. First, if we used the threshold test—again, I am sure that I shall be corrected and I am looking at the hon. and learned Member for Beaconsfield as I speak—and if we charged a person with whatever we have at that point in time, it would be hugely unsatisfactory. It is more satisfactory to charge that person with something that approaches the criminality of which it is reasonably suspected that they are guilty. On a prima facie case, we would present that charge, and that is more satisfactory because of the use of language. Again, I quote Lord Carlile who referred to
“something approaching the criminality of which it is reasonably suspected that they are guilty”——[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 122, Q323.]
Here we are, using the words that we can and attempting to understand where we are with intelligence gathering. It is a monstrously complex and staggeringly difficult area to get presentable, evidential evidence. We are struggling to deliver and develop this argument, so that we all see where we are coming from.
Mr. Grieve: I accept that evidence can be difficult to get, but the overwhelming evidence from terrorist investigations that have taken place suggests that often, evidence secured within the period prescribed by law—or afterwards, as it can always be collated after charge—has been sufficiently good to persuade people to plead guilty. If one looks at the DPP’s record and the rate of conviction in these cases, it is incredibly high. I wonder how that squares with the hon. Lady’s position.
Ms Taylor: It only squares because Lord Carlile makes it clear to me that if one produces holding charges one will inevitably miss the real substance of evidence that could be out there to be collected.
Mr. Grieve: The DPP made it absolutely clear that the Crown Prosecution Service does not use holding charges. It could not have been clearer. Although we are going on to debate post-charge questioning, which I support with proper safeguards, the evidence is that, as terrorists very often do not answer many questions, questioning itself is not the key issue. The fact is that the Crown Prosecution Service has been able in the time available, so that the DPP is satisfied with the present time limits, to obtain compelling evidence without holding charges, which enabled it to convict people of very serious offences.
Ms Taylor: I have read what the hon. and learned Gentleman is saying. My concern is that producing evidence, achieving evidence in a global or local, familiar or unfamiliar environment, and sometimes in languages for which we have few translators, is monstrously difficult. Acquiring evidence that can be produced, that is absolutely evidential, that is totally factual, is extremely difficult. Although the DPP stated that holding charges are not used, I do not think that they would not be used if push came to shove.
Patrick Mercer: The Minister used the phrase “monstrously difficult” to gather evidence. Will the hon. Lady cast her mind back to Operation Overt on evidence gathering of a year or so ago. This alleged plot was more complex, more sinister probably, than the 9/11 plot in America. If the evidence is so difficult to get, why did so few people require the whole 28-day period before they were charged?
Ms Taylor: I totally agree with the hon. Gentleman. The evidence gathering on Operation Overt was frankly scintillating. It was an amazing feat. It delivered in the most amazing manner. [ Interruption. ] All right. I will not go there.
This is just one example. I think there are many more. The unknown unknowns are an absolute for me. I am not prepared to move with the hon. Gentleman on the one that proves the case.
This is quite a difficult area on threshold tests. I see them as hugely unsatisfactory. I accept what Lord Carlile is saying.
I want to say something on human rights. The hon. and learned Member for Beaconsfield made a statement that in my previous questioning to him I was suggesting that human rights were secondary. Nothing of the sort. They are precious. They are inviolable. They are very much more protected when you have a careful, judicial process that examines and supports their maintenance.
The procedure in the Bill is cumbersome but appropriate—to have a senior judge. I would not have any problem, Mr. Bercow, with an inquisitorial senior judge looking at the evidence to say whether or not seven further days should be given. I would see that as appropriate so that on extended detention, should that be the case, we achieve what we all want to achieve, that is failed terrorist plots.
We are being asked to support powers on an emergency basis, on a case by case basis, when it is believed by the police and by a judge, who will make a judgment on the evidence produced, that we need to extend the time that is allowed for pre-questioning. It is an emergency. It is temporary. I hear the cynicism about parliamentary oversight. I, too, had a question mark over it. However, it is a question mark no more. The requirement to have something on the shelf when necessary, if necessary, is totally appropriate. I ask the House to consider the matter again. The measure is temporary and for emergency purposes only. The pre-charge investigations are appropriate and I hope that we will find a way to support the extension to 42 days.
12.45 pm
David T.C. Davies: May I say that I feel a very strong commitment to law and order and to taking any measures that are required to tackle terrorism and other forms of crime? Many hon. Members on this Committee have grappled with terrorism—and probably quite literally with terrorists—and they know far more than I about the importance of dealing with them in whatever manner is required. One of my own colleagues said that I had a law and order policy that consisted of, “Bang the bounders up and throw away the key.” It is a badge that I wear with some pride. I have gone on record as saying that the Conservative party does not go far enough in many aspects of its law and order policy. I want to see more prisons being built and more people in them serving longer sentences. While I feel that the Conservative party would do a much better job than Labour Members in that regard, it does not go far enough for me.
Martin Salter: Will the hon. Gentleman give way?
David T.C. Davies: I look forward to giving away to the hon. Gentleman in a minute, but let me finish this point. I have had many fruitful and uplifting conversations with him, but never have I said in private to him—and he will confirm this—that I support the Government’s recommendations on this particular point. I have always said, “More people in prison and longer sentences, yes, but let us see them convicted of a crime before we lock them up.”
Martin Salter: I thank the hon. Gentleman and I also apologise to the Committee for leaving. I have a member of staff who has been taken sick and I had to make a couple of phone calls. I have a difficult relationship with the hon. Member for Carshalton and Wallington, but in this case I meant no discourtesy to him.
In response to the hon. Member for Monmouth, I accept fully that he has never even indicated support for the Government’s proposals, but could he clarify a matter for me? I think that he is a proper Tory, but did he really call for every householder to be issued with taser guns? If he did, I would say that he is a proper Tory.
David T.C. Davies: I do not know, Mr. Bercow, whether you are going to allow me to go down this route, but I have been thinking about getting a Westminster Hall debate on that. I do not say that the hon. Gentleman is correct, but, as always, there is some substance in his comments. However, it is not true that I called for all homes to be issued with tasers. I will not be allowed to pursue the matter at the moment, so we will have to come back to it.
It is also not true, as far as I am aware, that any member of the Conservative party has called for the sus laws to be brought back. If they have, could they make themselves known to me because even I have not called for that. However, I have suggested changes, both formally and informally, to the current stop-and-search legislation that would enable the police to do their job more effectively.
The Chairman: Order. The hon. Gentleman applied an admirable self-denying ordinance in respect of the challenge made to him by the hon. Member for Reading, West . That now needs to be replicated in a similar self-denying ordinance as far as sus laws are concerned.
David T.C. Davies: I thank you, Mr. Bercow. Let me go back to the evidence taken by the Home Affairs Committee. I went into that Committee with a very open mind, prepared to listen to the evidence and, if necessary, to give some support to the Government’s position. As Labour Members know, not one single person who was giving evidence, with the exception of the Metropolitan Police Commissioner, was able to come up with a cogent and coherent argument for supporting an extension to 28 days. One of the most powerful pieces of evidence that we heard came from one of the survivors of the original tube bombs, Rachel North, who made it quite clear that in her opinion it would be totally wrong if we used that incident to take away people’s civil liberties in a way not seen in this country for many years. The hon. Member for Reading, West was quite enthusiastic about quoting Sir Ken Macdonald’s recent evidence to this Committee. He was rather more reticent to point out that Sir Ken Macdonald made it very clear in his evidence to the Home Affairs Committee that he did not support this legislation and could see no need for it. I have already read out one of Sir Ken Macdonald’s quotes and I see no need to do so again. However, I put it on record, and I put it to Government Members, that Sir Ken Macdonald did not support an extension beyond 28 days and that fact was made clear.
Martin Salter: Will the hon. Gentleman reflect on the timing of the evidence that we took from Rachel North? As all hon. Members would agree, it was a very powerful and evocative performance from her, but my recollection is that her argument was that there was no case to be made in the light of the 7/7 bombings for a blanket extension in pre-charge detention powers, which is precisely what the Home Affairs Committee resolved and precisely what the Government’s proposal is. Furthermore, does he not accept that Rachel North’s evidence was given before the Government’s proposals, the safeguards and the temporary judicial oversight were put on the table?
David T.C. Davies: I will certainly accept the latter point; that is factually correct. However, my strong impression of the evidence that Rachel North gave was that she was against any measures that would diminish the civil liberties of people in this country as a result of what took place on the tube. I see that the hon. Member for Reading, West is nodding his head in agreement.
It has been said many times that, if we go ahead with this proposal, we will have the longest period of detention in the civilised world. However, I thought that my hon. and learned Friend the Member for Beaconsfield made a very important point when he drew attention to the difference between a police cell and a prison. I had not even considered that point until he made it. Many of us—in fact all of us—will have visited prisons in our constituencies or elsewhere; I have certainly done so myself on a number of occasions, because of issues within one of the prisons in my constituency. I have been to several prisons and I must say that the conditions that I have seen in all of them have been very good. They are not somewhere that I would like to spend any time myself, of course, but they are certainly not the Dickensian hellholes that many members of the public who have not been inside such establishments seem to imagine.
However, I have also done several shifts working in custody in my role as a special constable, which I have mentioned; indeed, I have probably mentioned it too much in these situations. I must say that, although I come at this subject as what the hon. Member for Reading, West might call a traditional Tory, during those shifts I end up feeling rather sorry for people who spend too long in prison cells. People go in there and the only thing that they have access to is a copy of the Police and Criminal Evidence Act 1984, which is not a particularly riveting read, or a Bible, Koran or whichever book represents their religion. The reality is that people are going into a windowless environment where every single movement is monitored on a television screen and they have no access to books or any other reading material, television or anything else. In fact, even the conditions in other European countries are markedly better than that.
Mr. McNulty: I was going to intervene earlier on the hon. and learned Member for Beaconsfield, but it is very clear under law that no one will spend more than 14 days in police custody, unless they choose to. The automatic assumption is that after 14 days—as has been the case with those held for beyond 14 days—they are removed to what the hon. Gentleman quite rightly suggested is a more conducive environment in prison, rather than remaining in police cells. I do not want the illusion to exist that somehow, all the way through to 28 days, the time in detention is spent in police cells without some connivance on the individual’s part.
David T.C. Davies: I am grateful to the Minister for that clarification and I must say that I have a great amount of respect for him and for the passionate beliefs that he holds. However, I still put it to him that 14 days in a police cell followed by the conditions that I think apply in a category A prison, which is where I assume people would be taken after 14 days and where conditions are obviously much stronger than those in a category B, C or D prison, would still quite possibly lead to the sort of mental problems that my hon. and learned Friend the Member for Beaconsfield referred to earlier. I have not been inside a category A prison in my life and that is probably something that I will have to rectify.
Mr. McNulty: I am not seeking to diminish the impact—mental, psychological or otherwise—that a couple of days’ detention could have on an individual. It is not just a question of the longevity of the detention. However, the hon. Gentleman’s point about 14 days in police custody being excessive is well made. There might be a position that we can and should debate and discuss. I simply seek to make the point that it is not the case in absolute terms that 28 days is spent in police cells rather than in proper custody in a prison.
David T.C. Davies: I am happy to accept that.
Mr. Grieve: The Minister is right. As a result of a debate that we had during the passage of the 2005 Act, when I expressed great concern and said that 28 days in a police cell would be entirely unacceptable, a regime was put in place to allow for people to be moved into prison after 14 days. I do not know the details of the time that was spent in police cells or elsewhere in the case that I cited, but the fact is that serious mental health anxieties were registered. That might have had a lot to do with the nature of the uncertainty that surrounds a person in such conditions, and that would apply as much in prison as in a police cell.
David T.C. Davies: I am grateful to my hon. and learned Friend. We have aired the matter, and I am grateful for the clarification from the Minister. Suffice it to say that most of the people I have seen end up falling asleep and waking up with a headache when they emerge from police custody. I would be uncomfortable with anyone having to spend 14 days, let alone 28, in such conditions. I am grateful that they do not have to, but it is interesting that in other European countries such as the Netherlands, which I visited recently, there are much better conditions for people who are held in police custody. However, I suspect that you, Mr. Bercow, will not welcome my veering off down that road. To conclude, it might be worth the Home Affairs Committee taking further evidence on this point.
Ms Taylor: I am listening carefully to the hon. Gentleman, and there is absolutely no doubt that every Member is nodding and agreeing with the things that he is saying. However, I put it to him seriously—it is difficult to make this statement—that 800 people were seriously injured and 52 were dead after 7/7. How does that context compare with the one that he sets out?
David T.C. Davies: I do not want to be drawn too much further on this matter. It has traditionally been, and probably still is, a form of punishment to put people who misbehave in prisons into some form of solitary confinement. It has a marked effect on the individual, and to put somebody into solitary confinement for 28 days without any access to reading materials, television or anything else that could stimulate their mind could be said to amount to torture.
As the hon. Lady will recognise, I come at this as somebody who has not said much during my career about the hardships suffered by prisoners. By and large, I think that they do quite well out of life, but I am uncomfortable with the idea of 14 days, let alone 28, in conditions without any form of mental stimulation, not least because if, at some stage, it could be proven by a lawyer that what the person had gone through amounted to some form of torture, any confessions made or any statements given to the police could be invalidated. There are practical reasons for looking at the issue as well as moral considerations. In fairness, this is the first time that we have considered the point. It has not been raised in Select Committee evidence, and we might look at it further at a later date.
I am concerned that if this proposal goes ahead, despite all the safeguards that have been put in place—I welcome them, inasmuch as if we are to have this in the Bill, it would be better to have some safeguards rather than none at all—we might see in 12 months’ time some form of tidying-up exercise that might remove some of the safeguards, which many of us accept are, to some extent, impractical and might even be ruled illegal.
If we introduce this sort of legislation to deal with terrorism, how long will it be before it is extended to deal with organised crime? Arguably, organised crime affects many more lives than terrorism does. Let us consider people who are involved in child pornography. International rings make vast amounts of money.
It being One o’clock , The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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