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.
We can
start, I suppose, by going back to some basic principles, which, I
think, the Government have shown themselves willing to accept. We have
had a great deal of debate in this House in the past about the length
of time a person should be detained in custody by the
police before being charged. It is worth pointing
out—it is something which is sometimes slightly glossed
over—that, in our legal system, the common law system that we
have enjoyed for many centuries, the basic principle in the past was
that the purpose of arresting somebody was not to question them but to
bring them before the magistrate on the charge to which they were
subject. 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.
Any departure from that
principle is something that Parliament should be very
careful about. It is a fundamental breach of the principles of our
adversarial legal system
which, although far from perfect—no human system of justice can
ever be perfect—at least has the merit of ensuring that people
are not locked up for long periods. Indeed, although I am sure that it
can sometimes lead to miscarriages of justice, as can all human legal
systems, on the whole the view is that our system delivers a high
quality of justice that is, for example, superior to the French justice
system, with which I am familiar as I have a partially French
background. In that system, there are startling examples of individuals
being detained for long periods in inquisitorial procedures, only for
it to emerge after two years or even longer that the inquiring judge
has got completely the wrong end of the stick, has perhaps been
behaving a little capriciously, and that a person has been deprived of
their rights. 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?
11
am
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 wish to make the position
clear. The Minister has suggested that some who claimed to be against
the extension were accusing the police of using the 28 days as a matter
of pure convenience and of holding people
long after they had the evidence. That is not the case. I have no doubt
that the police sought to keep people detained because they thought
that extra evidence might become available. However, it is noteworthy
that we cannot make a claim that 27 or 28 days has ever been required
to obtain evidence on which to charge. 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.
11.15
am
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.
Secondly—this
point has been made, but it is worth making again—the entire
apparatus of parliamentary scrutiny provided for in schedule 1 is not
only pointless, but fundamentally wrong in principle. We are
parliamentarians. We are certainly here to legislate, to tell the
Government and to hold the Executive to
account, but saying that we should be brought into a process of, in
practice, reviewing individual cases is asking Parliament to do
something that, in my view, it is incapable of doing
properly—not because of the incapacity of individual Members,
but because of how we operate as a body. Also, we should not do it
anyway, as it is in flagrant conflict with that wonderful thing that we
sometimes talk about—I do not like the phrase “separation
of powers”; I prefer “the independence of the legal
process”—which it is our duty to uphold and
preserve. 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.
11.30
am
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.
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.
The
terms of this vigorous debate are so much more intelligent than the
Government’s approach, supported by the tabloid press, of trying
to face down those who are uncomfortable with 90 days. I am honest
enough to
admit and to put on the record that I regret voting for 90 days. It was
a pretty crude operation by Her Majesty’s Government to bulldoze
through a proposal rather than look weak on terrorism. I do not think
that it was good government or that it would have been the
right thing to do— [Interruption.] Instead of chuntering,
I wish that the hon. and learned Member for Beaconsfield would be a
little more gracious. I do not believe that it would have been the
right thing to do. However, I commend the Minister and the Home
Secretary on their genuine attempts to build a consensus. I am still
looking for the Opposition to come forward with
proposals. 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.
David
T.C. Davies:
I am delighted to hear those comments made by
the hon. Lady. Does she share my concern that the
comments were being made by
Government spokesmen, who gloatingly told newspapers that
Dave—presumably a reference to the leader of the Conservative
party—was not positioning himself correctly on the issue? It was
as though this was some sort of game in which people had to position
themselves, rather than being the matter of great importance that the
hon. Lady has described.
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.
It was
therefore disappointing that it was suggested subsequently, on Second
Reading, that there was some kind of consensus
between Sir Ken Macdonald’s comments
and the Government’s position. There is a consensus among all of
us that terrorism is a bad thing and that we must do all that we can to
defeat it, but to suggest that two sides of the argument were somehow
one and the same was completely unfair and untrue to the evidence that
Sir Ken Macdonald originally gave
us.
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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