 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeTuesday 6 May 2008(Afternoon)[John Bercow in the Chair]Counter-Terrorism Bill<++++>Schedule 1Amendments
relating to period of pre-charge
detention
Question
proposed [this day], That this schedule, as amended, be the First
schedule to the Bill.
4 pm
Question again
proposed.
David
T.C. Davies (Monmouth) (Con): I always think that there is
a slight disadvantage in coming back to Committee in these situations,
because having marshalled my arguments and worked myself up into a
lather towards the climax of the previous sitting, I suddenly find that
coming back from lunch, everyone is in a different frame of mind.
However, I shall briefly recap on the point that I was making when the
interruption occurred.
I felt that
if the legislation were enacted, it would not be long before further
legislation—perhaps what the Government have called
“tidying-up legislation”—removed some of the
safeguards that are being put in place. I welcome the safeguards, but I
would rather not have to have them, and do without the whole thing. I
fear that if we detain people for up to 42 days to question them on
terrorism offences without charging them, in all probability it will
not be long before we follow the argument to its logical conclusion and
allow people to be detained for up to 42 days for questioning about a
range of other offences. The offences meriting such a measure might
involve, as I mentioned earlier, child pornography rings, organised
crime, drug dealers and people traffickers. They are all examples of
serious criminals whose actions have affected, and continue to affect,
far more people than the terrorists who committed the horrendous
atrocities in London in the past few years. Logically, if we allow
terrorists to be detained in that fashion, there is no reason why we
should not allow such serious criminals to be detained in that fashion,
too.
Mr.
Adrian Bailey (West Bromwich, West) (Lab/Co-op): I have
listened to the hon. Gentleman’s argument, and I understand his
logic, but he has missed an important factor: first, terrorists, by
definition, are people who are going to destroy human lives; and
secondly, we have received considerable evidence from the police saying
that in effect, pre-emptive intervention is highly necessary. They mean
that they need to arrest people before they would normally arrest
people who carry out illegal activity in other areas. In other words,
the police are able to secure evidence more easily before they make the
arrest when they deal with other crimes. Does the hon. Gentleman not
accept that that is a valid
point?
David
T.C. Davies:
I certainly accept that terrorists destroy
people’s lives, but surely the hon. Gentleman will accept my
line of reasoning that people involved in child abuse, drug dealers and
people traffickers all destroy people’s lives, too. They are
destroying, and have destroyed, people’s lives, and they have
probably—in fact, almost certainly—destroyed more lives
than terrorists have over the past five years, so if pre-emptive
detention would work against terrorists, it would work against those
people, too. I should like those people taken off the streets, and it
would be hard to argue against using methods that, if the Government
are right, would be effective against terrorists, and could be used
against other people, too, such as other serious criminals who have
committed serious offences and destroyed more lives than terrorists
have over the past few years.
If Labour
Members are so concerned about terrorists, why did they enact the Human
Rights Act 1998, which has caused so many of the problems that they are
now, belatedly, trying to address? The Act enabled people, whom we knew
had already been involved in terrorism, to enter this country, claim
asylum and use the full panoply of legal aid and lawyers to argue that
they should be allowed to remain here. The Government got themselves
tied up in knots because they called for people to be thrown out of the
country but found that they could not do so. They then wanted people to
be detained indefinitely but found that they could not do that
either—all because of the Human Rights Act. It has become a
charter for foreign terrorists to enter this country and enjoy apparent
immunity from prosecution. I say to Labour Members that, rather than
introduce a draconian piece of legislation that will strip all British
subjects of the rights that they have enjoyed since the 17th century,
they should admit that the Human Rights Act was a mistake and that it
has given protection to people whom we know are involved in terrorism.
They should have the
decency—
The
Chairman:
Order. It is perfectly legitimate for the hon.
Gentleman to refer to the Human Rights Act, but he has no justification
for dilating upon the subject. It is legitimate for hon. Members to
consider the question of compatibility, but the hon. Gentleman gets
into difficulty when he strays into a general debate about the merits
or demerits of the Human Rights Act. I know that he will want to resist
any temptation to do
so.
David
T.C. Davies:
I certainly do, Mr. Bercow, and I
thank you for your advice—I think I have made my
point.
I am also
concerned about something said earlier by the hon. Member for Reading,
West. I cannot remember if he said that he voted against it or not, but
he felt that the Government tried to bulldoze through 90 days because
they were afraid of looking weak. There is concern in the minds of some
people that the Government are trying to position themselves in a
political fashion in relation to this issue. That seems to have been
backed up by the comments of some of their own spin doctors speaking
off the record to the press who, as I said earlier, referred to
Dave—presumably meaning the right hon. Member for Witney
(Mr. Cameron)—positioning himself badly on the issue.
That makes the issue seem like a game where we have to take up
positions, rather than a matter of national security.
My slight
cynicism is further added to by the timing of this. I cannot help
wondering whether it is entirely coincidental that the legislation
began and continues its passage while an important criminal trial is
taking place. Before anyone looks at me in shock and horror that the
Government might use the media in such a fashion, I remind hon. Members
that it was only a few years ago, prior to the Queen’s speech in
2004, that a leak to the Daily Mail apparently from the security
services mentioned a plot to hijack planes and fly them into Canary
Wharf. Since then, nothing further has been heard about it. We do not
know whether anyone was questioned about that leak or if it is in order
for the security services to speak to the Daily Mail off the
record in that fashion. Again, one was left with the feeling that the
media were being used to whip up scare stories to allow the Government
to propose draconian pieces of legislation. I fear that something like
that might be happening now.
Mr.
Russell Brown (Dumfries and Galloway) (Lab): The hon.
Gentleman says that this is an issue of national security. Where does
he believe that the great British public stand on
this?
David
T.C. Davies:
I suspect that the Government are trying to
use stories in the media, some of which I believe to be false and which
were never backed up—such as planes being hijacked and flown
into Canary Wharf—and some of which are real in terms of people
who have been convicted of terrorism charges. Because of ongoing court
cases I shall simply say that. I believe that those stories are being
deliberately used in an inappropriate fashion to give the Government an
excuse to introduce legislation that will not help to resolve the
problem, but will strip us all of our human
rights.
David
T.C. Davies:
They did. I have just said that the
Government have used hypothetical situations that did not happen and
situations that did happen, such as the one referred to by the hon.
Gentleman, to try to excuse legislation that will not solve the problem
and will reduce our rights as individuals. Surely, the hon. Gentleman
would agree with me that other pieces of legislation, to which I
referred earlier, could do the job more effectively, if
repealed.
Martin
Salter (Reading, West) (Lab): I spoke warmly of him being
a proper Tory in my earlier contribution. May I countenance some
caution on his behalf? One of the dangers for someone occupying the
lunatic fringes of any political party is that they believe any passing
conspiracy theory. Some websites question whether 9/11 really happened.
Does the hon. Gentleman agree that the media clamour in support of the
Government’s proposals is as a mouse compared to the roar that
we had when The Sun was whipping up a fury to support 90 days?
Should he not frame his comments in a context that is at least based in
reality?
David
T.C. Davies:
I am tempted to ask why the hon. Gentleman is
so familiar with how it feels to be on the lunatic fringes of a
political party.
Martin
Salter:
I have studied the lunatic right in this country
for nearly 30 years and have extensive files on the
subject.
David
T.C. Davies:
It is probably as well that the Data
Protection Act 1998 does not apply to MPs or I would be asking for my
own entry on his database. In all truthfulness, I am well aware of the
conspiracy theories. Like him, I get e-mails about them and I usually
reply by saying, “If the conspiracy is that good, there is
nothing that I can do about it anyway.” I find that quite
effective. I used the example about the planes being hijacked because I
have researched that fairly thoroughly. If the hon. Gentleman looks it
up, he will see that there is plenty about it and about how there is
not much basis to such theories. In all honesty, I suggest that he
looks at
that.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
The hon. Member for Newark
will like this. Let us nail once and for all this canard that the
timing is to do with whatever is going on in the courts. Very happily,
we have had significant terrorism court cases in the past six months,
including those arising from operations Crevice and Rhyme. Very, very
happily, Peter Clarke, the outgoing Deputy Assistant Commissioner, said
that on any given day of the week for the next 18 months, there will
also be significant terrorism trials going on. It is utterly ridiculous
and nonsense to suggest that the timing of the Bill is allied to the
overt trial of the alleged airline plot.
David
T.C. Davies:
I know the Minister to be an
honourable man, and I am certain that he believes that. It may well be
that he is right on this occasion. Nevertheless, when people are
rounded up on terrorist offences, the BBC and ITV are often tipped off
in advance so that they can film the raids taking
place.
David
T.C. Davies:
If the police are to conduct terrorist raids,
they should not be done in the full glare of media publicity, and I
believe that that has happened. On many occasions, people have been
rounded up and released afterwards and that has not received anything
like the same level of press attention as the original raids.
I think that
I have come to the end of my comments. I will finish as I started by
saying that I am committed to law and order. I am completely in favour
of enabling the courts to send people to prison for very long periods
of time, and I would like to see it happening more often than it
currently does. However, people need to be charged and found guilty of
an offence before they are locked up. Since other hon. Members have
mentioned the 17th century, the most significant act of near terrorism
in that period is the one that nearly took place here in 1605, which
was used as an excuse by some in Government, though not by King James,
to clamp down and oppress Roman Catholics. I think, and I hope, that we
have learned the lessons from that. We should not allow ourselves to be
scared, or to allow the Executive to take away fundamental liberties
because of perceived fears about terrorism that may or may not be
grounded in
reality. There is plenty that we can do to tackle terrorism without
stripping every member of the British public of a right that they have
enjoyed for
centuries.
4.15
pm
Kali
Mountford (Colne Valley) (Lab): We often talk about the
first duties of Government. In this case, that is a suitable debate
along with a debate on how we find the balance between defending
freedoms and defending life and limb. In the defence of freedom, one
can lose life and limb. When we defend life and limb, we worry about
the defence of freedom. I think about how we might debate that today
and about how we got involved in the issue in West Yorkshire, how the
police force got involved and how it became a very real part of our
lives, because some members of our community, who seemed to us to be
just ordinary people, became involved in the type of activity that we
are discussing.
When some
people were arrested, everybody said, “They seemed quite
ordinary folk.” Nobody thought that anything peculiar was
happening. It was quite a shock when we discovered that some members of
our community, who seemed to be teachers and ordinary people going
about their business, were actually plotting to blow people up. Where
was the line drawn for them? What was freedom for them or freedom for
us not to be blown up? Where do we draw the line between freedom to go
about our ordinary business and not be blown up and freedom not to be
imprisoned? That is a very difficult line to
draw.
My
hon. Friend the Member for Reading, West gave an extremely good speech.
I might say, “Well, it was such a good speech, why should I
bother speaking at all?” However, I do differ from him on one or
two counts and I will come on to those. My own community, where I live,
was intrinsically drawn into this. We were not necessarily the people
who were blown up, but members of our community got engaged in this
activity, and we had a lot of debate in the community about how it was
that people who lived with us got so engaged in
it.
Before
we knew that people were about to be arrested, we gathered together and
started to discuss how that had happened. We did not know at that point
that people were about to be arrested, and I had not talked to police
officers. However, we started to have discussions. The Muslim community
was very distressed, and of course we must remember that it is not only
members of one community who become victims; members of every community
are victims of atrocities. We must not imagine that Muslims were not
victims of atrocities or may not be victims of atrocities in future.
They became quite engaged in a debate about how it could be that people
wanted to blow one another up. Their view, and mine, too, at that
time—my view has not altered much—was very much about the
ethos of cults. It is one that perhaps is not right for this measure,
but Government ought to think about it. People have started to think
about why people blow one another up.
I do not
think that this issue should be dealt with through the judicial
process. Members have got drawn into the issue and have started to try
to use the criminal process and the judicial process, and have muddled
that up with an issue that ought to be about the civil process
and what happens in our community. I think that it would be a mistake to
muddle those two things up, because in the communities people are
already talking about how they can engage with one another and what
they can do to develop their communities, dealing with their education
processes and social structures. I do not think that they would want to
deal with the judicial process in this way, as if that somehow would
help them to develop social constructs that would engage them and help
them not to be the sort of people who want to blow others up. The
conflation of those arguments, which I have heard today, is not
helpful.
The
idea that this measure would somehow help people in future to see it as
an entry point for terrorism is simply wrong. I do not think that it
has any part in that process. We have to remember that atrocities
existed for a long time before this, and that is where I differ from my
hon. Friend. They existed before Iraq and before lots of wars before
that, too. Atrocities will continue while people have arguments with us
about lots of things and they will find arguments to have about lots of
other things in future, whatever we do about this
schedule.
David
T.C. Davies:
I accept that this schedule is not going to
drive al-Qaeda, but does the hon. Lady not accept that it could be used
as a propaganda tool by the people who recruit for al-Qaeda, which
wants a caliphate across the whole western world, just as the IRA
wanted a united Ireland. Both groups have been happy to use examples of
things that they thought were wrong, to whip up hatred among supporters
and turn them into terrorists, and that is what this could
do.
Kali
Mountford:
Of course, if we do absolutely nothing that,
too, could look like a kind of weakness. A weak Government who do
nothing in the face of atrocity, and all kinds of things, can be used
as propaganda tools. Absolutely anything could be construed or
misconstrued in any way. Such a mind, which we cannot understand
because we are not inside it, could twist anything into any form that
it chose. It is not our job to put ourselves in the mind of somebody
who cannot see things in the way that we see them. Our job is to try to
do our best to protect our citizens in the way that we see best, to try
to find the balance that we are tasked with, using the evidence before
us.
Patrick
Mercer (Newark) (Con): Surely, it is exactly our job to
put ourselves in the minds of the enemy? I think that it is called
counter-terrorism.
Kali
Mountford:
I see that as the job of the agents we employ.
My job as a legislator is to use the evidence given to me to decide how
best to protect people. As far as counter-terrorism goes, that is not
my job because I am not that specialist; I am a legislator and I am
legislating as best I can with the evidence before me.
Counter-intelligence is for those agents; I am not an agent in the
field—I am not doing that job. I am trying to do the job set
before me, which is to try to decide, with all the evidence that I have
been given, whether in the case of an atrocity the legislation would be
useful to those people whom we have tasked to do the counter-terrorism
job for us. I suggest that it would.
We have been
debating whether in the event of an atrocity or if we think an atrocity
might happen, whether in 28 days we have still not got all the evidence
but we think that given a little longer we might, we should ask for a
little more time. In those circumstances, would we regret not asking
for more time? It is a precaution that we might need to take, and I
would be prepared in a year’s time, having not used the extra
time, to eat humble pie and say, “I am glad we never used it, I
am glad that that circumstance never arose”, either because no
such atrocity took place or because every single case that came before
was us was settled in 14 days. I would be happy to say, “Great,
everything went smoothly”, but I am also happy, having heard the
evidence, that this measure is just one of the many things in our
toolkit that we should have.
Patrick
Mercer:
I am grateful to the hon. Lady, for whom I have a
huge amount of respect, as I hope she knows. Surely, our job as
legislators is to be able to see beyond the narrow confines of those
problems that are presented to us through evidence, the media or
whatever, to base our understanding upon experience? When she reaches
my mature age, she will be able to look back down those years and say,
“We have made mistakes in the past. We have done things well in
the past. Base it on evidence”. Surely our job—I agree
that we are not security agents—is to use our judgment, balance
our experience and perhaps even use our native wit, to make sure that
the legislation that she and I endeavour to pass or oppose is good
legislation, and not
flawed.
Kali
Mountford:
That is sound knowledge, and I will accept the
hon. Gentleman’s flattery whenever I can. That, of course, is
why the legislation is time limited. It will not run not ad infinitum;
it includes lots of checks and balances. It is good that it will not go
on for ever. We have introduced legislation, because we think it
necessary at the moment, but it is not here for all time. It is here
while we think that we need it. The House need not fear that it is
going to go on for ever, or that we might have the legislation on the
books ad infinitum. The House need not accept it for ever. However, for
the time being, while we fear that there may be a threat, it is here
for us to use. That is all that it is. It is just one of a panoply of
measures that are
available.
I
would be the first to wave a flag and say, “Isn’t it
great if, in a year’s time, we can look back and the hon.
Gentleman and all the hon. Members here can say to me, ‘Do you
know you were wrong? We didn’t need to use it
once’.” I would be satisfied with that. However, should
one occasion arise on which we needed the legislation and it was not
there, I would prefer not to have to come to Parliament in the heat of
the moment. That would be the worst possible time. When we took
evidence, we discussed what it would be like when we had reached the
27th day.
Mr.
Dominic Grieve (Beaconsfield) (Con): I am listening to the
hon. Lady with care, and I appreciate the sincerity of her remarks. The
application of the precautionary principle to which she adheres could
be used to justify giving and extending latitude and powers in the law
to an infinite degree. We are not here to say, “I hope that in a
year’s time I can turn round and say that none of this was
needed”. We are here to protect people’s liberties,
and we do not do so simply by surrendering to the notion that we should
provide extensive powers because they might be required, particularly
when the overwhelming weight of the evidence, from those who have to
use the powers to prosecute and bring people to justice, is that these
laws are not
needed.
Kali
Mountford:
Forgive me for hoping that they are not needed,
in spite of hearing the evidence. This morning, the hon. and learned
Gentleman made some arguments that I, too, was disappointed that we had
not heard evidence about the kind of atrocities that people believed
were being plotted against us. We know that there are plots against us,
but I hope that none of those plots comes to fruition. I hope that they
are all foiled, and that the agents we employ on our behalf are always
successful. The agents plotting against us have to be successful only
once; we have to be successful all the time in foiling the plots. I
hope that our police forces and our security services are always
successful but, as good as they are, they may sometimes
fail.
Mr.
Grieve:
I cannot fail to come back to the argument that
the hon. Lady is making, which has also been made by some of her hon.
Friends, too. The argument seems to be that the necessity of extending
pre-charge detention beyond 28 days is in some ways a preventive
measure. The impression that I get from the way in which she has argued
that case is that that will enable plots to be foiled. She should
listen to what the Director of Public Prosecutions said. Any period of
detention, whether 28 days or 42 days—leaving aside the notion
of taking detention without trial on a Northern Ireland model—is
not preventive; it is about investigating the offence that has been
brought against that individual. There is a danger of weaving those two
concepts together, and that is why the DPP was so emphatic that he did
not need the power. There was nothing, in his view, that would not have
emerged by day 27, if not a long time before, that might emerge by day
42, which would require the detention of the
individual.
4.30
pm
Kali
Mountford:
I, too, heard all of the DPP’s evidence,
including that he would use such measures if they were available to
him, but I have also heard evidence from ACPO, and my local police
force. I was given examples of circumstances in which an investigation
might go on longer. I admit that they were hypothetical because such
circumstances did not arise in that particular investigation, but they
included a plot that was international, with evidence strewn all over
the world. Travel is so easy these days that not only might the persons
being investigated come from many different countries, but plots could
be taking place throughout the world. The evidence might be encrypted,
but that is not the only problem. People might be associating with each
other throughout the world or being trained all over the place. It is
difficult to gather the sheer quantity of evidence from many places.
The police could envisage circumstances in which it was difficult to
gather the evidence in such a
time.
When
I first discussed the matter with the police, they suggested that a
reasonable time was 60 days, but now they would be satisfied with 42
days. Opposition Members do not accept 42 or 60 days, but I would be
satisfied with 42 days on the basis that it is better than 28 days. If
one of the plots described to me by the police was happening, we might
regret not having given them the scope to investigate it. We were given
evidence that such plots were being investigated and had so far been
foiled, but we should err on the side of caution. I hope that we do not
ever regret matters and have to return to the House saying that we
failed.
David
T.C. Davies:
In reality, would there not have to be
reasonable evidence before someone could be arrested in the first
place, and could not the evidence be worked through in 28 days? People
will not be taken off the streets at random. There would have to be
good reasons for doing so. We are arguing whether 28 days is enough
time to look at the evidence, and surely it must
be.
Kali
Mountford:
There has to be reasonable suspicion, but
suspicion is different from evidence. Having sufficient
evidence—[
Interruption.
] The hon. Gentleman
is arguing from a sedentary position and I cannot hear what he is
saying. We should err on the side of caution when it comes to
protecting the lives of our constituents. The difference between that
and the hon. Gentleman’s argument about the thin end of the
wedge is that we are discussing the protection of large numbers of
lives, which places us under an onerous duty to be careful. Sufficient
safeguards are in place. We must exercise caution not only in the way
set out in the Bill, but by setting out time limits in the clause so
that we can exercise caution with our constituents’
lives.
Mr.
Adam Holloway (Gravesham) (Con): I do not come to the
matter from the point of view of civil liberties. I agree with the hon.
Member for Colne Valley that the first duty of the Government is to
protect their people. I would happily support 42 days if, first, I was
not terrified of the Whips, secondly, I thought that it was useful and
necessary and, finally, I did not think that it would undermine our
proposition. Hon. Members on both sides of the House recognise that it
is a whole new problem when people are prepared to commit
world-changing acts that would result in gigantic numbers of
casualties, and when terrorists would do such things if they could
match their capability with their
motivation.
In
2003, I was a television reporter. I shall never forget being up on the
Iranian border at the beginning of the war, and seeing people going
through the pockets in the clothes on the bodies of Ansar al-Islam
jihadists. The travel documents from several of those people showed
that they were from all over the middle east, the Maghreb countries and
so on, and they had visa and entry and exit stamps from European Union
countries as well as the United States. I do not know whether the
staggering stories that DNA samples taken off Afghan shepherds matched
the stuff found in semis in the north of England are true, but the
threat is obviously real. However, my fear is that the legislation is
political posturing by the Government—it is not unheard
of.
Mainly,
witnesses to the Committee owed their jobs to the Government or had
their credibility undermined by people on the other side. The
Government could hardly have afforded not to have the
Attorney-General—the guy who would have to steer
prosecutions—but he for some reason does not think that the
measure is necessary.
Many Labour Back Benchers—by no means all—do not seem to
agree with him. The Committee will not hear from others who would have
different things to say on the matter.
I shall not
forget that, after the vote for 90 days, a senior police officer who
had been with the commissioner that afternoon, came here for a drink on
the Terrace. He had previously been giving me the line that 90 days was
critical and so on, but when I asked him what he thought, he said,
“It doesn’t really matter, it’s just
politics”. I shall also not forget a rather mercurial
answerphone message when I called up someone vaguely of my acquaintance
from a long time ago who is now senior in the Security Service. I asked
him for advice and what he thought about the issue, and he said,
“It would be wrong for me to express a view, but one must
balance civil liberties and the remote chance that it might be useful,
and whether or not it is actually needed”. That was a surprising
response—it was hardly a ringing
endorsement.
Mr.
McNulty:
Just before the hon. Gentleman goes on to tell us
about other mates he has rung up whose name and position he is unable
to tell us, let me go back. It is not fair, in any way, shape or form,
to impugn the professional judgment of our witnesses, whether
Commissioner Blair, Commander Bob Quick or, indeed, the DPP. Let us set
the line straight and say that. Everyone who came to us—I even
include Lord Dear—was sincere in their view and was appropriate
to their profession. None owed their jobs to the Government, and none
were there to make the position clear on behalf of the Government. What
the hon. Gentleman said was not fair to any of our
witnesses.
Mr.
Holloway:
We can both give way on that point, and I shall
continue to cite other voices. The people will remain unnamed, but
probably for good reasons, I find
myself—
Mr.
Holloway:
I am hardly going to give them, am I? I found
myself recently with what I think are called agent handlers. I asked
them what they thought about the 90 days. One said, “I
don’t really know, just don’t make it harder for
us”. When I add that to the fact that the police have never come
up against the need for more than 28 days, I see 42 days as posturing
and as a political red herring, especially in the context of the Civil
Contingencies Act 2004. Rather than wasting our time and capital on the
issue, we ought to take a long, hard look at the drivers of
radicalisation—multiculturalism, poverty alleviation and our
foreign policy—and try to regain some of the international good
will that we have lost. We should also introduce hard measures to
isolate and eradicate those who threaten us, rather than simply trying
to look tough.
Mr.
John Heppell (Nottingham, East) (Lab): I did not mean to
speak to the schedule, but I was prompted by the hon. and learned
Member for Beaconsfield and my hon. Friend the Member for Stockport. I
agree with my hon. Friend on one thing. Someone asked whether
this was really about making the Government look tough on terrorism. I
must say that I have no great objection to the Government looking tough
on terrorism, but what I certainly want is for them to be tough on
terrorism.
I disagreed
with my hon. Friend the Member for Stockport when she said that she was
sure that everyone in the room wanted consensus. I do not believe that
that is true any more. I have listened to this debate since before
Second Reading, and I think that people have pretty much come with
their minds made up, for a number of reasons. There is a consensus, but
it is not a consensus between the Government and the Opposition. It is
a consensus among the Liberals, the Tories, Liberty and a number of
groups.
The hon. and
learned Member for Beaconsfield has two things in his favour. He has
long campaigned for civil liberties and has brought up issues such as
intercept evidence in other Committees. He has a history of that, but
my hon. Friend the Member for Reading, West hit the nail on the head
when he said that the hon. and learned Gentleman wore the issue of the
number of days as a badge of honour. It is the issue on which he
managed to turn over the Government, and there is no way he will give
way on his past victory—his baby. I am fairly certain that that
is one of his reasons. The other thing in his favour is that he is a
lawyer. That excuses people from all sorts of strange things when it
comes to human rights and the law.
I believe
that many Opposition Members are having a hard time
justifying—
David
T.C. Davies:
I have given my own side a hard time for
being too soft on crime. The Conservative party says that it wants to
lock up more people for longer, but that is not enough for me. I want
even more people locked up for even longer, but I passionately believe
that on this issue, we are absolutely right. I do not know to whom the
hon. Gentleman is directing his
comments.
Mr.
Heppell:
My mother always used to tell me to judge people
by what they do, not what they say. If you had trooped through the
Lobby with the Government on the 42 days, I would believe you when you
say that you want to be tough on these
things.
The
Chairman:
Order. I remind the hon. Gentleman that the
Chair takes no part in these proceedings other than to uphold good
order and fair
play.
Mr.
Heppell:
My apologies, Mr. Bercow. I am pretty
much out of practice; I have not been in these circumstances for quite
a long time.
The Liberals
have a reasonable excuse as well. They vote against
everything—everything that has anything to do with security, law
and order. In every Committee that I was on, they voted against
everything to do with ASBOs. They voted against community support
officers. They have a great record. Then they go back to their
constituencies and swear that they did not.
Patrick
Mercer:
One of the most encouraging words that has been
used in this Committee is “consensus”. I wish that the
hon. Gentleman would give us less of the party politics and more
consensus.
Mr.
Heppell:
I am trying to demonstrate that the real
consensus is built around just that—party politics. That is the
reason why 90 days and 42 days are so set in people’s minds. It
is an issue on which people feel that they have got the Government in a
corner from which they cannot back out—
[
Interruption.
] May I just finish my point? Then I
will let others come in. What is happening is that people smell blood.
They sense that the Government are in a difficult situation. Mark my
words, there is no chance of consensus on any number of days, for that
reason. The very reason why there are no amendments today is that the
Opposition are saving up their amendments and their ammunition for
Report, when they feel that they will have the most devastating
impact.
Mr.
Crispin Blunt (Reigate) (Con): The hon. Gentleman says
that he is out of practice. That is because he was a distinguished
Government Whip. He talks about consensus, but he will be aware from
The
Sunday Times and from his time as a Whip that 50 of
his colleagues voted against 90 days, and another 40 of his colleagues
have been identified as causes of concern in terms of whether they will
support the Government’s 42 days. He ought carefully to
re-examine where the balance or consensus lies, because I cannot
believe that 90 of his colleagues are seeking to do his own party
damage.
4.45
pm
Mr.
Heppell:
I do not suppose that they are, but given my
experience as a Whip, I recognise where many of the arguments come
from. When people used to tell me how terrible it was that 30, 40 or 50
Members were voting against the Government, I used to point out that
that meant that 300, or whatever the exact figure was, were voting for
the Government—still a majority of Labour
MPs.
The
Chairman:
Order. Before the hon. and learned Gentleman
intervenes, I say to hon. Members that the debate should be about the
merits of the Bill and its various clauses and amendments. Occasional
reference to motives is to be expected, but the debate should not be
about the motives of this or that individual, or the mechanics whereby
a majority is cobbled together. I had reason to make that point to the
hon. Member for Reigate on a previous occasion. I hope that it will not
be necessary to repeat the point
continually.
The hon.
Gentleman says that the motive of Conservative Members is to gain
party-political advantage. I am prepared to acknowledge the sincerity
of hon. Members proposing the 42 days, but never in a month of Sundays
did I imagine, after the Government’s defeat on 90 days, that
they would reopen the debate on an extension to 42 days.
Last summer, when they did just that, my first instinct was to tell
privately as many Government Ministers as I could that I thought that
they were making a mistake. The last thing that I, and most of my
colleagues,
I suspect, wanted was this issue to be reopened. It has remained a
subject of complete mystification to me why the Government are
proceeding in this fashion, particularly given that there does not seem
to be a huge party-political advantage in this place in doing so. For
that reason alone, I urge the hon. Gentleman to tell his Ministers to
think
again.
The
Chairman:
Order. Before the hon. Gentleman resumes his
speech, I want to make one other quick point. I understand the strength
of feeling on this subject, but interventions are becoming increasingly
prolix. Frankly, that needs to stop. Interventions must be much
shorter.
Mr.
Heppell:
Thank you, Mr. Bercow. I suspect that
I would have spent less time on party politics, but I have had to
answer the questions put to me.
I shall
address some of the core points about the Bill. Certainly in the Select
Committee, I am fairly certain that there was consensus. Somebody said
that there would be exceptional circumstances, and that in those
circumstances we would have to do something—I think that that
was the statement. I think that the hon. and learned Gentleman himself
acknowledged that in such exceptional circumstances, he would be
willing to consider legislation. Therefore, I think that there was an
acceptance that in exceptional circumstances there might be reason to
do something. I notice that he finishes all his remarks by saying,
“We have no evidence at present.” Having been a Whip and
very cynical, I suspect that he is keeping his get-out, if it is
decided in the end that it may be necessary to do
something.
Mr.
Grieve:
I am a pragmatic man, and I also try to think. If
somebody comes up with clear evidence compelling me to change my view
on something, I am perfectly prepared to change it. However, the fact
is that there has never been any evidence to justify going beyond
28 days. There is no evidence now to support moving to 42
days, just as there was no evidence two years ago for moving to 90
days.
Mr.
Heppell:
I notice that that time the hon. and learned
Gentleman did not say “at present”, but I think that he
said, “today” or a similar sort of
thing.
I
am simply saying that the Government considered what was said in the
Select Committee about the Civil Contingencies Act 2004. People said,
“That is a mechanism that can actually be used to do
this”, but the examination by the Select Committee showed the
faults and problems with doing that. Therefore, it was necessary to
return with something else. What we have at the moment is a genuine
attempt by the Government to offer something to Parliament that is
along those lines. It gives Parliament the chance to veto anything that
happens.
It
seems to me that there is a big difference between what is happening
now and the arguments that were put for 90 days, 28 days and 14 days.
The difference is in the safeguards that have been built in. I have
just looked at the notes and found the diagram that explains how the
system will be put into action. That system was not there before.
First, the Director of Public Prosecutions
and a senior chief constable or commissioner of the Metropolitan police
must decide that they want to do something. The Director of Public
Prosecutions is quoted extensively as somebody who does not think that
this is necessary. Is it not reassuring that he is one of the people
who has to want to do it in the first
place?
The
likelihood of the power being used cannot be equated with internment in
Northern Ireland, where prisons were built to put people away. I think
that it will be used sparingly and in exceptional operational
circumstances. That is how it is designed. It is supposed to be enacted
under compelling operational circumstances. We are talking about
something completely different. Mark my words: although I say that the
Director of Public Prosecutions may not want to bring in the power,
somebody else who will not want to is the Home Secretary. I can accept
the argument that the Metropolitan police commissioner or a senior
police officer might think that this is a great idea that gives them a
bit of extra leeway, some extra strength or an additional tool.
However, the Home Secretary will be faced with having to report to
Parliament and not only that, but having to come back seven days later
and have a vote in
Parliament.
We
can see how controversial this legislation is. We can see how difficult
it is for people to agree on it. We can see how difficult it is for the
Home Secretary to put across the argument. Do we think that she will
want to do that over and over and over again? If it happens once, I bet
that it will be a while before it happens a second time. Perhaps people
have no faith in Parliament, but I cannot see that this is something
that will be nodded through. It will engender a great debate in
Parliament. Any Home Secretary who puts this into practice will say to
themselves that there have to be exceptional
circumstances.
I
accept what has been said about whether the power should be under the
Civil Contingencies Act 2004. The fact that the power has been used
will not be kept secret because an emergency has not been declared.
However, would it not be a propaganda coup for al-Qaeda or whoever the
terrorists are if we keep declaring states of emergency in this
country? The very thing that terrorists work on is the idea that they
disrupt our normal life and stop us going about our business in a
normal way. When people stop using the tube, it is a victory for the
terrorists. When Londoners went about their business as they had always
done and when things returned to normal in Barcelona, the terrorists
were losing. What a coup it would be for them if we kept declaring
emergencies every time we wanted to examine some extra
evidence.
I
rose partly because of my hon. Friend the Member for Stockton, South.
However, the hon. and learned Member for Beaconsfield made my blood
boil a little when he talked about not doing this because it would
create martyrs. He described men who are evil, are already persuaded
that they should be killing people and are already killing people. He
said, “Let’s not give them a reason to build on that.
Let’s not give them the propaganda.” I have to say that I
cannot believe that a Conservative Front-Bench spokesman is taking that
view. In the same way, I find it difficult to hear the hon. Member for
Monmouth taking that view. Also, the hon. Member for Gravesham went
through a great list of things we should do. Then his last line was
something like, “Well, we will do some tough things as
well.” The things we do, we should be doing because they are
right.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): Will the
hon. Gentleman just wrestle with this? When an individual is arrested
under those powers and detained for up to 42 days, but is then not
charged and cannot be deemed to be guilty of any offence, there is
going to be immense anger in the host
community.
Mr.
Heppell:
That might be the situation, but we might find
the same situation after 28 days. Those 14 days are not
going to be the convincing thing. Let me say that what we have now is
people blowing themselves up, people who are quite happy to kill other
people, themselves and members of their family. Do not tell me—I
honestly cannot believe—that any legislation going through the
House to make 28 days 42 days is going to make any difference to those
people whatsoever. I think that Winston Churchill would be turning in
his grave to hear someone talking in these terms—“We are
not going to upset them by doing this.” Neville Chamberlain
might have risen from his grave in those
circumstances.
Patrick
Mercer:
I am most grateful to my Nottinghamshire colleague
for allowing me in. I absolutely take his point—he is spot on.
We have to save lives. We have to stop people being killed. However, we
also have to look to the future. We have to make sure that the
legislation that we pass now does not exacerbate a problem that just
might be containable, that we do not make the mistakes that we have
made so many times in the past and give our enemies further reason to
continue their fight and their evil against
us.
Mr.
Heppell:
I agree with the hon. Gentleman completely, but I
do not think that we would get such a situation by demonstrating
weakness, by appeasing people. That does not help. I have a very big
Muslim population. I bet that I have a bigger Muslim population than
anyone in this room. Nottingham, East—check it out and see. What
happens when I go and talk to them and when they get to know the facts?
It is not a straight 90 days to 42 days—there are all those
judicial and parliamentary safeguards and the thing is very different
to how it started off. That is not being portrayed to people. When they
know about that, do they want the same protections that I want? Do the
Muslim population want the same protections as the rest of the
population? The reality is, yes, they do. They might have the odd imam
stirring something up in the mosque on a Friday, but get those people
on their own, as individuals or in small groups, and we would not find
them anxious to be insecure any more than the rest of us want to be
insecure.
Intercept
evidence, post-charge questioning, all are great. People put them
forward as to why we should not go to the 42 days. I agree with them on
that. I suspect that I am very big on the idea. I want to give the
police and security services as many of the tools that are necessary to
beat the terrorists as we can, but at the same time ensure that we have
safeguards—I pointed out the safeguards in the
legislation—to protect individuals’
liberty.
Even
if we pass the post-charge legislation and all the other bits and
pieces in the Bill that people have welcomed—all the stuff about
freezing assets and so on—it does not mean that we should not
have an extra safeguard of having something in reserve if it is needed.
We should coolly and calmly make the decision now on how to deal with
such a
situation.
When
Commissioner Blair spoke to us, he said that he would hate to have to
come back and ask for this power after an atrocity. I feel exactly the
same. I would hate to be the person opposing the measure if, as a
result, someone
died.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The hon.
Gentleman used the word “consensus” on more than one
occasion. I would like to make one point before we begin. I do not
oppose 42 days on any party
principle.
5
pm
Sitting
suspended for Division
s
in the
House.
5.30
pm
On
resuming—
Mr.
Llwyd:
I suppose that I should bring my remarks to a
conclusion, having already uttered about five
words.
It
is a pleasure to follow the hon. Member for Nottingham, East, who made
an interesting contribution and considered that some of us on these
Benches opposed the extension to 42 days simply on party lines. That is
not where I am coming from. I do not believe that it is necessary, and
I shall explain why.
Having had
some 30 years’ practice in the criminal courts, I have a high
regard for the criminal justice system in England and Wales. That is
because it works. It has developed over centuries past. The rules are
there for a purpose, and they are amended for a purpose when necessary.
By and large, our system of justice is as good as anybody’s. I
say that with a certain pride, having been involved as both a solicitor
and a barrister. I am not here to make any cheap
points.
I
would not seek to impugn the sincerity of anybody on the Committee or
in the House on this most difficult of subjects. It is difficult
because none of us in the Committee, elsewhere in the House or at large
would ever want to see an atrocity perpetrated that could have been
avoided or prevented. That is absolutely without doubt, and I know that
we are at one on that. There is consensus at least on that
matter.
I
say with respect to the Minister that he has attempted over months past
to build up a consensus. His office has been open to Opposition
Members, and there are some things in the Bill that are very helpful
and will be supported with certain safeguards, but I am afraid that the
two sides of the Committee, and I believe the two sides of the House,
will remain at issue on this aspect of
it.
The
hon. Member for Nottingham, East, referred earlier to the consensus
that he hoped to see built up. It is therefore quite surprising that in
the past two years, a consensus did build up about a 28-day limit. Many
of us who were vehemently opposed to 90 days were eventually,
pragmatically, persuaded to fall in line on 28 days. Now,
two years later, that consensus has sadly disappeared. One must ask
whether there is now a compelling and urgent reason to revisit that
decision of the whole House, which, as I have said, was arrived at by
consensus. Sadly, I do not think that the case has
been made at all. I say that with respect to the Minister and to the
Home Secretary. In all the discussions that we have had in the past six
or eight months, we have not seen any evidence to justify the move, let
alone compelling and urgent
evidence.
Several
people have been quoted by Opposition and Labour Members during this
interesting debate, and several committees, non-governmental
organisations and so on have been referred to. I shall avoid all that,
as it can be taken as read. However, it is quite telling that both the
Home Secretary and Sir Ian Blair tell us that there has not been a case
in which the full 28 days has been necessary. I have no desire to reel
out all the quotations—they are on the
record.
I
say this, too, with respect: the hon. Member for Colne Valley made the
point that we must not in any way make a mistake with this, and that we
must avoid any calamity. All that is agreed. What interests me is that
there is some kind of presumption among some people in the
Committee—I do not mean to be rude about this—that if a
person is arrested, they are therefore guilty. That seems to be the
tenor of what is being said.
I
respectfully ask the hon. Lady, and others, to think about a perfectly
innocent person who is brought in, albeit on a reasonable suspicion.
Earlier, the hon. and learned Member for Beaconsfield mentioned the
psychological problems that often occur during a lengthy period of
detention when questioning is going on. I have seen innocent people
who, having spent only three or four days in police cells, come out
with a problem or two that will remain with them for a very long time,
if not for ever. I am not a softy, and I do not want to see anybody
perpetrate a horrible incident on any of our constituents—let me
say that again.
Mr.
Hogg:
It is not just about someone coming out with a
problem or two, there is also the risk that they come out having made
either false confessions or false allegations as a result of the
pressure of the detention.
Mr.
Llwyd:
That is absolutely correct. The right hon. and
learned Gentleman knows that from his own experience—I am sure
that all of us lawyers have been involved in similar
matters—looking at cases where confessions have been brought
forward due to the strain of isolation and so on, which can be
severe.
Kali
Mountford:
Is this not a matter of risk? There is a risk
that the person detained could be innocent, but there is also the risk
that they are not innocent. If they are not detained, they could carry
on with the plot that we are trying to
avoid.
Mr.
Llwyd:
That is right, but I do not see how extending the
period of detention to 42 days will deal with that particular problem.
In any event, the person will eventually have to be charged or
released. We might conceivably charge a person who is innocent, or
release somebody who is not. I do not see where the logic of that
intervention takes us.
I mentioned
briefly that we have a body of rules that we abide by in the legal
system in England and Wales. I will not go through the comparatives
about common
law, and where people are, because all of that is on the record. Suffice
it to say that what is being sought is a hugely long period of
time.
The word
“pragmatism” has been used once or twice today. I say to
the Minister that, if evidence was brought forward, I for one would
most definitely, seriously and urgently consider it. If the case were
persuasive, I would have to reconsider what I am saying, and forget
about any civil liberties arguments that I might have. For the public
good we would have to fall in line and accept that an extension is
required. However, nowhere has any member of the Government put forward
a persuasive or compelling case for this serious change in the
law.
The Law
Society has made its feelings known, and I am not going to quote from
it. It relies heavily on what the Joint Committee on Human Rights has
said—that the pre-charge detention period is sought on a
precautionary basis, and that there is no justification for it. Our
best Government evidence suggests that perhaps in the future, perhaps
quite soon, we might require more than 28 days for an inquiry to be
conducted fully. That is interesting because the hon. Member for
Reading, West made several interventions and a speech this morning on
that particular aspect. Two years have elapsed since the 28-day
extension became possible, and in those two years a lot of work has
been going on, a lot of arrests have been made, but not once has the
28-day period been
reached—[
Interruption.
]
I think that
27 days is the longest.
If there were
compelling evidence that the police were being stymied, I am sure that
most of us would say that we have no argument with the
measure.
Ms
Taylor:
The hon. Gentleman speaks a language that we all
understand, of wanting—in fact, needing—to see compelling
evidence. Would he accept a statement that is made in a lot of the
literature on terrorism, that radicalisation has no visible
progression? That makes it very difficult for us to see where it is,
how it is developing and where it will act. Does he acknowledge that
that is a problem and one that this Bill is attempting to
accommodate?
Mr.
Llwyd:
With respect, I am not sure how the hon. Lady
equates holding somebody for 42 days with dealing with radicalism. It
seems to me that radicalism is a cultural and/or religious matter and
that is something that we need to engage with. However, I do not
believe that this Bill will offend our friends in the Muslim community,
although other people may say that it might do so. I sincerely hope
that it does not and I do not think that it will, so that is not part
of my
argument.
Mr.
Hogg:
The hon. Gentleman will bear in mind, from his own
experience long ago, the Vagrancy Acts. He will remember how the
stop-and-search powers were used in such a way, especially in London,
as to cause immense rage, anger and dismay among the ethnic
communities.
Mr.
Llwyd:
That is absolutely true; there is no doubt about
that. The right hon. and learned Gentleman is right about that.
However, my point was that I was not seeking to rely on the 42-day
extension being, in a way, targeted against anyone or causing alarm
among certain
people. I might be wrong and the Muslim communitye
might feel under threat by the existence of this particular debate. I
hope not, but I do not know; I am no expert on that particular
subject.
We are told
that there are safeguards in the Bill and that there will be judicial
supervision. We are also told that, when the reserve power is to be
brought in, it will be referred to the House of Commons. The
explanatory notes say that it would be referred
if,
“there
is operational need for
it.”
It
would be referred
if,
“the
Director of Public Prosecutions and a chief officer of police in
England and
Wales”,
were
to say that there is an “operational need for it”, based
on
“reasonable
grounds for believing that the detention of one or more persons beyond
the current maximum limit will be
necessary”.
We
would then bring in the reserve power, which in turn would be referred
to the House of
Commons.
I
must ask what useful purpose will it serve to bring the reserve power
to the House of Commons? I ask that because surely if this detention is
at a very delicate stage, where some evidence has been
gleaned—obviously it must be the case that some evidence has
been gleaned—but other evidence is being looked at, how much
will we in Parliament be told about the depth of the work that is going
on? I suspect that we will be told very little indeed, in which case it
is a waste of time to bring the reserve power to the House of
Commons.
“The
statement must not
include—
(a)
the name of any person then detained under section 41,
or
(b)
any material that might prejudice the prosecution of any
person.”
That
makes it wholly plain that the House of Commons will be told virtually
nothing.
Mr.
Llwyd:
That is my view and I am pleased that the right
hon. and learned Gentleman supports it, because this particular
safeguard does not add up to a row of beans. We are left with the
judicial intervention, and I am sure that that would be quite honest
and straightforward; I have no doubt about that. Senior circuit judges
and other experts in these matters would be referred to. That is
fine.
However, I
find that this particular matter of the Executive order coming to us to
consider whether to vote it through on no evidence at all seems to be a
waste of parliamentary time. More importantly, it is a safeguard that,
in effect, means very little indeed.
Mr.
David Heath (Somerton and Frome) (LD): I absolutely agree
with the hon. Gentleman about Parliament acting as a sort of grand
jury, but not in possession of the facts of the case. I felt that
various contributions from the Government Benches reflected confusion
about the circumstances, implied by this Bill, in which the
investigating authorities run into difficulties with a specific
investigation and require additional time, and the post-apocalyptic
scenario of a state of emergency after a massive incident, in which
everybody would accept the House’s authority being sought for
further Executive action. Does the hon. Gentleman
agree?
5.45
pm
Mr.
Llwyd:
In the latter case, the Civil Contingencies Act
2004 would no doubt come into play.
[
Interruption.
] It might not, apparently: in a
cataclysmic event, it would not come into play. One wonders what it is
there for then. I was a member of the Committee on that Bill,
too—for my sins.
My concern is
not to score cheap points or to undermine anybody’s sincerity;
it is not at all to do with that. I am desperately worried about the
all-important balance between the safety of the individual and the
inalienable rights that we as citizens all enjoy. They have evolved
through common law and statute over many years, and we should not be
deprived of them for no good reason. If the evidence were produced,
again, I would not argue this case. However, the evidence does not
exist, the case has not been made and the legislation is not at all
proportionate.
I finish by
referring right hon. and hon. Members to the conclusions of the House
of Lords Joint Committee in its report on the subject. It
concluded:
We can find
no clear evidence that it is likely that at some point in the near
future more than 28 days will be needed. In particular, this is not the
view of the CPS who say they have been operating perfectly
‘comfortably’ within the current
limit.
The
alternatives to extension do enough to protect the public and are much
more proportionate, especially the combination of the threshold
test...post-charge questioning and making intercept
admissible.
The
proposed parliamentary mechanism creates a serious risk of
prejudice”—
as
the hon. and learned Member for Beaconsfield
said—
“to
the fair trial of suspects, because it involves parliamentary debate
about the merits of extending the limit in relation to specific ongoing
investigations.
The
existing judicial safeguards for extending even up to 28
days are inadequate because they do not provide a full adversarial
hearing or an opportunity to challenge the basis on which someone is
being
detained.”
This
oversight by Parliament is an interesting constitutional departure. It
flies in the face of the separation of powers and judicial
independence, and it should be looked at with great concern. It would
not amount to a great deal, however, because it would not mean much: we
would be kept in the dark and expected to nod the thing through. With
respect to the Minister, I, along with other friends and colleagues on
the Opposition Benches feel strongly about the measure, and I hope that
the Government will reconsider it.
Mr.
McNulty:
I cannot remember who I asked about this point
earlier, but I think it was the hon. Member for Carshalton and
Wallington—the birthday boy, as we call him. To pursue it, is
the hon. Member for Meirionnydd Nant Conwy arguing—for
argument’s sake, let us stay with the model—that
parliamentary oversight for that “operational period”
should be expunged and that we should find some other way for
Parliament to oversee things, or is he minded to go along with my hon.
Friend the Member for Reading, West and at least have the vote or the
discussion in Parliament at the seven to 10-day period rather than at
the 30-day period? If the hon. Member for Meirionnydd Nant Conwy is
unsatisfied with the parliamentary oversight provisions in the
Bill,
in this little game that we are playing about the model being fine, on
which I appreciate his comments, what would be the most appropriate
role for Parliament in that
context?
Mr.
Llwyd:
Unless the Minister says that full details will go
before Parliament, the role of Parliament will be negligible in its
effect and we will all be, in effect, fig leaves for something that is
beyond our knowledge. We will not know exactly what is going on, and if
we will not know that, how will we possibly be able to vote in all
conscience one way or t’other in accordance with our duty to our
constituents and to this place?
Mr.
McNulty:
In lieu of what the right hon. and learned Member
for Sleaford and North Hykeham said about paragraph 41(5) of schedule 1
and the explicit notion that individuals or cases cannot be referred to
directly, that matter has been of concern in general, let alone in
terms of parliamentary oversight given this model. I thought that
everyone was fairly comfortable with where Sue Hemming got during the
course of the alleged airline plot that is currently before the
courts—I do not want to say too much about it—where she
and Peter Clarke at the end of their deliberations could at least get
into the public domain the number of individuals involved, the nature
of the plot, the complexity, the when and why and all of the other
elements that would be perfectly acceptable to know had that come
before Parliament in that extant model before us. That would have given
Parliament more than sufficient reason to deliberate on what it should
be deliberating on, which is whether it agrees with the Home Secretary
commencing the order for that model to be alive and no
more.
Mr.
Llwyd:
The Minister has made a fulsome response to the
question that I posed on what kind of evidence we would become aware of
and has given us some interesting information that is worthy of further
thought. However, there is always the other point that Parliament acts
in a quasi-judicial role.
Mr.
Llwyd:
That usurps the role of the courts. We are
legislators, the Minister is a member of the Executive and the courts
are the judiciary, and we should not really mix those
up.
Mr.
Hogg:
May I reinforce what the hon. Gentleman is saying by
drawing to the his attention the fact that even if the House was to
disapprove of the order, it will have been in place for 30 days, and if
the initial detention started the end of the relevant period, as one
suspects it would, the detained person is likely to be in custody for
at least 42 days in any event, even if the order is
disapproved?
Mr.
Llwyd:
I am grateful to the right hon. and learned
Gentleman for that, because he makes an important point. In conclusion,
I believe that this part of the Bill is flawed. I have not touched upon
some of the opinions of various informed people on whether it is
compliant with human rights, but I will not go down that road just now.
I know that the Government have their own opinion, and it is a moot
point in any event. Whenever we
legislate, we should do so in a proportionate way, and I do not think
that this part of the Bill is proportionate in any
way.
Mr.
Bailey:
It is a pleasure to follow the hon. Member for
Meirionnydd Nant Conwy. Although I disagree with many of the things
that he said, he put his case in a reasoned and proportionate way. I
think that he and others have demonstrated that there is a
lawyer’s perspective on the matter and a public perspective.
That does not mean that there are not members of the public who support
the lawyer’s position on this. Similarly, some lawyers support
the public position and the position that the Government have on it.
However, there seems to be a distinct perspective that is dependent on
either general interest or professional training.
I will say at
the outset, as might become obvious from some of the things that I say,
that I am not a lawyer: I would not pretend that I know my habeas
corpus from my Magna Carta, but I at least feel that I have a finger on
the public pulse in this regard. Just looking at it, we have before us
a proposal to extend the period of pre-charge detention from 28 days to
42 days, but there has to be a recommendation from the DPP before that
can take place. We can argue about some of the things that he said, but
I think that there is general agreement that he is less than
enthusiastic about the provision, and the public would reasonably
expect him to be, shall we say, a difficult man to convince to take a
particular case
further.
Mr.
Hogg:
While what the hon. Gentleman is saying is clearly
right of the existing DPP, he should bear in mind that directors serve
for a relatively short period. We are therefore considering the
position of directors for the foreseeable
future.
Mr.
Bailey:
The right hon. and learned Gentleman is correct.
It is also correct to say that this legislation can be renewed
annually. If there are concerns that there is not such an obstacle,
Parliament will have an opportunity to deal with that through the
normal legislative channels. Stage one is a difficult hurdle to get
over. The next stage is for the case to be reviewed by a High Court
judge after seven days. Again, given the strength of feeling that there
seems to be within the judiciary, it seems reasonable to assume that a
High Court judge would not let the process go further if a very strong
case could not be made that it was
necessary.
Mr.
Hogg:
Will the hon. Gentleman keep in mind that what we
are discussing will not be an inter-party hearing? Generally speaking,
it will be a hearing at which only the Crown is
represented.
Mr.
Bailey:
Forgive me if I do not understand the details of
judicial procedure, but my understanding is that a High Court judge
will determine whether a case should go any
further.
Mr.
Hogg:
I did not make myself clear. I apologise to the hon.
Gentleman. My point is that only one party will be represented. In this
case that will be the prosecution. Generally speaking, the proposed
defendant will not be present at the
hearing.
Mr.
Hogg:
I am not wrong. There is a power to exclude the
defendant and the defendant’s representative. I commend the
all-party committee report on the
matter.
Mr.
McNulty:
There is such a power, but Sue Hemming, the chief
prosecutor for counter-terrorism, made it very clear last week that
there had been no ex-parte hearings, as provided for by the law. I know
that the right hon. and learned Gentleman is a lawyer, but the
practicalities and implementation of the law matter as much as what the
law says. She was very clear not only that the other side were always
represented, but that the power to have ex-parte hearings with the
other side excluded had not been availed of at all. The right hon. and
learned Gentleman should not in any way, shape or form inadvertently
mislead the
Committee.
Mr.
Bailey:
I am grateful to the Minister for that
clarification. Even if that were not the case, it is perfectly
reasonable to assume that somebody of High Court status, with some sort
of expertise and training in this area, will not be a pushover when it
comes to determining whether there should be further detention. I think
that, by most people’s standards, a reasonable level of checks
and balances is built in. Essentially, there is a judicial process,
monitored and driven by the judiciary. I think that most
people—the man in the street or the Clapham omnibus—would
say that there is a reasonable balance between executive power and
judicial
independence.
In
his opening statement, the hon. and learned Member for Beaconsfield
gave quite some detail of constitutional history and the importance of
common law, habeas corpus, the rule of law and individual liberties,
all of which I totally agree with. I think we can say that the fact
that there is tension between the judiciary and the Government over
this issue is itself a reflection of how democracy should work and is
constructive. However, I think that the Government must have a
different perspective from the judiciary, because they have a level of
accountability that the judiciary do not. The fact remains that ACPO
and Lord Carlile—the body and the individual most qualified to
assess whether the powers are necessary—both agreed that they
should. It ill becomes a Government representing the people to turn
down those people’s evidence and advice, but by implementing it
as they have, they have achieved a proportionate response that provides
for a balance between protecting civil liberties and giving our legal
system and security forces the backstop of a reserve power that they
can operate in particularly difficult circumstances to protect the
public. I think that the public reasonably expect that, given the range
of checks and balances within the
proposals.
6
pm
At
the end of the day, it is a matter of judgment. I judge it one way;
others may judge it another. At different times, I have
heard—perhaps “aspersions cast” is too strong a
phrase—questions asked about the police’s genuine
commitment to that. I can speak only for my own force, the West
Midlands police force. I went on the parliamentary police liaison
scheme for 25 days, and I made a point of asking them about it. It is
fair to say that they were pretty unanimous in wanting the extra days,
because of the complexity of the investigations. I
will not repeat the description by my hon. Friend the Member for Colne
Valley, who articulated it far more eloquently than I
can.
Moving
on to the issue of relations with the Muslim community, I, like other
members, have a substantial Muslim community in my constituency.
Muslims represent about 9 per cent. of my electorate. I would be
circumspect about adopting a position on any of these issues if I felt
that there was a strong community reaction, but as the hon. Member for
Reading, West said, nobody has ever approached me about them.
There does
seem to be some evidence that the Muslim community feels under
pressure. However, I have heard different reasons at different times.
The one most commonly quoted or prayed in aid is the Iraq war; the
other is the stop and search powers. If I had to choose one, I would
say that the stop and search powers have done more than anything else
to make the Muslim community feel that it is under pressure, but to
argue that we should not do something so demonstrably in the public
interest and the interest of public safety because of perceived
problems with a particular community is not the proper way to go about
it. It underrates the sophistication and maturity of the Muslim
community.
I shall not
go into great detail, but three members of my local Muslim community
were detained in Guantanamo Bay for two years. No collective
anti-western reaction whatever arose from that. The community handled
it in a mature and responsible manner. I believe that that is true of
the great majority of Muslims in this country. They do not want
terrorists in their midst, and most of them want to do everything in
their power to co-operate with the police to end the scourge of
terrorism.
Kali
Mountford:
Does my hon. Friend agree that the vast
majority of people feel most aggrieved to be associated with the fact
that they could be terrorists, and that people, particularly
newspapers, associate, or prefix the word “terrorists”
with “Muslim”? They would feel a lot happier if we
discussed terrorism without that prefix.
Mr.
Bailey:
My hon. Friend makes a valid point. The easy and
somewhat biased conflation of “Muslim” and
“terrorism” has done us and the Muslim community no
service. Certainly, it only plays into the hands of those individuals
of extreme political complexion in some communities and undermines race
relations within such
areas.
If
it is quoted too readily that we must not do something because it will
offend a community or that we are in danger of crossing a line that
provides those who want to commit such acts with a rationale for doing
so, we would push the moral responsibility away from the terrorists.
That is inappropriate. The fact remains that there is nothing in the
legislation that should impinge the human rights of any law-abiding
citizen, and there is no point in highlighting that it will only
provide ammunition for those who wish to abuse others’ human
rights.
I
have never found a normal westernised Muslim looking at the period of
pre-charge detention and saying, “That’s enough for me.
If you go over that, I’m going to become a terrorist.”
That is simply a complete negation of reality. Similarly, although I
would not pretend knowingly to meet terrorists every day, I find it
difficult to believe
that somebody who detests western values such as democracy and the rule
of law, will suddenly become a terrorist simply because we have
extended pre-charge detention from 28 to 42 days. An awful lot of loose
arguments are bandied around on the subject. Some of them are linked to
the Muslim community, but many if not more are from other communities
with a specific political viewpoint. My own experience of dealing with
my own Muslim community tells me that such a situation is far from
reality and unbelievable.
As I see it,
from a public perspective, a real problem has been outlined by people
with the expertise and understanding to do so. The Government are
proposing legislation that is proportionate and that contains the right
balance between individual liberties and the need for extra security.
It has a fair degree—it is not overwhelming—of public
support. Given that, ultimately, if—heaven forbid—there
is a terrorist incident after somebody has been released, the
Government would rightly be held responsible for not having the
legislative framework to prevent it. The measure will go a long way to
ensuring that that never happens, and it should therefore be
supported.
Patrick
Mercer:
It is a pleasure to follow the hon. Gentleman. I
understand what he says, but with respect I must disagree with most of
his points, the reasons for which I hope to articulate
clearly.
I disagree
strongly with schedule 1, which I believe to be an assault on an
essential liberty that not only is a human right, but which is an
increasingly important tool in countering terrorism. The Minister will
take issue with much of what I say, but I would like to make one or two
things clear from the start. I shall draw on comparisons with my own
experience of fighting terrorism in Northern Ireland and the flawed
policy of internment in Ulster, although I realise that neither offers
a precise parallel to anything going on today. To make it quite clear,
I do not believe that anything in this legislation bears any
resemblance to internment. Despite the parallels that I shall draw
between what happened in Ulster and what is happening today in the
fight against—principally—Islamic fundamentalism, I
accept that they are very different, but none the less the parallels
are instructive, so I shall try and bring them
out.
After
the comments from my hon. and learned Friend the Member for
Beaconsfield, I shall concentrate on the power of perception and
propaganda. If we forget about or neglect that, or do not anticipate
it, we will pass an extremely important tool to our enemies. I am sure
that Labour Members will say, “But please! We have a series of
safeguards in place. We believe that 14 days is probably enough and
that 28 days will have to be used occasionally, but we are searching
for 42 days to be used in exceptional circumstances. And nothing that
you say, oh Member for Newark, can possibly compare with
internment.” They would be right—it cannot. However, our
enemies will ensure that it does. That is the point. Again, the
Minister and I have talked about this over the past few days and weeks.
There is a fatal flaw in our understanding: if we fail to see what
could be done with the theory—not the practice, because the
reality does not matter—behind this proposal and allow the
legislation to be suborned or canted and turned to the advantage
of our enemies, I fear that we will be ignoring the lessons of history
and doing ourselves a great
disservice.
The
hon. Member for Colne Valley made the point that we are in the business
of protecting lives. Absolutely. I could not agree with her more. But
we are also in the business of protecting future lives and of trying
not to make mistakes that will endanger lives, not next week or year,
but in 10 years. Again, I would like to draw on the lessons of the past
to show us what dangers lie ahead. Let us consider the powers of
propaganda. I joined my battalion in 1975 as a young officer—not
during internment, but in its immediate aftermath. I expected to find
the police, who were leading on the problem, and the Army, which was
very much in a subordinate role, literally hammering at the bars of the
cage saying, “We need more powers and time to deal with
terrorists.” I expected them to take a fairly draconian approach
towards dealing with that particular brand of terrorism. Not a bit of
it. I am glad to say that the voices of reason were alive and well.
They were based on the hideous mistakes of internment over the
preceding two or three years. To generalise, their view was: we must be
moderate and reasonable, and not allow our enemies to use the single
most important tool that they have—not a bomb or bullet, but
propaganda. Terror is not necessarily about killing, but about
terrorising. Terror is about twisting the truth. If we can make people
believe what we want them to believe rather than taking away their
lives or their liberty, then we as terrorists will have achieved our
aim. Let me give an
example:
“Through
the little streets of Belfast
In the dark
of early dawn
British
soldiers came marauding
Treating
little homes with
scorn.
Beating
sons before their
mothers
Dragging
fathers from their
beds”—
so
it goes on. It
finishes:
“As
the blood flowed from their
heads.”
The
Minister can probably fill in the rest of the words.
Members of
the Northern Ireland prison service are frequently referred to in
republican propaganda as concentration camp guards. I did not see any
such acts of violence when I was in Northern Ireland although I was not
there during internment. I do not believe that those sorts of acts of
violence went on. There were some difficult and hard arrests, and some
arrests were resisted. It was said that sons were dragged from their
mothers’ sides as their blood flowed from their heads and that
perfectly ordinary policemen and prison screws were concentration camp
guards. That is the power of propaganda and the twisted perception of
our enemies.
6.15
pm
What
is the modern equivalent of that? Look at the way Abu Musab al-Zarqawi
conducted his operations in Iraq. When a C-130 fell from the
sky—as far as I know not brought down by enemy fire—the
international media almost immediately had pictures not just of the
aircraft on the ground but the fire of insurgents that had brought it
down. We have talked about the way in which our enemies will tailor
their propaganda. Ayman al-Zawahiri, the second in command of al-Qaeda,
said about our operations in
Afghanistan:
“There
will be no more Dr.
Brydons”
I
doubt whether many here could tell me what that is an allusion to.
[Interruption.]
The
Chairman:
Order. There is no need for the right hon. and
learned Member for Sleaford and North Hykeham to answer any question,
and he certainly should not do so
uninvited.
Patrick
Mercer:
I am glad that a deep and sensible perception of
military history exists in the east midlands. The right hon. and
learned Gentleman is absolutely right when he says that the one single
survivor from Kabul in 1842 was Dr. Brydon. I will not go into any of
the details. The point is that our enemies are knowledgeable,
thoughtful and will use propaganda to the very best of their ability to
unhinge our efforts and to defeat us—not with bombs and bullets,
but with
words.
I
ask you, Mr. Bercow, to look carefully at the incident in
Forest Gate, which took place nearly two years ago. I will not question
the intelligence upon which those operations were based. However, when
an individual who was being arrested was accidentally shot, the
propaganda machine immediately went into overdrive. With those points
in mind, I believe that if we extend our period of detention from 28
days to 42 days—I have to say that I had the gravest of
reservations about the extension from 14 days to 28 days—three
things will happen, all of them have been touched on already. First,
vulnerable communities will be much more easily alienated than they
have been so far. I understand those on the Government and Opposition
Benches who said that the vast majority of people inside those
vulnerable communities are reasonable, rational, sensible and
thoughtful people. However, that is before our opponent’s
propaganda machine has started to work properly. Again, I would urge
everyone here to consider what happened to the Roman Catholic
population in the 1970s. Again, it was slightly before my time, but the
sight of British soldiers being greeted by Roman Catholics on the
streets of Londonderry and Belfast in 1969, with cups of tea and plates
of cakes, quickly changed after 1971. A vulnerable community was
suborned—to use the modern phrase, radicalised—by careful
and clever propagandists. It would be grossly unfair to say that we
lost the sympathy of the Roman Catholic population, but none the less
we lost a lot of sympathy from that particular vulnerable
community.
Hard
on the back of that comes recruiting. Once the sympathy of the
community is lost, recruiting becomes that much simpler. Once
recruiting gets into its stride, the job of the intelligence agencies
becomes that much more difficult. The third point relates directly to
that again—the crucial point that we found on the back of
internment concerned the carefully established, nurtured and worked-up
intelligence communities—the informers’ touts. Many of
those individuals were alienated and lost until we managed to
re-establish those communities from about 1975 or 1976 onwards. I would
go so far as to say that, had we been able to maintain those lists of
informers, we would have nailed that particular iteration of the IRA by
about 1980. The long-lasting effect of internment was the killing of
the gathering of intelligence and the implementation of aggressive use
of intelligence on the back of it. That was purely and simply due to a
failed and flawed piece of legislation, an Act of Parliament that
worked so thoroughly badly, to the detriment of the security forces and
to the aiding and abetting of our
enemies.
In conclusion,
we have had some compelling evidence from witnesses and other speakers
that everything that I have predicted so far in my three points has yet
to happen. A fair argument has been made that, if so draconian and
dreadful, why did those things not happen when we went from seven to 14
days or from 14 to 28. I do not fully know the answer, but before the
Minister challenges me on that I would say that our enemies are
awaiting their opportunity. None of that will be as effective as if
they deploy their arguments on the back of the next major incident that
strikes this country. Nothing that legislation can do can prevent the
next incident. However, we have an opportunity today not to repeat the
mistakes of the past—to look into the future and to try to
understand the depths of our responsibility, to nip this in the bud,
rather than taking a short-term
view.
Mr.
Ben Wallace (Lancaster and Wyre) (Con): It is a pleasure
to follow my hon. and gallant Friend the Member for Newark, who brings
with him extensive experience. It is wrong to hide our experience on
the Committee. Not only did my hon. Friend the Member for Newark have
extensive time in counter-terrorism in Northern Ireland, but my hon.
Friend the Member for Gravesham, as a former SAS and Grenadier Guards
officer, has first-hand knowledge of violence, terrorism and warfare. I
myself spent time in Northern Ireland—contrary to what the
Minister alluded to in his earlier reports, I was not a
torturer-in-chief or whatever his
implications.
Mr.
McNulty:
I said no such thing. I certainly did not use
“torturer-in-chief” or any such term. I would not, about
any Army officer serving in Northern Ireland or anywhere else. I want
that
withdrawn.
Mr.
Wallace:
If we look at the record, we will find that the
Minister said—perhaps I will clarify that in writing—that
I may have abused some powers in Northern Ireland. Although he said it
light-heartedly, it is
important.
Mr.
McNulty:
On a point of order, Mr. Bercow. I
want the statement or any notion that I called the hon. Gentleman or
anyone else a torturer-in-chief withdrawn. I said no such thing. I want
that clear statement
withdrawn.
The
Chairman:
I am grateful to the right hon. Gentleman for
his point of order. I have no recollection of that exchange. At this
stage I will invite the hon. Gentleman to respond, if he so
wishes.
Mr.
Wallace:
I said that there was an implication, although
light-hearted, that I had somehow abused my powers in Northern Ireland.
I never said that the Minister accused me directly of being a
torturer-in-chief. It is important in this debate that the operational
knowledge of some hon. Members is not discarded. I am not a lawyer nor
are my hon. Friends who have raised objections to the matter. I am not
arguing from the human rights point of view or that of the balance of
law in the Executive. I argue not lightly, but because I have
first-hand experience of combating terrorism and meeting terrorists. At
the age of 20, I arrested my first active service unit, and not many
hon. Members can lay claim to
that.
One
of the charges that we hear from a number of Labour Members is that the
price of not taking such action is that we may face an outrage or
catastrophe if we do not have such an extension. That is the compelling
reason why we must do so. However, that is to mix the operational
issues of interdicting the terrorist and disrupting an operation that
we already have tremendous powers to do. Under the Terrorism Act 2000,
the Regulation of Investigatory Powers Act 2000 and a whole
paraphernalia of criminal law, we can disrupt, lift and do whatever we
want to terrorists we currently have in our
sights.
Mr.
Hogg:
The purpose of this part of the Bill is not to
strike against particular plots, but to provide the mechanism under
which particular detainees can be investigated about past involvement
in
plots.
Mr.
Wallace:
Absolutely. My right hon. and learned Friend has
made the point that the powers under the Bill are to be used to seek
further evidence about individuals currently arrested and under
investigation. They are not to disrupt the plots that we might or might
not face in an emergency or, indeed, if important intelligence comes to
light and we need to act in the short term. Those powers already exist
and to mix the two is to mislead the public about why we want such
powers.
Counter-terrorism
works very much as it does with organised crime. Intelligence is
received, it is acted on and perhaps surveillance is put in place. From
that surveillance, an arrest or a search might be put in place and then
we try to convert it into evidence. That is the process of
counter-terrorism and all the way through intelligence and surveillance
we already have the powers to make sure that we counter, on the
precautionary level perhaps, the threat that we face today. We could do
so with many people and plots to which we know are being
alluded.
It seems that
the Government are offering a principle of precaution and saying that
we must act on precaution. That is where I disagree with a number of
speakers and where there is a similarity with internment. Internment
was based on a precautionary principle and on intelligence on which, of
course, a number of incidents might be based. The Minister is probably
right to point out that the intelligence at the time was more than
dodgy. I fully accept that. Some of it probably did not even exist, but
the information was justified as being based on intelligence and a
precautionary principle. It was a
disaster.
There
are no more similarities in the Bill, but we must remember that
intelligence is not evidence. The proof of the pudding is in the fact
that we have arrested 1,165 people, but have charged and convicted 300.
We already
use the powers in a sense. We already use precaution in breaking up,
arresting and investigating individuals so I cannot see why there is so
much demand to extend the precautionary principle. As my hon. Friend
the Member for Monmouth said, why not extend it to organised crime? Why
not extend it to paedophilia? There are justified arguments for doing
so?
How
much effect will such action have as a deterrent? We know a number of
things from terrorist cases. Throughout Northern Ireland, we found that
when a man was sentenced to longer than 10 years in prison, he seldom
became active again. When a woman was sentenced for terrorist offences
in Northern Ireland, she almost always re-engaged in terrorism. If we
take that forward into Islamic fundamentalism, into radicals and people
who would like to blow themselves up, will they really be put off by
two years in prison, having been in a conspiracy on the edges of a
plot? Therefore, let us run that precautionary principle further in,
keep them in jail. The precautionary principle never ends—that
is the problem. It goes on and on because we start to deal with the
fact of questioning; questioning whether people’s motives are
enough to jail them, whether the intelligence is enough, or whether
there is evidence.
The other
thing that is deeply disturbing is the way that the prevent strand is
bandied around, as if it is a tick box in isolation. We can do anything
on this side, because we have the prevent strand—it is okay, we
can do anything. However, we cannot take that in isolation.
6.30
pm
We
know that there is an increase in the number of people who have been
radicalised in the last seven years. We know that there are still
active plots, and we could argue about how effective the current
prevent plan is. When it comes to the radicalisation of individuals,
time and again, we find that these are the people who do not engage in
the mainstream Muslim community. They are people who no one ever picked
up on and no one came into contact with. That is something that the
prevent strand does not necessarily pick up. One of the measures of the
prevent strand was to spend £700,000 sending British Muslims
abroad to Egypt and other countries, to talk to them about how not to
radicalise Muslims. Some of the radicalised Muslim communities have
been exporting Brits to other countries, such as Yemen, to take part in
extremist activity. It is hardly the way in which to achieve some of
the outcomes.
Finally, how
we affect sources is important. My hon. Friend the Member for Newark
has mentioned that point, and it is something that has an effect on
recruiting information from communities. Intelligence is about
colouring the picture, filling in the jigsaw. It is not about the mole
at the top of the organisation who will give the blueprint; it is about
contact between the authorities and the communities. It is the light
contact that helps fill in the picture. The best example of that during
the 7/7 plot was when, outside the flat where the plotters were
involved in concocting their deadly bombs, the grass died because of
the peroxide that they used. If someone notices that information and
colours in the picture by adding it to known source intelligence, or
known patterns of people—some of the people from 7/7 were under
surveillance, or on the edges of surveillance, at the time—that
colours in the picture.
When draconian
laws, or laws that communities do not like, are passed, it is not the
moles at the top of the operation who will be put off. They are the
ones that are bought with a cheque book, bribed with going to jail or
motivated by other things such as jealousy, which exists in all
organisations—as we know here probably more than most. It is the
people on the edge in those communities who say, “I am not going
to ring the police, they were not very nice. They took my
friend’s son and put him in jail. I’m not going to tell
them about those couple of guys I haven’t seen before.
I’m not going to have that friendly neighbourhood chat with the
neighbourhood constable as we often do.” It is the death of that
information that can stop colouring in the picture. That, in my view,
undermines the counter-terrorist effort.
I remember in
Northern Ireland that if the wrong regiment went to the wrong part of
Northern Ireland, one could guarantee that the information would stop
for six months. That would not be information from the Mr.
Big. It would be the friendly telephone call from the Irish republican
community, the vast proportion of whom were law-abiding, recognised the
role of the police, believed in democracy, were not radicals and were
mistrustful of Sinn Fein. However, they just stopped.
The Muslim
communities in my constituency will be no different from that. Tight
communities are tight for a reason. They trust themselves and they
understand their culture. If we come along and get this wrong, we will
pay in the long term, not the short term. I therefore oppose schedule
1, not because of the human rights argument or any other arguments that
are much more noble than mine, but because I think that it will hinder
the operational effectiveness of our job in counter-terrorism in the
medium term and the long
term.
Mr.
Hogg:
May I begin with an apology? First, I was not here
this morning because there was a fatality on the line and the train was
held up for about five hours. I apologise to the Committee for that.
Secondly and differently, I have lost my voice, so that is bad news.
Thirdly, I am conscious that I have not been attending the Committee as
fully as I would have liked. That has one relevance because I was
dealing with a case that involved a serious abuse of Executive
power.
That
case put me in mind of a proposition that I regard as the iron law of
administration: if power is given to the officials of the state to
exercise over the private citizen, it is quite certain that on occasion
that power will be abused. That is an iron rule of politics. It leads
to some important conclusions, one of which is that we should never
give away power to the organs of the state unless it is absolutely
essential. Secondly, when we do, it is extremely important to put in
place full safeguards and restrictions. It behoves this House and this
Committee as an instrument of the House to consider carefully whether
we are transgressing that rule today. I believe that we are. I am
perfectly willing to accept that we are here to assess the balance.
This is a matter of judgment. The question is whether the need exists
and if there be a need, whether it exists sufficiently clearly to
outweigh the obvious disadvantages that have been identified by many
members of the
Committee.
The
first question one has to ask oneself is whether the need exists for 42
days. We need to remind ourselves, as I have tried to do in
interventions during this sitting, that this power is about
investigation. It is perfectly true
that investigation can prevent future plots. However, the purpose is not
to prevent future plots, but to enable the law enforcement agencies to
conduct their investigations more fully. It is against that purpose
that we must ask the question, “What is the need?” I
think that it is very important that we keep in mind the body of
opinion that has grown up. The fact that the former Attorney-General
says that it is not necessary, that the current DPP says that it is not
necessary, that the CPS, the Select Committee on Home Affairs and the
Joint Committee on Human Rights say that it is not necessary—I
do not mention any of the lobby groups because they may be thought to
be parti pris—seems to me to create a very serious
doubt as to need. That is a doubt that I
share.
Let
us assume that there is just a little bit of a need and see how that
stands against the other considerations when looked at in the balance.
One starts off by asking what the safeguards are. We have been told
what the safeguards are by a number of hon. Members. There must be a
report by a commissioner of police and the DPP. How much of a safeguard
is that? Let us imagine an atrocity with a baying press and a
commissioner and perhaps even a DPP who are uncertain about their
positions. I can see such people—they are human like the rest of
us—laying a report simply to guard their own backs. Then I ask
myself what a Home Secretary would do in such a situation, receiving
such a report with a tabloid press baying in the wings. Would she look
carefully at the justification or would she say, “Let me guard
my own back”? I have very little doubt as to where the truth
lies. What if the Prime Minister were prodding the Home Secretary to
take urgent action? I do not trust a Home Secretary of any party in
those circumstances to stand against that pressure.
I then asked
myself, what about this House? The Minister for Security,
Counter-Terrorism, Crime and Policing spoke about parliamentary
sovereignty. He will forgive me for saying that I have been in this
place for 30 years and I know a lot about parliamentary sovereignty; I
know all about that, and I know about the collective authority of the
Front Bench. This House will never stand against the Government, or at
least their party will not, when they demand an affirmative vote. The
truth is that provided the party of Government retains the loyalty of
its own Back Benchers, it can pass whatever it likes. That is not a
proper safeguard for the peoples of this country. In any event, to take
two other points, one of which was made by the hon. Member for
Meirionnydd Nant Conwy, what will Parliament be told? It will not be
able to form a detailed view of the merits of the case—that is
prohibited by paragraph 41(5) of schedule 1—and it could not do
so in a 45-minute debate, or whatever it might be. It is preposterous
to suggest that the House of Commons will be a safeguard to protect the
rights of the citizen in such circumstances.
What about
the senior judge? The senior judge will do his best, but if the
Minister will forgive me, he is wrong to say that these are always
inter parte hearings. It may be that hitherto they have been inter
parte hearings, but what is also true, and we must look to the future
here, is that the legislation enables the senior judge to make it an ex
parte application, with the defendant and the lawyers absent. That is
why, if the Minister would care to look at paragraph 72 of the report
by the Joint Committee on Human Rights, he
will see that it expresses grave anxiety about the judicial safeguards,
which in its opinion are wholly inadequate. I say that the safeguards
are of a pretty light kind.
What are the
disadvantages? We must consider the balance of the disadvantages as
well. Here I share the view of Opposition Members. The first point is
that it is a profound injustice to lock somebody up for a long time
when they are not guilty of an offence. I have been involved in a case
for 14 days when I have seen the gross abuse of Executive power by
former police officers. It will happen, it is the iron law of politics
and I am not going to be party to it unless I absolutely have to
be.
Secondly, I
am sure that it will alienate communities. I go back to when I started
at the Bar in the late 1960s, early 1970s. I became a Member in 1979 at
the time of the old stop and search powers, the vagrancy powers and
John Wheeler’s Home Affairs Committee. One of the great issues
of the time was whether the police should be given and be allowed to
keep the power to stop people and search them. The reason they were in
the end deprived of that power was the anger and hostility, largely
among the West Indian community. We can transpose that very easily now
to the Islamic and Muslim communities, who will feel that these powers
are directed against them. In one sense they are not directed against
them, they are directed against the terrorists, but we can be sure that
the great majority of people who will be affected by these powers are
in fact those from the Muslim community.
Let us think
how we respond, for example, to the United States’ extraordinary
rendition, or the Guantanamo Bay procedures. They are a disgrace, they
have brought the United States into shame and worse than that, they
have alienated the world community and United States policy is
disgraced and unpopular as a result. I am not saying that this issue is
as grave as that, but we have fallen into the risk of going down that
road and bringing ourselves into a shameful position.
If we look
back at convictions that have happened when they should not have
happened, usually it has been because of admissions made under
prolonged questioning. The longer the detention, the more the
questions, the greater the danger of confessions that are not true or
allegations against others that are not true. I know that libertarians
are sometimes criticised. I come from the extreme libertarian wing of
the Conservative party, not to say the political community. I am the
nearest thing to a Conservative anarchist that could be found, other
than the late Mr. Eric Forth, but I am conscious that in
this matter, I speak for an awful lot of people in the legal and civil
liberties communities. We are against the proposals, and if we in this
Committee pass them, we will do shame to our
reputation.
6.45
pm
Mr.
McNulty:
An interesting peroration on which to end our
deliberations. I confess to not knowing the right hon. and learned
Gentleman’s history intimately. I suspect that he was rather
less anarchistic when he took the Queen’s shilling as a
Minister, but there we have it. Good things come to us all if we wait
long
enough.
I
am mindful of the time and want to do justice to all contributions, but
for the sake of the Committee, I think that we should finish this
matter today. As an
aside for those interested—I am sure that many will be—I
shall table a motion on Thursday morning to delay the commencement of
our activities in the afternoon, in order to allow Members to go to the
funeral of the late and much lamented Gwyneth Dunwoody. Through the
usual channels, we will sit at 2 o’clock in the afternoon rather
than 1 o’clock, but a formal motion is needed from me first
thing Thursday. I just wanted to make Members aware of that, in case
they are making plans for
Thursday.
Let
us go right back to first principles. The hon. and learned Member for
Beaconsfield said it at the start of his deliberations when he opened
for the Opposition. I do not say this in any pussyfooting fashion:
there will be blood, and there will be further deaths.
Collectively—I speak of everyone in the House—we will do
all that we can to prevent the next one, but I am afraid that there
will be a next one. One side may say, “If we do not do this, we
will forestall the next one”; the other may say, “If we
do this, by God, that is what will forestall the next one.” Both
are terribly erroneous positions.
I shall
develop this slightly in my later comments: we have never said that
legislation is the answer. It will take a whole range of different
dimensions and activities, from the most local communities up to
national Government, to deal with these matters, and quite
right too; but people will die, whatever we decide. That is a matter of
profound regret, but we must do all that we
can.
Let
me say too, by way of introduction, that I wholeheartedly agree with
much of what the hon. and learned Gentleman started from. I agree with
what he said about habeas corpus and what we seek to defend. By golly,
we had better get the balance right between liberty and the powers
necessary to defeat our enemies. In the next breath, I must say that I
respect people’s service and experience in other capacities, not
least in Northern Ireland, but many of the comparisons are utterly
erroneous and, at best, ahistorical. They are deeply interesting, and I
admire people hugely for the services that they have rendered, but the
comparisons are utterly erroneous, for the reasons that I suggested
when I gave evidence.
It is a
matter of fact that, rightly or wrongly, Sinn Fein and the IRA had more
support in the communities that they purported to serve than any of the
characters we face now. Collectively, as Parliament, not just as
Government, we do our job a disservice to imply that even the lowest
levels of support for the IRA and Sinn Fein, particularly among the
republican and nationalist communities, are remotely replicated in the
Muslim communities in this country. We do a deep disservice and afford
offence to those communities even to suggest it.
That is not
to say that I do not agree with the hon. and gallant Member for Newark
about the huge importance that we should all afford—to put it
crudely—to hearts and minds, propaganda and such dimensions.
That is important. One of the first questions that the Government
sought to answer when we started down this road—not in the last
couple of months, as the hon. Gentleman was gracious and generous
enough to say, but some time ago, perhaps as far away as October and
November 2006—and throughout the process, was whether there are
any gaps in the legislative process. That is a
perfectly
reasonable question. Equally, given the nature of the measures, we
sought to answer the question of how people will respond to what we are
doing.
I agree that
our enemies will suborn anything that we do, as they have done and will
continue to do. We had that argument over 14 to 28, stop and search and
a whole range of things—almost everything—that the
Government seek to introduce to counter the threat. I agree that it is
important to take that into consideration, and I know that the hon.
Gentleman was not specifically pursuing that line, but we do not not
act because of their reaction—I apologise for that double
negative. We do what is right despite how it may be suborned. We must
weigh that in the balance—the propaganda victory afforded to our
enemies is part of the balance of civil liberties to which the hon.
Gentleman referred—but act we must if we think that it is the
right thing to do. It is not appropriate to have the reaction of those
who would propagandise against us as the sole criterion of what we do.
The hon. Gentleman did not make the point as crudely as that, but it is
absolutely right.
I could turn
much of the substance of the points on schedule 1 back on those who
made them and talk about the move from 14 to 28. Many of those
arguments would prevail in exactly the same fashion. We should explain
the assault on essential liberty. The essential liberty that is being
exploited or assaulted has not been around for ever—it does not
go back to habeas corpus or Magna Carta, but to July 2006. That is when
28 days was
commenced.
Actually,
both in Committee and on Second Reading, it was interesting that many
Opposition Members did not rely only on the civil liberties argument.
Many made points—perfectly fairly—on the balance and said
that it is a security as much as a civil liberties matter. That is
fair, but all the arguments—all of them—go to the 14 to
28 days, or the shift from seven to 14 days. The assertions made about
the potential impact of 28-plus on communities—with the greatest
respect to everybody, they were simply assertions—could equally
be made about the shift from 14 to 28. One would think that there would
be substantial evidence for them, but there is not, as I said in the
evidence
sessions.
I
am with the hon. Gentleman on the vagrancy and sus laws and so on,
because there is an issue—it is not germane to schedule
1—on how section 44 of the Terrorism Act 2000 is used to stop
and search individuals. We are working with the Metropolitan Police
Authority and others and we have instigated a full review of the
process. There is a question whether some of our police forces are
using that piece of legislation in a sloppy and over-egged fashion to
the detriment of relations with all our communities. That is a fair
point, but it is not the same thing. It is not good enough to say,
“One thousand-odd were arrested but only 300 were convicted, so
there are difficulties”. There are enough lawyers in the room to
know and understand that one needs reasonable suspicion to lift someone
in the first place. Unless one gets into homicide and
terrorism—witness what the DPP said last week about the 92 per
cent. success rate—one is not going to hit the success rates
that the comic books would
suggest.
I
do not want all that success to be played back, and for people to ask
me, “Why bother?” As Joe Klein said of Bill Clinton,
rather than of hon. Members, that way lies the smug, shallow serenity
of our time. That, I am
afraid, and I have told its Chairman, is where the Joint Committee on
Human Rights is, as opposed to the Home Affairs Committee, about which
the hon. Gentleman again inadvertently misled the Committee. The Home
Affairs Committee did not say that there was no value in going beyond
28 days. It even suggested the nature of the model were we to go beyond
28 days.
Mr.
McNulty:
With the greatest respect, and I know that the
right hon. and learned Gentleman has been a Member for 30 years, he
makes an indication, I say yes and he stands up, rather than
otherwise.
The Home
Affairs Committee did not conclude that there was no possible basis or
rationale for going beyond 28 days, otherwise why would it have
afforded the Government its advice about the components of the model
should we seek to go beyond 28 days, having quite rightly dismissed the
Civil Contingencies Act as the appropriate legislation to take things
forward?
Mr.
Hogg:
Would the right hon. Gentleman care to remind
himself of paragraph 7 and the conclusion of paragraph 4? It
states:
“Neither
the police nor the Government have made a convincing case for the need
to extend the 28-day limit on pre-charge detention. We consider that
there should be clearer evidence of need before civil liberties are
further
eroded”.
I
could go on reading.
Mr.
McNulty:
If the right hon. and learned Gentleman did go on
reading, he would fall over—accidentally or otherwise—the
precise recommendations to which I have referred. They talk of the
nature and component parts of a model to go beyond 28 days. It is in
the report; he just needs to read a little
further.
David
T.C. Davies:
My understanding of the report was that
although the Home Affairs Committee was uncomfortable—at least
many of its members were—about going beyond 28 days, all members
felt that if the Government were determined to go beyond 28 days, as
they appeared to be, we ought to ensure that some safeguards were in
place: 42 days with safeguards being better than 42 days without any
safeguards.
Mr.
McNulty:
The hon. Gentleman needs to read his own report
in more detail. It asked—quite rightly, and this has been the
Government’s position—whether there has been a case where
the need to go beyond 28 days has been made. The Government’s
answer is no. It then asked whether there were circumstances in which
there might be a need to go beyond 28 days. The Government’s
answer is yes. The Home Affairs Committee says that if that is the
case, what is wrong with the Civil Contingencies Act? It then outlined
clearly why the Act was not appropriate. Quite fairly, the Committee
then said that if we were to go beyond 28 days, here is how one would
do it, given that in its and many others’ view, the CCA is not
appropriate because it was not designed for those circumstances in the
first place. The Committee says that one should replicate much of the
fabric and architecture of the Act but understands that it is not
appropriate.
Equally, we
learned from Liberty last week that Pannick, the QC, who is probably
aptly named, is paraded as an unequivocal legal source about the
appropriateness of the CCA. However, when explored further, we hear
that
Pannick actually says—typical lawyer’s weasel
words—that on balance, the better view and no more, which is
hardly unequivocal, is that the CCA could and should work in the
context of implications for the criminal justice system. It is a road
that affords profoundly more draconian powers to the Executive than the
model before us. The CCA is inappropriate. The only substantial balance
of the argument lies between what the Joint Committee on Human Rights
says and the view that I have just outlined from the Home Affairs
Committee.
Mr.
Blunt:
I was listening to the Minister with respect until
he began to adduce that line of argument, which he has done repeatedly,
through his evidence and now. He should get away from it. He says that
the Home Affairs Committee said, “This is how you should do it
if you go beyond 28 days”; that Liberty said, “You can
use the Civil Contingencies Act”; and that my right hon. Friend
the Member for Haltemprice and Howden (David Davis) said, “Look,
you’ve got the powers on the statute book.” The fact is
that the Minister has taken an extension of a position that, in all
cases, resists any extension of 28 days and, merely faced with a
Government who are determined on the issue, tries to find ways to
answer the Government’s case. He should make the
Government’s case in principle and not try to turn the arguments
of those absolutely opposed to his
proposal.
7
pm
Mr.
McNulty:
I do not deny that Liberty is against an
extension. Last week, Justice made it very clear, perhaps with a good
deal more honesty than Liberty, that at a push it is probably against
anything beyond 48 hours—certainly, seven days is all that it is
comfortable with. However, when such serious bodies say to me,
“You do not need to do this at all, because we have the Civil
Contingencies Act—here is how that could operate and here is a
QC with the unequivocal legal opinion that that would be more
appropriate,” but it turns out that it is not, it is worth
repeating. I am not arguing that Liberty says, “It’s
okay, we have the CCA,” but it must argue far more robustly that
the CCA is appropriate. Quite clearly, it is not
appropriate.
Mr.
Grieve:
I intervene with some reluctance, but I must say
that the principal issue that David Pannick was asked to consider was
whether the CCA gives powers to extend detention without charge in a
state of emergency. Having read his advice, I am quite satisfied that
it does. His opinion was quite clear that it would enable that to
happen. The Minister made another perfectly valid point, which was
that, notwithstanding that argument, the CCA was not designed or
intended for that purpose. As he will be aware, that is why it was
suggested to him that one way forward is to provide the necessary
amendments to the CCA to enable that to happen in a more structured
fashion in a state of emergency. That was the argument. To suggest that
the CCA has no validity, which is what he seems to be saying, is to fly
in the face of what David Pannick said in his
advice.
Mr.
McNulty:
David Pannick’s argument was about the
better view. It was not even as unequivocal as the hon. and learned
Gentleman suggests. It must be the case that it would make for
profoundly bad law to tack on to something as important as our response
to terrorism something designed, passed and implemented by this House
for an entirely different purpose. That was the import of the Home
Affairs Committee’s position.
So we are
left, in fairness, with the Joint Committee on Human Rights saying,
“On balance, we could fashion an appropriate
response—although not without difficulty. Given the broad
agreement on issues such as intercept as evidence and post-charge
questioning,” which is the next area that we will come on to;
“given what we have done already on acts preparatory and all the
other precursor offences that we have spoken about; given the
utilisation of the threshold test, at about the end of 2004, and
probably”, although it does not say this, “given what we
are seeking to do in the wider prevention context agenda, we do not
even have to look at this now.” That is a perfectly reasonable
view, but on balance I would say that it is an utterly irresponsible
one, given where we are and what we know about the experience thus
far.
Although in
shorthand the line always revolves around complexities such as the
sophisticated use of IT, international dimensions and so on, and given
the changing nature of the beast that we face, it could be the most
extraordinarily simplistic of plots—multifarious in nature and
geographical location—that causes the difficulty, and not
another overt or alleged airline plot. I simply do not know, but what I
do know is that the Committee does not know either. I also know that
those who do know, who are at that end of the operation—the
operational end of operations—are the ones telling me in stark
terms that they might need this provision in the future.
The DPP is
not telling me that, and I would not expect him to, because he does not
know anything about the operational end—surveillance,
intelligence gathering and all the other aspects. I would not expect
him to know about that, given his profession. I utterly respect what he
said last week—it must have been difficult for him. I accept the
import, but not the way that it was said by the hon. Member for
Gravesham. He stated that the easiest thing for the DPP to do for a
quite life is to roll over and say, “Yeah, go on, we’ll
have it.” But he does not and I respect him for that, much as I
respect those who argue on the other side in favour of these elements.
His profound view of the provisions on the statute book and his
experience of them, including from the alleged airline plot, is that 28
days is sufficient. I agree with that, too. I have not said in any
terms, in any aspect that that is anything other than the
case.
Mr.
Heath:
The Minister is now arguing the substance of the
case and outlining a perfectly proper disagreement that we can have in
the Committee. However, I will bring him up on one point. He is
absolutely right that the DPP does not have responsibility for the
further investigation, nor does he have any knowledge of the
complexities that might emerge. He does have a knowledge of the
capacity to charge. That is what this issue is all about: the capacity
to charge within 28 days, not to get all of the evidence for all
possible offences, but to achieve the capacity to charge within 28 days
to ensure that someone is held on remand. Is that not an issue that the
DPP is perfectly qualified to speak on?
Mr.
McNulty:
Absolutely, I concur with that. That is what I
said last week and I say it again, but within parameters. The DPP has
been very clear in his views about the threshold test, which has been
used with a degree of success. I say a degree because since its
implementation many of the trials are only now coming to fruition and I
wish everybody well in that
regard.
The
DPP has made it clear on a number of occasions that he does not want to
go down the American route. He does not want to invent or over-inflate
holding charges just for them to dissipate. Some would crudely say that
the American model over-inflates the holding charge only to plea
bargain and get what probably could have been achieved in the first
place had the job been done properly and someone been charged
appropriately. He was very clear that he did not want to go down that
route. I am not traducing that or saying anything about it other than
that it is
different.
The
notion suggested by others that every common law jurisdiction is the
same is as wrong as the notion that somehow, as the hon. and learned
Member for Beaconsfield put it in our proceedings this morning, the
inquisitorial system is comparable with our adversarial
system—it most profoundly is
not.
Mr.
Hogg:
Will the Minister remind the Committee that in
almost any criminal case of any moment, the evidence gathering
procedures continue long after the charging, very often right up to the
day of the trial when there is notice of additional evidence? The idea
that evidence gathering stops when the person is charged is a complete
illusion.
Mr.
McNulty:
Absolutely, it is an illusion, but given the
nature of terrorism cases, often there is not sufficient evidence to
make the charge in the first place. That is the point of our entire
deliberative purpose today. The point that the right hon. and learned
Gentleman makes is absolutely fair
post-charge.
Peter
Clarke said clearly in his book that when Dhiren Barot was arrested,
there was a stack of surveillance, intelligence and other material, but
nothing in evidential terms. That was when the law was 14 days. All 14
days were needed to get to a stage where some, but certainly not all,
of that intelligence was translated into evidence sufficient to charge.
As everybody knows, he subsequently pleaded guilty to conspiracy to
murder and is now, quite happily for us, doing 40 years. That was a
huge case, the outcome of which was unknown in 2005 when we deliberated
about 90 days and arrived at 28 days. I do not say that for any reason
other than to repeat the
chronology.
Nothing
was known when we were deliberating over 90 days and quite fairly, or
otherwise, the House alighted on 28 days instinctively and intuitively
because it agreed with the police and other authorities that they had
made a case, not evidentially based, but that things were changing
sufficiently that we had to go to 28 days. The House legislated on a
precautionary basis, not a pre-emptive basis. I am not commending 42
days, even on this narrowly defined basis, on some sort of pre-emptive
detention basis. As was rightly said at the start of the debate, the
purpose of arrest is charge. That is what governs the entire
prosecutorial system: to charge at the appropriate level and at the
earliest and most convenient stage in the process. That is absolutely
right.
However, if
siren voices had said—I have read the documents backwards, but
have not committed them entirely to
memory—“Where’s the evidence for going beyond 14
days? Where’s the evidence of cases that have failed because 14
days weren’t sufficient and people were released?”, the
answer from the police would have been the same then as it is now.
Broadly, they could not put their hand on their heart and name one case
in which 14 days were insufficient for their purposes, given other
things that were going on, such as the Dhiren Barot case. However, they
could say as individuals that given their experience, expertise and
professional judgment thus far, they wanted an appropriate extension.
The House afforded them one on a global basis. The only control that
time around was a yearly review, unlike the model before us
now.
It
is not appropriate to say—I cannot remember who said
it—that many of the anxieties expressed by the police at the
time have not materialised, giving the clear impression that somehow we
got it wrong in going from 14 to 28 days.
Mr.
McNulty:
I happen to think that we got it right. I say to
the hon. Gentleman, who intervened from a sedentary position, that the
House was probably right, on balance, to assume 90 and go for 28. That
will probably get me into trouble; I do not know. When the Government,
not just individuals, said in August 2005 that the rules of the game
had changed, I said clearly on the record—to return to the point
about balance—that, as much as we could afford to within the
bounds of concerns about public safety, we had to ensure that the rules
of the game did not change, and that many of the measures must be taken
in the context of normality and the rule of law. They are, and they
will continue to be if the schedule is passed tonight.
I also agree
with those who say, rightly, “What we need is not more
extensions to detention without trial, but more trials.”
Happily, that is what we are getting. That is the point I made to an
hon. Gentleman, although I cannot remember who. Peter Clarke told me
just before he retired that, happily, at some point in the next 18
months, a significant terrorist case would come before the courts. I
celebrate that. I do not rest on those laurels, but I celebrate it.
Since 2005, when we went from 14 to 28, and aside from that
extension—I am not praying this in aid of the
extension—we have had Operations Crevice and Rhyme, and 21/7 and
other significant cases have been resolved in the courts. Many of them,
by the by, were resolved in the courts without any mention being made,
after a furore at the start of each arrest process about how terrible
it was and what an infringement it was on the rights of communities. Of
course, everybody was entirely innocent. Such furore plays in a vacuum,
because the prosecution cannot put its case in the public domain as the
lawyers and solicitors for the defence
can.
I
do not claim that we have got it absolutely right throughout the Bill.
I claim that any Government has the right—nay, the
responsibility—to introduce such proposals if, on balance and
through the filter of all the serious points that have been made, they
judge that that is the right thing to do. We are not traducing Magna
Carta. We are not traducing the glorious tradition of
civil liberties in this country. With the greatest will in the world,
unless they are put rather better than they have been today, those
points have no substance. I am not telling the Committee how it should
do its job, but its view should have been—I know that everyone
in the Opposition thinks that it is a wonderful tactic to do
otherwise—to explore by amendment, as the hon. Member for Newark
was going to and the Liberal Democrats, in their rather stark,
simplistic way, were going to, the substantial points in the
case.
I
ask in all seriousness: where are the amendments that address the
points made about the parliamentary scrutiny process being fatuous and
not working? Where is the alternative? I have asked twice now and got
no substance. If hon. Gentlemen are seriously suggesting that it is a
sop—I think that that was someone’s phrase—in
terms of parliamentary scrutiny and that it should not be there at all,
let them bring back an amendment on Report and we will consider it. If
they are saying that Parliament should consider how the judiciary
interpret it in some other fashion—that is a serious
matter—let them bring it back, and we will have a look. If they
are saying that the most appropriate vote should mirror the CCA far
more closely, as my hon. Friend the Member for Reading, West has
suggested, and take place within seven or 10 days rather than 30, let
them bring amendments. It is rather juvenile, I
suggest—
7.15
pm
Sitting
suspended for a Division in the
House.
7.31
pm
On
resuming—
Mr.
McNulty:
Before I was interrupted, I was saying what the
Committee should have been doing, and I was discussing some perfectly
valid and fair points on the nature of parliamentary scrutiny. Where
are the amendments? If we as a Committee are serious about doing what
the House appoints us to do, the fair point has been made that, at one
end, any parliamentary scrutiny during the process and life of this
particular reserved power, would be utterly inappropriate. That is a
reasonable view, but where are the amendments along those lines?
Equally fair is the point made by my hon. Friend the Member for
Reading, West that it should mirror the CCA in its entirety, and that
there should be a vote within seven days. That is a perfectly
reasonable view, but where is the amendment?
Linked to
that, we have had no substantive discussion of the trigger. One would
have thought that this was an appropriate place to look at the nature
of the emergency and the trigger in some detail. Again, the amendments
have not been forthcoming. It has been suggested to me privately by
some, that if there is no parliamentary oversight and scrutiny, the
trigger should more properly include a judicial element at that stage.
It is perfectly fair, unless you tell me otherwise, Mr.
Bercow, that I can talk to hon. Members who do not exist, that we can
just have a clause stand part debate, leaving the Committee not having
done its job or been forthcoming with those amendments. It is perfectly
reasonable to suggest that there may be some judicial oversight at that
trigger level. Again, the amendments have not been
forthcoming.
I think that
where Executive action is exercised, as per the schedule, it is for the
Executive to take full responsibility for it. I very much want the Home
Secretary to dare to go to the House with a baying press mob and, even
if she feels otherwise, argue the case simply because of what the media
are suggesting. What is being prescribed is not a flight of fancy.
Everyone here knows who was the first person arrested under the
Prevention of Terrorism Act—I will happily give way to anybody
who does. It was a little fellow called Paul Hill. He served 15 years
and was subsequently released with his character unblemished as one of
the Guildford Four. But, the baying mob were there and, I hasten to
add, under a Labour Government. Roy Jenkins—God bless
him—was in many ways one of our finest Home Secretaries, but
Paul Hill was one of the first people arrested under that particular
law, and everybody knows about the subsequent miscarriage of
justice.
Mr.
McNulty:
All four were charged on what was a cascade of
confessions. The first and principle confession was from Carole
Richardson who, it was later determined, was stoned, drunk and
perilously unfit for any sort of interview. Then there were
interlocking points put to each subsequent person. I take that point
entirely.
However,
whether there is a judicial element at that trigger level does not
pre-empt the fact that it is perfectly plausible for Parliament to do
Parliament’s job and oversee the nature of the circumstances and
the emergency that the DPP, the chief constable and the Home Secretary
have brought forth by way of report. I go back to what the chief
prosecutor, Sue Hemming, said at the end of the process about avert. It
is perfectly proper and not beyond the wit of Parliament, however
constituted, that it can debate the general security threat, the
progress of investigation, the police numbers involved, the number of
suspects detained, the outline of the plot—what, why and
when—the number of countries involved, if there are any, the
number of exigencies, whether the Home Secretary’s decision was
properly founded, if she had indeed received the police and DPP report
in the first place, other information received and other broad
discussions. The debate is not about any individual—that would
be entirely wrong—even if it was an individual that caused the
report to be forthcoming. The debate is about Parliament’s job
and Parliament’s role should the reserve power be
commenced.
When
the Bill secures Royal Assent, we do not enter a world of 42 days. We
enter a world that has a reserve power, if the circumstances prevail,
to commence the 42-day provisions, and no more than that. That is clear
from the schedule. That is why I was happy about the right hon. and
learned Member for Sleaford and North Hykeham’s allusion to
paragraph 41(5), which says that the debate cannot be about an
individual case. That is perfectly right. That would be even more
offensive than some of the lines that the hon. Gentleman comes out
with. It would be a blurring of the distinction in our separation of
powers, between the Executive and an independent judiciary, which have
served us so
well.
Throughout
my responsibility for the Bill and the matters therein, I have
deliberately never traduced or impugned anyone’s motive for
their position on these
matters. I do not understand some of the positions. I think that some of
them are profoundly wrong, but I have not ascribed any underhand,
political or other motivations to they way in which people have come
naturally to their views. This is far too important. I am the principal
Minister involved and the only Minister left to have been involved
throughout the Bill’s 18 month gestation. I have never mentioned
to anyone the idea of putting the Conservatives, the Liberals, the
Ulster Unionists or anyone else into a hole because of the politics
involved This is far too important for that and I find that charge the
most
offensive.
To
what end? Opposition Members might ask what sort of political capital
the Government currently have that they can expend anything on doing
this, if others are so right and it will not get through Parliament?
This is happening because, and only because, in our judgment, based on
discussions with professionals, it is the right thing to do. In our
judgment, based on the balance that the hon. Member for Somerton and
Frome was right to allude to—that between civil liberties and
the protection of our people and public safety—this is the right
thing to do. I am very sorry that the Committee has not seen fit to
engage on that basis and in the terms that I outlined of how we can
still reach a consensus on the reserve power. That power would be based
not on 28 days or 42 days permanently, but under which 14 days is
currently the law for terrorism and 28 days is the exception. Short of
futurologists and clairvoyants in the room, there will be
circumstances—almost as certainly as there was post-November
2005 when we went from 14 to 28 days—when we may need at least
to look at such a provision to go further. It is not gung ho, not
draconian, but a measured, responsible proportionate response to a
threat that is sadly still before us and will be before us for some
time to come. I commend the schedule to the
Committee.
Mr.
Grieve:
I shall be brief. The Minister chose in the
schedule stand part debate not to introduce his own schedule. That is,
of course, his right and the debate started from there. There is
clearly a major difference of view between the Minister and some
members of the Committee. He asked, “Where are the
amendments?” I
am happy to take up the Committee’s time. I often do. I think
that I have tabled more amendments to Bills during their passage
through the House than many other hon.
Members.
However,
to table amendments to a measure when, in fact, the first building
block has not been placed to get the argument off the ground, because
the Government’s advisers and, in particular, the Crown
Prosecution Service do not consider that the draconian power that the
Government envisage is necessary, is to tinker around with the detail
and not look at the generality. We have had a good debate on the
generality, but the Minister has not persuaded me during that debate to
move from the position that I held previously and will continue to hold
until someone persuades me of a pragmatic case for the extension. I do
not see it, and for those reasons I shall seek to delete the schedule
from the
Bill.
Question
put, That the schedule, as amended, be the First schedule to the
Bill:—
The
Committee divided: Ayes 13, Noes
10.
Division
No.
4
]
AYESNOES
Question
accordingly agreed to.
Schedule
1, as amended, agreed
to.
Further
consideration adjourned.—[Mr.
Campbell.]
Adjourned
accordingly at seventeen minutes to Eight o’clock till Thursday
8 May at Nine
o’clock.
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