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As hon. Members know, the threat level remains at severe. That means, sadly, that we are preparing for an attack that may be highly likely. Since July 2005, when
British terrorists attacked the London transport system, murdering 52 people, the anniversary of which was only this week, there have been numerous plots against UK citizens, including in London and Glasgow in June 2007 and Exeter in May 2008. I cannot predict what might happen in the next 12 months. The 28-day limit has been used, and the noble Lord Carlile has consistently highlighted in his annual reports that he expects in the course of time to see cases in which even the current maximum of 28 days will be proved inadequate.
I believe that we have made a good case. I recognise that people are concerned about civil liberty issues, but I believe that judicial overview is sufficient to ensure that the security of individual freedoms is protected at the same time as the liberties of others in the state. I hope that the House will agree to the order. I shall try to answer points that are made in the debate, and if possible I will return to the figures that the hon. Member for Eastleigh (Chris Huhne) mentioned. If I do not have them by the end of the debate, I will certainly write to him in due course. I carry many things around with me, but not every precise figure, and I would not wish to mislead him or the House.
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Mr. David Ruffley (Bury St. Edmunds) (Con): When we debated the last such order, the Government were in the midst of attempting to increase the pre-charge detention limit to 42 days. Having failed to convince the House of the case for 90 days, they then failed to convince Members of another place of the case for 42 days. The fact that we are here again debating an extension of the application of the 28-day limit reflects the fact that these matters are not set in concrete. The fact that the extension must be renewed annually reflects the fact that it is an exceptional power. Although we will not oppose the order, the Government should be aware that the consensus on 28 days is not in any way unconditional.
The statistics on the use of 28 days do not demonstrate to us a continuing and permanent need. In 2006-07, 10 people were held for between 14 and 28 days, of whom seven were charged and three released without charge. In 2007-08, one person was held for longer than 14 days and released on day 19. Since March 2008, no individual has been held for longer than 14 days. I wonder whether, reflecting on those figures, the Minister accepts that the evidence for the year’s extension is not completely compelling.
As the Minister will be aware, there continue to be problems with the legal framework for pre-charge detention. The Joint Committee on Human Rights report last month raised a number of questions about the 28-day period. There are concerns that the current law does not uphold a suspect’s right to a judicial hearing, and about the amount of information that suspects are given about the reason for their detention. A recent ruling by the Law Lords on the cases of three individuals under control orders is a sign that despite all the safeguards that are in place, the right of all citizens to a fair trial means that the Government need to re-examine the nature of evidence presented to suspects. The same applies to the order before the House.
We all accept that this country faces a real and increasingly complex terrorist threat. There is no debate about that at all, but for exceptional measures such as
those in the order to be acceptable to the public, the Government need to continue to make their case for them.
Keith Vaz: The hon. Gentleman is making a careful and measured case in support of the order. He participated in the previous debate on its renewal and will recall that several Members asked about the assessment of the impact on communities. Is he as concerned as I am that it has taken the Government so long to initiate the risk assessment, when it is clear from all our debates so far that our support for the measure is based, as he has just said, on the Government’s making the case?
Mr. Ruffley: The right hon. Gentleman anticipates my next point. I was about to say that the Government, in publishing their Contest 2 counter-terrorism strategy, have attempted to explain the nature of the terror threat and the need for robust policies to face it, but the fullest explanations are required. It is therefore pertinent to consider the concerns about Operation Pathway and the arrest of 12 students in Manchester. Hon. Members will recall that the then Assistant Metropolitan Police Commissioner, Bob Quick, was forced to resign for revealing the operation. The Prime Minister told us that it was a serious plot based on solid evidence, yet not a single charge has been made. Pursuant to that and the comments of the right hon. Member for Leicester, East (Keith Vaz), does the Minister agree that if talk of alarming and dangerous plots is not followed up with transparent judicial process, the wider public will not necessarily be assured of the need for intrusive and tough counter-terrorist measures?
Chris Huhne: The hon. Gentleman is making a compelling case for treating the provisions as temporary. Why, therefore, will not the official Opposition vote against them today? Are they insisting on taking St. Augustine’s position—Lord, make us virtuous, but not yet?
Mr. Ruffley: I am grateful for the hon. Gentleman’s comments. Our position is that we will, on balance, give the Government the benefit of the doubt on the basic condition that the order will be kept under review. I shall make some further remarks at the end of my speech that will answer the hon. Gentleman’s point.
Ms Dari Taylor: The hon. Gentleman is generous in giving way. The subject is difficult and detailed and we all need to ensure that we are concentrating. I am listening carefully to the hon. Gentleman. There is a small but vocal ethnic group in my constituency and in Teesside. None of its members has spoken to me about pre-charge detention and none has criticised it or perceived it as problematic. Indeed, members of that group work with Cleveland police. Is the hon. Gentleman suggesting that groups have spoken to the Conservative party or to him personally to express serious concerns about pre-charge detention? It is important to share our knowledge as well as the concerns that we clearly have.
Mr. Ruffley: The hon. Lady makes a fair point. Colleagues have already said that draconian measures, which are not fully explained or transparent and do not carry public support, can in some circumstances become a recruiting sergeant for those who wish to commit terrorist atrocities against this country.
Patrick Mercer: May I answer the question asked by the hon. Member for Stockton, South (Ms Taylor)? I have certainly received representations from the small but influential Muslim community—Sufis, who are remarkably balanced, sensible and loyal people—in my constituency, asking me to explain the implications of the order. Sources that I handled in Northern Ireland in years gone by have also expressed reservations about it. I will expand on that later, should I be allowed to speak.
Mr. Ruffley: I am most grateful to my hon. Friend. I hope that that goes some way towards answering the question about the representations that we have received. I suspect that Labour Members have also received such representations—the Chairman of the Home Affairs Committee is nodding. If he catches your eye, Mr. Deputy Speaker, he may wish to answer the question asked by the hon. Member for Stockton, South (Ms Taylor).
The Minister has reiterated the case for 28 days, relying on many of the arguments that were made previously—often for 90 days and then 42 days. Although I accept that the complex nature of some terrorist plots and the difficulty in gathering admissible evidence means that extensions will be required, can the Minister offer an update on moves to allow the use of intercept evidence in criminal proceedings? We have not heard much about that in the debate. It is now more than 18 months since the Chilcot review recommended that it was in the interests of national security to develop an acceptable way of bringing intercept evidence to court. I do not know how much progress the follow-up committee has made—perhaps the Minister can give us an update. Sir John’s new responsibilities for the Iraq inquiry will place further burdens on his time. It will be interesting to hear about that from the Minister because it bears on the case for the necessity of 28-day periods of detention.
Mr. David Winnick (Walsall, North) (Lab): I apologise to the hon. Gentleman and the House for having to leave the chamber, once the Minister has finished speaking to meet a party from my constituency. We are fortunately a long way from 90 days, which was proposed four years ago, and from 42 days, which was proposed more recently. I give the Government the benefit of the doubt on 28 days, as the official Opposition intend to do, because witnesses who gave evidence to the Home Affairs Committee and were unhappy with 42 days were satisfied with 28 days. They included Ken Macdonald, the former Director of Public Prosecutions. There is therefore a case to stick to 28 days for another year, but the Government should keep the matter under review. The sooner we can get back to 14 days—or even seven days—the happier most of us will be.
Mr. Ruffley: I am grateful for the hon. Gentleman’s comments. The order must be kept under review. If the evidence suggests that the period can be reduced from 28 days in future, we will support that. However, we must examine the evidence.
From today, our support for the extension of pre-charge detention in the order will depend on what any Government are able and willing to do about two things. First, they must demonstrate convincingly to Parliament that the security situation is such that 28 days remains indispensable and cannot be shortened. It may seem self-evident, but that means that we need a proper and continuing discussion
in Parliament about the security situation. Secondly, they will need to look at the legal framework governing the judicial authorisation of extended detention to ensure that it meets the procedural protections afforded not only by our common law but by article 5 of the European convention on human rights. I hope that this will give an indication of the approach that we want to take, should there be a change of Government before the next renewal.
The Government of the day have a duty to keep the people of this country secure, with parliamentary consent and public understanding, and to take the measures that are strictly necessary to achieving that end. Protection for the public and for this country must be, and can be, achieved in ways that uphold our historic freedoms and our reputation for justice and procedural fair dealing. It is in that spirit, and that spirit alone, that we make our case today and will not vote down or seek to divide the House on the measure before us.
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Mr. Andrew Dismore (Hendon) (Lab): I should like to speak to the tagged report from the Joint Committee on Human Rights. The Select Committee starts with the premise, as it always does, that human rights law imposes a duty on the state to protect us all from terrorism, and it is on that point that today’s debate must focus.
The 28-day provision was supposed to be a temporary measure, but this is the third annual renewal debate since it was introduced in 2006. There is therefore a risk of its developing an air of permanence, as the Prevention of Terrorism Acts have. That legislation was originally aimed at Irish terrorism, but it has been renewed year after year, decade after decade.
In preparing for today’s debate, I looked at my notes for last year’s debate and the relevant report. Little seems to have changed, save that yet another year has passed without the power having had to be used. I concede that that is not, in itself, proof that the measure is not needed, but it does mean that we need to scrutinise ever more closely the question of its renewal.
The recent report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights warned of the corrosive effect of open-ended departures from ordinary procedures and of the danger of special measures, introduced to deal with a temporary crisis, becoming permanent. The point appears to have been accepted in principle by the Secretary of State for Justice, who was recently reported in the press as having indicated, in a public lecture on 12 May, that UK counter-terrorism laws built up in the wake of the 9/11 attacks on New York and the 7/7 attacks on London should be reviewed and may need to be scaled back. He is reported to have said:
“There is a case for going through all counter-terrorism legislation and working out whether we need it. It was there for a temporary period.”
The Government have set out their case again today, stating that the complex nature of terrorism investigations requires the longer period of detention. However, we know from what the Minister has said, and from published documentation, that only six people have been held for the maximum of 28 days, of whom three were charged
and three released. In our previous reports, my Committee indicated that detailed, qualitative information was needed for Parliament to make an informed decision. Since September 2008, three people have been convicted. There is a retrial involving other defendants, and I accept that we cannot scrutinise those cases until the retrials have been concluded, but, as I said last year, we could carry out a detailed analysis of the cases of the three people who were released. However, we were told at the time that the Home Office does not hold information on those cases, as they are an operational matter for the police, in consultation with the Crown Prosecution Service. That was a surprising response, as lessons could be learned from the cases of innocent people who have been held for 28 days. Despite last year’s assurances of more detailed information being made available, it seems that all we are getting now is the Home Office’s statistical bulletin. That gives only the bare figures, which are not a great deal of use.
During last year’s renewal debate, the then Minister, my right hon. Friend the Member for Harrow, East (Mr. McNulty), expressly accepted the need for detailed information to be made available about how the power had been used in practice when debating future renewals. Her Majesty’s Crown Prosecution Service inspectorate reported on the counter-terrorism division of the CPS in April 2009. The Government relied on that inspection in response to our inquiry into their plans to conduct a qualitative review.
Mr. Winnick: As I have indicated, I am not in favour of reducing the period of 28 days at this stage. Should we not, however, pay tribute to the other place—which I do not always do—because the proposal to increase the period of detention from 28 to 42 days was carried in this House and even, unfortunately, in the Home Affairs Committee, with various qualifications, but their lordships rejected it. So, although it was carried in the Commons by a majority of nine—the number of Unionist MPs at the time—the period was not increased from 28 days, and nor should it be in any circumstances.
Mr. Dismore: My hon. Friend has made his point. I would simply say that my Committee did not endorse the proposal on 42 days, even though his Committee did.
Mr. Winnick: Unfortunately it did, yes.
Mr. Dismore: I was referring to the inspection by Her Majesty’s Crown Prosecution Service inspectorate. The Government say that, on the basis of that inspection, there
“does not appear to be any need for another inspection.”
However, the CPS inspectorate has not conducted the qualitative analysis that we recommended in earlier reports. We therefore reach the same conclusion that we reached last year on the question of the need to go beyond 14 days to 28 days—namely, that we are unable to reach a view as to whether the Government have made their case. In our report, we repeat our call for a thoroughgoing review of all those cases in which the power has been exercised, with a view to ascertaining whether those released could have been released earlier, and whether those charged could have been charged earlier, on the threshold test. We simply do not know the basis of those charges.
The Minister for Policing, Crime and Counter-Terrorism has made much of the safeguards available through judicial hearing and oversight. We have grave reservations about that, however. A person who has been arrested on suspicion of terrorism has a convention right, under article 5(4), to a judicial hearing to determine the lawfulness of their detention. They have the same right to a judicial hearing under the common law principle of habeas corpus. In a number of our reports, we have expressed our concern that the current arrangements for judicial authorisation of extended pre-charge detention are not compatible with the right to a judicial hearing. We are concerned that the hearing of an application for a warrant for further detention is not a fully adversarial hearing, because of the power to exclude the suspect and his representative from the hearing, and to withhold from the suspect and his lawyer information that is provided to the judge.
We are also concerned about the adequacy of the judicial oversight at such extension hearings, because the judge is empowered to consider only the future course of the investigation and whether it is being conducted diligently and expeditiously by the police, rather than whether there is sufficient evidence to justify the suspect’s original arrest and continued detention.
Since the last annual renewal of the 28-day measure, the Grand Chamber of the European Court of Human Rights and now the House of Lords have held that the requirements of a fair hearing under article 5(4) include the requirement that the detained person must be given sufficient information about the allegations against him, to enable him to contest those allegations or to give effective instructions in relation to the allegations to the person representing his interests.
The statutory framework for the extension of pre-charge detention expressly provides for the withholding from the suspect and his lawyer of information that is seen by the judge, and for the exclusion of the suspect and his lawyer from parts of the hearing. There is no provision for special advocates in the closed part of extension hearings, and even if there were, it is now clear that the essence of the case against a detained person must be disclosed to that person to enable them to contest the allegations.
The decisions of the Grand Chamber on the Belmarsh regime, and of the House of Lords on the control orders regime, concerning the minimum that is required for a judicial hearing to be truly judicial in nature, make even clearer the risk of breaches of article 5(4). Unless amendments to the statutory framework are made, renewal of the maximum extended period of 28 days risks leading in practice to breaches of article 5(4).
Our report also notes with interest that our concerns about the compatibility of the pre-charge detention framework with the right to a judicial hearing following arrest are shared by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights in its recent report. The panel also comments on the example that this sends to the rest of the world, stating:
“It is distressing to see how the slackening of procedural safeguards in countries like France, the UK and the USA, has been exploited by other States with less well-entrenched legal systems and human rights safeguards.”
My right hon. Friend the Member for Leicester, East (Keith Vaz), the Chair of the Home Affairs Committee, asked about the impact of the measure on communities.
Last year, we recommended that the Government seek and make available to Parliament independent advice assessing, in general terms, the likely impact on individuals of being detained without charge for up to 28 days, and—this point has not yet been raised—the actual impact, including the psychological effect, on individuals who have been detained for more than 14 days pre-charge. We should look not only at the collective impact on a community but at the impact on the individual people concerned. Every person has their own individual human rights. Human rights are personal, not collective.
Keith Vaz: My hon. Friend is making a powerful speech. Bearing in mind what the Minister said from the Dispatch Box today—it is still a puzzle to me why it has taken the Government so long to begin the process of assessment—this process should involve consultation with Parliament on how the risk assessment is going to be conducted. It should not be done solely from Whitehall for Whitehall; it should include the process of parliamentary scrutiny.
Mr. Dismore: I thank my right hon. Friend for that good suggestion.
Last year, the Government undertook to conduct a risk assessment on the effect of the 28-day extension on communities. Asked when the community impact review would be complete, Lord West told the other place:
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