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“We hope to have the initial findings out by the end of the year”—[ Official Report, House of Lords, 1 July 2008; Vol. 703, c. 203.]—
namely 2008. A year later, neither type of impact assessment—individual or community—has been made available to Parliament.
The Government acknowledge in their reply to our queries their commitment to undertake a review of the impact of all counter-terrorism legislation on our communities, but they now envisage publishing a research report by late November 2009. However, the psychological impact of extended pre-charge detention on individuals will not be included within that review. Such an assessment could already have taken place in the case of those held for more than 14 days and then released without charge. We recommend again that the Government obtain and make available to Parliament such an impact assessment.
The other main new point is about the presumption of innocence. Last year, the Minister conceded that a special paper on the impact of press speculation on the right to a fair trial had not been prepared, but it “might be worth considering”. Strasbourg case law is very clear that the presumption of innocence requires Ministers to refrain from pronouncing on a suspect’s guilt before a suspect has been convicted. The approach of the Attorney-General, whereby a specific newspaper or broadcaster may have their attention drawn to risks of publication and prejudging a particular case, is very ad hoc and does not address the problem of possible prejudice to fair trials caused by Ministers commenting on cases when suspects have been arrested—even before they have been charged. In our view, the Director of Public Prosecutions should draw up and consult on draft guidance on how to avoid prejudicial comment—by the press or Ministers—following the arrest of terrorism suspects, particularly after they have been charged.
In common with the official Opposition, I do not oppose the order, and I say that simply because we have insufficient evidence to form a view either way. If renewal
is sought next year, the Government must produce an evidence-based case with the analysis that my Committee has recommended for several years, especially if the power is not used over the next 12 months, bearing in mind that it has not been used over the last two years. Either way, further safeguards are needed in the light of recent judicial pronouncements—and, indeed, in the light of common law and common sense—so we look forward to hearing the Minister’s response to these points.
1.32 pm
Chris Huhne (Eastleigh) (LD): I am always very pleased to follow the hon. Member for Hendon (Mr. Dismore), who made a number of good points. I have to say, however, that as with the speech of the hon. Member for Bury St. Edmunds (Mr. Ruffley), I am slightly confused by the hon. Gentleman’s position, as it seems to me that this House has a very long and honourable tradition of giving the Executive powers only when the case for them is clearly made out. What we have heard from the hon. Member for Hendon, based on the deliberations of his Committee, is that the Government have not made out a case for the extension of the period of detention without charge.
We on the Liberal Democrat Benches are unhappy with the further extension of what was clearly introduced as a temporary provision. That is why we will divide the House on this issue later today. There is an old adage that there is nothing so permanent as the temporary, and there are many examples of that in our legislation, but we should not seek to extend that principle to these particular provisions.
My argument today is that 28 day pre-charge detention is no longer a necessary or appropriate length of time to detain a terrorist suspect. The Government have not made their case on that. The Joint Committee on Human Rights released its report last month suggesting, as the hon. Member for Hendon said, that the Government have not made their case, which I believe is because they cannot make such a case.
I am not naive. I recognise that the western world has changed substantially since the 11 September bombings and there is no doubt that the UK faces serious terrorist threats from sophisticated international groups intent on doing us harm. It follows that investigations into these threats will be complex, transnational and will involve difficulties such as dealing with foreign languages and computer encryption. But the methods we use to tackle those threats need to be proportionate and effective, which pre-charge detention, I suggest, is simply not.
Since 2000, the Government have drastically altered our detention periods. We have rapidly progressed from a position of seven days to 28 days of maximum detention. That is to ignore the frankly quite staggering attempts in between to extend detention to 90 days, following the 7/7 bombings, and then last year to extend it yet again to 42 days through the Counter-Terrorism Act 2008. Luckily, the Government were defeated due to almost universal opposition. I believe that the Government seriously lost their case on this matter, particularly if we look at some of people who peeled off and became critics. Despite that defeat, 42 days’ detention lurks as a threat on the statute book, not least due to the draft Bill that the then Home Secretary placed in the Library.
This is all part of a pattern from a Government who have an obsession with tough-sounding policies that may appease parts of the electorate but, in reality, have little impact on the problem—or, as we have heard from some hon. Members, run the risk of having a completely counter-productive impact on the problem. It seems to me that attempts to reduce the period of detention are long overdue.
Let us look at the facts surrounding the detention period. Since June 2007, no one has been held in pre-charge detention for longer than 14 days. Over the whole period reported to us, only 11 people who were terrorist suspects have ever been held for longer than 14 days and only six people have ever been held for the full 28 days; half of those, moreover, were eventually released without charge. Half were released without any surveillance or suspicion, which tells me that the innocent have been made to suffer most. This House should surely be exceptionally careful about affecting British law and the rights of the innocent.
Many numbers have been used dispassionately in the debate today, but we must not forget the human implications of what it is like to be imprisoned for close to a month. It is a terrifying and disorientating experience even for someone who is guilty, let alone for a potentially innocent person, and it can have a huge impact on their life, particularly when they do not even know what they have been charged with. How fundamental an assault on the principle that we are innocent until proven guilty is it to be incarcerated for a long period without even knowing what we have been accused of?
Two weeks should be long enough to decide whether someone should be charged with a terrorist offence or not. As my hon. Friend the Member for Chesterfield (Paul Holmes) pointed out, our current 28 days far exceeds the equivalent limits in other comparable common law democracies. Australia has 12 days, the United States two days and Canada allows for one day. The Minister’s answer was basically “What about France and Spain?”. We deliberately chose our comparison because these are Commonwealth countries whose traditions of law stem from the law that began in this country—namely, traditions of freedom and liberty. Let me reiterate that, as it stands, our current 28 days far exceeds equivalent limits in other comparable common law democracies. We have never traditionally compared ourselves and our tradition of liberty with that of Spain, France and other continental countries, which have a very different tradition. However, it is perfectly legitimate to compare ourselves with other common law countries.
Why do the Government insist that we need to hold people for close to one month when so many other countries manage to charge and convict with pre-charge detention periods of less than a week? Surely the Government are not suggesting that our police and Crown Prosecution Service are slower and less equipped to deal with terror threats. Are the terrorist threats we face more complex than those of our Commonwealth cousins? I think not.
We consider that the arguments previously used in favour of retaining 28 days’ pre-charge detention have been particularly weakened as other methods of combating terrorism and bringing charges have been strengthened. The counter-terrorism landscape has changed over the intervening period. The Counter-Terrorism Act 2008
allows for post-charge questioning. The Chilcot report, published in February 2008, has paved the way for the admissibility of intercept evidence. Perhaps if the House were to agree with us today and vote this temporary provision down, the Government might put a little more effort into ensuring that intercept evidence is admissible in court and the security services are better resourced to deal with the modern threat.
According to the Home Affairs Committee report on Contest, released earlier this month,
“the UK’s counter-terrorism apparatus is first-class, effective and as ‘joined-up’ as any system of government can expect.”
Surely that makes the point again. Why do we need to do particular violence to our traditions of liberty and of trial, given that the Home Affairs Committee—and I am sure that the Government would support its judgment—says that our counter-terrorism apparatus is first-class?
Ms Dari Taylor: I am just about at explosion point. I am really very sorry to say this to the House, but when the hon. Gentleman tells us that if the Government put in a bit more oomph or the Home Office handled its work load with a bit more urgency so that intercepted material could be used as evidence today, it is obvious that he does not know what he is talking about. Chilcot and the rest of them have been trying for months to work out how intercepted material could be used as evidence without damaging our agencies in any way. If the hon. Gentleman does not know that when he is addressing the House, he should do.
Chris Huhne: I am delighted that the hon. Lady is getting so worked up. I merely remind her that in both Australia and the United States—the United States example is particularly relevant—intercept evidence is already admissible in court. If she spent any time talking to serious investigators of both terrorism and organised crime in the United States, she would find that they think it astonishing that we are not prepared to avail ourselves of a fundamental tool for the bringing of successful prosecutions.
Let me also remind the hon. Lady that the reason it is so important for us to think about the United States is that we have such a close intelligence relationship with it. I suggest that if the United States can use intercept evidence without blowing a hole in the abilities of its security and secret services, we too should be able to do so. As the hon. Lady knows very well, this issue has been dragging on for ages.
David Davis (Haltemprice and Howden) (Con): I apologise for intervening when I have only just come into the Chamber, but an even more relevant example is Australia, where the head of counter-terrorism has stated in terms that those who do not use intercept evidence in court are not being serious about counter-terrorism.
Chris Huhne: I entirely agree with the right hon. Gentleman. I am delighted that he managed to hotfoot it into the Chamber to make that devastating intervention. I note that the hon. Member for Stockton, South (Ms Taylor) is not seeking to respond to it.
As I have said, the arguments previously used in favour of retaining 28 days’ pre-charge detention have been substantially weakened, and we ought to take account of that. Moreover, the threshold test is now substantially more flexible. I believe that the real reason
the Government failed so conclusively in their attempt to increase the number of days from 28 to 42 was that a whole series of serious people who had been involved in the counter-terrorism effort for many years were unpersuaded.
The Crown Prosecution Service can now bring charges on the basis of reasonable suspicion alone, even when it does not think that the chance of a conviction is greater than 50 per cent. With that flexibility, in 2007 the Crown Prosecution Service enjoyed a 92 per cent. conviction rate in terror cases—I am sorry that the Minister has not been able to give us the most up-to-date figures, but I can give him the most up-to-date figures that are available to me—and in 2008 the conviction rate was 78 per cent. Both those rates are substantially higher than the rates of conviction for other serious crimes.
Mr. Ruffley: Can the hon. Gentleman give us the number of cases lying behind those percentages? Percentages can often deceive.
Chris Huhne: I will happily send the hon. Gentleman a letter, but he knows as well as I do that the number of terror cases is relatively small. The crucial point is this. If we are able to prosecute successfully more than three quarters of those against whom charges are brought, the massive amount of additional flexibility still available to the Crown Prosecution Service enables it to bring charges in other cases if it so desires, and if it considers such action important to the defence of national security. It is that additional flexibility that I believe to be so crucial. It may be said that that, too, could be onerous in terms of civil liberties, but I think it far better for people at least to know with what they are charged than to be in a Kafkaesque position, floundering around unable to meet accusations against them, with the possibility of being detained for long periods without even knowing what they are suspected of doing. In my opinion, all those developments create a compelling case for a reduction in the maximum length of pre-charge detention.
Mr. Winnick: I fear that I shall not be joining the hon. Gentleman in the Lobby. Although I understand all the reasons he has given, I shall support the Government. One of my reasons is that the witnesses who gave evidence against 42 days’ detention to the Home Affairs Committee—I felt that the Committee had reached the wrong conclusion, and as usual I made my views clear; I believe that I was in a minority of one—did not seem to want a reduction in the 28-day period at this stage. When the former chief of M15 opposed the 42-day period in her maiden speech in the House of Lords—again, we all make up our own minds; fortunately, the Lords rejected that—she did not seem to suggest that a reduction in the 28-day period was necessary at this stage, given the acute terrorist danger that Britain faces.
Chris Huhne: The hon. Gentleman has made a good point. The difficulty is that what we were discussing at the time was a proposal for a further extension from 28 days to 42. The clear and pressing need was to defeat that proposal, as it constituted another serious attack on civil liberties. When we consider the use of these powers since the 7/7 bombings, however, and when we consider the changes that I described earlier, we see a compelling case for returning to the arrangement for which the Act originally provided, rather than applying the extension of the period without charge.
David Davis: I gather than the hon. Gentleman is arguing for 14 days. As he will recall, when we debated the 42-day detention period, we discussed the Heathrow plot in excruciating detail, and we found that in one serious case someone had been detained for between 14 and 21 days. I think that the hon. Gentleman’s argument would be more compelling if he were supporting 21 days rather than 14 at this stage.
Chris Huhne: I am glad that the right hon. Gentleman has raised the subject of the Heathrow plot. He is absolutely right. The reason we were prepared to vote with the official Opposition on the extension to 28 days was the evidence surrounding the investigations of that plot. If the right hon. Gentleman had arrived in the Chamber a little earlier, however, he would have heard me enumerate a number of changes—in particular, the flexibility applying to the threshold test—which provide a substantially greater toolkit for the authorities dealing with terrorism than was available to them at that time. As the great liberal John Maynard Keynes once said:
“When the facts change, I change my mind.”
David Davis: He went on to ask:
“What do you do, sir?”
Chris Huhne: Indeed. As I hope the House recognises, the circumstances have changed.
I know that the Government are sinking in the opinion polls, but that does not mean that they should cling to ill-thought-out laws that they rushed through in moments of panic and fear while attempting to reassure the public that action was being taken. The end-result has been that this Government have tumbled into a counter-terrorism strategy rather like Alice falling down the rabbit hole, in that there is no exit strategy and the Government can tell us nothing about when they intend to end these apparently temporary powers. Yet, as we know from having heard from Members with experience of counter-terrorism in Northern Ireland, there are considerable dangers in a Government acting disproportionately and abandoning the moral high ground. We must not abandon the moral high ground, we must not retreat, and above all, we must not become the sort of threat that we are attempting to fight.
1.50 pm
Keith Vaz (Leicester, East) (Lab): This was a very quiet and sombre debate until the hon. Member for Eastleigh (Chris Huhne) spoke and livened matters up considerably. There was a very passionate intervention by my hon. Friend the Member for Stockton, South (Ms Taylor), and the right hon. Member for Haltemprice and Howden (David Davis) galloped into the Chamber to make his intervention.
I find myself in precisely the same position as the official Opposition—that of putting the Government on notice. We have debated this matter at length, and it is important that the House has a proper, full debate on the issues involved, because they concern the liberty of the subject. We should therefore take time to consider the matter rather than rush in and agree a renewal. I shall therefore be in the Division Lobby with the Government—and presumably with the official Opposition—in support of the measure that the Minister has brought before the House today.
The hon. Member for Bury St. Edmunds (Mr. Ruffley) summed up my feeling extremely well when he said that we accept the Government’s case as put forward by the Minister, but that the next time this matter comes before the House we will expect the Government to put a stronger and more effective case. That is not a criticism of my right hon. Friend the Minister’s speech; I say it because we can no longer just accept in good faith statements made on issues of this kind.
My hon. Friend the Member for Walsall, North (Mr. Winnick) has just left the Chamber, but I wish to pay tribute to him for the work he has done in this area. The fact that we have 28 days is, by and large, due to the fact that he came up with this compromise when the Government had originally suggested an extension to 90 days. That is why he and other Members also support the Government measure to renew, I think.
The Minister was not the responsible Minister when this matter came before the House at the time of the debate on 42 days, but he will recall that the concern we all had was that there was a need to give the Government these powers only if the Government were in a position to use the powers. Reference has been made to the Home Affairs Committee report on extension to 42 days. Hon. Members—especially my hon. Friend the Member for Walsall, North—said that we came to a conclusion that would mean the period would be extended. That is right, but it is important to put it on record that although we accepted that there ought to be an extension, there were a number of conditions that we felt it was important the Government should meet before that 42-day period was triggered. We did not say that it should just go ahead willy-nilly, but I should have realised that a combination of my hon. Friend, Baroness Manningham-Buller and Shami Chakrabarti would eventually see this measure defeated.
In checking on the constituencies of hon. Members, I was reading the “Dod’s Parliamentary Companion” report on proceedings before the House in the 177th year of Dod’s. It contains an account of the last debate we had to try to raise the period from 28 to 42 days, in which it said the Government
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