Clause 23 — Extension of period of detention by judicial Authority

Orders of the Day — Terrorism Bill – in the House of Commons at 1:39 pm on 9th November 2005.

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Photo of Charles Clarke Charles Clarke Home Secretary 1:39 pm, 9th November 2005

I beg to move amendment No. 51, in page 22, line 7, leave out 'special'.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following: Government amendments Nos. 52 to 55.

Amendment No. 1, in page 22, line 19, leave out 'three months' and insert '28 days'.

Amendment No. 33, in page 22, line 19, leave out 'three months' and insert '60 days'.

Government amendments Nos. 56 to 58.

Amendment No. 29, in page 22, line 36, at end insert—

'(3AB) Where the new specified period will end more than 14 days after the relevant time—

(a) the specified period may only be extended—

(i) pending the result of an examination or analysis which is to be or is being carried out with a view to obtaining relevant evidence, or

(ii) for the purpose of obtaining relevant evidence from outside the United Kingdom or from records within the United Kingdom which cannot reasonably be obtained without such an extension of the specified period;

(b) the specified period may only be extended if the judicial authority is satisfied that there is no reasonable possibility of the detainee being charged immediately with another offence relating to terrorism or a terrorist act;

(c) the judicial authority must approve the nature of any further questioning of the detainee during the new specified period.'.

Government amendments Nos. 59 to 61.

Amendment No. 63, in page 23, line 6, at end insert—

'(6A) After paragraph 37 insert—

"37A (1) Any detained person who has been released—

(a) in accordance with the provisions of paragraph 37 having been detained for not less than 14 days, or

(b) owing to the effluxion of time

("the ex-detainee"), shall be entitled to claim full compensation for his financial losses resulting from his detention.

(2) The Secretary of State shall, within 3 months of the coming into force of section 23 of the Terrorism Act 2005, make regulations establishing a compensation scheme for ex-detainees.

(3) Regulations under sub-paragraph (2) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.".'.

New clause 1—Extension of period of detention by judicial authority: duration—

(2) The Secretary of State may by order made by statutory instrument provide—

(a) that all or any of those provisions which are in force shall continue in force for a period not exceeding twelve months from the coming into opertion of the order; or

(b) that all or any of those provisions which are for the time being in force shall cease to be in force.

(3) No order shall be made under subsection (2) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'.

New clause 4—Disapplication of Human Rights Act 1998

'Sections 23 and 24 of this Act shall take effect notwithstanding the Human Rights Act 1998 (c. 42)'.

New clause 7—Duration of Section 23

'The provisions of section 23 of this Act shall remain in force until one year after their commencement and shall then expire.'.

Government amendment No. 62.

Photo of Charles Clarke Charles Clarke Home Secretary

All the amendments in this group relate to the complex and contentious question of pre-charge detention in terrorist cases. Government amendments Nos. 52, 53, 54, 56, 57, 59, 60 and 62 provide that extensions of detention beyond 14 days must be approved by a High Court judge or, in Scotland, a judge of the Court of Session. That responds directly to concerns raised in the Chamber at Committee stage. Any application that would extend detention beyond 14 days will need to be made to the senior judge. If, for example, on day nine, the police thought that they needed only another couple of days before they would be in a position to release a suspect or suspects, they could still apply to a district judge. If, however, the police were clear at that point that they wanted a further seven days, the application would need to be made to the senior judge.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

I am grateful to the Home Secretary for giving way at this early juncture. Why is application in Scotland to be made to a court of civil jurisdiction—namely, the Court of Session—for what is essentially a criminal matter?

Photo of Charles Clarke Charles Clarke Home Secretary

Following our exchanges in Committee, I set out clearly to all Scottish Members—I think that the hon. Gentleman will have received my correspondence—the range of issues relating to that particular set of questions. I believe that that addresses the question that he has raised. If not, and he is indicating that it does not, I shall come back to him on the point later in the debate.

In Committee, it was suggested that it was not only the level of judge that was important, but his experience of handling terrorist cases. It was suggested that there should be a cadre of judges designated for that purpose. We have explored that suggestion with the Department for Constitutional Affairs, but it and the judiciary rejected that approach, so it has not been pursued.

Another option raised in Committee, following Lord Carlile's recommendation, was for decisions to be taken by senior circuit judges, with an avenue of appeal to a High Court judge. In our view, that would lead to an appeal in virtually every case with the cases eventually being decided by a High Court judge, so we have achieved the same result with fewer hearings. I can easily explain the effect of the amendments and I have also dealt explicitly with the proposals made by Mr. Cash.

It was also suggested that judges should give reasons for their decisions to extend detention. The clear advice we have is that that would open up an avenue of appeal. There is also the risk that the judge might have decided to grant the extension on the basis of sensitive material, so we have decided not to proceed with that suggestion.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Can the Home Secretary amplify the exact procedure before the High Court judge? Will it be possible for submissions to be made by the person under detention pending charge? Will he be represented? How will the procedure operate and will the Government publish further material on that point, if necessary?

Photo of Charles Clarke Charles Clarke Home Secretary

The answer is yes. On the procedure, I shall come shortly to the codes of practice that will apply—a point that the hon. Gentleman pressed in Committee and to which I am keen to respond.

I turn to Government amendments Nos. 51 and 58. As the Bill is currently drafted, extensions of pre-charge detention are for seven days unless there are "special circumstances" that warrant a lesser period. The amendments remove the word "special" so that a shorter extension period would be granted if the judge felt that circumstances warranted it. The amendments are identical to ones tabled by the Opposition in Committee, so we are responding to the debate on that issue.

Photo of Sylvia Hermon Sylvia Hermon UUP, North Down

The Home Secretary will know that successive Chief Constables in Northern Ireland have had to fight terrorism in that part of the United Kingdom. What view does the present Chief Constable, Sir Hugh Orde, have on the renewal of detention every seven days and extensions to 90 days if needed?

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. Lady has more personal experience of the dilemmas caused by such questions than most hon. Members. I have spoken to Sir Hugh Orde on that point, because of his particular experience. He was unequivocally clear, and he authorised me to say so in the House, that the legislation is—in his experience and from his point of view—necessary, and that includes the extension to 90 days. He is also of the view that the seven-day review by High Court judges is the right way to proceed, and that the flexibility that I am discussing is necessary. I hope that Members from Northern Ireland will take account of those views when they vote this evening.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

Can my right hon. Friend tell the House whether any of our police officers have suggested that we have a power of internment? If they did, what view would the Government take of it?

Photo of Charles Clarke Charles Clarke Home Secretary

Since I have been Home Secretary, there have been no suggestions from any source, the police or the security services, that internment be adopted as a measure to deal with any of these questions. Were that suggestion to be made, I would consider it, but I am sure that the House will agree that the assessment of the operation of internment in the period in which it operated was that it was a counter-productive approach to terrorism in the circumstances. By the way, I reject the rhetorical comment—made not by my right hon. Friend, but by others—that the measures we are discussing today can in any sense be equated with internment. That is simply not the case.

Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

Further to the point raised by Lady Hermon, Sir Hugh Orde will appear before the Northern Ireland Affairs Committee this afternoon and will doubtless be asked many questions. Are there any chief constables who take a directly contrary view on this issue?

Photo of Charles Clarke Charles Clarke Home Secretary

I am not aware of any. I have not personally spoken to every chief constable, so I cannot put my hand on my heart and say that not one of them takes a different view, but all the chief constables to whom I have personally spoken about it take the strong view that the provisions are necessary. The Association of Chief Police Officers also strongly takes that view, which is held most strongly by those people who have been most directly involved in fighting terrorism.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden 1:45 pm, 9th November 2005

The Home Secretary has just said that the Chief Constable of Northern Ireland had reached his conclusion based on his experience. The letter that we received from Hayman of the Met said that the experience in Northern Ireland was totally different and not relevant. We now face new circumstances. What relevant experience has the Chief Constable had? Does he believe that the new powers are necessary in Northern Ireland and, if so, did the Home Secretary refuse to give him those powers?

Photo of Charles Clarke Charles Clarke Home Secretary

I regret to say that the right hon. Gentleman has misunderstood the point that Assistant Commissioner Hayman made. His point was that the modern terrorism that we face is different in certain important respects from the terrorism that we had to face in the past in Northern Ireland. It is the case that the modern terrorism that we face is a challenge for police in Northern Ireland today in a very direct way, which is why the Chief Constable is entitled to make his comments, not as a point of general principle but in terms of dealing with the modern terrorism that he has to face.

Photo of Bill Cash Bill Cash Conservative, Stone

The Home Secretary may recall that under schedule 8 it would be open to the judicial authority to exclude any person to whom the application relates—the suspect—or anyone representing him from any part of the hearing. How can he reconcile that with the provisions in the European convention on human rights on fair hearings?

Photo of Charles Clarke Charles Clarke Home Secretary

I shall come on to the amendment tabled by the hon. Gentleman in a few moments. I believe that the two can be reconciled, which is why I have provided the certificate for this legislation.

In answer to the earlier question from Mr. Grieve, I want to say a few words about codes of practice. He also raised the point with me last week. In Committee, it was suggested that we needed a code of practice to govern the treatment of those held under the Terrorism Act 2000. We welcome that suggestion. Powers for that already exist in England, Wales and Northern Ireland. Under section 66 of the Police and Criminal Evidence Act 1984, the Secretary of State can issue a code of practice in respect of those detained under schedule 8 to the 2000 Act if he so wishes. Existing PACE code C already applies to those detained under the Terrorism Act 2000, but we can see grounds for having a separate code for that purpose, as the hon. Gentleman argued earlier in our proceedings.

Such a code would be laid before Parliament and be subject to the affirmative resolution procedure. Similar provisions exist for a code that would relate to the Northern Ireland (Police and Criminal Evidence (Northern Ireland)) Order 1989. In Scotland, codes of practice are not generally used. Instead, the Lord Advocate, as the head of the systems of criminal prosecution and investigation of deaths, has a statutory power to instruct the police in relation to the investigation and reporting of crime under section 12 of the Criminal Procedure (Scotland) Act 1995 and section 17 of the Police (Scotland) Act 1967. Constables must perform their duties subject to the directions of chief constables, and chief constables must comply with all lawful instructions, in relation to the investigation of offences, from the appropriate prosecutor.

The Lord Advocate takes the view that it would be inappropriate to have different powers and periods of pre-charge detention in Scotland from the rest of the UK in terrorist investigations and, in considering appropriate guidance to chief constables in the Scottish context, he would want to maintain a consistent position north and south of the border, as far as possible. His officials would expect to work closely with Home Office officials on the preparation of a code of practice for England and Wales and any equivalent guidance to be issued by the Lord Advocate in Scotland. For those reasons, we are not tabling amendments at this point, but I can give a firm guarantee that the appropriate codes and their equivalent will be brought forward.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary will remember that last week we discussed the possibility of altering the rules about interviewing detained people after charge so that it facilitated inquiry after charges had been brought. Will that be part of the subject matter of the codes that he is bringing forward and, if so, does not it have some bearing on the total length of time for which we may need to detain people?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not expect that aspect of the code to deal with the particular point that we debated. Unless I have misunderstood the hon. Gentleman, I think his position is that we need, because of the particular situation of a possibly extended period of pre-charge detention compared with existing detention, to have a different approach to PACE in certain regards. I shall say later—

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I shall give way when I have finished what I was saying to the hon. Gentleman.

The question of judicial scrutiny is important and becomes more and more pressing at each stage of the process, as time moves on, and the judge needs to deal with that directly as we move forward. I am ready to have discussions on that point, too. The proposal is not designed to address the issue of questioning pre and post-charge that we have already discussed.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

That is an extremely important point, which was twice raised by Mr. Hayman in his letter. It was raised during the Privy Council briefing that the Home Secretary organised for the Leader of the Opposition and me. The question of interview post-charge has clearly had a major effect on the attitude of the police to charge and to the proposal that we are discussing. It is clearly the case that if we alter the ability of the police to interview after charge, it will open up to them much evidence and procedure that will act to stop terrorism. Can the Home Secretary please give the House an undertaking that he will put that in process?

Photo of Charles Clarke Charles Clarke Home Secretary

I agree with all that and, as I said to the House both on Second Reading and in Committee, we think the case for the right hon. Gentleman's point is well made. Application of the procedure that he set out may mean that it would be less necessary in a given case, and thus there would be fewer cases where there was an extended period of pre-charge detention. The key point, however, is that it does not remove the need for pre-charge detention in certain circumstances, although I agree that the number would be limited. Nevertheless, I accept the integrity of his point; the view is shared across the Government that we need to achieve the state of affairs that he described. It is none the less important to note that there are implications for other aspects of the conduct of our legal process and they, too, need to be considered.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

We have heard a lot about the views of the police on the extension of the detention period. Given that my right hon. Friend cannot tell us what the Attorney-General has told him, has he spoken to the Director of Public Prosecutions? The Solicitor-General, who has responsibility to the House for the views of the Crown Prosecution Service, is sitting next to my right hon. Friend. What are the views of the DPP about the 90-day period? Secondly, given that the provision will disproportionately affect members of the Asian community, what steps will my right hon. Friend take to ensure that when the police have those additional powers they will engage fully, at a local level, with the Asian community?

Photo of Charles Clarke Charles Clarke Home Secretary

I can give my hon. Friend the specific assurance that he seeks on his first point: the CPS strongly supports the proposed extension to 90 days. I have said that throughout the debate, because the experience of prosecutors intimately involved in such difficult cases has led them to the same conclusions as senior police officers involved in the process. That is their clear and unequivocal position, explicitly and directly.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I want to finish answering my hon. Friend's question. His second point was very important. Without any encouragement from me, the police, over a period of 10 to 15 years—perhaps since Scarman, perhaps for even longer—have been working extremely hard to transform their relations with various minority ethnic communities in particular cities. Obviously, that is patchy and there are areas where not as much has been done, but some of our great metropolitan forces have made massive strides in developing relationships between operational policing and particular communities that did not exist previously. Moreover, the major faith leaders, nationally and locally, in most of our communities—not all—are working hard to find ways to co-operate in addressing the issues on a basis of respect for different faiths. To be candid, the comparison that was made earlier with current events in France is utterly unhistorically based when we consider our achievements in the UK.

I agree with my hon. Friend that we need to re-intensify our efforts to ensure that police relationships with various ethnic minority communities and faiths are substantial and real in every community in the country. Much work is already going on, but I can give him an assurance, without qualification, of the key importance of that point.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

The Home Secretary was right to seek the views of the CPS in England and Wales, and it is right that the House should listen to them. Having done so, however, why did not he seek the view of the Lord Advocate with regard to the necessity and workability of 90-day detention in the context of Scots law?

Photo of Charles Clarke Charles Clarke Home Secretary

I set out as clearly as I conceivably could the precise process that we followed in trying to obtain those views. That was the right approach. I set that out both in what I said earlier and in the letter that I sent to Members of Parliament from Scotland. I believe that we have gone about things in the right way and we are establishing properly based legislation for the whole United Kingdom.

Photo of Menzies Campbell Menzies Campbell Shadow Secretary of State (Foreign Affairs)

May I take the Home Secretary back to the issue of the Lord Advocate? From what he told the House a moment or two ago, it appears that the Lord Advocate's view is that the period should be the same both north and south of the border, and that the authorities in Scotland should co-operate with the authorities in England, but it does not appear that the Lord Advocate endorsed the principle of 90 days. Is that correct?

Photo of Charles Clarke Charles Clarke Home Secretary

The Lord Advocate endorsed the view that it should be the same north and south of the border, as the right hon. and learned Gentleman said—[Interruption.] That is the case. Our proposal is that there should be a 90-day period south of the border, so the Lord Advocate thinks that there should also be a 90-day period north of the border.

A

Now that's just evasive logic, aint it?

Submitted by Adrian Nash

Photo of Alex Salmond Alex Salmond Parliamentary Leader (Westminster), Spokesperson (Constitutional Affairs; Treasury), Leader of the Scottish National Party

How has it transpired that the Lord Advocate, Scotland's senior Law Officer, expressed to the Home Secretary the view that the period of detention pre-trial should be the same north and south of the border, but at no stage in that correspondence or discussion expressed a view about how long that period should be? Does not the Home Secretary accept that many of us find that an incredible state of affairs?

Photo of Charles Clarke Charles Clarke Home Secretary

I am always ready to accept that the hon. Gentleman leading the Scottish National party finds things incredible, but the fact is that I do not think it is incredible; it is a perfectly reasonable state of affairs.

Photo of Charles Clarke Charles Clarke Home Secretary

I will give way later.

Amendment No. 63, tabled by my hon. Friend Rob Marris, addresses an important point that a large number of people have raised with me—compensation in the event that someone was held incorrectly. The amendment provides that those held for more than 14 days and released without charge should be entitled to compensation. That is my hon. Friend's principal proposal.

I have much sympathy with the idea, but there are some issues regarding its implementation. Thus far, we have never paid compensation, other than in cases involving malpractice, to people tried and acquitted, even though they may be held in custody for far longer periods than we are considering in these circumstances. We may or may not agree with the justice of that position, but it has been the case for a long time. We need, therefore, to consider carefully the precedent that we might set if we agreed to the amendment. However, I accept, first, that my hon. Friend is making a serious point and, secondly, that by hypothesis we would be dealing with a very small number of cases indeed—the very small number of cases where people are held, say, for more than 28 days pre-charge and within that group the very, very small group of people who were wrongly held and subsequently not charged. For that reason, because the provision would apply to such a small group of people, I am prepared to look carefully at my hon. Friend's suggestion and will report back to him and the House as soon as I can. I hope that he will understand that we need to take the operational implications fully into account, so I cannot give him an unequivocal commitment at this stage, but on the basis of that proposal, I ask him to consider withdrawing the amendment.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood 2:00 pm, 9th November 2005

I want to take my right hon. Friend back to the point about interviewing a person who has been charged already. My understanding is that, under existing arrangements, if new and significant evidence becomes available, it is possible for the police to apply to re-interview. Is that not the case? Does that not cast some doubt on the case for 90 days?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not think that it casts any doubt whatever on the case for 90 days, but my right hon. Friend stated the situation quite correctly. I have just checked with my colleagues—

Photo of Charles Clarke Charles Clarke Home Secretary

Some colleagues have a wonderful tendency not to allow me to answer my right hon. Friend—which I will. I shall then consider—I make no commitment—the merit or otherwise of giving way further. Let me try to answer the question that she fairly raises with me. She is fundamentally right in her analysis that it is possible in certain circumstances to re-interview. She is also right in that the Government are considering whether such circumstances could be—[Hon. Members: "We cannot hear."] I beg hon. Members' pardon.

My right hon. Friend is also right in that we are looking carefully, as I have told Opposition Members, to extending the case more widely. She is also right in her implication that, if we were to succeed in doing that, it might reduce the number of people whom we had to hold in pre-charge detention for longer than the current period. All those points are correct. They do not, however, obviate the central point that, even all that said, there will still be cases where it might not be possible to operate in that way. That is why the power that we seek is needed.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

Would the Home Secretary care to comment on the view that has been expressed to me on the questioning of suspects after charge by Professor John Spencer, QC, who is one of the leading experts on the law of criminal procedure in this country and, indeed, throughout Europe? He says that the so-called

"rule that suspects may not be questioned after charge is one that has no clear legal basis, whether in statute or case-law."

He goes on to say that the only possible basis that he can think of is the existence of paragraph 16.5 in PACE code C, to which he refers, and that the conclusion that we must draw is that the power already exists, without primary legislation, for the Home Secretary to create a situation in which terrorist suspects can be questioned after charge, so this part of the Bill has no point whatsoever.

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. Gentleman totally misses the point. It is necessary, even under the PACE code that he describes, that a charge should be in place to go through that process. The hypothesis that we are discussing is that, in a number of cases, there is no possibility of charging on a short-term basis.

I want to move on to the central question of this part of the debate: amendments Nos. 1 and 33, which deal with the length of time for which an individual can be held. That has been a subject of massive debate in the country and in the House. We debated it last week. I said in the House that I thought it important to try to get consensus in the House, and that has been my approach throughout.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

The Prime Minister has sought to make this debate a simple matter of party politics, something with which some of us do not agree. Does my right hon. Friend recall that, when he gave undertakings in the House to find a consensus, we understood that it would be not just with Opposition parties, but that he would seek a consensus of which we on the Labour Benches who had some objections and concerns would become part? I put that to him before he goes on with his prepared speech.

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend makes two points, one of which I do not accept and the second of which I do accept. I simply do not accept her description of the Prime Minister's motivation in terms of party politics. I do not think that it is accurate; I do not think that it is his personal motivation; and I certainly do not believe that it is the Government's motivation. As I said on Second Reading, in Committee and at other times, the question that all Members must address is how can we do our duty as Members of Parliament in dealing with the national interest and national security.

I do not doubt for a second that these are difficult questions for all of us—for my hon. Friend, for myself and for every other hon. Member—but I do not believe that we have at any stage taken this issue from the point of view of party politics. Some have interpreted it that way. We have only to look at the media on any day of the week to see that they provide a prism through which they say that all this debate is about party politics in some respect or another. I have tried personally, when interviewed on the media, to rebut that suggestion because I do not think that it is true. I do not mean that I think that it is right but not correctly done; I think that it is an inaccurate description of the state of affairs.

I now turn to the point about consensus, about which my hon. Friend asks me. I believed and hoped as late as last Thursday that we could achieve a consensus with the main Opposition parties about the length of time that should be used. I also agree with her point that I was talking about consensus with Labour Members as well as with the Opposition parties on this question. That is what motivated me in the way that I operated. She may recall—I think that she will—that I asked every Member of the House to go back to their constituencies last weekend and take the view of their constituents, talk to them and ask their police and whoever else about these questions. I hope that she would agree that many Members have done precisely that: they have gone back and talked to people—I am sure that she is one of those who have done just that—and everyone will make their judgments on that basis.

When I had the meetings with the leadership of the Opposition parties at 11 o'clock last Monday morning in my office—I do not think that the hon. Members for Hornsey and Wood Green (Lynne Featherstone) and for Beaconsfield, who were present for the Liberal Democrats and Conservatives, would contest this—they said that for their part there was no circumstances under which they would consider extending beyond 28 days the amount of time for which detention might operate. That was their considered view. There was a discussion about the period between 14 and 28 days. I was of the view, which has been my view throughout, that 28 days is not long enough to deal with the police case that we have, but I was ready to entertain discussions of a shorter period that could arise. I said that publicly in a variety of circumstances.

Photo of Charles Clarke Charles Clarke Home Secretary

I shall give way when I have finished what I have to say on this.

I then came to consider the best way to deal with this situation, and the view that I came to was that there ought to be three key areas in which I ought to try to respond to the House, the first of which is the whole area of scrutiny, which we have been talking about already: the role of the High Court judge, the PACE code and the various safeguards in place, which are changes from the position when I was speaking in the House last Thursday.

The second group of issues are those that we will debate later this afternoon relating to intent, glorification and the definition of terrorism—the range of issues that my right hon. Friend Mr. Denham particularly was pressing from our side of the argument and, in fairness, which were expressed by a number of hon. Members on both sides of the House. I felt that I should try to respond to those points, and I believe that we have done so today, although they will be debated later in the process.

Finally, against all my best instincts—I am not a great fan of sunset clauses in general—I thought that the way to deal with the uncertainty that my right hon. Friend Clare Short and many other Labour as well as Opposition Members have about the length of time was to say that there would be a period, 12 months, after which clause 23 would run out and the House would decide, on the evidence and on the basis of what had happened in those 90 days, whether or not it should be extended. I am ready to commit, and do commit, to a report to the House on the operation of the law on the 90-day period when the House has to decide it.

Photo of Charles Clarke Charles Clarke Home Secretary

I will give way in my own time. I have seen the hon. Gentleman, who is a very persistent popper up and down, which is very nice.

First, on reporting to the House about the operation of the 90-day period, I commit to do that so that every hon. Member can consider it. Secondly, at the behest of my right hon. Friend the Member for Southampton, Itchen, I have agreed that Lord Carlile should conduct a review of the definition of terrorism within that year, so that that conclusion would also be considered by the House when it comes to that point. Thirdly, as the House already knows, not as a result of this process, Lord Carlile will report on the operation of the control order regime during the course of that year, so that we can have a discussion in the round on those questions.

The view that I came to—perhaps it is the wrong view, or not; people will have their own view—was that that approach was a better way to address people's concerns than by introducing another figure, and I shall tell the House why. Many hon. Members on both sides of the House told me to avoid, if I possibly can, a Dutch auction of the numbers that are being pushed around in different areas. Some say 42 days; some say 60; or whatever it might be. I thought that that was quite a powerful point, and I thought about it over the weekend. I am also aware that many hon. Members came back after those consultations saying that we should take the 90-day period. That is how I got to the position where I am now. It may not satisfy my right hon. Friend the Member for Birmingham, Ladywood, but I hope that she will accept that I have tried hard to fulfil what I said on that occasion.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is right that at Monday's meeting I said to the Home Secretary that our position continued to be that 28 days was the limit of what was acceptable. The Home Secretary indicated that he would incorporate several concessions in the Bill and told those present that he would table an amendment to determine whether a period between 28 and 90 days could form the basis of a compromise. I should be grateful to know why that proposal disappeared during the six hours that followed. There was never any suggestion that it was linked to the other concessions that he was making. When I spoke to him, it appeared that it would be part of a total package that we could consider—so what happened to it?

Photo of Charles Clarke Charles Clarke Home Secretary

I am glad to set the historical record straight. I think that the hon. Gentleman will concede—he will correct me if I am wrong—that at no point during the meeting held in my office last Monday morning did any representative of the Opposition parties raise the idea of a sunset clause or a review—[Interruption.] I beg your pardon, Madam Deputy Speaker. The matter was raised on the Floor of the House, but not during that conversation.

I said to the Opposition parties that morning that I would spend the rest of the day talking to colleagues in the House to test their opinions. I personally attended at least three meetings of Labour Members at which we discussed their views of the state of affairs. A lot of people put their views strongly, but there was not unanimity. Some people strongly felt that we should support the police and go for 90 days, while others strongly felt that the period should not be extended at all. We had frank discussions.

After those meetings and discussions, I had to come to a view on the best course of action to follow, which I did at about 8 o'clock that night. I went for the option of putting the sunset clause before the House because it seemed to be the best way of addressing the matter and enabling all hon. Members to examine the practice of the system and reach a view on how to take things further forward.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

In that recitation of what happened on Monday, the Home Secretary conveniently overlooked the fact that after the meeting with my hon. Friend Mr. Grieve and the spokesman for the Liberal Democrats, he told the media that he would be tabling an amendment to provide for a shorter period of detention. How long did the Prime Minister have to detain him before he decided not to proceed with that amendment?

Photo of Charles Clarke Charles Clarke Home Secretary

The right hon. and learned Gentleman is entirely correct that I did say that to the media after the meeting. He is also entirely correct that I was present at the meeting of the parliamentary Labour party meeting that the Prime Minister attended at which precisely these questions were discussed. I will address the question of detention that the right hon. and learned Gentleman raised with the Prime Minister earlier today. I can give him the example that he seeks from evidence given by Peter Clarke to the Joint Committee on Human Rights.

To answer the right hon. and learned Gentleman's earlier question, I shall quote what Deputy Assistant Commissioner Peter Clarke said about whether the time period would make a difference. DAC Clarke said that he could point to a particular case as an example of terrorists evading justice because of the lack of such a provision. He said:

"had we had this provision in 2002, the outcome of a recent court case, the so-called ricin trial, might have been very different. Mohamed Meguerba was one of the suspects in that case and it is likely that we would have held him or applied for his detention for sufficient time to find that his fingerprints were on the ricin recipe and he would have stood trial as a main conspirator in that case had he not fled the country. As it was, he was not available to stand trial and so the jury were not able to benefit from his presence in the court. I cannot say whether the jury would have come to a different decision"— of course he could not—

"but I think it would have been possible for the prosecution to present the case in a way which was easier for the jury to understand".

That is a compelling argument that 90 days might have made a difference and allowed things to be dealt with far better.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

The Home Secretary will know that I originally raised this matter with the Prime Minister months ago. I asked for a briefing to test whether, if a 90-day period had been in force, it would have led to the apprehension of people who could not otherwise have been apprehended. The Home Secretary must know that the case to which he refers does not in any way justify the 90-day period. The evidence did not take 90 days to materialise. Will he now confirm—the Prime Minister refused to do so earlier today—that there is not a single case to which the police or anyone else can point in which evidence that became available 80 or 90 days after arrest was sufficient to charge the person who had been arrested?

Photo of Charles Clarke Charles Clarke Home Secretary 2:15 pm, 9th November 2005

It is striking that the right hon. and learned Gentleman makes his point in such a way. He is right in one essential respect: we tried to work with him and his colleague, David Davis, over the summer to address these questions. He is right that we organised a briefing on Privy Council terms to consider such questions for him and his right hon. Friend. He says that he is not convinced by the case. He is entitled not to be convinced by the case—that is his right—but I believe that the case put by DAC Clarke to the Joint Committee on Human Rights was a powerful and effective argument for a 90-day provision.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

Like many hon. Members, I have not been party to any of the discussions since last week, about which I make no complaint whatever. The Home Secretary's comments a few moments ago suggested that his approach to other parties and his Back Benchers was made on the basis that the Government were sticking to 90 days, but asking whether they could get 90 days so long as they improved judicial review, or added a sunset clause. In other words, they were saying, "Take the pill; we'll try to put some sugar on it." However, although he has cited one case—I shall not go on about that because I am making an intervention—he has not addressed the fundamental case. If it is to be the rule that after people have been held for 14 days and there is still no evidence to justify charging them they may be held for 90 days, what is the argument for 90 days? He says that he deplores Dutch auctions, but the time period—three months in all—seems to have been plucked out of the air. A man could be repeatedly questioned during that time in the hope that something would turn up that would enable him to be linked with a terrorist plan.

Photo of Charles Clarke Charles Clarke Home Secretary

I give credit to the right hon. and learned Gentleman for his consistency because he made that argument in Committee, too. He also voted against the Bill on Second Reading, as he was entitled to do. My answer is the same argument that has been put through the whole of the debate. There is a compelling case for extending the current 14-day period.

Several hon. Members:

rose—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. It is entirely in the gift of the Home Secretary to decide whether to give way.

Photo of Charles Clarke Charles Clarke Home Secretary

The police and the prosecution service have come clearly and unequivocally to the view that in their professional judgment 90 days is the appropriate time. The suggestion of Mr. Clarke that the police and the prosecution service have simply plucked some figure out of the air is utterly wrong. The reason the Prime Minister asserted today during Question Time

Photo of Charles Clarke Charles Clarke Home Secretary

I will give way in my own time, when I have made my own argument, to the people to whom I think it is worth giving way. [Hon. Members: "Ooh!"] There we are; that is what I will do—I think that that is called parliamentary democracy, Madam Deputy Speaker.

I am making the point simply and straightforwardly that we should take the professional judgment of the police, who actually deal with situations such as the one at Russell Square tube station, and the advice of the prosecutors extremely seriously.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I give way to Mr. Llwyd, who was another participant in the Monday meeting.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I was grateful to the right hon. Gentleman for agreeing to meet me and my hon. Friend Stewart Hosie on Monday morning. He said earlier that he was not in favour of a Dutch auction, having thought about the matter at the weekend, but he gave all those present at the meeting on Monday the clear impression that he would table an amendment to provide for a shorter period of detention. Indeed, some of us were surprised that such an amendment was not tabled that day. When was he overruled by the Prime Minister?

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. Gentleman is entirely wrong. I said I would continue to consult for the rest of the day, which I did, and I then tabled my amendment.

Photo of Chris Mullin Chris Mullin Labour, Sunderland South

With great respect, my right hon. Friend has been misled on the ricin case, because the individual who fled the country while on bail was released by the police after two days in custody, not after 14 days. It cannot therefore be argued that they could have charged him if they had been able to hang on to him for 90 days. Will he confirm that that is the case?

Photo of Charles Clarke Charles Clarke Home Secretary

I can confirm that that is the case, but the specific example I gave demonstrates that there are cases in which the police, when making a judgment about whether to charge someone, can reach a decision that, in my opinion, is damaging to the course of justice.

Photo of Tony Wright Tony Wright Labour, Cannock Chase

It is not just the police and the prosecution authorities who support the Government's position but Lord Carlile

Photo of Tony Wright Tony Wright Labour, Cannock Chase

I should have thought that the name of Lord Carlile would have some resonance among Opposition Members. He is the independent reviewer of terrorism legislation, and he said that there should not be a Dutch auction in Parliament on the numbers, which is exactly what is happening. He also said that

"as a maximum three months is probably a practicable and sensible option, all other things being equal."

Is that not a judgment to which we should give considerable weight?

Photo of Charles Clarke Charles Clarke Home Secretary

In my opinion, it is. Lord Carlile also said:

"I am satisfied beyond doubt there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".

Lord Carlile has played an admirable and outstanding role, despite being a Liberal Democrat, in seeking to get terrorism legislation into a coherent form. We should take seriously everything that he says, which is why I have tabled a number of amendments on Report to try to meet some of his concerns. It is incumbent on others, particularly Liberal Democrat Members, to look at what he says in the round and to act accordingly.

Photo of John Denham John Denham Chair, Home Affairs Committee

May I caution my right hon. Friend not to overstate his case? I do not question the integrity of the police in proposing 90 days, and they may well have a good case. However, according to documents released to the Home Affairs Committee, when the Government agreed to support the 90-day proposal, they had received only two documents from the Association of Chief Police Officers—the ACPO press release of 21 July and a two-page summary of two difficult cases, neither of which is analysed to provide a case for 90 days. It would be better if my right hon. Friend did not overstate the strength of his case, and would he not have done better to ask the police to provide a more substantial report before making a decision?

Photo of Charles Clarke Charles Clarke Home Secretary

I accept part of my right hon. Friend's rebuke, as it is important not to overstate the case. However, it is also important not to understate the case. It is important to understand all sides of the case. I have tried throughout—whether successfully or not, others will judge—to put the case in a balanced way and to respond to the debate. I shall continue to do so, but I take my right hon. Friend's point that it is important to address all these things in the round, which is one reason why I decided that a sunset clause—generally, I do not support such provisions—was an appropriate way to proceed and would allow a detailed assessment of the measure by the Home Affairs Committee and others.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour, Ogmore

Over the weekend, I sought the views of South Wales police and had a detailed discussion about the measure with them. They have no interest whatsoever in obtaining those powers for themselves, even though that is how the debate has been played. They are reassured, however, that the powers are in the hands of the judiciary, who will oversee the process and review it every seven days or sooner. I acknowledge what my right hon. Friend the Member for Southampton, Itchen said, but South Wales police are convinced that there are rare circumstances—we hope, however, that we will never have to use the measure—in which 90 days will be required. I urge my right hon. Friend the Home Secretary to consider that view, and not to backtrack too easily.

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful to my hon. Friend, and I should like to pick out a couple of points. First, he used the word "rare". We are talking about a very small number of cases indeed, but by hypothesis we are trying to deal with some of the most dangerous people in the world. Secondly, we have not made as much of judicial oversight as we should have done, but we should address the powerful issue of a High Court judge reviewing the detention either every seven days or on the more flexible basis that I set out. It is very important indeed that we look at this in a balanced way, which is another argument for the sunset clause—something to which, as I said, I am not usually sympathetic.

Several hon. Members:

rose—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The Home Secretary has been generous in giving way, but I urge hon. Members to make brief interventions, as we have a time limit on the debate.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I have attended meetings with the police, and have paid attention to the Hayman review. However, why do the British police need that period, when police forces across Europe—I discount the example of France, because the French cannot teach us much about law and order at the moment—have not taken such powers, even though other countries, particularly Spain have experienced similar problems?

Photo of Charles Clarke Charles Clarke Home Secretary

The fact is, we have very different legal systems, which is why it is difficult to make comparisons. However, to use the example of France, this morning I spoke to Lord Carlile, who had had a conversation with a judge in Paris about that very question. Following a low-level charge—association with "malfaiteurs" or something similar—there can be an investigation of up to four years. Those are the comparisons that we need to make.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I will give way to three more Government Members.

Photo of Joan Ruddock Joan Ruddock Labour, Lewisham, Deptford

I am extremely grateful to my right hon. Friend. Can he confirm whether, in the past 18 months, people held for 14 days under existing terrorism laws have been charged in all cases, and that no one has been set free after being held for that period? Have individuals who have been charged after 14 days been satisfactorily charged? If so, would not 28 days have been a good extension to offer?

Photo of Charles Clarke Charles Clarke Home Secretary

I understand the case that my hon. Friend is making, and the facts that she cites are correct. In one case, a serious situation could have arisen near to the end of the detention period. I draw her attention to Lord Carlile's assessment of the argument that she made, and his conclusion that 90 days is appropriate.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Earlier, my right hon. Friend referred to the evidence of Mr. Clarke to the Joint Committee on Human Rights. Mr. Clarke emphasised, however, that we are talking about a maximum period of three months:

"I certainly would not envisage the three months becoming the norm."

He also stressed the strain on police officers, who were

"sleeping on the floor, not going home, just ploughing their way through this vast amount of data".

Those officers

"would rather serious criminal investigations were conducted in a slightly calmer and more ordered atmosphere than that."

Without an extension, could the present situation not lead to a miscarriage of justice, because the police cannot investigate properly or effectively, and are unable patiently to work their way through the evidence?

P

As I understand the term, a "miscarriage of justice" is something that can only happen when someone is improperly convicted of a crime in a court. The hon. Member for Hendon is being disingenuous when he suggests that the inability of the police to gather enough evidence for a charge, however long they have, could ever give rise to such an evil.

Submitted by Paul Mitchell

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is correct, and I am grateful to him for expressing it that way. His point about miscarriages of justice is central to our discussion.

P

Absolutely, Mr. Clarke. You should avoid doing anything that could possibly create any.

Submitted by Paul Mitchell

Photo of Patrick Hall Patrick Hall Labour, Bedford

My right hon. Friend has been challenged strongly by the Leader of the Opposition and others for not tabling an amendment today proposing a detention period of fewer than 90 days but more than 28 days. Is not the real political point, however, the fact that the Opposition parties have already stated in principle that they would not support a detention period of more than 28 days, irrespective of the case made by the police?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is right. I am not sure whether the phrase "challenged strongly by the Leader of the Opposition" is a contradiction in terms, although that may change after the Conservatives sort out their leadership.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Is it not important to understand that at the end of the 14-day initial detention period, in no circumstances will there be any application for further detention beyond seven days, and that judicial oversight then kicks in? In the debate we seem to have become fixated on the maximum period and to have ignored the importance of judicial oversight throughout the process.

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is correct and he makes the point accurately. I agree. Perhaps it is my fault that much of the debate has focused on the maximum period, rather than on the process of ensuring that the maximum is not reached.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I shall make some progress, but before I conclude I shall give way to one or two of those who want to intervene.

I emphasise, as I said on Second Reading, that we are dealing with a very different threat now from the one we faced in previous decades. Recent terrorist plots have been designed to cause mass casualties with no warnings—I emphasise, no warnings, sometimes using suicide and with the threat of chemical, biological, radiological and nuclear weapons.

Some hon. Members have commented that terrorist cases are no more difficult to prosecute than complex fraud cases, but I argue that there is a very substantive difference between the two. In complex normal cases, the police may build a case before arresting an individual. It may also be possible to catch criminals red-handed in the act of committing a crime such as fraud, as the repercussions are not so great if the crime is committed. The need to ensure public safety by preventing mass casualty attacks that could be catastrophic in their effect means that it is necessary to make arrests in terrorist cases far earlier in the process than in other cases. That often means that much less evidence has been gathered at the point of arrest, so more time will be needed to gather sufficient evidence to charge a suspect.

Moreover, terrorist networks are often international, which means that highly complex inquiries have to be undertaken in many different jurisdictions. I remind the House again of the investigations into the events of 7 and 21 July, which yielded 38,000 exhibits that filled two warehouses, and so on. Terrorist networks are also now highly capable of using technology. In recent cases a large number, sometimes in the hundreds, of computers and hard drives have been seized. Much of the data on such computers and hard drives have been encrypted and take time to decrypt. The data then need to be analysed to incorporate the outcome of that analysis into an interview strategy.

Following the debates in the House and the request from hon. Members in all parts of the House for more substance, over the past few days I have consulted advisers from the National Technical Assistance Centre, whose experts deal with the hardest and most important decryption jobs. Their advice has been unequivocal. A 14 or even 28-day period will not allow them the time they need adequately to investigate the most heavily encrypted data. They have made it clear to me that the use of advanced encryption technology by those who pose a threat to law and order or the security of the country is becoming more widespread and is growing rapidly. Encryption is more pervasive, more complex and easier to use than ever before.

That poses a significant challenge to police and investigators on two fronts. First, it means that even sifting the evidence to identify which computers require specialist investigation and decryption usually—the experts' word—takes a number of weeks. Each computer must be examined to assess what data can be easily gleaned and where heavyweight code-breaking is required.

Secondly, even after the protected data sources have been identified, significant additional time may be needed to decode potential evidence. NTAC has advised me that this is an extremely challenging and time-consuming task, running in the majority of the hardest cases into weeks at the very least, and often even into periods of months. Taking all this together, the technical judgment of the professionals is clear and simple. They need more time to be able to deal with such challenges. We must honour that.

Forensic requirements, too, are more complex and more time-consuming. My right hon. Friend Mr. Battle made a tremendous speech last week about the bomb factory in his constituency and the issues raised by that case. We should take seriously the professional advice of the investigators, the police and the prosecutors about the time needed to enable investigators to reach conclusions.

I shall give way now for the last time, then I shall wind up.

J

I guess if you say something enough times, it becomes true:

"I emphasise... that we are dealing with a very different threat now from the one we faced in previous decades. Recent terrorist plots have been designed to cause mass casualties with no warnings..."

Meanwhile, back in the real world of the historical record, there is the Omagh bombing:

http://news.bbc.co.uk/1/hi/northern_ireland/151985.stm

An atrocious act which the politicians consciously decided would not herald the rolling back civil rights and police accountability in Northern Ireland, since it would not more towards the objective of peace and security there.

Submitted by Julian Todd Read 2 more annotations

Photo of Ann Cryer Ann Cryer Labour, Keighley

Has my right hon. Friend had a discussion with the chief constable of west Yorkshire about how he and his force will handle the potentially difficult situation following the arrest of, say, someone in Bradford and the 90 days before charge? The family of that person, his biraderi and his community will have no explanation why he is being held. That could prove extremely difficult. What advice would my right hon. Friend give the chief constable in that situation?

Photo of Charles Clarke Charles Clarke Home Secretary

I have had such conversations, and that goes partly to the answer that I have to my hon. Friend Keith Vaz in response to his intervention. I am glad that on 7 and 8 July and the subsequent weekend, there was a substantial programme of discussions between the police and the various communities in west Yorkshire, which were particularly affected. That was extremely impressive. I spoke to many people at the time who were committed to discussing exactly the question raised by my hon. Friend Mrs. Cryer with the communities from which the individuals came and which were most affected, in the same way as the issues in other cases were raised in Gloucester and other parts of the country. There is only one answer: intensive discussions between the police and the local community, local community leaders and local faith leaders. I say with humility that I do not need to give advice on that to, for example, the west Yorkshire force, because I believe it is committed to doing it, but my hon. Friend is right to say that if we make the changes here, it intensifies the need for such discussions.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central 2:30 pm, 9th November 2005

On community involvement, does the Home Secretary accept that if the legislation is passed, it will harden support within communities surrounding terrorist cells, because it will turn people into martyrs? Undoubtedly, people will be detained on a week-on-week basis, released and found to be innocent. They will go back into those communities and say, "Look, this is the sort of state we are talking about and working against." Surely it will be hugely counter-productive.

Photo of Charles Clarke Charles Clarke Home Secretary

That is a serious point, to which I want to give some time. What my hon. Friend says is utterly wrong. It is totally wrong. If one talks, as my hon. Friends and I have done, to Muslim communities throughout the country, one finds that they are absolutely clear without equivocation that they want no part of this terrorism, they want no identification of the terrorism with what they do, and they want to take that forward. If my hon. Friend takes the trouble to examine the responses of even the families, let alone the families and friends, of those directly involved in the events of 7 July, he will see that many of those individuals were deeply shocked and felt betrayed. It is not true that the action that might be taken gives rise to the kind of threat that my hon. Friend describes.

C

Except that terrorist acts aren't carried out by the majority of the community, or by the leaders who presumably Mr Clarke spoke to, but (thankfully) by an alienated minority. The question is : will wrongly locking someone up for 90 days increase or decrease the size of this minority?

Submitted by Chris Lintott

Photo of Chris McCafferty Chris McCafferty Labour, Calder Valley

We have heard a great deal in the debate, rightly, about the issues and the implications for the police. What we have not heard in the debate are the issues and implications for the families of those who may be detained for up to 90 days. What are the financial implications? The people who are detained may be innocent. My right hon. Friend mentioned the possibility of compensation, but that does not help the families while they are living through the 90 days. The person detained may be the only breadwinner in the family, or the family may be on benefit. Has my right hon. Friend had discussions about those implications?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend makes a serious point. As I said in response to the amendment tabled by my hon. Friend the Member for Wolverhampton, South-West, there are many issues of the type that my hon. Friend Chris McCafferty raises, which it is important to address. That is why, in responding to the amendment, I committed myself to look carefully at how we deal with the question of compensation, including any hardship that might arise.

Photo of Richard Burden Richard Burden Labour, Birmingham, Northfield

I think that my right hon. Friend misunderstood the point made by my hon. Friend Mark Fisher. There is no doubt that Muslim communities stand four-square against terrorism, but there is also no doubt that a large section of Muslim youth, who are against terrorism, is profoundly alienated from the system, as it sees it. The co-operation of that section of Muslim youth in intelligence gathering is vital, and the danger is that the Bill will alienate it.

Photo of Charles Clarke Charles Clarke Home Secretary

I apologise to my hon. Friend Mark Fisher, if I misunderstood him. We have had discussions with the Muslim community, including a series of working groups to identify the best way to deal with the issues raised by my hon. Friend Richard Burden. I acknowledge that we must address the existing and potential alienation of young people from those communities.

I have been speaking for an hour, and, in the interests of debate, I shall not give way again, because I have been generous in giving way throughout. In conclusion, there are some people who argue that this has been a politically partisan exercise. I put it to the House that that is the opposite of the case.

Photo of Charles Clarke Charles Clarke Home Secretary

I have said that I will not give way any more.

It is the obligation of every hon. Member to understand the threats to national security and to equip our security forces with the ability to deal with that in the best and most protected way. Moreover, I say to all those who have doubts about the time period that the whole purpose of the sunset clause is to provide an opportunity carefully to analyse how the period has worked, so that this House and the other place can make a decision on that matter in a year's time, which will allow us to test the hypotheses and concerns that various individuals have genuinely raised. Even the putative leaders of the Conservative party should think hard about their responsibilities on such matters, too. [Hon. Members: "No!"] Yes they should, because they have ducked the issues, and the House should not duck its responsibilities now.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I start on a sad note, because the Home Secretary's comments about this not being a politically partisan exercise were undermined by his final remark. I am conscious that I am speaking on behalf of a party that has seen friends and colleagues murdered by terrorists. The names are familiar to all hon. Members: Airey Neave, Ian Gow and Anthony Berry. This party has first-hand experience of terror, so the House can draw its own conclusions when it faces silly and, frankly, contemptible accusations that any party, least of all mine, is soft on security.

The war on terror is, after all, a battle of hearts and minds. The Government have passed five terrorism Acts since they came to power—the Criminal Justice (Terrorism and Conspiracy) Act 1998, the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Criminal Justice Act 2003 and, finally, the Prevention of Terrorism Act 2005. Those Acts contain many worthwhile provisions, but none of them prevented the atrocities of 7 July, so let us not pretend that we can win the war on terror by passing every single law that the Government throw up. We will win the war by actually being tough, rather than just talking tough.

There is a lot that the Government could do. They could secure our borders by introducing a new border control force, which is something that we have often proposed, but they will not do it. They could fund the security services properly by scrapping plans for identity cards and spending the money on intelligence, but they will not do it. They could help to convict terrorist suspects by allowing the authorities to submit phone-tap evidence in court, but they will not do it. They could appoint one, single Minister to take control of our fight against terrorism, which has happened in other countries, but they will not do it.

We will take no lessons from the Government about being tough on terrorism, because they have failed to take on board many of our proposals, which, although our proposals were not especially innovative, would have brought us into line with the rest of the world. On the crucial matter before us today—the period for which a suspect can be held without trial—we want toughness that will work.

Like all hon. Members, we have been searching for a workable proposal and we welcome the Government's changes, which we proposed in many cases, such as better judicial scrutiny, new police and criminal evidence codes, which we hope—the Home Secretary did not address this point—will facilitate the interview of suspects after they are charged, and a clause, which is not a sunset clause, that requires the annual review of the legislation. It is right to point out that all those provisions were obtained only through parliamentary pressure from both sides of the House. The Government should also listen to what the House of Commons is saying about the duration of detention. On their own, those improvements to the Bill do not remove our responsibility to ensure that the detention is as limited in time as possible.

It is worth grasping what is at stake right at the start—the imprisonment of men and women without trial in the country that invented habeas corpus. We all accept that, when national security is imperilled, our instinctive support for civil liberties must be qualified and that detention without charge must sometimes happen. That means getting a difficult balance right, because if the period of imprisonment is too brief, the civil liberties of suspects may be protected, but the lives of innocent people may be endangered. If the period of imprisonment is too long, locking up people without charge risks becoming the first resort of the authorities rather than the last. In those circumstances, innocent people are imprisoned. We should remember that a 90-day detention is the equivalent of a six-month jail sentence, and the risks include not only an affront to justice, but a public backlash, in which case legislators' mistakes will become recruiting sergeants for terrorists. The House knows the serious consequences for our national security and our civil liberties if we get the balance wrong in any direction.

Photo of Adrian Bailey Adrian Bailey Labour, West Bromwich West 2:45 pm, 9th November 2005

Given that the British judiciary has demonstrated in the past that it is robust in defending human rights against Government legislation, does the right hon. Gentleman not think that the fact the whole process will be subject to judicial oversight after 14 days provides adequate procedural protection? If he does not think that, does he agree that the one-year sunset clause is a further failsafe device?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The answers are no and no.—[Interruption.] If John Mann wants me to give way, I will do so. He does not.

Think of the decision facing the judge when the police say, "We think that this person is a possible terrorist, but we have not got to the bottom of the evidence." Is that the test that we should use in this country to imprison people? I hardly think so. The sunset clause is actually a review clause. What will happen next year? The crisis and the political difficulties will have gone, and the provision will be rolled forward.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour, Ogmore

I thank my right hon. Friend for giving way.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I am not the hon. Gentleman's right hon. Friend.

E

Might someone explain this?

Submitted by Edward Bell Read 1 more annotation

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour, Ogmore

My apologies. The right hon. Gentleman suggested that the provision could become the first resort of the authorities, but once again, a Conservative Member is painting a picture of a police state. The provision will include judicial oversight by High Court judges. Is he suggesting that the judiciary will use the provision like a police state, because my right hon. Friend knows that that is preposterous?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The hon. Gentleman will start terrible rumours if he is not careful.

The initiative will lie with the police. When the Cabinet Office gave me a Privy Council briefing on the matter, I expressed my concern that the provision will take the pressure off the police to resolve situations quickly. After all, even 14 days is a damaging experience for someone who is innocent, so 90 days is an enormously damaging experience that could wreck lives, ruin jobs and destroy relationships. We must understand that this is a fundamental British freedom that should not be thrown away lightly.

We recognise the Government's difficulties on this. It is of course a matter of judgment. We acknowledge that the world has changed since the IRA halted its terror campaign. New technology brings new security challenges. As the Home Secretary said in relation to the National Technical Assistance Centre, the police and security services need more time to scour CCTV footage and to crack encrypted messages. The international dimension of Islamist terrorism also brings new challenges. That is why my hon. Friends made it clear in Committee that we agree with the Government that the current 14-day limit is too brief and propose its extension to 28 days. I believe that that proposal will find widespread support among Members around the House, including on the Government Benches. But the proposal before the House is not ours but the Government's. The Government propose a full 90 days. The House must therefore ask itself this question: have Ministers made a robust, convincing and evidence-based case, not for an extension, as there is a case for that, but for 90 days? I do not believe that they have.

Photo of Kate Hoey Kate Hoey Labour, Vauxhall

Does the shadow Home Secretary agree that sometimes even Metropolitan police commissioners can get it wrong, as happened in my constituency recently when someone was shot at Stockwell tube? Local people were told for some time that that person was a terrorist, but we then found that everything was absolutely wrong—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I am afraid that that matter is sub judice.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I will not talk about that particular matter, Madam Deputy Speaker, but the hon. Lady makes an important point. There have been well over 800 arrests for terrorist offences in the period since 9/11, yet in that time only between 20 and 30 convictions have been obtained. There is great scope for error here. The fact that this is a very difficult area of policing, as the Home Secretary said, makes the risk of error even greater.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

We heard last week that 28 days was at the outer limits of what would be acceptable under the European convention on human rights. Does the right hon. Gentleman agree that we should have the written opinion of the Attorney-General before we proceed?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I will call the hon. Gentleman my hon. Friend if he is not careful. If he waits for a moment I will come to that point.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

It is of course correct that this is an extremely difficult issue, but 90 days was proposed because the police made the initial request. Why is the right hon. Gentleman rejecting the police's request for 90 days and trying to impose his own arbitrary deadline of 28 days?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The point was made best by the Chairman of the Home Affairs Committee, Mr. Denham, who said, quite rightly, that while a case for some extension had been made, there had been no attempt at all to quantify it. I have been through Mr. Hayman's evidence in some detail. The only quantification concerns a fictional case, not actual cases that have been presented, or might have been presented, to the courts. That includes the case to which Mr. Mullin referred, in which the suspect went off to Algeria having been released after two days.

J

The fictional/theoretical account is given in the following letter. http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/08_11_05_police_l... It's worse than a Clive Cussler novel. "The Security Service are told by an agent that a group of men in various parts of the country are planning terrorist attacks on the Houses of Parliament... Police arrest 15 people. "... 268 computers seized together with 274 hard drives, 591 floppy discs, 920 CD DVDS and 47 zip discs. The High...

Submitted by Julian Todd Continue reading (and 1 more annotation)

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

Is the right hon. Gentleman aware that Gareth Peirce, a solicitor who has been involved in many of these cases from the Birmingham Six onwards and who has taken part in an analysis of the detention of people up to 14 days, says that for 95 per cent. of the time, detainees are not questioned but held for hours and even days in their cells? It has been suggested that the police may feel that they have a very long time and therefore not use it, but the evidence is that they are doing that already.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The right hon. Lady reinforces my point. I should make it clear that I do not blame the police for that. They often face scarce resources and many pressures on their time. If they are counter-terrorist police, they will be trying to deal with other issues, perhaps an immediate risk to the public. All those reasons may lead to an extension beyond what is necessary.

The question before the House is this: have Ministers made a robust, convincing and evidence-based case for 90 days ? Indeed, have they even made a case of which they themselves are convinced? The Attorney-General's spokesman has said publicly that he, the Attorney-General, is not convinced of the case. He is one of the Government's most senior Law Officers, but however senior he may be, he is not the Minister in charge of this legislation—that responsibility falls to the Home Secretary.

Photo of Bill Cash Bill Cash Conservative, Stone

Will my right hon. Friend give way?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

Before I give way to my hon. Friend, I must allow myself enough time to comprehend his question. I may need to seek an extension of my speech.

Last Wednesday, in Committee, the Home Secretary withdrew the 90-day proposal—scarcely a sign of confidence in it. On Saturday, he said publicly that 90 days was not crucial. On Monday, he emerged from the Home Office to announce that he would table amendments to reduce the time limit from 90 days, but those amendments were never tabled. We have heard his account of it, but the whole House knows the real reason. By yesterday, only a day after the Home Secretary signalled his desire to listen to the mood of the House, listening was off the agenda, because he had lost control of the matter. The whole House knows who has seized control and who has brought back the 90-day proposal that was withdrawn last week and introduced the fig leaf of the so-called sunset clause. The Prime Minister, not the Home Secretary, has brought back the 90 days—the same man who, as Leader of the Opposition, twice failed to support a Conservative amendment on the prevention of terrorism Acts.

Photo of John Mann John Mann Labour, Bassetlaw

The right hon. Gentleman will be aware of the disquiet among some of his closest colleagues about his party taking a position that is not that proposed by the police. In his discussions with the police over the past three months, has he heard any specific proposals from anywhere within the Association of Chief Police Officers that would match his proposal of 28 days, or for any period less than 90 days?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My conversations with the police have been in order to seek evidence to support any case. I will tell the hon. Gentleman as much as I can about the Privy Council briefing, which was informative, inasmuch as it demonstrated that there was no substantive case for 90 days. The suspect who ran off to Algeria was released after two days. It was intimated that the evidence material to that case was found after a few weeks, not after 90 days. On the decryption of hard disk data, we suggested using the Regulation of Investigatory Powers Act 2000, which puts a four-year sentence on withholding decryption codes. We suggested increasing that sentence, and that does now appear in the Bill. Then the police said, "If we charge them, we can't interview them", so we raised the possibility of interview after charge.

All those things may be incursions on civil liberties, but they are much smaller incursions than those in the Bill. What worried me in my discussions with all the authorities—counter-terrorism authorities, agencies, police, the Home Office—was that they were not looking for the least harmful outcome: they were looking for a simple headline outcome. I was very unhappy about that, and I told the Home Secretary so.

Photo of Charles Clarke Charles Clarke Home Secretary

The right hon. Gentleman has made that argument frequently. Does he accept that there are easily imaginable circumstances in which those who have the encryption key are dead and it no longer exists? In those circumstances, his solution of forcing people to give up the encryption key simply would not succeed.

P

LOL! The Home Secretary is dissing his own Government's legislation and blaming it on Mr. Davies.

Submitted by Paul Mitchell

Photo of David Davis David Davis Shadow Secretary of State (Home Office) 3:00 pm, 9th November 2005

We are considering circumstances after arrest. When one times the arrest will be dictated by what has been done with the encryption codes. There is a series of other options. For example, surveillance can be used before arrest. I could devise a fictional circumstance, such as that in Mr. Hayman's letter, that argues for 10 years' detention. The Government must focus, as I have asked them to do probably a dozen times, on providing serious evidence, which we will consider seriously. Until then, we must go for what was described by a Labour Member as the outer limit of what is acceptable.

Several hon. Members:

rose—

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I feel under some duty to give way to my hon. Friend.

Photo of Bill Cash Bill Cash Conservative, Stone

On the Attorney-General's position, my right hon. Friend may know that I received a reply from the Solicitor-General about compatibility with convention rights. It states:

"Given the long-standing convention on not disclosing the content of Law Officer advice or whether or not such advice exists, it would be wrong to comment further on this issue."—[Hansard, 7 November 2005; Vol. 439, c. 2W.]

My right hon. Friend rightly said that the Secretary of State takes responsibility. Does he agree that "Erskine May" and other authorities clearly state that the Secretary of State can decide to release that advice if he deems it expedient to do so? Will he ask the Home Secretary why he does not?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The Secretary of State can release advice if it is expedient to do so and, I suspect, if it is helpful to his case, which "Erskine May" does not add. We can easily work out why he does not want to release information.

Photo of Menzies Campbell Menzies Campbell Shadow Secretary of State (Foreign Affairs)

The right hon. Gentleman allows me, through his reference to the role of the Prime Minister and the Leader of the Opposition, to make a point that I tried to raise with the Home Secretary. He will remember that, during the 1980s and 1990s, out of sincerely held conviction and principle, the Labour party consistently voted against the renewal of the terrorism legislation that related to Northern Ireland. At no time in that period, when Labour Members' attitudes were clearly based on conviction and principle, did anyone accuse them of being complacent or pathetic. Such words lie ill in the mouths of those who criticise others whose opposition to the Government's proposal is equally based on sincere conviction and principle.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The right hon. and learned Gentleman makes a good point.

Before 7 July, I analysed most of the instances of terrorism in the western world since 9/11 and examined the behaviour of the Opposition in the countries where they happened. I concluded that it was possible in some cases for Oppositions to score political advantage. Indeed, there was a change of Government in Spain. However, I also concluded that, whenever Oppositions did that, there was at least a risk, and generally a probability, that the primary beneficiaries were the terrorists, not western civilisation. I therefore took a stance for which I have been criticised—I believe by hon. Members of all parties but certainly by Conservative Members—of supporting anything that the Government introduced that I believed would be effective against terrorism.

We support much of the Bill—indeed, we are the originators, along with the Liberal Democrats, of approximately two thirds of it. It is unfortunate that the Liberal Democrat senior home affairs spokesman is not here today.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

Yes, the hon. Gentleman is ill. He would doubtless confirm that I suggested that the Bill be published in September and introduced in the House before Christmas. The original proposal was to introduce it after the Carlile review next January. We have, therefore, been helpful in all sorts of ways. Numerous conversations have taken place with the Home Secretary and the Minister for Policing, Security and Community Safety, as well as other Ministers, to ascertain whether we could find solutions to the problem. There is evidence of that, too, and it reflects well on the Home Secretary from time to time. He altered the glorification clause to reduce the extent of its damage. I suspect that that will happen again.

Throughout the process, there has been an almost extreme attempt to help the Government within the limits of the duties of the House. The first duty of the House is to protect the liberty of the British subject. I do not often agree with Liberals, but I agree with Sir Menzies Campbell that the comments of the past few days have, at the very least, not been up to the standard of the past four months' co-operation.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

My right hon. Friend is explaining to the House the alternative means of meeting the need that the police have identified. Is not that the fundamental duty of the House? It is for us to decide how best to meet the need that the police identify. It is not for the police to tell the House how to legislate. Is not it a pity that, for the first time in my long history in the House, it appears that a fairly concerted effort has been made to bring pressure on hon. Members not to examine the problem carefully but to accept a solution offered by those whose job is not to find such answers?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My right hon. Friend is right. I had some doubts, which I did not express, about the constitutional propriety of the process. The police have a task to perform. Their primary task is to protect the citizen from crime, including terrorism. They will get the most powers that they can to achieve that end. Our job is to balance that important task with other important considerations. In the modern world, this country is defined by its institutional history—its history of liberty, judicial process, the presumption of innocence, the right not to be locked up without trial. We point at other countries in scorn about those matters. We should not throw away that history easily, least of all on the judgment of those whose task is difficult and important but should not make us overturn the fundamental duty of the House.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

Does my right hon. Friend agree that a suspect who is detained and released without charge after 89 days will do more harm to community relations than a suspect who is detained and released without charge after 27 days? Are not the Government in danger of having an encrypted community relations policy?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My hon. Friend is altogether too clever for me, but he makes a good point and I shall revert to it shortly.

Photo of Angela Watkinson Angela Watkinson Shadow Minister (Communities and Local Government)

I wonder what conclusion my right hon. Friend would have drawn if he had been part of the cross-party delegation to South Africa last week. We were conducted round the prison at Robben Island by a former prisoner who commented, "This all happened in the days when we locked people up for 90 days without charge."

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My hon. Friend's point speaks for itself and needs no elaboration.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

Yes.

The Prime Minister is on the record as saying that the case for the extension to 90 days is "compelling". He clearly believes that there is such a case, just as he believed in those famous weapons of mass destruction. However, the proven case for 90 days, like that for the weapons, simply does not exist. I am willing to give way now to any hon. Member who can cite a single terrorist incident in this country that would have been averted by the 90-day proposal rather than by good police work or implementation of laws that are already on the statute book.

Photo of Michael Jabez Foster Michael Jabez Foster Labour, Hastings and Rye

We do not know, because it never happened. The right hon. Gentleman has suggested that arrests should be made later, following further surveillance and so on. If he had taken the trouble to speak to local police chiefs, as many of us have, they would have told him that this measure is about the prevention of terrorism, not its detection. Therefore, it is not always possible for the police to wait until they have all the evidence necessary to make an arrest if they need to make that arrest quickly. Does he agree that that is a fair and reasonable stance to take?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

It is interesting that the hon. Gentleman, who is the Parliamentary Private Secretary to the Attorney-General, appears to be making a case for internment. I will pass over his slightly fatuous comment about whether I have spoken to any police chiefs recently. Perhaps he does not know what my job is.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

I thank the right hon. Gentleman for giving way. I was intrigued by his answer to my hon. Friend John Mann about his discussions with the police to support his case for 28 days. What discussions has he personally had with the terrorism experts on his own police force? What did they say to him that would provide a strong evidence-based case for 28 days?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

If the hon. Lady will forgive me, I thought that talking to the terrorism experts in the Cabinet Office and the Home Office was probably better than talking to the terrorism experts on Humberside. Important as they are to my people, they are not necessarily the people I want to talk to on this particular issue.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

So who did the right hon. Gentleman talk to?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

Does the hon. Lady want to intervene again?

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

Is the right hon. Gentleman, who is a neighbour of mine, telling me that he did not speak to the ACPO terrorism representative for the north of England, who is a member of the Humberside police force?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I have talked to Sir Ian Blair, to Mr. Fox and to a whole series of people whom the Home Secretary organised for me. I took the view that that was quite enough, thank you very much. Let us be clear that the hon. Lady does not misrepresent the point that I am making. She seemed to suggest that I was looking for a case to support the proposal for 28 days, but I have to tell her that I was not. I was looking for any case whatever to support any extension. I did not find any such case at all until last week, when Mr. Hayman's document came out. I grant the hon. Lady that that letter makes some case for some extension, but I have not yet seen any case for 21, 28 or 90 days.

Photo of Robert Key Robert Key Conservative, Salisbury

Referring back to the intervention by my right hon. Friend Mr. Gummer, may I, too, tell my right hon. Friend how I deplore the way in which chief constables have been drawn into this political argument? It is the first time in my 22 years in the House that a chief constable has ever contacted me to seek support for a particular clause in a Bill in favour of the police. I received a letter from my excellent chief constable, for whom I have enormous regard and respect, in which he asked me to support the extension. He said:

"The new challenges we face have evolved faster than the legislation and these new powers are therefore necessary."

I wrote back to him, saying:

"If I may say so, I am more likely to be swayed by you than by Charles Clarke! Please will you explain to me why it must be 90 days, not 28? Or would you perhaps be willing to settle for a doubling to 28?"

I have had no reply.

Photo of David Davis David Davis Shadow Secretary of State (Home Office) 3:15 pm, 9th November 2005

My hon. Friend makes that case better than I could have done. The simple truth is that, in all the interventions that I have allowed, I have not yet heard the case that any terrorist incident would be prevented by an extension even to 28 days, let alone 90.

Photo of John Baron John Baron Shadow Minister (Health)

Will the shadow Home Secretary continue to press the Home Secretary on the issue of lack of evidence, and particularly on the point that, if the vast majority of developed countries do not require a 90-day provision, why should we?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My hon. Friend makes the point that I am about to come to. The case for 90 days has not been proved beyond reasonable doubt, as Sir Ian Blair himself conceded only yesterday.

Photo of Dan Norris Dan Norris Labour, Wansdyke

Will the right hon. Gentleman give way?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I will give way shortly, otherwise this speech will consist entirely of responses to interventions.

It will doubtless be argued that what the police want, the police should have. What the police want carries real weight on this side of the House, but it is not in itself conclusive. If the police want 90 days and are given it because we do not want to stand in their way, what would the House say if they were to come back and ask for 100 days, 180 days, 360 days or two years?

While we are at it, another point raised by the Minister was about the security services. Let no one claim that the security services want 90 days. Whitehall officials have reported that the security services have made "no recommendation" on the detention period. To return to the point made by my hon. Friend Mr. Baron, let no one claim, either, that we need to bring our periods of detention into line with those of other countries. In Australia, where a murderous terrorist plot has just, mercifully, been foiled because of vigilant police action, there is fierce debate about an extension from two days to 14 days. Most of the other countries with similar judicial systems to ours have smaller, not greater, rights to detain without trial. On the evidence that we have, 90 days is simply too long, and too long by an order of magnitude.

The relative leisure of the three-month time scale, compared with the present 14 days—or for that matter, 28 days—risks the imprisonment and consequent release without charge of innocent people. Those innocent people will be drawn disproportionately from one section of the community and there is a real risk in that community of a backlash on an unprecedented scale, not to mention the affront to justice that would be felt by all.

When this matter was raised with the Home Secretary, it was clearly a sore point, because he went into his high-decibel overdrive, as he sometimes does. He started talking about how the leaders of the community were entirely onside against terrorism. Of course they are. Of course the heads of the Muslim communities, in particular, are onside against terrorism. They fear this more than we do, I suspect. The problem that they face is the problem of radicalisation—indeed, unknown radicalisation—of very small but dangerous parts of their own community, involving young men in their community. We must not make those community leaders' job more difficult, or, indeed, almost impossible.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

Does the shadow Home Secretary agree that the security services and the police forces are finding it incredibly hard to recruit employees from the ethnic and Muslim communities because of the isolation that they feel? Would not the 90-day provision increase that problem, rather than decrease it?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

My hon. Friend makes a good point.

It was clear from the beginning of this process that the majority of the British people actually favour 90 days, and I think that we should recognise that. I have been accused of opportunism; it is an odd kind of opportunism that takes the unpopular side of the argument, but never mind. A large number of people favour 90 days—perhaps this is true in the Muslim community as well—but they will do so only until the day it goes wrong, and we find that someone has been held for three months, lost his job, broken his family, yet comes out innocent. If he did not hate Britain when he went in, I suspect that he would have a grudge when he came out. That is the situation that we have to look forward to. In the aftermath of 7 July, I quite understand the imperative, but we must be absolutely balanced in the way we approach this issue, and think forward.

A

"The majority the electorate favour 90 days detention." I doubt the reliability of such a statement. How do we mere voters know what is right or wrong? Do we believe Blairs half truths or full blown lies? Never, but plenty of people actually believe Blair and buy double glazing over the phone, believe it when someone tells them that they have won a free holliday! How can the general public come to any sensible conclusion on detention without trial, with a culture of spin in place. The term "spin" is a pathetic euphemism for "lie" or "deception. All I desire from politicians is a...

Submitted by Adrian Nash Continue reading (and 1 more annotation)

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

Not at the moment.

We need to exercise foresight in regard to the consequences of these measures, which, although they might have the best of intentions, could go wrong.

Photo of Julian Brazier Julian Brazier Shadow Minister (Transport)

Putting the powerful point that my right hon. Friend has just made together with his previous point, does he agree that the crucial point about the success in Australia, and the fact that that country gets away with requiring only a moderate number of days' detention, is that the Australians have prevented radicalisation through not having human rights legislation that blocks them from getting rid of known agitators and troublemakers?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I am on record as having said that we need either to reform, replace or repeal the Human Rights Act 1998, for precisely that reason. Beyond that, I had perhaps better not be tempted further.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I will give way to Mr. Bailey. This will be the last time, then possibly the hon. Gentleman, then that is it.

Photo of Adrian Bailey Adrian Bailey Labour, West Bromwich West

The right hon. Gentleman is very generous. He has been making the case that the extension to 90 days will radicalise young Muslims. Will he explain how 90 days would radicalise them, yet 28 days would not? Or would they perhaps be a little less radicalised?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The hon. Gentleman makes a very good point. On Second Reading, I said that I did not really see an argument to go beyond 14 days, and one of the fears was that locking people up for a month is still harmful. The only reason that I would go to 28 days is that the Home Secretary has given an undertaking that the powers will be used extremely sparingly. The trouble with 90 days is that even one mistake will be a disaster. The hon. Gentleman is right that it is a judgment call, but in the balance between liberty and security, this country should always err on the side of liberty.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Anybody who is asked whether they agree with the detention of terrorists will answer, "Yes of course." Our concern is not the detention of terrorists but the detention of people who are not terrorists. That is what will have an effect on the communities of which the right hon. Gentleman speaks.

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

The hon. Gentleman makes the point well. The real risk is that, if we detain and then release one suspected terrorist without charge, we radicalise 100 further people—the terrorists of the future. The Bill is dangerous in that respect. The proposal is simply wrong: it will damage liberties, rights and a system of justice fundamental to the British way of life. It will be counter-productive and ineffective.

Photo of Dan Norris Dan Norris Labour, Wansdyke

Will the right hon. Gentleman give way?

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I said that I would not give way to the hon. Gentleman. If he has a problem with the word "not", I will help him later.

The Bill will be counter-productive and ineffective. Far from being tough on terror, it might turn out to be a gift to the terrorists. That is why we cannot support it today.

Photo of David Winnick David Winnick Labour, Walsall North

I welcome the Home Secretary's comments about High Court judges and the use of the sunset clause. I tabled amendments about that for Committee, and like many, if not all my hon. Friends, I am very pleased about my right hon. Friend's comments.

There is, however, one outstanding issue on which agreement has not been reached: detention for 28 days. Apart from anything else, had we been able to reach agreement on that, the House of Commons would be virtually united, and the proposal would go to the other place and almost certainly be accepted.

Photo of David Winnick David Winnick Labour, Walsall North

I will do so in a moment.

One thing should be made absolutely clear: there is no division among us about acceptance of the terrorist threat. As far as I know, no Member of the House is saying that that terrorist threat is exaggerated. Even if the attacks on 7 July had not happened, we know that there are mass murderers who want to bring death and destruction to our country.

Clearly, those of us who have said that, in all the circumstances, the current detention period of 14 days should be doubled to 28 days accept that the police should have that facility. David Davis said that he was not too happy about a further 14 days, and none of us are particularly happy about a further period of detention in which no charges are brought. I voted for 14 days because of the terrorist threat, however, and am willing to see that doubled, as I have said from the beginning, and I am hopeful that my amendment might be carried today.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

My hon. Friend will be aware that a number of us are totally opposed to 90 days and unhappy with the alternatives proposed. Can he explain to the House how the number of 28 days came to be presented and what its significance is, as some of us are quite puzzled about that?

Photo of David Winnick David Winnick Labour, Walsall North

I was asked that question in Committee and pointed out that it did not come from one of my research assistants, if only because I do not have a research assistant. I do not know whether it is a unique form of advanced mathematics, but given that we already have 14 days, and in view of the acute terrorist threat and the police request, I thought that it would not be unreasonable—being a very reasonable and flexible person—to double that to 28 days. If that does not satisfy my hon. Friend, there is nothing that I can do.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

Is my hon. Friend therefore telling the House that he feels that the terrorist threat in this day and age is only twice as bad as before? If he wants Members to support 28 days, he ought to give an evidence-based case.

Photo of David Winnick David Winnick Labour, Walsall North

I did not think that there would be any controversy about the acute terrorist threat. Anyone who tried to make out that those of us who put a different view do not recognise the acute terrorist threat would be silly. For heaven's sake, let us consider what happened on 7 July, when so many totally innocent people were massacred. Let us not go down that route.

Photo of David Winnick David Winnick Labour, Walsall North

Not at the moment.

This debate is not about the Prime Minister's authority or the standing of the Government. If some of the media, the Opposition or Whips want to play it that way, it does not mean that they are right. I do not challenge the authority of the Prime Minister in any way. I want him to stay in office, and I want this Government to succeed. I spent 18 years in opposition, and I certainly do not want a change of Government. That might clarify the position for some of my hon. Friends who think that I am playing a different game.

What this debate is actually about—it might seem odd or eccentric to mention this—is trying to reach the right balance between our traditional liberties, the rule of law, habeas corpus, and at the same time, in reply to my hon. Friend Shona McIsaac, trying to protect this country from acts of terror. As far as those who are in favour of 90 days are concerned, the balance has been reached. Clearly, however, I and my hon. Friends have tabled the amendment, on which I hope there will be a Division, because we believe that the balance has not been reached with 90 days.

It should be borne in mind that not a single life destroyed by the mass murderers on 7 July would have been saved if the clause had been in operation. In view of what I have just said, I am not putting that as an argument for not having detention for 14 days or 28 days, but we should bear the point in mind.

Photo of Angela Smith Angela Smith Labour, Sheffield, Hillsborough

Is it not the case that the 90 days might not have saved lives in the 7 July attack, but that that detention period might save lives in future, given the time taken to investigate atrocities that have taken place?

Photo of David Winnick David Winnick Labour, Walsall North

The point has already been made: if we readily accept 90 days, and if the police say at some future stage that they need four, five or six months, will we simply turn round and say, "The police have required this, there is an acute terrorist threat, and we will agree"? At what stage will we say that the period of detention should be shorter than the police want? I happen to believe that 28 days is a reasonable compromise.

Another factor that should be borne in mind is that of those who were held for up to 14 days and subsequently released, no one was later charged—the very point made by my hon. Friend Mr. Khan in Committee. I repeat: no one who was held for up to 14 days and subsequently released was later charged, despite, no doubt, ongoing police investigations. If I may say so, we should exercise a little caution, a little hesitation, before agreeing so readily to 90 days.

Of course the police have a perfect right to request more time. I shall not go into whether the police should be lobbying for it, because I think that that is irrelevant, as are the Prime Minister's authority and the Government's standards. I want to deal with the crux of the matter. What should concern us is the balance to which I have referred.

Photo of David Winnick David Winnick Labour, Walsall North

In a moment.

As I have said, the police have a perfect right to ask for more time. I am not criticising the police. I do not dispute the obvious fact that they have a vital job to do in defending our country from death and destruction. Who would dispute that? But just as the police have a right to express their view, we in the House of Commons have a duty to weigh up all the factors before reaching a decision. That is our job—and, no matter how many times it has been mentioned, we should not overlook the fact that three months' detention is the equivalent of six months' imprisonment without remission.

Photo of Chris McCafferty Chris McCafferty Labour, Calder Valley

Is my hon. Friend aware that, in concluding that 28 days was about right, he was in complete agreement with the European convention on human rights? As far as I am aware, the United Kingdom has not just signed but ratified the convention, and has not applied for a derogation in order to enact this legislation.

Photo of David Winnick David Winnick Labour, Walsall North

That is a good point. I am glad that I am in agreement with some people, as I sometimes appear to be in agreement with hardly anyone.

The right not to be imprisoned without charge, the right not to be subject to arbitrary arrest and detention, and habeas corpus itself are all basic to our very democracy. They had to be fought for. My hon. Friends and I can take some pleasure in the fact that our people did that. Even before our party came into existence, the radicals of earlier centuries fought for those rights. We cannot dismiss that out of hand. We cannot say that because of the acute terrorist threat and all the problems that we unfortunately face, those rights should be seen in a different light. They are fundamental to our democracy and to the rule of law. That is why we should be very hesitant indeed about locking people up for 90 days.

It has been pointed out that 90 days is a maximum, but a maximum is a maximum. Some people may well be held for that period. What if they are innocent? How would we like to be locked up for a period of up to 90 days if we were innocent of a charge? We can imagine the antagonism and hostility that would be felt by people who had been so detained, and we can imagine the effect that that would have. We must be very, very careful to avoid arousing unnecessary bitterness and hostility in people who are innocent.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The hon. Gentleman is making an extremely good speech, and many Members on both sides of the House will wish to support his amendment, but may I draw his attention to a procedural point? Before we can support his amendment, amendment No. 55 must be defeated. Unless we can defeat that Government amendment, we will not have an opportunity to support the hon. Gentleman's excellent proposal.

Photo of David Winnick David Winnick Labour, Walsall North

How could I possibly disagree with that? I am pleased that the hon. Gentleman has made the point, though.

We have been told that every seven days the matter will be submitted to a senior judge. I said that it should go before a High Court judge, and I am glad that the Home Secretary has agreed to my suggestion, but in my view not even that constitutes sufficient protection, or sufficient justification for the 90-day provision.

Photo of David Winnick David Winnick Labour, Walsall North

I think I know the views of my two hon. Friends. May we just work on the assumption that I do not agree with them on this point?

I do not accept for a moment that there is any question of a police state. I do not believe that my case for 28 days is so weak that I have to exaggerate. Nor do I believe that detention of this kind is like internment in Northern Ireland. Let me say this, however. For the entire 30 years, I was involved in the denouncing of IRA murderers and the atrocities that they committed. Who would deny—and I include Conservative Members—that internment served the interests of the IRA? Would anyone now deny the obvious?

I know that we are not discussing internment, but is there not a danger that the Muslim community, the overwhelming majority of whom are as opposed to terrorism as we are, will nevertheless feel that they are being penalised and discriminated against? I again emphasise that their opposition to terrorism is no less than ours. Of course, among the victims of 7 July were Muslims, Christians, Jews, Sikhs, Hindus—the terrorists make no distinction. Indeed, if we said to the mass murderers, "There are Muslims who will be your victims," their response would be, "If they're good Muslims, they will simply go to paradise earlier." So we know the sort of people whom we are dealing with.

Photo of David Winnick David Winnick Labour, Walsall North

No. I have limited time, and the House will perhaps be pleased to hear that I am concluding.

I accept that at this moment, I am probably putting forward a minority point of view so far as the country is concerned. Like all politicians, I would much rather be able to say that majority opinion is with us. I could quote opinion polls on various controversial topics that we debated in the last Parliament and on other occasions. I shall not mention those topics now, as they might provoke a certain reaction from the Opposition. I have to accept that the opinion polls on this subject are probably right: that those of us who are urging acceptance of 28 days are, at the moment, probably in the minority. However, if the time ever comes when the House of Commons takes decisions not on their merits, but according to the latest opinion polls, what certain tabloids are saying and those who argue, "Lock them up and throw away the key", frankly, for all the good that we are doing, we might as well pack it in and go home. We have to decide according to the issues.

How many times in the past 30 or 40 years have we taken a minority view on hanging and anti-discrimination measures, for example? Then, we were almost certainly in the minority, but we took a point a view. We did not simply follow public opinion: we led. That was our job and responsibility, and on this issue we should again give a lead.

We and each successive generation of parliamentarians are the custodians of our liberties and freedoms, all of which are very precious to us. How we combine that role with dealing with the terrorist threat is of course a decision to be reached by the House of Commons now, and I have no doubt that that issue will arise again in future. I have not been lobbying my hon. Friends. The Whips have, and that is their job. I do not complain: Whips of all Governments lobby, and ours would be odd Whips if they did not. To those of my hon. Friends who are sure about 90 days, I say, fine. But I ask those who have hesitations—who, on a free vote, would not dream of voting for 90 days—to leave aside the fact that, as we all know, 90 days or anywhere near it will not be accepted by the Lords. There will be movement back and forth between the two Houses and the Government will give way, so, one could argue, why not give in now to the elected House of Commons? To those who have hesitations—who feel, that, on balance, 90 days is excessive—I beg of you: do not vote in the Division Lobby for what you do not believe in.

P

Hear, hear!

Submitted by Paul Mitchell

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

It is a pleasure to follow Mr. Winnick. In considering how they should discharge their duties in this House, Members—particularly new Members—would do well to remember the last few minutes of the hon. Gentleman's textbook contribution. He is right: we have to do what is right, even if it is unpopular. The Prime Minister said at Question Time earlier today that he would rather be right and lose than the reverse—a position with which Liberals and Liberal Democrats have become very familiar in the past 80-odd years.

Given that David Davis referred to the absence of my hon. Friend Mr. Oaten, I should first apologise to the House on his behalf. He has not been well this week, which is why he is absent. Such absence is, however, no indication whatsoever of a lack of commitment to this issue, about which he feels passionately.

I do not feel any embarrassment in admitting candidly to the House that this is one of the most difficult issues with which I have had to struggle since being elected to this place in 2001. With the exception of the debates and votes in the run-up to the war in Iraq, this is by some considerable margin the most difficult decision that we have faced. Liberal Democrat Members realise and understand the nature of the threat posed by terrorism to our society and our democracy. We understand that the consequences will be severe in human terms if we get it wrong. However, we remain of the view that before going down the road that the Government have proposed for us, there must be solid evidence to justify it, and we remain of the view that, as of today, such evidence has not been provided.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

I understand that it is widely alleged that the 7 July bombers were under some sort of surveillance and that there is enough evidence to suggest that they could have been charged with raising money for terrorism or other offences. Does the hon. Gentleman agree that, if that is the case, we must have a thorough inquiry to learn the lessons? If it is true that we could have prevented what happened, looking further into what happened on 7 July might lead us to some answers regarding what we are debating today.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

The right hon. Lady makes a fine point and I would not dispute her conclusions. Indeed, the question of investigation is ongoing and I feel rather suspicious about those who have sought to thwart any such investigation.

Photo of Dan Norris Dan Norris Labour, Wansdyke

The hon. Gentleman talks about the need for solid evidence and most of us would agree with that. Already in our legal system, however, is a recognition that getting the necessary evidence is not as straightforward as we would like. For example, we know that only 1 per cent. of people are convicted in child protection cases, but we also know that child abuse is widespread and a terrible thing. Our legal system deals with that by having common law family courts that are able, if necessary in the most extreme circumstances, to take children away from people who might harm them. We have a special system. Despite what the hon. Gentleman says about the need for evidence, the key is that we cannot always prove matters as simply or straightforwardly as we would like, even though we know that bad things are happening. Surely, terrorism provides a similar example: we know that terrible things can and may happen, so we have to ensure that our legal system can deal with them appropriately.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

My experience as a court solicitor suggests that if the hon. Gentleman believes that we can derive a legal system that will catch everyone who may ever have done something wrong, he is hopelessly optimistic.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

The hon. Gentleman has already made three interventions in his one and I have to tell him that the protections and devices that the legal system has already produced in respect of child abuse—I agree that it is a horrific area—all involve judicial supervision.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

If the hon. Gentleman can contain himself, we have taken his example as far as we can and it has always been determined by the courts at a very early opportunity. The parallel, I have to say, simply does not work.

I want to say a few words about communication, or perhaps the lack of it, between the Home Office in London and the Crown Office in Edinburgh. It will not have been lost on the House that the Home Secretary was asked three times—by myself, by my right hon. and learned Friend Sir Menzies Campbell and by Mr. Salmond—why the Lord Advocate was not asked for a view on the suitability and workability of 90-day detentions without charge in the context of the Scottish legal system. It will not have been lost on the House that on three occasions he gave no answer to that very straightforward question. I do not understand how the Lord Advocate can be asked for an opinion about the desirability of a uniform law to cover the whole of the UK without then being asked for a view on the issue of 90-day detentions. My suspicion is that the Government did not ask because they knew that they would get an answer that they did not like.

Photo of Alex Salmond Alex Salmond Parliamentary Leader (Westminster), Spokesperson (Constitutional Affairs; Treasury), Leader of the Scottish National Party 3:45 pm, 9th November 2005

What does the hon. Gentleman think would be the likely reaction of the House if a Home Secretary were to reveal that he had not asked the opinion of the senior Law Officer in England before producing a measure such as this? Should not hon. Members reflect on that as they consider what is being said?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

I hope that hon. Members will reflect on that. I am a Scottish Member of this House, and for me the blatant disregard for the office of the Lord Advocate—never mind the incumbent—is disgraceful and distasteful.

The House must strike a balance in the proposition being considered today. Much has been said about the views and role of the police in this debate, and we may return to that on Third Reading. Liberal Democrat Members have listened to all the contributions that have been made to the debate. We have listened to the police, and will continue to do so: that process must go on. However, we have also listened to people in those communities who believe that they have most to fear. They already feel marginalised and threatened by what they see on the streets and in the pages of the newspapers, and believe that they are most likely to be the victims of 90-day detention. The possibility that young men will be arrested and held for up to a maximum of 90 days before being released without charge will create martyrs in those communities.

Photo of Stewart Hosie Stewart Hosie Shadow Spokesperson (Women), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Treasury)

Has the hon. Gentleman given any consideration as to whether evidence gathered during 90 days of detention, with close questioning that might last up to 18 an hours a day, might be acceptable in a court of law?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

That is a good point, and I shall deal with it in the course of my speech. The House will recall the process by which we arrived at the current rules of evidence and procedure, and the reasons for their introduction.

Photo of Simon Hughes Simon Hughes Shadow Attorney General

Does my hon. Friend accept that the concerns are not only about communities that may be different from our own and which may subscribe to another faith? All hon. Members know that constituents regularly come to see us when a family member has been detained unreasonably, as they see it, for only 12 or 24 hours. The question that we should ask our constituents is, "Would you find this proposal acceptable for your family—for your brother, son or daughter?" Invariably, they would answer, "No, we would not."

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

My hon. Friend reminds me of the old adage that a conservative is a liberal whose house has been broken into, and that a liberal is a conservative who has been caught speeding. He is absolutely right, though: we must approach this matter from a personal and individual perspective. To suppose that we are dealing with an amorphous mass of people in our communities who carry red terrorist labels that we can all read easily is a dangerous line of thought.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

No. I need to make some progress, as I have been speaking for 10 minutes already and the House's time is limited.

What I am saying should not amount to a revelation to the House. It is no flight of fancy, because we have been here before. As others have remarked, detention without charge is not a novel concept. We tried it in Northern Ireland, and the hon. Member for Walsall, North has noted already that we know what the consequences were.

Photo of Kate Hoey Kate Hoey Labour, Vauxhall

Does the hon. Gentleman agree that it is rather strange that, on the very day the Government are asking us to allow people to be detained without charge for 90 days, they should produce a Bill that will allow people who have done some dreadful things but who have never been charged—or who have been charged and have escaped—to be released? Is not there some element of hypocrisy about that?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

The hon. Lady and I have dealt with sufficient Northern Ireland business in the past for her to know my general view on those matters. I am not going to say it is hypocrisy, but, yes, I think it must be said that there is an inconsistency of approach between the two Bills currently before the House, a point that will not be lost.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

No, I have to make some progress in the interests of allowing others to speak.

We are charged as parliamentarians with listening to all contributions to debate and to striking a balance between conflicting and competing demands. That is what the Liberal Democrats have done. We have reached the conclusion that the Government have got the balance wrong and that 90 days will do more harm than good.

I attended the Press Gallery lunch yesterday and heard the Metropolitan Police Commissioner address it. He talked about how it was necessary to question a suspect, often on forensic or other evidence, especially after a charge. His position was that the police would be barred from doing so. I accept that that is difficult under the laws of evidence as they stand, but on the basis of my understanding of the law of England and Wales, I must say that it is not already impossible. Even if it were, or if there were difficulties, those difficulties could be removed by the Home Secretary coming forward with revisions to the Police and Criminal Evidence Act code under which questioning is carried on.

In Scotland, in my view, there would be no barrier to interview of suspects under caution. That is already done, and it might even be possible to give two procurators fiscal powers to raise a new petition with new charges on which they could conduct a judicial examination. That is not beyond the bounds of possibility.

I must say this about the commissioner's comments yesterday: I question his reliance on the point about questioning suspects on new evidence. The notion that somebody who has been prepared to blow themselves up will, after 10 weeks in custody, somehow be ready to co-operate, having seen the error of their ways with the police, when confronted with a piece of forensic evidence, I find difficult to accept. That sort of spin and overselling should give us pause for thought. In my view, and this was the point raised by Stewart Hosie, it seems likely that the only basis on which that evidence might be forthcoming would be if the suspect had been ground down in the course of the 90 days, and that would constitute evidence that was unfairly obtained and which, as a result, would be inadmissible. That might leave us in a position in which the only time a suspect spends in custody is the 90 days prior to charge. How does that help the fight against terrorism? In our view, the bulk of cases are already adequately dealt with under the 14-day provision, and that will be sufficient.

That brings us to what my hon. Friends and I will do tonight about the different votes available to us. We shall first oppose Government amendment No. 55, which seeks to replace three months with 90 days, for what that is worth. If we are successful, we shall support the hon. Member for Walsall, North on amendment No. 1. Hon. Members must be clear that we can get to a vote on amendment No. 1 only if we first defeat amendment No. 55.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour, Ogmore

The hon. Gentleman has put a passionate and cogent case for having absolutely no extension, not least because of what he sees as the impact on our Muslim communities. I urge him and his colleagues, therefore, to stick to their principles and vote for no extension. To do otherwise would turn all the arguments he has put forward entirely on their heads.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

I do not think I need take any lectures from the hon. Member for "loyalty, south-west" about sticking to my principles. But let us deal with principle. What is the principle at stake here? There is no principle that says that 14 or 28 or 90 days is right. The principle at stake is that nobody should be deprived of their liberty unless there is evidence on which to do so. The question is whether that is an inviolable principle, and clearly it is not; that has always been our position. That was why we supported the extension to 14 days in the first place. The question then is where the line should be drawn and how we reach that point. A responsible parliamentarian can get to that point only by relying on the evidence provided, and that is the weakness of the Government's case. They simply have not provided the evidence.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

The hon. Gentleman is right to say that we must avoid circumstances in which people are detained with no good reason and that the length of time—14, 28 or 90 days—is not the issue. However, surely the review clause, which would bring the provisions back to Parliament with a report about how the powers had been used and give us the ability to change the law if necessary, provides protection and would mean that the police and the judges would ensure that people were detained only when absolutely necessary.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

If that has been the price of the hon. Gentleman's support today, he has sold himself too cheaply. Review is meaningless. We know how review will work in this place and we know the pressure that will be applied. It is incumbent on us, for the sake of those people who may be caught by this legislation in the next 12 months, to get it right now, not to wait for some review in a year's time. However, the hon. Gentleman does me and the House a favour, because he calls the provision a review clause, and we must be clear that that is exactly what it is. The Government's amendment is no sort of sunset clause.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

Does the hon. Gentleman agree that this House cannot abdicate its responsibility to judicial oversight, because sometimes the judiciary gets it wrong? I think of the case of the Birmingham Six and Lord Denning's comments about the "appalling vista", which led him to ignore overwhelming evidence that those men were innocent and to keep them incarcerated for many years longer.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

The hon. Lady makes a fine point and I commend her for it. The judiciary does occasionally get things wrong. Any system run by people for people will occasionally make mistakes.

My own experience of time limits that operate in Scots law does not reassure me that the Government's proposals for judicial oversight every seven days provide any meaningful protection. I have seen several applications brought before the High Court of Justiciary in Scotland for extensions to the 110-day limit on custody that have been nodded through. We must not forget that judges watch the television and read the newspapers like the rest of us. They are as susceptible to pressure from the media and the prevailing circumstances as anybody else, and we know that that has happened in the past.

If we move to 28 days, it is important that locks and safeguards be put in place. A simple change to 28 days is not a deal that we should accept. As outlined in amendment No.29, the least that we want is that

"the specified period may only be extended . . . pending the result of an examination or analysis which is to be or is being carried out with a view to obtaining relevant evidence, or . . . for the purpose of obtaining relevant evidence from outside the United Kingdom or from records within the United Kingdom which cannot reasonably be obtained without such an extension of the specified period".

That would make it clear that any extension to 28 days would be allowed only in very narrowly circumscribed situations. The decision should be taken by a judge and he should be satisfied that no other terrorist offence can be charged. The judge must also approve the nature of any further questioning. I suggest that those would provide meaningful safeguards, whatever length of time the House opts for today.

We live in an ever changing world. That is the justification given for the Bill, but it is why we need a proper sunset clause—not the one that the Government are trying to sell us.

I am now in my second Parliament. For much of my time as a Member, I have heard comments about the strength of the House. Its standing has often been traduced and demeaned. Our debate today offers us an opportunity to put that right, to tell the Government that they have got it wrong and for the House to stand up against the Executive. I hope that we shall not pass up that opportunity.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby 4:00 pm, 9th November 2005

I rise to defend and support the 90-day proposals outlined in clause 23.

I have probably put more written questions to the Home Office in the past four years than most of my colleagues in the House put together. I am passionately interested in the activities of the Home Office, especially the processes and procedures that the police and other criminal justice institutions employ in the execution of their duty. I have frequently and regularly met operational officers, officers who write operational guidelines and the officers and agencies who review them.

My interest, for constituency reasons, has centred on the investigation of serious sex offences, and I have spent years trying to ensure that the practices and procedures employed in the investigation of those serious crimes are robust. But they are not: procedures are constantly revised in the light of operational experience. The procedures and guidelines governing the investigation of such crimes were laid down years ago. With hindsight, they proved open to abuse by many different parties, but I know absolutely that when the police first got to grips with the reality of the undisclosed sexual abuse in the UK, they pulled together existing informed knowledge—as they will in relation to terrorism offences. They did so because that is their professional duty, and that is what the authorities have also done in the face of the growing spectre of terrorism.

It is a source of regret to me that with few exceptions, few of my colleagues in the House have ever troubled themselves to object to, or scrutinise, the practices and procedures employed by the police in the interrogation of sex offenders. I understand that, but colleagues are far quicker to leap to the defence of terrorist subjects, and their rights, than to those of a serial sex abuser. Why? Terrorists and sex abusers violate everything that we hold dear. Why do we operate double standards for scrutiny of the legal procedures governing sex abuse and terrorism investigations?

Photo of Edward Garnier Edward Garnier Shadow Minister (Home Affairs)

I have worked with the hon. Lady and have publicly praised her for her work in support of people wrongly accused of sex abuse. However, the case that she purports to make—that those wrongly accused of sexual crimes were the victims of inadequate policing—does not assist her arguments in favour of the Government's proposals. Surely, she needs to be careful about translating her antipathy towards police behaviour in sex cases into support for possible police behaviour in terrorist cases.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

I accept those words of caution and I understand what motivates my colleague, the hon. and learned Gentleman, in saying them, but I am trying to demonstrate that when our country is faced with people who commit heinous crimes, the police have to settle down and begin to develop guidance and procedures to tackle those crimes.

We all expect, and hope to achieve, a state of perfection in such operational guidelines, but we never reach it. I know that from my experience of dealing with how sex crimes are investigated. When the police ask for 90 days, they do so because they think they need 90 days—not 28 days. I also know that when they make that consideration they have not carried out the objective research that we would expect of them to justify that period, but they are providing us with their best view at the time. I am interested in giving them the tools for the job.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

If I may, I shall continue.

I intend that we go back and check how well the procedures are being executed. Members have welcomed judicial review, and I am glad that we are giving the police the opportunity of judicial review, but we must not emasculate them at this point. We would not argue in the House for such leverage in relation to sex abuse. We would say that those involved must do the very best that they can because of the individual's potential to inflict huge damage on our society.

I am bewildered by some of the arguments about terrorists that I have heard in the House. They may well be innocent individuals, but let us not forget that people are arrested in this country every day although they are innocent of the crimes that have been committed. We arrest them not for the joy of it, but because we believe that they may have committed a crime. We do great injustice to that individual, their family and their society, but we would not resist doing what we need to do to protect the greater good. So I will vote today for the 90-day period. Although I suspect that I know the weaknesses of the police and the criminal justice authorities better than most other hon. Members, I still will not deny them this opportunity.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

Will the hon. Lady tell me the difference between what she proposes, which is to take precautionary action because of someone's potential, and internment?

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

The difference is the issue of scrutiny. The police have sought judicial review of the suggested procedures and their decisions in relation to this case. I applaud that. I regret the fact that we have that system in these cases, and not in others. I think that I have said all that I need to say about my view on this. We must support the police and our Home Secretary. He does not come to the House in an attempt to negate his role and authority; he comes here seeking our support following the advice of the people who are there to defend us. I shall not stand in their way, and I ask colleagues today to consider their position and support our Home Secretary and the police as they try to fight this invidious threat to our country.

Photo of Michael Mates Michael Mates Conservative, East Hampshire

In my brief remarks last week, I said that we must think very carefully before rejecting the advice of professionals. I am also on record as saying that, so far as I am concerned, the case for an extension from 14 days is irrefutable, but I have yet to hear enough convincing argument that 90 days is a totally justifiable time, which will guarantee that the police and security services can do all that they need to do to turn intelligence into evidence that can support charges. It is simply their best professional estimate, and we must respect that. Indeed, the Home Secretary has said since last week that the 90-day figure is not crucial. So we are dealing with an estimate and it is up to us to make a judgment.

One of the reasons why so much heat has been generated about this issue is that the Government have, only very late in the day, realised the necessity to explain and persuade. I accept that the Home Secretary has made genuine attempts in the past few days to explain more fully why this is the Government's position, but it has been too little, too late for many hon. Members. I am personally better informed than I was last week—I stress that I am speaking entirely for myself, because the Intelligence and Security Committee has not come to a view on this matter—but I believe that there is much more that can and should be put into the public domain in a more comprehensive effort to explain the complexities of the problems that face the police and the security services and why their professional advice is what it is.

To be fair, the Home Secretary has gone further this afternoon than he went last week, but what we really need is a comprehensive description of the whole complexity of the problem, and what we are getting is bits and pieces—the Metropolitan Police Commissioner comes to the Press Gallery; the Home Secretary comes here; someone else gives an interview to a newspaper—but until someone produces the whole argument, I do not believe that any hon. Member can come to a complete and proper judgment. Whatever the result of the vote on the amendment may be, I urge the Home Secretary to do that before the Bill is considered further in another place and returns to the House. I shall be very happy to explain to and discuss with him some of the arguments that should be made public, but that would have to come from the Government, rather than from me.

I am not going to vote against the proposal tonight because if it were defeated, we would simply vote on the amendment tabled by Mr. Winnick and the House would inevitably have to make another choice that would not be factually based. The hon. Gentleman said when he spoke to the amendment that he had decided on a figure of 28 days only because it was double the last one, not because there was a compelling argument that it was the right answer.

In Committee, many hon. Members agreed that the worst thing would be simply to arrive at a figure around which there was consensus, but which was not based on the needs and complexities of the situation that have led the professionals to tender the advice that they have. I am completely satisfied that an extension is fully justified. I am also satisfied, from what I have been told, that an extension to 28 days would be wrong and would not give the police and security services the tools that they need to cope with such a complex matter.

Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

My right hon. Friend has the advantage of serving on the Intelligence and Security Committee. I am listening to him with enormous respect, as I always do when he speaks on such matters. Does he agree that it might be a good idea for the Home Secretary to arrange briefing sessions for Members of Parliament through which we could meet the commissioner and others and be told a little more about the situation?

Photo of Michael Mates Michael Mates Conservative, East Hampshire

I do not dissent from what my hon. Friend says. Irrespective of how it is done, something needs to be done because there has been a lack of information for some time.

Let us look at the situation realistically. If the Government are defeated on the first vote and the amendment tabled by the hon. Member for Walsall, North is pressed to a Division, there is little doubt that it will be passed because everyone agrees that the police need more time. However, if that amendment is incorporated in the Bill, there will be absolutely no chance of getting it out. That might be what some people want, but it is not what I want because I know that the amount of time proposed in the amendment is inadequate. I still believe that provided that we can move the debate on, sensible people will be persuaded by fuller disclosure and argument.

Photo of John Bercow John Bercow Conservative, Buckingham

In common with my hon. Friend Sir Patrick Cormack, I always listen to my right hon. Friend Mr. Mates with respect on such subjects. My right hon. Friend said that the Government have not made their case and then went on to say, with a degree of certainty in his tone, that 28 days was patently inadequate, so will he be good enough to enlighten the House as to why? It is not at all clear to me how he knows that 28 days is inadequate.

Photo of Michael Mates Michael Mates Conservative, East Hampshire

As I was saying earlier, this is something that the Government must explain. I know about certain matters that are not in the public domain. I shall not put them in the public domain because I have been told them in confidence. I believe that those matters could be made public without damaging national security, but I am not allowed to make that judgment. It is for the Government to make that case, and if they do, I am sure that people will listen.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The right hon. Gentleman and I have worked together a great deal on such matters. I counsel him of the danger of giving the impression that information has come to light in discussions at which both of us have been present that is significantly different from information that is now in the public domain and that would force anyone who heard it to reach a different conclusion. Such information has not had that effect on me.

Photo of Michael Mates Michael Mates Conservative, East Hampshire

I am not saying that the information is significantly different, but that there is considerably more information than has been put in the public domain. I believe that that would help people to make a judgment. It might well be that the right hon. Gentleman will reach a different judgment from me at the end of the day. It is our right to do that, but it is everyone's right to have in front of them as much information about the complexities of the problem as is humanly possible without damaging national security. We have not reached that stage yet. It is something that the Government must do because no one else can do that for them.

Photo of Michael Mates Michael Mates Conservative, East Hampshire

I am terribly keen to bring my remarks to an end, but I give way to my hon. Friend Mr. Grieve.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Is not the logic of my right hon. Friend's argument that the Government should not have drafted any clause on detention without charge whatsoever without first providing the information that he says is helpful? Is not the problem that the House will be called on to make a decision this afternoon that is likely to be long lasting? In such circumstances, is it not right for people to err on the side of caution when giving powers that might prove to be unjustified and unnecessary?

Photo of Michael Mates Michael Mates Conservative, East Hampshire

I agree. The Government have got themselves into this mess, and they have to get themselves out of it. I tried to make that point earlier in moderate terms, because their explanations are a case of too little and too late. We should not get ourselves into a situation which we cannot climb out of without giving the Government one more chance to be much more upfront and open about what they can tell us. Reasonable people will then be able to make a judgment on a much better basis than any judgment they will make today. I am quite certain, however, that if we were to support the amendment tabled by the hon. Member for Walsall, North, we would make the wrong decision, send the wrong signals, and we would live to regret it.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West 4:15 pm, 9th November 2005

I shall confine my remarks to amendment No. 63. I shall not accept interventions, except from Front-Bench spokespeople or from my hon. Friend Lynne Jones, who tabled the amendment with me.

I do not know whether its wording is right, but amendment No. 63 seeks to provide compensation for anyone who is released without charge after being incarcerated for more than 14 days but fewer than 90 days. They would receive compensation for financial losses. I apologise to Scottish Members, because I am a solicitor in England, so I am not using the terminology applicable in Scotland. However, people who are detained would not receive damages for injuries to feelings and so on—they would be compensated only for financial loss if, for example, they lost their house or job, and were thus deprived of their income.

As my right hon. Friend the Secretary of State acknowledged, the amendment would affect an extremely small number of people, as we are told that only a few people are likely to be held for more than 14 days and released without charge. Only a small proportion of that minority are likely to get into difficulties and be able to prove that they had suffered financial losses. The Bill is extraordinary legislation, and I do not intend that my amendment should be used as a precedent by people remanded in custody and acquitted, as their situation is not extraordinary.

People who have been convicted and imprisoned wrongly, such as the surviving members of the Birmingham Six, received compensation. My hon. Friend Chris McCafferty helpfully mentioned the financial hardship faced in detention by people who are held without charge for more than 14 days. My amendment does not cover such individuals—it deals only with losses suffered after the event—but my hon. Friend made the case for such compensation. I am heartened that the Secretary of State agreed to look carefully at the amendment. It is a pity that he could not make a greater concession, but that is the nature of politics. I remind him and other Front Benchers that I am seeking genuine progress on the issue before the Bill leaves the other place.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I do not speak as a lawyer, although eminent lawyers have participated in our debate. I am certainly not a human rights lawyer like Vera Baird, who may well have campaigned against measures such as the Bill. I speak as someone who served in Northern Ireland, and was involved in the implementation of a number of counter-terrorism measures. I often had to stand on the streets of Northern Ireland while members of the Labour party voted against important measures. Many members of the security forces risked their lives to work within the law, and we did so because we believed that gathering evidence before arrest was the best way to prevent and counter terrorism. Royal Ulster Constabulary officers and many other people in Northern Ireland learned that there are no shortcuts to counter-terrorism. One cannot wipe the slate clean or try to outmanoeuvre the terrorists in minutes or days, as we have seen in four days of debate on the Floor of the House. Have we forgotten the lessons that we learned in Malaya, Northern Ireland and even in Basra? Terrorism is defeated by winning hearts and minds, when the communities themselves stop people committing such acts. If the Government think that they will bring communities closer to the forces of law and order by incarcerating people for 90 days without trial they are badly mistaken. It is from communities that we get informers and tip-offs, and it is from the communities that we recruit members of the police forces and the security services that, in the end, defeat terrorism.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I will not give way at the moment.

It is important that we do not forget those lessons. If we alienate people, they will not come forward. I am not saying that people in communities will ignore someone walking down the street with a bomb, but they will ignore the signs. They will ignore the individual in the mosque who is starting to stir up trouble. I know from my own experience that when we had heavy-handed regiments in parts of Belfast or in East Tyrone, the information dried up. People did not pick up the telephone to let us know that there were people down the road behaving suspiciously.

The Government have argued that there is a difference between the terrorists in Northern Ireland and those whom we face now. Yes, of course, what the terrorists are trying to achieve by killing innocent people and how they are trying to achieve it is different, but the cause is not. The way to solve terrorism is no different. It is only when communities engage with the forces of law and order that we start to head such people off. Whatever has caused the current problems in France, how much will the Algerian community, the north African and Muslim communities help the forces of law and order in the next year or two? The answer is very little. We must be careful how we proceed if we take individuals out of communities, which will be predominantly Islamic communities, some in my constituency, and hold them without charge for 90 days.

The Government have so far failed to give us a case that would be solved by detention for 90 days. I am not arguing from the human rights point of view. My hon. Friend Mr. Cash would probably disagree with some of my suggestions, which go further than he would. Some of the Government's reasons are entirely bogus. Let us consider one: encryption. The Home Secretary will know that in some serious crime cases, investigators have failed for two years to crack the computer encryption. The Government cannot guarantee that every encrypted device will be unlocked in 90 days, so are we to expect that they will return in a year and ask for the power to lock people up for a further year because a new encryption technique has been invented? Is that what they are trying to say?

Let us examine some of the other issues. I, like a number of my hon. Friends and probably Labour Members, received the letter from the chief constable or perhaps the template of such a letter, urging me to support the measures. I rang the person I was told to contact, who was one of the heads of special branch. I said to the police officer concerned, "Let's look at some alternatives. Let's look at interviewing under charge." He said, "That would really help to move matters along."

I said, "What about some of the restrictions on informers, because of the Regulation of Investigatory Powers Act 2000?" Some people might think that was a good thing. The Royal Ulster Constabulary and the Police Service of Northern Ireland did not think that those restrictions were good. It is interesting that the Home Secretary said in the House today that the police say we must, so we must, but when the police said we must not restrict special branch in Northern Ireland, the then Home Secretary and the Secretary of State for Northern Ireland ignored those wishes.

I asked the police officer, "What about Iraq?" He replied, "Without the Iraq war, we probably wouldn't have had quite so many people queuing up to take part in some of the current problems". We must recognise that part of the problem we face today is due to previous legislation and current issues leading up to the debate today. The answer is not for the Government to come back to the House, take a short cut, lock people up for 90 days without trial and expect everything to be hunky-dory.

If we take such a short cut, I am almost certain that we will have to return to the issue. We will still have bombs on the underground and terrorists preparing for attacks, because the causes still exist. What I learned in Northern Ireland is that as long as there is a cause, people will queue up to replace those who have been incarcerated, so we should not start with the principle that we learned so wrongly in 1972—that internment is the solution.

Clare Short does not know this, but when I served in Northern Ireland, I knew her very well—she used to move around in a black Ford Escort. It was my job to know such things, and I also know that it took years to solve terrorism in Northern Ireland.

If we act on the preventive principle, where will we stop? Why not go on to serious crime? Why do we not lift all the armed robbers? Why not go on to benefit fraud? Where do we draw the line on such issues?

Photo of Pat McFadden Pat McFadden Labour, Wolverhampton South East

The hon. Gentleman asks why we should not extend the power further. Does he accept that in their evidence to the Joint Committee on Human Rights the police explicitly excluded extending those powers to non-terrorist offences?

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I am grateful for the intervention. I remember that a year ago the police said they wanted 14 days. The police are trying to achieve the best route for themselves, but sometimes they get it wrong.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Is it not always true that there are two arguments for destroying human rights: one is, "We have never had a situation like that before"; the other is, "We have no intention of making it worse later on"? Both those arguments are very dangerous, and this House should not accept them.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I agree. It is ironic that the Northern Ireland (Offences) Bill, which tries to win hearts and minds in Northern Ireland, has been laid before the House today, while the Prime Minister is trying to attack hearts and minds in Islamic communities up and down the United Kingdom. The Prime Minister learned one lesson in Northern Ireland, which he has chosen to ignore, perhaps because of The Sun.

Photo of John Bercow John Bercow Conservative, Buckingham

My hon. Friend is making a superb speech. I put it to him that the intervention by Mr. McFadden, who will see the point if he reflects on it, was extremely injudicious. Precisely the same argument could, and in due course will, be made in relation to members of paedophile rings who download and study computer files. At present, no request for detention for 90 days without charge has been made by the police, but if we start on the slippery slope, we will go further down it.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

My hon. Friend is right. If we accept the preventive principle, where will we stop?

Detention for 90 days is an affront, and it will not cure the problem. Yesterday, I heard Commissioner Blair speak to the Press Gallery. Ironically, most of his speech was about communities—how Operation Trident works with the communities in areas of inner-city London to defeat drug dealing and gang warfare—but he chose to disregard the importance of communities in solving terrorism.

Counter-terrorism is about two things. First, it is about information and getting ahead of the terrorist cycle—being there when terrorists are preparing and catching them red-handed. Secondly, it is about prevention, and if one risks people who will help—informers—one extends rather than defeats terrorism.

Photo of John Denham John Denham Chair, Home Affairs Committee

In many ways, this debate is very sad. This Bill will have a marginal effect on our overall security and the balance sheet is depressing. The truth is that the Prime Minister and Ministers have expended more effort on winning the votes of MPs than they have on winning the hearts and minds of young Muslims, and more energy has been expended on getting MPs into the Lobby than has yet been spent drawing young people in our communities into dialogue and debate.

The cross-party approach that was rightly struck in July is now self-evidently in tatters, with hon. Members being urged to vote for party advantage. The stakes have been raised to a height that is not justified by the intrinsic merits of the issue, the handling of which has damaged the fight against terrorism. That need not have happened.

We are here because no demand was made for the most basic explanation from the police about why 90 days are needed. All that the Home Office had received in writing when the Home Secretary and the Prime Minister backed 90 days was an ACPO press release and two sides of A4 detailing two cases, neither of which made the case for 90 days. There had been no proper police working group, no systematic assessment of their experience and international experience, no discussion of options, and no evaluation of the difference between 30, 60, 90 or 120 days.

The House deserves better than that. The lack of confidence and trust that has run through today's debate comes from that basic decision to back 90 days before receiving a proper assessment. We are now in a difficult situation. My personal view, which will shape my vote, is that had that proper assessment been made it would have supported an extended period that went beyond 28 days. I entirely agree with Mr. Mates, with whom we have discussed the matter. I will vote for 90 days because the choice is between that and 28 days, and I am sure that 28 days is too short.

In that case, why have I made such a critical speech? It is because the process matters. Casual decision making, poor-quality discussion and a lack of proper assessment might have got us broadly to the same right place as a proper assessment, but the difference between a good process and a bad one matters.

Photo of John Denham John Denham Chair, Home Affairs Committee

I will not give way, as I want to make progress.

If the Government and police between them could not produce a proper assessment, the House should do that in the months to come. I intend to consult members of my Select Committee on requesting that we should carry out the inquiry into the police case that the Government should have carried out. I hope that we can join members of other relevant Select Committees to do that.

Photo of John Denham John Denham Chair, Home Affairs Committee

I will not give way to the hon. Gentleman, because I hope that other Members may get in.

We need not be in this situation. If Ministers had told the police in August when the ACPO press release arrived, "We will give your ideas a fair hearing, but do the assessment and produce the evidence", in my view this House would be agreeing an extension significantly beyond 28 days—

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

How does my right hon. Friend know that?

Photo of John Denham John Denham Chair, Home Affairs Committee

I said that it is my view. I believe that we would have been doing this with none of the controversy or damage. I hope that the lesson is learned. The energy that has been put into this parliamentary debate should be directed out there in communities winning hearts and minds in the battle against terrorism.

Photo of Bill Cash Bill Cash Conservative, Stone

I wish to make a few simple points about the relationship between the Bill and the Human Rights Act 1998. The Leader of the Opposition, the shadow Home Secretary, the Prime Minister and the Home Secretary have all said that if necessary they would amend that legislation.

If ever there were a case for disapplying the Human Rights Act, especially article 5, to a measure, it is this Bill. The Joint Committee on Human Rights made it clear that there were serious problems with the Bill's compatibility with article 5. Lord Carlile made a similar point. We know that the Attorney-General has given an opinion. The Solicitor-General claims that he has not given an opinion. The Home Secretary clearly said in the House that there was an opinion before apologising for the fact that he should not have said that.

Unless the Human Rights Act is disapplied to the Bill, the debate will have been a waste of time because the Law Lords will apply it, thus preventing the measure from being compatible with it. When that happens, it will render the whole exercise a complete waste of time. We must disapply the Human Rights Act.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

I want to say at the outset that I shall support the Government in the Lobby this afternoon. However, I have tabled an amendment, which would provide for a period of detention of up to 60 days. The reason for tabling amendment No. 33 is simple: we support the Government's position because we believe that the case is compelling and we want to support the police.

Like other Lancashire Members of Parliament, I have a letter from the acting deputy chief constable of Lancaster, Julia Hodson, who urges us to support the Government so that she and her colleagues can protect the public in the way that they wish. My plea is simple: if amendment No. 55 falls—I sincerely hope that it does not; it has my support—28 days is not long enough because, as a Liberal Democrat Member said, it is insufficient for the police to do their work. In their recent evidence to the Joint Committee on Human Rights, the police referred to one case in which, if they had printed out the computer data that they had recovered, it would have made a pile 66,000 ft high. That is the sort of challenge that the police face and they need our help to meet it.

If amendment No. 55 falls—I reiterate that I hope it does not—I hope that hon. Members will have the opportunity to vote on amendment No. 33.

Photo of Patrick Cormack Patrick Cormack Chair, Northern Ireland Affairs Committee

The Government have treated the House badly in their handling of the matter. They have not briefed Members adequately. Had they done so, we might have reached a collective view. I appeal to the Home Secretary to do that even at this late stage, before the Bill completes its passage because it will come back, mark my words.

The grotesque juxtaposition of introducing the on-the-runs measure today side by side with the subject of our debate—

It being three hours after the commencement of proceedings, Mr. Speaker proceeded to put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Amendment agreed to.

Mr. Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Amendments made: No. 52, in, clause 23, page 22, line 10, at end insert—

'( ) In paragraph 36 (applications for extension or further extension), omit the words "to a judicial authority" in sub-paragraph (1), and after that sub-paragraph insert—

"(1A) The person to whom an application under sub-paragraph (1) may be made is—

(a) in the case of an application falling within sub-paragraph (1B), a judicial authority; and

(b) in any other case, a senior judge.

(1B) An application for the extension or further extension of a period falls within this sub-paragraph if—

(a) the grant of the application otherwise than in accordance with sub-paragraph (3AA)(b) would extend that period to a time that is no more than fourteen days after the relevant time; and

(b) no application has previously been made to a senior judge in respect of that period."'.

No. 53, in page 22, line 11, leave out 'paragraph 36' and insert 'that paragraph'.

No. 54, in page 22, line 13, leave out 'new specified period' and insert

'period by which the specified period is extended or further extended'.—[Mr. Charles Clarke.]

Amendment proposed: No. 55, in clause 23, page 22, line 19, leave out 'three months' and insert 'ninety days'.

Question put, That the amendment be made:—

The House divided: Ayes 291, Noes 322.

N

Amazing. Tony Blair's first ever defeat in the House of Commons after over 8 years in government....

Submitted by Neil Richardson Continue reading (and 3 more annotations)

Division number 84

See full list of votes (From The Public Whip)

Question accordingly negatived.

Amendment proposed: No. 1, in page 22, line 19, leave out "three months" and insert "28 days".— [Mr. Winnick.]

Question put, That the amendment be made:—

The House divided: Ayes 323, Noes 290.

Division number 85

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Amendments made: No. 56, in clause 23, page 22, line 28, after 'authority', insert 'or senior judge'.

No. 57, page 22, line 33, after 'authority', insert 'or senior judge'.

No. 58, page 22, line 33, leave out 'special'.

No. 59, page 22, line 36, at end insert—

'( ) In sub-paragraph (4) of that paragraph (application of paragraphs 30(3), and 31 to 34), at the end insert "but, in relation to an application made by virtue of sub-paragraph (1A)(b) to a senior judge, as if—

(a) references to a judicial authority were references to a senior judge; and

(b) references to the judicial authority in question were references to the senior judge in question."

( ) In sub-paragraph (5) of that paragraph, after "authority" insert "or senior judge".

( ) After sub-paragraph (6) of that paragraph insert—

"(7) In this paragraph and paragraph 37 'senior judge' means a judge of the High Court or of the Court of Session."'.

No. 60, in clause 23, page 22, line 45, after 'authority', insert 'or senior judge'.—[Hazel Blears.]