Jacqui Smith (Home Secretary; Redditch, Labour)

New clauses 20 to 22, 24 to 30 and 32, and new schedule 1, introduce amendments to strengthen considerably the safeguards that we want to apply to any future use of the provision in this Bill for a reserve power to extend the period for which terrorist suspects could be held before charge. The Government believe that such a reserve power should be available, for use if necessary, to protect our national security and, most importantly, our people against the threat that we face from terrorism.

That threat is real and serious. First, the threat is unprecedented in scale. Some 65 terrorists have been convicted in our courts since the start of 2007, and there are more than 200 groupings and 200 individuals of concern to agencies in the UK today. Secondly, the threat is more ruthless than any we have faced before. It aims for mass casualties, uses suicide methods, and would use dirty bombs given half a chance.

Philip Davies (Shipley, Conservative)

Nobody underestimates the threat that we face, but if the Government are so determined to clamp down on the threat from terrorism, why does not the Home Secretary, as a first step, scrap the Human Rights Act 1998, which has done so much to stop undesirable people who may pose a serious threat being kicked out of the country? If she is so serious about this, she should scrap that Act.

Jacqui Smith (Home Secretary; Redditch, Labour)

As I will demonstrate today, I believe that it is possible to find a way both to safeguard our individual civil liberties and rights and to protect the people of this country—and that is what we are setting out to do.

Thirdly, the threat is more complex and international than ever before. Terrorists living and working in our society have learned how to use technology to cover their tracks. They travel a network, sharing experiences and learning from mistakes. Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas. That alone creates huge technological and logistical challenges for investigators.

Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)

On the issue of 42 days, can the Home Secretary explain why she said a few weeks ago on Radio 4 that she had no idea how many days would be required?

Jacqui Smith (Home Secretary; Redditch, Labour)

Our starting point has always been not the maximum number of days for which it should be possible to hold somebody, but whether there was a case for more than 28 days at all, and what safeguards should apply. I have been very clear from the outset that there had to be—

Several hon. Members:

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Jacqui Smith (Home Secretary; Redditch, Labour)

Just a minute. I am responding to the intervention by Mr. Llwyd. There will be plenty of time for other interventions.

I have been clear from the outset that there had to be an upper limit so that no individual could be detained indefinitely. The figure of 42 has been arrived at by assessing with the police and others the minimal additional period that, in our judgment, would make a significant difference in the sort of circumstances in which an extension would even be considered.

Keith Vaz (Leicester East, Labour)

On the issue of the threat, would my right hon. Friend like to comment on the statement made this morning by Lord Stevens about the state of the threat? Will she also confirm that she or her Ministers have discussed the proposals fully with the Director of Public Prosecutions?

Jacqui Smith (Home Secretary; Redditch, Labour)

The important point that Lord Stevens made this morning is the point that I was about to make about the threat. Given the ferocity of what is planned and the use of suicide methods, the police may well need to step in early to prevent a plot from coming to fruition. It is that combination of factors that means that police may need longer to get to the bottom of who and what is involved and then build a case on the basis of evidence that is admissible in court.

We have discussed this with the DPP and he has given evidence to the Committee chaired by my right hon. Friend Keith Vaz and the Public Bill Committee.

The nature of the threat and the need to intervene early have meant that the police have had to hold a small number of suspects for the full 28 days since the higher limit was introduced in July 2006. It is this that leads our most senior police officers to say, as Lord Stevens and others have, that they can foresee circumstances when it may be necessary—in order fully to investigate and charge—to hold terrorist suspects for more than 28 days.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

The Home Secretary is aware that the current system for charging places the responsibility for making that decision firmly in the hands of the Crown Prosecution Service. It is on the CPS that the responsibility falls. If the facts given by the Home Secretary mean that police fears are justified, why have the police been unable to persuade the CPS that there is any necessity for the extension? The CPS has to make those decisions, and will continue to have to make them.

Jacqui Smith (Home Secretary; Redditch, Labour)

It is the responsibility of this House and the Government to make a judgment and to bring forward laws that will then be implemented. If the hon. and learned Gentleman were ever in government, I would be very surprised if he then wanted to take a different approach.

I have described the risk. We cannot wish that risk away, and we should not try to.

Several hon. Members:

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Jacqui Smith (Home Secretary; Redditch, Labour)

I shall give way in a moment. The risk has been identified, and it is for us as law-makers to take the necessary precautions to respond to and cover the risk.

John Baron (Whip, Whips; Billericay, Conservative)

On the issue of complexity, the Madrid bombings involved 29 suspects, investigations spanning seven countries, 300 witnesses and tons of evidence in electronic and paper form. Why did the Spanish authorities need only five days to bring charges, when the Home Secretary is arguing for 42?

Jacqui Smith (Home Secretary; Redditch, Labour)

As many people have made clear during the course of the debate, there are fundamentally different systems in different countries with different thresholds for charging. In Spain, 14 people were arrested in January this year. It was only last week that they reached the stage equivalent to our charging, which means that a form of preventive detention was used that lasted 138 days. There are very different systems in different countries.

There are those who say that the advice of the police is not enough. I agree. Their voice is important, but it is not the only one. Striking the right balance between civil liberties and the rights of all our citizens to live free from terrorist attack evokes strong views. It is important to us all. That is why it has been important to me to consult closely.

Oliver Heald (North East Hertfordshire, Conservative)

If the Home Secretary wants to use this power only in grave and exceptional terrorist cases, why is she not prepared to do so under emergency powers? Is it because she does not want the safeguards in the Civil Contingencies Act 2004? That is what lawyers think. It is also what David Pannick thinks, and it is what I think. Is that not the truth?

Jacqui Smith (Home Secretary; Redditch, Labour)

Although I have great respect for what the hon. Gentleman says and thinks, let us make it quite clear that the Civil Contingencies Act— [ Interruption. ] No, I am afraid that it is not right. The Civil Contingencies Act would not contain any of the individual safeguards with regard to the review of extended detention by a judge that our proposals include, so it would be more draconian than our proposals.

William Cash (Stone, Conservative)

The Home Secretary might have noticed that I have tabled a new clause relating to habeas corpus. Does she accept that habeas corpus depends on whether a person is being lawfully detained? If a person was being lawfully detained under the provisions of the Bill, habeas corpus would not apply. Does she accept the proposals in principle that lie behind my new clause, which would ensure that habeas corpus was available and that the judge would decide the question of whether a person should be detained?

Jacqui Smith (Home Secretary; Redditch, Labour)

I agree with the principle argued by the hon. Gentleman. It is the principle behind habeas corpus, which is that the court must determine whether it has the power to detain a person. That is already enshrined in schedule 8 to the Terrorism Act 2000, which is the basis of our proposals in our provisions. A detainee will need to be brought before the court after 48 hours of detention and then at least every seven days after that. He or she therefore cannot be detained beyond 48 hours other than on the authorisation of a judge. The hon. Gentleman makes an important point about the principle of habeas corpus, which is enshrined in the principles of the proposals that we are putting forward.

Several hon. Members:

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Jacqui Smith (Home Secretary; Redditch, Labour)

I am going to make a little progress now. As I said, it has been important for me to consult closely with colleagues from all parties, with the Muslim community and with organisations such as Liberty, and to design proposals to get that balance right.

Mohammad Sarwar (Glasgow Central, Labour)

I want to thank the Home Secretary and my right hon. Friend the Prime Minister for the various meetings we have held to address the concerns about the impact that counter-terrorism legislation has on law-abiding British Muslim communities. What safeguards can my right hon. Friend guarantee to ensure that individuals who are arrested and detained for more than 28 days are fully compensated for the immense damage done to them and to their families and communities?

Jacqui Smith (Home Secretary; Redditch, Labour)

I am glad that my hon. Friend has been willing to engage in such a constructive way in ensuring that we deliver provisions that safeguard all our people regardless of their background. He identifies the wholly exceptional nature of holding anybody in detention beyond 28 days and for up to 42 days. I know that he, like others in the community, has expressed concern about those who have subsequently been released without being charged, and because of the representations that he has made, I have asked my officials to develop an ex gratia scheme that, because of the exceptional circumstances, would be available to compensate those who had been detained and then released without charge, or who had faced any other executive action. I hope that that offers my hon. Friend some reassurance, both about the exceptional nature of our proposals and about the fact that they are designed to protect all our communities, regardless of their background.

Several hon. Members:

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Jacqui Smith (Home Secretary; Redditch, Labour)

I shall make a bit of progress.

This is a good example of the consultation and the work that we have been willing to undertake to design the proposals so that we get the balance right. My right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing and I have been doing that for the best part of a year. In fact, my right hon. Friend has been doing it for longer. Anybody who compares our initial proposals from last July with what we are proposing now will see how far we have moved. We are not proposing a permanent, automatic or immediate extension to pre-charge detention beyond 28 days. Instead, the Bill contains a reserve power that could be used only in exceptional circumstances, only with the support of the DPP, only with the backing of Parliament in a vote in both Houses, and only with strong judicial safeguards, and for a temporary period before it automatically lapsed.

Angus MacNeil (Spokesperson (Environment, Food and Rural Affairs; Fishing and Tourism; Transport); Na h-Eileanan an Iar, Scottish National Party)

I am listening to what the Home Secretary is saying, but is this not essentially hollow macho legislation that is not so much about keeping terrorists in detention for 42 days but about keeping the Prime Minister in Downing street for two years? If he falls on this tonight, he will be out of Downing street within 42 days.

Jacqui Smith (Home Secretary; Redditch, Labour)

If people compare that intervention with the approach that my right hon. Friend the Minister of State and I have taken, they will understand where the charge of being hollow and macho should lie.

We have also made it clear that decisions about the detention of individuals will, as I have explained to Mr. Cash, be made by a judge. They will involve a full adversarial hearing with the suspect represented, and each extension will be for a maximum of only seven days.

Eleanor Laing (Shadow Minister, Justice; Epping Forest, Conservative)

On the narrow point about the damage that the Home Secretary is likely to do to the constitutional settlement by giving this House and Parliament an effectively quasi-judicial role, which is what she has just outlined, the doctrine of the separation of powers is a delicate balance, which keeps our constitution effective. She is damaging that balance with the proposals that she is making today.

Jacqui Smith (Home Secretary; Redditch, Labour)

It is wholly appropriate for Parliament to be given the function of approving an order that commences a piece of primary legislation, and wholly appropriate for the courts to assess on a case-by-case basis, as they will do, whether the police and the CPS need more time to collect and examine evidence, so that once that order is commenced, any given individual can be detained for a longer period. That is a completely appropriate use of the parliamentary role, which is separate from the judicial role in overseeing individuals' detention.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

I listened very carefully to the Prime Minister's answer to my right hon. and learned Friend Mr. Howard at Prime Minister's questions. The Prime Minister told him that Parliament would debate whether there was a grave and exceptional terrorist threat. I have to say to the Home Secretary that that is not what is said in her amendments. Parliament will be asked to approve an order stating that there is an

"operational need for further extension of"

the

"maximum period of detention".

As the request for the operational need will arise from particular cases, how can that approval be given without the House debating and having information about those specific cases? I am afraid that the Prime Minister is misleading the House on the matter. He may be doing so inadvertently, but that is what he has been—

Michael Martin (Speaker)

Order. The hon. and learned Gentleman knows what he must do: he must withdraw that remark.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

I apologise, Mr. Speaker. I qualified it; the misleading must have been inadvertent.

Michael Martin (Speaker)

Order. The hon. and learned Gentleman should withdraw the remark.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

I withdraw the remark.

Jacqui Smith (Home Secretary; Redditch, Labour)

I think that I made clear what the wholly different functions of Parliament and the judiciary were in the process.

Nick Palmer (PPS (Malcolm Wicks, Minister of State), Department for Business, Enterprise & Regulatory Reform; Broxtowe, Labour)

Many of us recognise that in the national interest, in extreme circumstances, a conspiracy may take longer to unravel. We are not tempted to support unprincipled opportunism on this issue. [Interruption.] It is no good shouting at me; it is like shouting at the reflection in the mirror. Like my hon. Friend Mr. Sarwar, I am concerned that if suspects are detained for six weeks, they may have to give up a considerable part of their private lives, and there may be a considerable risk to their jobs and mortgages. Will the Home Secretary confirm that we will give them adequate compensation if they are found to be innocent?

Jacqui Smith (Home Secretary; Redditch, Labour)

My hon. Friend has raised the point with me before, and I hope that he is reassured by the commitment that I gave my hon. Friend Mr. Sarwar about the work now under way to look at taking a wholly exceptional ex gratia approach to compensating those released after 28 days who are subsequently not charged.

In considering the provisions, some have said, "Show me the evidence now that we need 42 days." I have published evidence of the growing scale and complexity of plots. Frankly, the only other evidence that it would be possible to provide would be provided on the day when a terror suspect walks free because an investigation cannot be completed. I am not willing to wait until then to legislate.

Tony Lloyd (Manchester Central, Labour)

I very much understand the point that my right hon. Friend makes about the evidence that she can give for the need for a period of more than 28 days. It is a matter of practical fact that in one case it took my local police force 27 days, 20 hours and 40 minutes to charge someone. The chief constable is both honest and experienced in terrorism. I asked him whether that period was needed. He said that it was, and what is more, he believes that the time is close when he will need more than 28 days.

Jacqui Smith (Home Secretary; Redditch, Labour)

My hon. Friend makes a very important point, identifying the challenge facing those whom we task with investigating some of the most serious offences in this country. It is to respond to that that we have brought forward our proposals.

Robert Marshall-Andrews (Medway, Labour)

The first of the vaunted safeguards is that the power would be used when there was a grave and exceptional terrorist threat. That is defined as circumstances in which there is

"loss of human life...illness or injury...homelessness...damage to property...disruption of a supply of money, food, water, energy...communication... transport, or...health."

Can the Home Secretary give us an example of something that is not a grave and exceptional terrorist threat?

Jacqui Smith (Home Secretary; Redditch, Labour)

I am rather disappointed that my hon. and learned Friend has not read the new clause in sufficient detail. The last part of the list that he read out is a qualification of the second part of the first definition. I would have thought that with his legal background, he would have been more careful in reading the new clause.

Sammy Wilson (East Antrim, DUP)

Speaking as someone who comes from a part of the United Kingdom that has suffered very badly from terrorism over the past 30 years, I think that the members of our party take very seriously any threat to national security, and any actions that may give publicity to terrorists. On the power that the Home Secretary is seeking today, if the matter is to be debated in the House every time there is a severe threat, will it not give terrorists an opportunity to get the oxygen of publicity that she so much wants to deny them?

Jacqui Smith (Home Secretary; Redditch, Labour)

We would bring forward the order that requires a parliamentary debate at times—I believe that they would be wholly exceptional times—when there was a grave and exceptional terrorist threat and it had become clear to the Director of Public Prosecutions and the chief constable that the barrier of 28 days was likely to be met before they finished an investigation. As I have said on many occasions, I believe that that would be wholly exceptional, but when we need the power, it will be extremely important that it is in place.

Several hon. Members:

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Jacqui Smith (Home Secretary; Redditch, Labour)

I will make a little progress, and then I will give way again.

We have listened to those who say that until now there has been no need to extend the period beyond 28 days. That is why the legislation ensures that there can be no extension of pre-charge detention until and unless the evidence supports it—until there is a "grave exceptional terrorist threat" that might require a longer investigation time.

Bernard Jenkin (North Essex, Conservative)

Will the Home Secretary give way?

Jacqui Smith (Home Secretary; Redditch, Labour)

No. Some have said that we should use the Civil Contingencies Act if we want to detain suspects beyond the current limit. We do not believe that the Civil Contingencies Act, which is designed to deal with events such as floods and pandemics, could legally be used for the purposes of criminal detention, and we certainly need to ask whether the use of that legislation, which would effectively mean the declaration of an emergency, would give a propaganda victory to terrorists; that is the point that Sammy Wilson made. Incidentally, the use of that Act would also mean that people could be held in detention not for up to 42 days, but potentially for up to 58 days. That is the basis of my contention that that would be a more draconian approach to dealing with the challenge than the approach that the Government have taken.

David Winnick (Walsall North, Labour)

I am grateful to the Home Secretary for giving way; she has been very generous. Will she bear in mind the fact that when the Director of Public Prosecutions gave evidence to the Home Affairs Committee he made the point that if someone was held for 24 or 25 days without at least being charged on reasonable suspicion, it would make the prosecution unsuccessful in many instances? Is that not a factor in deciding whether to go beyond the 28 days? I must say that I am by no means persuaded that there is any justification for what is being proposed.

Jacqui Smith (Home Secretary; Redditch, Labour)

Of course, because the prosecutors and the police would have such a significant role in determining whether a further investigation would enable someone to be brought to charge, it is their responsibility to provide the Home Secretary with a report, so that consideration can be given to whether to bring in the order.

To return to the Civil Contingencies Act, although we do not think that it is the right vehicle on its own, there are aspects of the approach taken in the Act that we have been able to adapt in the Bill's proposals, such as the need to define the nature of the exceptional circumstances in which the reserve power could be used, and the need to gain parliamentary approval for the use of the powers.

Gordon Marsden (Blackpool South, Labour)

I am grateful to my right hon. Friend for giving way. As she knows, this is an issue on which I have had some concerns. Will she spell out some more examples of how the proposal might work in practice, accepting that there will never be an absolute case that can be advanced? Will she particularly touch on the extent to which the involvement of the United Kingdom in events that take place outside the United Kingdom is germane to the argument that she is putting to the House?

Jacqui Smith (Home Secretary; Redditch, Labour)

I am coming to the detail about the amendments, to show that we have been willing to go further to provide the reassurance that colleagues in all parts of the House have sought. In response to my hon. Friend, first, we are clearer in the Bill about the trigger for any use of the power. The power could be brought into force only where it is needed for investigating serious terrorist offences arising out of a grave and exceptional terrorist threat. People have asked what that means. We know that people have plotted to devastate our transport system, to blow up Bluewater shopping centre and, as I said, to use a dirty bomb. We have also seen plots to ensure multiple atrocities. We have seen plots on an international scale that would have brought death on a considerable scale to British people.

Several hon. Members:

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Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

Will the Home Secretary give way?

Jacqui Smith (Home Secretary; Redditch, Labour)

The hon. and learned Gentleman is on the Front Bench. He has had plenty of time in the Chamber and in Committee to take up these points.

In response to my hon. Friend Mr. Marsden, that is the order of threat that the provision is aimed to deal with—an event or situation involving terrorism that causes or threatens serious loss of human life, serious damage to human welfare or serious damage to the security of the UK. That set of circumstances is a higher test than originally proposed and is similar to the test in the Civil Contingencies Act.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

If the Home Secretary is so confident that that is a higher test, why have she and the Prime Minister explicitly avoided allowing judicial review of her decision?

Jacqui Smith (Home Secretary; Redditch, Labour)

It will be possible judicially to review the Home Secretary's decision on the basis of reasonableness. I have always been clear about that.

A further safeguard is that the use of the power would be limited to investigations involving only the most serious offences—for example, murder, conspiracy to cause explosions, acts preparatory—that is, those carrying a life penalty.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

In the Prime Minister's letter to Back Benchers, he said that the Government do not see judicial review as the way forward. What did he mean by that?

Jacqui Smith (Home Secretary; Redditch, Labour)

The right hon. Gentleman knows that he has made the case to me for the widening of the scope of judicial review. In our view there is an important role for Parliament to play in the process. There is an important role for the judiciary to play in determining the reasonableness of the Home Secretary's decision, and the individual decisions about an extension of pre-charge detention in any given case. I believe that that is an appropriate use of judicial oversight and review and parliamentary decision making.

Several hon. Members:

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Hon. Members:

Give way!

Jacqui Smith (Home Secretary; Redditch, Labour)

No, I will not.

Michael Martin (Speaker)

Order. The Home Secretary is here to put her case to the House. All the interruptions are causing other hon. Members not to be able to hear the case that is being put. That is unfair in many ways. I ask hon. Members to try to use some measure when they ask to intervene. Some of us know that that is a way of allowing hon. Members to put their own case on the record. They should be careful about that.

Jacqui Smith (Home Secretary; Redditch, Labour)

Secondly, our amendments will strengthen the role of Parliament, bringing forward the vote on the Home Secretary's making of the order from 30 days to seven days. On making the order, the Chairs of the Intelligence and Security Committee, the Home Affairs Committee and the Joint Committee on Human Rights will be informed of the decision, and we will seek and publish legal advice for Parliament.

Bob Spink (Castle Point, UKIP)

I am grateful to the Home Secretary. She is being extremely generous. Perhaps it would help the House if she explained whether she envisages that the circumstances of intelligence revealing that there was a specific and serious threat—for instance, against the people working in the City of London or in other areas of London—would operate the trigger that she referred to. About 8,000 of my constituents work on the front line of the world terrorist threat in London. Anything she can do to improve protection of them will be much welcomed by the country.

Jacqui Smith (Home Secretary; Redditch, Labour)

The hon. Gentleman well understands the nature of the threat that we face. It aims to cause mass casualties among the sort of people that he describes. That is the type of serious terrorist threat that we are seeking to tackle. He is right to remind us whom we are trying to protect.

Thirdly, our amendments reinforce the temporary nature of the power, reducing the length of time that it can be in force from 60 days to 30 days, with no renewal at the end of that period. In addition to that, there are other safeguards. Individual detention beyond 28 days would, as under present proposals, be considered by a judge. Any application for an extension beyond 28 days would require the approval of the Director of Public Prosecutions. The judge may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that further detention is necessary for the investigation of a serious terrorist offence.

The independent reviewer will report within six months of the reserve power ceasing to be available. A parliamentary debate will take place on that report, which will cover whether, looking back, individual suspects were held in accordance with requirements governing detention, whether proper procedures were followed for applications for detention beyond 28 days, and whether it was reasonable in all the circumstances for the Home Secretary to make the order.

Martin Salter (Reading West, Labour)

I thank my right hon. Friend for giving way, for the way in which she has conducted the debate through both the Home Affairs Committee and the Public Bill Committee, and particularly for the safeguards that have been put in place. Does she agree that it would have been preferable, when we had the debate on 90 days, to have gone through a similar process and for the safeguards to have been written in at that time? Would that not have saved the Government some embarrassment? Is there now no excuse for colleagues who voted for 90 days to have serious reservations about what is proposed today?

Jacqui Smith (Home Secretary; Redditch, Labour)

I believe that the threat now is greater and the safeguards are more real. I therefore hope that we can achieve the support of the House for our proposals.

Richard Ottaway (Croydon South, Conservative)

The Home Secretary will have heard the Prime Minister saying no fewer than four times during Prime Minister's questions that he was relying on advice from the security services. She will also be aware that the website of the security services said that the security services were neutral. Something has clearly changed since that statement was made. Will she publish the security services' advice on the matter?

Jacqui Smith (Home Secretary; Redditch, Labour)

As I spelled out when I was speaking about the nature of the threat, one of the arguments for what we are proposing is the growing scale of the threat that we face. It was the director general of the Security Service at the end of last year who identified the concerns about 2,000 individuals, 200 networks and 30 plots in this country. It is his description of the scale of the threat that has led us to consider what sort of response we need to make.

Simon Hughes (Shadow Leader of the House of Commons; North Southwark & Bermondsey, Liberal Democrat)

Clearly, the Government have rowed back from their original 90 days, but there has always been the qualification that it is possible to restrict the liberties protected by the convention—the words are there—when something amounts to a public emergency threatening the life of the nation, so why does not the Home Secretary rely on that, like all other countries do? Why have we seen every few years under this Government an increase in the powers of the state over the citizen, when no other comparable country equally threatened has thought it necessary to move in the same direction?

Jacqui Smith (Home Secretary; Redditch, Labour)

I am not completely clear what the hon. Gentleman is arguing, but I have spelled out the nature of the threat that we face, the requirement on us to take that threat seriously and the proportionate way in which we are addressing that. That is the basis of what we originally proposed in the Bill and it is strengthened by the amendments that I am putting forward today.

Karen Buck (Regent's Park & Kensington North, Labour)

My right hon. Friend is absolutely right to argue that the Civil Contingencies Act and the invocation of a state of emergency would be wholly the wrong approach and would give the oxygen of publicity to terrorists, but I, and I am sure others, remain deeply unconvinced that the proposed definition would not effectively catch almost all forms of terrorist activity, and would therefore not constitute an exceptional circumstance that generates the need for exceptional powers.

Jacqui Smith (Home Secretary; Redditch, Labour)

That is why the definition that we have set down requires serious loss of life or serious impact on human welfare, and it is that arm of the definition that is qualified by the list beneath it or serious threat to national security. I am willing to discuss this at further length with my hon. Friend and others, and I have no doubt that it will be scrutinised in detail when the Bill arrives in the House of Lords, but our intention in proposing the definition was precisely to limit the circumstances in which it will be possible to use the power. I hope that my hon. Friend accepts that that was the intention. It was also the reason why, in a spirit of developing consensus, we looked extremely closely at the wording in the Civil Contingencies Act, and built our definition on that. It is stronger than what we originally proposed, and I believe that it will tightly define the circumstances in which the power can be used. Of course that will quite rightly be subject to further scrutiny, not only today but when the Bill reaches the House of Lords.

Mark Durkan (Foyle, Social Democratic and Labour Party)

Earlier today the Prime Minister told us that, under the Bill, the Home Secretary would make a statement in the House showing that there was a grave exceptional threat. In fact, the Home Secretary will have to make a statement saying only that there is a grave exceptional threat. Those words are not a requirement for the triggering of the power; they are simply a requirement of parliamentary liturgy that we will have to go through.

Jacqui Smith (Home Secretary; Redditch, Labour)

It is the role of the Home Secretary to make the order, but it is an important parliamentary safeguard that the making of the order has to be approved by Parliament. As I have said previously, Parliament's role in approving the order is not a negligible or an insignificant safeguard. I am constantly surprised at parliamentary colleagues who believe that their role is so insignificant in the thinking of a Home Secretary. Trust me—Home Secretaries think very carefully about what they have to explain to Parliament and what they need to have approved by Parliament.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

I want to take the Home Secretary back to the exchange that we had during Home Office questions on Monday, when I challenged her on her admission in her conversation with Andrew Marr during his programme on Sunday that the security services were not pressing for this extension. She said that I was "plain wrong". I looked at the transcript, and that is exactly what she said. As my hon. Friend Richard Ottaway made clear, the director general of the Security Service made it clear that it is neutral on this matter; it is not pressing for it. So for the Prime Minister and for her to say that they are following the advice of the security services in bringing this forward is just plain wrong.

Jacqui Smith (Home Secretary; Redditch, Labour)

The hon. Gentleman is just plain wrong again. I have been very clear in my response as to what the director general of the Security Service has said on the record about the scale of the threat that we face. It is the scale of the threat that we face that is at the heart of the proposals that we are bringing forward and the way in which we seek to address them. If the hon. Gentleman wants to make debating points about the scale of the threat, that is up to him, but I believe that this is a serious threat that we need to address.

Terrorism is an assault on our civil liberties, on our democracy and on our values. Our response to terrorism must continue to be based on those values and liberties, ardently pursued through our democratic framework, primarily through our criminal justice system. But we cannot allow ourselves to be lulled into a false sense of security that might lead us to put at risk the liberty of all in Britain to live lives free from the threat of terrorist outrage and atrocity. In opposing terrorism, we must not lose sight of our values. For me, getting the balance right between individual freedom and collective security must always be at the heart of what we do. Our response must reinforce our shared values, not weaken them, because it is on those values that our security ultimately depends.

We have approached the Bill to build a consensus on how we can protect those values at the same time as protecting our national security. We have talked, we have listened, we have moved. Other than in circumstances involving a grave exceptional threat, the pre-charge detention limit for terrorist suspects will remain exactly as it is now. Indeed, that limit continues to be subject to annual renewal by Parliament.

I hope that we never need to extend the period, but the question that hon. Members need to ask themselves is whether they are confident that we will never need 29, 30 or 31 days to bring a terrorist suspect to charge, to put them in front of a court. The proposals that we will vote on today are better, fairer and more proportionate as a result of the process of parliamentary scrutiny and debate that they have undergone, but the time has come for hon. Members to decide. It is the job of Government, police and prosecutors to protect the public from terrorist attack, and thereby to defend everybody's right to life, but today it is the job of Parliament to give them the tools to do that. We need the support of the House for the proposals in the Bill. We need the support of the House to do the right thing for this country's security, and I commend the amendments to the House.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

"It is the job of Parliament to give them the tools"? It is the job of Parliament to defend the liberties that we have had for centuries.

I rise to oppose the Government's new clauses and to support amendments Nos. 4 and 5 to remove 42 days from the Bill. Today, there are essentially two arguments to deal with. The first is: have the Government made their case for 42 days? If not, this change should be rejected out of hand, because in this country we do not give away freedom without good cause. Secondly, if they have made their case, are the powers proportionate and are the checks and balances to prevent improper use of the powers adequate?

The issue of how long we incarcerate those on whom we have insufficient evidence to charge with any crime has become one of the defining debates of the last decade in this country. Notably, this week marks the anniversary of the signing of Magna Carta. For almost 800 years, we have built on the right of habeas corpus, founded in that ancient document: the fundamental freedom from arbitrary detention by the state. The liberty of the person is in our blood, part of our history, part of our way of life; Conservatives, Labour, Liberal Democrats, Democratic Unionists—all parties. Liberty is the common strand that binds us together, and we have shed blood to protect it, both abroad and at home.

Today the Government ask us to sacrifice some of that liberty. The Home Secretary offers a Faustian bargain: to trade a fundamental liberty for a little extra security. Yet, as the debate has gone on, the case for 42 days has first crumbled and then collapsed. So, after months of debate, what are the basic facts? The right hon. Lady said in her speech that the Home Secretary properly takes advice from the police but that that is not enough and we need to examine the evidence that they present. I think that that is what she said, so let us do so: let us look at the evidence that was presented by the Home Secretary's own witnesses.

Let us start with Sir Ian Blair, the Metropolitan Police Commissioner. In his evidence to Parliament, the commissioner said explicitly:

"We have never put forward a case that there is evidence of a need for an extension". ——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 11, Q3.]

He based his support for 42 days on "a pragmatic inference" based on trends in a number of plots and on those plots' complexity. In support of that, he and his counter-terrorism chief initially claimed that 15 terrorist plots had been thwarted since the 7/7 bombings. It was on that basis that he presented his evidence to the Bill Committee. But then it transpired that there had been a mistake. The corrected evidence revealed the true picture, which is that between 2003 and 2005, there were nine plots, three a year, and there have been four since the beginning of 2006, two a year. So, the number of plots, far from increasing, has actually decreased over the past three years. That is a good thing, but it is not an argument for extra powers, and although we should not underestimate the threat, we should not overstate it either.

The second witness who the Home Secretary brought before us was Mr. Peter Clarke. He argued exactly what was argued in the debate about 90 days, and he told us how complex and technical anti-terror cases were becoming. His example of a technically challenging case was that of Dhiren Barot. There is no doubt that it was a technically challenging case, but it was a case in which charges were successfully brought within 14 days—not 28 days, but 14—which is hardly evidence that we need three times as long. Mr. Clarke offered the observation that in the Barot case, police officers had occasion to sleep at the office. Frankly, I should prefer that police officers sleep at the office for two weeks than risk putting innocent people in a cell for six weeks.

Nick Palmer (PPS (Malcolm Wicks, Minister of State), Department for Business, Enterprise & Regulatory Reform; Broxtowe, Labour)

Is the shadow Home Secretary saying that he rules out the possibility that at some point there will be cases that are sufficiently complex to take more than 28 days to unravel? If he does not rule that out, what would he as Home Secretary do about them?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

The hon. Gentleman has heard me any number of times say that we will listen to the evidence. As I develop my case, he will hear that finding the evidence in the first place was difficult. Indeed, it was made more difficult by the Government, and that evidence does not support what the hon. Gentleman is saying.

Tony Lloyd (Manchester Central, Labour)

Will the right hon. Gentleman give way?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

In a moment. I want to get to the end of this part of my argument, because it is very important to this particular point.

The third witness was Ken Jones, the president of the Association of Chief Police Officers, who said that the police, operating under the current 28-day limit were "up against the buffers". That is the claim being made: not that we might be, but that we are up against the buffers. He based his judgment on the most complex counter-terrorism investigation in our history, Operation Overt, in respect of the alleged plot to blow 10 airliners out of the sky at Heathrow in August 2006. In that case, five people were held for 27 or 28 days. One can see why that superficial analysis leads us to the idea that we are up against the buffers, but it is only a superficial analysis. I asked Mr. Jones yesterday whether he had examined the detailed evidence in Operation Overt. He told me that he had not had the opportunity. I did look at the evidence. Three of the five suspects were held for the maximum period. More than half were innocent.

Frank Field (Birkenhead, Labour)

No, they were found not guilty.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

Innocent. That demonstrates— [Interruption.] We can reiterate the argument that we had last time. The last time I used "innocent", Labour Members exploded in uproar at the idea that those people might be innocent, so I told Labour Members that I had asked the police at the time whether they were concerned sufficiently to put those three people under control orders. "No," they said. I asked whether they were sufficiently concerned to put them under overt or covert surveillance? "No," they said. I asked whether they were carrying on any further investigations into them? "No," they said. I give way to the ex-Home Secretary.

David Blunkett (Sheffield, Brightside, Labour)

The right hon. Gentleman's latter point is very important, because in some of the cases that he cites, a lesser charge could have been offered. From all parts of the House, a case has been put that in respect of post-charge questioning, there is an opportunity for the police to continue doing what today's proposal of a 14-day extension allows in the most serious cases and for the most serious charge. Is it not either muddled thinking or, at its very best, a paradox, that those who are against the extension—with all the safeguards—to 42 days are happy for people to be charged with a lesser offence and then to be held in prison while questioning continues?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

The point that the right hon. Gentleman conflates—he has heard me argue this—is that the inability to question post-charge forces police and, more importantly, the Crown Prosecution Service, to defer charging because they are unable to continue gathering information about the case from the individual once the charge has been made. That is not the same point as the point that he makes. It is a very important point, but it is not the one that he made.

Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

Will the right hon. Gentleman give way?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

If the hon. Gentleman will forgive me, I want to go through this point. It is quite important. I always give Members an opportunity to intervene later in my speeches. [Interruption.] I shall, however, give way to the Under-Secretary of State for the Home Department, Mr. Coaker, if he wants.

Vernon Coaker (Parliamentary Under-Secretary, Home Office; Gedling, Labour)

indicated dissent.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

No, obviously not.

Three of the five suspects—more than half—were held for the maximum period and they were innocent. That demonstrates not a virtue but a serious danger with further extension, namely that the longer one holds people without charge, the more likely they are to turn out to be innocent. Incidentally, of the six cases that John Stevens cited as taking us to the brink—they are, I think, the words that he used—half were proved innocent. There is a danger intrinsic in the extension when it involves cases in which there is no apparent evidence or not sufficient evidence in that there is more of a risk of detaining people who are innocent than of detaining those who are guilty.

Several hon. Members:

rose —

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

I shall give way to my hon. Friend Mr. Brazier

Julian Brazier (Shadow Minister, Transport; Canterbury, Conservative)

Does my right hon. Friend agree that there is a certain irony in the right hon. Lady the Home Secretary citing the Madrid bombing as one of the most extreme examples of complexity, when her Government have welcomed two former Guantanamo bay suspects, who are not British citizens, back to Britain despite the fact that the Spanish police are desperate to get hold of them?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

My hon. Friend makes his point, but it would take me rather offline to follow him down that route.

Let me return to the point about innocence, because Ministers now intimate—if they do not say so outright—that they will pay compensation in cases where innocent people are detained for longer than 28 days. Could we ever have a more explicit admission of the inevitable failure of the law or of the foreseeable injustices that it will bring? It is for this House to search its conscience—to determine whether putting in place a system of six weeks' detention, when on current experience half or more cases are likely to be proved innocent, will serve the vital interests either of our national security or, very importantly, of British justice.

Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

Will my right hon. Friend give way?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

No. I have a small but important point to get through, and then I shall take some interventions.

What about the other two cases in which people were held for 28 days? They are implicitly held up as the illustration that, due to the complexity of investigations, 28 days is proving inadequate. Is that really what those cases show? The key question is, when was the evidence available on which the charges were based? Ministers and officials have been asked a number of times—the Home Secretary has been asked a number of times—to answer that question, and they have implied that the evidence was obtained very late in the 28-day period.

During our numerous meetings, when we were trying to reach a consensus, I asked the Home Secretary three times to show me the facts that demonstrated that evidence gathering had delayed the decision to charge in Operation Overt. But she failed to explain—even in the most general terms, or on a Privy Council basis, which I would have been perfectly happy to accept—what the evidence was or when it was acquired. I was forced to establish the facts myself and then to check them with the investigating team at Scotland Yard. My hon. and learned Friend Mr. Grieve, the shadow Attorney-General, checked them with the Crown Prosecution Service. The facts are as follows: in neither of the two cases was the evidential basis of the charge encrypted data, evidence requiring complex forensic analysis or intelligence from overseas. In one case, it comprised telephone records, handwritten and printed literature, an unencrypted CD and a receipt, all of which were available within four days of arrest. The second case was based on witness statements, mobile phone text messages and a single unencrypted computer file, all of which were available within 12 days of arrest.

That does not mean that the police should be criticised—far from it. They should be commended for their handling of that operation, as I have said on several occasions. Nor does it mean that the CPS acted improperly—it rightly looked to gather as much evidence as possible under the rules that it is given by this House within the time frame that Parliament sets it. However, it does show that in the most complex terrorism investigation in our history, all the evidence on the only two suspects charged after 21 days was in the possession of the police within four and 12 days respectively. I suspect that that is why the Director of Public Prosecutions does not believe that the extension is at all necessary or foresee circumstances in which it will be necessary in future.

Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

The right hon. Gentleman is basing his whole argument on his assertion that there is no evidence that proves that these powers are necessary. Surely the only evidence that there could possibly be would be a catastrophic failure of the criminal justice system that meant that the police were unable to charge somebody before the end of the 28 days and that person then going on to commit a major atrocity. That is precisely what we are all trying to avoid. [ Interruption. ]

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

Hon. Members should not heckle the hon. Gentleman—he is well intentioned in this matter. I would say two things to him. First, he is making a case for indefinite detention. Secondly, this is why we asked the Government to consider using the Civil Contingencies Act 2004. The Home Secretary says that it is not capable of being used, although David Pannick, the Government's counsel of choice—the man who wrote the textbook on these subjects—says that it is. I offered the Home Secretary sufficient changes to make it usable in such circumstances, because it contains some protections that are worth having but are not available in the Bill. That was the "CCA plus" offer that people have read about in the papers. We did that on the basis of the argument made by the Home Secretary's predecessor.

Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

Will my right hon. Friend give way?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

If my hon. Friend will forgive me, I have not finished my answer.

Martin Salter (Reading West, Labour)

rose—

Rob Marris (PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office; Wolverhampton South West, Labour)

rose—

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

I will not give way for the moment—forgive me.

The Home Secretary reminds us time and again that she is, in her words, "responsible" for national security. She is right to stress that. A Home Secretary must take advice from all members of the law enforcement agencies, but she must check and ask questions; she must establish the facts, as we have been doing this afternoon. That is her responsibility. As the evidence in favour of extending pre-charge detention has evaporated under scrutiny, it has been replaced with growing evidence that the pre-charge detention proposals risk making us less, not more safe. The former chief inspector of constabulary has described the proposal on 42 days as a "propaganda coup" for al-Qaeda. They are a gift to "propagandists" that will drive the brainwashed to "acts of martyrdom", according to one former Metropolitan police commissioner. They are a threat to local community intelligence, according to the Government's own impact assessment on the Bill. The proposal is wrong in principle and dangerous in practice.

Barry Gardiner (Brent North, Labour)

The right hon. Gentleman has built his case on the instance of the two cases where, he says, the evidence was available on the 12th day, at the latest. Why, then, does he believe that the Crown Prosecution Service kept those individuals in detention through to the 27th or 28th day? Did it do that recklessly, or was there a reasonable belief that further evidence could be uncovered that would be material to a prosecution?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

The hon. Gentleman raises a perfectly reasonable point. I am not surprised that he does so, because the Minister for Security, Counter-Terrorism, Crime and Policing has attempted on several occasions to misrepresent this point of view. I have said that the CPS did not act recklessly. There are issues that police forces and prosecutors have to decide on in every case. If they have 20 or more suspects to deal with, a prioritisation process inevitably takes place, as we saw in the Overt case. All those charged with the most serious charge of conspiracy to murder were charged before 21 days, and the massive majority of them were charged before 14 days. It is entirely understandable that the prosecutors and the police focus on that area first. That is why I am concerned—it is not an accusation but a concern—that one of the effects of this will be to leave until the end of the process the people who are innocent, or against whom there may be a suspicion although they are innocent. There is a serious danger that extending it any further will mean more innocent people being put in a cell for six weeks.

John Gummer (Suffolk Coastal, Conservative)

Does my right hon. Friend agree that the problem of extending the 28-day period is that it will have the opposite effect to that which Barry Gardiner suggests, because it will make it easier for people to say, "We've got plenty of time, so we need not speed up this process to the maximum"? Is not that something that any innocent person caught up in this must worry about?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

I understand my right hon. Friend's point, although I do not agree with it, in truth. However, there is a subtle related point. The CPS will seek to obtain a so-called full code charge—one with a 51 per cent. plus chance of conviction—because that is its guidance. If it is unable to obtain it, it may well want to use all the time available to try to do so instead of using the lower so-called threshold charge. The two people I mentioned were charged under the threshold charge arrangements. It is entirely possible—I do not know; it is pure surmise—that there was an attempt to obtain a full code charge. That is entirely legitimate and entirely the proper way for the CPS to act. The situation is not its fault, but our fault, because it arises directly out of the rules system that we created for it.

Julian Lewis (Shadow Minister, Defence; New Forest East, Conservative)

My right hon. Friend referred to people being released right up against the buffers, as it were. The Government are saying that the nightmare scenario is that someone would be released after 28 days and then go on to commit some heinous offence. They are also saying that the numbers of people involved in the exercise of 42 days' detention would be very small and in circumstances of grave threat. Surely it is hard to imagine any circumstances where if someone had to be released after 28 days, they would not be under the most intense surveillance thereafter. It is hard to see how even if they were released under those circumstances, they could then precipitate an atrocity on the scale that the Government anticipate.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

My hon. Friend makes a good point. There are two aspects that relate to a small number of cases involving one, two or three people. This is where the Home Secretary differs from me in wanting the scope to act. It is entirely possible that the security agencies and the police could put a small number of people under close surveillance—through a control order, I suppose, if one believes that they work. It could be overt surveillance—there is no reason why a police car could not be put outside a house—or covert surveillance. All those things are possible.

My hon. Friend reminds me of something that I forgot to say earlier. Implicit in some of the arguments made is that the people in question are a threat or danger to the public. The image conjured up is one of some sort of dangerous terrorist who will go out to bomb the nearest station or plane. Indeed, the Home Secretary implied that when she spoke of 28 days' detention putting the public at risk.

Rob Marris (PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office; Wolverhampton South West, Labour)

Will the right hon. Gentleman give way?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

No, not at this point.

As a result of the procedures that I described before, the people dealt with last under the system tend to be the least dangerous. They were not the ones charged with conspiracy to murder. In fact, in the two cases that we are talking about, they were subsequently released on bail. If they were released on bail, the courts clearly did not think that they posed an ongoing threat to the public. I am afraid that that argument falls in tatters, too.

Rob Marris (PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office; Wolverhampton South West, Labour)

Can I gently suggest to the right hon. Gentleman that there is a big contradiction at the heart of his position? On the one hand, he cloaks himself in the principles of ancient civil liberties, going back to Magna Carta and so on, but on the other, he goes on to advocate alternative devices to get round those very civil liberties. For example, he advocates the use of the Civil Contingencies Act 2004, post-charge questioning and intercept evidence, and he advocates the charging of someone with a lesser offence and holding them while a potentially greater offence is investigated. That is a contradiction in his position. Is it principled or is it practical?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

Earlier, I did not pull up the former Home Secretary, Mr. Blunkett, when he attributed that view to me. It is not my view, and has never been my view. However, let us take one of the hon. Gentleman's cases of an incursion on our civil liberties. He says that the use of intercept evidence in court is such an incursion. No, the incursion on our civil liberties occurs when the intercept is made. That is why there are warrant arrangements and controls on intercepts. Not using such evidence in court has nothing to do with civil liberties—it is to do with a judicial decision and an intelligence decision. He should have got his case a bit straighter.

Some weeks ago, the Government were clearly at risk of losing this aspect of the Bill, so they conjured up a series of so-called safeguards. Interestingly, given what was just said to me, they are an attempt to import—almost in the words of the Home Secretary—a diluted version of the Civil Contingencies Act into the Bill. Again, this comes as something of a surprise. The House will recall that Ministers spurned the Civil Contingencies Act model for months and said that it was inappropriate, fundamentally flawed and a draconian response. I begin to wonder who wrote the Act—I thought that it was this Government.

If the Civil Contingencies Act is draconian, it is hard to understand why, in her proposals, the Home Secretary's deliberately diluted the safeguards that are supposedly based on the Act. The Home Secretary says that the 42-day power of detention could be invoked only if there were a grave, exceptional terrorist threat. The point was made by Mark Durkan earlier that that is not a condition for invoking an extension beyond 28 days; it is merely a notification requirement. Even then the notification requirement will not refer to that, but to an operational necessity. It is merely a notification requirement, entirely irrelevant to the unfettered discretion that the Home Secretary will retain.

Even if it were relevant, let us consider what could constitute a grave, exceptional terrorist threat. Mr. Marshall-Andrews made this point earlier: the small print of the new clause refers to events that cause or threaten

"(a) serious loss of human life

(b) serious damage to human welfare in the United Kingdom, or

(c) serious damage to the security of the United Kingdom."

I am being charitable on this. Those definitions are so broad—a massive expansion of the criteria in the Civil Contingencies Act—that virtually any terrorist plot would satisfy them. The Dhiren Barot plot in 2004 to set off a dirty bomb would easily meet those conditions, but the charging was concluded in 14 days. The Operation Crevice fertiliser bomb plot in 2004 would also meet the definition, but all the charges were brought within 14 days. The 21/7 attacks would certainly qualify, but again all the charges were brought within 14 days. The definition of grave, exceptional threat is not only irrelevant to the power of the Home Secretary to order 42 days' detention, it simply does not matter at all.

Gordon Marsden (Blackpool South, Labour)

The right hon. Gentleman has given a set of examples, but I am not sure that they are germane to his original question. I put this question to him: if he does not think that the definitions in the Bill constitute an adequate definition of a grave and serious threat, what criteria would he present to the House?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

The hon. Gentleman raises an important point, and I will try to give him the most serious answer I can— [ Interruption. ] —the one that the hon. Gentleman's question deserves, namely, yes. There are two categories of circumstance with regard to a threat to the state that the Government might face. One is a situation that obviously worries the Home Secretary, where perhaps 25 people are arrested and we are left with one, two or three at the end for whom we do not quite have enough evidence. We can deal with that, as was pointed out by my hon. Friend Dr. Lewis, by a variety of other mechanisms, including— [ Interruption. ] Surveillance, I say to the Security Minister—I think that is who he is. It certainly can be dealt with that way, but it can also be dealt with by the threshold test for prosecution—the reasonable suspicion test.

The other circumstance is where there are a vast number of attacks on the state at the same time. The Security Minister—the Minister for Security, Counter-Terrorism, Crime and Policing—referred to it as the three 9/11s test. Under those circumstances, we would be overwhelmed, and we would need a definition of a state of emergency. This is what the Government object to. The matter is important because full judicial review can apply a test as to whether a state of emergency applies, in a way we cannot as individuals discussing the matter in the House of Commons. That is the point of distinction, which is why we offered the Home Secretary very early on in the process a modification to get "CCA plus", as it was known in the jargon at the time, if she wanted it. We were willing to do that.

Jim Sheridan (Paisley & Renfrewshire North, Labour)

At the beginning of the right hon. Gentleman's contribution, he rightly reminded the House of the history of this country, and Mr. Cameron mentioned during Prime Minister's questions the untimely death of Airey Neave. I gently remind the shadow Home Secretary, however, that his Government were responsible for internment without charge and without limit of hundreds, if not thousands, of Irish people. Would he therefore inform the House when and how he changed his principles on civil liberties?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

I regret to tell the hon. Gentleman that I was not a Member of the 1972 Government. I never believed in internment; it was a dreadful mistake, and the hon. Gentleman is exactly right about that. One of the problems that we have to address today is whether we learn from that mistake or not. That is what we are trying to do in this exercise.

Alan Beith (Berwick-upon-Tweed, Liberal Democrat)

I want to take the right hon. Gentleman back to the important point that he was making, and one of its consequences. The definitions in the Bill are such that if, like the right hon. Gentleman and myself, one has occasion to read the documents on such matters, one has to conclude that such threats exist now. It follows, therefore, that one trigger is already present, and if the Government seek to activate the procedure, the only thing that the House of Commons can profitably discuss is whether the police have in detention persons whom it is necessary to hold for a period longer than 28 days. In other words, we will be left with the absurdity of the House of Commons behaving like a court.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

The right hon. Gentleman is exactly right. He is very experienced in this area and he knows the subject backwards. He has, in fact, been used by the Government on the matter. He points out what is fundamentally flawed in the Bill. This House is not a court. It cannot be and it should not be.

John Baron (Whip, Whips; Billericay, Conservative)

Having served in Northern Ireland, I suggest to my right hon. Friend that internment was not just a mistake, but counter-productive. It went directly against the armed forces because terrorists were able to go into communities and recruit actively, on the basis of internment, much better than they could otherwise. We do not want to make that mistake in this country with communities from whom we seek co-operation.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

That is exactly right, and that is why so many of the chief constables and ex-chief constables whom the Home Secretary does not quote feel that the measure is very dangerous.

Jacqui Smith (Home Secretary; Redditch, Labour)

Like who?

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

Geoffrey Dear, Her Majesty's former inspectorate of constabulary, who said in terms that many of his currently serving colleagues say the same.

The other problem is that there are no additional judicial safeguards over and above what we have now for the individual. The House need not take my word for that; indeed, David Pannick QC, a leading practitioner in the field, the Government's counsel of choice and the man who literally wrote the textbook, provided a formal legal opinion on the Bill:

"Not only do the Amendments fail to replicate the safeguards in the 2004 Act but they fail, significantly or meaningfully, to provide similar or analogous safeguards."

That is the point that Martin Salter raised earlier.

The truth is that the Government's so-called concessions are not a serious attempt to sustain consensus by providing proper checks and balances of the Home Secretary's now draconian powers. They are a vain attempt to save face. The Government have salami-sliced the safeguards, watered down the checks and buried an issue of high principle in a blizzard of fine print.

Diane Abbott (Hackney North & Stoke Newington, Labour)

I am grateful to the right hon. Gentleman for giving way. Why are those Members who are opposed to the principle of 42 days' detention without charge prepared to accept the Civil Contingencies Act or the existing legal possibility of derogating to the European convention on human rights? It is because both the CCA and the power of derogation could be used only in exceptional circumstances. The fear in the Muslim community in my constituency, and in Muslim communities up and down the country, is that if the 42-day period goes on the statute book in the terms proposed, it would become routine, with all the negative consequences for our security and for community cohesion that we have heard about.

David Davis (Shadow Home Secretary (Assisted By Shadow Law Officers), Home Affairs; Haltemprice & Howden, Conservative)

I am glad that I gave way to the hon. Lady.

There is nobody in the House—not one person—who does not feel horror at the loss of life or the pain and mutilation suffered by the victims of terrorism. But two wrongs do not make a right, least of all if what we do is ineffective, unnecessary or even counter-productive, as the hon. Lady has just pointed out.

I have no sympathy whatever for terrorists. However, to put the issue in real terms, not on paper, I want hon. Members to imagine what it feels like for someone who is innocent under the proposed regime. They are taken from their bed in the early hours of the morning, which is what normally happens. They are locked in a cell for six weeks—1,000 hours—and they do not know why: not what they are accused of, not what the suspicions are, not what the evidence is. They do not know what is happening to their job. They do not know what is happening to their reputation. They do not know what is happening to their wife or their neighbours. They do not know what is happening to their children, who sometimes face the harsh cruelty of other children. They do not know that for six weeks—1,000 hours. No money on this earth will compensate for that.

What we have is the worst of all worlds: a symbolic assault on liberty that is unnecessary, a change in the law that is counter-productive and a procedure that is unworkable. We do not defend our liberties by sacrificing our liberties. We must reject the Government's proposals.

Keith Vaz (Leicester East, Labour)

I begin by thanking David Davis not just for giving formal evidence to the Select Committee on Home Affairs when we considered the Government's counter-terrorism proposals, but for the private notes that he sent me and other members of the Committee, which were extremely helpful in allowing us to make our final determination.

The right hon. Gentleman and others are quite right: this is an occasion of high politics, because this is Parliament, and of high drama, because of the outcome of the vote. More importantly, however, this is an occasion of high stakes, because we are dealing with the protection not just of our people, but of the liberties of individuals. Everyone, in all parts of the House, will take the issue and this debate very seriously indeed.

Last year, the Committee held an inquiry into the Government's counter-terrorism proposals. It began as a short inquiry, looking into the way in which those proposals had developed and at the 28-day period. Shortly afterwards, however, following the Prime Minister's statement to the House, we extended the inquiry to cover a number of other aspects. We took evidence from Sir Ian Blair, the Metropolitan Police Commissioner, the deputy assistant commissioner, Peter Clarke, the director of human rights for the police, the director of Liberty, Shami Chakrabarti, and the Prison Service.

We sought the opinion of the members of what was called the Forest Gate two— Mr. Mohammed Abdul Kahar and Mr. Abul Koyair, who had been detained by the police and then released. We also took evidence from Rachel North, a writer and one of the survivors of 7/7, as well as from the right hon. Member for Haltemprice and Howden, speaking for the Opposition, and the then Liberal spokesperson, Mr. Clegg. [ Interruption. ] We did indeed take evidence from the Home Secretary—I am coming to her, but she has to wait her turn.

Those evidence sessions and the fact that we took evidence from a wide variety of individuals and organisations were important, because we wanted to produce a thorough report and to ensure that we covered all the points that were made to us. We also took evidence from the Home Secretary, who answered 149 questions and appeared before us twice, on one occasion at very short notice, leaving Cabinet before time to get to us. The co-operation that we received from the Government and others was extremely helpful.

We came to the conclusion that there was absolutely no evidence to support a permanent extension of the 28-day period to 42 days. We felt that the nature of permanence was such that no information placed before us could justify such an extension.

Paul Goodman (Shadow Minister, Communities and Local Government; Wycombe, Conservative)

Did the right hon. Gentleman take evidence from Mr. Khurshid Ahmed, the chairman of the British Muslim Forum? I ask because Mr. Ahmed was reported yesterday as having views that justified the headline "UK's top Muslim backs '42 days'", but he is quoted this morning as saying:

"In some cases 28 days have been needed but there has not been a case demonstrated to go beyond."

Keith Vaz (Leicester East, Labour)

Anyone could have given evidence to our Committee. We did not take evidence from that particular gentleman, although he has said that he is in favour of the extension. As the hon. Gentleman will know, we could not take evidence from absolutely everyone involved. I have read a list of those involved, but anyone could have submitted evidence to us.

Despite saying that there was no case for an extension of the permanent limit of 28 days, we made it clear not just in the most recent report, but in a previous report, when the Committee was chaired by my right hon. Friend the now Secretary of State for Innovation, Universities and Skills—some of the members who contributed to the 2006 report are still serving on the Committee—that the current limit of 28 days might prove inadequate in the future. Both the Home Secretary and, more particularly, the Metropolitan Police Commissioner told us that they foresaw circumstances in which an extension would be necessary. The right hon. Member for Haltemprice and Howden and the former spokesman and current leader of the Liberal Democrats both saw that as a possibility in certain circumstances. We noted that Lord Goldsmith, the former Attorney-General, who was part of the Government when they put forward their proposal for 90 days, also envisaged the possibility of an extension in the future.

We considered at some length Liberty's proposals that part 2 of the Civil Contingencies Act 2004 could be used in those exceptional circumstances where we both felt that it would be necessary to go beyond 28 days. We concluded, however, that the Act as drafted was not intended to deal with a situation of that kind. I pay tribute to Shami Chakrabarti and Liberty for the way in which they have engaged not just with the Select Committee, but with hon. Members and the Government. It is common knowledge that Liberty met the Home Secretary, the Prime Minister and others to discuss the legislation. It is right to engage with organisations such as Liberty, which has a wealth of knowledge and experience that can be put to great use. We felt that the Civil Contingencies Act 2004 was not the right vehicle, however, because we did not believe that the best way to deal with a situation of this kind was to have a state of emergency. Indeed, as the House knows, if the 2004 Act is adopted, it will take the period well beyond what is envisaged in the Government's proposals.

We urged the Home Secretary to begin urgent discussions with other parties to try to build consensus. I know that she and others have been criticised for engaging with Members of Parliament. Some very cynical points have been made—not so far in today's debate, if I may say so, but outside the House—about why the Prime Minister, the Home Secretary and the Minister for Security, Counter-Terrorism, Crime and Policing should be discussing matters with Members of Parliament. Of course they should. That is the nature of government. How dreadful it would be if the Government decided on a particular course of action and then never consulted anybody else. I hope that Home Secretary will not mind my having a slight dig at her—I am, after all, supporting her tonight: if only the Government had done the same thing over police pay, there would have been a different scenario. That aside, this engagement is extraordinarily important and has helped to bring a better proposal before the House; it has certainly moved a long way since the original proposals were made in July last year.

Andrew Robathan (Deputy Chief Whip, Whips; Blaby, Conservative)

I am grateful to the right hon. Gentleman, my neighbour in Leicestershire, for giving way. I am listening to what he says, I understand that he is supporting the Bill and I think that engagement can, indeed, lead people to change their minds. However, I also understand that he and his Committee were originally against any extension to 42 days, so will he take the opportunity to crush the churlish and ridiculous rumour that at some stage in his discussions with the Home Secretary and the Government, the issue of knighthoods or anything like that was mentioned?

Keith Vaz (Leicester East, Labour)

If a knighthood were on offer, it would sit better on the shoulders of the hon. Gentleman, representing as he does a county seat in Leicestershire. [Interruption.] No, it was certainly not offered—but I do not know; there is still time.

To be serious again, as I am sure the hon. Gentleman was seeking to be in making that ridiculous comment, our conclusion was endorsed by 11 votes to one in a cross-party inquiry that included four Conservative Members—the hon. Members for Newark (Patrick Mercer), for Monmouth (David T.C. Davies), for Hertsmere (Mr. Clappison) and for South-West Devon (Mr. Streeter)—and a Liberal Democrat, Mr. Browne. Our conclusion was that there may be in future the possibility of an extension, and we set out very clearly the grave and exceptional circumstances that might exist.

David Davies (Monmouth, Conservative)

The right hon. Gentleman does an excellent job of chairing the Committee and of encouraging consensus there, which is very important for Select Committees. Does he agree, however, that great concern was expressed by some members of the Committee about 42 days and that, in the end, the report was almost unanimously signed off because we wanted to make it clear that if there were to be an extension beyond 42 days, safeguards had to be in place. That did not necessarily imply full support for an extension beyond that period.

Keith Vaz (Leicester East, Labour)

The hon. Gentleman is absolutely right; of course there was controversy about this issue in the Committee, as there is in the House more widely. The fact remains that by 11 votes to one, the Committee decided that there was a possibility of exceptional circumstances arising in the future and we set out carefully the wording, referring to "grave" and "exceptional" circumstances in which an extension might be sought. The only member of the Committee to vote against was my hon. Friend Mr. Winnick, for whom I have the highest regard. He has been absolutely consistent on this matter from the time that he put forward the 28-day rule. I have huge respect for him and I recall his saying to the Committee that he felt that this was opening a window that we would, in his words, regret. He feared that the Government would use the provision in future to claim that exceptional circumstances demanded a further extension.

Jeremy Corbyn (Islington North, Labour)

rose—

Keith Vaz (Leicester East, Labour)

I shall give way in a moment. The fact is that the Committee decided in a near unanimous report that, in future, such circumstances might arise, just as the Civil Contingencies Act 2004 accepts that an emergency situation could arise in future.

Jeremy Corbyn (Islington North, Labour)

Does my right hon. Friend accept that my hon. Friend Mr. Winnick was absolutely right to express his concerns about this matter? It has come to pass in a very few weeks that the Government want 42 days, and I suspect that in a couple of years' time, another Home Secretary will want even more. That is the nature of proposals that endlessly give politicians more powers over the process of detention.

Keith Vaz (Leicester East, Labour)

I have known my hon. Friend for many years. He was the first Member to support me when I was selected to stand in Leicester, East, so I have a high regard for him and for the way in which he defends the civil liberties of his constituents, but he is wrong. That is not what is being proposed today, and I am glad to be able to clarify that for him. We have made it very clear that this is not a permanent extension and I would not vote for a permanent extension beyond 28 days— [Interruption.] No, I would not. This is a specific extension on an emergency basis. The Select Committee said in 2006, before I was even a member of it, that there would be circumstances in the future in which the period should be extended. In December, the Committee, which I now chair, decided by 11 votes to one that there would be grave and exceptional circumstances, and the Government have merely adopted our language.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

rose—

David Howarth (Shadow Solicitor General, Ministry of Justice; Cambridge, Liberal Democrat)

rose—

Keith Vaz (Leicester East, Labour)

I give way to Mr. Grieve, who has just taken silk.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

I am most grateful to the right hon. Gentleman. He has looked carefully at the Government's proposals and I agree with him that the phrase "grave exceptional terrorist threat" might, given its ordinary English meaning, be taken to connote the sort of emergency that is akin to the Civil Contingencies Act 2004. However, does he agree that if we look at new clause 20, we find that the definition of a "grave exceptional terrorist threat" is extremely wide—much wider than that of a state of emergency? Does he also agree that the bizarre aspect of the Government's proposals is that the basis will not be a grave exceptional terrorist threat, which Parliament will be asked to decide on in any case, as we will be asked to vote on an order that is simply a report on an operational need for a further extension of the maximum period of detention? Will the right hon. Gentleman please explain what the Home Secretary seems to have been incapable of explaining—how the House will be able to carry out its scrutiny processes in practice and how the Civil Contingencies Act in any way approximates to what the Government are actually doing?

Keith Vaz (Leicester East, Labour)

I am satisfied that the safeguards that the Government have put in place will deal with all the issues that the hon. and learned Gentleman has mentioned. I am satisfied that the proposed parliamentary scrutiny is sufficient. I am pleased that the Home Secretary has lowered the period from 30 days to seven. Of course, if we could all have our lives again, it would have been much better if the Civil Contingencies Act had been amended so that these proposals were not brought forward, but we are not there at the moment, and I am satisfied that Government's changes will deal with that situation— [Interruption.]

Several hon. Members:

rose —

Keith Vaz (Leicester East, Labour)

I am satisfied about that, and I am quite clear that the parliamentary, judicial and administrative scrutiny that the Home Secretary and the Government propose to give to Parliament and the judges is sufficient to deal with this issue.

David Winnick (Walsall North, Labour)

I am grateful to my right hon. Friend for giving way. I certainly will not say anything unkind. I would not do so in any circumstances, especially after his kind words about me.

My right hon. Friend sent out an e-mail to colleagues urging—together with a number of my hon. Friends—support for the Government. It says:

"We are adamant that the legislation",

which is now being debated,

"will affect only those who would use terrorism against our people".

How do we know that? Is there not a danger that we will be declaring people guilty who may not be guilty and who may be released? Those are very dangerous words. I hope he will reflect on that.

Keith Vaz (Leicester East, Labour)

I cannot believe that any e-mail that I could send out could be regarded as dangerous. I and many colleagues, some of whom are here today, were concerned to ensure that people understood, because if my hon. Friend considers the signatories to that letter, he will see that many of them, including me, represent large numbers of members—

David Winnick (Walsall North, Labour)

And voted for the 90 days, of course.

Keith Vaz (Leicester East, Labour)

And voted for the 90 days. But those people represent members of the ethnic minority communities, which will be affected by the legislation. That is why—

Andrew Robathan (Deputy Chief Whip, Whips; Blaby, Conservative)

So will everyone.

Keith Vaz (Leicester East, Labour)

Yes, everyone will be affected, but the figures suggest that proportionately more of those who have been detained are members of the ethnic minority communities. That is why it was extremely important that we, representing those constituents, were able to say that.

Diane Abbott (Hackney North & Stoke Newington, Labour)

I am grateful to my right hon. Friend for giving way. On the letter that he and other of my hon. Friends signed, the less said the better. He knows well and good what Muslim communities in this country think about the Bill, but does he not understand that it is not sufficient merely to assert that he is satisfied with the process of parliamentary scrutiny? Will he explain to us how Parliament can exercise scrutiny without having facts in front of it?

Keith Vaz (Leicester East, Labour)

I know that my hon. Friend is upset because I did not ask her to sign the letter, but I knew that she would not sign it, so there was no point in putting the text before her. She will know very clearly from the text of that letter what it says and why it was sent out—

Diane Abbott (Hackney North & Stoke Newington, Labour)

How can we exercise scrutiny?

Keith Vaz (Leicester East, Labour)

I say to my hon. Friend—

Diane Abbott (Hackney North & Stoke Newington, Labour)

How can we exercise scrutiny?

Keith Vaz (Leicester East, Labour)

I say to my hon. Friend that I am satisfied that we will be able to do so. If I was not satisfied with what the Home Secretary has said and if I believed—

Diane Abbott (Hackney North & Stoke Newington, Labour)

You are easily satisfied.

Keith Vaz (Leicester East, Labour)

No, I am not easily satisfied.

Diane Abbott (Hackney North & Stoke Newington, Labour)

Yes, you are.

Sylvia Heal (Deputy Speaker)

Order. The right hon. Gentleman is replying to an intervention. I call Mr. Vaz.

Keith Vaz (Leicester East, Labour)

Thank you, Madam Deputy Speaker. My hon. Friend and I go back a long way.

I represent a constituency that, by 2010, will have a majority of Asian people living in it. It will be the only city in Europe in which a majority of the citizens are from ethnic minority communities. I would not vote for this measure if I felt that they would be disproportionately affected in any way.

Several hon. Members:

rose —

Keith Vaz (Leicester East, Labour)

I will not take any more interventions.

Several hon. Members:

rose —

Keith Vaz (Leicester East, Labour)

All right, I give way to my hon. Friend Martin Salter, who is a member of the Select Committee.

Martin Salter (Reading West, Labour)

I thank the Chairman of the Home Affairs Committee for giving way. He is perhaps having a tougher time than any of the Front Benchers at the moment.

Does my right hon. Friend agree that it is somewhat bizarre that those on the Conservative Benches are now praying in aid the Civil Contingencies Act when four members of the Home Affairs Committee put their names to the following words:

"We considered...that Part 2 of the Civil Contingencies Act (CCA) 2004 could be used in exceptional circumstances...However, we concluded that this was not an intended use of the powers under the CCA, that there were significant legal problems and it would not be sensible for a national state of emergency to be triggered in the middle of a major investigation."

Is it not crystal clear that when Conservative Members have had an opportunity to examine that proposal, they have found it wanting?

Keith Vaz (Leicester East, Labour)

My hon. Friend will not draw me down the road of criticising members of the Committee, as I am due in Monmouth on Sunday and Monday. I do not want to upset the hon. Member for Monmouth, who is not responsible for what his Front Benchers say almost in the same way as we are not responsible for our Front Benchers. However, I will say that it is very clear that the Committee—this is where all this started—made it clear that there would be exceptional circumstances. That is what the Government have accepted. If the Government are prepared to accept the words of an all-party Select Committee—albeit achieved in controversial ways, as was the case, because this is a controversial subject—I am happy to accept that.

Several hon. Members:

rose —

Keith Vaz (Leicester East, Labour)

I shall give way once more, to Patrick Mercer.

Patrick Mercer (Newark, Conservative)

I am most grateful to the right hon. Gentleman, whose chairmanship I admire and enjoy.

May I make it quite clear that I and the three other Conservative members of the Home Affairs Committee looked carefully at the Civil Contingencies Act—I was a member of the Committee that considered the Bill—and we quite clearly understood that there were powers within the legislation that, were they modified, could be highly sensible, highly useful and directly applicable in the rare circumstances that the Chairman and other members of the Committee agreed might exceptionally occur?

Keith Vaz (Leicester East, Labour)

Indeed, that is exactly what the discussion was all about, but at the end of the day we concluded that there were exceptional circumstances. We did not feel that we could use the Civil Contingencies Act, which is what we said at the end of the report. But the hon. Gentleman is absolutely right—this was considered.

Patrick Mercer (Newark, Conservative)

Once again, I am grateful to the Chairman of the Home Affairs Committee for his generosity. That, surely, is entirely consistent with the point that Conservative Front Benchers and my right hon. Friend David Davis, the shadow Home Secretary, have been making.

Keith Vaz (Leicester East, Labour)

The shadow Home Secretary has always believed that the Civil Contingencies Act is sufficient for the needs of the Conservative party on this issue, but we as a Committee concluded by 11 votes to one that it was not.

Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)

Will the right hon. Gentleman give way?

Keith Vaz (Leicester East, Labour)

No, I will not. I have been speaking for 21 minutes, and it is important that other Members have an opportunity to take part in the debate.

I want to raise with the House the issue of community engagement—my hon. Friend Ms Abbott has already raised it—and the specific concerns of the community. I say this to my hon. Friend and others in the House: she mentioned the letter that was signed by 17 Members of the House, but obviously, as we know, not by her. However, my hon. Friends the Members for Birmingham, Perry Barr (Mr. Mahmood), for Glasgow, Central (Mr. Sarwar), for Dewsbury (Mr. Malik) and for Tooting (Mr. Khan) all signed it.

Diane Abbott (Hackney North & Stoke Newington, Labour)

Under duress.

Keith Vaz (Leicester East, Labour)

I say to my hon. Friend that they did not do so under duress. They happily signed the letter.

Sylvia Heal (Deputy Speaker)

Order. I remind all hon. Members that there should be decorum as well as debate in the House.

Keith Vaz (Leicester East, Labour)

Thank you, Madam Deputy Speaker. To be very clear, before Mr. Robathan jumps to his feet, none of those people was offered a knighthood for signing the letter. It is not in my power to give such honours. They signed the letter in good faith because they believed that the safeguards that had been offered by the Government were sufficient for the communities that they represent. Of course they have—

Jeremy Corbyn (Islington North, Labour)

Will my right hon. Friend give way?

Keith Vaz (Leicester East, Labour)

No, I will not give way again. Of course those Members represent people other than members of the Muslim faith, but each and every one of them is respected and acknowledged within their communities. It is extremely significant that they should all have singed the letter.

Mark Durkan (Foyle, Social Democratic and Labour Party)

I thank the right hon. Gentleman for giving way. I want to ask about him and other Members who signed the letter being satisfied about the scrutiny that will be offered and the safeguards, and how those will offer protection to the communities that those Members represent. In the event of the procedure being put in place and Parliament being convened, possibly during a recess or an election, what will hon. Members tell the families and communities who come to them and whose loved ones have been detained? What will those Members say in this Chamber, and what can they say, that will make scrutiny effective and make them credible as representatives in front of their own constituents?

Keith Vaz (Leicester East, Labour)

The hon. Gentleman has considerable knowledge of these issues because of what happens in Northern Ireland, so we listen to him with enormous care, but the proposed safeguards are sufficient. The Home Secretary will not come to the Dispatch Box and discuss individual details of cases: she cannot do that.

Mark Durkan (Foyle, Social Democratic and Labour Party)

What do Members tell their constituents?

Keith Vaz (Leicester East, Labour)

If the constituents are detained under the current law, the current law must take its course.

Mark Durkan (Foyle, Social Democratic and Labour Party)

What if they are detained under this procedure?

Keith Vaz (Leicester East, Labour)

I assure the hon. Gentleman, and my hon. Friend the Member for Glasgow, Central, that under the emergency provisions proposed by the Home Secretary there will be redress for those who feel that they have been treated unfairly. In my view, the procedure is very simple. It will allow the House to decide whether to endorse what the Home Secretary is proposing, and that is good enough for me.

William Cash (Stone, Conservative)

Will the right hon. Gentleman give way?

Keith Vaz (Leicester East, Labour)

No, I will not. I gave way to Mark Durkan because of his knowledge of these matters.

As I have told the Home Secretary in conversations with her, and said publicly in articles that I have written, I am also concerned about community engagement. It is clearly important for us to bring communities with us; we cannot win the war on terrorism unless we do that. Only last week, the Home Secretary announced the provision of £12.5 million that she hopes will be spent on preventive work in the community—

Jeremy Corbyn (Islington North, Labour)

In Leicester!

Diane Abbott (Hackney North & Stoke Newington, Labour)

In Leicester!

Keith Vaz (Leicester East, Labour)

I think that the money will be of great benefit to the people of Islington and Hackney, and to those all over the country, as they seek to work and engage with the Government on this issue. I do not think it right for us to feel that we cannot carry communities with us, although I am keen to ensure that the resources that the Government are allocating are allocated fairly and do the job that they are intended to do.

Finally, let me say something about references to the director general of MI5 and the police. I have not heard the director general of MI5 say—to me or to the Committee—that he wants the period to be extended from 28 days to 42, and the Government are not maintaining that he has said it to them, because that is not his job. The job of the director general of MI5 is to advise the Government about the threat. In his speech, which was presumably on the record—if he did not want it to be reported, he should not have made it to the Society of Editors—the director general, Jonathan Evans, was very clear indeed. Some of the facts have already been given by the Home Secretary. At least 2,000 individuals who are believed to be a direct threat to the safety of our citizens are currently in the United Kingdom, there have been 20 known plots, and 200 suspect groups are being monitored. There have been 15 attempted terrorist attacks in Britain. It is a matter of record, because it is in our report, that the Committee met the director general of MI5. We were not prepared, quite rightly, to discuss what he said to us, but he has said publicly that those threats exist, and are real and growing. That is the advice that he can give.

In their evidence, the police—Sir Ian Blair, Peter Clarke and others—made it clear to us that they wanted the current period to be extended. I think that Sir Ian Blair talked about "up to 60 days". The police have made the case, and it is not for the security services to do so; nor is it for the Director of Public Prosecutions to do so. I have enormous respect for Ken Macdonald, and we readily agreed that he should appear before the Committee because he had not given evidence for its 2006 report. He made it clear that he did not consider the current period sufficient, but he also said that it was not up to him to decide whether it should be extended. That judgment can be made only by Parliament, and he will deal with whatever Parliament decides.

I think it quite wrong for Members to start passing the buck to those outside, saying that this or that individual is against the proposal.

David Winnick (Walsall North, Labour)

It is all part of the debate.

Keith Vaz (Leicester East, Labour)

It is part of the debate, but it is not a conclusive part of the debate to say that because Jonathan Evans has not said that he wants an extra 14 days, we are not prepared to give him those 14 days. That is for us to decide.

I am very pleased with what the Government have done since these proposals were announced a year ago. This is the right course of action.

Gordon Prentice (Pendle, Labour)

Will my right hon. Friend give way?

Keith Vaz (Leicester East, Labour)

No.

I hope that the dialogue will continue, but I firmly believe that the Home Secretary has conducted this matter properly, giving Members of Parliament an opportunity to express their concerns. Let me end by saying this to her. If she were proposing a permanent extension from 28 days to 42, I would not vote for this measure. I shall be voting for it because it is an emergency, temporary provision that will allow a permanent situation to be dealt with for that very short period. I know that the Home Secretary has given us those guarantees, and I look forward to her repeating them when she winds up the debate.

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am pleased to follow Keith Vaz. In my speech, I shall first explain why an extension of detention without charge matters to ordinary people and their freedoms, then I shall examine the weakness of the Government's case for such an extension and the feeble parliamentary safeguards offered by Ministers, and finally I shall argue that such excessive powers may be seen as illegitimate by substantial sections of our nation, and may act as a recruiting sergeant for the extremists.

Let me begin by trying to explain why the powers of executive detention contained in the Bill and the amendments are so serious. They are not powers that apply just to other people; they are powers that could apply to any one of us here today. We could be arrested on our way home, in a case of mistaken identity, and locked up—if the Government have their way—not for one day or seven days, but for six weeks. What would a person's employer think? What would their family think? Surely, they might say, the police could not really detain someone without some pretty clear evidence, using powers under a terrorism Act. As every street gossip will tell you, there is no smoke without fire.

We know, however, that of the six people who have come close to being detained for close to the existing limit of 28 days, half have been released without charge or any subsequent proceedings. Indeed, as was pointed out by Mr. Gummer, who is no longer in the Chamber, it is inevitable that if these powers go on to the statute book they will be used for lower-priority cases, because the easier cases will have been dealt with first. The number of innocent people who are detained under the new powers is therefore likely to be particularly high.

Jacqui Smith (Home Secretary; Redditch, Labour)

Does the hon. Gentleman realise that one of our amendments would limit the use of an extended period of pre-charge detention to the most serious terrorist offences, which would carry a life sentence for those found guilty?

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

The point, surely, is that if the Home Secretary had evidence that the most serious offences had been committed, there would be no need to extend the period without charge, because she would be able to go ahead and charge the people. My fundamental point stands: on the basis of the existing track record, this will affect people who may well be found to be entirely innocent. We know that three of those six people spent a month of their lives not even knowing what offence they had been accused of committing.

We could all name cases in which great injustices have already been perpetrated. One such case is that of the Algerian pilot Lotfi Raissi; an even more tragic case is that of the young Brazilian Jean Charles de Menezes. Most recently, there is the case of the students who were arrested for having terrorist materials, when they were writing a research report on Islamic extremism. The police do a commendable job in difficult circumstances, but they are human and therefore fallible. That is why we have a system of justice, and why checks and balances are crucial. It is also why we should not lightly concede yet another rise in the period of detention without charge.

Diane Abbott (Hackney North & Stoke Newington, Labour)

Does the hon. Gentleman accept that holding people for six weeks when they do not know what they are being held for is in itself coercive? From the big miscarriages of justice in the 1980s, we know what innocent people will sign even when they have been held for far less than six weeks.

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am grateful for the hon. Lady's intervention, and I entirely agree.

Let me take the Government's case at face value. The Home Secretary argues that the Government need to extend the period of detention for terrorist suspects from 28 to 42 days because of the increased complexity of terror cases, citing the recent increase in the number of computer files and comparing the alleged airline bombing case in 2006 with the Dhiren Barot case of 2004.

However, that argument rebounds on the Government in a very simple way. An extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed in the way that the Prime Minister and the Home Secretary implied.

Lynne Featherstone (Youth and Equality Spokesperson, Cross-Portfolio and Non-Portfolio Responsibilities; Hornsey & Wood Green, Liberal Democrat)

The argument about increasing complexity is often put forward, but is there not a case for expanding the capacity to deal with complex cases, rather than the length of time for which people can be held without charge?

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am grateful to my hon. Friend, and she is of course absolutely right, but I want to make another point. It has been said that it might be necessary to read material equivalent to one third of the contents of the US Library of Congress within the proposed legal limit of 42 days. If so, that would require 240,000 police officers working eight-hour shifts—a total equivalent to all the police officers in this country, plus 100,000 others on loan from a friendly neighbour.

In fact, the tools available to the police have also increased in power so that sense can be made of large amounts of data. Clearly, search engines are available to others, as well as to Members of this House. Moreover, the Government do not seem to take the problem too seriously: they legislated in 2000 to make it an offence to withhold data encryption keys, but that offence did not come into force until 2007. So much for the sense of urgency.

We have also heard that an inability to sift through data, whether encrypted or not, was not the cause even in those few cases that went close to the 28-day limit. In fact, the essential data issues were sorted out relatively quickly, as David Davis showed very effectively. Liberty has pointed out that in two of the three cases in which people were subsequently charged, the evidence relied on to bring those charges was obtained within not 27 days, or 26 days, but within four and 12 days, respectively.

No other common-law country has seen the need to do such violence to its freedoms. The Government like to bog the debate down in comparisons with Roman-Dutch law, but I am leaving countries that use such law entirely aside. I am talking only about countries such as Canada, the US, Australia and New Zealand, which have legal traditions exactly parallel to our own. Canada retains a traditional 24-hour detention period without charge.

Dari Taylor (Stockton South, Labour)

Is the hon. Gentleman saying that Lord Carlile's statements to the Committee were inaccurate and misleading? He said that the US Attorney-General had executive witness detention capability and was allowed to hold people for up to a year. He also said that similar powers were held by France and other countries, and that legal systems differ so much that comparisons are nonsensical. Was Lord Carlile being inaccurate? Was he misleading us?

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am grateful for that intervention, but I specifically did not make a comparison with inquisitorial systems such as the French one. If the hon. Lady had been listening to me, she would have heard me say that Canada retains a traditional 24-hour period of detention without charge. In the US, the period is two days. Australia has extended the period to 12 days, in part because of the special cooling-off periods between interrogations. There are no provisions in the Bill to put in place the equivalent cooling-off periods that might justify an extension of detention along the lines introduced in Australia.

The possible length of detention without charge is already more than twice as long in Britain as it is in other common law countries, even though we all face the same threats and technologies.

Chris Bryant (PPS (Rt Hon Harriet Harman QC (Leader of the House of Commons)), Leader of the House of Commons; Rhondda, Labour)

How long does the hon. Gentleman think the detention period should be? Should it be one day, or two, or a week?

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

I am sorry that the hon. Gentleman was not present for the Second Reading debate, as I remember that another Labour Member made exactly the same challenge. I made my position very clear then. At the moment, I am very happy with a period of 28 days. We should stick with that period because that is what we voted for, but we need to regard it as an emergency measure and keep it under constant review—especially given the lack of evidence that even 28 days is necessary. The hon. Gentleman asks about alternatives to the knee-jerk, Kafkaesque extension of detention without charge that is being proposed, but I believe that all the alternatives are much to be preferred.

The Bill allows questioning to continue after charge, and we welcome that. We should also allow intercept evidence, as is the case in Australia and the United States. The Committee considering the Bill took evidence from Sir Ken Macdonald, the Director of Public Prosecutions, who said that his counterparts in the countries that I have named found our refusal to use intercept evidence astonishing.

Most importantly of all, Sir Ken has described the considerable flexibility that the Crown Prosecution Service has to bring charges, which it can do even if it is felt at the time that the chances of a successful conviction are less than 50 per cent.—the normal test. In fact—this is crucial—Sir Ken pointed out that the CPS had had a 92 per cent success rate with terrorist convictions since the beginning of last year. As a result, he is on record as saying that the new powers are unnecessary. That is significant precisely because, if it is possible to secure a 92 per cent. conviction rate in cases brought after terrorist events have happened, as has been the case over the past two years, Sir Ken has the flexibility to achieve even more success should he decide to bring charges before a terrorist event occurs.

Detention without charge for terrorist suspects has already risen from seven days to 14 days and then 28 days, just since 1997. The sad truth is that Ministers are using this simple number as a proxy to persuade the public that the Government are tough on terror. In fact, such blunt instruments run the substantial risk of alienating the communities that we need to have on board if we are to fight terror effectively.

Dari Taylor (Stockton South, Labour)

I am grateful to the hon. Gentleman for giving way again, and I assure him that I am listening to him. A letter from the president of the Association of Chief Police Officers, which has been placed in the Library, makes it clear that

"the more recent 28-day period was used in the course of an operation in 2006 that is currently sub judice and cannot be discussed publicly due to the imminent trial."

Does the hon. Gentleman agree that that letter shows that the 28-day period is being used? If so, why is he claiming that there is no evidence that 28 days is appropriate?

Christopher Huhne (Shadow Secretary of State for Home Affairs, Home Affairs; Eastleigh, Liberal Democrat)

The hon. Lady may not be aware of a rule of this House that sub judice proceedings can be discussed during discussion of proposed legislation. If she has a fact that she would like to put before us, as opposed to assertions and opinions, perhaps she will do so. As I have mentioned, what we know from ACPO's evidence is that there have been six cases that have gone near to, but not up to, the limit of 28 days. Therefore, it is, I believe, accepted in all parts of the House—I hope the hon. Lady accepts this, too—that there is no evidence for any extension beyond 28 days. Even Ministers put the case for an extension in entirely contingent terms, and talk about what may happen in the future if a whole series of other events occur.

The police need intelligence, and they need witnesses prepared to give evidence. Britain's most senior Muslim police officer, Assistant Commissioner Tarique Ghaffur, has warned that these arbitrary powers could have counter-productive effects in the Muslim community, exactly as internment had in Northern Ireland in the '70s. As Mark Durkan has correctly warned us, internment drove a wedge between communities and the security services. Intelligence dried up, witnesses refused to come forward to give evidence, and the scars remain to this day. Tough macho measures proved horribly counter-productive, exactly as these measures may. I agree that there is not a precise parallel between what is proposed in the Bill and internment, but there is a parallel in terms of the sentiment and motivation behind these proposals and, as a result, there may very well be a parallel in the unfortunate counter-productive effects. Have we not learned the lessons of 30 years ago?