Schedule 1
Counter-Terrorism Bill
10:45 am
Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)
As this is a schedule stand part debate, Mr. Bercow, I wondered whether the Minister was going to introduce and justify it, but I notice his hesitation, which may indicate that he wishes other people to speak first. I am perfectly happy to speak first as to why I think schedule 1 should not stand part of the Bill.
We can start, I suppose, by going back to some basic principles, which, I think, the Government have shown themselves willing to accept. We have had a great deal of debate in this House in the past about the length of time a person should be detained in custody by the police before being charged. It is worth pointing out—it is something which is sometimes slightly glossed over—that, in our legal system, the common law system that we have enjoyed for many centuries, the basic principle in the past was that the purpose of arresting somebody was not to question them but to bring them before the magistrate on the charge to which they were subject.
When habeas corpus, which is often cited, was introduced in the 17th century to deal with the mischief of individuals being locked up by the Executive without being brought before a court, there was no proper time that the Executive could lock a person up without bringing them before a court. There might of course be some slight delay. If somebody was arrested on a Saturday afternoon, there might be no magistrate available until Monday morning, although magistrates in those days could sometimes be found to come out and do special sessions.
There might be other reasons why there would be some short delay when a person was in the custody of the constable or other person in authority before they appeared before the court, but the idea that there was some sort of investigative process which allowed the police, or, prior to the police, the watch, to detain somebody without having charged them was unheard of. This was, of course, in marked contrast to the system which prevailed in continental countries, where the power of the Executive to inquire into crime provided an excuse—as it still does today—to detain people at times for quite long periods upon a charge having been laid but never actually brought before the tribunal to try the matter. The difference is between common law systems and inquisitorial systems.
Before I suddenly give the impression that I am seeking a return to a 17th-century practice, let me say that I am the first to accept that there is some merit to having a system by which the police can detain a person for a short period before charging them. That is in fact why the system itself emerged in the late 19th century, before it became formalised in statute. The police argued—very reasonably, I think—that, having arrested somebody, there was a lot to be said for being able to ask them a few questions, essentially to check whether they might have got the wrong end of the stick. There was also a short window of opportunity, which allowed the police to go and lay their hands on any papers or evidence that might be thought useful in bringing the case. It remains true, however, that the common law system historically provided for a very short period of time for the police to do that. Under our legal principles, it is not so much an investigative period as a period sufficient for the police to decide whether they might have got it wrong, without going through the paraphernalia of charging somebody.
As the Minister will doubtless confirm, although there have been some extensions, for ordinary crime in this country four days remains the outer time limit for which a person can be detained for questioning, and that applies to very serious crime indeed. In some common law jurisdictions, the principle of detention for 24 hours only remains operational, with the intention that it is still the system that started to exist in this country in the late 19th century.
Any departure from that principle is something that Parliament should be very careful about. It is a fundamental breach of the principles of our adversarial legal system which, although far from perfect—no human system of justice can ever be perfect—at least has the merit of ensuring that people are not locked up for long periods. Indeed, although I am sure that it can sometimes lead to miscarriages of justice, as can all human legal systems, on the whole the view is that our system delivers a high quality of justice that is, for example, superior to the French justice system, with which I am familiar as I have a partially French background. In that system, there are startling examples of individuals being detained for long periods in inquisitorial procedures, only for it to emerge after two years or even longer that the inquiring judge has got completely the wrong end of the stick, has perhaps been behaving a little capriciously, and that a person has been deprived of their rights.
As far as terrorist cases are concerned, we are not talking about extending 28 days—in fairness, the Government have already accepted that 28 days is an emergency procedure. We are talking about extending the period from 14 days, first to 28 days, which we are currently doing in the annual renewal under the 2005 Act, and then to 42 days, having previously rejected the Government’s initial attempt two years ago to move it to 90 days. Is there a case for such an extraordinary power to be given to the police, and ultimately to the state? The Government envisage that the Home Secretary in particular will have a key role in using and developing the 42-day process.
Speaking for myself, and I expect for most of my hon. Friends, I hope that we are essentially pragmatists. Being pragmatists, if somebody comes along and makes a powerful and persuasive case for why an exceptional or extraordinary power is needed due to some particular circumstances, we should be prepared to consider it. Equally, in the past, Parliament has been asked to depart from the ordinary principles of our common law on a number of occasions, including by past Conservative Governments when detention without trial was introduced in Northern Ireland. History has shown that in doing such things, we almost certainly made a colossal mistake. Far from improving matters, or the safety and security of the public, whatever short-term safety and security that may have been improved was fatally undermined by maintaining some of the grievances that fuelled the conflict, long after any efficaciousness of the measure had worn off. I consider schedule 1 with that in mind.
The Government have said a number of things about schedule 1, and there are a number of points on which I profoundly disagree. Perhaps I may take up a little of the Committee’s time to run through the issues which, I think, make it a flawed document.