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I beg to move,
That this House
takes note of the Privy Counsellor Review Committee Report on the Anti-Terrorism, Crime and Security Act 2001 Review (HC 100), which was laid before this House on 18th December 2003.
I urge the House to reject the amendment tabled by the Liberal Democrats, which would immediately withdraw the opportunity to protect ourselves through the process adopted in part 4 of the Anti-terrorism, Crime and Security Act 2001, which has been used to ensure that those who have been certificated and gone through that process are held in secure accommodation, pending their efforts or the efforts of the Government to secure a third country to which they can be removed. In this afternoon's debate I hope that we can address some of the underlying issues and challenges that face us.
First, I want to thank Lord Newton and the members of the Privy Counsellor Review Committee for their dedicated work. We all appreciate the time, energy and commitment that they have put into the task that both Houses gave them in the 2001 Act. I also thank Lord Carlile for his continuing work and his further annual report on part 4 of the Act, and my hon. Friend Jean Corston, who chairs the Joint Committee on Human Rights, for her report on the material that was published yesterday.
I should like all the reports to be considered alongside the discussion paper that the Government published today, which was placed in the House at 9.30 this morning. I shall take them together because when the House considered the Act it decided that we should examine Lord Newton's report as part of the continuing review of the measure. Lord Carlile reviewed part 4 and we have taken on board suggestions that he made on previous occasions about changes in the regime for those who are currently held in Belmarsh and Broadmoor and further changes that would be beneficial for implementing the Act.
I address the House with some temerity because when we passed the Act we debated the substantial dangers involved in any democracy taking powers, as we did when we created the Special Immigration Appeals Commission as a superior court of record, chaired by a High Court judge, in circumstances in which we knew that security information would have to be provided and facilities established outside the normal criminal justice system. Many Members of both Houses raised perfectly legitimate issues in relation to the challenge that that posed to human rights and the presumption of innocence. We took on the challenge only because we believed that part 4 offered the only way of protecting our security from terrorism from abroad and from non-British citizens whom we could not remove from this country. We could not remove them precisely because we respected international conventions and the human rights of individuals who would be put at risk if they were returned to their country of origin, where they faced possible death or torture. That remains the case.
Will the Home Secretary explain how our security is enhanced by a secretive judicial process whereby people can be detained indefinitely on his signature as opposed to an open court system, which could at least ascertain the veracity of the evidence? The guilty would then be imprisoned rather than subject to the indeterminate detention that he appears to support in the document that was published today.
There are two parts to my hon. Friend's question. First, he asks whether security is enhanced and secondly whether the process, which he clearly does not like, for verifying the evidence that is presented to the superior court of record, namely the SIAC, does the job of ensuring that the evidence that the security services adduce is credible and therefore has veracity.
I am clear that the certification process for the 17 people who have gone through it has been done correctly. The reviews that have taken place and the challenge to the process in the appeal court have verified that. We shall fight vigorously the further challenge that will be taken to the House of Lords. The certification process and SIAC's processes have been reviewed by SIAC in 11 announced cases out of 14. It has verified that the process and the level of evidence are sufficient. The process obviously accords with the evidence given by the head of the Security Service, Eliza Manningham-Buller, who recently said:
"I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next 5 years, and I fear for a considerable number of years thereafter."
On that basis, the Home Secretary clearly agrees with me that the threat from terrorism will not go away in the near future, and therefore we cannot consider the Anti-terrorism, Crime and Security Act 2001 as temporary or emergency legislation. Is he therefore content to retain legislation in a form that does not fully meet requirements—for example, dealing with British citizens—and which will require a semi-permanent derogation from the European convention on human rights?
The derogation from article 5 is allowed under article 15 of the European convention on human rights. Article 15 was originally included in the convention because it was envisaged that at points in time it would be necessary to derogate, and without it there would be no facility for derogation. Our criminal justice system—and our criminal justice process as a whole—strictly adheres to the European convention on human rights compared with systems in other countries, so it was right for us to be honest and open by derogating. Some countries clearly operate without derogation by holding people without trial under an investigatory, inquisitorial process. Our combative process rightly expects that people will be brought to court rather than their being held almost in perpetuity without trial while investigations proceed for year after year.
As a member of the Intelligence and Security Committee, the right hon. Gentleman understands the issues and I respect his views. For the time being, my advisers and I believe that it is crucial that part 4 of the 2001 Act remains in place given the security risk and the presence of those whom I certificated. Those individuals used the SIAC process to challenge those certifications, and their lawyers have also gone to the Court of Appeal and the House of Lords on the wider issue of whether we were correct to take the derogation and to use the powers. I sincerely believe that on the evidence produced those individuals pose a continuing threat, which is why I certificated them in the first place. The certification process has been upheld and verified by SIAC and by the generic appeal to the Court of Appeal. We have used a higher level of evidence and lifted the test higher than the standard required by "reasonable belief", which was the test laid down in this House just more than two years ago.
I have some reservations, which I hope to have the opportunity to express later. Can my right hon. Friend the Home Secretary imagine the criticism and backlash if, having been told by the security authorities that those foreign nationals are a threat and could well be involved in terrorism, he took no action and a terrorist outrage occurred in which some of those people were involved?
I can imagine the criticism, and I have been imagining it for nearly two and a half years. I do not expect people to give any Home Secretary past, present or future any quarter on those issues, but I guarantee that I have and will do anything possible within our law, our justice, the presumption of innocence and the rejection of the use of arbitrary power to protect us against the threat or use of terror in our country. I carry that basic obligation in this office, and the Government carry it on behalf of the people. If we were to fail to meet that obligation and there were an incident, I would worry about death, torture and destabilisation, but I would also worry about the reaction, which would not allow the kind of debate that we are having this afternoon about how we take on the challenges.
I re-emphasise that the original debate, the report and the challenge posed by the discussion that I am keen to encourage and support over the next few months is about how we deal with those profound issues while protecting our democratic life and maintaining our commitment to the principles of democracy, good government, justice and the presumption of innocence. The discussion must occur in an environment that allows us to address the issues calmly and sensibly, as we are doing this afternoon and have done in previous debates. If hon. Members have alternative ways to address the same challenges, they must bring them forward. In part, the Newton committee did its best to address the issues. Both the committee and Lord Carlile have raised some important questions, which I shall come to shortly.
I am sure that the Home Secretary would not suggest that the seven Privy Councillors, the Joint Committee on Human Rights or the Home Affairs Ministers and Interior Ministers of the rest of the European Union—where there has been no derogation—do not share with him, Liberal Democrats and hon. Members representing other parties the desire to deal with terrorism and protect our country. In that case, the proposal put by the seven Privy Councillors, who were appointed by Parliament, that we try people under a different set of rules rather than holding them without trial is an acceptable alternative for Parliament and preferable to denying people the fundamental right not to be held without trial?
It is nice to do business again with the hon. Gentleman, whose question brings back many happy memories. I am coming to that issue, but I shall answer the question as succinctly as I can. It is, of course, possible to switch to alternative ways of dealing with individuals held under part 4 of the 2001 Act. The challenge laid down by Lord Newton of Braintree and the Privy Councillors is to decide whether it is possible to use without derogation a similar system for those being dealt with under immigration law who would otherwise be removed from the country and for those who are indigenous citizens of the United Kingdom.
Such a process would require the presentation of evidence from the security services and the protection of their sources. It would also require the presentation of evidence taken through the SIAC while ensuring that that evidence did not leak. The circumstances mean that it is not always possible for the defendant to be given the entirety of the evidence precisely because they are someone who is believed to be engaged in terrorism. That individual would transmit that evidence in one form or another, which would put the security services and their sources at risk. We are trying to address that circular argument.
I must put this important point on record because of the challenge in the House of Lords: part 4 of the 2001 Act was necessary and it remains necessary. It is the only way to deal with the circumstances outlined in the 2001 Act, and it must be maintained on the statute book and implemented. We are entirely open to persuasion that we can deal with a wider range of challenges while meeting the tests laid down by the Newton committee.
I accept that the Home Secretary makes a serious point when he discusses the risk that evidence could leak if it were communicated to terrorists. However, that problem has also arisen over the past 30 years in Northern Ireland, where we have convicted terrorists by conventional means. Surely the effective processes to deal with evidence in Northern Ireland can be invoked to deal with the individuals covered by part 4 of the 2001 Act.
I have obviously familiarised myself not only with the issues before us today, but the debate and decisions on the Terrorism Act 2000 and debates that took place before that. I am aware of the significant difficulties. It is not a one-way process, with the only issue being how we can change the SIAC process and the provisions of part 4. The further question is how we can make our existing terrorism legislation, including the Terrorism Act 2000, work more effectively. There is existing legislation on domestic terror that cannot be used effectively under current procedures.
I suggest that the challenge in the months ahead is to explore how we can make what we already have work more judiciously and effectively through the criminal justice system, while also learning the lessons of Northern Ireland. The challenge that we faced post-
Is my right hon. Friend able to confirm that two of the people currently subject to part 4 have been prosecuted, one to conviction and the other is in course of prosecution? If that is correct, were special procedures needed or used in those prosecutions?
I can confirm that one of the 17 has been found guilty of other offences. Those offences could be dealt with by the criminal court, but the certification and the material produced by the security service on that individual's more serious and wide-ranging association with and commitment to terrorism could not. That is the difficulty. Lord Newton poses the challenge of whether one can take a lesser offence and build on it, with evidence of what in other circumstances is called aggravation. That could mean the imposition of a longer, more substantive sentence, on the basis—in some form—of security service advice provided through a process similar to the SIAC process. The original crime would be enhanced, but it would still be addressed through the criminal justice system. That is a profound question. Can we get in at the sharp end and pick up on low-level criminality that is associated with terrorism? The report raises that issue and I shall deal with it in greater depth in a moment.
We will put out a statement today, at the other end of the spectrum of prevention, about how we can protect ourselves against attack through the capabilities resilience programme, which we used to call civil contingencies. It will address how we can protect the public and intervene quickly if an attack takes place. The statement will update the House on developments and I hope that it will be helpful. However, it will obviously not protect the nation from what we are describing this afternoon.
What will concern many of us who opposed the powers and would like to see the recommendations of the Privy Counsellor Review Committee adopted is the idea that the further powers the Home Secretary seeks to bring in—some of which we support—will add to the panoply of powers he has and not replace some of them. Before he goes into detail about the new powers that he wants to consider, will he say whether the expansion of powers will enable us to stop the derogation from the European convention on human rights and drop the invidious system of detention without trial?
My right hon. Friend the Minister for Citizenship and Immigration and I are asking the House—she will do so later by laying the relevant order—to proceed with part 4 and with the derogation because nothing that has been suggested is a substitute for those procedures. Nor have we heard any answers to the challenges that we lay down this afternoon. The Newton report and Lord Carlile have made sensible suggestions for dealing with low-level terrorist activity and association, and some legislative measures that have been implemented abroad—some long before
Before the Home Secretary leaves the subject of part 4, can he confirm whether I am right in my understanding of the documentation that he issued this morning? If I read it correctly, he undertook to review part 4 before the end of this Session. If so, will he come back to the House with his decision to continue or to amend it?
I intend to have extensive consultation over six months, in which we will invite Members of Parliament, the public and those with a specific interest to come forward and to build on the propositions in the reports that I have mentioned and the challenges that we put in our paper. We will then produce not an alternative to our defence against the House of Lords challenge, but a comprehensive response to the issue of combining the powers that we possess under part 4 with the challenge of how to deal with the indigenous population, including the enhancement of the effectiveness of the Terrorism Act 2000, to which I referred in response to Mr. Hogg. We will also respond to the challenge that the Government face as we move closer to the expiration of the sunset clause in 2006. Instead of coming within three months of the expiration of the sunset clause and then having the debate, I prefer to have the debate in the calm that I described in responding to my hon. Friend David Winnick, to allow everyone to have a fair say.
We act as we do because we believe that there is a substantial and continuing threat. I am deeply disturbed when I hear some—not all—human rights lawyers, including those who represent those who are held in protective custody under the certification system, talk about the "so-called war on terror" and imply that there is no continuing threat.
Does my right hon. Friend recognise that this very important legislation, which we, clearly, are looking at for the purpose of securing security for our own population, has an international implication, because any extension of imprisonment without trial will be noted by countries around the world that are not so concerned as we are about those very high standards of justice? Will there be an opportunity in the consultation period to take on board comments from other countries, as well as bodies in this country, in order to examine terrorism in the wider sphere?
Albeit that I am open to criticism for making speeches on terrorism across the world, which is also faced with terror, the answer is "Yes, I think we should." I did it in New Delhi to an audience including human rights lawyers and members of the supreme court, who, contrary to the kind of dismissal that I saw on "Newsnight" last night, had a deep commitment as human rights lawyers and members of India's supreme court to human and civil rights in their country and across the world. I shall do the same in the Untied States in two weeks' time, because I believe that these are universal principles that are crucial to democracy and justice, and that we should debate them on that basis.
I am very mindful that what we do in this country is a benchmark, and I hope that it will remain a pillar of best practice and a beacon for people across the world.
The Home Secretary has just confirmed that he plans to review part 4 in a six-month period. Will he therefore consider amending tomorrow's order so that the extension period is six months, so that there will be a guarantee that we can debate it in a six-month period?
No, I will not. Apart from the fact that the regulations and the Act do not permit us to do so, we laid down the annual review by the House and the renewal procedure knowing that individual cases, after the initial six months, would be reviewed on a three-monthly basis. The Special Immigration Appeals Commission will review all the cases that it has dealt with on a three-monthly basis, and it has the power—and is free to—challenge the continuing evidence placed before it, and whether the risk continues. In terms of dealing both with Lord Newton's report and with renewal, I need to spell out that that is risk to the life of the nation that constitutes a public emergency within article 15 of the ECHR. I needed to get that on the record as well.
As I spelt out in quoting Eliza Manningham-Buller, nothing has diminished that threat. It is important to continue to re-emphasise that, because, sadly, people easily forget Bali, where 202 people were killed; Casablanca, where 44 people were killed; Riyadh, where 34 people were killed; Jakarta, where 12 people were killed; and Istanbul, where at the end of last year, over 50 people lost their lives including the consul general and members of his staff.
These are continuing threats that are taken seriously by all democratic nations, and rightly so, given the tremendous threat from al-Qaeda, repeated by bin Laden on numerous occasions. From February last year, to September—when he produced a tape—to January this year, he has laid down that threat to anyone who dares to threaten what he believes and what his creed holds. Last February, he said:
"We also point out that whoever supported the United States, including the hypocrites of Iraq or the rulers of Arab states, those who approved their actions and followed them in this crusade war to fighting with them or providing bases and administrative support to them or any form of support, even by words, to kill Muslims in Iraq should know that they are apostates and outside the community of Muslims. It is permissible to spill their blood and take their property."
That is a direct and continuing threat, not in theory, but in practice, to our lives, to the well-being of our country, to the values that we hold and to our democracy.
I simply ask that, in dealing with the real and very big challenges of not doing away with the standard of proof, the presumption of innocence and the way in which we have traditionally upheld—in the face of considerable difficulties—our criminal justice process, we bear in mind the nature and level of the threat and what it means to us.
The right hon. Gentleman is clearly right about the nature of the threat, and I applaud much of what he is doing to counter it. Can he assess how much damage we have done to al-Qaeda in the last couple of years? We have had the military operations in Afghanistan, and bin Laden is pinned down wherever he is, but can he give a broader assessment of whether we are winning the war against terror?
At a superficial level, I think that people can presume that, given the attacks that I listed, the war is not yet won; the pronouncements of the head of the Security Service, MI5, underline the continuing threat. But the challenge is what would have happened had we not taken the steps that we took, had we not got the quality of the Security Service—built up, it must be said, with its expertise and knowledge of dealing with terror emanating from Ireland, particularly over the last 30 years—and the anti-terrorist branch. That gives me an opportunity to say how much respect I have for them and to thank them for the work that they have been doing. The difficulty for them is that prevention is never seen or acknowledged. Prevention does not allow us to celebrate what has been done. It is only in the aftermath of tragedy that we see whether a system, process or security measure has failed. I have the privilege and the difficulty of being given the evidence of what they are doing and how they are doing it. I hold them in tremendously high regard. That is why prevention is so fundamental to this debate.
My right hon. Friend was discussing criminal procedures and the position of the security services. I accept entirely that he personally adopts a very much higher standard than reasonable suspicion before certificating people, and I am sure that SIAC adopts a high standard before confirming his certificates. Usually, civil courts adopt a criminal standard when their finding will imply that somebody has committed criminal offences, which is the position here. I wonder how far we are from being able successfully to prosecute the people concerned, at least in front of a judge, and whether the need is not to search for better ways of protecting the evidence that has to be relied on and not for new powers.
Let me take the challenge on. We believe that if we have not actually achieved it, we have come very close to achieving the standard of proof relevant to, and by necessity demanded by, a criminal court. My hon. and learned Friend puts her finger on the difficulty, which is the nature of how we have reached that level and standard of proof. By necessity, in terms of the nature of the evidence presented, its admissibility and the use of special advocates, the difficulty is that, every time we take a step to try to achieve what is being asked of us, we get disqualified by people being against particular elements of the process that they do not like.
I referred earlier to the difficult issue of how to ensure that, as with a criminal trial, defendants have all the evidence presented to them, when the defendants themselves are a problem in passing on and using the evidence presented to them, as opposed to the special advocate assigned to them, to continue the development and perpetration of terror.
That is not like the consideration of a normal criminal activity when someone is charged with finding out, through an adversarial situation, whether a person is guilty or not and evidence is adduced to determine that. That is different from people using evidence to continue to perpetrate the activity that they were doing in the first place that we were trying to stop. The way in which we move forward is a layman's challenge as well as a legal challenge for those of us who are not lawyers.
Could we have special advocates? The Newton committee suggests that we could have special advocates at a different level, which relates to what we were discussing a moment ago about the enhancement of the crime so that punishment would thus be based on an initial arrest for a form of criminality different from terrorism. It also lays down the challenge of producing a definition of terrorism, because the House and the other place have struggled to find one that would make terrorism a crime in itself, rather than the combination of activities that we put together in the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001.
I thought that I was struggling when I tried to get the legislation clear in my head two years ago, but that was chickenfeed compared with actually taking on the challenge of trying to find the nature of the solution and addressing the contradictions raised by the Newton committee with which we are dealing now. The Government had to come up with the right solution for the specific problem of overseas citizens whom we could not remove. The Newton committee is now understandably challenging us to deal with a whole different range of individuals who are preparing for, or engaged with, terror.
With reference to the Home Secretary's comments about Northern Ireland, does he accept that one of the lessons from Northern Ireland for Governments of all colours was that suppressing terrorist acts was not especially successful? For example, detention without trial had the counter-productive effect of strengthening the recruiting activities of the IRA. However unpalatable it might be to acknowledge it, real progress was made in Northern Ireland after we started considering the motives of terrorists. Will he comment on the extent to which the Government have actively considered a strategy through which we would try to understand the motives of terrorism—without condoning them—because, after all, that is how the biggest progress was made on the troubles in Northern Ireland?
I am not getting into that whatsoever. I do not understand the motives of those who commit suicide and blow up other people. I do not understand the motives of religious teachers and leaders and others who are not prepared to do that themselves, so instead send young men and women as suicide bombers to do their work for them—that is what happens. I do not understand those who have no negotiating position and no demands other than the total capitulation of our democratic way of life and values, because, make no mistake about it, that is what al-Qaeda is all about. There is no negotiation about the unification of a country or, for example, a just solution in the middle east, which we all want; it has never engaged in that demand. The Prime Minister and the Foreign Secretary have tried to engage in that process and we have tried to engage the United States' powerful voice to help us to achieve it. Virtually everyone in the House of Commons would want us to continue to try to do that. How can we understand those who take innocent lives not to free themselves from the shackles of some sort of post-colonialism, but to destroy the modernity and the society that they literally hate?
My point is on precisely the issue about which the Home Secretary was talking before he took the previous intervention: the difference between the prosecution of terrorism and of normal crime. That is what causes some of us considerable difficulty, especially those of us who have been involved in the prosecution and defence of serious and organised crime, including terrorism. Many of the difficulties that the Home Secretary rightly enumerates are already dealt with when considering such serious crimes. When people are prosecuted for those crimes, it is inevitable that method and the fruits of method are revealed. Infiltration is revealed in such trials by necessity. Of course, that is subject to public interest immunity, which can be draconian in such circumstances. Will he consider what the difference is in truth between the problems when dealing with the most serious of crimes and with terrorism? It appears to us that terrorist crime is being elevated to a different level of crime, which is one of the reasons why some people cavil with the word "war"—not because of its seriousness, but because crime is being treated as something other than crime.
I know that my hon. and learned Friend is more familiar than I am with the uses of public interest immunity and the constraints that exist on the way in which evidence may be seen by defendants and how it may be used in court. If we believed that public interest immunity would cover the requirements that I have tried to enunciate, we would have used that. We will want to come back to the serious crimes about which he talks in a White Paper on organised crime, which will build on the announcement of the establishment of a serious organised crime agency, because there are real issues regarding conspiracy that the Attorney-General wishes to examine and that were touched on in the Newton report. There are questions about the way in which one can read over from one set of activities to another, but that does not get us away from the nature of the evaluation of security advice.
The surveillance and work of the security services are our best means of prevention, and that is why I can confirm that we have already substantially increased the resourcing of the Security Service so that we can double its capacity to process and use the materials that it adduces as part of its intelligence gathering. The development of the Joint Terrorism Analysis Centre that we established last June will be helpful for drawing together a range of evidence from not only MI5, but MI6, GCHQ and the defence intelligence service. The increase of staff numbers by 50 per cent. will also be helpful.
That has already begun. I confirm that at the end of last year we agreed additional resources for this year and the next with the Security Service so that it could develop its work, as it has been doing. We described that privately and in more detail to the Intelligence and Security Committee. Obviously, recruitment, training and ensuring that people operate in an acceptable way takes time. Resources have been provided at each stage at which the Security Service has requested them so that it may continue its expansion at a scale and rate that is appropriate to its ability to recruit.
We have also increased the co-ordination of special branches, following the review that we undertook, by pulling them together into eight regional co-ordinating units. We have appointed a new co-ordinator, Bryan Bell, who was the assistant chief constable of Cleveland, to undertake that work. I referred to the White Paper a moment ago, and I shall say more about that and the necessary border controls and co-ordination in due course. All the elements go together in terms of prevention, surveillance and making sure that we act on an acceptable basis.
I hope that the Home Secretary will accept that I wish to make a non-partisan point. It is vital that the security services are expanded to meet the threat, but is it really such a good idea to make announcements that major recruiting programmes are under way in advance of the expansion? Is there not a danger that people sympathetic to the al-Qaeda cause may make special efforts to get themselves recruited? Would it not usually be better to do the recruitment first and make the announcement afterwards?
Actually, that is what I have just said; I was very careful. I notice that Mr. Beith, who is a member of the Intelligence and Security Committee, is smiling. He knows that that is correct. I was confirming that we had done it rather than giving al-Qaeda notice that something terribly new was about to happen. However, I take the point.
I am sorry to have to return to this point, but the BBC news report on this subject stated:
"The Home Secretary will announce plans to recruit another 1,000 staff in Parliament next week".
Is he saying that the report is wrong and that the recruitment has already taken place, or is he saying that it is going to take place?
The BBC was wrong in only one regard. I am confirming the event this afternoon. The point is well taken that we do not want to parade what we are doing to those who would use what we are doing against us. The point is noted.
We should automatically assume that we will take forward some of the challenges that the Newton report laid down. We have laid that out in the written response that is part of today's debate.
An interesting question was raised about the nature of our system. I have mentioned its adversarial nature, and some of the Newton committee's recommendations would depend on an inquisitorial system that, as it says, mirrors the magistracy system in France. There would be an investigating magistrate and the more detailed work would be undertaken behind the scenes, taking the evidence, collating it and bringing it forward in a different way. Our system is different, but if people are serious about an alternative one—I do not dismiss that, not least for low-level association and links with terrorist groups—we need to be serious about examining how it would work and how it would change the nature of disclosure and admissibility in our system.
I must admit that, when I first read the Newton report, I had difficulty with the explicit point that it made about the examining magistrates procedure. As I understand it, it would put a firebreak into the evidence process, but ensure that it remained safe and even-handed. Would that not involve completely changing our approach to the treatment of major crimes?
By no means; we would not necessarily have to extend such a system to major crimes. In the end, it still does not deal with the question of to whom the material is exposed and how the safeguards can be built in, as with the special advocate process that exists through SIAC. By necessity, I have read the reports carefully. Each time one thinks that one is moving towards a solution, there is an objection to another piece of the equation. It is a bit like a puzzle that one thinks one has solved but finds that one has not. I have never been good at such puzzles, so I shall have to try to get a bit better at them over the months ahead. That is why I thought it was useful to discuss the matter in the context and atmosphere of this debate.
I was a member of the committee and we examined the magisterial system in France and heard direct evidence about it. I assure the Home Secretary that the purpose of the report was not to call into question the fundamental framework within which we are looking at these issues. He is right: the system in France is different from ours. However, we were struck by the fact that there were, or appeared to be, advantages—not least, as my right hon. Friend David Davis suggested, in terms of handling evidence. Given that the Home Secretary will have a full consultation and review, it is probably worth taking such a system seriously if we are seeking new structures that are acceptable to us, but that protect the rights of the individual somewhat better than part 4 does.
I do not for a moment dispute what the right hon. Gentleman says about taking such a system seriously and being prepared to examine how it might enhance the powers available to us. I said that there were probably lower-level activities—the French call them associating with a wrongdoer. Their system goes back to the time when they were dealing with major terrorism from north Africa—from Algeria to be precise.
As well as the inquisitorial system, the right hon. Gentleman will be familiar with the recommendations in the Newton report, such as those for electronic tagging and monitoring and on the subject of bank balances. They could come into play. I dispute whether the latter recommendations could come into play for those who are so strongly linked to, and engaged in, terrorism that they are central to the threat to us. Allowing them free access to talk with and to be with other people at all—never mind allowing them to use computers, telephones or bank balances—would put us at risk. We are half way to each other in recognising that the committee has raised an interesting issue that we should address and that we should be open-minded about.
I am interested in French law. However, I am not advocating it, and I had better make that clear in case a baroness in the other place gets the wrong idea and is on the "PM" programme before I get the chance to refute the idea that I am. There is a historical difference in France. Because of the system of investigatory magistrates and the way in which the French judicial system works, they have held people suspected of terrorism for up to four years without trial. I would not want that; the SIAC process is a lot better, not least the three-monthly reviews. Our ability to debate the issues this afternoon demonstrates the care with which our democracy and the House take the issue of moving beyond the standard of proof and the procedures that we have normally adopted in criminal justice cases.
The manner in which the Government are presenting the information to the House, the discussion paper and all that flows from it and the dialogue that is going on are, unlike the approach taken to the Civil Contingencies Bill, extremely useful. Does the Home Secretary agree that, whatever merits there may be in the Newton committee's criticisms of part 4, one aspect has not been considered sufficiently? Under section 21, the Secretary of State can issue a certificate only if he reasonably believes or suspects that someone is a terrorist. We then have the review procedures on appeal and the provisions for certification in sections 25 and 26. In other words, unlike in the Civil Contingencies Bill, there is in this measure an opportunity for the court to get to grips with the question of whether the Home Secretary or other Ministers have misbehaved in any way. Does he agree that that is one reason why he might be right and the Newton committee might not be?
There needed to be a check—the House was very clear about this—on the certification and subsequent reviewing work of SIAC. When deciding to make SIAC a superior court of record, the issue of judicial review was debated. The starting point was how we could review certification judicially, as well as having the Carlile review, although Lord Carlile does an extremely good job of reviewing whether the process has been used correctly and whether due weight has been given to reasonable belief. That is why I have been able to say that we have now gone beyond reasonable belief in weighing up.
I know that other hon. Members want to speak, so I shall not go on at great length. To put that matter in context, however, it is worth reflecting that when the House was debating this at substantial length in November, it was feared that very large numbers of people would be picked up, certificated and dealt with under the measure. It was suggested at the time that 200, 300 or 400 people could be picked up.
Well, it would be if that person were unjustly accused—I accept that challenge. That is why we are agonising over how to go forward. We have been through the trauma of finding that people who have been through our existing criminal justice system have turned out to be innocent, and we are mindful of that. However, I was about to make the point that there was much concern because of the promises that had been given in the past. I remember that at that time one of my hon. Friends used the example of a former Home Secretary who projected at the beginning of the second world war the number of people who would be picked up for internment, which turned out to be a massive underestimate. I merely point out that we gave a pledge that we would use the provision judiciously and sparingly, and that we have kept that promise. We have used it only where we genuinely believed that the risk warranted it.
Therefore, in asking the House to allow us to retain part 4 for the foreseeable future, and in dealing with the challenges of Newton and Carlile—Lord Carlile also came up with the idea of acts preparatory to terrorism—we are prepared to take on board a range of suggestions that might help us incrementally to deal with people who are part of a wider association or network.
Can the Home Secretary help me on one point? If the legislation that he supports allows him to detain foreign nationals on suspicion of terrorist activities, is he considering extending that power to British nationals? Surely, if someone is entitled to legal rights, they are entitled to them whatever their nationality.
That is what we debated when we passed the 2001 Act. We discussed the fact that we were dealing with immigration powers, and with citizens whom we wished to reject from this country but could not because we wanted to safeguard their human rights. I have said this afternoon that although we face substantial challenges in improving the use of other parts of our law, including the Terrorism Act 2000, it is not my intention to use the SIAC process for citizens of the United Kingdom. Nor is it my intention, because I cannot see how we could do it, simply to do away with SIAC by using instead the system that we have in the United Kingdom purely to deal with this challenge.
We are trying to square the circle, because there are those who do not want special advocates but accept that we have to keep security evidence private, and others who do not want derogation but accept that if we have special advocates and want the process to be fair and open, we have to use derogation because we acknowledge that we are derogating from part 5. Then there are those who are uncomfortable with the certification process. But how do we deal with a magistracy investigation process in such circumstances? Some may agree with us on severity and the particular circumstances developed for part 4, but want us to consider other activity in connection with lower-level association, perhaps looking at what has taken place in France or the suggestions made by Lord Carlile on acts preparatory to terrorism. All those matters need to be dealt with in the months ahead.
Part 4 applies solely to foreign nationals. If I understand Newton and my right hon. Friend the Home Secretary correctly, measures against acts preparatory to terrorism or association with wrongdoers would not apply solely to foreign nationals but could apply generally to British citizens. Will my right hon. Friend take this opportunity to say how during the next six months he will explore the real issues that that would raise, given that it would introduce legal measures that, in the real world, would apply only to one community in this country, whatever the theory of the law? He is raising enormously important issues, and the handling of them, including the consultation period, is critical.
I understand precisely what my right hon. Friend is, quite rightly, alluding to. Let me make the position clear. We had the same difficulty with citizens of, or persons who had originated in, Ireland when surveillance and anti-terrorism activity focused on terrorism emerging from Ireland, and it was feared that the Irish community in Britain was therefore being tarred with a certain brush. Those questions were rightly put at that time. There was real fear, for example in parts of north London, where people genuinely feared at the time of severe bombings that there would be action against them purely because of their accent. It is perhaps hard for us to remember now just how horrendous some of those bombing attacks were. The blowing up of the Grand hotel in 1983, the bombing of the bandsmen and the Birmingham bombing, with their taking of innocent life, shook people to the core and invoked a reaction.
Part of what we are required, of necessity, to do is to calm fears. We should not exaggerate incidents or appear to be regularly hyping such situations, but should try to explain to the public that people from an Islamic background who have engaged with terror have disengaged themselves from the Koran and the teachings of Islam. That is what all my Islamic advisers and friends make clear. Therefore, in taking actions that deal with a particular source of terror activity, we need to take commensurate steps to maintain calmness, social cohesion and race relations, giving the necessary explanations and information. My right hon. Friend Mr. Denham has played an important part in that, including in taking forward suggestions not only on divided communities and the issues that were raised after the disturbances in 2001, but on the broader issues of how we develop faith and cohesion measures to enable us to avoid the kind of problems that he has raised this afternoon. I thank him for the way in which he has raised those issues.
I also say to my right hon. Friend that if we were considering lower-level activities, we would be examining concrete suggestions over the next six months and beyond. I have one suggestion that goes with the grain of the Newton report and the experience in France. Let us suppose that it were possible to seek to prevent someone from being engaged in a low-level connection or association with terror by preventing them from using a particular bank balance, as Newton suggested, or a telephone or computer. I am now drawing on the Newton committee report. Let us suppose that an order were placed on that person to preclude them from using those facilities for a particular length of time. That would be a civil order, but if they breached it, it would be a criminal offence. We should be dealing with the breach of the order. That area is worth exploring, and I believe that the Newton committee and the acts preparatory to terrorism that Lord Carlile mentioned will help us to examine it.
Does the Home Secretary recall that one of the reasons for setting up the committee was that there was a lot of anxiety about rushing legislation through Parliament when significant parts of it extended far beyond the realm of terrorism? Given that the response rejects quite a lot of the committee's recommendations relating to greater monitoring in the areas that are not primarily about terrorism, will he at least reflect on the committee's concern that, if legislation covering far wider issues than terrorism is rushed through Parliament with shortened procedures, it will undermine the consensus on the use of those procedures in future?
While I do not wholly agree with what was being said, I was about to say that there are other areas that deal with the wider Act, involving the open publication of statistics and relating to arrests under the Terrorism Act 2000 and the certification process, which we accept as well. The taking forward of the list of pathogens and toxins, the recommendations of the Newton report on the security of premises and the commentary in relation to aspects of the Act itself in terms of mainstreaming were among the suggestions to which the right hon. Gentleman has referred.
We are not rejecting those suggestions. We are saying that if there are opportunities to mainstream other parts of the Act in future legislation, the Government should consider doing that. However, deliberately to re-run them for the sake of re-running them now, not because anyone objects to them, would be detrimental to the other forms of legislation that every Member of the House is encouraging us to introduce. This is a bit like air traffic control: if one plane is in the air, the next one cannot go up until we have moved the first one. That is how legislation works. Each Cabinet Minister feels strongly that their own Department's legislation should be brought forward. I hope that the right hon. Gentleman will forgive me for not being a great enthusiast for re-running everything from other parts of the Act, and for being willing to re-run them when it is appropriate to do so, in the spirit of the Newton report.
Have I understood the gist of what the Home Secretary is saying in asking for the powers relating to terrorism to be renewed? Is he saying that, however we try to devise appropriate criminal procedures, which might satisfactorily deal with British citizens who can be dealt with in no other way, and might reduce the number of people who need to be detained under the current powers, he is none the less perfectly satisfied that we cannot manage without the current powers as well?
The answer to that has to be an unequivocal yes; otherwise, the Act would collapse. The process of certification and the challenges being made would all be subject to that answer. I made it clear when I repeated the words of the head of the intelligence service that I believe it is a necessity to reaffirm part 4 and to look at the wider issues in the spirit that we have done this afternoon. I want to thank the House—
My right hon. Friend is very kind. My concern is with part 12 of the Act, which does not directly deal with terrorism but contains anti-bribery provisions. Have I understood correctly that the Government will not repeal part 12 until such time as alternative, more clearly drawn legislation against international bribery has been enacted?
We have in draft related legislation that would give us the opportunity to do that. I hope that we shall be able to do so. In the spirit of the question, I shall ensure that we deal with that question in the serious and organised crime White Paper. It would be sensible to deal with it in relation to the broader international issues.
The atmosphere in the House this afternoon and the way in which right hon. and hon. Members are approaching this issue are extremely encouraging. Democracy protecting democracy is the best possible advert for democracy. That is a great strength, and I thank all hon. Members for this. I commend the motion—which I carefully enunciated at the beginning of this debate, because I had to—to the House, and I hope that hon. Members will support it.
I join the Home Secretary in thanking Lord Newton and his colleagues for their report on the Anti-terrorism, Crime and Security Act 2001. As the House would expect from a committee of distinguished Privy Councillors, it has produced a report that is substantial, measured and constructive. The committee clearly put in a formidable quantity of work and did an enormous amount of research. It also brought to bear a considerable level of expertise and experience, and made a number of serious recommendations worthy of careful consideration by the Government.
Matters as serious as the balancing of the safety of our citizens against the fundamental rights to justice of all human beings demand serious consideration, so it was with regret that I observed how quickly the Home Secretary seemed to dismiss the main thrust of the report when it was published in December. As Peter Riddell put it in The Times:
"The 121-page report is not what would have been written by Amnesty, Liberty or Michael Mansfield."
"Mr. Blunkett should not have been so hasty."
I am pleased that the tenor of the Home Secretary's comments today has been much more measured, and I commend him for that. He is right to say that the tone of this debate will serve us well in coming to a good conclusion.
As the Home Secretary has pointed out, the context for the Anti-terrorism, Crime and Security Act 2001 was the events of
The committee, at paragraph 103 of its report, quoted the director-general of the Security Service, as did the Home Secretary. I believe that her words bear further repetition:
"I see no prospect of a significant reduction in the threat posed to the UK and its interests from Islamist terrorism over the next five years, and I fear for a considerable number of years thereafter."
The point here is that we are not talking about a temporary measure when we discuss these issues today. So far, we have been fortunate. As a result of the skill of the police and our intelligence services, planned terrorist attacks have been thwarted, but the need for vigilance remains constant. I therefore join those who welcome the announcement by the Home Secretary of additional numbers for MI5. I rather enjoyed his attempt not to give too much away while telling us what was going on in that regard.
We need to have in place all the necessary measures to prevent attacks from succeeding in the United Kingdom and, to the best of our ability, elsewhere in the world. It is clear that, in the House, we have to be united in the war against terror. So we agree with the Newton committee that there is a continuing need for special counter-terrorist legislation. We also believe that terrorists should be given no special status and ought to be treated as criminals. As Lord Lloyd set out in his 1996 review, as far as possible anti-terrorist legislation should approximate to the ordinary criminal law and procedure.
Of course, the Home Secretary is right to stress that the Government do not lightly take on the powers in the 2000 and 2001 Acts. It obviously involves difficult judgments and measures that no Government in a liberal democracy would ordinarily consider. The Home Secretary will be happy to know that I include him in that definition of liberal democracy. [Laughter.] I thought I might get a laugh. To be serious, that is why we need constantly to check the powers against three strict and rigorous tests.
First, are we confident that the powers work to minimise the risk of terrorism? That is not an otiose question. Secondly, do they undermine fundamental liberties to the extent that they do the terrorists' work for them? Thirdly, can the protection of the public be achieved with less harm to those liberties by any other means? To put it another way, we must always remember what we are defending. For those reasons, although we support the 2001 Act overall, we believe that all anti-terrorist legislation should be subject to annual review and full debate by Parliament—and, if necessary, regular revision.
Before I come to the most controversial piece of the report, which took up most of the Home Secretary's speech, I shall deal with some other serious sections of it. One of the most striking aspects of the committee's report is the number of powers that it identifies in the 2001 Act that have been used sparingly or not at all. It gives the example of freezing orders, provided for in part 2. Everybody agrees that the power to freeze assets is a key weapon in the fight against terrorism, yet the committee states at paragraph 146:
"These measures are unlikely to be used against terrorism while the Terrorism (United Nations Measures) Order 2001 is in place, which already makes specific provision for freezing terrorist assets."
The committee goes on to cite a number of advantages that distinguish the United Nations order from the part 2 powers, and concludes that
"freezing orders for specific use against terrorism should be addressed again in primary terrorism legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001."
In their response to Newton, the Government say that they do not accept the proposal, stating:
"The fact that the power has not been deployed since the legislation came into force is not of itself an argument for setting it aside now, nor including it within wider primary anti-terrorism legislation."
We find that a curious justification for rejecting the committee's perfectly reasonably proposal, and ask the Home Secretary to consider the issue again, as much of the committee's argument is that the UN terrorism order is a better, more effective and more just law.
Does my right hon. Friend agree that much of what he is saying and quoting reinforces the proposition that the 2001 Act, which was introduced as emergency legislation, contains a host of provisions that could not by any stretch of the imagination be regarded as emergency measures, but were never subject to any proper scrutiny?
My right hon. and learned Friend reiterates the point made by Mr. Beith. We on the Conservative Benches have argued time and again that measures that involve relatively draconian powers require much greater scrutiny than is possible these days in this House of Commons—even when they are not emergency powers.
The committee says on the question of identity theft:
"we are not convinced that all the relevant measures in Part 10 address it effectively".
The report cites an al-Qaeda manual that devotes two pages to falsifying passports and identity cards. It also notes the importance placed by the French authorities on credit card fraud as a basis for "micro-finance" in contemporary terrorism. We need to prevent terrorists from misrepresenting themselves in the system in the first place, and in his response to Newton, the Home Secretary said:
"The Government are assured that these powers are effective and proportionate".
How can that be the case when the committee has said that the problem is so large scale? The Home Secretary says that the problems will be addressed by the introduction of identity cards in the UK and by the use of biometric technologies, but under the Government's scheme, compulsory cards will not be introduced until 2011 and will not solve the problem of credit card fraud. We need a more rapid and tailored solution than the one that the Government are offering.
We agree strongly with the committee's recommendation on terrorist property, particularly in relation to extending the power of seizure to non-cash items. The Government say that the powers in the terrorism Act already allow such seizures, yet the committee has clearly identified a problem. We ask the Home Secretary for greater reassurance than that given in the published response, which states that current powers are adequate to tackle the problem.
We also agree with the view that
"open hearings in an ordinary Magistrates Court are not the appropriate forum for handling cash seizures in terrorist cases".
The committee recommends that the terrorism Act be amended to enable cash seizure hearings to be handled in a similar way to warrant hearings under the legislation. The Home Secretary said that he would look closely at that proposal, and we welcome that.
The committee echoes and endorses concerns raised by the Opposition—and most often by my right hon. and learned Friend—during the passage of the Bill in 2001 on the so-called Henry VIII powers, but the Government dismissed the committee's recommendation. We strongly agree with the committee. May I take this opportunity to urge the Home Secretary to reconsider his view—most of all on legislation such as this which impinges so fiercely on individual civil liberties?
That brings me to the most controversial aspect of the legislation, on which the committee again echoes our view. I refer to detention powers in part 4 relating to foreign nationals. The committee's conclusion in paragraph 203 is unequivocal:
"the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency."
My right hon. Friend Mr. Letwin argued strongly that internment was not the best way of dealing with such cases. Regrettably, the alternatives that he proposed did not persuade the Home Secretary. As a result, under the detention powers, some 14 foreign nationals are being held indefinitely without trial.
It is undoubtedly the case that such detention is a serious infringement of civil liberties. I do not find the argument that such people can "always leave the country" particularly persuasive. On the one hand, to return to some countries might, in effect, be to return to death; on the other, releasing people whom we believe to be international terrorists to travel the world seems a peculiar policy. The difficulty is that if the Government are right about those 14 people held under the Act, releasing them could put hundreds or thousands of innocent lives at risk. The Home Secretary is right, and I must recognise that. Nevertheless, because it is such a serious infringement of civil liberty, I agree that the Government should heed the committee's request and seek an alternative. I am glad that the Home Secretary has undertaken to review part 4 over the next six months. I assume that in that review he will consider and seek alternatives. The difficult question is: which alternative will work?
One area in which I disagree with the Newton committee is on the possibility of tagging, curfews or daily visits to police stations as an alternative to such detention. That is impractical for serious terrorist crimes, let alone for suicide bombers. I welcome the fact that the Government have said that they have no intention of going down that route, although it may be useful for the more minor terrorist crimes. Another solution is needed.
Everyone agrees that the most desirable way to deal with terrorists is to bring them before the courts. That is where the Home Secretary should be concentrating his efforts—looking at aspects of the law that make prosecution more difficult and seeing whether they can be corrected. The Newton committee highlights one aspect in particular, on which we believe the Government should act. Paragraph 208 states:
"In our view one way of making it possible to prosecute in more cases would be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court".
We agree. That was a conclusion reached by Lord Lloyd in his 1996 review. It has the backing of Lord Carlile. It has been advocated in terrorist cases for many years by Mr. Trimble. It has had the support of successive Chief Constables in Northern Ireland.
We understand previous objections to ending the ban: principally, that it would reveal sensitive information about our intercept capability. We believe, however, that the balance of the argument has moved on, especially post-
The committee put up an interesting idea for protecting the evidence from the sort of excursions that we hear so much about in relation to lawyers representing terrorists. The idea of an examining magistrate, or having that as a phase of the evidence gathering, is sensible. I must admit that when I first read it, probably like the Home Secretary, I did not see exactly where it was going. As a phase of evidence gathering, however, and as a way of introducing a cut-out to protect the evidence and the methods used, it seems an eminently sensible approach. The Home Secretary has said that the matter of intercept evidence is one of a number of options under review. That review should be concluded quickly. The ban on intercept communications evidence should be dropped, and I hope that he will again look closely at the committee's proposal, as it is eminently sensible.
I am encouraged by the right hon. Gentleman's comments. For clarity, is the thrust of his argument that if alternative measures were put in place, such as the acceptance of intercept communications as part of evidence, the Conservatives would support the removal of part 4?
Yes, indeed. The issue that we are considering is one that the hon. Gentleman raised in an intervention on the Home Secretary. In relation to those 14 cases, if he is entirely persuaded beyond reasonable doubt that they are terrorists or would-be terrorists, and they would be expected to be convicted in a process that absorbed those changes, that is a good reason for part 4 to go. That is what we want, ideally, as a result of the review process.
The difficulty for the House is that we cannot know what the Home Secretary knows. We cannot test each of those cases. Perhaps the committee could do so—perhaps its members will tell us that they did test that proposal. We cannot do so, however. I am taking it on faith—something that one does rarely with Ministers when in opposition—that the Home Secretary will make a judgment about that in the process of that review.
I am grateful to the right hon. Gentleman. This is an important point on which to understand the Opposition's view. For the sake of argument—I am not familiar with the individual cases either—let us suppose that seven of the cases could be resolved as criminal cases, were the intercept information available, but the other seven relied on information obtained by the security services through methods that they could not possibly disclose in a criminal trial. Would we not have to conclude that circumstances would exist in which part 4 needed to remain? The alternative would be to release those individuals.
I think that the right hon. Gentleman has restated my view. I made the point about 14 cases. Although this depends on something of which I am not certain—the level of evidence on which the Home Secretary's judgment is based—the Home Secretary said earlier that he set higher hurdles than would apply in a normal court case. If that is true, that should resolve the issue for all 14.
Will my right hon. Friend remind himself, however, that at the end of the day what the Home Secretary is considering is information given to him by the intelligence services? The truth is that they are often wrong, and they were desperately wrong about Iraq. I am very uncomfortable about people being deprived of their liberty on the basis of intelligence information that will always be uncertain and will never be the subject of any certain verification.
My right hon. and learned Friend is exactly right. He and I have both been recipients of such information with respect to Iraq in our previous incarnations, and I suspect that we both saw the errors along the way. That is why a judicial process—a process of justice—is a better process. That is why there should be a process of challenge. That is why the Newton committee's proposal of an examining magistrate, which allows the examining magistrate, as I understand it, to establish not just when there is incriminating evidence but when there is exculpatory evidence—the very reason lawyers are usually allowed to forage among the evidence—is an important addition. If that could be put in place, it would be an excellent replacement for part 4.
I merely seek clarification. Obviously the Butler committee will do its work in relation to Iraq. As for the intervention from Mr. Hogg and the intelligence services, I want to make it entirely clear that we have absolute confidence in the Security Service. We also believe that following the establishment of the joint terrorism and analysis centre, which will be led by the Security Service, the pulling together of information from the Secret Intelligence Service, GCHQ and the Defence Intelligence Staff will be undertaken in a way that all of us will feel able to support.
The Home Secretary knows full well that, like the other Members who have intervened so far, I am a great supporter of the Security Service, the Secret Intelligence Service and GCHQ. We also know, however, that owing to the difficulties involved in gathering intelligence it is sometimes unreliable, and may not be sufficient to persuade someone beyond reasonable doubt. That is part of the whole question of challenge that we are discussing.
This is not an attack on the integrity of any of the intelligence-gathering services. It is simply a recognition of what they know to be a practical problem, and indeed a reflection of advice that virtually all of them have given me in the past, during my time as a Minister.
My right hon. Friend raised the issue of what was in the Home Secretary's mind. The Civil Contingencies Bill simply states that what the Home Secretary thinks must be so, but in this context there is no doubt that in issuing a certificate he must have regard to the reasonableness of the judgment that he forms about whether a person's presence is a risk to national security, and to whether he reasonably suspects that the person is a terrorist. That is subject only to two qualifications in relation to sections 25 and 26 of the 2001 Act. The decision can be questioned in court, and the issue of reasonableness on the part of the Home Secretary is then taken into account. Does my right hon. Friend agree that, given the imposition of certain conditions, there is a means whereby there can be a proper challenge to what the Home Secretary does?
I am sure that my hon. Friend's interpretation is correct, but it does not meet the requirements for a just process overall that we have been discussing today. That is the point that the committee was making.
As I may owe my life to intelligence that was relevant when I was a Northern Ireland Minister, I start with a presupposition in favour of the intelligence services. Having declared that interest, let me say that my right hon. Friend has put his finger on one of the fundamental quandaries. It is a question of how to verify intelligence, and how to verify the claim that to reveal intelligence is to undermine the safety of the state. I hope that my right hon. Friend will use the consultation period to enable my party to come up with constructive suggestions of ways in which those two issues can be addressed that will meet the standards that we all want to apply. If it cannot do so, and the Government cannot do so, we shall remain in that quandary for years.
That is true, and the difficulty is made much more acute by the consequences of error. When my right hon. Friend was dealing, in a highly effective way, with terrorism in Northern Ireland, even the worst of the events there did not compare with those of
Let me repeat what I said earlier. When I first read the committee's proposal for an examining magistrate, I did not react very well. I do not like the continental procedures for most aspects of the judicial process. It struck me, however, that the committee had hit on something that would allow justice for the victim, verification and a firewall that would enable evidence that could not otherwise be used to be brought into play. That is a very good idea, which we will build on during this consultation process to meet the requirement that my right hon. Friend mentions.
Of course, the so-called evidence is factual assertion made by the security services, either to the Home Secretary or subsequently to the Special Immigration Appeals Commission. Does the right hon. Gentleman not agree that herein lies the root of the problem with SIAC? It is not a court, and the rules that govern it mean that documentation and evidence given to it by the Home Secretary or by the security services is, by definition, cherry-picked. SIAC's rules do not require that all the evidence be placed before it, so what it is getting is a selective version of that evidence. Is that not an intrinsic problem in itself, and an affront to the principle of justice? Unless SIAC can weigh all the evidence, it is impossible for it to see the whole picture.
The hon. and learned Gentleman is exactly right, which is why part 4 of the 2001 Act would not be justified under any circumstances other than the asymmetric outcome of getting it wrong. On the one hand, getting it wrong means an injustice to one person, which is dreadful. Indeed, at one point, I intervened on the Home Secretary from a sedentary position to point out that one error is too many, but getting it wrong the other way could mean the loss of many thousands of lives, as we have seen in recent times.
The right hon. Gentleman is in danger of forgetting—as is my hon. and learned Friend Mr. Marshall-Andrews—that hearsay has been admissible in ordinary criminal trials since the introduction of the Criminal Justice Act 2003. Indeed, the Opposition supported that aspect of the legislation with reasonable enthusiasm. Hearsay is second-hand, third-hand or written material that can now be put into an ordinary criminal trial, but which previously had to be given by oral testimony. In talking about intelligence, are we really talking about matters that are so far away from that principle, which the right hon. Gentleman regards as an acceptable part of the criminal process? I do not think that we are.
The hon. and learned Lady's point was, I think, answered by the intervention of my right hon. Friend Sir Brian Mawhinney, which dealt with the whole question of verification. We are talking, in effect, about sentencing people for life—or as close to a life sentence as one can ever have—so verification is vital. Unlike the hon. and learned Lady, I am not a lawyer, but the principles of the assumption of innocence, and of proof of guilt beyond reasonable doubt, are central to my belief in the law. That is why I consider part 4 of the 2001 Act to be an unacceptable infringement of civil liberties, under any circumstances other than those that currently apply.
I have taken quite a lot of interventions, so if I may I shall move on to one other aspect of this controversial section. The Committee made other suggestions that could help to bring about more terrorist prosecutions. On terrorism as an aggravating factor, paragraph 218 of the report states that
"it might be feasible to:
a. define a set of offences which are characteristic of terrorism and for which it should be possible to prosecute without relying on sensitive material, but b. raise the potential penalty where it can be established that there are links with terrorism."
The Home Secretary said:
"There are already a wide range of criminal and terrorist . . . offences that can be used to bring prosecutions. The Government is considering whether further offences should be introduced".
Senior police officers have told us that there are gaps in the law that create problems for them in their pursuit of terrorism—lacunae in the conspiracy law, for example. When the Minister winds up, I should like her to say when we are likely to see proposals in this area.
On plea-bargaining, the document published this morning states that there might be
"particular merit in terrorism cases in giving the suspect greater certainty of outcome in the event of co-operation by establishing a sentencing framework within which the accused may be sure of securing a reduced sentence in return for co-operation".
In their response, the Government say:
"It is customary for timely guilty pleas to receive recognition in the form of a reduction in sentence".
But plea-bargaining also relates to the defendant's giving evidence to convict other terrorists and to prevent other atrocities. Here, there would be clear problems over witness credibility, but it may nevertheless be a worthwhile tool. I would be grateful if the Minister expanded on the Government's view when she winds up.
I should like to raise a couple of matters that the Home Secretary has spoken about in recent weeks, but did not mention today. In his usual high-profile way, he has recently floated several ideas, including lowering the burden of proof, trying terrorist cases without juries, using security-vetted judges and counsel, and holding entire trials in secret. Frankly, it is an extraordinary raft of ideas, and although we will examine the fine details of the Home Secretary's proposals, he should be aware of the Opposition's reservations at this stage.
In our view, it is not only highly dangerous, but totally illogical to move towards lowering the burden of proof for the most serious offences. That would be a deviation too far from the ordinary criminal law. The Home Secretary has made it clear that that is not his intention, which we welcome, but we need to know more about what he means by applying civil orders to those associated with the fringes of terrorism before we make a considered response.
It would also be helpful if the Home Secretary clarified more about his motivation in bringing forward these ideas at this particular time. Is he saying that the Government have intelligence about large numbers of people who are planning terrorist activities but against whom it is impossible to act? We know from our experience in Northern Ireland about the frustration experienced when known terrorists walk free because of the inadmissibility of intelligence in court, but that should not plunge us into making bad law that overturns centuries of established legal process.
The same applies to secret trials. If public confidence in the criminal justice system is desirable, and if it is to be maintained, as much of a trial as possible should be held in open court. That has always been the case, even under Diplock in Northern Ireland, where parts of trials could be held in camera when necessary. On single judge courts, is the Home Secretary really saying that jury intimidation in al-Qaeda cases is on the same scale as resulted in Diplock operating for 30 years in Northern Ireland? I do not believe so, and we will need some thorough convincing before following the Home Secretary down that path.
The powers that the House is examining today are exceptional, as has been apparent from several discussions. Under normal circumstances, many of those powers would not even be contemplated, let alone approved by the House. Regrettably, the threat of terrorism dictates that some are necessary. I agree with the Home Secretary that, without the powers of the 2001 Act, our defences against international terrorism would be severely weakened. For that reason, despite our reservations about part 4, we support the continuance of the Act. However, we call on the Home Secretary to return to the questions raised about part 4 and to review very carefully whether changes in evidence could allow him to replace what is effectively internment with a proper process of justice.
As one of the Privy Councillors who sat on the Newton committee, I welcome the opportunity that the debate provides for a serious discussion about the difficult issues raised by the Act. I also welcome the consultation that the Government have put in motion, but I am disappointed that they have rejected so conclusively the recommendations that we made in the report—reiterated today—about part 4. The Government are almost pre-empting, in what they have said, the outcome of the consultation. Over the course of the next six months—from today and over the consultation period—I hope that we can give serious consideration to the criticisms levelled by the Newton committee and its suggestions for possible alternatives.
Does the right hon. Gentleman agree that his point is reinforced by the fact that the Joint Committee on Human Rights shares the views of the Newton committee?
There are many voices to be listened to—in both Houses and among the wider public—on the issue, and I hope that the Government will be in listening mode rather than made-up-their-mind mode during the consultation period.
It is difficult to balance the competing and crucially important issues that face any Government in these circumstances. On the one hand, there is the need to protect public security; on the other, the need to safeguard the civil liberties of the individual. Both duties are incumbent on any Government. When there is the potential for those two requirements to collide, Governments face a difficult task. They must try to find the solution that preserves the most of each of those principles, and that is the task that my right hon. Friend the Home Secretary must undertake.
I want to concentrate on part 4 of the 2001 Act. As it stands, it is not satisfactory. Members of the Privy Counsellor Review Committee included dyed-in-wool Islington libertarians like me, and others of a rather different provenance, such as Sir Brian Mawhinney. However, our conclusions about part 4 were unanimous.
The Committee identified a number of problems. First, and most importantly, it offends against every principle of liberty and justice on which our democracy is founded to detain people in this country, potentially indefinitely and without specific charge or proper trial. That is true regardless of who they are or where they come from. If it is at all possible to find another way to address these serious issues and difficulties, we should strive as hard as we can to find it. Simply dismissing out of hand the recommendations of the Newton committee does not amount to the strenuous work that is needed.
Secondly, the existence of part 4 required a derogation from the European convention on human rights. It is noteworthy that, in putting together our response to terrorism, we are the only country in Europe to have sought such a derogation. Other European nations have found robust responses to the problems of terrorism. Rightly, they are as exercised as we are about the dangers of terrorism, but they have not needed the same derogation.
I hope that my right hon. Friend is not making a false point. No other country has derogated, but high-ranking lawyers have suggested that the French terrorist measures in particular are in breach of the convention.
My hon. and learned Friend tempts me to say that some of our EU partners uphold the principles of the convention and other provisions more in name than in reality. However, it remains the case the UK has actively sought a derogation. I believe that, if at all possible, we should try to avoid doing so.
Thirdly, part 4 uses what is effectively an immigration procedure to answer a terrorism problem. I believe that we ought to answer terrorism problems through the action of the criminal law, and if necessary with specialist terrorist measures. We should not spatchcock into the procedure measures supposedly prepared in response to immigration issues.
The Privy Counsellor Review Committee also identified the central problem that the procedures under part 4 apply only to foreign nationals suspected of being connected with al-Qaeda and associated organisations, and not to UK nationals. However, the committee received evidence that about half of all those suspected of terrorist activity in this country are UK nationals. We should be trying to address those issues every bit as actively as those relating to foreign nationals.
I hasten to add that the evidence received by the committee showed, without a shadow of doubt, that the Home Secretary has applied the procedures under part 4 conscientiously, assiduously and with the utmost care. It is important to put that firmly on the record. However, those procedures and the principles behind them are deeply flawed and they are not wholly effective.
In our report, we propose a range of alternatives. I readily acknowledge that none of those alternatives is, by itself, a solution. Indeed, we should not be looking for a single alternative solution to part 4. The committee has tried to put together a range of measures that might add up to an answer. There could be other options that it was not possible for us as a committee to imagine or consider, but that the Home Secretary and the Home Office really should be considering during the next six months. Simply to say that there is no alternative to part 4 is not enough.
Several of the options that we proposed have already been mentioned during the debate, but I should like to highlight a few of them. The first is the removal of the blanket ban on the use of intercept evidence in open court. In the United States, that happens as a matter of course. Indeed, there have been some successful prosecutions of terrorist associates in the US on the basis of intercept evidence acquired not just by the US intelligence services but by foreign intelligence services. That evidence was used in the US court system and there is no reason that we should not begin to go down that road.
In the paper that the Government issued this morning, they say that they are reviewing the matter, but they have been reviewing it for years and it is about time that we came to a conclusion and decided that intercept evidence can be used. It does not have to be used—it would be entirely up to the prosecuting authorities to decide whether to use it—but it could be used in court.
Can the right hon. Gentleman help me? My recollection is that we were given evidence that although British intercept evidence has not been used in British court cases it has already been used in a French court case. Is my memory right?
I think that the right hon. Gentleman is correct, although I am struggling with my own memory about that point, but I recall that it was mentioned to the committee.
I commend the right hon. Gentleman for his part in the production of the report. When he was looking at the American use of intercept evidence, could he identify any major differences in law—other than the Regulation of Investigatory Powers Act 2000, which we should have to amend—that made it easier to use such evidence in the US than in this country?
Not that I am aware of; indeed, it seemed to us that the factors preventing the use of such evidence in our courts, rather than being legal issues, were more to do with process and organisation.
The committee made other suggestions. Much reference has been made to our proposal that an investigating judge system could be used to sift sensitive evidence before a matter is brought to trial. We believe that such a procedure could help the whole process. It could help to establish the validity of a case; indeed, establishing that something could be brought into the open could assist the intelligence authorities to make judgments about whether such evidence could be produced, and so forth. That could be a very helpful element in the process.
We also suggested that the Government could consider the use of prosecution for other offences that the courts could view as aggravated ones when sentencing in relation to terrorism. Again, that has been successful in the United States where the use of racketeering legislation has been effective. We proposed that more formal use should be made of plea-bargaining. I urge the Government to go beyond the notion of simply an admission of guilt producing a lighter sentence, because many other ways of co-operating could be encouraged, particularly in relation to terrorism offences. Such arrangements need to be put to much greater use.
We proposed a much greater use of surveillance. Of course I appreciate that close surveillance will require substantial increases in resources; I am very pleased that the Government are putting extra resources into the intelligence services, the staffing of MI5 and enhancing certain police provision. Rather than simply prosecuting people and locking them up, we should, as an alternative, maintain close and effective surveillance. That option seems not only desirable as a means of avoiding incarceration without trial, but it may be more sensible in countering terrorism.
The FBI told us very openly when we were in Washington that, in many cases, it prefers to keep people under watch than to take them in and lock them up because it finds out a lot more about their intentions and those of their organisations by watching them, keeping them under surveillance, following them and knowing what they are planning to do. We ought to think seriously about that as well.
May I refer my right hon. Friend back to his statement about the number of British subjects who are likely to be involved in terrorism? Was he given any information about the degree of surveillance over them and the methods being adopted by the security services? If that surveillance is going on, it powerfully strengthens his present argument.
Of course I am not at liberty to reveal all the evidence that we saw; but, yes, considerable surveillance activity is indeed taking place, and rightly so. Irrespective of whether someone is a British citizen or a foreign national, one of the basic principles should be that the protection that we as a society need should be the same whoever happens to pose the threat.
Finally, we also proposed restricting suspected individuals' access to bank accounts, telephone communications and so on as a means of providing some protection for society without denying those individuals their total liberty as part 4 does.
I am very glad that the Home Secretary has said that he will consider many of the Newton committee's recommendations, but I plead with him to show at least some concern about the central issue in relation to part 4: its fundamental overturn of a central principle on which the stability and liberty of our society is based. If it is at all possible to identify not just one alternative but a range of alternatives that, taken together, can provide something better for our society, it is surely incumbent on the House to try to find them.
I beg to move, To leave out from "House" to the end of the Question, and to add instead thereof:
"welcomes the Privy Counsellor Review Committee Report on the Anti-terrorism, Crime and Security Act 2001;
and calls upon the Government to act on the Committee's recommendation to repeal Part 4 of the Act and replace it with alternative provisions for monitoring and prosecuting suspected terrorists which do not require the suspension of basic human rights."
Liberal Democrat Members acknowledge that the Home Secretary has an incredible responsibility for the whole country in ensuring that the provisions in law that he introduces protect us all as citizens. In tabling the amendment, we in no way wish to suggest that he is not fulfilling that responsibility properly. That is a big burden on a Home Secretary, who has to make difficult and complex judgments. I believe that the current Home Secretary does so with a great deal of care. I hope, however, that he will acknowledge in return that Opposition Members have a responsibility to probe and to test the Government on these issues.
It was with that in mind that we tabled the amendment. We believe that, as the report says, a balance has to be struck between the Home Secretary's need to ensure that he protects us, as citizens, from terror, and the need to ensure that we have good, proper principles of justice that protect the privacy and liberty of individuals. We wish to explore the latter aspect of that balance. In doing so, however, I state for the record that we all have to make difficult judgments, especially the Home Secretary. If an incident were to occur, the Home Secretary would obviously be responsible for taking on that burden.
The report is excellent and helps us to deal with those difficult balances. I pay tribute to the Privy Councillors who came together on a cross-party basis to put forward its recommendations. We have heard from Mr. Smith, so I hope that my right hon. Friend Mr. Beith will be able to catch your eye, Madam Deputy Speaker.
We welcome the tone used by the Home Secretary this afternoon and the language used in the discussion paper that he launched this morning. I welcome the suggestion that there should be a six-month review of these measures. If I had known that yesterday, we might have taken a slightly different view of whether we wished to table an amendment, because the point of it was to tell the Home Secretary that it was unacceptable to continue to implement these measures without undertaking a more urgent review. By introducing the six-month review, the Home Secretary shows that he recognises, to some extent, that a more urgent response is required than merely noting the contents of the Privy Councillors' report, as the Government's motion suggests.
The timing of the debate is appropriate, not only because of tomorrow's debate on the statutory instrument that takes the measure forward, but because, following the recent events in Camp Delta, there has again been a focus on the principle of holding individuals without charge. There should be no possibility of a similar situation in this country. Of course, I accept that there are different technical circumstances, but the underlying principle is the same.
Although Parliament debated these systems and structures two years ago, and they have been in place since then, we face the same threatening situation. I do not buy the argument that things have moved on and there is less of a threat now than there was then. Although there has not been an atrocity in recent months, that does not mean for one minute that we do not still live in an extremely difficult situation. The Home Secretary knows about that threat better than anyone else.
Last year, Liberal Democrat Members decided not to vote against the provision to continue part 4, because there was a tense situation and no alternatives had been proposed. However, we judge that now the time is right to address these issues. Tomorrow, when the statutory instrument is debated in Committee, we will oppose the Government's plans.
The Newton report's recommendations on part 4 are important, because there are several key reasons why it is time to look at it again. We should remind ourselves that we are the only European country that has sought a derogation from that part of the European convention. I accept the point made by Vera Baird that other countries may be sailing close to the wind, but their behaviour could be challenged. If the French fell foul of the convention, somebody could mount a challenge. However, we remain the only country that has sought a derogation and kept it in place.
I am sure that the hon. Gentleman is aware that the derogation is repeatedly subject to challenge in the British courts. That is partly the basis of assault on it at SIAC and in the Court of Appeal, and no doubt that will be the case in the House of Lords. There is an opportunity to challenge the derogation.
I accept the hon. and learned Lady's point, but individuals in other European countries have an opportunity to make a challenge.
The recommendations in the Privy Council report provide an opportunity to look again at whether we want to retain part 4 of the 2001 Act. The Privy Councillors' language is not mild. They recommend things strongly and say that they are deeply concerned. I hope that the Home Secretary accepts the general principle that if one establishes a set of individuals to review a system, there is a serious obligation to listen to their findings. The period of time for which the measures have been in place is another reason why there should be a review.
First, it is not right to hold individuals indefinitely without any idea of what their long-term prospects are. My right hon. Friend the Member for Berwick-upon-Tweed highlighted a second reason why time is a critical consideration. We do not know when the war on terrorism will be over, and have introduced temporary measures to tackle a situation that we may have assumed after
The third reason why it is appropriate to look at part 4 now is the growing evidence of some of the tensions that it is causing among the Muslim population in this country. If they feel that the rights of fellow Muslims are less important, the good will and community relations that we need to continue building in those groups will surely be undermined. I do not necessarily share his sentiments, but the president of the Muslim Association of Britain said:
"This legislation will only lead to a society that is divided, shattered, rife with hatred, heaving with racism, with no promise of a prosperous future".
I do not believe that that is an entirely accurate view of the consequences of the legislation, but we must acknowledge that many members of that community share that sentiment.
Having set out my arguments for reviewing and removing part 4, the Home Secretary would be right to ask me and others what we would do, as we have to be responsible about these issues. There are two problems in answering that honestly and with clarity, as David Davis suggested. I do not know the detailed circumstances of the individuals who are currently being held. I can offer a range of suggestions, and endorse and support the recommendations of the Newton committee, but for some individuals held in Belmarsh, surveillance, tagging and intercepts would not be adequate. If, for example, there were any evidence or suggestion that one of them was determined to take part in a suicide attack, I acknowledge that some of my suggestions would not deal adequately with such a threat. Without knowledge of individual cases, I accept that it is difficult to produce alternative solutions.
The right hon. Member for Islington, South and Finsbury touched on the fact that no single measure could deal with all the cases—a package of measures must be put in place. Mr. Denham was right to ask the Conservative spokesman, "What if intercepted communications deal with only seven of the cases?" That is a problem and a contradiction, but perhaps I can respond by saying that the other seven cases may be tackled by better surveillance and that different techniques, including some of the measures that the Newton committee suggested, would serve for different individuals who are currently being held. However, I revert to the fundamental point that, without knowing the individual cases, it is difficult to ascertain the measures that would work in each case.
Let us consider the Newton report. Before we examine the detail of new technology and surveillance, one recommendation has not been mentioned enough: making more use of the existing, normal criminal justice system. The report referred to the case in January 2002 of two Algerians who were charged with membership of al-Qaeda. The charge was dropped before trial but, a year later, they were both jailed for 11 years after being found guilty of raising cash for terrorism. That made them the first people with suspected al-Qaeda links to be imprisoned in Britain. The case shows that existing criminal law may afford opportunities to succeed in getting prosecutions. If a lower charge made it possible to convict, sentence and imprison an individual, that would be preferable to detaining someone without charge for a more serious crime.
One of the mischiefs of the power to detain under part 4 as it stands is that it removes the incentive for the prosecution authorities to strive strenuously to bring a prosecution in conventional terms.
The right hon. and learned Gentleman makes an excellent point, which reverts to the question whether our starting point should be ascertaining whether we can find another form of crime that would lead to a satisfactory prison sentence and thus provide the necessary security against any terror threat. I hope that the Home Secretary will acknowledge that that should be the starting point, and not seeking a different sort of prosecution that will be difficult to achieve. In the case of the 14 individuals who are being held, I hope that every effort has been made to find another way of detaining them on full charge.
Let us consider intercepted communications and relaxing their blanket use. I do not want to repeat all the arguments that have been presented, but I hope that the Minister for Citizenship and Immigration will provide some clarification about what appears to be an ongoing review. The Government seem to have committed themselves in the past to a review of the blanket ban. I hope that the Minister can confirm that the review will be completed at the same time as the six-month review of the Newton report that the Home Secretary mentioned. Logic suggests that the two have to happen together because the use of intercepted communications is a critical way forward. It would be a pity if the reviews were not completed at the same time.
Liberal Democrat Members are more than happy to accept that, although the use of surveillance, technology and intercepted communications is not ideal, it is preferable to some of what the Home Secretary raised in connection with his trip to India and Pakistan. I want to deal with that later. However, in the fight against terrorism, Liberal Democrats prefer the route that makes use of every form of technology available to achieve a good conviction to meddling with and changing the principles of our constitution and justice. We must get that the right way round. We therefore strongly support the Government's relaxing of the blanket ban.
I accept the Home Secretary's arguments that the matter is not as simple as it sounds and that using the information entails a danger of revealing the sources and the evidence. However, the Newton report states that the Government have currently got the balance wrong. It states that it has not been struck in the right place if intercepted communications can never be used evidentially. Much more could be done on that.
I agree with the hon. Gentleman. Does he know that, in court cases in the UK, frequent use is made of foreign phone taps, which are admitted not daily, but certainly on a weekly basis? Shortly before I entered the House, I worked on a case concerning an Anglo-Dutch drug ring in which phones had undoubtedly been intercepted at both ends, but the English intercept could not be used while the Dutch intercept could. The Dutch police had no worries about disclosing their operational methodology—the defence expert was allowed to examine the machinery used to make an intercept.
The hon. and learned Lady makes a powerful point. The world is moving forward quickly and, as she has already pointed out, we are not that far away from making progress. The Newton report contains a couple of suggestions about how we can protect sources for evidence—for example, the use of special advocates or, as is the case in France, a judge who can access the information. There are ways forward, and we hope that the Home Secretary will address the issue sooner rather than later.
On surveillance, it is bizarre to suggest that some of those individuals should be tagged and, if there were a genuine fear of terrorism, I acknowledge that it would not be sufficient for them to pop into a police station every now and then. With the available technology and the increased resources announced by the Home Secretary—I accept that he cannot clarify whether they have already been put in place or are for the future—sufficient surveillance staff should be available to MI5.
Surveillance is a powerful tool not only in obtaining evidence to achieve a prosecution but in preventing terrorism. It is also a powerful tool because we could release some of the individuals whom we hold and place them under surveillance. A surveillance package that examines not only tagging but all the technology—I accept that it is expensive and time-consuming—would be a sensible way forward. I hope that the Home Secretary will carefully examine how to implement more surveillance. However, surveillance would not be sufficient to tackle the threat of a suicide attack, if it exists.
I conclude by touching on some issues that I am surprised the Home Secretary has not raised today, because journalists such as Alan Travis from The Guardian raised them with him when he was in India and Pakistan. Those issues greatly concern Liberal Democrat Members and the legal profession, and it would be helpful to get rid of some them here and now and take them off the agenda.
Lowering the standard of proof is a matter for considerable concern. As I said earlier, Liberal Democrat Members say yes to new technology and new forms of evidence collection, but we have serious concerns about examining the lowering of the standard of proof. The standard of proof has already been lowered in such cases in relation to "reasonable suspicion" and "reasonable belief". Although I accept that the Home Secretary has gone to some lengths in addressing the matter, we would be concerned if he went further. Can he confirm that his six-month review will not examine reducing the standard of proof? It looks like the review will cover that point, because he is not intervening.
I also hope that the Home Secretary can clarify his thinking on security-vetted judges and trials by judges alone. Again, Liberal Democrat Members are concerned about breaking into long-held establishments.
Finally—I touched on this point in an earlier intervention on the Home Secretary—Liberal Democrat Members support the move to strengthen our intelligence services, which do a valuable job and play a valuable role. Without prejudging the Butler report, we may discover that the intelligence services have been undervalued and under-resourced and that they have not received the proper technology in previous years.
Without prejudging that report, I hope that the Home Secretary's announcement that staffing up is taking place is an acknowledgement that one way to tackle the terror threat is to make sure that we have the necessary resources and the skills of individuals on the ground. Perhaps the Minister can comment on the difficulty of making sure that we recruit from the right communities, because intelligence is about making sure that we can talk to and be involved in, for example, Muslim communities in this country. That is complex and difficult. I hope that when we look at staffing up and resourcing, we shall have in mind in particular the ability to talk to those individual communities.
I was waiting to intervene until we had coalesced around the New Delhi speech.
I can confirm that it is not my intention to lower the standard of proof in criminal cases. I cannot confirm that it is not our position that there will be times when a judge sitting alone will be appropriate in cases in which the jury may well be under more than intimidation. I do not accept that, as was said earlier, juries are not under threat from al-Qaeda. They are under very considerable threat.
I am grateful to the Home Secretary for clarity on that matter. His first answer gave me some comfort. His second just raised a further question. At the height of some situations in Northern Ireland with regard to the IRA, it was not the case that juries felt under particular threat. While there may be a perception among some individuals that there is more of a concern about al-Qaeda, the Home Secretary will have to make a strong case about why the circumstances are different from those in some of the trials in relation to Northern Ireland.
I conclude by reiterating from these Benches our strong support for the Home Secretary in a difficult job. Our solution is to look at ways to improve the ability to achieve a successful prosecution. We much prefer that route to taking away some of the pillars of the establishment that have protected justice in this country for so many years.
We welcome the review that the Home Secretary has put in place, and we hope that in six months he will announce that he is in a position to abolish part 4, but we shall seek to divide the House because we feel that the issue has gone on for too long and needs to be brought to a head.
I thank my right hon. Friend the Home Secretary for the way in which he introduced the debate and for moving it forward.
I should perhaps begin by declaring, if not an interest, at least culpability with regard to the legislation that we are considering, because I was a Home Office Minister when it was introduced. I shall support its renewal, because I believe that maintaining part 4 is necessary. I reached that conclusion more by a process of elimination than from a fundamental point of principle—by looking at the other options available and concluding that there would be circumstances in which part 4 was necessary.
While I agree that it is desirable to minimise the use of part 4, I cannot go as far as Mr. Oaten, who leads for the Liberal Democrats in this matter. He starts by aiming for its abolition and works backwards from there, whereas I start from the other end of the discussion. I shall say a little more about the reason in a moment.
The whole tone of today's debate is remarkably different from that of the debate when the Act was passed. That is very useful, because at that time our dialogue did not meet in the middle. On the one hand, it was driven by people, including Home Office Ministers, who were desperately concerned to put in place measures to deal with a serious and, as we saw it then, long-lasting terrorist threat. On the other hand, there were people in and around this place—I exclude many of the hon. Members who have spoken today—who did not entirely accept that there was a long-term, almost semi-permanent state of threat and who argued from the position that any diminution of our traditional liberties was bound to be wrong, no matter what was necessary to meet the terrorist threat.
Not least due to the intervention of Lord Newton and Lord Carlile and those whom they worked with, as well as the way in which my right hon. Friend has addressed us this afternoon, the debate is now moving on. It is much more centred on what needs to be done to meet the terrorist threat while protecting civil liberties wherever possible.
Has my right hon. Friend or the Select Committee on Home Affairs given any consideration to the dangers of miscarriages of justice being perpetrated at six-monthly intervals by constant renewals of detention orders because of the lack of transparency in the legal process?
The straightforward answer is that the Home Affairs Committee has not examined that issue during my period of chairmanship. One of the reasons why part 4 is not an ideal piece of legislation is because it clearly carries some risk. As I shall say at greater length in a moment, I have reached the view that part 4 is currently necessary by a process of elimination because there are some circumstances in which no other satisfactory option seems to be available.
Has not Jeremy Corbyn made a serious point? If Mr. Denham reads paragraph 200 of the Newton report, he will find that the committee expresses great concern about the fact that there is no continuing supervision of each case to determine whether continued detention is just. In other words, Lord Newton says that injustices are now taking place.
I am not entirely sure that Lord Newton was saying that injustices are now taking place; he and his colleagues were clearly highlighting a concern about the operation of part 4. The Government should properly take that worry into account during their review of part 4, and many other elements of Lord Newton's report should be discussed seriously.
I take the view, not least because of the changed nature of the debate, that the 2001 Act might not be the last word on the anti-terrorism legislation that we need, so I look forward to the debate that will take place over the next six months. I also believe that it is right to consider such legislation alongside the proposed review of serious crime legislation. It is central to British policing practice that terrorism is first and foremost a crime, so it would not be right to separate the two pieces of legislation entirely—I am glad that that will not happen.
On part 4 itself, we must take seriously the recommendation on the use of intercept information. I would go further and ask the Minister to consider in the review whether other elements of information that come from the security services could be used to support criminal prosecutions in some circumstances, although I understand the deep-seated cultural reluctance to do that. I share the huge respect that other hon. Members have for the security services, but the truth is that the nature of security services information varies from that received from highly placed sources who really know what they are talking about to recycled press cuttings and marketplace gossip. There might be certain types of information that could be used to support prosecutions, even though I accept that there must be a central defence of the integrity of the security services.
It is worth exploring the idea of the investigating magistrate, as it has been called in the debate. The Home Secretary is right to say that that procedure would not solve the problem of a criminal case in which very sensitive information would be shared with the defence. That is one reason for concluding that part 4 will always be necessary in some circumstances. However, a filtering of the process—there might be advantages of taking all the onus of responsibility off the Home Secretary and putting it on to a judicial figure—is certainly worth debating over the months ahead. I have not taken a firm view on that matter, but we should consider it.
I want to make a couple of remarks about the broader political context in which we are discussing the legislation. My right hon. Friend the Home Secretary gave a robust response to Lembit Öpik, who asked about the politics behind the terrorist movement. Morally speaking, I absolutely agree with my right hon. Friend's outright condemnation of suicide bombing. However, I am not sure that that is the right basis on which we should plan our anti-terrorism strategy and introduce anti-terrorism legislation.
What I shall now say will be brief. Several right hon. and hon. Members know more about the subject than I do, so I apologise if it is far too crude. Europe has experienced two types of terrorism over the past 20 or 30 years—prior to the current threat. We have had, in the form of Baader-Meinhof or the Red Brigades, terrorist organisations that had essentially no social base whatever. They may have had a loose network of supporters, but they represented very little in the way of popular social movements in their countries. We have had in Northern Ireland and the Basque country terrorist organisations that—whether we like it or not—have reflected broad social movements, to the extent to which people who would never dream of committing a terrorist act have none the less voted for political parties that shared the same political objectives as the terrorists.We have dealt with the terrorism of Baader-Meinhof and the Red Brigades by policing and security measures. In the case of terrorists with a social base, we have required political solutions alongside the policing and security measures.
It is difficult to assess the nature of al-Qaeda globally, but I fear that part of the international strategy against al-Qaeda—particularly the way that the Americans describe it—treats it as though it is some sort of global Baader-Meinhof. It treats it as a network of people who have no social base and no social support, rather than as a network of people who—whether we like it or not—reflect a view of the world that is shared by people who are sympathetic to its objectives, if not its methods. If I am right, it is true that we will not be entirely secure from that type of terrorism until some of the underlying political issues have been successfully addressed. We need to take that into account when we consider counter-terrorism strategy in this country.
The aspect of the commentary that the Home Secretary has published today from which I take most pleasure is his conclusion, which I am sure is based on good intelligence advice, that by far the greatest threat in this country at the moment is from foreign rather than British nationals. One of our fundamental aims must be to keep it that way. Those of us who work well with the Muslim community, or like to feel that we do, know that there are people in the Muslim community who would never have anything to do with terrorism but who share the global view of the injustices, as they see it, that have been done to Muslims around the world. They reject the way in which they believe the west has handled these issues in the past. That view exists and is expressed. It is among that group of people that those who might raise funds, win moral support and even recruit for al-Qaeda will seek to work.
It must be central to our strategy and to everything that we do—it must be the bedrock of our real security—that we ensure that we do everything possible to enable the great Muslim majority who reject terrorism to isolate those who wish to advocate al-Qaeda's approach to problems. Equally, we must try to persuade those who hold a different world view that, although it is perfectly proper for them to propagate it, it is not in their interests to pursue it through any form of support for terrorism.
If that is right, a number of conclusions can be drawn on how the Government need to conduct the debate over the next six months. The first obvious point is for those who have suggested that the right way to deal with part 4 is to apply it equally to the British community. We must make it clear that that would be a fatal mistake. It would mean applying detention laws not to the British population in general but—because part 4 applies only to al-Qaeda—to the British Muslim population alone. The counter-productive effects of that would be absolutely disastrous.
We must also have a detailed dialogue with the Muslim community about some of the other proposals that the Home Secretary has, quite understandably, floated today. I refer to the proposals for crimes of association with the wrong type of people and, if I have understood it, the idea that someone who is done for credit card fraud might have their sentence bumped up because of secret information that they are involved in terrorism. Such proposals might be counterproductive if they are not fully understood and supported by people in the Muslim community, who must be convinced that they are necessary in helping them to isolate those who would like to argue the case for terrorism.
We must take discussions forward in the next six months with enormous sensitivity. We must have effective security and intelligence, and good policing. However, our greatest bulwark against the type of terrorism that we now face is the support, and active involvement and commitment, of the majority of Muslims in this country, who reject terrorism. They must be brought alongside us during the next six months on measures that we discuss in the House, not as an afterthought.
First, I welcome the fact that we are having this debate. That is not because it reflects the hard work that my colleagues and I put into the report, but because it is on a matter of such fundamental importance to the whole country that had there not been a proper debate, people would have been surprised.
I join those who have welcomed the Home Secretary's announcement that he is making more resources available for surveillance and the Secret Service. Perhaps because a majority of members of the review committee are former Ministers, and have all had experience of arm-wrestling with the Treasury, we were careful to produce a report that was not a shopping list of items of huge Government expenditure. Indeed, the only serious expenditure recommendation in the whole report was to spend more money on surveillance, so it is a matter of some satisfaction that the Home Secretary has acted on that.
I welcome the announcement, to my knowledge first trailed by the Minister for Citizenship and Immigration on television on Sunday, that there is to be a serious debate. As the Home Secretary said today, to arrive at a point three months before the legislation's end in 2006, and then to wonder what to do, would be an insupportable way of governing. We have therefore started a process. I shall return to the reasons for that later in my contribution, but I very much welcome it.
It is also right to start by thanking the Secretary of State. He observed scrupulously the undertaking that he made to the review group at the start of the process that we would have access to whatever material we wished to see, and it is right for those of us who were the beneficiaries of that to acknowledge it on the Floor of the House. I also thank my colleagues on the committee. It was an interesting experience, and a new one for me. I have to say that had I known before we started how hard and long we were going to work, I might have paused before so enthusiastically accepting the invitation. However, we not only worked hard; we worked together closely. In that regard, I am sure I am not the only one who wants to thank Angela Harris and those who worked with her. As her colleagues who staffed the committee are active civil servants, I will observe the convention and not mention their names; but I, for one, am extremely grateful to them.
I endorse what has already been repeated on the tone of this debate. Had the review committee not been comprised of old war horses, we might have been tempted ever so slightly to be offended by the Home Secretary's initial reaction when the report was published last December. Happily, we have moved way beyond that point. He has made a constructive contribution in response today and, unlike Mr. Smith, I think that there is much more room for movement by the Government before the matter is concluded. Considering how far the Home Secretary has moved between December and February, I hold out great hopes that many more of our recommendations will be in legislation before the debate is concluded.
One other point that needs to be made, so I may as well make it, is that we made a conscious judgment that the committee was not an alternative Government. It was not our job to come up with a different, coherent, complete Government policy. That is why we recommended things to consider and suggested matters that should be explored, but stopped very far short of trying to put in place an alternative policy to the Government's. We therefore left ourselves open occasionally to the charge that individual proposals would not meet this or that contingency. That is right, but such matters are nevertheless worth exploring and pursuing.
I remind the House, first, that the committee took a unanimous view that this country faces a security threat. So there was no debate about whether security was needed. It is important to stress that. Secondly, there was unanimous agreement that, in those circumstances, unusual impositions on society and individuals are justified for the common good. I flew back overnight from Boston, and perhaps because my mind was partly on this debate, I was impressed by how much we have all adjusted to the current impositions on our aviation travel. They are impositions; such measures were not in place five or 10 years ago, but we accept them because we understand that there are threats that must be taken seriously.
Thirdly, the Committee was unanimous on the business of the use of intercepted communications. The subject has been touched on; indeed, I intervened on the matter earlier. We in the committee were slightly cynical, to be honest, in suspecting that the Government are using the phrase "this policy is being reviewed" as an example of some of the longest grass in politics. The ball needs to be retrieved from that long grass. There is widespread acceptance of the use of such communications. As I am sure the Minister knows, they will be introduced in this country because the Government will reach the point where it will be indefensible not to do so, as they are being used in the rest of the world. I therefore hope that she will take the opportunity of the review to deal with the issue once and for all and to improve our court procedures as a consequence.
There was also a unanimous view that a balance needs to be struck between the security of the nation and the rights of individuals. Indeed, there was a unanimous view that part 4 is neither proportionate nor reasonable, and is not sustainable. I should make it clear, as does the report, that no one is suggesting that the Government should remove part 4 tomorrow, not because the problems with it are not relevant to tomorrow, but because everyone recognises that some framework must be in place and that to leave a massive gap would not be good governance or in the best interests of the nation.
The right hon. Member for Islington, South and Finsbury referred to me, and I want to link myself to his remarks—I am sorry that the Home Secretary has left the Chamber. I suspect that there are very few in this House or further afield who would see either of us as what the tabloids would refer to as "bleeding-heart liberals". Come
What we must not do in a liberal democracy is sink to the level of the terrorist. This Government have faced many difficult issues in Northern Ireland over the past six years. Those are different from the issues that some of us faced when we were Ministers. Too frequently, I stood in front of a barrage of television cameras and radio microphones trying to find the words to condemn the atrocities that were blowing people into eternity, and trying to uphold the principles of our liberal democracy—the rule of law—and the determination to get the perpetrators within the framework of the rule of law. Those of us who were Ministers—and I am sure that it is true in another sense for all Members of Parliament—from time to time are urged to take action that is the equivalent morally of the sort of behaviour that the terrorists pursue. We must therefore find a way to uphold those principles of liberal democracy, and those principles of the rule of law, while at the same time defending the integrity as well as the civil rights and dignity of individuals.
We all understand that the legislation was brought forward in a hurry. There had been no coherent, considered development of a policy to deal with terrorism or the time to translate any such policy into legislation. I see the former Minister, Mr. Denham, nodding in agreement at that analysis. It is understandable—I have no problem with the fact that the Government introduced legislation in those circumstances, because somewhat ill considered legislation in those circumstances was better than no legislation at all.
The right hon. Gentleman is making a most interesting contribution. In relation to all his dealings in Northern Ireland during the 1980s and 1990s, does he think that the prevention of terrorism Act did much to reduce tensions or was it the two ceasefires and the political process that achieved a modicum of peace in Northern Ireland compared with what went before?
The hon. Gentleman will not remember—and I shall not bore the House by going down memory lane—that I was the first Minister who was asked by the Government to explore whether a peace process was possible. In part, that was because I had long advocated the idea that ultimately a solution had to be found in a political context. He should have no doubt, however, that the strength and commitment of the Government to security and trying to offer protection to the people provided an indispensable part of the foundation on which those other political policies emerged. I have no doubt about that whatever.
As I was saying, the legislation was rushed, and was tagged on to immigration legislation—that has been explored in depth, and I do not intend to go any further into it. It differentiates United Kingdom nationals and non-United Kingdom nationals, and deals only with the latter. Evidence to us, however, suggested that perhaps half of those who are in the frame as a matter of concern to the security forces are UK nationals. This legislation provides no ability whatever to deal with them. I understand the point made earlier about not wanting to stigmatise, which I accept, but terrorism legislation, which is supposed to be legislation for the United Kingdom, that does not deal with half of the identified problem is not very impressive.
Thirdly, there is an inherent problem at the heart of the policy—the only solution for non-UK nationals is to get them out of the country. The Home Secretary keeps telling us, however, that we are faced with a global threat. Moving them out of this country to some other country therefore does nothing to resolve the global threat. They may be just as much of a danger to United Kingdom nationals out of the country as they would be in the country.
Let me return for a moment to the subject of Northern Ireland. Given parallel issues of this kind, it was recognised in the legal system that change was necessary, and it came in the form of Diplock courts. They broke the rules that were normal, but they did a fundamentally important job. They were not justified on the grounds that the justice they meted out, if judged on the basis of success in the Appeal Court, was at least as good as that provided through the normal jury process; that was not their raison d'être. Their raison d'être was the fact that in circumstances in which it was difficult to do the normal, the Government were so committed to the legal process that they were willing to contemplate the abnormal. That included public interest immunity certificates and the like. I feel that the Government should adopt the same open-ended, open-minded approach today.
My right hon. Friend may have noticed that I am troubled by one aspect of the Newton committee's report. I should like to know what he thinks about it. When the Home Secretary has reasonable cause to believe that a person is a suspect, or a terrorist, the courts have the right to adjudicate, subject to conditions that I mentioned earlier. Against the background of the terrorist threat, is that not a reasonable starting point? If we dismiss part 4 as it stands, what will we put in its place?
I agree that it is a reasonable starting point. As I said earlier, the Government had to produce legislation in a hurry, without having thought the whole process through—and the safeguards written into it are important: my hon. Friend and I agree on that. What I do not find acceptable is the prospect of people spending years and years incarcerated without having any evidence presented to them, and without being given an opportunity to test it in the historic tradition of the United Kingdom. I personally, and the committee generally, therefore felt that while the provision was a good starting point, it was not a good finishing point.
Those people will be detained without there being any finding that they have done anything wrong. All that can be said is that there are reasonable grounds to believe or suspect that the section 21 criteria have been met. That is different.
Yes, it is different. This is part of the general ambience of concern that led us to make our proposals.
There is another part of the Act that I think Members do not consider as worrying as they ought to. I refer to the wide dissemination of personal information that it allows. All sorts of Government bodies have access to information that many of us here have spent decades trying to prevent them from obtaining—not because we wanted to be awkward, but because we believed that the individual had a right to an element of privacy. I have no time to elaborate on that, but I remind the House that the committee unanimously recommended that
"the Government should legislate to provide independent external oversight of the whole disclosure regime . . . to provide a safeguard against abuse and to ensure that rigorous procedural standards governing disclosure are applied across the range of public bodies, prosecuting authorities and intelligence and security agencies."
That quote is from the summary in part 3 of the report. I hope that the review will focus on the safeguards that are needed, which leads me to my third concern about this legislation.
The legislation is a rag-bag. Those of us who have been Ministers know that when one arrives in a Department, civil servants—God bless them—reach into their pigeonholes and provide all the legislation that, they say, is absolutely crucial and necessary and must be introduced before Christmas. Indeed, that is what happened in this case. It became known in the Home Office that a Bill was to be introduced, so the terrorist bit got put in, police powers got put in and criminal justice bits got put in. Indeed, everything else bar the kitchen sink got put in, including bits of legislation that had already been put before, and rejected by, Parliament. However, they were recycled because the supposition was that, given the terrorist nature of the legislation, it would all get through. And of course, that supposition was proved to be right.
My point is an important one. If we are to ask the people of this country to accept certain draconian impositions on their lives and the way in which they live them, such impositions must be linked explicitly to terrorism; they cannot be bundled into all sorts of things. An extremely unfortunate event occurred recently, whereby terrorism legislation was used to disband a perfectly legal demonstration in the City. That is a matter of concern—or at least it ought to be—to Members on both sides of this House. That is why we made such an issue of the mainstreaming of legislation.
I understand the point that the Home Secretary makes—I have been there, done that and got the T-shirt. There is always a battle each year about which Bills will make it into the Queen's Speech, so no member of the Committee expected the Home Secretary to rip up the entire terrorism Bill and produce new mainstream legislation. But, equally, I hope that the Minister will not use extensively the argument that these issues cannot be addressed because of the pressure on parliamentary time. There is a democratic need to disaggregate police and criminal justice legislation from terrorism legislation.
So that I can be consistent, I should point out that when we debated this legislation on Second Reading and in Committee on the Floor of the House, I expressed considerable reservations about the issue of religious hatred as dealt with in part 5. [Interruption.] It is clear that the Minister remembers. We have a unanimous recommendation to which I subscribe, but having listened to the evidence I am no more impressed by the arguments for part 5 than I was when the House first considered them. We heard evidence that at least some in the Muslim community regard part 5 simply as a sop to them. I should point out to the Government that gesture politics and sops are dangerous things, which is part of the reason why we said that, in future, there should be mainstreaming legislation.
I am grateful to the right hon. Gentleman for giving way. As he knows, I took a very different view from him in committee and strongly supported part 5, but I agree that we should welcome what the Home Secretary said today about mainstreaming, and about dealing with these issues on their own merits in an appropriate framework.
We worked hard to have a unanimous report and we were unanimous on this issue. I would not wish to cause even a ripple to float across the surface of that unanimity, but given that it was my contribution, I suspect, to the Second Reading debate on this subject that got me on to the committee in the first place, I thought it right to reaffirm that I have not changed my personal views, even though I support the committee's recommendation.
So we need new legislation: we need it to be thought through, widely consulted on, coherent and terrorist-based; and we need it to focus on the rights and responsibilities of the individual. If we do so, we will achieve greater public and parliamentary support. We must not sacrifice the right of the individual to accommodate our pre-existing structures. We must start with security and the rights of individuals, and shape our structures and legislation to that end. If we have that mindset, the state is worth defending and the country will be safer.
Sir Brian Mawhinney made one point to which I should like to respond immediately. He argued that the Act had been wrongly used against protesters and demonstrators—and I could not agree more. There is no justification whatever for the Act to be used against people who are demonstrating and have every right to demonstrate. The police were in the wrong and I hope that there will be no repetition of what occurred.
I shall support the Government tonight in the Division and I agree with what my right hon. Friend the Home Secretary has told the House today. However, I am unhappy—it would be strange if one were not—when people are detained outside the criminal justice system. The rightful position of Parliament is to protect everyone in the country, whether they are citizens of the country, ordinary residents without citizenship or foreign nationals. We believe in the rule of law.
There is, however, a dilemma. It has been said before, and I make no apology for repeating the fact again, that as a democracy we do face a dilemma, because a balance has to be struck between protecting the country and our citizens—the first responsibility of Government and of Parliament itself—and ensuring at the same time that the rule of law applies in the normal way. It is a dilemma, and we are not the only democracy to face it.
Some people writing or broadcasting outside Parliament sometimes convey the impression that we are exaggerating the terrorist danger and that 9/11 was a one-off occurrence in western countries—a point to which I shall return in a few moments.
As we know, when the Act was being passed, fears were expressed that it would lead to a relatively large number of foreign nationals being held in detention, but that is certainly not what has happened. Although it is no consolation to the 14 people who are being held, or to their families, the number affected is very far from the number cited in some of the predictions. Some people have left the United Kingdom; they are all free to go. We know why the 14 cannot leave, but they are free to do so. I do not draw the comparison—some do—between those who are being detained here and the position of people detained by the United States in Cuba. It is very different indeed.
I acknowledge the truth of what the hon. Gentleman says, but I am sure that he would want to acknowledge that some of these people have been held for a very long time—in some cases for almost two years.
It is unfortunate. I cannot disagree with the right hon. and learned Gentleman about that. If those people were not guilty, they should have been acquitted. If they were guilty, however, I should of course much prefer them to have been convicted in a court of law, having enjoyed all the legal rights of defendants. My point is that if the security authorities tell the Home Secretary that certain people are a danger, the Home Secretary must make a decision. Some hon. Members would say that any information from the security authorities should be ignored. However, as I said when I intervened on my right hon. Friend the Home Secretary, one can well imagine the reaction—in the House, the country and the media—if, having been warned that certain foreign nationals were a danger, he took no action to put them in custody, and it subsequently turned out that the same people were involved in a terrorist outrage. He would be harshly criticised in every possible way.
In every case, the Home Secretary must decide whether to accept or ignore the advice of the security authorities about certain matters or people. That is part of the responsibility associated with that office.
Is that not the whole point? The information is provided, in secret, by the security services, and is decided on, privately, by the Home Secretary. The individuals involved in this case have been in prison for two years, and are likely to be there for a lot longer. Neither they nor we know what they are charged with. They have not been convicted, and are not going to be. Is that acceptable in a modern democracy?
With great reluctance, I think that it is acceptable. That is why I supported the 2001 Act when it came before the House, and why I shall support the Government this evening. Critics of the Government, including my hon. Friend, should bear it in mind that there is no monopoly of concern about people being held outside the criminal justice system. I am no less concerned about that than anyone else, but I accept that there is a necessity to do what has been done. However, it goes without saying that I am unhappy with the situation, and wish that matters could be otherwise.
The hon. Gentleman's concerns in these matters are well known, but he must recognise the other side of the coin, as set out by Jeremy Corbyn. Some of us suspect that the information involved is faulty, but it is still possible to end up going to war on the basis of false information. That is why we want a degree of scrutiny and insight into decisions that affect our freedoms.
I do not disagree with the hon. Gentleman. To some extent, he may want to rerun the war that recently took place, but not for a moment do I doubt that his concerns are genuine, any more than I question the concerns expressed by my hon. Friend Jeremy Corbyn. It is part of the responsibility of Members of Parliament to be very much on guard. If we were complacent about such matters—if, in the absence of a Newton committee, there had been no concern or controversy—people would question the purpose of parliamentary democracy. The fact that this debate is taking place, and that concerns and anxieties exist—and I, who support the Government's position, to some extent share them—shows that we are carrying out the duties of the House.
One aspect of what my hon. Friend says concerns me, as it did when he intervened on the Home Secretary. He spoke of the Home Secretary's need to avoid possible stricture and criticism. However, if a serious crime takes place in the future, how can that need square with what happens in the normal practice of criminal law? The security services do not have to be involved. My knowledge of organised crime means that, tomorrow, I could give the Home Secretary the names of half a dozen people who I am convinced will commit serious crimes in the near future. Most senior police officers could do precisely the same. I could even tell my right hon. Friend the nature of the crimes likely to be committed, but he would tell me that he could do nothing because he had not a shred of evidence on which to act. When the crimes finally took place, as predicted, the Home Secretary would not be criticised—why should he be? Does not the same thing apply to terrorists?
No, it does not, as my hon. and learned Friend knows very well, because this is a unique situation involving terrorism. I have much respect for him, however much we disagree, but that was a surprising intervention, because he knows very well the difference between ordinary crime and the dangers of terrorism that face us.
As we know, detention in Northern Ireland was undertaken by the then Conservative Government. I believe that decision was wrong. Detention in Northern Ireland was a recruiting arm for the IRA, as I said at the time, but each situation is different and we cannot compare what is happening now with what happened in Northern Ireland, although clearly the right hon. and learned Gentleman believes that we can.
I should have been happier had there been a process of judicial review, as I suggested to the Home Affairs Committee when we were considering the Act. However, I was narrowly defeated by four votes to three.
I want to return to the remarks of my hon. and learned Friend Mr. Marshall-Andrews. We are constantly told by the police and others that terrorism remains an acute danger for this country and that it is a question not of if but when a terrorist attack occurs. Does anyone in the Chamber disagree with that? As I said earlier, it is easy to imagine the reaction were the Home Secretary to ignore such advice. My right hon. Friend Mr. Denham rightly drew attention to what might happen to law-abiding members of Muslim communities who are no less opposed to violence and terrorism as we are. If a terrorist outrage occurred, some people would, unfortunately, want to incite hatred against members of particular communities.
In a footnote to page 53 of its report, the Newton committee stated that broadcasts connected with international terrorist networks
"have confirmed that Britain has been singled out as a target"— for terrorism, and that an international terrorist leader had said that
"the killings of the British and Australians in the Bali explosions were carried out by zealous sons of Islam. Britain, France, Italy, Canada, Germany and Australia were all threatened with killings and bombings for their part in joining with America" in the invasion of Afghanistan—note: not in the invasion of Iraq.
When the argument is advanced that we or the Government are anti-Muslim, why is there no mention of Kosovo? Why did the Government take action in Kosovo? The decision was controversial at the time—although not as controversial as Iraq. It is a deliberate lie that we are anti-Muslim. There was a clear and simple reason for taking military action in Kosovo: to save the lives of Muslims—not of Jews, Hindus, Christians or Sikhs. Nevertheless, those who peddle lies and use every possible justification for military action against western democracies, including the UK, like to portray us as anti-Muslim.
There can never be a guarantee that any steps we take will stop terrorism, but the Government of the day have a duty to take the measures they believe necessary to protect the people of this country. I genuinely wish that the Act—certainly part 4—could go. I certainly wish that there was no need to detain people in the circumstances in which the 14 are being held. I repeat that I am very unhappy about it—I wish it were not so—but I accept that it is necessary and that this country faces an acute terrorist danger, and in those circumstances I am willing to support the Government, although with the reluctance and hesitation that I have expressed. Nevertheless, in the end, I believe that the Government are acting correctly.
I had the privilege of serving as deputy to Lord Newton, as deputy chairman of the committee. I say privilege, but like my colleague in all this work—Sir Brian Mawhinney—I recognise that it took a great deal of our time. I am grateful to the Conservative Front-Bench spokesman for paying tribute to the formidable amount of work that we did, and I pay a personal tribute to Lord Newton, whose leadership and patience in running the committee's affairs was one of the means that enabled us to get through so much work and to produce the report.
I also pay tribute, as the right hon. Gentleman did, to the committee's small staff, who worked very hard indeed to enable us to achieve what we did. It was a pleasure to work with colleagues with a wide variety of political views from different political parties and, of course, one of none—a senior judge. We started from very different positions, but we reached unanimous conclusions on all the matters that appear in the report.
The committee was in no doubt at all that the threat to this country from terrorism is very serious and has to be addressed by coherent legislation and effective Government action. That was not in dispute, and if it had been the material that we saw during our inquiries would have convinced us in any case about the seriousness of that threat.
Much of today's debate has revolved around part 4—the detention provisions—and I shall start with them. The provisions in part 4, which have been so controversial, have been used to detain people who are, in fact, free to leave tomorrow if they can find a country that will take them. Indeed, they can go to their own country if they do not fear persecution there. Two such individuals have already taken the option to leave. The suspicion must be that, if there were grounds to believe that they would engage in terrorism, they might well continue to do so if they left this country and went elsewhere. That is one of the reasons why the committee was fairly sceptical about the efficacy of the whole procedure. While we did not discuss this, I sometimes wonder whether, in choosing not to leave, some of them prefer to make some kind of political statement through that process—although I would not willingly choose to use a method of making a political statement that involved remaining incarcerated in Belmarsh for an indefinite period.
The committee was also struck by the fact that those provisions do not address United Kingdom citizens against whom there is comparable evidence that gives rise to identical suspicions. There may be at least half as many such people as the number of foreign citizens about whom suspicions arise. We heard evidence about the number. Indeed, there have been examples of the involvement of UK citizens, such as Richard Reid, the shoe bomber.
The provisions require a derogation from the European convention on human rights that no other country has found necessary and that continuously undermines our promotion of human rights throughout the world, in the many countries where they are damaged and threatened. We therefore sought to find alternatives and to suggest things that, if taken together, could replace the part 4 provisions. They included alternative procedures that have been discussed today, such as the use of an investigating judge, who, as was pointed out, could provide a firewall by examining evidence and considering possibly exculpatory material without revealing to the defendant evidence that, if revealed, would destroy the ability of the authorities to crack down on terrorism.
We suggested the use of aggravation provisions in relation to other offences and the use of intercept material in court proceedings. One should not exaggerate how much can be achieved by the use of such material because there are serious limitations to the amount that could be used, but that ought to be part of the armoury. I am unconvinced by the fact that the review has still not been completed. We were told that the review would be completed in a matter of months while we were conducting the inquiry in the latter part of last year, and that is also what we are being told now. It seems to be an endless review. We must complete the process by establishing procedures for using intercept material as evidence in court.
Alongside those provisions, which are designed to enable prosecution to take place, we suggested a range of measures that, taken together, could enable stricter monitoring of those who are not in prison. Given that those provisions are clearly required for UK citizens about whom suspicions are entertained, and may well be required for people who are released from Guantanamo bay and reappear in this country with suspicions surrounding them, why cannot they be used in respect of a relatively small number of non-UK citizens?
In that context, we welcome the significant increase in the resources available to the Security Service for surveillance. As the Home Secretary said, that provision was not dreamed up for today's debate—or, indeed, for last weekend's newspapers, given that he seems, perhaps inadvisably, to have briefed them about it—but has been developing for some time, and rightly so. Indeed, the Intelligence and Security Committee stated in reports of 2001 and 2002 that the service needed more resources and that if it continued to transfer resources into counter-terrorism, as it had to, unacceptable risks would eventually be taken with various other threats to our security. I welcome the increased resources, although I probably would not be saying so much about them if the Home Secretary had not made them so public.
We suggested a series of measures that, taken together, and perhaps including other aspects brought out by this debate and the six-month review, would provide a basis for getting rid of part 4. We have to do something about it in any case, because it expires in 2006. The committee felt that we certainly should not wait that long, and that the objective should be to replace it before then.
We also argued for a focused, case management-based approach to the options for all those who are currently detained. Having looked at the Government response, I do not think that Ministers quite understood what we were suggesting. It would not be like the Special Immigration Appeals Commission process by which the validity of a person's detention is tested; it would involve Ministers considering whether individuals could be most suitably monitored back in the community, reconsidered for deportation, or dealt with in a series of other ways. We found no evidence that such a case-by-case review was taking place. Yes, there was a SIAC review into the validity of the detention, but not a review of the options available at any given stage.
The right hon. Gentleman is making an important point that reinforces my earlier proposition. Once a power exists that enables the indefinite holding of a person, the Crown Prosecution Service or others will not strive strenuously to bring a proper prosecution.
That is one of the dangers of the system. The SIAC mechanism is very thorough, although its standards of proof are significantly lower than those in a criminal trial. Those taking part apply it conscientiously to test the validity of the limited grounds on which people can be detained under the legislation. However, the committee thought it wrong to have no focused system for checking whether the most sensible option is being pursued in each case. That underlines the right hon. and learned Gentleman's point: where there is no pressure, no action is taken.
I am sure that the right hon. Gentleman is aware of the recent case in which SIAC made a decision on the ground that the provisions of the legislation were incompatible with articles 5 and 14 of the European Court rulings because they permitted the detention of suspected international terrorists in a way that discriminated against them on the ground of nationality. The Court of Appeal then reversed that decision, and it is now pending before the House of Lords. That illustrates the point, to which I constantly return, that it is not only a matter for SIAC—it can be adjudicated by the courts.
That is true of the principles involved, but not of the individual cases, which are dealt with by the SIAC procedure with no such recourse to the courts. My point was not about testing validity, but about the Government's responsibility to decide whether a certain course of action was still the most sensible one in relation to the individual concerned.
I do not want to spend all my time on part 4, because the Committee made many other recommendations covering a wide range of matters. I am concerned that the constructive tone of this afternoon's debate, mainly on part 4, is not reflected in the Government's response to many recommendations. The response was published only this morning, and I doubt whether many right hon. and hon. Members have had time to look at it in detail. If they did, they would find an amazingly long list of rejections of recommendations, many of which are about the way in which we monitor or scrutinise various processes that limit the freedom of the individual. Some of them have little or nothing to do with terrorism. The committee made a series of recommendations on those subjects. I shall give just one example, because it would take up too much of the House's time to go into all of them. It relates to something to which the right hon. Member for North-West Cambridgeshire referred—information held by public bodies on individuals and the passing of information from one body to another on various grounds.
In paragraph 22, the committee makes the following recommendation:
"In our view, internal authorisation by a senior person would be adequate for the disclosure of addresses or phone numbers in terrorism cases."
In paragraph 23, we go on to say:
"While we accept that it may well be that the same regime could be justified for other types of serious crime, we would argue that prior judicial approval should be required in any case involving less serious crimes or the disclosure of more sensitive information. Parliament should be given the opportunity to decide what level of authorisation should be required, depending on the seriousness of the crime and the sensitivity of the information being disclosed."
We are talking about one Government Department passing information to another on a matter that has nothing at all to do with terrorism—perhaps a much less serious crime—and that ought to be subject to an authorisation procedure. We believe that prior judicial authorisation is appropriate for sensitive information relating to allegations of less serious crimes.
The Government's response includes phrases on which hon. Members should reflect with care. In paragraph 24 of their response they say:
"The supply of information about an individual by one public authority to another cannot, in the Government's view, realistically be regarded as being as intrusive as, for example, a search of that individual's home."
I am not sure that everybody would agree. In paragraph 25, the Government go on to say:
"Given these considerations, and the numerous occasions where public sector data sharing of this sort, and joined up administration, will be in the public interest in promoting legitimate aims, the Government cannot accept the Review's proposal of prior judicial control of information disclosure."
In other words, the Government support joined-up government and want to deliver on all sorts of targets, so one Department should be able to give any other Department without any prior disclosure anything that it has on any individual. The reason adduced is not the imminent danger of terrorism but joined-up government and other "legitimate aims". Hidden in the small print of the Government response are some alarming approaches to issues that have always, both in this House and the Lords, been regarded as matters deserving the most serious consideration. That is just one example of a series of matters that do not relate primarily to terrorism—sometimes they do not relate to terrorism at all—on which the Newton committee made recommendations for procedures or protections, only for the Government to reject our proposals outright. I hope that the constructive spirit that the Home Secretary brought to the earlier part of the debate will now be applied to some aspects of the Government response.
The last general subject that I want to refer to is the parliamentary process under which the legislation was introduced. After all, that is why the committee came into existence. Questions are sometimes asked at our meetings about why our terms were drafted in a particular way, and why we received a particular remit. It appears to be a back-of-the-envelope job late at night in the House of Lords when, yet again, part of the legislation was rushed through and subjected to a challenge. A concession had to be made, so it was agreed that a committee of senior Privy Councillors would review the legislation and produce a report that had to be debated. If it was not debated, they could specify that the legislation, or parts of it, should lapse. We are now engaged in that process. Indeed, if the debate had not taken place, the Act would lapse. That would depend not on the result of a vote but simply on whether the debate took place. However, the reason for the back-of-an-envelope arrangement at dead of night was the genuine anxiety about rushing through legislation that covered a wide range of matters, was not part of a coherent body of anti-terrorist law and extended into many other areas.
One of the committee's recommendations is that the Government should revert to their declared policy of having a coherent body of anti-terrorist law. That assumption lay behind the Terrorism Act 2000; indeed, it was explicitly stated. I recognise that the Government believed that they had to act quickly after
I have said that the Act covers many subjects that go far beyond terrorism. The right hon. Member for North-West Cambridgeshire referred to the Home Office practice of clearing the shelves of anything that they did not get through in previous legislation by sticking it into the next relevant measure. That applies especially if there is an opportunity of getting legislation through quickly and with less trouble than normal procedures allow. I am convinced that that happened in the case that we are considering. Indeed, the Act includes items that were explicitly withdrawn or rejected previously.
One argument that is adduced for such action is that terrorists are criminals, that they commit other crimes, and that the whole Act is therefore terrorist legislation. That was hard to sustain when it became clear to us that the main use of British Transport police powers was dealing with football hooliganism, and the main use of some of the information powers was tackling sexual offences, especially paedophiles. Those are legitimate reasons for legislation but not for justification on the basis that one is dealing with the threat from terrorism. If we argue that all crime can be tied up with terrorism, all criminal justice measures should be emergency legislation, rushed through both Houses of Parliament in as little time as possible because somebody might commit a crime before the process is completed.
The Newton committee took the issue seriously and paragraph 333 of the report states:
"Some of these provisions appear to have been included in counter-terrorist legislation in order to take advantage of its accelerated passage and limited scrutiny, in order to avoid the difficulties which had previously been experienced in securing Parliamentary approval. This inappropriate "fast-tracking" undermines the consensus which is desirable to allow legislation to be enacted rapidly in emergencies."
When the Government introduced the measure, they depended on the wide acceptance that, in an emergency, with a serious threat to the country, one sometimes has to react quickly and push through legislation quickly. However, they relied on that to include far wider matters in the Act. The committee suggested that it would be appropriate to revisit many of them in mainstream legislation. The Home Secretary's argument and the Government response are unconvincing.
The Home Secretary was a little more open and honest than the document. He referred to his difficulties in getting his Bills into the parliamentary timetable. However, the official response states:
"The Government does not believe that it would be an appropriate use of Parliamentary time to re-legislate for provisions that Parliament has already passed."
You could have fooled me, because the Home Office appears to do that regularly. Every year, a new criminal justice Bill and a new anti-terrorism Bill are introduced. The idea that one should not revert to subjects on which one has already legislated is not part of Home Office practice.
Indeed, that is one of the few powers that the Committee said ought to be repealed without qualification. The report stated:
"The powers of amendment . . . are particularly unwelcome in emergency legislation of this kind, and they should be repealed."
The House should know the Government's response to that. It states:
"Disagree. The Government believes that this power allows the Government to react quickly to changing circumstances that are a feature of many of the areas covered in the Act."
That is not just terrorism, because the 2001 Act covers a wide variety of offences. The response goes on to say:
"It is correct that terrorism legislation is placed on a permanent footing and that powers contained within it allow us to respond flexibly to any changes in threat."
Responding flexibly does not mean being able to amend legislation by statutory instrument on matters of fundamental principle.
I must say that the Government response asserts that they could amend legislation only by the affirmative procedure. From memory, I am not sure whether we have ever received a convincing answer to that point. My reading of the statute is that legislation can be amended by negative instrument, and I am reassured to know that the right hon. and learned Gentleman also takes that view.
The point is enormously important. The Civil Contingencies Bill contains a similar provision by which subordinate legislation may amend any primary legislation on the statute book. The trend is incredible and this is where it started.
The most effective challenge to such provisions will be mounted not at this end but at the other end of the building. A challenge was mounted when the legislation was considered. The creation of the Newton committee was in part a response to this. Many Lords felt that the legislation was wider than it needed to be to deal with the terrorist threat and used attenuated parliamentary procedures inappropriately to push through provisions that, on reflection, would not be accepted by many Members in either House.
As I said earlier, a consensus has formed on the Home Secretary's remarks about reviewing during the next six months provisions to replace part 4 of the 2001 Act. I welcome that decision, and I take him at his word that he is prepared to engage in that process and build on the Newton committee's recommendation. Simply because others have not had the opportunity to do so, I have concentrated on the area about which I feel more discontented by the Home Secretary's response.
Many of the recommendations go far beyond terrorism, and I therefore put in a very strong plea for the extension of the spirit of consensus that the Home Secretary sought to include in part 4 of the 2001 Act into areas where the Government's initial response has been to suggest that nothing more needs to be done and that they will not give up powers that they have managed to introduce by this rapid process.
It is fitting to reflect for one moment that today marks the 70th anniversary of the founding of the National Council for Civil Liberties; there is a certain irony in our debating this matter and remembering the anniversary of that important non-governmental body.
The Home Secretary is right to highlight the enormous responsibility that he bears to protect the public from the threat of terrorism and the actions of terrorists. It is, however, a responsibility that we all share. To shirk it and bury our heads in the sand would be playing with lives, which none of us wants. The criticisms of the Home Secretary are not about the urgency of the situation or the gravity of the threat, but about whether the methods adopted are proportionate, appropriate and capable of achieving the ends that we all desire or whether they are counter-productive.
On "Newsnight" yesterday, the Home Secretary discussed the intrusion of that responsibility into his Christmas holiday. I can sympathise; had he been of another faith, I am sure that his burden would have been just as great over December. If he does not mind my saying this—I am sure that he would not if he were here—he is rather like a wicket keeper who complains that everyone keeps throwing the ball at him. I want to consider the responsibilities of the whole team, and our response to it.
One of the principal achievements of the Durban conference was to commit world leaders to a project in which each country would draw up its own national action plan against racism. Like other participating states, the UK Government agreed to draw up such a plan in co-operation with non-governmental organisations and minority ethnic groups. Surely in that way we could set an example to the world. It is relevant in this debate to ask what happened to that plan.
I have asked questions in the House about progress on the maintenance and achievement of the national plan, and I have been told, two years later, that it is in progress. When I talked to the Northern Ireland Council for Ethnic Minorities about its efforts to achieve action to address the wave of racist attacks that have left members of minority groups in south Belfast living in fear of their lives, I was told that it has been informed that my right hon. Friend the Home Secretary plans to drop his commitment to the national plan. That has enormous relevance. I wonder what representatives of the Muslim community in Britain will make of that decision, especially when they feel that their co-religionists are demonised in the war against terror and that their needs are not being addressed.
My right hon. Friend says that we should not adopt a knee-jerk opposition to anti-terrorist legislation, and that in the era of the suicide bomber everything has changed. He is correct to argue that we should study and understand, but I am not sure that everything has changed. It is not as though the IRA, the UVF or the UDA were ever gentleman terrorists or Northern Ireland was a place where terrorists played by the rules.
There are lessons to be learned from Northern Ireland. Those who wish to demonstrate that they are tough on terrorism, but cannot focus on or address the causes of terrorism, are inevitably forced to rely on the supposedly inexplicable nature of the problem or the psychopathic nature of its perpetrators. We had indications of that from my right hon. Friend today. If that is the case, why does the determination to be a suicide bomber find resonance among young people? Why do they feel that legitimate grievances have not been examined and that no attempts have been made to rectify them? Those young people have not all been brainwashed. They have arrived at conclusions because of their experiences. Why was there so much rejoicing—I say that with great sadness and the same horror that every other right hon. and hon. Member must feel—in slums and ghettos throughout the world at what happened to the twin towers? That was an appalling and shocking response. Why did it happen?
Unlike the Northern Ireland conflict, in which the UK had a primary responsibility, the problem we face today is global and requires a global solution. Whatever we do can only be part of that solution. However, another lesson from Northern Ireland is that international standards provide a framework for the protection of democracy and the best guarantee for defence of the rule of law. In Northern Ireland, successive Governments changed the rules and broke the law. When internment without trial failed, we introduced no-jury courts, relaxed the rules of evidence, relaxed the rules that prevented the use of confessions extracted under duress and allowed the use of informer and accomplice evidence.
What did that achieve? Certainly, it put some people behind bars, but what really happened was that the law became the enemy. Young people flocked to join the terrorist groups. Internment and Bloody Sunday were both the breaking of accepted rules. Indeed, on Bloody Sunday, in flat contradiction of a decision of the Supreme Court of Northern Ireland, the British Army was acting illegally. What also happened was that the prisoners, the men behind the wire of whatever community, and not the policemen, were the heroes. That surely is both unacceptable to us and something from which we should learn.
Those mistakes were undoubtedly made in Northern Ireland, but does my hon. Friend accept another lesson, which is that the House of Commons did not give in to terror and that, despite all the differences over how we should deal with the situation in Northern Ireland, we—Government and Opposition—were absolutely determined that the IRA would not succeed in attaining its objective? Thirty years later, the IRA was defeated—not militarily, but politically, because it could not achieve what it set out to do. Its objective was not reform and change in Northern Ireland, which were already taking place when it was formed, but a united Ireland, to be achieved through terror. The IRA never succeeded. We stood firm, and we, including my hon. Friend, were absolutely right.
I am grateful to my hon. Friend for that backhanded compliment.
My point, which is important, is that until we wrestled with the problems of reform in Northern Ireland, until we saw that people there had an unaddressed grievance, we would not succeed.
At the time of internment without trial, there was a song in Northern Ireland with the chorus "Armoured cars and tanks and guns". The song included the words:
"Being Irish means they're guilty
So we're guilty one and all."
Racial profiling of the Irish in Britain made them a suspect community. Not until there was more finesse in policing, and draconian treatment of the Irish community in this country was seen to be counterproductive, did we start to see an improvement. Indeed, terrorism and incidents of terrorism were at their height when internment was in operation in Northern Ireland. It started to diminish only when the Secretary of State for Northern Ireland, now my right hon. and noble Friend Lord Merlyn-Rees, started to end internment without trial.
Another part of the song that the hon. Gentleman quoted is:
"England's name again is sullied
In the eyes of honest men."
Does not that point to a lack of objectivity in that particular republican paean?
Not for a member of the Irish community living in west Belfast, South Armagh, the Bogside, parts of north London or Birmingham. For them, England's action was sullied. One of the problems that we have had—indeed, that we have had with regard to human rights throughout the world—is answering questions about internment in Northern Ireland.
To take things slightly further forward, after the Prevention of Terrorism (Temporary Provisions) Act 1974 was introduced, about 10,000 people were arrested. Few were charged and hardly any were convicted, but as far as I am aware they were all Irish people, so the Act had a huge effect on the Irish community. I am sure that my hon. Friend has read the briefing that Liberty sent out for the debate. It makes the point that, small though the numbers might be, all those currently held in Belmarsh are Muslims. Exactly the same arguments are going on throughout the Muslim community as those that went on throughout the Irish community 25 years ago.
I agree entirely with my hon. Friend. I was about to make a comparison with
"Being Irish means they're guilty", because many people in the Muslim community now think, "Being Muslims means we're guilty, so we're guilty one and all."
Relaxing the rules, as we did, on evidence and on charging did not defeat terrorism, but it did help to create the Birmingham Six, the Guildford Four and a whole series of monstrous miscarriages of justice. As that happened, the actual victims of terrorism were forgotten. How did we break the law? On Bloody Sunday, the Government permitted the unlawful use of lethal force and killed 13 civil rights protestors. In Gibraltar, the Government permitted extrajudicial assassination that was countenanced at the highest level and the SAS gunned down three IRA volunteers in cold blood, for which we were condemned by the European Court of Human Rights in Strasbourg. The British Government encouraged the creation of disinformation and dirty tricks units, allowed loyalist groups to be armed, and ran agents who committed murder with impunity. What did that achieve? Nothing; it prolonged the war and delayed the peace. When one teaches disrespect for human rights, changes the rules and breaks the law, where does it end? It ends in condoning terror, and in the murder of people such as Pat Finucane and Rosemary Nelson. My conclusions might be unacceptable to the Government, but we might have a bit more faith if they published the Cory report and established the inquiries that the Prime Minister promised—I strongly suspect that we will not have the separate public inquiries.
When the Anti-terrorism, Crime and Security Bill was first presented to Parliament, we were acutely aware of the risks of that sort of legislation. That is why the oversight regime is so important. The provisions of the Act must be renewed each year and it has a sunset clause that does not permit renewal beyond 2006. A special committee of Privy Councillors—we are indebted to all the Privy Councillor members of the committee who have spoken today—was charged with reviewing it.
The Home Secretary can take comfort in many of the positive things that have been said about his attitude to some of the cases. However, he should listen carefully to the advice he has been given, especially because he asked for that advice from Lord Newton and the Privy Counsellor Review Committee, Lord Carlile and the Joint Committee on Human Rights. I am pleased that there has not been a pre-emptory rejection of the Privy Counsellor Review Committee report, as happened in December, and that we have received some sort of reply. I am pleased that the Government have accepted the Joint Committee's recommendation that they should consider matters within a six-month period, particularly as it arose due to an amendment to the report that I suggested. The Joint Committee was far kinder when deciding the amount of time to allow—I would have given the Government only 28 days—but nevertheless the time period came about from the germ of my idea, which arose because experience shows that Governments suddenly decide to review emergency legislation two or three months before they must renew it. Allowing a specific six-month period in which they may review the legislation and come up with ideas and positive alternatives is thus important.
Derogation from the European convention on human rights and the use of powers to detain indefinitely has given rise to almost universal concern. I am gravely concerned about the position of 14 non-British nationals who are being held indefinitely in high-security prisons. Given the length of time for which they have been there, I believe that there may be a case for arguing that there could be a violation under article 3 of the convention because the detainees, who have no prospect of release, are the victims of a cruel or unusual treatment. The Government must remember that there can be no derogation from article 3.
I would also like to draw the House's attention to the fact that, when some of the cases were at SIAC, one of the witnesses giving evidence and who was hidden from the rest of the court, had dragged out of them the information that some of the evidence given in the cases may well—we cannot say positively—have been obtained by people interrogated abroad, who have been subject to torture and inhuman and degrading treatment. Such evidence would never be allowed in a British court, but it has been used as part of the intelligence summaries to keep people detained. The problem is that evidence obtained under torture has always been suspect. Those who are tortured or subjected to harsh and cruel procedures are human beings like the rest of us. Which of us here would not necessarily agree with an inquisitor subjecting us to torture, whether of a psychological or physical kind? However, it has been used to keep people behind bars. It is my considered view that part 4, providing for indefinite detention, is unacceptable and should not be renewed.
Several weeks ago, I was approached by the legal representatives of nine men currently held in Belmarsh, conveying to me a request from them that I should undertake a prison visit prior to today's debate to hear at first hand their views on the legality and the conditions of detention under which they are being held. I am aware—and I was aware when I made the application—that a number of individuals and agencies have undertaken visits in pursuance of their statutory obligations, but this was to be the first and only proposed visit sought by a Member of Parliament in response to a request from the prisoners themselves. I very much regret, therefore, that last week I received a letter from the Prison Service declining my request for assistance in arranging such a visit. No alternative proposals were made.
I am familiar with security restrictions and difficulties posed by prison visits of a political nature. When Northern Ireland was beset by terrorist violence, I was able to visit both loyalist and republican prisoners in high-security wings without any obstacles being put in my way by the Prison Service in either Northern Ireland or the rest of the United Kingdom. That was the case under both Conservative and Labour Administrations. As a member of the Legal Affairs and Human Rights Committee of the Council of Europe, I was appointed rapporteur on the imprisonment of the detainees at Guantanamo bay. In June last year, the Parliamentary Assembly overwhelmingly endorsed my report finding their imprisonment to be unlawful.
I am concerned about unlawful detention—whether it is in a United States naval base in Cuba or in Belmarsh prison. Whatever the fig leaf provided by SIAC—it is a diminishing one—that justifies holding people at Belmarsh, the general principle is the same. The Foreign Secretary has rightly condemned what has happened elsewhere: people should either be put on trial or returned to the United Kingdom. We do not accept the same principle for people in Belmarsh. There is a degree of hypocrisy about that that I find particularly unacceptable.
We have been asked about the alternatives. Other speakers in the debate have given a range of alternatives, so I shall not rehearse the whole package again. However, one thing is certain. Whether we hold 20 men or one man in the conditions in Belmarsh and insist on having the derogation, we are lowering standards in our country, lessening our position in the world and will be unable to argue actively and promptly for human rights to be observed in other countries. More importantly, we are dealing unfairly and cruelly with the men who, at present, are behind the wire.
I am one of those who opposed the Anti-Terrorism, Crime and Security Act 2001 when it was being debated on Second Reading. Having read the reports of the noble Lord Newton and the Joint Committee on Human Rights, I am bound to say that my conclusions from that time have been strongly reinforced.
Inevitably, this debate has quite rightly focused primarily on part 4 of the 2001 Act, and I shall refer to that in a moment. However, I shall begin by making two general observations. The first goes to the undesirability of emergency legislation, a point that the Newton report brought out very forcefully. There are a number of reasons for that, but the first is that because emergency legislation is rushed through, inevitably much of it is never scrutinised. We therefore make legislation that could be in place for a considerable time, but which has not been subject to parliamentary processes. My second reason, which is slightly different, is that the circumstances in which emergency legislation is pushed through—often circumstances of distress, high passion and drama—reduce the willingness of Members of Parliament properly to scrutinise it.
I am therefore very hostile indeed to emergency legislation. As my right hon. Friend Sir Brian Mawhinney and Mr. Beith have stressed, the 2001 Act was also used as a vehicle for passing many other pieces of legislation that were sitting in the back cupboard of the Home Office. The Government wished to put those in place, and used this Act as a means of doing so. That was a lamentable abuse. I am very much against emergency legislation in general, and the way in which emergency legislation was used in this instance in particular.
My second general observation relates to the security services. We need to be very alert to the limitations and shortcomings of the security services. I speak as one who dealt with them for some seven years. When I was at the Foreign Office as Minister of State, one of my responsibilities, subject to the then Foreign Secretary, was to handle relations with the security services and GCHQ. In a more limited way, I had dealings with the security services when I was Under-Secretary at the Home Office, as I was responsible for the legislation on terrorism then going through the House.
I have come to some pretty clear views on the security services. I do not wish to be in any way disobliging to them, but we have to face some facts. First, inevitably, much of what they tell Ministers is uncertain, imprecise and not capable of any external verification. That is inherent in the nature of their work. Secondly, they operate in the shadows, so they are not subject to the public scrutiny to which other services are subject. For example, we would be astonished if the police service were allowed to prepare its briefs and give advice in the way in which the security services do. As it is, the police service has to produce its output to the courts, and the press, juries and lawyers can have a go at it, so its act is sharpened up as a consequence. However, the security services have none of those pressures. They just give private advice, fairly certain that no one will scrutinise carefully what they are doing, and that no one will embarrass them. Is it—I ask rhetorically—therefore surprising that they become rather set in their ways and complacent, always guard their backs and are perhaps not as robust in the quality of their work as they should be?
Moreover, the security services get things fundamentally wrong. I was one of those who voted against the war in Iraq, and one reason—although not the only one—was my absolute certainty that if the security services had advised the Government that Saddam Hussein was a serious risk to world peace, they were wrong. As it appears, I rather doubt that they did give that advice, but if they did, they were wrong. Consequently, I regard the work and activities of the security services as a pretty fragile foundation on which to deprive other people of their liberty. That is an important starting point for the House.
The Newton report, reinforced by the Joint Committee, has recommended that part 4 of the Act be replaced by permanent legislation with all possible speed. I agree with that view, and I hope that it will be replaced soon with legislation that does not involve a derogation from human rights legislation, does not rely on immigration law, and does not make a distinction between persons depending on their nationality or place of residence.
My opposition to part 4 is one of principle. When the legislation was being debated, I went to the House on Second Reading to ask the House—and, indeed, myself—about the circumstances in which a person could be detained indefinitely. That is all set out in section 21 of the Act. Such detentions do not follow a conviction or even a finding of wrongdoing or an intent to do wrong. All that has to be satisfied is section 21, which provides merely that the Secretary of State should have reasonable grounds to believe that a person constitutes a threat, and suspect that the person is a terrorist or is associated with terrorism. Having reasonable grounds to believe or suspect such a thing is wholly different from a finding that a person has indulged in wrongdoing. I find it very difficult to accept that a person can be detained for a very long period of time on such a fragile foundation.
My right hon. and learned Friend is putting forward his argument very clearly, but there is a problem. Lord Hoffmann, who is by no means backward in the matter of human rights—indeed, he is one of the foremost proponents of them—made it quite clear in the case of Rehman only about a year ago that, in the context of the issues that we are now discussing, the courts had to have regard for the decisions taken by the Home Secretary on reasonable grounds. Would my right hon. and learned Friend like to ponder that decision, or does he simply disagree with it?
I simply disagree with it. I do not think that anyone should be detained for a long period of time unless there is a positive finding of fact made by some judicial or quasi-judicial body to the effect that the person has either infringed the law or embarked on some other relevant wrongdoing. The fact that the Secretary of State may have reasonable grounds to believe or suspect that that is the case does not strike me as a good enough reason to detain the person.
The right hon. and learned Gentleman brings us to an essential point. Given his strong feelings about not detaining a person in any circumstances if they have not been convicted of an offence in open court and subject to our usual criminal justice processes, what does he think should happen to individuals about whom the intelligence evidence is more than highly suggestive that they are planning acts of terrorism against citizens of this country? What is his solution to that dilemma?
I shall come to that. My view coincides largely with what Lord Newton has said. To say that we should sentence someone to a long period of imprisonment because of intelligence information that is "highly suggestive" seems to infringe almost every principle for which I have ever stood, and I am not going to start infringing them now.
The right of appeal in the Act provides that SIAC has the ability to determine whether there are reasonable grounds for the Secretary of State to come to the suspicion or belief that he harbours on the matter. There is no revisiting of the underlying facts. The question and primary test is whether there were reasonable grounds for belief or suspicion, not whether the underlying facts were right or the individual has been guilty of wrongdoing.
What does SIAC see? It sees relatively little. It sees anyway only what the Secretary of State wants it to see. That was the point made by Mr. Marshall-Andrews, and it is entirely right. What does a detainee see? Very often, they see almost nothing. If one looks carefully at the report, one will see that the closed evidence is often the majority evidence. The closed evidence is disclosed to the special advocate, and from the moment the special advocate gets to closed material, he has no further communication with the detainee or the detainee's legal representatives. That is not a form of appeal that I recognise. It seems thoroughly bad.
My conclusion on part 4 thus far is that it is deeply offensive. The right of a power of detention is fatally flawed because it does not reflect any independent assessment of wrongdoing—far less a conviction—and in any event, there is a wholly futile appeal process.
My anxieties are reinforced when I read paragraph 200 of the Newton report on page 55, where it is said:
"Given the novel and contentious nature of these powers we believe that there should be a continuous proactive effort to manage the individual cases of the suspects with a view to finding alternative ways of dealing with them".
That is wholly right. What is the conclusion? The committee states:
"We were, therefore, surprised to learn that the authorities"— they are the people for whom the Home Secretary is responsible—
" . . . have given no thought to what change in circumstances might lead them to conclude that an individual should be released or dealt with differently".
In other words, once the authorities have the detainee in the bag, they leave him there and pay no more attention to his case. Who is responsible for those people in those authorities? The answer is: the Minister now sitting on the Front Bench, and her boss.
It cannot be right that no more attention is paid to detainees once they are in detention, because we have learned this afternoon that two have been prosecuted on criminal charges and that, as I understand it, the evidence for that was found by the authorities after they had been detained. So they are not completely abandoned.
The detainees are kept in the bag, and I have no doubt that some prosecution authorities review their cases, but they are different from the Home Office authorities. The Home Office is quite happy to leave them in the bag. That is what Lord Newton and his committee say. I regard that as a scandal, as I am sure, to be fair, does the hon. and learned Lady.
I am glad to hear it; I will put my question a bit more sharply. I was going to be a little more temperate. He has just said that there would be no review when the person was in the bag and left there indefinitely. How does he equate that with section 26 of the Anti-terrorism, Crime and Security Act 2001, which specifically provides that
"The Special Immigration Appeals Commission must hold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued"?
In addition, there is provision for a repeat.
At each of the reviews, the detainee is entitled to be represented. I have seen and know well many of the representatives who feature in appeals on behalf of such detainees. I assure the right hon. and learned Gentleman that it would be unbelievable if they were not putting forward every change of circumstance so that SIAC could take it into account. Admittedly, it will judge that against the intelligence, but he is quite wrong to call such a form of appeal futile.
The hon. and learned Lady must face up to two points. First, Lord Newton's committee and all the Privy Councillors unanimously concluded that there was a failure on the part of the Home Office properly to discharge its duties in this regard. That is set out clearly in paragraph 200, and I commend it to her. Secondly and quite differently, as regards the appeal, she will find it comprehensively described at paragraph 176 of the report. In particular, serious criticism should be directed at the fact that much of the evidence is closed evidence of which the detainee will be wholly ignorant. If she finds that a satisfactory process, I do not, and to be fair to her, I doubt whether she does either.
On one further point before I look to the future, I have a strong suspicion that the existence of part 4 powers, so that the person is in the bag, means that not very serious attention is given to whether that person can be prosecuted for substantive offences. Indeed, I suspect strongly that the fact that there are part 4 powers acts as a powerful disincentive to the Crown Prosecution Service and others when they come to consider whether or not they wish to prosecute, having regard to the uncertainties involved.
May I ask the corollary of the question that has just been put to the right hon. and learned Gentleman? Given that there are 17 people against whom it is perceived that there is so much evidence that it warrants their detention without trial over two years, is it not extraordinary and singular that only two of them have been prosecuted during that period?
Yes, it is. I think that that makes the point that I have tried to make: once somebody is in the bag, why bother any further? It is a strong supporting piece of evidence to the effect that these part 4 powers are having a perverse effect and are themselves preventing prosecutions for substantive offences.
I want to look forward a little. I hope very much that there will be an implementation of the broad Newton recommendations. As a general proposition, I want these emergency provisions to be replaced by permanent legislation. I want terrorist offences for the most part to be dealt with in the mainstream of criminal law. I want to ensure that there is no further derogation from the human rights legislation, and, furthermore, that no distinction is made between defendants on the grounds of nationality or place of residence. The legislation should deal with terrorism qua terrorism and should not rely on the immigration laws.
Next, I believe that detention should only follow conviction for a substantive offence. Under no circumstances should long-term detention or any significant period of detention follow security-led information. I accept that there may well have to be changes to the law as to the admissibility of evidence—the points made about intercepts seemed entirely right. The practice may also have to change. The points about the juge d'instruction made in the Newton committee report are perfectly sensible, and we could no doubt expand on the use of special advocates. I further accept that there may be a residue of cases in which it is not possible to prosecute but there is some degree of risk. The House must wrestle with that.
I welcome the proposals in the Newton report that there may be restrictions falling short of detention that can properly be imposed: tagging, restrictions on banking transactions, surveillance and so on. I want to make two points, however. If those are to be invoked, it should be after a judicial or quasi-judicial process on the basis of statutory criteria that must be proved to the satisfaction of the tribunal. In those circumstances, I would be prepared to accept further restrictions, albeit falling short of detention. At the end of the day, I do not think that there are any circumstances in which I would support a policy that results effectively in internment without proper criminal process and above all without a proper conviction or judicial hearing.
Finally, let me say something about the Henry VIII clause, section 124. The Newton committee was rightly critical of it, because the Home Secretary is giving himself powers to amend both the Act and any pre-existing legislation to the extent that he thinks "necessary or expedient". Moreover, he can do so by means of the negative procedure, which is subject to annulment. In other words, we have given the Home Secretary power to amend any piece of legislation that he sees fit to amend, and he can do it without primary legislation—on the back of a short debate upstairs, if such a debate is secured. That is simply not worthy of this place.
This debate reminds me of last week's television series about Dunkirk. We lost that campaign because our generals had prepared for the previous war rather than the one that they were there to fight. They did not know our enemies: they did not know how ruthless they were, or what techniques they would use. I think that today, especially in the context of some of the comparisons with IRA terrorism, we too run the risk of fighting the last rather than the current war. We should be considering the nature of al-Qaeda, its aims and how it operates. We should bear in mind how different all that is from everything that we have experienced before in our fight against terrorism, whether it involves the IRA or other more recently identified terrorist organisations.
Al-Qaeda's world view is completely different from ours. It is not about dealing with developing world issues, or about the middle east; it is about overthrowing our way of life completely. I have read al-Qaeda's manifesto—I do not know how many other Members have; it was sent to me by a journalist—and it is clear that there is no room for compromise. These people's objective is to turn our country, the United States and the western world as a whole into a Taliban-style dictatorship, a theocracy under Islam. We cannot compromise or negotiate with them. Theirs is not like IRA terrorism, which had a political objective.
Moreover, members of al-Qaeda operate very differently from the IRA. They aim at soft targets, not high-profile targets. Their aim is to cause the maximum number of civilian casualties, as we saw on
I do not think a distinction should be drawn between the terrorism manifested by al-Qaeda and that of, for example, the IRA. Surely we should all expose terrorism, wherever it may originate—be it the "soft" terrorism that we see closer to home or the more ruthless, hard, rooted terrorism that we see internationally. We should expose and oppose all of it, to ensure that it is brought to an end.
I hope the hon. Gentleman does not think that I am soft on IRA terrorism—far from it. My point is that we cannot fight old wars. We are fighting a new war against al-Qaeda, a different organisation with different aims over which we cannot compromise or negotiate, using entirely different techniques. If we do not recognise that, we have no prospect of winning this war.
I think that the report's recommendation on tagging is somewhat naive, and also rather dangerous. Part of the problem is that we do not know the identities of those in detention, save one who has allowed himself to be named: Abu Qatada. If anyone thinks that Abu Qatada could have been tagged and had his finances controlled in such a way, they have another think coming. Let us not forget that even though he was under surveillance, when the new law was introduced he managed to give the security services the slip, and went on the run for nine months before he was tracked down. So the idea that he would somehow be tagged or brought to a police station, or confined to using only approved bank accounts, is complete nonsense.
There is a risk associated with this development. I fully accept the Home Secretary's word—indeed, I have had it independently confirmed elsewhere—that an extremely high threshold is applied before anybody is put into detention. But if there were the alternative further down the chain of tagging or reporting to a police station, the inevitable temptation would be to use that power more widely. In effect, that would lead to a greater infringement of the civil liberties of a wider group of people for whom detention may not be appropriate, but whom we would like to keep under surveillance through a cheaper method. That would be wrong. If certain people are so dangerous to our society that action needs to be taken, detention is the appropriate course. We should not try to widen the net, which could happen if we have these wider powers.
Nor is there any need to extend the powers beyond the exemption relating to al-Qaeda. The police would seem to agree with that view. A senior police officer told me that they have no desire, should the law be extended, for what they call a "Casablanca moment", in order to round up the usual suspects. They are quite satisfied with the current position.
The report contains a lot of common sense about intercepts, but we must recognise that they are not a panacea in themselves. They have, however, certainly helped in other jurisdictions. From what I have read about the case of Abu Qatada, for example, if intercepts had been admissible evidence he could well have been charged. But we must also recognise that simply having intercepts as admissible evidence is not the end of the story. The police would still have to prove their context—who was speaking to whom—which can often be extremely difficult evidentially. One way to do so might be to have a rebuttable presumption: a presumption, rebuttable by the suspect, that the person on the phone line is the owner or subscriber; otherwise, it could be extremely difficult to make use of the full evidential effect of that intercept.
We must also ask whether this law is going to be retrospective. I know that the House is very reluctant to consider retrospective legislation, but if we are contemplating allowing intercepts to be used as evidence, there is a lot to be said for allowing the law to be retrospective, so that it can be used on previously obtained intercept evidence. That could well provide us with the evidence that we need to prosecute those who are currently detained in Belmarsh. The intercept evidence on which they are probably detained could then be used for a criminal prosecution against them.
I share my hon. Friend's view, but there is no difficulty in this regard. If the law on admissibility were changed, everything in existence could be admitted from then on. Indeed, I hope that that happens.
I am grateful to my hon. and learned Friend for her comment, which I endorse.
The Newton report also refers to plea bargaining. I have always been a little suspicious of plea bargaining, particularly in the light of the problems associated with the "supergrass" trials of old, which led to serious miscarriages of justice. However, there is a separate issue, which is not necessarily plea bargaining, namely a different form of inducement in terms of co-operation with the police and security services. As I have said, we need to recognise that international terrorism is different in character and poses different challenges. We know that when such people are in custody, it can take a long time to establish their identity because they often have multiple identities and aliases. It is necessary to work through interpreters, which takes a lot longer, and religious observance can also cause delay.
On interviewing, we must also consider the high-tech nature of international terrorism, which has not been a feature of previous IRA terrorism, the use of computers and the need to examine many hard drives. In such circumstances, we must look at other ways of seeking co-operation from suspects. Quite properly, they rely on the right to silence when advised to do so by lawyers, but in any event they have usually been trained in interview techniques and in how to avoid giving away information. Currently, the judges' rules prevent any offer of inducements to co-operate, but why could we not amend the law to allow suspects to give non-admissible statements in private for intelligence purposes only, which would not be used in evidence against them? Credit could be given for such co-operation if those suspects were subsequently prosecuted on other available evidence. Such statements would allow them to explain their involvement. People working in the security services have put it to me that several suspects over the past year were proud of what they had done and wanted to trumpet it, but were advised not to do so because of the impact on their prosecution. Had they been able to make a non-admissible statement, that might have been a way of securing information from them to fight terrorism while at the same time protecting their legal rights by giving them help, should they be prosecuted, in respect of sentencing.
One issue that has not emerged from the debate so far is the question of advance passenger information. It was referred to in the Newton report and is, I believe, an extremely important issue, which we are not taking as seriously as we should. There is clear evidence that we are behind the game on that aspect of the war against terror. As we know, the US is demanding advance passenger information on certain flights coming into the US. Australia does the same as a matter of course, but our approach is rather hit and miss. There is some evidence that the Home Office is now starting to take it seriously, but we are behind the game and we must beef up our information to ensure that we are more aware of the people who enter the UK by air. That, of course, poses the question of which people are entering the UK through other routes.
There has been much discussion of the concerns of the Muslim community about anti-terrorist legislation. It has been said that there have been many arrests, but no court cases and no—or very few—prosecutions. Part of the frustration arises from the fact the many of the cases are sub judice, so it is not possible to discuss or explain them. As those cases come to trial, the Muslim community will, with a degree of patience, be able to see that some very serious offences have been committed. Ultimately, the work of the police and security services will prove justified in that respect. We should remember that not only Muslim groups are proscribed organisations under anti-terrorism legislation, but other terrorist groups such as the Liberation Tigers of Tamil Eelam or ETA.
There is also the question of how we organise the security services and I am pleased that the Home Secretary has confirmed their expansion. There is little doubt that attacks have been stopped or disrupted: work on the ricin plot provides a clear example of a highly successful security operation. It is also clear that international co-operation has significantly improved over the years, particularly in the case of France, which was one of our main critics in the immediate post-9/11 period. There remains the risk of some of our efforts being dissipated. Although we have made London a hostile environment for terrorists, I question whether that position applies nationwide. Unless we ensure that the country is properly policed, the efforts made in London will be dissipated as people move out from the capital.
Part of the necessary work requires action on ordinary crime—document or credit card fraud, for example—using ordinary policing techniques, but further investigating and analysing those cases, and attacking terrorism by attacking the wider criminality that those offences show. Investigating those sorts of offences can in time lead to the discovery of terrorist activity and terrorist suspects. In that context, I am concerned that the campaign against terrorism is not one of the targets in the national policing plan. It has targets for many aspects of policing, but I understand that the fight against terror is not included in the plan.
The campaign is resource intensive, and we need to strive for a much more consistent performance throughout the country. That requires a consistency of capability throughout the country, which I am not sure that we have. In the end, there is a certain inevitability about having some form of national unit—perhaps based on the Metropolitan police with satellite units around the country—if we are to combat terrorism effectively and ensure that our country is safe, free and able to protect and maintain the liberties that we have debated so much this afternoon.
This debate must be judged in the context of the Civil Contingencies Bill. When the House discussed the range of powers being sought by the Government in that Bill, my right hon. and learned Friend Mr. Hogg, my hon. Friend Mr. Shepherd and Mr. Marshall-Andrews all made similar points.
We were all deeply concerned about the Civil Contingencies Bill, which may overlap the review period that will take place as a result of the Newton committee report. It is therefore even more important that the Bill be rectified to ensure that it contains the test of reasonableness, and that the courts' jurisdiction in these matters is not removed. The Bill's powers are so wide that they could even invade the territory of the 2001 Act.
I made it clear in earlier interventions that I have concluded that there is no serious alternative way of dealing with the problems presented by the terrorist threat that we face. Unlike the Civil Contingencies Bill, the 2001 Act contains a test of reasonableness to be applied to the Home Secretary's decisions. I wholly disapprove of the Henry VIII clause, but it is worth considering it in the context of Lord Hoffman's remarks in connection with the Rehman case, which took place only a year or two ago.
A test of reasonableness means that judges can review the Home Secretary's decisions, albeit with some conditions. With great respect to my right hon. and learned Friend the Member for Sleaford and North Hykeham, he did not make it clear that the Special Immigration Appeals Commission could have regard to factors other than suspicion. I believe that courts have enough of an override capability to enable them to arrive at a proper review of decisions that have been taken, and I referred earlier to a recent case in which the Court of Appeal reversed a SIAC decision.
These are undeniably difficult issues, and the tone of the debate suggests that the House has been treading carefully through a minefield of problems. We have tried to give some indicators to the Government as to how to proceed in reviewing provisions that are on the statute book already. To that extent, the Newton committee report has served an extremely useful purpose. It has addressed some subordinate and supplementary questions in a way that I consider entirely helpful.
The central principle is whether the ultimate judgment in these matters should depend on the reasonable decisions of the Home Secretary. As long as the courts have the power to review those decisions, I believe that detention without trial is justifiable in these extremely difficult and dangerous circumstances. As I said earlier to my right hon. and learned Friend, we must also have regard to the power of SIAC to conduct the reviews.
"a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be taken by persons whom the people have elected and whom they can remove."
In the context of the Civil Contingencies Bill, that makes my case, but in the context of the 2001 Act it makes the Government's case.
There have been no fewer than five reports criticising the arrangements set out in the Act, and there is no doubt that some extremely learned authorities have expressed grave concern about its wide-ranging powers. However, in the balance of the serious threat of the kind of terrorism that faces us and the necessity to maintain public safety—the first duty of Government—and national security, such powers are justified. In "Constitutional and Administrative Law", Bradley and Ewing make the point:
"It is thus up to the courts to ensure that these wide powers are not misused."
That is the position that the House should adopt. I do not say that because I want to be over-critical.
How can it be up to the courts when judicial review is expressly excluded from the procedure? Allied to that point, if the procedure is justified, how long is it justified to keep a man in detention without trial? Two years have elapsed and no evidence has been provided, which signifies the probability that there is none that will be admissible. How much longer should those people remain in custody?
The hon. and learned Gentleman says that judicial review is expressly excluded, but if he is referring—as I am—to the issuing of a certificate, the very use of the word "reasonable" in the context of section 21(1) of the 2001 Act gives the courts the right to question the proceedings. Furthermore, subsection (8) states:
"A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26", to which I have already referred. That is not eliminating judicial review; it imposes degrees on the conditions for its use.
Sections 25 and 26 deal with appeals against certification and the review of certification. I have already covered that territory, but the provisions state that on appeal
"the Commission must cancel the certificate . . . if it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or"— and this is the point to which I referred earlier—
"it considers that for some other reason the certificate should not have been issued".
This is a difficult area and I do not approach it with the same certainty as I approach the Civil Contingencies Bill, on which the hon. and learned Gentleman and I think on almost identical lines.
In the context of the debate and the report, however, I have to make a distinction, because we need to be immensely responsible in our attitudes. It may seem strange that a former shadow Attorney-General should line himself up with the Government, but it is important to make distinctions that are necessary in the interests of public safety and public security.
I am not unaware of the dangers inherent in moving into such territory. For example, I am extremely mindful of the statements that have been made in respect of habeas corpus. I have not yet heard them mentioned today, but they seem to be an essential ingredient in this matter. In one very important case, it was said:
"Habeas corpus is probably the oldest of prerogative writs. Authorising its issue in appropriate cases is regarded by all judges as their first duty".
That speaks for itself.
The importance that needs to be attached to dealing with the question in the context of article 5.4 of the European convention on human rights is self-evident, but I have argued from the Front Bench in the past—I will do so from the Back Benches for as long as is necessary—that such questions should not be driven by human rights legislation itself, as I rather suspect that the Newton committee was driven. Indeed, that was also evident in the report published today by the Joint Committee on Human Rights. I take a very different view.
Again, Lord Hoffmann said unequivocally in the case of Simms and O'Brien that Parliament has the right to amend or even repeal the Human Rights Act 1998, if unambiguous legislation is introduced expressly to do so. Therefore, to hinge the whole argument on human rights legislation raises the question of what is the right thing for Parliament to decide for itself to do in respect of the protection and security of the nation and the individuals who live in it.
Similar questions arose in the case of Liversidge and Anderson in the early 1940s. Again, that case was decided on the ground that the words "reasonable cause to believe" were included in the Defence of the Realm Act 1915. That was decided in a manner that Lord Diplock, Lord Reid and several other judges have condemned. So a whole stack of very important civil liberty questions lies at the heart of this matter; but, by a rational explanation and by considering the objective and purpose of the legislation under debate, I strongly say that the first duty of the Government and, indeed, the Opposition is to have regard to the safety and security of the people of this country, including my constituents.
I am more than prepared to suggest, therefore, that we should look at the legislation by all means and see whether we can come up with a sensible alternative, but let us not fall into the trap of putting the principle of jurisprudence above the security of the nation and the constituents whom we represent. That is genuinely what is at stake. Therefore, to that extent, I support the Government and disapprove of what the Newton committee report says on part 4.
The Home Secretary is on strong grounds to ask for the renewal of these provisions today. Clearly, everyone agrees that there is still a threat to the nation's security—something about which one, of course, wants to be profoundly sceptical, but no one seems to doubt that the threat exists. In addition, not only the Home Secretary but the courts and the Carlile review all agree that the individuals who are being detained are a threat to the nation. The Government, with their public protection hat on, SIAC, with its ability to peruse convention rights and civil liberties on behalf of individuals, and Lord Carlile, who scrutinised such things on behalf of the public, all agree about that. It is a strength, too, that the Home Office has used this power very sparingly. I take some cheer from that for another reason: it suggests that the intelligence services, too, have to some extent kept matters in proportion, because they have not gone around looking for enormous amounts of evidence to press against enormous numbers of people. That is a reasonable, and cheering, inference. One's view of the matter depends on whose eyes one looks at it through. My hon. and learned Friend Mr. Marshall-Andrews will not agree, but I am pleased that two people have been prosecuted since their detention on the basis of information that has since been made available, because that suggests that a degree of active investigation is continuing. Indeed, it must continue—there must be a permanent principle that prosecution is the right thing to do.
Some hon. Members have called this the British Guantanamo, but there is no real justification for that. Okay, it is detention without trial—I regret that and I do not like it—but the detention of those in Guantanamo Bay is not a scar; it is a suppurating boil on the face of democracy. People have been deliberately tipped into an offshore legal black hole—not because they are seen first and foremost as a threat to the nation, but because the authorities want to interrogate them while they are completely disoriented and out of touch with everyone else.
By contrast, the Home Secretary has told us that he uses a high test before he certifies, and I accept that. As soon as a certificate is issued, there is a right—albeit perhaps only nominal—to apply for bail. Although that is of course unlikely to succeed, it means that someone cannot be incarcerated and just left in prison, because they come to the attention of the judiciary immediately. Within three months, an appeal to SIAC is launched, followed by periodic reviews initiated by the authorities—the first after six months, and thereafter every three months. I do not accept that those appeals are futile, as Mr. Hogg suggested. He quoted the Newton report as saying that there has been an insufficiently proactive and focused case management approach to determining whether an individual should continue to be detained. That is a criticism of the authorities. Newton adds the caveat that there has not yet been a review because the cases have been under appeal almost from the start. That has been a protracted process owing to a whole range of factors, some of them outside the control of the Home Office and clearly in the camp of SIAC. As for a review brought about by the authorities themselves, we are not yet even into that territory. The people I know who will act for the detainees will not participate in futile appeals—they will be meaningful appeals, not least because of their presence.
It must be admitted that all the hearings will involve a partial recourse to secret intelligence. As a civil libertarian, I find that difficult to deal with. However, using a special advocate who takes instructions from the detainee and examines the evidence on his behalf, seems the best possible way of making that reasonable. He cannot speak to the detainee afterwards—that is right, although it must be difficult—but takes his comprehensive instructions first and does his best. I am satisfied that the special advocates whom I know will do a sound job and would not co-operate with a procedure that was merely a futile exercise to be gone through.
We have heard the criticism that this is detention on less than the civil standard of proof because it is based only on reasonable suspicion. That is unrealistic. I accept that my right hon. Friend the Home Secretary has adopted a far higher standard, and I am sure that it is not possible for SIAC to consider whether there are grounds for reasonable belief without considering the facts on which those grounds are based. Furthermore, it will do that with the jaundiced eye of a civil court that knows that its finding implies that someone has committed a crime, so it will adopt the ordinarily elevated standard of proof that a civil court adopts in that situation.
That said, 12 people have been in custody for almost two years without being told exactly what they are alleged to have done. They are in the particularly hopeless position of not knowing how long their detention will be; they are of necessity in a high-security prison that is usually reserved for the worst criminals, although there remains a very real possibility that they are not criminals at all, or that some of them are not; and their issue has never been tested. I would add that these powers apply only to non-citizens, all of whom are Muslims subject to immigration control. It is arguably legally discriminatory—the House of Lords will decide that soon—and is certainly extremely discriminatory in the real world. Moreover, Newton says that the threat, contrary to what appeared to be the case two years ago, when it came almost wholly from foreign nationals, comes almost equally from UK citizens, but the measure provides protection only against foreign nationals. Having derogated from the European convention, abrogated basic rights to freedom and risked community disharmony, we have at best gained only partial protection. It cannot last, and there is no basis on which it should be allowed to do so. It must be subjected, as we are said to be subject by al-Qaeda, to constant attack.
As my right hon. Friend Mr. Smith said, we should be operating in the realms of criminal law, and should move towards that as quickly as possible. When I asked my right hon. Friend the Home Secretary whether, if we work hard at expanding the capability of the criminal law, we will succeed in getting rid of part 4, he said, very clearly, no. We have no option but to accept that today—everyone agrees that there is an emergency and a threat. We cannot possibly demand that the measure ends now, so we must vote for it tonight. However, it is my right hon. Friend who will, as many people have said, carry the can if any of the detainees cause trouble if he lets them out or gives up the right to detain them. He will be the last person to be convinced, so we consultees—we are all consultees in the process—have a task to perform. We have to work to try to get him to change his mind about part 4.
All of us who are consulted should aim to ensure that the criminal law can achieve the successful prosecution of British or foreign nationals who are terrorists. There is no other way in which can we persuade the Home Secretary that we can do without part 4, and we must do so by letting the provision fall into disuse and using the criminal law more often. I accept the point made strongly by Sir Brian Mawhinney that verifying intelligence is simultaneously a great difficulty in the procedure and an inadequate basis for evidence. However, we must seek to crystallise intelligence into evidence so that it can be scrutinised in the way in which courts usually scrutinise and verify the evidence—frankly, it is very similar to intelligence evidence—which they hear day in, day out about organised crime. That evidence comes from informants, convicted criminals and, sometimes, deep, dark parts of the underworld. It is uncertain in nature, but courts scrutinise it once it has been put into a statement or an oral form, and make up their mind about it.
We must do the same with intelligence. As more than one Member has said, there is a genuine need to challenge the current culture of intelligence secrecy, which goes beyond phone tapping. If one were to suggest to the intelligence services that they submit a statement to the court, they would say that it would work out who it was from, how they got it, who told them about it and so on. Like any culture, if left unchallenged, the assumptions of that culture of secrecy will become set in stone. I suspect that that is happening, and I shall return to the subject when I deal briefly with phone tapping.
More intelligence should be admitted in criminal trials. We should not forget the powers that are already available. The Criminal Justice Act 2003 allows the admission of hearsay. It allows first-hand evidence—"I saw it". However, it also allows second-hand evidence—"he told me he saw it"—third-hand evidence, "he told me she said she saw it", and written instead of oral evidence. If that is good enough for ordinary criminal trials, it is clearly good enough for terrorist trials, and is a way in which intelligence evidence can be admitted. The weight put on it is a matter for the court, but it is available and is a mechanism that should be tried.
Witness protection measures are sophisticated and go far and wide. There are, for example, devices that distort voices. I appeared in a major case of organised crime in which an informant gave evidence. He was produced from nowhere in the sense that he had been circling in a car before he came into court. He was dressed like a sort of Indian mystic—he was covered from head to foot in white clothing and wore a patently false beard. One could not therefore tell whether he was tall or short, fat or thin, or anything else about him. Despite all that, he gave evidence from behind a screen and left through a back door. However, he was worth bringing to court because he had an impact on the case. Witness protection measures, even as bizarre as those, are used in the ordinary courts and can be used in the instance that we are considering.
As the Newton committee recommends, surveillance, although expensive, can be much more intensive than it currently appears to be and can be admitted. More overseas courts admit more surveillance than we have historically ever done. Again, I suspect that the intelligence culture of deep, dark secrecy is responsible for that.
Hon. Members have made points about phone tapping, but we are under increasing pressure to change the rule. In an intervention, I mentioned a case in which I appeared shortly before being elected. Members of an alleged international drugs ring were telephoning about day-to-day arrangements for dealing with the consignment. The phone taps that were picked up at the Dutch end were admitted into the Old Bailey and those that were presumably picked up at the English end—no one can say whether there were any, but it would be nonsense if there were not—could not be used. Our European partners will not tolerate for much longer a position whereby they can give us evidence to help get rid of international crime but we neither use our own nor give it to them. Clearly, there is plenty of scope and the sooner the review produces a positive answer, the better. Again, I suspect that the security services have been unduly cautious for a long time.
There is a further problem about admitting such material. If a prosecution wants to use 20 minutes of the product of phone tapping, when a person's phone has been tapped for six months, it would be necessary, for fairness, to disclose the whole six months to the defence so that it can ascertain whether anything helps to exculpate the accused. Of course, that is enormously expensive, cumbersome and perhaps capable of more closely approaching a threat to the method of obtaining the material. However, I believe that there is scope for compromise, probably through an independent judge scrutinising the material. Again, it is a tactic that can be used.
There is therefore a rainbow of measures, some extant and some potential. They form a rainbow only in the sense of ultimately offering some light for detainees because they will facilitate bringing more of them to trial. I accept that the standard of proof that is currently used is high and we are therefore, at all stages, not far away from being able to try such people if only we are a little imaginative about criminal procedure. To try such people must be our aim, thereby reducing the need for the part 4 powers by removing the foreign nationals out of Belmarsh and into court and protecting us, through the courts, from the British national extremists, who, we are told, now constitute an equal threat.
We consultees must work with the Home Office ceaselessly and use our imagination to build on those and other possibilities, with the intention of shaving part 4 to the minimum and in the hope that we can entirely remove any need for it to survive.
I end on a note of uncertainty, which runs through my position on the matter. If we go through the process, work hard, smarten up the criminal justice system, put the part 4 detainees on trial but part 4 continues, we fail to convict them and they are acquitted, will they simply be detained again?
The limited amount of time and the number of hon. Members who still wish to speak means that I shall endeavour to be as concise as possible.
Most of the debate so far, including the erudite contribution of Vera Baird has rightly focused on the legal issues that confront the Home Secretary and the Minister. I do not envy either of them their dilemmas. They must consider, in the domestic context, what is known in the international context as the problem of pre-emption. The Minister summed it up succinctly in her intervention on my right hon. and learned Friend Mr. Hogg. However, my aim is to consider the security issues that have emerged concerning the disclosure of intercept data in criminal trials and the recruitment of extra staff by MI5. Most of us would accept that it is fundamental to counter-intelligence work to maintain a strong element of surprise and keep one's enemy guessing. It was therefore a little unexpected to read in The Guardian on
"MI5 has won the backing of Tony Blair to allow the product of telephone taps to be used in court cases".
Historically, it has usually been the other way round: politicians usually agitate for the disclosure of such material; security professionals tend, for very good reasons, to resist them.
That point has been illustrated repeatedly over the past 80 years. One can go back to 1927 and the famous raid on the Soviet trade delegation and the ARCOS company. The Home Secretary disclosed the important techniques used by the security services, and we were unable to take similar action against Soviet dangers for many years after that. As recently as the first attack on the twin towers in the early 1990s, the Americans revealed information about their ability to listen to mobile telephone conversations, which ensured that they did not get that sort of warning when al-Qaeda tried again successfully in 2001. The danger of such disclosures is not only that terrorists learn what can be tapped; they may also learn what cannot be tapped and put that knowledge to use in lethal attacks in the future.
Let us consider what the would-be suicide terrorists and their co-ordinators will be trying to do in the months and years ahead. They will try to hide their affiliations; they will try to plan in secret; they will try to keep their communications secure and will therefore try to find out which communications systems cannot be monitored; they will try to find out what MI5 knows about them and their plans; and they will therefore try to infiltrate the Security Service to secure all those objectives. Conversely, the Security Service needs to operate in ways in which as little as possible of its intelligence-gathering capacity and its manning and recruitment are revealed.
That is why I am concerned about last weekend's flurry of publicity, and I am grateful to Mr. Beith, who I am pleased to see is still in his place, for also voicing his concern. The Home Secretary sought to brush aside my interventions—rather flippantly, I thought—suggesting that the announcements made at the weekend were old reports about a process that had been ongoing for a long time.
It is a fact that all the reports that appeared—I have a sheaf of them from which I could quote at leisure—indicated that recruitment will primarily be for the future. The 1,000 extra surveillance officers will apparently be in place after a time-lapse of three or four more years. I cannot see what could be gained by advertising to people who have an interest in trying to get into the security services for nefarious purposes that the mass recruitment of Arabic speakers has yet to be completed. The matter should have been dealt with in delphic terms, and confirmed only after the process had been carried out.
I would rather not, because the hon. Gentleman's hon. Friends will not be able to speak.
I conclude—in line, I hope, with my promise to be concise—with two quotes from items in the press today. In The Independent, Dr. Brian Jones, formerly the leading nuclear, biological and chemical analyst for the Defence Intelligence Service, who has intimate knowledge of these matters, states:
"From an intelligence and security perspective, it seems rather odd to so publicise a change to an organisation that normally operates with stealth and in the shadows."
Indeed, in The Independent today there is also a small item headed
"Would-be spies rush to visit website".
Underneath we read:
"Visits to MI5's website increased sixfold at the weekend after it was revealed that the security service intended to recruit 1,000 new staff to counter a feared al-Qa'ida attack on Britain.".
I can only hope that the Security Service knows what it is doing in recruiting en masse in this very transparent way. It is a fact that would-be spies are rushing to apply. The question is: are they would-be spies on behalf of MI5 or are they would-be spies against MI5?
I also shall be brief. I should like to start by making two general propositions.
The first is something that is blazingly obvious, which is that there are a large number of people in this country who are in prison and who deserve to be there. There are a large number of people in this country who are in prison for a long time and who deserve to be there. I can claim a small or modest part in the imprisonment of some of them at least, either because I prosecuted them or, possibly even more so, because I defended them from time to time.Whereas many deserve to be in prison, no man and no woman in this country deserves to have his or her civil rights abnegated, and there is no reason that I am aware of for that to happen.
As part of this debate, I wish to state that there are 17 people we know of whose civil rights have been totally abnegated. They have been in prison for years, without recourse to proper legal procedures, without trial, without knowledge of the reasons for which they are in prison, and with every single civilised practice that we have in criminal jurisprudence in this country in abeyance. The importance of this is that it is not their rights that are abnegated. It is not their individual rights that are the subject of abuse and attack, because civil liberty does not belong to individuals. Civil liberty is something that we own as a collective whole.
What abuses those people abuses me. Without wishing to paraphrase or misquote the great poet, I would add that what diminishes them also diminishes me. The fact that there are those in this society, in my society, in my country, who are in this position now is an abnegation of my liberty in the same way as it is an abnegation of theirs.
The second general point that I wish to make is about al-Qaeda, which poses two threats to this country, both of them grave. The first is a threat to the liberty, life and property of our individual citizens and those who are within our jurisdiction. That is a grave threat, a threat that al-Qaeda has already demonstrated the ability to carry out.
The second threat is infinitely more grave, however. It is the erosion of our civil liberty. Every time our civil liberty is eroded because of al-Qaeda it is a victory, not for the Home Office, nor for the security services, but for al-Qaeda itself. Every time we erode our civil liberties, and do it at al-Qaeda's behest, it is a victory for al-Qaeda, a victory infinitely more profound and infinitely more deadly than the injury or damage to property or even to life.
We have now taken draconian powers as a result of the emergence of that terrorist, criminal organisation. I shall give one example under the Terrorism Act 2000, which hon. Members may be interested in. It is now an offence to possess "Scouting for Boys". I have a copy; I have had it for a long time. It is an interesting book—now dated, of course—by George Baden-Powell. I have seen it on a list of books in an indictment. It is undoubtedly an offence to possess it. Why? It is because that little book tells one how to live in woodland, how to whittle sticks, how to build a bivouac, how to make a fire and how to survive. It is an offence to possess it, and it does not even have to be proved—I acknowledge the look of astonishment on the face of my hon. Friend Mr. Gardiner, who knows me well enough to know that if I am talking about law it is one of the very few things that I get right. It is an offence to possess the book at all under the Act—it does not even have to be proved that someone intends to use it for terrorist purposes. Let us not pretend that we have not ladled on our protections as thickly as possible.
May I pass over the excellent report that the Newton committee has produced? The committee has proved that on occasions the great and good can be precisely that, and has provided us with a report that is eloquent, intellectually sound, well argued and wrong in only a small number of particulars.
I pass on to the real point that I want to make. It will take me only two minutes, which means that I can leave my hon. Friend Hugh Bayley some time effectively to wind up the debate for the Back Benches. I do not understand the rigorous distinction that has been drawn in the House between criminal activity and terrorism: doing so represents a grave danger. Terrorism is a crime—it is as simple as that. It is the terrorist who seeks warrior status and to be at war. The IRA persistently sought warfare status against us and we persistently denied it. Many of us cavil at the expression "the war on terrorism" because terrorism is the pursuit of serious crime—pure and simple—and should be treated as such.
We have all the ammunition, experience and criminal procedures necessary to prosecute terrorism as the most serious of crimes. If we did that, we would cease to dignify those whom we prosecute with the status of those held in Belmarsh, who are undoubtedly regarded as martyrs to, and warriors in, their cause. I can say straightaway that there would be no problem with evidence. We deal with covert surveillance in the courts every single day of the week. The system is now so effective and deadly that conviction rates have increased markedly in the past two years. We deal every day of the week with public interest immunity applications. People who prosecute go before judges and say, "I have an informant, but I cannot reveal his identity because he would be at risk." In cases of which I have experience, such informants were every bit as much at risk as would be those who informed on al-Qaeda or other such criminal groups. Judges are perfectly capable of protecting the identity of those who give such evidence. We can deal with that without any trouble at all. The problem of not dealing with the situation in such as way is, as I have said, that we create a reservoir of hatred and resentment, which is not the hallmark characteristic of the way in which we deal with our criminal law.
I simply conclude as I did the last time we had this debate. The exclusion of the courts and judicial review is an abhorrence within our system. It is a gross abuse of our civil rights that should not be tolerated. It is a common truth that we do not improve human behaviour by the denial of human liberties—that has never been done and never will be.
I am grateful to my hon. and learned Friend Mr. Marshall-Andrews for being brief and giving me a few moments to speak in the debate. He is unlikely to be convicted and imprisoned for the possession of "Scouting for Boys"—he even forgot the first name of its author, so he clearly has not been reading it closely.
It is right and proper that the House has concentrated on the fight against terrorism and the security risks that face our country because that is what the Anti-terrorism, Crime and Security Act 2001 exists principally to address. However, I wish to speak briefly about one of the Act's criminal provisions that would have become void if this debate had not taken place and if there had not been a similar debate in the other place.
As I indicated earlier, I want to speak about part 12 of the Act, which deals with the problem of international bribery and corruption. I have a longstanding interest in the issue. I introduced a ten-minute Bill six or seven years ago, and I was delighted when the Government introduced measures in the Act to make bribery or corruption by British citizens or British companies abroad an offence in British law.
Legislation is necessary. It is estimated that corruption costs $1.5 trillion globally, some 5 per cent. of the world economy, and it makes business difficult in many countries. The CBI used to accept with great reluctance that bribery was a necessary way to do business in certain markets, but it dropped that approach some years ago because the level of bribe required in some markets simply got to the point where it was impossible to do business at all.
I became interested in the issue because bribery and corruption undermine development in many poor countries. When President Mobutu of Zaire was driven out of his country, his personal wealth was judged to be almost as great as his country's national debt. A case is before the courts in London in which the Government of Nigeria are seeking to have returned to Nigeria $1.3 billion that is currently in the bank accounts of the former Nigerian President, the late General Abacha. Such a sum represents 20 or 30 years of British aid to Nigeria. It becomes completely impossible to carry out development assistance in circumstances in which Heads of State, other leading public officials or politicians corruptly accept money of that order. Corruption at the top trickles down through the ranks of public officials and police and customs officers until it paralyses development.
The Newton committee agreed with the Joint Committee on the draft Corruption Bill that there should be a radical simplification of the bribery and corruption law in the forthcoming Bill. The Home Secretary in the discussion paper that he published today does not agree with all the arguments of the Newton committee, but I am sure that he remains committed to the principle of introducing new legislation on corruption.
Part 12 of the Act is essential—for the time being at least, until there is other legislation—to the United Kingdom's compliance with the 1997 Organisation for Economic Co-operation and Development convention on combating bribery. This year, the United Kingdom faces an evaluation by the OECD's working group on bribery to see whether we comply with the convention. Also this year, we face an evaluation by the Council of Europe's group of states against corruption of our compliance with the Council of Europe's convention on corruption, which was ratified by our Government in December last year.
The hon. Gentleman is making a most important contribution on an issue that has not been touched on in the debate. A report in today's Financial Times under the authorship of Laurence Cockcroft, the chairman of Transparency International (UK), refers to the
"recent disclosure of a discreet briefing by Jack Straw, foreign secretary, last year to Foreign Office staff, in which he said UK business people caught making illegal facilitation payments to foreign officials would not be prosecuted".
Is the hon. Gentleman not alarmed and shocked at that?
I am concerned to hear that, although I know that the Foreign Secretary has sent instructions to all posts abroad that they should report to the Foreign Office cases in which it is believed that there has been bribery or corruption of public officials in other countries by UK citizens. It is necessary to collect the evidence if we are to have prosecutions and convictions under the legislation. I am not in the business of drumming dozens of business men through the British courts and getting them sent to prison, but it is important for there to be a few cases so that the business community realises that this is a business practice that cannot and should not happen.
Through the good offices of the Solicitor-General, I have had the opportunity to meet her and her officials and the Serious Fraud Office, and I know that there are cases under investigation. I should hate to see the legislation in part 12 of the 2001 Act fall before new and better legislation is on the statute book, because all the effort that the Serious Fraud Office and others have put into gaining evidence, so that cases can be brought before the court to see how this legislation works in practice, would then be wasted. Dealing with any serious financial crime, and gathering evidence for prosecutions, is a costly exercise. It is especially costly and difficult when the evidence needs to be collected from abroad.
The United States has had legislation of this kind on its statute book for almost 30 years, and has brought some 29 cases against 23 companies and 54 individuals. Fines imposed have ranged from $10,000 to $21.8 million, and some company executives have been sent to prison. International bribery and corruption are serious offences, and are not victimless crimes. The people who have been bribed in the American cases include Presidents, Government Ministers, military officers and Members of Parliament in 34 different countries, including developed ones, ranging from Nigeria, Mexico and Iraq to Israel, Italy and Canada.
Unlike the US legislation, ours is new and cases have not yet been brought to court under it. I hope that the Minister can reassure me that the legislation in part 12 will remain on the statue book until such time as we have a new corruption Act. I welcome the commitment that the Home Secretary gave, in response to my intervention, that this issue will be addressed in the serious and organised crime White Paper. I hope that the White Paper will cover the enforcement of the law, as well as the legislative framework for this matter.
We have been extremely lucky in today's debate to have three members of the Newton committee with us: the right hon. Members for Islington, South and Finsbury (Mr. Smith) and for Berwick-upon-Tweed (Mr. Beith), and my right hon. Friend Sir Brian Mawhinney. They were all able to add much depth and clarity to a debate that I found useful and enlightening.
The Home Secretary started with a lengthy but clear exposition of exactly what the committee had said and his response to it. We did not need that to be quite so long, because it had all been trailed in the press several days in advance, so none of it came as much of a surprise. However, my right hon. Friend David Davis then made an extremely balanced and clear contribution, setting the agenda for the rest of the debate. He talked particularly about part 4 powers, and said that the fact that the Government had agreed to review not only those powers but the whole Act, including the details of intercept evidence, after six months would probably mean that the Opposition would support the Government on this measure.
The question of intercept evidence has been mentioned widely. The right hon. Members for Islington, South and Finsbury and for Berwick-upon-Tweed, David Winnick, my right hon. and learned Friend Mr. Hogg and a number of others all talked about intercept. Although it is undoubtedly extremely important, perhaps I might add a note of caution from my practical experience of it. Intercept is not only, as Vera Baird said, a question of telephone tapping—although I know that she knows that. As we move away from the last war, as Mr. Dismore said, and start to look at the new war—I shall be careful about using that phrase in the presence of Mr. Marshall-Andrews—or at the new campaign, we have to understand that we will be intercepting not only clear speech on the telephone, but veiled speech on the internet, in e-mails and in other means of electronic communication, which it will be extremely hard even for trained analysts to understand.
That point was clearly brought out by Mr. Denham. Using such information as evidence will not be simple. The people involved do not use clear speech. They do not say, "Let's organise an attack for next Tuesday using three rocket launches and four people carriers." It is not done like that. Even in the days of the IRA, which was relatively unsophisticated, not a single terrorist in my experience used clear speech.
It is clear from the difficulties with flying aircraft back and forth to America that whatever is being intercepted is extremely difficult to interpret. Turning that interpretation into evidence will be very tricky. I thoroughly understand the Government's reservations and applaud the points made by my right hon. Friends the Members for Haltemprice and Howden and for North-West Cambridgeshire and other hon. Members, but using such evidence will not be as simple as it seems. Nevertheless, I appreciate that the Government have agreed to review the matter.
One or two other points emerged clearly from the debate. Mr. Oaten was backed up by the right hon. Member for Southampton, Itchen and the hon. Member for Walsall, North. All spoke about the racial aspects of the legislation—how the Muslim community could feel particularly victimised. Indeed, the Muslim community in my constituency is extremely uneasy about the developments of the past two years. There is no doubt that the community feels scrutinised, if not victimised. I therefore ask the Minister what the Government will do about introducing a Muslim outreach programme such as that which the American Government so successfully implemented following
At least three colleagues spoke about allowing subordinate legislation to amend primary legislation—my hon. Friend Mr. Shepherd made a powerful intervention on the subject. It is clear from his remarks, as well as those made by my hon. Friend Mr. Cash, that, hand in hand, the Terrorism Act 2000 and the Civil Contingencies Bill are changing the face of legislation. We must be desperately careful that extreme measures do not lead to extreme legislation which, to paraphrase the hon. and learned Member for Redcar, we later regret or have to allow to wither on the vine rather than use day to day.
We have been told clearly—almost to the point of nauseam—that extra resources will be given to MI5, but where will extra resources come from for MI6, GCHQ, the National Criminal Intelligence Service, Customs and Excise, immigration services and the host of other agencies that collect information or intelligence? May I go one step further and ask the Minister to what extent those disparate organisations will be streamlined as a result of the White Paper on our intelligence services?
There has been a lot of exposure in the press about lack of economies of scale in our intelligence agencies. At least two contributors, my right hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. and learned Member for Redcar, have expressed their reservations about the use of intelligence, the gathering of it and the virtue of it. Only by streamlining our intelligence services will economies of scale be reaped. Only by doing that will we be able physically to produce a set of intelligence that it may be possible to interpret so that it can be used as evidence in court. I would be grateful for the Minister's comments on that.
Although I do not believe that this matter has been covered tonight, I would be extremely interested to know what measures the Government intend to take against those people who are recruiting the British suicide bombers whom we have seen in action recently. To the best of my knowledge, three Britons have now destroyed themselves with suicide bombs, and I believe that they were recruited in this country in such a way that it was probably not a criminal act. What will we do about those leaders who choose to suborn the people whom they are meant to lead? What powers will we have to prevent that sort of recruiting, which manifests itself clearly in terror overseas and no doubt in due course here at home?
I want to underline the points made by several Members that this legislation puts too much emphasis on what has existed previously. The idea of internment—that is what it is—has clearly not worked in the past. We have been through that, and looked at the lesson. We cannot try to reintroduce internment even in a modified or attenuated version as we see in Belmarsh today. Can the Minister assure me that we will look at new ways of dealing with this matter?
We are blessed with excellent security services. It has already been mentioned that this time last year we were facing an attack in this country by a chemical or perhaps a biological agent—the information can be interpreted in two ways. Ricin was going to be used in north London. Similarly, in the middle of February last year, armoured vehicles were deployed around London Heathrow airport to protect us from a surface-to-air missile threat. Both those victories—victories they were—were based on solid and profound intelligence. We deterred both those operations. Had we not done so, I suspect that the whole nature of today's debate would have been different. We have the men and women of our intelligence agencies and our police force to thank for that.
My last point has been made clearly, not least by the hon. and learned Member for Medway: we cannot allow our liberties to be compromised by bad laws. We must uphold the laws of this land. We must have effective and proper laws that reflect our particular brand of liberal democracy. If we do not, we give way to the pressures of the terrorists and we become as bad as they are.
First, this has been an outstanding debate. We have had some powerful and thoughtful contributions, which were almost exclusively on part 4, which I will address in a moment. I want to start with the issues that have been raised about other parts of the legislation.
The shadow Secretary of State spoke about freezing orders and identity fraud, and he has seen the reply in our response to the Newton committee. On the freezing orders, it is important that he notes that while we have used the Terrorism (United Nations Measures) Order 2001 up to date, there may be some time in the future when we will need to act on our own quickly. It is therefore important to keep that power in place. More generally, in relation to other parts of the legislation, the fact that some powers may not have been used much does not detract from their deterrent effect. That is an important point that the police and others have made to us.
My hon. Friend Hugh Bayley made specific points about part 12 and the bribery provisions. I am well aware of his long-standing interest in bribery, particularly bribery overseas. That relates to his concern about international development. [Laughter]. I am sure that my hon. Friend and his constituents will understand what I meant. I was casting no aspersions. Anyway, I can reassure my hon. Friend that we would not want to lose the powers in part 12 until alternative legislation was in place.
We heard speeches about other parts of the Act from two members of the Newton committee, the right hon. Members for North-West Cambridgeshire (Sir Brian Mawhinney) and for Berwick-upon-Tweed (Mr. Beith). I echo the Home Secretary's thanks to all members of the committee, particularly those from whom we have heard today. I will not comment on all the issues that they raised—I hope they will understand—but I trust they will accept that the Government's response to the report is serious and considered. The Government have a duty to respond to reports, and it is in the nature of things that we will not agree with everything in them, but according to my count we have agreed with, or said we are already consulting or acting on, about 60 per cent. of the committee's recommendations. I hope its members will accept that our disagreement with some does not negate our view of the seriousness of the work that has been done and the important contribution that it has made to the debate. Indeed, the Home Secretary's document states that the committee's work and that of Lord Carlile have helped to shape the debate that we hope will take place shortly.
Inevitably, today's debate has mostly concerned part 4 powers and whether, as the committee suggests, they should be replaced as a matter of urgency. The House has discussed the various alternatives that the committee, and Members who have spoken today, have suggested. My right hon. Friend the Home Secretary has already explained why the part 4 powers were introduced, and why we still need them. I think that the unprecedented and horrific attacks on
In the context of the potential for something of that kind to happen, may I point out that the Civil Contingencies Bill would almost certainly become operative? Given that the Home Secretary supports the Bill, will the Minister assure us that the test of reasonableness inherent in the 2001 Act will be applied to it, and that there will be no ousting of the courts' jurisdiction? After all, the Bill will overtake and possibly subsume the provisions of the Act.
I know that the hon. Gentleman is very exercised about the Civil Contingencies Bill. I can tell him that alongside the written statement on resilience that we placed in the public domain today are powers in the Bill—I think they are the powers that concern him—to be used in such emergencies. They are intended to enhance our resilience in the event of an attack, and will be used only in those extreme circumstances.
As Members know, the threat is real and the risks high and long-term. We face a public emergency that threatens the life of the nation. I am grateful to my hon. and learned Friend Vera Baird, who summarised the various sources of consensus on that point, but let me now explain why we think this particular threat presents us with challenges that are very different from those we have experienced so far. It is perpetrated by people in different groups in many different countries—and by people in loose, fluid federations—with no obvious political objective except destruction. That means that those groups are very difficult to penetrate, and gathering and evaluating intelligence is very difficult.
Moreover, the tactics, which include suicide bombings, mean that prosecution after the event is, by definition, totally irrelevant. So prevention of such attacks is critical, which means that our main source of evidence has to be intelligence and similar material, not evidence after the fact. Taking all those factors in the round, the hallmarks of our normal judicial system that we value highly—open court; defendants hearing all the evidence; bringing to court witnesses, whose lives would then be threatened—offer us no realistic prospect of prosecution in key cases. That is the dilemma that we face in the light of this new kind of terrorism.
So how are we facing this threat? First—this point is worth making, because it was not made particularly strongly today— we are prosecuting where we can under existing terrorist legislation and the criminal law. There have been six prosecutions under the Terrorism Act 2000 and convictions under other legislation. It is important to note that many convictions in relation to terrorist activity are not necessarily prosecuted under that legislation, but under alternative criminal legislation, a recent example being the arrest and charging of Mr. Badat in Gloucestershire. Initially, that arrest was made under the 2000 Act, but inquiries led to his being charged under the Explosive Substances Act 1883. Other current cases, such as those involving ricin, and the offences arising from the death of DC Oake, may involve the laying of other kinds of charges.
In looking at this issue, will the Minister reflect on the evidence that the Home Office gave to us in what was probably the most unsatisfactory of our evidence sessions? We asked what the Government's view would be if people whom they suspected of being terrorists were prosecuted under the rest of the legislative programme and sent to normal prisons. We asked what their assessment was of the risk of such people's propagating their terrorist philosophy, were they to be exposed to a range of people with whom they would not have contact under the terms of restraining terrorist legislation. The Home Office gave no effective answer. This is an issue that needs to be explored.
The right hon. Gentleman raises an important point, but I can assure him that the Prison Service and the other relevant agencies have well-established systems for dealing with people who present such a risk when in custody. We will use whichever means we can to get the maximum number of prosecutions, and the maximum level of sentence for any person whom we suspect of terrorism, whether it means using criminal law or not.
In terms of how we are dealing with the current situation, we also have the part 4 provisions. I want to make a couple of points about the Special Immigration Appeals Commission and the way in which the certification process has been used. Members need to understand that SIAC is not an inferior type of court. In fact, by definition it is a court of superior record, which is chaired by a High Court judge. There are hearings in advance of individual appeals that deal with disclosure. The special advocates have played a powerful and important role in challenging material that the Secretary of State has put to SIAC. During the appeals themselves, and in examining social security witnesses, the advocates have actively challenged material and raised relevant points of law. It is very important that Members understand the SIAC process.
I also want to put on the record a rebuttal of the contention of Mr. Hogg that because such people are in detention, the agencies would take their foot off the pedal in terms of reviewing cases and considering whether information has changed. That is not true. Every case is kept under active review by the Home Office, the police and the security services both prior to individual appeals and as part of the six-monthly and three-monthly reviews.
On the certification process, it is important to understand that Lord Carlile stated that the Secretary of State used his powers proportionately and certified people only in appropriate cases. Members will know that in the 11 individual appeals that SIAC has determined, all the certificates were upheld.
That said, it is right and important, for the reasons identified by hon. Members in the House today, that we debate widely how we should respond to the threats of the future and whether, as the Home Secretary said earlier, we can establish incrementally additional means of dealing effectively with the threat that we face.
The Newton committee—others have agreed today—believes that the powers of detention should be replaced, that all terrorists should be dealt with by the same route regardless of nationality and through means that do not require a derogation. That would be the ideal, but the question is how, at the same time as achieving those objectives, we can provide an effective response to the particular characteristics of the new terrorism that we face. That point was powerfully made by my hon. Friend Mr. Dismore.
Some alternatives have been proposed. Patrick Mercer himself provided a good critique of the limitations of intercept evidence. Terrorists know that we intercept them and the quality of the information that we glean is variable as potential usable evidence. Intercept evidence, investigating magistrates and surveillance all have potential as a package, but the difficulty is that, either alone or together, they do not overcome one of the main problems—the nature of the intelligence that we would want to present and how we protect the lives of the agents who provide much of that intelligence, often by infiltrating small groups of people.
My hon. and learned Friend the Member for Redcar spoke about using hearsay evidence. If a person were to say in court that someone told them that such and such a thing either happened or was said, the agent could and would be identified. I hope that our forthcoming debate will address that major obstacle.
We are not currently convinced that any of the alternative proposals mentioned today, even if taken together, provide a workable alternative to the part 4 powers. As the Home Secretary said, we face a challenge and the Government—and, indeed, the whole House—would be criticised if the country suffered a terrorist attack and we had not taken the necessary precautions. We need to balance the need to protect the nation with the need to protect the individual freedoms and liberties that are at the heart of our democracy.
The rights of the individual are central, but they are not confined to the rights of the suspected terrorist. Every member of the public, every family, every child has the right to expect the maximum security and freedom from harm in a mature democratic society. Our dilemma is how best to balance the rights of that majority and the rights of the few. It has to be a balance. To argue, as some have done today, that the rights of suspects—or the rights of the individual theoretically—in any process of prevention or prosecution must be supremely paramount is to deny the citizen's right to security. In our view, to say that the processes and principles of law as we know them already are the only ones possible is to deny the nature of the terrorism that we are dealing with.
As we go forward, I hope that we can maintain the spirit that we have had today. We have made an excellent start, and I enjoin the public to join in the debate, as it is in their main interest that the Government are acting.
Question accordingly negatived.
Main Question put and agreed to.
That this House takes note of the Privy Counsellor Review Committee Report on the Anti-Terrorism, Crime and Security Act 2001 Review (HC 100), which was laid before this House on 18th December 2003.
EUROPEAN COMMUNITY DOCUMENTS
Motion made, and Question put forthwith, pursuant to