The First Deputy Chairman:
With this it will be convenient to discuss the following:
Amendment No. 9, in page 22, line 3, after 'to', insert 'a'.
Amendment No. 10, in page 22, line 7, leave out 'special' and insert 'any'.
Amendment No. 92, in page 22, line 10, at end insert
'In sub-paragraph (4) of paragraph 29, at the beginning insert "subject to sub-paragraph (3AB) of paragraph 36.".'.
Amendment No. 29, in page 22, line 10, at end insert—
'(4A) In subparagraphs (1) and (5) of paragraph 36 (period for which warrants may be extended) for the words "judicial authority" substitute "High Court Judge.".'.
Amendment No. 28, in page 22, line 19, leave out 'three months' and insert '28 days'.
Amendment No. 30, in page 22, line 28, leave out 'judicial authority' and insert 'High Court Judge'.
Amendment No. 31, in page 22, line 33, leave out 'judicial authority' and insert 'High Court Judge'.
Amendment No. 11, in page 22, line 33, leave out 'special' and insert 'any'.
Amendment No. 93, in page 22, line 36, at end insert—
'(3AB) where the new specified period will end more than 14 days after the relevant time
(a) judicial authority means—
(i) in England and Wales, a judge of the High Court
(ii) in Scotland, a judge of the Court of Session
(iii) in Northern Ireland, a judge of the High Court of Northern Ireland.
(b) the specified period may only be extended—
(i) pending the result of an examination or analysis which is to be or is being carried out with a view to obtaining relevant evidence
(ii) for the purpose of decryption of electronic data with a view to obtaining relevant evidence
(iii) for the purpose of obtaining relevant evidence from outside the United Kingdom or from records within the United Kingdom which can not reasonably be obtained without such an extension of the specified period.
(c) the specified period may only be extended if the judicial authority is satisfied that there is no reasonable possibility of the detainee being charged immediately with another offence relating to the terrorism or a terrorist act.
(d) the judicial authority must approve the nature of any further questioning of the detainee during the new specified period.'.
Amendment No. 32, in page 22, line 45, after 'authority', insert 'or High Court Judge'.
Amendment No. 16, in page 23, line 11, at end add—
(9) An appeal shall lie from any decision of the judicial authority to a judge of the High Court.'.
Amendment No. 12, in clause 24, page 23, line 19, at end insert—
'(1A) In Schedule 8 to the Terrorism Act 2000, in paragraph 23(1) (grounds on which a review officer may authorise continued detention), at end of paragraph (a) add "but after the expiry of a period of fourteen days detention no further detention shall be authorised solely to obtain evidence by questioning.".'.
Amendment No. 13, in clause 24, page 23, line 28, at end insert
'but after the expiry of a period of fourteen days detention, no further detention shall be authorised solely to obtain evidence by questioning.'.
Amendment No. 17, in clause 24, page 23, line 40, at end add—
'(6) The Secretary of State shall, prior to the coming into force of sections 23 and 24, carry out a review of Code C of the Police and Criminal Evidence Act and produce a separate code to cover all detention under the Terrorism Act 2000 lasting for longer than seven days.
(7) Such code shall include provision to allow for the questioning of a terrorist suspect after charge, subject to leave being obtained from the judicial authority, and any such questioning shall be treated for all evidential purposes as if it had taken place prior to charge.'.
New clause 1—Extension of period of detention by judicial authority: duration—
'(1) The provisions of section 23 of this Act shall remain in force until one year after their commencement and shall then expire unless continued in force by an order under subsection (2) below.
(2) The Secretary of State may by order made by statutory instrument provide—
(a) that all or any of those provisions which are in force shall continue in force for a period not exceeding twelve months from the coming into operation of the order; or
(b) that all or any of those provisions which are for the time being in force shall cease to be in force.
(3) No order shall be made under subsection (2) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'.
New clause 3—Disapplication of Human Rights Act 1998—
'Sections 23 and 24 of this Act shall take effect notwithstanding the Human Rights Act 1998 (c. 42).'.
New clause 4—Definition of 'judicial authority'—
'For the purposes of sections 23 and 24 of this Act, "judicial authority" shall mean, in England, Wales and Northern Ireland, a person designated by the Lord Chancellor only where he is satisfied that the judge or magistrate in question has appropriate experience of determining terrorist cases and shall include judges of the Crown Court and High Court.'.
New clause 5—Detention under the Terrorism Acts—
'(1) Where under the Terrorism Act 2000, an Act amending that Act, or this Act, a person is in police detention or is otherwise detained, he shall have the right to apply for a writ of habeas corpus, or other prerogative remedy and to a fair trial in accordance with due process and the rule of law.
(2) Subsection (1) shall have effect notwithstanding the Human Rights Act 1998 (c. 42).'.
We now have to consider clause 23 and the extension of the period of detention by judicial authority from 14 days to the Government's proposed 90 days. A large number of amendments to the Government's proposals have been tabled and I shall come to those in greater detail in a moment. However, I should like to deal first with some of the principles that are involved. As the Government acknowledge, this country has always been firm and resolute in maintaining civil liberties, none of which is more important than the expeditious charging or release of individuals who are arrested. The grounds on which someone is arrested need be no more than the reasonable suspicion that an offence has taken place and that the arrested person is connected with it. The purpose of the initial police inquiry is to ascertain whether there is evidence on which a charge can be brought. If so, thereafter, the person is in the hands of the court system as the case proceeds to trial.
The Home Secretary will acknowledge that the proposals drive a coach and horses through that principle. We are not talking about 24-hour detention without charge or even the seven or 14-day detention period to which we have progressed, but a possible three-month detention—the equivalent of a six-month sentence passed after conviction. During that time, the police and prosecutors can look for evidence against the person in detention. The Government have a great deal to justify if they wish to proceed down that road. They cannot pray in aid other countries' systems to justify their proposals, which are entirely unprecedented in common law jurisdictions. In Australia, despite the terrorist threat, 24 hours remains the period for which someone can be held before charge or release. Even in countries where Ministers have suggested that arrangements are much more flexible, there is a system of inquisitorial inquiry that takes place only after the threshold for charge has been reached. In most instances, the period for which someone can be detained before charge remains extremely short. The Foreign Office has published a useful document on the subject, which I commend to all hon. Members. The present 14-day detention period in this country is at the limit of practices elsewhere, and the three-month proposal takes us outside accepted international practice.
Hon. Members should remember that, of 895 people arrested until September 2005 under terrorism legislation, only 23 have been charged. The figure may have changed in the past eight weeks, but I am not aware that it has done so. In the past, arrest was, quite understandably, regarded as something that could be used reasonably frequently because the period for which someone could be detained while initial inquiries were made was very short. Indeed, all the codes that were drawn up under the Police and Criminal Evidence Act 1984 and augmented to protect people in police detention were designed for short periods of detention, including opportunities for intensive questioning that disrupted the suspect's life and could last up to 18 hours in any day.
The Government's proposals in the Bill simply extend the period of detention to three months with a few safeguards, to which I shall return in a moment. However, they do nothing whatever to address the way in which a completely new regime of detention is to be organised. To take a practical example, very few police stations are suitable places in which to detain someone for three months—I am not even sure that Paddington Green is suitable. If we allow a detention period of up to three months, a suspect could be questioned for 18 hours a day, with the consequence that any confession or information obtained would be slung out by the judge as soon as the case came to court.
I can think of few proposals that seem to have emerged so quickly and been presented to the House with so little back-up as to how they would be implemented. The justification that the Government offer is that the Association of Chief Police Officers requested the measure. There was then the suggestion that it was supported by the security services. I noticed with great interest today that when the Prime Minister was asked about that at Prime Minister's Question Time, he told the House about the ACPO support but studiously avoided mention of any other supporting organisations, notwithstanding the fact that the Minister for Policing, Security and Community Safety had suggested earlier that such support from the security services existed. Will the Home Secretary confirm that the proposal is merely ACPO-generated?
I agree entirely with my hon. Friend. If this proves to be a system whereby people are detained for 40, 50, 60 or 70 days and released because, unfortunately, the evidence is not there, the impact on their relatives, and from their relatives into the wider community, could not be worse in undermining respect for the rule of law. We know, because the issues that we are considering have been driven by Muslim terrorism, that one of the things that have made this country such an attractive place for people to come, settle, live, work and bring up their families is the rule of law that we have sustained. So when it is suggested that we can, in a rather cavalier fashion, breach the principles of the rule of law to allow for quite long-term detention without charge, the Committee must approach that with great caution.
Has my hon. Friend noticed that the Government constantly repeat the excuse that the police want more powers? Does he agree that the police always want more powers? That is their institutional bias, but usually the solution is not more legislation and more procedures, but better use of existing legislation and existing procedures. Will my hon. Friend ask the Government to come up with a better excuse for authoritarian measures than that the security services and the police want more powers, which we have heard before?
I agree entirely with my right hon. Friend. The police should be listened to carefully, but the House of Commons and the Government should not give them a blank cheque. I regret to say that all my experience over the years that I have been involved in politics at local or national level suggests that we will end up with a police state—very nicely, by a series of ratchets. That is the logical consequence of such measures. [Interruption.] My right hon. Friend David Davis says a police state without the police. That is indeed one of the problems that we need to bear in mind. There is in many quarters a low opinion of the ability of the police to deal with certain sorts of crime, and very low levels of respect. That is allied to the perception that the police may be turning into persecutors of those who are innocent.
As a Member with a substantial Muslim community, I have not received one submission from my local Muslim community in opposition to the clause. My experience is that the great majority of the Muslim community want a legal process that enables us to identify those who are glorifying violence and exhorting people to violence, and that will provide the evidence to put those people away. Does the hon. Gentleman agree?
I am diversity spokesman for the Conservative party, which involves my contacting numerous Muslims both in organisations and as individuals, and that subject has frequently been raised as a source of anxiety.
I represent an inner-city constituency, which contains about 10 mosques. I have received many representations from members of the Muslim community against the proposals, which will disproportionately affect members of the Muslim community and members of the Asian community.
I take the hon. Gentleman's point. In fairness to Mr. Bailey, it is, of course, right that the Muslim community wants to see terrorists brought to justice and removed from the communities in which they may be living. Anybody who applies their mind to the statistic that I have read out—895 arrests and 23 charges—will see that the justice and policing systems are perfectly fallible in a human way, which is inevitable. If we are sending out a message that, far from picking up terrorists, we are picking up and releasing young men who turn out to be uninvolved and that no proof can be shown against them, people will get irritated, alienated, angry and upset—the very recruiting grounds from which some of our problems of terrorism currently come.
Does the hon. Gentleman agree that many members of the Muslim community—there is only one mosque in my constituency—have given up writing to Labour Members, who they know will not defend them on a fundamental civil rights principle, and are addressing their complaints and issues to Opposition Members?
Is there not a danger that if the police can hold a suspect for up to three months, they will feel that they have quite a lot of time and will not pursue the investigation with the urgency that they currently adopt? In some cases, an individual suspect will lose their liberty while time is wasted.
As we know from personal experience, work expands to fill the time available, which must apply to the police. Allowing the police to hold a suspect for up to three months sends them the thoroughly undesirable message that they can be slow in their work.
As we said to the Home Secretary on Second Reading, I am mindful of the fact that problems may arise in a number of areas. Breaking encryption codes has been adduced as an example of something that may take longer than 14 days to achieve, but I am not sure about that point, because there is a separate offence of failing to provide an encryption key. Indeed, the Bill will make that offence punishable by five years' imprisonment in a terrorist case, which we support, and it will certainly enable a holding charge to be brought if somebody does not provide the encryption key to their computer.
I want to make it clear to the Home Secretary that I am mindful of the fact that further information sometimes needs to be obtained from abroad, which can take time. One of the problems is how suddenly we have moved from 14 days in which to do such work to 90 days, which is not a slight increase.
My hon. Friend has tabled amendments Nos. 12 and 13. Amendment No. 13 states:
"but after the expiry of a period of fourteen days detention, no further detention shall be authorised solely to obtain evidence by questioning."
May I take it from that that 14 days would not be regarded as the limit in those circumstances? What limit does my hon. Friend regard as necessary to accommodate the serious points that have been made by the police, the security services and others?
I am grateful to my hon. Friend for intervening on a point of very great importance. As drafted, the Bill simply takes the old rules and extends them, with one or two very minor adjustments, to three months. One of the grounds it gives for continuing detention beyond 14 days is the need to continue questioning a suspect. If one has not found out what one wants from a suspect in 14 days of questioning, I cannot think of a conceivable legitimate reason that, on its own, can be a ground for further detention.
Of course I accept that one might want to question the suspect if new evidence has been obtained or if some new matter is to be put to him, but to say that he can be detained beyond 14 days merely for questioning strikes me as a very unpleasant concept—yet that is what would result from our passing the clause as it stands. That is why I tabled an amendment that would still allow detention—one of the safeguards that I shall discuss in a moment—but would make it clear that one of the grounds for going to a judge and saying, "We want to keep him for more than 14 days", cannot be, "We just want to keep him so that we can ask him some more questions." There must be a reason for asking those questions—for example, because fresh material has come to light.
The hon. Gentleman knows that the purpose of detention is not just to question but, perhaps, to obtain evidence, or other purposes. He described it as a blank cheque, but it is not, as he well knows—the proposal is for 90 days. How would he feel as a legislator if after 40, 50 or 60 days without any evidence being found somebody was released and killed dozens of people?
I have to accept that in this country today there are likely to be, for all I know, a large number of people who have committed undetected crime, including crime of very great seriousness. In some cases, the police may well have suspicions about such individuals, but that does not justify their arresting or charging them. The logical conclusion of the hon. Gentleman's argument is that detention without trial of those who are suspected of one misdemeanour or felony after another can be allowed.
Does my hon. Friend agree that there is no logic in choosing 90 days that would not apply to 120 days, 360 days or permanent detention? Moreover, if the 850 people who were released after 14 days were unhappy about the inconvenience, they would be considerably more unhappy if they were in prison for 60 or 70 days, and would not the effect on community relations be very severe?
I agree. Indeed, my right hon. Friend the Member for Haltemprice and Howden asked the Government to give examples of cases where 14 days had been insufficient, the person had been released and evidence had come to light over the following few weeks that would have justified a charge. I believe that I am right in saying that he was given just one example. One has to query on what basis the Government wish to extend the powers, and the duration for which they wish to do so.
I want to bring the hon. Gentleman back to his important point about encryption and section 53 of the Regulation of Investigatory Powers Act. The Bill would increase the penalty from two years to five years for offences under a section that gives the police the power to charge someone who refuses to hand over the encryption key. However, after five years that section has still not been brought into force. The Government are withholding from the police a crucial tool in their fight against terrorism, and are now asking us to increase the penalty for that offence.
The hon. Gentleman is right. I never cease to be amazed at the number of hours that I have spent in Committee labouring over various Bills only to discover either that bits of them were never implemented or that we were amending bits that had not yet been implemented. Indeed, on one occasion, we were repealing provisions that had not been implemented. Such is the astonishing volume of business transacted by the Government that appears to have little effect, despite the amount of effort and the hours spent by Members.
Does the hon. Gentleman face the same dilemma as me? When we are dealing with legislation on terrorism, I am disposed to give the police, and indeed the Government, the benefit of the doubt, but a change from 14 to 90 days surely requires a rationale. If the only rationale is that the police are asking for the change, it is difficult for any of us to justify a move from 14 days. Do not the Government have a responsibility to show us why they require the additional time? They cannot simply say that they need more time to look at closed circuit television footage or to make inquiries abroad; they must be able to tell us why that requires 90 days rather than 30.
I agree entirely with the hon. Gentleman, whose comments highlight the problem. I want to make it clear to the Home Secretary that the Conservatives have never said that there can be no movement from 14 days. As he can see, we have deliberately not tabled amendments suggesting other periods, as it seems to us that the first thing that the Government must do is to engage in dialogue with the Committee about why the period of 90 days has been chosen and why other possibilities, ranging from 15 days to 90, would not be equally feasible and meet their need. I am conscious that Labour Back Benchers have tabled an amendment that provides for 28 days—an interesting period, because it strikes me, from my discussions with members of the legal profession, that it is probably at the outer limit of what would currently pass scrutiny under the European convention on human rights. That is a subject to which I shall happily return.
If by any chance the Committee were to move to 28 days, does my hon. Friend agree that revised codes would be required to ensure that questioning was not over-intrusive at the latter stage of that period?
I agree entirely. That is included in one of my amendments.
I want to move away from the generalities and pause to consider the individual amendments so that the Committee can understand our approach.
The hon. Gentleman said that he would discuss warrants for further detention, but I have listened carefully to his remarks and so far he has not done so. Does he agree that the judicial procedure for which those warrants provide is a substantial safeguard against detention for an extended period with no authority at all?
The hon. Gentleman is right. There is a procedure, especially under clause 24, to deal with scrutiny of the grounds for continuing detention—the amendments cover clauses 23 and 24. I am pleased that the procedure is in the Bill, but I have to point out to the hon. Gentleman that similar provisions already exist. Our amendments aim to provide more safeguards in that process.
We do not need to look to the future to realise that the relationship between the public and the police is delicate. We only have to go back to 1984–85, a period that many Members will remember; the divisions that were caused between the police and the public in mining communities still exist today. It is extremely important that we get the measure right, as if a number of people are arrested in particular areas, with a 90-day penalty, I envisage the same divisions occurring.
I agree that policing in this country has always been done by consent—that is the fundamental basis on which it happens. There are occasions—I acknowledge that the miners' strike was one—when the principle of consent is seriously eroded. We can argue about necessity, but I do not dispute that the miners' strike caused such an erosion, and there are plenty of other examples. It has occurred in some ethnic minority communities and it happened before the Brixton riots. One might say that that is sometimes inevitable, but one should always bear it in mind that it happens and consider the consequences. Far from making the country a safer place, it contributes to some of the problems from which we suffer. Once consent is withdrawn, policing has to become more heavy-handed, the local community participates less, general crime rates increase and communities begin to suffer badly, becoming thoroughly dysfunctional. We must have regard to that because if we do not, we simply dig a hole for ourselves.
The hon. Gentleman misses the point. I cannot think of any law-abiding community in this country that does not call for more police. Indeed, that reinforces the Government's signal failure to implement community policing. However, in communities where a breakdown in relations occurs between the police and the local people, more police are not requested and people complain about routine and regular police action. That has happened on numerous occasions. Frankly, if the hon. Gentleman has not witnessed it, he must live on another planet. I witnessed it when I stood as a candidate in south London in the late 1980s for a constituency that included Brixton, and I have witnessed it in my work in the past three years when I have travelled to areas where there is poverty, deprivation and large ethnic minority populations.
No, I hope that the hon. Gentleman will excuse me.
Amendment No. 8 is a probing amendment, and is designed to discover the reason for the decision that applications for a warrant of extended detention should no longer be made only by the police but by the Crown prosecutor. The Home Secretary may have some perfectly sensible answers, but I wanted to know the reason for the extension—it is not clear—and what role the Crown Prosecution Service and similar services in other parts of the country will play in determining applications. Hitherto, applications have been made by the police. Of course, I know that the Crown Prosecution Service plays a greater part in the charging process, but I hope that we can have some explanation.
We tabled amendment No. 9 because the Bill is poorly drafted and the amendment deals with one example of that. The sentence to which it applies makes no sense and I assume that the word "a" is missing. However, it highlights the fact that the Government have plunged into legislation in some haste.
Amendment No. 10 is important. It deals with the way in which the court should regulate the process whereby extended detention takes place. The Bill provides that the police or the prosecutor can ask for an extra seven days. I cannot understand why seven days have been chosen. If someone has been in custody for 32 days, I can think of no reason why the court should not be entitled to say, even in ordinary circumstances, "You can have another 48 hours and no more." Under the Bill, the court can do that only if special circumstances warrant it.
Let me give a first example of our attempts to improve the Bill. If the Government are to depart from the 14-day rule, the court must play a much more proactive role in determining whether days of detention are justified. Indeed, there is an argument that that should apply to the seven-day rule before the first extension. Simply returning to court on a weekly basis and asking for another seven days is not good enough. The amendment seeks to provide a greater opportunity for the court to exercise its discretion.
Amendment No. 12 deals with a point that we discussed earlier—namely, that it is quite wrong that further detention should be allowed solely to obtain evidence by questioning. Of course I appreciate that questioning is an important part of ascertaining whether an offence has been committed, but the reality is that the vast majority of those arrested for alleged terrorist offences usually decline to comment. Alternatively, they might be wholly co-operative because they believe that they will be able to exonerate themselves by providing a complete explanation. I cannot believe that 14 days is not long enough for that process to take place. If detention were to be allowed beyond 14 days merely for questioning, the courts would soon start to find such conduct oppressive.
That might well be possible, but my amendment would not prevent that from happening. It would allow further detention, and questioning, to take place, provided there were some reason for that questioning, rather than for the purpose of obtaining evidence solely through questioning. For example, if the police were to say that they would have the results of forensic tests coming from another country in four days' time, and that they wanted to put those results to the defendant, I would not have any problem with extending the detention accordingly. I do, however, have a problem with the suggestion that the purpose of the extended detention should be solely to continue to ask questions, when there is no basis for doing so. The Home Secretary might come up with a different formula, but we need to look at this provision.
Amendment No. 13 deals with the PACE codes. I think that the Home Secretary would agree that the codes, as they stand at present, are not designed to deal with people under long-term detention. We need a completely separate set of PACE codes to cover terrorist cases in which detention is to last more than seven days. For example, the number of hours in a day for which a person can properly be questioned ought to be drastically reduced from the present amount. That would be as much in the interest of the police and those making the inquiry as of the defendant or suspect.
The process of questioning is not designed to break someone down. We are not dealing with Guantanamo-style interrogation here—at least, I hope we are not. I hope that the process is designed simply to enable someone to answer allegations that have been made against them. However, there is a long history of people confessing to things that they have not done—not necessarily as a result of police culpability—because the environment of being held in a police station is, by its nature, oppressive. Those people might be suffering from personality problems, or whatever it might be that makes them susceptible to doing that. Nothing is better designed to create a miscarriage of justice than the coming together of those different circumstances.
So, we need new PACE codes. I cannot do anything to incorporate such codes into this Bill, because they have to be passed by the House by means of a statutory instrument. However, I am seeking an assurance from the Home Secretary that there will be new PACE codes, and that they will reflect the extended period of detention.
The hon. Gentleman's argument is based on the premise that the extra time is required solely for questioning, but if he looks at the Bill he will see that the further detention of a suspect may be deemed necessary
"to obtain relevant evidence whether by questioning him or otherwise".
This is not just about questioning; it is also about giving the police time to find evidence elsewhere. The hon. Gentleman should stop basing his argument solely on the questioning element.
If I might say so, if I had intended to interfere with the right to detain somebody for other reasons, I would have spelt it out in my amendment. I have not done so, precisely because I accept that there may be reasons, in those circumstances, for detention being justified.
The other part of amendment No. 17 deals with the fact that I believe that the PACE codes could do with being reviewed in terms of the questioning that can take place of an individual after charge. Historically, there have been good reasons for not allowing questioning after charge, except in exceptional circumstances, but if that needs attention perhaps the Committee should consider providing it.
I am grateful to the hon. Gentleman, who is being extremely generous in giving way. It is clear from previous amendments, particularly amendments Nos. 12 and 13, and from what he has said today that going beyond 14 days is not a point of principle for him and that he would contemplate it. However, does he agree that 28 days, which he says is perhaps at the edge of what might be allowed under European conventions, might be a suitable compromise and much better than his proposed new subsection (7) in amendment No. 17, which represents changing the principle as opposed to the number of days involved, whether 14, 28 or 90—that is, questioning after charge? I would find that much more undesirable, and I thought he would as well.
I am not sure that it would be a huge change in principle, because if the hon. Gentleman looks at paragraph 16.5 of PACE code C he will see that questioning after charge is already possible. My understanding from the police is that it is being used increasingly frequently, and in my view perfectly fairly. However, there are issues, one of which is whether an adverse inference should be drawn from silence to further questions after charge.
I say to Rob Marris that my view is that if there is a satisfactory judicial safeguard of being able to apply to a court for permission to question again, giving valid reasons for it—provided that is done in the presence of a solicitor and within all the other safeguards—I do not see why some questioning should not take place after charge. If there was silence, an adverse inference could be drawn from it.
I do not believe that that would be such a departure from principle as the hon. Gentleman fears. In practice, this is an incremental change, and there is an argument that the protection, while important, may be quite archaic in relation to how it was introduced. While I do not want it to disappear entirely, if there is a choice between charging somebody with, for instance, a lesser offence and wishing to revisit the circumstances while he is detained, probably in custody pending trial, I am much more comfortable with that than keeping somebody for 90 days without charge. We ought to consider that.
We can also consider who reviews the process. My view is that it should be done by a senior circuit judge—Lord Carlile shares my view—and there should be a right of appeal to the High Court. Currently, a circuit judge may undertake the review, but that can also be done by a district judge. The supervision of that process ought to be taken to a higher level.
I thank the hon. Gentleman for giving way. Does not Lord Carlile also say that he has no problem with 90-day pre-charge detention; he is just concerned about the safeguards that are in place? The hon. Gentleman is prepared to cite Lord Carlile in one example; why is he not prepared to do so in that important example?
I have no reason to doubt Lord Carlile's sincerity in presenting his proposals. He says a great deal on this. If the Home Secretary provided all the safeguards that I want, that would be a constructive step in deciding whether 14 days could be extended. The ball is very much in the Government's court. We have a problem because it seems that the safeguards are not being provided and a huge extension is being sought. I do not regard that as satisfactory.
I am grateful to my hon. Friend for giving way. Has he not made an important point on Lord Carlile's proposals, because what Lord Carlile says is based on the assumption that all the proper safeguards are in place? As the Bill stands, we cannot say that the safeguards he contemplates are in place.
No, they are not. The Home Secretary asked for a real effort to be made to try to achieve consensus. That requires listening in Committee, as there is no other point at which we can make representations, and coming back expeditiously with ideas. Otherwise, we are left with the impression that this is a one-way system in which we are asked to make the concessions and the Government give us nothing in return. As I said to the Home Secretary, the Bill must be in proper condition when it leaves this House, not at some mythical point in the future.
New clause 1, tabled by Government Back Benchers, to which I have readily added my signature to those of my hon. Friends, provides a mechanism for a sunset clause on the extended powers, which will be renewable by statutory instrument. In the past, that is how we have dealt with extraordinary terrorist powers, and I very much hope that that is how we deal with such powers in future. If we embark beyond 14 days, we are moving into uncharted waters, which causes many Members on both sides of the House a great deal of disquiet. I therefore hope that the Home Secretary will acknowledge that if the powers are introduced in any shape or form, it will be on the basis that there will be an annual debate in which Parliament can bring them to a halt if it is unhappy with their operation.
My hon. Friend very shrewdly avoided the elephant trap that had been laid for him by Rob Marris and I hope that he will not now fall into an alternative trap. May I put it to him that it is not merely a question of safeguards or of the existence of a sunset clause, valuable though both those things can be, but of the evidential base, if such base there be, for an extension of time? It is not a matter of saying, "Some people think two plus two is four, others think two plus two is six, so we will compromise on five." It must be a matter of principle, and the Government have not yet made a case, by providing examples, for any sort of extension. We cannot accept some sort of cobbled-together compromise in the name of a quiet life.
My hon. Friend is absolutely right, and that brings me to the conclusion of the points that I wanted to make.
We will listen to what the Home Secretary has to say in response to what I think will be widespread disquiet about the proposals. That will colour what we do at the end of the debate. There are several options. There is an amendment allowing for 28 days' detention. I indicated that I did not want to get drawn into the question of periods, but if I remain dissatisfied at the end of the debate about three months' detention, 28 days is certainly a lesser evil and more readily controllable. On top of that, we will have to consider seriously whether we can support the clause at all. While there might be justifications, if the Government cannot give them in the course of debate, there can be no basis on which we can sign up to it. If we simply allow it to drift to Report next Wednesday, all that that does is to defer the clash that will come.
In the past, when dealing with these Home Office Bills, I have on several occasions ended up standing up at the Dispatch Box late at night on ping-pong between this House and another place, which has acted as the only protector of civil liberties in this country. I do not want to do that again if I can avoid it. It is an unsatisfactory process, as the Home Secretary acknowledged the last time it happened, just before the general election. I therefore hope that the Home Secretary will take in good part the comments that have been made and respond positively. But if, as I slightly fear, the Government simply intend to bulldoze their way towards 90 days, without providing the foundations for doing it and the safeguards that should surround it, we will not be able to support him, and indeed we will oppose him vigorously.
I want to speak to the amendments tabled by me and my hon. Friends, which relate particularly to the period of 28 days and annual renewal.
Mr. Grieve concluded his remarks with a reference to the House of Lords. Clearly, some Members outside the Government—perhaps in the Government as well—have no reservations at all about the 90 day-period, are absolutely happy with it, and so be it. We do have reservations. Obviously, I have many reservations, to say the least. However, I do not work on the assumption that it does not matter what we do here, because we know that the House of Lords will not agree to 90 days. My view is not that we should leave it to the House of Lords but that the elected Chamber should try to reach a consensus, which is why I have tabled amendments in what I hope is a constructive way.
I accept that the issue is controversial. Detaining people without charge is in itself controversial. I have gone along with it on the basis that we face an acute terrorist threat. I am not one of those who have, at one time or another, minimised the terrorist threat. Indeed—not just shortly before 7/7 but in the Home Affairs Committee and in questions to Ministers, under the previous Administration as well as since 1997—I have referred to the threat of terrorism and the fact that people come into this country who want to cause maximum damage. I leave aside those who were responsible for 7/7. I wondered why such people had been allowed into the country in the first place.
Perhaps we can reach a consensus, however difficult that may be. I am willing to go along with the notion that a longer period than 14 days is required. I do not stand fast on the 14 days, or I would not have tabled my amendment. There are those who oppose any increase, including, perhaps, other Labour Members, and there may be some who argue that there should be no period of detention at all. There are also, as I have said, those who are happy with what the Government propose. My view is that a direct increase from 14 days to 90 is not justified. I have heard no justification, apart from the Home Secretary's statement that the police happen to share the Government's view. I do not think that that is sufficient justification. I do not think that jumping from 14 days to 90 is justified simply because the Home Secretary has been told—and if he says he has been told, I am sure that he has—that the police asked for the extension. That does not strike me as right, or as fulfilling the functions of the House of Commons.
My hon. Friend is probably aware that the police have given their reasons for supporting the 90-day period. First, it would allow time for computers to be decrypted. Secondly, it would give them time to gain access to difficult sites where forensic evidence might be stored, such as tube trains. Thirdly, it would allow time for difficult negotiations with other police forces around the world, in which communication might be difficult and interpretation might be required. Does he not accept those technical grounds? Perhaps, rather than engaging in a Dutch auction to decide on the number of days, we should accept the police's technical reasons.
Would my hon. Friend say the same if the police favoured four months, six months or nine months? Of course the police will try to justify the extension. We all recognise that they have a very important role to play in defending our country, but I do not agree that the fact that the police have said this, that and the other is sufficient reason for the House to go along with it.
What my hon. Friend Mr. Hendrick says is not borne out by statistics. Since the change in the law in 2004, there have been 11 instances of detention for 13 to 14 days, and in all of them the detainee has been charged. There have been 12 instances of detention for between seven and 13 days, and in all of them the detainee has been released without charge. In none of those cases has someone been rearrested once the computer has been decrypted or further evidence has been gathered. I know of no case from the past two years in which an extension to 90 days would have been justified.
I refer the hon. Gentleman to last Wednesday's debate and to his exchange with the Home Secretary, who said:
"In Committee, on Report and otherwise, I am ready to be flexible in discussions, if we can reach an agreement. Furthermore, it would be better if the House resolved the matter rather than left it to the other place, but that requires both sides of the House to work constructively to reach agreement."—[Hansard, 26 October 2005; Vol. 438, c. 332.]
Has there been any constructive engagement with the hon. Gentleman?
Any private conversation that may or may not have taken place between my right hon. Friend the Home Secretary and me will remain private. I see no purpose in having private gatherings—if there were any such gatherings—and then telling the House of Commons. But I am sure that in responding to the debate, my right hon. Friend will explain again what he said last week, and I will listen very carefully.
I have repeatedly been asked whether I will force the amendment to a vote. I do not know. I am minded to do so at this stage, but I am a flexible sort of person—as I have always been—and I shall listen very carefully to what my right hon. Friend says. The gap between the Government and me on terrorism is pretty narrow. We recognise the dangers, and that certain emergency powers have to be taken. We recognise that 7/7 is not necessarily a one-off, leaving aside 21/7, which we must not speak about because it is sub judice. Does anyone in this House believe that there is no acute terrorist threat? Does anyone believe that the massacring of totally innocent people that took place on 7/7—they included Muslims, as well as Christians, Jews and Sikhs—cannot happen again this year? The differences between my right hon. Friend and me are pretty narrow, but they are extremely important, otherwise I would not be speaking to these amendments.
I have no doubt about my hon. Friend's genuineness and sincerity in this matter. The police have made a case for a maximum period of 90 days. He may have some difficulty with that, but what persuaded him that 28 days is the right figure?
My hon. Friend will be pleased to know that it was not a research assistant, because I do not have one. The period has been increased from seven to 14 days and in my view, doubling it to 28 days is reasonable. There is no great mystery here; no one is suggesting that anything underhand has happened. I feel that 28 days is a reasonable compromise. I doubt whether my hon. Friend will agree, but he has made his point.
Is it not true that the 90-day proposal will violate article 5.3 of the European convention on human rights? My friend will have studied these matters, and we heard from the Opposition that 28 days takes us to the outer limits of what is acceptable. Does he share that view?
My hon. Friend rightly described himself as flexible, so I put the following point to my honourable, flexible Friend. The 28 and 90-day periods have been discussed at great length in public and behind the scenes. The argument for a 90-day period is based on certain evidence put forward by the police, but some of us are struggling to understand in what way the 28-day period is scientifically accurate. Many Members are worried that establishing a 28-day period following discussions in the House today will not give the police and the intelligence services the flexibility that they need.
My hon. Friend is reiterating the point made by my hon. Friend Mr. Hendrick. My hon. Friend Huw Irranca-Davies is clearly satisfied with 90 days; indeed, if the period in question were longer, he would probably argue that the police consider it necessary in the circumstances. If he is satisfied with 90 days, as he clearly is, and if there is a vote, no doubt he will vote accordingly.
My hon. Friend is being very generous in giving way, and I do not think that there is a great deal of difference between our positions. However, although he said, correctly, that the idea of 90 days had been put forward by the police, he did not acknowledge that Lord Carlile, an eminent expert on this subject who has been involved in reviewing terrorist legislation, totally concurs and supports that limit. Surely that gives the 90 days further credence.
No, I do not.
The Bill provides that detention would be divided into steps of seven days, and extensions would have to be applied for from a "judicial authority". Some of my amendments say that that should be a High Court judge. I hope that there will be no controversy or opposition to that from the Home Secretary. After all, if we are to detain people for such a time, the judge involved must rank higher than a district judge.
As the hon. Gentleman may know, I tabled a fairly similar amendment, and there are one or two others as well. The key factor is that there are High Court judges who would be completely inappropriate for such an exercise. Does he agree that it would be better to be sure that the person involved had been designated by the Lord Chancellor, as prescribed in the legislation at large, on the basis of appropriate expertise on terrorist offences? There is a cadre of people who are particularly well qualified.
I thank my hon. Friend for his generosity in giving way. Does he accept that with the 7/7 bombings, it took two weeks for the emergency services to gain access to all the sites, and a further six weeks for them to complete their examination? Had there been a surviving culprit—which of course there was not—28 days would have been too short. Does he agree that our experience of terrorist incidents so far points to the need for a period longer, on a renewable basis, than 28 days?
I was listening carefully to what my hon. Friend said about High Court judges, but can he draw a distinction for the House showing why a High Court judge is necessary, as throughout the judicial system we accept that judges at all levels can send people to prison for much longer than 90 days? Why would we need a High Court judge for just 90 days?
If I may say so, with all due respect to my hon. Friend—whom I genuinely respect—that is the most surprising intervention that I have had. Here we have people who are being detained with no charge whatever. We recognise the necessity to detain them, although certainly not for 90 days—but my hon. Friend then asks why we should worry about what sort of judge is involved. We worry because we are concerned about the rule of law. We worry because we want to ensure that, as far as possible, people who are being detained in that extraordinary situation have their cases examined by the highest possible category of judge.
I find my hon. Friend's question surprising, because this is a parliamentary democracy: our job is to defend the rule of law and the idea that in the main, people should not be in prison, or detained in any way, unless charges are brought. My hon. Friend says, "Why worry about it?" Why not let it be dealt with by some junior magistrate, perhaps, and have done with it?
No, I shall make some progress now.
Home Office figures show that 357 people were arrested between January 2004, when the 14-day maximum detention period came into force, and September of this year. Of that total, 36 people were held for more than seven days. Last year, moreover, nine people were held for 13 to 14 days. So far this year, two people have been held for the same period of time. All 11 of those held for the longer period have been charged. It is interesting to note that the 14-day period has been in operation only since January last year. That is less than two years, but today we are being asked to jump straight to extending the period to 90 days.
I have said already that we are concerned with the rule of law, but if we are not also concerned with civil liberties, we should not be here. Our job is to marry up the rule of law and civil liberties, in the circumstances of the acute terrorist danger that faces this country. Those who are content with the 90-day proposal clearly believe that it strikes a proper balance between civil liberties and safeguarding our country, but I do not agree. It is essential that we in the House of Commons are extremely careful about detaining people for a period when no charge is made.
It is true that, in previous periods of British history, it has been necessary to detain people. I was about 13 or 14 when I learned about what happened in 1939, when the country faced the gravest possible danger. At that time, the leadership of the Mosleyite gang was locked up, under what were known as the 18B regulations. In the circumstances that prevailed at that time, I am sure that the decision of the House of Commons was absolutely right. Incidentally—and I am not trying to make a party-political point—one Conservative MP who was also detained tried to table questions from Brixton prison. As I understand it, the Speaker of the day ruled that he was not in a position to do so.
The terrorist danger today is acute, but the situation is very different from the circumstances of 1939. We must try to find consensus and a reasonable compromise in this matter. As we have heard in interventions, some hon. Members believe that setting a maximum of 90 days' detention is the right way to proceed. Clearly, I do not believe anything of the kind.
I hope that we can reach an agreement on 28 days, and that the Home Secretary will recognise the result of our deliberations. If there were to be a free vote on this matter tonight, does anyone doubt what the House's decision would be? Would we opt for 90 days, or 45? I think that the answer is pretty obvious, unless it is argued that those of us who support the amendment do not recognise the extent of the terrorist danger that we face as clearly as others do. However, I do not believe that that argument would be correct.
For 30 years, the IRA was committed to terrorism, and it carried out terrible bombings and other atrocities on the mainland and in Northern Ireland. In that period, we did our best to protect the Irish community. We made sure that ordinary Irish people were not stigmatised or held in any way responsible for what that bunch of murderous gangsters was doing.
In the same way, we must extremely careful in our approach to the Muslim community. We know where the terrorist danger comes from. When the IRA was committed to terrorist action, it was no use looking for Muslims, Hindus or anyone else to blame, as we knew that the terrorism was being carried by people from Northern Ireland or the Republic. Similarly, we know that the terrorism that we face now is being perpetrated by a small number of people who are totally isolated, from both the Muslim community and from wider society.
If we pass into law measures that are seen by the Muslim community as against their interests, we could be in danger, if we were not very careful, of antagonising the very people whom we want as our firm allies—even though that would be the opposite of our intentions. The overwhelming majority of Muslims are against terrorism, just as the overwhelming majority of Irish people said time and again, whenever given the opportunity, that regardless of their views on Northern Ireland and whether there should be a united Ireland, they saw no justification for what the IRA was doing.
I hope that, in reaching a consensus on a sensible approach to this matter, and if my right hon. Friend the Home Secretary shows the necessary flexibility and understanding of our concerns, we will be careful not to antagonise the very people who need to be protected. As I said earlier, Muslims were among the victims of
No, I am coming to a close now. If my right hon. Friend also says that on Report he will come much nearer to our position, it will be for the House to decide whether we should divide on the issue.
I have read carefully the hon. Gentleman's proposals and listened to what he has said. They would offer an opportunity to the House to achieve an early resolution of the issue if he were minded to press the matter to a Division and Members felt that it was worth doing. Without it, the danger is that relations will become more corrosive. That is a real threat if the Government do not start to listen to the fears that are being expressed.
No, I am concluding my remarks. My right hon. Friend the Home Secretary will have the opportunity in a few moments' time to demonstrate that he understands our concerns and to show flexibility. We can then reach the sort of compromise that is essential on this issue.
It is a pleasure to follow Mr. Winnick. If the Home Secretary or the Government had any doubt about the disquiet felt on both sides of the House—I doubt that they did—about this proposal and others in the Bill that have already been debated, they will have been disabused of that doubt by the result of the Division earlier and by the speech that we have just heard and interventions in it by Labour Members.
I wish to pick up two points from the hon. Gentleman's remarks. First, he asked for consensus and compromise. I am wholly in favour of consensus on this issue and it is important that we reach it. I am less convinced that compromise would be consensus on this issue. It worried me slightly when the hon. Gentleman said that if the Home Secretary were to come some way towards 28 days, we would make progress. That sets new parameters for that compromise of between 90 days and 28 days. Some of us believe that if something is wrong, it is wrong. It is as simple as that.
No. The hon. Gentleman might at least allow me to make my introductory comments.
Secondly, the hon. Member for Walsall, North said that there was very little that divided him and the Home Secretary. I hope that very little divides hon. Members on the sensitive issue of terrorism. I hope that we are all aware and convinced of the serious threat that this country faces. I hope that we are all convinced of the need to take the most appropriate and effective action to combat that threat. The point on which we differ is whether the Government's proposals are the right response to the latest event or to likely events.
My party and I are not convinced of the case for 90 days. In fact, I suspect that the Home Secretary is not convinced. There are media reports drawn from what appear to be wholly credible sources that he said,
"I believe there is room for debate about whether we should go as far as three months".
That suggests the presence in his mind of doubt regarding the appropriateness of the proposals.
The hon. Gentleman is absolutely right. The right hon. Gentleman is a Home Secretary with whom we would like to do business. We believe that there is a degree of consensus between us—the same could not always be said of previous Home Secretaries. We have had more difficulty with some of his predecessors.
What we cannot accept is that the new proposal for 90 days should be proceeded with on the simple assertion that it is necessary. The matter is not trivial; it is extremely important. The question facing us is whether we detain someone without trial and without charge for three months. That is not the British way of doing things. That is not how we conduct judicial processes in this country. Let us be clear: if we allow the 90-day detention period, we have allowed at least a partial victory for the terrorists.
That brings into question some old-fashioned concepts that I believe are still important, and I am happy to know that other hon. Members agree with me. Those concepts include liberty, justice and the rights of the citizen, whoever they may be, to a proper hearing before the law. That there are a few who would support 90 days—or 90 years—if that is what the police asked for trivialises the debate. This is a serious debate, which we should approach in a sensible manner.
No one wants to play politics with the issue and I take the hon. Gentleman's word regarding his sincerity. The Liberals say that they oppose on principle an extension beyond 14 days, so am I correct in assuming that if the amendment tabled by my hon. Friend Mr. Winnick is pressed to a Division, they will not vote for it?
I do not know whether the hon. Gentleman thinks that he is making a clever point, but I assure him that he is not. The principle is that we in this country do not hold people without charge and without trial. That is the starting point, which is mitigated by the necessity of concluding investigations and of proceeding in a judicial way. If, as I hope he will, the hon. Member for Walsall, North presses his proposal, the question facing us will be: is it better to have 90 days, as in the Bill, or 28 days? I take the view expressed by Emily Thornberry, who is now grinning, thinking that she made a clever point. Twenty-eight days is 62 days less than 90 days and is therefore to be preferred, but it is still not what we want in the Bill. We have made that abundantly clear throughout our proceedings.
I thought that I had just dealt with the principle involved, which, as I say, is about the balance that we must all strike between the appropriate civil liberties of the subjects in this country and what is required for the defence of our wider liberty—our safety. We are debating where that balance should be struck.
No, I will not give way; I want to make progress.
In support of his proposals, the Home Secretary has prayed in aid jurisdictions other than our own, but Mr. Grieve was right to say that that is not a proper comparison. For a start, we can compare ourselves only with other common law jurisdictions. We can compare ourselves with a jurisdiction that is based on a wholly different premise of law only if we take a holistic approach to its proceedings. Simply isolating one procedure from many gives an entirely false impression of other jurisdictions.
Did not Lord Carlile say in his report that he would be far more comfortable with the proposed changes if the process were not adversarial but inquisitorial, similar to that in other European jurisdictions?
Lord Carlile did say that, and I will come to other things that my noble Friend has said, because so far in this debate his name has been taken in vain.
What is proposed is a judicial innovation, but there are others that we would like in order effectively to combat the threat of terrorism. The measure cannot be considered in a vacuum and to say that it is the one thing that is needed in order to allow the police to do their work ignores all the legislation over recent years that successive Home Secretaries have brought before the House to be voted through and enacted. Indeed, that claim ignores various other measures in the Bill.
Let us deal with the critique of the proposals and for a moment assume that the 90-day period has been made law. Lord Carlile said:
"I question whether what is proposed in the Bill would be proof to challenge under the Human Rights Act given the length of extended detention envisaged."
That is not the ringing endorsement of the proposal that some Labour Members have suggested. Lord Carlile went on to set out clearly his preferred alternatives in order to provide the safety locks for the 90-day detention period:
"Detention for longer periods, certainly over a month, and beyond the slightest doubt three months, requires a reassuringly strong system of protection for the detained person."
He listed some of the things that he would want:
"Where detention beyond 14 days is to be applied for, the introduction of one of a small group of security-cleared, designated senior circuit judges as examining judge"— would be required. That point was referred to earlier. He continued:
"That judge to be provided with a full and continuing account of all matters involved in the investigation in question.
The introduction of a security-cleared special advocate, also fully briefed as to the investigation, to make representations on the interests of the detained persons and to advise the judge.
The judge to have the power to require specific investigations to be pursued if reasonably necessary for the proper exercise of his/her jurisdiction.
Suitable opportunity for written and oral defence representations against extended detention, with oral hearings at the discretion of the judge.
Weekly decisions with reasons if extended detention granted.
The keeping of a written record (if necessary protected from disclosure for the purposes of any subsequent trial) of the judge's activities in a case.
Appeal with permission to the High Court."
Does the hon. Gentleman agree that the fact that Lord Carlile highlighted the need for a special advocate goes to the heart of his anxieties that the mere extension of detention time could be subject to abuse, and that the need for a special advocate highlights the highly unusual nature of the procedure that the Government are seeking to adopt?
The hon. Gentleman is absolutely right. This is a base level against which we can measure the proposals. Without all those safeguards, we have a non-starter—something that is clearly outwith the provisions of the Human Rights Act. Therefore, we should not even be considering such a proposal. Indeed, the suggestion that we include such proposals in the Bill does not bear a moment's examination.
Does the hon. Gentleman accept that the length of time that it takes to investigate terrorist offences has created a new situation? As I said to my hon. Friend Mr. Winnick, after 7/7 it took two weeks to access the sites and a further six weeks to make complete examination. A total of 42 days was required for investigation, so a 14-day limit would have been counter-productive. Suppose the Tavistock square bomber did not get on a No. 30 bus but instead walked the streets of London and was arrested the same day without any evidence on his person. He would have had to be released before the second incident on 21/7. Does the hon. Gentleman not accept that there are new circumstances in which a longer period is required to complete an investigation of terrorist offences?
I do not want to reduce the hon. Gentleman's proposition to the absurd, but exactly the same arguments would apply if the investigation took 365 days or two years. It is our responsibility in the House to achieve a balance, but as I shall explain, there are alternatives that allow for proper investigation without a substantial departure from the traditional law of this country as proposed by the Home Secretary.
Having dealt with the ways in which Lord Carlile does, and does not, agree with the Home Secretary's proposals, does the hon. Gentleman agree that a number of hon. Members will be impressed by the fact that the police have endorsed a 90-day detention period? Although they may have reservations about such a long detention, they may be persuaded to support the Government by the police endorsement. The police deserve the respect of every hon. Member for the difficult job that they do, but it is not for them to lay down the law. It is for us to make the law. The job of the police is to enforce the law that we lay down—it is not to make fine distinctions between civil rights and the law. Does the hon. Gentleman agree that it is our job to protect civil rights? If the House starts to detain fellow citizens in prison without charge for 90 days it is going down the wrong road.
I agree. I have worked closely with the police over the years. As the hon. Gentleman may know, I was chairman of a police authority and I have worked with the National Criminal Intelligence Service. I have a great deal of respect for the police but, equally, they have a distinctive approach to the matter. They rightly wish to secure successful prosecutions and to protect the public but they always want increased powers. It is the job of the House and, indeed, the Home Secretary to assess the balance between those proper requests for additional powers and their effect on the liberty of the subject.
To return to the point made by Martin Linton about the length of time needed for investigation, a puzzling argument has been made about the time needed to crack an encryption. I am not an expert on the subject, and do not pretend to be, but specialists tell me that it does not take 14 days but perhaps 14 years to solve an encryption without the key. People can make educated guesses to decipher an encrypted message, but their investigation will not be completed in a comfortable period of 90 days. Why, as I said earlier, has an offence that we put on the statute book with the passage of the Regulation of Investigatory Powers Act 2000 lain idle for five years? Why on earth have people not been prosecuted for refusing to give an encryption key? If that is not the problem, what is the argument about?
The hon. Gentleman is extremely generous. The idea of the provision is obviously that it pre-empts the use of computers in that way. We know that information can be stored, coded and encrypted, so the legislation is there before the bombs go off, not after the bombs go off. That is the whole point.
I do not begin to understand what the hon. Gentleman meant in that intervention, so I cannot respond to it.
My hon. Friends and I have tabled two amendments in this group. Amendment No. 92 is a paving amendment; amendment No. 93 is the substantive amendment. We have attempted to put in some of the safeguards that my noble Friend Lord Carlile of Berriew suggested. Amendment No. 93 raises the decision–making authority from a district judge to a High Court judge, which will inevitably be conceded by the Government. It would be helpful if they did so now.
The amendment suggests three scenarios for an extension of detention—delays due to forensic analysis, one of the possible problems that was identified earlier; delays due to encryption, which, as I said, I find difficult to understand, but I am prepared to accept that that may be an issue, which can be pursued; and delays due to the need to gather international data or mobile phone records, which I accept may take a certain amount of time when authorities abroad are involved.
The amendment lays down the condition that the judge must satisfy himself that no other charge is possible. That comes back to the potential for prosecution under section 53 of RIPA. It also takes account of the other terrorist offences covered by the Bill. There is a further requirement for the judge to vet police lines of questioning, which relates to the issue raised by the hon. Member for Beaconsfield about the Police and Criminal Evidence Act 1984 protocols, which will need to be revised. I hope we will get a clear indication of how they will be revised if the proposal is accepted.
On encryption, it is possible for someone to walk off the street into a store and buy a 192-bit encryption device, which is based on American military technology. Our security services are able to access that technology and counter it. They need the initial period of a few weeks to work out what the code is. I appreciate that the hon. Gentleman keeps referring to the maximum pre-charge detention as three months, but he does not emphasise that that is a maximum. There are weekly reviews. By their own admission, the police do not expect, other than in the most exceptional circumstances, the period of detention to be anywhere near that long. It is entirely misleading not to make it clear that there is constant review throughout the process and that three months is a maximum.
We are giving a power. We have no idea how it will be used. If the House gives a power to the investigating authorities, they can use it as they see fit. The hon. Gentleman may be right that it will be used on relatively few occasions. He may be wrong about that. I start by considering the power that we are giving, which is the capacity to detain for 90 days without charge. That is a very serious matter indeed.
No, I must make progress.
On the other point made by Dan Norris, as I understand it, the encryption can be removed either in a relatively short period or not at all. If someone is serious about stopping a criminal offence and putting someone before a court, there is a perfect pretext, if I may say so, if they refuse to give the key to the encryption. I cannot for the life of me understand why that is not used.
Why are we proposing safeguards to proposals that we reject? Because our job is to improve the Bill in Committee. I hope that that will be accepted at face value. The sunset clause that was mentioned is a further substantial improvement to the Bill.
I shall repeat the second question in case of any doubt: do we support 28 days in preference to 90 days? Yes, of course, because it would be a move in the right direction. That does not mean that we accept 28 days; it means that 28 days is preferable to 90 days, which, as far as I am concerned, is a no-brainer.
We are sincere in our view that the best outcome is consensus across this House and between the Houses, and I repeat that there are better ways of achieving the objective. It has been mischievously suggested that we are discussing minor offences in other parts of the legal spectrum, but we are discussing lower-order terrorism offences. The Home Secretary knows our view that if there is no prima facie case for a lower-order offence such as acts preparatory to terrorism, there is no argument for holding a suspect. We must examine ways of exempting lower-order terrorism offences from bail, because I accept the Home Secretary's point that it would be a major difficulty if we were to go down that escalatory route without proper bail conditions.
The threshold used by the Director of Public Prosecutions in charging guidelines should be re-examined. Where there is a reasonable likelihood that admissible evidence will be available, then proper grounds exist for a charge, which is a power that is not being used sufficiently at the moment.
If we do not reach a consensus, there will be increasing frustration that we have not been able to find a satisfactory way through this maze. The Bill is unacceptable for all sorts of reasons. If we have the opportunity, we will support amendment No. 28 to reduce the period to 28 days. [Hon. Members: "Oh."] For goodness' sake, that is hardly a revelation—I have said it at least six times. Whether or not amendment No. 28 is accepted this evening, we shall vote against clause 23, because the Government are employing the wrong approach. Even at this late stage, we hope that a consensus is reached in this House rather than in another place in order to find a way to produce acceptable, effective and appropriate defences against terrorism.
I hope that it will help the House if I set out the Government's attitude to the amendments and new clauses in this group before the debate concludes.
On amendment No. 9, I want to express my appreciation to Conservative Front Benchers for spotting a typographical error and correcting it. In the spirit of consensus that orients everything that we do, we urge the House to accept amendment No. 9.
It is worth setting out the background to amendment No. 8, which I am glad Mr. Grieve has acknowledged is a probing amendment. Both the police and the Crown Prosecution Service have suggested that it should be possible for Crown prosecutors or their territorial equivalents to make such applications, because in complex terrorist cases the prosecutor will be closely involved from an early stage. The prosecutor will advise the police on which evidence might be useful in court and which might not, and will work with the police in determining which leads might be the most profitable to follow up. Crucially, the prosecutor will also confer closely with the police on the question of when there is sufficient evidence to justify bringing a charge. So the prosecutor will be very familiar with the case and well placed to make an application to the judge for extended detention. I hope that on that basis the hon. Gentleman will consider withdrawing his probing amendment.
On amendments Nos. 12 and 13, I want to make it clear that the purpose of clause 24 is not to change things but to put beyond doubt what had until recently been believed to be the case. The position was thrown into doubt by an application for judicial review decision case in Northern Ireland. In that case, an individual was being held while DNA samples were being analysed, and he challenged the legality of his continued detention. He was released on the advice of senior Crown counsel. Prior to that, it had been thought that continued detention for such a purpose was lawful—that remains the view on the mainland—but we want to put the matter beyond doubt. Clause 24 therefore sets out the grounds on which a person may be detained. Again, I hope that in the light of that explanation the hon. Member for Beaconsfield will withdraw his probing amendment.
I now turn to the substance of the debate—the relationship between the length of pre-charge detention and the protections and safeguards that are in place. In this context, I want to comment on Lord Carlile's report to express appreciation for his approach in conducting it and to indicate our attitude on several of the proposals that have been made, which overlap with some of the amendments.
Amendments Nos. 10 and 11 suggest that the extension of somebody's period of detention could be dealt with in a more flexible way. There is force in those arguments, and we are prepared to consider that with a view to coming back on Report with an agreed way forward on the matter.
On the level of the judge who takes the decision, we support Lord Carlile's proposals, as I said on Second Reading. That is the subject of amendments Nos. 29, 30, 31, 32 and 16. We are ready to table an amendment and intend to do so on Report. I take very seriously the point made by Mr. Cash. It is important that the judge is a specialist in this field. We shall ensure that the hon. Gentleman's comments are taken into account in the proposal that we make on Report. On the general range of issues involved in this matter, I can give the House the assurances that have been sought from me in a variety of ways.
The Attorney-General can speak for himself, but yes, I have spoken about this to the Law Officers, including the Attorney-General. His view is that the changes that I am suggesting we table on Report will go a long way towards meeting any of the concerns of those in the legal system and in this House.
On amendment No. 17, which deals with the relevant PACE—Police and Criminal Evidence Act 1984—code, I understand the points that are being made, and I am again prepared to say that we are ready to come back to the House with a solution that will deal with this in an effective way. We acknowledge that the concerns raised by Opposition Front Benchers are genuine, and it is our job to try to deal with them. That is not as straightforward as it might sound, because it is a question of precisely which PACE code would operate, but I am prepared to give an assurance that we will consider the issues that have been raised.
I hope that the Home Secretary does not think that I am being churlish, but I feel bound to ask him why, in view of the fact that these issues were well ventilated before today, they were not included in the Bill when it was first published. [Interruption.] After all, the Home Secretary had a draft Bill that came in for a considerable amount of criticism. The Committee is a late stage in the passage of a Bill to give assurances about what will happen. Can the Home Secretary assure us that all this will be in place for the Report stage next Wednesday?
I hate to say that my hon. Friends, in accusing the hon. Gentleman of being churlish, are being churlish themselves, but perhaps I can be churlish in return by saying that we have said from the outset, as David Davis knows well, that we are ready to debate those questions in the round. As a number of colleagues on both sides of the House have recognised, there is a relationship between the safeguards and protections that are thought to exist and the length of time that should apply. I will not say that it is a trade-off—that is not quite the right way to put it—but there is a relationship in how they are all taken forward. That is why I am taking this opportunity to set out the Government's position in what I hope is a holistic way. We can thus see how things relate to one another in the proper way.
The Home Secretary gave us an insight into the opinion of the Attorney-General, who has been reported as expressing grave reservations, but the Home Secretary said that the Attorney-General is now of the view that some of the present shape of the Bill goes a long way towards meeting judicial concerns. Is that a full and rounded picture of the Attorney-General's current position? The Bill may have gone a long way, but is he satisfied that what is before us is likely to comply with our human rights obligations?
I shall give way again in a moment.
I was saying that I was prepared to look at the points raised in amendments Nos. 10, 11, 29, 30, 31, 32, 16 and 17 and at ways of coming back on Report with the changes that are needed. To be candid, I should like to do that on the basis of consensus in the House, a point to which I shall return in a second.
I want to make some observations about Lord Carlile's criticisms, which came into the discussion. In paragraph 61 of his report, Lord Carlile said:
"I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest."
In paragraph 111 of the report, Lord Carlile stated:
"I regard the current proposals . . . as providing a set of useful and necessary additions to the law to counter terrorism."
I want quickly to go through Lord Carlile's criticisms of the procedures.
The first was that clause 5, which deals with acts preparatory to terrorism, is too narrow and does not cover facilitation offences. We believe that those offences are already covered by existing law and we shall discuss that with Lord Carlile. On clause 6, he argues that "training for terrorism" is too wide and should not have worldwide extent. We do not agree; without its wide geographical scope the clause would have little point, as most terrorist training takes place abroad.
Lord Carlile questions the necessity for clause 8—"Attendance at a place used for training"—as there will be offences of giving and receiving terrorist training. We want clause 8 to deal with that issue, because we want to cover all those who attend terrorist training camps and to avoid people being able to claim that they were there only in a journalistic or humanitarian capacity.
Lord Carlile raised five points sharply about clause 23, which we are currently debating. The first was that pre-charge detention beyond 14 days should be authorised by a senior circuit judge, with appeal to a High Court judge. I have acknowledged that, and agreed as early as Second Reading that we would take steps to implement that recommendation.
The second point was that there should be an opportunity for a defendant to make representations against continued detention, with oral hearings at the discretion of the judge. That process happens already, but if clarity is needed to show that it happens we shall be prepared to offer it.
Thirdly, Lord Carlile said that there should be weekly decisions about extensions of detention, with reasons given in writing. The Bill already provides for weekly decisions, although I have to add the qualification that I have just made in response to amendments Nos. 10 and 11: reasons are given, although not normally in writing. It would be possible to require that, but the reasons could be only that the test in the legislation was satisfied. We are ready to consider that, although we do not believe that it is necessary.
We have more difficulty with Lord Carlile's recommendation that the judge should supervise the investigations and require specific lines of inquiry to be pursued. Amendments Nos. 92 and 93 deal with that. That would effectively introduce the continental system of investigating magistrates. As I have said in the House and elsewhere, I personally have sympathy with that approach, especially in some cases. However, there is currently no consensus about such a dramatic change in our legal system. It would not be sustainable for us to try to legislate to that effect. That is a difference of opinion with Lord Carlile, not on principle—I am sympathetic to his position—but because the reform is so substantial compared with how we have done things in the past that we could not simply introduce it in the Bill.
Lord Carlile's final point is that special advocates should be able to see all the intelligence material, make representations on behalf of the detained and advise the judge. That follows on from the recommendation to introduce investigating magistrates. Without them, there is no need to "advise the judge". The detained person is already entitled to legal representation, so it is difficult to understand precisely what special advocates would add. Again, I am prepared to consider that if there is a way of dealing with the point directly.
I hope that the Home Secretary will forgive me if I seek clarification of something that he has already tried to explain. Will he concede the principle that the judge should be able to say that detention should not simply be for another seven days but should be able to require a return in 48 or 72 hours if he believes that that shorter period is appropriate? Is the Home Secretary prepared to include that in the Bill?
I am prepared to discuss doing precisely that with the hon. Gentleman and other colleagues. There is an advantage to what he suggests. He is right to highlight giving more flexibility to judges to decide how to supervise the process. The fact that the time period is under judicial supervision is not highlighted enough. We are now suggesting that it should be supervised by a High Court judge. That is an important part of the process, which should reassure some who have been worried. To avoid doubt, I stress that the police perceive judicial supervision to be important. If colleagues read the evidence that the police gave to the Joint Committee on Human Rights, they will find that the police set out the advantages of that process for an investigation.
I am especially grateful that the Home Secretary went through all that Lord Carlile had to say instead of cherry-picking, which is unhelpful to both sides of the argument. He said that he agreed with some recommendations but not others—we are in the same position.
I wish to make two points. First, the proposal for judicial supervision of an investigation is a substantial judicial innovation, but no greater than 90 days of detention without charge. Secondly, I ask the Home Secretary to be fair in acknowledging that Lord Carlile said that some cases had not been successfully prosecuted in the absence of the new offences that the Bill introduces. They provide new opportunities for prosecutors to bring people before a court.
They do, and the hon. Gentleman is right that Lord Carlile's report was produced before the Bill was published. Nevertheless, the core question remains: is there an ability to charge? Earlier, the hon. Gentleman cited the encryption cases and outlined his concerns about them. I can do no better than quote from the speech that Mr. Robinson, who is in his place, made on Second Reading. On encryption, he said:
"The reality might be different. Three people might be responsible for what was intended to be a series of suicide bombings, two of whom might have given up their lives in the process. Those two might be the ones responsible for the encryption, and no matter what legal redress one might have against the remaining person, he could not decode the files even if he wanted to."—[Hansard, 26 October 2005; Vol. 438, c. 388.]
The point that I am making in quoting the hon. Gentleman is that I agree that the number of times on which any pre-trial detention would be needed would be narrowed, but the circumstances might still exist in which we were unable to bring charges, even in relation to lower-level terrorist charges.
As the Home Secretary knows from discussions that we have had on this matter, the question of the Human Rights Act 1998 has been raised by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), by Mr. Heath and by Lord Carlile. My new clause 3 would disapply the Act for this purpose. Let us consider the possibility of our getting a 90-day limit—the Home Secretary knows that I have considerable sympathy with the proposals relating to the upper limits—but of the matter then being referred to the courts. I think that the Home Secretary is being a little optimistic, given that Lord Carlile's report—which the hon. Member for Somerton and Frome did not mention—specifically states:
"I question whether what is proposed in the Bill would be proof to challenge under the Human Rights Act".
I am sure that the Home Secretary realises that there would be a serious problem involving huge delays if there were to be such a challenge in the courts and, irrespective of what he says about the Attorney-General's view, the provisions were to be struck down. We would lose a vast amount of time and place the public at serious risk if there were a successful challenge.
I appreciate the hon. Gentleman's general support for our proposals. However, I would not advise the House to accept his new clause, because it would not be correct for us to suspend the operation of the European convention on human rights in this context. He has asked a series of hypothetical questions about what might happen if cases were taken to the European Court. Of course, everyone will have a different opinion on that, and he is right to cite what Lord Carlile has said. My duty before the House is to say explicitly that I have given the Bill its certificate based on advice that I received, including that of the Attorney-General, that it was compliant with the European convention. That is the basis on which I operate.
On the question of safeguards, I am always ready to look at review procedures, sunset clauses and so on, but I do not hold out a great deal of hope that that will be the path to resolving the issues that have been raised. They are genuine issues, and this brings me to the points raised by my hon. Friend Mr. Winnick. I want to pay respect to the way in which he has conducted his discussions on the Bill. I can reveal to the House that we have had private discussions on it, and that my hon. Friend is absolutely principled in what he is saying. He has put forward his views consistently, and with no spirit of political intrigue or anything of that kind. He approaches the matter in an entirely proper way.
My hon. Friend raised an important additional point, which I also mentioned on Second Reading, as did the hon. Member for Somerton and Frome. It is very important that the elected Chamber should try to reach consensus on this matter. There are a range of different opinions in this complex matrix of issues about lengths of time and about safeguards, and I completely agree that that is the approach that we should try to take. Why do I say that? Not simply because it is politically more convenient, but because it is very important indeed that this democratic House should speak to the nation in a direct way when dealing with terrorism. It is difficult for us to reach agreement, because there are genuine differences of opinion, but my starting point is that we should try to do so, and that is what I want to do. It is critically important for right hon. and hon. Members to talk to their constituents and their communities. My hon. Friend's concerns about the alienation of the community are real ones, and they have been echoed by other hon. Members. We need to address them with our constituents in the best possible way.
My only cavil with my hon. Friend's remarks is that I think that he traduces the police a little when he suggests that they have not proposed the 90-day period in a considered way, and that my ministerial colleagues and I have not considered the police's proposal in a serious way. I certainly have, and I and my ministerial colleagues right across the Government have tried to analyse carefully what has happened. The police have given the best of their professional advice. That is what they should do. That is how they operate, and that is their responsibility. That is what they have done, and the suggestion that they have not operated in a professional way is not right.
Many Members have said that the police are alone in wanting this extension, but the Minister for Policing, Security and Community Safety made a remark some days ago indicating that more than the police within the security apparatus are involved in that. Can the Home Secretary help us on that point?
The police believe that 90 days is right, and the Crown Prosecution Service believes that 90 days is right, for the very detailed reasons that I gave in an answer a moment ago. The security services believe that an extension is right and support the recommendation that 90 days is right, but they do not believe that they are professionally competent to judge whether 90 days is right compared with other times. That issue led to confusion in discussing those matters, not least in front of the right hon. Gentleman's Committee, the Intelligence and Security Committee, but the whole of the services involved in this support the police position.
However, it is the police and the CPS that have the responsibility for conducting these situations. Therefore, all other services have said, "While we support the case for change in general from what we have seen, and while we support the particular police proposal of 90 days, we think that that particular proposal comes from their policing and prosecutorial experience."
I believe that that is their position as well, but I must not mislead the House. I have focused more, in a way that the hon. Gentleman will think outrageous, on the position of the CPS, but I commit to write to him with clarity on that point as he has just raised it with me.
I am grateful to the Home Secretary, who is being very generous in giving way. If this provision went through and someone were detained for 90 days and then released due to insufficient or no evidence to bring a prosecution, should they, or would they, have any right of redress if they had lost their job or experienced substantial loss of earnings or other inconvenience?
Not under these proposals. However—again, I emphasise the point, because it was raised with me by the Home Affairs Committee—we are ready to look at that if positive proposals are made in this area. But I must say again, and emphasise it very strongly, that we are talking about a tiny number of cases under very deep judicial scrutiny throughout the whole process that operates here. That point was made in interventions earlier, and it is the key point.
The position of my hon. Friend the Member for Walsall, North is clear and his point was well put. In this serious matter, all of us—every single Member, accountable to their own electorate and constituents—has to weigh the relationship between the operational and professional advice we have had from the police and prosecutors, which takes a certain direction; the issues of principle, which motivate many of us in different ways, and possibly in ways that will be different for different people in the way that they operate; the safeguards that I say I am ready to talk about in respect of how we move forward; and, of course, the issues of politics.
Politics should not be too much a part of this. It is always part of what we do, by definition, and it is a great thing—[Interruption.] There is nothing wrong with that; I very much agree. We are in politics, and it is a worthy and noble life. That is what we should do. I hope that the politics here is the fundamental elected representational politics of the relationship between us—all of us, from whatever party—and our communities and the people we have to deal with. I hope that people will talk to their own communities about these issues as the Bill goes through the House.
The crux of the matter is the issue of the maximum period for which it should be possible to detain a person. As the Committee will be well aware, the Bill extends the maximum duration for which a terrorist suspect may be detained prior to charge from 14 days to three months. I emphasise that the Government believe, and I believe, contrary to some assertions, that there is a compelling case—the word "compelling" was one used by Mr. Oaten on Second Reading—which is strongly supported by the police, for change in the interest of offering the best possible protection for the people of this country.
At the service yesterday in St. Paul's, I talked to people who suffered from the bombs in London. I can tell the Committee that they want protection so that this kind of thing does not happen again. We all want that, but we have to think how to do it. That is why the police, by the way, have come to their view. They are thinking, "How can we do it? What should we do? How should we address this going forward?" That is why they have made the proposal.
I remind the Committee that the factors in consideration include the need to intervene early in terrorist cases; the complex and international nature of the networks; the volume of material; and the increasing use of technology such as encryption and computers. The case for an extension was set out clearly some considerable time ago, and we have published it fully.
Despite what Mr. Heath said about the clause stand part debate, I believe that there is now widespread recognition in the House that an increase beyond 14 days is necessary. I pay tribute to my hon. Friend the Member for Walsall, North for acknowledging that in his amendment. There is also a growing understanding, although I know that the Liberal Democrats in particular do not accept it, that the alternative solutions put forward do not solve the problems. We must face up to the time issue in a direct way.
I acknowledge, however, that the House has not reached a consensus on the Government's proposal to increase the maximum period to three months. My view is that we ought to seek consensus because we need the strength of a consensus decision, as I have described. I regard the police case as persuasive—I think that it is the right case—but I must also acknowledge the fact that many people have expressed strong reservations.
My view is that the issues should be resolved in the House. My proposal, which I ask my hon. Friend the Member for Walsall, North to accept if he is ready to do so, is that we engage in urgent discussions with colleagues on both sides of the House to see whether we can reach consensus on a figure of more than 14 days. On that basis, we would bring forward a Government amendment on Report containing whatever that agreed figure was. Of course, if agreement could not be reached, the amendments now before the House could also be tabled on Report for debate.
In the trade-off between the protections and safeguards that I described and the length of time, however, I believe that genuine discussion across the House is beneficial. I do that in a spirit of flexibility and openness. I also believe that all Members would benefit from another week to discuss the issues with constituents, local police, local community organisations, and perhaps the mosques in a given constituency. Parliament will do its job better if those discussions take place.
I am grateful for what my right hon. Friend has said. There is undoubtedly an argument to resolve the issue tonight on 28 days. At the moment, because of the Government's position, I doubt whether there is a majority for 28 days. Therefore, on the basis that the Home Secretary will put forward a figure of substantially less than 90 days on Report, there is a case for allowing the matter to go forward to Report and then to table amendments accordingly. I emphasise again, however, that if it is a question of 90 days being dropped, and of 80 or 75 days being put forward, that is totally unacceptable. If we are to get a consensus, my view is that 28 days is the preferred figure. My right hon. Friend can always come back to the House later, perhaps in 12 months, and say that it is essential to increase the period, and we can consider the matter then. On that basis, I would be willing not to press my amendment.
I very much appreciate my hon. Friend's approach. To give him the assurance that I think that he seeks, however, it is my view and the Government's entirely genuine view that we need to seek this consensus and get an agreement to deal with these various matters. I hope that colleagues will reflect on what he has said when they consider what to do later this evening. I assure the House that we will continue the discussions.
On that basis, I have now set out the Government's view on all the issues. I ask the House to accept amendment No. 9 and invite those in whose names the remaining amendments and new clauses in the group stand to withdraw them.
The whole House will have been impressed by the Home Secretary's flexibility. To give credit where credit is due, he is clearly listening to many people's concerns. I am torn between my instinct to support the objections to the Bill that my hon. Friend Mr. Grieve has put with great clarity and force, and my experience and knowledge, which pull me in the other direction.
We have heard a lot of talk from a lot of Members, all of whom have a little bit of knowledge about computers or encryption, this or that. If I may proffer some advice, a little knowledge is a very dangerous thing. It is not one issue or another that has led not just the police but—I am glad to have had the Home Secretary's confirmation—the security services to the unanimous view of all those who work in this area that an extension of time is needed, and that it is up to the police to suggest what that period should be.
What we are discussing, in a vastly more technological age and in the face of a threat to the country that is completely different from any it has experienced in the past from, for instance, the Irish—an entirely international threat, with no boundaries recognised—is the turning of intelligence that can be gathered into evidence that can be used to prosecute. Trying to achieve that strikes me as not a libertarian but a practical issue. If it now takes longer, because the process is so much more complex, to produce from intelligence evidence on the basis of which a person can be charged and convicted properly in court, that seems to me a perfectly reasonable way to proceed.
I hope that in the discussions that the Home Secretary has told us he will have with our Front Bench, the Liberal Democrat Front Bench and all who have expressed an interest, he will be able to pray in aid some of the reasons why the security forces feel as strongly as they do. I know that they are reluctant to divulge their reasons, but perhaps we could be given some indication.
When citizens' lives are at stake, Members must think very carefully before rejecting the advice of professionals who have all the facts at their disposal, and who make honest and straightforward recommendations to the Government of the day, using professional knowledge and expertise that we, inevitably, cannot share.
I must begin by declaring an interest. I practised for 20 years as a criminal defence barrister in the chambers of Mike Mansfield, I am married to a lawyer, and my mother-in-law was a magistrate who served the east end for some 20 years. More important, however, I represent an area that lost 12 people on
I am grateful for the opportunity to explain why, despite what I am sure my constituents would, on the whole, want me to do, I cannot give wholehearted support to the Bill. I have grave reservations about the idea of locking people up for 90 days when there is not sufficient evidence on which to charge them. I was glad to hear from the Home Secretary that he would listen to us, and consider what constitutes a proper amount of time. Personally, I do not think that people should be locked up for 14 days without being charged, let alone 28 days, but compromise is essential. We must reach a consensus, which is why I attached my name to the amendment proposing a 28-day period of detention.
I do not think it would be in the interests of my constituents for the Bill to proceed in its present form because I genuinely do not believe that it would make my constituency any safer. The way to make a constituency safer is to hold its communities tight and close. That would make the constituency healthier and a better place in which to live, but it would also make it safer, because it would enable us to trust each other. We can give information to the police when members of our communities are threatening us. If we separate our communities so that we cannot trust each other, we will not make them any safer.
Our criminal justice system is based on the idea that we can—and do—make mistakes. Experience from my chambers—which dealt with the cases of the Birmingham Six, the Guildford Four and Stephen Lawrence—demonstrates that it can make mistakes. What concerns me deeply is the possibility that some scared, innocent Muslim teenager will be arrested on the say-so of someone else and a police officer's hunch, and locked up for 90 days. If that teenager is then released and returns to City and Islington college, what will others in the college have to say about British justice, and to what extent will we be divided among ourselves?
We are all trying to do the right thing. We are all coming from the same direction. I know that throughout the summer the Home Secretary and many of his Ministers have worked hard, as have many members of my party, to ensure that we work with our communities, but if we make a mistake we may end up divided.
I also speak as a member of the Anglo-Irish community. I was too young at the time to have any memory of internment—I am not suggesting that this provision is anything like internment—but we have a collective memory and we have to learn from our experiences. When I was a teenager, I certainly felt that an unfair law was being directed at families such as mine. As a result, we were not quite needed or wanted. We were marginalised by such legislation, and I am deeply concerned that this Bill might be seen as a direct attack on our Muslim communities—on my constituents and their younger brothers and sons. That is why I have such concerns. It is wrong in principle to lock someone up for 90 days when there is not enough evidence to charge them; nor, to take a pragmatic approach, does it make us any safer.
I was elected less than six months ago. I was not elected to vote with the Tories, and I certainly was not elected to vote with the Liberal Democrats. I do not want to do that. I want to vote with my Government, and I want them to do the right thing. I am very glad to hear that they are thinking again about what the right thing to do is on this really important issue.
At the end of yesterday's service, which I attended with the Home Secretary, the Prime Minister and a number of other Members, prayers were said. One prayer was led by the Rev. Nicholas Wheeler, who ministered to the victims at King's Cross. His prayer, in which I joined, was:
"God of truth . . . we thank You for the women and men of the police and security services, who brought order out of chaos that dark day. Guide them as they endeavour to make London a secure place for all, in which law and liberty work together for peace. Receive our thanks and hear our prayer."
I know that the Home Secretary believes in that. I do, too, and I certainly hope that in this next week we can reach agreement, and that it is on a 28-day maximum.
I am very pleased to follow Emily Thornberry. I share her distaste at voting with the Liberals, but I am sorry that she happened to use this occasion to mention it. Those of us who have had the privilege of being in this House for as long as she doubtless will be recognise that when appalling things happen it is all too easy to move too far down a particular road in order to compensate for one's failure to handle the situation sufficiently early.—[Interruption.] Although what happened in London is wholly different from events such as those that led to the Dangerous Dogs Act 1991, or from the Marchioness disaster and the decisions taken after—[Interruption.]
On every such occasion, we sought to take action because public opinion demanded it, and because the circumstances were so peculiar a response was demanded of the kind that we would not normally accept. That is why I disagree with my right hon. Friend Mr. Mates. This is a moment at which this House has to be very careful about taking at face value the good, sensible advice of those whose only commitment is to telling this House what they would in all circumstances most want. It is we who must strike the balance. It is we who must try to understand that it is not just about wishing to prevent this immediate terrorist outrage; we must also ensure that the community in which we live is less likely to support, even tacitly, terrorist activities. In that context, the Northern Irish parallel is vital. In the north of Ireland we have, on occasion—my party has been more guilty of this than any—made decisions on the basis of the immediate threat that have undermined our ability to deal with the longer-term threat, because whole communities have ceased to believe that the law is equally on their side. For me, that consideration meant that I had to vote against the Bill in its entirety.
We will defeat terrorism in the end only when the communities within which the terrorist hides, or upon whose tacit support the terrorist depends, withdraw any scintilla of support. In this case, we start with a community that is determined to exclude the terrorist, and which knows that terrorism is not the way to respond, however strongly they may feel—and I share those strong feelings—about the way in which western nations have operated, particularly in the middle east.
Those of us who were against the war, and who are unhappy about the uneven-handed attitude, particularly of the United States, to Israel and Palestine, understand why those people should be concerned—and we are proud that our Muslim minority have stood firm against terrorism. I want to keep them there, and I think that we are more likely to do that if we extend the number of days for which people can be locked up without charge by as little as is necessary.
Apart from the appeal to "those who know"—an appeal that I have always found rather difficult to take—I have heard no good reason for extending the number of days at all. However, I too would be prepared to go for a compromise, so long as the period was as limited as possible. I hope that those on my party's Front Bench will not be led astray to move too far in the direction of the 90 days, because in the end every extra day for which an innocent person is held in prison without trial increases exponentially the possibility that that person will go back to his or her community and say, "This system does not work. It means that people like me have been held unnecessarily, when I am guiltless."
Finally, I say this to the Home Secretary: the difficulty for his case is the experience of the past year, when so few people have been held for the longer period, when those who have been held for that period have so rarely been charged, and when severe damage has already been done to community relations in the communities from which they come. I beg him to realise that the balance that is necessary must be one that takes strong account of the fact that, as the hon. Member for Islington, South and Finsbury said, we want to build within this country communities that differ but which share one thing—that the rule of law is established for all of us and protects us all equally. It must not be seen as something that affects some people in a way in which it does not affect the majority.
The contribution made by my hon. Friend Mr. Winnick was extremely good, especially when he said that a certain Conservative even tried to send questions to the House of Commons from prison. I think that that was a former Member for South Midlothian—the last Conservative ever to represent my constituency.
I have one or two observations to make. I have grave reservations about the three-month lie down—or lock-up, as it should commonly be called. I come from a mining community, and the point that several hon. Members have made about community involvement is really important.
If the police begin to arrest certain members of the community who are not charged after a period of detention, that will infuriate the other members of the community. As I said earlier, there remain deep divisions and hostilities between miners and police in Scotland's mining areas. The police have had to work extremely hard in the 21 years since the miners' strike.
I may be the only hon. Member who has been locked up—[Interruption.] Perhaps that is not the case, but a provision exists in Scottish law called the 110-day petition, under which a person is held on remand. I am disappointed that the Home Secretary has not taken account of the Scottish approach, as I am worried about what happens when a person is detained without trial.
I was in prison for more than two months before my trial, when the jury—that is, the people—took only 25 minutes to find me innocent. I am therefore not a huge supporter of the great Scottish legal system, and I have grave concerns about it. However, the serious point is that it is bad enough for a person who is wrongly sent to prison and who then has to fight against the charge levelled at him: much worse is the problem faced by the person who is sent to prison without being told what the charge is. It is possible that such a person might leave prison without ever being charged, and that is intolerable. We must do all that we can to ensure that that does not happen in this case.
I do not want this Government to repeat the mistakes made by the Conservative Government of the 1980s. We must not become isolated from the communities in this country. We must work with the people in the communities and carry them with us. If one person is detained in prison without trial, under the circumstances envisaged by this Bill, that is one person too many.
It is possible that some hon. Members may not know what happens in prison. Every weekday, I was locked up for 21 hours out of the 24, and at weekends I was locked up for 23 hours. I could not leave the cell, but that is what happens to people who are awaiting trial and who are innocent. It is intolerable that the Government propose to put people in that position while they are waiting to be interrogated by the police, sometimes with representation and sometimes without.
I want to make one final appeal to the Home Secretary. He said that a mechanism would be established that would allow cases to be reviewed by a judge, whose seniority has yet to be decided. I have concerns about judges, and who will monitor the decisions that they take? Will the legislation be reviewed, say, in six months from now to ensure that we are not going down the wrong road? If too many people are being detained without trial, that will show that there must be a fault in the system. In that case, the provision should be brought back for discussion in this House.
Having set out those reservations, I look forward with interest to the comments that will made by hon. Members of all parties if the Government's proposal is accepted by the House.
I shall keep my remarks brief, because I know that other hon. Members wish to speak. My point goes back to my exchange with the Home Secretary. We hear now that the Attorney-General provided the basis on which the certificate of compatibility was granted. In the past, we have had opinions from the Attorney-General, but this matter is so important that we should be told on what basis the certificate of compatibility has been given. Lord Carlile of Berriew made a general point about whether the provisions would be challenged under the Human Rights Act 1998, but I believe strongly that any limit above 14 days would run a severe risk of being so challenged. Whether I agree with that upper limit or not, such a challenge is likely to be made.
Such a challenge could come in various shapes or forms, and I wish to know what the Attorney-General had to say on that. In particular, did he consider the possibility of a challenge not only under article 5—which is frequently mentioned and concerns deprivation of liberty—but article 3, some of which can be subject to derogation and some of which cannot? Did he consider article 10, which deals with freedom of expression? I could mention other counts on which a challenge could be made to the provisions of the Bill as it stands and any limit above 14 days is liable to be subject to such a challenge.
Chaos would result if the legislation were struck down, as the Belmarsh decision struck down the compatibility provisions in previous legislation. Lord Hoffmann, and eight out of nine Law Lords, spoke with great vehemence about the need to reverse the previous decision on the Belmarsh case on the ground of incompatibility. Only a short time earlier, Lord Hoffmann said in another case that, legislation, if clear and unambiguous, would be constitutionally acceptable even if it were inconsistent with the Human Rights Act 1998 and that the courts would have to follow the later legislation.
Irrespective of what the Home Secretary has said, if the Bill were to include the words suggested in my amendment that
"this Act shall take effect notwithstanding the Human Rights Act 1998", the judges would be under an obligation to give effect to the legislation irrespective of what the European convention on human rights said and irrespective of the HRA. I appreciate that, in the past few months, the Home Secretary and the Prime Minister—and my right hon. Friends David Davis and the Leader of the Opposition—have all stated that, if necessary, they would repeal or amend the Human Rights Act 1998. That was actually in our manifesto. This is a practical example in which such considerations come into play. I wish to know whether the Home Secretary will keep open the idea of amending the Bill in the way that I have described, because only that will ensure that the provisions will stand up—if a time limit over 14 days is imposed—and will not be successfully challenged.
This is a serious matter. A huge amount of time and effort has been put into the proposals and it would be a waste if they were struck down by the Law Lords in such circumstances as I have described. It would also expose the British public to considerable danger because, in the years that would elapse, it would be likely that people who should be detained would get away.
I wish to detain the Committee for only a few moments to raise just two points with my right hon. Friend the Home Secretary. At the start of the debate, I was much in favour of the amendment tabled by my hon. Friend Mr. Winnick. I pay tribute to him and to my hon. Friend Emily Thornberry for their contributions to the debate. I was pleased to hear what the Home Secretary had to say. I am glad that he will continue the discussions in the coming week, although I fear that we are merely putting off this particular debate for seven days.
I wish my right hon. Friend to take note of two points in the coming seven days. First, the new laws will have a disproportionate effect on the Muslim community and the Asian community. I am not a Muslim, but 12,000 members of the Muslim faith live in my Leicester, East constituency. Although they have not written me letters, they have made representations to me regarding my discussions with them and their concern about the way in which the Government have reacted to the events of
Only last week in Leicester, I was contacted by members of the Muslim community whose houses had been raided by the police, not under terrorism legislation, but under the Police and Criminal Evidence Act 1984. I contacted the police to find out why, but was not given an explanation sufficient to enable me to explain to those members of the community why that had happened. They said to me, "The powers are already there. Why are more needed?" It is not only up to Members of this House to explain to the community; the Government have a leading role to play in ensuring that that happens.
My second point is on the Attorney-General. I was concerned to read in newspapers about the Attorney-General's concerns about the proposals, specifically the one on detention for 90 days. The Home Secretary told the House that the Attorney-General believes that his proposals today go a long way to deal with the problem. Mr. Clarke asked the Home Secretary whether the Attorney-General was completely satisfied. I should like the Attorney-General's advice to be made available to the House. At the very least, a Law Officer should have been present for our debate. I accept that the Attorney-General cannot be here because he is a Member of the other House, but the Solicitor-General ought to have been here so that Members of this House could question him about the Law Officers' advice and whether the criticisms they made in the memorandum that was sent to the Prime Minister and copied to the Home Secretary have been met. It is not that I doubt my right hon. Friend the Home Secretary—I am sure that he was absolutely truthful.
To be fair to the Home Secretary, he made it clear in response to the intervention by Mr. Carmichael that he was focusing on the Crown Prosecution Service and the English situation, but he promised to answer those points. Of course, the advice of the Lord Advocate and the Procurator Fiscal Service is important to Scottish Members, but as an English Member—if I can call myself that, rather than a British Member representing a city in England—let me say to my right hon. Friend the Home Secretary that it is important that we hear the advice of the Law Officers. There are mutterings from the judiciary: we have already heard from Lord Steyn and former Law Lords. It is important that we get the whole view of the Government. I do not mind if that is represented by the Home Secretary's coming to the Dispatch Box, but he needs to come with that information to satisfy me and others who are still gravely concerned about what the Government are proposing.
I appreciate the helpful nature of the amendment tabled by Mr. Winnick and the fact that the Home Secretary has been helpful in responding, saying that discussions will now take place, but having listened to the debate for some positive, decisive arguments one way or another about the precise time, I fear that no such arguments have arisen. If we are not careful, we will all be in a well-intentioned bargaining process.
A period of 28 days has been proposed by the hon. Member for Walsall, North, which I would vote for, because it is shorter than 90 days, but are the Government to come back with 50 days, intending to settle for 35? Is the House to be involved in the process? Will another range be tabled on Report? We are reduced to that. I accept that everybody is trying to do their best, including the police who have given the advice. The trouble is that the Committee does not want to be seen to be rejecting the police's advice following such serious allegations, but we have been given no concrete reasons why 90 days will be all right.
Having listened to the debate, I have come to the conclusion that there is no scientific explanation; these figures are being plucked from the air. We have been told a little about encryption, about which I know nothing, and about the complicated and international nature of these forms of crime but, as has been pointed out, there will be occasions when it might take 150 days to sort out some such process. We have always traditionally taken the risk of releasing people before we have been able fully to unravel the evidence. We are being asked to make a totally arbitrary judgment in reaction to the latest advice.
If there is no certain scientific answer to help us, we must ask what we are doing to the process in carrying out such bargaining. What are we doing to some of the fundamentals of our criminal law on which we have always relied? We are in danger of doing serious damage. We keep bouncing up the period of time. As Mr. Hamilton startlingly reminded us, we are talking about people being locked up all day and, potentially, repeatedly interviewed for a very long time before they are released without charge because somebody finally realises that they have arrested a man of a similar name or have been misled by malicious information—and an innocent man is let free.
The basic process of English law has until very recently been that no one could be held for more than 48 hours without charge. That included holding people suspected of serious offences such as murder and arson, and those suspected of being dangerous and of having committed widespread crime. They could not be held unless they were charged and, once they were charged, the police could not carry on questioning them except under severe constraints. That was regarded as an important principle of our law.
Under the pressure of Irish terrorism, we went to seven days as recently as the Terrorism Act 2000. In 2003, we went to 14 days, and that came into effect only in January last year. The arguments put by the previous Minister of State in 2003 are exactly the same as today's. We were told that there were forensic difficulties and difficult cases, and that 14 days was required. Suddenly, since then, with no change in the concrete evidence, with no specific example before us and with nothing to say that things have become dramatically more complicated, we are whizzing up to 90 days. We are radically changing one of the fundamentals that we thought was a protection for the individual citizen in our criminal justice system, and we should not do that too lightly.
I agree with Emily Thornberry. My first reservation rests on the terrible damage that will be done the first time that an innocent man has to be let free without charge after three months in prison. It is not internment, it is not the Birmingham Six, it is not the Guildford Four, but it will be serious, particularly if it happens a lot. That is what terrorists look for, because they exploit such injustices and make great use of them. I fear that the use of such measures will become routine. I am sure that the police will behave very well over the next two or three years and have regard to the sensitivity of the issue. The powers will be used in only a few serious cases. In five or 10 years' time, however, there will be many more cases. The composition of the House of Commons will have changed, and it will be concerned about a different kind of serious crime. It may argue that child rapists and other offenders can be held for 90 days.
The police will say that they should have such powers. Under the old system, they did not start to investigate someone at the point of arrest. The investigation team obtained most of the evidence before they arrested their suspect. They had 48 hours in which to interview him, and if they could not get anything out of him, they had to set him free. I predict that, in five or ten years, it will be routine for police to say, "We have a good tip-off that Mohammed is responsible. Bring him in, and we'll start investigating." After 90 days of repeated questioning and the removal of kit from the suspect's house, they will find that they have the wrong Mohammed. That poses a serious danger to provisions to protect us against terrorism and is an affront to our justice system. The Committee should argue that the period of detention has frequently been increased in recent times, including under the two most recent pieces of terrorism legislation, so it does not accept that there is a case for extending that period beyond 14 days.
I have listened carefully to the debate. My right hon. Friend the Home Secretary invited to us to reflect on the proposal from our constituents' perspective. I would like to say a few words from the perspective of the people of Leeds, a city that was shocked and traumatised by what happened in the summer. I agree with my hon. Friend Emily Thornberry, who said that, if we are to make our communities safe, we must build trust within them. Over the years, we have made a fair effort at that in Leeds, and there is generally good trust between all the communities in my constituency as we have tried to work together.
Encouragingly, having spent weeks in my constituency over the summer break, I have seen that trust built up and strengthened through the traumas that we have faced. Despite that trust, the events of the summer in Leeds came as a complete shock out of the blue. The community was unsighted and the events were totally unexpected. The families of the bombers themselves did not know that terror bombers were living in their midst. I am therefore a little surprised to hear Liberal Democrat Members and others say that nothing needs to change at all, because that is not the sentiment in my constituency. On the morning of
After many hours, the police forced an entry into the house in Alexander grove—it was feared that a bomb would be tripped and so on. The furniture had been removed, but they found a household bath full of chemicals. They had to work out the composition and combination of the chemicals and, crucially, those materials were of a different type from those used by previous bombers in Britain such as the IRA. The scenario was quite different, and it took more than 14 days to make the house safe with the help of chemists and other specialists before the forensic investigation could even begin. If a single suicide bomber had survived and been taken into custody, how on earth could the forensics have been completed in time to bring a charge? I simply do not understand the rationale of people who hold fast to the 14-day limit and will not contemplate any movement whatsoever.
I pay tribute to the courage of the security services and the police. They had to manage the situation in the neighbourhood in extraordinarily difficult circumstances, keeping people away from their homes for two days and explaining to them to the best of their ability that they were trying to make the place safe. In my visits to the neighbourhood since they returned home and in the surgeries that I have held in the Burley Lodge centre, I have asked people how they see things. They tell me that the context has changed since 9/11 and since
I thank the Home Secretary for the statement that he made in his contribution, although I regret that the moves, particularly on procedure, could not have come earlier, especially as the criticisms were well known to the Home Office. Nevertheless, I welcome the fact that, even at this late stage, those moves were made and there was an offer to review the safeguards for any continuing detention. Moreover, if we are moving in that direction, as I mentioned earlier, we should think of extending that to the period beyond seven days, let alone 14 days. The Home Secretary may wish to consider that, as it relates specifically to terrorist offences.
I am mindful that, in the concessions that he made, the right hon. Gentleman covered most, if not all, the amendments that we had tabled both as probing amendments and to improve the safeguards in the Bill. For those reasons, I seek to press only amendment No. 9, which I understand is accepted. I am pleased that, in a small way, I may have contributed to achieving greater consensus throughout the House. I seek leave to withdraw amendment No. 8 which, as the Home Secretary rightly noted, was only a probing amendment.
That leaves the issue of the duration of any extended period. Again, it is with some regret that I see that, despite criticism from an enormous number of people across the spectrum, the movement by the Government has come only when the Government appeared to be facing defeat if they did not do something about it. I regret that because I had hoped that, in building consensus, we could do better.
If the Government are genuine in their desire to hold consultations with all parties in the House and will do so—the Home Secretary has given me an assurance privately behind the Speaker's Chair that that will take place within the next few days, so that it is not a last-minute matter on Tuesday night, and that all the amendments that are tabled will be given to us with proper time to consider them—the proper way of proceeding at this stage is for those consultations and talks to take place.
We have approached the matter from the position that we do not like any extension of 14 days. Our earlier willingness to support the hon. Gentleman's amendment, if it was pressed, was based, first, on the desire to reach a consensus with the Government if it were possible to maintain it, and secondly, on the belief that 28 days was not some trade-off or Dutch auction, but the outer limit of what is acceptable. I emphasise that to the Home Secretary. If he were to say 21 days, I would be a much happier man. We pitched the limit very precisely because we thought it the proper place to do so.
I would much prefer not to see this aspect of the legislation happening at all, but if it is to happen, and if the Government are sincere—I trust the Home Secretary in a way that I do not trust every Minister—we will work with the Home Secretary to try to achieve the consensus that he has always desired and to make sure that the legislation commands widespread support not only in this House, but in the country.
May I echo the hon. Gentleman's remarks about the helpfulness of the Home Secretary's comments? We have made a significant move forward—perhaps a greater concentration on the possibilities of consensus has been occasioned by the result of the earlier vote. The outcome is welcome, and let us move forward on that basis. I join the hon. Gentleman in feeling that, if the proposed discussions are a genuine attempt to establish consensus on this difficult issue, it is not appropriate for us to press our amendments this evening. I will not recommend to my hon. Friends that they vote against the clause standing part of the Bill, on the basis that we will return next week, when we will have an opportunity to make our points.
I agree with the hon. Gentleman and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 9, in clause 23, page 22, line 3, after 'to', insert 'a'.—[Mr. Grieve.]
Clause 23, as amended, ordered to stand part of the Bill.
Clause 24 ordered to stand part of the Bill.
Committee report progress; to sit again tomorrow.