[Relevant documents: The Third Report from the Justice Committee on the Counter-Terrorism Bill, HC 405.
The First Report from the Home Affairs Committee on the Government's Counter-Terrorism Proposals, HC 43, and minutes of evidence taken on 11( th) December 2007 and 19th February 2008, on the Counter-Terrorism Bill, HC 180- i and -ii.
The Second Report from the Joint Committee on Human Rights on Counter-Terrorism Policy and Human Rights: 42 days, HC 156, the Ninth Report from the Committee on Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill, HC 199 and the Government Response, Cm. 7344, and the Tenth Report from the Committee on Counter-Terrorism Policy and Human Rights: Annual Renewal of Control Orders Legislation 2008, HC 356. ]
Order for Second Reading read.
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I beg to move, That the Bill be now read a Second time.
The primary duty of any Government is to secure the safety of all their citizens. The threat we face from terrorism today is very different in scale and nature from any that we have faced in the past. It is more ruthless, very often aiming to cause mass civilian casualties, without warning, using suicide attacks and even chemical, biological or radiological weapons. It is international, drawing upon loosely affiliated networks across the globe that share not only an ideology, but also personnel, training and funds. It is more complex, exploiting new technology to plan and to perpetrate attacks;
and it is on an unprecedented scale, with more than 200 groupings or networks and about 2,000 individuals being monitored by the police and the Security Service in the UK alone. That figure is the highest it has been, and represents a new and sustained level of activity by those who wish to kill and maim and to undermine the values that we all share in this country.
The threat we face is serious and urgent. As my right hon. Friend the Prime Minister set out in his statement on the national security strategy, the new threats we face demand new responses from us.
The Home Secretary said in her opening comments that the threat to this country is unprecedented, rising and growing. Yet a mere two weeks ago, Lord West told the "Today" programme that Britain is a safer place today than it was a year ago. Is he right or wrong about that?
My constituency in Essex supplies about 6,000 workers to the City of London and other parts of the city. Is the right hon. Lady aware that they will be extremely grateful to her for anything she can do to make their working lives in London safer?
That is, of course, my responsibility as Home Secretary, and our responsibility as a Government—and I believe it is our broader responsibility as parliamentarians as well.
We have made far-reaching changes to our strategy to deal with terrorism, and created the Office for Security and Counter-Terrorism within Government to co-ordinate our response. We have significantly increased the resources available to deal with terrorism. We have redoubled our efforts to prevent violent extremism from taking hold, because our long-term challenge is to stop people becoming, or supporting, terrorists in the first place. With new funding to support communities and organisations tackling those who promote violent extremism, we will take on the ideologues and disrupt their efforts to radicalise individuals at risk in our society.
My right hon. Friend made a brief reference to increases in the numbers of facilities and individuals in counter-terrorism. What are we doing to ensure that information is shared effectively between the various agencies that now have responsibility in this area?
My hon. Friend makes an important point, and in fact elements of the Bill will help to facilitate the sharing of information. We in this country can be proud that we have agencies and a police force who are able to work very closely together in sharing such information, and who are also willing to work with our international partners.
In the long term, we must find ways to prevent people from turning to terrorism in the first place, but in the short term we must pursue vigorously those who commit terrorist crimes and bring them to justice. Since the beginning of 2007 alone, 58 individuals have been convicted in terrorist cases, half of whom pleaded guilty to their charges. Police, prosecutors and others involved deserve our thanks for their efforts, but they deserve more than that. Just as the threat from terrorism evolves, so our laws must adapt to remain effective. We must ensure that those whom we ask to deter, to investigate and to prosecute these most serious crimes have the tools that they need to do the job.
Given that prosecutors can use the lower threshold test of reasonable suspicion to charge a terrorist, why is it necessary for them to be able to charge now and then furnish evidence later? Why is it necessary to extend pre-charge detention when they can charge and then question post charge?
The threshold test is undoubtedly important, and it has been used in terrorist cases. It was, of course, available at the point at which this House previously decided there were arguments for extending the period of pre-charge— [Interruption.] Well, it was available at that point, but the House still made the decision that it was necessary then to extend the period of pre-charge detention. The threshold test nevertheless requires the expectation that sufficient admissible evidence will become available within a reasonable period of time in order to reach the full code test for charging, and there may well be circumstances—although I hope fewer than would have been the case previously—when that might not be the case. Notwithstanding the important contribution that the threshold test can make, there might still be such scenarios, and I would certainly be willing to write to the hon. Gentleman on what they might be, and to copy that letter to others.
Will my right hon. Friend say something to allay the fears of the Muslim community that it might be targeted under this proposed legislation?
My hon. Friend makes an important point. In my opinion, the most dangerous threat to any of our communities, and particularly to our Muslim communities, comes from those who would perpetrate or support terrorism in the name of Islam and by doing so pervert what is an important and honourable faith and religion in this country. By protecting our communities against that threat by bringing to justice those who would choose to do that, we protect our Muslim communities in the most effective way possible.
The Home Secretary rightly said that we owe the police and prosecutors gratitude for bringing these people to book. Has she taken any notice of the advice of the Director of Public Prosecutions? He does not believe that the extension to 42 days is required.
The DPP has taken the same position that those who saw me in front of the Select Committee on Home Affairs heard me take. I, too, accepted that there has not been, up to this point, a requirement to hold somebody for longer than 28 days. The argument is about whether or not we can all be confident that that would not occur in the future.
I have taken a flurry of interventions, so I shall make a little more progress and then take some more, particularly when I come to the issue of pre-charge detention.
Over the past two years we have comprehensively reviewed our existing legislation, identifying areas where we could do more to deal with the current and emerging threat. In particular we want to ensure, first, that full use can be made of all information when investigating and prosecuting terrorist crimes, and secondly that we have effective measures in place to deal with terrorist suspects after they have been charged and convicted.
On the first of those, the Bill contains measures to provide the proper statutory framework to retain and use DNA and other forensic material related to terrorism; to provide statutory gateways for the sharing of information with the security and intelligence agencies; and to make sure that all information can be used to defend challenges against asset-freezing decisions. The Bill will allow post-charge questioning of terrorist suspects, which many have called for. Taken together with the other measures in the Bill, that will help the police and prosecutors to ensure more successful terrorism prosecutions.
Post conviction, the Bill will ensure that those found guilty of terrorist-related offences receive a sentence that reflects the seriousness of their crimes. There will be a new requirement on convicted terrorists to provide the police with key personal information when they are released from custody, strengthening the arrangements for monitoring terrorist offenders in the community.
From the outset, my approach to this Bill has been to emphasise the importance of consultation and consensus-building. We have consulted widely, and at length, with hon. Members, the public, the police, civil liberties organisations, community groups and the judiciary. Our proposals have been scrutinised by relevant Committees here in Parliament, and by Lord Carlile, the independent reviewer of terrorism legislation. I believe that many measures in this Bill have already achieved broad support.
May I caution my right hon. Friend on consensus-building? It is important and I salute the efforts that she and her ministerial colleagues have made, but may I caution her that some in this House, including myself, who voted in favour of 90 days last time are a little concerned that the pendulum is going too far the other way on trying to build consensus? I caution her in that regard, because there is a balance to be struck, and my side of the pendulum does not get as much airtime.
I hope that my hon. Friend's side of the pendulum gets a bit more airtime. He rightly says that we have worked very hard, as I have outlined, to build a consensus around measures in the Bill, and I believe that we have succeeded in doing that in the vast majority of those areas. He is right, because in the end it is the Government's responsibility, and mine as Home Secretary, to take advice —[Interruption.] It is also Parliament's responsibility. We must take seriously the threat from terrorism and respond to the calls of those whom we task with protecting us from it to provide them with the tools that they need.
I do not believe that the DPP said at any point that he does not want the powers. He is, of course, a public servant, as are the senior police officers who have also made representations to us on the way in which they think we need to furnish them with the tools to tackle terrorism. It is therefore of some reassurance to people that the DPP has a significant role in our proposals for determining whether, as regards pre-charge detention, an application is necessary in an individual case or whether the powers that we propose should be brought into operation. I would suggest that that should at least act as a reassurance to people that we regard the provision as wholly exceptional and that we have placed significant safeguards around it.
The Home Secretary says that the DPP is a public servant, but to some extent we are all public servants. We need to take advice and listen carefully to those who know the coal face of counter-terrorism. Did the Home Secretary hear the remarks of Lord Dear on the radio this morning? He said that the 42-day pre-charge extension would be counter-productive and would fuel extremism rather than, as we all hope, being calculated to reduce the chances of terrorism exploding. Will the Home Secretary not listen to Lord Dear?
I am tempted to quote the words of a famous politician, who said that advisers advise, but Ministers—and, dare I say it, parliamentarians—decide. I hope that parliamentarians will decide on the basis of the wide range of advice, some of which I shall come to, that directly contradicts some of the other advice to which the hon. and learned Gentleman referred.
I shall make a little progress on the issue of pre-charge detention before I give way again.
I want to turn now to the issue of the period of time that the police have available to investigate and question a suspect before charge—the period of pre-charge detention. That issue has divided the House before, and today has seen that yet again. It is the issue in the Bill that has been the subject of the greatest debate. Indeed, some have questioned why the Government are returning to this thorny issue once again. Quite simply, the response of the law cannot remain frozen when the scale and the nature of the threat are growing.
I am grateful to my right hon. Friend, who is being very generous. Is it not the case that if the 90-day limit had been accepted in November 2005, she would not have come here today to ask for a shorter period of time? She has chosen—or the Government have chosen—42 days with a trigger mechanism because that is the number of days that they believe they can get through the House of Commons; but there is no evidence whatsoever to support such an extension.
As I shall say when I make my argument, in my view the maximum time period is not the most important issue. The most important issue is whether people feel that in all circumstances in the future there would never be a time when 28 days would be insufficient. If people believe that, the argument arises how and through what process it would be possible to extend beyond that.
Like other hon. Members, I have participated in the police liaison scheme, and 18 months ago I had the opportunity to see the sheer scale and complexity of investigations undertaken by the West Midlands police that involved mobile phones and computers. Will the Home Secretary undertake, during the course of her speech, to demonstrate clearly just how necessary it is to have this extension so that such investigations can be undertaken thoroughly?
My hon. Friend makes a very important point. The complexity of the investigations that he identifies is part of the argument that I shall make. In particular, senior police officers are clear that the combination of the changing nature of investigations to pre-empt and prevent potential terrorist actions and the scope and complexity of modern-day terrorist plots has the potential to impact on their ability to bring charges against terrorist suspects in the time currently available.
I am grateful to the Home Secretary for finally giving way. She said that she was of the same view as the Director of Public Prosecutions. Is she aware of the record of the evidence of the Select Committee on Home Affairs? Keith Vaz, the Chairman of the Committee, who is in his place, questioned Sir Ken Macdonald personally. The right hon. Gentleman said:
"But on the last occasion you were quite open about it, you did support it, you said you needed it, but on this occasion you think that the 28 days is sufficient?"
Sir Ken Macdonald said—it is absolutely clear from the record:
"We are satisfied with the position as it stands at the moment."
He is satisfied with the position, but the Home Secretary, bringing forward a new Bill, is clearly not. How can she say that she has the same position as him?
Is not a division clearly appearing in the House, between those who believe that we should remain passive and see what the terrorists inflict on us, and then react accordingly, and those who believe that at some stage we may need these extra powers, and that we should have them ready for the police to use before atrocities are inflicted on us? Those of us who quite rightly worry about the police abusing powers can look at their use of the existing powers. Is it not right that only a very small minority have been kept in detention for the maximum period? Most people have left. There is no evidence that if we extend the period, the police will automatically want to keep people for 42, 90 or 180 days, or whatever maximum we lay down.
My right hon. Friend is completely right. The police, like prosecutors, want to bring people to charge and to court as quickly as possible if they believe that there is a case to answer. The idea that it would somehow serve the police to maintain people in detention, when they were able to bring a charge, is fallacious. Also, it is a condition of the close work between the police and the Crown Prosecution Service during these investigations that a charge must be brought as soon as possible.
My right hon. Friend also makes the important point that we have a decision to take in the House about whether to ignore the potential risk or act now. Later in my speech I shall explain how we do that.
I want to make a little progress.
In much police work, investigation necessarily follows the crime. The presence of a victim is the start point. Forensic material from a crime scene and the ability to gather evidence facilitate an investigation, and very often help to identify a suspect. Upon arrest, only a few days may be needed to question the suspect before a decision is taken on whether to charge them with an offence. Terrorism is different. Because of the severe consequences of an attack, the police and the Security Service often need to intervene before a planned crime takes place. Critically, they may need to intervene at a very early stage in an investigation, before they have had the opportunity to gather admissible evidence, and perhaps with very incomplete intelligence about who is involved.
I am very grateful to the Home Secretary for giving way. She will know that a major trial in connection with Operation Overt and the alleged aeroplane plot is to begin this week. Two people—one is a constituent of mine, and the other may be—were apparently charged on the 28th day, although it has been claimed that the police had sufficient evidence to charge them on the 21st day or before. Can the right hon. Lady definitively rule out the possibility of that occurrence?
It is obviously difficult to talk about individual trials, especially ones that are due to start tomorrow, but the allegation to which the hon. Gentleman refers has been made on numerous occasions. I have sought assurances from the police that no such action has taken place, and they have frequently told me that none has. I have communicated that to some of the people who have made that allegation, but nevertheless it continues to be made—I know not for what purpose. However, I can reassure the hon. Gentleman that the occurrence to which he refers did not take place.
I am very grateful for my right hon. Friend's generosity in giving way, and for the way in which she has presented her case, both now and over the past few weeks. Will she confirm that, in the incident that has just been drawn to the House's attention, and in the very few cases—six, I think—that have reached 28 days, there is an important question concerning what people are charged with? While further investigation and questioning are very welcome after a charge has been brought, they cannot rectify a perennial problem with the CPS. That is that a lower charge is often made—
My right hon. Friend makes the very important point that, in our system, we should want and expect the most appropriate charge to be brought.
The gravity of the intended crime demands that our police and security forces act as soon as they can. Few would disagree with the need to pre-empt such attacks, but counter-terrorist investigations are challenging not only for the need to act swiftly and without detailed pre-emptive intelligence. There is a second challenge, and it has to do with the amount, and often the geographical location, of material that the police then seize and through which they may well need to search for evidence to make a charge.
Locating that material from countries overseas—such as Iraq, Pakistan and Afghanistan—and then combing through it can pose particular challenges.
The Home Secretary will be aware that, although seven different countries and a total of 300 suspects were involved in the investigation into the Madrid bombings, the 29 suspects who were charged were charged within five days. In many democracies other than ours, the pre-charge period is less than eight days. Will she explain what makes it so difficult for police in this country to investigate cases, compared with forces in Spain and other countries?
The example to which the hon. Gentleman refers involves charges made after the event, but he repeats a claim made by many people in the course of this argument—that, compared with other comparable democracies, this country takes a disproportionate approach to these matters. I ask hon. Members to consider what happens in France, where the investigative magistrates system means that people are often held for up to four years while terrorist cases are investigated— [ Interruption. ] The point is that it is actually quite difficult to make comparisons between the regime in the UK and that in other countries: only the other day, the Metropolitan Police Commissioner described it as like comparing apples and goats. There is a significant difference. People who make the case—as some have done in putting forward their argument—that we should look to regimes such as Russia or even Zimbabwe as examples of the way in which we should carry out— [ Interruption. ] People have made the argument in terms of such international comparisons, so I have to ask Members whether they think that all things considered we have a fairer and better regime in the UK than in some other countries. Notwithstanding the difficulty of making comparisons, I think they will accept that we do.
I accept that comparing common-law jurisdictions with non-common-law jurisdictions is not easy, but does the Home Secretary accept that in common-law jurisdictions, with which we certainly have equivalence, there will be, and is, no country that has 28 days' pre-charge detention, and that we have the longest period?
I am referring principally to respectable countries.
Will the Home Secretary also accept that whatever else she may say about the French system, it is a post-charge form of detention? Secondly, I rather hoped that she might acknowledge in the House that our common-law system has greater safeguards for the individual, and that she would wish to maintain them rather than move to a continental model.
First, I do not accept that the charge period in France is equivalent to that in the UK. Secondly, the hon. and learned Gentleman is slightly closer to a fair comparison when he talks about common-law countries, but we should remember that in the UK nobody is held beyond 48 hours unless it is with the express permission of a judge. Sometimes, some of the discussion suggests that in some way or another the period of detention is unregulated and not judicially supervised. It is not. I return to my former argument.
Some of the people who make the argument about international comparisons need to answer this question: "Where would you, as a terrorist suspect, feel most confident about receiving justice?" I do not believe it would be in some of the countries that are being used as comparisons to the UK.
Although the Select Committee found that there was no evidence for going beyond 28 days, we said that there was a case, building on the Civil Contingencies Act 2004, for looking at emergency situations. My right hon. Friend's definition of an emergency situation in the Bill is quite different from our suggestion. Will she be prepared to look again at the definition during the passage of the Bill to see whether it can be changed?
I am coming to the point that my right hon. Friend makes. Part of the reason for introducing the legislation as we did—for the process that we have gone through, and for the pleasure that I had of appearing before his Select Committee three times—was to ensure that we gave the most effective consideration to all the issues, including the one that he has raised. I can give him an undertaking that it is the sort of issue we need to examine carefully as the Bill progresses through Parliament.
To understand the growth of the challenge, and how the nature and scale of terrorism has changed, I offer a simple comparison. In 2001 the police investigated the last major IRA case, in which they had to analyse the content of one computer and a handful of floppy discs. The suspects used their own names, and their activities were confined to the Republic of Ireland and the UK.
In 2004 the police and the security services had to investigate Dhiren Barot, the key conspirator in an al-Qaeda operation in the UK. The case led to the seizure of 270 computers, 2,000 computer discs and a total of 8,224 exhibits.
No, not for a moment.
There were seven co-conspirators, and during the investigation police carried out inquiries in the USA, Pakistan, Malaysia, the Philippines, Indonesia, France, Spain and Sweden. In another very recent case, 30 addresses were searched within two hours of the start of the arrest phase of the operation; 400 computers and 8,000 computer discs were seized, and there were over 25,000 exhibits. That operation, too, involved significant international connections.
The trends are very clear. Terrorists, living and working in our society, have learned how to use technology to cover their tracks. They travel and network, sharing experiences and learning from mistakes.
I am grateful to my right hon. Friend, who is being generous in giving way. A good comparison is that of wearing a hard hat on a building society— [ Interruption. ] Not Northern Rock. On a building site, someone may hope that a brick will never fall on their head, but it is as well to be prepared for the possibility that that might happen.
With reference to the complexity of the technology, does my right hon. Friend not agree that we are dealing with ever more complex encryption systems, which are more widely available and infinitely more complex than even two or three years ago, and will continue to become more complex in the future, and that we therefore need to plan to enable our forensic investigators to unencrypt very deeply encrypted material if we are to prevent further terrorist attacks?
My hon. Friend has considerable expertise in information technology, and she is right of course—not just in the examples that I have given but in other ways—to say that technology is becoming more sophisticated. Notwithstanding the changes that we have made to the law to help investigators to crack encrypted information, it is becoming more complex, and terrorists are learning lessons and using that technology.
To deal with this problem, in 2000 a criminal offence of withholding passwords and encryption keys to hard drives was passed into law. The offence of using such things for terrorism has been increased recently. How often has that offence been used in terrorist cases?
I do not know the answer to that question, but I will make sure that the right hon. Gentleman gets a response. However, what I was saying was that notwithstanding that change in the law, my hon. Friend Margaret Moran was making an important point about the development of technology. What we know about terrorists and their plots is that they are increasingly making use of those developments in technology.
I thank the right hon. Lady for giving way a second time. Her argument is that the terrorists are using more and more complex techniques, which are difficult for the state to deal with, yet she cannot tell us whether the state has used the proper legal apparatus and criminal charges to overcome the problem. If she cannot make that judgment, how on earth can she judge how many days she needs?
I am sorry that I gave way to the right hon. Gentleman again.
Terrorist plots in this country now almost invariably involve multiple connections to many countries overseas for the movement of money and people, for command and control, for the sharing of advice and instructions, and for training. The ferocity and the complexity of today's terrorist threat therefore means that there is a corresponding need for our law enforcement agencies to intervene early, and then to find and process what can be very large quantities of seized material.
Those factors, and the constant evolution of the threat, are the basis for the view that it may be necessary in future, in exceptional circumstances, for terrorist suspects to be held for more than the current limit of 28 days before charge. That view is shared by Lord Carlile, the independent reviewer of terrorism legislation. The view has the cross-party support of members of the Select Committee on Home Affairs, and it is a view shared by senior police officers. As Robert Quick, assistant commissioner specialist operations and the chair of the Association of Chief Police Officers terrorism and allied matters committee, set out in a letter to me of
"a pragmatic inference can confidently be drawn from statistical and empirical evidence arising from recent investigations that circumstances could arise in the future which render existing pre-charge detention limits inadequate to ensure a full and expeditious investigation of detained persons."
I will ensure that a copy of that letter, which gives the clear and unequivocal advice of senior police officers, is available for Members in the House of Commons Library.
The problem with the Home Secretary's utterances is that we have heard all this before. A member of the ACPO TAM committee has said one thing, but the Home Secretary glosses over the fact that other members of that committee disagree. Would she like to tell the House the names of the members of that committee, and which of them support this measure and which do not?
I find the distain with which Mr. Grieve treats this country's most senior counter-terrorism policeman and his opinion somewhat disappointing. He might like to refer to the statement made yesterday by Ken Jones, the president of ACPO, in which he made clear his view and that of ACPO that the proposals in the Bill are necessary, proportionate and pragmatic. He was speaking on behalf of chief police officers. If the hon. and learned Gentleman would like to quote people who are against that view, he should stand up and give us their names.
A future risk has been identified, and there is consensus about the nature of that risk. The challenge for us, as law-makers, is how to take the necessary precautions to respond to it. There are three options open to the House. First, as was suggested, we could hope that the risk does not materialise—or think that if it did, we could rush through emergency legislation.
Secondly, some have argued that we could use the existing provisions of the Civil Contingencies Act 2004 if we needed to extend pre-charge detention. I agree with the Home Affairs Committee, the Joint Committee on Human Rights and Lord Carlile that that Act is not appropriate for these purposes. It is probably not even legally capable of fulfilling them, and it is certain that the use of that Act would be a draconian response compared with the proposals in the Bill. However, we have listened carefully to those who have raised that possibility.
I have had numerous amicable conversations with the shadow Home Secretary. His proposal of using the Civil Contingencies Act as a response to the risk implies that he, quite responsibly, recognises that there is a risk to which we must determine a response. I argue that that Act is neither legally capable of providing that response, nor appropriate in such circumstances. Our proposals are more appropriate.
I am very happy to speak for myself on this. Let me be crystal clear: there is not one shred of evidence for an extension beyond 28 days—full stop. When we deal with Ministers who conjure up nightmare scenarios—whether or not we agree with them, or believe that they are probable—we try to give them answers. As I shall explain in my speech, the answer to the nightmare scenario is the Civil Contingencies Act. I do not think that it will ever be needed, but that is the answer. There is no reason whatever to go beyond 28 days.
The right hon. Gentleman has accepted in his proposition that even if we are talking about a nightmare scenario, as he describes it, it is nevertheless a scenario that exists, and he has proposed a way of dealing with it.
Throughout the process, I have tried to take a constructive approach. That is why we have listened, and have looked closely at the principles of the Civil Contingencies Act, as we were asked to do by the Home Affairs Committee. We have translated key elements of the Act into our proposals. They include provisions to limit any extension to pre-charge detention to exceptional circumstances, and provisions strictly limiting the time for which it is available. Following the consultation, we are not now proposing a permanent, automatic or immediate extension of pre-charge detention beyond the current maximum limit of 28 days. We have moved a considerable way from that option.
I am grateful to the Home Secretary for giving way to me a second time. She is absolutely right: we did consider the Civil Contingencies Act, but we dismissed it because we felt that legal difficulties would prevent it from doing what needed to be done in an emergency situation. That brings me back to my earlier intervention. Will she look at the definition of an emergency? We considered a situation in which there were multiple plots at a given time, which overwhelmed the police. We felt that that would be when an emergency would arise.
I am sorry; perhaps I did not make myself clear enough to my right hon. Friend previously. The answer to his question is yes.
We will build on the principles of the Civil Contingencies Act, but we will come forward with our own proposals. First, we propose a reserve power, not to be used lightly, which would mean that a higher limit could become available only if there was a clear and exceptional operational need, and its use was supported by the police and the Crown Prosecution Service and approved by the Home Secretary. Secondly, even if brought into force, the higher limit could remain available only for a strictly limited period—up to 60 days—with no possibility of renewal. Thirdly, as in the Civil Contingencies Act, the bringing into force of the availability of the extended period would be subject to parliamentary approval by both Houses. Under our proposals, that would need to happen within 30 days. Fourthly, whether any individual is held under that power will be a decision for a senior judge, who can approve periods of detention of up to seven days. Individual decisions about any extension to a person's period of detention will rightly remain a matter for a judge.
On that point, critics of the Government have argued that Parliament is incapable of having a meaningful debate on the reserve powers mentioned in the Home Secretary's proposals, but has not the House for many years had meaningful debate on the extension of the prevention of terrorism Act powers? Does the Home Secretary not accept that her proposals would be substantially improved if the House, instead of having to wait 30 days, had the opportunity to vote on the reserve powers within a far shorter time—say, within 10 or even seven days? We could then have a meaningful impact on the process that she is setting out.
First, I agree with my hon. Friend that I am not as dismissive of the House's ability to play a role in holding a Home Secretary to account as others appear to have been in their opposition to the legislation. Secondly, of course the proposition of using the Civil Contingencies Act would involve a parliamentary decision on whether to bring the relevant order into operation. Thirdly, the issue that my hon. Friend raises is precisely the sort of issue on which I have no doubt that there will be discussion in Committee, where, I give him my assurance, we will continue with the consensus-building approach that we have taken up to now. Under our proposals—
Order. It is obvious that at this moment the Home Secretary is not prepared to give way. I remind hon. Members who seek to intervene that there are further speeches from Front-Bench spokesmen and a time limit on Back-Bench contributions, so interventions should be brief.
Under our proposals, in normal circumstances, no one will be able to be held as a terrorist suspect for more than 28 days—as now. Even in the exceptional circumstances that may trigger the new power becoming available—which we expect to be rare—no one could be held for more than 42 days at most. Other than in those exceptional circumstances, the pre-charge detention limit will remain exactly as it is now. Indeed, that limit will continue to be subject to annual renewal by Parliament. If not renewed, the limit would revert to 14 days.
The right hon. Lady has been very generous in giving way. The parliamentary scrutiny to which she refers is a sham, and it would be helpful if she would concede that point. If she wants to, she can get an extension to 42 days without any consideration by Parliament.
I have previously expressed my surprise at the extent to which parliamentarians are willing to call their own activities a sham. The hon. Gentleman may shake his head, but the proposition put forward by David Davis to the use the Civil Contingencies Act itself requires parliamentary approval. I presume that he is not suggesting that his right hon. Friend is proposing a sham.
No, I am not giving way to the hon. and learned Gentleman again.
In bringing forward these proposals, I seek to give hon. Members the fullest possible opportunity for debate and scrutiny. The Bill is an important one that has already generated considerable interest both in Parliament and outside, and there are clearly issues of genuine concern to Members on both sides of the House. But from the outset we have tried to take a different approach to this legislation—to be open and consultative and to try to forge consensus where possible. I hope that that approach will carry over into the debate this afternoon—that it will be a positive and constructive one that demonstrates the seriousness and diligence with which the House deals with terrorism.
I am grateful to the right hon. Lady for giving way. All those whom she has prayed in aid in support of her Bill today are those whose jurisdiction extends only to England and Wales. Has she consulted the police in Scotland? Has she consulted Scotland's senior Law Officer and the head of the prosecution service, the Lord Advocate, and does she have the support of the Lord Advocate—an independent, non-political Law Officer—for the measures that she has brought before the House today?
During the course of the Bill's development, there has been considerable discussion with representatives of the Scottish Executive, and that will continue during its consideration.
The measures in the Bill are precautionary, proportionate and necessary if we are to have in place protections to deal with the exceptional circumstances that none of us wants to see happen, but which all of us have a duty to prepare for, in case they do. I do not anticipate that even in these circumstances we shall often need to invoke the reserve power. Indeed, it is my sincere hope that we will never need to use these powers. But in view of the nature and scale of the terrorist threat that I have set out today, I would rather have the necessary powers on the statute book, there for use if we need them, than face the prospect of terrorist suspects walking free because the police have not been given the time that they need to gather evidence and charge them with an offence.
International terrorism presents one of the greatest threats to the UK. In this country we will always respond to terrorism through the rule of law and the criminal justice system. We task our police, our prosecutors and our courts with bringing to justice those who threaten British lives and our way of life through terrorism. They deserve our support as parliamentarians in providing the tools that they need to pursue, to investigate and to prosecute, and they need us to adapt those tools as circumstances change. I commend the Bill to the House.
Where possible, the Conservative party will always strive for consensus on security matters. In this Bill, there is much that we can support, and we will work with the Government to improve and strengthen the Bill in those areas. However, there is a line that a free country cannot cross without convincing justification. I have always taken Benjamin Franklin's view:
"Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety".
However, the proposal to extend detention without charge up to 42 days gives up essential liberties without delivering any additional, even temporary, safety. In fact, it is likely to make us less, not more, safe.
Last October, the Prime Minister said that
"the character of our country will be defined by how we write the next chapter of British liberty—by whether we do so responsibly and in a way that respects and builds on our traditions, and progressively adds to and enlarges rather then reduces the sphere of freedom."
The Prime Minister was right. Regrettably, some of what is proposed today does precisely the opposite.
The Bill contains many detailed provisions. We have called for some of the measures for years, such as post-charge questioning, and we welcome action at last in that area. There are measures that we can support in principle, such as making terrorism an aggravating factor in sentencing, notification requirements for those convicted of terrorist offences and travel restrictions on those convicted of terrorist offences. We may challenge the Government on other issues, depending on their case.
In her speech, the Home Secretary did not cover the proposal to appoint a coroner, to forbid the appointment of a jury and to hold an inquest in secret when terrorism is involved. Why can that not be achieved by having security-cleared coroners and juries similar to those used in secret espionage trials in the cold war? I want the Minister to answer that question when he replies to the debate.
My right hon. Friend is being too generous to the Home Secretary. Clause 64 allows the appointment of specially appointed coroners and juries to be dispensed with in any cases where the Government think it in the public interest to do so. Anything that might embarrass the Government could be deemed to be in the public interest.
My right hon. and learned Friend has accused me of something that I have never been accused of before—being too generous to the Home Secretary. The simple truth is that the comments by the Secretary of State for Defence in the past couple of weeks on inquests and how coroners should not criticise the Government in any way adds strength to my right hon. and learned Friend's point. We will test that proposal in Committee and on Report to ensure that it is necessary, proportionate and cannot be provided in some other way. My right hon. and learned Friend has my word on that.
Does my right hon. Friend share my concern that bereaved families and their legal representatives could be excluded from the process? Does he agree that the Home Secretary should leave those important considerations on coroners to the draft coroners Bill, which should be introduced?
I entirely agree with my hon. Friend. That is one route through the issue. The purpose of an inquest is to provide information to the public, as has been established in case law and statute over the century. I accept my hon. Friend's point, and, as I have said, we will test it in Committee and on Report.
I am also concerned about the proposal to make it a criminal offence to attempt to elicit information about members of the armed forces that is likely to be useful to a terrorist. Existing laws already cover that point, so I can see no benefit in introducing the provision—again, we will test that point.
We have pressed for a further range of measures, which are entirely absent from the Bill: lifting the ban on using intercept evidence in court to bring terrorists to justice; establishing a dedicated border police force to check for terrorist suspects and fugitives coming in and out of the UK; tightening the rules on extremists entering the UK to preach hatred; and banning radical groups, such as Hizb ut-Tahrir, that serve as an antechamber for terrorism. The Government can and should do much more to protect this country from the terrorist threat that we face, before resorting to draconian measures that sacrifice our fundamental freedoms. Frankly, it is nothing short of perverse that, in the same breath, the Government release guilty terrorists convicted in the proper way, such as Yassin Nassari, while asking for powers to lock up innocent people for six weeks at a time.
I put it to the Home Secretary that the Government are ignoring those very real threats to our security because they have allowed themselves to become fixated on two proposals, two great gestures, that have become the hallmarks of the Government's security strategy: identity cards—that great white elephant—and the extension of detention without charge. Today, we address the second: the proposal to extend pre-charge detention.
What is at stake? It is the principle of habeas corpus—an individual's right not to be held for prolonged periods without the state bringing criminal charges against him. That ancient right dates back to the Magna Carta of 1215; it is one of our most basic, fundamental freedoms that millions died defending in the last century. We Conservatives will not give it up lightly. It should be borne in mind that in five years the maximum period of detention has already quadrupled from seven days to 28—the current maximum limit that the House agreed at the time should be used only in the most exceptional circumstances. We heard that argument yet again today.
For non-terrorist cases, the limit is a mere four days. We have by far the longest period of detention without charge in the free world. Incidentally, before I talk about the other countries, I should say that I listened to the Home Secretary yet again confuse pre-charge detention with pre-trial detention. She compared the treatment on the continent with what is effectively remand, not pre-charge detention, in this country. However, putting that aside, which country has the longest period of detention without charge in the common law world? It is Australia, which allows 12 days' detention without charge. [Interruption.] We can talk about Zimbabwe in a second, if somebody wants me to; I shall come back to that. Canada allows one day. Even in the United States, which suffered the ultimate horror of 9/11, American citizens can be held for only two days before charge. If we were to extend the period still further, we would be in the same league as which countries? The first one, Zimbabwe, has been offered, and even China allows its police to hold suspects for only 37 days.
What is the evidence that might lead us to sacrifice even further this basic, fundamental freedom? There is none. Our senior law enforcement officers do not support an extension, whatever the Home Secretary says. Incidentally, on the question of naming people who have talked to us about the issue, I should say that, given the Government's track record on the treatment of public servants who in the public interest disagree with them, the last thing I would do is name for the Home Secretary those who have given us evidence on this matter.
The senior law enforcement officers do not support an extension—nor does the senior prosecutor, the Director of Public Prosecutions. I listened with fascination to the Home Secretary trying to square what he said with what she believes. The former Attorney-General does not support an extension, nor does the former head of counter-terrorism at the Crown Prosecution Service. Neither this Home Secretary, nor the previous one, nor the one before—nor anyone else—has provided a shred of evidence that we need longer than 28 days.
I am grateful to the right hon. Gentleman for giving way. What would happen if—it is not an overwhelmingly likely contingency—he were Home Secretary and after the police had arrested a whole network of terrorists, perhaps after a terrible incident, they said to him that there was simply no way in which they could get through all the evidence, decrypt all the data and so forth, within 28 days? What if they desperately needed more time if they were to bring charges? What would he do in the absence of the powers that the Bill will give the Government?
In a minute, I shall come to exactly the hon. Gentleman's case and work through it for him; he is getting a bit ahead of himself.
Before he was nobbled by No. 10, even Lord West, the Government Security Minister, said when he was asked that he was not convinced of the need for the extension. I have spoken to the police— [ Interruption. ] The Home Secretary can choose to believe it or not. The police have coped perfectly well in every terrorist investigation that this country has faced to date. She organised some of the meetings, so she knows who they are. Lord Dear, the former chief constable for the west midlands, writing yesterday, said that an extension is unnecessary and that many chief constables agree privately with that assessment. She can challenge that, too, if she wishes.
Of course I will, Madam Deputy Speaker.
The head of MI5 has not even mentioned pre-charge detention when setting out the security challenges that we face, whether briefing in public or in private on Privy Council terms. The most that the Home Secretary can cite is Sir Ian Blair, who offers no evidence at all but merely draws a "pragmatic inference"—her words—that we might at some unspecified point in the future, faced with some unspecified threat, require an unspecified extension of detention without charge. That cannot be a sufficient basis for giving up a fundamental, basic right enjoyed in this country for 800 years.
Does the right hon. Gentleman accept that I actually cited the most senior counter-terrorism police officer in this country, as well as the Association of Chief Police Officers? Will he dissociate himself from the dismissive comments about those senior police officers made by his Front-Bench colleague?
The Home Secretary cited Ken Jones, the ACPO chief, at one point. I remember that when he first raised this issue I asked him directly—this is a conversation that I can repeat to her, as can he—whether he had at that point checked with the TAM committee, because I had been told by a member of that committee that he had not, and he said that, honestly, no he had not. I am afraid that the raw truth is that the headline "Senior public official agrees with Government" is an unsurprising one, and that many chief officers are worried about this, for reasons on which I am about to elaborate.
Instead of presenting evidence, the Government have tried, unsuccessfully, to make two hypothetical cases, one of which was mentioned by Mr. Davies. The first is the sort of case originally laid out by Andy Hayman, a previous senior terrorism officer, to justify 90 days. He described a scenario with more than 20 suspects, multiple locations, multiple targets, and multiple computers with encrypted files in different languages and dependent on foreign intelligence—a scenario posing an imminent threat and requiring early arrests. In fact, Operation Overt, the investigation into the alleged plot to attack 10 airliners at Heathrow in 2006, had every one of those characteristics; the court case is going to start this week. It was the biggest single terrorist plot that Britain has ever faced, yet the police were able to charge every suspect within 28 days, and those facing the most serious charge—conspiracy to murder—were charged within 21 days. Of the five held until the 27th or 28th day, two were charged with serious but lesser—significantly lesser—offences based on evidence that the police obtained before the 28 days, and three were innocent. Let us remember this point. Six people in total have gone the full 28 days; fully half those people were innocent. Apart from the natural justice aspect—
The right hon. Gentleman has cited a whole collection of people who, thank God, have not been affected by bombing outrages. How does he answer my constituent, Andy Brown, who came down to London when working for Liverpool airport to attend a conference to increase access to the airport for people with disabilities, whose body was blown asunder by the London bombing, and who, when he finally returned home, did so without either of his legs? The point that his wife, Jan, puts is that if it is at all possible, by detaining people longer, that we prevent one other family's life from being destroyed in this way, that is a price worth paying, in that those who have lost their liberty temporarily can be compensated, but there is no adequate compensation for my constituent.
The first thing I would say to his constituent—everybody will have enormous sympathy with somebody in that position; of course they will—
The crucial thing that we are being asked to do is not to exchange names; the electorate is looking at our judgment. None of us knows what terrible events may lie before us between now and the next election. That is what the Opposition will be judged on and what my party will be judged on.
The right hon. Gentleman is exactly right. We will be judged on our judgments—the judgment that we bring to bear to improve, enhance and maximise the protection of the public. The argument that I shall continue to make is that the measures proposed will not do that. When the Select Committee on Home Affairs took evidence on the event to which the right hon. Gentleman refers, Rachel North appeared on behalf of the victims. When asked about 42 days, she effectively said, "Not in my name." I asked the right hon. Gentleman to intervene when he initially said that he objected to the word "innocent"—
The right hon. Gentleman objected. He wanted to say, "Not charged", and the difference is as follows. I went to see the police who ran that operation, and I talked to them about the three people who were released uncharged. I said to them, "In that case, did you put them on control orders, where the level of proof is lower?" They said, "No." I asked, "Did you put them under surveillance?" They said, "No." I asked, "Have you got them under continuing investigation?" They said, "No." I asked, "Are you telling me they are innocent?" They said, "Yes." The Home Secretary arranged for me to see those gentlemen and the man who ran Operation Overt. "Innocent" is the word, and the right hon. Gentleman will have to live with it, whether he likes it or not.
No, not for the moment. I have to make a little progress. I shall give way shortly.
I have one other point that relates directly to the constituent of Mr. Field. What does he think that putting three innocent people in prison, in effect, for a month does to community relations and to intelligence? Does it not reinforce the recruiting sergeant for terrorism argument? I shall come back to that point, but how does he think that such action affects the risk to the public at large? The effect would not be what he tries to claim.
What if there were someone, as referred to by the Home Secretary, whom the police felt was guilty, but in circumstances where all the evidence was not available? We have heard in the past few days from the Director of Public Prosecutions. He said that in a terrorist case it is not necessary to have a 50 per cent. probability of conviction before charge—a very important issue. He said that in such cases the criterion is reasonable suspicion. That is the criterion for charging, so what is the criterion for holding beyond 28 days? Presumably it must be less than reasonable suspicion. So what is it? Is it unreasonable suspicion? It simply does not stand up. Reasonable suspicion is a very low criterion, but on that basis we still get 92 per cent. conviction rates.
The right hon. Gentleman is wrong. The threshold test requires reasonable suspicion, and it requires that it is likely in the foreseeable future that sufficient admissible evidence will be gained in order to meet the criteria for the full code test, which does require that a conviction is more likely than not. It is not true that the Director of Public Prosecutions has said that one would need less than a 50 per cent. chance in order to charge.
The right hon. Lady should look again—that is exactly what he said. The simple truth is that a likelihood of finding evidence in the next couple of weeks gives the police their 42 days. The simple truth is that if the 28-day point is reached, and a policeman has a reasonable suspicion and expects to find the evidence in the 42-day period that the right hon. Lady wants, he can charge. That is why the Director of Public Prosecutions does not agree with her—the right hon. Lady, I beg her pardon. [Hon. Members: "What's wrong with "her"?] I will be careful.
Beyond that, there are still control orders and the option of surveillance. We are talking about one, two or three cases, and we have not even talked about the ability to use intercept evidence, post-charge questioning or the other measures that we have proposed to alleviate the pressure on the police. Faced with that evidence, the Home Secretary's predecessor changed ground and put a different hypothetical case. He conjured up a worst case, nightmare, doomsday scenario. "What if there were five Heathrow plots, with five gangs of terrorists acting in a co-ordinated way, aiming to bring down 50 aircraft? We could be overwhelmed," he said. More recently, the Minister for Security, Counter-Terrorism, Crime and Policing coined the idea of three simultaneous 9/11 attacks. I will leave the House to make its judgment on the probability of that hypothetical scenario.
And the Americans take the view that they need 48 hours to deal with that, not 28 days—let us be clear about that. I believe that the Minister meant attacks three times as large as 9/11, but let us move on.
Even in those circumstances, we could be in a position to trigger the Civil Contingencies Act 2004, which allows detention for a maximum of 58 days. I remind hon. Members that we are not proposing an alternative, but saying that the Government already have the requisite powers. We do not say that we believe that such matters will arise and that the Government should therefore put the measure in place. If they believe that such events might happen, they already have the power to deal with them and they do not need others. They have not understood that straightforward case. The Civil Contingencies Act is rightly capable of being challenged and overruled by judicial review if the emergency does not exist. That provision is rightly subject to approval in the House as soon as possible, but within a maximum of seven days. It is rightly available only in a case of genuine emergency. The Home Secretary tried to intimate that, without actually saying it, throughout her speech.
Before the right hon. Gentleman leaves alternative periods of imprisonment, I remind him that he mentioned in an intervention the Regulation of Investigatory Powers Act 2000 and its provisions to charge people with refusing to give up encryption. That power also exists under the Police and Criminal Evidence Act 1984 and the Prevention of Terrorism Act 2005. In so far as the refusal constitutes contempt of court, RIPA allows for incarceration, until the encryption is given up and the encrypted material translated, indefinitely—never mind 58 days, but indefinitely. In those circumstances, does he understand the Government's argument on encryption?
The answer is, "Patently not." The point of my intervention on the Home Secretary was that, to make a judgment on how long one needs—famously, she has had some trouble with that—one has to assess one's technical capacity. If one does not even know whether one has used one's full capacity, how on earth can one make a judgment about how long one needs? It is not possible. The judgment is flawed and based simply on a political, not a security, calculation.
The Government have failed to demonstrate that an extension of detention without charge is necessary either on the basis of the evidence or in relation to the nightmare hypothetical scenarios that Ministers have dreamed up. The danger is that extending pre-charge detention—yet again—would make Britain less safe. I am now dealing directly with the point that the right hon. Member for Birkenhead made.
First, such extension risks serving as a recruiting sergeant for terror because it is a disproportionate response, which will drive young Muslim men into the arms of extremists. Let us be clear: that is not a human rights point, but a security warning.
Not at the moment.
"I fear that it will play into the... hands of the propagandists, who will encourage young men and women to be misguided, brainwashed and induced into acts of martyrdom."
The second risk is that extended detention without charge alienates the local community. That cuts off the vital local intelligence, which is crucial to our counter-terrorism effort. Peter Clarke, who was, until his recent retirement, probably the most highly regarded counter-terrorism officer in the country said:
"We must increase the flow of intelligence coming from communities. Almost all our prosecutions have their origins in intelligence that came from overseas, the intelligence agencies or from technical means. Few have yet originated from... 'community intelligence'".
Will another extension of pre-charge detention increase the flow of community intelligence? We can read the Home Office's impact assessment, which was published with the Bill:
"Muslim groups said that pre charge detention may risk information being forthcoming from members of the community in the future."
Those are the Home Office's words about the Bill. The evidence available shows that extending detention without charge will hinder, not help, our counter-terrorism efforts.
Perhaps the greatest risk of all is that prolonged detention without charge does the terrorists' job for them. Lord Dear describes 42 days as a "propaganda coup for al-Qaeda". Al-Qaeda wants to undermine our freedoms and way of life. Extended detention is the first step on the road towards its ultimate objective of undermining our democracy. That is why, for all the tough talk, this draconian measure is a sign of weakness, not strength.
The Home Secretary says that her proposals will be activated only when both the police and the Crown Prosecution Service request it. That is supposed to be the first check on the process.
On tough talk, as the Government pursue gesture politics through the Bill, in the name of being tough on terror, the irony will not be lost on the public that, on the one hand, the Government want to pursue detention of suspected terrorists, yet, on the other, they have released convicted terrorists early.
I thank the right hon. Gentleman for giving way at last. I heard the argument that he presented when the matter was previously debated in the Chamber. Will he answer now the question that he could not answer then? How many more terrorists will be recruited as a result of the extension and how many more were recruited as a result of the previous extension?
That is a foolish question for a variety of reasons. The hon. Gentleman will remember, if he was paying attention, that the head of MI5 said not long ago that there were at least 2,000 known supporters of terrorist cells in the country. There could be another 2,000. If he cannot assess how many there are now, how can anybody assess the number in a year or two?
One of the great failures of Government policy, by their own admission—the Prime Minister's strategy unit recognised it—is that the first, prevention part of Project Contest does not work. That part must be got right. If all the elements at the end of the process, such as catching and convicting the terrorists, act to increase the number of terrorists, we will have failed from the beginning. The hon. Gentleman must understand that important logical point. If he thinks that the only way to make the strategy work is to put a number on it, his judgment is not worth hearing.
If the right hon. Gentleman had listened carefully, he would know that I said that the "prevent" part—the first stage—is not working. The evidence is that, approximately a year and a half or two years ago, the head of MI5 said that 1,200 people posed a risk to the state. That figure is now 2,000. That does not sound like a success in preventing the growth of radicalisation.
Will my right hon. Friend reflect on the fact that the Bill contains nothing about the "prevent" strand at a time when that strand's flagship scheme—preventing violent extremism—faces considerable scepticism and inquiry from local authorities of all political parties?
My hon. Friend, who is well informed and has a strong and direct constituency interest in the matter, is right. [Interruption.] I say to the Home Secretary, who speaks from a sedentary position, that the Prime Minister's strategy unit found pretty much the same thing some time ago and there is not much sign of improvement.
No, I will not.
That issue is important to the Bill, because it sets the context in which it is supposed to be drafted. If the Bill does not intend to deal with terrorism, what does it intend to do?
I want to return to the Home Secretary's first check on this exceptional power that is proposed—this reserve power, as she calls it. I do not know why it is a reserve power, because she can exercise it virtually by the stroke of a pen. She said that the first check on the power is the police and the Crown Prosecution Service request. Let us consider how strong a check that is.
I want to take the House through one personal example that highlights how things can go wrong in a way that all the statistics in the world cannot. Let us take the case of Lotfi Raissi, which will be familiar to the Home Secretary. He was an Algerian pilot living in London. A few weeks after 9/11, he was arrested by British police and accused of training the 9/11 bombers to fly—he attended the same flying school. The FBI, which, to be fair, had made the first request, knew within weeks that he was unlikely to have been involved. The British authorities had no evidence that he was involved in any terrorist activity. Nevertheless, they held him in pre-charge detention for nearly five months.
Lotfi Raissi was eventually released without charge, exonerated of every accusation levelled against him and left to pick up the pieces of his shattered life. During his prolonged detention, he was stabbed twice by prisoners who thought he was a terrorist, suffered two nervous breakdowns, and lost his job and was blacklisted, so he cannot find a new one. So much for the argument that those with nothing to hide have nothing to fear from extended detention without charge. Lord Justice Hooper, in the Court of Appeal, completely exonerated Mr. Raissi.
I am sure that the right hon. Gentleman will want to correct the record: in the case he is talking about, the individual concerned was not held in pre-charge detention; he was held in extradition detention. It does not help the House for the right hon. Gentleman to conflate the two.
No, I did not. The right hon. Lady can check the record, because I have it here. What I am saying is that that is an example. She set up the idea of the Crown Prosecution Service and the police making an application as a check on the system. The Crown Prosecution Service and the police had to approve what happened in that case under—she is quite right—extradition proposals. But after a few weeks, the FBI, which had sought the extradition, knew that the evidence it thought it had was without substance.
The best way to deal with this issue is to quote from Lord Justice Hooper in the Court of Appeal, who completely exonerated Mr. Raissi. He called Mr. Raissi's continued detention without charge
"an abuse of process...a device to circumvent the rule of English law...brought for an ulterior motive...based on unsubstantiated assertions".
That is not what I say; it is what Lord Justice Hooper said in the court records.
I am not suggesting—I do not think that anyone has suggested this—that British authorities deliberately detained an innocent man out of malice. Nobody is suggesting that. However, the risk of miscarriages of justice, with such devastating and counter-productive consequences, is magnified when we give the police excessive powers, which they will inevitably exercise under conditions of high public, political and media pressure, as will happen after a terrorist event. We should remember that injustice and repression are not always meted out by hard-faced men in jackboots. They can be the result of grey bureaucracies acting in haste under enormous pressure.
The police and prosecutors who protect us are human, like everyone else; they make mistakes, like everyone else. Protecting fundamental liberties provides a critical check on those mistakes and a vital safeguard to prevent the abuse of state power at the expense of the individual.
We will work with the Government to strengthen the Bill. We will press them to take the measures that they have left out of the Bill. But we will not sacrifice our fundamental freedoms without the most compelling justification. That would do the terrorists' job for them. This country does not buckle, bend or bow to terror. It is not in our history, it is not in our character and it is certainly not written in what the Prime Minister calls the
"next chapter of British liberty".
Order. Before I call the next speaker, may I remind the House that Mr. Speaker has put an eight-minute limit on Back-Bench speeches, which applies from now?
The Bill is called a counter-terrorism Bill, but many of us have fundamental concerns that some of its provisions could be counter-productive. We do not dispute that a real terrorist threat exists or underestimate that threat. We do not pretend that Parliament or the police or other security agencies do not have to be alert to how that threat might develop in the future. However, coming from the experience in Northern Ireland, I do not accept that the answer to the challenges we face is simply to extend the period of pre-charge detention.
We have been told by Ministers and others that the period of pre-charge detention is not simply being extended and that various safeguards and protections will be in place first. Frankly, however, some of those measures are somewhere between fig leaves and figments of procedure, rather than credible and realistic protections. We are told that having extensions signed by the Home Secretary is a safeguard. The experience in Northern Ireland, where we were told that the safeguard was the Secretary of State's powers and the need for the Secretary of State's signature, was that each Secretary of State signed anything that was put in front of them. Indeed, Secretaries of State said that they were in no position to refuse or to do anything other than sign what was put in front of them, if it came from a Chief Constable.
Mo Mowlam, as Secretary of State for Northern Ireland, was in exactly that position when the then Chief Constable Ronnie Flanagan came to her about the parades in July 1997. She had to breach all the promises that she had made and agree, under pressure from the Chief Constable, to allow the parade down Garvaghy road under cover of darkness. Mo Mowlam said afterwards, to us and others, that she would ensure that she was not put in that position again. The only way that she could do that was to ensure that neither she nor any future Secretary of State had the power to sign things at the behest of a Chief Constable, which is why we ended up with the Parades Commission, under different legislation. Mo Mowlam saw that as the only way a Secretary of State could be protected from that pressure, because as she said, no Secretary of State could do other than to sign what was put in front of them in such circumstances. The Home Secretary's power in the Bill is therefore a hollow protection. I look forward to hearing examples—perhaps hon. Members know of some—of where Home Secretaries have refused or would be likely to refuse to sign what might be put in front of them under the Bill.
We have also heard the bizarre references to the parliamentary procedure that might be involved. If the Home Secretary comes to tell Parliament that the extension has been triggered, what is Parliament to do? Can we seriously question that? We face the scenario of the judicial process potentially being corrupted, with the cross-linking of the judicial process and the parliamentary process in a way that is dangerous. Although hon. Members might be able to control what they say on those occasions—no doubt the Government will control what is asked, too—who will control what the media say?
Does the hon. Gentleman not agree that it is strange that the Government cannot see the distinction between Parliament pronouncing on the generality of a state of emergency under the Civil Contingencies Act 2004 and Parliament attempting to pronounce on the detention of an individual when the facts will not be capable of being laid before Parliament at all?
I fully accept the hon. and learned Gentleman's point. Parliament will almost be in the position of a gameshow audience. It will have to pronounce somebody eligible for conviction—as opposed to eviction—on the basis of some statement or comment made about a particular suspect. That is a dangerous position for Parliament to be in. In fact, it fundamentally compromises Parliament and would compromise the judicial process, too. Such a procedure would also be a recipe for all sorts of media comment, which would be uncontrolled. We do not know in what direction that speculation could go, and it could fundamentally prejudice any subsequent trial. We will be asking that to happen if we let the Bill go through in its current form.
Given the experience of Northern Ireland—and, indeed, the experience of the Irish community in Britain—this House needs to be very vigilant when it comes to counter-terrorism legislation. The House cannot be like the Bourbons, who "learned nothing, forgot nothing". The fact remains that counter-terrorism legislation alienated lawful people; law-abiding and decent communities were made to feel like suspect communities and were fundamentally alienated. That meant that good people could not do good, following Edmund Burke's maxim that bad counter-terrorism law actually creates a situation where good people cannot do good.
In her opening comments, the Secretary of State mentioned some of the soft measures that the Government are adopting to ensure that no ground is provided for the terrorist threat or terrorist sympathies to grow in this country. However, if the Government continue to emphasise the soft measures at community level and the outreach and engagement activities in which they are involved at the same time as they present hard and offensive measures such as this Bill, they will compromise the very people in the Muslim community whom they want to work with, promote and champion. Those people will not be able to touch any of those soft schemes without feeling fundamentally compromised, and they are likely to be resented in their own communities. They in particular will feel the heat. Their emotions will be mixed, but they will feel a sense of guilt whenever the power in the Bill is triggered and becomes a matter of controversy in their communities. That is why I ask Ministers to stop talking about the various soft measures—even though they are important and necessary to national cohesion and positive community building—as though they were some sort of compensating side dish that the Government are serving up with this hard and unpalatable legislation. That is not the way to move forward.
Does not my hon. Friend find it ironic that when the Conservatives took the prevention of terrorism Act through the House and were repeatedly told that they were alienating the Irish community, the expression we heard was that they did not believe in appeasement? Is it not ironic that today we have heard such a liberal speech from a Conservative shadow Home Secretary?
Perhaps some people have learned from that experience. I will allow Conservative Members to make it clear if that is where they stand today. Many people have learned and many have changed their views. It was not only the Conservative party that put those sorts of measure through; it was done by Labour, too. With hindsight, perhaps everyone has realised their mistake.
Does the hon. Gentleman agree that, in its severity, the legislation before us today is light years in advance of the prevention of terrorism Acts that he may well have disagreed with in the past? Is not this Bill far more draconian than any other legislation that we have seen in the past 30 years, with the possible exception of the internment legislation introduced in Northern Ireland?
Large parts of this Bill are worse, but other aspects of Northern Ireland legislation were worse still. I accept the hon. Gentleman's general point and ask Members to reflect on whether, if the counter-terrorism legislation in Northern Ireland and the prevention of terrorism legislation here had incorporated the measures in the Bill, the situation would have been made much worse. It would have made it easier for people to say, "This is great. We do not need to subvert the state; the state is subverting itself by virtue of the fact that no due process worth talking about stands." They may have said that it created what amounted to a police state, where police powers rule over everything else and are more significant than any other consideration. That is what we need to guard against in the Bill.
Let us learn the lessons from the mistakes of the past and address the key issues before us now. Yes, there are threats, and they will continue to be tracked and monitored; all parties have made that clear in previous debates. Do we need to take this step of introducing a measure that the Secretary of State has told us may well not be used? On the one hand, we are told that the threat is live and real; on the other hand, we are told that we can rest assured that invoking these powers is a very remote possibility. Which is it to be? They cannot both be true.
I am pleased to follow Mark Durkan, who has, I think, injected an important note of realism and passion, drawing on his experience in Northern Ireland and, indeed, this House's experiences and the mistakes of previous Governments. I will return to some of those issues as I develop my speech.
I shall set out what we welcome in the Bill, as well as what we deplore in it. There are good and bad things in what Ministers have brought forward. The good things include the use of intercept evidence in limited cases—in our view, too limited—and the ability to question people after charge, again in a limited and incipient form. Those are innovations with the potential to help substantially the attack on terrorism, particularly if combined with the benefits of greater flexibility in the decision to charge already being exercised by the Director of Public Prosecutions, as we have heard. It is the innovations in law, together with the innovations in practice through the variation in the test applied by the DPP, which make the bad elements of the Bill both redundant and harder to understand.
Most of my speech will be taken up with attempting to meet the various arguments advanced by the Home Secretary to justify the further extension of the period of detention without charge. We on the Liberal Benches will fight tooth and nail against these provisions, which we believe will prove to be a serious erosion of hard-won freedoms. Just as crucially, the measures will prove to be counter-productive, as we have heard from the hon. Member for Foyle. Effective policing depends on intelligence, and successful conviction depends on evidence and witnesses. These provisions will ineluctably undermine both.
Nor are we persuaded of the need to abandon juries in coroners' courts or to give the Secretary of State extraordinary powers to appoint special coroners. That may seem a minor matter, but it is far from being so. Coroners' courts were one of the first and most fundamental bulwarks against the abuse by the state of its monopoly of the legal use of force.
I support the hon. Gentleman's point. The Bill confers on the Secretary of State the power not only to appoint a special coroner, but to sack any particular special coroner and then appoint another one who is more suited to his or her taste.
The right hon. and learned Gentleman reinforces my point. Frankly, this part of the Bill is an outrage against the traditions of this House and our constitutional traditions.
Only if the cause of death could be independently established—this is the history of coroners' courts—could citizens be sure that there was a whistleblower who would be alert to the corruption of state power. That is precisely why the Secretary of State should not have the right directly to appoint or dismiss a special coroner, and why juries are an essential part of the process of reaching judgments of fact, particularly in cases of death in custody.
We will seek to amend the Bill in Committee before we agree to sacrifice the good elements to get rid of the ugly ones, but there should be no doubt that if we on the Liberal Benches fail to exclude in Committee the provisions for an extension of detention without charge, we will vote against the Bill as a whole. The ugly parts, in their impact and their risks, substantially overwhelm the welcome parts.
On the question of tooth-and-nail opposition, will one of the Liberal amendments be to reduce the number of days from 28 to, say, 14 or even fewer days, as was originally intended? What was it that led to this miraculous conversion to the acceptance of 28 days, compared with 14?
The hon. Gentleman well knows that, sadly, my party is not yet in a position to carry the House on its own. We look forward to that day, but the reality was that his party was the one that wanted to compromise on 28 days. That is precisely why, to avert the greater harm, we fell in with that proposal. However, I think we should discuss whether it might be desirable to consider regularly, perhaps annually, as we have for other elements of terrorism legislation, whether it is necessary to extend up to the 28 days. My current judgment is that such an extension is justifiable.
It is already possible for someone to be held for four weeks without their knowing what they are charged with or being able to prepare any defence. To extend that to six weeks—a 50 per cent. increase—is deeply intrusive into hard-won civil liberties. Anyone present could, as a result of mistaken identity—there are many such cases on record—be held for six weeks in such a way. Any innocent citizen going about their normal life could be subject to a police and security services mistake.
That has already happened, with three people held for nearly the maximum period under existing law and then released without charge. It was also the case with 23-year-old Mohammed Abdul Kahar and 20-year-old Abul Koyair, after a raid on their home in Forest Gate, London, during which Mr. Kahar was shot in the shoulder. Both were later released without charge. Six Pakistani men were arrested at Gatwick on suspicion of terrorism in January this year, but were later released when it emerged they were all relatives of a key aide of General Musharraf. Mistakes are human. As we have heard from Opposition Members, it is certainly possible for the security services to make serious errors. I make no assumption that the errors are malicious; it is simply in the nature of being human that mistakes are made.
As David Davis pointed out, a mistake with terrible consequences was made in the extradition case of Lotfi Raissi, who spent five months in Belmarsh, accused of being a ringleader in the 9/11 attacks on the twin towers. The Algerian pilot suffered extraordinary stress, the loss of his job, blacklisting which denied him his right to fly, and the breakdown of his marriage. The only question now is whether he is entitled to compensation. An even more serious mistake was made by the police in the case of Jean Charles de Menezes. I make this point again merely to remind the House that the law exists to protect the weak, and mistakes can and do happen that can prove devastating for those involved. The incarceration of an innocent person for six weeks is not a matter to be taken lightly.
The Home Secretary argued that the extension may be necessary because of the complexity of information technology, and the sheer scale of evidence and encryption. The point on encryption was devastatingly dealt with by Mr. Marshall-Andrews, when he pointed out that someone can be charged on this count alone under part III of the Regulation of Investigatory Powers Act 2000, section 49 of which makes it an offence not to disclose a key to protected information. The maximum penalty—even if we do not go down the contempt of court road that he suggested—is two years' imprisonment, during which time other offences could certainly be investigated.
For the sake of the argument, however, let us assume that the material can be read. The Home Secretary has also argued that cases are becoming extraordinarily complex. In one recent case that she mentioned, there were three terabytes of evidence on computer—the equivalent of a library a third the size of the US Library of Congress or more than 10 million books. This point is a boomerang for the Government, because an extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed as the Home Secretary implies. Indeed, if it were necessary to read material equivalent to a third of the US Library of Congress within the proposed legal limit of 42 days, I calculate that that would require 238,095 police officers working eight-hour shifts. That is all the police officers in this country, plus 100,000 on loan from a friendly neighbour. [Interruption.] If the Government really believe that this is a cogent point— [Interruption.] Would the Home Secretary like to intervene? If the Government really believe that this is a cogent point, they would need to propose a period of detention far longer— [Interruption.]
Thank you, Mr. Deputy Speaker. As I was saying, if the Government really believe that the point about complexity is cogent, they will need to propose a far longer period of detention than 42 days, or even 90 days. Of course, the Government are not proposing such an extension because that argument is entirely spurious. No one searches every document. The police and the security services will have to go on using search engines for key terms as all the rest of us do.
Curiously, even though other countries are faced with similar threats, none of those whose system of law is most directly comparable with ours has chosen to extend the period of detention to anything like the current 28 days, let alone 42. It is true that Canada alone clings to the traditional habeas corpus, with a period of detention without charge of just one day—due, no doubt, to the influence of our sister party over many years.
Why does the hon. Gentleman believe that the Government have this obsession with 42 days? Does he, like me, suspect that it is all about posturing to make them look tough on terrorism and us look soft, and if that is the case, is that not the most ridiculous way to try to take forward this very important issue?
I do not know what goes on inside the minds of Government Front-Bench Members; as the hon. Gentleman points out, reading their motives is quite a mystery. Therefore, I will try to deal with the arguments as they are put forward in the Bill and the House, rather than make any assumptions about ulterior motives the Government might have. However, as the hon. Gentleman suggests, playing the numbers game is certainly easier than addressing some of the other means of tackling terrorism.
I was merely referring to the traditional period of one day, and I shall now continue that point by observing that the United States and two other common law jurisdictions—South Africa and New Zealand—have extended the period to two days. Ireland has seven days—as, indeed, we had in extremis when we were fighting the more deadly threat in sheer numbers of republican terrorism. Only in Australia has the period of detention been extended to 12 days, but it is still less than half the period under our own current legislation, let alone under what is proposed. Also, there are specific reasons for doing that in Australia, as the law has significant restrictions on questioning, including time restrictions.
Are all these countries that are so comparable to our own country in their legal traditions so wrong? Are the threats that we face so unique that they require us to abandon our historical safeguards against the abuse of state power? The Liberal Democrats are not persuaded.
Moreover, there is a real risk that these provisions will prove to be wholly counter-productive in the prosecution of terror. Effective policing always requires the co-operation of the policed, without which intelligence is almost impossible to glean. Where will the willing informers be if the British state is seen to have declared war on a minority community? Prosecution requires witnesses to give evidence, but will the witnesses be forthcoming if their families and friends feel that they are aiding and abetting a state that is using disproportionate and discriminatory powers?
These are not idle worries. The Home Affairs Committee has stated:
"Extended pre-charge detention carries the danger, which should not be underestimated, of antagonising many who currently recognise the need for cooperating with the police".
The Equality and Human Rights Commission astonishingly warned yesterday that if this legislation went through, it might take the Government to court. It also stated:
"In relation to the principle of non-discrimination, the Commission is concerned as to the potentially adverse impact the proposals will have on Muslim and other ethnic minority communities and on community relations more generally."
"The Commission believes, if the Bill becomes law, this will present difficulties for policing 'with consent' and for the prevention and detection of terrorist offences where co-operation and public confidence in the police service is an important consideration."
Having heard what the hon. Member for Foyle has had to say, I do not seek to draw an exact parallel between the proposals in the Bill and what happened when internment was imposed in Northern Ireland on
I should say something at this point about the much-vaunted parliamentary safeguards suggested by the Home Secretary. We are told that this would not be an automatic extension of the period of detention without charge, because Parliament would have to debate the matter. However, the proposals only guarantee that any parliamentary debate would be held 16 days after the maximum length of time that a suspect could be held. By that time, either the suspect would be charged, in which case any debate would be dealing with a matter that was sub judice, or they would have been released without charge, in which case the debate would be academic.
Those of us who were in Parliament in the 1990s were asked to vote year after year on the prevention of terrorism legislation, and we know that on a whipped vote parliamentary scrutiny is not as valuable as my Front-Bench team suggests.
I am grateful to the hon. Lady for making that point and giving us a timely reminder of what can happen when enormous public pressures are involved. Other hon. Members have made that point; the hon. Member for Foyle gave a telling example about a former Secretary of State for Northern Ireland.
Further to the point made by Ms Abbott, what practical consequence does the hon. Gentleman think paragraph 41 and the paragraphs following it in schedule 1 will have on the decision that the Government or the prosecutors have taken to detain someone?
The hon. and learned Gentleman is far more versed in these matters than I am, and I would not like to speculate on that point.
I wish to finish discussing this issue by pointing out that, in effect, it would be parliamentary scrutiny of an Executive decision undertaken entirely after the event and without any capacity to influence that decision. If we vote for these provisions, let no-one here pretend that we have done other than extend the period of detention without charge. There will be no vote before the fact—we will not even have the ability to oppose a statutory instrument.
Some have suggested that the period before parliamentary approval should be shortened, perhaps to a week or 10 days. That would improve the provision's appearance, but the reality would remain fatally flawed. Why? Because we are dealing with a fatal mixing of the legislative and the judicial. If there is to be a debate on whether to extend detention while someone is being so detained, it is surely dangerous for us to look at the matter. What are the Government to say? They are bound to want to give details of the case in a prejudicial manner, noting the extreme seriousness of the circumstances and so forth. Alternatively, Ministers will clam up and say, "Trust us, but we cannot tell you anything." Debate will either be constitutionally outrageous or a pointless impossibility. Parliament should make the law, and not get involved in individual cases.
Ministers are entitled to ask what alternatives we would suggest in the face of a heightened threat. The Bill itself makes a good start on doing that, and I hope that we can build on that in Committee. First, the Bill contains the suggestion that intercept evidence would be used only in cases of asset freezing, but it does not go far enough. Such evidence should be admissible in all cases. That would give the prosecution the option to use it, even if it does not want to go ahead for reasons of avoiding disclosure and compromising techniques and sources.
I am a former prosecutor. Those who suggest that lawyers working in our prosecution service, be they procurators fiscal or those working for the Crown Prosecution Service, are not capable of making those decisions and are not sufficiently well motivated to do so, and that they would want to put our security services at risk when making these decisions do them a grave disservice.
I agree with my hon. Friend's point.
I reiterate that the Chilcot report pointed out various options. Some sort of judicial intervention has proved to be the way forward in both the United States and Australia, and if those jurisdictions can handle the matter, I am sure that we can.
The hon. Gentleman has rightly referred to intercept evidence being available for use, for example with regard to the asset-freezing procedures. Will he also bear in mind the fact that the Bill provides that such material can be excluded from the knowledge of the citizen and that the citizen's interest be represented only by a special advocate? Does he agree that such an arrangement would be profoundly unsatisfactory?
I am open to the possibility—I am sure the right hon. and learned Gentleman has thought this through—that there must be a screening procedure in matters of national security. I understand that that is the case in the jurisdictions of both the United States and Australia. The details of these matters need to be gone through in Committee. I agree with him that we must ensure that proper and adequate safeguards are put in place for the defendant.
It should be possible to continue questioning someone after they have been charged with an offence and not merely, as the Bill proposes, on that particular offence or on terrorist offences, but potentially on others related to it. That would allow an escalation of charges as evidence is assessed and accumulated. Equally, proper safeguards of the sort set out by the Joint Committee on Human Rights must be in place, and those are not contained in this Bill as they should be. I am thinking about video recording, the presence of legal advisers, a prohibition on repeated and harassing questioning, and so forth. The prosecuting authorities should be able to give assurances to key witnesses, not just about witness protection but about immunity from prosecution.
Perhaps the most important change since this House last discussed these matters has already happened. I am talking about the reduction in the threshold applied by the Director of Public Prosecutions from the 50 per cent. likelihood of a conviction before proceeding with a charge. I heard the debate between the Front-Bench spokespeople for the Government and the official Opposition. When one examines Sir Ken Macdonald's evidence to the Home Affairs Committee, one clearly sees that the official Opposition have the matter when it comes to the points that the DPP was making. It has never been the case that the CPS has to have a court-ready case at the point of charge, and there is inevitably flexibility in making that decision. That flexibility is precisely what has persuaded some of the foremost advocates of 90 days' detention two years ago now to oppose an extension even to 42 days. Lord Falconer, the former Lord Chancellor, has said:
"If it is not necessary because you don't need it to fight terrorism effectively, then you shouldn't do it. I strongly believe that the debate about should it be 28 days, 42 days or 90 days has moved on because of the threshold standard. We should recognise that we have addressed effectively the question of the time it takes to investigate".
We also have this on the authority of Sir Ken Macdonald, the DPP. In his evidence to the Home Affairs Committee, to which I referred when I intervened on the Home Secretary, he stated that
"if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible."
The full code test is that the prospect of conviction is more likely than not. Sir Ken went on:
"I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period".
Sir Ken made it clear that he was satisfied with the position as it stands in respect of detention without charge. The Government's attempt to pray him in aid of their position is quite wrong.
Moreover, Sir Ken's approach is working. He makes that clear in an interview with The Times today, which has appeared with felicitous timing. The figures suggest that the DPP and the CPS have more room to amend their judgments about charging beyond the flexibility that they have already described. If the charging decision were broadly in line with the policy as it has been declared to the Home Affairs Committee—that is, that a prosecution would be more likely than not—we would expect a broadly equal balance of convictions and acquittals at the end of the trial. However, the CPS special counter-terrorism unit has enjoyed a 92 per cent. conviction rate against 77 per cent. in other trials. Since the beginning of last year, Sir Ken's figures show an extraordinary consistency. The conviction rate, including those who plead guilty, is 92 per cent. for cases that concluded last year and 92 per cent. for the cases so far this year. There is clearly a lot of room left, in his judgment, to continue to apply flexibility.
The Liberal Democrats accept that our society faces a serious threat from al-Qaeda and from terrorism. In certain respects, the threat is greater than it was during the long fight against republican terrorism. These terrorists are not afraid to die, they do not give warnings and they want to cause mass casualties. We do not deny the need to reinforce our defences against such a threat or to ensure that we have the legislative powers to deal with it. However, the argument is a debate about means, not ends. The means that the Government have proposed are not proportionate to the threat and are not grounded in the reality of the response from many ethnic minority communities. They run a terrible risk of being counter-productive.
Some elements of the Bill are struggling to emerge as an alternative approach to the prosecution of terrorists: the use of intercept evidence and post-charge questioning. There is emerging consensus on an approach that does not play the numbers game with the days of detention but would implement practical measures that are consistent with our traditions. We will not vote against the Bill on Second Reading because we aim to nurture that approach and to delete the destructive positions for increased detention without charge that could in our view prove injurious to civil liberties and the successful prosecution of terrorism. Whatever else, we must never become what we are fighting.
Let me end with an appeal to the Home Secretary. We are in favour of consensus. We strive for it. Yes, there is new consensus. It encompasses the Liberal Democrats, the Conservatives, many Labour rebels, Justice, Liberty, Sir Ken Macdonald, Lord Goldsmith, Lord Falconer, former chief constables such as Lord Dear, the Joint Committee on Human Rights, the Home Affairs Committee and the Equality and Human Rights Commission—the list goes on. If the Government were serious about consensus, they would realise that public and expert opinion does not want a further extension of pre-charge detention. They should join the consensus now and amend the Bill.
"It is clear both from the evidence given to us and from other sources...that the terrorist threat facing the UK is real, acute and growing."
The common cause among all parties, regardless of their views on the extension of the period of detention, is the acknowledgement that terrorists want to destroy our way of life, our liberty and our democracy. We know this from the country's leading authority on security, the MI5 director general, Jonathan Evans. Last November, in a speech to the Society of Editors, he estimated that at least 2,000 individuals posed a direct threat to our security and added:
"There remains a steady flow of new recruits to the extremist cause".
That is the highest number ever, and there is no sign of its reducing.
An important role of a Government, if not the most important, is the protection of their citizens. In the aftermath of the 7/7 attacks in 2005, the Government and Parliament have been engaged in a constant debate, most notably on the power to detain individuals suspected of terrorist offences without charge, and on the fine judgment that has to be made on the balance between individual liberty and collective security. There is now a new world order, with new dangers and a need for new ways to deal with them.
I want to welcome the conciliatory and open-minded approach of the Prime Minister and the Home Secretary in developing the Bill. Its provision on pre-charge detention has moved significantly from the proposals that we first heard last July. Since the Government's bid for 90 days, the rhetoric has been abandoned. In fact, they have accepted most of the Select Committee's recommendations. The Home Secretary has appeared before the Committee twice and answered more than 149 questions. She has met many right hon. and hon. Members.
During the Committee's inquiry, which we extended, we took evidence from a wide range of people and groups. Many of them have been referred to already: the Director of Public Prosecutions, Sir Ken Macdonald; Lord Goldsmith; Shami Chakrabarti from Liberty; the Metropolitan police; the Forest Gate Two, Mohammed Abdul Kahar and Abul Koyair; and the Opposition spokespersons, David Davis and Mr. Clegg.
Given that the Bill has UK-wide application, did the right hon. Gentleman consider requesting evidence from the Scottish Law Officers?
Scotland has its own Committee structure and its own Ministers, so we did not seek evidence from those Law Officers.
In our report published in December, we concluded that neither the police nor the Government had made a convincing case that the limit of 28 days was inadequate. The DPP told us that
"our day-to-day experience as prosecutors has been that the 28-day period has been useful and effective."
He repeated that view, as the hon. Member for Eastleigh said, in The Times this morning. That is the view of the man who has to agree that there is enough evidence to prosecute.
In a report produced under my predecessor in 2006, the Committee stated that
"the current limit may prove inadequate in future owing to the growing number of cases and the increase in suspects monitored by the police and security services make it entirely possible, and perhaps increasingly likely."
Sir Ian Blair, the Metropolitan Police Commissioner, agreed with that proposition. Others who gave evidence to the Committee from all parties accepted the notion of very exceptional circumstances. Indeed, Liberty, which counts among its former officers two leading members of this Government over the past 10 years, proposed the use of the Civil Contingencies Act 2004 in such circumstances. However, the majority of the Committee deemed that that would be unworkable in such exceptional circumstances—such as a national emergency—and it was felt that there were significant legal problems.
Does my right hon. Friend accept that, contrary to the suggestion that we sometimes hear from the Treasury Bench, at no time has Liberty said that it will accept an extension beyond 28 days?
I agree with my hon. Friend. She is absolutely right that Liberty has never accepted that there should be an extension. However, the Committee concluded by a vote of 11 to one, with my hon. Friend Mr. Winnick opposing, that:
"If, in...exceptional circumstances, a temporary extension of the pre-charge detention period is deemed essential to secure successful prosecutions of terrorist suspects, the Government should consider building support for proposals that effectively reform the powers of the CCA, secure Parliamentary scrutiny and judicial oversight, but stop short of the requirement to declare a full-scale state of emergency."
I am grateful to all the members of the Committee who took part in our deliberations, particularly the hon. Members for Newark (Patrick Mercer) and for Reading, East (Mr. Wilson), who did a special amount of work to try to reach the compromise that the Committee finally accepted.
I am pleased that our recommendations have assisted the Government in formulating their proposals. The Bill contains many of the safeguards that we recommended. I also welcome their reliance on the consent of the Director of Public Prosecutions. However, there are three imperatives that I want the Home Secretary to deal with vigorously over the next two months.
First, I remain concerned about the length of time that may elapse before Parliament has to approve the reserve power of extended detention, because 30 days is too long and too late for effective parliamentary scrutiny. Involving Parliament earlier would allow for more transparency, better scrutiny and better accountability. Secondly, there must be a genuine national emergency. That was envisaged by the Committee as the discovery of multiple and complex plots aimed at causing massive loss of life, the extent of which would
"overwhelm the capacity and resources of the police and security services."
That definition is different from what the Government have in the Bill. I was pleased to hear from the Home Secretary that she was prepared to think about the definition of an emergency.
Thirdly, this place is the last place that should do anything that would act disproportionately against the Muslim and wider south Asian communities. It is a matter of record—some of the studies were referred to by the Front-Bench spokesmen of both Opposition parties—that members of the Muslim community are disproportionately affected. We should bear in mind the words and experience of Mark Durkan. I do not understand the Northern Ireland issue as well as I ought to, but I listened with great care to what he said about the impact that detention powers had not just on his community in Northern Ireland but on the Irish community in this country. That is why we have to tread very carefully. I want to see positive engagement by the Government with the communities affected. Without their co-operation and engagement with decision makers, I am afraid that we cannot win this fight.
I welcome a number of other aspects of the Bill that the Government have accepted further to our report. We concluded that the possibility of post-charge questioning would be an important tool in securing prosecutions. I am very pleased that that recommendation has been accepted and features in the Bill, along with the codes of practice that were also recommended. The Committee was also clear that it was ridiculous that British prosecutors could not use intercept evidence in court. The Prime Minister has accepted that in principle in his statements to the House on security issues, although of course there are issues that need to be considered.
I am therefore happy to support the Bill on Second Reading. It contains valuable and worthwhile proposals in the fight against terrorism. I accept the need for reserve powers, but in very exceptional circumstances, which I believe still need to be defined in the Bill. I hope that in Committee, the Home Secretary will work to build the consensus necessary to convince the House that the safeguards that she has proposed will meet the concerns that have rightly been raised and deal with the three imperatives that I have mentioned. As I said earlier, I am pleased that she is prepared to consider at least one of those points. We know that in the current climate some of our precious liberties have to be sacrificed for the protection of the public. None the less, although terrorists do not stop and question the rights and wrongs of what they do, we must—or we will become what we seek to destroy.
It is a pleasure to follow Keith Vaz. He is entirely right to say that there is always a difficult balance to be struck between individual liberty and collective security. Speaking for myself, my presumptions always favour the former. Save in exceptional circumstances, I do not ever favour the latter. It is from that perspective that I approach the Bill, which I think favours the state too much at the expense of the individual. Left to my own devices, were there to be a Division, I would vote against the Bill in the Lobby. I regret that our fire will, I think, have to be postponed until later stages.
Before I say anything about the Bill in detail, I have three preliminary points that are relevant to the totality of what I want to say. First, we need to keep in mind the fact that there have been four substantial pieces of legislation since 2000 that have touched on terrorism. Indeed, a whole host of other powers and offences are relevant. When there is an argument for change, a compelling case for it has to be made.
Secondly, and differently, we need to keep in mind the fact that when we give powers to officials, those powers are always capable of being abused, and almost certainly will be. When we consider the implementation of powers, we should never do so from the perspective of the ideal implementation, but always from the perspective of abusive implementation.
My last point, too, is related to that. We must remember that when the House surrenders powers to the Executive, we never get them back. The effect is cumulative. Whenever we examine a Bill that surrenders powers, we must keep in mind not just the present but the past and the prospective. The overall weight is what ultimately matters.
The Bill is important, and I had hoped to have more ample time to concentrate on five matters: pre-charge detention, inquests, restrictions on the press and whistleblowers, asset-freezing proceedings and post-charge questioning. I recognise that in the five minutes and 40 seconds remaining to me, I will not have an opportunity to do that. In any event, right hon. and hon. Members who have spoken about pre-charge detention, particularly my right hon. Friend David Davis, the shadow Home Secretary, have said all that I could sensibly say about that. I shall therefore concentrate on matters that have, perhaps unfairly, received less attention.
Oddly enough, the first such matter is inquests. The changes with regard to inquests are very important, and it is indicative that the Home Secretary did not refer to them at all. I suspect that she had a good reason not to do so, as I am about to outline. Let us keep in mind the fact that the changes to inquest law are being made against the background of the Defence Secretary going to the High Court to try to restrict a coroner's ability to reach unflattering verdicts. I acknowledge at once that jury trials in inquests are relatively rare, but they can be very important, especially when there is a need to secure public acceptance of the verdict. That was the motive behind the decision of Lord Justice Scott-Baker in the Princess Diana inquest—and quite right, too.
The Bill does two things with regard to inquests. First, it gives the Secretary of State an unappealable right to dispense with juries in circumstances set out in clause 64. Those circumstances are if the Secretary of State thinks that it is in the national interest, or that having a jury would imperil the relationship between the United Kingdom and another country, or that it is
"otherwise in the public interest"— an all-embracing phrase. Such a decision will be unappealable, subject to judicial review. I can well understand that a Government faced with defaults on the part of its agents would conclude that it was not in the public interest for society as a whole to know about those faults.
The second limb has to do with the relationship between the UK and another country. Let us say that one of the people on the special rendition planes died, and that the person had been dead when the aircraft was on British soil. I can see that this Government would say, "Oh, no, no, we don't want a jury-based inquest into that; it might imperil our relationship with the US." This is very dangerous stuff.
My right hon. and learned Friend has experience as a Minister and as a senior member of the Bar. From his experience, can he recall any espionage case that was tried with a jury at the central criminal court, say, from which national security information has leaked to the detriment of the state?
I do not think that I would go as far as that. I am not sure that I could agree with that proposition.
My other point about inquests has to do with coroners. In clause 65, the Government are taking unto themselves a very interesting power. For reasons of the public interest, the Government can sack an ordinary coroner and replace him or her with a specially appointed coroner. If the latter does not come up to snuff either, he or she can be sacked too, and another appointed instead. Those are the hallmarks of an authoritarian Government, and we should have no part of it.
Another part of the Bill has received no attention at all, save glancingly from my right hon. Friend the shadow Home Secretary. Clause 69 deals with whistleblowers and the press, and on the face of it, it is a wonderfully innocuous provision. It makes it a criminal offence to elicit or publish
"information about a person...which is of a kind likely to be" helpful to a terrorist. That seems entirely innocuous, but on reflection, one sees that it prevents investigative journalism and restricts free speech. It stops the whistleblower because it enables the Government to prevent the press from, for example, identifying security lapses at airports. If such legislation is required, there should be a public interest defence, but no such defence is provided for in the Bill.
The asset-freezing provisions in the Bill are in part to be welcomed, as they enable the citizen to challenge Treasury decisions. However, the rule-making powers in the Bill have been drawn in such a way that they will enable the Treasury to conceal an awful lot of information that should be available to the citizen.
For example, the rule-making powers enable proceedings to take place in the absence of the citizen or his representative. They also enable the Treasury to withhold relevant information from the citizen or his representative. The list goes on, but whoever drafted those rules had at heart not the interests of the citizen, but the interests of the Treasury. It would have been much better if draft rules had been published when the Bill was introduced, as we would then have known what we would be dealing with.
Finally, I come back to the centre of this debate—the length of pre-charge detention. The hon. Members for Eastleigh (Chris Huhne) and for Hackney, North and Stoke Newington (Ms Abbott) were entirely right in what they said, and as my time is running out, I shall make only two points about the proposal. First, it has jolly few friends. No one knows much about it, and no one supports it—especially not the Director of Public Prosecutions.
Secondly, the hon. Member for Hackney, North and Stoke Newington was entirely right when she spoke about the weakness of parliamentary control in these matters. A whipped vote in a short debate with scanty information about the liberties of the person involved is no way for the House to proceed: the hon. Lady is right, and I entirely agree with her.
I have been a little disappointed with the debate so far, although my right hon. Friend Keith Vaz gave a very good summary of what the Select Committee said, as opposed to what people might prefer it to have said.
I was pleased by the contribution from Chris Huhne, as it helped to remind me of what was in the briefing from Liberty. In fact, the hon. Gentleman could simply have read that briefing, and it is a little worrying that both he and the Conservatives appear to have entered into a consensus about what might be called the new Liberty party. We left off the debate about 90 days in November 2005, but we seem to have carried on with the same debate today, even though a great deal has happened in the meantime.
We have a new Home Secretary, who has tried to achieve some consensus in the House. She has tried to get people to come along with different proposals, and she has accepted that there will not be a power that comes in automatically. Instead, she has asked for reserve powers—
I am grateful to my hon. Friend. I was surprised at his dismissive reference to Liberty. Is he aware that he is talking about an organisation for which at least two Cabinet Ministers, and many distinguished Labour Members of this House, have worked? It is a very distinguished organisation, and it was an excellent briefing.
I am glad that someone is better read than I am. The bottom line is that those organisations exist to protect human rights. That is their raison d'être, but I remind the House that we have a duty to make sure that we protect the human rights of all our citizens. If we do not fulfil that duty, we are failing as Members of Parliament,
Unlike Liberty, however, we also have a duty to protect people's lives. I do not say that that organisation goes out of its way to threaten people's lives, but the decisions that we make in this House must strike the right balance between those duties, and we have to recognise that there are two sides to this argument.
From reading the papers, people outside the House might feel that the debate is only about pre-trial detention, but the Bill is about much more than that. The Government are not obsessed with 28 days, although everyone else is. The problem is that people have made that their cause célèbre: they have drawn a line in the sand and said, "We will go no further, this is it. We're not going to change our minds about 28 days." In fact, it is clear from the debate that some hon. Members would prefer 14 days to 28, or even fewer than 14. Unfortunately, the contention that the Government will not be able to change people's minds on this issue was made long before the Home Secretary talked about trying to get some consensus together.
The hon. Gentleman says that everyone in the House has settled views, but it has been said again and again in the debate that a state of emergency might warrant going beyond 28 days. It was suggested to the Government and those on the Treasury Bench—I note that they are all absent at the moment—that the Civil Contingencies Act 2004 could be beefed up in those circumstances, but the Home Secretary has decided not to do that.
The hon. Gentleman suggests that some people have got caught in a rut on this matter of pre-charge detention, whereas I believe that it is the Home Secretary who has got caught. The principal difficulty is that she has not been able to show any proper flexibility at all.
I do not think that that is so. I can see the difference between the positions adopted by the Home Secretary now and a couple of years ago. For example, one change is that in this Bill the Government are asking for a reserve power, where formerly they were asking for a full power. I can also see the safeguards that have been put into the Bill, but I cannot see any change at all in the position adopted by the Conservative and Liberal Democrat parties. I can see no willingness on their part even to think about extending pre-charge detention—
No, I will not give way any more, as I do not have time.
What I do see is a willingness to look at almost everything else apart from pre-charge detention. Liberty, the Liberals and, I think, the Conservatives would be happy to allow intercept evidence to be used. I agree but, although it might reduce pre-charge detention, it is not a reason for not having the extra insurance that the Government seek. They have talked about allowing questioning without charge. I agree that it may be a way of reducing the need for pre-charge detention, but it does not remove the reason for extra insurance. They have even talked about using the Civil Contingencies Act, which would allow even longer periods of pre-charge detention if my reading of it is right, but my right hon. Friend the Member for Leicester, East pointed out that the Select Committee considered that proposal impractical. The Home Secretary has used the Act's provisions to draw up something similar in the Bill, which is why the reserve power was proposed.
There is no logical reason why we should not have a reserve power. Everybody accepts that there is a real terrorist threat. As the Opposition spokesman said, we accept that there could be exceptional circumstances when we would need to go beyond 28 days.
No, I cannot give way as I have no more time.
There may be a need to go beyond 28 days. If so, the sensible thing would be to work out how to do so coolly and calmly in proper debate rather than waiting until we need to do it and have to pass knee-jerk legislation to deal with the situation. I cannot understand the logic of waiting until we have passed the trap before we do anything. My right hon. Friend Mr. Howarth mentioned hard hats. I would put it much more simply: would anybody wait until after the fire to discuss what insurance policy to take out? No, they want the insurance policy first.
What annoys me about some of the debate is that Parliament is being dismissed—as a sham, one hon. Member said. Some of the briefings say that the reserve power would be exactly the same as a power without reserve judgment because we could not have the legislation in place all the time. What would that mean in practical terms? To make sure that the power was on the statute book and could be used at all times, the Home Secretary would need to make eight or nine statements every year telling us that the Government were proposing to invoke the power. There would have to be eight or nine debates about the power every year to ensure that the Home Secretary could keep it in place. There would have to be eight or nine votes on the power every year. Come on—that will not happen. No Home Secretary from my party or any other party would risk that many hostile debates—and they would always be hostile.
Some people go further and say that use of the power could stop before the 30 days were up and then start again a bit later. I am not sure whether that would be possible technically, but what would happen in the House? Members on the Opposition Benches would be on their feet screaming and shouting. Members on the Labour Benches would be on their feet screaming and shouting. The media and the whole country would be screaming and shouting. In those circumstances, does the House believe that such an abuse could hold? The Government would not be defending 42 days; they would have to defend even 28 days, because we would still have to vote on that every year. If everybody saw that there was abuse of the system, they would vote against the 28 days and the whole pack of cards would fall.
I do not know the Civil Contingencies Act well but I cannot believe that its provisions can be so easily adapted. If that were possible, I should be looking forward to lobbying from Liberty about why we were taking such draconian measures—that is how the provisions of the Counter-Terrorism Bill are being described. In that case, why are the same provisions in the Civil Contingencies Act not considered draconian? There have been more red herrings in this debate than even Agatha Christie could stand.
The proposal is balanced; it says, "We recognise that there is a problem. We are not asking for powers. We are asking for a reserve capacity to invoke powers in exceptional circumstances." The Director of Public Prosecutions and the chief police officer would have to go to the Home Secretary. A statement would have to be made to the House within two days. A debate, with a vote, would have to be held in the House within 30 days. That is a measured approach.
I would rather make sure that we protect not just people's human rights, but their lives too. We are talking about life and death matters and we cannot take them lightly. We carry their weight on our shoulders. My right hon. Friend Mr. Field talked about one of his constituents who had been seriously injured. That could be any of our constituents—we need to guard against it.
Not since Rocky Marciano fought Don Cockell has there been a more one-sided contest than we have witnessed this afternoon and this evening in the debate. Indeed, if the House will forgive my saying so, Mr. Heppell personified Don Cockell in the debate, as the only supporter of the measures to speak so far—it is now 7.15 in the evening. It is such a rout that it almost feels like a liberty to join in. It is such a rout that if the measure passes with those provisions intact—if not tonight, later—it will be a triumph for party management but a serious defeat for democratic politics in this country.
It is a funny old world, Mr. Deputy Speaker—as a former Prime Minister once said. We heard a brilliant, bristling defence of liberty from the Tory Front Bench, backed by a brace of former Ministers in Mrs. Thatcher's Government, while Labour Members—with honourable exceptions, I grant—will be asked by their Whips to vote the measure through, yet year after year after year, as my friend, Ms Abbott, pointed out, Labour Members voted against the prevention of terrorism Acts on precisely the grounds that have been best adduced by the Opposition against the measure today: namely, that such laws sacrifice our liberties but guarantee us no extra securities. On the contrary, they act as a recruiting sergeant for those who want to destroy our liberties still further.
The Home Secretary was wrong when she described the threat that Britain faces as being on an unprecedented scale. The IRA campaign in Britain was far deadlier than the campaign of Islamist extremists nowadays. The Prime Minister came within an inch of losing her life in a hotel in Brighton. Members of Parliament were killed in Brighton, in this building and in their homes. A rocket was fired through the Cabinet window and the Cabinet had to take cover under the Cabinet table. There were bombs in Parliament, bombs in the Tower of London and bombs on the underground; there were bombs everywhere in this country but—at least on this side of the water—we never sacrificed the essential liberties that we are being asked to sacrifice in this flawed strategy, which will be my point in the four minutes remaining for my speech.
Yes, the Bill is an egregious measure and, yes, if it goes ahead it will make things that little bit more difficult, but it is part of a flawed strategy. If I may quote myself, when the House was recalled after the atrocities of 9/11, I said—sitting on the Labour Benches as I did at the time—that if we handled things in the wrong way we would create 10,000 new bin Ladens. That is exactly what will happen if we pursue policies such as these proposals, which act as a recruiting sergeant for extremism.
I know that extremist Islamist organisations are preying on the fringes of the Muslim community. I have been a victim of them myself, and much more deadly was what happened to the victims in Aldgate East underground station in my constituency whom I watched being carried by the tube workers and the emergency services on 7/7, or those being carried into the Royal London hospital in my constituency. I know that there is a problem. There are extremists, trying to lure young Muslims—boys mainly, but girls, too—on to the rocks of separatism, extremism and violence. But our point in opposing this measure is that those who support it are assisting those people. It is not, to quote the shadow Home Secretary, a human rights point; it is actually a security point.
We are making our avowed purpose more difficult to achieve by telling people in the Muslim community, who already feel beleaguered and besieged and who are told constantly in the yellow press and by some politicians, that they are somehow an enemy within. We are telling them that we are ready to suspend and abolish the liberties and the democracy that we say we hold dear—so dear that we are ready to invade other countries to impose them—at the first whiff of grapeshot. The 55 dead on 7/7 was far more than a whiff of grapeshot—that is true—but if we by this measure recruit new allies for bin Ladenism and for the mediaeval obscurantist mindset that he represents, we will, as has been said many times here, do the terrorists' work for them.
Indeed. I was about to turn to that very point. If Ministers listen to no one else in the debate, let them read the speech—still better, watch the video—of Mark Durkan. It was the most important speech made in the House today. He is here to tell us from the streets of the north of Ireland that the securocratic approach—the approach of the suspension and abandonment of liberty in defence of liberty—was fundamentally flawed and recruited thousands of new soldiers for the IRA campaign, to which I previously referred.
I represent tens of thousands of Muslims. Even my worst enemy in the House—there are a few—would concede that I have more interface with Muslims in Britain, especially young Muslims, than virtually anyone else all over this country. In the past week, as a candidate in the London assembly elections, I have been to three major Muslim events—in Barking, in Newham and in Tower Hamlets—and I will attend many more. I must tell Members—I ask them to believe this—that young Muslims in Britain are feeling besieged and unfairly put upon, and they do not need a radical cleric to make them feel that way. The idea that there are ideologues out there who are responsible for the radicalisation of Muslim youth is fundamentally flawed. It is not the imams or the ideologues who are radicalising young Muslims in Britain and, indeed, around the world.
All young Muslims have to do to be radicalised is to switch on the television news and look at the pictures from Palestine, look at the pictures from Iraq and look at the double standards being employed by western statesmen in relation to those kinds of conflict. That is what is radicalising the young Muslims here and abroad, and it will not be solved by this measure; it will be made worse. That is the truth of it. So I beg the Government, who have already got so many problems that even I am feeling sorry for them—notwithstanding what I said earlier, I do not want the Opposition to be sitting on the Government side in the next Parliament—to turn back from this folly. Folly enough there has been. Turn back from this folly before it is too late.
Today's debate has been about not whether to counter terrorism, but how best to counter terrorism. Whenever we do that, we have to address the unavoidable ethical and practical dilemmas faced by any open democratic society that is subject to the threat of terrorism. Much of the Bill is on the right lines, but the proposal to extend detention without charge beyond 28 days is not.
I understand why Ministers have come forward with that proposal, and I do not question their motives. I know that Ministers feel that they will be responsible if things go wrong and people are killed. I know that that is why they want to err on the side of what they see as security, set against civil liberty. But I think that what they propose is wrong—wrong in principle and likely to be counter-productive in practice.
In recent times, a lot of attention has been paid to what it means to be British. Well, one thing it means is that we do not allow the police or politicians to lock people up for a long time without charge. That is not some trendy, fashionable bit of political correctness; it was laid down in Magna Carta in 1215 AD, and it has been followed in the English-speaking, common-law democracies ever since. In Canada, the maximum is just one day. In the USA, South Africa and New Zealand, it is two days; in Ireland, seven days; and in Australia, 12.
Here in Britain, we already have a maximum of 28 days—more than twice as long as anyone else—yet the Government are saying that a further extension is necessary because anti-terrorist investigations can take a long time. However, as has been made clear today, other people equally involved and equally well informed believe that the current limit is quite long enough. In any case, there are alternative and better ways to deal with the problem of protracted investigations.
The Government have accepted the proposal, which I made some years ago, that the law should be changed to permit suspects to be questioned after they have been charged. So suspects could be charged with lesser offences related to terrorism and, if appropriate, charged with greater offences later. That has also been made easier by the lowering of the threshold for deciding that a suspect should be charged, and we have to remember that all this is set against the background that no one can be arrested unless there are grounds for suspecting them in the first place. Yet the Government now propose on top of all those changes, which would strengthen the hands of the police, to allow the Home Secretary—not in a crisis, but in individual cases—to hold suspects for longer than 28 days without charge on the say-so of the police and the Director of Public Prosecutions.
It has been suggested that that power would be constrained if it were subject to a parliamentary debate. It certainly would be a constitutional novelty: Parliament being recommended by the Government to deprive an individual citizen of their liberty, presumably on a whipped vote. To describe that as a kangaroo court would be an insult to kangaroos. Such a change would not be a defeat for terrorism; it would be a win for the terrorists.
Whatever the motives of the misguided zealots who become suicide bombers, the evil people promoting terrorism know that no democracy has ever been overthrown by terrorism. That is not what they are after. What they aim to do is intimidate us into closing down our open society. They want to provoke us into setting aside the libertarian principles that form the basis of our parliamentary and judicial systems. They want to be able to portray us as hypocrites who preach one thing and practise another. They want to be able to say that, when the going gets tough, we are just as reckless with human rights as they are.
Those people also want us, by our response to terrorist outrages, to take actions that alienate sections of our own law-abiding population and attract sympathy for their cause by getting us to lock up innocent people. So how we respond to the threat of terrorism needs to be considered very carefully. We want to thwart the murderous intentions of the bombers and assassins. We also need to thwart their propaganda. That is why I believe the Government's proposal is likely to prove counter-productive in practice, as well as wrong in principle.
The Government say that they want these powers in case the police and security services are overwhelmed by demands on their time, but the law already provides for that through the Civil Contingencies Act, which specifically lists terrorism as one of the types of emergency that it covers. The procedure laid down in that Act, which was passed by the House as recently as 2004, could be triggered in such a crisis, and Parliament could have a sensible debate about whether it would be appropriate to respond by resorting to the emergency provisions. That would not require the declaration of a state of emergency, and the use of such emergency powers could be subject to challenge in the courts. None of that applies to what the Government propose.
I hope that the Government will not proceed with their proposal to extend detention without charge beyond 28 days. Surely it would be better to develop a consensus in the face of the terrorist threat and to develop policies that were likely to thwart terrorist outrages while denying any propaganda advantage to the terrorists. I say that as Member for Holborn and St. Pancras, which is where two of the four
My broad interest is that, as some hon. Members know, I represent the largest number of Muslims of any Conservative Member. The vast majority of mosque-going Muslims in Wycombe are of the mainstream Barelwi school, as is often the case elsewhere in Britain. They are peaceful, moderate and broadly Sufi. They condemn terror unequivocally and oppose extremism, viewing both as fundamentally anti-Islamic. They make a huge contribution to our town.
Of course, I am not suggesting that Barelwis are the only Muslims who have such an outlook or make such a contribution. The pirs, or spiritual teachers, whom they follow are strongly anti-extremist. I am thinking of men I have met such as Shaykh Muhammad Imdad Hussein Pirzada, a former High Wycombe imam, whose al-Karam school, which is in the constituency of my hon. Friend Patrick Mercer, has obtained the best GCSE results in Nottinghamshire for three consecutive years, and Pir Syed Abdul Qadir Jilani, a scholar of formidable erudition whose Mawlid procession in London last Sunday I was honoured to attend.
Barelwis and other mainstream Muslims recognise that terrorists and separatists are ultimately seeking to extinguish their mainstream version of Islam by targeting and grooming their children for conversion to an extreme ideology. I perhaps take a more serious view of the weight of ideology than Mr. Galloway, although he acknowledged that it was a factor. The House will agree that we should not lightly legislate in any way that makes the position of such mainstream Muslims more difficult. I thus turn to the proposal to hold people without charge for up to 42 days, which leads me to my narrower constituency interest in the Bill.
As the House has heard, an Operation Overt trial begins this week. One of my constituents and a former inhabitant of High Wycombe face serious charges. I am told that one of these men was held for 28 days—
Order. The hon. Gentleman looks as though he knows what I am about to say. He must be careful about legal cases that are taking place, or are about to take place. I urge him to be extremely careful with his remarks.
Mr. Deputy Speaker, I was not in any sense going to comment on the trial. I was simply going to make the point that two of my constituents were held under Overt and not charged. I know that one of those men was held for 28 days.
Of course, I am not a Minister. Those of us who are not and have never been Ministers should be mindful of the responsibility that they carry and of the fact that Ministers often have access to information that the rest of us do not have. Given that, it would be irresponsible to oppose in principle an extension to 42 days. However, the harm that such an extension would undoubtedly do to winning Muslim hearts and minds, and to civil liberties more broadly, must be justified in practice by any good that it might do by preventing and deterring terror attacks.
A central difficulty for the Government—the Home Secretary could not avoid this today—is that by Ministers' own admissions it has not been necessary in any case to date to hold any suspect for longer than 28 days to charge them. If Ministers had broad and deep support for their claim that an extension to 42 days—apparently, that is a completely arbitrary figure in itself—was necessary, we would have to weigh it carefully. However, as we have heard, the broad and deep support is for not going beyond the status quo. We read today that that support is shared in private by the Attorney-General and the Solicitor-General.
The complex manoeuvres in the Bill to give the Commons a say in the holding of suspects beyond 28 days is a move by Ministers to break up that broad and deep support and to shore up their position with their Back Benchers. If that is the case, the first part of the manoeuvre has clearly failed. We wait to see whether Ministers have more success with the second.
I have at least one constituent who was charged within the 28-day limit—that suggests that the current limit is sufficient—and I must not forget that one of my constituents was held for that period and not charged. Whatever a man's character or history, it is no small matter for him to be held without charge for the best part of a month. That can have no small effect on his family, and perhaps on his employment and health.
The Government's case is not helped by the persistent suggestion that Ministers are less concerned with security than they are with spin. As recently as this morning, a Government spin doctor—I am using a newspaper's phrase, not mine—was quoted thus:
"We may have a parliamentary challenge on our hands...but in the end the public will see that" the Leader of the Opposition
"has out-sourced counter-terrorism to...Liberty".
It would be risible if Ministers who recently failed to prevent a convicted terrorist from leaving prison early and to ban Ibrahim Moussawi from entering Britain were to try to portray others as soft on extremism and terror, but that might well be the game. If so, the House can conclude only that Ministers are prepared to risk the position of Britain's mainstream Islamic leadership in the quest for a quick political win as the grim opinion polls stack up for the Prime Minister. Whatever the motive, the House must ask itself whether that risk is worth taking.
Al-Qaeda is seeking to lure young, vulnerable Muslims away from their traditional religious faith. It is trying to drive a wedge between them and their families, and to open up a chasm between them and the prospect of a happier, better and more fulfilled life that is no less authentically Islamic for being completely British. It is trying to set Muslims against non-Muslims. Those of us in the House who are not Muslims have perhaps a particular responsibility not to make that strategy easier to accomplish.
I have tried to warn consistently in the House of the dangers of separatism and extremism. That has not invariably been a popular course to follow in all quarters of my constituency. If it were proved to me that it was necessary to extend from 28 days to 42, I would vote to do so, but the House should not be willing to compromise good relations between Muslims and non-Muslims, increase the heavy burden that Britain's mainstream Muslim leadership bears, make more difficult the flow of information to the police and contradict key elements in the Government's Contest anti-terror policy for no tangible security gain in perhaps the greatest struggle of our time, in which all Muslims and non-Muslims should be, and yet can be, united.
I will concentrate my comments on reserve powers, the need to extend pre-charge detention and the use of intercept as evidence.
I place on the record my cautious and probably critical views on using intercept as evidence. I am clear the Bill is an attempt to say that if we used intercept evidence, we could convict people more easily; I understand the intention. However, the fact is that the technology that is used is fast-changing, and it will ultimately prevent effective tracing. That should be acknowledged. My second problem with using intercept as evidence is that the tracing and publicising of intercept evidence, even if it is used only by an advocate, could result in security agents being identified, which puts them and their families at risk. Both those factors should be considered, and I hope that they will be when the Bill is in Committee.
The Bill clearly outlines the many and varied challenges that we face. It attempts to put in place a legal and democratic process that will, in an emergency, support the security services, giving them adequate time to detect, detain and charge so that they can prevent further successful acts of terrorism. The process outlined in the Bill carefully attempts to do that, but it also protects individual liberties. The Bill acknowledges that the security agencies and police who work in the realm of coping with and reducing terrorism face enormous difficulties in gathering evidence effectively. The process is often slow and difficult, and it is regularly dangerous.
The Bill makes overwhelmingly clear the scale of the activity that we have to get our heads around. Potential terrorist activity is on a growth curve that is frightening for all. I believe that it was the previous director general of MI5 who said that there are today more than 2,000—perhaps as many as 4,000—potential terrorists who are being watched and about whom intelligence is being gathered. Many of them—perhaps all of them—have multiple identities. We have a serious problem, the scale of which we are beginning to understand. In addition, those people use thousands of CDs, mobile phones and computers. It is on record that it took special branch 60 days to put together one particular video, but when it did, it found the evidence that it was looking for: it was a video to encourage, persuade and ratchet up terrorism. These are difficult times. Gaining factual, evidential intelligence is problematic, and that more than anything else makes me sympathetic to supporting reserve powers to extend the period of detention without charge—with one, absolute caveat: that the powers be used in exceptional cases only.
I am reasonably satisfied with the process through which an extension to pre-charge detention may be granted, and I will later outline why. I am keen to hear the Government say who initiated the debate. We have heard that it was, in part, the Association of Chief Police Officers. I would like to know what evidence has been produced by the security agencies and special branch to persuade us that an extension of pre-charge detention limits is essential. I believe that that information should be placed in the Library.
The hon. Lady asks a rather pertinent question. I do not think that there is any material to be placed in the Library, because the security services never requested the extension. The extension was dreamed up by her hon. Friends on the Government Front Bench; that is the reality. They did so at a time when there was consensus on 28 days, and they departed from that consensus for reasons that remain a complete mystery.
I listened carefully, as I believe the whole House did, to the Home Secretary's speech, in which there were references to ACPO and other organisations, so I repeat my request. That information—I believe that it does exist—should be placed in the Library for all of us to read.
I did not believe that I was misrepresenting anybody's views. I was simply quoting what I heard today at the Dispatch Box. If the information exists—and I accept the caveats put forward by the Opposition—it is that information, more than anything else, that will persuade the majority of people to accept that reserve powers should be used.
As I say, the process outlined in the Bill that would allow reserve powers to be enacted is valuable. As we can see, the Director of Public Prosecutions and the chief officer of a police force would be involved. They would have to make a report and they would have to be absolutely satisfied that there were reasonable grounds for accessing the reserve powers. The Bill states quite clearly that all relevant evidence must be tabled, and that if an examination or analysis of evidence is appropriate, that must be clearly identified. All that persuades me that people outside the House who have the law in their hands are looking carefully at why any of our security agencies would feel the need to use the reserve powers.
We are told that in the third stage of the process, a statement will be laid before Parliament. That statement will outline the Home Secretary's belief, based on evidence given, either that there is to be an investigation into the commission, preparation or instigation of an act of terrorism, or that what appears to be an act of terrorism has taken place and has given rise to an exceptional operational need. The Government are clearly attempting to say that the facts of a situation must be investigated and statements must be laid before Parliament. I am not as cynical as many people who have spoken tonight; I believe that Parliament is more than capable of considering, digesting and, if appropriate, throwing out any argument advanced by the Government. People claim that the whipping system is too persuasive to allow that, but that suggests that they ought to look in the mirror, and not at some of us on the Labour Benches.
The Bill states that if Parliament does not support the reason for the enactment of legislation permitting the use of reserve powers, the person or persons in custody will be released immediately. It also states that there will be an independent review of and report on why the process was undertaken and whether it was appropriate to the application. All that persuades us that the process is clear and factual.
I am extremely grateful to the hon. Lady for giving way. Does she seriously believe that in August, when the House is not sitting, Members will return to Parliament to discuss a case—or rather, as has emerged, not discuss a case, as it may not be possible to do so if it becomes sub judice? Can the House really rely on that possibility, given that people's liberty is being threatened?
I believe that this is a very responsible House, and if it is deemed appropriate, Members will return to Parliament. I have no doubts about that.
To conclude, the process set out in the Bill is effective and clear. It carefully leads us to a point at which, if we use reserve powers, it is because we believe that it is appropriate to do so. The Bill outlines the fact that we face challenging times. It carefully states that there is a serious, significant minority who hold extremist views. These are complex times; it is crucial that we acknowledge that, and that we ensure that before another 7/7 happens, we have powers that we can move in with, and with which we can hopefully control and stop such events. That is the intention behind the Bill. I hope that the attempts to find consensus between those of us with different views will continue, and that the Front Benchers will pursue consensus. The strong point to make about the debate and what is to be achieved is that we could do so much more if we took a common approach and had a common understanding.
When the Bill was introduced, the Home Secretary said that it was partly the result of lessons learned from previous legislation, such as the Regulation of Investigatory Powers Act 2000, so that those working at the coal face who every day face the threat that we talk about from our comfort zones would be able to put things right. The hope was that it would bring the lessons learned from the past into the present day, but I see no evidence of that in the Bill. Rather it seems to have come off the top of the head of some special adviser or focus group in response to public opinion. The Government have not learned the lesson from the last debate about detention without trial and have decided to reintroduce the measure, despite all the inevitable consequences.
The Bill's justification is that terrorism is different, that it has severe consequences, and that often the resulting trials are very complicated. But organised crime has severe consequences, too: evidence trails from drug running or any other type of organised crime are incredibly complicated, and the perpetrators of such crime take advantage of technology like anybody else. Paedophiles make exactly the same efforts to cover their tracks. The Government are not introducing proposals today to include those types of crime. Try telling the victims of paedophiles and organised crime that they are not as important as the victims of terrorists. In fact, there are more victims of organised crime and paedophiles than there are of terrorists.
Another justification is that today's terrorists are different from the previous lot, but that is not the case. Terrorism is always countered in the same way. A number of my Conservative colleagues have personal experience of facing down and combating terrorism. I myself have had many experiences in Northern Ireland and here in countering terrorism when some Government Members were doing their best to prevent us from doing that job. Good counter-terrorism is intelligence-led; it needs community support and informers. Failure means that we all face serious consequences, but failures there are. There is no such thing as a 100 per cent. successful counter-terrorism policy, because counter-terrorism is a premeditated activity, often relying on the coverage given by communities.
I am sure that the Home Secretary did not mean to mislead the House, but one cannot simply compare a straightforward IRA case with a complex al-Qaeda case. Many IRA plots were incredibly sophisticated, extending to countries such as Libya, France and America, involving many people and using technology to avoid detection, and often—much more regularly than the present-day terrorists—they hit their targets, causing 3,000 deaths. The IRA came into this House and blew up one of its Members and bombed the Cabinet. As Mr. Galloway said, the IRA used real bombs that worked every time. We should not pretend that because today's terrorists are different, we should compromise more of our liberties. They are the same. They may have more ambitions, but most IRA bombs in the centre of London went off; they were not towed to the car pound by an overzealous car-parking attendant. The IRA were more and more successful, and we should not forget that.
Mark Durkan is right. He and I would never have seen eye to eye in Northern Ireland. Members of his communities may have been the victims of some of my activities. We would have debated what level of security was right for living with the threat, although we may not have agreed. I am sure that, in my time, we did things that may not have been received sympathetically, but we ensured that we undertook other counter-terrorist activities. Counter-terrorism is not just about convicting; it is often about disrupting terrorist organisations or operations. One day, one is sure there will be a conviction, but one needs the political courage to recognise that one cannot always get it right. One has to admit that sometimes mistakes are made in counter-terrorism.
Counter-terrorism is about a balance between extremes. We could do nothing or we could do everything. We could have internment and Guantanamo Bay. We could even put the pressures on police forces that may have led to the Birmingham Six and the Guildford Four convictions. Getting the balance right so that we protect our liberties while ensuring that we catch the criminals is the important part of the debate. It is an act of political cowardice to go quickly to the extreme. One Labour Member said that one should wear a hard hat in case part of a building falls on one's head; I can understand that if one is working on a building site, but out in a field one would look ridiculous wearing a hard hat as some form of risk coverage. We must strike the right balance.
The Bill is a missed opportunity. Not one of the 20 recommendations in the report to Ministers from ACPO on RIPA about how to make our surveillance more efficient has been included in the Bill. Instead, there has been an attempt on spurious grounds to lock people up without trial for 42 days—an arbitrary figure if ever there was one.
The Home Secretary likes to say that technology allows terrorists to co-ordinate and hide their activities, but we have huge amounts of technology on our side. We have GCHQ at Cheltenham and the police, and often such technology means that we do not need 42 days, or even one hour, but the Home Secretary will not tell us about the weapons that we have at our disposal—perhaps rightly, for the sake of security. She would rather let it be thought that the advantage is one-sided—that only the terrorists can use technology. The challenge in modern crime-fighting is to stay one step ahead, but that must not be at the expense of our civil liberties. When we do that, we fail not only the victims, but the whole of society. The challenge to the Government is to have the political courage to say to victims of terrorist incidents, that, unfortunately, sometimes we cannot do it all, but we act in the best interests of the whole nation and to defend all our liberties.
The Joint Committee on Human Rights, which I chair, has produced 10 reports on counter-terrorism policy in this Parliament alone, and three are tagged for today's debate. They all start from the same basic premise in human rights law: the state's positive obligation to protect us all from terrorism and violence, and the state's duty to prosecute those who are guilty and to make that prosecution more effective.
I agreed with the Home Secretary when she set out her principle that the strongest level of public protection to both secure prosecution and protect hard-won liberties should be the aim. The Bill brings forward improvements such as post-charge questioning, but the debate has rightly focused on pre-charge detention, and I do not agree with the Government on their approach.
Two and a half years ago I voted for 90 days maximum, and at that time I saw no alternative, but now I have changed my view. I cannot support going beyond 28 days for four reasons. First, there is now a coherent, alternative, human rights-compliant package of measures. Secondly, we have active experience of operating the 28-day maximum rule. Thirdly, the Government have not yet made their case for the need to go beyond 28 days. Fourthly, even if the 42-day proposal could be justified, the safeguards are woefully inadequate.
Many of the items in the alternative package were first advocated in our report of July 2006—an alternative system that would enable prosecution to take place more easily and avoid unnecessary detention. We have heard a lot tonight about threshold charging and the ability to charge people on reasonable suspicion of commission of an offence looking forward to what evidence may or may not emerge. We were told by the chief Crown prosecutor that 50 per cent. of terrorist cases are now charged on the threshold basis. We have the new offence of acts preparatory to terrorism, which is very broadly drawn. The combination of the very broad offence and the very low threshold is important. Frankly, if someone cannot be charged after 28 days on a threshold basis with acts preparatory to terrorism, they will not be caught on anything.
On post-charge questioning and the drawing of adverse inferences, I am concerned that we may sleepwalk into that position by consensus, and we need to make sure that we have proper safeguards. We are concerned about the Government response that it will ultimately be for prison governors to decide whether questioning should be allowed.
I want to reassure the hon. Gentleman that while we want to see post-charge questioning, systems need to be implemented to make it effective and fair. Indeed, our judgment is that unless such systems are implemented, the danger to the Government is that post-charge questioning will be successfully challenged and the intention behind the changes will be negated.
I will not go through the particular safeguards, because Chris Huhne has outlined them.
In his evidence to the Committee, the Director of Public Prosecutions said that intercept evidence would be useful along with the acceptance of the Chilcot review. My Committee recommended more specialisation within the Crown Prosecution Service drawing on experience overseas of the examining magistrates system, which has actually happened.
My Committee called for more active case management in judicial intervention in 2006. In part, that was an attempt to deal with defence tactics such as the suspects all choosing the same lawyer, which makes it difficult to conduct inquiries. In 2006, the DPP suggested that incentives should be introduced for people to give evidence, which might involve appropriate safeguards, lower sentences and witness protection.
When we visited Paddington Green, the lack of availability of police bail was mentioned—of course, police bail would not apply to major suspects, flight risks or key players. It was stated that there are often people on the fringes who are not flight risks—perhaps they were involved in funding—whose computers could be broken down while they are on police bail, subject to strenuous conditions such as those used with control orders. That recommendation came from the police who deal with such cases. So far, the Government response to that package has been to pick holes in each individual suggestion, and they have not been prepared to consider the package in its entirety. However, they have accepted that some parts of the package would reduce the pressure to go beyond 28 days.
We have experience of the 28-day limit with regard to the airline plot. Six people were held beyond 14 days. Three of them, as we have heard, were released just before 28 days and were innocent, and two of them were charged just before 28 days with acts preparatory to terrorism on the threshold charge basis. So far, because those cases have not come to trial yet, there has been no qualitative analysis of what went on in the police stations—there has been speculation—and we need to see that. The DPP has said that it has managed reasonably comfortably with 28 days, and chief prosecutor Sue Hemmings told my Committee that 28 days has proved to be sufficient.
The Government have not made their case. The consensus approach has been commendable, but my Committee produced a 101-paragraph report on the 42-day issue to which the Government responded in a mere four paragraphs without answering any of our arguments.
MI5 refused to appear before my Committee. It is happy to appear before a committee of editors, but it will not answer questions about the level of threat. MI5 has said that there are a lot more plots and suspects. If there are in fact more plots, it is, of course, worrying, but it could be that MI5 is more aware of the plots that already exist, which is safer. Unless we can probe that point with MI5, we do not know the answer to that question. It seems to my Committee that the level of threat is more or less the same as it was when we dealt with 28 days in this House.
We have heard the arguments about a doomsday scenario—three 9/11s on one day—which would be a civil emergency. My Committee criticised the argument about the Civil Contingencies Act 2004, because the 2004 Act does not provide for pre-charge detention. However, it would not be impossible to amend the 2004 Act, if necessary, to deal with that particular issue.
There is, of course, an impact on the communities affected. The Government response to our point on threshold charging stated:
"Communities most likely to be affected may react adversely if they perceive that terrorist cases are uniquely charged on a lower evidence threshold."
That is precisely the point in relation to the problems that would follow the introduction of 42-day detention. The key point is not whether the power is actually used, because the decision in principle would have that effect.
No additional judicial safeguards have been proposed, and the existing safeguards on 28 days are already inadequate. A statement to Parliament and approval by Parliament are not good enough, and we cannot debate those issues properly without prejudicing a trial. Consider how many times in this debate already we have been reminded of the sub judice rule. How on earth can we actually discuss in any meaningful way on a whipped vote the question of somebody's liberty or continued detention? It is simply not possible to go into the level of detail necessary to consider whether a time limit should be extended for the purposes of a particular investigation. That approach confuses parliamentary and judicial functions.
My Committee wants to see additional safeguards on 28 days. At the moment, the judge is not even allowed to question the basis of the arrest and whether there were reasonable grounds for the arrest. The judicial procedure is not a fully adversarial hearing, and we think that there should be special advocates for the closed part of the hearing and that restrictions on disclosure should be at least subject to an overriding requirement that the hearing be fair.
On habeas corpus, my Committee believes that this Bill and previous legislation exclude habeas corpus. The Government say that there has been no legal challenge, but in fact there was in the case of Nabeel Hussain. The High Court said that it could not review a decision by a High Court judge, and it also found that the warrant of further detention hearing was a judicial hearing. An application for habeas corpus would therefore be struck out as an abuse of process, because of that very judicial hearing.
Many other aspects of the Bill need improvement: post-charge questioning requires further consideration; threshold charging needs more safeguards; the control order regime needs to be looked at; and special advocates are also important. My Committee is extremely concerned about inquests, but I have insufficient time to discuss that matter, except to say that public interest immunity law could provide the answer, because it can apply to inquests.
My Committee will table amendments to give effect to the sort of things that we think should be implemented, based on our previous reports, and I will support the Second Reading of the Bill tonight in order to have that opportunity.
It is a pleasure to follow Mr. Dismore. I am delighted to hear that he has changed his view from supporting the 90-day limit, which we discussed some time ago, to supporting a limit that in my view is still far too overblown.
I want to discuss two things—consensus and history. I was extremely pleased to hear my hon. Friend Mr. Goodman discuss the al-Karam school in my constituency, which has achieved such notable results not only in terms of a reasoned and thinking approach to the problems that we have discussed today, but in terms of academic results. I have listened to those Sufi gentlemen at length, and I hope that I have absorbed a great deal of what they have to say.
On consensus, the threat that we are discussing today will certainly become a reality. Every day that passes, I think that the clock is running down before we experience a serious, concerted and lethal attack against this country. When that happens, I hope that Labour Members will not engage in cheap political point scoring about the views expressed by Conservative Members and some other Labour Members. It concerns me that there is a huge amount of cynicism over a subject that should be well above party politics.
I want to pick up the points that Mark Durkan has made so eloquently. I think that I am the only Member in the Chamber at the moment who has experienced internment—at least, it was internment from my side of the equation. I know that the hon. Member for Foyle has clear views on internment, but I want to use it as a yardstick of history to talk to the Government, without in any way trying to patronise them, about the problems that I saw as a young officer through 11 tours in Northern Ireland in the '70s, '80s and '90s.
I joined my battalion in 1975. Internment had come and gone, but I and many others had to try to pick up the pieces of that deeply flawed policy, which aided and abetted terrorism. Personally, I think that if we had not gone into that particular cul de sac, we would certainly have brought the IRA to its knees—perhaps temporarily—by about 1980. We had another two decades of trouble. Many of my friends were killed and injured in Northern Ireland, and I salute their memories. I very much hope that the Government look at the lessons of history and do not make the same mistakes and errors that were perpetrated all those years ago in Ulster.
To pick up the point made by Mr. Galloway, I should say that I fully acknowledge that this terrorism is not of the same nature. The IRA was visible and it killed and injured almost daily, despite the fact that big mouths such as me reckoned that we had them taped—of course we had not. The fact remains that in summer 2006, our enemies intended to bring down up to nine aircraft and kill in the region of 3,000 passengers and as many people as possible on the ground when the aircraft crashed. On top of that, our enemies intended to fracture both the international relationship between the United States and the United Kingdom and a coalition that—rightly or wrongly—was pursuing war on two fronts and carrying out the so-called "war on terror", which is not a phrase that I like to use.
Those grand strategic aims put the IRA's campaign into a completely different light. Yes, the IRA killed, yes it was visible—but it killed dozens rather than hundreds or thousands. It is against that latter eventuality that we have to prepare ourselves. In my view, 14 days is quite enough. I operated in Ulster with seven days, and we made that work. However, we are where we are; to me, 28 days is more than we need, and that is underlined by the fact that nobody—with one possible exception—has had to be detained for that length of time.
My next point is that, as Lord Dear said, our enemies will use the issue as a propaganda coup if we take it any further. Our enemies are not amateurs; they are not just ignorant gunmen or bombers. They do not wish to throw away their lives unnecessarily. They fully understand that they hurt us not just with bombs and bullets; a liberal democratic society is probably hurt more by propaganda. If we hand them this tool, they will use it mercilessly. First and foremost, they will use it in exactly the same way as the IRA did—to suggest that this is a racist or anti-religious Act directed purely and simply at the Muslim community. In the same way, the IRA suggested that internment was directed purely at Roman Catholics. That was not true, but it was enough that the IRA managed to persuade the international media that it was.
On the "Today" programme this week, that precise point has been made—that if the Act goes through, it is likely to conflict with race relations legislation. Whatever the truth and reality and no matter how lawyers argue, the Act will be perceived as anti-Muslim. It will act as the most perfect recruiter. I do not wish to labour the point, but let us remember those who were improperly detained in Northern Ireland under internment. They were completely innocent. They may have been republicans, but they were innocent of violent acts. When they returned to their communities, they became magnets—the most powerful advocates of the twisted version of the republican cause. I believe that we have already seen something similar in the operations at Forest Gate and the like, as a result of which recruitment for jihadists who would wish us ill has leapt ahead.
The hon. Gentleman is making a powerful point that resonates with many of us from Northern Ireland. However, does he not also accept that almost any piece of terrorist legislation will be interpreted in exactly the way he has described by those who wish to use it as a propaganda tool?
I take the hon. Gentleman's point entirely, but I would say this: we have gone far enough. We have legislation that takes us to 28 days; to my mind, we are lucky to have got away with that as much as we have. If we go any further, I suggest that we will hand a perfect victory to our enemies.
My last point has already been made. The one effect that we noticed when internment finished was that intelligence sources across the political divide dried up. The "carefully nurtured" touts, to use an Ulster phrase, whom we had turned, deployed and made to flourish—whom we were paying, frankly—suddenly ceased to provide the crucial golden flow of intelligence and information.
Having talked to members of the Security Service and highly placed police officers, I believe that the same phenomenon has been noticed already. The only way in which we will win this battle is through a concerted, orchestrated and thoughtful approach to, and use of, intelligence. If we get that wrong, we might as well give up—we can deploy as many gunmen, riflemen, policemen, soldiers or cameras as we like, but unless we have human intelligence sources, we will take casualties. We will. We must not allow that to happen.
In my last few seconds, I say this to the Government. The Minister, I know, is an extremely reasonable and sensible man. Please do not make the mistake again. We got it horribly wrong. Many people perished on both sides of the divide—security forces, terrorists and non-sympathetic civilians in Northern Ireland. Let us not get it wrong again. Let us understand that our liberties and freedoms are more important than anything else. Above and beyond anything else, the Government should study history and not pass the most powerful possible stick to our enemies.
I am pleased to follow a fellow member of the Home Affairs Committee.
Let us at least agree on one thing: no one in this House is soft on terrorism or has any desire to be passive in the face of an ongoing and acute terrorist danger. The atrocities of 7/7 came as no surprise. Of course, the four mass murderers were not under suspicion and had not been detained in any way. Outside the Government, there is a consensus on pre-charge detention—namely, 28 days. It is unfortunate that this issue has been brought forward. If there were a free vote, the Bill would undoubtedly be defeated by an overwhelming majority in the House of Commons.
I am disappointed that, having been defeated in November 2005 over the 90-day question, the Government decided to bring the issue back—without, as I will go on to say and as has been emphasised in the debate, any evidence to justify that. Why 42 days? Of course, the idea of 56 days was bandied about for some time. The only explanation for the period being 42 days is that the Government believe that with a trigger mechanism and the rest, that is the proposal that they have the best chance of getting through Parliament. Otherwise it would be 90 days again—or 60 days, or 56 days. They have picked the figure without any evidence.
Let me make my position clear. Patrick Mercer said that as far as he was concerned, 14 days was sufficient. If that were my view, I would not have proposed doubling the figure. I believe not that 14 days is sufficient, but that 28 days is necessary in view of the terrorist danger. Let me make another point that may come as a surprise to some. If there were compelling evidence, which could hardly be challenged, that it was necessary to go beyond 28 days, I would support it, because I believe that a country's security and safety must always come first.
However, there is no such evidence. I am pleased that my hon. Friend Mr. Dismore has decided not to support any extension beyond 28 days. When Sue Hemming, head of counter-terrorism at the Crown Prosecution Service, gave evidence to the Joint Committee on Human Rights on
"We have no evidence to support that we need beyond 28 days. We certainly have not needed it in any case until now."
As a member of the Home Affairs Committee, I was present when the Director of Public Prosecutions gave evidence and said that he was satisfied with 28 days. The piece in The Times today means that that goes to a wider audience. Those two very important people, who are much involved in the prosecution of terrorists, are not asking to go beyond 28 days, and it is difficult to take the view that they are somehow soft, or passive, on terrorism.
Let us not forget that in non-terrorist cases the absolute maximum period for which a person can be held is 96 hours—four days. To those who say that we do not sufficiently understand the complexity of terrorist cases, with all the evidence that needs to be dealt with, my response would be that 28 days is already seven times the period for which a non-terrorist suspect can be held. Surely that demonstrates that we have an understanding of the work that the police undertake.
My hon. Friend has referred to the overwhelming evidence given to the Home Affairs Committee and others. As a member of that Committee, can he confirm that its fundamental conclusion was that no case had been made that 28 days was inadequate, and that the subsequent discussion about special circumstances is little more than an attempt to provide a fig leaf, and an inadequate one at that, to enable the Government to attempt to justify, unsuccessfully—
It may have been long, Mr. Deputy Speaker, but I fully agree with every word that my hon. Friend said.
For terror suspects we have increased the period to seven days, to 14 days and, less than three years ago, to 28 days. This is not the first time that Parliament has faced the challenge of how to bring about the necessary legislation to protect the country and at the same time defend our traditional liberties. One of the most important of those has been mentioned by Opposition Members, but let there be no doubt that it is important to Labour Members as well—the right that has been built up over centuries whereby a person should not be held for a lengthy period without being either charged or set free. We should not undermine that right any more than is absolutely essential. That is why I believe that, having gone as far as 28 days, and without any evidence to justify an extension, we should leave it at that.
Mention has been made of the police. Sir Ian Blair wants an extension from 28 days. However, it is interesting that former senior police officers, including Lord Condon and Geoffrey Dear—a former chief constable of the West Midlands—are clear in their own minds that an extension is not necessary, and, moreover, that one would be counter-productive. Are they soft on terrorism? Are they unaware of the acute terrorist danger that this country faces?
In an interview over the weekend, the Home Secretary said that we had to be careful because if we rejected what was being proposed, there could be a backlash. Well, there may be a backlash—I hope not—but it would be a poor day in the House of Commons if we made a decision not on the basis of the evidence and the facts, but because of some fear that what the Home Secretary described might happen.
I understand that we are not going to vote tonight. However, I hope that those of my hon. Friends who believe that what is intended is wrong, and that there is no justification for it, will decide to vote against it at the appropriate time on Report. It would be wrong—I would go further and say that it would be disgraceful—if the House of Commons decided to go beyond 28 days' detention without the evidence that is absolutely essential to justify a longer period. I can only hope that despite the Whips and all the pressures that all Governments—not just this one, by any means—apply, this proposal will be defeated in due course.
Order. We are not going to get everyone in if we stick at eight minutes, so to try to help the participation rate, after the next eight-minute speech I will reduce the limit to six minutes in an effort to get more hon. Members in.
It is a pleasure to follow Mr. Winnick. I remember his speech in the debate last time round, when we were discussing 90 days' detention, and I was struck by the similarity of many of the points that he has made tonight. I think that that is because what we have in the Bill is not so much a strategy as a rather loose and disparate collection of tactics. That lack of overall strategy is the cause of the Government's problems, and it is why these days we seem to have almost a Bill a Session on this subject.
I feel very uneasy about several of the ways in which the Bill seeks to blur very important divisions within our constitution, especially in relation to the position of Scots law and the way in which that produces some exceptionally convoluted procedures. The position of Scots law has been subject to a particular lack of regard in the preparation of the Bill. That causes me great concern, and given the limited time, I want to concentrate most of my comments on that.
Keith Vaz made a good and well-reasoned speech in which, as Chairman of the Home Affairs Committee, he listed a whole range of people whose views have been sought. When I asked whether he had sought the views of the Scottish Law Officers—the Lord Advocate and the Solicitor-General—he said no, because the Scottish Parliament has its own Committees. It does indeed, but they will not consider the Bill because it is of UK-wide application, and is to be debated and voted on in this House alone. It will ultimately then be applied, one would hope, by the Scottish Law Officers. I would say gently to the right hon. Gentleman that if the views of the Director of Public Prosecutions are worthy of consideration, surely the views of the Solicitor-General and the Lord Advocate, as head of the prosecution service in Scotland, must also be worthy of consideration. That is a point that not only the Home Affairs Committee but the Government should take on board—and one of which all Scottish Members should be particularly mindful.
The House may recall that when we discussed 90 days' detention, it was a matter of some controversy that the Lord Advocate and the Scottish Executive had not been consulted at all. I was eventually able to intervene on the Home Secretary today to ask her whether the Lord Advocate was in favour of an extension to 42 days. It is remarkable that she did not answer the question. I was mildly concerned that the Minister for Security, Counter-Terrorism, Crime and Policing was sitting there mouthing and nodding his head as the Home Secretary was speaking, saying, "Yes, she is," suggesting that the Lord Advocate did support the proposal. I hope that when he responds to the debate he is able to make clear what representations the Home Office has received from the Lord Advocate, because there is nothing on the record so far, and that is a matter of significant concern for Scottish Members.
One of the most worrying aspects of the convoluted way in which the Government have sought to introduce 42-day pre-charge detention is the blurring of the roles of this place, as a legislature, and the judiciary, as supervisor of the individual liberties of the citizen. I consider myself to be exceptionally ill-equipped, as an elected politician, to play the role that the Government seek to give, particularly if we were in the highly febrile atmosphere following a terrorist outrage. People who hope to be due for re-election in two years' time are not the best people trust with the liberty of the individual.
The creation of a grand jury would be a novel concept for any jurisdiction in the United Kingdom, and it is not one that we should enter into lightly or unadvisedly.
I am particularly concerned about clause 27, which relates to the jurisdiction to try offences committed in the United Kingdom. In short, it allows a criminal offence committed in Scotland to be tried in England. I put it in those terms, and although it could operate the other way round, it is, however, virtually unthinkable that an offence committed in London would ever be tried in the High Court of Justiciary in Edinburgh. I ask myself why on earth the provision is necessary. The law already provides for cross-border elements to be taken into account, and that is often a feature of drug-trafficking cases. If an offence is mostly or wholly committed in Scotland, the case should be investigated and tried there. Anything less—and the clause represents a lot less—is an insult and disrespectful to Scots law.
The hon. Gentleman will note, as I did, that the Glasgow bombers will return to England under English jurisdiction for trial in courts there, but does he share my suspicion about the fact that this clause arrived late? It arrived at the same time as the Labour party was talking about transferring powers from Holyrood to Westminster. The top of the list in any agenda is terrorism.
The hon. Gentleman, with his contacts in Edinburgh, probably knows more about that than I do.
The clause has fundamental procedural and constitutional implications. The Lord Advocate has absolute prosecutorial discretion over crimes committed in Scotland, and I see no good reason for changing that. The constitutional position of the High Court of Justiciary is protected by article 19 of the treaty of Union. Clause 27 undermines it in an unwarranted and unjustified way.
I would love to give way to the hon. and learned Gentleman, but I have already taken a couple of interventions, and it would be unfair to others who are seeking to speak.
The questions that the Government have to ask are manifold. Under which rules of procedure will admissibility of evidence be judged? Will it be judged under the rules of the jurisdiction through which it is obtained or those of the jurisdiction in which the trial will take place? The Bill is absolutely silent on that. I have no doubt that co-operation between Scotland and the rest of the UK could be improved, but it is not necessary to drive a coach and horses through the constitutional settlement and the position of Scots law in Scotland in order to do so. I hope that that point will be considered carefully when the Bill goes into Committee.
Like most Londoners, I can remember exactly where I was when I heard about the 7/7 bombings, and, like thousands of Londoners, even though I did not have a friend or relative caught up in the bombings, I had friends and relatives on their way to school, college or work who, had their journey been 10 minutes earlier or later, would have been caught up in them. Those of us on mainland Britain who lived through the IRA terrorist bombing campaigns of the 1980s and 1990s, and now through 7/7, do not want to be told by Ministers that if we query some of the provisions of the Bill, it is because we take terrorism lightly.
The other thing that I remember about 7/7, apart from the fear and concern I had about people close to me in the 40 minutes it took to understand where the bombings were and who had been hurt, was the calm, courage and resolution of ordinary Londoners in the days following. This arbitrary proposal to push pre-charge detention beyond 28 days does not do justice to the calm, courage and resolution of ordinary people.
The problem with the Government's proposal, as speaker after speaker has set out, is that there is no solid public policy reason for it. I have followed the debate closely. I confess to the House that I have in my time worked for Liberty, which has become a bête noire of Ministers, but I share that honour in common with Cabinet Ministers and others. I have followed the debate with great interest, therefore, and I believe that the reason behind the resurrection of this proposal, it having been blocked in this House not so long ago, is political positioning. It relates to focus groups, polls and putting the Opposition in the wrong position on terrorism. It is a matter of manoeuvring and positioning—there is no solid public policy basis for it at all.
When pressed, the Home Secretary talks about needing the Bill just in case. I have heard of just-in-time deliveries, but never of just-in-case legislation. The Home Secretary puts herself in the position of a prudent, west midlands housewife who keeps tins of salmon in her larder just in case someone should drop by. She has to have ludicrously draconian legislation, just in case something should happen. I put it to those on the Treasury Bench that we should not drive a coach and horses through civil liberties just in case. That is no basis for introducing proposals that this House emphatically rejected not so long ago.
It is clear that there is no solid public policy reason for the proposal because of the way in which the figure has bounced around randomly, like balls on a billiard table—90 days, 56 days and now 42 days. I began to feel as if someone would put their hand into a hat and come out with a figure. The random nature of the figure gives the lie to the idea that there is a considered public policy basis for the proposals. We have heard every law officer, past and present, who has spoken out publicly on the legislation reject the need for it. We have heard that the encryption argument—that we need all this time to deal with encryption on computers—is nonsense. A law exists to deal with people who refuse to allow that process to go forward.
Ministers are not talking about what I and others would like to hear them talk about, which is the effect of the proposal on our communities, particularly the Muslim community and the wider Asian community. The best speech in the debate was the one by Mark Durkan, who described so vividly the effect of draconian, ill-thought-out, anti-terror legislation on the law-abiding Catholic communities in Ireland and in mainstream Britain at the height of the troubles.
I believe that we will experience a parallel problem here with our Muslim and wider Asian community. It is no accident that the Government's Equality and Human Rights Commission is threatening to take them to court if the provision is accepted. Everyone knows that it will have a disproportionate effect on the Muslim and wider Asian community. Ministers cannot claim that imposing such draconian internment on that community can aid community cohesion and the flow of solid intelligence. As was said earlier, it is not a human rights, but a security argument.
Like other hon. Members, I was a Member of Parliament in the 1990s when we voted on the prevention of terrorism Acts, and the notion that a short debate, late at night, with a whipped vote and all the media pressure to vote one way constitutes acceptable parliamentary scrutiny—not to mention the idea of our becoming some sort of grand jury—is laughable. I am embarrassed that some hon. Friends think that that is a sustainable argument. I will not vote against Second Reading, but unless something is done about the proposal to push pre-charge detention beyond 28 days, I and many others will vote against that specific provision on Report.
We are not considering, as some hon. Members have suggested, a choice between protecting lives and protecting human rights. To protect lives, we must block the ill-conceived, unnecessary proposal to push pre-charge detention beyond 28 days. That is the way to make ourselves secure, protect lives and fight terrorism most effectively.
It is a pleasure to follow Ms Abbott, with her long years of experience on such matters.
I start by echoing the Home Secretary's opening remarks. I agree absolutely that the House and the Government are responsible for ensuring the maximum protection of our citizens against international terrorism.
We have been targeted in Scotland. We have felt the icy touch on our shoulders of those who would destroy our way of life and maim and kill indiscriminately for their warped and perverted agenda. We will not, therefore, take lectures from anybody about protecting and ensuring the safety and security of our citizens.
Scotland was targeted. Scotland was violated the day that burning jeep crashed into the airport terminal in Glasgow, and I suppose that our attitude to terrorism has changed for ever and a day because of that. Some people believed that Scotland would not be targeted because we had not fully bought into the worst aspects of the Government's belligerent and aggressive foreign policy. Some of us believed that we might have been spared, but
I know the seriousness with which my colleagues in the Scottish Government take such issues. Their first priority is ensuring the safety of Scottish citizens. However, they also have obligations and responsibilities for ensuring Scottish civil liberties. They are responsible for making sure that nothing compromises or threatens the good community relations that we have in Scotland. We will therefore not allow any half-cocked proposals or half-baked suggestions such as the extension to 42 days to threaten that. We have seen no evidence that anything beyond 28 days is required. We agree with all the campaign groups, Opposition parties and the new voices that contribute to the overwhelming chorus that says that nothing beyond 28 days is required.
To legislate on the basis of hypothesis is the most ridiculous way of running the country. If we follow that route, where will it end? There is an undignified tangle between Labour Front Benchers and Back Benchers to stave off some sort of rebellion. Half-measures were proposed to try to buy off a Back-Bench revolt. I suggest to the Under-Secretary of State for the Home Department, Mr. Coaker, that he has not done enough to achieve that.
To revert to Scotland, one of the reasons that are sometimes cited for an extension beyond 28 days is the case of Kafeel Ahmed, one of the Glasgow bombers. It is contended that his case proves that more than 28 days is required. However, after ramming that jeep into Glasgow airport, Kafeel Ahmed fell into a coma and died in hospital. He was filmed driving a blazing jeep into the terminal building. What more evidence is required to bring a charge? The claim that that proves the case for an extension beyond 28 days is absurd. If that is the best the Government can do, it is not good enough.
Let me consider Scotland and clause 27, about which I have great concerns. The provision was introduced late and at about the time we heard about the transfer of powers from Holyrood to Westminster. When pressed, from the Prime Minister down, the only powers that the Government could come up with were those on terrorism, which are almost 99 per cent. reserved in any case. We have only the right to try terrorist suspects in Scotland under Scots law. That made me wonder whether clause 27 is part of the agenda to transfer powers from Holyrood to Westminster and the commission that the Secretary of State for Scotland has proposed.
We accept that, of course, co-operation is needed across jurisdictions and all law enforcement agencies and courts should work together to try to secure that. However, we need to establish the priority of the Lord Advocate's role.
I want to see a clause in the Bill that makes it clear that any transfer of terror suspects out of Scotland's jurisdiction to the jurisdiction south of the border has to be made with the full consent of the Lord Advocate and that the Lord Advocate has the right to say no. We transferred the terror suspects last year because the case was made that they would be better prosecuted with the involvement of the Metropolitan police in the London courts. However, there will be times when that will not be necessary or appropriate, and when such suspects should be tried in Scotland. I want to see that in the Bill.
The other issue for Scots law is post-charge questioning. We remain relatively happy with what has been suggested in general, but what has been suggested for post-charge questioning flies in the face of a principle of Scots common law that ensures that once a person is charged he or she comes under the protection of the court and that it is the court's duty to see that nothing is done to prejudice his or her trial. Quite simply, in Scotland, any answers provided after charge are not admissible. The clause on post-charge questioning runs a coach and horses through that principle in Scots law, so I seek reassurances that members of the Crown Office and the Lord Advocate have been fully consulted on that issue, too.
Of course we believe that new powers are required to tackle terrorism. We will not oppose the Bill tonight, either, although we will return to it in future. We also believe that long-established human rights and community relationships should not—
A large chunk of my education was received at the hands of the Jesuits. They always taught us that open confession is good for the soul and that we should tell the truth and shame the devil; so I have to tell the House that the last time we debated these issues, way back in 2005, I did not speak in the debates, nor did I vote. I was giving the then Home Secretary a very hard time over police reorganisation and I felt rather sorry for him, so I was rather reticent about pushing on the business of 90 days.
In any case, I could not see why there was such trouble then. There was a judicial review every seven days, which I thought was a pretty good safeguard, so I wondered what on earth my hon. Friend Mr. Winnick was getting all het up about. "He's almost demented, shouting for his 28 days," I thought. But he stuck by his guns and got 28 days, and he deserves every credit for that. The reason I did not speak or vote at the time was that I had accepted the responsibility of chairing the Committee stage of the Bill. Indeed, I moderated portions of the debate on it in the Chamber, too.
When I saw this Bill's proposals for 42 days, I thought, "Well, there's some easement or relenting here." I was summoned to a meeting with the Home Secretary and went along wondering what it was all about. I was surprised to find that she was anxious to discuss, on a one-to-one basis, the 42-day element. As she was questioning me, I thumbed through the card index of my brain box and remembered that 90 days had been no great problem for me. I said, "There's no problem"—I used her first name—"you can be assured of my vote on that." She was reassured and that was that.
But some time later I had another one-to-one discussion, with Shami Chakrabarti, the director of Liberty. She simply asked me, "Have you ever put yourself in the position of the person being detained?" That stopped me dead in my tracks. I thought, "Well, okay, what would it be like? Forty-two days—God, that's six weeks." I would be in custody, without charge, under suspicion—suspicion of what?—for one week, and then another and another, at the end of which someone would come to me and say, "All right, Mr. Cook, we believe that you're innocent—off you go." What would I feel like?
I immediately felt angry, but then I thought, "Just a minute—what if Frank Cook was a Muslim and that happened?" What would I do then? I would be likely to go back to South Shields, the south bank or Southampton and play merry hell, providing evidence of the residual reservoir of resentment that had built up over those 42 days of not knowing what they wanted to detain me for. It would not only eat like acid into the individual soul, but provide justification for others within the community to feel the same levels of resentment and seek a similar kind of retribution. They would feel justified in doing that. This is the second time that I have made this confession in a week, but I felt ashamed of my own failure to recognise all that, so I picked up the phone, rang the Home Secretary's private office and asked them to tell the Home Secretary that I had changed my mind. She was not very pleased!
We have heard many good speeches today and a couple of mediocre ones, but most have been quite brilliant. The one that stands out in my mind as providing something that we should try to hang on to was the contribution of my hon. Friend Mark Durkan. Why? He reminded me of the famous words of Nye Bevan, when he said:
"Why look into the crystal ball, when you can read the book?"
My hon. Friend the Member for Foyle opened the book for us tonight. We cannot go on ignoring history. Will we never learn? We have to open our eyes, open our ears and use the bit of grey matter that God, thank heavens, gave us and make sure that we do not make the same mistakes of the past.
I will support the Bill as a whole this evening as it has some good elements—intercepts, DNA and other aspects—but on Report, when it comes to the provisions on pre-charge detention, I am afraid that I must warn the Government that they will not be able to count on my support. I shall oppose the provisions on that occasion.
I shall first address the issue of increased detention-without-trial periods. I certainly support my right hon. Friends and others who have spoken so strongly on that issue today. I thought that the speech of Frank Cook was indeed powerful. The current period of 28 days is already the longest for detention without trial in the western world, and I do not believe that it should be extended unless clear evidence is submitted to show that it would improve national security. No such evidence, to my satisfaction, has been provided today.
As Mr. Winnick pointed out very well, after a speech from the Home Secretary that lasted almost an hour, we had still not heard why the specific period of 42 days, rather than any other number of days, is necessary. The Home Secretary should come back to the House and explain why she needs 42 days. Accordingly, I find it hard to see any good reason for increasing terms of detention without trial—except as a way of chipping away at our citizens' civil liberties. Like the Government's little-supported ID cards and their control orders, this proposal will undermine our fundamental freedoms while doing little to bolster our security.
Will the hon. Gentleman cast his mind back two years to when the Government were getting into a big frenzy about 90 days? They did not get that, and time has shown that they did not need it, either. They have not even needed to use 28 days. All that shows the red herring of the case for 42 days, as he is rightly arguing.
Yes, indeed. The Government did not provide any evidence then, and they have not provided any now. They would be better advised to concentrate on keeping convicted terrorists locked up. Instead, we hear that two men convicted of terrorism, who present a real danger to the security of our country, have been let out under the Government's early-release scheme.
In dealing with sentences for offences with a terrorist connection, I find it hard to justify the proposal that such a "terrorist connection" should be an aggravating factor in the sentencing of an individual, as proposed in clauses 29 to 31. A crime is a crime and should be punishable as such. Militant groups draw great propaganda mileage from the "martyrdom" of suicide bombers, promising recruits that paradise lies on the other side of the detonator. Why should there be any differentiation in the sentencing of a so-called "terrorist" nail bomber who acts alone on behalf of no particular neo-Nazi cause and a gunman who murders, but whose motive is unclear? Both are murderers and should be punished as such.
We should treat terrorists as the criminals that they are, and the Minister should recognise that there are dangers here. The question is whether the offence should be aggravated for plotting or causing multiple murders, rather than terrorism.
On forfeiture, the Bill makes several amendments to previous legislation, but they are loosely drafted and might have unintended repercussions. The somewhat vague wording in proposed new section 23 of the Terrorism Act 2000 that forfeiture can be applied to property that an individual
"intended should be used, or had reasonable cause to suspect might be used, for" the purpose of terrorism has the potential to undermine the rights of a person completely unconnected with the terrorist offence. For example, it may result in the forfeiture of a home shared by a terrorist suspect with his family, despite the fact that the family was entirely unaware of the terrorist activities being carried out in, let us say, the suspect's bedroom.
Peter Clarke, the Metropolitan police senior counter-terrorism officer, has warned against destroying the trust that
"fundamentally affects the level of support, and of course intelligence that we receive from communities".
Members have spoken about the need to maintain intelligence. This provision has the potential to perpetuate the erosion of trust, and I would be interested to hear the Minister's views on how that could be prevented.
The Government sometimes seem to take the standpoint that to legislate is to police. That is as wrong here as it has been with many other of the 3,500 or so new criminal offences that they have delighted in creating in the mistaken belief that they are thereby being tough on crime. Ms Abbott called it the just-in-case principle. Heavy-handed use of provisions such as proposed new section 23 could make ethnic minority groups feel persecuted.
We need to catch and punish the wrongdoers without alienating the innocent community within which they live. I support the concept of allowing post-charge questioning, which I also feel would significantly lessen the need for an increased detention-without-trial period. It is sensible for police officers to have the opportunity to question further a terrorist suspect on the same terrorism-related offence for which they have been charged. I have a concern, however, that these provisions do not seem to allow for any judicial scrutiny of the process. Would it not be wise to implement a process whereby judges had some say as to when and how such procedures were applied? That could help to ensure that the provisions were used consistently, and only where necessary.
There is one area on which the Government have often uttered strong words but failed to deliver, and they fail again in this Bill: the effective banning of extremist organisations that preach hatred and violence. There is no doubt that our police and security forces have been doing a magnificent job in protecting our country. The number of foiled terrorist attacks in the past few years is testament to that. However, they can do only so much, and it is our job to suggest measures that will help to protect our country. Banning extremist groups such as Hizb ut-Tahrir and Hezbollah, which incite violence, radicalise our children and encourage mass murder, will help to achieve that.
The Government must take another careful look at the potentially very dangerous groups that they are allowing to exist and grow within our country. I appreciate, however, that while banning such groups is technically easy, undertaking that in the context of building trust with the relevant communities in our country will be a much harder feat to achieve than passing the Bill.
With great pleasure, I rise to follow the many well-informed and passionate speeches that have been made in this important debate. I shall concentrate on part 6 of the Bill, as I believe that it is inappropriate to the overall purpose. The issue it addresses would be far better discussed in the context of the reform of the inquest system set out in the draft coroners Bill.
I am chair of the all-party group on Army deaths, which seeks to draw attention to the tragic circumstances of non-combat-related deaths of service personnel, both in the UK and overseas. The Deepcut and Beyond families group, with whom my colleagues and I work closely, has won broad support in the House and among the public at large for a public inquiry on deaths at Deepcut barracks and elsewhere.
Each of the families involved has its own unique sense of loss, and the grief of many has been compounded by the failure of those in authority to treat bereaved families with sensitivity and the respect they deserve. The families' distress has been heightened by the belief that they have not been told the truth and that those who were responsible for a death or who could have prevented one will never be held to account. Bereaved families know that it is not possible to bring back the son or daughter they loved, but they want to ensure that lessons are learned and that no one else mourns as a result of a death that could have been prevented.
The Deepcut and Beyond families, although focusing on non-combat deaths, have discovered wide areas of common experience with those who have lost loved ones in the fog of war, whether through so-called friendly-fire incidents, systemic shortcomings or other failures. Their objectives of truth, justice and change where necessary to avoid future deaths have become common cause.
When more than 200 Members of the House called for a public inquiry on non-combat deaths, we were told that the coroner's inquest was the appropriate vehicle to satisfy the requirements of openness and transparency and to meet the criteria for adequate redress. Lord Bingham, in his judicial review ruling on the investigation of the death in prison of Zahid Mubarek, summarised the purposes of an inquest under article 2 of the European convention on human rights as follows:
"The purposes of such an investigation are clear: to ensure as far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
The process of change in the inquest system, particularly where it has been driven by rulings of the European Court of Human Rights, has all been in the direction of stronger safeguards for independence of the courts, greater public scrutiny and more involvement of the family of the deceased, particularly where the death involves a person in custody or a person to whom the state owes a duty of care.
Ministers from the Ministry of Defence and the Ministry of Justice have worked hard to reach out to bereaved families and build confidence in the Government's commitment to ensure that investigations of controversial deaths are prompt, thorough and fair. I believe that measures before the House today could undermine public confidence and confirm the fears of many bereaved families that investigations of the deaths of their loved ones may be subject to interference from on high and cover up that is incapable of challenge.
May I say how much I applaud what my hon. Friend is saying about clause 64, which is an awful clause, and how she is saying it? Does she agree that the clause contains no provision for appeal against the Secretary of State's decision effectively to turn a coroner's inquest into a secret inquiry, and that that in itself is cause for considerable concern?
I share my hon. and learned Friend's concerns.
Clause 64 proposes that the Secretary of State be given an astonishingly wide-ranging power to remove a jury from an inquest if he or she believes that evidence will be heard that should not be made public. Rule 17 of the Coroners Rules 1984 already gives the coroner powers to direct that the public be removed from an inquest if sensitive matters of national security are raised. If inquests take place behind closed doors, it will be hard for bereaved families and the public at large to allay any suspicions of unlawful conduct.
Clause 65 will create a new class of specially appointed coroner and thus give rise to the appearance, as has been noted by the Joint Committee on Human Rights, of political interference with the proper functioning of the inquest. The Government believe that the Committee's fears are misplaced because the measure will allow the specially appointed coroner to examine materials not disclosable to his or her coroner colleagues, the jury, the family of the deceased or their legal representatives. I find it hard to believe that that defence of clause 65 will prove persuasive for bereaved families or their representatives, let alone the European courts. Instead, it risks undermining public confidence in the Government's commitment to strengthen the independence of the judiciary.
Investigations of the deaths of service personnel in times of war and conflict pose many new challenges for an inquest system in urgent need of reform. The coroners of Oxfordshire and Wiltshire in particular bear a heavy burden in overseeing the determination of the causes of death in exceptional circumstances. With limited resources, the courts have sought to involve families who are distressed and sometimes very angry. Officials have provided first-class support and advice. Legal representatives of the families have battled to secure exceptional funding and fought for an open, transparent process. Juries have been diligent in performing their functions.
All those involved are conscious of the vulnerability of the armed services to unfounded accusations and of their sensitivity to unwarranted criticism. In such circumstances, it is even more important that the independence of the inquest system should be safeguarded and the integrity of its procedures protected.
Concerns about these controversial proposals have been expressed by the Chairs of the Joint Committee on Human Rights and of the Justice Committee. I can only concur with their opinion that the Bill is not the appropriate vehicle for introducing the proposals. If such proposals are to be introduced, the proper vehicle for their consideration is the coroners Bill.
A great number of participants this evening have drawn attention to the speech made by Mark Durkan, and they were right to do so. I also pay tribute to the speech made by my hon. Friend Mr. Goodman. The vast majority of the speeches have been contrary to the Government's position, and a feeling is emerging that terrorism will be broken and deterred or inhibited only with the co-operation of the minority to whom it is designed to appeal. To seek a battle over the number 42 as opposed to 90, as the Government appear to be doing, will not reassure the majority and will simply feed the sense of victimhood of the minority. In short, it is merely a branch of gesture politics.
I say that in the context of a Bill that includes clause 59, which deals with the appointment of special advocates in matters to do with the seizing of the assets of those who have been convicted of terrorist offences. The clause provides for a relevant Law Officer to appoint a person to represent the interests of the party to the asset-freezing proceedings. I am staggered that in clause 59(2) the Government are pleased to announce that a person who is appointed as a special advocate is not responsible to the party to the proceedings whose interests this person is appointed to represent. If we are to consider the rights of the individual in that context, there is not much hope for any of us.
I wanted to intervene on an earlier point made by the hon. and learned Gentleman. Much has been made of the parallel that has been drawn between the limit of 42 days and the lessons learned from internment in Northern Ireland. Does he not accept that internment in Northern Ireland in the 1970s was totally different from the focused 42-day detention of particular individuals who might have been caught carrying out terrorist offences? The lessons that can be learned are therefore very limited.
The hon. Gentleman is right to point out that there is a huge difference between the facts and the history of Northern Ireland and the facts and the history of the fundamentalist Islamic terrorism that we have to deal with today. But the general point is a good one, and I do not resile from it and nor should anyone else.
In the few minutes remaining of my speech, I shall concentrate on schedule 1 and the paragraphs that deal with the alleged parliamentary and judicial oversight of the powers to extend the maximum period of detention. The Government's approach is particularly hard to understand because the prosecution can use their threshold test, which has been mentioned several times, to decide whether to charge a terrorist suspect and finish collecting the evidence afterwards. That requires simply reasonable suspicion of the commission of an offence and is lower than what is called the full code test, which requires a reasonable prospect of conviction. In the absence of reasonable suspicion, it would be difficult to justify arrest, let alone detention. If post-charge questioning is allowed in such cases, as many of us hope it will be, the practical prejudice of a 28-day limit to the prosecution begins to look pretty speculative.
I shall say a little about parliamentary and judicial oversight. As I have mentioned, schedule 1, from paragraph 41 onwards, sets out the regime under which the Government think they will buy us off. What is the use of the information referred to in paragraph 41, which will be presented to Parliament by the Secretary of State? What is the use of telling us the material that exists? What is the use of the provision in relation to the administration of justice both generally and in the particular case of any given detained individual? What is the use of it so far as the rights and interests of the police, the prosecuting authorities and the defendant are concerned? I suggest that it is no more than pretended parliamentary oversight to add to the restricted judicial oversight referred to later in the schedule.
Parliament should not take any active part in criminal cases, which is precisely what the schedule provides for. If the process is of any real use, it is constitutionally improper, and if it is not, what is the point of it, except, as I suggested a moment ago, to buy parliamentary support for this egregious measure?
There is plenty that is not too objectionable about the Bill, but I am afraid that it is trumped by the Government's proposals in relation to 42 days and the bogus form of democratic and judicial oversight of the Secretary of State's powers. That is regrettable, but not the least bit surprising from this tired and, I suggest, soon to depart Government.
In the past six months, we have heard a great deal about Britishness—indeed the former Attorney-General was put in charge of it, perhaps as a consolation, but more likely as a punishment for his term in office. In truth, that was wholly unnecessary. We do not need to be taught about Britishness, or about flags and ceremonies. Britishness has many great attributes at its root, but civil liberties are not one of them. Civil liberties are not an attribute of being British. They are the defining characteristic of our nation. They are what we are.
That is not hyperbolic; I mention it simply because what comes from it is the enormously high burden and standard of proof required in this House if any Government attempt in any way to circumscribe or check those liberties. My first point, which has been made extraordinarily well already, is that there is no evidence whatever to vote for the Bill—none. Hopeful statements of desiderata are not evidence. Statements from senior police officers saying, "I would really like this," or, "I would really, really, really like this," or, "It would be very useful," or, "I need this," are not evidence. Evidence is what needs to be put before the House, and there is none, so the Bill must not be voted for.
I wish to spend a couple of moments on a matter that Mr. Garnier has just dealt with very well, so I can shorten what I was going to say. It is the entirely indigestible palliative that has been served up by the Government to attempt, as he said, to persuade the House to pass this measure. The House would be given an extraordinary power, but it is a power over the decision of the Executive that we simply cannot take. It is simply not available to us.
One can imagine the process: the Attorney-General—or the DPP, or the relevant chief of police—will say to the Home Secretary, "Look, we've found a plot. In fact, we've found two plots, or three, so we want special powers. We want to extend the limit to 42 days." In response, the Home Secretary will say yes, and she will come to the House to get our approval for what is, of course, a judicial act.
That is a complete misapprehension of the difference between parliamentary and judicial power. We can use parliamentary power to give judicial power, not to exercise it, but that is what we will be doing. Will we exercise it ad hominem? In other words, are we going to be given the names of the plotters and the details of what they have done and how they have done it, so that we can decide what we are going to do? Or will we be told, "We know things you do not know"? That is much more likely.
Worse still, will we be told, "This group of plotters has weapons of mass destruction"? It would take an awful lot to get that through this House, and even more to get it past the people out there. What would happen if that were to be said and accepted by the House, only for us to discover—again—that it was a false and duplicitous claim? The result would be that this House would be found to have connived in locking up for 42 days people—almost certainly members of minority groups—who are innocent.
We cannot take this power. There are checks and balances on courts and juries and rules of evidence that mean that we know how information comes before us. We cannot operate like that in this Chamber, because juries are not whipped. I know many judges who wish that they were whipped, but they most certainly are not.
My hon. and learned Friend has been a consistent opponent of any attempt to introduce a counter-terrorism Bill, and that has attracted some strange bedfellows. He has long experience in this place, so will he say what judicial review or parliamentary scrutiny took place when miners were locked up in their houses during the miners' strike, as a result of the emergency legislation introduced by the then Conservative Government? People could not leave their houses. What parliamentary scrutiny was there then?
There was none, and I hope that my hon. Friend feels that he is making precisely the point that I am making. At the time of the miners' strike, a law was passed that received neither judicial review nor scrutiny. Therefore, although he and I may have appeared to be at odds, in fact my hon. Friend and I are almost certainly at one. I am grateful to him—not least for the fact that his intervention has clocked up an extra minute for me that enables me to say something about 90 days.
What I want to say about 90 days has been said before, but it is worth reiterating in this House. If 42 days is the period of time required to do justice in the circumstances that are envisaged why, two years ago, were hon. Members on my side of the House whipped to approve a period double that which is now deemed to be necessary? That question has never been answered to my satisfaction, although the Government have adopted the rather coy approach of saying, "We have been listening, and we've learned."
What, exactly, has been learned? What is the blazing, Damascene truth that has suddenly caused Ministers to say, "We got it wrong. We were going to lock people up for six weeks, which was completely unnecessary. We are very sorry"? The only person to my knowledge who has attempted to defend the Government's approach was Lord Falconer. He made a robust—indeed, rotund—contribution but, when one reads it, one sees that it was completely untenable.
I simply place that before the House, for the House's delectation. We should not have trusted the argument two years ago, and there is absolutely no reason why we should do so now.
It is a pleasure to follow Mr. Marshall-Andrews, who has been consistent and right about the policy.
This is one of the most foolish Bills to come before the House. In many of its proposals, it is certainly one of the weakest and most unjust, but my chief concern relates to the extension of the pre-charge period to 42 days. Let us be clear what we are talking about. The proposal goes to the heart of what it means to be free. Depriving a person of their liberty is a more fundamental infringement of their rights than perhaps any other, yet the Government have consistently failed to provide any evidence to suggest that the extension to 42 days, to deny someone their freedom, is actually needed.
In a liberal democracy, certainly in peacetime, freedom should not be denied simply on the basis of suspicion. Evidence is absolutely essential. If we go down the road of detaining people purely on the basis of suspicion, we are a step closer to becoming a police state. Indeed, it appears to be a new principle of legislation that we pass laws today for an imagined scenario some time in the future. That is not the way to make law. Suspicion and hypothesis must take second place to evidence.
Not only is the 42-day detention period not needed, but it would be wholly disproportionate to what other democratic countries, facing similar terror threats, are doing. International comparisons are revealing. In most western democracies the pre-charge