Counter-Terrorism Bill

Orders of the Day – in the House of Commons at 12:35 pm on 19th November 2008.

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Lords amendments considered.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

I have to inform the House that privilege is involved in Lords amendments Nos. 2, 82, 113 and 127. If the House agrees to these amendments, I shall ensure that the appropriate entry is made in the Journal.

Before Clause 14

Lords amendment: No. 2 .

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this it will be convenient to discuss amendment (b) to the Lords amendment and the Government motion to disagree thereto.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The Bill has returned to us from the Lords markedly improved. Public attention has focused on the historic defeat of the proposed extension of pre-charge detention, but there were many other improvements, including on the use of DNA samples. The amendment would improve the Lords amendment by tweaking it to make it more practical. This is key, because it illustrates one of the big failures of Government strategy throughout the passage of the Bill. The Home Secretary evidently believes that the tougher we sound, the more effective we are in fighting terrorism. The Conservatives believe that to fight terrorism successfully, we need precise, proportionate and effective legislation. That was the intention of the Lords amendment, and it is what our amendment seeks to do as well.

Our amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them, and in what circumstances a request can be made for any samples that may have been taken during an investigation to be destroyed. We have sought to improve the Lords amendment by ensuring that Ministers will be able to decide which agencies are affected, because we fully accept that there will be covert operations where different rules may need to apply. However, at present the underlying problem in all possible situations is that there is simply no transparency, and it is extremely difficult for completely innocent people to be able to ensure that their details are not kept indefinitely, thereby infringing their privacy but serving no purpose in terms of increasing the security of the country.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

It is not just a question of getting information removed; lack of information is also a problem. The hon. Gentleman will be familiar with the case of his party colleague, Mr. Hands, who has been trying to get certain details removed. He is totally innocent of any crime, and he has written letters, but not, I think, received replies. Such a lack of information is the main problem.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The right hon. Gentleman is completely right. I agree with him on this matter, and I am, of course, familiar with the case of my hon. Friend Mr. Hands. I am grateful for the right hon. Gentleman's indication of support in this area. None of us disputes the value of DNA information in identifying not only criminals but, at least as importantly, terrorists, and it will, of course, continue to play a useful role in identification and bringing criminals or terrorists to justice.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

DNA is not only a detective tool; it is a huge deterrent in itself. Because it is such an effective detective tool, it stands in the way of anybody who might be planning offences. I am in the minority, but I think that there is a great case for extending the DNA register.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My right hon. and learned Friend is correct that he is in a minority in holding that position, and I know that that will not disturb him one wit. However, there is indeed a case to be made for, and a debate to be had about, a universal, national DNA database. I would disagree with him on the issue, but the debate would be worth having.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Why do we not include it in this debate?

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

We could include it in this debate, but you might feel, Mr. Speaker, that that pushed the boundaries of order. I should tell my right hon. and learned Friend that many of us, both in this House and outside, have been pressing for a proper debate on the use of DNA for some years now, but so far the Government have resolutely refused to have it. It is convenient for the House that we can have the debate today.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am a little concerned about amendment (a), because it would afford a latitude to the Secretary of State that I am not sure is entirely appropriate. It would enable him to pick and choose the agencies that hold the information and include them in regulations. The Secretary of State already has the power to make the regulations, and therefore to exclude matters that might have the sensitivity to which the hon. Gentleman referred. Why does he feel that it is okay to give carte blanche to the Secretary of State simply to decide, if he wishes, that no Government agency is appropriate for such national guidelines? That would be out of kilter with the intention of another place.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The hon. Gentleman may well feel that the amendment, which seeks to improve markedly the rights of the citizen vis-à-vis the Executive, does not go far enough. I am always happy to be persuaded. It was in his power to table an amendment if he felt that mine was in some way inadequate, but he did not do so.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I should tell the hon. Gentleman that his amendment would act against the interests of the citizen in favour of the interests of the state. I am content with the Lords amendment.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I suspect that the hon. Gentleman and I substantively disagree. Obviously, I believe that we need to take the terrorist threat seriously. I imagine that the amendment would mean, if we were talking about a sensible Secretary of State, that there could be exemptions in certain circumstances regarding specific agencies—obviously meaning the security services—that deal daily with potential terrorist threats. I am happy to say that the amendment is designed to ensure that there would be absolutely no weakening of our defence, or the effectiveness of our defences, against terrorism. I cannot believe that that disturbs the hon. Gentleman, but if that is what he is worried about, so be it. We will have to part company.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry to be sniping from the back, but as I understand it the amendment would not give the House an opportunity to express a view on which Government agencies should be required to provide the information. Disclosure from some agencies may well be undesirable, but we should be in a position to identify whether an agency comes into that category.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I do not quite agree with my right hon. and learned Friend on that, and I cannot believe that he is really worried about sniping from behind.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

No, I am not; I said it just in case.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My right hon. and learned Friend is, as ever, courteous, but I do not agree with him because I believe that, as a point of principle, putting details such as the names of agencies in Bills is often a bad idea. Names can be changed, and we would have to return to the House to make further legislation, including, perhaps, in certain circumstances, emergency legislation. One thing that I have learned in the House is that, on the whole, emergency legislation is bad legislation. I am seeking via the amendment to make the legislation as flexible as possible. I share absolutely with my right hon. and learned Friend the desire to bolster the powers of the House against the Executive, but in such circumstances I think that one could rely on the Home Secretary of the day to take a reasonable view on the appropriate use of the powers that the amendment would give to him or her.

The changes are necessary because of the worrying nature of the guidelines under which we operate. They are produced for the police, and go under the spectacularly opaque title "Retention guidelines for nominal records of the police national computer", which could almost have been designed to stop anyone finding out what the guidelines are for the use of DNA—a rather important term that the document carefully refuses to mention in its title. Frankly, the guidelines are draconian. They state:

"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC 'owned' by them."

It is interesting that when a person's data are entered on to the PNC, they are owned by the police. The guidelines continue:

"They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases."

According to the guidelines, the discretion to destroy the information will rarely be exercised, which in itself is enough to raise eyebrows. The guidelines later state:

"In the first instance applicants should be sent a letter informing them that the samples and associated PNC record are lawfully held and that their request for deletion/destruction is refused".

Therefore, the standard guideline is, "Just say no, you can't have your records deleted." The last paragraph of this part of the guidelines states:

"It is not recommended that any proactive exercise is undertaken to determine potentially exceptional cases".

The police are therefore being told in their guidelines first that everything must be exceptional, and secondly that their first and standard response should be to say no. Indeed, elsewhere in the guidelines—I shall not detain the House by reading this out—is the standard template letter of refusal, in case the police cannot work out how to write a refusal letter. On top of that, they are instructed not to make any effort to tell people what they can do or what criteria they might have to fulfil to get their records out of the system. That approach is not satisfactory.

Compounding that, an example is given for those who want to know what an "exceptional case" is. It is the only such example in a 236-page document of what might be an exception. I shall quote it in full:

"For example, where a dead body is found in a multi-occupancy dwelling and the cause of death is not immediately obvious. All the occupants are arrested on suspicion of murder pending the outcome of a post mortem. All arrested persons are detained at the local police station and samples taken. It later transpires that the deceased person died of natural causes. No offence therefore exists, and all persons are released from custody."

That is the only example given in the guidelines of an allowable exception. The House will recognise that that is an absurdity and that the guidelines are clearly not an acceptable way in which to proceed.

D

The main text of the guideline is really only 14 page long (Appendix 3 listing offences takes a lot of space). I posted the flowchart and link to the document at http://gizmonaut.net/blog/innocent/innoncents_are_exceptiona...

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Submitted by David Mery

Photo of David Davis David Davis Conservative, Haltemprice and Howden

Is not the reason the guidelines are so presumptive in favour of keeping such data that the Government mistakenly believe that they get a large advantage when it comes to solving crimes? In June, the Prime Minister made a speech in which he said that 114 murders had been made solvable and that murderers had been taken off the streets because of the breadth of the database. It would be better if we could have more information on that so that we could see the exact truth of the matter, because I believe that that was an over-estimation.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My right hon. Friend makes an important point that the Minister may wish to address. The Prime Minister appeared to be equating DNA matches with successful prosecutions, but the figures that he quoted were for DNA matches. The House will know that that does not equate to successful prosecutions or, therefore, to successful crime-fighting.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

It might help the hon. Gentleman if I tell him that the question posed by David Davis came up this morning when I was giving evidence to the House of Lords Constitution Committee. I undertook to look into the matter and to write to the Committee with the relevant information. I cannot give the House that information now, but it might be helpful for hon. Members to know that, given that the right hon. Member for Haltemprice and Howden has given his apologies for having to leave early.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs) 1:00 pm, 19th November 2008

I am grateful to the Minister for giving us that assurance and I am sure that we would all be grateful if he included others when sending out that letter. I am glad that he has been made aware of this issue.

There are ways of improving the situation. Our amendment represents one, but I hope that the Minister will also take seriously the first annual report of the ethics group on the national DNA database—the NDNAD—which was set up by the Government. It makes a large number of recommendations on how to improve the situation, but I will concentrate on just three of them. One states:

"For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the NDNAD, and that the samples and all data derived from them will be destroyed when the case has ended."

I hope that the Government will take that on board. A further recommendation states:

"A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a Chief Constable to retain their DNA profile on the NDNAD."

I am sure that anyone who has gone through the guidelines will find that proposal reasonable. A third recommendation that I want to press upon Ministers is:

"Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence."

I am sure that my right hon. Friend David Davis would agree with that. Ministers would do well to take on board those recommendations from the ethics group.

In addition to commending our amendment to the Government, I should also like to commend some of the principles suggested by the pressure group Liberty on how we should balance human rights principles with the necessity for an effective fight against crime and terrorism. As well as advocating the overarching principle of the proportionate retention of DNA, which I strongly support, Liberty suggests that three further principles be taken into account:

"The relevance or probative value of DNA to the type of crime in question.

The potential propensity of the trigger offender to future crime of a relevant nature.

The gravity of both trigger offence and the type of crime feared in the future."

I hope that the Minister will be able to look at those principles, as well as seriously to consider our amendment, which would help the process of putting DNA evidence on a proper footing, and therefore help in the fight against terrorism in the long term.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am happy to follow Damian Green. The Opposition have tabled a very sensible amendment, and I am sure that my hon. Friend the Minister will deal with it sensibly. This is a very important issue, and those in another place were right to understand the importance of retaining information and of removing it when its retention is unnecessary.

At the end of last year, the Home Affairs Select Committee published an important report entitled "A Surveillance Society?". I see that Patrick Mercer and my hon. Friend Margaret Moran are in their places today. They were co-authors of that report. In it, we spoke firmly in favour of data minimisation. Of course Governments have to have such information, and our security services have to retain it. The police need it, too, in order to catch criminals. The problem is that such data are retained on innocent people. At the moment, the profiles of 4.4 million people are on the DNA database, according to information that I have been given. About 1 million of those profiles relate to children, some of them very young children. Of course, the consent of a parent is required to take and retain such data, but the fact is that that number of profiles is being retained at the moment. There must therefore be an efficient, transparent and easy-to-follow way for innocent people to apply to have their DNA record removed from the database. If they are not part of any criminal proceedings and have done nothing wrong, it is wrong in principle that that information should be retained.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the right hon. Gentleman address a further point? I accept, of course, that a person who is innocent at the moment will feel affronted by the fact that their DNA is on the national database. However, that person might subsequently go on to commit a serious offence. I have come across such cases through my own professional experience. Why should we wish to deny the prosecuting authorities such an important detective tool?

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am reluctant to enter into a discussion of this nature with the right hon. and learned Gentleman, because he knows so much more about the criminal justice system than I do. I am sure that he has come across many examples involving this requirement. However, this is the same argument that Home Office Ministers have put forward whenever this point has been raised at Question Time. Either we retain these data for the whole country or we cover only those who are charged with offences. I am against covering the whole country—I hope that the right hon. and learned Gentleman would be against it, too—because it would be an unnecessary burden on the citizen and because of the many cases of the loss of data that have occurred in the past 10 years. If we have a database that contains information on 60 million people, at some stage, bits of it, or perhaps the whole lot, could get lost—through no fault of Ministers, of course. Such a system would encourage loss simply because of the amount of data being held.

That is why I am against such a proposal. It represents a dangerous argument. There is, however, a high number of profiles of ethnic minority people—Afro-Caribbean people in particular—on the database. Some judges have suggested that, because it is unfair that so many young black people are on it, it might as well cover everyone, as a way of being more fair. I do not think that that is the right approach. We should not retain more information because we need to justify an argument.

One of my constituents came to see me recently. He had been out with his friends one evening, and they had gone to a pub. There was a fight outside the pub, and a young girl was being harassed by a man. My constituent intervened to prevent the fight from developing further. The police were called, and everyone was arrested. Everyone's DNA sample was taken. The police subsequently released my constituent, saying, "Thank goodness he intervened. He prevented the violence against the woman from being exacerbated." He wrote to the police asking for his DNA sample to be removed from the database, but the reply that he received was, frankly, pathetic. The sample remains on the database.

The shadow Home Secretary, Mr. Grieve, is known as a have-a-go hero. I can well imagine him removing his shirt and jacket to reveal a big "S" or a big "D" on his vest, and intervening to stop a crime being committed. The police would arrive at the crime scene and take everyone's DNA. It would be put on the database. How would the hon. and learned Gentleman, clearly an active citizen and an innocent person, apply to have his data removed?

This is a crucial issue, and it is not enough for the Government to advance the arguments that they have advanced in the past—namely, that we have to retain this information because people will, at some stage in their life, commit an offence.

Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

One of the things that has struck me forcefully, as a constituency Member of Parliament, is the apparently arbitrary nature of the decision on whether or not to accede to a request to remove DNA from the database. On the occasions on which I have made representations on behalf of innocent constituents who have had their DNA taken, it appeared that the only possible rationale behind the decision making was whether the matter was likely to cause embarrassment to the police because of the surrounding circumstances. I do not think that that is an adequate basis for making such a decision, and this reinforces the right hon. Gentleman's point that we need a proper system.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I do not disagree with anything that the hon. and learned Gentleman says. We do need a proper system, and the present system is totally inadequate. At the very least, if we had letters in reply to reasonable requests, providing information to the person who has asked for his or her profile to be removed, I could understand it. As it is, this is the first time that I have heard the guidelines as they were read out by the hon. Member for Ashford. I did not realise that although everyone is told that they have the right to have their DNA removed, it is only in very, very exceptional circumstances that it will be so removed. I am minded to vote for the Opposition's amendment, unless the Minister gives a clear sign to the House that the Government will radically alter the current guidelines on removal.

D

It is surprising that this is the first time Keith Vaz became aware of these guidelines as these are the one key document on DNA retention and the Home Affairs Committee, of which he is the Chairman, published a report last May that included recommendations specifically about retention of the DNA profiles of innocents (http://www.publications.parliament.uk/pa/cm200708/cmselect/c...).

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Submitted by David Mery

Photo of Margaret Moran Margaret Moran Labour, Luton South

While I will not follow my right hon. Friend into the Lobby on this issue, does he agree that it is important that we have consistency as well as transparency? There is a porous border between Hertfordshire and Bedfordshire and crimes are sometimes committed in the former by my constituents, and their DNA is taken there. I have received conflicting advice from those two police authorities about removal, and it is not acceptable that my constituents should be subject to variable responses on removal depending on the interpretation of the guidelines by chief constables.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I agree with my hon. Friend, and I am surprised that she will not be following me into the Division Lobby. Sometimes we have to take a stand on issues of principle.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I note the encouragement from the Opposition Whip. However, the Minister may say something wonderful that reassures me. He may say that he will write tomorrow to every chief constable to say that people should always get a response to their requests for removal and that the guidelines will be changed.

This is an important issue. Hon. Members may have seen the film "Minority Report", in which so much information is gathered by computer—including DNA profiles—that police officers and SWAT teams arrive just before a crime is committed. They lock the person up even before the crime is committed. Goodness knows how that would affect the shadow Home Secretary if he went around the country trying to protect us from crime.

This is a very serious subject, but as soon as I say that the Minister starts talking to a colleague on the Front Bench. It is an important issue—it will not be good enough for the Minister simply to say that we need this information because people might commit crimes in the future. Nor will it be good enough to say that people can apply to the authorities, because such requests are not answered. Mr. Hands is not in his place and I had not intended to raise his case today, but he has been trying to get this information removed for months. Even I have written to the Home Secretary and asked what is happening in that case, but she has not replied. That silence is unacceptable, and we need some clear guidance or assurances. If the Minister cannot supply that, I will vote against the Government on this amendment.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

The Liberal Democrats welcome many of the concessions that the Government have made since we last debated this Bill. It is a shame that they could not have made those concessions earlier and prevented the ugly scenes and arm-twisting we saw when the 42-days provision was passed in this Chamber by the narrowest of margins.

On Second Reading, I said that we would fight tooth and nail against illiberal provisions on 42-days' detention without charge and on abandoning juries in coroners' courts. I am glad that, with the help of the official Opposition in the Lords, we have been able to see off those proposals and that the amendments passed in the other place on them will be supported on both sides of this House.

On the specific amendment tabled by Damian Green, the Lords amendment calls for national guidelines, and that would allow the Secretary of State to vary the guidelines for different agencies, should he or she see fit.

J

Increasing detention times, removal of trial by jury and habeus corpus is a move towards a fascist state, and not compatible with the founding principles of the Magna Carta. Likewise individuals being unaccountable for their actions, also adds to a fascist shift in the running of a country. The Civil Contingencies Act 2004 (enabling act) which can be used if a threat is imagined or perceived, is a move towards fascism in this country, using terrorism as it's justification. Fascist States always use the tactic of imnagined inside and outside threat to justify their increasing control of the population, and altering the established laws of a country to curb...

Submitted by Jane Birkby Continue reading

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 1:15 pm, 19th November 2008

Does not the Lords amendment have the great advantage—in so far as I have correctly understood it—that the Secretary of State must subject all Government agencies to the requirements, rather than picking and choosing between them?

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I agree, and the amendments tabled by the hon. Member for Ashford would introduce an element of subjectivity into what the Secretary of State could do, which we do not want to see introduced. We would prefer the unalloyed Lords amendment.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am glad and, given what I said earlier, relieved that my hon. Friend is taking that position. The only argument for supporting amendment (a) would be if the Government were to make it clear that they would drop their motion to disagree if that amendment were to be passed. If not, all that amendment (a) would do is water down the amendments made in the other place, which I wholeheartedly support.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

My hon. Friend is, as always, a master tactician, and I entirely agree that were the Minister to make it clear that the Government would be prepared to accept the Lords amendment with amendment (a), we would be happy to support that.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

One of the effects of the unalloyed Lords amendment would be that terrorist suspects would be entitled to the available information about themselves. There may be circumstances in which that would be extremely regrettable.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

In fact, the guidelines make it clear that if the case is still under investigation, that objection will apply, but if the case is no longer under investigation—if the DNA has been found at the scene of the crime but the crime has been cleared up—the DNA will be taken off the database. The hon. Gentleman's objection is not a real one.

Prompted by my hon. Friend Mr. Heath, I reiterate to the Minister that if he were minded to accept the Lords amendment and the Conservative amendment, we would be happy to support that.

Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

It is completely misconceived to argue that we need the qualification proposed by the Conservatives to deal with a category of people. Categories of people can be dealt with in the regulations as they cover the range of agencies, so the proper concern of Damian Green can be better addressed by retaining the Lords amendment as it is, rather than by modifying it in the way he suggests.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

My hon. Friend makes a good point, and it is similar to the point that I started by making—that the Secretary of State is not required to lay down the same guidelines for all Government agencies, but can vary them. At the least, amendment (a) is otiose, but if Ministers were minded to accept it, I would be happy to support it.

The Lords amendment is sensible and moderate, and it helps to clarify the real problem, which is that the Government do not have a policy on acquiring DNA samples for the database. In reality, a sort of clattering train picks up bits and bobs here and there in a completely random manner.

If I were one of the nearly 1 million innocent people on the DNA database, I would rightly want to get my sample off it. I do not think that the Government should be going on fishing expeditions to bang on bits of extraneous information about citizens merely for the sake of it. Frankly, I would be more inclined to support the Government if they were to target the 2 million convicted criminals who were convicted before the database began and who do not have their DNA samples on the database. If the database was genuinely a database of people who had been convicted of a crime, that would seem to me to be a perfectly fair principle on which to proceed. However, we have 1 million innocent people on the database and 2 million who ought to be on the database but who are not because their convictions happened before 2001.

We have not heard any evidence from the Government that the increase in the numbers of people acquired randomly whose samples are on the national database has led to an increase in the number of successful convictions. We have heard a number of wild assertions and I was pleased to hear the Minister say that he would try to come up with information to test them, but despite the huge increase in the size of the database, the number of successful convictions using DNA has hardly altered. We are putting all the extra samples in, which happens at some cost to the ease with which the database can be manipulated and increases the chances of making an error, which could be extremely serious for any individual concerned, yet we are getting no serious increase in the number of successful convictions using DNA.

I believe that the Lords amendment is a first step towards putting our use of the DNA database on to a sensible footing. I hope that the House will support it and I will listen to the Minister's response to see whether we should support the amendments tabled by the hon. Member for Ashford. If the Minister is minded to accept the Lords amendment with those amendments, we will do so, too.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am rather torn both on the amendment and on the Lords amendment. I hope the House will accept that I approach most criminal justice matters from within the libertarian wing, so I am conscious that some of the views that I will express are not those that I would normally express in this context. I suspect that they are not shared by those on my party's Front Bench or by most of my hon. Friends. So far as the amendment moved by my hon. Friend Damian Green is concerned, I am bound to say that my preference is for the Lords amendment.

It seems to me that the disadvantage of the amendment tabled by my hon. Friend is that it would enable the Government to choose which agencies will be the subject of the procedures envisaged in the Lords amendment. My hon. Friend has a perfectly decent reason to be worried, as his coda to agencies is based on the question of whether possible terrorist suspects will get information that they should not have.

Such a fear is perfectly realistic, but it seems to me that at least two responses can properly be made. First, we could so construct the secondary legislation as to enable the Government to defuse that risk by the contents of the regulations, on which we could take a view. It seems that that would protect the interests about which my hon. Friend is concerned. Secondly, I am very cautious about giving discretionary power to a Secretary of State because, at the end of the day, we need to cling to the principle that once power is given to any official or to the Executive, it is certain to be abused on occasion. Therefore I do not feel comfortable with my hon. Friend's amendment and am not minded to vote for it if he presses it to a Division.

That takes us to the Lords amendment. Again, I confess to being torn. There are advantages and disadvantages. Perhaps I could identify them and then suggest the proper view. The advantage of the Lords amendment is that it brings consistency—or is capable of bringing consistency—by the publication of the procedures. I think that it is undesirable that varying police forces should have different approaches to the issue of removal and disclosure. I see great merit in it being said that police forces across the country should operate according to a common code. That is the advantage. It is a considerable advantage and I do not want to pretend otherwise.

The disadvantage is that the amendment is a marked move away from the proposition that we should have an ever-expanding database, perhaps moving to a national database. I want to say a word about that, if I might, before I come to a conclusion. I recognise that there are serious disadvantages and arguments to be deployed against a national database, particularly a DNA one.

The advantage of a national database, leaving aside all other issues, is huge. It is not only the most effective single detective weapon currently available to the enforcement agencies but is a huge deterrent in itself. I did a case two or three years ago involving a very bad rape, and the rapist was discovered only because 10 years after the event the police were going through old samples that they then could not profile and now could and they happened to discover the rapist on the database.

If one projects such an idea forward, one appreciates that many potential criminals, such as rapists, will be conscious that they leave DNA samples on the site. That is a huge deterrent. It is not only a detective instrument but a deterrent, especially as the forensic scientists become more skilled in gathering DNA. Low-copy profile DNA, for example, can operate on very small samples, so such profiling is a huge deterrent as well as a detective instrument. I suspect that it is the single most effective measure that we can adopt to decrease crime.

On the other hand, I acknowledge that there are serious civil liberty issues to debate, although I am not persuaded by them. There is no question but that we need to debate them. There are huge costs involved and I have no doubt that there are huge practical difficulties to resolve. I have not come to an absolute conclusion, but we should not shut the door on the debate. The question of whether we should move gradually towards a national database is very important.

Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

The last thing that we are seeking to do is to shut off the debate. Indeed, as my right hon. and learned Friend will appreciate, the purpose of these amendments is to enable a further debate to take place, which is the very thing that we have not been getting. I take his point; there are arguments. Indeed, Lord Justice Scott put forward some persuasive arguments about why there should be a national database that included even people who came into this country as visitors and who should be obliged to provide their DNA at the airport at the point of entry. Such arguments can be made, but there is something extremely unhappy about a situation in which innocent people go on to the database at random and feel a justifiable sense of grievance as a result.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am not disagreeing with my hon. and learned Friend. The conclusion to which I am going to come is that we can support the Lords amendment. My point at this stage is that the House and the country as a whole should have a serious debate about the desirability and practicality of a national database. I do not pretend that I have come to a wholly concluded view, because I think that the civil rights arguments might be more powerful than I currently deem them to be. I also question whether we can wholly exclude the risk of wrongful convictions based on DNA and I ask what safeguards should be incorporated. There are very important issues to be reflected on, but we should debate seriously the use of the database and I am very uncomfortable with anything that impliedly stands against it.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice 1:30 pm, 19th November 2008

Is the right hon. and learned Gentleman aware that the very substantial increase in the number of samples on the DNA database has not led to an increase in the number of successful convictions? That tends to weigh quite heavily against some of the points that he was making in favour of a potentially nationwide database.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I think that one needs to look at the statistical arguments a little more closely, as that is surprising and one would expect the number of convictions to rise. The figures do not address the issue of deterrence, although they do question the database's effectiveness as a detective tool. However, we need to know more about the statistical base before we draw too many conclusions from the hon. Gentleman's observation.

As for Lords amendment No. 2, I accept that my hon. and learned Friend Mr. Grieve is right to say that it would enable a debate to be had, because an ability to lay regulations does trigger debates. Moreover, as I said earlier, it also has the great advantage in that it would bring consistency.

My conclusion, therefore, is that we should not accept the amendment moved by my hon. Friend Damian Green, unless he persuades me that I am wrong in my interpretation. I believe that we should accept Lords amendment No. 2 because it would provide consistency and trigger a debate. At some due time, and in an appropriate way, this House really must return to the question of whether we should have a proper national database of DNA samples.

Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

I begin by apologising to the Minister for the fact that I was at an event elsewhere in the building and so missed his introductory remarks—

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I have to tell the hon. Gentleman that I missed them as well!

Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

That is good, as we will be at no mutual disadvantage. I therefore redirect my apology to Damian Green.

I want to make two points in addition to those made by my hon. Friend Chris Huhne and Mr. Hogg. The first has to do with the disadvantage of the present system and picks up a point made by Margaret Moran. At the moment, the police are often hugely discredited in the eyes of law-abiding members of the public by the arbitrary way in which samples are collected and the uncertainty of what then happens to them. I shall give an example that comes from the sort of constituency experience shared by many hon. Members.

I have in my constituency a family—professional parents, teenage daughters—who are entirely well respected. The incident that I am about to relate took place within the Metropolitan police area but outside our borough. The daughters were stopped when in a car being driven by someone else, and samples were taken. It appears that the driver had either a previous charge or conviction, but the teenage girls had no previous criminal record.

It took about a year to get a decision from Lewisham's borough commander—I was eventually told that it would be his decision—that the girls' samples would be removed from the DNA database, which would not show their involvement in the incident. There was huge uncertainty in that period, and no courteous, timely, prompt or helpful series of responses.

The girls involved happened to be black, and they have one black and one white parent. It is difficult enough for black teenagers in London to have confidence in the police, and this experience did not help those young women or their parents in that regard, suggesting as it did that the police were more interested in collecting data than in seeing justice done by those absolutely innocent young women.

First, the present system allows data to be collected and retained in respect of people who are never charged, let alone convicted. In my book, that is wrong in principle. Secondly, the system is arbitrary in its operation and subject to no guidelines, and that is really unhelpful on the street. The Minister knows that, as he is a man of the people: he was out with me and others on the anti-knives march; he understands how real people think and talk and his constituency is very like my own. He knows that I am talking about ordinary, law-abiding people in real circumstances, not academics with doctorates—

Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

There are lovely people with doctorates and, as one would expect, many are the constituents of my hon. Friend David Howarth, but we are not talking about them.

My second point follows on from what the right hon. and learned Member for Sleaford and North Hykeham said. I also understand that there is a debate to be had about the relative merit of holding samples as against not holding them. However, it seems to me that proceeding in a logical direction means we should heed the advice and the recommendation given by my hon. Friend the Member for Eastleigh—that is, that we should first seek to hold samples and data on the people who have a criminal record. That must be the first step, as all the evidence in criminology and criminal justice is that people who have previously offended have a propensity to offend again. The majority of citizens are innocent and non-offenders, while the minority—sadly—are either occasional or recurrent offenders.

It is not logical to move to a presumption that a general holding of data is now the right step to take. In that respect, the Government's view is as flawed as their approach to ID cards. There is an argument that everyone in the country should have an ID card and be required to produce it whenever they are stopped. Many other European countries have that system, but there is absolutely no argument for a system that would require people to have an ID card but not to carry it with them. That is the Government's current position, and it is entirely illogical.

I anticipate that there will be a Division on these amendments. I hope that the right hon. and learned Member for Sleaford and North Hykeham will come down on the side of Lords amendment No.2, but unamended by his Front-Bench colleagues. That is the best option available, as it proposes that, at least for the time being, we should have a system whose structure means that people in Bedfordshire or Hertfordshire, Lewisham or Southwark could expect the same set of procedures. Those procedures would determine who collected the data and when, what was held, how the information could be requested, how people would be responded to and what the criteria were for any decision.

My vote will be that data should not be retained on samples taken from people who are not charged or who are innocent. That must be the right starting point, and I hope that colleagues will vote for the Lords amendment on that basis.

Photo of David Jones David Jones Shadow Minister (Wales)

When Baroness Hanham moved the Lords amendment in the other place she said that her aim was

"to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them."—[ Hansard, House of Lords, 4 November 2008; Vol. 705, c. 132.]

If this debate is anything to go by, she has certainly succeeded in her aim—if only by virtue of the contribution from my right hon. and learned Friend Mr. Hogg.

There is considerable disquiet throughout the country, and certainly throughout the House, about the extent of the database. We have heard already that the details of some 4.5 million individuals are currently kept on the database, which is growing at the rate of more than 500,000 entries a year. In a parliamentary answer only last month, we heard that some 857,000 individuals with no current convictions also have their data stored on the computer.

Clearly, no one has any quibbles about the existence of the database, which has proved itself to be an exemplary tool in fighting crime. However, there is disquiet about its extent and, especially for the purposes of this debate, about its opacity when people seek access to the information that it contains and apply to have information removed.

As my hon. Friend Damian Green said, the only guidance appears to be that contained in the Association of Chief Police Officers "Retention guidelines for nominal records on the Police National Computer". As he also said, it is a masterwork of opacity: it appears to be designed to defeat the efforts of the very best Googler, and I certainly had huge difficulty finding it on the internet earlier this week.

We have heard that the guidelines are clear to the extent that they positively advise obfuscation. They say that the first response, which is to be automatic, to a request for destruction is to refuse it without further consideration. However, we are told that if the applicant persists, the chief constable for the relevant force is to make the decision, yet the guidelines make it abundantly clear that the discretion vested in the chief constable is to be exercised only rarely. We are told that there is a library of precedents to which chief constables can have access when deciding the basis on which to make their decision, but that library—as far as I know—is not available to the public.

Like Keith Vaz, I have constituency experience of trying to remove a constituent's details from the database. The incident involved a retired senior police officer who had been charged with a serious offence of misconduct in public office. The investigation and the period before trial took eight months; needless to say, it was a period of extreme anxiety for my constituent and his family. Ultimately the case came before Chester Crown court, where it collapsed in circumstances that can be described only as complete disarray on the part of the prosecution. Subsequently, my constituent, who had suffered extreme trauma as a result of the experience, tried to have his name removed from the database. We are talking about digitised details of the very essence of an individual—in this case, a completely innocent individual who had been exonerated by the Crown court yet who nevertheless found that his data were on the national database in the company of the biometric data of convicted rapists, terrorists and murderers. Understandably, he wanted his details removed.

In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:

"The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.

I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions."

In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:

"If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity."

There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I entirely understand the point my hon. Friend is making. The lack of opacity is a powerful argument, as is the lack of consistency and perhaps the lack of a statutory basis for the arrangements. Bearing in mind the fact that all criminals were once people of good character—to use the technical phrase—is it a matter of principle to him that the DNA of an innocent person should not be on a database? If so, what is that principle?

Photo of David Jones David Jones Shadow Minister (Wales) 1:45 pm, 19th November 2008

Personally, I feel that as a matter of principle the DNA of an innocent individual should not be kept on the database. My view is that the database is a tool to be used in the fight against crime and there should not be a presumption that information about innocent individuals should be on such a database. There is of course a strong argument for putting every individual in the country on the DNA database. That is part of the debate. I happen to take the contrary view; however, in this debate we are concerned about consistency and transparency, and as we have inconsistency and opacity at present, I strongly support the amendment. It would put in statutory form provisions for guidelines that Government agencies could access and which gave consistency of approach to those who may be aggrieved by the presence of their DNA on the national database.

At present, however, the issue of whether DNA records should be removed from the database may depend in some cases on nothing more than the state of digestion of the relevant chief constable. That cannot be a healthy state of affairs, so I strongly support the amendment.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I thank all Members who have contributed to this important debate about the DNA database, DNA more generally and what is right or wrong in how things are done at present. As some Members said, whatever the rights or wrongs of the amendments, they have generated debate and a discussion of the rights and wrongs of the policy, not only in this House but in the other place. I shall try to cover the various points made by my right hon. Friend Keith Vaz and other Members, but no doubt if I miss anybody out they will intervene.

I beg to move that the House disagrees with the Lords in their amendment No. 2, which would, as we know, add a new clause 14.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. We have to dispose of the amendment before the Minister moves the motion to disagree. At the appropriate moment, I shall find an opportunity to call on him to do so.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

In that case, I shall turn to the amendments proposed by Damian Green. We recognise the concerns about the existing retention policy. The hon. Gentleman has tried to show that new clause 14 would actually include the security services. I realise that is a point of dispute, but the guidelines, as proposed, would apply to samples taken by Government agencies, and would thus include samples acquired during terrorist investigations.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

Does the Minister accept that if, for example, the guidelines made it clear that in an ongoing investigation it was perfectly legitimate for Government agencies to hold DNA found and identified at the scene of a crime—terrorist or otherwise—it would meet his objection?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I think the hon. Gentleman is now trying to qualify the problems with the new clause. In this instance, I agree with the point made by Chris Huhne can ask why we do not do this or that, but in effect if we agreed to new clause 14 we would in primary legislation be allowing circumstances in which DNA samples from terrorists could be used, and in that sense we could damage the capacity and capability of the security services.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

My understanding of subsection (1)(c) of the proposed new clause is that it would enable the Secretary of State to establish circumstances in which the request was refused. One would have thought that the regulations provided sufficient latitude, under that specific provision, to enable sensitive information to be withheld.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

All I can say is that there is doubt in the mind of the security services and those who have responsibility for these matters. Indeed, the right hon. and learned Gentleman's party's Front-Bench spokesmen and many of his colleagues accept the concerns that have been expressed about the fact that primary legislation would be put on the statute book containing provisions that theoretically and practically compromise the security services' ability to act.

Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

May I say to the Minister, respectfully, that he has been badly briefed? That cannot be the interpretation—to be blunt, that is a completely extended interpretation. The new clause that has come from the Lords states:

"The Secretary of State shall by regulations publish national guidelines for governmental agencies".

That allows thereafter the definition of the governmental agencies to be covered by the guidelines. That is the first point. The second point is the one picked up by Mr. Hogg—that proposed new subsection (1)(c) allows the possibility of qualifying that. For two reasons, therefore, what the Minister fears would not happen and need not happen. He really should not try to persuade us otherwise, based on a very poor briefing and a poor argument.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I do not regard the briefing that I received as very poor. No doubt the hon. Member for Ashford received the same—extremely worrying—briefing as I did, and that is why we have reacted as we have.

Responding to the broader debate, we recognise that there are concerns about the present retention policy, but there is strong and convincing evidence to support the current approach. I shall come to that shortly, but first I remind the House that statute in this area under the Police and Criminal Evidence Act 1984 has been considered by Parliament twice within the past seven years. First, the Criminal Justice and Police Act 2001 amended PACE to allow DNA and fingerprints taken from those charged to be retained indefinitely. The amendments arose from decisions in the Court of Appeal relating to two cases in which compelling DNA evidence linked one suspect to a murder and another to a rape, but could not be used, and neither man could be convicted. That happened because at the time the matches were made, either the defendant had been acquitted or a decision had been made not to proceed on the offences for which DNA profiles had been taken. Secondly, the Criminal Justice Act 2003 amended PACE to allow the police to take DNA and fingerprints without consent from anyone arrested for a recordable offence and detained in a police station.

The provisions of the Criminal Justice and Police Act gained Royal Assent on 11 May 2001. According to the most recent figures that we have, between that date and 31 December 2005 there were approximately 200,000 DNA profiles on the national DNA database that would previously—before the 2001 legislation was enacted—have had to be removed because the person had been acquitted or the charges had been dropped. Of those 200,000 profiles, approximately 8,500 profiles from some 6,290 individuals have been linked with crime scene profiles involving nearly 14,000 offences, including 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 offences of the supply of controlled drugs.

I take the point that a number of Members, including David Davis and, I think, the hon. Member for Eastleigh have made. As I told the House of Lords Committee this morning, I will investigate further and share the information I find with the House. However, I agree strongly with the point made by the right hon. and learned Member for Sleaford and North Hykeham: it is important to consider the deterrent effect, as well as the links that are sometimes made with other crime scenes. Where I do not agree with him is on a national DNA database. We have tried to move forward in a proportionate and necessary way, without moving down the route of having a national DNA database.

The successful detection and conviction of offenders, combined with the absence of interference in the daily life of people on the database who do not commit crime, are compelling reasons to retain the existing approach. As the debate has highlighted, there is concern in some quarters about whether it is proportionate to retain the DNA of people not subject to charge or conviction. However, I think we should focus on the crimes that have been solved thanks to that DNA database. I am sure that the House agrees that that is compelling evidence, drawn from real events.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am sorry, but I do not think that the Minister is answering the points made in the debate. He is certainly not answering our case, outlined by my hon. Friend Margaret Moran, that different chief constables decide to interpret requests differently. The position is shambolic; it must be tidied up.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I will get to that point later. I was stating our belief that, in general, the policy is effective because it leads to crimes being solved that would not otherwise be solved. I would not do my right hon. Friend the discourtesy of not answering the specific points he made.

The position on the current statutory provisions was upheld quite strongly by the House of Lords in 2005, in the case of S and Marper v. R. However, the House will know that the matter is currently before the European Court of Human Rights. We have defended our decision, but we await the decision of that Court, which we understand may come before the end of the year.

The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.

I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.

Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Home Office), Shadow Attorney General

I am grateful to the Minister for those comments. Will he also ensure that if that work is carried out as he says it will be, some regard will be had to the Scottish system? It is worth pointing out that the system we are discussing is not ubiquitous to the entirety of the United Kingdom, and that the Scottish legal system succeeds in running a process whereby the DNA of innocent people is removed from the DNA database after—I believe—two years.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I know that a different approach is taken in Scotland, and that is a matter for the Scottish Executive.

In an attempt to reassure my right hon. Friend the Member for Leicester, East, I repeat that we are trying to increase understanding and awareness of police powers and the rights of individuals. We know that work needs to be done on improving the notice of rights and entitlements provided to every person arrested and detained at a police station. As part of the PACE review, I will consider some of the points he made with a view to ensuring greater consistency across the country and less of the variation that he described. I shall also try to do something about some of the problems of unfairness that he highlighted. I hope that that goes some way toward meeting his concerns.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

It certainly goes some way to meeting the objections that I raised. However, the point remains: if the only exception is to be that mentioned by Damian Green, I am not sure what rights the Minister is proposing to publicise. There are no rights in these circumstances. If the exception remains as it is, there is no point in a person writing in to exercise the rights that have been publicised. Is my hon. Friend giving me an assurance that the exception will be extended?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security) 2:00 pm, 19th November 2008

What I am saying to my right hon. Friend is that although I cannot predict the outcome of the review of the guidelines, I will ensure that we look into the points that he makes and the concerns that he raises, including his worry about variability and the problems that people have in getting their DNA deleted from the database once it is on it. Certainly, we will try to see whether more can be done about that. As he says, it is no good just publicising existing guidelines if there is no change to the situation. All that I can say to him is that I will look into the matter. I cannot predetermine the outcome, but his points are well made, and I will certainly consider them while the review is going on.

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Photo of Margaret Moran Margaret Moran Labour, Luton South

I thank my hon. Friend for the approach that he is taking on the issue. Will he ensure that when guidance is issued after the PACE review, the Home Affairs Committee will be able to take an overview of it? As points have been made about confidence, including public confidence, it is important that Members of this House are confident that there will be transparency and consistency. Will he indicate how monitoring will take place, so that incidents such as those to which I referred, in which different approaches were taken by different constabularies, can be reported and addressed, if there are failures?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

My hon. Friend makes some important points, but I cannot tell her what will happen as a result of the review, or make commitments that I am just not in a position to make. I can try to reassure her and my right hon. Friend the Member for Leicester, East by saying that I have heard what they have said about how the DNA database currently operates. I will look into the issues to do with the deletion of samples that are on the database. I will see that the concerns that have been raised are incorporated into the review. I will bear in mind not only what my right hon. Friend said about the need for change, but the points that my hon. Friend the Member for Luton, South made about the need for monitoring. I hope that that provides some reassurance.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

If I may, I shall make some progress.

There is a further consideration that led us to the conclusion that we reached, aside from the position regarding the policy on the retention and use of fingerprints and samples. Lords amendment No. 2, inserted in the other place, would have serious adverse consequences for the retention and use of fingerprints and samples. Only samples held by the Security Service and Secret Intelligence Service would be covered, because the amendment refers to "governmental agencies". However, it does not cover the police, who are responsible for the retention of PACE samples.

Samples acquired covertly by the police or the security services and held on the counter-terrorism DNA database would be subject to the guidelines, so investigations could be compromised when people found out that they were under investigation through such requests. Amendments (a) and (b) to Lords amendment No. 2 seek to remedy that problem. I understand what the hon. Member for Ashford is trying to achieve with the amendments, but they do not achieve their aim. The amendments permit the Secretary of State to use discretion when deciding on the agencies to which the guidance proposed in Lords amendment No. 2 should apply. The discretion could be used to ensure that the guidance did not apply to the security agencies; the risk of terrorist investigations being compromised would therefore be mitigated. However, the amendments do not necessarily achieve that aim. Lords amendment No. 2 refers to "governmental agencies", which do not include the police, who hold the vast majority of fingerprints and samples. The amendment would actually exclude the police. I ask the House to reject the amendments.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I shall start by taking on the Minister's last point, which, frankly, I found bizarre. Unlike the Liberal Democrats, he and I agree that we should not, in any circumstances, compromise any covert activities that it is necessary for the security services to undertake. The distinction that the Minister drew between them and the police is precisely the distinction that I seek to draw in amendment (a). I do not think that the police should carry on in the way that they are enjoined to carry on by the current guidelines. I can see a case for secrecy for the covert agencies, but I can see no such case for the police. At least he recognises that distinction.

I hope that the Minister will also recognise that there was simply no support for the current system from any part of the House. Compelling contributions were made by Margaret Moran, Keith Vaz and my hon. Friend Mr. Jones. There are practical examples from all over the country that show that the system is unacceptable and does not contribute to proper crime-fighting, let alone the fight against terrorism. Confidence in the system is reduced because of its arbitrary nature and inconsistency across the country. Too often, people simply do not understand the system because it is not transparent enough.

I should like to address one or two of the points made by my right hon. and learned Friend Mr. Hogg. He objects to the way in which the Home Secretary will be given the power to decide which agencies should be excluded. I simply point out to him that that the Home Secretary's decision will be public, so the House would have the chance to comment on, criticise and debate it. He asked on what principle we objected to the national DNA database, to which he is attracted. The principle is that the privacy of an individual should not be compulsorily intruded on by the state, except in the most extreme circumstances. It is the job of this House to try to protect people's privacy as much as possible, consonant with the proper running of society. A national DNA database, on which the private details of tens of millions of entirely innocent people would be put, offends that principle. In an era when the state does not appear to be able to keep private information safe, that principle is all the more important to us. I hope that he will reflect on that.

My right hon. and learned Friend made the point that every criminal was once of good character; I simply point out that the vast majority of people of good character remain of good character, and do not become criminals. They are entitled to believe that their privacy is valuable and that this House should seek to protect it.

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Photo of Simon Hughes Simon Hughes Shadow Leader of the House of Commons, Party Chair, Liberal Democrats

May I push the hon. Gentleman on that? On a point consistent with that position, which I entirely support, does he agree that any guidelines should presume that police officers will remove samples in cases in which the person is innocent? That should be the presumption, rather than there being open discussion about it.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

Yes, I agree with that. Innocent people should expect to be treated differently from those who have been convicted of an offence. I agree with Chris Huhne that it is particularly absurd that we are collecting DNA from innocent people, but not from people who have been convicted of serious offences. That is one of the many absurdities of the current system.

In conclusion, I am grateful that, in all parts of the House, there is clear support for the principles behind amendment (a), whatever detailed objections people may have. I think that the Minister will realise, from the extent and force of the arguments expressed in this debate, that there is simply no support anywhere for the current situation. I therefore commend our amendment (a) to the House.

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Question put, That the amendment be made:—

The House divided: Ayes 154, Noes 329.

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Question accordingly negatived.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 277, Noes 209.

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Question accordingly agreed to.

Lords amendment disagreed to.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Before we come to the next group of amendments, I should offer a word of clarification to the House. A revised version of the white amendment paper has been issued, which affects this second group of amendments and the fourth group. The Government are moving to disagree to Lords amendment No. 133 and to agree to Lords amendment No. 113. The revised version should be available in the Vote Office for hon. Members if they have not already acquired it.

After Clause 80

Lords amendment: No. 106.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I beg to move that this House disagrees with the Lords in the said amendment.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss Lords amendment No. 133 and the Government motion to disagree thereto, and Lords amendments Nos. 103 to 105, 107 and 132.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

As hon. Members will be aware, we share a common desire to resolve the issue of ensuring that an inquest can be held that is article 2 compliant and enables bereaved relatives and other interested parties to be involved to the extent that is necessary to safeguard their legitimate interests and to allow proper understanding of the circumstances of the death of the individual, while ensuring that sensitive material is properly protected. The issue of sensitive material arises in a very small number of inquests, but we need to ensure that the finder of fact can consider all the relevant material while ensuring that sensitive material, and the way in which that material was obtained, is protected from public disclosure. This is because disclosure could damage national security or ongoing police investigations.

In order to address this problem in relation to inquests, the Government's proposals, which we intend to bring forward in coroners legislation in the next Session, would permit the Secretary of State to issue a certificate requiring an inquest to be held without a jury if in the opinion of the Secretary of State the inquest will involve the consideration of material that should not be made public in the public interest, including to a jury or interested persons.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am interested in that statement. Is the Minister then saying that given the power to issue the certificate, intercept evidence will be admitted into inquests?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Not necessarily. As the right hon. and learned Gentleman knows, where we go on intercept evidence is subject to considerable debate.

As a result of certification, the finder of fact would be a coroner rather than a jury, as already occurs in 98 per cent. of inquests.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Bill states, at the top of page 54:

"The Secretary of State may certify in relation to an inquest" and so on. Does he carry on the certification process privately, or is it susceptible to counter-argument, and is his decision to certify justiciable? [ Interruption . ] Can I take him to court if I disagree with his decision?

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

They should already have been worked through. That is the whole point about the drafting of the Bill. I do not wish to be unduly aggressive, but the Minister ought to able to answer my questions—if not right now, then having taken advice on them.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I certainly will.

The coroner, who would continue to be a fully independent judicial office holder, would be security cleared to receive all relevant material. Only those parts of the inquest involving the consideration of material that should not be disclosed publicly would be held in private in the absence of the next of kin. Wherever possible, the inquest would take place in public with the next of kin, other interested parties and their legal representative present.

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Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

What reassurances can my hon. Friend give to those next of kin in relation to this part of the Bill and the new coroners Bill? I deal with many Army families through the all-party Army deaths group, and they see the coroner's inquest as their mechanism for getting to the truth of the death of their loved one. Can he reassure them that these procedures will give them the truth?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

The reassurance that I am sure other hon. Members want is that we will have discussions as that legislation goes through Parliament in the next Session. We will talk to my hon. Friend and have discussions with other hon. Members about its implications, and we will try to ensure that, as far as possible, we talk to them about the problems that they may raise. The only reassurance that I can give is that we will continue to discuss such matters with my hon. Friend and others.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Can the Minister tell me, one way or the other, whether it would be possible under the legislation that we are discussing today for a coroner's inquest to take place in which the family of the deceased would not know the evidence, so that it would be, in effect, a secret court?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

We are trying to take various aspects of the process out of this Bill, and some of the questions that my hon. Friend raises about inquests will be debated during the next Session of Parliament.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I thank the Minister for that, and I understand that we are going to debate the matter in the next Session, but my concern is about what we are doing today. Are we about to pass legislation, if his proposals are agreed, that will in effect bring about secret coroners' courts?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

We are trying to ensure that we protect intercept material and other secret material. It is perfectly possible that in doing so, processes and procedures may be required where these things take place behind closed doors.

To answer the point made by Mr. Garnier, the decision to certify can be judicially reviewed. I hope that that answers his point.

For those parts of the hearing that need to be held in private, the coroner will be able to appoint independent security-cleared counsel to the inquest who would represent the interests of the next of kin and probe sensitive material on their behalf during the private sessions, thereby ensuring that their interests are properly protected at all times.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry to press the Minister, but I am not sure to what point he is now speaking. Is it the proposals for coming legislation, or is he saying that such proposals are in the Bill—because they are not? If he is talking about future legislation, that is jolly nice, but we have not yet seen it.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I am trying to reassure hon. Members about where we are going with coroners legislation, and about the serious points that have been made. I therefore ask the House to agree with the Lords in their amendments Nos. 103, 105, 107 and 132, which would remove the provisions from the Bill.

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Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am slightly confused about the endless series of permutations about intercept as evidence. Will the Minister quickly give us an update on where on earth that stands now?

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Indeed he does seem confused,he seemed bewildered that his remarks about the handgun ban after 16 children and...

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I certainly can. The hon. Gentleman will know that the Chilcot review established a number of principles for the programme of work to be done, and a number of right hon. Members on the Privy Council are taking that work forward. There are three phases of work, and we are reaching the end of phase 1. The Minister who preceded me in my post, now the Minister of State, Department for Work and Pensions, my right hon. Friend Mr. McNulty, said that we would report regularly to Parliament on where we had got to with regard to the Chilcot review and intercept as evidence, and I can tell the hon. Gentleman that we will bring that report to Parliament in the not-too-distant future, to update Members. I hope that that is helpful to him.

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Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Pursuant to the point made by my hon. Friend Mrs. Humble, does the Minister accept that the families of the deceased may not be as happy as he hopes if an independent, security-cleared barrister represents their interests in cases where they cannot hear the evidence about how the person that they loved died? That is a quite human and understandable point, and the Minister has been a little blithe in saying, "Oh, it will be all right because they will have a security-cleared barrister who will work on their behalf." They want to hear it. A person that they loved has died; they want to hear the facts.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Obviously, what is said is not meant to be a disrespectful statement. We are trying to balance the needs of soldiers' families—the needs of individuals—with the security of sensitive material. We are trying to strike a balance between the needs of state security and the need to be fair and reasonable to the families of soldiers.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North 2:45 pm, 19th November 2008

I thank the Minister for giving way again; he is very generous. Is he aware that many people are concerned that inquests that take place where there is a jury are virtually always cases in which someone has died in police custody? Does he not consider the danger that when there is a death in custody there will be a temptation on the part of the authorities concerned to say, "We would rather this whole thing was not made public, therefore we will apply for a secrecy clause and the appointment of a specialist barrister who will not be able to disclose to the relatives the evidence held"? Does he not accept that a human element is involved with regard to soldiers' families and the point raised by my hon. Friend Mark Fisher, and a danger to society in granting such powers, which I do not believe are necessary?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

There is always concern and worry about such matters, and my hon. Friend is right to draw attention to them, but we are trying to strike a balance between state security and the need to ensure that an inquest can take place properly. A police shooting or a similar incident would be a difficult matter, but it is the balance struck between the two factors that is important.

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Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

The Minister is being generous in giving way. Will he clarify something for me, because we are getting confused about access to information, especially for families who have lost relatives who are soldiers abroad? As he will know, in Scotland, we do not have coroners' courts; we have fatal accident inquiries. However, coroners' courts still cover the deaths of Scottish soldiers abroad. Indeed, one of my constituents was subject to such an inquest. Can the Minister guarantee that there will be full disclosure of information to families so that they can understand the reasons behind such tragic deaths?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

We want as full a disclosure as possible, but I cannot guarantee that it would be possible to disclose every bit of information.

In answer to Mr. Hogg, I point out that much of this debate will take place in connection with future legislation, which is part of the reason we agree with some of the Lords amendments. They take out many of the provisions concerned, which will allow us to discuss in the next Session many of the matters involved.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

The Minister is intent on telling the House about future legislation, so I have one simple question about that. Will the future provisions relate only to matters of national security, or are the Government intent on extending them, as they did in the original draft of the Bill, to

"the interests of the relationship between the UK and another country" or

"otherwise in the public interest", which is a carte blanche for the authorities to do exactly as Jeremy Corbyn said?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

That will be a matter for future debate. The Government intend to take forward much of the legislation as it was drafted, but we need to have discussions with others about how we do so.

Amendment No. 106 would enable a High Court judge sitting as a coroner to require disclosure of sensitive material. The disclosure would not be limited to the coroner alone, but could also be made to the persons appointed as counsel to the inquest, members of the jury or to any properly interested person, such as bereaved families. While the amendment would, in principle, allow the jury as finder of fact to have access to all relevant material, it would do so at the expense of essential safeguards. It would create the potential for disclosure of all intercept material, regardless of sensitivity, to a wide number of people, thereby seriously undermining the ability to ensure the protection from public disclosure of sensitive intercept material and the capabilities and techniques by which it was obtained. The value of the techniques and capabilities would be diminished because targets would either know or could deduce when their communications might be intercepted and could take evasive action by using other, more secure means of communication. Such disclosure could undermine our ability to prevent future attacks or affect our ability to curb the activities of dangerous people.

It has been argued that disclosure as envisaged in amendment No. 106 would be no different from the existing disclosure permitted in criminal cases under section 18 of the Regulation of Investigatory Powers Act 2000. That provides for disclosure to a relevant judge in a criminal prosecution, when he is satisfied that the exceptional circumstances of a case make it essential in the interests of justice. However, that argument overlooks the difference between coroners' inquests and criminal proceedings. The effect of section 17 of RIPA is that neither party in criminal proceedings can rely on or refer to the fact of interception of an individual's communications and the product of that interception. That protects the continuing value of interception while creating a level playing field, in that neither the prosecution nor the defence can gain advantage from the interception.

However, cases may occasionally arise whereby the prosecutor considers that he cannot secure the fairness of the proceedings without assistance from the relevant judge. In recognition of that, RIPA provides that, in specific limited circumstances, the prosecutor may invite the judge to order a disclosure to him of the protected information. The purpose of informing the judge is to put him in a position whereby he can ensure the fairness of the proceedings. However, section 18 does not permit the disclosure of warranted interception in criminal proceedings. If no action by the prosecutor or judge could prevent the continuation of the proceedings from being unfair, the prosecution would discontinue the case. That provides a genuine safeguard. No such discretion to discontinue proceedings exists if the death occurred in circumstances in which the European convention on human rights requires the UK to hold an article 2- compatible inquest.

The Bill sought to address the insurmountable difficulty that sensitive material that is relevant to how an individual met their death cannot be disclosed in open court with a coroner sitting with a jury. No other existing mechanisms, such as imposing reporting restrictions on proceedings and/or holding certain sections of the proceedings in camera with the jury, and other interested parties entering into confidentiality agreements, would address the problem or provide sufficient safeguards. We do not believe that an issue as important as national security should depend on individuals honouring agreements any more than we would consider such safeguards sufficient in criminal proceedings. If an individual inadvertently or deliberately discloses sensitive information, the damage is done.

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Photo of Michael Weir Michael Weir Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Environment, Food and Rural Affairs)

I am listening carefully to the Minister. He will appreciate that our concern is rather limited because coroners' courts have limited jurisdiction for Scots, especially in the military. The Minister appears to be saying that information can be disclosed to the judge, the jury or a special prosecutor with security clearance, but what if the information is a material factor in the person's death? Can that be disclosed in the coroner's judgment, or will that part of the judgment also have to be kept in camera?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

It may well still have to be kept in camera. It depends on the circumstances of the case, those surrounding the death and those surrounding any relevant material. The answer depends on the circumstances, but what the hon. Gentleman outlined could be the case.

Even if there were a legally binding sanction to prevent disclosure, there are some individuals for whom the threat of prosecution would not prove a deterrent. Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather intelligence that is vital to national security. The Chilcot review on intercept as evidence recognised this—I hope that helps Patrick Mercer, who is often nearly my hon. Friend—and that is why we are taking forward a detailed and extensive programme of work to ensure that we can meet the tests set out in it and allow intercept to be used safely, without putting national security at risk.

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Photo of Alan Beith Alan Beith Chair, Justice Committee

As someone who is taking part in that review, may I remind the Minister that disclosure is not the only problem? One of the other problems that the group originally identified is the retention of material. When the Minister tackles the way in which the new legislation can cover the substance of amendment No. 106, he must also consider the group's work on retaining material to ensure that a burden, which impairs their work, is not to be placed on the agencies.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

We look forward to receiving the report from the right hon. Gentleman and his colleagues. Certainly, we will have to consider the retention of material alongside the other points that have been made.

The Chilcot review also recognised that, in criminal proceedings, the ability to choose not to put intercept product into the public domain afforded an important safeguard. I believe that amendment No. 106 is flawed because of the inadequate protection it affords. However, there are other problems, too.

It is unclear how the new clause for which amendment No. 106 provides would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests involving the consideration of such material. There are provisions for a coroner to appoint a deputy coroner who is a High Court judge, should he choose to do so. However, as with other suggestions that have been made for safeguards, too much is left to chance and national security needs must take precedence.

When the amendment was debated in the other place, concern was expressed about the need to allay fears that there is any sort of shoot-to-kill policy. We need to recognise the important role that the Independent Police Complaints Commission plays on those rare occasions when individuals are shot by armed police officers. It has a responsibility to investigate all the facts and make a recommendation to the Crown Prosecution Service about whether an offence has been committed. Its reports are also a crucial source of information to the inquest.

We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible. However, it is always necessary to strike a balance between the interests of the families and the public interest when material that is central to the inquest cannot be disclosed publicly.

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Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

I am sure that the Minister wants to reassure the House. We are only a few months after the Jean Charles de Menezes case, which suggests that such reassurances do not operate in the real world.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Obviously, lessons need to be learned from that case, and we await the full report.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I do not understand the point that the Minister is trying to make. Will not the practice that he proposes simply lead to delays in holding a coroner's court inquest into the death of somebody who died at the hands of, for example, the police? Would not it be better if a case proceeded more rapidly to a coroner's court? The practice could be perceived as a delaying tactic by the authorities, which would cause even more distress to the victim's relatives.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

We do not believe that it is a delaying tactic. It is a proper route to trying to find out exactly what happened, getting to the facts of the case and trying to learn from them. We do not perceive it as a delaying tactic.

We are confident that the provisions that we intend to introduce in coroner legislation—with the relevant safeguards—strike the right balance of enabling the coroner to consider all the relevant material while protecting sensitive material from public disclosure if that is contrary to the public interest.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The Minister said that it was important to strike a balance between families and the public interest. Those are fine words, but how do the Government's provisions strike that balance, when a family can simply be told that it is in the public interest to keep the matter secret? A family in those circumstances will be left suffocating with frustration and there will be no sense of balance. When have the public ever been told what the public interest is?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I understand my hon. Friend's point and the strength of feeling about the issue. He knows better than the vast majority of us the importance of his comments. I am trying to say that, in a small, limited number of cases, there may be a point at which the sensitivity of the material is such that it simply cannot be used in open session. I hope that that will apply to only a small number of cases, but sometimes the public interest—the interest of national security—requires an inquest to be held without a jury and without others being present.

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Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The Minister suggests that we are considering either/or and that there are no fine lines. However, surely proceedings could be taken in camera and reporting restrictions can be imposed. There are gradations of secrecy, short of complete secrecy, that could allow for the recognition of relatives' grief and frustration.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I do not think that any of us find particularly easy the circumstances to which my hon. Friend Mark Durkan was referring, or any of the other cases to which hon. Members elsewhere in the House have referred. The issue is an extremely difficult and sensitive one. As a Minister, I feel that the issue is sensitive and requires careful handling, so I can only begin to imagine what it must be like for people in the circumstances described.

I can only begin to imagine how difficult it must be when, as my hon. Friend said, people are then told, "Because of the interests of protecting sensitive material, the proceedings need to be held in secret, but don't worry, special people will be there to protect your interests." Against that, it must be the case that nobody who has stood in my position would be able to say, in any sense of the word "honestly" or with any integrity, that there would never be a circumstance in which it would be not be necessary for material to be protected.

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Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 3:00 pm, 19th November 2008

I accept absolutely the distress of the relatives of someone who has been killed or who has died in circumstances that need investigation. However, there is a wider public interest, which is that everyone should be assured that the processes are above board and clear. We all have an interest in an examination of the facts surrounding the death. In arguing the case for national security, the Minister is effectively saying that he is unable to give us any understanding or take us into any confidence as to how conclusions in such cases are reached or whether they are justifiable. That is the dilemma that we all face in this society. Our uncertainties about those who make judgments on these issues make some of us extremely cautious about permitting secrecy of that nature.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

That is why we proceed with caution. That is also why we have agreed with the Lords, with respect to those proposals in the Bill that have been removed, to allow for more discussion and consultation. The only point that I make to the hon. Gentleman, and which I made to my hon. Friend Mark Fisher, is that although we would not want such proceedings to take place in many circumstances—in fact, it would be better if they took place in no circumstances—they will be necessary in some circumstances.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I would like the Minister's clarification on one point. My understanding is that the amendment would allow information to be given to a High Court judge sitting as a coroner. It would then be up to that High Court judge to decide who else should be informed about such matters. Is the Minister really saying that High Court judges cannot be entrusted with making a judgment about whether there was a question of national security?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

In many cases in which a High Court judge is sitting, he will not be the finder of fact; the jury will be the finder of fact. The judge will need then to share that information with the jury, but in certain circumstances it would not be in the national interest to share it.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

My point is that in those circumstances there would be material that may have to be shared with the jury, but which we would not wish to see shared. This is a difficult issue and I appreciate the points that hon. Members have made, but I ask the House to disagree with the Lords amendment.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The Minister's introductory speech has given us the opportunity for an extremely wide-ranging debate about future legislation, the Chilcot report and a number of the attitudes towards the difficulties surrounding coroners' courts.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I do not want to interrupt the hon. Gentleman before he is in full flow, but let me say that my remarks were quite deliberately wide ranging. I hope that that was okay with hon. Members, because such matters are extremely important, which is why Mr. Hogg said what he did.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

We are all grateful to the Minister for doing that, because it has teased out some wider issues that will be important not just for the Bill before us today, but for future Bills in future Sessions. However, I will concentre on the amendment and the Government's desire to disagree with it.

The Minister made the point, both about the amendment and more generally, that the Government are seeking to provide a balance between the needs of national security and the needs of the family, the relatives and wider society for an acknowledgement of what has happened when an unexpected death occurs. I was not convinced when the Minister said that that balance was not achieved by the amendment, because Lords amendment No. 106, as it now is, achieves that balance in a rather elegant and practical way. The amendment makes a small change to the Regulation of Investigatory Powers Act 2000 to allow an article 2 compliant inquest to take place when sensitive material exists, but only when a High Court judge sitting as a coroner has determined that the material concerned is central in ascertaining how the person came to die. That is a crucial point, which the House should address.

The Minister talked about the differences between criminal proceedings and proceedings in a coroner's court. I take the point that they are not identical; nevertheless, I am sure that he would admit that the current situation is deeply unsatisfactory, not just in general terms, which it is, but in specific terms, in that there are inquests that cannot take place properly unless the issue of sensitive material can be addressed.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Would the provisions not be further improved if proposed new subsection (8B) in Lords amendment No. 106, to which my hon. Friend is referring, were amended to the effect that the disclosure would not be injurious to the national interest? Then there would be two tests: first, whether disclosure was essential to the finding of the necessary facts; and, secondly, whether disclosure would be injurious to the national interest.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My right hon. and learned Friend makes a reasonable point. In this case I rather agree with the point that Chris Huhne made. Part of the purpose of the amendment is specifically to ensure that the coroner is a High Court judge. One would hope and expect High Court judges, as a matter of course, to hold the issue of national security dear.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

But the problem with the test provided for in the Bill is that the national interest is not addressed.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

No, but the national interest clearly forms part of the background of any decision taken in an area of such sensitive information. In the end, cases will be judged by individual judges. Part of the purpose of the amendment is to ensure that it is not a junior member of the judiciary taking the decision, but a High Court judge. There comes a point at which we have to trust the individuals who are taking such decisions. Ensuring in legislation that the people taking them are of seniority seems a significant step forward in achieving that.

Further to the individual cases to which I have alluded, the Minister said in his speech that article 2 of the ECHR requires the Government to have proper procedures in place to ensure the accountability of agents of the state and to maintain public confidence. There is clearly a duty on the state to investigate a death in custody with a proper inquiry, but there are cases where it is simply impossible for an inquest to be held that would be compliant with article 2. That is an embarrassing and nonsensical position for any system of justice to get into.

The new clause would permit the disclosure of sensitive RIPA material in a highly structured manner, controlled by a judge, to the family of the deceased, their counsel and the jury at an inquest. I repeat—this is very important—that that will happen only with the proviso that the High Court judge believes that the information contained in the intercepted material is central to finding out how the person died. Clearly, that decision will be for the judge. Any of the other parties would be able to make submissions, but in the end, it would be an exceptional circumstance for the disclosure to take place. It would be a necessity test and any indiscriminate disclosure of intercept material would certainly not be allowed.

I take all the Minister's points about the need not to compromise the use of intercept material. As he knows, Conservative Members have argued for greater use of intercept material for a long time. However, some of the Minister's assertions in criticising the amendment today—and, indeed, some advanced by the Minister in the other place—are fairly questionable. We heard in the other place that the provision would allow the wide disclosure of very sensitive material, but that is simply not true. That would not happen unless an individual judge made a catastrophically bad decision—it is barely worth thinking about; it is so unlikely—so we can set aside that canard.

The noble Lord West said in the other place that it was

"unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests".—[ Hansard, House of Lords, 21 October 2008; Vol. 704, c. 1063.]

Under section 14 of the Coroners Act 1988, however, coroners can apply for the jurisdiction of an inquest to go to a circuit or High Court judge, and, indeed, High Court judges have sat as coroners in recent inquests—including, of course, the inquest into the terrible shooting of Jean Charles de Menezes. Lord West concluded with the point that, in discussing material that cannot be disclosed publicly, it is necessary to balance the interests of the family and the public interest. That is exactly right, but that is precisely what the amendment would achieve.

I regret the fact that the Government have set their face against this amendment and are trying to push everything back into a coroners Bill, when presumably these issues will come back to the House again. As I said, there are urgent cases at present where inquests cannot take place because of this lacuna in the legal system, so I disagree with the Minister and urge the House to agree with the Lords in the said amendment.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I am delighted that, following discussions here and in the other place, the Government have seen fit to withdraw their very substantial proposals for changes to the coroners system—to confer on the Secretary of State the ability to halt a coroner's inquest in mid flow, to replace the coroner and to meet in secret. It seemed to me that those were extremely dangerous proposals; I hope that the Minister will not bring them back in any forthcoming coroners Bill.

It may be easy to forget, but the coronial system has been a bulwark of our freedoms in this country for a very long time. The ability to investigate a death, particularly one at the hands of an agent of the state, has been an absolutely essential guarantee against overweening state power. Many generations have fought against excesses—they have come from the Tudor secret service and beyond—to establish an independent system. It is crucial that it continues to operate independently, which is why I was so pleased that at least parts of the Bill had been removed.

Apart from those remarks, I do not want to open up a wider discussion at this stage, but I want to focus specifically on Lords amendment No. 106, because it deals with a relatively technical point that was overlooked in the Regulation of Investigatory Powers Act 2000.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I absolutely agree with the first part of the hon. Gentleman's contribution, but is he satisfied that the Lords amendment—it is, in a sense, a compromise—will not lead us back into the same danger that both he and I opposed on Report?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I do not think it has quite the same problems as the Bill as originally drafted, precisely because the amendment provides for a High Court judge to be appointed as coroner to assess whether evidence should be disclosed. The very fact that the coroner is a High Court judge, with all the independence for which our judiciary is rightly famed, suggests that the key condition is there.

A small lacuna was left in section 8 of RIPA, whereby a High Court judge who in all other circumstances listed in the section can see the material in question and come to a conclusion about it could not do so when sitting as a coroner. Subsequently, that was widely understood as a gap in RIPA. The amendment is designed to include the ability of a judge to sit as a coroner at an inquest to hear the evidence in the same way as he does in all other instances.

We should perhaps remember that at the outset of the Bill the Government impressed on us all how urgent it was to deal with the secret inquest—not as a general issue, but in order to allow a particular inquest to proceed. That was the inquest into the death of Azelle Rodney, who was shot by the police on 5 May 2005. Indeed, the Government wrote to the Rodneys' solicitors Hickman & Rose on 30 November 2007, promising that they would change the law so that the inquest into the death could resume quickly, as it had been delayed a year. The urgency arose not least because the state has a legal duty to ensure a prompt investigation into a death in such circumstances. That means holding an inquest as soon as possible.

I spoke to the Rodneys' solicitors yesterday, who made it clear that if the Government do not accept the amendment today, they will lodge a case with the European Court of Human Rights over the Government's failure to comply with the promptness requirement inherent within article 2—the right to life—of the European convention on human rights.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North 3:15 pm, 19th November 2008

I agree with the hon. Gentleman and he is correct to refer to that case. Is he confident, however, that the Lords amendment will bring about the required timetables necessary to prevent the trauma that families go through, waiting months, if not years, for an inquest?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I am not confident that this is the last word on the subject. I agree that we will need to consider reforms to the coronial system and I believe that a coroners Bill is, frankly, overdue. Many other issues need to be dealt with to speed up inquests and ensure that adequate and efficient investigation takes place. I believe, however, that the Lords amendment is a step forward and we should not allow the best to be the enemy of the good. In this case, I hope that the Government will accept the amendment, not least because it will avoid them yet further embarrassment in being arraigned before the European Court of Human Rights over their failure to abide by article 2. The Rodney family's lawyers are confident that their case will be successful. I am no lawyer, but my advice is the same.

We must not forget the Government's promise a year ago to change the law to allow this inquest to go ahead. Today, the Government have a chance to honour their pledge. The amendment does, it seems to me, strike a sensible balance, bearing in mind that we are entrusting this matter to a very senior member of the judiciary, as Damian Green pointed out. It is simply not the case that the amendment would allow a wide disclosure of very sensitive material, as Lord West, the Minister in the other place, claimed it would. It would allow the disclosure only of RIPA-related material, and would allow that only when a High Court judge was sitting as a coroner and was satisfied that the material was essential to finding out how someone died.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

What happens if a High Court judge concludes that disclosure is essential to enabling the matters that are required to be ascertained to be ascertained, but also concludes that it is contrary to the national interest? The amendment is silent on that point.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

The right hon. and learned Gentleman is far more versed in these matters than I am. However, I agree with the hon. Member for Ashford that if we are to entrust a High Court judge with such a degree of flexibility, that is something that he will be able to decide within the bounds of deciding whether an action is essential. If the amendment proves to be inadequate in enabling a balance to be established in the specific instance of the Rodney case, we shall have—if the Minister is to be believed—an early opportunity to correct ourselves. As the right hon. and learned Gentleman knows, the House has a long tradition of eating its words and changing its mind, and long may that be so.

We must not forget that at the heart of the amendment is a dead man's family: parents who are unable to grieve properly for their son because they have been denied the most basic of rights—the right to a fair hearing on why he was shot by an agent of our state. Even at this late stage, I urge the Minister to reconsider.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I will be brief.

I spoke on this subject during our earlier debates on the Bill. Although all the publicity was given to the issue of periods of detention, I considered the issue of secret sittings of coroners' courts to be of greater importance to anyone concerned about liberties. The number of days for which people are detained is relatively arbitrary, but the provision on coroners' courts would have been extremely serious, so I was very pleased when the House of Lords came up with a compromise amendment.

Let me record my thanks to and appreciation and admiration for the organisation Inquest, referred to by Chris Huhne. That organisation, which is based in my constituency, has done amazingly good work over a long period in supporting the families of people who have died in custody. Nothing is popular about such cases, but the organisation has been dogged in pursuing them. I think we should appreciate the value of civil society organisations of that kind which do so much to promote decent standards and liberty, and which help the House to produce better legislation.

As the hon. Gentleman pointed out, this is not the first occasion on which the House has eaten its words, and it will probably not be the last. I was relieved by the decision reached by the House of Lords, but I hope that the Minister will be able to help us further. I understood that the Government had accepted the Lords' view, and I am therefore surprised that they are asking us to reject the amendment. The Minister outlined the provisions of new legislation, which was helpful—this is not a criticism—but I am slightly worried that we will not be revisiting the whole issue in the new coroners Bill. It seems that we shall return to where we were previously in this Bill, with what I consider to be the dangerous precedent of court hearings taking place virtually in secret.

A death in custody, a serviceman's death or a death as a result of a police shooting is obviously horrific. It is devastating for the family involved, who may understandably have great difficulty coming to terms with the reason for the death and even greater difficulty coming to terms with the complete lack of evidence offered to them in public, and the failure to make any information available to them. The trauma is very great. In my constituency, I have dealt with the families of people who have died in police custody or in similar circumstances, and I know that the trauma they undergo—constantly questioning what went on, but not being allowed to know—is very serious indeed.

The other punishment for families is the lack of a timetable. If the inquest is repeatedly delayed—for years on end, in some cases—there can be no closure for those families. The bereavement goes on, and they will never entirely get over the loss of a loved one, but at least the completion of a judicial process provides an element of closure that allows them to move on a little. Perhaps the Minister will help us a little on the question of timetables as well.

I have some understanding of why the House of Lords came up with this compromise. It is clearly far better than what was in the Bill before, in that it empowers a High Court judge to decide whether or not material is sensitive. Nevertheless, I am slightly nervous about the amendment. I feel that it is too easy for agents of the state, be they the armed forces, police, social service departments or the health service, to say, "Hang on. There's something very peculiar and sensitive about this", and to tell the judge that they would prefer the material not to be disclosed.

I hope that a judge would stand up for the public interest and the interests of the family, but I think the best way of enabling that to happen is to make it extremely difficult for any degree of secrecy to surround any death in custody. If we do not make that difficult now, as we pass the legislation, further down the line it could easily become routine for public bodies to say, "We want the hearing to take place in secret because it will be far too inconvenient for us if all this comes out."

I assume that if the Government have got the legislation wrong, which is conceivable, article 2 of the European convention on human rights will form the basis of a case that could go to the European Court. Article 2 places a positive duty on the state to investigate a death in custody with an inquiry that is on the state's own initiative, is independent both institutionally and in practice, is capable of leading to a determination of responsibility and the punishment of those responsible, is prompt, allows for sufficient public scrutiny to ensure accountability, and enables the next of kin to participate. Unless all those criteria are met, we will clearly fall foul of a European convention that we support. I hope that they will all be met, either in this Bill or in the new coroners Bill that we shall deal with in the next Session. The European convention does actually mean something, and it is quite an important mechanism of defence.

Time is of the essence. I was worried by the Minister's reference to another body that, acting as an intermediary between the horrific event of a person's death in custody and the opening of an inquest, would conduct some sort of investigation. That strikes me as a likely recipe for delay, for the creation of a fog around something that ought to be clearly visible, and for even more pain and stress for the families of those who lose their lives in the circumstances that we are discussing. It is up to us as a Parliament to ensure that agents of the state who cause a person's death are brought to justice, and above all that the families of those who have lost their lives are fully aware of all the evidence and of what caused the deaths of their loved ones.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Before I deal with the tightly drafted new clause tabled in the other place, I want to build on what Jeremy Corbyn said. I entirely agree with his underlying belief that when the agents of the state have caused deaths, it is essential that the surrounding facts are made apparent, through inquests and to the families.

In Committee, I deeply opposed the provisions then incorporated in the Bill, because they enabled the Government to withhold whole classes of information from an inquest—for instance, information that would damage this country's relationship with another power, and information that would be damaging for any other proper reason. I cited a specific example, which I shall repeat now.

Let us suppose that someone died in the course of extraordinary rendition—which is not impossible, given the nature of extraordinary rendition—and happened to be in an aircraft that touched down at Heathrow. I can envisage the Government intervening to prevent details of the death from being made public in order to protect their relations with the United States. That is but one example. I was deeply concerned when the Minister said that the new coroners Bill would incorporate most of the language of the Counter-Terrorism Bill as it was in Committee, and I would robustly oppose such wide powers being given. Therefore, I agree with much of what the hon. Member for Islington, North said.

I shall try to make my second point with some delicacy, as I do not want to do what I should not be doing in this context. I served in the Foreign Office for five years, in the course of which I saw a great deal of intelligence information because I had a responsibility, subject to the Foreign Secretary, for GCHQ. There are two areas that ought to concern the House, one rather more so than the other. The anxiety has always been the disclosure of techniques. I suspect that that is less of a problem than we think, but I agree that we none the less need to address it, and it is very good news that Sir Alan Beith is sitting on the Chilcot committee. The other point, on which there is not sufficient focus, is whom we target for the purposes of intercept. As Members will appreciate, that is not always just individuals—it is sometimes institutions and others, and it may well not be in the public interest for the identity of some of the targets to be disclosed. That matter has to be seriously considered, and addressed in measures that come before this House.

There are defects with the proposed new clause, but I shall vote for it as it is an important step in the right direction, and if this House were to pass it, further safeguards could be built into it in the other place. Starting from the proposition that there are the problems with the disclosure of intercept information that I have identified, I go on to the next proposition, which I think most people will agree with, that it is very important that credible and relevant evidence should always be available to a court or inquest, unless there is some overwhelming reason to the contrary. That is the proposition that is reflected in the new clause. There is a difficulty—both the Minister and I have referred to the nature of the problems—and the other place sought to address it in two ways: first, to confine the coroner with the relevant powers to a judge of the High Court; and, secondly, to confine the circumstances in which the order-making power can be exercised to those set out in proposed new subsection (8B). There is a problem with that provision, because the High Court judge may direct a disclosure only if satisfied that the requirements of (8B) are satisfied in that disclosure is

"essential to enable the matters that are required to be ascertained by the inquest to be ascertained"— in other words, we cannot ascertain the relevant facts unless we have the intercept material.

The problem is, however, what if that intercept material is itself injurious to the state? For instance, it might identify a body, person or institution as being targeted when it is undesirable for that target to be disclosed. From reading the language of (8B), it seems to me that if the judge concludes that disclosure of the material is essential for the proper ascertaining of facts, notwithstanding the injurious nature of the disclosure the judge may well be obliged to order the disclosure. What is not provided for in (8B) is the balancing exercise. My hon. Friend Damian Green, for whom I have the greatest of respect, says, "Well, you can expect a High Court judge to exercise good sense." Of course we can, but a High Court judge, or any old judge, has to exercise his powers in accordance with the criteria laid down by Parliament, and if Parliament does not say that respecting the national interest is a relevant criterion, I am by no means certain that, however sensible a High Court judge may be, he or she would be able to take steps to respect that.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome 3:30 pm, 19th November 2008

The right hon. and learned Gentleman is simultaneously right and wrong. He is right that the new clause does not contain the qualification requiring the coroner to take into account the interests of national security—I would be slightly more circumscribed, in that I would use that term rather than the "national interest", which is the term he uses. He is wrong, however, in that that is to an extent covered in the previous provision—proposed new subsection (1)(d)(ii)—where the coroner has the discretion to determine whether the information that has been provided stays with him or her or is passed on to other persons or parties to the inquiry. There is a feeling that the current wording of the new clause gives no indication of how that discretion should be applied.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I always enjoy debating with the hon. Gentleman, and I very often agree with him, but he has a problem in criticising me on this issue, because it is the jury who are responsible for the ascertaining of facts, and under (8B) the coroner is entitled to make a disclosure where it is essential for the ascertaining of facts. As the jury is the only ascertainer of fact, he does not have much discretion, because in order for the facts to be ascertained they have to be disclosed to the jury.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

The right hon. and learned Gentleman is right in the context of a jury and a coroner's court. I may be wrong, but I assume that the new clause is intended to give the coroner the discretion to allow for a reduced version of the material in a form that does not prejudice national security to be passed to the finders of fact: the jury. I agree with the right hon. and learned Gentleman, however, that that is not clear within the terms of the new clause as worded and that further refinement is required, but that does not stop me supporting the new clause.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

We are as of one in this sense: we see merit in the approach, but we recognise that the new clause is not perfect, and we think that the House should support it in the hope that it will be further amended in the other place.

Let me conclude by explaining how it could be improved further. A test that requires the balancing exercise in terms of national security considerations could be incorporated into (8B), so that it would be for a High Court judge to decide whether information, although essential, was too injurious to be disclosed. I see merit in taking that step. Another way forward would be to allow that decision on whether there should be disclosure to be treated at the preliminary point, which could go to the Court of Appeal. I think that I would be content for the Court of Appeal to be a final arbiter on the matter, as it would be very sensitive to the question of national security. I could see the decision of the trial judge—the High Court judge—being treated as a preliminary point, to enable the Court of Appeal to rule on it before the inquest proceeded further. There is another way of addressing the problem: the High Court judge sitting as the coroner could determine, in very special circumstances, that there should not be a jury at all. In other words, the judge could determine that the jury, if it is already sitting, should be removed and, if it is not, there could be a requirement for the judge to sit alone as the coroner. Additionally, of course, there is always the power to restrict publicity.

Any or all—probably all—of those measures could properly be incorporated into the new clause. If that happened, the measure would deal with most of the Minister's anxieties. It would also address the feeling around the Chamber that intercept evidence should be used in appropriate cases, so that the families and everybody else can have as many facts as are available surrounding a death.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The interchange between my right hon. and learned Friend Mr. Hogg and Mr. Heath has been more illuminating than is often the case in debates of this sort. My right hon. and learned Friend has analysed not only what is wrong with the Bill and the Lords amendments, but how they can be improved. I was not a Minister, but I was on the edges of Government when he was in Government. I entirely accept what he says on the need, occasionally, for information to be kept out of the public domain. That is simply a matter of common sense, and I hope that none of us is naive enough to think that on every occasion, every piece of information in the hands of a state agency or the Government should be made public. Clearly, there are times when national security and the interests of criminal investigation require certain pieces of information to be kept out of the public's sight.

Having said that, the implied, but not the express, position of a number of Members who have spoken in the debate, perhaps excluding the Minister, is that, by default, justice should be in public. When all things are equal—they rarely are—coroners' courts, whether chaired by a High Court judge or other judicial officer, should be in open court, with all relevant evidence being adduced, either before the coroner, if he is sitting alone, or before the coroner and the jury; and there should be full disclosure of all evidence between the interested parties and the court.

The group of Lords amendments that we are briefly considering lead me to agree again with my right hon. and learned Friend, this time on how the kind of decisions that we are talking about should come to be made. As I understand it, at the moment, the Government want to place in the hands of the Secretary of State the power to issue certificates. That is unhealthy. It leads to secret government, let alone secret trials. Like my right hon. and learned Friend, I think that it would be much more sensible and, indeed, publicly more acceptable, for questions of that sort to be decided by the presiding coroner, be he a High Court judge or other judicial officer. In that way, the matter could be argued. It could be argued in chambers or in private, but it could none the less be argued.

Clearly, such procedures are not novel. For example, espionage cases are tried at the central criminal court; and cases involving matters of acute sensitivity often involve applications to the judge that certain parts of the evidence, or all of it, should not be disclosed in public, meaning that it should not be heard in the presence of people in the public gallery or members of the press. Such things do not happen every day, but they happen quite frequently, so I do not see why a similar procedure could not be drawn across into the system of coroners' inquests. The Lords amendment mentions a High Court judge, but I have no doubt that any experienced coroner, circuit judge or whatever judicial officer is appointed to deal with any inquest, could make a decision on the grounds of national security, public safety or whatever, in a just and sensible way, case by case.

My second point is this: we were promised a coroners Bill in this Session's draft legislative programme and in the last Queen's Speech, and we are being promised one in the coming Queen's Speech, and it strikes me that the issues we are discussing ought to be dealt with discretely, in the round, in a coroners Bill. However, measures are now being tacked on to a Counter-Terrorism Bill.

This brings into our discussions all sorts of interesting influences. Hon. Members will remember the problems that the Prime Minister got himself into with the Government of Iceland, who were deeply upset that Icelandic assets in this country had been frozen under counter-terrorism legislation. It so happened that the Act under which the Government froze those assets in London was the Anti-terrorism, Crime and Security Act 2001, and it was under the "Security" bit that the assets were frozen. However, the Act's rather long title did not fit into the headline space of whatever the equivalent of The Sun is in Reykjavik, so Icelandic people saw only the "Anti-terrorism" bit. Unsurprisingly, they were upset.

Here, we are dealing with matters to do with inquests in a Counter-Terrorism Bill. Of course there is sometimes a connection between terrorist activity and inquests. For goodness' sake, the tube and bus bombings of July 2005 made that only too clear. However, if the Government are to be taken at their word on this occasion—I do take them at their word from time to time—why will they not lift part 6 out of the Bill and put it into the new coroners Bill, which they should introduce early in the next Session? That might lower the temperature.

I should like to say, in parenthesis, that my hon. Friend Damian Green was entirely right to express concern about the application of article 2 of the European convention, as was Jeremy Corbyn, who also brought that point to the fore. A further point that I want to draw out from what the hon. Gentleman said earlier relates to the nature of the deaths that we are talking about. The provisions will deal with deaths in police custody and possibly even deaths in prison custody, depending on the character and antecedents of the deceased and on the geography of the location of the death. The hon. Gentleman will remember that—in the last Parliament, before the 2005 general election, I think—we passed the Corporate Manslaughter and Corporate Homicide Act. I might have got the chronology wrong, but as I recall it, the deal was that deaths in custody, in the Prison Service and in police cells, were not immediately to be brought under the remit of the Act. There was to be a delay of two or three years—

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

My right hon. and learned Friend says that it might be seven years. The Minister will have that information available to him—

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am making a suggestion; I have no power over those who work behind the Chair. However, I dare say that somebody with a bit of initiative, such as the Minister, could find out the answer.

The point is that there will come a time when deaths in custody, involving those either in the care of the police or in the care of the Prison Service, might also have to be considered under the terms of the Corporate Manslaughter and Corporate Homicide Act. When we come to consider these provisions—I suggest that we do so under a coroners Bill, not under this legislation—the House will need advice from Home Office Ministers on the marriage of that Act and inquests into deaths in lawful custody. I urge the Minister to bear that in mind, because I can see all sorts of problems coming down the track. Trials under the corporate manslaughter legislation will be heard in the Crown court. Is it being suggested that, if someone has allegedly been killed by the police under the provisions relating to corporate manslaughter, the trial should be heard in secret, and only by a High Court judge, subject to the provisions of the Counter-Terrorism Bill?

It is not only members of the public, be they British or foreign nationals, who will be drawn into the inquest system. Military deaths have been mentioned. We all know of the huge delays in the timetable for inquests into those killed in action or on active service in Iraq. Their bodies are brought back to the UK through Brize Norton, and the coroner for Oxfordshire is therefore responsible. One particular deputy coroner has done most of the work. However, because there is such a dearth of qualified coroners to do the work, there are long delays, which leads to emotional and other problems for the families, as other hon. Members have said.

Yes, the legislation is designed to provide an effective coroners' system, but effective for whom? I suspect that it is designed to be effective for the Government, because they do not want any embarrassment. They do not want coroners to say disobliging things about how the Ministry of Defence, or some other agency of the state, has acted.

The issue is even more complicated because while there are people who are killed in action or on active service in open battle—we are all too sadly used to seeing television reports of such incidents nowadays—there are people killed whom the Government would rather we did not know were on active service. We cannot be naïve about the need to keep some matters out of the public domain, but the families of those who serve in the special forces or the secret services have as much of a right to know how and why their loved ones were killed or died as those who are grieving the loss of someone killed in a motor accident or a train crash—a more ordinary, but none the less terrible, death.

We cannot just assume that we are talking here about cases of terrorists or suspected terrorists dying in prison or police cells. We may be dealing with the deaths of people who are seeking to protect us from terrorists, and their families being prevented from having full access to information about those deaths. There are two ends to the spectrum and plenty of grey territory in between. If we are to pass this Bill as it stands—and we are doing this in the wrong order, because we should have a coroners' Bill in the new Session—we must come as close as we can to article 2 compliance; otherwise we will be misbehaving.

My final point is about the current use of public interest immunity applications and certificates. My right hon. and learned Friend the Member for Sleaford and North Hykeham is an experienced practitioner in the criminal courts and he will be well aware of the use that those acting on behalf of the Government—and I use the word "Government" in its widest sense to include the police, the secret services and so on—make of applications for PIIs, so that sensitive information does not reach the public domain. Again, that is not an unusual procedure, and we should learn from it when we consider the Lords amendments and the Government's response to them. There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient good will across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution. I am not sure that the Government's solution can be classified as sensible at the moment.

Of course, I accept that Lords amendment No. 106 is not ideal. It is not perfect. However, as others have said, we can build on it. I suggest that we do so.

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Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The debate has been unusually thoughtful. Every Member who has spoken has expressed not uncritical sympathy with and support for Lords amendment No. 106 without endorsing it wholly. From the thrust of what the House did not say, it is that it is clear that it is unhappy with the level of secrecy that could and will arise unless we do something about it.

The House is in the debt of the Minister, who thoughtfully allowed the debate to range widely in his opening remarks. He invited the House to speculate and to think about both the present situation and the future. That was the right thing to do and was very helpful. Whatever we decide, the coroners Bill is coming up and it would be a great mistake if we then reverted to all the things that we are frightened of and worried about tonight.

I know that the Minister has been listening. He made it clear that he is acutely aware of the balance that is needed and the pain that is caused to the relatives and families of people who have died. He sees the tension and the paradox between the two. I do not think that he needs convincing, but I hope that the Government will understand that fact and will ensure when they draft the coroners Bill that the balance is pitched rather differently. Our job, as a House of Parliament, is to ensure that people and their relatives are properly protected and, if we have to balance it one way or another, to ensure that there is greater rather than less disclosure.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I take a slightly more generous view than Mr. Garnier about the Government's original intention. There was concern that there had been unreasonable delay in the case of few inquests that were held up by reason of the fact that material could not be provided under the present system, in the Government's view, that would enable the facts to be properly ascertained.

My argument was not with the Government's intention—if I am not being naive in taking such a generous view—but with what they proposed as a solution. In the Bill passed by the Commons, the solution proposed by the Government was entirely unacceptable. As we have said on a number of occasions, it was unacceptable because the Executive were taking the decision in cases where the problem was the death of an individual at the hands of agents of the state. Let us remember that. The state was going to determine how those facts were to be ascertained and, indeed, whether they would ever see the light of day at all. In principle, that was unacceptable.

It was unacceptable for the Government to determine, effectively by order, that a jury would not sit in such an inquest. It was unacceptable for a Minister in effect to determine that an inquest should be held in secret, behind closed doors, with the result that the public and even people with a legitimate interest in the case were not admitted. That is quite inconsistent with how we have always historically held inquests in this country. It was also entirely unacceptable that hand-picked coroners, chosen and appointed by Ministers, should be the persons who would inquire into the circumstances of a death at the hands of agents of the state. That proposal was so extraordinary that it was common ground among many hon. Members that it was unacceptable.

There is a further difficulty with the Government's original proposals, which I raised with the Minister in an intervention and which was picked up by the right hon. and learned Gentleman whose constituency I can never quite determine—

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am referring to Mr. Hogg—I think that I have got it right. My point was that, even if everyone accepted the arguments that Ministers adduced to support their contention that the provision was necessary for national security, they were not going to be content with that. Instead, in clause 77's proposed new section 8A to the Coroners Act 1988, they were determined that inquests should be held in secret

"(a) in the interests of national security,

(b) in the interests of the relationship between the United Kingdom and another country, or

(c) otherwise in the public interest", however that "public interest" would be defined outside of national security. In other words, things could be secret simply because Ministers certified that they needed to be in the interest of avoiding embarrassment, or for some other reason.

I am already distressed by the extent to which relations with other countries seem to have a bearing on the conduct of court proceedings in this country, which I had always thought were immune from that sort of political pressure. For it to be written into new statute that a coroner's inquest would depend on whether another country or its rulers would be offended is to me abhorrent. I will not have coroners' inquests in this country determined and dominated by the mood or interests of some princeling in the Arab world, or wherever else.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I reinforce the hon. Gentleman's point? If a British subject died in Guantanamo Bay as a result of the treatment that he or she had received there, and the body was repatriated to the UK, I anticipate that there would be an inquest into the circumstances of the death. However, I expect that the Government would be extremely embarrassed about having conditions at Guantanamo Bay revealed to the public, and that they would therefore utilise the clause to which he is referring.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Of course they would, and we know that perfectly well. That is why it was so objectionable that the proposal was included in the Bill's original text.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

We do not have to use a hypothetical example, as we know from friendly fire incidents in Iraq that the US was extremely reluctant to allow evidence about what its forces were doing to be used in the inquests into the deaths of our service men and women. We already have the book; we just need to read it.

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Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Precisely so, and we now know perfectly well that a fraud investigation can be stopped at the request of a potentate of another state. If an ally were to ask us not to proceed with an inquest because it might be embarrassing or cause problems domestically or internationally, we know that that request would be acceded to. That is what is so unacceptable.

I was surprised and dismayed by what the Minister said in response to my challenge on this matter during his opening remarks. He seems to take the Bourbonist view that the Government will learn and forget nothing as a result of their experiences in the discussion of this Bill so far. Apparently, they will come back in the coroners Bill with precisely the same form of words that they are abandoning here. We are moving nowhere towards finding a satisfactory system. The Government will face exactly the same arguments against their proposals in the context of the coroners Bill, and eventually those proposals will be defeated in another place and we will be back to square one. We will not have moved forward one inch in providing for a quick, open and proper inquest for those who need one.

There are strong reasons for not waiting for the coroners Bill and for trying to find a proper solution even at this stage. Those in another place who proposed the amendment have done a good job in pointing us towards a solution. If I were in the Minister's place I would be grasping that solution to try to find a workable way, in the Government's terms, to accept it. Some of the Government's arguments against the proposal are nonsense—for example, the idea that it is a lottery as to whether a High Court judge might be appointed to sit in a particular inquest. It is not a lottery; it is a matter of design. If the case required the appointment of a High Court judge as coroner, that is what would happen so that the inquest could go ahead. The Government need have no worries about that.

The advantage of appointing a High Court judge is that it would give comfort to the Government that there would be a sufficiently high level of judicial consideration of the arguments that would inevitably be in their submission to ensure that they were properly taken into account. The High Court judge provision is a sop and a comfort to the Government, so they can have no argument against it.

A great advantage of the proposal is that proceedings would be open—there would be a normal inquest in that sense. Another advantage is that there would be no delay. I heard what Jeremy Corbyn said—indeed I have some reason to agree that we must make sure that such cases are dealt with expeditiously—but there is nothing inherent in the proposal that would cause further delay. The right to an inquest jury is preserved, as is absolutely correct.

The most important thing is the presumption that the material necessary for finding the circumstances of death will be provided unless there are good reasons why not. If there were good reasons why not, the coroner would have the opportunity to discover them and would make available to the jury as much material as possible under the criteria.

The one difficulty is the problem that was the subject of an interchange between the right hon. and learned Member for Sleaford and North Hykeham and me about the criteria that the High Court judge would use to determine the submissions before him. We could refine the proposal to cope with that problem, although that does not for one moment suggest that the solution is imperfect. Indeed, as the hon. and learned Member for Harborough said, it is regularly done in criminal courts. All we need is accompanying protocols to make the amendment function satisfactorily.

Even at this late stage, I hope the Government will realise that the proposal is a prospective solution to their dilemma. I strongly support it and I hope other Members will do so, too. It has flaws that need further attention, but if Ministers really think that in the next Session they can present us with a coroners Bill that contains the same clauses that we are knocking out today because they are so unsatisfactory from the point of view of many Members of the House and the majority in another place, they have another thing coming.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

With the leave of the House, I shall briefly respond.

I thank my hon. Friend Mark Fisher for his remarks. My initial remarks were deliberately wide and I hope that has helped our discussions and debates. Mr. Heath and I have, in the past couple of years, debated a number of Bills in various Committees. I cannot always promise to deliver what he wants, but I hope his experience is that when I have said that the Government will listen to what is said, even if that does not mean that we introduce measures with which he is totally happy, there is evidence that some listening has taken place. That is the commitment that I have made and will make to various Members in private and in public as we take forward this measure.

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Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Will the legislation that is to be introduced in the next Session appear in the form of a Bill, or will there be a period of genuine consultation, when the views—the very serious views—that have been expressed here today, for example, can be exchanged with the Minister?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

To clarify matters for my hon. Friend, let me say that the legislation will be in the form of a Ministry of Justice Bill, and I will make sure that Ministers at that Department are aware of what has been said in today's debate.

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Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Is this not an ideal example of the importance of not rushing straight into a Bill but engaging in wider consultation—not necessarily taking a huge amount of time? The views that have been expressed in the Chamber this afternoon reflect the views of other experts in the judiciary and the court system. Surely the Government would benefit from taking a few weeks before publishing their Bill in the next Session to listen and consult those who will be most involved? We have an ideal opportunity. We may not have to go back to the Green Paper and White Paper stage, but too many Bills are rushed into draft too quickly. Surely this is an example of a measure that needs consultation before being put into parliamentary draft?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I am sure that my hon. Friend's comments have been heard. Sometimes, it is a matter not of how long the process takes, but of whether some change is made to what is proposed. Hopefully, some of what has been said here today will be taken on board. I think that I have answered the points made by my hon. Friends about the new legislation: a Bill will be introduced in the next Session, and it will be a Ministry of Justice Bill.

The fundamental difficulty with amendment No. 106, and the point of disagreement, is that inquests must be held with a jury in certain circumstances and juries are finders of fact. Accepting the Lords amendment without the provisions in part 6 would mean that for the inquest to proceed, sensitive material would have to be disclosed to the jury, which would risk its then being disclosed further. We have all tried to find a way to balance national security with the needs of families and the need for a proper system that allows those who have suffered the death of a loved one to have a sense of closure, as far as that is possible.

I have the answer to the questions put to me by Mr. Garnier, which I will give him—

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Now that I have found the answer, here we go. The hon. and learned Member for Harborough asked me a specific question, which no one but he understood, but it was a good point. It is not that the question was wrong, but our provision relates to inquests—a very few inquests—and does not extend to trials for any offence. Trials will proceed in accordance with the procedures for such proceedings. And that answers that question. [ Laughter. ]

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Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 284, Noes 220.

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Question accordingly agreed to.

Lords amendment disagreed to.

Lords amendment No. 133 disagreed to.

Before Clause 22

Lords amendment: No. 3.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I beg to move that this House disagrees with the Lords in the said amendment.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

With this it will be convenient to discuss Lords amendment No. 15 and the Government motion to disagree thereto, the Government motion to transfer clause 33, Government amendments (a) and (b) in lieu of Lords amendment No. 15, Lords amendments Nos. 4 to 14, and Lords amendment No. 115 and Government consequential amendment (a) thereto.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security) 4:30 pm, 19th November 2008

I am sure that several hon. Members will wish to speak on this group of amendments, and I do not want to spend a great deal of time going through a whole series of debating points that have been well rehearsed. Suffice it to say that we disagree with Lords amendment No. 3.

As my right hon. Friend the Home Secretary said in her statement to the House on 13 October, the provisions in the Bill for 42 days' detention were always, in our view,

"about protecting the British people...from the serious threat that we face from terrorism."—[ Hansard, 13 October 2008; Vol. 480, c. 620.]

The Government's approach has always been to try to strike the right balance between protecting national security and safeguarding the liberty of the individual. We believe that the proposals that we put forward in the Bill are consistent with our human rights obligations. We know that when it comes to national security, our primary duty is to protect the public. Therefore, following the decision of the other place to remove from the Bill the protections that we believed should be in place to allow for the detention of terrorist suspects beyond 28 days in case of need, which we accepted, we prepared a new Bill to enable the police and prosecutors to do their work should the worst happen—should a terrorist plot overtake us and threaten our current investigatory capabilities.

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Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

Two of my constituents have been detained, allegedly on terrorist matters. I believe them to be innocent, but I will not name them for legal reasons. Would my constituents be entitled to feel reassured by what the Minister is saying, in terms of their civil liberties, or would they be right to be concerned, like me, that the changes that the Government are trying to make at this stage will make it more likely that people like them could be detained without charge for a lengthy period whether or not they are ultimately found to be innocent?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

The changes that we have made have been generally welcomed. Our acceptance of the amendments made in the Lords has been widely appreciated, whatever people's initial views. In trying to ensure that we have the capacity and capability to deal with an emergency, should it arise, the Government have introduced this short Bill. The hon. Gentleman's constituents would be protected by the law as it stands; for their purposes, nothing that I have said should make a significant difference.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister has referred to a new Bill, which I gather is being drafted in anticipation of some form of crisis. There is no particular reason why we should not debate it in draft at some stage; perhaps the Home Affairs Committee would like to do so. In any event, would it not be sensible to publish it when it has been drafted so that we can all consider it and be well prepared should it be introduced for enactment?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I will pass the right hon. and learned Gentleman my own copy when we have finished this debate. The Counter-Terrorism (Temporary Provisions) Bill is available in the Library. [ Interruption . ] Presumably it is in the Vote Office as well. My understanding is that it is definitely in the Library, and I will ensure that it is also in the Vote Office.

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Photo of David Winnick David Winnick Labour, Walsall North

I am grateful to my hon. Friend for allowing me to intervene. I have had exchanges with other Ministers on this topic, but I think that this is my first one with him. In order that there should be no doubt about the issue, the Lords amendment says that

"nothing in this Act allows the Secretary of State to extend the maximum period of pre-charge detention beyond 28 days."

Is not that the Government's position? If they come to the view that they want to try again for 42 days, will they not use the new Bill that has been published, as he just stated?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

My understanding is that that amendment was tabled to generate debate, not in the belief that it would be passed. It would ensure that nothing in the Bill allows the Secretary of State to extend the maximum period of pre-charge detention when there is nothing in the Bill that allows the Secretary of State to do that. That is why we published this new Bill, which we would seek to use should it be necessary and appropriate to do so.

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Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

This matter is an important consideration for us all. Will the Minister assure the House that the prospective Bill will be brought before the House at the earliest possible opportunity so that we can examine it legislatively to see whether it meets the tests that the current Bill failed in the Lords?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

All I can say to the hon. Gentleman is that the proposed Bill is available for him to scrutinise. He will be able to raise questions about it and provoke debate in the normal way. The Bill is there should the Government believe it necessary to introduce it— [ Interruption. ] I understand the hon. Gentleman's points, but if I could just finish. The Bill would allow the Director of Public Prosecutions to apply to the courts to do certain things. The hon. Gentleman wants a debate in Parliament on that Bill, but we will not have that debate until it is necessary to do so.

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Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

That is the big issue. The new Bill might be introduced in the midst of a terrorist outrage and there would be no rational examination to allow us to stand back and consider whether the Bill is appropriate or what we want.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I am anxious not to stifle debate, and I can see how closely these matters are linked, but we ought to deal with one Bill at a time.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Thank you, Mr. Deputy Speaker. The whole point of the new Bill is that it is available should there be an emergency, when we could bring it before this House and the other place.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

The point made by Mr. Shepherd was made by my hon. Friend Mr. Winnick when the Home Secretary came before the Select Committee recently, and it concerns the exact moment when the new Bill would be triggered. My hon. Friend asked the Home Secretary whether that would be in the middle of a terrorist outrage. At what time are the provisions of the new Bill likely to be triggered? That is the only issue I am concerned about.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I trust that the Minister heard my earlier remarks and will bear them in mind.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

To try to be fair to my right hon. Friend Keith Vaz, the Chair of the Select Committee on Home Affairs, we would introduce the new Bill in an emergency, at a time when it may be considered appropriate. Of course, it would be a matter for this House and the other place to pass it, if they deemed it appropriate to do so.

The new Bill is a short, one-off Bill that would enable the Director of Public Prosecutions to apply to the courts to detain a suspected terrorist for up to a maximum of 42 days, in place of the current 28 days. We cannot say categorically when it will be needed—a point that hon. Members have asked about—as whatever the plot, we will always try to bring charges within 28 days. However, if there is a major bomb plot next week, or a dirty bomb, or another 9/11 is planned or executed, and more than 28 days is needed to investigate that matter with a view to bringing those responsible to justice, we will bring the Bill before the House. It will then be a matter for the House to decide upon.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

The Minister clearly knows that Sir Ken Macdonald, the out-going Director of Public Prosecutions, has gone on record as believing that the administration of the threshold test and the successful conviction rate for terrorist offences meant that any extension of pre-charge detention was unnecessary. Is not it bizarre for the Government to place in the Library a Bill that proposes powers for the Director of Public Prosecutions that he has publicly said that he does not want?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I feel as if I cannot win. Mr. Hogg asked where the Bill was that we might introduce, and is happy that it is in the Vote Office and in the Library. Chris Huhne has criticised me for preparing a Bill that we might use.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

No. Before the right hon. Gentleman attempts to come to my rescue, let me say that I stand here because sometimes one makes judgments. I believe that the best way forward is to have a draft Bill, which hon. Members can scrutinise in the Library and the Vote Office, and to introduce it when appropriate.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

As someone who has always opposed an extension beyond 28 days and was pretty unhappy about 28 days, I commend the Government for preparing a Bill. However, would not it be valuable for the Government to hear the House's views about the measure in the quietude outside the time when it might have to be used, so that they could ensure that it dealt with the concerns of the majority of hon. Members?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

When things have calmed down and the Bill that we are considering has passed through all its stages, we might, perhaps three or four months down the road, need to think about how we discuss the other measure.

Instead of reintroducing the proposals for a reserve power in this House, the Government have taken action to have those protections ready to be presented to Parliament should they be needed. I therefore ask the House to agree to Lords amendments Nos. 4 to 14.

I ask hon. Members to agree to amendment No. 115 and note the minor consequential amendment that is required to tidy up the Bill after the removal of schedule 2.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister invites us to disagree to amendment No. 3 because it is unnecessary. I have examined the Bill and I cannot see any residual power that would enable the Government to extend pre-charge detention beyond 28 days. However, will he give us an undertaking that no power is concealed in the Bill, which can be exercised by statutory instrument, that would enable the Government to extend pre-charge detention beyond 28 days?

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

There is no provision in the Bill for extending the maximum period of pre-charge detention beyond 28 days. That is why we disagree with amendment No. 3. I hope that that reassures the right hon. and learned Gentleman. If he has looked through the measure and found no such provision, it is not there. I hope that that puts in Hansard the reassurance that he would like.

Amendment No. 15 was clause 33 when the Bill left this House. The provision was added during the Commons Committee stage and contained minor Government amendments to the pre-charge detention scheme in schedule 8 to the Terrorism Act 2000 that were unrelated to the reserve power. However, it was inadvertently removed during a debate in the other place, despite agreement that it should remain in the Bill. The Government amendments made minor changes to schedule 8 to the 2000 Act, correcting an earlier omission of a consequential amendment and removing the requirement for the Lord Chief Justice to consult the Lord Chancellor before designating a magistrate to hear pre-charge detention extension applications for terrorist suspects for up to 14 days. I therefore ask the House to disagree to the Lords amendment, but offer amendments in lieu, which will place the clause in a more appropriate place and add a minor consequential amendment to that part of the measure.

As I have said, amendment No. 3 was an Opposition amendment to facilitate the debate on pre-charge detention. I hope that, with those reassurances, hon. Members will agree to disagree to the amendment.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The Minister has ended up facing both ways, in that he assured my right hon. and learned Friend Mr. Hogg that the Government had no intention in this Bill of bringing back detention for longer than 28 days. However, the Minister also said that he had produced a Bill—I am happy to confirm for my right hon. and learned Friend that it exists in physical form and is also available online and in the Library—which thus tells us that the Government have every intention of bringing the proposal back, if they can get away with it. That is puzzling, frankly, as well as disturbing.

The draft Bill is extremely relevant to the motion to disagree with the Lords in their amendment No. 3, which the Minister rightly said was a declaratory amendment designed simply to facilitate the House of Lords and make it clear what it was debating. I had hoped that all the amendments in the group with which the Government will move to agree would mean the last appearance of one of the Government's great failures of this Parliament. The attempt to persuade Parliament to damage essential liberties managed to inspire an enormously wide coalition, which included all Opposition parties, many Labour Members who care about freedom, senior police officers, both serving and retired, the Director of Public Prosecutions, as Chris Huhne mentioned, the former head of the security services, the former Labour Lord Chancellor and many more.

All those people considered the issue and did what we all need to do in such circumstances, which is to weigh up the security argument as well as the argument about basic freedoms. The reason we are discussing the very desirable Lords amendments in the group today is that the Government's proposal to extend pre-charge detention from 28 to 42 days failed on three significant grounds: practicability, necessity and desirability. The proposal failed on all three, in that it was unnecessary, undesirable and, in both its original form and the form in which it has returned in the draft Bill, unworkable.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal 4:45 pm, 19th November 2008

My hon. Friend admitted that he was confused about why we are in this position. Is he also confused about why the Government will not agree to have a gentle debate on the draft Bill in a tranquil moment, so that we can at least ensure that if that Bill were to be introduced in an emergency, it would be the best Bill that could be produced in those circumstances?

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My right hon. Friend makes an extremely good point, and one that I was about to come to. The key point in this group of amendments is how they intersect with the draft Bill and what we should do about it. As we decide whether to remove the stark, declaratory new clause proposed by Lords amendment No. 3, it is important for us to consider both the fact that the Government have produced the draft temporary provisions Bill and the way they wish Parliament to address it—or, as it would seem, not to address it—in the current period of calm.

Like many in all parts of the House, we on the Conservative Benches have made it clear all along that we would look at any evidence that supported any extension of pre-charge detention. Everything that we have said and argued throughout this long process has been predicated on the basis that if Ministers came forward with any credible evidence that persuaded us there should be an extension of pre-charge detention, we would look at it seriously and take a view on it. I am sure that that is true of the Home Affairs Committee and all the other bodies that have been weighing up that difficult balance.

As we stand here today at the last stage of this Bill's legislative scrutiny, the truth is that at no stage has any credible evidence been produced to support the Home Secretary's contention that extending the 28-day limit was necessary. The fact that such a wide coalition—of experts as well as Opposition parties—has assembled against the Government is very clear evidence that they never had a case for extending beyond 28 days. It is a tribute to their lordships that they not only defeated the proposal, but did so with the largest majority on a whipped vote that anyone in the other place can remember. It was not just defeated, but knocked out of court altogether.

Those who are in favour of reforming the House of Lords should acknowledge that, in this instance, it did its job superbly and could not have done it better—not least because the size of its majority has dominated the terms of the debate in this House, too. The majority in the other place was so big that even this Government did not have the nerve to try to ram the proposal through under the Parliament Act.

On the substantial issue, there should be no difference between Front Benchers because, wherever possible, we strive for agreement on security matters. The Home Secretary has said all along that she wants a consensual solution, and so do we, as it goes without saying that there is no division on fighting terrorism; it is the method of doing so that has divided us during the Bill's passage, as this group of amendments shows.

Let me move on to the temporary provisions Bill. The Minister will already have been made aware from comments on both sides of the House that we regard this as a deeply unsatisfactory process. As he said, the Bill is in the Library, we can all read it, we can all think about and discuss it, but the one thing we cannot do is to undertake any of that in an organised way. When pre-legislative scrutiny was introduced into our procedures, it was a very good and useful reform. Surely if formal pre-legislative scrutiny should be used at all, it should be in respect of a Bill that is already published and that the Government know they would dream of introducing only in an extreme emergency—at a point when people's emotions would be running extremely high. As it happens, we have the chance to discuss the Bill at the moment in a calm and reflective atmosphere. I cannot think of conditions in which pre-legislative scrutiny would be more appropriate.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I am in some difficulty, as the hon. Gentleman's suggestions would be more appropriate for another day. Reference to the Bill is appropriate, but if the hon. Gentleman continues to pursue this line of argument much further, I shall have to stop him. Does Mr. Hogg wish to intervene?

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I do not think that my comment will offend against what you said, Mr. Deputy Speaker. I simply wanted to make the point that if the Bill is introduced in an emergency, the probability is that it will be done in one day and the House will not have a chance to amend it.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I do not want to keep intervening, but that matter would also be more appropriate for another occasion.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The Government's motion to disagree with their lordships needs to be seen from the perspective of their ultimate intention. The Minister has assured us that there are no powers in the Bill to bring back pre-charge detention beyond 28 days, yet we know from the draft Bill that the Government wish to keep that power in reserve. I hope that the House will take that into account when it hears the Minister asking us to agree to disagree with their lordships on this matter. His case is materially weakened by the existence and content of the draft Bill and by the fact that we are not allowed to scrutinise it properly. I am sure that all Members will bear that in mind when deciding whether to give the Government the benefit of the doubt on this group of amendments.

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Photo of David Winnick David Winnick Labour, Walsall North

I hope that there will not be a vote on Lords amendment No. 3, but if there is, I will not vote with the Opposition. I may not vote with the Government either, just in case that is used in evidence against me at some later stage. I had to be very careful about how I voted in the Home Affairs Committee. As my right hon. Friend Keith Vaz is aware, I voted against the measure. Had I not done so, that would certainly have been used as evidence against my point of view on Second Reading.

In the end, as we know, the 42-day proposal was defeated in the House of Lords and carried by a majority of nine in the House of Commons. I am sure it was simply a coincidence that nine happened to be the number of Democratic Unionists who were present and voted on that occasion, but in any event the majority was just nine. Obviously a fair number of members of my own party took the same view that it was necessary to detain people for 42 days before charging them.

There is no doubt that the Government have not abandoned their wish to introduce the 42 days' provision. They have made absolutely no secret of that. The Home Secretary was quite frank when she came along on 13 October, after the defeat of the measure in the House of Lords. She did not suggest for a moment that the Government had changed their mind.

The Government are, of course, perfectly entitled to change their mind, but the fact that I strongly disagree with them on this issue does not mean that they have to do so. They have stuck to their opinion: they still believe that detaining people for 42 days before charging them is justified. That is the difference of opinion between the Government and those of us who take quite another point of view.

Many people, including the outgoing Director of Public Prosecutions, have said that they see no necessity for people to be detained for more than 28 days. I reminded the Home Secretary in the Home Affairs Committee last week that not one but two former directors general of MI5 were opposed to it. She was a bit surprised, and asked me to name the second; I replied that it was Stella Rimington. It is obvious that quite a large body of people who know all about the dangers of terrorism are not persuaded by any means that it is necessary—at least at this stage—to detain people for longer than 28 days. It should also be borne in mind that three years ago the House doubled the period of pre-charge detention from 14 days to 28.

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Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

The hon. Gentleman is advancing a powerful argument. Given the Government's determination to see this through and try to secure the 42-day measure, and given the total opposition to which the hon. Gentleman rightly refers, would it not provide added security for the measure to be included in the Bill, at least to ensure that it is stopped in its tracks?

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Photo of David Winnick David Winnick Labour, Walsall North

Obviously the hon. Gentleman and I do not disagree on the issue of pre-charge detention, but my hon. Friend the Minister made it perfectly clear in response to an intervention that the measure we are discussing cannot be used to extend pre-charge detention beyond 28 days. If there were some mechanism allowing it to be so used, I would be inclined to vote, and indeed to press for a vote; but as the Minister has said what he has said and it is in Hansard, I see no need to put to the vote an amendment that would without doubt be defeated. Indeed, I wonder from a tactical point of view whether voting for it would serve the interests of those of us who see no justification for an extension beyond 28 days. However, this is not my amendment, and it is up to the Opposition to decide what to do.

I do not want to go against your wishes with regard to the other Bill, Mr. Deputy Speaker. It has been published, as we know. Last Thursday, along with other members of the Home Affairs Committee, I pressed the Home Secretary on the issue. Whether we want it to be debated at some stage is another matter, although I should like to see it completely dropped.

I do not believe that 28 days should be set in concrete. I have said before, and I repeat today, that if there is compelling evidence that it is absolutely essential for the security of our country that we should go beyond 28 days, I will vote for it—others may not, but I will. However, there is no such evidence, and all the authorities that have been mentioned have also made it clear that there is no justification for it. I would like the extension provision to be dropped, but as there is no mechanism in the measure before us for extending the period, I urge that the amendment not be pressed to a Division.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice 5:00 pm, 19th November 2008

The Liberal Democrats are very pleased that the Government have decided not at this time to press for any further extension of the period of detention without charge. We are not in any way being softer on terrorism or less enthusiastic about bringing terrorists to justice than any other party, but there is a fundamental disagreement about the correct and most effective way of tackling this situation. As Mr. Winnick pointed out, this House passed this measure by only nine votes and nearly rumbled the Government in their arguments on the extension of the period of detention without charge, and the House of Lords then comprehensively did so, with a substantial majority voting against. There is no doubt that over the whole period that we have been considering this matter the arguments of the Government—of Ministers and the Prime Minister—have been comprehensively lost. I wish now to summarise why it is appropriate to press these amendments withdrawing the relevant provisions in the Bill to a vote.

This country already has a period of detention without charge of 28 days. Ministers have in the past suggested that international comparisons are always difficult, but international comparisons between our country as a common law jurisdiction and other common law jurisdictions are not difficult. We have a longer period of detention without charge than any other common law jurisdiction. It is, in fact, more than double the length of the next longest period of detention without charge of such a country, which is Australia's period of 12 days. Even in Australia, the provisions for extending the period to 12 days specifically introduce periods of cooling off in between the interviewing of suspects.

As I have pointed out, Sir Ken Macdonald, the outgoing Director of Public Prosecutions, clearly said that he did not need these powers precisely because conviction rates on terrorism are running substantially ahead of the Crown Prosecution Service's general success rate in serious crime. That shows that there is the necessary flexibility for the CPS to bring charges; it can bring charges against people, and it is unnecessary to hold them for prolonged periods.

What is, perhaps, most important is that this country has always attempted to respect the principle of people being innocent until proven guilty, and the people who are most likely to be caught up in a prolonged period of detention without charge are the innocent, precisely because they are likely to resist and to fail to give any evidence. As a result, we have discovered that the majority of those who have been held right up to, or very near, the end of the period of 28 days have been totally innocent—innocent in the sense that there has been no desire to conduct further investigations or, as we know from what the Home Office has said, to take any further action taken against them of the sort that would be available under other provisions.

There is a real risk that if we were to go down the road of extending detention without charge from 28 days in the draft Bill that the Home Secretary has placed in the Library, we would alienate a very substantial section of the ethnic minorities whom we need for our intelligence leads to find terrorists. Indeed, we also need them to come to court to give evidence as witnesses. As we know, the parallels are not exact, but there is no doubt that when the House went over the top and introduced disproportionate powers to tackle Irish terrorism in Ulster—internment—it had a dramatically counter-productive effect on the minority Catholic community's willingness to give evidence and come forward as witnesses.

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Photo of David Winnick David Winnick Labour, Walsall North

If 42 days is unfortunate and not necessary, what would have been the reaction of the minority community to which the hon. Gentleman referred if 90 days had been agreed to?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

I entirely agree that 90 days would have been even worse. I must say that I have never understood exactly where the figure of 42 came from. Why was it 42 and not 40 or 44? I suspect that a secret fan of the "The Hitchhiker's Guide to the Galaxy" in the Home Office realised that the answer to life, the universe and everything is always 42. There does not seem to be any other basis for proceeding on 42 days.

It worries us that there is a Bill in the Library that could be introduced when the Government think that our rational faculties, as a Chamber, were completely suspended. The Government have made it clear that they would proceed with the Bill only in the wake of another terrorist outrage, when, understandably, there would be considerable moral panic in the newspapers, including some of the tabloids.

We know from history that some of the worst legislation that we have ever committed to the statute book was passed on precisely such occasions, when there was moral panic—for example, the Dangerous Dogs Act 1991 and the Official Secrets Act 1920, which was passed following a moral panic under the coalition Government in the first world war.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I accept what the hon. Gentleman says, but is he not grateful that the Home Secretary has published a draft Bill, giving Parliament the opportunity to scrutinise it before it is introduced to the House?

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

The right hon. Gentleman is usually an exceptionally acute Member of the House, so it has surely not eluded him that the Home Secretary has no intention of subjecting the Bill that she placed in the Library to a proper debate in this Chamber. No Government time has been made available for it. She has said only that, in the wake of a terrorist outrage or some such event, when it might be necessary, we could return to the matter. What that actually means is that this Chamber—we know this from history—will be asked to consider the matter again when it is most likely to have suspended all its rational faculties. Frankly, that seems absurd.

We should consider what is appropriate legislation for dealing with a terrorist threat rationally and coolly, taking into the account all the proper authorities. When we have done so, the Government have comprehensively lost the argument, and the Lords has comprehensively routed their desire to extend the period of detention without charge from 28 to 42 days. I hope that, as a result, we will allow the Lords amendments. Labours Members, especially those on the Front Bench, should be under no illusion that in the calm, cool light of day, they have lost the argument. Therefore, the supposed Bill that has been placed in the Library is no more than a fig leaf to disguise their embarrassment.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am sure that the Minister will be pleased to know that I rise to speak in support of the Government's position, unlike in the previous debate on the DNA database. He has made it clear to the House that the Government are not going to go beyond 28 days in the Bill. The Home Secretary has also made it clear that, because of what happened in the other place, the Government had to rethink their position. Quite rightly and properly, she came to the House on 13 October to say that she would not proceed with that aspect of the counter-terrorism measures.

I am glad that the Government have proceeded with all the other bits of the proposed legislation, most of which had been recommended by the Home Affairs Select Committee in our report published at the end of last year. I will not go through all the bits and pieces now, because this debate is to do with 28 versus 42 days. However, the Government have taken the right approach. Governments are often criticised for not listening and not understanding the views of the public or, indeed, of Parliament, but the Government and the Home Secretary have listened on this occasion, and I am glad that she did what she did. I accept absolutely—I am surprised that anyone would not do so—the categorical assurance from the Minister with responsibility for policing and counter-terrorism that there is nothing in the Bill that will extend pre-charge detention beyond 28 days. I therefore have no hesitation in supporting the Government on this point.

Reference has been made to the draft Bill. I am not going to dwell on that matter, because that is a debate for another day. However, the Home Secretary was right, on the day on which she announced that she was not proceeding with the 42 days provision, to place in the Library of the House and the Vote Office—and to send me and other members of the Committee—a copy of the draft Bill. It is also right that Parliament should debate that Bill at some stage. There are two distinguished members of the Home Affairs Select Committee present today: Patrick Mercer and an even more distinguished member, my hon. Friend Mr. Winnick. He has served on the Committee for longer, so he is, by definition, more distinguished than the hon. Gentleman. As the Minister knows, the Committee has a very heavy schedule at the moment, but I am sure that, when we look at our schedule for next year, we shall find an opportunity to look at the draft Bill. We need to do that not in an emergency, when we are dealing with a crisis in society. The Committee needs time to scrutinise it, and I am sure that we will have the same high-quality discussions on it as we had when we considered this matter last year.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

The right hon. Gentleman raises the timing of the Select Committee's scrutiny of the draft Bill, but none of us knows if or when another terrorist outrage will happen. He appears to be saying that his Committee will do the necessary scrutiny work on the Bill, and I urge him to ensure that it does so as soon as possible. We do not want to debate the new Bill during a crisis, but none of us knows when such a crisis might occur.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I cannot decide on my own what the work load of the Committee is to be. There are two other members of the Committee here, and we will certainly look at the matter as soon as we can, bearing in mind our schedule of work. It is in the interest of Parliament that we do that quickly.

I pay tribute to my hon. Friend the Member for Walsall, North, because it was not easy for him to be in a minority in his party. He clearly loves his party; he has been devoted to it and supported it, and he very rarely rebels against it, as we can see from his voting record. He has supported the Government almost without exception over the past 11 years, and it was not easy for him to vote against them, to be the focal point of the campaign on 42 versus 28 days, or to come to the Select Committee after months of scrutiny before we published our report and to be the only member of his party to vote against the proposal. That was not easy for him, especially when Conservative and Liberal members all came to one conclusion on the matter.

I should like to remind the House that this is a debate about 42 days, not about the draft Bill. The Committee said:

"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"— the Civil Contingencies Act— secure parliamentary scrutiny and judicial oversight, but stop short of the requirement to declare a full-scale state of emergency. We urge the Government to begin urgent discussions with other parties on this basis."

We talked about the exceptional circumstances to which the Government referred in the draft Bill that was placed before the House on 13 October. The Opposition have talked about an emergency situation, as did Lord Goldsmith. He is a dear friend of mine and I respect him greatly, and when he was Attorney-General he supported 90 days—indeed, I too voted for 90 days—as did the previous Lord Chancellor, whom I served as Parliamentary Private Secretary. These are people of the highest possible eminence, and they accepted that there would be an emergency.

Liberty also accepts that, and even the great Shami Chakrabarti, for whom I have huge admiration, accepts that. I know that the Conservative party has also recently had huge admiration for Liberty, proving that being in opposition is a wonderful thing —[ Interruption. ] The Liberal Democrats have always loved Liberty. Shami Chakrabarti has mentioned exceptional circumstances by referring to the Civil Contingencies Act 2004, because that is all about declaring a state of emergency. Let us not delude ourselves: we accept that there may be an emergency.

The hon. Member for Eastleigh also spoke about an emergency. He does not want to consider such legislation in the middle of a crisis, in which people have been blown up and the police are raiding homes and arresting and questioning people. He does not want to have the discussion then, so he acknowledges that such a situation will happen. He is right: Parliament must prepare for that in advance. A Home Secretary should not have to come before the House and make a statement, with everyone rushing around like headless chickens, and say that we have to support the Government, because if we do not we will be supporting terrorism.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice 5:15 pm, 19th November 2008

The right hon. Gentleman must recognise that the draft Bill is just a fig leaf to cover the Government's embarrassment. Those provisions were debated extensively—including in an enormous national debate, let alone in this Chamber—and the Government lost the argument. All the Government are trying to do is ensure that it will be revisited at a time when rational argument will be suspended. That is not the appropriate time to make legislation.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

We do not have to wait for that occasion. Of course, we are not discussing the draft Bill today, but if the Government refuse to make time available to discuss the Bill—I hope that they will make time available—the Liberal Democrats could make some of their time available to discuss it, as could the Conservatives. Indeed, if the Home Affairs Committee decides that it is something that we need to do as a matter of urgency early next year, we can look at it too. We have the opportunity to ask for time for a discussion on counter-terrorism. The hon. Gentleman is right: we should discuss these matters out of the glare of a terrorist attack, when people can put their views forward—

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

We discussed them in relation to 28 days versus 42 days, but I thought that he was saying that we should discuss the draft Bill. We should, and I hope that we will do so as quickly as possible. In the meantime, the Government's position is clear. Nothing in this Bill will take us beyond 28 days, and we should stick to that position, because that is the basis on which the other place voted down the Government's proposals and it commands the consensus of the House.

Today is the first time that I have heard my hon. Friend the Member for Walsall, North talk about what would happen in an emergency. I promise not to use that in evidence against him, but he did foresee the possibility of an emergency in which that Bill might be considered. If the evidence was before him, he said, he would vote for the Bill. I have not heard him say that before.

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Photo of David Winnick David Winnick Labour, Walsall North

I hope that I have not been misunderstood, because it is not a matter of an emergency. I said I would do that if there was "compelling evidence". I am grateful for the kind remarks that my right hon. Friend made about me, but I hope that he will not work on the basis that if there is a terrorist outrage—another 7/7—that in itself would necessarily justify extending detention beyond 42 days. The fact is that no amount of pre-charge detention would have prevented the outrage of 7/7, which took the lives of 52 totally innocent people.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I agree with my hon. Friend. My comments about him are well deserved. He put that point to the Home Secretary last Thursday and asked when the provisions would come into effect—for example, on day one, or an hour after the outrage occurred. He asked whether she would come before the House with her Bill and how much time would be available to discuss its provisions. He was absolutely right. We need to pin the Government down on this point now.

I hope, as we have had the debate, that the Bill and the new clause inserted by the Lords amendment represent closure on the matter. I hope that the Government will not wait for the outrage but will make available the necessary time for proper scrutiny of the draft provisions.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Although I frequently agree with Keith Vaz, who is also my neighbour, the matters that we are dealing with today do not represent closure. By the very nature of the Government and the Home Secretary's production of the draft Counter-Terrorism (Temporary Provisions) Bill, in which clause 1(2) substitutes 42 days for 28 days, they are constantly reminding us that the Home Secretary found the decision of the other place to stick to 28 days rather than 42 days deeply disagreeable.

The Home Secretary will not drop the bone. She will not let the matter go. She is behaving almost like Violet Elizabeth Bott rather than a rational Home Secretary. She refuses to see that she has lost the argument and she will go on stamping her feet. The draft Bill represents the stamping of her feet. I agree with Mr. Winnick and all the others who advanced arguments against the 90 and 42-day limits. I have grave doubts about the 28-day limit, but that is the decision that both Houses of Parliament have arrived at. We ought to stick to that for the time being.

It is tempting for a Government who have been defeated in the unelected House—a Government who managed to get the provision passed in the summer only by what I shall call an unusual majority, as I do not want to use unparliamentary language—to try to achieve their goal of a 42-day limit. I accept that politically and in terms of public relations such a defeat is very embarrassing and rather annoying, but it will not do for the Government to produce a moose under the table, as they say in Alaska—that is, what we used to call an elephant in the room—and to pretend that we cannot talk about it. The draft Bill is sitting in the Library and the Vote Office, partly as a threat and partly as a piece of Violet Elizabeth Bott-style spoiled child behaviour.

Clause 22 of the Bill as it went to the other place, which has been knocked out by Lords amendment No. 4, defined something called a "grave exceptional terrorist threat". Such a threat meant

"an event or situation involving terrorism which causes or threatens...serious loss of human life...serious damage to human welfare in the United Kingdom, or...serious damage to the security of the United Kingdom."

Such an event is the precise trigger that would get the draft Bill out of the Library. I urge the Government and the right hon. Member for Leicester, East to ensure that the draft Bill or the concepts that lie in it are thoroughly discussed in an inquiry by the Home Affairs Committee. Along with the right hon. Gentleman, I was a member of that Committee in the early 1990s and I seem to remember that, regardless of its party political majority, we discussed matters of serious importance to the home affairs remit in a collegiate fashion.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I can tell the hon. and learned Gentleman that I will put the point that he makes to the Committee at its meeting tomorrow, and ensure that the matters that he has raised will be considered.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am extremely grateful. It is reassuring that some part of the House of Commons will have the opportunity to discuss the draft Bill in a relatively calm and consensual environment. Of course there will be individual disagreements, but I have a suspicion that the Committee as a whole will produce one report. It is highly unlikely that there will be a split.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I have learned one thing since taking over as Chairman of the Home Affairs Committee—never predict what it will do. There were lengthy and complicated discussions over the last report on counter-terrorism, and members of the Committee from all parties are very robust on this issue.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

And so they should be, but I have no doubt that the right hon. Gentleman and his colleagues on the Committee—Labour, Conservative and Liberal Democrat—will come forward with a considered view on the matter and produce a report that will be not only worth his producing but worth our debating. I hope that he will suggest to his Committee tomorrow that it should hold such an inquiry and that, once it is done, the Committee can persuade the Leader of the House to allow time on the Floor of the House for the report's conclusions to be debated. I am sure that he and his colleagues will play a very active role in that debate, when it comes.

I want to make it clear that the House should not be satisfied with what the Government have done so far. I am delighted that they have accepted the Lords amendments and are not asking this House to reverse them. I think that that is a very sensible way forward, but I am concerned that in the absence of a report from the Home Affairs Committee and of a debate on the Floor of the House, we will find that we have to do something about a terrorist threat that is both "grave" and "exceptional".

The concept is extraordinary, if I may say so: by its very nature, a terrorist threat is grave and I should like to think that it is exceptional, but what happens if it is grave but not exceptional or exceptional but not grave yet none the less a terrorist threat? Irrespective of the clumsy language that has now been taken out of the Bill, I should like to think that the Government will react in a rational way to the next, or any future, terrorist outrage. I have absolutely no way of telling whether there will be one, or when, or what form that outrage might take, but it is reasonably certain that we cannot rule such a thing out.

We therefore need to be adult about this matter, and to realise that there will probably come an occasion when we again have to consider 28 or 42 days' detention. However, I want to do that in the light of some better advice from the Home Affairs Committee and of a debate on the Floor of the House. What I do not want is to see the Home Secretary in her Violet Elizabeth mode come screaming in here the day after a hideous bomb outrage and demanding that we immediately enact her draft Bill.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

My hon. and learned Friend has mentioned the debate about 28 as opposed to 42 days, but it is worth putting it on record that many of us regard 28 days as an exceptional circumstance. We look forward to the day when we feel confident enough to reduce that figure as well.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

That was a compromise arrived at and brokered by Mr. Winnick. Were it not for his amendment, I think that we would be hovering somewhere above 50 days and trying to get some reduction from the 90 days that the then Government were trying to achieve. I agree with my hon. Friend that 28 days is in many respects a jurisdictional aberration, but it is where we are. We have settled on that figure for the moment, but I hope that a time will come when we can reverse it back to 14. I hope that we might even get it down to seven, although I do not see those circumstances in the immediate future.

I urge the Government not to rush to the Chamber after some hideous event, buoyed up—or rather fuelled—by the natural emotional outrage of the public and individual Members of Parliament, and think that they can put through an inadequate or improper piece of legislation. The fact that something has been sitting on a shelf in the Library for weeks, months or years does not constitute scrutiny or rational appreciation.

I urge the right hon. Member for Leicester, East to do as he indicated, not only because it is the proper thing for Parliament to do, but also because it is necessary from our constituency points of view. He has a larger Asian community in his constituency than I have in mine—although mine is growing—but we both represent communities that would be affronted to think that innocent people, British citizens born in this country, could be lifted and put away for 42 days without charge. He knows how socially divisive that could be, and I am beginning to understand, as a constituency MP, the sensitivities felt by some of those in our communities who used to be called immigrants but are no longer immigrants. They are British-born citizens who deserve every respect and ought to see the law working for them rather than against them. I look forward to working with the right hon. Gentleman both locally in Leicestershire and here in Parliament to ensure that the Government follow the advice of the entire Parliament rather than a small group of No. 10 policy advisers who may have another agenda.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security) 5:30 pm, 19th November 2008

I shall be brief, Mr. Deputy Speaker. I thank Members for their contributions to the debate and discussion of this small group of amendments. In disagreeing with Lords amendment No. 3, I reiterate that there is nothing in the Bill that would allow the Secretary of State to extend the maximum period of pre-charge detention beyond 28 days. I make that point again for the reassurance of Members.

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Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee

I am sorry to interrupt my hon. Friend at the start of his remarks. If the Select Committee undertook an investigation into the draft Bill, I think it would be a good idea, although it is up to the members of the Committee. Incidentally, I omitted to mention the presence in the Chamber of Tom Brake, another of its distinguished members. I realise that management of the business of the House is not up to my hon. Friend the Minister or the Home Secretary, but will he use his good offices to make sure that as soon as the report is available, assuming it is produced quickly, time will be made available to discuss it on the Floor of the House? I realise that is not a matter for my hon. Friend, but it is in everyone's interest.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Obviously I look forward to attending the Committee, if either the Home Secretary or I are invited. One would hope that the report of the Home Affairs Committee would be discussed expeditiously.

With those words, Mr. Deputy Speaker, I hope we can agree to withdraw amendment No. 3.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I think the Minister wishes to disagree with Lords amendment No. 3.

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I think you know what I meant, Mr. Deputy Speaker. You are right and I am wrong.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I was getting there.

Lords amendment disagreed to.

Lords amendment No. 15 disagreed to.

Government motion to transfer clause 33 agreed to.

Amendments (a) and (b) in lieu of Lords amendment No. 15 agreed to.

After Clause 68

Lords amendment: No. 82.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss Lords amendments Nos. 113 and 127.

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Photo of Ian Pearson Ian Pearson Parliamentary Under-Secretary (Economic and Business), Department for Business, Enterprise & Regulatory Reform, Economic Secretary (Economic and Business), HM Treasury

We change gear, in terms of the subject matter. The amendments were introduced in the other place to provide the Treasury with essential powers to protect the UK economy from potential threats of money laundering, terrorists financing and proliferation activity. I should like to record my thanks for the constructive approach taken by the Conservative and Liberal Democrat parties in the other place: their engagement helped not only to refine the provisions but, critically, to progress them.

I acknowledge that the amendments were introduced at a late stage in proceedings on the Bill. The pressing need for them became apparent only quite late in the day, as events unfolded in the Financial Action Task Force. As I shall explain, those events had the unfortunate effect of making it clear that our current powers were no longer completely effective for discharging our international responsibilities.

The UK has been at the fore of international action to tackle the problems posed by jurisdictions of concern in relation to money laundering, terrorist financing and the proliferation of chemical, biological, radiological or nuclear weapons. We are determined to maintain that leading role. On 16 October 2008, the FATF issued a statement for which we and others had pressed hard, calling on members to take increased preventive action to protect their financial systems from the risks posed by terrorist financing deficiencies in Iran and money laundering deficiencies in Uzbekistan. We anticipate that there may be further calls for increased action at the FATF's next meeting in February 2009.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

Given what the Economic Secretary has just said, is it possible that, after February, the Government will need to find a further legislative vehicle to put in place more emergency provisions, as has happened on this occasion?

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Photo of Ian Pearson Ian Pearson Parliamentary Under-Secretary (Economic and Business), Department for Business, Enterprise & Regulatory Reform, Economic Secretary (Economic and Business), HM Treasury

I will go on to deal with that subject and if anything remains unclear at the end of my speech, I will be more than happy to take another intervention from the hon. Gentleman. However, let me say now that we think that the provisions here are suitable for the purposes for which we require them.

The intention of the FATF's statement is crystal clear. For example, on Iran, it said:

"The FATF calls on its members, and urges all jurisdictions, to strengthen preventive measures to protect their financial sectors from this risk."

However, the UK's powers in the Money Laundering Regulations 2007 require a formal invocation of counter-measures by the FATF and, unfortunately, the statement did not use that specific term, owing to the concerns of certain members—a reluctance that the UK has run up against in other international forums attempting to take action on these important matters. The October statement therefore exposed potential difficulties with the UK's legislation: if the FATF does not formally call for counter-measures, we are unable to employ the powers in the money laundering regulations, no matter the scale of the risks.

As the Financial Services Secretary to the Treasury explained in the other place, the Government do not have the option of simply adapting the money laundering regulations to alter the powers trigger to reflect the reality at the FATF. That is partly a reflection of the fact that the current money laundering regulations implement the EU's third money laundering directive, whose primary focus is member countries' internal money laundering controls and so contains only some powers to implement the FATF counter-measures; it therefore does not provide the basis for us to take the full set of steps outlined by the taskforce. However, in my view, it is in any event more appropriate for the provision of new powers to be set out in primary legislation, rather than in regulations made under a statutory instrument.

It might be useful if I provide a brief recap of the content of the provisions that we are discussing. The amendments provide for the Treasury to apply a range of financial restrictions, but only in very specific circumstances. It may do so either in accordance with a recommendation of the FATF relating to the need to protect against the risks posed by money laundering and terrorist financing in a jurisdiction of concern, or it may do so on its own initiative because money laundering, terrorist financing or proliferation activity poses a significant risk to the UK's national interests.

Specifically, the amendments would allow the Treasury to direct financial and credit institutions to impose: stricter requirements for customer due diligence, such as requirements to identify clients, beneficial owners and the nature of business relationships; stricter requirements for ongoing monitoring of transactions; a requirement systematically to report all transactions with designated entities; and a requirement to limit or stop business with designated entities.

The range of measures proposed are essentially those that can be recommended by the FATF. They allow for a graduated approach in the monitoring and, where necessary, limitation of business with relevant entities. The measures are applied proportionately, using a risk-based approach. I note for the avoidance of confusion that they are not asset-freezing powers.

The new powers have some application in connection with proliferation financing. As some hon. Members may be aware, however, the FATF counter-measures apply only to risks from money laundering and terrorist financing. Proliferation financing is an area of growing international concern. The UN, the EU, the FATF and the G7 have all expressed concern about financial systems being abused by proliferators. Indeed, under the UK presidency last year, the FATF included a responsibility to address proliferation financing in its remit and published a report on proliferation financing in June this year. The UN and the EU have provided new powers at international level to help to tackle the issue in relation to Iran, but they are not appropriate for dealing with serious proliferation risks. They do not, for instance, enable the UK to act to direct the ceasing of transactions. We have therefore moved to address that important and related area of concern in the provisions before us.

The Government have been careful to ensure that appropriate safeguards relating to the exercise of those powers were included in the provisions. It is worth while briefly noting some of them for the record. First, directions applied beyond the level of individual firms have to be made via an order. In the case of a direction to limit or cease business, the order is under the affirmative procedure. In any event, all directions cease to have effect one year after being made. They can, of course, be renewed if necessary after that, or indeed revoked before the year has elapsed. Secondly, in the event of a direction to limit business, a licensing regime has been provided to enable the Treasury to minimise the impact on third parties. Thirdly, the provisions require the Treasury to report annually on the use of the powers. I understand that there was a good debate on the subject in the other place, and the Government committed to making a full report. Let me reiterate that commitment in this Chamber.

When the Bill passed through the other place, further useful requirements were placed on the Treasury in its use of the powers, following cross-party engagement. There is now an explicit duty on the Treasury to ensure that any directions issued are proportionate to the threat that they are combating and do not impose unnecessary burdens on business. There is also now an explicit duty on the Treasury to assist supervisors and others in developing guidance, so that we can ensure that any directions issued can be implemented effectively. Of course, the Treasury would have exercised its powers in that fashion in any event, just as we do under our current regime, but we are happy to have such requirements stated in the legislation.

The provisions also set out supervisory and enforcement structures for the new powers. The Government's intention is that the structures replicate those that were established in the Money Laundering Regulations 2007, which form the basis of our current anti-money laundering and counter-terrorist financing regime. We have therefore made in the amendments provision to extend the powers of the supervisory bodies that are responsible for financial and credit institutions, namely the Financial Services Authority, Her Majesty's Revenue and Customs, the Office of Fair Trading and the Department of Enterprise, Trade and Investment in Northern Ireland. That extension will enable them to supervise compliance with any directions, as part of their wider role. Again, the enforcement provisions were well debated in the other place, and useful amendments and clarifications were made.

To conclude, in recent years, international pressure for action to counter terrorist financing, proliferation activity and money laundering has been increasing. The United Kingdom has led international attempts to tackle those threats and to protect the international financial system, but we are now restricted by the combination of factors that I have mentioned. In contrast, several of our international partners, such as the United States, France and Germany, already have, or also seek, similar powers. The UK Government seek such powers to enable the UK to take appropriate measures to protect itself from internationally recognised threats. The provisions under discussion would enable us to take the necessary preventive but proportionate action to protect UK national interests and prevent potential abuse of the UK economy. We do not believe that further powers will be needed in February, but we do believe that the provisions before us represent a full suite of counter-measures. I commend the Lords amendments to the House.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs) 5:45 pm, 19th November 2008

First, I should apologise to the House, because, while the Government provide variety on their Front Bench for the Treasury aspects of the Bill, sadly, on the Opposition Front Bench, the House is still stuck with me.

Secondly, the Minister will agree—indeed, he indicated as much in his opening remarks—that this is a fairly extraordinary process. The provisions are extremely important to the Bill and to the wider battle against terrorism, but, although I quite understand the pressures, not only were the provisions not introduced in this House, but they were introduced at a late stage of the Bill's passage in the other place. Indeed, their lordships were given little more than 24 hours to look at the measures before they were debated. I hear what the Minister says about the fact that the Financial Action Task Force laid down guidelines that the Government then had to follow, but I hope that he will agree that, for complex financial regulations in particular, this is not the way in which a Government should proceed.

Like the Minister, I carefully studied the debate in the other place, and I agree that it was extremely good—robust, detailed and purposeful. Nevertheless, I suspect that the level of scrutiny that this important provision deserves will not be obtained, because of the way in which both Houses have had to discuss it. My noble Friend Baroness Neville-Jones made the point about "rushed legislation" and, perhaps even more importantly, about powers being used inappropriately. That is a serious long-term danger. If we discover that the provisions either do not do their intended job or cause problems for those whom they cover, it will be legitimate for people who are badly affected to ask, "Why wasn't Parliament doing its job?" The answer will be that, perhaps, Parliament was not given enough time to do its job.

Recently, we saw the effect of the spill-over into the financial sector of legislation that people regarded as anti-terrorist with the Landsbanki case in Iceland. The Icelandic Government and people were offended enough by the actions of the British Government; their appearing to have fallen under the provisions of anti-terrorist legislation added insult to their injury. We would not want to repeat that type of diplomatic problem.

Having said all that, I completely agree with the proposition underlying the measures in this element of the Bill. There are gaps in our ability to tackle the financing of terrorism—money laundering, and particularly the new phenomenon of proliferation financing, which the Minister identified. Some of the crimes involved are new, so we do not have the appropriate tools to deal with them. The need to deal with them, however, is self-evidently a policy objective that we Conservatives entirely share with the Government.

As my noble Friends in another place made clear, we support the broad thrust of the amendments. Indeed, I am sure that I share with the Minister a slight sinking feeling at the Treasury's discovery that it does not have the powers to allow the UK to apply all the measures that the FATF has now decided are necessary. That could be an embarrassment to us. In these difficult times, we all want to protect the reputation of London as a financial centre, and we will need appropriate powers to stop terrorist financing, to preserve London's reputation in the years ahead. At the moment, we cannot require a business to be aware of all the risks, to take the extra diligence or to supply systematic reporting when transacting with jurisdictions of concern. Clearly, we need to be able to impose such requirements. I hope that the provisions will enable us to do so.

The essential thrust of the provisions will meet no opposition from the Conservative party. However, the Minister will accept that they represent a significant extension to Treasury powers. As a consequence, even given the limited time scale, widespread consultation would have been extremely advisable, for the purposes of diplomacy and getting a more practical outcome. From what I have seen, the lack of such a consultation has been a fairly significant failure on the part of the Government. I was struck by the briefing provided by the British Bankers Association, which is absolutely central to the process of making the regulations effective. Its representatives say that late last month they were invited "at very short notice" to meet Treasury officials to discuss the amendments in this group. They go on to say:

"There was therefore no prior formal consultation of industry and it is difficult if not impossible to say how they"— that is, the provisions—

"will impact on the banking and financial services industry. No consideration has been given on how the proposed new powers will work in practice, nor indeed whether they will work properly in conjunction with other relevant legislation."

In the context of the support that I offer the measures, I should say that that verdict is pretty damning from a trade body most affected by a new and important piece of legislation. Its representatives say that, as far as they can see, no consideration has been given to how the proposed new powers will work in practice, and that is surely unacceptable. In his concluding remarks, I hope that the Minister will address the issue of consultation and what has been happening. This briefing arrived yesterday afternoon, so it is clearly contemporaneous. The big banks that operate out of London feel that they are being ignored and steamrollered by these provisions.

The BBA also makes the valid point—again, I hope that the Minister can comment on it—that the proposed regulations represent the Government overturning their own policy to require that a cost-benefit and an impact analysis be carried out before introducing new legislation. That has not been done. The BBA says that it is particularly concerned about schedule 7 and clause 64 and makes a number of specific recommendations, not all of which I necessarily endorse but to which I will turn in a moment.

The House, and particularly the Minister, should consider the BBA's observations on the possible impact on its industry. First, it says:

"It is not possible to assess the likely impact on industry with any accuracy or clarity given the absence of information from HMT about how they might use the new powers. This is both in regard to frequency of use and scope (especially in terms of individual transactions)."

The Minister started to address some of those issues during his speech, but a much more detailed explanation will be needed to make it possible for the industry to respond intelligently. The BBA thinks that

"the likely impact must be seen as potentially very wide", and goes on to say that

"there is simply uncertainty about what operational difficulties might arise" on a day-to-day basis as a result of the exercise of these powers.

The BBA also says, as one would expect:

"Banks already seek to apply the FATF country risk assessments conscientiously."

The FATF recently made statements on two countries, Pakistan and Uzbekistan, which resulted in many of the banks based in London but with significant customer bases in those countries taking a decision to raise the risk profiles on their internal assessment bases and extend those to carrying out enhanced due diligence and monitoring. The BBA says:

"If the extended powers from this legislation were to be applied on a widespread basis and on a large scale, this would have a disproportionate operational impact on banks which is plainly not possible to quantify at present."

The banks are doing their best to respond to increasing risk, but they do not know what effect these new regulations will have on them or whether, particularly given that some are in a fairly fragile state at the moment, they will add to costs.

To put this into context, a large high street bank may have 3 million UK payments transactions a day and some 45,000 cross-border transactions. The BBA thinks that these provisions appear to mean that

"banks may have to identify single transactions from among these totals or identify individual accounts and 'cease or limit business' on an individual account. This could require a whole new team of staff" in each bank

"with specific new skills given the width of the Directions. Given the potential penalties for non-compliance, it could be difficult to find suitable staff willing to undertake this type of work (see Part 7 of Schedule 7 at para 30(5) where 'on conviction (for failure to comply with requirements imposed by direction) a person may receive a term of imprisonment for a term not exceeding two years or a fine or both'."

A job may not look very attractive if the bank offering it has to say, in all honesty, "We don't know how these regulations are going to work. We don't know if our systems can cope with them because nobody has consulted us about bringing them in." If they cannot get the people to do the due diligence and regulation, then passing this legislation may well do more harm than good. It also makes a point about the term "financial restrictions". The BBA believes that a requirement for intensive manual implementation and monitoring could be introduced. It says that the term is not properly defined in the legislation, so it is impossible to anticipate how the Treasury might seek to implement it.

The BBA says that it is not clear how the proposed legislation could affect the banks' decisions to take commercial decisions to close, or exit, customer accounts that are the subject of monitoring orders. It makes another point that seems valid, and which I hope the Economic Secretary can address. The proposal takes no account of the fact that there is an established process with the Serious Organised Crime Agency for exiting customer relationships. The orders may run for a year, which could completely cut across SOCA's existing procedures. I hope that that is not a symptom of legislating in haste, and that other parts of the legislative jungle are not being cut through by this Bill. We have all seen that happen in the past. One Department produces legislation while the legislation of another Department—in this case, the Home Office—tries to do the same thing in a different way, but the two teams have never got together. The result is chaos. There is a strong possibility, if we are to believe the BBA, that that will happen in this case.

As I said, the BBA produced a series of recommendations, all of which I would like the Economic Secretary to comment on. He will say that some of them are impractical, and I will agree, but I hope he can at least give the House his initial thoughts on them. The BBA would like the Government to give the industry an opportunity to comment on any of the reports to Parliament on the Treasury's exercise of powers under the new legislation. That would be an obvious and easy thing to do. If there are going to be regular reports to Parliament, as well as discussions on the Floor of the House, Select Committees will become involved and the banks can give evidence to those Committees.

The BBA also suggests—I suspect that the Economic Secretary will jib more at this—that any agreed new powers should be subject to a one-year sunset clause. That would allow for immediate implementation, which is before us now, but could later allow such powers to be replaced by more considered legislation. It wants further consideration of the scope of the proposed legislation, as some professional bodies that undertake financial transactions appear to have been excluded. That is my understanding of the legislation as well, and it is a legitimate question for the banks to ask. I can see why professional bodies that carry out financial transactions on behalf of their members may be excluded, but I can equally imagine why the banks, for which such transactions are their central activity, will feel somewhat hard done by if they are required to fulfil obligations that are not placed on others. At the margins, that might have some effect on the competitive environment.

The final BBA recommendation was that guidance should be produced on scope, likely impact, right of appeal, oversight and legal issues before the new powers are exercisable. I understand that the powers will be exercised the day after the Bill has completed its passage—in all likelihood, within the next week. I hope that, as we speak, teams of the Treasury's best brains are producing guidance and that it is ready to roll. If not, may I suggest that they get on with it quite quickly, because the banks feel that they are to be faced with an entirely new world and do not know how they are supposed to behave in it? I am sure that the Economic Secretary agrees that that would be a somewhat unsatisfactory position.

I have almost never read such an anguished briefing at this stage of a Bill from a significant trade body, which is directly and seriously affected by this measure. The BBA is clearly in some pain because of the Bill and because it has not been properly consulted. I hope that the Economy Secretary can reassure the House and, perhaps more important, the BBA, that the body will become part of the process.

The underlying point on which I would like the Economic Secretary to reflect is that, although we support the intention behind the amendments and hope that the measures turn out to be practical when they are implemented, it is important that the Treasury does not impose unnecessary burdens on businesses in the current climate. The aim must be to avoid a disproportionate operational impact on business and to ensure that the new powers are interpreted and applied so that they provide the protections that we all want against terrorist financing but do not either make business more difficult to conduct in London or, to take it to extremes, drive business away from London, which would be bad for the economy and for fighting terrorist financing. People might be driven to jurisdictions that are less conscientious about trying to clamp down on such financing.

Although we support the general thrust of the amendments, the Economic Secretary has much on which to reflect and much to do to reassure those who will be directly affected by the regulations that they will not do great harm along with the good, which we all support.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice 6:00 pm, 19th November 2008

I shall try to be brief because many of my concerns closely mirror those of Damian Green. We are passing significant legislation, which includes new criminal offences, in the most extraordinary way that I can remember in this place—not that my experience here goes back very far. However, when we dealt with financial legislation in the European Parliament, I was pleased to have Treasury support for European Parliament amendments that introduced sunset clauses precisely because we were concerned about the implications of different financial regulations and we wanted to build a firm framework in which they would be reviewed. A four-year sunset clause is built into most European financial regulations for that reason. I am sympathetic to the British Bankers Association's view that a sunset clause is appropriate.

Given that significant powers have been introduced in amendments in the Lords at a late stage, which have not been scrutinised in Committee here or even undergone careful scrutiny in another place, we are taking on trust from the Treasury basic aspects of legislation and the need for significant Executive powers. Liberal Democrat Members are reluctant to entertain that. We had taken the view, as we did in the Lords, that we would be as supportive as we could, but I reinforce the request of the hon. Member for Ashford for Treasury reassurance.

The amendments do not even provide for an impact assessment, which is meant to be a clear requirement for new regulations according to Government policy, as is the case with European legislation. There is no sunset clause. It would be useful to have an assurance from the Economic Secretary on the record that a formal review will be conducted, perhaps with a report placed in the Library, so that we can ascertain the practical application of the new provisions.

I find it worrying, too, that the people who are expected to apply the new regulations—in other words, the financial sector—have not had the benefit of clear guidance, even on something as fundamental as the right of appeal. That is not the sort of procedure that one would normally expect in legislation that has the effect of introducing new criminal offences. I had occasion to scrutinise a Finance Bill on its progress through the House a couple of years ago, and I know that the Treasury plays fairly fast and loose on amendments to the Finance Bill. However, we are not talking about tax; we are talking about possibly depriving people of their liberty. The Treasury needs to be cautious about applying the light approach that we have seen it take towards tax legislation to something that serious.

Although we shall support the proposal, albeit with a heavy heart, as we did in the Lords, I very much hope that the Minister can provide us with reassurances on the impact and on review and repeal, if not through a formal sunset clause—if the Treasury accepts the principle of sunset clauses on EU financial legislation, it should surely be prepared to accept one in this case. I hope, too, that he can give a firm commitment to provide guidance as quickly as possible on such key matters as scope and the right of appeal to those institutions that will be affected.

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Photo of Ian Pearson Ian Pearson Parliamentary Under-Secretary (Economic and Business), Department for Business, Enterprise & Regulatory Reform, Economic Secretary (Economic and Business), HM Treasury

Let me respond briefly to the concerns that the hon. Members for Ashford (Damian Green) and for Eastleigh (Chris Huhne) have raised. I explained the need for the legislation in my opening remarks and do not wish to reiterate that. However, I should point out that, as I explained, the fact that the Financial Action Task Force did not specifically invoke the countermeasures meant that the UK could not exercise its powers under the Money Laundering Regulations 2007. I simply make the point that those regulations are already on the statute book. The British Bankers Association and others are aware of them and how they are implemented on an ongoing basis.

The Government recognise—and apologise for—the fact that the procedure has not been ideal and that there has been less time than we would have liked for consultation. However, we made significant efforts to consult relevant bodies before the amendments were tabled and some improvements were made to the provisions as a result. We were keen to consult the industry and have been working with the BBA. I can give the House the commitment that we will continue to work with the BBA on the detail of implementing the legislation, as well as with the joint money laundering steering group, which is a group of industry systems and compliance experts. We have also consulted all 28 of our current money laundering supervisors, which includes the FSA, the Office of Fair Trading and a range of professional bodies, such as the Institute of Chartered Accountants in England and Wales and the Law Society. The Serious Organised Crime Agency has also been consulted. As the powers are UK-wide, we have also consulted relevant bodies in Scotland and Northern Ireland.

The hon. Member for Ashford mentioned Landsbanki. We did not use anti-terrorism provisions when we took the actions that we did with regard to Iceland; rather, we proceeded on the grounds of economic security. The Anti-terrorism, Crime and Security Act 2001 goes much further than terrorism, as I think the House is now aware.

Let me give the hon. Member for Ashford and the House the reassurance that there is no intention to duplicate or cut across existing SOCA procedures. We are certainly reassuring the industry of that and we are working with SOCA to ensure that it remains the case. Banks are already obliged to screen transactions for money laundering and financial sanctions imposed by the UN, the EU or the UK. The same systems and staff can be used to implement a direction to limit or cease business, minimising additional costs to any future organisations. We will, as I said, work closely with the industry on detailed issues of implementation, which is only right and proper.

I welcome the support of the hon. Member for Ashford and that of the hon. Member for Eastleigh, even though it is perhaps grudging in the latter's case. This legislation is important and I accept that the procedure has not been ideal, but we will continue to work with the industry on any decisions or directions to be taken in the future.

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Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice 6:15 pm, 19th November 2008

I detect that the Minister is about to wind up, but he did not reply to my specific point. I asked him whether, given the rushed nature of the legislation, he would undertake to produce a report on its operation after a year and to place it in the Library.

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Photo of Ian Pearson Ian Pearson Parliamentary Under-Secretary (Economic and Business), Department for Business, Enterprise & Regulatory Reform, Economic Secretary (Economic and Business), HM Treasury

There are provisions in the amendments for an annual report in any event. The hon. Gentleman also asked about a sunset clause, but it is not possible or appropriate at this stage to introduce such a clause. We have clearly said, as I emphasised in my introductory remarks, that directions will last for a year. They can be revoked within a year, if appropriate, but they will then lapse. In that sense, they will be sunsetted after a year and renewed only if deemed appropriate.

I have tried to assure hon. Members that, where there are concerns about implementation, we are continuing to work with the industry. I have tried to explain that, as far as possible, we will use the existing standard procedures with which the industry is familiar. With those final comments, I hope that the House will accept the amendments.

Lords amendment No. 82 agreed to [Special Entry].

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Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I believe, Mr. Deputy Speaker, that we have agreement to move these amendments formally as the government agree with all—

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order.

Lords amendment No s . 113 and 127 agreed to [Special Entry].

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