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Before we begin, I have a few announcements. Members may, if they wish, remove their jackets during Committee meetings. I emphasise at the outset that in today’s proceedings and those on Thursday—that is to say during the passage of the resolutions with which we are about to deal and then in the public evidence sessions—members of the Committee should remain seated. When we get to clause by clause, line by line consideration, members will conduct themselves as they usually operate in the Chamber, standing when speaking. Please ensure that all mobile phones, pagers, etc. are turned off or are switched to silent mode during Committee meetings. In addition, I remind the Committee that there are money and Ways and Means resolutions in connection with this Bill, of which copies are available in the room. I would also like to remind members that adequate notice should be given of amendments. As a general rule, I and my fellow Chairman Mr. O’Hara do not intend to call starred amendments.
The process of taking oral evidence in Public Bill Committees is of course new, and it might therefore help if I briefly explained what is proposed, so that it can be clear to us all. The Committee will first be asked to consider the programme motion on the amendment paper, for which debate is limited to half an hour. We will then proceed to a motion to report written evidence, and then a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions, which I hope we can take formally. Assuming that the second of those motions has been agreed to, the Committee will move into private session. Once the Committee has deliberated, the witnesses and members of the public will be invited back into the room and our oral evidence session will commence. If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday and then revert to the more familiar proceedings of clause by clause scrutiny next week. Before I call the Minister to move the programme motion, I inform the Committee that I have selected amendment (a) to the motion, which stands on the paper in the name of Mr. Dominic Grieve. I first call Tony McNulty to move the motion.
On a point of order, Mr. Bercow. I welcome you to the Chair of the Committee. You will recall that in the programming sub-committee yesterday—[ Interruption. ]
You will recall, Mr. Bercow, that in the programming sub-committee, when we were discussing the witnesses who might potentially give oral evidence, we looked at the possibility of inviting the Information Commissioner to give evidence. Despite the fact that both sides of the Committee seemed to feel that it would be a useful exercise to have evidence from the Information Commissioner, we were told that he was not available, either today or on Thursday. Is there any means—formally or informally—by which the Committee could invite the Information Commissioner to give written evidence? That would be extremely helpful.
I am grateful to the hon. Gentleman for his point of order. The short answer is that it can be done informally. There is no formal mechanism by which to invite the Information Commissioner—or any other potential witness—to submit written evidence where that evidence is not already extant. In other words, formally to request new material in written form is not in the Committee’s power. However, I have heard the hon. Gentleman’s point of order and will ensure that it is relayed to the Information Commissioner. I now call Mr. Tony McNulty to move the motion.
I beg to move,
(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 22nd April) meet—
(a) at 4.00 p.m. on Tuesday 22nd April;
(b) at 9.00 a.m. and 1.00 p.m. on Thursday 24th April;
(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 29th April;
(d) at 10.30 a.m. and 4.00 p.m. on Tuesday 6th May;
(e) at 9.00 a.m. and 1.00 p.m. on Thursday 8th May;
(f) at 10.30 a.m. and 4.00 p.m. on Tuesday 13th May;
(g) at 9.00 a.m. and 1.00 p.m. on Thursday 15th May;
(2) the Committee shall hear oral evidence in accordance with the following Table:
Tuesday 22nd April
Until no later than 12.00 noon
Association of Chief Police Officers; Sir Ian Blair, Commissioner of Police of the Metropolis
Until no later than 1.00 p.m.
Tuesday 22nd April
Until no later than 4.50 p.m.
The Director of Public Prosecutions; Crown Prosecution Service
Until no later than 5.40 p.m.
The Rt Hon Lord Goldsmith QC
Until no later than 6.30 p.m.
Until no later than 7.00 p.m.
The Rt Hon Elish Angiolini QC WS, Lord Advocate Scotland
Thursday 24th April
Until no later than 10.25 a.m.
Thursday 24th April
Until no later than 1.45 p.m.
Lord Carlile of Berriew QC
Until no later than 2.30 p.m.
Coroners’ Society of England and Wales
Until no later than 4.30 p.m.
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 22; Schedule 1; Clauses 23 to 31; Schedule 2; Clauses 32 to 37; Schedule 3; Clauses 38 and 39; Clause 45; Clauses 40 to 44; Clauses 46 to 55; Schedules 4 and 5; Clauses 56 to 89; Schedule 6; Clauses 90 to 92; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 15th May.
I, like Mr. Heath, look forward to the Committee’s proceedings under your august chairmanship, Mr. Bercow. Hopefully, our deliberations will be dealt with in good spirit and temper, although we will be dealing with some very sensitive and contentious matters. I am happy that Mr. O’Hara will be your confrère. Although these rooms are wonderful, I am an old-fashioned sort and I hope that we will be duly dispatched back to a rickety old Committee Room in the House of Commons where I can do very strange things such as stand when I move a motion, especially now that we are in spring rather than winter. I welcome everyone to the Committee and hope that our deliberations, although at times serious, are done in a fair and temperate fashion.
The programme motion before us follows two sets of deliberations by the Programming Sub-Committee. What is before us represents the practicable outcome of a range of suggestions from both sides during those deliberations. The set of witnesses to be called is balanced and for the most part it is an entirely relevant set of individuals, some of whom represent organisations, who will bring timely experience to the debate. With all due humility, I include myself and my officials in that as we will be witnesses in the last session.
In terms of what Mr. Heath has just said, I made it very clear at the Programming Sub-Committee that, if required, I would be happy for all parties to write to the invitees who, for whatever reason, are unable to come before us, asking them to submit written evidence. I am grateful for what you said, Mr. Bercow. As Mr. Heath quite rightly said, we sought the Information Commissioner and the intercept commissioner. I think that Lord Stevens is unable to attend, even though he is erroneously published in today’s Hansard as attending. If the Chairman’s request does not elicit such information, I would be quite happy for all parties to write to the Information Commissioner and others who have been invited, albeit on an informal basis. We have a measured, balanced and interesting list of witnesses and I have no doubt that they will produce four lively sittings. They are all relevant and germane to the issues. I do not accept the amendment and propose that the Committee accepts the programming motion so that we can get on with the fun.
I echo the Minister’s welcome conservative remarks about the need to move back to a rickety old Committee Room next week, which would be preferable to this room for the legislative stage of our work. I formally welcome you to your position, Mr. Bercow. The amendment stands in the name of my hon. and recently learned Friend the Member for Beaconsfield. I agree with the Minister about the need to conduct these proceedings in a calm manner, given the serious nature of the issues that they will address.
I welcome in particular to the Committee the hon. Members for Nottingham, East, for Stockton, South and for Sedgefield, who made contributions on Second Reading. I am slightly surprised that the eight hon. Members who take the Labour Whip and who spoke on Second Reading in a manner that might be described as hostile to elements of the Bill have somehow or other avoided selection for the Committee. The Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Tynemouth may be able to throw some light on that.
Order. The Committee will proceed in an orderly fashion. The remarks that the hon. Member for Reigate has just made have absolutely nothing whatsoever to do with our proceedings. The selection of hon. Members for Public Bill Committees is not a matter for him. If he wants to move the amendment, he should continue to do so.
Order. I know very well the point that the hon. Gentleman is making. It is not a matter for debate. I have told him that it is not proper for him to be making that point. If the hon. Gentleman wishes to move his amendment, he is absolutely welcome to do so. This is his opportunity. However, I must repeat to the hon. Gentleman, and I do not want to have to keep doing this, that I am not engaged in a debate with him. I am telling him what is orderly and what is not. What he has just been saying is not orderly and I invite him to get back into order.
I am grateful. On a point of order, Mr. Bercow. At what point would it be appropriate to raise these matter in the proceedings of a Bill Committee? I would regard it as being at the beginning. When the proceedings of the Committee of Selection are not reportable, and a Bill Committee is produced by a Committee of Selection that would appear not to reflect the views of the House, at what point is it in order to raise those matters?
The answer is very simple. The selection of members for the Committee is not a matter for consideration by members of this Committee at any stage in its proceedings. I would advise the hon. Gentleman, if he is concerned about the matter, to take it up through the usual channels.
Thank you, Mr. Bercow. As a member of the usual channels, you can be sure that we already have taken it up. However, I have now put the matter on the record, which is all that I was seeking to do. I was not seeking to challenge the decision of the Committee of Selection.
The amendment goes to an important principle about the conduct of Public Bill Committees. I know that the House is at an early historical stage in dealing with Public Bill Committees. This is the second Committee on which I have sat that takes evidence at the beginning of its proceedings.
There is an important issue, first, about the opportunity to hear witnesses whose points of view might be uncongenial to those held by the Committee and particularly to the majority on the Committee. There is also an important point of principle about Back Benchers.
The suggestion that Dame Stella Rimington be a witness came to me from my hon. Friend the Member for Lancaster and Wyre as soon as he was notified that he had been selected to serve on the Committee. By that point, the usual channels had, in the normal way, had more than one discussion about which witnesses might be appropriate to assist our proceedings. I thought that the suggestion from my hon. Friend was excellent. However, I proposed that he make the suggestion, as a Back-Bench member of the Committee, through the usual channels—the Clerk of the Committee—so that the witness could be regarded as not having been produced in collusion by the usual channels and the Front Benches.
It is important that Back Benchers should have witnesses whom they wish to see. However, although the suggestion had my strong support and that of my hon. and learned Friend, we received a response from the Cabinet Office to the effect that the matter had to be dealt with through the usual channels. I thought that that was inappropriate and that the system ought to allow for the suggestion of witnesses from Back-Bench members of the Committee, and should not rely on the fact that my hon. Friend has a particularly good relationship with his usual channels. That should not be a requirement for the endorsement of that suggestion. However, that was the first response. It was then taken up through the usual channels, and, to my surprise, no inquiry has been made of Dame Stella’s availability to attend. The motion put forward by the Government yesterday at the Programming Sub-Committee did not include Dame Stella Rimington.
I am afraid that I am ignorant of any relationship between Dame Stella Rimington and the Conservative party. Other hon. Members might be able to assist on that, but I am not aware of any relationship. Dame Stella finished being the head of MI5 in 1996, which was 12 years ago, but she could have given—or can give, if the Committee agrees to the amendment—important evidence on the climate in which anti-terrorist operations are conducted. She had long experience in that post and to a degree is freed from the immediate considerations. Obviously, it would be inappropriate to take public evidence from the serving head of MI5.
Dame Stella would be an expert witness on the wider consequences of some of the legislative framework, particularly the increase from 28 days to 42 days for detention without charge. She has particular experience relating to Northern Ireland as well as in dealing with the emerging threat from Islamic terrorism in the 1990s. She has an impeccable professional reputation and would make a fine witness if the Committee were inclined to agree to the amendment. I am as much concerned about the process as I am about her qualities as a witness, which are exemplary, so I regret that the Government and the Cabinet Office have not seen fit to establish her availability. I think that we should request her to attend by putting her name on the Order Paper.
With regard to how I intend to deal with these matters, I am happy to facilitate a general debate now on the merits or demerits of the amendment and on the Government’s main motion, but it is important to stress that we have to dispose of all of the motions—there are a number of motions to dispose of—no later than two minutes past 11. That is procedurally required, and I am sure that members of the Committee will agree that it is important not to lose time for questioning our various witnesses. Five members are seeking to catch my eye, which is absolutely fine, but it would be much appreciated if colleagues could bear that in mind.
Welcome to the Chair, Mr. Bercow. I will take your strictures for brevity extremely seriously and just want to make three points. While it would be inappropriate to get into a debate about the credentials of Dame Stella Rimington and the evidence that she might give us, the hon. Member for Reigate should be aware that the Home Affairs Committee has just concluded a lengthy inquiry in which we took an immense amount of evidence from expert witnesses. At no point did any Conservative member of that Committee seek to have Dame Stella Rimington called to give up-to-date evidence. The hon. Gentleman should bear that in mind, because he is out of line with the views of his own colleagues on the Home Affairs Committee.
My final point—it is probably worth putting on the record—is that I understand that Dame Stella Rimington is involved in Conservative party policy groups, and that does not in any way exclude her from giving useful evidence. [Interruption.] It is useful to put that on the public record since the hon. Gentleman seems to be completely ignorant of the fact. May I also ask the Minister to make it clear to the Committee when he sums up how much time the House will get to discuss the Bill on Report, because that stage is extremely important for the Bill and it would be useful to clarify that point?
I shall amplify that point. Although it is not under discussion at the moment, it will be critical to have sufficient time to discuss the Bill on Report. My hon. Friend the Member for Carshalton and Wallington cannot be here this morning due to a long-standing constituency engagement, but he sends his apologies and will of course join us later. The Minister of State suggested that the Bill was going to be fun. I know that he had his tongue firmly in his cheek at the time, but these are serious matters—even the areas on which members of the Committee agree, let alone those that are contentious, are extremely serious. The characterisation of the Bill as fun may not hold true, but I hope that we can conduct our affairs in an appropriate way and with respect for each other’s points of view.
I am grateful to the Minister and to the Treasury Bench for having listened to some of our suggestions during the early stages of this process about who should give evidence, particularly the inclusion of Scottish Law Officers to deal with the important issues that relate to the Scottish law system and the way in which that is affected by the legislation. This is an evolving procedure. This is the second Public Bill Committee on which I have sat that has taken evidence and I am not sure that we have all the procedures right at this stage.
There are two matters that I should like to raise today, Mr. Bercow. The first is the matter that I raised on a point of order and I am most grateful for both your response and that of the Minister. Where we have agreed to seek oral evidence and it is not possible simply because the person involved cannot attend our Committee meetings, we should invite that person to provide written evidence as a matter of course. That is common sense and perhaps that could be fed back to the relevant authorities.
My second point is that the evidence sessions for this Committee finish on Thursday evening. The deliberative sessions start on Tuesday morning. Under the rules of the House with the three-day requirement for amendments, any matter that arises out of the evidence that we receive on Thursday afternoon cannot be incorporated in an amendment for the first sitting on Tuesday morning. I do not suggest that anything will necessarily emerge, but it seems to be a flaw in the procedures and the Chair would perhaps need to apply some discretion in allowing a starred amendment were that to happen.
It is obvious why we are not receiving evidence from the secret intelligence community this morning or on Thursday, but having someone from that community to give evidence would be a sensible move, even if it is someone whose experience is not as up to date as perhaps we would wish. Therefore I will support the amendment today. Again this demonstrates the need for perhaps more clarity in our procedures to ensure that where a significant part of a Committee wants to receive evidence from a particular witness they have the opportunity to do so.
I will sympathetically consider the hon. Gentleman’s request for the exercise of discretion. Beyond that I will report back his remarks to what he called the relevant authorities, in this case the Chairmen’s Panel.
I welcome you to the Chair, Mr. Bercow. I rise briefly to support the amendment and to pick up some of the comments of my fellow member of the Home Affairs Committee, the hon. Member for Reading, West. In view of the evidence that we have taken on that Committee, our not asking for Dame Stella Rimington to come forward was probably a mistake. The hon. Gentleman makes a very good point. I think he is mistaken about her involvement in Conservative party policy, but I stand to be corrected on that.
The great value that Dame Stella Rimington will add is this. It became clear in our deliberations in the Home Affairs Committee that, particularly on the issue of detention without charge and the evolution from a state of internment during the Northern Ireland troubles through to how that was manipulated and manoeuvred towards the so-called end of the Northern Ireland troubles and then into the emerging threat from Islamist fundamentalism, she has a unique view on these two varied, but similar, campaigns. I believe that she could give an unparalleled and very useful insight into these matters.
I welcome you to the Chair, Mr. Bercow. I want to add only a couple of points about procedure because a serious issue is raised here. Clearly there may be differences of opinion as to whether Dame Stella Rimington is a sensible person for this Committee to listen to. But the point has been well made that, for obvious reasons, we do not have access to the heads of the security services. Therefore, individuals who have served in the Security Service and the Secret Intelligence Service in the past are likely to be extremely helpful to the Committee and to be able to give evidence in a way that those who are currently serving are not.
The second point, which I raised last night and which troubles me far more, is that it appears that the Committee and, indeed, the Commons generally are toothless in this process. We rely on the usual channels to communicate a wish, and it is then actioned by the Government to see whether the person concerned can be brought before the Committee. It appeared that the request had simply not been processed because the Minister had taken the view that Dame Stella Rimington was not worth listening to. Therefore, we were not even in a position to know whether she was available. I find that situation deplorable. It highlights areas where the House of Commons is deficient in its processes. I hope that that will be communicated back. I may have misunderstood the position, but I was left with the distinct impression that a veto had been applied at an earlier stage by the Minister, on the basis that it was his prerogative to do so, so that we did not even know whether she could come or not.
I do believe that it may be helpful for us to hear from Dame Stella. She may have less to say that would be helpful to us than we would hope, but her name was put forward in good faith as someone whom we think could probably help the Committee. I commend the motion and amendment to the Committee.
Before I call Ben Wallace, in case people are not watching the clock, I emphasise that we now have a maximum of only six minutes. We have to dispose of the motions, and I also want to say, for the benefit of the Committee, a few sentences about how I intend to conduct the public evidence sessions.
I welcome you to the Chair, Mr. Bercow. At the outset, in response to the point made by the hon. Member for Reading, West, I would like to clarify the fact that I think that he is confusing two dames. Former Dame Pauline Neville-Jones has been involved with the Conservative party. She is now Baroness Neville-Jones of Hutton Roof and is a member of the shadow Cabinet. I am sure that it is not the first time that he has mixed up the dames.
The reason that I made the suggestion to my hon. Friend the Member for Reigate was because the balance of the witnesses was focused on the protection of human rights and the judicial body, as opposed to the operational aspect. I concede that the first witness today relates to the operational implication of the law. However, it is clear to some of us on the Opposition Benches who have operational experience in counter-terrorism that bad law affects not only rights, but the business of intelligence gathering.
Dame Stella Rimington has expert knowledge of intelligence gathering and, to my knowledge, no link to any political party. She was a first rate director general of the Security Services who, as my hon. Friend the Member for Newark pointed out, knows the bridge from one type of terrorism to the other, and could properly contribute to the process of the Committee. If we get part of the Bill wrong, it may have an impact on the ability to recruit sources and run informers, which is at the heart of the operational side of counter-terrorism. I think that she would have contributed greatly, and I hope that the Committee will take advantage of experience that is out there, rather than shut down any debate.
I do not have time to do anything other than to move the main motion and to say that I have not learnt anything to suggest other than that the Committee should resist the amendment.
Good morning, and thank you for coming in. Can I deal first with pre-charge detention? It has been suggested to us that the Association of Chief Police Officers has a collective view about pre-charge detention. One of the problems is that if one looks at the ACPO website it is impossible to see who serves on the ACPO terrorism and allied matters committee. No such information is provided. It is difficult to know how ACPO comes to its collective decisions. Could you help the Committee by indicating how that has happened, who is on the ACPO-TAM committee, and whether an expressed viewpoint is a collective viewpoint, a majority viewpoint, a unanimous viewpoint or the viewpoint of certain individuals?
Sir Ian Blair: In that case, I think that I have exactly the right witness for you, because Bob Quick, in addition to being assistant commissioner in the Metropolitan police, is chairman of the ACPO-TAM committee, although it is bit hard on him to ask him to rattle through the names, because he has only been in that position for six weeks.
Bob Quick: The TAM committee is very large. I think that it has a membership of over 70 people from various organisations, but including of course many chief police officers. To answer your question, those issues are indeed discussed in detail at the TAM committee, but in terms of forming a collective position among the chief constables of England and Wales, TAM merely makes recommendations to what we call ACPO cabinet and then to council—council being the most authoritative body within ACPO. This argument and debate has been reflected in a number of documents, which were refined into a position agreed by ACPO council in 2007, which reflects in detail the terms of a letter that has been sent, I believe, to the Committee by Ken Jones, the president of ACPO. You will see that the names of the chief constables of the forces that are foremost in the fight against terrorism—Greater Manchester, West Yorkshire and West Midlands—are on that letter, and of course the Metropolitan police is also a signatory.
May I then to turn to the main issue around extending pre-charge detention from 28 to 42 days? The Home Affairs Committee has received evidence from the Director of Public Prosecutions that it has been managing comfortably with an outer limit of 28 days’ detention. How does that affect your perception of the need for an extension?
Sir Ian Blair: Our position is unchanged since Peter Clarke and I gave evidence to the Home Affairs Committee. We have never put forward a case that there is evidence of a need for an extension of the length of pre-charge detention. What we have said repeatedly is that, given the circumstances that the UK has faced over the last few years, the growth in the number of plots, the number of conspirators in each plot and the magnitude of their ambition, a pragmatic inference can be drawn that sooner or later we are going to need more than 28 days. That is particularly affected by the different criminal investigation and criminal justice processes of the United Kingdom. We are not the same as the United States. We are not the same as France, Germany, Spain and Italy. We are in a place in which a great deal of responsibility is placed on police investigators rather than prosecutors. Although I respect the views of the DPP and the Attorney-General, it is appropriate for the professionals, who are charged with the actual investigation before the lawyers make their decision, to put forward a viewpoint. That is what ACPO has done.
Is not the position that, as matters stand, the Crown Prosecution Service is closely involved in any prosecution decisions as to when charges are brought and, indeed, is involved at quite an early stage? If, historically, it has not seen that as a problem in terms of prosecuting the most difficult and serious terrorist offences, why is there this divergence of views with yourselves?
Sir Ian Blair: It comes to the same point. We are the people who have to investigate. We know the difficulties of investigation. We do not produce the material for the Crown prosecutors until we have actually got it. Both Bob and I could refer to a number of circumstances where it takes time to produce that material. Once the material is there, then of course the prosecutors are in a position to deal with it.
May I turn briefly to time periods? One of the issues which has been raised during the course of discussion is that there have been occasions when the 28-day limit has come close to being reached. I do not know whether you can help us on this—I am deliberately trying to be a bit careful and am speaking in generalities because I am conscious that there are matters which may well be sub judice at the moment. One of the problems that I have had is that on the two examples that appeared to be given of going to 28 days, I was able to obtain information quite readily from others involved that, although it might have gone to 28 days, the evidence on which the decision to charge was made had in fact been available quite substantially earlier. Could you make any comment on that?
Bob Quick: I am aware of some of the detail of those cases. The decision to charge is a decision for the CPS, and it must be satisfied that a point in time has been reached and that the evidence to justify a prosecution is sufficient. It must be reasonably certain that a prosecution will succeed. It is largely a decision for the CPS about when that sufficiency of evidence has been reached. I know that in the cases to which you refer it was not satisfied until the very last moment, and the difference between charging and not charging was quite marginal.
With the agreement of the Committee, I would like to take further questions on the subject that Dominic Grieve has opened up, namely pre-charge detention without trial, so that we can deal with the subject in one block, rather than continually coming back to it with other subjects in the interim. Therefore, other Members who wish to raise questions on that point are welcome to do so.
I am grateful to the witnesses for what they have to say. Sir Ian, you said that there was a pragmatic inference. Would you expand on that a little and explain the circumstances in which you believe that the present 28-day limit would need to be breached?
Sir Ian Blair: Yes. I have to be careful here, because I do not want to give a road map of what we would find particularly difficult to those who might want to attack the United Kingdom. If one looks at the series of factors that affect the difficulty of investigation, one will see that there could be multiple sites or multiple plots. You could have a sequence of plots, with things happening at different times and different attack methodologies. You could have some of the attacks taking place in the United Kingdom and some elsewhere. If all those things are combined together, our view is that that is when we might reach the stage that 28 days was not enough.
Our concern over that has been prompted particularly by what is very properly happening now, which is a discussion in the calm—we have always sought to avoid that discussion happening after an atrocity. That remains our concern because, unlike the United States, we do not have facilities for using intercept as evidence or plea bargaining. We do not have investigative detention authorised by prosecutors, as is the case in the jurisdictions of France, Spain and Italy, so the police service is the key element in determining whether evidence is gathered.
Under the Bill, the trigger for a parliamentary decision on extension would take place not in the circumstances of calm, but effectively in the circumstances of emergency. We have spent a lot of time over the last few years quite properly looking at those matters and trying to provide appropriate legislative weapons to the police and prosecuting services, and we have made a number of changes. What is your assessment of what we have done so far? For instance, how effective have the lower order offences that were introduced been in enabling you to prosecute someone at an earlier stage?
Sir Ian Blair: The lower order offences have been extremely useful and have populated the legislative landscape with things that can be done at an earlier stage. Part of the problem is that the way in which individuals and groups move from what appears to be facilitation or terrorist financing into active attack is very fast. It is not right to say that those people can just be picked off at a lower level of offence. There are people who suddenly emerge from left field, about whom we know very little but about whom we become immensely concerned.
Bob Quick: I would reiterate those remarks about the usefulness of some of the more recent legislation. I feel that the new provisions have been welcomed universally by the investigative community. For example, section 5 and the ability to charge with preparatory attacks, which has overcome some of the limitations of the old conspiracy legislation, have been used to great effect and have enabled us to intercept people earlier. The volatility and the international nature of the threat leave us to conclude that on stepping back and looking at the events of the last five, seven or 10 years, one can identify trends in terms of complexity, the number of jurisdictions involved, and the breadth and depth of networks and their very diffuse nature. Each jurisdiction constrains investigative activity in different ways.
As has been said, in some of our investigations the pre-charge detention period has come under some pressure. After the 14-day limit was set, it came under pressure in 2004 when we used the full provisions of the 14 days. In 2006, we detained people for 27 days before charge.
The point that I am attempting to elucidate is that we have the acts preparatory, which I hoped would be a useful addition to your armoury. I think that you have confirmed that it is. We have the lowering of the threshold for an evidential basis for prosecution, which again ought to be extremely helpful. Given that those weapons are available to prosecute somebody who is held on a lower order offence before the court, under what circumstances would there not be sufficient evidence to proceed to prosecution of such people—on acts preparatory, or one of the other offences available—so that they would have to be held for longer than 28 days?
One of the arguments has always been about encryption, but there is a prosecutable offence of refusing to provide a key to encryption. I do not understand the argument for the measure, and I ask for your advice on why those things are not sufficient to enable somebody to be held in custody, facing a charge which might not be the most serious charge that they will face after continued investigations, but which is sufficient to hold them in custody.
Sir Ian Blair: Let me start with a general view and I will ask Bob to fill it in. I cannot be specific, but a number of cases already have or will eventually come to trial where, because of the level of the threat that we perceive, we make arrests when almost no evidential material is available. We have lots of intelligence, but nothing that can be put into evidence. We start from a position where we are very concerned about what such people appear to be attempting to do, but we are not quite sure what that is. Those arrests have led to some of the most serious charges that we have had. We sometimes face a position where we do not have the acts preparatory. We just have to go in and find what is on those computers and in those houses and what the contacts are.
On lower order offences, while under serious charges of terrorism the courts would remand people in custody, there is no prospect that defendants facing a maximum penalty of two years—as with the encryption key offence—will be remanded in custody.
Bob Quick: I can think of examples where preparatory acts may not come into play. To answer the first point, yes, in some cases, we will have sufficient intelligence coverage and the run-in to the inquiry will reveal evidence of preparatory acts or other lower order offences against which we can act. We will always act where we can to take out the threat at the earliest opportunity.
In recent years, we have witnessed a much more volatile picture where suspects who are of interest or concern to us are not engaging in much activity. They will then go abroad where the intelligence coverage might not be as reliable or satisfactory as in the United Kingdom, receive their taskings, come back to the UK and immediately engage in attack-planning activity. In some investigations, we have seen that materialise so quickly that on public safety grounds we have had to act pre-emptively before we have had the opportunity to exploit pre-arrest evidential opportunities. That places a huge burden on the senior investigating officer.
To follow up a question that was put earlier about the CPS and the DPP’s remarks, some of the stresses and pressures on the senior investigating officer and the investigative team operating in those circumstances are not necessarily entirely visible to the CPS and the prosecution team. There are practicalities whereby officers are having to travel around the world against extremely tight deadlines, working with high-tech teams to try to elicit evidence and break encryption codes, and many other human pressures on people to deliver the evidence within constraints.
Thank you, Mr. Quick. I have a list of nine members of the Committee seeking to come in specifically on the subject of pre-charge detention without trial. For the avoidance of doubt, let me say that I am happy to take all those questions. It would be a pity if other matters in the Bill were not raised at all, unless that was the specific will of the Committee. However, I would not want hon. Members subsequently to complain that they did not have the opportunity to raise other germane matters. Therefore, I will take everyone’s questions, but I appeal to colleagues to exercise a certain self-denying ordinance—I want pithy questions, and, of course, both pithy and comprehensive replies from our august witnesses.
Once again, Mr. Bercow, I will obey your strictures, but it is probably helpful if you ask us to be pithy in a pithy manner—that is me done, now.
I have three quick questions for Sir Ian Blair and Mr. Quick. I know that you put some of this evidence in front of the Select Committee on Home Affairs a few months ago, but, for the benefit of the Committee, could you indicate how many serious terrorist plots the police and the security services have disrupted since the London bombings of 7/7?
Bob Quick: I am still being briefed on the very complex history to fighting terrorism, but my understanding is in the order of about 15 occasions. On some very recent occasions we have been able to disrupt terrorism by some sophisticated and unusual methods. That is what we do. We are constantly seeking opportunities to disrupt. That is part of a multi-pronged attack on terrorist activity.
Without compromising, allowing me to pry or giving aid to people who would wish to do us harm, could you indicate to the Committee how many of those 12 to 15 serious plots would, had they been successful, have resulted in a loss of life in excess of 100?
Could you follow up from that and give the Committee some indication of the complexity of terrorist plots compared with 10 or 12 years ago, and the sheer volume of evidence that you now have to shift before you can move to charging a terrorist suspect?
Sir Ian Blair: I will divide that in half and let Bob deal with the level of evidence, because we have quite a lot of that.
There is an interesting and pertinent comparison to make with our struggles against Irish republican terrorism. Without in any way diminishing the murderous intent of the IRA and some of the loyalists, there were three categories of difference. First, they almost invariably gave warnings. Secondly, they did not want to die. Thirdly, they did not want to cause mass casualties, with one or two exceptions. I suppose that you could add a fourth category, which was that they were heavily penetrated by British intelligence. There are obviously exceptions to all those events, but that is the general pattern. That is not the case with the threat that we currently face.
Bob Quick: To add to that from a practical viewpoint, if you go back perhaps 15 years to the latter part of the Provisional IRA campaign, you might have been dealing essentially with relatively few suspects and perhaps relatively few mobile phones—in fact mobile phones were only just coming on to the market in the mid-90s. Occasional you would encounter computers, but not often.
Now we are dealing with very loose networks of people, but with mass communication on the internet and mobile telephony around the globe. I am aware of cases where up to a dozen different jurisdictions have been involved around the world, all with different demands in terms of being able to elicit evidence. There are massive amounts of data on devices such as laptops and flash drives, on very small devices that could be secreted in a house and which might take an enormous amount of effort to find. Indeed, through very painstaking methods we have found evidence of a critical nature on a tiny device, which has in effect broken the whole case open. So we have legions of people having to service that demand during an inquiry.
You just said that one of the problems is opening up evidence that might be on computers, mobile phones and so on. While I understand that, surely it would also apply to other forms of organised crime, such as people trafficking, child pornography and large-scale drug dealing? Those all involve international organisations using mobile phones and IT equipment. What is the difference? If the 42-day legislation is passed, surely in principle there would be no reason why you would not support an extension for other forms of crime, which can have just as awful an impact on the victims?
Sir Ian Blair: I will go back, if I can, to the fact that with these particular individuals, the perceived threat is so awful that we arrive at their premises right at the beginning of an investigation. With a lot of organised criminality you will have a great deal of evidence before you make the arrests—enough to charge in a number of cases—and the breaking of the encryption comes later. There is also something about the groups that we have met so far that makes them interested in IT. That is something quite remarkable. I had a bit of an interchange of correspondence with the other David Davis about some evidence that I gave before the Home Affairs Committee about a case—Tsouli and others, which has just finished—in which a million separate files had to be opened. The individuals do things such as breaking up an ordinary commercial film and inserting something into it. So the whole film has to be watched. That is the situation that we face.
I have just a few points. First, there is the inference—and it has been hinted at already today—that the more time the police get, the lazier they get and the more they mess around and go to full term. It has been said clearly by the other David Davis—the shadow Home Secretary—and implied again today, that the evidence in the alleged plot that is before the courts was secured at 14 to 18 days and that the police faffed around for a further 10 days to get to 27 or 28, because they had the time. Would you comment on that?
Sir Ian Blair: I do not recognise in any way that portrait of what goes on. These are expert investigators. They know the pressures under which they are operating because they know where the next job may come from. I cannot imagine that as being an approach that the Metropolitan police or any other police service would take in these serious circumstances.
Bob Quick: Likewise, I think that the evidence directly contradicts that. If you were to examine terrorism arrests over the last 10 years you would see that the vast majority are dealt with very expeditiously. Charges are either brought early, or people are released, often within 24 hours. I just do not think that that stands up to scrutiny.
Let me ask you an entirely unfair question. Why on earth do you think that people would say that then, if it is so palpably not the case?
I did say that it was a touch unfair. Others have suggested that in the end it is simply a matter of resources and that were there further resources you would not need an extension of any sort, even in the extraordinary circumstances proposed in the Bill.
Sir Ian Blair: I thought that Peter Clarke put this very well to the Home Affairs Committee. This is not a cavalry charge. You can get a very large number of people to do the basic breaking down of the material that you have. That is obvious. You want as many people to do that as possible. But in the end, you will need to have a very small number of inquiring and controlling minds who actually can sift and analyse the information. I am talking of the Crown prosecutors. Resourcing is not the issue. Of course, Minister, if you wish to give me more resources for this purpose I shall be delighted, but that is not the issue in terms of the length of detention. I should also add, just for the completeness of the record, that I am not entirely certain that I recognise the characterisation of the Opposition’s position as being quite as you put it in your last question.
I would probably accept that, given the Opposition’s comments today. Certainly it was as I characterised it in the past and it has been put as cavalierly as that by the shadow Home Secretary. To go back to your earlier point, you said that, notwithstanding what we have already done with acts preparatory and other lower order charges, as they are rather dismissively called; notwithstanding what we have done, as we will hear later this afternoon, about the threshold test; and notwithstanding post-charge questioning—if, heaven forfend, I go to some other part of the Bill—and the Chilcot implementation group’s consideration of intercept as evidence, you are still of the view that there may be exceptional circumstances and that we should legislate on a precautionary basis in the circumstances outlined in the Bill.
Sir Ian Blair: That has been the position of ACPO and the Metropolitan police for some time. If I can, without spreading across to the rest of the Bill, I should mention that we see post-charge questioning as a useful approach. As Peter Clarke said to the Home Affairs Committee, 90 per cent. of the main perpetrators in these cases never reply to questions. The value of post-charge questioning is therefore only that people can have something put to them so that a court can know that they have had the chance to refute it. In terms of the Chilcot review, as you know, we have supported the concept of the evidential intercept, but there remain significant practical barriers between now and when that happens. In the meantime, our position remains that precautionary legislation is the right approach.
We started after the 7/7 bombings with a strident demand for 90 days’ detention. That has now changed. We ended up with 28 days: 56 days has been talked about and we are now on 42 days. Surely, 90 days was what was required by you and other agencies. It is not going to happen. How uncomfortable are you with this constant chopping and changing and these figures that seem to be pulled from nowhere?
Sir Ian Blair: We are uncomfortable with the fact that the debate is around a specific figure, whether it be 90 or 42. We have always asked for the maximum time under the strictest judicial supervision that Parliament is prepared to grant. You know as well as I do the history of this figure and I am not going to go back into it. We have reached a point where we were pushing at 28 days. The Government have suggested 42 days. That is a matter for Parliament. We will abide by its decision.
Sir Ian Blair: As long as it is provided in a transparent way and with the proper level of debate, I think that we can involve the Muslim community in the protective measures that we are putting forward. Each member of the Muslim community is as much at risk of being killed as everyone else in the UK, and we are determined to do everything that we can to encourage community cohesion. The advantage that the UK has is that counter-terrorism activity is not separated from mainstream policing, so chief police officers are responsible for explaining when things go wrong and for working with the community, with regard to not only the “pursue” part of the Contest strategy, but the “prevent” part. While I am conscious of the fact that many individuals inside the Muslim community and elsewhere do not want the extension, I think that we can get a mature debate so that we can at least explain the reasons for it.
Gentlemen, you have both indicated that there have been occasions when you have been pushed tight up against the 28-day limit. On those occasions, has there been a shift in the emphasis of your inquiries or investigations? Had those few extra days been available, might you have taken a different position in your investigation? Did you have to shift emphasis to come within the 28-day period?
Bob Quick: I can only speak in general terms because I was not part of the recent investigations, but a very experienced investigator would constantly refine and review the investigative strategies as the clock ticks, whether that related to a burglar with a 24-hour detention limit that was extendable to 36 hours, or a terrorist arrested for a suspected conspiracy to commit mass murder with a 28-day limit. The important thing to recognise is the limitation on how far you can change your investigative strategy, because the processes of investigation are often linear, as has been alluded to in some of the questions. No matter how many resources are thrown at an investigation, there is not a direct relationship between the resources and the time that it takes to secure and retrieve the evidence in a form in which it could be made available to a court. Of course, that is a very forensic and linear process, and the way in which our laws are constructed and the evidence is presented in prosecution makes it so. Therefore, there are limits to what can be done to change an investigative strategy. That is why, so soon after the introduction of the 28-day limit, we are seeing cases that reveal significant pressures on the investigation.
In response to Mr. Heath’s earlier question, you distinguished between the system here and that in the United States and said that intercept evidence, for example, is available over there. In response to the Minister, you also referred to the potential usefulness of intercept evidence. I realise the implications for available resources and that many hours of surveillance would be necessary to produce anything useful, but given that such operations would last weeks, months and perhaps even longer, would it be useful to proceed fairly quickly with the use of intercept evidence?
Sir Ian Blair: The earlier that we can do it, the better. I have to make it clear, however, that some of the barriers that sit in front of it are other parts of legislation. After talking to the head of the FBI the other day, it became clear to me that their system depends on the Classified Information Procedures Act, which effectively prevents disclosure of how the warrant for interception was granted. That is very different from our public interest immunity position. To get to where we want with intercept as evidence, in a framework of the right to fair trial under the ECHR, which is a different place from other jurisdictions, there is a lot of work to do.
May I briefly add a rider. If that were provided for in the Bill, would your view on 42 days be different?
Sir Ian Blair: I will put it bluntly. I just do not think that it can be done at the moment. If there was a way of saying that intercept could be provided as evidence, I would not particularly change the fact that we would want to maximise our investigative possibilities. But we are not talking in the same place—it is not going to happen in the time scale that we are in. We face the threat today.
Basically, you think that the time to work out this legislation is before an atrocity happens, so that you do not end up with knee-jerk legislation? At the moment, therefore, you are thinking through what needs to be done.
Sir Ian Blair: That is a very political question, which I am not sure that I can answer. We have a professional position that we have been putting forward for the last two or three years, which has the backing of the ACPO council and cabinet. Whichever Government were in power, we would be saying that that is our view.
But you are realistic. You can make a judgment of how far you can go. Do you think that, with a new Government, if you thought that they would go further, you would be asking for more things?
I would like to pursue further the issue of relations with the Muslim community. I have a substantial number of Muslims in my constituency. One of the comments that has been bandied around in the debate is that the proposals are the recruiting sergeant for Muslim extremists. Can you tell me whether you have managed to identify any increase in recruits since the change from 14 to 28 days?
Secondly, have you managed to identify any increasing reluctance of the broader Muslim community to communicate with you as a result of the proposals?
Sir Ian Blair: I will ask Bob for his reflections on that question. I do not think that you can isolate the 14 to 28 to 42 days debate as a single strand in the number of things that concern Muslim and other minority communities. Part of it is the intemperate nature of some of the press coverage of the issues.
In terms of the overall Muslim community, certainly for the Metropolitan police, but I think for all police services, the best way to get engaged with the Muslim community is to offer them a decent, transparent service in which they have a considerable stake. That is what our whole neighbourhood policing approach is about. To my knowledge, and I will await Bob’s view, while the level of information coming from the community was originally not very strong, we have had some interesting developments over recent times.
Bob Quick: It is impossible to draw any firm conclusions. You will have heard from the director general of the Security Service that we have seen numbers rise from an estimate of 1,600 at the end of 2006 to about 2,000 at the end of 2007. Disentangling the real growth in recruits, if we call them that, from the growth in intelligence capacity is very difficult. It may be that we are just finding what was already there, or it may be growth. We are still working through to try to get a better understanding of that. That is the first point.
On the reluctance to engage, there is clearly distrust and concern and I have heard friends in the Muslim community describe their feelings as being a watched community. It is not difficult to empathise and understand why they feel that way. What is really important is to keep the perspective in the debate. The vast majority of terrorism arrests in the United Kingdom in recent years have been solved very quickly with minimal detention. Those that have resulted in extended detention correlate strongly with charge and prosecution. Last year alone, 37 people were convicted of serious terrorist offences, of which 21 pleaded guilty. That is absolutely unprecedented in the history of fighting terrorism. They were sentenced to more than 500 years’ imprisonment. This year, 28 people have been convicted, of which 11 pleaded guilty. They have been sentenced to well over 100 years. We have regrettably seen an upward trend, but we have seen success in pursuing people involved in such activity.
We are also seeing more sophistication. Terrorists are learning from their experience. We are seeing people come back into the UK with taskings, so intercept may not have been any use because we would not have been in a position to secure it. Lots of things are changing very rapidly in the threat.
Trying to pull the strands together, I noted, Sir Ian, that you said that your interest was not so much in 42 days as in the extended period of detention, which appeared to be rather indeterminate, under judicial supervision. I hope that I have not paraphrased that wrongly. That chimes with what Lord Carlile suggested with the radical overhaul of our common law principles involving the period between detention and charge ceasing to be a very short one and potentially becoming a very long one on the continental model, which differs entirely from our legal principles.
Would it be right to say that as far as you are concerned, 42 days is a bit of an irrelevancy, except in that it is an extension of 28 days? There is no magic figure in 42 days.
Sir Ian Blair: There is no magic figure; that is absolutely fair. But if you are suggesting that our view is that we should just extend detention to the infinite, the answer is no, we would not. Your job is to balance civil liberties against the threat. That is what Parliament is engaged in. Our job is to suggest that sooner rather than later something will happen that will make 28 days insufficient. The Government have suggested 42 days and that is a matter for Parliament to consider.
There are other common law jurisdictions, with which we have a concomity of legal principles and ideas of freedom that have much shorter periods of pre-charge detention, and which are managing that by taking other robust measures, such as bringing in intercept evidence. Do I infer correctly that if we could go down that road, there is no reason why we should be taking the road that you are advocating of long periods of pre-charge detention?
Sir Ian Blair: What I have said is that we appear to be facing the most rapidly escalating threat of those countries in terms of the number of people involved and the plots that are going on. That is happening now. I answered a question earlier about intercept. If intercept was available now or could conceivably be introduced in the next two or three years, it would be a relevant consideration. However, it is not available at the moment and there is nothing to suggest that it will be.
I want to slightly change the direction for a moment and ask about your view on the current notification requirements for sex offenders. Have those been successful in keeping track of offenders? The reason that I ask is that the Bill proposes a similar notification regime for terrorist offenders. What are your views on that?
Bob Quick: Yes. I am familiar with the provisions of the Sex Offenders Act 2003. They are generally effective in helping to monitor and regulate sex offenders, but are by no means perfect. Many sex offenders slip off the radar and sadly can reoffend. The correlation of sex offending and the patterns and types of people involved with terrorist offenders is not good. The risks to the public, while serious with sex offenders, are of a different magnitude with terrorist offenders who may be seeking to sacrifice their own life while committing mass murder.
Could you please clarify that to the Committee?
The commissioner listed a number of issues about republican terrorism. Point four was a pretty much full penetration of British intelligence in sources and informers. Injustices and detention without trial, be it the extreme of internment or things like dawn raids, help to cause community friction and make that harder. Do you think that any amount of detention without trial in these circumstances will make the job of recruiting sources, as opposed to investigation, harder?
Sir Ian Blair: That is very difficult to tell. The two circumstances are fundamentally different. I do not want to go back into too much history, but there was a nationalist community that had a very strong view about what was going on as opposed to a Muslim community of whom the vast majority are appalled by what is going on. Those places are different.
People have asked about intercept evidence and post-charge questioning. Am I right that you do not see this as an either/or? Even if they were available, you would require the extension of the 28 days.
To follow the question of my hon. Friend the Member for Sedgefield about consequences, you said earlier that you did not want to be in a situation where you were having to discuss this after an atrocity. The implication seemed to be that you think that these changes could prevent an atrocity. Is that really your view?
Thank you, Sir Ian and Mr. Quick, for your time and expertise. Thank you also, Sir Ian, for finishing with a matter of seconds to spare—split second timing, you might say.
Thank you very much indeed to our witnesses and to all members of the Committee for their co-operation. We shall now move to the next witness representing Justice, from whom we will hear in a moment. Let us have a speedy turnaround.
Thank you. My name is John Bercow; I am MP for Buckingham and I am co-chairing this Public Bill Committee. With the leave of the Committee, I would like to ask whether any members of the Committee wish to ask questions on matters other than pre-charge detention without trial. If they do, I will take those questions first, and then move on to the important matter of pre-charge detention without trial. Thank you, colleagues, for your co-operation. I call Dominic Grieve, then David Heath.
First, may I turn to the issue of the DNA database and data-sharing powers in the Bill? I wondered what your views are on that and whether you consider that the powers being envisaged are proportionate, in view of the fact that they appear to allow—certainly in the case of the security services and others—a wide dissemination of information other than only for the purposes of preventing crime, given that it is specifically provided that it is also for the purposes of national security, which is a rather more nebulous concept.
Dr. Eric Metcalfe: I agree that it is a much more nebulous concept. In previous years, we have seen a number of situations in which powers used for national security tend to bleed down into the ordinary criminal law. One only has to consider the recent examples of authorisations under the Regulation of Investigatory Powers Act 2000, in which surveillance powers are used in relation to parents being in the right zone for schools, and so forth. In relation to the collection of DNA, we are extremely concerned about the lack of regulation in relation to the police database and the very broad powers, particularly in relation to suspects on control orders. As some of you may know, the measure is being heard before the European Court of Human Rights and we expect a judgment very shortly. We are concerned that it is liable to create further interference with the right to privacy.
Dr. Metcalfe, I would like to ask you about post-charge questioning. In your evidence, you make it clear that you feel that the Joint Committee on Human Rights is right to suggest that there needed to be very clear provisions, either through a code of conduct or, preferably, in primary legislation, to secure the rights of the individual under post-charge questioning. I notice that you also suggest that there should be direct supervision by the court. Can you elaborate on exactly how you feel that that should take place?
Dr. Eric Metcalfe: It is not necessarily the trial judge, although if it is possible to arrange that, it would obviously be desirable. Generally speaking, you certainly want to emphasise the role of the judge in charge of the pre-trial process. Bear in mind that case management for terrorism trials can go over a number of months, so there may be some leeway for different judges to be involved at different stages. The fundamental distinction, which was identified by the Joint Committee, is that once charges have been brought, the police are no longer in charge of the investigation; it is the court that controls the investigation. That is a fundamental part of our criminal justice process. It is important that the police remain under the close supervision of the court, in a way that they are not in relation to pre-charge investigation.
I think that it may already largely have been covered. There seems to be widespread agreement about desirability, but is it not very much in the interests of the police themselves that there should be judicial supervision of the process?
Dr. Eric Metcalfe: Absolutely, because at the end of the day, this is an evidence-gathering process and one wants the evidence to be admissible; one doesn’t want it to be thrown out due to the judge’s discretion to bar evidence obtained by oppression. So it is in everyone’s interests that there are as many safeguards as possible in the Bill in relation to post-charge questioning.
Dr. Metcalfe, in your document entitled, “Intercept evidence: lifting the ban”, dated October 2006, you said that there was an overwhelming case for the ban on intercept evidence to be lifted forthwith. I think that you were in the room when Sir Ian Blair said, somewhat dismissively, that there are administrative and legislative barriers that make that quite impossible and that it is virtually pie in the sky that it could ever come in over the next two or three years. What is your view on that?
Dr. Eric Metcalfe: I was very surprised that Sir Ian took that view. I think it is taking a cue from the report of the Chilcot committee, which says that more time is needed to think about it. We take the opposite view, which is that a great deal of thinking has already been done on this issue; in particular, we know that the Government have been working on the public interest immunity plus model of intercept evidence for some time. Indeed, we were told by the Bill team in the Home Office, prior to the Chilcot report being handed down, that in the event that the Chilcot committee gave the green light to using intercept evidence, it would be prepared to insert clauses into the Bill. So it seems unusual, given that at one point, just at the beginning of this year, we were told that clauses could be imminent, but that now the most senior police officer seems to think that resolution of the issue is years away.
On the experience in the United States, which Sir Ian mentioned, I think, with respect, that he is completely wrong about the US model of intercept evidence. There was a report published in 2006 on a detailed comparative study of the use of intercept evidence in Canada, Australia and New Zealand, South Africa and the United States. We noted that the US law to which Sir Ian refers is, in its overall design and framework, similar to the public interest immunity process that we have here. Certainly, the Home Office will have been aware of that when working on public interest immunity plus. We think that it should be possible to introduce clauses much more quickly than is being done. The Chilcot report identified points that need to be addressed, but we do not think that it is a matter of years; we think that, at best, it is a matter of months. With the best will in the world, I am sure that clauses could be introduced into this Bill.
Dr. Eric Metcalfe: We strongly oppose the provisions. Obviously, coronial proceedings are under reform at the moment. There was talk of a coroners Bill, and we understand that certain provisions in relation to intercept evidence and closed proceedings were transplanted into this Bill. In our view, those are extremely ill thought out.
At the moment, a coroner’s inquest sitting under the special appointment procedure would have the power to hear intercept evidence. If the coroner reaches a finding of unlawful killing, the case would be passed to the Crown Prosecution Service, which would, under the current situation, be unable to use any intercept evidence to prosecute an individual. You would therefore have an obvious mismatch between a clear finding of the coroner that there was unlawful conduct and the inability of the CPS to prosecute. That is just one of the anomalies that are brought about by the failure to address the issue of intercept evidence wholesale.
The second issue, and our major concern, is the provision to allow coroners to sit without juries and hold closed proceedings. Article 2 of the European convention on human rights, which relates to the right to life, contains clear requirements on duties towards the relatives of those who are unlawfully killed. It is extremely important for them that justice not only be done, but be seen to be done. The provisions in part 6 seem to us to cut off that possibility completely. Therefore, we think that they are extremely ill thought out and we look forward to them being withdrawn.
With reference to the proposals for Government-appointed coroners, how would you suggest that operational details about the manner of the deaths or ways that the state was trying to counteract them could not go into the public domain if you did not have Government-appointed coroners?
Dr. Eric Metcalfe: A number of different methods can be used and there is a variety of different stages. For example, only yesterday we learned that the jury in the royal blackmail case heard the tapes being played in camera—in private—and the media were excluded. That is one means by which a jury can sit and hear sensitive information without the broader information being passed to the public at large.
Dr. Eric Metcalfe: As some people have pointed out, large numbers of the general public, particularly ex-service personnel, have low-level security clearance. One possibility is, when empanelling a jury, to investigate to determine whether individuals already have clearance, as is often the case. Another method is to have a sifting process involving a disclosure stage using special advocates; the special advocates and the coroner could then determine what material could be made public and what would remain closed.
Dr. Eric Metcalfe: That was only one suggestion, and I am not suggesting that you should appoint the juries. I am saying that that is one way in which you could meet the concerns. I think that we need to have more faith in the role of juries and in the particular importance of their oaths not to disclose information. I also think that there is a certain amount of overstatement in the Government’s case that the most sensitive secrets need to be disclosed during a coroner’s proceedings. We have seen a number of inquests taking place at the moment that relate, for example, to military operations in Iraq and they do not require that kind of sensitive intrusion.
You are suggesting that you should pull people off the street. The logical consequence of that is to have appointed juries, so what is your objection to having appointed coroners?
There is a very big difference between low-level security clearance and much higher-level clearance, and the effect of having people with much higher-level security clearance would be that the state, in effect, was appointing the jury anyway.
Dr. Eric Metcalfe: It really depends on the kind of material that the Government would wish to put before the coroner’s inquest in the first place. For example, if you do a sifting process involving special advocates prior to the jury being empanelled, you could determine what material requires protection and what does not. In current closed proceedings, we quite often find that a great deal of the material that the Government claim is so sensitive that it cannot be disclosed is in fact found by the court not to be so. Therefore, I am saying that there is a combination of different measures, and these are just examples: there are more. By a combination of different methods, it is possible to have coroners sitting with juries drawn from the general public.
Dr. Metcalfe, I should be grateful if you could give an overview of Justice’s position on pre-charge detention. I do not know whether you were here to hear Sir Ian Blair’ evidence. The view he put forward was that it was a necessity because of the lack of the availability of intercept evidence, for example, which seems to be a voluntary decision of the Government rather than anything else. Could you shed any light on the apparent lack of clarity about how long it is taking in current cases to bring charges against individuals accused of terrorism?
Dr. Eric Metcalfe: In general terms I identify five major arguments against the Government’s proposal to extend the maximum limit for pre-charge detention to 42 days. The first is that, in our view, it clearly violates the right to liberty laid down not only in our own Human Rights Act, but under relevant international human rights standards, including the international covenant on civil and political rights to which the United Kingdom is party.
Our second major argument is that 42 days is unsupported by evidence. The Government have not identified any case in which a person has been held for 28 days and then released and has then been shown to be involved in terrorism. Thirdly, we think that 42 days is unnecessary in practical terms, primarily because of the ability of the Crown Prosecution Service to apply the threshold test at a certain point in the investigation, to allow people to be charged with terrorist offences even where the full evidential material is not available.
Fourthly, we note that 42 days is far longer than any other western democracy allows, and that includes the European civil systems. Fifthly, we think that there are no credible safeguards in relation to 42 days. There are no additional judicial safeguards offered in the Bill, and the parliamentary safeguards are inappropriate and, in any event, very much after the fact.
It is important to note that there is a large gap between suspicion and proof and what the police are dealing with in their investigations at the point of arrest is suspicion, and in particular the idea of reasonable suspicion. In order to charge an individual and to convict them you need proof. The argument seems to be that the police need ever longer periods of time in order to gain sufficient admissible evidence. We argue that the threshold test essentially allows for reasonable suspicion to be applied at the point of charge, so really there has been no problem, as the chief prosecutor indicated, in bringing charges against those who are suspected of involvement in the most serious of crimes.
May I pursue an issue that I raised with Sir Ian Blair—relations with the Muslim community? What is your assessment of the likely impact of the previous extension from 14 days to 28 days, and of any potential extension from 28 days to 42 days?
Dr. Eric Metcalfe: Let me stress first of all that we are a policy organisation. We do not represent individuals. We are not what one might describe as a grass-roots organisation. However, in general terms it does seem that one argument is that effective counter-terrorism investigation relies on the community to bring forward intelligence and on the use of informers and such like in order to detect people who are involved in terrorism in the first place. As a matter of common sense, it inhibits people’s willingness to come forward if they see their community as a whole being targeted. There is no doubt that the nature of the current threat tied to radical Islamicists means that the Muslim population of the United Kingdom as a whole—as a general category—is liable to be targeted.
I fully accept that, as Sir Ian Blair says, the great majority of those people themselves do not want to be blown up by terrorists and strongly oppose the terrorists. None the less, I think he underestimates the possibility that people may strongly dislike terrorism while also strongly distrusting the police. If you see that members of your community are liable to be arrested and held without charge for more than a month, that might well diminish the likelihood that you will be willing to co-operate with the police.
Have you had representations from any Muslim organisations or prominent Muslims that would substantiate the argument you have just deployed?
Dr. Eric Metcalfe: I can speak only in anecdotal terms, because we are not in a position to invite such representations, formal or otherwise, but we go to a number of meetings and speak on platforms about pre-charge detention. I have been to any number of meetings at which a great deal of concern has been expressed by members of the Muslim and broader communities about the likely impact of the provisions—so, yes, anecdotally, I have.
I want to link pre-charge detention with the measures on post-charge questioning. One of the arguments presented by the police is that they need time to examine evidence. Given the provisions in the Bill on post-charge questioning, does it seem to you that if someone were charged with a fairly serious or middling terrorist offence, they would be much more likely to be remanded than released on bail? Would not the police then have all the time in the world to examine evidence and put it to that individual in a post-charge situation? Would not that solve some of their concerns about having time to examine the evidence? Does not the facility for post-charge questioning do half the job of pre-charge detention?
Dr. Eric Metcalfe: It is interesting to compare the support for post-charge questioning indicated by police with the comments that they have made to the Select Committee on Home Affairs in previous inquiries, particularly about the 90-day issue. It is apparent that the police do not readily rely on questioning suspects in terrorism cases. If you look at the testimony of solicitors representing detainees in terrorism cases, questioning is not a major part of the investigation. For the same reasons, I do not see that there would be much need to rely on post-charge questioning. Our support for post-charge questioning partly goes to the principle that if there are pressures, they can be alleviated by post-charge questioning. Given that there is a principled case for allowing it, why not make it available? We support it on that basis, but I do not think that there is a strong demand for post-charge questioning. I think that the experience of suspects in terrorism investigations is not to answer questions, so, as the police themselves have said—I invite you to look at their previous testimony to the Home Affairs Committee when the 90-day limit was being considered—it is probably only a limited measure. None the less, we support it to the extent that it could be seen to reduce pressure.
Dr. Metcalfe, you have set out very clearly in your evidence today and in your memorandum to the Committee the criteria on which you judge that any extension up to 42 days would be unacceptable. You have also just given Mr. Bailey another reason—the effect that any change in the law would have on the willingness of people to come forward with evidence. Using the same criteria and, presumably, maintaining a consistent position for Justice, will you remind me what Justice’s position was on allowing 90 days?
Dr. Eric Metcalfe: I cannot answer a hypothetical question based on threats that have not been made clear. Whether or not the Act could be used in relation to a future terrorist investigation would, to my mind, very much depend on the facts of the case. I think it is highly unlikely. That is the general answer.
May I take you back to something that you mentioned earlier, Dr. Metcalfe—the threshold test? I agree with you that it is of some significance, but that was not the position that the police had taken until recently, was it? I think that Deputy Assistant Commissioner Peter Clarke said that it had no relevance to terrorism cases. Do you agree with me that what we heard from Mr. Quick today was a recognition that the threshold test had a part to play in assisting, as part of the armoury, terrorist inquiries?
Dr. Eric Metcalfe: I did understand Mr. Quick as saying that as well. I think that the important point to stress is that it is not the police who are responsible for charging suspects in terrorism cases. I also think that Sir Ian somewhat understated the involvement of the Crown Prosecution Service in the preparation and the investigation of terrorism cases of this kind. As the CPS paper that was released by the Government last July makes clear, it is the CPS that is responsible for going to courts to seek authorisation of continued pre-charge detention. In order to do that, the CPS itself must be apprised of the nature of the investigation and how it is proceeding. How else is the CPS supposed to defend the detention and argue for an extension in court, unless it is very intimately involved with the ongoing investigations?
Taking the threshold test together with what I shall persist in calling lower order offences even if it offends the Minister, because that is exactly what they are and it is the correct term, is that not a mechanism for what used to be called a holding offence, to enable a charge to be brought quite properly against a suspect against whom there is prima facie evidence? Furthermore, does your organisation have any objection in principle to the use of holding charges in order to ensure that somebody is kept in custody while further offences can be investigated?
Dr. Eric Metcalfe: I do not think that we need to mix those two situations together. It is perfectly possible to use the threshold test in relation to the most serious kinds of charges, for example conspiracy to cause explosions, which is the standard charge that is brought against suspected terrorists, or incitement to commit murder. The threshold test applies equally to the most serious charges as to what we might call minor holding charges.
I think that everyone has a problem with the idea of applying a charge against a suspect for which there is not sufficient evidence; that is problematic. In a less problematic way, what a holding charge generally refers to is simply using another charge for which there is evidence to support the individual being charged against that individual while you prepare more serious charges, and nothing prevents more serious charges from being brought. If there is evidence to show that the person is also involved in encouraging terrorism, or I should say inciting terrorism, but you are also looking for evidence that they are actively involved in conspiracy to commit explosions, there is nothing that prohibits that person from being charged with the so-called lesser offence.
My hon. Friend the Member for Tynemouth has reminded us of the fact that Justice opposed the extension to 28 days. Which of your five, or possibly six, reasons would you not have used in your arguments against 28 days that you use for 42 days? Is anything different in what you are saying now about the extension beyond 28 days from what you said about the extension to 28 days?
Dr. Eric Metcalfe: I think that the arguments apply equally to the extension to 28 days as to the extension beyond 28 days. The biggest difference about this debate is that, whereas the CPS was content to remain silent in relation to the extension from 14 to 28 days, the CPS has now broken its silence to say that it believes that 28 days is more than sufficient.
Dr. Eric Metcalfe: No. It is not clear on the evidence that that is in fact the case. It is clear that three people were held to 28 days and then charged, but you cannot demonstrate from that as a matter of logic that they could not, in fact, have been charged on the basis of evidence that, as it may seem, was in fact available at the 14-day point.
Dr. Eric Metcalfe: We think that the original limit of seven days laid down under the Terrorism Act 2000 is the maximum period that is likely to be compatible with the right to liberty under article 5 of the European convention. I know that the UN human rights Committee, which is responsible for the international covenant on civil and political rights, has said clearly in its own general commentary that detention of more than a few days is unlikely to be compatible with the right to liberty.
In paragraph 45 of the brief that you sent us, on page 15, in relation to the Barot case in 2004, you are on about the complexity of cases, I think. You say there were 274 computers, whereas there were 400 in the alleged airline plot in 2006, and 2,000 computer disks, CD and DVDs; you add that
“there were 8,224 exhibits seized in the Dhiron Barot case compared with in excess of 25,000 in the alleged airline plot.”
Do you think that that could all have been sorted out in seven days?
I do not think it is, because I notice further on, in paragraph 46, you are on about the suspicions of the police. I think I would give them the benefit of the doubt, on the basis that they deal with this on a day-to-day basis. It is credible that they could not sort it out in seven days; they needed more time to do it.
I suppose they must be given the benefit of the doubt, because they deal with this on a day-to-day basis. Are you saying that you would only give them seven days to sort all that out?
What the police say is that they need up to 42 days to help sort out those cases, because they are becoming highly complex. Why should not we accept their views, considering that they deal with this on a day-to-day basis?
Dr. Eric Metcalfe: You have raised the facts and figures that I cited in paragraph 45. Let me refer you to paragraph 47, which refers to 250 police officers and an investigation costing £2.2 million, involving MI5 and police, lasting over two months. That was the Forest Gate investigation. If you tell me that an investigation involves 250 police officers and costs £2.2 million, it sounds very complex to me, but that was an example of reasonable suspicion by the police that bore no fruit. You are asking for the police to have the power to detain suspects for six weeks on the basis of the same reasonable suspicion. What if the police had held those people in the Forest Gate investigation for up to six weeks, on the basis of—
Following up on Mr. Wilson’s point and the question whether the Committee was denied other witnesses with operations experience, such as Stella Rimington, who might oppose the legislation, why do you think that people such as Sir Ian and Mr. Quick—operational people who deal with the issue every day—seem to be in favour of it? It must be more than toadying up to their political masters, must it not?
Dr. Eric Metcalfe: It would be natural for anyone; if you put me in charge of investigating counter-terrorism cases in the United Kingdom, I would ask for as much time as I possibly could. In that situation, as hypothetical commissioner, I am not actually required to balance the public interest in protecting fundamental rights. I would simply ask for as much time as you could give me. If Parliament is willing to give me 100 days or 200 days, or an indefinite period, as Lord Carlile suggested, I would ask for that.
Dr. Eric Metcalfe: Absolutely, and that is the only consideration as far as the police are concerned, and thank God that that is their primary motivation. My point is that, when Parliament comes to consider whether pre-charge detention is justified, it cannot have regard just to the operational considerations of the police. I would always say that more time is going to be helpful, but the police are not responsible for charging suspects, and the Crown Prosecution Service does not require the proposed amount of time.
But if the police take the view that more than seven days—seven days is about what you would think appropriate—would help to keep the public safe and secure convictions, why would you not support that?
So why have you alighted on seven, then? You say that the logical conclusion of what I am saying is that we should have an unlimited amount of time. Why are you saying seven?
Dr. Eric Metcalfe: Let us look at it this way. The public have a right to be kept safe—that is true. However, they have a right to be kept safe not only from terrorist threats, but from disproportionate Executive measures. Innocent members of the public travelling on the tube have a right to be kept safe from being blown up by terrorists. Innocent members of the public travelling on the tube also have a right not to be shot in the head seven times by counter-terrorism officers.
Dr. Eric Metcalfe: Here is the difficulty that I have with that statement. In 2000, at a time when al-Qaeda had already begun to be engaged in serious threats to US national security interests and was no doubt on the radar of MI6, we had established seven days. After 9/11, with an incredibly serious, widespread plot involving multiple international targets and suspects in a number of different jurisdictions, the police in this country argued for 14 days. It went up to 14 days in 2003 and then to 90 days after 7/7. The difficulty is that the Madrid bombings and the 9/11 attacks were plots of equal complexity, and the suggestion that, in the past five year, the plots have somehow escalated in complexity, is something that I find difficult to apprehend. We are dealing with a relatively constant level of threat, from internationally based plots, which involve multiple jurisdictions and suspects with different backgrounds and different languages, although the level of computer technology has not made a dramatic difference. I accept that the situation is highly complex, but it does not seem to be dramatically different from the situation that we faced in 2003, when Parliament decided that the limit should be 14 days.
Dr. Eric Metcalfe: It is also important to note that, at the end of the day, the complexity is solved by the threshold test, which provides the ultimate answer to all these issues. We should bear it in mind that the police have to have reasonable suspicion at the point when they arrest a subject. That means that they have to have intelligence of some kind to justify the assertion that these people are sufficiently dangerous to be arrested. So it is not the case that the police have no evidence at the point when they arrest someone; in fact, they have to have a reasonable basis for their suspicions. What we are really talking about is having sufficient time for them to gather admissible evidence. As we have pointed out time and again, the most compelling kind of inadmissible evidence currently available is intercept.
You made it very clear that senior police officers object in terms to what the Metropolitan Police Commissioner and the most senior anti-terrorism officer in the country said, but you cannot remember their names.
Dr. Eric Metcalfe: It is striking that Assistant Commissioner Quick had the opportunity to tell you that senior police officers were unanimously in support of the proposals, but did not do so. From that one can reasonably infer that if they were unanimously in support of the 42-day extension they would have told you that, but they did not.
You read in the paper that there were senior police officers against it, and that is the sum of your evidence. When were you given an intelligence brief on Forest Gate and what that entailed?
When were you given an intelligence brief by the authorities on what they went into Forest Gate anticipating?
Do you think that intelligence, as we commonly accept it, is sufficient to arrest someone on the threshold test?
Dr. Eric Metcalfe: Again, I have to point out that I do not receive intelligence briefings, but intelligence, as I understand it, is drawn from a number of different sources, some of which may be admissible and some of which may not. Some of the sources may be hearsay, some may be speculation and some may be reasonable hypotheses. So some of the intelligence will be likely to be—
So, there might be at least an element of time? I think that you agreed earlier that turning intelligence into admissible evidence is part of the police investigation.