Good morning, and welcome to our first witnesses of the day and to all other interested observers. For the record, may I ask our witnesses to formally introduce themselves?
Thank you. My name is John Bercow. I am MP for Buckingham and co-Chairman of this Committee. In agreement with members of the Committee, we have decided to focus first, for up to half an hour, on matters other than pre-charge detention without trial. Thereafter, or as soon as questions on other matters have been exhausted, we will move on to the important matter of pre-charge detention without trial. Thank you for coming. We will go straight into questions.
Good morning. What is Liberty’s view on gathering and sharing information? It is clear in the various clauses that one of the purposes, at least, is to bring the security services within a statutory framework. However, the powers are extensive, and include not only the prevention of crime but the use of information for national security purposes, or for the purposes of the security services themselves. First, does Liberty have a view on that in principle? Secondly, if there is anything that causes you anxiety, should something be done about it?
Gareth Crossman: The point of principle is that we would much rather see any information-sharing system on a statutory rather than a non-statutory basis, for various reasons including human rights compliance. To be prescribed by law is an important step in something that has the potential to be extremely invasive. We have no issue of principle with the idea of information-sharing powers—including the DNA-sharing powers that are contained in the Bill—being placed on a statutory basis.
However, in a way you have identified where our concerns might lie, particularly in relation to DNA. The current national DNA database, which is operated by the police, serves a single purpose, and that single purpose is crime detection. By allowing the security services to have a broader remit for national security purposes, the concept becomes rather more nebulous. It includes crime detection, but is not limited to that. One of our concerns is that when mass data retention has taken place—at present the national DNA database has 4.5 million samples—it is always possible that the uses of that database will be extended beyond crime detection and prevention. This is the first statutory instance where there will be the power for other purposes to be in place. My suggestion would be to limit the security services to the same role as that of the police in relation to sample-sharing powers.
Thank you. Perhaps this cannot be answered now, and we may have to tease it out at a later stage, but I wondered what instances might exist where national security issues were not related to the prevention of crime, if one wished to make use of samples.
May I follow up what is implied by that? It is something that has concerned me for some time. Over recent years, various Acts of Parliament have conferred considerable exceptional powers on the police and security services to deal with an exceptional circumstance: terrorism. In your organisation’s experience, have those powers been used within the limits that Parliament expected?
Gareth Crossman: No. That is a significant problem. There has been a tendency, not only in counter-terrorism, but across the board in legislating over the last few years, to set the parameters of the legislation quite wide, and then make a promise that it will not be used in inappropriate ways. I will give a couple of examples: section 44 of the Terrorism Act 2000, which the legislation states was passed specifically for anti-terrorism purposes, has been used as a general stop-and-search tool. That is not the opinion only of Liberty; it is the opinion expressed by the Metropolitan Police Authority. A week or so ago, we heard that Poole council in Dorset had been using powers under the Regulation of Investigatory Powers Act 2000—those are very invasive powers—specifically to find out whether people were operating within the catchment area of a local school. I suggest that that purpose was not identified by Parliament at the time.
Shami Chakrabarti: Yes. The idea of a bargain in the English language is that behind that bargain, agreement or contract, sits some kind of equity between the parties. As we know, from examples coming from the United States, on occasion that bargain is far from equitable. There is a suggestion that people may have bargained away their liberty because they were advised that they had no hope against a more serious charge, and they may perhaps have admitted things that they would not freely have admitted. Just as important, if not more important, in this context is justice to victims and their families. Again, there is a suggestion that if deals are done and bargains are struck with defendants, the victims are left out of the process. It is a difficult issue. There is no doubt that the public can, on occasion, be protected by deals being struck on a plea-bargaining basis with someone who has done bad things but who will be of assistance to the authorities. In that equation, one must also remember that individual victims and their families need justice to ensure that they do not feel that their rights and freedoms have been traded away for a greater good.
Shami Chakrabarti: Perhaps I can set out the big picture and Mr. Crossman, as always, will add flesh to the bones.
There is an important distinction to be made. There is questioning post-charge for the offence with which you have already been charged, which is essentially dealt with in the Bill as it is presented. For example, I have charged you with possessing material for a terrorist purpose. Presumably, I have charged you on evidence. Subsequent to that charge, I want to question you again. That has often caused great anxiety to the judiciary and to lawyers. Their legitimate fear—I do not think that it is an objection in principle, but one of concern about how the practice would work—is that you might charge too lightly, and then in the long period between charge and trial, subject somebody to repeated, oppressive questioning on the same matter until they crack. No doubt one would have to work very hard to ensure that appropriate safeguards are in place to stop that from happening. Also, we hope, and believe, that people are charged on proper evidence in the first place, so it is not often necessary to do extensive post-charge questioning unless new material has genuinely come to light. It is in the interests of justice that new material be put to an accused person.
Then there is a different animal, which is something that is not really pursued and that we would like to see pursued. As the Metropolitan Police Commissioner outlined the other day, terrorism is special. It is special in the complexity of some plots, in the gravity of potential consequences and, in the words that he used, in the seriousness of the ambition. You are dealing with something that has a disproportionate danger to the public. In recent years, you and your colleagues have placed on to the statute book a number of what we would call precursor offences, or low-level terrorist offences. Let us make no mistake, those are serious matters. Offences include being a member of a proscribed organisation, funding and inciting terrorism, possessing material for a terrorist purpose and so on. They are serious custodial offences in their own right, but they are offences that are sometimes easier to prove than the international complex conspiracy to murder.
In principle, there is no reason why, if someone is chargeable and convictable for a precursor offence—do not get me wrong, some of those offences in their day were quite controversial, but they are proper offences that this House has passed—the authorities should not get on and charge them at the earliest possible opportunity. Even if the same set of facts and broadly the same allegation is later capable of being charged as a conspiracy to murder as new evidence emerges, there should be the possibility of continuing with the investigation and potentially the subsequent questioning with judicial safeguards. That would allow the police and prosecutors to charge earlier for the original, lower level but serious offence and have the opportunity to charge later on, with quite a long period between charge, which we say should be done as quickly possible and within hours or days, and trial. Realistically, in a complex terror case, that period could be up to a year.
In England and Wales, the moment of charge is really special and it should come as soon as possible, as that is the first moment when somebody knows why they are detained and they have the opportunity to start preparing their defence. The post-charge questioning that we are advocating for the more grave, conventional conspiracy to murder could actually be of great assistance. When it was put to the commissioner, facetiously, that some people think the police are not charging as soon as they should, that they are faffing about, no one had suggested that the police were faffing about. [Interruption.] I can only say that I certainly do not think so and I do not think that there is any lack of good faith on the part of the police, but the current arrangements create a genuine and understandable incentive for the police not to charge with a lower level offence until they are sure that they cannot charge conspiracy to murder.
That is an extremely helpful answer and I think the Committee appreciates it very much. I recognise that you are setting the scene, but I gently make the point that as competition for questions intensifies we shall need to have tight answers.
Shami, you mentioned the need for judicial safeguards if questioning on more serious charges was going to take place. Can you expand on what those should be?
Gareth Crossman: Yes. I think it would be quite easy to set out the grounds on which a court would need to be satisfied that it was appropriate to allow further questioning: that the original charges were appropriate; that it was in the interest of justice to allow further questioning; and that any further questioning would not be oppressive. Those are relatively straightforward determinations for a court to make.
Shami Chakrabarti: One might also make sure that the current sorts of safeguards that apply under PACE codes, such as access to a solicitor, breaks and all of the things that have become so important in a police station, would apply. Remember, this person is now not in the police station any more, but in prison custody. One of the historical reasons why my profession and Gareth’s has been concerned about the idea of post-charge questioning is that in a pre-PACE world, people would be subject to lengthy, oppressive questioning. We must ensure that the same physical, practical safeguards such as access to lawyers, tape recording, video taping, appropriate breaks all apply even though a person is no longer in the police station, but on remand in custody for offence No.1, a lower level offence.
Secondly, we would argue that prosecutors apply to a judge for permission and that the judge grants permission on the basis that charge No. 1 was not a trumped-up charge, as has sometimes been suggested; it was a proper charge in the first place, it justified custody in its own right—it was not stealing a bicycle, for example, but possessing material for a terrorist purpose—and that as Gareth said it is in the interests of justice to put this further material to the accused.
Shami Chakrabarti: People are less surprised by our answer now than they were a little while ago. Quite rightly, people see Liberty as an organisation with a great concern for people’s personal privacy, and they are right to say that we care about personal privacy, but privacy is not an absolute. It is an important value in our society, but it is always subject to some balanced interference, which must be necessary, proportionate and in accordance with the law. Gareth is an expert on this subject. It is often necessary and certainly proportionate, and can easily be in accordance with the law. We would like to see judges more involved in authorising interception rather than senior police officers or politicians, but it can well be necessary, proportionate and lawful to intercept people’s telephone calls, particularly when it is thought that they may be involved in terrorism. Once you have made that interference for that laudable objective, why on earth would you not find a way to use the material in evidence in a courtroom, as they do in the United States, and all over Europe and the democratic world? I understand that the security services have historical and operational concerns that must be met. However, our basic proposition is that with wit, wisdom and a common enterprise to do this, people could work together to achieve that outcome. The Privy Council report commissioned by the Prime Minister is a helpful step in that direction.
Finally, as someone who used to work on the other side of the desk, so to speak, and with the security services, part of their historical objection comes from a time when the security services’ job in this country was not really aimed at bringing people to court. In the days of the cold war, it was not really about Crown court trials, but about espionage between states. It was a cold war between states. It was not about individuals who owe loyalty to no particular state, and who, ultimately, must be brought to justice in a criminal court, with which intercept evidence could be incredibly helpful.
Why is it permissible to bug my bedroom with a listening device and use that material in court, yet if I happen to be having the same conversation on my telephone—it could be to my husband; we could be plotting wicked things together—rather than discussing it in the bedroom, the material could never be used, however valuable it would be in convicting us? There is an absolute legal prohibition on it. We must all do better, both on our side of the desk and the security community, to work together to crack this.
That was a very interesting response, thank you very much. A supplementary point to that is that the security agencies have serious concerns about the matter. The concerns are not so much about the intention to use the evidence to convict people, but that, by using it, gaps in their knowledge would be shown. It would show where there are weaknesses, as inevitably there are. Do you not recognise that that could be a serious problem for the security agencies?
Shami Chakrabarti: I do understand that they have concerns about things that we should not even be talking about in open session, and I have a hint of what some of those are, as you do. However, I still believe that it is within our wit and wisdom to design a system that balances the need to protect operational methods with the great value that some of this material could provide in court.
The fact is that, in our communities today, Muslims as well as non-Muslims are part of the security agencies. We could be showing not only gaps, but a trace to those people. Is that not a serious concern?
Shami Chakrabarti: I do not think that that is the serious concern because those human intelligence sources whom you rightly describe—it is important that you have highlighted that contribution in this sitting—could arise in the context of bugging, as I have just described. That is not protected in the current system. We have mechanisms of public interest immunity that could be adapted. The problem, of putting lives at risk because people are involved or are informants or agents, arises well outside the concept of intercept, and we do find our way, and our judges are sensible, and our courts have been doing that for many years.
It is a crucial question. It is three words.
Is it not the case that the technology is becoming so complex—it is six words—that tracing will become a near impossibility?
Gareth Crossman: I will make a general point in reply. All of the concerns that have been raised were identified by the Chilcot report. Each issue was one of either practice or logistics. It said that every single one of them was surmountable, but we must start looking at them now. Do not just say, “Oh, here are our problems. They make it a bit difficult.” Chilcot was quite clear that they could be dealt with, but that it may take a little while so we should start dealing with them now.
I think that Lord Carlile has been mooting this idea for two or three years. It is not something that has come upon us all of a sudden. We are still talking about intercept. No doubt you have observed the evidence of Sir Ian Blair earlier this week. He was quite dismissive of intercept evidence, saying that there were numerous legislative and administrative problems and all manner of other problems with it. Roughly, what he said was it is not going to happen in the next few years. What do you think is the real objection? If the United States is able to do it without compromising the sources or giving secrets away about their technology, am I being simplistic in saying that we should be looking at it immediately?
Shami Chakrabarti: I think that you are right to say that if it can be done in the United States and all over the free world, we can do it. That is not to say that work does not need to be done to meet some of the concerns of the security services. By the way, in my experience the agencies have not always spoken with one voice on this issue. Unsurprisingly, over the years it has often been the Security Service, which was a bit closer to the criminal justice paradigm, that has pushed for it. I may be out of date on that.
As for Sir Ian, I did not pick up on what you said. If he was dismissive of intercepts, that is disappointing. It is also a change of mind on his part. I remember vividly being telephoned by a journalist one Saturday morning a couple of years ago because Sir Ian had said that we should have intercept evidence in courts. They had called me, of course, because they expected me to be outraged. Imagine their surprise when I said that Liberty has been calling for that for some time. In my experience, Sir Ian appreciated that it could be useful. It is very useful in the United States, not only in terror trials, but in organised crime trials. If he has changed his mind, I am disappointed about that.
To be absolutely fair to Sir Ian Blair, he said that it would be very useful, but it is not likely to happen because of problems. That is slightly different from what I said, to be fair to him.
Can Liberty comment on the suggestion that there has been a tendency by some to hype things up in the press and to use the media rather inappropriately prior to bringing in controversial legislation? An example is the apparent thwarting of a plot to hijack planes and fly them into Canary Wharf, which was apparently leaked by the Security Service just before the Queen’s Speech in 2004 and about which we did not hear anything more. There is also the timing of this legislation. Is that a concern of yours?
Shami Chakrabarti: The first thing to say is that we do not dispute the threat. We are not in a position to argue about the level of the threat or about secret intelligence to which we are not privy. I want to be clear to you, Mr. Bercow, and to the rest of the Committee that we at Liberty never predicate any of our arguments on the basis of whether the threat is at this or that level. We do not question bad faith on the part of others. However, we have expressed concerns about the practice of off-the-record briefings about intelligence. There are moments when the public need to know what is going on, partly to inform debate and partly because there is a public information duty. When you see a police raid in your area, you cannot keep that news quiet. People will be alarmed. It is important and right for a senior police officer or someone else speak up.
Just to follow up on intercepts, is it not rather odd that the Bill allows intercept evidence in asset freezing? With all the concerns about technology leaks and gaps, surely if that principle is strong and holds true, why is it being ignored in the Bill?
Gareth Crossman: It is a slightly unfortunate situation. I think that there is a general acceptance of the use to which intercept evidence can be put, but because there is that bar in the Regulation of Investigatory Powers Act 2000 we do not just face things head on. You acknowledge the use of the intercept material by selecting small areas in which you think it could be put into operational use, such as asset freezing proceedings, rather than taking the bull by the horns and saying: we know that intercept material can be of use in a range of proceedings, be it asset freezing or others, so why not just deal with the issue as a whole?
Shami Chakrabarti: But to be fair, this is probably coming from a feeling on the part of those who advise the Government that it cannot be made to work in the classic adversarial criminal justice system. Therefore, you can do it with asset freezing, control orders and those different quasi-judicial systems that are not Rolls-Royce criminal due process. We disagree. We know that it is hard, but we say that people like us would have to sit down with people in the security and intelligence community and genuinely work together to make sure that it can be done, that there can be proper Rolls-Royce criminal due process for the accused, while technology and sources can still be protected.
You may have seen what Sir Ian Blair said to the Committee on Tuesday. I think there was an acknowledgement that there had been no necessity for detention beyond 28 days—there seems to be some dispute as to exactly what periods are in fact needed, but we will leave that to one side—but he felt it was essential because it was highly likely that the need was going to arise in the not-too-distant future. Does that in any way affect your judgment on the issue? You have taken a clear line that in your view more than 28 days is not required.
Shami Chakrabarti: No, it does not affect our view, partly because we have heard Sir Ian’s views on many occasions. He has been very straight about the fact that there is no current evidence, no current case and no current necessity, but he talks about a pragmatic assumption—I think that was the phrase—that at some point, because of the trends that he sees and the complexity and international nature of plots, with lots of computer discs and so on, which are all real points, he may run out of time. He does not want to run out of time, which is understandable, given his responsibilities. So, we say, rather than keep ratcheting up the number of days for pre-charge detention, let us take on board the problems that Sir Ian and others identify and find more proportionate alternatives, better alternative policies, rather than, every time there is a difficult case, every time there we are worried about the international and complex nature of plots, adding another 10 or 14 days, until we end up with an outcome in terms of due process in this country that is alien to our traditions, is an international embarrassment, is counter-productive to fighting terrorism and undermines the Government’s own laudable prevent strategy. Let us deal with the problems that Sir Ian presents in ways other than constant extension of pre-charge detention periods.
In a document produced by Liberty in February 2008, you said:
“The proposal would certainly lead to innocent people being detained for 42 days and then released without charge.”
Given that any extension from 28 to 42 days would need the DPP’s support and that there are seven-day applications to a High Court judge, do you not accept that that is a reasonable safeguard to ensure that human liberties are not compromised by this?
Shami Chakrabarti: No, Mr. Bailey, I do not. The reason why we completely stand by the comment that, inevitably during any period of pre-charge detention, whether it is three, 30 or 100 days, some innocents will be detained, is because that is how due process works in a free society that is trying to deal with criminality. The way our system works is that you arrest on reasonable suspicion. You charge when you have evidence and a belief that you will be able to convict, and you convict when you are certain beyond all reasonable doubt.
So, inevitably you arrest more people than you charge and you charge more people than you convict, although the DPP has an astonishingly good record in not over-charging, notwithstanding his changed threshold, because he has a 92 per cent. conviction rate, so good for him. But you are bound to arrest more people than you charge. You have to. That is not wickedness or error on the part of the police. If I was a policeman I would arrest more people than I charged, because you arrest on suspicion. You have to, because you are trying to prevent terrorist atrocities. That is how it works in a free society.
As for judicial authorisation at seven-day intervals, although that is a laudable attempt to try to ensure that this is not used gratuitously and is not used all the time, there is very little that a judge can really do to referee a process that has not actually begun. Why we make such a fuss about this, by the way, and why it is charge and not trial that we are talking about—pre-charge detention, not pre-trial detention, as journalists sometimes report—is that in our adversarial system the moment of charge is the moment when you know what you are accused of and you can start answering back. That is when the ball goes into play and that is when the judge, as referee, can start doing his job.
Prior to that, well you can make me the judge, Mr. Bailey. I am hardly going to be a hanging judge am I? What am I going to referee? There is no accusation. There is no fight. Frankly, even Shami is going to keep authorising the detention because I am terrified of what will happen if I do not. The police will be saying, “We suspect this person of terrible things and we need more time to come up with more evidence.” That is the test in the Bill. There have to be reasonable grounds to believe that more time is needed to investigate this person.
You said that it is inevitable that more people are arrested than are charged. I accept that. What you are saying, in fact, is that the enhanced thresholds of the likelihood of being charged are not met in this process. Would you not agree that, because there are enhanced thresholds, presided over by people, certainly on the basis of the evidence that we had from the DPP, who are not even convinced that they need them, to say that this would, in your words, certainly lead to people being detained without trial, is a disproportionate evaluation of the process?
Shami Chakrabarti: I may get this wrong as I may not have understood the question, but I shall do my best. Please stop me and correct me if I have misunderstood. I think you are now alluding to the DPP’s new threshold test for charging and asking me whether I am not afraid that that could lead to injustice. My answer to that is that charge is the moment where you put up or shut up. If the DPP says they are now charging a bit more readily than previously, with anticipated evidence to follow rather than having all the evidence in their hands, does that cause me concern? Well, he has a 92 per cent. conviction rate.
The point that I am making is that people will be arrested and some of them will be released, but given the hoops that frankly have to be jumped through to go over 28 days, the likelihood of that happening is small, particularly because it is operated by people who are sceptical about even the application of the rise. You are saying that it would certainly lead to innocent people being detained.
Shami Chakrabarti: No, I do not accept that and I completely stand by that statement. In a democracy that cares about protecting people from crime and terrorism, you inevitably arrest more people than you charge, and the hoops—as you described them, Mr. Bailey—are not high enough. They cannot be. The hoop that we need is charge. That is the hoop that we are all looking for, because that is the moment when someone knows what they are accused of and can start preparing their defence and when the judge can start doing his job of being an adjudicator of that fair process.
Gareth Crossman: The current position is that for detention exceeding 14 days and going up to 28 days, the same judicial safeguards—that is the word you used—are applied as would be applied for extension from 28 to 42 days, but arrests have been made where judicial involvement has taken place and where people have been released without charge very close to the point at 28 days when they have to be. We are not basing that comment only on supposition, but on what has happened under the current regime.
Shami Chakrabarti: Yes. We have said at length that 28 days is adequate. People are worried that there will come a time when it will not be adequate, but for the vast majority of those theoretical scenarios, we say that it is time to put all of the alternatives in place, such as post-charge questioning, intercepts and so on, and some of those alternatives are already in place.
However, there is another scenario that was painted for us last summer before the new Government came in, and that was subsequently described by Mr. McNulty in a national newspaper as being something akin to three 9/11s on one day. The argument is that there comes a time when essentially there is an emergency in the land and, notwithstanding all of those other brilliant ideas for operational policing that in our view should apply day in, day out and year in, year out, the atrocity would be such that the police and security services are for a time literally overwhelmed.
Mr. McNulty used the example of there being three 9/11s on one day, which is a pretty catastrophic scenario. That scenario was put to us at Liberty last summer, and we were asked what we had to say about it and how the current law of the land would deal with such a scenario. All that we did was point out that Parliament had already looked at emergency powers legislation in the very recent past and had come up with something called the Civil Contingencies Act 2004. As you can imagine, we at Liberty talk about these things with a slightly heavy heart and a slight chill, but we none the less engage in these debates. My colleague Gareth worked very hard with all of you to try to ensure that that chilling piece of emergency powers legislation had at least some safeguards. Even in a nightmare scenario such as three 9/11s in one day, in our democracy there must be some safeguards.
That Act has three safeguards. First and foremost, there has to be an emergency in the land. That is not provided for in the current Bill, which will just relate to an individual case in which more time is sought for investigative purposes. Secondly, Parliament would have to vote on that issue and on whether the regulations were necessary to meet an emergency. Parliament can deal with that, because it would not be interfering in an individual case, but discussing and debating the state of the emergency. Finally, because what are made under the 2004 Act are regulations, they are subject to judicial review. That is not our law; that is the Government’s Civil Contingencies Act of 2004.
Chilling though it may be, and perhaps should be, as all emergency powers Acts feel in a democracy, at least it has those three safeguards. The first and most important of those safeguards—that the powers are only for genuine emergencies—is completely lacking from what is being painted as a reserve power in the Bill. In substance and in law, it is triggerable in individual cases whenever a chief constable, the DPP and the Home Secretary agree that more time could reasonably be necessary to investigate an individual case. In our view, those positions are chalk and cheese.
You will be aware of the ninth report of the Joint Committee on Human Rights, which says that the proposed extension would amount to a breach of article 5. Do you have a view on that?
Let us go back to the Civil Contingencies Act for a moment. It is not the case, is it, that there is clear legal opinion that it could be used to extend pre-charge detention in terms of whether pre-charge detention amounts to criminal proceedings? You will know that criminal proceedings cannot be altered by the CCA; do you accept at least that there is that debate, and that the matter is not clear cut?
Shami Chakrabarti: We have our view, with which Mr. Pannick and many others agree, but you are right to say that there is debate, Mr. McNulty. We are not wedded to the CCA; it was your legislation, not ours. We have told you what the crucial elements in the CCA are, the most important of which is that it is used in an emergency and not an individual case. You asked whether pre-charge detention amounts to criminal proceedings for the purposes of the CCA. We think that criminal proceedings begin at the moment of charge. If there is any doubt about that, there is no problem with having a separate piece of legislation that is more specific than the CCA and that deals only with emergency detention in a genuine emergency. That would put the matter beyond doubt. I do not think that anybody would have a problem with that. The substance is crucial. If you are passing emergency powers legislation in a democracy, it should be triggerable only in an emergency.
In your brief to the Committee, you describe Mr. Pannick’s view as unequivocal. You say that Liberty has obtained an unequivocal legal opinion from Pannick which confirms this.
But his judgment says simply that “the better view” is that criminal proceedings might well come under the CCA. That is hardly unequivocal is it?
I take that point, but the characterisation of Pannick’s advice as unequivocal is not really accurate is it, if it is just “the better view” that criminal proceedings are covered by the CCA? I am talking not about the wider point about the legislation, but simply about the characterisation of his opinion, which is hardly unequivocal when you read it.
Shami Chakrabarti: I believe it to be unequivocal—I have spoken to Mr. Pannick—and my view is unequivocal. But this is not about my view, it is about whether this House can come to what I hope will be a cross-party, cross-community consensus on anti-terror laws that will end an arms race that has been so damaging to community cohesion and national unity in the face of the terrorist threat.
What part of the move from 14 days to 28 do you regard as being so damaging? You have characterised it as an arms race, so this is clearly the next phase of the arms race, and your characterisation goes to prior extensions. Are you seriously saying that we have gained nothing of substance by going from 14 to 28 days, as was this House’s will?
Shami Chakrabarti: When you are the director of Liberty, you expect sometimes to have to take an unpopular position as part of your job. But, occasionally, you think that you would be a more effective campaigner if you tried to understand where the public are coming from. We do not have your burden and responsibility of facing constituents—constituents who might be blown up by a terrorist atrocity or who might be detained for more than a month without ever knowing the charges against them. To try better to understand your predicament, Minister, and that of your constituents, we did a little polling recently and I was absolutely gobsmacked to find that more than half of the people polled believed that the Government’s principle motive in the policy was to look tough on terror.
With respect, I am asking about your negative characterisation of what has prevailed since we have gone from 14 to 28 days. I do not want a potted history of Liberty’s angst over its views. My question is specific. You made a very negative characterisation of the shift from 14 to 28 days. You described it as an arms race, with the clear implication that nothing of substance, judicially or otherwise, has accrued from that shift, and that the world was a much better place when the period was 14 days. Are you seriously suggesting that it has not been shown that 28 days is necessary? I do not want the potted history of Liberty; I just want an answer on that point please.
Shami Chakrabarti: I think that an arms race is a very well-chosen categorisation. In an arms race there is plenty of substance that is achieved by the escalation. The arms are considered to be weapons for meeting a threat. An arms race is a useful categorisation in that the arms race potentially can go on for ever, and can potentially be counter-productive and damaging to those on both sides of that race. In political debates—
Let us be clear. You say that 28 days is not counter-productive. Is that right? You just said that 28 days was adequate.
Shami Chakrabarti: Australia, which is the nearest comparable perhaps, settled on 12 days after a big parliamentary debate. But this House has passed 28 days. I simply say that the public are becoming sceptical about the wisdom and efficacy of tougher and tougher and tougher anti-terror laws. They are now becoming sceptical about motives, which is particularly worrying for national unity, community cohesion and the intelligence that is so vital to meeting this threat. We need to look at proportionate alternatives before we escalate further.
Gareth Crossman: The Minister and the Government will of course portray the positive aspects that they say arise from pre-charge detention. What we will try to do, if we believe that a policy might be counter-productive, is draw attention to where this might be problematic. If we are saying, “What might the consequences of extension to 28 days be?”, it is worth drawing attention to the Home Office’s equality impact statement, which says:
“There are strong concerns expressed by representatives of the Muslim community that they are being targeted as a religious group”—
Gareth Crossman: Okay. The statement also says:
“Muslim groups say that pre charge detention may risk information being forthcoming from members of the community in the future.”
That will be counter-productive. You are asking what the consequences of your legislation might be—that is from your own equality impact assessment.
Yes, at this point, and perhaps if we come back to that we will get some answers.
I want to touch on the international comparisons. You made great play—quite rightly—of how special the notion of charge is in UK jurisdiction. However, whoever has done your international research has used that charge equivalent in the most erroneous fashion possible, producing research that bears no scrutiny at all. If you look even at Justice’s summary of the Kercher case in Italy, you do not see anywhere in their deliberations—in paragraph 58 of the document that they presented to us on Tuesday—the definition of charge as you describe it in paragraph 9 of your document:
“Before charge a person is not formally accused of any criminal offence.”
The three defendants in the Kercher case have not been accused of or charged with anything yet, but they have been in custody for six months. Do you stand by your pretty little graph—however misleading—of international comparisons?
Shami Chakrabarti: You are quite right that the more difficult comparators are European civil law regimes and the easier ones are common law regimes, such as the United States, Canada and New Zealand. It is one day for Canada, two days for the USA and New Zealand and seven days for Ireland. Those are the easy ones. The more difficult comparators are the European countries. All I can say to you, Minister, is that we are not French, Italian or continental lawyers so we commissioned lawyers qualified in those jurisdictions to tell us what they believed to be equivalent to the moment of charge in the English and Welsh system. They came up with those figures, such as it being four days for Italy. In the Kercher case, all I can say is that an elision is made between charge and trial that cannot stand.
Shami Chakrabarti: These European countries are all signatories to the European convention on human rights. States have fallen foul of the Strasbourg jurisdiction for detention periods of 10 and 15 days, so the idea that you can not charge someone for six months and not fall foul of the European Court of Human Rights is, to me, quite fanciful. I am not qualified in these jurisdictions. The research has been published and the lawyers who gave us the advice are all named and their credentials set out in the report. I can say no fairer than that.
We now have under 25 minutes. Several colleagues are seeking to catch my eye. As always, I want to get you all in, but a certain self-denying ordinance is required.
Do you not think it very spurious and somewhat naive for the Government to try to connect days to risk solutions? For example, “If we had 14 days, we would get most of the terror plots. If we had 28, we would get nearly all of them.” They want to go further and further. It shows a complete naivety about good counter-terrorism practice, which is not just about days. You can never rule out the risk. There would be incidents even if you had 120 days of detention.
Shami Chakrabarti: You could present it as naivety. Sadly, the public that we polled did not find it naive at all—far from it. They thought that it was spin. I find it really worrying that levels of public trust in these debates are where they are. However, I agree with you that increasing the number of days again and again is not effective. There are better alternatives that are more proportionate, which would be less counter-productive. The issue is about that balance between counter-productivity and giving yourself more time. We want to find ways to give the police more time without the counter-productivity of the injustice that comes from longer and longer periods without charge.
When people refute the claim that there is a similarity to internment, would you say that they are missing the point? Internment has the same naivety as the detention of a group of people who are high-risk or have certain links based on intelligence rather than evidence, as Sir Ian Blair himself said in evidence. Are we in danger of going back into the same naivety again?
Shami Chakrabarti: You and others on the Committee are better qualified to talk about the troubles in Northern Ireland than I, but I have been looking back at Hansard from 2005 and the last great pre-charge detention debate. One of the most important interventions was from Mr. Robinson, who is now the leader of the Democratic Unionist party. In his intervention, he was not saying that 90 days was the same as internment, but that there were strong similarities between the two policies. The counter-productive effect was one such similarity. All I can say is that I agree with him.
To Mr. Llwyd you said that you thought the existing 28 days was adequate. However, both Sir Ian Blair and ACPO said that they have convincing evidence of the mounting complexity and global nature of investigations. They said that they were already pushing on 28 days and felt that very soon they would need to exceed that limit and have to come back to us. Do you accept that that scenario is near, and do you not agree with Sir Ian that it would be much better to introduce well-thought out legislation now rather than as a knee-jerk reaction?
Shami Chakrabarti: I certainly agree that legislation should be well thought out. I note, like everyone, the apparent disagreement between the DPP, Mr. Macdonald, who brings charges and has to make them stick in court, and the investigator, Sir Ian. I am neither a prosecutor nor a policeman, so I will not doubt their categorisation of the problems that they face. All that I would say is that Sir Ian, understandably, wants more time and is worried about the complex nature of plots. We think that a lot more can be done to assist him and his colleagues without further extending pre-charge detention with all the counter-productive and unjust effects of that. I do not need to doubt his fears about complexity and gravity of ambition and consequence. I can just take all of that and try to work with him and others to come up with more proportionate alternatives to the profound and counter-productive and internationally embarrassing injustice of 42 days.
To come back to the basics, you were quite right when you said that you do not have the burden and responsibilities of representing constituents, and we do. Given that we have the duty to frame legislation in a way that strikes a balance between rights and responsibilities, do you accept that the civil liberties of the public who travel on public transport are equal to, and are worth protecting as much as, those in pre-charge detention?
Shami Chakrabarti: The beauty of the post-world war 2 human rights framework is that it is not just about freedom, but protection as well. It imposes positive obligations on states to protect people as well as not to interfere unduly with their freedom. I am a human rights campaigner and not an elected politician. I do not have your burdens and responsibilities. But as a human rights campaigner, I feel a responsibility to protect life and liberty. Everything that Liberty is proposing, the discussion that is going on and the consensus that has been achieved between Members of this House—quite a moving and inspiring parliamentary consensus has developed—and people slightly to the left and right of politics, people of all the great world religions and none, is compatible with human rights. It is compatible both with protecting your constituents, who are at risk of being blown up, and your constituents who risk being locked up for 42 days, losing their jobs and their livelihoods and being branded terrorists. We can do better than we are.
You talk about consensus. One of the activities of the past year or so has been an attempt to build a cross-party consensus on the most appropriate tools for fighting terrorism effectively. Components of that are in previous statutes and also in this Bill. We are talking about the lower order, but serious offences that can now be charged; the reduction in charging threshold; and post-charge questioning with appropriate safeguards. Many of us would have liked to see intercept as well. Could that package not achieve the objective that we share, which is of early charge rather than detention without charge?
Shami Chakrabarti: Absolutely. That is what we believe. If somebody says that there are still gaps, we will wholeheartedly look at those gaps. We take this very seriously. We are not just sitting here throwing stones at Government policy and at the concerns of the Metropolitan police or others. We have been doing our very best to engage with this, as I know parliamentarians on all sides of the House have as well. We think that there is very strong package, some of which was not present in 2005. That is important. Sometimes journalism will deliberately present things in a certain way and all of sudden people change their minds: Labour Members who voted for 90 days, but now do not support 42 days. How can that possibly be justified? Well partly, they have spoken in this House and justified their positions because they have now seen the development of a range of alternatives that just were not on offer back in the autumn of 2005.
May I put to you, perhaps as a devil’s advocate against both your case and mine, a point that has been put to me? It is all very well having these arrangements that enable an earlier charge to be pressed, post-preferment of that charge and questioning on possibly more serious charges, but the holding charge is alien to prosecutorial practice in this country and is something that they rather preciously do not wish to engage with.
Shami Chakrabarti: That is a very important and I am glad that you put it. We should agonise about this. I am not talking about a holding charge. I am talking about a proper and serious terrorist offence, which in its own right justifies remand in custody and a very serious custodial term on conviction. This is not stealing the bicycle. This is a serious terrorist offence in its own right. But these precursor terrorist offences were taken by this House because they are so grave. So if you end up being convicted of possessing material for a terrorist purpose and nothing else, you are a very serious criminal who is going to prison for a long time.
May I give one other example which is critical to the Government’s case? Very often they say that one of the complexities is the difficulty of dealing with computer encryption and finding the key. I am at a loss to understand why the legislation that the House passed to require production of the key to encrypted material has not been more often used. Sir Ian said on Tuesday that one of the reasons was that because the tariff on it was so low, a court was unlikely to hold someone on remand for refusing to produce the key to suspected terrorist material. Have you any comments on that?
Gareth Crossman: A more obvious reason why it has been so infrequently used is that this legislation was passed in 2000 and has remained inoperative. It has only very recently been brought into force. If the law ain’t there, you can’t use it. Just to supplement what Shami said, it is extremely unhelpful to talk of holding charges. That is not the process you go through. You do not charge somebody with an offence such as acts preparatory to terrorism, with a view to bringing a charge at a later date. You charge him with that offence because that is the appropriate charge to bring and it may happen that there is further investigation at a future date. To look at it from the end of what the final charge may be is the inappropriate way of looking at it. That is why you get very unhelpful language such as holding charges.
You called earlier for more proportionate measures rather than ratcheting up the days of pre-charge detention and said, with a heavy heart, that you had considered the Civil Contingencies Act. I served on the Bill in 2003-04 and I seem to recall being told that it was precisely not about terrorism and being reassured on that point because we would be bringing forward proposals later. Liberty’s criticism of the Act is that it is without an appropriate consideration of proportionality and that it allows sweeping draconian powers. Is not the real attraction of those who put forward the Civil Contingencies Act that that lack of proportionality would make it easier to go to judicial review and to stop any extension beyond 28 days and the introduction of 58 days under the Act?
Shami Chakrabarti: I must disagree. If one looks at the definition of “emergency” in the Civil Contingencies Act, terrorism is one of the grounds of emergency that is expressly provided in that Act. I can only refer the Committee to the definition of “emergency” in that Act. Terrorism is one of the many potential triggers. I am also delighted to say that, as a result of the work by many people such as you, who tightened up that legislation between the first draft and the final draft, proportionality is expressly built into the test for making regulations under that Act. Do not get me wrong; I do not want emergencies every day of the week. I am not Mr. Rumsfeld, who wants a permanent state of emergency. This is chilling stuff; emergency powers in democracies are chilling stuff. However, necessity, proportionality and compatibility with human rights are all now written into that Act.
Am I playing this game because I know that, whenever Mr. McNulty’s three 9/11s transpire—God forbid—and the authorities are flattened, people such as myself will run off to court and the judges will quash regulations? I am afraid, Sir, that that is just not my experience of litigating in our courts. If you remember, even in the infamous or famous—depending on which side of the argument you are on—Belmarsh decision that the Law Lords passed a few years ago on the question of whether there was an emergency, eight out of nine Law Lords—
Sorry, Shami, but we are running out of time. You have been extremely forthcoming witnesses and I very much appreciate that, but we must have tight answers to tight questions, otherwise people will not be able to pose their questions and that would not be right. Please, Shami, give a brief answer.
This question is turning away to another subject that I do not think we have touched on, which is coroners’ inquests. There is a proposal in the Bill that is designed to remove the need to have a jury in coroners’ inquests. The apparent justification is that that is a necessity because intelligence material or secret material might have to be placed before a coroner in such circumstances. What is your opinion of that proposal and, in particular, do you have a view about the difficulty of getting vetted juries, which one can see from past experience in criminal trials of a national security nature?
Gareth Crossman: My feeling is that these are excessive measures. Liberty’s view is that there is, as in many other parts of the legal system, a huge issue of public trust and confidence in the inquest system. Allowing direct Executive input into the inquest system, such as allowing a Government Minister directly to replace a coroner or allowing a Government Minister to decide that juries shall not be present at inquests, will have a massive impact upon public confidence. I do not deny for a second that there may be national security issues and other issues relating to the evidence that can be heard, but the current system allows for public interest immunity, for example, to allow for certain material not to go before the court or for it to be dealt with in particular ways.
I was slightly surprised that this very extreme measure was introduced so suddenly. Often, when the Government are planning something, there will be quite a long lead-up to it, but this was a case of the Government saying suddenly, “We are going to take out juries and coroners”, so it came as a bit of a surprise. As yet, there does not really seem to be an answer.
I am aware of the time, but I would like to make one other point. There is extensive domestic and European case law on human rights compatibility relating to the inquest system, which includes involvement of the family and transparency, and that is very clearly set out. I have very strong concerns about whether these new measures will be compliant with those requirements.
He was asked if he thought that, if pre-charge detention went beyond 28 days, that extension would be compatible with the ECHR, and he said that, in his view, it would be compatible. However, you are saying that, in your view, it would not be compatible.
Shami Chakrabarti: All I can say is that the convention requires that a charge is brought promptly—that is the phrase that is used. I appreciate that people can have debates about how many hours or days constitute promptly. All I can say is that it would be pretty out of step with past case law of the Strasbourg court. Ultimately, however, it is not my role to trade legal opinions with the DPP.
If Parliament agreed to the pre-charge detention proposals, and the police and the DPP subsequently asked for the higher limit, would you contest that?
Shami Chakrabarti: In Liberty’s view—this is our view of the convention, but mostly it is our view of what is right—the only circumstances in a democracy where it should be permissible to detain people for 42 days would be Mr. McNulty’s three 9/11s on one day scenario, where the authorities are completely overwhelmed. I do not accept that the test in the Bill—that there is not an emergency, but there is an individual case—
You have given an indication that the response from the wider public in your contacts with them is that all this is just the Government talking tough. Would you be prepared to share with the Committee—not now, but perhaps in writing—details of the questions that you asked the wider public and, if possible, the kind of people involved. Was it just Mr. and Mrs. Joe Public whom you spoke to?
But it is your place to say, apparently, that it should not go beyond 28 days, so why can it not be your place to say that it should be 14 days or seven days? I just need to know what Liberty’s position is on this.
Gareth Crossman: The way we have approached this is that Parliament sets the limit. The limit that has been set by Parliament is 28 days. For any attempt to extend that, we would expect the Government to make a very strong and convincing case that it was necessary. It has been said by the Government and by others, such as Ian Blair, that there is no evidence that an extension is necessary.
Shami Chakrabarti: I think you make a useful point, Sir, which is that the actual principle is one of prompt charging. That is the principle that goes back to Magna Carta and which is now reflected in article 5. So the word is prompt. As we have set out in the comparative research, the different democracies that are all attempting to implement the principle of promptness have come to slightly different views.
May I just make one point, because we are running out of time? Ken Macdonald, the DPP, said:
“For most terrorist cases now, the whole purpose of terrorism legislation is to intervene as early in the process as possible. You cannot arrest a suicide bomber after he has blown himself up.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 59, Q156.]
Sir Ian Blair was saying that the police take people into pre-charge detention just on intelligence because they are so scared that if they do not, something terrible will happen. I think we need to give them the benefit of the doubt if they need to do that, because they need to build up the evidence.
Shami Chakrabarti: I absolutely agree with you, Sir, that that is what makes terrorism special to some extent—the need to intervene early. That is why, in recent years, you and your colleagues have put on the statute book all these precursor offences, which are not considered legitimate in other areas of criminal activity.