Thank you. As the Committee knows, we have 45 minutes with you and have agreed that for up to 15 minutes questions will focus on matters other than pre-charge detention without trial.
Lord Carlile: I believe that post-charge questioning could be subject to a code of practice, or an amended code of practice, which would not require judicial supervision, as long as the code of practice was clear enough. Something similar to code C under the Police and Criminal Evidence Act 1984 could be used to regulate that procedure. My own view is that post-charge questioning is—this is contrary to what seems to be some people’s impression—very much not a silver bullet and will make limited difference to cases.
I do not think that there is huge disagreement about that. Its use would be limited, but there seems to be a unanimous view—I think that this is correct—that it would be a useful extra. The concern expressed is that it is a departure from normal practice. At that stage, usually the person will be awaiting trial, so post-charge questioning could be oppressive. It might be sensible, therefore, to regulate it by requiring an application to the courts.
Lord Carlile: I have no objection to that viewpoint, but I think that it is probably unnecessary. At any stage, when a person is asked to answer post-charge questions, they will be fully represented by their lawyers. Nobody has ever suggested that the process should take place in the absence of their lawyers. I would have thought that that was sufficient protection, just as it is when people are questioned pre-charge about very serious offences, which happens all the time. However, I have no particular objection if the Committee or Parliament feel happier with the injection of a judge to supervise the process. I am sure that the judges would do as they were told.
I turn then to data sharing, on which the Bill contains a considerable amount of new legislation. As we perceive it—I think that we have probably understood it correctly—part of it will bring the work of the Security Service and the Secret Intelligence Service on to a statutory footing in this area. Nevertheless, in some ways, the powers involved represent a radical departure and envisage the ability to share information, explicitly on a statutory basis, for reasons other than crime prevention or dealing with crime. The concept of national security is not necessarily highly defined. Do you have a view on that?
Lord Carlile: It is very difficult to define exactly the concept of national security. The security services certainly have a need to share information, as do other control authorities, which is the generic term that I use for the police, the security services, Revenue and Customs and so on. I go to a lot of airports and seaports and I have seen some bad examples of useful information being available but not shared. I believe that any information that is potentially useful in the prevention and detection of terrorism should be shared by appropriate bodies. If that requires placing it on a statutory footing, again, I have no possible objection. I would support it.
My Lord, I have asked every witness for their comments about plea bargaining or plea mitigation, and we have had interesting and varied answers. May I hear what your views are?
Lord Carlile: I have been at the Bar for 37 years and I have been plea bargaining for 37 years. There is nothing new about it, as any practising lawyer knows, but the issue is about whether we should put it on a statutory footing. Now, we probably need to place it on a statutory footing, but we should not lose the best of what we have been achieving over the years. The so-called Goodyear direction is already extremely valuable. It is a hearing in which the defence can ask the judge, in open court, to hear both sides and give a view as to what the likely sentence would be if there were a guilty plea at that stage.
What I am worried about, is us adopting the American system of plea bargaining. I have examined the so-called 5K1 procedure in considerable detail, and I have read transcripts of a complex procedure of that kind. Very much less is recorded in writing in the United States than in the United Kingdom. It is naÃ¯ve to say that we can simply adopt American practices, because they would not be permitted by courts as evidence. The product would not be good evidence in courts in the United Kingdom. If we are going to structure plea bargaining, we must ensure, first, that it is done in a fair way. Secondly, reductions in sentence must be real—they must be substantial. If someone is facing a sentence of 40 years, it is no use having plea bargaining that reduces it to 36 years. That is unrealistic. Thirdly, there must be a procedure to give proper credit in a proper way—which may be highly confidential and possibly not even at the time of sentence—to people who supply substantial information that assists the prosecution and conviction of others. I hope that that answers your question.
Liberty made the entirely reasonable point that, while it understood the need and supported the theory, at least, of plea bargaining, there had to be “justice”—its word, not mine—for the victims of the crime. For the sake of argument, suppose that a 40-year sentence was reduced to four. How would that sit with you in terms of the perceived fairness for those survivors, relatives or whoever, who were expecting a heavier sentence?
Lord Carlile: That is a matter for the court. You have given an extreme example; I cannot think of a situation in which a 40-year sentence would be reduced to four. However, if a 40-year sentence were reduced to, for example, 15 years, and the consequence was that 1,000 lives were saved, that would seem to me to be entirely proportionate. We are talking about the crux of English administrative law—proportionality. The reduction must be proportional to the information that has been given. The record of administrative court judges in recent years shows that they are pretty good at applying the proportionality test, and I suspect that most judges would quickly get used to that kind of situation. If you look at the records of Diplock courts in Northern Ireland—as you will know, Mr. Mercer, as I think that you have some Northern Ireland experience—
May I return briefly to the question of post-charge questioning? You have said that you are comfortable with that, and for a code of practice to be put in place to deal with it, with or without judicial oversight. Should there be a different approach if the post-charge questioning is about a new matter, rather than that with which the person was originally charged?
Lord Carlile: I am not sure that post-charge questioning is necessary if it is about a new matter. I know that some lawyers are in the room. They may or may not agree that if there is an entirely new matter, then there is a new arrest, and the whole process of pre-charge questioning starts again. If someone is in custody for robbery and they are then arrested for a murder, there is an entirely separate set of proceedings for that murder.
The real point that I want to make about post-charge questioning is that by and large people will not answer the questions anyway. You have to realise that the value of the adverse inference, which would be brought into play if people failed to answer post-charge questions, is limited, particularly if people refuse to answer questions on the advice given by their solicitor. In that case, they can then say in court, “My solicitor told me that we had not had full disclosure and I was advised not to answer questions.” On the whole, juries do not pay particular regard to an adverse inference in that situation.
Lord Carlile, what is your view of the proposals in the draft Bill concerning coroners’ inquests? How would the rights of the bereaved families be properly protected? That is question one. May I ask a second and similar one? What about the public interest in ensuring that the state and public bodies are held to account and are seen to be held to account?
Lord Carlile: The coroners’ provisions were introduced in the Bill after I was asked to report on the proposals in the draft Bill. I am not completely happy about the coroners’ proposals because they have reduced too far the transparency of inquests. Having said that, it is clear that national security must be protected. There are some cases and inquests in which having a jury is not a realistic option because of the public interest and the national security aspects that might arise. The relevant clause in the Bill is drawn rather more widely than it needs to be. I am also firmly of the view that a special advocate procedure needs to be inserted if inquests are to take place in the broad parameters that were introduced into the Bill at a fairly late stage, so that the interests of families, the deceased and others will be protected as special advocates protect people in judicial hearings of control orders, with a sight of all the closed material. Special advocates have proved peculiarly useful and successful recently in control orders cases in the High Court, and that could be replicated in coroners’ inquisitions.
I have a sense of disappointment that the proposals of the independent committee that looked into inquests have been so heavily diluted by the Government that they bear little resemblance to the committee’s conclusions. The add-ons in the Bill leave me feeling slightly uncomfortable. There is certainly room for amendment.
With regard to the issue of transparency and of public bodies being held to account, special advocates deal with the bereaved family aspect, but inevitably there is a feeling that things are going on behind closed doors.
Lord Carlile: National security has been protected behind closed doors for centuries. Spy trials take place in camera. The control orders cases involve special advocates. Under whatever new inquest procedure we have, the coroner, whoever he or she is, will have to produce a detailed written judgment. Like the control orders cases, it may turn into two judgments: a closed judgment and an open judgment. The open judgment is issued to the public, but there must be enough reasoning to satisfy the proper requirements of transparency.
Two colleagues have indicated that they want to come in on matters other than pre-charge. We are about to reach our limit, but I will take those two on the understanding that the questions are brief. I know that our witness will be succinct; he has already demonstrated that in his answers.
I am interested in the way in which people are talking more and more about using intercept as evidence. I would be grateful if you could give us your view about how intercept evidence might be useful, limited or perhaps not used at all.
Lord Carlile: The Chilcot inquiry has now reported and I broadly agree with its conclusions. I have always been in favour of the availability of intercept evidence. My own view, having examined an awful lot of terrorism cases, is that intercept evidence would be useful in a very small number of very serious cases: possibly one or two in the next three or four years. That is not a scientific analysis, but an educated guess. Competent terrorists, if I may use that expression, are very counter-intuitive about intelligence efforts. One hears stories, although this is only a hypothetical example, of terrorists going into a park and lying prone, face down on the grass, so as to talk to one another head to head. Those kinds of people do not say things on telephones that would be much use to anyone. Also, it is absolutely vital that national security should be protected. That applies in every single country that I know of that admits intercept evidence, and I do not know of any comparable country where there is an exception to that rule.
Yes. I have been led to believe that the technology that is used is becoming much more complex and that it will ensure that tracing will become so much more difficult that intercept will become less and less available to us.
Lord Carlile: I cannot comment on the technology because I am not an expert on it, but I would have said that the balance stays roughly the same as technology develops. The state’s ability with technology increases and the terrorists’ interest in technology increases, so although the actual technology used changes, we are roughly in the same position.
I would like to have asked whether your view is that the safeguards for post-charge questioning, particularly the lack of an extant text of the changes to the basic codes of conduct, were satisfactory, but I will instead ask a very specific question about part VII of the Terrorism Act 2000. You drew attention in your report to your experience of its operation in Northern Ireland. However, it has been put to me that the fact that that has now been repealed as part of the normalisation process means that its reintroduction in Northern Ireland will be seen as a regressive step, albeit as part of a UK-wide provision. Do you recognise that and would you care to comment on it?
Lord Carlile: No and yes. No, I do not recognise it because it is not a comment that has been made to me by anyone in Northern Ireland. I go to Northern Ireland fairly frequently, where I talk to all of the political parties, visit community centres and obtain anecdotal evidence wherever I can. I have not heard that said. I think that it is viewed with satisfaction in Northern Ireland that part VII has been repealed, and rightly so. It has actually been replaced by something that is extraordinarily like part VII but is in fact public order legislation, so very similar powers are available. As a matter of logic, Northern Ireland is and remains part of the United Kingdom, so I cannot see a logical argument for not including Northern Ireland.
With regard to your prediction for the use of intercept, Lord Carlile, could you clarify that the use of surveillance transcripts or footage has been incredibly useful in achieving convictions? In the example that you used of two men in the park, their conversation would be under surveillance, probably direct if it was a public place, and would therefore be admissible in a court of law. Is not the nub of the problem that the differences between the definitions of surveillance and interception need to be re-examined before we debate whether it is admissible?
Lord Carlile: I think that it is simpler than that, if I may say so, Mr. Wallace. There is a specific ban on the use of the product of conversations on a public telephone system. It seems illogical to have such a ban, when what you have rightly called surveillance interception is available. I have been involved in numerous cases in which telephone calls have been intercepted, not through the telephone system but by placing a bug in the ceiling of the room, and used as evidence.
Incidentally, may I just add one sentence, please, Chairman? Intercept evidence could prove immensely useful in the detection of ordinary crime. It will probably be least useful in the detection of terrorist crime. The FBI has illustrated well how, for example, you can sting huge drugs or money-laundering conspiracies with the use of interception as a primary investigation tool.
Lord Carlile, you are aware of the issues and debate that have taken place on the matter. Why do you feel that this is a proportionate response to the threat? In particular, may I press you on the point about which we have heard, that a lot of evidence is being required on a contingency basis rather than for actual use, at present?
Lord Carlile: The decision to seek the evidence on a contingency basis is made by the Government. It is a political decision that I assume is related to potential legislative difficulties. I entirely understand that, but for this purpose, I am no politician—indeed, others may say that I am not for other purposes. I am here simply to advise on the merits of the situation. My view is that it is proportional. I can give a number of reasons and examples for that.
I will give you a sort of headline. In two cases so far, suspects have been charged using what is called the threshold test, and I think that you are aware of the tests used by the Crown Prosecution Service. In two cases, suspects have been charged using the threshold test at or very near to the current limit of pre-charge detention. I do not view the threshold test as hugely satisfactory. It is desirable in as many cases as possible that people should be charged with something approaching the criminality of which it is reasonably suspected that they are guilty and on which a prime facie case will be presented. I have heard it said that the way to deal with that is simply to produce holding charges—the threshold test almost encourages that—and to produce the real charge at some later stage. I do not see that as being any more human-rights compatible than a properly judicially supervised extended detention period that results in proper charges being brought on a sound basis, without the necessity to use the threshold test, which is undoubtedly second-best, as the Crown Prosecution Service recognises.
May I come back on the point that you have raised about there being two cases in which the charges were brought very close to the end of the 28-day period; I cannot remember whether it was 26 or 27 days—
Twenty seven. There has been a difficulty with that. You may be able to look into it and help the Committee by writing to us.
I choose my words with care in identifying the cases, as I am extremely conscious that both may well still be sub judice. It has been suggested not, I wish to emphasise, that the police somehow deliberately delayed charging, but that, as it turned out at the end of the process, it was not a case in which it could be said that 27 days were needed to formulate the case. The evidence on which the charges were eventually brought was, in fact, available considerably earlier in the process. In saying that, I make no criticism of the police and the fact that they may have wished to have looked at other aspects in the intervening period. Are you able to help the Committee on that matter?
Lord Carlile: Yes. It is very difficult to talk about sub judice cases, as Mr. Grieve recognises. However, I believe that there will be cases among the current considerable crop waiting to be tried in which people will be tried for lesser offences than might otherwise have been the case. I believe that there have been cases in which people have been charged when greater evidence might have been made available by following up sensitive intelligence or other evidence that is inadmissible for the time being. I believe that there are cases where encrypted material that has not been dis-encrypted—if such a word exists—has not been accessed. I think that there have been cases where inquiries overseas, which might have led to a more realistic and serious charge, have not been completed. Those are some examples.
This may be straying from Mr. Grieve’s question, but the simplest example that I usually give about cases in which more than 28 days might be needed, subject to appropriate controls, is when a terrorist is injured at the time of arrest and is unfit to be interviewed for 28 days. That happened in Glasgow. The unfortunate Mr. Ahmed died more than 28 days after he was burned in the event. Had he become fit to be questioned, it is certainly arguable—arrest being a mixed matter of fact and law—that he had been under arrest throughout that period and that time had therefore run out. That is arguable and were I in a case of that kind I would undoubtedly argue it with a reasonable prospect of success.
The example of Kafeel Ahmed is very interesting. The man was in a Jeep Cherokee armed with explosives that crashed through the doors of the terminal building at Glasgow airport. Had he regained consciousness, is it inconceivable that he might have been charged with an offence and therefore been remanded in custody?
Lord Carlile: Of course it is right that he would have been, but the issue is whether he could have been asked questions. Nobody can predict how a suspect will react during questioning. Most do not answer questions, but some do. It is potentially very valuable to the police and extremely valuable to the inquiry to carry out interviews. Sometimes the effect of interviewing is to draw to the attention of the person being interviewed the real strength of the potential prosecution case. In some cases, that can lead to their pleading guilty or providing information.
My point is that if with the provision for post-charge questioning there was no problem with continuing questioning, surely it is inconceivable that that individual would have been released, whether after 28, 42 or 90 days, without charge under those circumstances.
Earlier we spoke to representatives of Liberty. I quoted to them a publication in which Liberty said that there would certainly be people arrested and then discharged after 42 days, thus incurring a loss of liberty and potentially more devastating consequences for their standing in the community, their jobs and so on. When I challenged that, they stated that under the 14 to 28-day provisions, people under the process of judicial scrutiny had been arrested and then released. Are you satisfied that the proposals in this legislation will pre-empt, as far as humanly possible, any possibility of anybody being detained for 42 days and then discharged?
Lord Carlile: No. I do not think that anybody could ever say anything other than no in answer to as straightforward a question as that. But so what? Many people are released and not prosecuted after they have been arrested for all kinds of criminal offences, including murder and other offences right at the top of the criminal calendar. Many people are acquitted after being in custody for a very long time.
If you compare what happens in this country with what happens in other comparable countries—for example, France or America—people are frequently released after very long periods in custody, having been charged with a vestigial offence, which is not proceeded against in court. It is part of the ordinary ways of the criminal world—of the investigation of crime—that sometimes the wrong people are arrested, and sometimes the right people are arrested but there is the wrong sort of evidence against them and they get away with it. I have never heard Liberty making an objection in general terms to people not being compensated in every instance in which they are arrested but not prosecuted. I think that they are being inconsistent.
Lord Carlile: I should have answered the other part of your question, because really you asked me two questions. The answer to that is no, I am not entirely satisfied. I have been, I hope, completely consistent about this, from the time I first started writing about post-arrest questioning. In my view, the judges who deal with these matters—extensions of detention—at the present time do a perfectly serviceable job; indeed, they do a very good job. I am not sure that the public need more reassurance: I think that you need more reassurance. We live in a peculiar political village here and I think that the public take a rather different view about these matters. But more reassurance should and can be given.
I hope that, consistent with the views that I have expressed in the past, Mr. McNulty and Mr. Coaker and their colleagues will have another look at these provisions, with a view to possible amendment, to strengthen the role of the judges in extension of detention. That would also be consistent not only with my views as independent reviewer, but with some views expressed by the Newton committee of Privy Councillors some years ago. There is obviously room for compromise and amendment here, still.
During our deliberations we have talked about the comparisons, which might be made by our enemies, between an extension beyond 28 days and internment. What are you views, please?
Lord Carlile: This is a loose, unhelpful use of language. When I think of internment, I think of regulation 18B, which was carried out during the second world war in a much less well-scrutinised manner than, for example, control orders—the system of law did not work well—and of the regrettable period of internment in Northern Ireland.
I have friends who are now retired judges who played their part in hearing internment hearings in Northern Ireland. Not one of them that I have spoken to felt comfortable about it, because the “evidence” that was presented was poorly scrutinised, almost entirely hearsay and, at best, was reputational only. What is proposed already and what could be achieved here is a much more rigorous judicially-supervised system. Indeed, as I have said repeatedly, my view is that if the right, more developed system of judicial control was introduced, a fair number of those who have been held for up to 28 days already would be held for less time.
Thank you. That was helpful.
There is absolutely no doubt—no one in this room would feel that it was so—that what is being proposed bears any close resemblance to internment. The fact remains that the word “internment” is deeply emotive and pejorative. Would you accept that, whatever we do and say, our enemies will interpret it as that?
Lord Carlile: No, I do not. We go back to the old Burkean thing about politicians needing to be pillars of what is right, not weathercocks of public opinion. If you harken too much to that kind of remark, you will not even be weathercocks of public opinion; you will be weathercocks of a limited opinion that is not public opinion.
As I go around airports and seaports, I take the trouble to stop and talk to real people who have been searched. For the most part, they are delighted that they have been searched and say, “I wish it happened more often, it makes me feel safer.” The Daily Mail reader has quite a lot to say on this subject, which is not always paid attention to in this Palace. I have to say that I am not an enthusiastic reader of the Daily Mail normally.
I have a couple of questions. On the issue of pre-charge detention periods and those that apply in other countries, should we be taking into account the practice in other countries and comparing a proposal for 42 days with what exists in other countries? The report produced by Liberty identifies that the UK has by far and away the longest pre-charge detention period. Do you feel that such views are justified?
Lord Carlile: No. Liberty’s report is deeply misleading. I had a conversation some time ago with Juge BrugiÃ¨re—I just use him as an example. He is the leading French juge d’instruction: a sort of hybrid between a judge and a prosecutor. It is quite clear to me that far more people spend far more time in custody in France on suspicion of something called association de malfaiteur—which, I suspect, we are all committing by being in this room today—and are then released without a proper trial taking place.
I read Liberty’s remarks about the United States and I just did not recognise where it was coming from. I sat in a room with an assistant Attorney General of the United States not so long ago and had a conversation with him about something that one can describe as Executive witness detention. In the United States, without releasing the figures to the public—he refused to tell me how many were involved—they are allowed to hold people for up to a year if they are potential witnesses, let alone suspects, of terrorist acts. Mr. Padilla, who is or was a United States citizen, was arrested years ago on suspicion of having parts of a dirty bomb in O’Hare airport, Chicago. By Executive act, they removed his citizenship rights and put him in a so-called brig—a one-person prison—off the coast of Florida.
Therefore, I think that Liberty has been grossly misleading about this: every comparable country, perhaps by different means such as a very small holding charge, has at least as long periods of detention as are envisaged in this country. If we have the right protections, we can do an awful lot better than any comparable country in the world.
I would like to bring you back, Lord Carlile, to the judicial oversight of the detention without charge, the extended detention, and your comments about internment. Currently, I am at a loss to see what the judge will be doing in the oversight, as one of the reasons given for early detention is that we are acting on intelligence and we need time to convert that intelligence into evidence. Yesterday Sir Ian Blair said that we often make arrests where we have lots of intelligence but nothing to submit as evidence and we need that extra time. Setting aside your suggestion of a more investigative judge to test the evidence, how will the current system allow the judge overseeing the process to test the intelligence put before him?
Lord Carlile: The current system that is proposed, as I understand it, allows the judge to review what is being presented by the police and the other control authorities and to determine whether detention is justified on the basis of that material. That is insufficient; I think that we can do better. The judge should be given a more inquisitorial role. It is absolutely vital that the Government have rightly envisaged senior circuit judges being involved in the procedure: for example, the judges at the Old Bailey who are all senior circuit judges and are used to analysing criminal evidence and criminal legal issues every day of the working year. They are the right sort of judges for this. You do not want commercial judges doing this kind of work, although they are often more brilliant people. The judge could carry out a detailed inquisitorial role and should be allowed, for example, to call for certain types of inquiries to be made, so that the role is developed.
This is not a legal point, so please indulge me. Many witnesses have claimed that the Bill’s provisions would, if passed, amount to a propaganda coup for Islamic fundamentalists, and for al-Qaeda in particular. Do you have a view on that?
Lord Carlile: I do not accept that. The Government have now given a great deal of resources to the prevents strand of counter-terrorism strategy, and they are right about that. I was at a conference organised by the national co-ordinator for ports policing last week, and the most important part of that conference was about prevents. That is a culture change in the police and it is one that they have embraced very well. But I do not see the period of detention as a recruiting ground. As we see in academic studies, the extent to which anything is a recruiting ground is very uncertain, even the war in Iraq. I think that the prevents strategy is terrible important but it does not have much to do with this.
Your views on the use of intercept are well known; we heard them earlier. Could you distinguish between the non-use of intercept to collect evidence to convict a terrorist and its use, permitted in the Bill, to freeze assets?
Lord Carlile: The freezing of assets, as any Minister would know to their discomfort, has been thrown into high relief by a decision of Mr. Justice Collins in the High Court today. The provisions in the Bill relating to the freezing of assets—the clause dealing with the United Nations provisions for the freezing of assets—will have to be examined much more closely now. The freezing of assets on the basis of proper evidence with a fair system of law—that was Mr. Justice Collins’ essential point in the judgment today—is a perfectly legitimate part of the fight against terrorism. The use of intercept evidence is thinly connected—I am not sure quite where the question is going.
If I have read the Bill correctly, intercept evidence will be permissible in connection with asset freezing.
Lord Carlile: That is a perfectly acceptable and tenable view. It is quite possible that terrorists may be using others to deal with their assets, and I can see no reason why intercept should not be used to deal with that. Having said that, you know as well as I that most big terrorist bombs cost next to nothing. The amount of assets seized in the past year in direct connection with terrorism has been less than £10,000, as far as the Metropolitan police is concerned.
To come back to the 28-day versus 42-day issue, we have heard from you about the brig in the United States and inquisitorial methods in France, but when Sir Ken Macdonald came here on Tuesday he was absolutely clear that he was satisfied with the system that we have in this country, in particular that we do not have holding charges—that is not something he relies on. He said:
“I have said this on a number of occasions...we do not perceive any need for the period of 28 days to be increased. Of course, people have argued to the contrary, and you have heard some evidence to the contrary. Various scenarios have been put up, and anything is possible, but the question is whether it is remotely likely.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 53, Q136.]
Why do you think that you are better placed than he to do an analysis of whether 28 days is sufficient?
Lord Carlile: There are two points. First, the Director of Public Prosecutions accepts the use of the threshold test and you, as a Committee, and Parliament will have to examine whether the threshold test, which is a much lower standard than the normal code of Crown prosecutors test for prosecuting, is an acceptable test for charging people with extremely serious offences.
Secondly, I have great regard for Sir Ken Macdonald; I know him, I have worked with him and I think that he is extremely good at his job. All I would say is that I have spent the last six and a half years looking at terrorism case after terrorism case, and many of the suspects have not been charged with a crime. I look at every detail, including the background intelligence, in every single control order case, for example. My belief, for what it is worth—you will have to make your own evaluation of it—is that, as I have said earlier, there is a small number of extremely serious cases to which the threshold test might apply.
I would like to say one final thing, Chairman. I want us to have an enduring corpus of terrorism law. I would not like to see someone released—a scientist, for example—who then took part in some future terrorism plot, and then have to observe the reaction in both Houses of Parliament to such an event occurring.
Lord Carlile, I am extremely grateful to you, as I think the Committee is, for your time, your expertise and, if I may say so, your exemplary succinctness. We will move on to the next witness and we need a speedy turnaround for that purpose. Thank you very much.
Welcome to our next witness. For the record, would you be good enough, please, formally to introduce yourself?
Good afternoon. Part 6 of the Bill deals with a completely new procedure for coroners’ inquests in terrorism cases. When did your organisation first know of the Government’s intention to legislate in this fashion?
From your organisation’s perspective, and in view of what a coroner’s inquest is designed to achieve, do you think that this proposal in the Bill will enable the transparency and fairness in the procedure to be preserved, or does it present you with difficulty?
AndrÃ(c) Rebello: It presents tremendous difficulty. However, we live in a very different age from Victorian times, when the coroners law was, in effect, written. Having said that, the whole point of an inquest is to bring out into the public view matters of public interest that appertain to sudden and unexpected deaths. Of course, if it is the case that a coroner hears evidence that cannot form part of the public deliberations, there is no transparency and the public do not know what is going on, and it is even worse if the coroner is appointed by a Secretary of State, bearing in mind that it would appear that the Secretary of State would be certificating and also being a judge in his or her own cause.
AndrÃ(c) Rebello: I do not see it being practical at all, because an investigation starts when a death is reported, and the coroner is involved throughout the investigation process. The coroner does not sit as an umpire or judge who arbitrates between different parties, but causes the investigation and is part of it. If the investigation by those who are investigating for other purposes is in any way inadequate or insufficient, the coroner has to supplement that investigation. It would be very difficult for a coroner who is seized of a death within his or her jurisdiction then to progress the investigation, or for someone else to be parachuted in to hear the case. The system is not the same as an adversarial system.
Earlier, I thought I detected an implication that you think the law is in need of updating. Do you feel that is best done in the way that it has been done, by tacking measures on to a Bill on terrorism, or would you welcome and like to see a coroners Bill that deals with all sorts of issues?
AndrÃ(c) Rebello: I would like to see a coroners Bill that deals with all sorts of issues, but a coroners Bill without any funding is no use whatever. If a coroners Bill is announced in the next Queen’s Speech, but it relies on local infrastructure and on local authorities funding the coroner service from their current budgets, that would not bring about real coroner reform. Real reform will come with investment in infrastructure, the training and development of coroner’s officers as a national service with qualifications to become a coroner’s officer, and pushing up the standards throughout. You cannot get reform on the cheap, otherwise it is no more than a change in nomenclature.
Tagging coroner reform on to the special cases with which this Bill deals is concerning. I take a slightly different view from INQUEST on the worth of juries. As you probably appreciate, with 110 coroners and about 450 coronial office holders, we are a very broad college. Many of my colleagues like having juries and think that they provide a lot. I agree, but when you have limited resources and when not all coroners have courts, delay is built into the system. I must make it absolutely clear that an inquest before a coroner sitting alone is not inferior to an inquest before a coroner sitting with a jury. I am comfortable sitting with juries and do not have a problem with that, but they cannot be questioned about their fact-finding exercises, whereas a coroner has to explain his or her decision and must be able to give reasons for it. You cannot get that with a jury case. If some of the information that comes to the coroner cannot be aired publicly, you can, as Lord Carlile said, end up with two sets of reasons—one for public consumption, which will be gibberish and will not make sense, and one for private consideration, presumably by the administrative court and higher courts. Of course, their subsequent deliberations will not make sense because they will not be able to explain how they have come to their judgments either.
What do you think will be lost without juries, particularly in relation to the families of those involved?
AndrÃ(c) Rebello: Cost, and the fact that the electorate are carrying part of the responsibility. The electorate have the right to vote and they appoint you as their representatives, but with that advantage comes responsibility, such as the responsibility to play a part in the legal system by sitting on a jury. I quite enjoy sitting with juries, but during the three or four weeks that one jury inquest lasts, I could probably hear 20 or 30 other cases. Of course, there are families waiting in a queue for the death certificate to be issued and to understand by what means their loved ones have died. The system is not designed or funded for 2008.
Given that coroners have the power to direct that the public should be excluded from any part of the inquest in the interests of national security, do you think that the powers in the Bill are necessary at the moment?
AndrÃ(c) Rebello: They might be necessary with regard to intelligence information and counter-terrorism information if it is in the interests of national security. It would be unsafe for society were some classes of information to be made available, perhaps with regard to ongoing surveillance and things of that nature. Because these matters tend not to come to coroners at the moment, I cannot give you any examples, but there may well have been examples in cases that I have dealt with that I have not been told about. For those matters, the answer is yes. As for other countries and other things generally in the public interest, the matter is exceptionally wide.
I am intrigued when you say that as a coroner you might not have been told things in relation to an inquest. Will you elaborate on what sort of things they might be?
AndrÃ(c) Rebello: I suppose that if the police who have been investigating a sudden and unexpected death have intelligence that is part of an ongoing inquiry with regard to counter-terrorism surveillance, I would not be told about it. I am told about an awful lot of things that do not come into the public arena, but there may well be some categories of information that cannot be aired in a public court because they would put investigations and the lives of citizens and of those carrying out the surveillance and their families at risk. I do not know if that has happened, but it may well have happened.
AndrÃ(c) Rebello: There was mention of a draft coroners Bill in the draft Queen’s Speech last year. It missed the cut for the Queen’s Speech, but the Ministry of Justice tells me that it is optimistic that it might be included in the draft Queen’s Speech this May. What is your question with regard to that?
Would it not be preferable in your judgment that these proposals regarding coroners’ courts should come forward as part of a wholesale re-evaluation of the role of coroners’ courts in that legislation, rather than being taken piecemeal here?
AndrÃ(c) Rebello: It would enable more consideration of the proposal in the context of the other proposals. The written submission that I sent to the Committee makes fairly clear my views with regard to the last copy of the draft Bill that I saw. It does nothing in itself. An awful lot of work that is non-legislative change would be the real reform. The Home Office position paper on creating a national service linking death certification and coroners seemed a much more sensible reform, but it will cost money. It is for the Government to decide how money should be spent. My real concern is that if we have a coroners Bill, there will be public expectation that things will be better. Nothing in the draft Bill that I have seen shows that things would be better without further investment. The draft Bill is supposed to be cost-neutral.
One of the strengths of the system has been that coroners are independent. What is your view of the proposal that inquests in some circumstances should be held before suitably trained and cleared coroners appointed by the Secretary of State?
AndrÃ(c) Rebello: I am very uncomfortable about that. I think that it drives a coach and horses through the separation of powers. If a suitably qualified or specially ticketed coroner needs to be brought in, it certainly cannot be any part of the Executive that appoints the coroner. Well, it could be, but our rule of law would be going out the window.
Is the society aware of other inquests that are being held over because of perceived difficulties about releasing information, which would suggest why the Government perceive this as so urgent that they must pre-empt the coroners legislation?
AndrÃ(c) Rebello: Not that I am aware of. The Coroners’ Society consists of all coroners. It has no central Government funding and everything it does is done by coroners, as a hobby I suppose, and in addition to running jurisdictions and sitting as coroner. We do not have a lot of time to get together to discuss cases or things of that nature. We work very long hours.
I appreciate that. I used to appoint coroners in my own area, so I know some of the work that they do. Have you had any discussions, formally or informally, with your colleagues who have been dealing principally with the military inquests as a result of the conflicts in Iraq and Afghanistan? Are there any instances from them that might suggest an urgent need for this provision?
AndrÃ(c) Rebello: There is an urgent need for greater assistance in getting evidence before those inquests. In the written submission, you will see that I was in contact with the Ministry of Defence. At that stage I did not have any of the cases to do with Iraq or Afghanistan, and I could write without having any conflict, or showing bias in any of the cases that I was going to hear. I was very concerned that there seemed to be a bland approach from the Ministry of Defence about the fact that that US service personnel would not come to give evidence at inquests. That is not what I was asking. I was asking for our Government to make a more strenuous request of their colleagues in the United States, asking them to facilitate those witnesses coming to this country to assist coroners by giving evidence, so that everyone could understand the means and circumstances in which loved ones had died.
The suggestion that United States personnel were not coming was something that I found unacceptable. I expect every citizen to co-operate with the coroner’s inquest by giving evidence, and even more I expect Government Departments to co-operate and assist with evidence being brought before inquests, so that families can understand the circumstances in which their loved one has died. Especially when someone has been on active service for this country.
I absolutely concur, and I am grateful to you for that. I have one last question. Taking into account the crucial role of the independent coroner’s court, if one was to accept that there might be, in terms of national security, a need to exclude some material from the public gaze, can you conceive of circumstances in which it would be appropriate for a coroner’s court to exclude material not on the grounds of national security but, as it says in the Bill,
“in the interests of the relationship between the United Kingdom and another country.”?
AndrÃ(c) Rebello: No. Public interest immunity applications are made before coroners’ courts, and coroners determine those cases. That could be more widely used, and could deal with some national security issues. The sensitivity of that material would depend on whether properly interested persons, as well as the public and media, might have to be excluded from the court. In some cases, I suspect that we have a sliding scale as to who needs to be excluded. I am particularly concerned about our responsibility with regard to the Human Rights Act. I heard the Minister on Tuesday say that the Bill was compliant with the Human Rights Act, but that is not my view.
I have been listening carefully to your response, Mr. Rebello, and I was prompted by the thought that our security services do not exist in absentia, but actually work with other countries. If the security services say that there would be a problem if evidence was secured from another country, would you accept that it was absolutely in the interests of our national security that that information was not presented?
Returning to the answer that you gave to my earlier question, will you expand on your comment that the rule of law would go out of the window if there were specially appointed coroners?
AndrÃ(c) Rebello: But you cannot pick your own tribunal. Basically, the case comes before the court and the judge, whoever they are, is the person who tries it. What we would be doing here is throwing out the person who should ordinarily hear that case according to the Coroners Act and replacing them with what the public might perceive to be a Government stool pigeon who would side with the Government. That is probably not the case at all, but if we needed specially trained coroners, there are only 110 coroners, so why should not every coroner be specially trained and security cleared? If that were the case, there could be no accusation that the Executive was interfering with the judiciary.
Government policy is a matter for the Government, and coroners will abide by whatever Parliament decides. The only reason why I am here is to give evidence and advice from the point of view of an experienced coroner and on behalf of the Coroners’ Society with regard to practical problems. There is no point in passing legislation if it will lead to a lack of public confidence in the Executive and—worse still—in the judiciary. Every year, I deal with up to 3,000 deaths and hold 500 inquests, and I hear 95 per cent. of those inquests personally. Yesterday, I heard nine cases and finished at 7 o’clock at night. I dealt with nine separate families who all had needs, and they have to have confidence that I will inquire and not just rubber-stamp what those who were investigating did. Many of those are hospital deaths and other deaths involving state intervention, and I will call people to account and call them to explain. The main purpose of an inquest is to register the death, but a most important purpose is to learn lessons to prevent future fatalities. There has to be public scrutiny.
Interestingly, the third category of cases that the ministerial certificate can be issued for is matters in the public interest. Coroners do not do anything that is not in the public interest, and all matters determined at an inquest are in the public interest. If you are dealing with a sensitive case in which someone died by their own hand, and if there is a lot of medical history showing suicidal ideation or self-harm, or if there were lots of marital disputes enclosed in the psychiatric reports, a lot of that is not in the public interest. Therefore, you ensure that you protect the integrity of family life and do not air people’s linen in public, but you bring into the public arena those matters of public interest.
This is really just a corollary of what you have just said about the position of the appointed coroner with regard to the Executive effectively appointing the judiciary. You have already suggested that you think that these provisions are probably outwith human rights legislation. I suggest that they may also be entirely in conflict with the statutory requirement for the independence of the judiciary, which is now placed in statute law. Do you agree that the fact that it is not even the Lord Chancellor who is responsible for this but the Secretary of State, by which we may infer that the Home Secretary will be responsible for certification, brings it directly into conflict?
May I return to your important comment about the fact that there are 110 coroners, which you made in answer to the question about the ability of coroners to be designated to do this special work? Can you think of any reason why those who are appointed to be coroners around the country would not be capable, if there was some new area on which you needed training, to be trained in order to fulfil the criteria laid down in the Bill?
I can hear you and see the name plates, but the acoustics are poor, so I suggest that our witnesses keep the volume up during the course of the afternoon. We have up to two and a quarter hours. It is an open sitting, in which colleagues can raise anything that relates to any of the 92 clauses or six schedules in the Bill. We will begin the questioning with Dominic Grieve.
I will turn to 42-day pre-charge detention. I hope that that does not mean that we run out of time to ask about other things.
I want to ask about the Director of Public Prosecutions’ opinion, which you will have had a strong chance of hearing. He is, after all, the person in charge of the prosecution system in this country. On top of that, because of the Government’s changes to the conduct of investigations, the Crown Prosecution Service is now embedded in the investigative process. You probably heard me read out the quote to Lord Carlile containing the Director of Public Prosecutions’ emphatic view that he is completely comfortable with 28 days’ pre-charge detention and can see no grounds for extending it—the only grounds being so hypothetical that he does not think that they are remotely likely. Why, in those circumstances, are you seeking to move to 42 days’ detention?
Tony McNulty: Because we have to weigh the countervailing pressure and information from other sources, not least the police, as indicated on Tuesday and in the subsequent letter from the head of the Metropolitan police anti-terrorism unit and the three counter-terrorism units throughout the country. I also heard the DPP say, entirely fairly, on Tuesday that 28 days and the scope and efficacy of that period was wholly a matter for him. To go beyond that in any way, shape or form was, first, a matter for Parliament rather than for him, which I think that he repeated on a few occasions. Secondly, were the power to be introduced by Parliament, he would certainly use it. We have to weigh up a range of different pressures, as it is responsible for the Government to do.
Nevertheless, one might have thought that he would be the person most likely to urge an extension if he considered that it prevented him, or was likely to prevent him, from being able to carry out the work on which effectively he is judged. That is, whether he can successfully prosecute those who have committed serious offences that clearly require trial, and lengthy terms of imprisonment on conviction.
Tony McNulty: With respect, that is to see this proposal in the same context as the last one discussed in 2005. I think that I made it clear as early as last April, at the Joint Committee on Human Rights, that the Government did not take the view that there was an imminent reason to go beyond 28 days, but that there were sufficient experience, evidence and practicalities in the area that could lead one, as it has led us and the police, to the conclusion that we should, now, in a period of calm temper and reason, make contingency and reserve power. To be fair, he shared the view that this was the time to at least explore that, rather than at a time of heightened emergency. Therefore, we are not in exactly the same position that we were in 2005. At the time, I remind you, as Mr. Macdonald did on Tuesday, that he was all in favour of an extension.
On that first point, presumably there must be agreement—and you are not suggesting otherwise—that the Government do not believe that even the extension from 14 to 28 days is an ideal arrangement under our principles of freedom under the law, because we have that on an annual renewal basis as an extraordinary power?
Tony McNulty: No, I have made it very clear on a number of occasions that for the Government the settled view in terms of terrorism cases permanently put on the statute books is quite rightly 14 days. The 28 days is an exception, which is why—as Mr. Grieve indicates—we do that on an annual renewal. Quite rightly, all the subsequent paraphernalia from that extension in the Bill rests on that annual renewal. So if at any stage in the future—were the Bill to be secured—the 28-day annual renewal fell, all of that paraphernalia for the reserved power to go beyond 28 days would fall as well. It has quite deliberately been constructed in that fashion.
I do not want to get bogged down in the legal niceties of Mr. Pannick’s opinion on the Civil Contingences Act. I would like to focus on an area where there may be some agreement. If this House and the Government wanted to, there is no reason, is there, why we could not put together a package based on the principles of the CCA, which would enable an extension in a state of emergency?
Tony McNulty: I think that I would broadly support that. My only hesitation is that we think that we have sought to reflect that type of view in the model before us, in as strong as possible legal terms. The CCA is very explicitly not about playing around with criminal proceedings and there are at least a range of legal views. I should have prefaced my remarks by saying that, unlike the hon. and learned Gentleman, I am no lawyer. The CCA would be wholly inappropriate for changing things such as pre-charge detention or any other aspect of criminal proceedings, which is essentially where Pannick is, and so I accept the point.
Yes, forgive me. I think that that is absolutely right. The decisions made thereunder could be judicially reviewed on the basis that there was no basis for declaring a state of emergency in the first place.
Therefore, to clarify, the Bill as presented by the Government is not similar to that extent to the principles of the CCA, because the circumstances in which an extension could be taken from 28 to 42 days do not require the criteria under which a state of emergency exists under that Act.
Tony McNulty: No, because what we are trying to do—as I tried to indicate to Liberty earlier—is to say, as the police have done, that there is a gap between the law as it is now and that full-on, full-blown position of national emergency. So we do have some definition of circumstances Ã la CCA and we do have the parliamentary scrutiny—which I am sure we will deliberate on—to some extent. We quite deliberately say, “This initial decision in terms of executing these provisions should, in the first instance, be a political decision and not a judicial one”. So the judiciability point I do concede.
I can have one last bite at the cherry. I am moving on here and I apologise for doing so. I have also apologised to the Committee because I have to go early. You had the opportunity of hearing from the Coroners Society representative. Why was there no consultation with the coroners before that part of the Bill was introduced?
Tony McNulty: You will know that there are a range of cases—I cannot talk in complete detail about them—that are pressing and extant and which need to be determined. Otherwise, as other colleagues have suggested, it would be more than appropriate to leave these provisions and others to a coroners reform Bill that colleagues tell me is likely to be forthcoming in the subsequent Session. The proposal is essentially for a range of pressing reasons, which is why it was introduced so late and why, regrettably, there was not appropriate consultation with the coroners and other interested groups.
When we were considering 90 days, I and others proposed 60 days. The reason I did so, as I am sure you are aware, is that the West Yorkshire force and my own particular division in Huddersfield were the arresting officers after the London bombings. Having reviewed the evidence that they had collected, they advised me that they did not think that 90 days was necessary, but they were determined that 60 days would be enough. They are still of that view. Will you explain why you think that 42 days will be sufficient? Were there an atrocity now, would we regret being so careful in restraining ourselves?
Tony McNulty: I understand the point, but I do not think so. We have seen over two days of evidence gathering that there is an array of views on pre-charge detention. No doubt we will return to this during our deliberations on the Bill. The views range from those given by Justice on Tuesday—that we could go beyond 48 hours and that it was fairly comfortable with seven days, but no more—right up to those of Lord Carlile and some of those in the police, who do not have to trouble themselves with parliamentary niceties, and I understand why. They follow the logic and say that it should be pretty much indefinite.
As I indicated earlier, the first question that we asked in this process was whether there was a compelling reason to go beyond 14 and make 28 days permanent, as Mr. Grieve indicated earlier. The answer was no for all the reasons that people have gone through. However, given the evidence, the trends, the intelligence and everything else that is in the public domain, is there a compelling reason to make the provision that we have made? We think that there is. In operational terms, the best advice from the police is that they need the additional 14 days, or rather they need the ability to go to a judge to secure more than 28 days. As people have inferred from our deliberations and more general matters, I think that that is sufficient in these extraordinary circumstances. I do not think that we will be coming back to the well for more, as it were, to ratchet it up after every single incident in the way that was implied by Liberty. I say that with a degree of confidence in the context of our other deliberations.
I say yes, potentially, to the introduction of intercept as evidence; yes, potentially, to post-charge questioning, although it is of limited value as we have heard; and, yes, potentially, to greater use of acts preparatory and other precursor elements from which we have had some success. I agree with the Joint Committee on Human Rights and many Committee members who say that all those things will be very useful in making my position come to pass that the law is 14, the exception is 28 and the ultra-exception is beyond that. I am mindful of the Chair’s comments about pithiness, but all that must be seen in the context of everything else that we are seeking to do. As colleagues around the table have rightly said, the legislation is but one part of the overall counter-terrorism strategy.
To pursue that point, can you give the Committee any more precise information about the criteria that were used to arrive at 42 days and about what factors were weighed in arriving at that figure? The confusion among the public is that a number of different extension times have been proposed, yet this one has been arrived at. I, and I suspect many other hon. Members, feel that we have had no clear guidance about how this figure was arrived at rather than any other.
Tony McNulty: Let me say, without being mischievous, that I do not think that the confusion is the public’s. I will move on from that. It needs to be seen in the round of the entire approach that I have described, and I do not say that to be laborious. The first decision made, quite rightly, was whether to consolidate—pocket, if you will—the 28 days. I think the answer is that, not least for the reasons suggested by Mr. Grieve, these are very serious matters and we do not take this action lightly. I am a tolerant sort of person and the hairs on my neck do not bristle, but they do when I am told constantly, not least in the Liberty document, that we are doing this for purely political reasons, to try to put the Liberals or the Tories in a hole that says they are soft on terrorism. Nothing could be further from the truth.
I know it is laborious, but 14 is the norm, 28 is the exception, which is annually renewable, quite rightly. I have certainly been involved in the last annual renewal process, although I am not sure about the last two, and I hope I will be involved in the next one. That is a proper, detailed and serious debate. As I have said to Miss Mountford, it is appropriate to say to the police, the reviewer of terrorism and others that while on their terms the logic may be for unlimited repeat on a seven-day basis, and I understand the operational reasons for that, we are a democracy and we do not want that. Instead, we must ask them what is the operational basis, in these exceptional circumstances, that they could tolerate.
I repeat, we need to see the matter as a whole because of all the other assorted reasons. It is a tragedy that this has boiled down to some sort of bingo around the number of days as that is almost the last element that matters. In the context of the use of intercept evidence, the threshold test, acts preparatory, post-charge questioning and all these things, and not in the context of thinking up a number and doubling it or what would be nice for them, the police are asked what is the least period that they could sustain or feel they would require in these extraordinary circumstances that go beyond 28 days. That is how we arrived at 42.
When the CCA was introduced into the debate as we were making our deliberations, that was useful for setting out an absolute outlier. If you agree with Pannick, unequivocally or otherwise, and believe that the case for pre-charge detention in the CCA is appropriate, the most that will give you is 58 days, so that was one parameter. Our other parameter was whether to go permanent or otherwise on 28 days. I am comfortable about where we are now on democratic civil liberties and in other terms, with 14 as the permanent figure, 28 the exception and, beyond that, these provisions in extraordinarily rare circumstances. I am comfortable with that if, as I am sure the whole Committee would want, all the other elements play a positive role in the way that we all hope.
David Ford: When we were developing the proposal, as the Minister said, the starting point was not the number of days, but whether we needed to go beyond 28 days. From the outset, we were clear that there would have to be some upper limit. In a way, that is in itself a safeguard in this area. Any judgment about what that upper limit should be is, to some extent, going to be arbitrary. The 28-day limit was to some extent arbitrary, so it will always be a matter of judgment on the number of days.
You have clearly done a lot of research into this. Can you tell us at what point, although I know that it is not possible to cite a typical case because there is no such thing, on average, you would expect Parliament to be approving the extension?
Tony McNulty: The strict answer is within 30 days, because that is what is in the Bill. However, I said clearly, which goes to Mr. Grieve’s point—I understand entirely why he has had to go—that it is a matter that we should explore further in Committee. Mr. Salter, and again I understand why he is not here today, has been in the press saying why not seven to 10 days, or why not mirror more closely the CCA provision that says that you have to come to the House within seven days. I genuinely say that these are matters that we can and should explore. The one compelling point that people make is that if it is 30 days—I remind the Committee that the Bill says “within” 30 days—then clearly the order could have been commenced and someone duly detained for up to 42 days, before Parliament has had any say on it other than the compulsory report to Parliament that the Home Secretary will simply write within two days. That is an area we should explore further.
Tony McNulty: I hope that it can be taken as read that I am no lawyer, but I repeat that I think that the comparisons are invidious. I do not say that because they are not terribly helpful to the Government’s case—certainly not as presented by Liberty where, particularly with the graph, they verge on sophistry. As Lord Carlile said earlier, common-law comparisons, which one would think would be more appropriate, and even those with America, as we heard in some of our deliberations, are stretching it. That is particularly true in the context of what plea bargaining and holding charges mean in a United States context, how they use and intercept evidence, and some of the more arcane aspects of the Patriot Act. I had not heard Lord Carlile’s point about holding a witness for up to a year; that was interesting.
If, given their history and recent political situations, parallels with common-law jurisdictions are inappropriate, it becomes all the more troublesome when we are looking at inquisitorial versus accusatorial systems. There, we are not apples and oranges, we are raisins and passion fruit. The distinctions are so unclear as to be untrue. I was very struck by—and in principle I agree with—Liberty’s paper, and the importance subsequently put by Ms Chakrabarti on the charge. Clearly, there is some sanctity and importance around the charge in the British system and even with my limited knowledge of European jurisdictions, I can find no equivalent. When they talk about the convalida in Italy being its equivalent, it is not——not on the criteria offered by Liberty. I am sure that the three defendants in the Meredith Kercher case, who have just had a six-month review of their detention—not a charge, their detention—would probably agree with that. As Lord Carlile said, the gardez-vous, and other elements in the French system, again, from a very limited grasp of French law, come nowhere close to being a charge. However, in both cases, how long someone can have pre-trial detention depends ultimately on what they are accused of. That could range up to four years, and I am with Lord Carlile when he says that if we look at the details of these other jurisdictions, the least that we can say is that none of them detains people prior to trial for any less time than we do, and in many cases, certainly more.
I am not attacking other jurisdictions, that is not my business, but I think that all comparisons, including those with civil law, are invidious. When I was out for a cigarette on the terrace of the House of Commons, I bumped, as you do, into the new Australian Attorney-General. We discussed in part the Counter-Terrorism Bill and I asked him, by the by, how often they had used their own counter-terrorism legislation. They have not. The notion included in the nature of the threat must be put into context. That is not to diminish a very real threat that Australian tourists and businesses face from jihadist terrorism in Indonesian and other contexts, and it is not to say that they do not use Executive powers and control orders, because they do. However, their own body of counter-terrorism legislation has never been used. I find these things very invidious and not terribly helpful.
I have heard from Liberty that this will be a driver of radicalisation if we do it. What do you say to that and what research might your Department have done into it? Secondly, Mr. Rebello made the interesting point about perhaps training and security-clearing all coroners. What is your view on that?
Tony McNulty: On the first point, I take that very seriously, as a student of history and politics for the best part of 30 years, not least of the Irish situation. There are reasons for taking these things very seriously. Let me answer in a kind of strange way. There are no doubt aspects of our counter-terrorism legislation that that charge can be laid at. But not this. Even if it could be laid at this, then what is the evidence over the last two years, having doubled from 14 to 28, albeit on an annual basis, of such disquiet in the community over this? I cannot find any from any exploration I have done.
On the broader counter-terrorism legislation, we are concerned, as the Metropolitan Police Authority has shown, about—I cannot remember whether it was Liberty who mentioned it earlier—the use of something like section 44 stop and search under terrorist legislation. Funnily enough, I think that on the day of the Bill’s Second Reading, I had a whole range of interested parties in to start the process of a full review of the impact on the community of section 44. I understand when people talk about propaganda coups and impacts on communities in that regard, which is why we are looking at it, but I do not see it here. I do not see it here because that is to fall into the same trap that many observers did in the ’70s and ’80s and assume that by default or otherwise, the Muslim community——of which there are many, so to call it the Muslim community is erroneous anyway——are somehow predisposed towards the people who are doing this sort of thing. That is profoundly and utterly wrong in the same way that those who charged me and others in the Irish community in London and elsewhere in the ’70s and ’80s as somehow being at least fairly well disposed towards what the Provisional IRA and others were doing were wrong. That is equally profoundly wrong.
I do not accept the starting premise in terms of these provisions, but I understand, as I have said and others have been saying for some time, that the prevent agenda, the community engagement and all those other aspects—I welcome the establishment of the Quilliam Foundation the other day and its voice in these deliberations—are hugely important. This is but one part of our overall counter-terrorism strategy. Anyone with any sort of background in history, politics or the military will understand that if all you have is force of legislation to combat something, you are on a fairly sticky wicket. It must be seen in the widest and broadest context.
I was talking to colleagues on the other point, which is not my area of specialism, I freely admit, and I will take the Coroners Society’s views very seriously, not simply about the potential to vet all 110 coroners currently. The difficulty is compulsion. I do not think that, as the law is currently drafted, you could compel every single one of the 110 to be vetted as a principle and part of taking on the role. But I repeat what I said to the shadow Home Secretary, there is much to explore and hopefully we will get the latitude in Committee to explore those elements under the coroners, because of our lateness, which I freely admit, and the lack of opportunity to fully consult in the way we would normally.
Tony McNulty: I think they are just hugely diverse. I know that it is slightly outside the remit of the Bill, but I will pursue it if I may, Mr. Bercow. They range from the disquiet of an individual about their lot in life all the way through to a whole range of perceived grievances that a group of individuals feel are imposed on them because they happen to be born into a particular part of the community or society. What are the key drivers? Well, not the classic ones, from all my reading. So it is not that anyone remotely involved in violent jihadist extremism are the poor, the dispossessed and all that sort of socio-economic group that you think. Are the drivers around the relative lack of success for some in the Muslim community and others? Well, they may well be. Is what we are doing in terms of foreign affairs part of a driver? It might well be. Funnily enough, the Government have always said that, but they bristle—as would most democratic people—at the idea that our foreign policy actions cause the terrorism. As far as I am aware, no one in the Government has ever said that what we are doing in Iraq or Afghanistan or anywhere else is not used as a motivator or driver by those who would radicalise people, but that is slightly different from drawing a causal link directly from any of the Government’s foreign affairs actions. Therefore, it is as much about those perceived grievances from individuals and groups, and that is why working with our assorted Muslim communities and all communities to try to ensure that that engagement, cohesion and commitment to the broader values that we all share, which is the core of our prevent strategy, is paramount.
David Ford: There was a range of opinions. I think that what came out of the regional seminars and the meetings that we had with them was that there was a disquiet about anti-terrorism legislation as a whole, but what did not come out were concerns about particular measures such as pre-charge detention. One of the issues that was of concern to most of the people we spoke to was section 44, which deals with stop- and-search powers, because most people had had some experience of that and it was clearly a real issue.
The other thing that came across very clearly was the fact that members of those communities, like members of all communities, do not sit and read legislation and do not see it in that detailed way. There was a general concern about some things such as section 44, but when you sat down and explained some of the bits of the legislation and what the safeguards were, that was sometimes enough for people. It was just that they did not understand it, as you would not expect most people to.
Expanding on the quote about the process of consultation, you have explained that there was not time to consult with the Coroners’ Society. You mentioned faith groups and Muslim groups, but did you consult other stakeholders and if so, how long was the process and what were the findings?
David Ford: We started the process in June last year. We wrote to over 100 organisations and invited them to meet us if they wanted to do so. We held five regional seminars: in Birmingham, Leeds, Edinburgh, Belfast and Manchester. We held meetings here in London. We had a large number of meetings with people who could not come to the regional seminars. We had an e-mail address that members of the public could use to send us their comments and views. It all went very well.
I have one further comment about the evidence we heard from Mr. Rebello from the Coroners’ Society. Responding to Mr. Holloway on the point about training all 110 coroners, he made quite a strong statement—I do not know whether you were in the room. He said that he was very uncomfortable about the idea of appointed coroners and that he felt that the rule of law would go out of the window. You have already said that you will look into that whole aspect because it was added to the Bill at quite a late stage, but do you want to respond to that now?
Tony McNulty: I do not think that we would agree with that point, and nor would we agree that the provisions are not ECHR-compliant, but we will look at those issues. These provisions were brought forward because of some compelling cases and because it needed to be done in a timely fashion. My understanding is that the appointment of coroners by the Secretary of State is simply to mirror existing coroners law that might or might not be addressed in a subsequent coroners reform Bill, rather than being something—I know that you will not believe this—nefarious, underhand or that is part of the dark arts on behalf of the Government. It is not about Executive-appointed special coroners for special cases. “Government stooges” was the phrase that I heard. Most of our public appointments are made by a Secretary of State; judges are ultimately appointed by a Secretary of State. I would not call any of our judges Government stooges. It is much more about the focus on the independence of those public officials subsequent to the appointment. It does nothing other than reflect current law, which is that the Secretary of State must make the appointment.
Tony McNulty: I do not regret it because I do not agree that we are challenging it. I think that if Benjamin Franklin were here, he would be sitting on my side of the table. To determine it otherwise would suggest that we might as well all have packed up and gone home as democrats when we went from 48 hours to three or four days. I take from Franklin’s words the serious import about the balance between our liberty and our security, but I would not be here making the case had I not started from the premise that we have the balance right and echo in terms what he said.
So you agree with Lord Goldsmith when he said on Tuesday:
“In principle, it is enormously important that something as significant as individual liberty, which is such an important part of this country’s background, should not be undermined or removed unless you can show that that is necessary, not just that it might be desirable at some future stage.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 67, Q176.]
But do you accept that a trade-off is being made between liberty, which for many people is totemic, and the additional security that you are seeking to obtain through these measures?
Tony McNulty: I think that this line of questioning would be utterly appropriate if I were sitting here saying that I want 42 days, Executive pre-charge detention with no judicial oversight, no parliamentary scrutiny and nothing from day one to day 42 other than lock ‘em up. I would then concur with what you are suggesting. Parliament’s settled view of some time ago—2003, I guess, although I cannot remember exactly—was 14 days. Even that is an exception just for terrorism trials, with seven days the norm. I utterly concur with that.
Because I am a great fan of Franklin and because I endorse what Lord Goldsmith says, I am comfortable arguing, as Parliament did in 2005-06, that 28 is allowed exceptionally and on an annual renewal rather than a permanent basis because of that precise balance between liberty and security. However, with all the other things that we are embarking on, from the prevention aspects through to precursor offences, I am still told by those who know far more than I that in exceptional circumstances there may be a requirement to go beyond the temporary provision for 28 days. I have to take that very seriously. That is why, by utter exception and with oversight from the judiciary and Parliament as indicated in the Bill, the legislation is presented as it is. That is precisely because we are so serious about this issue. It is right that we concentrate on the balance between liberty and security.
Tony McNulty: No, I thought that that was a rather obtuse point on Tuesday. Overall, the ACPO cabinet and, importantly for me, the incoming national terrorism co-ordinator and his three colleagues who run the counter-terrorism units in the west midlands, West Yorkshire and the north-west tell me as one that there may be exceptional circumstances that require this provision. I have to listen to that.
Tony McNulty: No, with regret, let us nail this canard. The DPP has quite rightly said that he can achieve, based on all circumstances and experience over the last two years, what he needs to achieve as the chief prosecutor within 28 days. I am not asking him to demur from that. He said quite rightly and very fairly that it is not his job as a public servant and the Director of Public Prosecutions to gainsay or tell Parliament what he wants beyond that. He is quite comfortable with the 28 days. He rightly said—I think on two or three occasions—in his evidence that it is your job, collectively as Parliament, to determine what the legislative framework within which he works should be. He demurred from giving an opinion on going beyond 28 days.
What he said was:
“I have expressed my professional view, which is derived from our operational experience, on whether 28 days is sufficient and is likely to remain so, and our conclusion is that it is.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 53, Q136.]
Tony McNulty: Yes, and that in most circumstances is the collective consensual position of everybody I have spoken to on this, except for those who would seek to go to indefinite—and I am not going there—and the person from Justice the other day who cried in his beard because we went beyond 48 hours.
Tony McNulty: The more the substance of the model that is before this House is looked at in detail in the ways that I have tried to explain today, the more the controversy falls away. Should there be serious discussion about these serious matters? Absolutely. But I would say as genuinely and as openly as I can to all colleagues on all sides, please look at what is before the House, and do not get lost in thinking that this is just another 90-day debate and all that we have done is think of another number. It is most profoundly not the same as what was on offer before. Your side, Crispin, do yourselves a disservice by not getting on to the detail and substance of what the model is, and instead arguing about what you think it should be. That is probably part of the reason for some discomfort in your own ranks.
Tony McNulty: It is still there. I say—as I have said already—let us talk about the principles that Mr. Grieve outlined earlier. I do not think that I could concede on or go anywhere with judiciability. This is such a serious matter that at least the commencement of such legislation should be quite properly done by the Executive. On his third point, Ã la Civil Contingencies Act, we will probably not get very far. But on his point about the appropriate and effective nature of parliamentary oversight, let’s talk, as the advert says. In terms of the definition of the emergency—whether there is anything more that we can do on that—certainly, let’s talk. I am very comfortable that the consensus thus far on whether the provision is needed on a permanent basis tomorrow is, “No”. Do we need to go from 14 to 28 days on a permanent basis? The answer is no. We are getting a slow consensus by accretion, and it is my job to ask everybody not to put political motivation on me, but to cast politics aside and deliberate on this model in the interests of public security and the nation. We are almost there.
Given all the evidence about the change from 28 to 42, the titanic importance that that has taken on, and the fact that you have made it clear in your evidence that that change is only one small part of a vast raft of measures that you are taking to address terrorism, I am at a loss to understand why the Government are so firmly stuck on this position, when it is not required at the moment. If it is required, you will have to come to Parliament anyway, under the provisions that you are putting forward, to invoke it. It seems a very strange judgment, given how important it is that we try to move forward on the legislation in as unified a fashion as possible.
Tony McNulty: First, this is what the police and counter-terrorism experts tell me that they may need. We clearly accept that it is done on a contingent and reserve-power basis. Secondly, as a Government we have the responsibility to listen to that and, yes, put it into the context of everything else that we are doing, but then make a judgment. It is essentially the difference between the conclusions of the Home Affairs Committee and the Joint Committee on Human Rights. The former says that no compelling case has been made to go beyond 28 days on a permanent basis, but if we want to do so, we should at least use the template of the CCA and do it in this, this and this way. The JCHR says that whatever the position of the Government, let us see whether intercept as evidence, precursor offences, post-charge questioning, the threshold test and all the others work, before we consider whether a further extension is needed in extreme or emergency circumstances or otherwise.
As I have tried to say, I hope that all the other things that we are doing work, including the threshold tests and other things from the DPP. I am in the strange position of pushing what is quite rightly a contentious piece of legislation, which has been seriously deliberated upon, and which I hope—because of all the other things that I and others are doing—is never invoked. On balance, I think that the right judgment is to let us have the provision there anyway. I would not want to be deliberating on these matters in the middle of an emergency.
Liberty and a number of our colleagues in the Chamber have, on occasions likened this legislation to internment without trial. What would you say in response to that?
Tony McNulty: I would share the view of the Lord Carlile and other people that that is profoundly wrong. First, it is wrong in purely definitional terms as internment means indefinite detention by, to put it crudely, Executive action, while neither the model in front of us nor any other model is indefinite detention. More than that, it is troublesome because it does the radicalisers’ job for them. I am too young to invoke Rule 18B from the war—I should think that the Lord Carlile is too young for that as well, so I apologise to him. When people talk about internment, they naturally turn to the Irish situation and the bungled use—although any use would be inappropriate—of internment. I have looked into this and I knew much about it previously, but for example, Operation Demetrius: 4am, 10th August 1971. Some 342 were arrested, God knows how many doors were kicked in, 116 were released within 48 hours and to quote Bishop and Mallie, from their book, “The Provisional IRA”:
“Among those trawled in were ancient and long-retired republicans, youthful revolutionaries from the People's Democracy, trades unionists, respectable middle-class civil rights activists, a drunk picked up at a bus stop and several people held on mistaken identity. A number of people on the Army list turned out to be dead.”
My problem with that is not purely the incompetence, but that only some months after Bloody Sunday in Derry, there is your recruiting sergeant for, in this case, the Provisional IRA. Worse, that incompetence was legendary, partly because the British Army might have known about Operation Demetrius, but so did the Provisional IRA and most of them had legged it. The negative side was enormously troublesome for what the Army was seeking to do in Northern Ireland.
To come close to either calling what we already have on the statute books, or what this legislation seeks to do, anything like internment is utterly irresponsible in the worst degree, never mind invoking Che Guevara, Herbert Marcuse and others in the way that the Lord Dear does. That is why I was probably a wee bit intemperate with him on Tuesday, for which I apologise to him by remote control and indirectly.
Ultimately, internment did not work; it did no harm at all to the IRA, the Provisionals were long gone, and it actually did enormous harm in the context of what the UK was trying to do in Northern Ireland at the time. This legislation is nowhere near that. I am trying to think of something beyond my earlier allusion to raisins and passion fruit as a comparison; it is a woefully irresponsible, intellectually sloppy and a down right fallacious comparison, if I can put it in such measured terms.
You seem to feel strongly about it. You have made some valid points that Parliament would understand. How can you convince the public, and in particular those people who are using the issue to accuse the Government of being the recruiting sergeant for Muslim terrorists, that it is not the same?
Tony McNulty: By engagement and hopefully trying to get, as I have been trying to do for 18 months, proper discussion and discourse on what we are trying to do. That has been enormously difficult. Let me just say in passing that, in addition to what David said about consulting people from June onwards after the previous Home Secretary, Dr. Reid, made it clear that there would be a Counter-Terrorism Bill, in the wake of the alleged airline plot of August 2006, which I do not want to go into too much detail on, there was an equivalent five or six months of consultation and discussion within Government on every aspect of our counter-terrorism strategy, including the legislation.
What annoys me as much as intellectually sloppy comparisons such as that with internment are those who, some time ago now—I made reference to this at ACPO’s counter-terrorism conference in Brighton—describe this Bill as a knee-jerk reaction to the latest set of events, which is profoundly not the case. Before London-Glasgow the most significant event was the alleged airline plot, which is no sub judice, so I do not want to go into it in any detail. So from August 2006 until June 2007 the Government deliberated on what their counter-terrorism strategy and their response to something as serious as that plot should be. In the very early part of that process, rather like in other times as alluded to this morning, the instant reaction was to ask whether immediate legislative action was required, but the answer was no, so we could take our time on that.
As most colleagues would agree, coroners and maybe one or two of the other areas aside, there is broad consensus around much of the rest of the Bill because it simply improves and builds upon existing legislation. It is quite right that this area should be contentious, but it has not dropped from the sky. It is not a knee-jerk reaction. If I get passionate about issues such as internment, it is because it is such a sloppy and utterly illegitimate comparison.
I will just pick up the last point that the Minister made. There is a great deal of consensus about substantive parts of the anti-terrorism legislation and the corpus of work that has already happened and is continued in this Bill. We need to keep on making that point because it is an important one. I do not want to argue about matters that we shall develop in Committee; there is no point in that. First, may I ask a question about the inquests? The Minister has made it pretty plain that he is prepared to discuss this part of the Bill. Perhaps it is not area in which he feels he has greatest expertise, given that it comes from another Department. Is he aware of what consideration was given to the use of PII as a mechanism and why it is felt to be inadequate as a way of presenting matters that are sensitive in national security terms to a coroner’s court without disclosure?
Tony McNulty: I am, but I do not feel that I can go into it, to be perfectly fair. But let me use the question to hook on some other things that I wanted to say anyway. We said, through the usual channels this morning, that I am happy to and have subsequently put in train an informal seminar for the Committee on the Chilcot review and where the Chilcot implementation group is in terms of intercept as evidence. Quite fairly, the Committee may feel before 15 May that it wants to come back to try to hook legislative elements of intercept as evidence on to the Bill. Quite fairly, that will happen. Please indulge me momentarily at least, Mr. Bercow.
Secondly, I repeat what I said earlier to the Committee: my officials stand ready to help, within reason, any member of the Committee on technical information or other aspects of the Bill. Given the belated insertion of the coroners material into the Bill, it might be appropriate, not necessarily in this fashion, but before we get to part 6, to have a similar informal seminar where, as much as we can, the raison d’Ãªtre behind where we have got to with coroners and answers to the sort of question that you have just put can be forthcoming from the appropriate and relevant officials. To be entirely fair to both colleagues either side of me, it is not their bailiwick either and it would be unfair to push them in that direction too. But I am happy to ensure that we have a similar informal seminar to go into part 6 in more depth with the requisite people. That is a clumsy way of answering the question.
Can I move on to the second point that I wanted to ask about? Minister, you said earlier that you had already put in train a review of the use of section 44 of the Terrorism Act 2000 with respect to its effect on the Muslim community. Can I suggest that there is a wider issue here? As you recognise, through the whole body of anti-terrorism law we are giving exceptional powers to the police and security services to deal with exceptional circumstances. I am convinced that, in the main, those powers are used responsibly and appropriately, but there are also a lot of instances where they are not used appropriately. I will give an example from my own experience.
My daughter is a 20-year-old university student in London. Three of her friends were stopped and searched in the Kings Cross area only a few weeks ago under section 44 of the Terrorism Act 2000. It is my belief that they had given no cause for suspicion; they were perfectly ordinary, white, middle-class students. I do not believe that there was any reason why they should have given cause for suspicion, nor did they provide any cause for suspicion upon search. If that sort of abuse takes place it alienates a far wider community. I ask you to review not only the way in which powers are used, but also to ensure that individual constables are educated in the exercise of their duty to ensure that they are in line with what their chief constables and Ministers would want them to do.
Tony McNulty: Two small points. First, I want to amplify Mr. Davies’s point made from a sedentary position. As a serving special he knows that 44s are random and therefore suspicion is not needed. Secondly, the Lord Carlile is on the review group, and he has quite fairly said—I have taken this to heart—that we must look at the mote in our own eye in terms of how Ministers, that is me, sign off the permission for the 44s in the first place. That is part of the exercise. Is it appropriate for a force to always be under a section 44 so that therefore those powers exist, whereas other powers are drawn far more narrowly? We are looking at all aspects of that law, but I wanted to say something about other aspects of the law.
The Regulation of Investigatory Powers Act 2000 is not counter-terrorism legislation. Funnily enough, it is about the investigatory powers that exist and regulation of them. A rather obtuse point was made earlier by Mr. Crossman, about how appalling it was that down in Portsmouth, Poole, Bournemouth or somewhere, counter-terrorism legislation was being used to chase down parents who were seeking to evade and break the rules for school admissions. No. If the authorities were utilising surveillance and other powers properly under the law, that should have been controlled by the Regulation of Investigatory Powers Act. That Act goes way beyond counter-terrorism. People are a bit free in saying that counter-terrorism legislation is being used for all sorts of things—I am not suggesting that that is true of the hon. Gentleman. However, as I have said, I take these issues seriously—not least Mr. Holloway’s point about radicalisation—and see that the misuse of some of these broader laws can, at the very least, give succour to our enemies as they seek to radicalise, and at worst be quite abusive for people.
I am glad that you have mentioned RIPA, Minister, and the part of it that was subsequently amended by the Terrorism Act 2006, which deals with encryption keys. Can the Government provide any satisfactory explanation of why they took so long to bring into force what was described as being a key part of the arsenal against terrorism?
Tony McNulty: As far as I understand it, and then Mr. Ford can give you the correct answer, it was because of practicability and the need to work closely with the industries to get the draft and subsequent codes of practice aligned so that they worked effectively. Now give them the right answer, David.
Tony McNulty: Sure. We have only recently put the codes of practice on a formal footing by means of statutory instruments. The measure rightly goes to matters of practicability and technology, and it is yet another weapon in our armoury, which hopefully means that we never have to go down this route again. There are now quite severe penalties for withholding encryption keys and other aspects relating to the information technology involved in those cases.
There is great interest in radicalisation, so I would like to suggest that, if people have not read Michael Gove’s book on terrorism, it is well worth reading. It is a well-rounded book that I would recommend you pick up.
My interest and concern is in using intercept as evidence. I feel a lot more comfortable knowing that there will be an informal seminar on intercept; that will be very valuable. I am concerned that the technology is complex and that tracing it becomes less feasible and less accurate. Also, using intercept evidence could show gaps in the intelligence and security services’ knowledge. Further, there could be a capability gap, as minority languages, such as the Afghan language of Dari, which is spoken by so few and is very colloquial, would be very difficult to translate. Lastly, by tracing the evidence—I have said this once before today, because I am concerned—you will put the finger on operatives who are out there helping the security agencies, and who, increasingly, are Muslims. I have three points—
Tony McNulty: Let me start by saying that I am very grateful to everyone who has mentioned the Chilcot review over the course of our two days’ deliberation and has recognised it as a serious piece of work that discusses many of the concerns that my hon. Friend has highlighted. Those concerns remain. Nine or 10 hurdles remain for the implementation group that follows on from the review. The Prime Minister has said that there is enthusiasm to get on with it, but they are relatively high hurdles, which people should be mindful of. It is not, as one or two witnesses have indicated, simply a matter of flicking a switch on and off: we will have it or we will not have it. If we are going to do it, let us do it right.
I remind the Committee that the Chilcot review was cross-party, as, I think—I will double check—is the implementation group. The review comprised Lord Anderson from our party, Lord Beith from the Liberals, and Lord Hurd from the Conservatives, and, happily, they came up with a unanimous position. Therefore, it is in everyone’s interests to push on. In addition to those concerns is the concern that many witnesses have alluded to that technology is ever changing, as indeed is communications technology. That is not simply about mobile phones, but the start of voice-over internet protocols. We could have a fairly radical transformation of the utilisation of communications that 10 or 50 years hence may make the mobile phone redundant, let alone the phone hanging on the wall in your living room.
All those matters have to be factored in. Chilcot is very aware of them and we are very serious about working through those issues to get to a position where we can have intercept as evidence. I think that people understand that. If you had said at the very beginning, just before Marconi or Edison or whoever invented the telephone, that any intercepts could be used as evidence and your legal framework grew up with the technology, that would be very different from asking at this stage how we can utilise intercept product from phones and other things as evidence. So, yes.
Minister, you started your case quite passionately. Taking you back to your summary of the DPP’s comments, there is consensus in some areas. We all agree that terrorism is wrong and that we should be doing something about it. However, are you not undermining the validity of your own case by trying to suggest that Ken Macdonald agrees with your position? It is quite clear to those of us who have been on the Committee and taken the evidence that he does not see any reason to go beyond 28 days. There is an honest disagreement there and trying to pretend otherwise simply undermines your position.
Tony McNulty: If I have given that pretence, I apologise to the Committee and to him. I have not sought to do that. I am saying that the common position that we all share is in asking whether there is a compelling reason to go beyond 28 days under the circumstances in which we went from 14 to 28. The answer is no. Are there practical reasons why we should go beyond 28 days, given the evidence of the DPP, Miss Hemming and others? Again, the Government say no.
On the compelling evidence from the police and others with their informed view that we should in extremis go beyond 28 days in the model afforded in the Bill, I have not said—forgive me if you have interpreted it this way—that Ken Macdonald is right there with us because quite palpably he is not. To be fair to him, he said that his job was to talk about the efficacy of 28 days and whether he felt, other than in the six cases that went to the 27 or 28-day term, that they were really struggling to make effective use of the 28-day period. I accept that he said no in all honesty. My only point was that he said that it is a matter for the Committee and subsequently Parliament to determine the framework within which he operates, rather than a judgment for him. I think that that is an equally fair and honest point.
I think that we all agree with that. I do not wish to single out the Minister, but I heard one of his colleagues on Second Reading give the strong impression that there was no difference of opinion between Ken Macdonald and the Government. Clearly, there is an important difference of opinion and there is no point in trying to pretend otherwise.
May I ask two questions? The first relates to the prevent strategy and its effect on radicalisation. Is it not the case that there has been an increase in plots and in individuals being radicalised in the last three to four years?
Tony McNulty: We certainly know, purely from what we disrupt, that there have been more plots. We know from what the Security Service and the police tell us that it is very likely from what they cover and beyond that the number of people involved is growing, too. That was made clear by Jonathan Evans, the director general of MI5, and an array of others, including Eliza Manningham-Buller before him and the Home Secretary very recently. That is very clearly the case and it is a fair point, surely.
That troubles me, because in your earlier answers, Minister, you said that there is no evidence to suggest that the bulk of the counter-terrorism legislation that has been introduced by the Government has had an effect on radicalisation; that there has been a growth in it. Clearly, if there are more people being attracted to extreme forms of Islam and there are more plots—some of which, I grant you, will be because more plots are being uncovered and police forces are getting better at mapping the communities— there is, certainly anecdotally, some form of linkage. There could be that linkage; you could not rule out a linkage between the growth in people seeking their way out through extreme Islam and some of the legislation that has been introduced.
Tony McNulty: I would not rule it out entirely, but it would be foolish not to include your caveats and qualifications. I say that because as we have come to know more about this particular threat over the last few years, the one thing that we have learned is that there is a time lag. When one explores the key radicalisation pinch points of some of the key principals now behind bars who were involved in some of the significant plots in recent years—2003 or so onwards—they were either Bosnia, Chechnya or something way back there, rather than very recent events.
Bear in mind also that, with regard to many of the significant plots—7/7, 21/7 and certainly those covered by Operations Crevis and Rhyme and the others that the hon. Gentleman will know about—although they come to trial in late 2006, 2007, or 2008, the precursor activity was way back in 2001 or 2002. At least some of these plots predate 7/7. So it is very hard to draw the causal inferences from a law that, in effect, was signed into law in June/July 2006 and cast any causal link with that law and the increasing numbers of those who have been radicalised as well as those active in violent extremism.
As Mr. Wallace implied, that is not to say that I can rule out a causal link entirely; I do not think that I could do that. Equally, however, you said quite fairly that exposing further numbers of people, getting hold of and uncovering more and more plots and eventually disrupting them, is at least in part a function of the huge increase that there has been in the resources of the police and other services over that period and us collectively getting better at doing that. So that is at least a factor too. There is a whole melange there, in terms of precursor and causal factors.
I have pored over the “Tackling Extremism Together” initiative, which was quickly drawn up and put into place after 7/7. Unfortunately, we are still going in the wrong direction and we can lay blame for that.
Going beyond the issue of detention without charge, and let us say that the Government gets it, I share some of Lord Carlile’s concerns. He mentioned one concern—I am not sure whether you were in the room at the time—regarding the judicial oversight on someone in detention. In that situation, my reading of the Bill is that the DPP will come and present a reason why that person should continue in detention and the High Court judge will make their views known, or will make a decision on that.
I am summing up Lord Carlile, but he believes effectively that we are not yet in a position to have judges able to properly test effectively the intelligence. Sir Ian Blair made it clear yesterday that, at apprehension of individuals, there is a lot of intelligence and not a lot of evidence, and he was going to use that detention time to convert that intelligence into evidence.
In defending someone’s liberty, when that person is standing in the court and the judge is having to make that decision, is it not appropriate that the judge should be able to test quite strongly the intelligence that may be put in front of him by the Executive, if he is going to agree to a further extension? I think that Lord Carlile envisages investigative judges, perhaps like those on the continent. We could perhaps have specialist, trained judges. Do you not think that that is something we should do?
Tony McNulty: You are entirely right to say that Lord Carlile ultimately favours a sort of investigatory judge or magistrate model from Europe, but I think that earlier he was trying to question whether it was possible to have some sort of hybrid investigative-type magistrate or judge for the post-28 day period, and I think that we could usefully explore that. I do not want to go down the road of having an overall investigative magistrate and all that that would imply for our legal system.
Judge Judge has also said that it might well be that we take the route of having a specific panel of judges who have more expertise in those matters. That is also interesting, not least because supposedly one of the safeguards—I use that word advisedly—that was made in 2005 was the requirement to be very explicit about the level attained by the judge who would sit in the case. Towards the end of the process, we went for circuit judges. Judge Judge said, very straightforwardly, that although they are lovely people, some of them have no notion or experience of terrorism at all and that it is not the level of judge that is important for oversight, but their experience. He suggested a panel of judges who have suitable expertise in terrorism, regardless of where they sit in the bench from top to bottom, and that is also worth exploring.
I also invoke what the Director of Public Prosecutions and Sue Hemming said to the Committee on Tuesday. She suggested that this was not a cake walk anyway, and that the notion that the judges only start to get robust by about day 21 or 24 or prior to day 28 is erroneous. They are quite robust the very first time they go back for an extension of detention powers beyond the seven days, as alluded to in part 55 or 56 of the evidence from the Director of Public Prosecutions and from Miss Hemming. I think that all those are very valuable points that are worth exploring, save for the idea of turning our entire process into the investigative magistrate model, and that is a reasonable position. The Joint Committee on Human Rights is almost in the same sort of place, but it is certainly not something that we would put forward at this stage, and we will probably not do so at all.
You said that you do not want to be legislating after an atrocity. If the House does not accept the need for 42-day pre-charge detention, what will be your main objection to legislating if there were to be an atrocity?
Tony McNulty: It would be purely the practicalities—this is not meant to diminish the import and seriousness of these mattes—of legislating on a kind of dangerous dogs basis, if I may put it like that, and in the middle of the public disquiet and furore of a clear and pressing emergency. I am not entirely sure that that is Parliament at its best. I would far rather legislate on a reserve and contingent basis at leisure, taking it very seriously. We would then have that reserve and contingent power should we need to utilise it. That is my strongest reason for objecting to doing that in the wake of the sort of emergencies envisaged.
Have you considered some of the other practicalities? Would the House have the time, for example? I am thinking about the limits that would be placed on the House, given that we would perhaps have had suspects in detention for some time. We would be up against time constraints, so perhaps the parliamentary time scale would have an impact, even though we have put legislation through the House in a single day.
Tony McNulty: I repeat, which I have not done for a while, that to an extent it is already utilised. I am no lawyer, but I am told by those who know far better than I do that there may be scope for it to be utilised further. I am not saying anything about Mr. Mercer in any way, but if it cannot be given at this end of the equation, then it has to be given at the other end. I am troubled by weakening the sanctity—as described by Liberty earlier—of the charge. I know that the hon. Gentleman was suggesting holding charges and all those sorts of things, but I do not want to get to a stage in which, without invoking any other jurisdiction, there is an over-inflation of a holding charge to get to a lesser position via plea bargaining. I am not sure whether that is an area in which we want to be. If the lawyers and prosecutors tell me that there is a limited role for plea bargaining above and beyond where we are now, bearing it in mind that we do use the threshold test significantly, then I am very happy to listen. I do not think that that is outwith, or even pre-empts, what we are trying to do in this Bill.
This may be one for both the Minister and Jennifer Morrish. What would happen in practice today if someone such as Mr. Quick came to the Home Secretary and said, “We have this group of people and we have had them for 27 days. It is absolutely imperative that they do not go back on the streets”? What could you do?
No.1, I would say that that would not happen. On the premise that it did happen, I would say to Mr. Quick, “I am a Minister of the Crown and I do not do operations. Go back to your prosecutor colleagues and your police colleagues and secure the information and evidence that you need to charge. You have 24 hours or you will have to release.”
Tony McNulty: That is the stark reality. If there is not sufficient evidence on a holding charge basis, threshold test basis or any of the other bases that we have talked about to charge that person on the 28th day, the person in question would be released despite the intelligence detail—it may be that the process of translating that intelligence into admissible evidence had not been completed. That is the stark practicality of it. Ms Morrish is whispering to me that if the situation is that severe, control orders or something similar could be used, but that is the only alternative.
Tony McNulty: Surely, if the 28 days are spent. As the hon. Gentleman and many of his colleagues have said to me on, control orders are not an entirely satisfactory weapon in our armoury. It is either out the door or a control order. Happily, given the recent House of Lords judgment—and doubtless that will be challenged—there will be a 16-hour limit rather than 12, which is what we are testing at the moment. As a Government, we have never said that control orders were a satisfactory alternative. The stark reality is a control order regime of whatever description we think proportionate or we say to someone, “Out the door and off you go”.
May I ask a general question about post-charge questioning and how useful it is likely to be in getting admissions in evidence or intelligence from people who will be subject to post-charge questioning? Can you give us a sense of the importance of this legislation?
Tony McNulty: Throughout my time in this area and as a Member of Parliament, many colleagues have said that that could be a useful area to get on the statute book. I have never been of the view that it would be the panacea or silver bullet but share the views of those who, over the two days of deliberations, have said that it may be of some value. That is why the Government would absolutely support its introduction. Quite rightly, at least in England and Wales, the negative inference must be part of it, but as both Mr. Quick on Tuesday and Lord Carlile have said, its uses will be limited, but it may have some value. That is why it is in the Bill. Others have said that, if we have intercepted evidence and post-charge questioning, Bob’s your uncle and we do not need pre-charge detention. It was never as stark or as simple as that, but it will be of some value, which is why we have incorporated it.
There have been examples in which Indonesians have pursued a strategy of turning former terrorists to the side of the authorities, and have then got an enormous amount of information from them. Are there circumstances in which that might apply, after someone is charged? During the process of questioning, could people be brought face to face with the reality of what they have been up to?
Tony McNulty: But it is a moot point in the broader sense of the prevent strategy and trying to deal and work with people who have turned away from precursor organisations such as Hizb ut-Tahrir—like many of those involved with the Quilliam Foundation—or others who have been a little deeper than that in terms of being proponents of violent extremism. It is not quite about turning them, but about changing their views and their being used as part of the prevent and community cohesion strategies in the broader sense. That is important.
David Ford: Also, in the Serious Organised Crime and Police Act 2005, we put turning Queen’s evidence on to a statutory basis. There is now legislation to cover that, and that can get a reduction in sentence. The police and people who are involved in terrorism are aware of those provisions and will, obviously, use them as fully as they can in terrorist cases.
I have one more question about intercepts. We thank the Minister for offering to make his officials and those on the implementation group available for a briefing, which would be immensely useful. Obviously, the earlier that happens, the more helpful it will be. Is there the slightest possibility that the group’s work will be progressed sufficiently to be added to the Bill at a later stage in its proceedings?
Tony McNulty: That calls for speculation. I am not sure, but I suspect that the honest answer is no, given that even Sir John Chilcot said that he thought it would take 10 months to a year to work through all the impediments to implementation. On the premise that he is right, and I have no reason to suspect that his judgment and estimate about the work is not right, the answer is probably no. With a fair wind—speculatively—the tail end of the Bill’s parliamentary passage will be September or October, so with those two caveats, I suspect not.
Colleagues, I have just one more Member on my list who wants to pose a question. He has already asked one, but he is welcome to ask another. Needless to say, I have no desire to prolong proceedings beyond what colleagues want, but if they want to come in again, they are welcome to do so.
I return to judicial oversight. The Bill provides for parliamentary approval, but it seems more logical that if you have a High Court judgment, the next step is not to go back to Parliament, because it is allowed very little information. Lord Goldsmith pointed that out as well and noted that you are not going to be told much about the detail. You will be told only that there is a need and be asked to make a decision based on a statement. The Bill is quite clear about what you will be told. Instead of doing that, why not go to a more senior group of judges? Once you handed it over to judicial oversight, why did not you keep it there?
Tony McNulty: Again, as I implied earlier, I think that that is a very fair point and one worthy of exploration. I know that many colleagues have said—I think wrongly—that parliamentary oversight is erroneous. I thought that quite a few were dismissive, on Second Reading, of the role of Parliament.
I think too that Lord Goldsmith was slightly off kilter when he suggested that the distinction between an individual case and Parliament’s role was not very clear. Let us be very clear that Parliament’s role within 30 days is to confirm or otherwise the Home Secretary’s decision under order to commence the legislation. Its role is not to pass comment on an individual’s case—whether one individual case, an individual plot or whatever—that prompted the DPP and the chief constable to go to the Home Secretary to seek the trigger. Its role is to deliberate on her decision to commence the legislation under order. It is entirely appropriate for the grown-up men and women who fill the House of Commons to have that debate, rather than to invoke individuals entirely.
It does depend in part upon what the Home Secretary’s report says—he is entirely right in that regard—and what those broad circumstances are. They will not be the circumstances of the individual involved in the plot, the individual sitting in pre-charge detention at 20 or 21 days, or whatever else. It is demeaning to suggest that Parliament cannot grasp the distinction between those two very distinct processes. A point that we should explore is, “Why not find some other role for Parliament, to oversee the legislation and maintain at the earliest opportunity the judicial oversight of the execution of the law, as well as of the individual cases?”