Schedule 1

Counter-Terrorism Bill – in a Public Bill Committee on 6th May 2008.

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Amendments relating to period of pre-charge detention

Question proposed [this day], That this schedule, as amended, be the First schedule to the Bill.

Question again proposed.

Photo of David Davies David Davies Conservative, Monmouth

I always think that there is a slight disadvantage in coming back to Committee in these situations, because having marshalled my arguments and worked myself up into a lather towards the climax of the previous sitting, I suddenly find that coming back from lunch, everyone is in a different frame of mind. However, I shall briefly recap on the point that I was making when the interruption occurred.

I felt that if the legislation were enacted, it would not be long before further legislation—perhaps what the Government have called “tidying-up legislation”—removed some of the safeguards that are being put in place. I welcome the safeguards, but I would rather not have to have them, and do without the whole thing. I fear that if we detain people for up to 42 days to question them on terrorism offences without charging them, in all probability it will not be long before we follow the argument to its logical conclusion and allow people to be detained for up to 42 days for questioning about a range of other offences. The offences meriting such a measure might involve, as I mentioned earlier, child pornography rings, organised crime, drug dealers and people traffickers. They are all examples of serious criminals whose actions have affected, and continue to affect, far more people than the terrorists who committed the horrendous atrocities in London in the past few years. Logically, if we allow terrorists to be detained in that fashion, there is no reason why we should not allow such serious criminals to be detained in that fashion, too.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

I have listened to the hon. Gentleman’s argument, and I understand his logic, but he has missed an important factor: first, terrorists, by definition, are people who are going to destroy human lives; and secondly, we have received considerable evidence from the police saying that in effect, pre-emptive intervention is highly necessary. They mean that they need to arrest people before they would normally arrest people who carry out illegal activity in other areas. In other words, the police are able to secure evidence more easily before they make the arrest when they deal with other crimes. Does the hon. Gentleman not accept that that is a valid point?

Photo of David Davies David Davies Conservative, Monmouth

I certainly accept that terrorists destroy people’s lives, but surely the hon. Gentleman will accept my line of reasoning that people involved in child abuse, drug dealers and people traffickers all destroy people’s lives, too. They are destroying, and have destroyed, people’s lives, and they have probably—in fact, almost certainly—destroyed more lives than terrorists have over the past five years, so if pre-emptive detention would work against terrorists, it would work against those people, too. I should like those people taken off the streets, and it would be hard to argue against using methods that, if the Government are right, would be effective against terrorists, and could be used against other people, too, such as other serious criminals who have committed serious offences and destroyed more lives than terrorists have over the past few years.

If Labour Members are so concerned about terrorists, why did they enact the Human Rights Act 1998, which has caused so many of the problems that they are now, belatedly, trying to address? The Act enabled people, whom we knew had already been involved in terrorism, to enter this country, claim asylum and use the full panoply of legal aid and lawyers to argue that they should be allowed to remain here. The Government got themselves tied up in knots because they called for people to be thrown out of the country but found that they could not do so. They then wanted people to be detained indefinitely but found that they could not do that either—all because of the Human Rights Act. It has become a charter for foreign terrorists to enter this country and enjoy apparent immunity from prosecution. I say to Labour Members that, rather than introduce a draconian piece of legislation that will strip all British subjects of the rights that they have enjoyed since the 17th century, they should admit that the Human Rights Act was a mistake and that it has given protection to people whom we know are involved in terrorism. They should have the decency—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. It is perfectly legitimate for the hon. Gentleman to refer to the Human Rights Act, but he has no justification for dilating upon the subject. It is legitimate for hon. Members to consider the question of compatibility, but the hon. Gentleman gets into difficulty when he strays into a general debate about the merits or demerits of the Human Rights Act. I know that he will want to resist any temptation to do so.

Photo of David Davies David Davies Conservative, Monmouth

I certainly do, Mr. Bercow, and I thank you for your advice—I think I have made my point.

I am also concerned about something said earlier by the hon. Member for Reading, West. I cannot remember if he said that he voted against it or not, but he felt that the Government tried to bulldoze through 90 days because they were afraid of looking weak. There is concern in the minds of some people that the Government are trying to position themselves in a political fashion in relation to this issue. That seems to have been backed up by the comments of some of their own spin doctors speaking off the record to the press who, as I said earlier, referred to Dave—presumably meaning the right hon. Member for Witney (Mr. Cameron)—positioning himself badly on the issue. That makes the issue seem like a game where we have to take up positions, rather than a matter of national security.

My slight cynicism is further added to by the timing of this. I cannot help wondering whether it is entirely coincidental that the legislation began and continues its passage while an important criminal trial is taking place. Before anyone looks at me in shock and horror that the Government might use the media in such a fashion, I remind hon. Members that it was only a few years ago, prior to the Queen’s speech in 2004, that a leak to the Daily Mail apparently from the security services mentioned a plot to hijack planes and fly them into Canary Wharf. Since then, nothing further has been heard about it. We do not know whether anyone was questioned about that leak or if it is in order for the security services to speak to the Daily Mail off the record in that fashion. Again, one was left with the feeling that the media were being used to whip up scare stories to allow the Government to propose draconian pieces of legislation. I fear that something like that might be happening now.

Photo of Russell Brown Russell Brown PPS (Rt Hon Des Browne, Secretary of State), Scotland Office

The hon. Gentleman says that this is an issue of national security. Where does he believe that the great British public stand on this?

Photo of David Davies David Davies Conservative, Monmouth

I suspect that the Government are trying to use stories in the media, some of which I believe to be false and which were never backed up—such as planes being hijacked and flown into Canary Wharf—and some of which are real in terms of people who have been convicted of terrorism charges. Because of ongoing court cases I shall simply say that. I believe that those stories are being deliberately used in an inappropriate fashion to give the Government an excuse to introduce legislation that will not help to resolve the problem, but will strip us all of our human rights.

Photo of Russell Brown Russell Brown PPS (Rt Hon Des Browne, Secretary of State), Scotland Office

Perhaps the hon. Gentleman can remind me whether 7/7 and almost 21/7 happened.

Photo of David Davies David Davies Conservative, Monmouth

They did. I have just said that the Government have used hypothetical situations that did not happen and situations that did happen, such as the one referred to by the hon. Gentleman, to try to excuse legislation that will not solve the problem and will reduce our rights as individuals. Surely, the hon. Gentleman would agree with me that other pieces of legislation, to which I referred earlier, could do the job more effectively, if repealed.

Photo of Martin Salter Martin Salter Labour, Reading West

I spoke warmly of him being a proper Tory in my earlier contribution. May I countenance some caution on his behalf? One of the dangers for someone occupying the lunatic fringes of any political party is that they believe any passing conspiracy theory. Some websites question whether 9/11 really happened. Does the hon. Gentleman agree that the media clamour in support of the Government’s proposals is as a mouse compared to the roar that we had when The Sun was whipping up a fury to support 90 days? Should he not frame his comments in a context that is at least based in reality?

Photo of David Davies David Davies Conservative, Monmouth

I am tempted to ask why the hon. Gentleman is so familiar with how it feels to be on the lunatic fringes of a political party.

Photo of Martin Salter Martin Salter Labour, Reading West

I have studied the lunatic right in this country for nearly 30 years and have extensive files on the subject.

Photo of David Davies David Davies Conservative, Monmouth

It is probably as well that the Data Protection Act 1998 does not apply to MPs or I would be asking for my own entry on his database. In all truthfulness, I am well aware of the conspiracy theories. Like him, I get e-mails about them and I usually reply by saying, “If the conspiracy is that good, there is nothing that I can do about it anyway.” I find that quite effective. I used the example about the planes being hijacked because I have researched that fairly thoroughly. If the hon. Gentleman looks it up, he will see that there is plenty about it and about how there is not much basis to such theories. In all honesty, I suggest that he looks at that.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The hon. Member for Newark will like this. Let us nail once and for all this canard that the timing is to do with whatever is going on in the courts. Very happily, we have had significant terrorism court cases in the past six months, including those arising from operations Crevice and Rhyme. Very, very happily, Peter Clarke, the outgoing Deputy Assistant Commissioner, said that on any given day of the week for the next 18 months, there will also be significant terrorism trials going on. It is utterly ridiculous and nonsense to suggest that the timing of the Bill is allied to the overt trial of the alleged airline plot.

Photo of David Davies David Davies Conservative, Monmouth

I know the Minister to be an honourable man, and I am certain that he believes that. It may well be that he is right on this occasion. Nevertheless, when people are rounded up on terrorist offences, the BBC and ITV are often tipped off in advance so that they can film the raids taking place.

Photo of David Davies David Davies Conservative, Monmouth

If the police are to conduct terrorist raids, they should not be done in the full glare of media publicity, and I believe that that has happened. On many occasions, people have been rounded up and released afterwards and that has not received anything like the same level of press attention as the original raids.

I think that I have come to the end of my comments. I will finish as I started by saying that I am committed to law and order. I am completely in favour of enabling the courts to send people to prison for very long periods of time, and I would like to see it happening more often than it currently does. However, people need to be charged and found guilty of an offence before they are locked up. Since other hon. Members have mentioned the 17th century, the most significant act of near terrorism in that period is the one that nearly took place here in 1605, which was used as an excuse by some in Government, though not by King James, to clamp down and oppress Roman Catholics. I think, and I hope, that we have learned the lessons from that. We should not allow ourselves to be scared, or to allow the Executive to take away fundamental liberties because of perceived fears about terrorism that may or may not be grounded in  reality. There is plenty that we can do to tackle terrorism without stripping every member of the British public of a right that they have enjoyed for centuries.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley 4:15 pm, 6th May 2008

We often talk about the first duties of Government. In this case, that is a suitable debate along with a debate on how we find the balance between defending freedoms and defending life and limb. In the defence of freedom, one can lose life and limb. When we defend life and limb, we worry about the defence of freedom. I think about how we might debate that today and about how we got involved in the issue in West Yorkshire, how the police force got involved and how it became a very real part of our lives, because some members of our community, who seemed to us to be just ordinary people, became involved in the type of activity that we are discussing.

When some people were arrested, everybody said, “They seemed quite ordinary folk.” Nobody thought that anything peculiar was happening. It was quite a shock when we discovered that some members of our community, who seemed to be teachers and ordinary people going about their business, were actually plotting to blow people up. Where was the line drawn for them? What was freedom for them or freedom for us not to be blown up? Where do we draw the line between freedom to go about our ordinary business and not be blown up and freedom not to be imprisoned? That is a very difficult line to draw.

My hon. Friend the Member for Reading, West gave an extremely good speech. I might say, “Well, it was such a good speech, why should I bother speaking at all?” However, I do differ from him on one or two counts and I will come on to those. My own community, where I live, was intrinsically drawn into this. We were not necessarily the people who were blown up, but members of our community got engaged in this activity, and we had a lot of debate in the community about how it was that people who lived with us got so engaged in it.

Before we knew that people were about to be arrested, we gathered together and started to discuss how that had happened. We did not know at that point that people were about to be arrested, and I had not talked to police officers. However, we started to have discussions. The Muslim community was very distressed, and of course we must remember that it is not only members of one community who become victims; members of every community are victims of atrocities. We must not imagine that Muslims were not victims of atrocities or may not be victims of atrocities in future. They became quite engaged in a debate about how it could be that people wanted to blow one another up. Their view, and mine, too, at that time—my view has not altered much—was very much about the ethos of cults. It is one that perhaps is not right for this measure, but Government ought to think about it. People have started to think about why people blow one another up.

I do not think that this issue should be dealt with through the judicial process. Members have got drawn into the issue and have started to try to use the criminal process and the judicial process, and have muddled that up with an issue that ought to be about the civil process  and what happens in our community. I think that it would be a mistake to muddle those two things up, because in the communities people are already talking about how they can engage with one another and what they can do to develop their communities, dealing with their education processes and social structures. I do not think that they would want to deal with the judicial process in this way, as if that somehow would help them to develop social constructs that would engage them and help them not to be the sort of people who want to blow others up. The conflation of those arguments, which I have heard today, is not helpful.

The idea that this measure would somehow help people in future to see it as an entry point for terrorism is simply wrong. I do not think that it has any part in that process. We have to remember that atrocities existed for a long time before this, and that is where I differ from my hon. Friend. They existed before Iraq and before lots of wars before that, too. Atrocities will continue while people have arguments with us about lots of things and they will find arguments to have about lots of other things in future, whatever we do about this schedule.

Photo of David Davies David Davies Conservative, Monmouth

I accept that this schedule is not going to drive al-Qaeda, but does the hon. Lady not accept that it could be used as a propaganda tool by the people who recruit for al-Qaeda, which wants a caliphate across the whole western world, just as the IRA wanted a united Ireland. Both groups have been happy to use examples of things that they thought were wrong, to whip up hatred among supporters and turn them into terrorists, and that is what this could do.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

Of course, if we do absolutely nothing that, too, could look like a kind of weakness. A weak Government who do nothing in the face of atrocity, and all kinds of things, can be used as propaganda tools. Absolutely anything could be construed or misconstrued in any way. Such a mind, which we cannot understand because we are not inside it, could twist anything into any form that it chose. It is not our job to put ourselves in the mind of somebody who cannot see things in the way that we see them. Our job is to try to do our best to protect our citizens in the way that we see best, to try to find the balance that we are tasked with, using the evidence before us.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Surely, it is exactly our job to put ourselves in the minds of the enemy? I think that it is called counter-terrorism.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

I see that as the job of the agents we employ. My job as a legislator is to use the evidence given to me to decide how best to protect people. As far as counter-terrorism goes, that is not my job because I am not that specialist; I am a legislator and I am legislating as best I can with the evidence before me. Counter-intelligence is for those agents; I am not an agent in the field—I am not doing that job. I am trying to do the job set before me, which is to try to decide, with all the evidence that I have been given, whether in the case of an atrocity the legislation would be useful to those people whom we have tasked to do the counter-terrorism job for us. I suggest that it would.

We have been debating whether in the event of an atrocity or if we think an atrocity might happen, whether in 28 days we have still not got all the evidence but we think that given a little longer we might, we should ask for a little more time. In those circumstances, would we regret not asking for more time? It is a precaution that we might need to take, and I would be prepared in a year’s time, having not used the extra time, to eat humble pie and say, “I am glad we never used it, I am glad that that circumstance never arose”, either because no such atrocity took place or because every single case that came before was us was settled in 14 days. I would be happy to say, “Great, everything went smoothly”, but I am also happy, having heard the evidence, that this measure is just one of the many things in our toolkit that we should have.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the hon. Lady, for whom I have a huge amount of respect, as I hope she knows. Surely, our job as legislators is to be able to see beyond the narrow confines of those problems that are presented to us through evidence, the media or whatever, to base our understanding upon experience? When she reaches my mature age, she will be able to look back down those years and say, “We have made mistakes in the past. We have done things well in the past. Base it on evidence”. Surely our job—I agree that we are not security agents—is to use our judgment, balance our experience and perhaps even use our native wit, to make sure that the legislation that she and I endeavour to pass or oppose is good legislation, and not flawed.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

That is sound knowledge, and I will accept the hon. Gentleman’s flattery whenever I can. That, of course, is why the legislation is time limited. It will not run not ad infinitum; it includes lots of checks and balances. It is good that it will not go on for ever. We have introduced legislation, because we think it necessary at the moment, but it is not here for all time. It is here while we think that we need it. The House need not fear that it is going to go on for ever, or that we might have the legislation on the books ad infinitum. The House need not accept it for ever. However, for the time being, while we fear that there may be a threat, it is here for us to use. That is all that it is. It is just one of a panoply of measures that are available.

I would be the first to wave a flag and say, “Isn’t it great if, in a year’s time, we can look back and the hon. Gentleman and all the hon. Members here can say to me, ‘Do you know you were wrong? We didn’t need to use it once’.” I would be satisfied with that. However, should one occasion arise on which we needed the legislation and it was not there, I would prefer not to have to come to Parliament in the heat of the moment. That would be the worst possible time. When we took evidence, we discussed what it would be like when we had reached the 27th day.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am listening to the hon. Lady with care, and I appreciate the sincerity of her remarks. The application of the precautionary principle to which she adheres could be used to justify giving and extending latitude and powers in the law to an infinite degree. We are not here to say, “I hope that in a year’s time I can turn round and say that none of this was needed”. We are here to protect people’s liberties,  and we do not do so simply by surrendering to the notion that we should provide extensive powers because they might be required, particularly when the overwhelming weight of the evidence, from those who have to use the powers to prosecute and bring people to justice, is that these laws are not needed.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

Forgive me for hoping that they are not needed, in spite of hearing the evidence. This morning, the hon. and learned Gentleman made some arguments that I, too, was disappointed that we had not heard evidence about the kind of atrocities that people believed were being plotted against us. We know that there are plots against us, but I hope that none of those plots comes to fruition. I hope that they are all foiled, and that the agents we employ on our behalf are always successful. The agents plotting against us have to be successful only once; we have to be successful all the time in foiling the plots. I hope that our police forces and our security services are always successful but, as good as they are, they may sometimes fail.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I cannot fail to come back to the argument that the hon. Lady is making, which has also been made by some of her hon. Friends, too. The argument seems to be that the necessity of extending pre-charge detention beyond 28 days is in some ways a preventive measure. The impression that I get from the way in which she has argued that case is that that will enable plots to be foiled. She should listen to what the Director of Public Prosecutions said. Any period of detention, whether 28 days or 42 days—leaving aside the notion of taking detention without trial on a Northern Ireland model—is not preventive; it is about investigating the offence that has been brought against that individual. There is a danger of weaving those two concepts together, and that is why the DPP was so emphatic that he did not need the power. There was nothing, in his view, that would not have emerged by day 27, if not a long time before, that might emerge by day 42, which would require the detention of the individual.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley 4:30 pm, 6th May 2008

I, too, heard all of the DPP’s evidence, including that he would use such measures if they were available to him, but I have also heard evidence from ACPO, and my local police force. I was given examples of circumstances in which an investigation might go on longer. I admit that they were hypothetical because such circumstances did not arise in that particular investigation, but they included a plot that was international, with evidence strewn all over the world. Travel is so easy these days that not only might the persons being investigated come from many different countries, but plots could be taking place throughout the world. The evidence might be encrypted, but that is not the only problem. People might be associating with each other throughout the world or being trained all over the place. It is difficult to gather the sheer quantity of evidence from many places. The police could envisage circumstances in which it was difficult to gather the evidence in such a time.

When I first discussed the matter with the police, they suggested that a reasonable time was 60 days, but now they would be satisfied with 42 days. Opposition Members do not accept 42 or 60 days, but I would be satisfied with 42 days on the basis that it is better than 28 days. If  one of the plots described to me by the police was happening, we might regret not having given them the scope to investigate it. We were given evidence that such plots were being investigated and had so far been foiled, but we should err on the side of caution. I hope that we do not ever regret matters and have to return to the House saying that we failed.

Photo of David Davies David Davies Conservative, Monmouth

In reality, would there not have to be reasonable evidence before someone could be arrested in the first place, and could not the evidence be worked through in 28 days? People will not be taken off the streets at random. There would have to be good reasons for doing so. We are arguing whether 28 days is enough time to look at the evidence, and surely it must be.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

There has to be reasonable suspicion, but suspicion is different from evidence. Having sufficient evidence—[ Interruption. ] The hon. Gentleman is arguing from a sedentary position and I cannot hear what he is saying. We should err on the side of caution when it comes to protecting the lives of our constituents. The difference between that and the hon. Gentleman’s argument about the thin end of the wedge is that we are discussing the protection of large numbers of lives, which places us under an onerous duty to be careful. Sufficient safeguards are in place. We must exercise caution not only in the way set out in the Bill, but by setting out time limits in the clause so that we can exercise caution with our constituents’ lives.

Photo of Adam Holloway Adam Holloway Conservative, Gravesham

I do not come to the matter from the point of view of civil liberties. I agree with the hon. Member for Colne Valley that the first duty of the Government is to protect their people. I would happily support 42 days if, first, I was not terrified of the Whips, secondly, I thought that it was useful and necessary and, finally, I did not think that it would undermine our proposition. Hon. Members on both sides of the House recognise that it is a whole new problem when people are prepared to commit world-changing acts that would result in gigantic numbers of casualties, and when terrorists would do such things if they could match their capability with their motivation.

In 2003, I was a television reporter. I shall never forget being up on the Iranian border at the beginning of the war, and seeing people going through the pockets in the clothes on the bodies of Ansar al-Islam jihadists. The travel documents from several of those people showed that they were from all over the middle east, the Maghreb countries and so on, and they had visa and entry and exit stamps from European Union countries as well as the United States. I do not know whether the staggering stories that DNA samples taken off Afghan shepherds matched the stuff found in semis in the north of England are true, but the threat is obviously real. However, my fear is that the legislation is political posturing by the Government—it is not unheard of.

Mainly, witnesses to the Committee owed their jobs to the Government or had their credibility undermined by people on the other side. The Government could hardly have afforded not to have the Attorney-General—the guy who would have to steer prosecutions—but he for some reason does not think that the measure is necessary.  Many Labour Back Benchers—by no means all—do not seem to agree with him. The Committee will not hear from others who would have different things to say on the matter.

I shall not forget that, after the vote for 90 days, a senior police officer who had been with the commissioner that afternoon, came here for a drink on the Terrace. He had previously been giving me the line that 90 days was critical and so on, but when I asked him what he thought, he said, “It doesn’t really matter, it’s just politics”. I shall also not forget a rather mercurial answerphone message when I called up someone vaguely of my acquaintance from a long time ago who is now senior in the Security Service. I asked him for advice and what he thought about the issue, and he said, “It would be wrong for me to express a view, but one must balance civil liberties and the remote chance that it might be useful, and whether or not it is actually needed”. That was a surprising response—it was hardly a ringing endorsement.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Just before the hon. Gentleman goes on to tell us about other mates he has rung up whose name and position he is unable to tell us, let me go back. It is not fair, in any way, shape or form, to impugn the professional judgment of our witnesses, whether Commissioner Blair, Commander Bob Quick or, indeed, the DPP. Let us set the line straight and say that. Everyone who came to us—I even include Lord Dear—was sincere in their view and was appropriate to their profession. None owed their jobs to the Government, and none were there to make the position clear on behalf of the Government. What the hon. Gentleman said was not fair to any of our witnesses.

Photo of Adam Holloway Adam Holloway Conservative, Gravesham

We can both give way on that point, and I shall continue to cite other voices. The people will remain unnamed, but probably for good reasons, I find myself—

Photo of Adam Holloway Adam Holloway Conservative, Gravesham

I am hardly going to give them, am I? I found myself recently with what I think are called agent handlers. I asked them what they thought about the 90 days. One said, “I don’t really know, just don’t make it harder for us”. When I add that to the fact that the police have never come up against the need for more than 28 days, I see 42 days as posturing and as a political red herring, especially in the context of the Civil Contingencies Act 2004. Rather than wasting our time and capital on the issue, we ought to take a long, hard look at the drivers of radicalisation—multiculturalism, poverty alleviation and our foreign policy—and try to regain some of the international good will that we have lost. We should also introduce hard measures to isolate and eradicate those who threaten us, rather than simply trying to look tough.

Photo of John Heppell John Heppell Labour, Nottingham East

I did not mean to speak to the schedule, but I was prompted by the hon. and learned Member for Beaconsfield and my hon. Friend the Member for Stockport. I agree with my hon. Friend on one thing. Someone asked whether  this was really about making the Government look tough on terrorism. I must say that I have no great objection to the Government looking tough on terrorism, but what I certainly want is for them to be tough on terrorism.

I disagreed with my hon. Friend the Member for Stockport when she said that she was sure that everyone in the room wanted consensus. I do not believe that that is true any more. I have listened to this debate since before Second Reading, and I think that people have pretty much come with their minds made up, for a number of reasons. There is a consensus, but it is not a consensus between the Government and the Opposition. It is a consensus among the Liberals, the Tories, Liberty and a number of groups.

The hon. and learned Member for Beaconsfield has two things in his favour. He has long campaigned for civil liberties and has brought up issues such as intercept evidence in other Committees. He has a history of that, but my hon. Friend the Member for Reading, West hit the nail on the head when he said that the hon. and learned Gentleman wore the issue of the number of days as a badge of honour. It is the issue on which he managed to turn over the Government, and there is no way he will give way on his past victory—his baby. I am fairly certain that that is one of his reasons. The other thing in his favour is that he is a lawyer. That excuses people from all sorts of strange things when it comes to human rights and the law.

I believe that many Opposition Members are having a hard time justifying—

Photo of David Davies David Davies Conservative, Monmouth

I have given my own side a hard time for being too soft on crime. The Conservative party says that it wants to lock up more people for longer, but that is not enough for me. I want even more people locked up for even longer, but I passionately believe that on this issue, we are absolutely right. I do not know to whom the hon. Gentleman is directing his comments.

Photo of John Heppell John Heppell Labour, Nottingham East

My mother always used to tell me to judge people by what they do, not what they say. If you had trooped through the Lobby with the Government on the 42 days, I would believe you when you say that you want to be tough on these things.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I remind the hon. Gentleman that the Chair takes no part in these proceedings other than to uphold good order and fair play.

Photo of John Heppell John Heppell Labour, Nottingham East

My apologies, Mr. Bercow. I am pretty much out of practice; I have not been in these circumstances for quite a long time.

The Liberals have a reasonable excuse as well. They vote against everything—everything that has anything to do with security, law and order. In every Committee that I was on, they voted against everything to do with ASBOs. They voted against community support officers. They have a great record. Then they go back to their constituencies and swear that they did not.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

One of the most encouraging words that has been used in this Committee is “consensus”. I wish that the hon. Gentleman would give us less of the party politics and more consensus.

Photo of John Heppell John Heppell Labour, Nottingham East

I am trying to demonstrate that the real consensus is built around just that—party politics. That is the reason why 90 days and 42 days are so set in people’s minds. It is an issue on which people feel that they have got the Government in a corner from which they cannot back out— [ Interruption. ] May I just finish my point? Then I will let others come in. What is happening is that people smell blood. They sense that the Government are in a difficult situation. Mark my words, there is no chance of consensus on any number of days, for that reason. The very reason why there are no amendments today is that the Opposition are saving up their amendments and their ammunition for Report, when they feel that they will have the most devastating impact.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

The hon. Gentleman says that he is out of practice. That is because he was a distinguished Government Whip. He talks about consensus, but he will be aware from The Sunday Times and from his time as a Whip that 50 of his colleagues voted against 90 days, and another 40 of his colleagues have been identified as causes of concern in terms of whether they will support the Government’s 42 days. He ought carefully to re-examine where the balance or consensus lies, because I cannot believe that 90 of his colleagues are seeking to do his own party damage.

Photo of John Heppell John Heppell Labour, Nottingham East 4:45 pm, 6th May 2008

I do not suppose that they are, but given my experience as a Whip, I recognise where many of the arguments come from. When people used to tell me how terrible it was that 30, 40 or 50 Members were voting against the Government, I used to point out that that meant that 300, or whatever the exact figure was, were voting for the Government—still a majority of Labour MPs.

Photo of John Heppell John Heppell Labour, Nottingham East

I can see that I am managing to destroy—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. Before the hon. and learned Gentleman intervenes, I say to hon. Members that the debate should be about the merits of the Bill and its various clauses and amendments. Occasional reference to motives is to be expected, but the debate should not be about the motives of this or that individual, or the mechanics whereby a majority is cobbled together. I had reason to make that point to the hon. Member for Reigate on a previous occasion. I hope that it will not be necessary to repeat the point continually.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall be mindful of your sensible remarks, Mr. Bercow.

The hon. Gentleman says that the motive of Conservative Members is to gain party-political advantage. I am prepared to acknowledge the sincerity of hon. Members proposing the 42 days, but never in a month of Sundays did I imagine, after the Government’s defeat on 90 days, that they would reopen the debate on an extension to 42 days. Last summer, when they did just that, my first instinct was to tell privately as many Government Ministers as I could that I thought that they were making a mistake. The last thing that I, and most of my colleagues,  I suspect, wanted was this issue to be reopened. It has remained a subject of complete mystification to me why the Government are proceeding in this fashion, particularly given that there does not seem to be a huge party-political advantage in this place in doing so. For that reason alone, I urge the hon. Gentleman to tell his Ministers to think again.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. Before the hon. Gentleman resumes his speech, I want to make one other quick point. I understand the strength of feeling on this subject, but interventions are becoming increasingly prolix. Frankly, that needs to stop. Interventions must be much shorter.

Photo of John Heppell John Heppell Labour, Nottingham East

Thank you, Mr. Bercow. I suspect that I would have spent less time on party politics, but I have had to answer the questions put to me.

I shall address some of the core points about the Bill. Certainly in the Select Committee, I am fairly certain that there was consensus. Somebody said that there would be exceptional circumstances, and that in those circumstances we would have to do something—I think that that was the statement. I think that the hon. and learned Gentleman himself acknowledged that in such exceptional circumstances, he would be willing to consider legislation. Therefore, I think that there was an acceptance that in exceptional circumstances there might be reason to do something. I notice that he finishes all his remarks by saying, “We have no evidence at present.” Having been a Whip and very cynical, I suspect that he is keeping his get-out, if it is decided in the end that it may be necessary to do something.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am a pragmatic man, and I also try to think. If somebody comes up with clear evidence compelling me to change my view on something, I am perfectly prepared to change it. However, the fact is that there has never been any evidence to justify going beyond 28 days. There is no evidence now to support moving to 42 days, just as there was no evidence two years ago for moving to 90 days.

Photo of John Heppell John Heppell Labour, Nottingham East

I notice that that time the hon. and learned Gentleman did not say “at present”, but I think that he said, “today” or a similar sort of thing.

I am simply saying that the Government considered what was said in the Select Committee about the Civil Contingencies Act 2004. People said, “That is a mechanism that can actually be used to do this”, but the examination by the Select Committee showed the faults and problems with doing that. Therefore, it was necessary to return with something else. What we have at the moment is a genuine attempt by the Government to offer something to Parliament that is along those lines. It gives Parliament the chance to veto anything that happens.

It seems to me that there is a big difference between what is happening now and the arguments that were put for 90 days, 28 days and 14 days. The difference is in the safeguards that have been built in. I have just looked at the notes and found the diagram that explains how the system will be put into action. That system was not there before. First, the Director of Public Prosecutions  and a senior chief constable or commissioner of the Metropolitan police must decide that they want to do something. The Director of Public Prosecutions is quoted extensively as somebody who does not think that this is necessary. Is it not reassuring that he is one of the people who has to want to do it in the first place?

The likelihood of the power being used cannot be equated with internment in Northern Ireland, where prisons were built to put people away. I think that it will be used sparingly and in exceptional operational circumstances. That is how it is designed. It is supposed to be enacted under compelling operational circumstances. We are talking about something completely different. Mark my words: although I say that the Director of Public Prosecutions may not want to bring in the power, somebody else who will not want to is the Home Secretary. I can accept the argument that the Metropolitan police commissioner or a senior police officer might think that this is a great idea that gives them a bit of extra leeway, some extra strength or an additional tool. However, the Home Secretary will be faced with having to report to Parliament and not only that, but having to come back seven days later and have a vote in Parliament.

We can see how controversial this legislation is. We can see how difficult it is for people to agree on it. We can see how difficult it is for the Home Secretary to put across the argument. Do we think that she will want to do that over and over and over again? If it happens once, I bet that it will be a while before it happens a second time. Perhaps people have no faith in Parliament, but I cannot see that this is something that will be nodded through. It will engender a great debate in Parliament. Any Home Secretary who puts this into practice will say to themselves that there have to be exceptional circumstances.

I accept what has been said about whether the power should be under the Civil Contingencies Act 2004. The fact that the power has been used will not be kept secret because an emergency has not been declared. However, would it not be a propaganda coup for al-Qaeda or whoever the terrorists are if we keep declaring states of emergency in this country? The very thing that terrorists work on is the idea that they disrupt our normal life and stop us going about our business in a normal way. When people stop using the tube, it is a victory for the terrorists. When Londoners went about their business as they had always done and when things returned to normal in Barcelona, the terrorists were losing. What a coup it would be for them if we kept declaring emergencies every time we wanted to examine some extra evidence.

I rose partly because of my hon. Friend the Member for Stockton, South. However, the hon. and learned Member for Beaconsfield made my blood boil a little when he talked about not doing this because it would create martyrs. He described men who are evil, are already persuaded that they should be killing people and are already killing people. He said, “Let’s not give them a reason to build on that. Let’s not give them the propaganda.” I have to say that I cannot believe that a Conservative Front-Bench spokesman is taking that view. In the same way, I find it difficult to hear the hon. Member for Monmouth taking that view. Also, the hon. Member for Gravesham went through a great list of things we should do. Then his last line was something like, “Well, we will do some tough things as well.” The things we do, we should be doing because they are right.

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

Will the hon. Gentleman just wrestle with this? When an individual is arrested under those powers and detained for up to 42 days, but is then not charged and cannot be deemed to be guilty of any offence, there is going to be immense anger in the host community.

Photo of John Heppell John Heppell Labour, Nottingham East

That might be the situation, but we might find the same situation after 28 days. Those 14 days are not going to be the convincing thing. Let me say that what we have now is people blowing themselves up, people who are quite happy to kill other people, themselves and members of their family. Do not tell me—I honestly cannot believe—that any legislation going through the House to make 28 days 42 days is going to make any difference to those people whatsoever. I think that Winston Churchill would be turning in his grave to hear someone talking in these terms—“We are not going to upset them by doing this.” Neville Chamberlain might have risen from his grave in those circumstances.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am most grateful to my Nottinghamshire colleague for allowing me in. I absolutely take his point—he is spot on. We have to save lives. We have to stop people being killed. However, we also have to look to the future. We have to make sure that the legislation that we pass now does not exacerbate a problem that just might be containable, that we do not make the mistakes that we have made so many times in the past and give our enemies further reason to continue their fight and their evil against us.

Photo of John Heppell John Heppell Labour, Nottingham East

I agree with the hon. Gentleman completely, but I do not think that we would get such a situation by demonstrating weakness, by appeasing people. That does not help. I have a very big Muslim population. I bet that I have a bigger Muslim population than anyone in this room. Nottingham, East—check it out and see. What happens when I go and talk to them and when they get to know the facts? It is not a straight 90 days to 42 days—there are all those judicial and parliamentary safeguards and the thing is very different to how it started off. That is not being portrayed to people. When they know about that, do they want the same protections that I want? Do the Muslim population want the same protections as the rest of the population? The reality is, yes, they do. They might have the odd imam stirring something up in the mosque on a Friday, but get those people on their own, as individuals or in small groups, and we would not find them anxious to be insecure any more than the rest of us want to be insecure.

Intercept evidence, post-charge questioning, all are great. People put them forward as to why we should not go to the 42 days. I agree with them on that. I suspect that I am very big on the idea. I want to give the police and security services as many of the tools that are necessary to beat the terrorists as we can, but at the same time ensure that we have safeguards—I pointed out the safeguards in the legislation—to protect individuals’ liberty.

Even if we pass the post-charge legislation and all the other bits and pieces in the Bill that people have welcomed—all the stuff about freezing assets and so on—it does not mean that we should not have an extra safeguard of having something in reserve if it is needed.  We should coolly and calmly make the decision now on how to deal with such a situation.

When Commissioner Blair spoke to us, he said that he would hate to have to come back and ask for this power after an atrocity. I feel exactly the same. I would hate to be the person opposing the measure if, as a result, someone died.

Sitting suspended for Divisions in the House.

On resuming—

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I suppose that I should bring my remarks to a conclusion, having already uttered about five words.

It is a pleasure to follow the hon. Member for Nottingham, East, who made an interesting contribution and considered that some of us on these Benches opposed the extension to 42 days simply on party lines. That is not where I am coming from. I do not believe that it is necessary, and I shall explain why.

Having had some 30 years’ practice in the criminal courts, I have a high regard for the criminal justice system in England and Wales. That is because it works. It has developed over centuries past. The rules are there for a purpose, and they are amended for a purpose when necessary. By and large, our system of justice is as good as anybody’s. I say that with a certain pride, having been involved as both a solicitor and a barrister. I am not here to make any cheap points.

I would not seek to impugn the sincerity of anybody on the Committee or in the House on this most difficult of subjects. It is difficult because none of us in the Committee, elsewhere in the House or at large would ever want to see an atrocity perpetrated that could have been avoided or prevented. That is absolutely without doubt, and I know that we are at one on that. There is consensus at least on that matter.

I say with respect to the Minister that he has attempted over months past to build up a consensus. His office has been open to Opposition Members, and there are some things in the Bill that are very helpful and will be supported with certain safeguards, but I am afraid that the two sides of the Committee, and I believe the two sides of the House, will remain at issue on this aspect of it.

The hon. Member for Nottingham, East, referred earlier to the consensus that he hoped to see built up. It is therefore quite surprising that in the past two years, a consensus did build up about a 28-day limit. Many of us who were vehemently opposed to 90 days were eventually, pragmatically, persuaded to fall in line on 28 days. Now, two years later, that consensus has sadly disappeared. One must ask whether there is now a compelling and urgent reason to revisit that decision of the whole House, which, as I have said, was arrived at by consensus. Sadly, I do not think that the case has  been made at all. I say that with respect to the Minister and to the Home Secretary. In all the discussions that we have had in the past six or eight months, we have not seen any evidence to justify the move, let alone compelling and urgent evidence.

Several people have been quoted by Opposition and Labour Members during this interesting debate, and several committees, non-governmental organisations and so on have been referred to. I shall avoid all that, as it can be taken as read. However, it is quite telling that both the Home Secretary and Sir Ian Blair tell us that there has not been a case in which the full 28 days has been necessary. I have no desire to reel out all the quotations—they are on the record.

I say this, too, with respect: the hon. Member for Colne Valley made the point that we must not in any way make a mistake with this, and that we must avoid any calamity. All that is agreed. What interests me is that there is some kind of presumption among some people in the Committee—I do not mean to be rude about this—that if a person is arrested, they are therefore guilty. That seems to be the tenor of what is being said.

I respectfully ask the hon. Lady, and others, to think about a perfectly innocent person who is brought in, albeit on a reasonable suspicion. Earlier, the hon. and learned Member for Beaconsfield mentioned the psychological problems that often occur during a lengthy period of detention when questioning is going on. I have seen innocent people who, having spent only three or four days in police cells, come out with a problem or two that will remain with them for a very long time, if not for ever. I am not a softy, and I do not want to see anybody perpetrate a horrible incident on any of our constituents—let me say that again.

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

It is not just about someone coming out with a problem or two, there is also the risk that they come out having made either false confessions or false allegations as a result of the pressure of the detention.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

That is absolutely correct. The right hon. and learned Gentleman knows that from his own experience—I am sure that all of us lawyers have been involved in similar matters—looking at cases where confessions have been brought forward due to the strain of isolation and so on, which can be severe.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

Is this not a matter of risk? There is a risk that the person detained could be innocent, but there is also the risk that they are not innocent. If they are not detained, they could carry on with the plot that we are trying to avoid.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

That is right, but I do not see how extending the period of detention to 42 days will deal with that particular problem. In any event, the person will eventually have to be charged or released. We might conceivably charge a person who is innocent, or release somebody who is not. I do not see where the logic of that intervention takes us.

I mentioned briefly that we have a body of rules that we abide by in the legal system in England and Wales. I will not go through the comparatives about common  law, and where people are, because all of that is on the record. Suffice it to say that what is being sought is a hugely long period of time.

The word “pragmatism” has been used once or twice today. I say to the Minister that, if evidence was brought forward, I for one would most definitely, seriously and urgently consider it. If the case were persuasive, I would have to reconsider what I am saying, and forget about any civil liberties arguments that I might have. For the public good we would have to fall in line and accept that an extension is required. However, nowhere has any member of the Government put forward a persuasive or compelling case for this serious change in the law.

The Law Society has made its feelings known, and I am not going to quote from it. It relies heavily on what the Joint Committee on Human Rights has said—that the pre-charge detention period is sought on a precautionary basis, and that there is no justification for it. Our best Government evidence suggests that perhaps in the future, perhaps quite soon, we might require more than 28 days for an inquiry to be conducted fully. That is interesting because the hon. Member for Reading, West made several interventions and a speech this morning on that particular aspect. Two years have elapsed since the 28-day extension became possible, and in those two years a lot of work has been going on, a lot of arrests have been made, but not once has the 28-day period been reached—[Interruption.]I think that 27 days is the longest.

If there were compelling evidence that the police were being stymied, I am sure that most of us would say that we have no argument with the measure.

Photo of Dari Taylor Dari Taylor Labour, Stockton South

The hon. Gentleman speaks a language that we all understand, of wanting—in fact, needing—to see compelling evidence. Would he accept a statement that is made in a lot of the literature on terrorism, that radicalisation has no visible progression? That makes it very difficult for us to see where it is, how it is developing and where it will act. Does he acknowledge that that is a problem and one that this Bill is attempting to accommodate?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

With respect, I am not sure how the hon. Lady equates holding somebody for 42 days with dealing with radicalism. It seems to me that radicalism is a cultural and/or religious matter and that is something that we need to engage with. However, I do not believe that this Bill will offend our friends in the Muslim community, although other people may say that it might do so. I sincerely hope that it does not and I do not think that it will, so that is not part of my argument.

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

The hon. Gentleman will bear in mind, from his own experience long ago, the Vagrancy Acts. He will remember how the stop-and-search powers were used in such a way, especially in London, as to cause immense rage, anger and dismay among the ethnic communities.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

That is absolutely true; there is no doubt about that. The right hon. and learned Gentleman is right about that. However, my point was that I was not seeking to rely on the 42-day extension being, in a way, targeted against anyone or causing alarm among certain  people. I might be wrong and the Muslim communitye might feel under threat by the existence of this particular debate. I hope not, but I do not know; I am no expert on that particular subject.

We are told that there are safeguards in the Bill and that there will be judicial supervision. We are also told that, when the reserve power is to be brought in, it will be referred to the House of Commons. The explanatory notes say that it would be referred if,

“there is operational need for it.”

It would be referred if,

“the Director of Public Prosecutions and a chief officer of police in England and Wales”, were to say that there is an “operational need for it”, based on

“reasonable grounds for believing that the detention of one or more persons beyond the current maximum limit will be necessary”.

We would then bring in the reserve power, which in turn would be referred to the House of Commons.

I must ask what useful purpose will it serve to bring the reserve power to the House of Commons? I ask that because surely if this detention is at a very delicate stage, where some evidence has been gleaned—obviously it must be the case that some evidence has been gleaned—but other evidence is being looked at, how much will we in Parliament be told about the depth of the work that is going on? I suspect that we will be told very little indeed, in which case it is a waste of time to bring the reserve power to the House of Commons.

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

To reinforce what the hon. Gentleman is saying, paragraph 41(5) of schedule 1 states:

“The statement must not include—

(a) the name of any person then detained under section 41, or

(b) any material that might prejudice the prosecution of any person.”

That makes it wholly plain that the House of Commons will be told virtually nothing.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

That is my view and I am pleased that the right hon. and learned Gentleman supports it, because this particular safeguard does not add up to a row of beans. We are left with the judicial intervention, and I am sure that that would be quite honest and straightforward; I have no doubt about that. Senior circuit judges and other experts in these matters would be referred to. That is fine.

However, I find that this particular matter of the Executive order coming to us to consider whether to vote it through on no evidence at all seems to be a waste of parliamentary time. More importantly, it is a safeguard that, in effect, means very little indeed.

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

I absolutely agree with the hon. Gentleman about Parliament acting as a sort of grand jury, but not in possession of the facts of the case. I felt that various contributions from the Government Benches reflected confusion about the circumstances, implied by this Bill, in which the investigating authorities run into difficulties with a specific investigation and require additional time, and the post-apocalyptic scenario of a state of emergency after a massive incident, in which everybody would accept the House’s authority being sought for further Executive action. Does the hon. Gentleman agree?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 5:45 pm, 6th May 2008

In the latter case, the Civil Contingencies Act 2004 would no doubt come into play. [ Interruption. ] It might not, apparently: in a cataclysmic event, it would not come into play. One wonders what it is there for then. I was a member of the Committee on that Bill, too—for my sins.

My concern is not to score cheap points or to undermine anybody’s sincerity; it is not at all to do with that. I am desperately worried about the all-important balance between the safety of the individual and the inalienable rights that we as citizens all enjoy. They have evolved through common law and statute over many years, and we should not be deprived of them for no good reason. If the evidence were produced, again, I would not argue this case. However, the evidence does not exist, the case has not been made and the legislation is not at all proportionate.

I finish by referring right hon. and hon. Members to the conclusions of the House of Lords Joint Committee in its report on the subject. It concluded:

We can find no clear evidence that it is likely that at some point in the near future more than 28 days will be needed. In particular, this is not the view of the CPS who say they have been operating perfectly ‘comfortably’ within the current limit.

The alternatives to extension do enough to protect the public and are much more proportionate, especially the combination of the threshold test...post-charge questioning and making intercept admissible.

The proposed parliamentary mechanism creates a serious risk of prejudice”— as the hon. and learned Member for Beaconsfield said—

“to the fair trial of suspects, because it involves parliamentary debate about the merits of extending the limit in relation to specific ongoing investigations.

The existing judicial safeguards for extending even up to 28 days are inadequate because they do not provide a full adversarial hearing or an opportunity to challenge the basis on which someone is being detained.”

This oversight by Parliament is an interesting constitutional departure. It flies in the face of the separation of powers and judicial independence, and it should be looked at with great concern. It would not amount to a great deal, however, because it would not mean much: we would be kept in the dark and expected to nod the thing through. With respect to the Minister, I, along with other friends and colleagues on the Opposition Benches feel strongly about the measure, and I hope that the Government will reconsider it.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I cannot remember who I asked about this point earlier, but I think it was the hon. Member for Carshalton and Wallington—the birthday boy, as we call him. To pursue it, is the hon. Member for Meirionnydd Nant Conwy arguing—for argument’s sake, let us stay with the model—that parliamentary oversight for that “operational period” should be expunged and that we should find some other way for Parliament to oversee things, or is he minded to go along with my hon. Friend the Member for Reading, West and at least have the vote or the discussion in Parliament at the seven to 10-day period rather than at the 30-day period? If the hon. Member for Meirionnydd Nant Conwy is unsatisfied with the parliamentary oversight provisions in the Bill,  in this little game that we are playing about the model being fine, on which I appreciate his comments, what would be the most appropriate role for Parliament in that context?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

Unless the Minister says that full details will go before Parliament, the role of Parliament will be negligible in its effect and we will all be, in effect, fig leaves for something that is beyond our knowledge. We will not know exactly what is going on, and if we will not know that, how will we possibly be able to vote in all conscience one way or t’other in accordance with our duty to our constituents and to this place?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

In lieu of what the right hon. and learned Member for Sleaford and North Hykeham said about paragraph 41(5) of schedule 1 and the explicit notion that individuals or cases cannot be referred to directly, that matter has been of concern in general, let alone in terms of parliamentary oversight given this model. I thought that everyone was fairly comfortable with where Sue Hemming got during the course of the alleged airline plot that is currently before the courts—I do not want to say too much about it—where she and Peter Clarke at the end of their deliberations could at least get into the public domain the number of individuals involved, the nature of the plot, the complexity, the when and why and all of the other elements that would be perfectly acceptable to know had that come before Parliament in that extant model before us. That would have given Parliament more than sufficient reason to deliberate on what it should be deliberating on, which is whether it agrees with the Home Secretary commencing the order for that model to be alive and no more.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The Minister has made a fulsome response to the question that I posed on what kind of evidence we would become aware of and has given us some interesting information that is worthy of further thought. However, there is always the other point that Parliament acts in a quasi-judicial role.

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

May I reinforce what the hon. Gentleman is saying by drawing to the his attention the fact that even if the House was to disapprove of the order, it will have been in place for 30 days, and if the initial detention started the end of the relevant period, as one suspects it would, the detained person is likely to be in custody for at least 42 days in any event, even if the order is disapproved?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I am grateful to the right hon. and learned Gentleman for that, because he makes an important point. In conclusion, I believe that this part of the Bill is flawed. I have not touched upon some of the opinions of various informed people on whether it is compliant with human rights, but I will not go down that road just now. I know that the Government have their own opinion, and it is a moot point in any event. Whenever we  legislate, we should do so in a proportionate way, and I do not think that this part of the Bill is proportionate in any way.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

It is a pleasure to follow the hon. Member for Meirionnydd Nant Conwy. Although I disagree with many of the things that he said, he put his case in a reasoned and proportionate way. I think that he and others have demonstrated that there is a lawyer’s perspective on the matter and a public perspective. That does not mean that there are not members of the public who support the lawyer’s position on this. Similarly, some lawyers support the public position and the position that the Government have on it. However, there seems to be a distinct perspective that is dependent on either general interest or professional training.

I will say at the outset, as might become obvious from some of the things that I say, that I am not a lawyer: I would not pretend that I know my habeas corpus from my Magna Carta, but I at least feel that I have a finger on the public pulse in this regard. Just looking at it, we have before us a proposal to extend the period of pre-charge detention from 28 days to 42 days, but there has to be a recommendation from the DPP before that can take place. We can argue about some of the things that he said, but I think that there is general agreement that he is less than enthusiastic about the provision, and the public would reasonably expect him to be, shall we say, a difficult man to convince to take a particular case further.

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

While what the hon. Gentleman is saying is clearly right of the existing DPP, he should bear in mind that directors serve for a relatively short period. We are therefore considering the position of directors for the foreseeable future.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

The right hon. and learned Gentleman is correct. It is also correct to say that this legislation can be renewed annually. If there are concerns that there is not such an obstacle, Parliament will have an opportunity to deal with that through the normal legislative channels. Stage one is a difficult hurdle to get over. The next stage is for the case to be reviewed by a High Court judge after seven days. Again, given the strength of feeling that there seems to be within the judiciary, it seems reasonable to assume that a High Court judge would not let the process go further if a very strong case could not be made that it was necessary.

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

Will the hon. Gentleman keep in mind that what we are discussing will not be an inter-party hearing? Generally speaking, it will be a hearing at which only the Crown is represented.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

Forgive me if I do not understand the details of judicial procedure, but my understanding is that a High Court judge will determine whether a case should go any further.

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

I did not make myself clear. I apologise to the hon. Gentleman. My point is that only one party will be represented. In this case that will be the prosecution. Generally speaking, the proposed defendant will not be present at the hearing.

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

I am not wrong. There is a power to exclude the defendant and the defendant’s representative. I commend the all-party committee report on the matter.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

There is such a power, but Sue Hemming, the chief prosecutor for counter-terrorism, made it very clear last week that there had been no ex-parte hearings, as provided for by the law. I know that the right hon. and learned Gentleman is a lawyer, but the practicalities and implementation of the law matter as much as what the law says. She was very clear not only that the other side were always represented, but that the power to have ex-parte hearings with the other side excluded had not been availed of at all. The right hon. and learned Gentleman should not in any way, shape or form inadvertently mislead the Committee.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

I am grateful to the Minister for that clarification. Even if that were not the case, it is perfectly reasonable to assume that somebody of High Court status, with some sort of expertise and training in this area, will not be a pushover when it comes to determining whether there should be further detention. I think that, by most people’s standards, a reasonable level of checks and balances is built in. Essentially, there is a judicial process, monitored and driven by the judiciary. I think that most people—the man in the street or the Clapham omnibus—would say that there is a reasonable balance between executive power and judicial independence.

In his opening statement, the hon. and learned Member for Beaconsfield gave quite some detail of constitutional history and the importance of common law, habeas corpus, the rule of law and individual liberties, all of which I totally agree with. I think we can say that the fact that there is tension between the judiciary and the Government over this issue is itself a reflection of how democracy should work and is constructive. However, I think that the Government must have a different perspective from the judiciary, because they have a level of accountability that the judiciary do not. The fact remains that ACPO and Lord Carlile—the body and the individual most qualified to assess whether the powers are necessary—both agreed that they should. It ill becomes a Government representing the people to turn down those people’s evidence and advice, but by implementing it as they have, they have achieved a proportionate response that provides for a balance between protecting civil liberties and giving our legal system and security forces the backstop of a reserve power that they can operate in particularly difficult circumstances to protect the public. I think that the public reasonably expect that, given the range of checks and balances within the proposals.

At the end of the day, it is a matter of judgment. I judge it one way; others may judge it another. At different times, I have heard—perhaps “aspersions cast” is too strong a phrase—questions asked about the police’s genuine commitment to that. I can speak only for my own force, the West Midlands police force. I went on the parliamentary police liaison scheme for 25 days, and I made a point of asking them about it. It is fair to say that they were pretty unanimous in wanting the extra days, because of the complexity of the investigations. I  will not repeat the description by my hon. Friend the Member for Colne Valley, who articulated it far more eloquently than I can.

Moving on to the issue of relations with the Muslim community, I, like other members, have a substantial Muslim community in my constituency. Muslims represent about 9 per cent. of my electorate. I would be circumspect about adopting a position on any of these issues if I felt that there was a strong community reaction, but as the hon. Member for Reading, West said, nobody has ever approached me about them.

There does seem to be some evidence that the Muslim community feels under pressure. However, I have heard different reasons at different times. The one most commonly quoted or prayed in aid is the Iraq war; the other is the stop and search powers. If I had to choose one, I would say that the stop and search powers have done more than anything else to make the Muslim community feel that it is under pressure, but to argue that we should not do something so demonstrably in the public interest and the interest of public safety because of perceived problems with a particular community is not the proper way to go about it. It underrates the sophistication and maturity of the Muslim community.

I shall not go into great detail, but three members of my local Muslim community were detained in Guantanamo Bay for two years. No collective anti-western reaction whatever arose from that. The community handled it in a mature and responsible manner. I believe that that is true of the great majority of Muslims in this country. They do not want terrorists in their midst, and most of them want to do everything in their power to co-operate with the police to end the scourge of terrorism.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley 6:00 pm, 6th May 2008

Does my hon. Friend agree that the vast majority of people feel most aggrieved to be associated with the fact that they could be terrorists, and that people, particularly newspapers, associate, or prefix the word “terrorists” with “Muslim”? They would feel a lot happier if we discussed terrorism without that prefix.

Photo of Adrian Bailey Adrian Bailey PPS (Rt Hon Bob Ainsworth, Minister of State), Ministry of Defence

My hon. Friend makes a valid point. The easy and somewhat biased conflation of “Muslim” and “terrorism” has done us and the Muslim community no service. Certainly, it only plays into the hands of those individuals of extreme political complexion in some communities and undermines race relations within such areas.

If it is quoted too readily that we must not do something because it will offend a community or that we are in danger of crossing a line that provides those who want to commit such acts with a rationale for doing so, we would push the moral responsibility away from the terrorists. That is inappropriate. The fact remains that there is nothing in the legislation that should impinge the human rights of any law-abiding citizen, and there is no point in highlighting that it will only provide ammunition for those who wish to abuse others’ human rights.

I have never found a normal westernised Muslim looking at the period of pre-charge detention and saying, “That’s enough for me. If you go over that, I’m going to become a terrorist.” That is simply a complete negation of reality. Similarly, although I would not pretend knowingly to meet terrorists every day, I find it difficult to believe  that somebody who detests western values such as democracy and the rule of law, will suddenly become a terrorist simply because we have extended pre-charge detention from 28 to 42 days. An awful lot of loose arguments are bandied around on the subject. Some of them are linked to the Muslim community, but many if not more are from other communities with a specific political viewpoint. My own experience of dealing with my own Muslim community tells me that such a situation is far from reality and unbelievable.

As I see it, from a public perspective, a real problem has been outlined by people with the expertise and understanding to do so. The Government are proposing legislation that is proportionate and that contains the right balance between individual liberties and the need for extra security. It has a fair degree—it is not overwhelming—of public support. Given that, ultimately, if—heaven forbid—there is a terrorist incident after somebody has been released, the Government would rightly be held responsible for not having the legislative framework to prevent it. The measure will go a long way to ensuring that that never happens, and it should therefore be supported.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

It is a pleasure to follow the hon. Gentleman. I understand what he says, but with respect I must disagree with most of his points, the reasons for which I hope to articulate clearly.

I disagree strongly with schedule 1, which I believe to be an assault on an essential liberty that not only is a human right, but which is an increasingly important tool in countering terrorism. The Minister will take issue with much of what I say, but I would like to make one or two things clear from the start. I shall draw on comparisons with my own experience of fighting terrorism in Northern Ireland and the flawed policy of internment in Ulster, although I realise that neither offers a precise parallel to anything going on today. To make it quite clear, I do not believe that anything in this legislation bears any resemblance to internment. Despite the parallels that I shall draw between what happened in Ulster and what is happening today in the fight against—principally—Islamic fundamentalism, I accept that they are very different, but none the less the parallels are instructive, so I shall try and bring them out.

After the comments from my hon. and learned Friend the Member for Beaconsfield, I shall concentrate on the power of perception and propaganda. If we forget about or neglect that, or do not anticipate it, we will pass an extremely important tool to our enemies. I am sure that Labour Members will say, “But please! We have a series of safeguards in place. We believe that 14 days is probably enough and that 28 days will have to be used occasionally, but we are searching for 42 days to be used in exceptional circumstances. And nothing that you say, oh Member for Newark, can possibly compare with internment.” They would be right—it cannot. However, our enemies will ensure that it does. That is the point. Again, the Minister and I have talked about this over the past few days and weeks. There is a fatal flaw in our understanding: if we fail to see what could be done with the theory—not the practice, because the reality does not matter—behind this proposal and allow the legislation to be suborned or canted and turned to the advantage  of our enemies, I fear that we will be ignoring the lessons of history and doing ourselves a great disservice.

The hon. Member for Colne Valley made the point that we are in the business of protecting lives. Absolutely. I could not agree with her more. But we are also in the business of protecting future lives and of trying not to make mistakes that will endanger lives, not next week or year, but in 10 years. Again, I would like to draw on the lessons of the past to show us what dangers lie ahead. Let us consider the powers of propaganda. I joined my battalion in 1975 as a young officer—not during internment, but in its immediate aftermath. I expected to find the police, who were leading on the problem, and the Army, which was very much in a subordinate role, literally hammering at the bars of the cage saying, “We need more powers and time to deal with terrorists.” I expected them to take a fairly draconian approach towards dealing with that particular brand of terrorism. Not a bit of it. I am glad to say that the voices of reason were alive and well. They were based on the hideous mistakes of internment over the preceding two or three years. To generalise, their view was: we must be moderate and reasonable, and not allow our enemies to use the single most important tool that they have—not a bomb or bullet, but propaganda. Terror is not necessarily about killing, but about terrorising. Terror is about twisting the truth. If we can make people believe what we want them to believe rather than taking away their lives or their liberty, then we as terrorists will have achieved our aim. Let me give an example:

“Through the little streets of Belfast

In the dark of early dawn

British soldiers came marauding

Treating little homes with scorn.

Beating sons before their mothers

Dragging fathers from their beds”— so it goes on. It finishes:

“As the blood flowed from their heads.”

The Minister can probably fill in the rest of the words.

Members of the Northern Ireland prison service are frequently referred to in republican propaganda as concentration camp guards. I did not see any such acts of violence when I was in Northern Ireland although I was not there during internment. I do not believe that those sorts of acts of violence went on. There were some difficult and hard arrests, and some arrests were resisted. It was said that sons were dragged from their mothers’ sides as their blood flowed from their heads and that perfectly ordinary policemen and prison screws were concentration camp guards. That is the power of propaganda and the twisted perception of our enemies.

What is the modern equivalent of that? Look at the way Abu Musab al-Zarqawi conducted his operations in Iraq. When a C-130 fell from the sky—as far as I know not brought down by enemy fire—the international media almost immediately had pictures not just of the aircraft on the ground but the fire of insurgents that had brought it down. We have talked about the way in which our enemies will tailor their propaganda. Ayman al-Zawahiri, the second in command of al-Qaeda, said about our operations in Afghanistan:

“There will be no more Dr. Brydons”

I doubt whether many here could tell me what that is an allusion to. [Interruption.]

The Chairman: Order. There is no need for the right hon. and learned Member for Sleaford and North Hykeham to answer any question, and he certainly should not do so uninvited.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am glad that a deep and sensible perception of military history exists in the east midlands. The right hon. and learned Gentleman is absolutely right when he says that the one single survivor from Kabul in 1842 was Dr. Brydon. I will not go into any of the details. The point is that our enemies are knowledgeable, thoughtful and will use propaganda to the very best of their ability to unhinge our efforts and to defeat us—not with bombs and bullets, but with words.

I ask you, Mr. Bercow, to look carefully at the incident in Forest Gate, which took place nearly two years ago. I will not question the intelligence upon which those operations were based. However, when an individual who was being arrested was accidentally shot, the propaganda machine immediately went into overdrive. With those points in mind, I believe that if we extend our period of detention from 28 days to 42 days—I have to say that I had the gravest of reservations about the extension from 14 days to 28 days—three things will happen, all of them have been touched on already. First, vulnerable communities will be much more easily alienated than they have been so far. I understand those on the Government and Opposition Benches who said that the vast majority of people inside those vulnerable communities are reasonable, rational, sensible and thoughtful people. However, that is before our opponent’s propaganda machine has started to work properly. Again, I would urge everyone here to consider what happened to the Roman Catholic population in the 1970s. Again, it was slightly before my time, but the sight of British soldiers being greeted by Roman Catholics on the streets of Londonderry and Belfast in 1969, with cups of tea and plates of cakes, quickly changed after 1971. A vulnerable community was suborned—to use the modern phrase, radicalised—by careful and clever propagandists. It would be grossly unfair to say that we lost the sympathy of the Roman Catholic population, but none the less we lost a lot of sympathy from that particular vulnerable community.

Hard on the back of that comes recruiting. Once the sympathy of the community is lost, recruiting becomes that much simpler. Once recruiting gets into its stride, the job of the intelligence agencies becomes that much more difficult. The third point relates directly to that again—the crucial point that we found on the back of internment concerned the carefully established, nurtured and worked-up intelligence communities—the informers’ touts. Many of those individuals were alienated and lost until we managed to re-establish those communities from about 1975 or 1976 onwards. I would go so far as to say that, had we been able to maintain those lists of informers, we would have nailed that particular iteration of the IRA by about 1980. The long-lasting effect of internment was the killing of the gathering of intelligence and the implementation of aggressive use of intelligence on the back of it. That was purely and simply due to a failed and flawed piece of legislation, an Act of Parliament that worked so thoroughly badly, to the detriment of the security forces and to the aiding and abetting of our enemies.

In conclusion, we have had some compelling evidence from witnesses and other speakers that everything that I have predicted so far in my three points has yet to happen. A fair argument has been made that, if so draconian and dreadful, why did those things not happen when we went from seven to 14 days or from 14 to 28. I do not fully know the answer, but before the Minister challenges me on that I would say that our enemies are awaiting their opportunity. None of that will be as effective as if they deploy their arguments on the back of the next major incident that strikes this country. Nothing that legislation can do can prevent the next incident. However, we have an opportunity today not to repeat the mistakes of the past—to look into the future and to try to understand the depths of our responsibility, to nip this in the bud, rather than taking a short-term view.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

It is a pleasure to follow my hon. and gallant Friend the Member for Newark, who brings with him extensive experience. It is wrong to hide our experience on the Committee. Not only did my hon. Friend the Member for Newark have extensive time in counter-terrorism in Northern Ireland, but my hon. Friend the Member for Gravesham, as a former SAS and Grenadier Guards officer, has first-hand knowledge of violence, terrorism and warfare. I myself spent time in Northern Ireland—contrary to what the Minister alluded to in his earlier reports, I was not a torturer-in-chief or whatever his implications.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

The Minister implied that I had perhaps abused some of the powers fighting terrorism.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I said no such thing. I certainly did not use “torturer-in-chief” or any such term. I would not, about any Army officer serving in Northern Ireland or anywhere else. I want that withdrawn.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

If we look at the record, we will find that the Minister said—perhaps I will clarify that in writing—that I may have abused some powers in Northern Ireland. Although he said it light-heartedly, it is important.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. Will the hon. Gentleman give way?

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

I am not going to give way. I am not going to go through the Hansard. I can write.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

On a point of order, Mr. Bercow. I want the statement or any notion that I called the hon. Gentleman or anyone else a torturer-in-chief withdrawn. I said no such thing. I want that clear statement withdrawn.

Photo of John Bercow John Bercow Conservative, Buckingham

I am grateful to the right hon. Gentleman for his point of order. I have no recollection of that exchange. At this stage I will invite the hon. Gentleman to respond, if he so wishes.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

I said that there was an implication, although light-hearted, that I had somehow abused my powers in Northern Ireland. I never said that the Minister accused me directly of being a torturer-in-chief. It is important in this debate that the operational knowledge of some hon. Members is not discarded. I am not a lawyer nor are my hon. Friends who have raised objections to the matter. I am not arguing from the human rights point of view or that of the balance of law in the Executive. I argue not lightly, but because I have first-hand experience of combating terrorism and meeting terrorists. At the age of 20, I arrested my first active service unit, and not many hon. Members can lay claim to that.

One of the charges that we hear from a number of Labour Members is that the price of not taking such action is that we may face an outrage or catastrophe if we do not have such an extension. That is the compelling reason why we must do so. However, that is to mix the operational issues of interdicting the terrorist and disrupting an operation that we already have tremendous powers to do. Under the Terrorism Act 2000, the Regulation of Investigatory Powers Act 2000 and a whole paraphernalia of criminal law, we can disrupt, lift and do whatever we want to terrorists we currently have in our sights.

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

The purpose of this part of the Bill is not to strike against particular plots, but to provide the mechanism under which particular detainees can be investigated about past involvement in plots.

Photo of Ben Wallace Ben Wallace Shadow Minister (Scotland)

Absolutely. My right hon. and learned Friend has made the point that the powers under the Bill are to be used to seek further evidence about individuals currently arrested and under investigation. They are not to disrupt the plots that we might or might not face in an emergency or, indeed, if important intelligence comes to light and we need to act in the short term. Those powers already exist and to mix the two is to mislead the public about why we want such powers.

Counter-terrorism works very much as it does with organised crime. Intelligence is received, it is acted on and perhaps surveillance is put in place. From that surveillance, an arrest or a search might be put in place and then we try to convert it into evidence. That is the process of counter-terrorism and all the way through intelligence and surveillance we already have the powers to make sure that we counter, on the precautionary level perhaps, the threat that we face today. We could do so with many people and plots to which we know are being alluded.

It seems that the Government are offering a principle of precaution and saying that we must act on precaution. That is where I disagree with a number of speakers and where there is a similarity with internment. Internment was based on a precautionary principle and on intelligence on which, of course, a number of incidents might be based. The Minister is probably right to point out that the intelligence at the time was more than dodgy. I fully accept that. Some of it probably did not even exist, but the information was justified as being based on intelligence and a precautionary principle. It was a disaster.

There are no more similarities in the Bill, but we must remember that intelligence is not evidence. The proof of the pudding is in the fact that we have arrested 1,165 people, but have charged and convicted 300. We already  use the powers in a sense. We already use precaution in breaking up, arresting and investigating individuals so I cannot see why there is so much demand to extend the precautionary principle. As my hon. Friend the Member for Monmouth said, why not extend it to organised crime? Why not extend it to paedophilia? There are justified arguments for doing so?

How much effect will such action have as a deterrent? We know a number of things from terrorist cases. Throughout Northern Ireland, we found that when a man was sentenced to longer than 10 years in prison, he seldom became active again. When a woman was sentenced for terrorist offences in Northern Ireland, she almost always re-engaged in terrorism. If we take that forward into Islamic fundamentalism, into radicals and people who would like to blow themselves up, will they really be put off by two years in prison, having been in a conspiracy on the edges of a plot? Therefore, let us run that precautionary principle further in, keep them in jail. The precautionary principle never ends—that is the problem. It goes on and on because we start to deal with the fact of questioning; questioning whether people’s motives are enough to jail them, whether the intelligence is enough, or whether there is evidence.

The other thing that is deeply disturbing is the way that the prevent strand is bandied around, as if it is a tick box in isolation. We can do anything on this side, because we have the prevent strand—it is okay, we can do anything. However, we cannot take that in isolation.

We know that there is an increase in the number of people who have been radicalised in the last seven years. We know that there are still active plots, and we could argue about how effective the current prevent plan is. When it comes to the radicalisation of individuals, time and again, we find that these are the people who do not engage in the mainstream Muslim community. They are people who no one ever picked up on and no one came into contact with. That is something that the prevent strand does not necessarily pick up. One of the measures of the prevent strand was to spend £700,000 sending British Muslims abroad to Egypt and other countries, to talk to them about how not to radicalise Muslims. Some of the radicalised Muslim communities have been exporting Brits to other countries, such as Yemen, to take part in extremist activity. It is hardly the way in which to achieve some of the outcomes.

Finally, how we affect sources is important. My hon. Friend the Member for Newark has mentioned that point, and it is something that has an effect on recruiting information from communities. Intelligence is about colouring the picture, filling in the jigsaw. It is not about the mole at the top of the organisation who will give the blueprint; it is about contact between the authorities and the communities. It is the light contact that helps fill in the picture. The best example of that during the 7/7 plot was when, outside the flat where the plotters were involved in concocting their deadly bombs, the grass died because of the peroxide that they used. If someone notices that information and colours in the picture by adding it to known source intelligence, or known patterns of people—some of the people from 7/7 were under surveillance, or on the edges of surveillance, at the time—that colours in the picture.

When draconian laws, or laws that communities do not like, are passed, it is not the moles at the top of the operation who will be put off. They are the ones that are bought with a cheque book, bribed with going to jail or motivated by other things such as jealousy, which exists in all organisations—as we know here probably more than most. It is the people on the edge in those communities who say, “I am not going to ring the police, they were not very nice. They took my friend’s son and put him in jail. I’m not going to tell them about those couple of guys I haven’t seen before. I’m not going to have that friendly neighbourhood chat with the neighbourhood constable as we often do.” It is the death of that information that can stop colouring in the picture. That, in my view, undermines the counter-terrorist effort.

I remember in Northern Ireland that if the wrong regiment went to the wrong part of Northern Ireland, one could guarantee that the information would stop for six months. That would not be information from the Mr. Big. It would be the friendly telephone call from the Irish republican community, the vast proportion of whom were law-abiding, recognised the role of the police, believed in democracy, were not radicals and were mistrustful of Sinn Fein. However, they just stopped.

The Muslim communities in my constituency will be no different from that. Tight communities are tight for a reason. They trust themselves and they understand their culture. If we come along and get this wrong, we will pay in the long term, not the short term. I therefore oppose schedule 1, not because of the human rights argument or any other arguments that are much more noble than mine, but because I think that it will hinder the operational effectiveness of our job in counter-terrorism in the medium term and the long term.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:30 pm, 6th May 2008

May I begin with an apology? First, I was not here this morning because there was a fatality on the line and the train was held up for about five hours. I apologise to the Committee for that. Secondly and differently, I have lost my voice, so that is bad news. Thirdly, I am conscious that I have not been attending the Committee as fully as I would have liked. That has one relevance because I was dealing with a case that involved a serious abuse of Executive power.

That case put me in mind of a proposition that I regard as the iron law of administration: if power is given to the officials of the state to exercise over the private citizen, it is quite certain that on occasion that power will be abused. That is an iron rule of politics. It leads to some important conclusions, one of which is that we should never give away power to the organs of the state unless it is absolutely essential. Secondly, when we do, it is extremely important to put in place full safeguards and restrictions. It behoves this House and this Committee as an instrument of the House to consider carefully whether we are transgressing that rule today. I believe that we are. I am perfectly willing to accept that we are here to assess the balance. This is a matter of judgment. The question is whether the need exists and if there be a need, whether it exists sufficiently clearly to outweigh the obvious disadvantages that have been identified by many members of the Committee.

The first question one has to ask oneself is whether the need exists for 42 days. We need to remind ourselves, as I have tried to do in interventions during this sitting, that this power is about investigation. It is perfectly true  that investigation can prevent future plots. However, the purpose is not to prevent future plots, but to enable the law enforcement agencies to conduct their investigations more fully. It is against that purpose that we must ask the question, “What is the need?” I think that it is very important that we keep in mind the body of opinion that has grown up. The fact that the former Attorney-General says that it is not necessary, that the current DPP says that it is not necessary, that the CPS, the Select Committee on Home Affairs and the Joint Committee on Human Rights say that it is not necessary—I do not mention any of the lobby groups because they may be thought to be parti pris—seems to me to create a very serious doubt as to need. That is a doubt that I share.

Let us assume that there is just a little bit of a need and see how that stands against the other considerations when looked at in the balance. One starts off by asking what the safeguards are. We have been told what the safeguards are by a number of hon. Members. There must be a report by a commissioner of police and the DPP. How much of a safeguard is that? Let us imagine an atrocity with a baying press and a commissioner and perhaps even a DPP who are uncertain about their positions. I can see such people—they are human like the rest of us—laying a report simply to guard their own backs. Then I ask myself what a Home Secretary would do in such a situation, receiving such a report with a tabloid press baying in the wings. Would she look carefully at the justification or would she say, “Let me guard my own back”? I have very little doubt as to where the truth lies. What if the Prime Minister were prodding the Home Secretary to take urgent action? I do not trust a Home Secretary of any party in those circumstances to stand against that pressure.

I then asked myself, what about this House? The Minister for Security, Counter-Terrorism, Crime and Policing spoke about parliamentary sovereignty. He will forgive me for saying that I have been in this place for 30 years and I know a lot about parliamentary sovereignty; I know all about that, and I know about the collective authority of the Front Bench. This House will never stand against the Government, or at least their party will not, when they demand an affirmative vote. The truth is that provided the party of Government retains the loyalty of its own Back Benchers, it can pass whatever it likes. That is not a proper safeguard for the peoples of this country. In any event, to take two other points, one of which was made by the hon. Member for Meirionnydd Nant Conwy, what will Parliament be told? It will not be able to form a detailed view of the merits of the case—that is prohibited by paragraph 41(5) of schedule 1—and it could not do so in a 45-minute debate, or whatever it might be. It is preposterous to suggest that the House of Commons will be a safeguard to protect the rights of the citizen in such circumstances.

What about the senior judge? The senior judge will do his best, but if the Minister will forgive me, he is wrong to say that these are always inter parte hearings. It may be that hitherto they have been inter parte hearings, but what is also true, and we must look to the future here, is that the legislation enables the senior judge to make it an ex parte application, with the defendant and the lawyers absent. That is why, if the Minister would care to look at paragraph 72 of the report by the Joint Committee on Human Rights, he  will see that it expresses grave anxiety about the judicial safeguards, which in its opinion are wholly inadequate. I say that the safeguards are of a pretty light kind.

What are the disadvantages? We must consider the balance of the disadvantages as well. Here I share the view of Opposition Members. The first point is that it is a profound injustice to lock somebody up for a long time when they are not guilty of an offence. I have been involved in a case for 14 days when I have seen the gross abuse of Executive power by former police officers. It will happen, it is the iron law of politics and I am not going to be party to it unless I absolutely have to be.

Secondly, I am sure that it will alienate communities. I go back to when I started at the Bar in the late 1960s, early 1970s. I became a Member in 1979 at the time of the old stop and search powers, the vagrancy powers and John Wheeler’s Home Affairs Committee. One of the great issues of the time was whether the police should be given and be allowed to keep the power to stop people and search them. The reason they were in the end deprived of that power was the anger and hostility, largely among the West Indian community. We can transpose that very easily now to the Islamic and Muslim communities, who will feel that these powers are directed against them. In one sense they are not directed against them, they are directed against the terrorists, but we can be sure that the great majority of people who will be affected by these powers are in fact those from the Muslim community.

Let us think how we respond, for example, to the United States’ extraordinary rendition, or the Guantanamo Bay procedures. They are a disgrace, they have brought the United States into shame and worse than that, they have alienated the world community and United States policy is disgraced and unpopular as a result. I am not saying that this issue is as grave as that, but we have fallen into the risk of going down that road and bringing ourselves into a shameful position.

If we look back at convictions that have happened when they should not have happened, usually it has been because of admissions made under prolonged questioning. The longer the detention, the more the questions, the greater the danger of confessions that are not true or allegations against others that are not true. I know that libertarians are sometimes criticised. I come from the extreme libertarian wing of the Conservative party, not to say the political community. I am the nearest thing to a Conservative anarchist that could be found, other than the late Mr. Eric Forth, but I am conscious that in this matter, I speak for an awful lot of people in the legal and civil liberties communities. We are against the proposals, and if we in this Committee pass them, we will do shame to our reputation.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 6:45 pm, 6th May 2008

An interesting peroration on which to end our deliberations. I confess to not knowing the right hon. and learned Gentleman’s history intimately. I suspect that he was rather less anarchistic when he took the Queen’s shilling as a Minister, but there we have it. Good things come to us all if we wait long enough.

I am mindful of the time and want to do justice to all contributions, but for the sake of the Committee, I think that we should finish this matter today. As an  aside for those interested—I am sure that many will be—I shall table a motion on Thursday morning to delay the commencement of our activities in the afternoon, in order to allow Members to go to the funeral of the late and much lamented Gwyneth Dunwoody. Through the usual channels, we will sit at 2 o’clock in the afternoon rather than 1 o’clock, but a formal motion is needed from me first thing Thursday. I just wanted to make Members aware of that, in case they are making plans for Thursday.

Let us go right back to first principles. The hon. and learned Member for Beaconsfield said it at the start of his deliberations when he opened for the Opposition. I do not say this in any pussyfooting fashion: there will be blood, and there will be further deaths. Collectively—I speak of everyone in the House—we will do all that we can to prevent the next one, but I am afraid that there will be a next one. One side may say, “If we do not do this, we will forestall the next one”; the other may say, “If we do this, by God, that is what will forestall the next one.” Both are terribly erroneous positions.

I shall develop this slightly in my later comments: we have never said that legislation is the answer. It will take a whole range of different dimensions and activities, from the most local communities up to national Government, to deal with these matters, and quite right too; but people will die, whatever we decide. That is a matter of profound regret, but we must do all that we can.

Let me say too, by way of introduction, that I wholeheartedly agree with much of what the hon. and learned Gentleman started from. I agree with what he said about habeas corpus and what we seek to defend. By golly, we had better get the balance right between liberty and the powers necessary to defeat our enemies. In the next breath, I must say that I respect people’s service and experience in other capacities, not least in Northern Ireland, but many of the comparisons are utterly erroneous and, at best, ahistorical. They are deeply interesting, and I admire people hugely for the services that they have rendered, but the comparisons are utterly erroneous, for the reasons that I suggested when I gave evidence.

It is a matter of fact that, rightly or wrongly, Sinn Fein and the IRA had more support in the communities that they purported to serve than any of the characters we face now. Collectively, as Parliament, not just as Government, we do our job a disservice to imply that even the lowest levels of support for the IRA and Sinn Fein, particularly among the republican and nationalist communities, are remotely replicated in the Muslim communities in this country. We do a deep disservice and afford offence to those communities even to suggest it.

That is not to say that I do not agree with the hon. and gallant Member for Newark about the huge importance that we should all afford—to put it crudely—to hearts and minds, propaganda and such dimensions. That is important. One of the first questions that the Government sought to answer when we started down this road—not in the last couple of months, as the hon. Gentleman was gracious and generous enough to say, but some time ago, perhaps as far away as October and November 2006—and throughout the process, was whether there are any gaps in the legislative process. That is a perfectly  reasonable question. Equally, given the nature of the measures, we sought to answer the question of how people will respond to what we are doing.

I agree that our enemies will suborn anything that we do, as they have done and will continue to do. We had that argument over 14 to 28, stop and search and a whole range of things—almost everything—that the Government seek to introduce to counter the threat. I agree that it is important to take that into consideration, and I know that the hon. Gentleman was not specifically pursuing that line, but we do not not act because of their reaction—I apologise for that double negative. We do what is right despite how it may be suborned. We must weigh that in the balance—the propaganda victory afforded to our enemies is part of the balance of civil liberties to which the hon. Gentleman referred—but act we must if we think that it is the right thing to do. It is not appropriate to have the reaction of those who would propagandise against us as the sole criterion of what we do. The hon. Gentleman did not make the point as crudely as that, but it is absolutely right.

I could turn much of the substance of the points on schedule 1 back on those who made them and talk about the move from 14 to 28. Many of those arguments would prevail in exactly the same fashion. We should explain the assault on essential liberty. The essential liberty that is being exploited or assaulted has not been around for ever—it does not go back to habeas corpus or Magna Carta, but to July 2006. That is when 28 days was commenced.

Actually, both in Committee and on Second Reading, it was interesting that many Opposition Members did not rely only on the civil liberties argument. Many made points—perfectly fairly—on the balance and said that it is a security as much as a civil liberties matter. That is fair, but all the arguments—all of them—go to the 14 to 28 days, or the shift from seven to 14 days. The assertions made about the potential impact of 28-plus on communities—with the greatest respect to everybody, they were simply assertions—could equally be made about the shift from 14 to 28. One would think that there would be substantial evidence for them, but there is not, as I said in the evidence sessions.

I am with the hon. Gentleman on the vagrancy and sus laws and so on, because there is an issue—it is not germane to schedule 1—on how section 44 of the Terrorism Act 2000 is used to stop and search individuals. We are working with the Metropolitan Police Authority and others and we have instigated a full review of the process. There is a question whether some of our police forces are using that piece of legislation in a sloppy and over-egged fashion to the detriment of relations with all our communities. That is a fair point, but it is not the same thing. It is not good enough to say, “One thousand-odd were arrested but only 300 were convicted, so there are difficulties”. There are enough lawyers in the room to know and understand that one needs reasonable suspicion to lift someone in the first place. Unless one gets into homicide and terrorism—witness what the DPP said last week about the 92 per cent. success rate—one is not going to hit the success rates that the comic books would suggest.

I do not want all that success to be played back, and for people to ask me, “Why bother?” As Joe Klein said of Bill Clinton, rather than of hon. Members, that way lies the smug, shallow serenity of our time. That, I am  afraid, and I have told its Chairman, is where the Joint Committee on Human Rights is, as opposed to the Home Affairs Committee, about which the hon. Gentleman again inadvertently misled the Committee. The Home Affairs Committee did not say that there was no value in going beyond 28 days. It even suggested the nature of the model were we to go beyond 28 days.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

With the greatest respect, and I know that the right hon. and learned Gentleman has been a Member for 30 years, he makes an indication, I say yes and he stands up, rather than otherwise.

The Home Affairs Committee did not conclude that there was no possible basis or rationale for going beyond 28 days, otherwise why would it have afforded the Government its advice about the components of the model should we seek to go beyond 28 days, having quite rightly dismissed the Civil Contingencies Act as the appropriate legislation to take things forward?

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

Would the right hon. Gentleman care to remind himself of paragraph 7 and the conclusion of paragraph 4? It states:

“Neither the police nor the Government have made a convincing case for the need to extend the 28-day limit on pre-charge detention. We consider that there should be clearer evidence of need before civil liberties are further eroded”.

I could go on reading.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

If the right hon. and learned Gentleman did go on reading, he would fall over—accidentally or otherwise—the precise recommendations to which I have referred. They talk of the nature and component parts of a model to go beyond 28 days. It is in the report; he just needs to read a little further.

Photo of David Davies David Davies Conservative, Monmouth

My understanding of the report was that although the Home Affairs Committee was uncomfortable—at least many of its members were—about going beyond 28 days, all members felt that if the Government were determined to go beyond 28 days, as they appeared to be, we ought to ensure that some safeguards were in place: 42 days with safeguards being better than 42 days without any safeguards.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The hon. Gentleman needs to read his own report in more detail. It asked—quite rightly, and this has been the Government’s position—whether there has been a case where the need to go beyond 28 days has been made. The Government’s answer is no. It then asked whether there were circumstances in which there might be a need to go beyond 28 days. The Government’s answer is yes. The Home Affairs Committee says that if that is the case, what is wrong with the Civil Contingencies Act? It then outlined clearly why the Act was not appropriate. Quite fairly, the Committee then said that if we were to go beyond 28 days, here is how one would do it, given that in its and many others’ view, the CCA is not appropriate because it was not designed for those circumstances in the first place. The Committee says that one should replicate much of the fabric and architecture of the Act but understands that it is not appropriate.

Equally, we learned from Liberty last week that Pannick, the QC, who is probably aptly named, is paraded as an unequivocal legal source about the appropriateness of the CCA. However, when explored further, we hear that  Pannick actually says—typical lawyer’s weasel words—that on balance, the better view and no more, which is hardly unequivocal, is that the CCA could and should work in the context of implications for the criminal justice system. It is a road that affords profoundly more draconian powers to the Executive than the model before us. The CCA is inappropriate. The only substantial balance of the argument lies between what the Joint Committee on Human Rights says and the view that I have just outlined from the Home Affairs Committee.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I was listening to the Minister with respect until he began to adduce that line of argument, which he has done repeatedly, through his evidence and now. He should get away from it. He says that the Home Affairs Committee said, “This is how you should do it if you go beyond 28 days”; that Liberty said, “You can use the Civil Contingencies Act”; and that my right hon. Friend the Member for Haltemprice and Howden (David Davis) said, “Look, you’ve got the powers on the statute book.” The fact is that the Minister has taken an extension of a position that, in all cases, resists any extension of 28 days and, merely faced with a Government who are determined on the issue, tries to find ways to answer the Government’s case. He should make the Government’s case in principle and not try to turn the arguments of those absolutely opposed to his proposal.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 7:00 pm, 6th May 2008

I do not deny that Liberty is against an extension. Last week, Justice made it very clear, perhaps with a good deal more honesty than Liberty, that at a push it is probably against anything beyond 48 hours—certainly, seven days is all that it is comfortable with. However, when such serious bodies say to me, “You do not need to do this at all, because we have the Civil Contingencies Act—here is how that could operate and here is a QC with the unequivocal legal opinion that that would be more appropriate,” but it turns out that it is not, it is worth repeating. I am not arguing that Liberty says, “It’s okay, we have the CCA,” but it must argue far more robustly that the CCA is appropriate. Quite clearly, it is not appropriate.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I intervene with some reluctance, but I must say that the principal issue that David Pannick was asked to consider was whether the CCA gives powers to extend detention without charge in a state of emergency. Having read his advice, I am quite satisfied that it does. His opinion was quite clear that it would enable that to happen. The Minister made another perfectly valid point, which was that, notwithstanding that argument, the CCA was not designed or intended for that purpose. As he will be aware, that is why it was suggested to him that one way forward is to provide the necessary amendments to the CCA to enable that to happen in a more structured fashion in a state of emergency. That was the argument. To suggest that the CCA has no validity, which is what he seems to be saying, is to fly in the face of what David Pannick said in his advice.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

David Pannick’s argument was about the better view. It was not even as unequivocal as the hon. and learned Gentleman suggests. It must be the case that it would make for profoundly bad law to tack on to something as important as our response to terrorism something designed, passed and implemented by this House for an entirely different purpose. That was the import of the Home Affairs Committee’s position.

So we are left, in fairness, with the Joint Committee on Human Rights saying, “On balance, we could fashion an appropriate response—although not without difficulty. Given the broad agreement on issues such as intercept as evidence and post-charge questioning,” which is the next area that we will come on to; “given what we have done already on acts preparatory and all the other precursor offences that we have spoken about; given the utilisation of the threshold test, at about the end of 2004, and probably”, although it does not say this, “given what we are seeking to do in the wider prevention context agenda, we do not even have to look at this now.” That is a perfectly reasonable view, but on balance I would say that it is an utterly irresponsible one, given where we are and what we know about the experience thus far.

Although in shorthand the line always revolves around complexities such as the sophisticated use of IT, international dimensions and so on, and given the changing nature of the beast that we face, it could be the most extraordinarily simplistic of plots—multifarious in nature and geographical location—that causes the difficulty, and not another overt or alleged airline plot. I simply do not know, but what I do know is that the Committee does not know either. I also know that those who do know, who are at that end of the operation—the operational end of operations—are the ones telling me in stark terms that they might need this provision in the future.

The DPP is not telling me that, and I would not expect him to, because he does not know anything about the operational end—surveillance, intelligence gathering and all the other aspects. I would not expect him to know about that, given his profession. I utterly respect what he said last week—it must have been difficult for him. I accept the import, but not the way that it was said by the hon. Member for Gravesham. He stated that the easiest thing for the DPP to do for a quite life is to roll over and say, “Yeah, go on, we’ll have it.” But he does not and I respect him for that, much as I respect those who argue on the other side in favour of these elements. His profound view of the provisions on the statute book and his experience of them, including from the alleged airline plot, is that 28 days is sufficient. I agree with that, too. I have not said in any terms, in any aspect that that is anything other than the case.

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

The Minister is now arguing the substance of the case and outlining a perfectly proper disagreement that we can have in the Committee. However, I will bring him up on one point. He is absolutely right that the DPP does not have responsibility for the further investigation, nor does he have any knowledge of the complexities that might emerge. He does have a knowledge of the capacity to charge. That is what this issue is all about: the capacity to charge within 28 days, not to get all of the evidence for all possible offences, but to achieve the capacity to charge within 28 days to ensure that someone is held on remand. Is that not an issue that the DPP is perfectly qualified to speak on?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Absolutely, I concur with that. That is what I said last week and I say it again, but within parameters. The DPP has been very clear in his views about the threshold test, which has been used with a degree of success. I say a degree because since its implementation many of the trials are only now coming to fruition and I wish everybody well in that regard.

The DPP has made it clear on a number of occasions that he does not want to go down the American route. He does not want to invent or over-inflate holding charges just for them to dissipate. Some would crudely say that the American model over-inflates the holding charge only to plea bargain and get what probably could have been achieved in the first place had the job been done properly and someone been charged appropriately. He was very clear that he did not want to go down that route. I am not traducing that or saying anything about it other than that it is different.

The notion suggested by others that every common law jurisdiction is the same is as wrong as the notion that somehow, as the hon. and learned Member for Beaconsfield put it in our proceedings this morning, the inquisitorial system is comparable with our adversarial system—it most profoundly is not.

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

Will the Minister remind the Committee that in almost any criminal case of any moment, the evidence gathering procedures continue long after the charging, very often right up to the day of the trial when there is notice of additional evidence? The idea that evidence gathering stops when the person is charged is a complete illusion.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Absolutely, it is an illusion, but given the nature of terrorism cases, often there is not sufficient evidence to make the charge in the first place. That is the point of our entire deliberative purpose today. The point that the right hon. and learned Gentleman makes is absolutely fair post-charge.

Peter Clarke said clearly in his book that when Dhiren Barot was arrested, there was a stack of surveillance, intelligence and other material, but nothing in evidential terms. That was when the law was 14 days. All 14 days were needed to get to a stage where some, but certainly not all, of that intelligence was translated into evidence sufficient to charge. As everybody knows, he subsequently pleaded guilty to conspiracy to murder and is now, quite happily for us, doing 40 years. That was a huge case, the outcome of which was unknown in 2005 when we deliberated about 90 days and arrived at 28 days. I do not say that for any reason other than to repeat the chronology.

Nothing was known when we were deliberating over 90 days and quite fairly, or otherwise, the House alighted on 28 days instinctively and intuitively because it agreed with the police and other authorities that they had made a case, not evidentially based, but that things were changing sufficiently that we had to go to 28 days. The House legislated on a precautionary basis, not a pre-emptive basis. I am not commending 42 days, even on this narrowly defined basis, on some sort of pre-emptive detention basis. As was rightly said at the start of the debate, the purpose of arrest is charge. That is what governs the entire prosecutorial system: to charge at the appropriate level and at the earliest and most convenient stage in the process. That is absolutely right.

However, if siren voices had said—I have read the documents backwards, but have not committed them entirely to memory—“Where’s the evidence for going beyond 14 days? Where’s the evidence of cases that have failed because 14 days weren’t sufficient and people were released?”, the answer from the police would have been the same then as it is now. Broadly, they could not put their hand on their heart and name one case in which 14 days were insufficient for their purposes, given other things that were going on, such as the Dhiren Barot case. However, they could say as individuals that given their experience, expertise and professional judgment thus far, they wanted an appropriate extension. The House afforded them one on a global basis. The only control that time around was a yearly review, unlike the model before us now.

It is not appropriate to say—I cannot remember who said it—that many of the anxieties expressed by the police at the time have not materialised, giving the clear impression that somehow we got it wrong in going from 14 to 28 days.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I happen to think that we got it right. I say to the hon. Gentleman, who intervened from a sedentary position, that the House was probably right, on balance, to assume 90 and go for 28. That will probably get me into trouble; I do not know. When the Government, not just individuals, said in August 2005 that the rules of the game had changed, I said clearly on the record—to return to the point about balance—that, as much as we could afford to within the bounds of concerns about public safety, we had to ensure that the rules of the game did not change, and that many of the measures must be taken in the context of normality and the rule of law. They are, and they will continue to be if the schedule is passed tonight.

I also agree with those who say, rightly, “What we need is not more extensions to detention without trial, but more trials.” Happily, that is what we are getting. That is the point I made to an hon. Gentleman, although I cannot remember who. Peter Clarke told me just before he retired that, happily, at some point in the next 18 months, a significant terrorist case would come before the courts. I celebrate that. I do not rest on those laurels, but I celebrate it. Since 2005, when we went from 14 to 28, and aside from that extension—I am not praying this in aid of the extension—we have had Operations Crevice and Rhyme, and 21/7 and other significant cases have been resolved in the courts. Many of them, by the by, were resolved in the courts without any mention being made, after a furore at the start of each arrest process about how terrible it was and what an infringement it was on the rights of communities. Of course, everybody was entirely innocent. Such furore plays in a vacuum, because the prosecution cannot put its case in the public domain as the lawyers and solicitors for the defence can.

I do not claim that we have got it absolutely right throughout the Bill. I claim that any Government has the right—nay, the responsibility—to introduce such proposals if, on balance and through the filter of all the serious points that have been made, they judge that that is the right thing to do. We are not traducing Magna Carta. We are not traducing the glorious tradition of  civil liberties in this country. With the greatest will in the world, unless they are put rather better than they have been today, those points have no substance. I am not telling the Committee how it should do its job, but its view should have been—I know that everyone in the Opposition thinks that it is a wonderful tactic to do otherwise—to explore by amendment, as the hon. Member for Newark was going to and the Liberal Democrats, in their rather stark, simplistic way, were going to, the substantial points in the case.

I ask in all seriousness: where are the amendments that address the points made about the parliamentary scrutiny process being fatuous and not working? Where is the alternative? I have asked twice now and got no substance. If hon. Gentlemen are seriously suggesting that it is a sop—I think that that was someone’s phrase—in terms of parliamentary scrutiny and that it should not be there at all, let them bring back an amendment on Report and we will consider it. If they are saying that Parliament should consider how the judiciary interpret it in some other fashion—that is a serious matter—let them bring it back, and we will have a look. If they are saying that the most appropriate vote should mirror the CCA far more closely, as my hon. Friend the Member for Reading, West has suggested, and take place within seven or 10 days rather than 30, let them bring amendments. It is rather juvenile, I suggest—

Sitting suspended for a Division in the House.

On resuming—

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Before I was interrupted, I was saying what the Committee should have been doing, and I was discussing some perfectly valid and fair points on the nature of parliamentary scrutiny. Where are the amendments? If we as a Committee are serious about doing what the House appoints us to do, the fair point has been made that, at one end, any parliamentary scrutiny during the process and life of this particular reserved power, would be utterly inappropriate. That is a reasonable view, but where are the amendments along those lines? Equally fair is the point made by my hon. Friend the Member for Reading, West that it should mirror the CCA in its entirety, and that there should be a vote within seven days. That is a perfectly reasonable view, but where is the amendment?

Linked to that, we have had no substantive discussion of the trigger. One would have thought that this was an appropriate place to look at the nature of the emergency and the trigger in some detail. Again, the amendments have not been forthcoming. It has been suggested to me privately by some, that if there is no parliamentary oversight and scrutiny, the trigger should more properly include a judicial element at that stage. It is perfectly fair, unless you tell me otherwise, Mr. Bercow, that I can talk to hon. Members who do not exist, that we can just have a clause stand part debate, leaving the Committee not having done its job or been forthcoming with those amendments. It is perfectly reasonable to suggest that there may be some judicial oversight at that trigger level. Again, the amendments have not been forthcoming.

I think that where Executive action is exercised, as per the schedule, it is for the Executive to take full responsibility for it. I very much want the Home Secretary to dare to go to the House with a baying press mob and, even if she feels otherwise, argue the case simply because of what the media are suggesting. What is being prescribed is not a flight of fancy. Everyone here knows who was the first person arrested under the Prevention of Terrorism Act—I will happily give way to anybody who does. It was a little fellow called Paul Hill. He served 15 years and was subsequently released with his character unblemished as one of the Guildford Four. But, the baying mob were there and, I hasten to add, under a Labour Government. Roy Jenkins—God bless him—was in many ways one of our finest Home Secretaries, but Paul Hill was one of the first people arrested under that particular law, and everybody knows about the subsequent miscarriage of justice.

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

Will the right hon. Gentleman remind me whether or not he was convicted on a confession?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

All four were charged on what was a cascade of confessions. The first and principle confession was from Carole Richardson who, it was later determined, was stoned, drunk and perilously unfit for any sort of interview. Then there were interlocking points put to each subsequent person. I take that point entirely.

However, whether there is a judicial element at that trigger level does not pre-empt the fact that it is perfectly plausible for Parliament to do Parliament’s job and oversee the nature of the circumstances and the emergency that the DPP, the chief constable and the Home Secretary have brought forth by way of report. I go back to what the chief prosecutor, Sue Hemming, said at the end of the process about avert. It is perfectly proper and not beyond the wit of Parliament, however constituted, that it can debate the general security threat, the progress of investigation, the police numbers involved, the number of suspects detained, the outline of the plot—what, why and when—the number of countries involved, if there are any, the number of exigencies, whether the Home Secretary’s decision was properly founded, if she had indeed received the police and DPP report in the first place, other information received and other broad discussions. The debate is not about any individual—that would be entirely wrong—even if it was an individual that caused the report to be forthcoming. The debate is about Parliament’s job and Parliament’s role should the reserve power be commenced.

When the Bill secures Royal Assent, we do not enter a world of 42 days. We enter a world that has a reserve power, if the circumstances prevail, to commence the 42-day provisions, and no more than that. That is clear from the schedule. That is why I was happy about the right hon. and learned Member for Sleaford and North Hykeham’s allusion to paragraph 41(5), which says that the debate cannot be about an individual case. That is perfectly right. That would be even more offensive than some of the lines that the hon. Gentleman comes out with. It would be a blurring of the distinction in our separation of powers, between the Executive and an independent judiciary, which have served us so well.

Throughout my responsibility for the Bill and the matters therein, I have deliberately never traduced or impugned anyone’s motive for their position on these  matters. I do not understand some of the positions. I think that some of them are profoundly wrong, but I have not ascribed any underhand, political or other motivations to they way in which people have come naturally to their views. This is far too important. I am the principal Minister involved and the only Minister left to have been involved throughout the Bill’s 18 month gestation. I have never mentioned to anyone the idea of putting the Conservatives, the Liberals, the Ulster Unionists or anyone else into a hole because of the politics involved This is far too important for that and I find that charge the most offensive.

To what end? Opposition Members might ask what sort of political capital the Government currently have that they can expend anything on doing this, if others are so right and it will not get through Parliament? This is happening because, and only because, in our judgment, based on discussions with professionals, it is the right thing to do. In our judgment, based on the balance that the hon. Member for Somerton and Frome was right to allude to—that between civil liberties and the protection of our people and public safety—this is the right thing to do. I am very sorry that the Committee has not seen fit to engage on that basis and in the terms that I outlined of how we can still reach a consensus on the reserve power. That power would be based not on 28 days or 42 days permanently, but under which 14 days is currently the law for terrorism and 28 days is the exception. Short of futurologists and clairvoyants in the room, there will be circumstances—almost as certainly as there was post-November 2005 when we went from 14 to 28 days—when we may need at least to look at such a provision to go further. It is not gung ho, not draconian, but a measured, responsible proportionate response to a threat that is sadly still before us and will be before us for some time to come. I commend the schedule to the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall be brief. The Minister chose in the schedule stand part debate not to introduce his own schedule. That is, of course, his right and the debate started from there. There is clearly a major difference of view between the Minister and some members of the Committee. He asked, “Where are the amendments?” I  am happy to take up the Committee’s time. I often do. I think that I have tabled more amendments to Bills during their passage through the House than many other hon. Members.

However, to table amendments to a measure when, in fact, the first building block has not been placed to get the argument off the ground, because the Government’s advisers and, in particular, the Crown Prosecution Service do not consider that the draconian power that the Government envisage is necessary, is to tinker around with the detail and not look at the generality. We have had a good debate on the generality, but the Minister has not persuaded me during that debate to move from the position that I held previously and will continue to hold until someone persuades me of a pragmatic case for the extension. I do not see it, and for those reasons I shall seek to delete the schedule from the Bill.

Question put, That the schedule, as amended, be the First schedule to the Bill:—

The Committee divided: Ayes 13, Noes 10.

Division number 4 Nimrod Review — Statement — Schedule 1

Aye: 13 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Schedule 1, as amended, agreed to.

Further consideration adjourned.—[Mr. Campbell.]

Adjourned accordingly at seventeen minutes to Eight o’clock till Thursday 8 May at Nine o’clock.