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John Bercow (Buckingham) (Con): On pre-trial detention without charge, my objection has never been to the motives of Ministers, but rather to the draconian measure that I believe they have proposed. I understand why the hon. Gentleman is quizzical about the term “evidence”, but he said himself that he would need to
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persuade the House. I put it to him that he would at least need to show some very clear disbenefit to the country, constituting some sort of threat to our security, in the absence of the extension he favours, if he were to persuade us. One way in which he might proceed would be to agree to provide Privy Council briefings to Privy Councillors—I would not benefit because I am not a Privy Councillor, but many are and would—as an earnest of good intent and of collective approaches by the Government.

Mr. McNulty: I am not one either, so that is at least something I share with the hon. Gentleman. He makes a fair point. As I have said, what we want to do, in terms of putting the documents out before the summer, is have the widest possible audience, rather than doing that on Privy Councillor terms. We can get a view that is part evidence-based, part speculation, and partly based on making some assumptions, to the extent that we can, about the nature of the threat that is to come. We cannot be trapped in a dimension that says we are fighting the threat that we knew a year ago, or two or three years ago. The situation is finely balanced. That is why, in part, I hesitate about “evidence” meaning things clearly one way or the other. Invariably, in the course of our discussions, there will at least in part be some speculation when it comes to where, taking into account the services, the police and all other opinions, we think that the likely threat will be. That is my only cavil about evidence; I am not saying, “Sorry, mate, I don’t have the evidence, but let’s do it anyway.”

Mr. William Cash (Stone) (Con): As the Minister knows, for many years I have been strongly in favour of an extension beyond 28 days in the interests of preserving the security of the people. The Government, and certainly the former Home Secretary, understand that the real issue is the interaction with the Human Rights Act 1998, around which the control order legislation works. Does the Minister accept that that is one of the fundamental problems? It has led to a situation in which the Minister and the Government cannot achieve what they want, and in which the subject is deprived of their liberty. Does he not agree that the simplest answer is to ensure that the alleged terrorists receive habeas corpus, have a fair trial and are subject to due process, and to get rid of this absurd legislation, which was passed in the middle of the night, when sunset turned into dark?

Mr. McNulty: I am blessed to have such an ally. The hon. Gentleman’s points are well made and consistently made, but they are wrong. At the core of his suggestion is the idea that the police are dilatory in their activities and keep people for 14 or 28 days, or whatever the cut-off point is, simply because it is convenient for them. The police—along with the security services, the Government and all right-thinking people—want to bring those who are detained to court in the swiftest fashion and at the earliest opportunity, and with the strongest possible case. We have had discussions about the interplay with the European convention on human rights, and I simply do not accept the hon. Gentleman’s premise. He swoops on me in corridors when I am trying to go for a quiet
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cup of tea; he creeps up on me all the time, and we have very interesting discussions. There is an issue with parts of the judiciary and how they interpret the convention, but I do not think that the convention is at fault.

Mr. David Heath (Somerton and Frome) (LD): Perhaps we can dispose of one of the arguments that I have heard adduced by people outside the House in support of an extension to the 28 days. It is argued that if a suicide bomber survives an attempted bombing but is injured, and so is not available for questioning, the extension would be necessary. Is it not the case that if we introduced post-charge questioning, those circumstances could not possibly apply, because someone who was injured while planting a bomb clearly has a prima facie charge against them?

Mr. Nick Clegg (Sheffield, Hallam) (LD): They would have to be arrested first.

Mr. McNulty: My answer to the hon. Member for Somerton and Frome (Mr. Heath) would have to be “Maybe.” I do not know the specifics, and we could talk about the example that he gave in some detail, but as the hon. Member for Sheffield, Hallam (Mr. Clegg)—another non-Privy Councillor—suggests, the person would have to be arrested first. That is a moot point. Of course, if someone was so badly injured that rational discourse and discussion, and taking part in a police investigation, was beyond them, the issue of the timing of the arrest and the starting of the clock would come into play, as is fair.

The hon. Member for Somerton and Frome makes a fair point about the interaction between post-charge questioning and the issue of where we go on the question of the 28 days, and I am serious in saying that we want debate on it. I hope that I do not need to rehearse many of the substantial points on why we think that 28 days is necessary as a minimum. Everyone knows the arguments about encrypted messages, the greater internationalisation of threats, and the increasingly complex nature of the terrorist networks. We have to investigate what internationalisation means in terms of cryptography, languages and computers. These things are becoming ever more complex. We think that a period of at least 28 days is sufficient.

I remind the House that we are talking about the annual renewal of the order. The timing has not worked; it would have been preferable by far if we were in a position to move on to the Bill now, but reviews were carried out on the Home Office’s functions and on the legislation. No matter what our speed, I do not think that we could have had that dispatched in time; we would still have needed a review.

I repeat that we want a substantive debate. There is no ruse to introduce a Bill on the first possible day after the summer to which everyone had better agree or else. When I was on Harrow council, I used to go on about consensus all the time. A Conservative councillor said, “It’s all very well your talking about consensus, but by consensus you mean everyone agreeing with you.” That is, of course, not the case, because I am, at root, a consensual politician. It behoves us all to get to a place where we agree on the necessary legislative framework to counter the threat, and the process that we are about to undertake is part of that.

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Everything that hon. Members have said about how intercept evidence, post-charge questioning and other elements of the Bill fit with pre-charge detention is entirely fair. The point made by my hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) about starting from the premise of our rule of law and departing from that only in extremis given the nature of the threat is fair. I know that hon. Members on both sides of the House understand the seriousness of the terrorist threat and the importance of implementing the right measures to counter it, which includes the international dimension. Government Members and Opposition Members, including all Front Benchers, are clear that we must strike the right balance between protecting the rights of the detainee and ensuring that an investigation proceeds properly and effectively and that the police can deal with the complexities of investigations into modern terrorism.

This debate almost involves sparring before we get to the wider debate about how the order fits with all the other elements of a subsequent terrorism Bill. I am happy to meet Front Benchers and individuals who want to discuss 28-day detention or any other aspect of the Bill during the consultation. We are trying to arrange sessions with the Home Affairs Committee and the Joint Committee on Human Rights, and I repeat that we are serious about that consultation.

I hope that all hon. Members understand why this order is necessary. If it is not passed, we will return to a 14-day limit on 25 July. We can have a substantive debate about what the order does and what a 28-day limit means in the context of the other elements of the proposed terrorism Bill in a proper, reflective and discursive way, as befits this House.

5.12 pm

Mr. Dominic Grieve (Beaconsfield) (Con): I welcome the way in which the Minister has presented his arguments to the House this afternoon. I tell him now that we will not vote against the renewal motion.

It is important to bear in mind what we are debating. When the Prime Minister made a statement on the matter, there was a telling moment when the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) stood up and described 90-day detention almost in terms of a mantra to which people should sign up in order to show that they are tough on terrorism. We must get away from that sort of attitude. This House must clearly be robust in doing our best to protect the security of people in our country, but we must balance that with winning an argument about values, where our adherence to civil liberties is one of our principal weapons in defeating those who want to harm us. If we start signing up to easy solutions and, worse still, start dividing this House on the basis that if one does not sign up to a particular concept—for example, 90-day pre-charge detention—one is on the other side of the argument or, worse still, on the other side in terms of fighting terrorism, we will get off to a very bad start. I hope that we can avoid that, and the Minister’s words this afternoon reassured me that we are moving in the right direction.

It is important to remember what this afternoon’s debate is about. We keep on talking about extending 28-day pre-charge detention to, possibly, up to 90 days, but this debate highlights the fact that the current
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norm—indeed, it is a norm only for terrorist offences—is 14 days, and that the extension to 28 days, on which this House reached a consensus, is already an exceptional power that we need to scrutinise frequently because it is such a dramatic departure from normal practice. We have moved radically away from accepted practices that view 24 or 48 hours at a time as being long periods to detain somebody before charge. We should always bear that in mind, because otherwise we will fail to understand why our forebears thought that short periods of detention pre-charge were all that was acceptable, given that at such time a person is merely under suspicion and charge should usually follow rapidly after the police have had the opportunity to confirm or disprove in their own minds the suspicion that they may have.

Mr. Cash: Does my hon. Friend accept that at least two former Attorney-Generals and the reviewer, Lord Carlile, had suggested that the 28-day period could be extended? Furthermore, does he accept that, however, much we try, it is impossible to achieve anything without recognising that this provision, which pivots on the human rights legislation, will not be able to achieve its objective unless we deal with the fundamental problem that lies in that human rights legislation?

Mr. Grieve: I am afraid that I find myself constrained to disagree with my hon. Friend on both counts. On the first count, various arguments have been advanced as to the need to go beyond 28 days detention, but the previous Attorney-General made it absolutely clear in a number of statements—most recently only a few months ago—that he had seen no evidence to justify doing so. He argued that very strongly at a time, I might add, when the then Home Secretary was making noises to the contrary, as was highlighted in this House. As the then Home Secretary never provided any evidence to back up his assertions, I rather preferred the Attorney-General’s view.

As to my hon. Friend’s second point, although there are serious issues surrounding the European convention on human rights and the Human Rights Act 1998—he has highlighted them on many occasions and they are legitimate topics for debate—I am not sure where they would bite in the context of this debate. I acknowledge that if the Government were to move to 90-day detention, that might be challenged under the Human Rights Act, but the Government are currently at 28 days, and there has never been any attempt to challenge that on the basis of its being in breach of the HRA. Indeed, as my hon. Friend will know, under exceptional circumstances of national emergency it is at least technically possible, well within the scope of the HRA and the ECHR, to declare a state of emergency and, if necessary, to bring in detention without trial. I am not recommending that to the Minister, but it has happened in the past. In the case of Northern Ireland, it was a huge mistake. Nevertheless, it is possible to do it without in any way falling foul of the HRA or the ECHR. Although important issues may be debated in this area—my hon. Friend specialises in it and has spoken on it often—it is not really a live issue in the context of this debate.

John Bercow: My hon. Friend has rightly emphasised how unprecedented and extraordinary the 28-day provision is. In order that we might underline the rarity
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of the circumstances that could justify its use, could he tell the House whether I am right in thinking that the Government have accepted that the number of cases that they have identified to which the 28-day provision could apply could be counted on the fingers of one hand?

Mr. Grieve: My hon. Friend makes a good point and, indeed, I had a list of questions that I was going to ask the Minister in order to seek clarification, of which his was one. My understanding is that the number of occasions when it has been necessary to go to 28 days, in the context of the total number of people detained, is very few. The Minister will doubtless be able to help us on that in his winding-up speech, and I have a list of questions for him. Anecdotally, it has been suggested to me that, although the police found it useful to go to the 28-day limit, it was not strictly necessary to do so because their investigations and inquiries had been effectively completed within the preceding 24 or 48-hour period. The Minister’s information on that will certainly be valuable.

I would like to make one other point. We compare ourselves, rightly, with other common law jurisdictions. In the context of current events, we can read a great deal about what is happening in Australia, which appears to be taking some important steps to apprehend suspected terrorists. I understand that in Australia the outer limit of detention remains at 14 days—the Minister may be able to confirm that—which was achieved only after a rigorous debate in which many people suggested that 14 days was already a long time. The Minister will correct me if I am wrong, but in the United States, which is seen as a country that is pretty draconian in dealing with terrorism, 10 days is the maximum period for which a person may be detained.

We have to compare such figures because these are common law jurisdictions operating under many of the same handicaps for the state, or at least protection for the detained person, and it is worth bearing in mind that they have felt able to confine themselves to those periods, even though when we first debated this matter the police and the Minister made a persuasive case for going beyond 14 days, however reluctant I was to do so and however much I might wish to return to the 14-day figure if possible in the future.

I turn to the questions that I feel it useful to raise before the order is renewed. First, it would be useful to know how the provision is working in practice—how many times has it had to be used? Linked to that, I would be pleased if the Minister told the House how any detention beyond 14 days has operated in practice. Perhaps I can just flag up some of the areas that are of interest to me, which might be of interest to the House. As a result of what we did, we asked the Government to introduce a completely new set of Police and Criminal Evidence Act 1984 rules. It is pretty obvious that rules designed to cover the detention of a person for what is usually 24 or 48 hours are not suitable when someone is in custody for a 21-day period. Will the Minister help the House on the question of how frequently individuals have been transferred to prison from police cells during the period of detention, and on
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how the system has operated with regard to bringing them back to police stations for further interview?

I am concerned that code H, which is the new code brought in to cover terrorist cases, still allows—at least in theory—for a person to be questioned for hour after hour over a period that could extend to 28 days. I do not think that that has happened in practice, but I am sure that the Minister will agree that having a code that allows questioning to take place almost incessantly over a 24-hour period, apart from an eight hour break for rest, is not really suitable for someone being detained for a long time. Is there not a danger, which we flagged up previously, that any statement made in that period might be challenged at a subsequent trial because of the degree not of coercion, but of sheer drudgery and the stressful experience of frequent questioning? I would be grateful for the Minister’s comments on that if he has any information that he can give the House.

Mr. Hogg: When a person is held for a long time, he may decline to answer questions through, for example, fatigue. Should we not examine the statutory warning that judges give, to the effect that the jury can draw adverse conclusions? I wonder whether it is appropriate when the questioning has lasted many days.

Mr. Grieve: My right hon. and learned Friend makes an important point. Given that the PACE rules are clearly linked to the renewal that we are discussing, I hope that the Minister can respond to it, too. We want it to be clear that, if somebody is detained and interviewed, the interviews can be used. It serves no purpose to end up with a successful challenge to the use of interviews because it is argued that, notwithstanding the PACE rules, the process has become oppressive simply through the sheer repetitive nature of the questioning and the fact that someone is questioned over a long period when the rules were designed to deal with questioning over a short time. If the Minister can help us with that and on the extent of any analysis of the issue, I would be grateful to hear from him because that may provide some reassurance. If he does not have those answers this afternoon, perhaps he could write to me and place the information in the Library. That would helpful.

Another issue troubles me and I approach it with care in relation to recent events. The period between arrest and charge has historically been short—often very short—and that meant little opportunity for media speculation about the nature of the offences for which individuals had been arrested. However, as the period of detention between arrest and charge lengthens and is not subject to the full rules of contempt of court—although it could fall within those rules—there is a plethora of media speculation. I believe that the Attorney-General has expressed her concerns about the matter and that she may have contacted the press collectively to do that. However, we cannot simply ignore the matter.

Recent events suggest that press speculation is unconstrained and, because no charges are brought, there is no mechanism for stopping it. I fear that we will reach a position whereby it can be argued that a fair trial is impossible because of the amount of prejudice that has been occasioned to defendants in the
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period between arrest and charge. Given that 28 days is a long time—indeed, seven days or two weeks is a long time—I wonder whether we should think again about our approach to the matter. If we cannot impose some form of self-restraint, the time may come when we must consider other means. As the Minister knows, we discussed that in our proceedings on the Criminal Justice Act 2003. The subject was carefully approached and there was a widespread consensus that we did not want to take that road. However, I am increasingly worried about the matter.

Chris Bryant: The hon. Gentleman makes a fair point. Does it not also apply to cases of extradition? Often, the British authorities suggest that they intend to seek extradition and, before they start proceedings, the media speculate at great length. Consequently, other countries decide that there is no possibility of a fair trial in this country. Does not the point also apply to speculation in the House?

Mr. Grieve: The hon. Gentleman may be making a good point about extradition. I have not focused on it especially, but if he can think of examples—

Chris Bryant: Russia.

Mr. Grieve: I do not believe that extradition would take place anyway in the case about which he is thinking, so the matter may not arise. However, he makes a fair point.

Mr. Clegg: The hon. Gentleman makes an important observation. However, I wonder whether he is being too pessimistic. Is he aware of evidence from academic studies about the problem of the way in which media commentary can influence the decision-making of a jury trial? It shows that members of a jury are more sophisticated than some of the assumptions underlying his remarks suggest. They appear to be able to distinguish between media comment and their role as jury members. If we were confident that that was the case, rather than hoping against hope—and our better judgment—that we could put the genie back into the media bottle, should we not consider revising the rules to allow reality to play itself out?

Mr. Grieve: The hon. Gentleman knows that I am a rather firm defender of the jury system, and I happen to believe in the good sense of juries. I certainly agree that juries can apply common sense. I am sure that they are often asked to dismiss media speculation from their minds and that they can successfully do so. However, the hon. Gentleman might share my concern that what is coming out is not just speculation, but a torrent of “facts”, many of which might not—I emphasise the words “might not”—ever be allowed to emerge at trial, even if they were indeed factually correct. That raises some quite difficult issues.

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