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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 180-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HOME AFFAIRS COMMITTEE
THE GOVERNMENT'S COUNTER-TERRORISM BILL
Tuesday 19 February 2008 RT HON JACQUI SMITH MP, MR DAVID FORD and MS JILL TAN Evidence heard in Public Questions 139 - 199
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 19 February 2008 Members present Keith Vaz, in the Chair Mr James Clappison Mrs Anne Cryer David T. C. Davis Mrs Janet Dean Patrick Mercer Margaret Moran Gwyn Prosser Bob Russell Martin Salter Mr Gary Streeter Mr David Winnick ________________ Witnesses: Rt Hon Jacqui Smith MP, Secretary of State for the Home Department, Mr David Ford, Head of the Counter-Terrorism Bill Team, and Ms Jill Tan, Policy Lead for RIPA, Home Office, gave evidence. Q139 Chairman: Home Secretary, can I thank you very much for coming to give evidence today on the Government's counter-terrorism proposals, and can I place on record my thanks to you. You have always been very willing to come in to speak to the Committee on issues. Before we get on to counter-terrorism, there are a number of topical issues that we also wish to raise. We were hoping to question you on the publication of the Rose Report, which the Lord Chancellor said would be available today. He talked about it being done within two weeks. When do you anticipate the Rose Report being published? Jacqui Smith: It has not been delivered to us yet. I think the Justice Secretary, when he made his statement on 4 February, said that Sir Christopher had agreed to conduct the inquiry as quickly as possible. It is obviously important that that is a thorough investigation of the facts. I am sure that Sir Christopher will take the time needed to establish those facts and delivery will be a matter for him, but, as the Justice Secretary also said, when we receive the report we will obviously make that available to the House and make sure there is another parliamentary statement to go with it. Q140 Chairman: But he did put a specific timetable on this to the House. He did say quite clearly it would be within two weeks, and the House reacted quite positively to that. Jacqui Smith: He said he hoped he would be able to complete his task within two weeks. I think it is the case, given that we have asked an independent commissioner to carry out the inquiry, that it is important that we enable him to do that in the most thorough way, and it is my understanding that is certainly what is happening at the moment. Q141 Chairman: Is it still the case that the report will look at the specific issue of the surveillance of the Member of Parliament in the prison, or is it now wider? Is this why it is taking longer? Jacqui Smith: No, it is still the case that it will look at the specific issue, as was spelt out in effectively what were the terms of reference that the Justice Secretary, Jack Straw, announced in his statement to Parliament on 4 February. Q142 Chairman: Would you clarify the responsibility issues here? We understand, obviously, that the Justice Secretary set up this inquiry, but surveillance is still within your portfolio. Jacqui Smith: The Justice Secretary set it up and he was clear when he set it up that it would report to both him and to myself, as the Home Secretary, and, in fact, to the Prime Minister as well. Obviously, the first issue related to the fact that this had happened in a prison, which is within the Department of Justice's purview, but you are right that the whole issue of surveillance and the regulation of surveillance comes within Home Office responsibility, but we are a completely joined up Government, Chairman, and therefore we speak with one voice. Q143 Chairman: Of course. So when it comes to the publication of this report and the announcement to Parliament, will you all be doing this together or will you be announcing it? Jacqui Smith: It will not be some sort of Acapella show. I suspect I will be doing this thing. Q144 Chairman: So you will be giving the statement to the House? Jacqui Smith: I said I suspect I will, but--- Q145 Chairman: I see. One final question on this; colleagues may wish to come in. The big issue of confidentiality of communications between lawyers and clients has also been raised around the subject of the Rose Report. If the Rose Report suggests that this is a wider issue which may require the Wilson doctrine to be revisited, is this something the Government would be keen to do, would want to do? Jacqui Smith: The Justice Secretary and, of course, the Prime Minister have made the position with respect to the Wilson Doctrine very clear. The Justice Secretary also made clear in his statement the nature of the type of surveillance about which this inquiry is concerned, where the Wilson Doctrine is unlikely to be relevant. The inquiry will, of course, be looking at the specific details of this. You asked me earlier on whether or not we had, during the course of this inquiry, widened the terms of reference. They have not been. They remain as the Justice Secretary spelt out on 4 February, but I would suspect that in responding to the report, whoever it is who does it, there will obviously be the opportunity to both set out the range of regulation that there already is around a variety of forms of surveillance and to consider the implications of anything that comes out of the report in doing that. Q146 Chairman: But you cannot give us the timetable? Jacqui Smith: I am sorry, no, Chairman. Q147 Chairman: Can we move on to the counter-terrorism proposals? When the Committee published its report last December you very kindly said some very nice things about this Committee. What most excited you about our report? Jacqui Smith: Where do I start, Chairman? Q148 Martin Salter: Take as long as you like! Jacqui Smith: I think what was important about the Committee's report, as well as the detail that the Committee had gone into, was the fact that the Committee had been able to identify, as I am aware, with almost the entire support across the Committee, the key points about some of the proposals that had been put forward that the Committee felt were important particularly for the design of any approach to pre charge detention in the Bill. The other thing that the Committee's report did, which was very important to me, was it reiterated, I think, the case that I had tried to make when I came before the Committee previously that there was a growing consensus that it was likely to be the case, although it had not yet occurred, that in the future a 28-day limit on holding somebody in a complex terrorist case might prove to be insufficient. So, I think, as I say, both a sort of restatement of where I think that consensus was and then recognition that it should be possible, through building on, I think it was described specifically as modernising the principles of--- Q149 Mr Winnick: It was about the only support you got, so you should be grateful! Jacqui Smith: I will not rise to that one, but that is of course wrong. Q150 Chairman: Mr Winnick will question you on this. Jacqui Smith: As I say, I think the argument made by the Committee - that there were some fundamental difficulties with the proposition that we should simply rest on being able to use the Civil Contingencies Act in the future but that there were principles in the Civil Contingencies Act which we could modernise and build our proposals on - was the most important element to the Committee, and I hope that is the way we have responded. Q151 Chairman: Home Secretary, suppose we asked you in our summary to go out and build a consensus? We said very clearly that there was no evidence to support an extension beyond 28 days, but we said that there may be a possibility of modernising the CCA. What have you done to build that consensus? Who have you met? Jacqui Smith: The first thing I think we need to do to build a consensus is that you need to be very willing to move your position. If you remember, when I came to the Committee the first time to talk about our proposals it was on the basis of a document that we had published which said that the Government's preferred position was not just to legislate now but to legislate now for an extension to the pre charge detention period that would come into place now, that would be permanently in legislation. Yes, it had many of the parliamentary judicial safeguards which still remain, but it saw the need to legislate, not on a precautionary basis, but on the basis that that change would happen now. We have fundamentally changed our position since the first proposition that we put forward, so we are now in the position in the legislation that I published of saying actually we should not legislate in a way that would change the position as from today. We recognise that there are concerns and questions about the sorts of circumstances and the exceptional nature of the circumstances in which you might want to use pre charge detention, so we are legislating, building on the principles of the Civil Contingencies Act, saying that if those circumstances arose in the future, we would have in place, having had ample time to discuss the sort of safeguards around them, the ability to be able to bring into force for a time limited period - another big change that we have made - a piece of legislation that would enable application to a judge for an extension of pre charge detention. Q152 Chairman: Have ministers met the DPP, because he was the most trenchant in his concern? Jacqui Smith: The Attorney General has met with the DPP. Senior officials with responsibility for the policy have met with the DPP as well. Q153 Chairman: And he is on board? Jacqui Smith: The DPP recognises that with the system that is put in place---. I think he is completely clear that he will play a part in whatever it is that comes through at the end of Parliament, which, of course, I strongly hope will be the proposals that we put forward. Q154 Martin Salter: Home Secretary, the consensus building exercise, as you rightly said, is predetermined on people being prepared to move their decision. It appears to me that the Government has moved from a blanket 90 days - a fairly crude position that it failed to get through Parliament in 2005 - to the proposals that you have put before us. Who else appears to have moved their position in this debate in your judgment? Jacqui Smith: In my judgment, you are right that we have fundamentally changed our position, but nobody else, despite, in my case, quite a lot of meetings, particularly with opposition parties, appears as yet to have moved their position. To go back to the question the Chairman asked, in order to build a consensus you need not just one side of the discussion to move, you need more than one side of the discussion to be willing to engage in that argument. I do think actually I have not succeeded in building a consensus with opposition parties, but where I think there is now strong consensus, as was represented by the Committee's report, is amongst people, even those who oppose the proposition that we are putting forward, that this is an issue that needs a response now, that it might be appropriate to legislate on the sort of precautionary proportionate basis that I have proposed. Q155 Martin Salter: While the Government is moving, can I encourage you to keep moving and take a look at an area where I do think, and a lot of us feel, there is still scope for further movement, and that is this notion that the reserve power (and we have moved a long way from a blanket power, but a reserve power) would need to be approved by Parliament within 30 days. Effectively, that could mean, if we went up to the 30-day limit before Parliament got to debate this issue and either gave or withheld the approval that was being sought, that the suspect would be held beyond the 42-day period anyway, or certainly up to the 42-day period. Do you not accept that there is a case for Parliament to be convened much more urgently if these exceptional circumstances are triggered by the use of the reserve power, because we are in pretty exceptional times if the power, by definition, is triggered anyway? A lot of us would like to see that figure brought down to perhaps 14 or even seven days. Is there any logistical reason why it could not? After all, when we had the Haymarket bombings we were able to have perfectly intelligent debate in Parliament on the basis of your statement, I think it was. Suspects had been detained, criminal charges followed and Parliament was able to debate that subject very, very quickly, within a few days of the outrage occurring, without prejudicing subsequent criminal charges. So why on earth can we not come together much earlier in these exceptional circumstances? Jacqui Smith: This is an interesting area where, number one, we have already moved very significantly. It was not part of our original proposals, nor was it part, as you say, of the 90-day proposals that there should be a role of approval for Parliament of something that is effectively a reserve power that has been brought into operation. I do think it is important, however, in answering your question, to just make a distinction which, incidentally, is another point that people have raised with us that we have worked quite hard to clarify, between what I view as the legitimate role of Parliament, which is to bring into place the piece of legislation that has been the subject of previous debate but to approve the bringing into place of that piece of legislation is the Home Secretary's decision, and then to scrutinise it and give approval after 30 days, and the role of the courts, which is to make a decision about any given individual. You are right that what some people have said is: is there not a danger that this might prejudice the trial? That is why one of the other changes that we have made, even since, incidentally, we have shared draft clauses with people, is to be completely explicit within (I think it is) schedule 41 that outlines the process for the Home Secretary's statement and the subsequent debate, but nothing in there can be taken to refer either to an individual or can be prejudicial to a trial. I will just say, however (I know that this is an argument that has been made and, I suspect, will continue to be made if and when we get this working through Parliament and you referred to the Haymarket situation), there is, of course, within our proposals the requirement on a Home Secretary to notify Parliament through use of a statement within two days after having brought into force the piece of legislation. The Haymarket debate, as you described it, was, of course, the response to a statement that I made on the Monday following. So, I certainly would envisage that these would be the types of circumstances where, even before we got to the point where Parliament was being given the opportunity to approve the decision, actually there would have been discussion within Parliament. It is highly likely that that would have been the situation, and in fact there is provision within the Bill for that. Q156 Mr Winnick: It is nice to see you again, Home Secretary. Do you accept in any way whatsoever that the Government's position will be made much harder when the debate takes place in the House over the fact that the Director of Public Prosecutions said to us quite clearly that he was totally satisfied with the 28 days and then, of course, the former Attorney, Lord Goldsmith, telling us also, in his view, 28 days was sufficient? Jacqui Smith: It is self-evidently the case that if everybody who had ever worked for or with the Government was on the record as saying that this was the most sensible proposition they had ever seen and we should all get behind it, we probably would not be sitting here: I would not be appearing in front of you for the third time in a row. This is a difficult and controversial area. That is why the Government has been willing to listen and try to develop a consensus throughout, it is why we have been willing to move our position and respond to the points that have been made to us, but in the end we have a question that we need an answer to. If there is a consensus, including within this Committee, that we have a problem here potentially in the future, is it or is it not right that we should legislate now on a proportionate and precautionary basis? As I have said previously, my responsibility as Home Secretary, yes, is to build a consensus and find an agreement and respond to people's concerns, but in the end it is to make sure that I do everything that I can and the Government does everything it can to ensure that the security of people in this country is put centre and front of what we do, and we will do that in a way that attempts to build a consensus - that is why we have moved - but in the end that is my responsibility, and I think actually the vast majority of people in this debate have now moved on from the "if we should legislate" to the "how we should legislate", and I think the passage of this Bill through Parliament will give us the opportunity to look at that in detail and the safeguards around it. Q157 Mr Winnick: Of course, the Government have responsibilities as they see it, we also have responsibilities, and obviously the debate will be taking place as, indeed, in 2005. Working on the assumption, which I think you agree with, that the overwhelming majority of Muslims in this country loathe and detest terrorism no less than we do, can you name a single Muslim organisation which has said that it wants to see an extension beyond 28 days? Jacqui Smith: Hazel Blears and myself actually had a very useful discussion post the publication of this Bill with the round table that she had set up of Muslim organisations, and actually the conclusion of that, and in the process of discussion from at least one of the people in that room (and I would have to go back to get the details of it), there was quite a lot of good response to the way in which as a government we have been willing to move. Q158 Mr Winnick: One of the people? Jacqui Smith: No, there was a good response from everybody in the room about the approach that this Government had taken, not just the response to individual terrorist events but also the approach that we had taken to developing the propositions in this Bill and a recognition that what we were doing was finding a route through the very difficult issue of acting but doing that in a way that was proportionate. Q159 Mr Winnick: It does not alter the fact that you have not mentioned an organisation representing Muslims that has said, in effect, that it would be right to go beyond 28 days, so one assumes there has not been. Jacqui Smith: I think there are two different points here. Firstly, I think there is a very wide range of organisations, including some of those who actually oppose the detail of how we are intending to do it, who now say they can envisage a situation in the future where 28 days might prove to be insufficient. My argument is, I think there is now a broad consensus that there is a problem here that we need to solve. Where we are now in terms of the discussion, I think, is the detail about how we go about solving it. Q160 Mr Winnick: On the basis of parliamentary opinion, you will not dispute the fact that obviously all the political parties in the House of Commons are totally opposed to terrorism. Mr Salter mentioned it, but can you give any explanation of the fact that the opposition parties, as far as one can tell, have not been persuaded to go beyond 28 days? Jacqui Smith: I can answer for a lot, Chairman, but I am not sure I can answer for the thinking of the opposition parties on this. Q161 Mr Winnick: You have not persuaded them, have you? Jacqui Smith: I am disappointed that, despite the extent to which the Government has been willing to move on this and despite the professed view of opposition parties that they too can envisage a situation in the future where 28 days may be insufficient, and despite the cross party pretty much majority on this Committee, we have not yet been able to find a way that people are willing to engage even with the detail of this legislation, but my door remains open. I have had a series of meetings and I am willing to have more, but I think I am pretty clear now that, having moved in the way in which we have done, it is also important that we give Parliament, through the process that we will go through, the opportunity to discuss this. Q162 Mr Winnick: Can I put this matter to you. It is my last question on this aspect, Home Secretary. As you know, once the 90 days was defeated, no one voted for the status quo, namely 14 days, neither in the House of Commons nor the House of Lords. I am sure you are aware of that. No-one in fact said, "No, we will not go beyond 14 days", there was unanimous agreement of 28 days, once the 90 days was defeated, and on the basis, as I say, we are all against terrorism, the loathing and contempt that we have for those who want to take the lives of innocent people like what happened three years ago, why do you want to create such controversy, the Government, not just yourself? Why break the consensus? If there is this broad agreement which was reached over 28 days, no one opposing and wishing to keep the 14 days, why bring about, once again, controversy and divide the House over terrorism when really there is no necessity to do so? Jacqui Smith: I did not take the job of Home Secretary because I wanted a quiet life. I took the job of Home Secretary because I felt it was my responsibility and the Government's responsibility to do what we considered to be the right thing for the security of this country, and I believe that the proposals that we are now putting forward do that. I note, incidentally, that nobody (and there were very many people who actually felt that the extension from 14 to 28 days at the point at which it was proposed, or the extension beyond 14 days, was the wrong thing to do then) felt that we should not be legislating on a precautionary basis. We did. That was the right thing to do then and we have subsequently proved that. Q163 Mr Winnick: You said that about the 90 days. When you were the Chief Whip you urged Labour members to vote for 90 days, presumably on the basis that you believed that 90 days was right? Jacqui Smith: I was not the Chief Whip, but I did vote for 90 days because I believed it to be right. Q164 Mr Clappison: I hear what you say, Home Secretary, but I think you would accept that all MPs have a duty to scrutinise legislation the Government brings forward to make the best possible legislation, especially in this very delicate field. Can I just go back to what Mr Salter was asking you about, because I am not sure that you directly answered him. It is the case, is it not, that under these proposals a suspect could spend 42 days in detention before Parliament has had an opportunity to debate it and vote against it? Jacqui Smith: Yes, it is the case, as I said the last time that I came in front of the Committee. On the point of scrutiny, I strongly agree with you that it is important that there should be sufficient scrutiny, which is one of my criticisms of the proposal that we should simply rest on the Civil Contingencies Act. The difficulty with that, of course, is that they would be, therefore, no scrutiny of the approach through which we might extend the period of pre charge detention, there would be no opportunity to discuss within this Bill, as I am proposing, the sorts of safeguards that we should be putting around that, there would be no scrutiny or opportunity to discuss the exceptional conditions in which you might want to bring forward those proposals, there would be no opportunity to discuss the detail at this point calmly, out of the maelstrom of a terrorist attack, the details of how we should respond to it. For all of these reasons, I think scrutiny is actually strengthened by the proposals that I am putting forward rather that the proposition that we should simply rest on the Civil Contingencies Act. Q165 Mr Clappison: That is what I want to ask you about: the value of the parliamentary scrutiny which you are proposing. The last time you came before the Committee and we asked you about this you made this fair point, that the very fact that the Home Secretary would have to go to Parliament with the proposals would be a big factor in itself and a form of safeguard, but, if you remember, you were asked lots of questions about the scrutiny which would take place thereafter. Can I ask you about the procedure which you proposed for Parliament to go through to scrutinise the use of the implementation of the reserve power? Under your proposals before you can obtain this reserve power you have to lay a statement before Parliament. That would be a written statement, would it, or an oral statement? Jacqui Smith: I think the way that we have described it is that we would notify Parliament within two days. Q166 Mr Clappison: Yes, but you said, when the order has been made you have then got to lay before Parliament a statement complying with the provisions of the Act. That is a written statement, is it? Jacqui Smith: It could be a written statement. I could envisage circumstances where it would be an oral statement. Q167 Mr Clappison: Under this legislation you were required to say in that statement that an investigation is being conducted into an act of terrorism and that the investigation gives rise to an exceptional operational need. Do you accept that there will be some difficulties for parliamentarians to debate that provision, to examine and scrutinise it to see whether or not the investigation gives rise to an exceptional operational need? Jacqui Smith: That is two separate questions, of course. The first thing that happens is that the Home Secretary, as I have said, has to notify Parliament. As Martin Salter pointed out, there have not been very many circumstances where there have been the sorts of serious foiled or successful terrorist attacks where it has not already been the case that the Home Secretary would expect to come to Parliament and make a statement. It is also the case, I am pretty certain, in all of those circumstances, that all parliamentarians have recognised that there is a limit to what, within a very short time period after that happens or within those circumstances, a Home Secretary or any minister can discuss at those points. There is, of course, as well the context of this. In my experience, there would also have been considerable cross-party briefing and discussions, often on Privy Council terms, on the details of what is going on so that people do feel informed about the background circumstances which, I agree with you, it would be difficult to discuss in public, but the point of the 30 days is that actually it may well be possibly by that point for there to be more information in the public domain, still with the proviso, which we have been very clear about in the legislation, that that cannot relate to individuals and it cannot take a form which would prejudice a subsequent case. What you have put your finger on here is a difficult balance. There is a balance to be struck between the extent to which Parliament can debate, discuss and make decisions and the need, as an investigation and inquiry is underway and a court case is pending, to make sure that you do not do anything that prejudices that conviction. Chairman: Mr Clappison, can you make this your last question because other members wish to come in on this. You can come in later. Do you have another question? Mr Clappison: I have several other questions on this, Chairman. Chairman: Would you like to ask one, because there are other members who wish to come in. Mr Clappison: It is a matter for you, Chairman. Chairman: Do you wish to ask another question? Mr Clappison: I certainly do, yes. Chairman: Then please ask this as your last question. Q168 Mr Clappison: I accept what you say on that, Home Secretary, but there is a difference between a general statement to Parliament and the sort of scrutiny which you are describing, which is Parliamentary scrutiny to see if a condition of legislation is fulfilled, and your condition of legislation here, before the reserve power can come into force, is that the investigation gives rise to an exceptional operational need. The question I will put to you, if I may, Chairman, is how on earth can MPs investigate the evidence, the facts, the circumstances as to whether or not there is an exceptional operational need when an operation is ongoing and there may be all sorts of factors which cannot be revealed to Parliament? How can MPs scrutinise that properly to decide whether or not that condition has been fulfilled? Jacqui Smith: Firstly, there are, of course, four opportunities for parliamentary scrutiny in the proposals that I am putting forward: (1) there is the discussion that will happen during the course of this Bill so we can actually talk about different scenarios and circumstances in which it might happen, (2) there is the requirement for the Home Secretary to report to Parliament and the discussions that may well go on around that, (3) there is the debate at 30 days and the motion, (4) there is the subsequent debate on the report of the independent reviewer as to whether or not the Home Secretary was reasonable, carried out the decision in an appropriate way. It is the Home Secretary's decision to make a judgment under the provisions that we have put forward. What I am saying, however, in these circumstances is that I think we have gone a considerable way to recognising the role of Parliament in being able, pre the decision, to think about the circumstances and, post the decision, scrutinise. I would simply also point out that the only alternative that is currently being proposed to deal with this issue, which is the Civil Contingencies Act, would, of course, require a full parliamentary debate seven days after the emergency powers came into operation. It is not as if any alternatives solve what, I agree with you, is a difficult question about the role and the extent of parliamentary involvement. Q169 Bob Russell: Home Secretary, it is always possible, of course, that you are the only one instead and everyone else is out of step, but as recently as 7 February, less than two weeks ago, the distinguished group of parliamentarians who sit on the House of Lords/House of Commons Joint Committee on Human Rights published their most recent report, and so far as pre charge detention is concerned (and you must have read this, I am sure) it states their conclusion: "The detailed provisions in the Bill on pre charge detention are substantially the same as the proposals we considered in our report in December. We concluded that the Government had not made a compelling evidence-based case for extending pre charge detention beyond the current limit of 28 days", and they went on to say, "We think that charging suspects only after more than 28 days' detention is likely to be in breach of the European Convention on Human Rights. We think that providing for pre charge detention up to a maximum of 42 days is disproportionate. Further more, we think that the legal framework does not provide sufficient guarantees", et cetera, et cetera. Are they wrong? Jacqui Smith: I think on some of those areas they are wrong actually. To return to the point you made at the beginning about whether or not I am the only person who thinks that this is the right thing to do, you, of course, have received evidence on this Committee from Sir Ian Blair, from other senior police officers, who have asked us very seriously to look at this, the independent reviewer of terrorism. Lord Carlile, of course, said that he thinks this is a reasonable way forward. Of course I read GCHR reports very carefully; I also read your reports very carefully; and it was this Committee that recognised that there may well be a way forward to solve the problem which remains. We can argue about how we are going to deal with this, but the problem remains that most people now accept that 28 days in the future may be insufficient in order to bring an alleged terrorist to successful conviction. In some ways it is easier to identify the problems with the solution than it is to come up with the solution, but I believe that we have as a government taken a serious and a flexible approach to coming up with a solution here and I think the discussion now is, and should be, about the detail of the safeguards and the solution that we are putting in place and not whether or not this is a problem that needs to be solved. Q170 Gwyn Prosser: Home Secretary, Mr Murdoch made mention of what he calls the 28-day consensus over the vote, but a number of us who sit on this Committee were happy to support the 90 days. However, when we took evidence, as has been mentioned earlier, from the DPP and the former Attorney General my certainty was shaken somewhat by their view that they were comfortable, for the moment, with the 28 days, but they both went on to say when pressed that there could be a situation in the future where it would be necessary to extend it. Taking into account the fact that you have listened, I think, to the recommendations of this Committee, that you moved in a number of degrees in terms of scrutiny and parliamentary involvement, to what extent do you think you have to move further to meet what has been put up as a defence of civil liberties or you are battling against political expediency from the opposition parties? Jacqui Smith: I have tried throughout this process to keep party politics out of it. That is why I have worked as hard as I have done to try and build a consensus, but in the end we are all politicians and we will have to make a decision about whether or not the objective that I have set down here, which that there is a potential problem here which, in my view and in the view of others who we task with investigating this, could potentially in the future lead us to a situation where we might not be able to be confident that we can safeguard the British people in the way in which I want to. We will need to make a decision about whether or not what I am proposing is reasonable or whether or not they want to rest on the position that they have found themselves in. But, to reiterate what I said at the beginning, I believe that this is an issue in which party politics is probably not the appropriate way to go forward. It is an issue of the security of this country, it is an issue in which the Government has been willing to move and I hope others will respond in what I hope has been the way that we have approached it during the development of this Bill. Q171 Patrick Mercer: Home Secretary, thank you very much for coming in yet again. Before Christmas we were talking about the fact that it would be unwise, imprudent indeed, to wait until the circumstances occurred before we discussed an extension order, and you indicated that the best vehicle for that debate would be the Counter-Terrorism Bill. Can you assure us that there will be a considerable period for that debate? Jacqui Smith: You are right that I do believe that it is better to have the opportunity of the Counter-Terrorism Bill in which to do it. It will not, of course, be totally up to me how long we have, but I suspect, given that we have introduced it now, there is a lengthy period of time before we get to the end of the session during which that debate, of course, could happen, and I would, both within the process that we go through in Parliament and outside it, certainly, as I hope I have made clear to the Committee, want to see that debate continuing in order that we can scrutinise those proposals in detail and come to an agreement about the best way forward. I think the important thing about what I am proposing, as opposed to the only other alternative that appears to be on the table at the moment, which is that we should rest on the Civil Contingencies Act, is that there would be no debate if we rested on the Civil Contingencies Act. There will be no opportunity for Parliament to think about the circumstances in which we might need to use this power, the safeguards that we might need to place around them. The inclusion of our proposals in the Counter-Terrorism Bill gives us the opportunity to have that debate, and I am open to it. Mr Streeter: Home Secretary, I think the crucial thing for most of us is whether or not your 42-day proposals contain sufficient safeguards to protect civil liberties in this country. You trumpet, understandably, that your proposals contain substantial parliamentary safeguards, and I want to press you a little further on some of those provisions. We have heard that within two days of bringing the new limit into force there will be a statement, but it is a statement, as you have already said yourself and, indeed, is contained in the Bill, "which must not include the name of any person detained under section 41 or any material that might prejudice the prosecution of any person", and then later on in that process, when the judge is approving sentence, we are going have to another statement, possibly an oral statement to the House, but again, not the name of the person or any material which might prejudice a prosecution: in other words, speaking as a lawyer, nothing of any detail, none of the detailed allegations, nothing about the personal circumstances of detainee. I think it renders it--- Mr Clappison: A sham! Q172 Mr Streeter: ---utterly impossible then for Parliament to scrutinise your decision in any meaningful way. Is that really a substantial parliamentary safeguard worth the paper it is written on, or is it simply a charade? Jacqui Smith: I am always slightly surprised when parliamentarians think that their impact on ministers' decisions is, as Mr Clappison says, a sham. On all of the three occasions that I have come to this Committee I have never felt it is an easy ride, I have to say. Q173 Mr Streeter: But you take my point: you will not be able to tell us anything? Jacqui Smith: No, I do not take your point. I do not take the assertion that having to explain yourself to Parliament is some sort of easy ride and sham. I do not take that point. Q174 Mr Streeter: What would you be able to tell us? Jacqui Smith: To go back to what I said previously, one of the interesting points that has been made to us (and I strongly agree with this) is that the parliamentary safeguards and the judicial safeguards need to be appropriate for the roles of those different groups. It seems to me that the role of Parliament is to scrutinise decisions made by the Executive, to challenge, subsequently, those decisions, to scrutinise the bringing into force of parts of legislation that they have previously had the opportunity to talk about in detail. That is what the proposals that we are setting down give as the role to Parliament. I do not believe, and nor do others, that it is the role of Parliament to make decisions about individual detention, and that is why I think we have, effectively, in our proposals, separated out the role of the judiciary, which is to make the decisions about individual periods of detention, to make the decision as to whether or not the case has been proved, that the investigation is proceeding quickly, whether the case is proved, that it is reasonable to detain somebody in the proposals that we are putting forward for an additional period of seven days. That is not the role of Parliament. It is the role of Parliament to approve the bringing into force of the legislation that has been previously discussed. It is the role of the judiciary to consider the individual case. What I will say is that some of those people who accuse our proposals of somehow being a bit limp on the parliamentary safeguards belong to parties whose position appears to be to support a proposal in which there would be far, far less parliamentary scrutiny and parliamentary safeguard than there is in the proposals that I am putting forward; so it is a bit of a difficult circle to square. Q175 Mr Streeter: With respect, it is not, because my proposal would be to leave the law as it is, leave it at 28 days. Let me ask you another question. Jacqui Smith: That was not, of course, the position of the Committee, on my reading of your report. Q176 Mr Streeter: Looking at it from the point of view of the most important person in all of this, i.e. the detainee (which could be my son, my daughter, my next-door neighbour, and it could be the same for any of us), how does your new proposal have substantial parliamentary safeguards if we are not even allowed to ask questions about that person until he or she has been detained without charge for 42 days? Jacqui Smith: Because I do not think it is the role of Parliament actually to make decisions about individuals. I think that is the role of the judicial system, which is why we have been very, very clear that individual detention will need very strong judicial oversight in the decision-making, and that, I think, in our system, is where we place responsibility for decisions about individual detention. Q177 Chairman: On judicial action you have had a few setbacks in the Court of Appeal in the last few days, in particular with respect to section 57 of the 2000 Act when convictions were quashed in respect of five appellants. Does this worry you about the way in which legislation is drafted on terrorism issues? Jacqui Smith: No, it does not, because, firstly, I think it is important that the CPS and the DPP in fact have been very clear that that judgment is, firstly, unlikely to affect other prosecutions. I think the suggestion at the time was that this would somehow or another impact on very many other prosecutions. The view of the CPS is that (1) it would not and (2) of course we have already the Terrorism Act too. Q178 Chairman: Are you going to appeal? Jacqui Smith: These were prosecutions that happened under the 2000 Act. We have already in the 2006 Act changed the nature of some of the offences in this area that the DPP certainly thinks would help to fill any perceived gaps in the legislation. The CPS are considering whether or not they would appeal. Q179 Mrs Dean: To follow on the theme of previous questions, given that the parliamentary oversight envisaged, since there is not going to be detail of the individual allowed in that, could be seen to be weak, why have it all? Would it not be more straightforward to admit that the only real protection for the individual is through judicial oversight? Jacqui Smith: In developing these propositions, we genuinely looked at those elements that had been put forward as alternatives by others, for example the Civil Contingencies Act. One of the cases that has been made to me in my discussions with opposition parties, not least about the benefit of the Civil Contingencies Act, is that it requires and involves Parliament in making a decision about the bringing into force of the order. In good faith, I, therefore, thought: what can we do, as this Committee has said, to try to build on the principles of the CCA, and we looked at the way in which we could put in place parliamentary safeguards that, in my view, are much stronger than what is being proposed in the CCA but responded to that particular point about an appropriate role for Parliament in the process. Chairman: Thank you. Can I now move on to the use of intercept evidence, a recommendation this Committee made in our report which the Government has accepted; so good news. Anne Cryer wants to thank you. Q180 Mrs Cryer: Home Secretary, I understand the Chilcott Report clearly and firmly recommends that there is a great deal of further extensive work to do to develop a detailed regime before material intercepted by UK authorities could possibly be used as evidence in court. Also, given the reluctance of the Security Services to agree to this development, when can we expect to see the prosecution services able to use intercept evidence in trials? Jacqui Smith: To respond to the Chairman, it seems evident, does it not, that where the Home Affairs Select Committee lead, the Government and Privy Council reviews follow. As you rightly said, the conclusion of the Chilcott Review was that it should be possible to find a way of using some intercept material as evidence. What the Chilcott Review also said was that there were certain key operational requirements that needed to be met if we were to be confident that national security could be safeguarded and intelligence capability could be safeguarded, and it is in order to be able to work through the model that will enable us to meet those nine requirements that, as the Prime Minister said, we are now putting in place a cross-government implementation team that will be led from the Home Office to work through the process for ensuring that is the case, and it is why also we have asked the Chilcott Review members to continue in their role as an advisory group in testing out whether or not the implementation proposals brought forward do fulfil the nine criteria that they set down in their report. Q181 Mrs Cryer: Do you think that the Security Services will come round to the view that it is possible to make use of this sort of material? Jacqui Smith: What is important is that I think the Chilcott Review recognised, not for unreasonable reasons, but there were certain safeguards that needed to be in place in order, not that the security agencies could feel happy about it, but, more fundamentally, so that what the Chilcott Review identified as the fundamental importance of the use of intercept as intelligence, the very sophisticated capability that we have in this country, the very important international relationships that we have, which, incidentally, already enable us to achieve a very high level of convictions, could all be safeguarded. Of course, that is why it is in all of our interests to find the way thorough that meets those requirements. Q182 Margaret Moran: You did not mention a date though, Home Secretary, which was one of the questions that was being asked. Some of us believe that the use of intercept, the complexity of forensics around intercept, actually strengthens the argument for a modernised CCA. Do you accept that argument, or what assessment have you done as regards the introduction of that legislation? Does the delay have an impact on our debate on that Act? Will it have an adverse effect? Jacqui Smith: Two things. First of all, the Chilcott Review team themselves were very clear that the sort of work that they envisaged would have to happen meant that we would not be able to bring forward the legal model that should be able to solve those problems within the current Counter-Terrorism Bill, and they said that their in their report, they said that in terms to the Prime Minister and, in fact, to myself when I asked them about it. The other point that you make about the complexity of the type of technology which those who are countering terror now have to wrestle with is also a very important one, and it is part of the argument that I have made, that the police and others have made, about the nature of the complexity that they are now facing that means that they feel that in the future 28 days may not be sufficient. As an example of the sort of complexity, perhaps I can send the Committee some information that we have got, particularly from the high-tech unit--- Q183 Chairman: Yes, that would be very helpful if you could write to us with that. Jacqui Smith: ---that spells out the growth of the sort of data, incidentally, both encrypted and computer and other, that they are now having to deal with which is part of what their argument is for this growing complexity that there is. Q184 Patrick Mercer: I recognise that intercept is not a silver bullet. I recognise, on the other hand, that it is a very powerful tool, albeit the number of convictions that are achieved each year will probably be quite small. Speaking as a former practitioner of intercept, this question has been in the public domain, to my certain knowledge, since at least the 1980s. Please, when are we going to get on with this? When is this actually going to be available for our courts to use so we can send terrorists down? Jacqui Smith: The first thing to say is I think that one of the encouraging things about the Chilcot Review is that it did recognise the very high conviction rates that we have in this country in terrorist cases and in serious organised crime cases; it did recognise the very important contribution that intercept plays as intelligence in ensuring that; it did recognise the links between law enforcement and intelligence agencies in helping to achieve those convictions; and it concluded that there would be a limited, but nevertheless important, potential from using interceptors as evidence, when we have done the work that the Chilcot Review Group themselves said we needed to do in order to make sure that those criteria were in place. Q185 Chairman: Before we leave counter-terrorism, can I just be clear when the second reading of this Bill is likely to take place? Mr Ford of course is your Bill specialist. Is it going to be before the recess? Jacqui Smith: That of course is not always a decision for me; it is a decision for the business managers. Q186 Patrick Mercer: So you do not have a timetable? Jacqui Smith: No, I do not have a timetable. Q187 Chairman: Would you want it earlier rather than later? Do you have a preference? Jacqui Smith: I would like it as soon as possible. Q188 Mr Winnick: You are continuing to meet Labour members, I understand, one-by-one; is that so, Home Secretary? Jacqui Smith: I am continuing to meet anybody who wants to meet with me, Mr Winnick. You would be very welcome; you know where my office is! Mr Winnick: I would be interested to know how many you have persuaded in these one-to-one sessions. Chairman: Can we move on now to Mr Russell. Martin Salter: I think David is a No! Q189 Bob Russell: Just an observation on your answer to my question on the pre-charge detention; I think claiming the support of the Metropolitan Police Commissioner may be considered by some people to weaken rather than to strengthen your case. Jacqui Smith: I must say I do think that the Metropolitan Police Commissioner, who we charge with leading on counter-terrorism policing and investigation in this country (and his colleagues) is a pretty important voice to listen to, Chairman. Q190 Bob Russell: I was putting him in the context of everybody else. On ID cards, you are probably aware that members of this Committee three or four years ago were guinea pigs in a way because we were all issued with these identity cards, but unfortunately I failed the iris recognition test, which came as a bit of a blow. I had been told in the past that I had sexy blue eyes; that is the reason I am getting at! Opinion polls show that more and more people are expressing concern about the Government's ability to protect personal information and less and less support for ID cards. Moreover, the NHS database has run into huge technical problems. Is this an opportunity for you to make yourself really popular and just abandon the project? Jacqui Smith: A majority of people think that there is a strong case for ID cards. We take very seriously the concerns around the safeguarding of data. That is of course why the Bill itself puts in place a Commissioner particularly for the identity scheme. I think my ministerial colleague Meg Hillier will come here and go through --- Q191 Chairman: --- She is giving evidence next week. Jacqui Smith: --- the plans that we have for ID cards in more detail where I am sure we will be able to reassure you on that. Where we strongly disagree is that this is not something that is either popular or important with the public; all of our research suggests to us that it is. Can I say where we agree is that you do have very nice blue eyes! Bob Russell: Thank you. Q192 David Davies: Back to the international response to terrorism and crime; how many foreign police forces and other agencies have got access to the Police National Computer? Jacqui Smith: I do not know the answer to that question. I would not believe that any have direct access to the Police National Computer but I will come back to the Committee on that. Q193 David Davies: I have tabled a question which has not been answered yet. Will you be able to come back to me in two weeks and let me know by letter? Would that be asking too much? Jacqui Smith: What I am saying is I will come back to you on that question. David Davies: Within a fortnight? Q194 Chairman: As soon as possible? Jacqui Smith: As soon as possible. Q195 Chairman: I have a couple of questions on policing issues, but not about police pay you will be pleased to know. Your Violence Action plan that you announced only last week would involve the police carrying scanners and other pieces of equipment. What is the underlying reason as to why you have decided to do this at this stage? Is violent crime on the increase? Jacqui Smith: No, we have seen a reduction in violent crime of 31% over the last ten years and over the last two or three years we have seen a reduction in the levels of gun crime and in the levels of serious wounding. However, it is certainly my view that even though only one in 100 crimes actually falls into the category of "serious" violence, the impact that they have, not just the devastating impact on the individual but also more widely on the community, means that it is right that we should focus our and our policing partners' attention on that. The Action Plan itself goes across the whole range of crimes that could fall under the heading of serious violence. It has specific proposals about gun control and about taking forward the work we have been doing on gang-related violence, on knives, as you have identified. It also builds on the very important work that we have done about the violence that happens in private spaces - and I know the Committee is looking at the moment at domestic violence - and develops our work on domestic violence and on sexual offences and rape. That of course is all represented in the emphasis that we have placed in the new set of public service agreements that will come into place from April. It takes a broader view of saying that we think it is possible for agencies to work better together even than they do now to identify at an earlier stage those offenders who are likely to turn to violence in the future and to treat victims better. Q196 Chairman: On Sunday you announced to the News of the World that you were piloting Sarah's Law, the campaign that had been put forward by the parents of Sarah Payne who was killed. What is the timetable for the pilot studies? Jacqui Smith: What I actually announced was when we did the review of the protection of children from sex offenders last year, action four in there recommended that we should look at limited forms of disclosure that related particularly to sex offenders who were known to families. What we are proposing is that in four areas where we will pilot it, it should be possible, given that 90% of sex offences against children are perpetrated by people who manage to worm their way effectively into the families of those children, that people who have a concern about somebody who will be coming into close contact with their children, perhaps a new partner for example, in those areas should be able to register an interest in that person, and the presumption should then be that there should be disclosure of information about any sex offences committed by that person to those individuals. Q197 Chairman: And you are satisfied that the safeguards are in there, because what prevented this happening earlier was the fact that there was a worry about where this information would end up? Jacqui Smith: I think the concern, understandably, was about a Megan's Law, the US suggestion, that there should be much wider disclosure to the community as a whole of those who have committed sex offences. The concern there was that (i) it might drive sex offenders underground and (ii) it might to lead to more pressure and the actual naming of the victims. However, I think what we have recognised is that there is more that we should be able to do with the disclosure of information about sex offences than we are doing now. It needs to be done carefully. That is why we have set up the pilots in the four areas. The way in which that work is carried out will be informed by the wide range of stakeholders that we have brought together to take this work forward, including children's charities, including law enforcement agencies, representatives of probation and representatives like for example Sara Payne who works with us on the Committee and has been very, very important in enabling us to develop this in a way which I think gives some reassurance to people who want to see more disclosure but does it in a way which enables us to consider all the implications. Q198 Martin Salter: Home Secretary, you will be aware that many of us have serious reservations about a process which could trigger further vigilante action and drive sex offenders underground. It did not have the support of the Probation Service or almost any of the agencies involved in the multi-agency protection panels. When these pilots have been completed, would you come back to us and share the results, and if there is an increase in sex offenders disappearing from view and going underground and therefore putting more people and more young people at, risk would you halt that process? Jacqui Smith: That would obviously be a key part of the evaluation in which, incidentally, the MAPPAs locally, the Probation Service, the Police and others will be involved. Q199 Chairman: Thank very much for coming. Any plans to visit Hackney? Jacqui Smith: You have given me all the information I need to have about Hackney, but what I will say about Hackney, Chairman, is I knew even before you went there that this is a borough where the police and the Labour-controlled local authority have worked extremely hard to reduce crime and residents and visitors to Hackney should be pleased to be able to walk the streets safely. Chairman: Thank you for coming. I am glad that you do not think we are an easy ride but we are very grateful to you, as always, for coming at such short notice. |