Prevention and Suppression of Terrorism

Alan Johnson Excerpts

Wednesday 14th July 2010 Commons Chamber

[Alan Johnson (Kingston upon Hull West and Hessle) (Lab)]

It seems that the Home Secretary and I are allies in the debate this afternoon—although, having read her written ministerial statement and listened to her speech, I think that she is adopting the position of St Augustine—“Lord, make us virtuous, but not yet”. The Home Secretary and I have many things in common, among them our charm, panache, looks and preference for flat shoes. And we both voted for 28 days in 2005. Neither of us has ever voted against 28 days, and we both belong to political parties that made no mention of reducing pre-charge detention of terrorist suspects in our manifestos.

This issue will, of course, form part of the review that the Home Secretary rather foolishly described yesterday as putting right the failures of the previous Government. If 28 days was a failure, it is strange that she should advocate the continuation of that failure today. She is right to do so: as so often with the Home Secretary, the problem is not so much what she does as the way in which she does it. She told us yesterday that personally she was always in favour of 14 days. We understand that it is impossible to tell what she believes from her voting record, but this fervour for 14 days has been a well-kept secret. She has always actually voted for 28 days.

Incidentally, the person whom the Home Secretary has appointed to provide independent oversight of the review—the former Director of Public Prosecutions, Lord Macdonald of River Glaven—made clear in evidence to the Home Affairs Committee his support for 28 days, stating:

“We welcomed the increase to 28 days and we felt that a period of 14 days was not sufficient. It seems to us that 28 days has been effective and has provided us with powers, supervised by the courts, which have been useful to us as prosecutors in making appropriate charging decisions within that period.”

This review, like Brighton seafront, has two peers—both Lib Dems—and the views of Lord Macdonald are completely in line with the view of Lord Carlile, the independent reviewer of the terrorist legislation, whose work the Home Secretary rightly described yesterday as “excellent”. Lord Carlile not only accepted the need to maintain 28 days but said:

“I expect in the course of time to see cases in which the current maximum of 28 days will be proved inadequate. This will be very rare but inevitably extremely serious.”

The 28 day pre-charge detention for terrorist suspects is a temporary measure which, thanks to the work of my hon. Friend the Member for Walsall North (Mr Winnick), who is in his place, has to be renewed each year. The task of the House in considering whether to support a further extension—in this case for six months—was succinctly expressed by the hon. Member for Bury St Edmunds (Mr Ruffley) when he spoke for the Conservatives in last year’s debate. Perhaps I may just mention that we all look forward to seeing the hon. Gentleman restored to good health. He has many friends across the House who respect and admire him and want to see him back on the Government Benches very quickly. He said last year that the Government must first demonstrate convincingly to Parliament that the security situation is such that 28 days remains indispensable, and secondly, that the legal framework must meet the procedural protections afforded by our common law and by the Human Rights Act. He said, with his customary prescience:

“I hope that this will give an indication of the approach that we want to take, should there be a change of Government before the next renewal.”—[Official Report, 9 July 2009; Vol. 495, c.1165.]

I accept that a small minority of Members—it may or may not include the Home Secretary—are convinced that pre-charge detention should be 14 days or less, and I respect that view. It has been consistently argued by several—a minority, but several—Members. The majority of Members, however, will look at the evidence and decide on that basis whether in the year since we last renewed this legislation, the terrorist threat has faded and/or whether this legislation is being abused by the criminal justice system.

[Jeremy Corbyn]

Is my right hon. Friend aware that no other country in Europe, or indeed North America, that suffers the same kind of concerns as we do has seen fit to go down the road that we have in this country—of having very long periods of detention before charge?

[Alan Johnson]

I am not aware of that. In fact, the usual argument is that the common-law countries such as Australia, Canada and even the US do not have this system. Europe is the worst place for my hon. Friend to find his examples. Let me cite Norway, for instance. Good old, solid, Scandinavian, liberal Norway has provisions that allow people to be kept in custody—renewed by a High Court judge, who is involved in any detention beyond 14 days—for far longer than 28 days, or even 42 days. That was a helpful intervention, and I am grateful to my hon. Friend.

I think that the hon. Member for Bury St Edmunds succinctly summed up the two issues I mentioned, but there is one further aspect that we have to consider in deciding whether to renew this legislation. It was rightly raised by my right hon. Friend the Member for Leicester East (Keith Vaz). The issue is whether the very existence of 28-day detention leads to radicalisation in certain communities to the extent that it defeats the objective of reducing the terrorist threat. The Home Office community impact study published in March certainly found examples of UK Muslims having a strong negative perception of counter-terrorism legislation, but concluded that there was insufficient evidence on specific aspects, such as 28 days, to lead to any firm conclusions. I doubt whether anyone in this Chamber thinks that pre-charge detention of 28 rather than 14 days has of itself radicalised anyone to the extent that they would be prepared to engage in terrorist activity.

While I am dealing with this aspect, I hope the Home Secretary can refute the story in The Guardian this morning that she has decided to dismantle the Prevent strategy. She told my right hon. Friend the Member for Salford and Eccles (Hazel Blears) yesterday, as is recorded in column 802 of Hansard, that the strategy was being reviewed by the Home Department and the Department for Communities and Local Government. When I read the Home Office draft structural reform plan released yesterday, which is the source of the story in The Guardian, all I could find was the eminently sensible objective of keeping the “prevent” strand of counter-terrorism separate from the “integration” initiatives of DCLG. I would welcome clarification.

[Mrs May]

I am happy to give the right hon. Gentleman the clarification he seeks. As set out in the Home Office structural reform plan, we intend to look at the different strands of the Prevent strategy and to ensure that they are properly focused on the right aims. I believe that it is right and appropriate to separate out the part of the Prevent strategy that is about integration from the part about counter-terrorism. One problem with Prevent is that those two aspects have become intertwined in too many people’s thinking, which has, sadly, led to some of the Prevent work being rejected by those whom it was intended to help.

[Alan Johnson]

I am grateful for that clarification, and I completely agree with what the Home Secretary has said about Prevent.

As the Home Secretary said in her speech, the security threat is, if anything, greater today than it was a year ago. In the year since the last renewal, we have learned more, by means of Operation Overt, about the so-called liquid bomb plot, through the successful prosecution of those involved. We should remember that this involved the planned destruction of seven passenger planes all flying to North America, and is one case in which pre-charge detention beyond 14 days was necessary in respect of six people involved in that plot.

We also know now that Operation Pathway in Greater Manchester, which was a matter of speculation in the debate this time last year, is now understood to have been a serious and advanced terrorist plot. It was, thankfully, thwarted yet again by the security services. In the past year, two further organisations have been proscribed. The threat level, decided not by Ministers but by the experts in the security agencies, has been changed to “substantial” and then back to the second highest level, “severe”, which means that an attack is highly likely. As we meet today to make a decision based on the evidence over the coming year, that is the position in which we find ourselves.

On Christmas Day, Umar Farouk Abdulmutallab, a Nigerian citizen who studied in the United Kingdom and was radicalised in Yemen, flew from Lagos via Holland with 80 grams of PETN explosive—which successfully circumvented aviation security—sewn into his underpants, in an attempt to blow up a passenger plane over Detroit. That demonstrated first the continuing ingenuity of our enemies, and secondly the international nature of the threat.

There has been one other important development over the year: the report of the all-party group of Privy Counsellors, under the chairmanship of Sir John Chilcot, on the crucial issue of intercept evidence. When I was Home Secretary, I briefed the Prime Minister and the Deputy Prime Minister separately in their previous roles. They fully understand—as, I know, does the Home Secretary—that the Privy Counsellors found that two of the nine principles that they themselves had established in order to ensure a practical way in which to meet our shared desire to use intercept as evidence were breached during the simulations that they conducted in the course of their work. They are doing further work to see whether they can find a way around the difficulties, but the issue is obviously integral to the whole question of pre-charge detention.

I ask the Home Secretary to reconsider the response that she gave yesterday to the hon. Member for Wellingborough (Mr Bone), who asked why intercept evidence was not being considered as part of the review. She rightly said that it was better to consider the issue over time, but that, I believe, is an argument for spending longer on the review. I fail to see how such an important component of the argument about 28 days—rehearsed in every annual debate, and also integral to the consideration of control orders, which is also part of the review—can be separated from the overall review.

Finally, there is the important question of whether the power is being abused in the legal framework. Some Members argue that we should abandon this measure because it is not used very often, but I would be more concerned if it were used other than sparingly. As the Home Secretary rightly said, it is an exceptional measure, as Lord Carlile has pointed out, the need for it is rare, and the Crown Prosecution Service is well aware that no one should be detained for a moment longer than necessary. There is no evidence that the power has been abused, but Lord Carlile made an important recommendation in his review of Operation Pathway, proposing the granting of conditional bail by a judge for a period up to the 28th day following arrest, which would enable restrictions short of custody to be imposed while the inquiry continued. That strikes me as worthy of consideration, perhaps during the review.

In my view, the evidence is overwhelming. The statutory instrument should be approved today, and the Government should tread very carefully if the purpose of their review is to arrive at a conclusion consistent with the Liberal Democrat manifesto commitment to reduce the 28-day pre-charge detention period for terrorist suspects regardless of the dangers and the overwhelming evidence.

[Several hon. Members]

rose—

--- Later in debate ---

[Mr Davis]

My hon. Friend is entirely right. This is the most symbolic of the restrictions of our civil rights, and the one seen by Muslim communities in this country as being targeted on them. It is not intended to be, but that is the way it is seen.

What actually happened as a result of Operation Overt and the Heathrow plot? As the shadow Home Secretary said, six people were held beyond 14 days; five people were held for 27 or 28 days, and at the end of that process it turned out that three were innocent. I used the word “innocent” when the previous Government were in power, and I was almost shouted down. I mean innocent: no control order, no surveillance, no open file—the police thought they were innocent. When I obtained that information I had with me as my witnesses my hon. Friend the Member for Esher and Walton (Mr Raab) and the Attorney-General. What was thought was therefore very plain.

[Alan Johnson]

The right hon. Gentleman is making a very effective case. Can he explain why, in last year’s debate on this issue, he voted for the continuation of 28 days? His party abstained but he made the point in that debate that he could not accept 14 days, which he is now advocating, precisely because he knew inside details of Operation Overt and what happened at Heathrow. What changed his mind during the ensuing year?

[Mr Davis]

It took us time to get to the bottom of the facts. When I asked the right hon. Gentleman’s predecessor as Home Secretary to give us the information I am talking about, we were not given it. I asked for it three times, and my hon. Friend the Member for Esher and Walton was there on at least one or two of those occasions. This is one of the problems with the Home Office: it mouths the words “justice must be seen to be done”, but it does not live by them in terms of transparency.

Let me turn to the remaining two people who were detained, because some further facts have come to light. We were told at the time, “Here is a serious case and we have to go to 27 or 28 days—right to the edge—in order to bring a case against them.” However, we pressed the matter and asked when the evidence was obtained to charge those individuals. It was obtained not at 27 or 28 days, but before 14 days—if I remember correctly, on day three and day 12. It was perfectly possible to charge those people before the 14-day limit; now we find, however, that they were charged on day 28. They spent nine months in prison on remand, and even in that time not enough evidence was found to convict them. One of the cases was thrown out by the judge after hearing it—it did not even go to a jury. The other was rejected unanimously by the jury and the individual concerned was exonerated. It was not a soft jury: the same jury convicted three other terrorists in the same trial. So, we had five people, every single one of whom was innocent.

That is what our policy has done so far and why it is a recruiting sergeant for terrorism. It might not make somebody a terrorist, but it does make the communities concerned less likely to co-operate, less likely to provide information, and less likely to help us to prevent the next terrorist attack. That is why the policy is completely counter-productive.

Let me turn to hard fact No. 3: the simple list put out by the previous Government and the present Government showing why we need this provision for another six months. We are told how difficult terrorist cases are. What did we do when we were trying to be consensual with the previous Government? Both the Conservatives and the Liberal Democrats agreed with—in fact, we thought up—the idea of acts preparatory to terrorism. We supported the idea of terrorist training being an offence, so we made matters easier in that regard.

The next argument was, “We have lots of evidence and it might be encrypted—it might be in code.” We had to remind the previous Government that when they passed the Regulation of Investigatory Powers Act 2000, they made it an offence to withhold the encryption key, so if the evidence is in code, belongs to the suspect and he does not provide the key, we have got him for five years anyway. Therefore, that argument went out the window.