Prevention and Suppression of Terrorism

David Davis Excerpts

Wednesday 14th July 2010 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a pleasure to follow both my right hon. and charming Friends, the Home Secretary and the deputy—sorry, shadow—Home Secretary. I am sorry; that was a Freudian slip, but almost a deliberate one.

Let me begin by wishing you a happy Bastille day, Mr Deputy Speaker. It seems appropriate, given the subject that we are discussing. I shall not recommend that we storm the barricades, but I do intend to divide the House on the motion. I tell Members that now, so that it is clear where we are going. We may not trouble the scorers greatly in the Lobby against the Government, but, given the historic role of the House in defending the liberties of our monarch’s subjects, I think it important that a policy which, whatever its rights and wrongs, has so far led to the imprisonment of three innocent people for 28 days is one on which the House should decide explicitly and not on the nod.

I welcome the Home Secretary’s intention to have a six-month review of counter-terrorism policy, but I say to her that, in my view, there is plenty of very clear evidence to demonstrate that 28 days is too many. I will also go through some of the points the shadow Home Secretary raised in his speech. These are not just matters of principle; they are matters of high principle and hard fact.

The shadow Home Secretary said he recognised that there are concerns that an authoritarian approach to counter-terrorism policy might have the deleterious effect of creating more radicalised Islamists—more potential terrorists—than a more traditional liberal British approach would. That is clearly the case. The hard fact supporting that assertion was given by the head of MI5 in his last speech to the country, when he said that there are 2,000 persons of interest—those are his words—to MI5, which is a 25% increase on the previous year’s figure. If the increase continues at that rate, no amount of security will defend us from the consequences of our own actions.

Radicalisation is, of course, created by more than just authoritarian policies, but such policies do drive it. Anybody who talks to the leaders of Muslim communities up and down the country will know that—they will pick that message up time and again. At the forefront of that trend is the 28-day policy. In relation to home-grown terrorism, detention without charge is the biggest recruiting sergeant for our opponents.

[Patrick Mercer (Newark) (Con)]

Does my right hon. Friend agree that it was interesting that the shadow Home Secretary did not choose to mention the threat we currently face from republican terrorism coming from the north of Ireland? In view of the fact that we are approaching the internment day anniversary of 8 August, would it not be an extremely powerful statement to reduce the detention period from 28 to 14 days now, rather than to wait until later?

[Mr Davis]

My hon. Friend makes a very good case, and he knows Northern Ireland terrorism better than most people in this House. He also knows that internment was one of the best recruiting sergeants for the Provisional IRA and others in that period. So yes, he is right.

The second hard fact I want to draw on relates to the reasons given to me for 42 and 90 days by John Reid, the predecessor as Home Secretary of both my right hon. Friend the current Secretary of State and my friend the shadow Secretary of State. When John Reid briefed me, as shadow Home Secretary, on his Government’s proposals for those periods of detention, the most telling argument he had—to be fair, it was telling—was the prospect of the British agencies being overwhelmed by multiple prospective attacks at the same time. The circumstances he listed were as follows: multiple plots against multiple targets at multiple locations, with not all the information involved being in our control—perhaps some of it was coming from foreign intelligence agencies such as the Pakistani service—and with the plot already starting to be carried out, so that it was necessary to move quickly.

That was the case the then Home Secretary made, and within a month or so of his briefing me on it we almost had a rehearsal in Operation Overt, the Heathrow plot, to which the shadow Home Secretary referred. It was thought at the time that 10 aircraft had been targeted, although it now turns out that the true number was seven, as well as multiple locations—there were many suspects at the beginning in at least three different locations. There were also concerns about gaining access to some of the houses and other places where evidence was thought to be located, and foreign evidence was involved, too. It was a facsimile of the case John Reid had described.

[Kris Hopkins (Keighley) (Con)]

Does my right hon. Friend agree that, although we accept that radicalisation may not be created by one action or one piece of legislation, having pre-charge detention of 28 days compromises civil liberties and that, for some at least, it is one step towards radicalisation—as is the Prevent agenda’s national indicator 35, which targeted the Muslim community specifically? We need to make sure that we do not compromise the democratic process and that we engage all communities.

[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.

[Dr Julian Huppert (Cambridge) (LD)]

The right hon. Gentleman will no doubt be aware that in cases involving encrypted data, 28 days, six months or even a year would not necessarily be long enough if there were no access to encryption codes, so such a detention period would not help anyway.

[Mr Davis]

My hon. Friend—I suppose he is my hon. Friend—is exactly right. When we heard those arguments, we thought that, with the prospect of the terrorism levels being, as the shadow Home Secretary says, very high, the then Government would have acted quickly. What was worrying was that that RIPA requirement, passed in 2000, was not brought into effect until 2007—two years after the 7/7 bombings. So we did not even give what was already on the statute book as a weapon for the police to use.

The other thing the then Government said to us was, “If you charge people, you cannot interview them after charge.” In 2005, we volunteered to amend that, but the Government did not make that change in the 2006 legislation. They put the provision in the 2008 legislation, which is not even in force yet. If we are serious about taking this on, we should deal with the things that actually attack the problems that we are trying to address. We should not create other problems for ourselves.

[Mr William Cash (Stone) (Con)]

Has my right hon. Friend taken note of the recent statements by the Lord Chief Justice on such matters? He has been very clear about the need to protect the common law, so the whole issue of habeas corpus, which is an integral part of this, needs to be reinforced. What we need is fair trials, due process and habeas corpus, irrespective of the Human Rights Act 1998.

[Mr Davis]

My hon. Friend goes, as usual, right to the core of the issue. This is about habeas corpus; it is about the most fundamental British freedom there is.

When we have got through all the things I have mentioned, we come to what happens on day 28. I want to be helpful to the police. They might say, “I have somebody in my control who I am sure is a terrorist. I know that from everything I know. I can’t quite prove it, but I think I will get the evidence if I have got him for another few days.” What do we do then? We actually have something that we do then—it is called the threshold test. The test for charging somebody is allowable—we are allowed to charge them if we are convinced that they are guilty and that we will find the information shortly.

I am not going to name the individual, but at one point in this process I asked to see the head of counter-terrorism and I talked to him about that. What shocked me was that he did not even understand the threshold test. Again, I cite my hon. Friend the Member for Esher and Walton as a witness, because he was at that same meeting. It is terrifying that our own forces did not know the weapons that they had at their command.

Right across the board, every piece of evidence to support the case for the provision falls down. The most fundamental one, which has been mentioned, although it was rather mocked by the shadow Home Secretary, is the approach of other countries. None of the problems that I have described as the case in support of 28 days is faced by us alone; every other common law authority has the same problems. Yet America charges in two days and indicts in 10, Canada does that in one day, New Zealand does it in two days and South Africa does it in two days. The nearest arrangement to ours is indicative, because it is Australia, which does it in 12 days. Its 12-day provision was a mistake, but 12 days is what it was. However, as we stand here, its Senate is taking through a law to reduce that to eight days, and the only controversy in Australia is about whether it should be lower, not about whether it should be higher.

The simple fact is that our policy is built on political machismo, not on effectiveness. What we have to do is recognise what all the other civilised countries in the world are doing and go in the right direction, which is to cut 28 days.