Protection of Freedoms Bill

Paul Goggins Excerpts

Tuesday 11th October 2011 Commons Chamber

If there is a vote on the new clause, I shall abstain on a simple issue of principle. I think that the hon. Member for Rhondda (Chris Bryant) is right when he says that the Government are creating a problem for themselves. There is a confusion of principle here. What is sauce for the goose is sauce for the gander. If there is a case for extending the period to 28 days when there is a Dissolution or before the Queen’s Speech, frankly that is a matter of principle and it should be clear in the Bill that 28 days is an appropriate period. Why is it appropriate? Because the security of the nation requires it. That is the first priority. We have our civil liberties only if the security of the nation is guaranteed. I therefore will not support the Government on the proposal, and I believe that my argument is based on reason, principle and practicality.

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

It is a pleasure to follow the hon. Member for Stone (Mr Cash).

I will focus on new clause 14, which stands in my name and the names of the five other Members mentioned by my hon. Friend the Member for Rhondda (Chris Bryant) who served on the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which was appointed earlier this year and whose work on scrutinising the Bills has been mentioned. I am grateful to the Minister for his remarks about the Committee’s work, as I am sure are my colleagues. We are also grateful to my hon. Friend the Member for Rhondda, whom I congratulate on his recent appointment to his important new responsibilities.

The Minister referred to the fact that he and I have begun to engage with each other regularly on these issues. What we are learning is that there are no perfect solutions to these problems; they are difficult and challenging, and often we are looking for the least worst option rather than the perfect option. That is the spirit in which I make my remarks this evening.

The six Members of this House whom I mentioned were joined by six highly regarded and experienced Members of the other place on a Committee that was expertly chaired by Lord Armstrong of Ilminster. We met on 11 occasions, had seven public evidence sessions and took evidence from a wide range of experts. New clause 14 reflects our conclusions and recommendations.

For reasons of principle as well as practicality, our starting point as a Committee was that a maximum period of 14 days’ pre-charge detention is adequate, save in exceptional circumstances. For some members of the Committee—certainly for myself—that represented a change of mind, as my hon. Friend the Member for Rhondda pointed out. Despite all the fierce debates that we have had over the years, I and many colleagues have had to face the fact that detention beyond 14 days has only ever been used on 11 occasions, and not at all since 2007. However, the majority of the witnesses from whom we took evidence acknowledged that contingency arrangements were required for extension beyond 14 days in exceptional circumstances. That, of course, is the view of the Government as well, as the Home Secretary made clear in her evidence to the Committee, and again on 3 October in her letter to Lord Armstrong, to which the Minister referred. In that letter, she set out the Government’s response to the Committee’s report and stated that

“it is sensible to acknowledge that longer than 14 days may be required, and to plan accordingly.”

The question of the best way to make the necessary powers available remains. As we have heard, the Government are in favour of new primary legislation—a full Bill, to go through all stages in both Houses. The Committee’s view was that that route was both unsatisfactory and unreliable, and it recommended an order-making power for the Home Secretary, albeit with a number of important safeguards.

In her letter to the Committee of 3 October, the Home Secretary set out the three broad scenarios that the Minister has described. I will not read from the letter, because he has already read into the record the detail of what she said, but in summary, the three scenarios are: a situation in which there is a heightened threat and a likelihood of many and extensive investigations; an ongoing investigation that is so complex that 14 days is not sufficient; and a situation in which arrests have been made, the investigation is ongoing and it is clear that there is insufficient time for it to be completed within the maximum 14-day period. Frankly, I think the Home Secretary’s assessment of those three scenarios is rather more reasoned and balanced than the one provided by Lord Macdonald of River Glaven, the former Director of Public Prosecutions, who made clear his view that extension beyond 14 days could only ever be justified in the context of what he described as a “national catastrophe”. The balance of the evidence given to the Committee was that that was far too extreme a view to be practically helpful.

The objective of the Committee and the Government is the same, but the question is how to extend beyond 14 days. The Committee concluded that the route of primary legislation was simply too risky and uncertain to be relied upon in what, in any event, would be extremely challenging circumstances. I draw the Minister’s attention in particular to the third scenario that the Home Secretary outlined in her letter, in which arrests have been made, an ongoing investigation is being carried out and the clock is ticking. Perhaps nine, ten or 11 days of questioning have already passed, and only three or four days are left before the maximum is reached.

It is as well to remind the House that during the course of our taking evidence, a number of arrests were made under terrorism legislation in Northern Ireland. Two suspects were held for 13 days and then released without charge, and one suspect was charged on the 14th day of his detention. We are talking not only about matters of theory and principle but about real-life situations that are ongoing in the current climate.

[Ben Gummer (Ipswich) (Con)]

In the example that the right hon. Gentleman has just used, we do not know, of course, whether the police could have charged before 14 days. That they charged on the 14th day does not mean that they did not have the evidence to charge on the seventh day.

[Paul Goggins]

I respect the hon. Gentleman and he and I have had exchanges on this issue, but I contest strongly his assertion. When an ongoing investigation requires detention to be extended beyond seven days for any further period up to 14 days, there is very close scrutiny by the courts. It would be impossible for the police to detain a suspect beyond seven days—for 10, 13 or 14 days—without the court’s explicit approval. A court would certainly not approve the detention of somebody who could have been charged earlier, so I completely refute his argument.

The Committee had a number of specific concerns about the primary legislation route. First—others have touched on this important point—parliamentary scrutiny of such primary legislation would be so limited as to be rendered completely unsatisfactory and ineffective. By definition, such a Bill would be fast-tracked through the House, with very little time for debate. The circumstances in which the legislation would be introduced would dramatically limit what Ministers could say without jeopardising the suspect’s right to a fair trial, or without compromising national security.

I am sure that the Minister would come to the House very well briefed on what he could and could not say—he usually does, and any such future debate would not be an exception—but neither he nor anyone could guarantee that a Member of the House would not say something that could lead to a subsequent trial being compromised. I ask hon. Members present to put themselves in this position: what if 50 or 100 of their constituents had just been blown up and they had to participate in a debate on a request that the suspect who is potentially responsible for those explosions is held for longer than 14 days? We would all be exercised in that situation and might be prone to say something out of place, which would be reported in the media and lead to further speculation that, in turn, could compromise a trial. Both Lord Carlile, the former independent reviewer of counter-terrorism legislation, and Keir Starmer, the current Director of Public Prosecution, told the Committee that putting too much information into the public domain could prejudice a fair trial. Alternatively, so little information might be given by the Minister in the context of the debate that the whole process would be completely meaningless.

The Home Secretary is right to draw a distinction between a debate and a decision on the principle of extending the powers beyond 14 days and the practical application of those powers in each individual case. As my right hon. Friend the Member for Cardiff South and Penarth (Alun Michael) reminded the House earlier, the application is a matter entirely for the courts and not for Parliament. However, in practice, particularly in relation to the third scenario that the Home Secretary gave, the debate on the principle and the debate on the practical application in an individual case would become very blurred. There is a real danger of confusion between the role of Parliament and the responsibilities of the court. Parliament could be asked to vote on legislation, and within days, the court has to decide whether that legislation can be applied in a specific case in specific circumstances. In paragraph 84 of its report, the Constitution Committee concluded:

“It is ill-advised to create a decision-making process that requires Parliament and the judiciary to ask and answer similar questions within a short space of time—or at all. Far from being a system of checks and balances, this is a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and arguably risks undermining the rights of fair trial for the individuals concerned.”

That is an important point. The close proximity of the parliamentary debate and decision, and the application in an individual case, is fraught with difficulties.

Then, of course, there is the practicality of emergency legislation, which others have touched on. Normal business could be set aside if Parliament was sitting, but there is the question of what happens if it is not sitting but in recess. The Clerks advise us that a minimum of 48 hours would be required to recall Parliament during a recess. Of course, it was recalled very speedily this summer in the aftermath of the riots, but that was for a statement and debate, not to pass legislation. My right hon. Friend the Member for Blackburn (Mr Straw), a former Home Secretary, advised the Committee that after the worst atrocity in the history of the troubles in Northern Ireland, when 29 people were killed and more than 200 were injured, it took nine days to reconvene Parliament. In the context of an ongoing investigation into particular suspects in a particularly urgent inquiry, that would make the whole process of primary legislation completely impractical.

--- Later in debate ---

[Mr Cash]

Is the right hon. Gentleman aware of the Attorney-General’s views on this question of 14 days, seven days and all the rest of it? Does the right hon. Gentleman have much confidence that it would ever be extended?

[Paul Goggins]

I have enough confidence in the current holder of that position to know that he would set aside his personal opinion and deal with the legislation as he saw fit. It is interesting. I am asked about the Attorney-General and I am often asked about the Home Secretary. It sometimes appears that Opposition Members have more confidence in the Attorney-General and the Home Secretary than some of their own colleagues, because we want them to have these powers to use when they are absolutely necessary. It is important to have that confidence.

[Jeremy Corbyn (Islington North) (Lab)]

I apologise for missing the earlier part of my right hon. Friend’s speech—I was at a meeting in another part of the building. I understand what he is saying, but very few other countries go beyond 14 days for detention periods and some go much less. Why does he think that we should legislate to allow an extension to 28 days?

[Paul Goggins]

My hon. Friend knows enough about this matter to know that we cannot draw simple comparisons between our system and other systems. Other systems sometimes appear to hold suspects for shorter periods when in fact they are held for longer periods. We have a system that reflects our own judicial culture but also recognises the fact that we face enormous threats and challenges from terrorists in this country, perhaps particularly in this city. We have had to work our way through this, but if he missed the earlier part of my speech, he will not have heard me say that I have had pause to reflect and that I have changed my mind. I think that 14 days should be the maximum in most circumstances, apart from the exceptional circumstances that I am referring to.

[Mr Winnick]

rose—

[Paul Goggins]

I shall give way one more time, but then I want to bring my remarks to a conclusion.

[Mr Winnick]

I am grateful to my right hon. Friend. I accept that he is a convert to 14 days, although I suspect that if we were debating 42 days, he would not necessarily be up on his feet protesting. On the point about the Attorney-General, are we really to believe—this is not a reflection on the Attorney-General in any Government—that if the Home Secretary told the Attorney-General, in the usual way that these things are done, that it was necessary to increase the 14 days in exceptional circumstances, the Attorney-General would say to the Home Secretary, “No”? It is unrealistic.

[Paul Goggins]

I do not accept that it is unrealistic. It would depend on the individual judgment of the Attorney-General linked to the judgment of the Home Secretary, who would have been briefed by the Security Service and others. On its own, it is not a total safeguard, but it is one among several, and I shall briefly go through the others. The Secretary of State would have to give a statement to both Houses as soon as possible. There would have to be a review by the Independent Reviewer of Terrorism Legislation of any case in which a suspect was detained for more than 14 days. There would have to be an annual report by the Home Secretary listing any orders that had been made; that report would have to be debated and voted on in six weeks. Finally, the Director of Public Prosecutions would have to give his personal authorisation to any application to the High Court for a further warrant for detention. We know that that already happens in practice, but it should be on the face of the legislation. Members of the Joint Committee will be pleased that the Minister has tonight confirmed that he will introduce legislation to make the order-making power available during the Dissolution of Parliament, and that he has acknowledged the importance of an independent review of each case and of the personal authorisation of the Director of Public Prosecutions.

The Minister is a reasonable man who genuinely seeks to strike the right balance, but I believe that he has landed in the wrong place on this issue. His preferred route of primary legislation is too risky: time might be against him, and a subsequent trial might be prejudiced. This measure is exceptional, and we all hope that it will never have to be used, but if it is required, it is important that it be absolutely reliable and available as soon as possible.

The Committee’s recommendation respects the Government’s view that 14 days should be the normal maximum; frankly, I think that that is the settled view of Members on both sides of the House. That would give greater certainty in the face of extraordinary challenges, threats and attacks. On behalf of the six members of the Committee, I am happy to commend our recommendations to the Minister, and I hope that, even now, he will give them further consideration.

[Tom Brake]

I shall speak briefly in support of new clause 13. I welcomed the Government’s review of counter-terrorism security powers, which concluded that the maximum period of pre-charge detention for terrorists should be 14 days. I had anticipated that conclusion, but I had not anticipated that the review would further conclude that there might be exceptional circumstances in which it was necessary to increase the limit on pre-charge detention to 28 days. I cannot foresee the exceptional circumstances in which that might be needed, but I suppose that exceptional circumstances are, by definition, very hard to foresee.

Once the review had concluded that there might be such exceptional circumstances, measures had to be put in place, and I support the Government’s approach to fast-track primary legislation. My concern is that, if we had not done that, we might not have had in place the necessary safeguards to ensure that we would seek an extension to 28 days only in exceptional circumstances.

Clearly, this is not as elegant a solution as simply opting for 14 days. In requiring the additional step, we must ensure that pressure is maintained during the first 14 days to ensure that cases are very actively pursued. I have been told that, in some cases, there has not been quite the necessary degree of energy and commitment during those 14 days. Creating a significant hurdle for exceptional circumstances that requires a parliamentary legislative process should ensure that the necessary safeguards are operated, and it reflects the fact that we have not used 14 days since 2007.

I welcome what the Government are doing. They have identified the need for emergency legislation to be available not only while Parliament is sitting but when it is in recess, and the issue that was correctly identified with regard to Dissolution has also had to be addressed. I am happy to speak in favour of new clause 13 and to welcome it this evening.