Prevention and Suppression of Terrorism

Baroness May of Maidenhead Excerpts

Wednesday 14th July 2010 Commons Chamber

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move,

That the draft Terrorism Act 2006 (Disapplication of Section 25) Order 2010, which was laid before this House on 24 June, be approved.

Our country has many years’ experience of dealing with terrorism. Five years after the appalling events of 7/7, the threat from Islamist terrorists is well known. The threat from dissident Irish republican terrorists has not gone away, and new threats will undoubtedly emerge in future.

Terrorism is not just another crime. Its purpose is political, its methods are barbaric and its effects can be devastating. For those reasons, dealing with terrorism and terrorist suspects cannot be treated in the same way as dealing with other crimes and other criminal suspects. The potential loss of life from terrorism means that the priority of the police and security agencies is to stop attacks happening in the first place. That often means that they have to intervene at a very early stage to prevent the terrorists’ plans from becoming too far advanced, which often means that there has been insufficient time to gather enough admissible evidence to charge the suspects. So, uniquely in terrorism cases, it is often after arrest that most of the evidential investigation takes place.

Furthermore, once arrests have been made the police can be presented with an enormous volume of information, which is exacerbated by three things: first, modern communications, because of the increasing and more sophisticated use of encryption; secondly, globalisation, because of the complexity of international terrorist networks and the need for co-operation in often difficult diplomatic circumstances; and, thirdly, the ambitions of the terrorists, because of the need for forensic examination of the hazardous and volatile materials that many wish to use as their weapons.

Unlike Ministers in the previous Government, I say that not to make the case for 28 days’, 42 days’ or 90 days’ detention before charge, but because I believe that it is important to remember during the debate the gravity of the threat that we face, and the difficulty of the job done by the police and the intelligence and security services.

[Jeremy Corbyn (Islington North) (Lab)]

Obviously, one understands that there is an important and serious job of investigation to be done. However, this country has a uniquely long period of pre-trial detention—far longer than that of any comparable country. I know that the Home Secretary has undertaken a review of that, so would it not be sensible to give a signal that we intend to reduce the length of pre-charge detention, by decreasing it to 14 days today rather than reaffirming the 28-day order? We reaffirmed the prevention of terrorism Acts throughout the 1980s and 1990s. Every time we said that the matter would be re-examined. Maybe this time, we should do something.

[Mrs May]

If the hon. Gentleman has some patience and listens to what I am saying, he will hear the signal that I want to give about 28 days. However, he will recognise that, by definition, the fact that I have moved that the order for the 28-day measure be continued for six months means that I am not suggesting that the detention period should change to 14 days today.

I have set out the nature of the threat, and it is important that we recognise its gravity in the debate, but it must be met by taking proportionate action, and the job must be done with proportionate powers. That is why, yesterday, I announced the inclusion of pre-charge detention in my review of counter-terrorism powers, along with control orders, stop-and-search powers, the use of the Regulation of Investigatory Powers Act 2000, deportations with assurances, and measures to deal with organisations promoting hatred or violence.

I want to make it absolutely clear to the House that I consider the 28-day limit to be a temporary measure, and I want it brought to an end once I have completed my review. Since the power to detain for 28 days was passed by Parliament and came into force in July 2006, 11 people have been held for more than 14 days, eight were charged with terrorist-related offences, and four were found guilty. Of those, six people have been held for between 27 and 28 days, three were charged with terrorist-related offences, and two were found guilty. No suspect has been held for more than 14 days since July 2007. When one considers that in the 12 months ending in December 2009 28 terrorism-related trials were completed, with 93% convictions, including six life sentences, it is clear to me that the power to detain for up to 28 days is not needed routinely for the police to investigate, interrogate and charge terrorist suspects.

The possibility remains that in some extreme circumstances it might be necessary to detain some suspects beyond 14 days, but those circumstances remain rare and extreme, and we need to be sure that the powers are never abused. That is why we need to take time to consider pre-charge detention as part of the review of counter-terrorism powers. Therefore, in moving today’s motion, I am asking hon. Members not to support 28 days indefinitely, nor to support 28 days for 12 months, as was envisaged in the Terrorism Act 2006, but to support a renewal for six months while the counter-terrorism review considers how we can reduce the limit.

The draft order that I have laid before the House will come into force on 25 July and will expire on 24 January 2011. After that, it will be up to me as Home Secretary to come back to the House to ask for a further extension, to let the limit fall to 14 days, or to present new proposals that reduce the limit but introduce contingency arrangements in extreme circumstances.

The review of counter-terrorism powers will, as I said yesterday, be informed by the principles of the coalition Government. Those principles—shared principles—are based on a respect for our ancient civil liberties and individual freedom. There is nothing we take more seriously than our duty to protect the public, but in doing so we will not, as the previous Government did, forget to defend our way of life.

[Pete Wishart (Perth and North Perthshire) (SNP)]

In her reply to me yesterday, the Home Secretary said that her favoured time would be 14 days. We know that that is the view of the Liberals and the view that is coming out of the Home Office, so why waste time and expense if we already know the result? Why not get on with this today, and just go back to 14 days?

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[Mrs May]

I made it clear to the hon. Gentleman in my answer yesterday that 14 days represents my personal view, but I also said in answer to him and a number of hon. Members that I do not think it right to pre-empt the result of the review. As I indicated, one option from the review might be to return to the House with a proposal for a reduced period of pre-charge detention, but with the possibility of contingency arrangements for extreme circumstances, when it may be necessary to take detention beyond 14 days. We should wait to hear the options that come from the review. That is why I am suggesting that hon. Members today support an extension, albeit just for those six months.

I referred to the principles of the coalition Government and said that we would not forget to defend our civil liberties, but that we take the duty to protect the public more seriously than anything else. The need to get that balance right is why we have already introduced legislation to get rid of identity cards and announced interim restrictions on the use of stop-and-search powers under terrorism legislation, and why I included the controversial use of automatic number plate recognition cameras in the review of CCTV regulations. We will introduce a freedom Bill, adopt the protections of the Scottish model for the DNA database, restore rights to non-violent protest, end the storage of internet and e-mail records without good reason, and extend the scope of the Freedom of Information Act. Freedom runs through the DNA of this coalition Government, and it will apply to our work on pre-charge detention as it will to everything else we do.

The country has not only a new Government, but a new Parliament. Having spoken to many new hon. Members as well as old, I know that this Parliament takes very seriously its role in protecting our freedoms. I therefore hope that we can today rise above the sort of arguments put forward by Ministers in the previous Parliament, and work out together how we can reduce the limit, subject to adequate safeguards and contingency plans. I extend that invitation to Opposition Front Benchers.

Yesterday, when I announced the review of counter-terrorism legislation, the shadow Home Secretary, the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson), queried the need for further safeguards,

“given that 28-day detention has to be re-approved by Parliament each year”.—[Official Report, 13 July 2010; Vol. 513, c. 799.]

However, what sort of safeguard was that, given that the previous Government used to whip Labour MPs to reinstate it every year, come what may? Similarly, one source was quoted in a national newspaper this morning as saying:

“You either have complete security or complete civil liberties—you cannot have both.”

I am afraid that that sort of zero-sum mentality damaged individual freedom under the previous Government. It is time we moved beyond that thinking, so that we have a more mature approach that balances the need for national security with important civil liberties.

I am aware that in asking many hon. Friends and hon. Members to vote for this temporary six-month measure today, I am asking them to take a deep breath and vote for a measure that they do not very much like. But I can assure them that if they support this order, I will work with hon. Members on both sides of the House to find a solution that reduces the limit for pre-charge detention, but gives the police the powers they need to keep us all safe from those who would bring devastation to our country. I commend the order to the House.

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[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.

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[Mr Dominic Raab (Esher and Walton) (Con)]

I welcome the forthcoming review of the 28-day limit, the measures that the Home Secretary has already taken on ID cards and stop-and-search powers and the wider review announced yesterday. We have an opportunity with the coalition and, as the hon. Member for Walsall North (Mr Winnick) made clear, we have support across the House to restore our freedoms, while strengthening our security. This is not the zero-sum game depicted by countless, hapless Labour Home Secretaries, but it is crucial that we have an open and honest debate on these matters, and for that we need clear and accurate information.

I ask the Home Secretary to clarify a slight discrepancy between the answer that I received from her Department on 28 June and the quarterly bulletin of last November. My understanding is that only one person, not two, held for the full 28-day period has ever been convicted of a terrorism offence. I also ask her to provide in table form basic information that her department has previously refused to give. First, I should like to know, year by year, the number of people subjected to control orders, with a breakdown indicating the number of UK citizens and foreign nationals. That is relevant to our ability to deport terrorist suspects whom we cannot prosecute. Secondly, I should like information setting out the number of foreign nationals who have not been deported, broken down by category of reason—whether administrative, legal or based on human rights—so that we better understand why we have been failing to deport so many of them. That information is not impossible to collate, and it is vital for this issue and the wider debate on counter-terrorism.

[Mrs May]

My hon. Friend asks for a number of figures, but it is only fair to the House that I should pick up the first point that he makes, which relates to a parliamentary question that was answered in the name of the Minister of State, Ministry of Justice, my right hon. Friend the Member for Arundel and South Downs (Nick Herbert), who has responsibility for crime and policing. Unfortunately, an inaccurate statistic was included in that answer, and he will correct that in the Hansard record very shortly. The figures on pre-charge detention are indeed as I indicated in my speech. Eleven individuals have been detained for 14 days or longer. Six individuals have been detained for 27 to 28 days, of whom three were subsequently charged and three released. Of the three who were charged, two were convicted and the case of one was not proceeded with. In the answer that my hon. Friend was given, reference was made to the number of individuals who had been arrested as a result of an operation by Greater Manchester police. It was indicated that two individuals were involved. In fact, only one of the 11 arrested as a result of that operation was involved.

[Mr Raab]

I thank the Home Secretary for that clarification. It is refreshing to get clarification from the Home Office so swiftly.

Twenty-eight days’ pre-charge detention was an emergency measure introduced on a temporary basis. We need a clear and convincing justification to retain it, because it undermines the ancient right of habeas corpus, which goes back to Magna Carta. We now know that, in relation to Operation Overt and the Heathrow plot of August 2006—the most challenging counter-terrorism investigation that we have ever faced as a nation—only five suspects were held for the maximum period of 28 days and only two were charged. Contrary to what Ministers said at the time, as my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has said, all the evidence relied upon was available well within 14 days. That Operation Overt was used by the last Government to justify proposals for 42 days’ detention was deeply irresponsible.

Since Operation Overt, only one person has been held for longer than 14 days—an isolated case of 19 days’ pre-charge detention. Last year, in 2009, no suspects were held in pre-charge detention for longer than 14 days and 70% were dealt with within 48 hours. So the raw facts in the debate are that, in four years, we have not needed longer than 19 days’ pre-charge detention, let alone 28 days. If we are judging the necessity of the order on the pressures that the police face during the pre-charge period, the evidence no longer supports a limit beyond 21 days at the very most.

In truth, those data are not the only relevant information. Briefings by the heads of MI5 in 2006 and 2007 showed a rise in the number of terrorist suspects being monitored by the authorities from 1,600 to 2,000. In 2008, the head of MI5 stated publicly that the volume of late-stage terrorist planning had fallen that year. I am not aware of any more recent assessments from the head of MI5 or the agency more generally. The House will recall that MI5 refused to support the last Government’s proposals for 42 days’ detention. Ministers stated at the time that it would be inappropriate for MI5 to give a view, yet Tony Blair publicly relied on MI5’s support for the increase in the limit in 2005. It cannot be in the interests of the intelligence agencies or the public that MI5 assessments are relied on by Ministers only when it is politically expedient or they want to publicise blood-curdling assessments of the terrorist threat. I ask the Home Secretary to put these arrangements on a more clear and stable footing. Either we should not have such briefings and public statements by MI5, or we should have regular, objective assessments of the domestic terrorist threat based on hard data that avoid any risk or perception of politicisation.

Paragraph 7 of the explanatory memorandum to the order claims that all the specific grounds cited as reasons for increasing the maximum limit to 28 days in 2006 “remain relevant”. It is difficult to accept that sweeping assertion without further information. First, has the challenge of encrypted computers not been eased at all by the enactment in 2007 of a criminal offence of withholding encryption keys? Will the Home Secretary give us data on prosecution and conviction rates under that offence?

Secondly, will the Home Secretary inform the House of any case in the past two years in which the presence of chemical, biological, radiological or nuclear material has been a direct factor that has prolonged the period of pre-charge detention? Thirdly, will she explain the extent to which the new powers of post-charge questioning that were enacted in 2008 have alleviated the problem of having to intervene early in some terrorist investigations because of the threat to public safely? Alternatively, is it correct, as Liberty and several hon. Members have stated, that the relevant power was not even brought into force by the previous Government, despite all the hubris on that specific point?

The truth is that gaps remain in the UK counter-terrorism strategy, despite the excellent work and unstinting commitment of our police and intelligence agencies. If it is correct that the terrorist threat has remained constant and at its highest level, it must be worrying that the number of arrests leading to charge under terrorism legislation dropped by more than a fifth last year. The number of guilty pleas in terrorism investigations also fell by a third, while the number of convictions under terrorism legislation halved. Counter-intuitively, there was a conviction rate of 93% in terrorism cases, compared with rates of 31% for conspiracy to murder, 30% for wounding and 38% for rape, and that raises the more basic question of whether, as a matter of policy, we are taking a sufficiently robust approach to the exercise of prosecutorial discretion in terrorism cases—I am talking about not a case-by-case approach, but the overarching strategy on prosecution.

We need a review of prosecutorial strategy as part of a broader shift away from the previous Government’s ineffective authoritarianism and towards an approach that deploys rather than sidesteps the British justice system. That means the greater use, when necessary, of the threshold test to prosecute when evidence is not available but is in the pipeline. It also means lifting the ban on intercept evidence, coupled with a more proactive use of plea bargaining, to increase the number of convictions, as well as the conviction rate, especially in cases involving wider conspiracies or joint criminal enterprise, as it is commonly known. Above all, however, it requires a change in the professional culture of this country’s intelligence and law enforcement authorities. That would be in line with the approach in other common law jurisdictions, most notably the US, where pre-charge detention is limited to two days. That is the way in which we can fight terror while defending our historic freedoms in this country.

I will support the order. I recognise that the Home Secretary needs time to examine these difficult issues further, but in the absence of convincing new evidence, I will be inclined to oppose renewal in six months’ time.

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[Mrs May]

In the time available to me, it will not be possible to mention all the speeches made in the debate. However, the debate has in many ways shown the House at its best. People have made thoughtful and serious contributions on the matter in hand. They spoke from the heart and passionately on issues about which they feel deeply.

I shall simply reiterate what I said in my opening speech. The proposal in the pre-charge detention order is for a temporary measure that will enable us to look again at the 28-day period of pre-charge detention, and at how to reduce it, during the review on counter-terrorism measures.

The hon. Member for Foyle (Mark Durkan) and the right hon. Member for Leicester East (Keith Vaz) challenged me on why I was not going straight away to 14 days, having said that that is my personal preference. The former is correct in thinking that we want to look at the matter in the round alongside other counter-terrorism legislation, and not simply pick it off and deal with it as one issue. I can tell the latter that it is my duty to this House and to the country as a Minister to look at such issues responsibly and to consider all the arguments, and not merely to say that my view should necessarily hold supreme. My views will inform my final decision, but it is right and proper for me to consider all the arguments before I take that decision.

[Ian Paisley]

Will the Home Secretary give way on that point?

[Mrs May]

I am sorry, but I have very little time left—about one minute—so I will not give way. I am sure that the hon. Gentleman will be able to find me afterwards if he wants to make a speech to me—[Interruption.] I can assure him that that was not a comment on the name of Paisley.

The order is a temporary measure to continue 28 days pre-charge detention for just six months. That enables us to look at pre-charge detention in the counter-terrorism review, and to find a solution that reduces the limit from 28 days while ensuring that the police have the powers they need to keep us safe from those out there who would wish us ill.

Question put.