Protection of Freedoms Bill

William Cash Excerpts

Tuesday 11th October 2011 Commons Chamber

[James Brokenshire]

I think that is right. In many ways it is why the Government have taken the approach that we have. Ultimately, it would be for the House to decide whether the circumstances justified the introduction of the emergency legislation. That is an important protection, and represents the underlying distinction in the Government’s approach.

Hon. and right hon. Members who sat on the Public Bill Committee will recall that we had extensive debates in Committee on what the maximum period should be, in what circumstances the Government might seek to extend that period, and what kind of contingency mechanism they might employ to extend the maximum period. As I said then, the Government have prepared draft fast-track legislation, which at the time was subject to pre-legislative scrutiny. The Joint Committee undertaking that scrutiny reported in June, and I am grateful to Lord Armstrong of Illminster and the other members of the Committee for their careful consideration.

[Mr William Cash (Stone) (Con)]

Does the Minister believe that habeas corpus itself is in any way affected by the proposals before the House in the new clause, and does habeas corpus not, as Lord Steyn has said repeatedly, supervene against any other jurisdiction, provided that its operation is not excluded by statute?

[James Brokenshire]

I know that that is a particular concern for my hon. Friend, but we do not think that it is engaged in that way. I know that he has introduced a Bill previously on this subject, but the clear advice I have received is that the answer is no.

Although the Government still believe that fast-track legislation is the most appropriate contingency mechanism for increasing the maximum period of pre-charge detention, we recognise that, as the Committee pointed out, that approach would not be feasible during any period when Parliament was dissolved. No contingency mechanism will be perfect or able to meet all operational needs while at the same time satisfying every concern that Parliament and the public might have, but we recognised the point raised by the Committee about what would happen if Parliament were dissolved. New clause 13 has been introduced to address that specific concern.

I am aware that the Committee concluded that the Government’s intention to rely on fast-track legislation for other periods was not appropriate, citing potential problems with parliamentary debates and possible difficulties with recalling Parliament during a long recess. New clause 14, tabled by the right hon. Member for Wythenshawe and Sale East (Paul Goggins), attempts to deal with that issue by introducing an order-making power to increase the maximum period of pre-charge detention, which would be available when the Attorney-General certified that exceptional circumstances applied. The new clause also includes a number of proposed safeguards relating to that power, including retrospective parliamentary approval and a number of conditions that would have to be satisfied before a High Court judge could approve any individual applications for extended detention up to 28 days.

I very much welcome the continuation of the debates that the right hon. Gentleman and I have had over terrorism legislation, and many of the themes that come through in this debate were apparent in our debates on the Terrorism Prevention and Investigation Measures Bill, the enhanced regime and the provisions that it introduced. I think that it is right and proper that we have the debate on the issue in this Bill, particularly as the Joint Committee’s investigation related to the emergency draft legislation to which the Bill is in essence connected with regard to an increase from 14 to 28 days. However, we believe that the exceptional nature of these powers to extend the maximum period beyond 14 days means that, where feasible, the principle of 28- day detention should be debated and approved by Parliament.

In response to the Joint Committee’s report, the Home Secretary said:

“An order-making power of the type described in the Committee’s report”—

and in many ways reflected in the new clause that the right hon. Member for Wythenshawe and Sale East has tabled—

“would…not be a clear expression that the ‘normal’ maximum period of pre-charge detention should be no longer than 14 days.”

She went on to say:

“28 day detention is so exceptional that I continue to believe that Parliament should have the opportunity to debate the issue first, and that the most appropriate and effective way to do this is by using emergency primary legislation.”

--- Later in debate ---

[Mr Cash]

I am sure the Minister appreciates that he is treading a rather wobbly line, because clause 57 talks about a permanent reduction in the maximum detention period to 14 days, yet, during the rather special circumstances when Parliament is not sitting or has been dissolved, he is prepared to countenance the idea of an emergency arrangement that would produce 28 days. I happen to be in favour of more than 14 days, but is it not the case that, ultimately, the test should be what is in the interests of the security of the nation, and that, if it is good enough to extend 14 days to 28 in such circumstances, it should apply or could apply generally?

[James Brokenshire]

We come back to what I spoke about—the exceptional nature of the powers sought and the point that 14 days should be the norm. Through the new clause, we seek to address the very limited circumstances in which Parliament is not functioning, and we recognise and take on board the Joint Committee’s comments on that. In those circumstances, the Home Secretary and the Government need to be able to act in the national interest to ensure security. For that reason, the emergency order-making power in new clause 13 is limited to periods when the introduction of primary legislation would not be possible—that is, when Parliament is dissolved or before the first Queen’s Speech of the new Parliament.

As we set out in the Government’s response, published last week, to the Joint Committee’s report, we welcome two of the Committee’s further recommendations for increased safeguards, and we have included them in new clause 13. First, applications for any warrant of further detention that would see an individual detained for longer than 14 days may be made only with the personal consent of the Director of Public Prosecutions or the equivalent post holder in Scotland or Northern Ireland. Secondly, whenever an individual is detained for longer than 14 days, their case will be reviewed by the independent reviewer of terrorism legislation, or someone on their behalf, and a report of that review will be sent to the Secretary of State as soon as possible.

Both those changes will also be incorporated in the draft fast-track legislation to increase the maximum length of pre-charge detention to 28 days. New clause 13 and consequential amendments 79 and 80 ensure that there is an effective contingency mechanism for increasing the maximum period of pre-charge detention in the limited period during which Parliament is dissolved. It is right that we should continue to rely on fast-track primary legislation in all other circumstances. On that basis, I commend new clause 13 to the House.

--- Later in debate ---

[Chris Bryant]

New clause 14 makes clear some of the specifics involved. If the Government have things they think should be additional, that debate needs to be had. I suspect that this will not be the end of the matter in this House and that their lordships will want to look very closely at whether there is a better route to achieve the same end.

Nobody is trying to end up in a different place in this regard, but the process of emergency legislation that the Government are using is a mistake. In essence, they have already accepted the principle that there should, in exceptional circumstances, be an additional power. They have accepted that in relation to Dissolution and effectively said that it should be present at other times. The issue is simply about how we make sure that the Secretary of State, if he or she were to have that power, would then be circumscribed by Parliament and by other bodies. Undoubtedly, High Court judges and the Director of Public Prosecutions make decisions that do not allow the Secretary of State to act gratuitously. However, we prefer the route that new clause 14 lays out, and I hope that the Government will think again. I do not expect that we will want to divide the House on this matter, but I hope that their lordships will look at it again.

[Mr Cash]

I will speak briefly because I have already gone through this issue on a number of occasions.

I believe very strongly that if there is a case for extending the period from 14 to 28 days, the Government, by referring to the period in question as merely 14 days and describing it as a permanent reduction in clause 57, and then talking about certain circumstances of an emergency nature that extend it to 28 days, effectively sell the argument down the river. I am trying to look at the principle. In my opinion, 28 days is justified. We have been through the arguments, as the hon. Member for Walsall North (Mr Winnick) said, about whether it should be 42 days or 90 days. Fourteen days can be a very short period, so if there is a case for it being 28 days in certain circumstances, for heaven’s sake let us just accept that 28 days will be used very rarely and only in special circumstances.

Furthermore, to go back to a point that the Minister made, there is the distinct, continuing right of habeas corpus. If a judge thought that somebody was being ill-treated during a period of detention, which is really what this is all about, and he was satisfied by evidence from other sources and an application for habeas corpus, he would go straight down—in Belmarsh, for example, there is a tunnel—and ask to have the person who was being detained produced for him. He would rapidly work out whether that person was being subjected to unfair or unreasonable treatment—we are talking here about the realities of life—and whether he should be given the full benefit of habeas corpus. Habeas corpus means, “You shall have the body,” or, “You shall produce the person.” That, in my judgment, is ultimately what this is all about.

--- Later in debate ---

It was the Committee’s unanimous view that the Secretary of State should be given an executive order-making power to extend the permitted period of detention beyond 14 days up to 28 days. However, it suggested a number of important safeguards, some of which the Minister mentioned. First, the Attorney-General would have to certify that exceptional circumstances applied. We know that making that judgment can be difficult, but it would not just be the Home Secretary who had to make it; the Attorney-General would have to make a similar judgment for the order-making power to be available.

[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.

--- Later in debate ---

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

I beg to move, That the Bill be now read the Third time.

The first responsibility of any Government is to keep the British public safe and free. That means protecting them from crime, terrorism and other threats, but it also means defending our democratic institutions, our liberties and our way of life. This Government are determined to cut crime and reduce the risk of terrorism, at the same time as we restore the freedoms and liberties that define British society.

[Mr Cash]

Will my right hon. Friend be kind enough to give way?

[Mrs May]

I can never resist my hon. Friend, although I give way always with a certain degree of trepidation and a suspicion that one word will always come into his question.

[Mr Cash]

I am grateful to the Home Secretary—and may I congratulate her on her staunch statement at the party conference on the repeal of the Human Rights Act? As she has not yet an opportunity to do so, would she like to reaffirm on the Floor of the House that she would like to see it repealed?

[Mrs May]

I am happy to confirm that to my hon. Friend. At the general election, Conservative Members, of course, stood on a manifesto that promised to do just that. As I have said, we will also bring forward some changes to the immigration rules to ensure what we consider to be the correct balance in the operation of article 8 of the human rights convention.

My hon. Friend the Member for Stone (Mr Cash) was trying to tempt me to go down a road that I know I should not go down any further on Third Reading of this Bill. Let me return to the point I was making about the balance between keeping the public safe and defending our liberties.

For 13 years the previous Administration chipped away at those freedoms and liberties, and in doing so, they did not protect the public. They chipped away at the notion that a person is innocent until proven guilty. Not only did they fail to take the DNA profiles of all of those guilty of a crime; they also provided for the indefinite retention of the DNA profiles of more than 1 million innocent people. They treated more than a quarter of the whole work force—some 11 million people—as potential abusers of children and vulnerable adults, by requiring them to be monitored as part of an overbearing vetting and barring system.

The previous Government chipped away at the right to liberty by seeking to extend the maximum period of pre-charge detention to 42 and even 90 days—until forced by the will of this Parliament to settle for 28 days. They then made 28 days the norm rather than the exception. They chipped away at the historic right of trial by jury; they chipped away at the notion that people should be able to live in safety and security in their own homes by creating hundreds of new powers of entry; and they chipped away at our right to privacy by creating a number of enormous Government databases—the national identity register and ContactPoint being but the worst examples.

The Bill continues the work of this Government in repairing the damage done to our traditional freedoms and historic civil liberties, while at the same time taking a careful and proportionate approach to protecting the public. In adopting the protections of the Scottish model for the national DNA database, it strikes the right balance between protecting our communities and protecting the rights of the innocent. When people are convicted or cautioned for a recordable offence, their DNA and fingerprints will be retained indefinitely, exactly as happens now. In all cases in which DNA and fingerprints are taken on arrest, they will be subject to a speculative search so that past offenders cannot evade justice, exactly as happens now. Under this Government, criminals who leave their DNA at a crime scene will not be able to escape justice if they are arrested again.

Moreover, we are now taking the DNA of all convicted prisoners, including hundreds who were convicted for the most serious offences such as murder and rape. That is something that the last Government failed to do. In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples. When someone is not convicted of an offence, however, there will be strict limits on the period during which that person’s DNA and fingerprints can be retained. That is exactly as it should be: justice is not served, and our communities are not made safer, by the stockpiling of the DNA and fingerprints of hundreds of thousands of innocent people for year after year.

The Bill includes sensible measures to help to maintain public confidence in the use of CCTV and automatic number plate recognition systems. CCTV is a valuable crime-fighting tool, which also helps to reduce the fear of crime—we saw that most recently after the summer’s riots—but it will not be able to continue to deliver such benefits if cameras are perceived to be spying on communities, or if they simply do not work as they should. We saw that most recently in the west midlands, where the installation of CCTV systems without the support of the local community meant that public confidence was lost and the cause of community safety was set back. By providing for a code of practice overseen by a new surveillance camera commissioner, the Bill will help to ensure that CCTV retains public support and therefore continues to be an effective tool in fighting crime.

The Bill also applies much-needed common sense to the criminal records regime and the vetting and barring scheme. Let me make one thing absolutely clear: the protection of children and vulnerable adults is of paramount importance to this Government, and robust systems for employment vetting play a vital part in ensuring that it is provided, but tying up employers and voluntary organisations in red tape and bureaucracy does no one any good. I do not think it is sensible to force some 11 million people to register with a Government agency, and I do not really think—and I doubt that the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) really thinks—that 11 million people should be continually monitored.

There was a real danger that the very scale of the vetting and barring scheme designed by the previous Administration would create a culture of irresponsibility in which employers felt that it was not up to them to protect children or vulnerable adults in their care. Employers must take their responsibilities seriously, and when innocent people are treated like suspects, it is society that suffers.

The Bill has been much improved by the process of scrutiny undertaken by this House. I thank all the members of the Public Bill Committee for their detailed and forensic examination of it, and I thank all Members who contributed to the debates on Report.