Prevention and Suppression of Terrorism
William Cash Excerpts(13 years, 9 months ago)
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James Brokenshire
I know that this issue was of interest to the Home Affairs Committee. As the Minister for Security made clear in her evidence, the normal overnight residence requirement will be for between eight and 10 hours. She has written to the Committee to set out that as at 10 December 2010, the longest curfew under a control order was for 14 hours, which was in place in two cases. Of the remaining curfews, one was for 13 hours, three were for 12 hours, one for 10 hours and one for eight hours. Therefore, at least six of the eight individuals will be confined to their residence for a shorter period than they are currently. The Minister for Security has made that point clear.
It is worth stressing some of the other relevant issues. Forcible relocation to other parts of the country will be ended. Geographical boundaries will be replaced with a power to impose much more tightly defined exclusions from particular places. There will be no power to exclude someone from, for example, an entire London borough. Individuals will have greater freedom of communication, including access to a mobile phone and a home computer with internet access, subject to certain conditions such as providing passwords. They will have greater freedom to associate—for example, there will be no blanket restrictions on visitors or meetings. Individuals will only be prohibited from associating with people who may facilitate terrorism-related activity. They will be free to work and study, subject again to the restrictions necessary to protect the public. These changes will allow the individual to continue to lead a normal life so far as is possible, subject only to the restrictions necessary to prevent or disrupt involvement in terrorism-related activity.
The more limited restrictions that may be imposed may facilitate further investigation, as well as preventing terrorism-related activities. The new regime will also be accompanied by an increase in funding for the police and the Security Service, to enhance their investigative capabilities. The Government intend to bring forward legislation to that effect shortly. The legislation must be properly prepared and properly scrutinised by the House. In the meantime, we are clear that it would be irresponsible to allow the current regime to lapse in the absence of alternative measures and while the investigative capabilities of the law enforcement and security agencies are being developed.
It is important to underline that control orders remain legally viable and although they are, in our judgment, imperfect, they have had some success in protecting the public. We are satisfied that the current control order powers and the order before us today are proportionate and fully compliant with the European convention on human rights, and that, pending the introduction of their replacement, it is essential that these powers continue to be available in order to protect the public.
Mr William Cash (Stone) (Con)
I should like my hon. Friend to take note of the observation made by a former Home Secretary, Charles Clarke:
“The principal responsibility of the judiciary is to justice and to the liberty of the citizen properly carried through, but not to the security of the nation.”
Is my hon. Friend also aware of my Prevention of Terrorism Bill, which I introduced today? The object of the Bill is simply to disapply the Human Rights Act 1998 in respect of these matters in order to ensure that we maintain habeas corpus, due process and fair trial, even in the case of alleged suspects.
James Brokenshire
I am aware that my hon. Friend has introduced a Bill, although it would not strictly apply in the context of this debate on control orders and the new proposals that we are seeking to introduce, given that his Bill applies to provisions allowing for detention. That means that it would not affect these measures, because they do not allow for detention. I note that he has sought to introduce his Bill, but I do not think it is directly relevant to this debate.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to follow the hon. Member for Islington North (Jeremy Corbyn), who has consistently held his views on this issue over many years. I have a lot of sympathy with what he has said. It is also a pleasure to follow the hon. Member for Newark (Patrick Mercer), for whose views I also have much sympathy.
I want to comment on a point made by the hon. Member for Bradford South (Mr Sutcliffe). I know he is an honourable man, but he made an unfortunate comment which I suspect was down to an over-enthusiastic, wet-behind-the-ears political novice who is working in his office at present, who got a quote from the Labour agents’ handbook suggesting that the coalition Government’s proposal is some kind of political stitch-up for the benefit of the Deputy Prime Minister. That was an unfortunate comment, and it demeans the hon. Gentleman, because it has no credibility whatever. To suggest that the coalition Government would put the country’s security at risk is extremely regrettable, and I wish he had not made that remark.
I would prefer it if this debate did not have to take place, but I realise that we cannot allow control orders to lapse without anything in their place. I therefore welcome the fact that this is a temporary renewal, and that, as the Minister said, this will be the last occasion of its kind. We have a very clear milestone—31 December this year—by which the alternative arrangements need to be in place.
Tom Brake
I thank the hon. Gentleman for that intervention, which he has made a number of times over the past couple of days. I certainly agree with him that any process must be heavily based on a judicial process; indeed, that is central to this debate.
It also gives me some reassurance that, where the coalition was able to take immediate action, such as on the 14-day provision, such action was indeed taken. Since this debate last took place, I have met—a couple of months ago—someone who was the subject of a control order that had been quashed. That happened because, eventually, some of the evidence held against this controlee had to be released. One of the apparently most convincing pieces of evidence held against him was that, when he was on the top deck of a bus with his son, he had stood up and turned in such a way that the camera could not see him, and therefore he had clearly been given counter-surveillance training.
That person set out precisely what his experience had been. He was at home when, all of a sudden, a large number of police officers came through the door. He was told, “We are now going to relocate you. No, you can’t call a lawyer. We are going to relocate you to a part of the country you’ve not been to before. That doesn’t matter—that is where you are going.” He was then subject to conditions which meant that going out to work was not a possibility—doing that is not possible for someone who has to be back in their residence perhaps three hours after leaving it. If they live in a place that is already some distance from the town where they work, no sooner have they got there than they have to come back. They can therefore forget working, going to university and so on.
That experience led that person to have a breakdown and to abscond, because he could not take the pressure of the control order he was subjected to. As I said, it was eventually quashed, because when some of the evidence against him was produced, it was considered not terribly convincing.
There was one very regrettable aspect of the review process. The hon. Member for Islington North rightly talked about the other organisations that should be consulted as part of this process. It is very clear that one group of people who were not consulted as part of the process was controlees who subsequently had their control orders quashed. In order to get an appreciation of the effectiveness of this measure, what alternatives could be put in place and whether, psychologically speaking, this is a good way to move people away from terrorism—if that is what they are inclined to pursue—it would have been sensible as part of the review process to sit down and listen to some of these people’s stories. However, that has not happened. That omission needs to be addressed in any ongoing process of examining the new legislation, and I hope it will be.
Whatever the alternative measure is, it clearly has to be a qualitative improvement from a civil liberties perspective—and, indeed, from a security perspective—on what was there before. It has to put the onus on prosecution rather than containment. All too often, as is acknowledged, one of the purposes of control orders is to contain people for long enough for them to lose track of the people whom they had had contact with in the context of terrorist activity, so in many respects it is simply a containment process. People are kept for as long as it takes for them to lose track or lose interest—or, indeed, grow up—and therefore not pursue that line of action. Therefore, the focus was not on trying to prosecute people and that was a mistake. I hope that the proposed terrorism prevention and investigation measures—TPIMs—will ensure that prosecution is very much at the heart of what happens. Lord MacDonald has set out clearly how that process could work and how a limited process of a couple of years could be allowed for such a prosecution to take place, and the Government will need to examine that very carefully.
As has been mentioned, further clarification is needed on curfews. As we know, a curfew does not stop someone doing what they want to do—that is also the view of Lord MacDonald. To replace a curfew with a shorter curfew is not the right course of action. A curfew, be it for 12 or 10 hours, is still a curfew and we need to examine the alternatives. For example, we might need to consider carefully a system where someone nominates a place of residence where they will be and has to give advance notice if they are going to be somewhere else on a particular day or week. We must not simply replace a curfew with a shorter curfew.
As I have stated, the judicial process has to be at the heart of the arrangement. Liberty has produced a useful crib sheet listing what applied under control orders and what will apply under TPIMs. I suspect that Liberty welcomes half the changes, although perhaps feels that more clarification is needed on a quarter of them. For example, control orders are renewed annually, but we need to know whether there will be a renewal process for TPIMs, as opposed to a permanent arrangement. As we have heard, there are question marks over the future of special advocates—perhaps that process could be changed—and, as I have said, we also need more clarification about exactly what is proposed on curfews. On some areas, particularly the judicial nature of the process, Liberty has severe reservations, as do I. I will certainly welcome anything that we can do to move this process into a court-based environment, rather than an Executive one, as will other Members who have spoken in this debate.
Clearly this is a crucial piece of legislation. There is a no alternative for us tonight; we cannot do anything but renew it, and that is entirely the right course of action. We have until the end of the year to flesh out what the alternative will be and to address some of these fundamental civil liberties considerations that require further clarification. I hope that we will see some substantial improvements from a civil liberties perspective, if not tonight, certainly as the draft legislation is developed, so that we can get rid of control orders and replace them with something with which I and others who are concerned about civil liberties will feel comfortable.
Dr Julian Huppert (Cambridge) (LD)
Thank you very much, Mr Speaker, for calling me in this important debate. As we consider control orders and counter-terrorism, it is important to think of the context in which we make these decisions. It is a time of unprecedented flux in the middle east and in north Africa, and what we are seeing there is nothing less than the wholehearted pursuit of liberty. None of us can imagine what it must have been like to be part of the Egyptian revolution in Tahrir square, and none of us has experienced the oppression that Libyan protestors are currently suffering.
All of us are privileged to live in a country where, by and large, freedom has been established and protected for many generations, but it has been clear to many of us for a while that those cherished rights and freedoms have been under attack. The previous Government used the uncertainty created by terrorist atrocities to carry out a widespread squeeze on civil liberties, and they shamefully used fear as a political and electoral weapon. Even their party’s leader, who is not particularly given to making statements about the dubious legacy left to this Government by new Labour, admits that they “seemed too casual” about civil liberties. He has not yet overcome his vagueness and set out a new and generally liberal path, although I hope that he will, and he certainly has not told either shadow Home Secretary whom he has so far appointed.
The coalition Government, however, are making progress—slow but steady progress—in their attempt to regain a better balance between security and liberty, and the counter-terrorism review was an important part of that programme. I am privileged to be a member of the Joint Committee on Human Rights, and I was involved in writing its report on control orders, which I hope Members have read. Along with the Committee, I welcome the review’s conclusion that the current control order regime, which Labour put in place, is too intrusive and fails to demonstrate a commitment to the priority of criminal investigation.
Terrorism prevention and investigation measures are a step forward, and the system is different and better, although it is certainly not perfect, because, as many Members have already said, extra-judicial processes are simply not the right way to proceed. It is a shame that we do not yet have the replacement, and it is a shame of timing that we are not in a position to ditch control orders completely and pass the legislation on TPIMs. That is what I would like, and I have made that point in a number of places in the House. In fact, we should go further. We already have the concept of bail for people who have not yet been convicted of a crime, and that is the model we should use, not the control order regime. I hope that we continue with that thread.
I am concerned about what will happen in the next nine months if we agree to the order tonight. It seems illogical for the Government to ignore their own assessment of the weaknesses of the control order regime, but that is what is happening. A number of points have been made about Lord Macdonald’s suggestion that the Director of Public Prosecutions should have a role in criminal investigation. I hope that the Minister will respond to that point, which others have made, and that he will be asked to look at each current controlee’s case to see what is the right thing to do.
I am also concerned—in timing and in practice—about the Government’s plan to make emergency legislation available for a stricter version of control orders, which would be introduced in an unforeseen emergency. Lord Macdonald described to the Joint Committee how huge such a disaster would have to be, and the Government say that they will share a draft of the legislation only with those on the Opposition Front Bench. That is wrong. The number of Members who are neither in the Government nor part of the Opposition Front Bench, but who would be interested in seeing such legislation, is very high. We would like to see it, and it should be scrutinised.
I find it hard to imagine what the need would be, but, if there ever were a need, I would like to know that Parliament had thought in the fullness of time about how the legislation would work, and had not made a rushed decision after a huge number of bombs had already gone off. I hope the Government will agree to let all Members see the legislation and go through the same process that they are going through for their emergency legislation on 28 days’ detention.
There are a number of concerns about TPIMs in detail, and I have had the privilege of talking to people in the Home Office and raised the matter with the Prime Minister and the Home Secretary. On the measured transition that the Minister described, we know that the review described relocation as too intrusive and inimical to the possibility of prosecution. Will the Minister commit to leaving unused the power for relocation in control orders between now and the new TPIMs regime?
Similarly, can we shorten the curfew periods in control orders as we head towards the new TPIMs regime? I hope that we do not introduce just a shorter curfew. To me, an overnight residence requirement involves a requirement to live somewhere normally, and if I live somewhere normally that means I am typically there between 1 am and 3 am, that I am often there earlier or later, and that sometimes I will get up early and sometimes arrive home late. That, not a shortened curfew, is an ordinary residence requirement.
I hope that the Home Secretary will thoroughly review the current controlees to see how we can bring the regime into line with what we aim for in TPIMs, and as a first step towards getting rid of the whole system. I look forward to the Minister’s comments and hope he will be able to reassure the many of us who wish to see even greater steps away from the abhorrent nature of control orders.
Mr Speaker
Order. Let me point out that I intend to give the Minister a 10-minute winding-up speech, so the hon. Gentleman has a brief opportunity to contribute if he so wishes.
Mr William Cash (Stone) (Con)
I am extremely grateful to you, Mr Speaker, as ever.
Having listened with great interest to hon. Members’ speeches, I think it is perfectly possible to reconcile them all. With reference to the excellent speech by the hon. Member for South Antrim (Dr McCrea), the whole question of the realities of terrorism has to be dealt with in relation to whether people should, as the hon. Member for Islington North (Jeremy Corbyn) suggested, be given a proper trial. That is what I keep insisting on in my interventions, as I did in the debate that took place yesterday. These are the real freedoms. At the same time, I entirely agree with my hon. Friend the Member for Esher and Walton (Mr Raab), who makes extremely valuable contributions to these debates, and my hon. Friend the Member for Newark (Patrick Mercer). I also pay tribute to the hon. Member for Cambridge (Dr Huppert), which may surprise him a little.
All these things can be reconciled if, as the essence of my Bill on the prevention of terrorism proposes, we take out the overhanging shadow of the human rights legislation against which our legislation is constantly being tested. It is simple. We did not have a problem in the days when we ourselves decided on matters such as habeas corpus, fair trial and due process. It is not beyond the wit of our Parliament—in fact, it is the duty of our Parliament—to make proposals that meet all the different requirements. That can be done by sitting down, drafting a Bill, sending it to Committee and coming up with a reconciliation of all those different questions under one simple principle, to which the hon. Member for Islington North rightly referred—that people should be guaranteed the proper justice to which they are entitled when they are confronted with an accusation, whether they are suspected terrorists or serious criminals of a different order.
There may be a public emergency, which can be defined in various ways, in which it is absolutely essential that the Secretary of State, not the courts, should make the decisions, because ultimately the security of the nation has to be prescribed, as Lord Hoffmann clearly stated in a case called Rehman. Following that important judgment he was somewhat criticised by those who want to see a much more relaxed arrangement. National security has to be decided by Secretaries of State not by the judiciary, and once those decisions have been taken, the manner in which the legislation is interpreted by the courts follows.
I leave the argument at that point. We have a review. Let us stick to simple principles. Let us be sure that we give justice even to suspected terrorists, but not at the expense of the security of the state.
Protection of Freedoms Bill
William Cash Excerpts(13 years, 9 months ago)
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The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move, That the Bill be now read a Second time.
Today we have a rare opportunity. The Bill gives us a chance to roll back the creeping intrusion of the state into our everyday lives, and to return individual freedoms to the heart of our legislation. Under the last Government, we saw a steady erosion of traditional British liberties and a slow march towards authoritarian government. They presented us with a false choice between our future security and our historic liberties, disregarding any notion of balance between the two.
The House rejected that choice on many noble occasions, notably when an extraordinary attempt was made to increase the period of pre-charge detention of terrorist suspects to 90 days. On other occasions, illiberal laws were passed, and on yet others, well-intentioned schemes were left open to abuse. The Bill gives us an opportunity to redress the balance and to right some of those wrongs, although it is not the only such opportunity. We have already repealed some measures, and we will repeal others.
Mr Cash
I note that my right hon. Friend did not actually say that she would be happy to do so.
Does my right hon. Friend accept that however good the intentions may be, one of the great problems with the Bill is that it serially adopts, endorses and puts into British legislation European Court rulings, and that that in itself runs counter to the sentiments expressed only a few weeks ago when the House voted against a ruling by the European Court of Human Rights by 222 votes to 15?
Mrs May
My hon. Friend is right, I am afraid; but I almost said I was happy to give way to him. I am not going to rehearse all the arguments we have had on the issue he raises. I am well aware of the vote in the House on the Backbench Business Committee motion on prisoner votes, and the Government have made it absolutely clear that we are not happy about having to give prisoners votes and we will be looking to do so in the most minimal way possible.
The first issue the Bill addresses is DNA. The police national DNA database, established in 1995, has led to a great many criminals being convicted who otherwise would not have been caught, and I am sure all sensible people support it, but in a democracy there must be limits to any such form of police power, and we simply do not accept that innocent people’s DNA should be kept for ever on a database, as the last Government seemed to think was appropriate. Storing indefinitely the DNA and fingerprints of more than 1 million innocent people undermines public trust in policing and goes against any sense of natural justice, so we will be taking innocent people off the DNA database and putting guilty people on.
The Bill introduces a new regime, whereby retention periods depend on a number of different factors, including the age of the individual concerned, the seriousness of the offence or alleged offence, whether they have been convicted, and, for under-18s, whether it is a first conviction. So in future, as now, an adult who is convicted or cautioned will have their fingerprints and DNA profile retained indefinitely, and we will take steps to plug the inexcusable gaps in the DNA database where the profiles of those who have previously been convicted of a serious offence are not currently included on the database.
Mrs May
I am grateful to my right hon. Friend for his intervention and I absolutely agree with him. We will provide three order-making powers in the Bill to allow the repeal of unnecessary powers of entry, the addition of safeguards and the rewriting of powers of entry with a view to consolidating a number of powers in a similar area coupled with the inclusion of extra safeguards. Within two years of Royal Assent, the Government will be required to carry out a review of all existing powers of entry and to report the findings to Parliament. Provision will also be made for a code of practice for powers of entry, adding further protections for home owners.
Mr Cash
Will my right hon. Friend note that the Library research paper on the Bill indicates that a third of all powers of entry are based on EU requirements? Will she explain why and how she is going to repeal the provisions that are entrenched in our legislation through the European Communities Act 1972? What formula will she use—will it be the “notwithstanding” formula?
Mrs May
When I gave way to my hon. Friend, I almost said I had a deep suspicion that I knew what he was going to say, and I was absolutely right. Of course we will not be able to get rid of all powers of entry, nor would that be appropriate. It will be appropriate to keep some, and with others we will need to look at the implementation of a request or desire to gain entry in relation to what is at stake, what is the most appropriate use of power and how that power should be used. The process will take some time, but it is essential that the Government are committed to reducing the number of powers of entry, whereas the previous Government oversaw a significant increase in that number.
Yvette Cooper
My hon. Friend makes a really important point that goes to the heart of the problem. The reason for emergency legislation through primary legislation to change those powers is, in theory, to give Parliament the chance to scrutinise, debate and decide whether the action is reasonable. In practice, however, it is very hard to see how Parliament will be able to discuss the detail at all without being at serious risk of prejudicing a potentially dangerous investigation and important case, which we would all want to see go properly through the courts, with the proper judicial process followed.
That is why I say to the Home Secretary that it seems sensible to explore whether there are alternatives, such as bail conditions and other procedures with a judicial process, that might be used in such extreme circumstances. We all hope that the circumstances do not arise, but those alternatives would reduce our need to use emergency legislation.
Mr Cash
Has it occurred to the right hon. Lady or, indeed, to those on the Government Front Bench that we have habeas corpus, and that in such conditions it is the first duty of any judge to give effect to that provision? It does not matter what statute says; habeas corpus comes first, unless it has been expressly excluded by statute.
Yvette Cooper
The hon. Gentleman has considerable legal expertise, and I shall not attempt to get into a detailed debate about that point, but the critical issue is the complicated interaction between not only the work of the police and the role of Parliament, but the necessary role of the judiciary, and the alternatives merit more thoughtful debate, so that we do not prejudice individual cases or put the House in a difficult position.
Yvette Cooper
My hon. Friend is right. Some cases of very distressing abuse have taken place involving vulnerable adults, and it is important that they, too, should have protection against that. The key is to ensure that if one authority or organisation knows that somebody has a history of abuse, that person should not be allowed to work again in a position where they may put vulnerable adults or children at risk in a way that other authorities, or the families, were not aware of, and which might lead to harm.
I want finally to turn to DNA, which is another area where we believe that the Government are going too far. My right hon. Friend the Member for Kingston upon Hull West and Hessle had already legislated for safeguards on DNA use, including a six-year limit on retention for those who were not convicted. He based those safeguards on analysis of reoffending rates and the benefits in terms of preventing and solving crimes. The Government have decided to reject those safeguards and to go much further in restricting the use of DNA, but not on the basis of evidence. Some people object, as a matter of principle, to DNA being held at all if the person has not been convicted. I do not agree with that, but neither does the Home Secretary. She claimed that nobody’s DNA should be kept at all if they were innocent, but that is not what the proposals in her Bill achieve. Rightly, she recognises that there must be a balance that supports the needs to prevent crime and to ensure that crimes are solved. A balance needs to be struck, but she is not striking the right one. The changes go too far in restricting the use of DNA and will make it harder for the police to solve and prevent serious crimes.
This is a particular problem in rape cases. As the Home Secretary knows, rape cases not only have a notoriously low conviction rate, but a notoriously low charge rate. That is because the trauma for the victim is so great and because of problems with evidence. Many perpetrators of serious sexual crimes are not brought to justice for their first offence. In about 70% of cases in which a rape suspect is arrested, there is no charge. According to Home Office papers, in cases where there is no charge, DNA will be kept only in very limited circumstances, so in most of these cases the DNA will be destroyed, even though it might be critical in catching a repeat offender for a nasty and violent sexual offence.
The Home Secretary will know that a considerable number of cases have been solved because of DNA. Kensley Larrier was arrested in 2002 for the possession of an offensive weapon. The case never reached court, but two years later he raped someone and was found because of a DNA match. Lee and Stephen Ainsby raped and kidnapped a 17-year-old girl in Barnsley. A match with Lee Ainsby’s DNA was found years later in a case review. It had been taken because he had been arrested for being drunk and disorderly. Under the Home Secretary’s system, his DNA would not have been kept. Without that DNA, those two men would still be free, and justice for that young girl would not have been done. Abdul Azad was arrested for violent disorder in Birmingham in February 2005, but released without charge, according to the Forensic Science Service. In July 2005, he raped somebody in Stafford and was identified only because the police had his DNA. The senior investigating officer for the case said:
“We would never have caught him had his DNA not already been on the database—he didn’t even live locally so we had no intelligence leads either.”
Case after case would have been much harder for the police to solve under the Home Secretary’s new rules. Yes, she has an obligation to ensure that individuals are protected from unjustified interference, but she also has an obligation to protect people from crime and to deliver justice for the victims of horrific crimes.
Mr Cash
I am sure that the right hon. Lady will appreciate, given the importance of this debate, that many of the points that she has made about those cases derive from European rulings and the European convention on human rights. The problem with almost everything she has said is that it was her Government who were responsible for bringing in and endorsing many of these provisions, including through the Human Rights Act 1998. Does she not accept that there is a dilemma, which has to be resolved in Committee, about whether we should go down the human rights route and follow article 8 or legislate in this House to ensure that we achieve justice for the people concerned?
Yvette Cooper
The Crime and Security Act 2010, which was passed before the election, addressed many of those issues and concerns. A wider discussion, which we will not stray into, is about whether one of the benefits of the Human Rights Act is that it refers issues back to Parliament and allows it to respond.
Mr Edward Leigh (Gainsborough) (Con)
I welcome the Bill. How could one not support clamping down on the wheel clampers? Some of my constituents have had terrible experiences at their hands.
Although I listened carefully to the shadow Home Secretary’s arguments, and although she made some fair points about DNA, one cannot, on civil liberties grounds, oppose removing the DNA of innocent people from the DNA database. It is a fundamental principle of British law that when people are found innocent by the courts, they are innocent.
My speech will be rather like the speeches that we used to have at Conservative party conferences, which said that the motion was fine, but did not go nearly far enough. Much of the Bill is, frankly, pretty unexceptional. Compared with the Deputy Prime Minister’s rhetoric last year about bringing in a Bill to
“protect our hard won liberties”
much of it is a bit tame. What happened, I wonder, to the 14,000 ideas that were suggested by members of the public via the “Your Freedom” consultation? It is like a scene from “Yes Minister”. An enthusiastic new Minister says, “I want to have a Freedom Bill,” and 14,000 replies come in. One can imagine Sir Humphrey, in his most mellifluous tone, advising the Minister that freedom can be a very incendiary device when it comes to Government.
I suggest that the Bill should go further, and I hope that I will get support not only from those on the Government Benches, but from Opposition Members. The Leader of the Opposition has admitted that Labour was
“too draconian on aspects of our civil liberties”.
Where can we go further? I am particularly worried about freedom of speech. I believe that political speech and debate, even in this place, are becoming very bland. There is a chilling effect on free speech, because people are discouraged from expressing unpopular opinions that do not fit with the winds of political fashion. Did not George Orwell once say:
“Freedom is the right to tell people what they do not want to hear”?
I would add that the right to speak against received wisdom is the only way to make social progress, as I hope many Opposition Members would agree. We have to protect the ability to express widely differing opinions in strong terms in the public square.
One reason why I was worried about the Phil Woolas case, as I said at the time on the Floor of the House, is that if someone has a British National party candidate standing against them, for example, they have to be able to denounce them for what they are without fearing legal sanctions. We have a more and more active and activist judiciary, not just in the Supreme Court and the lower courts but in the European Court of Human Rights. Again, that has a somewhat chilling effect. We should examine some of the debates that there used to be during general elections, certainly 100 years ago but even 50 or 40 years ago. They were a lot more robust than they are now.
With that in mind, and in the spirit of warm and cosy friendship with my Liberal Democrat friends, I wish to try to persuade the Home Secretary to give some thought to adopting a Liberal Democrat proposal for inclusion in the Bill. It was made by Dr Evan Harris, who at the time was the Member for Oxford West and Abingdon. May I say how much we all miss him? Although I disagreed with him on virtually everything, he was a kind of foil to some of my arguments. In March 2009, he tabled an interesting proposal to amend the Public Order Act 1986. He wanted to delete the word “insulting” from section 5, because he was concerned that that section was being used to trample on free speech. As I have said, I did not agree with a lot of what he said, but I did agree with that.
Mr Straw
I will deal with each of those measures in turn, and then come to the contents of the Bill. I will run through them in the order they appear in my notes. On surveillance measures, the Regulation of Investigatory Powers Act 2000 was introduced, again by me, to do what it says in the title—to regulate investigatory powers. My predecessor, now Lord Howard, had started that regulation. Before 1996, there was no regulation of those powers, and the most extraordinary situation obtained inside the police. They suited themselves whether to put microphones in walls. They had guidelines from the Association of Chief Police Officers, but there was no statutory supervision or proper regulation, and no account was taken of the equipment used. That was improved, to some extent, by my predecessor, and then comprehensively by RIPA. However, I accept that the provisions in RIPA have been used by local authorities, in respect of minor offences, in a way that was never intended, so I support the change proposed in the Bill.
I also support the change on wheel-clamping. I will have to look at some of the detail, but like my right hon. Friend the shadow Home Secretary I strongly celebrate the campaign by my right hon. Friend the Member for Doncaster Central (Ms Winterton), who has been promoted partly because of this and has now had to take Trappist vows as Opposition Chief Whip. I also strongly support a campaign that my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) began on the elimination of all convictions involving consensual relations with gay men.
The hon. Member for Carshalton and Wallington (Tom Brake) asked me about counter-terrorism powers. Although we did not get everything right, the introduction of those powers needs to be seen in context. The Terrorism Act 2000 was approved by the House—I cannot remember where the Liberal Democrats were, but I remember that the Conservatives supported it. However, section 44 was intended to be used in a much narrower way than has been the case, so I have no objection to its effective redefinition in the Bill.
We got it wrong on 90 days—I am perfectly happy to say that—but it must be seen in the context of what happened on 11 September 2001. People were terrified, and the first responsibility of any Government is to secure the most fundamental liberty—the right to life. Of course, we still needed to have a balance, and we sought one, but we did not quite get it right. I am perfectly happy to say that. I simply say to the hon. Gentleman, however, that although the prescription in the Bill of 14 days is fine as a standard, the contortions in the Bill and in draft legislation that would provide for a reserve power of 28 days will prove impractical. The reserve power, which we all agree ought to be there, has to be used in circumstances in which it is virtually impossible for the Home Secretary to disclose the details. The full-scale parliamentary legislative process that would follow a recall of Parliament—you can bet your life that that is how it would happen, because that is how terrorists operate—would be the most extraordinary and mocking ever seen: the Home Secretary would have to come to the House and say, “I want this legislation to double the period of maximum detention, but I can’t tell you why.” It would be far better, in those circumstances, to say, “Here is a power for the Secretary of State for which he or she will be accountable in due time.” Given that he or she is the only individual in possession of all the information that should trigger this power, the responsibility for triggering it should rest with the Secretary of State by way of a special order.
Mr Cash
Will the right hon. Gentleman, to whom I am listening carefully, seek, as a former Home Secretary, to answer the question I put to the shadow Home Secretary regarding habeas corpus? I also asked Charles Clarke, another former Home Secretary, whether habeas corpus would survive these provisions. I never got a satisfactory answer. Does the right hon. Gentleman accept that these provisions do affect habeas corpus, but that, as I insist in my Bill, which comes out tomorrow, habeas corpus is absolute and must apply in all terrorism cases?
Mr Straw
I do not want to get drawn too far down this road, but the hon. Gentleman will know that until the Police and Criminal Evidence Act 1984 and the recommendations of the royal commission that preceded it, there was no statutory regulation of the length of time for which, or the circumstances in which, the police could hold a suspect. It is extraordinary, if we think about it. There were judges’ rules, which were non-statutory, and the only effective check on an arbitrary use of power—apart from practice—was habeas corpus. If somebody was locked up for too long, his solicitor or friends would threaten a writ of habeas corpus. That was how it worked, and I would refer those who think that those were halcyon days for criminal justice to the 2010 Judicial Studies Board lecture in which the current Lord Chief Justice, Lord Judge, reflected on his time as a junior at the Bar and on how that non-statutory system of regulation led—as I saw when I was a young barrister in the 1970s—to fitting up, to words being put into criminals’ mouths and sometimes to very substantial and totally unacceptable physical pressure and violence against suspects. Of course, one consequence was that confession statements were often successfully challenged. Habeas corpus is one part of the law, but where there is more recent statute, the courts will go to that first.
Let me turn now to other matters in the Bill about which I have some serious reservations. As the Member of Parliament for Blackburn, I have had many representations about closed circuit television. I do not know whether my experience is any different from that of anyone else in the Chamber, but all the representations I have received about closed circuit television have been requests from constituents to introduce more of it. In the whole of my 32 years in this House, I have never had a single representation seeking the removal of CCTV monitors. Not one. The demand is there because it makes people feel safe, and I bet that this experience is shared across the Chamber. I cannot remember an occasion as Home Secretary when I received any representations suggesting that the existing system, which we should bear in mind is subject to control under data protection and other measures, was unsatisfactory.
Mr William Cash (Stone) (Con)
I fear that the “Protection of Freedoms Bill” is not really what it says on the tin. People might think that the Bill protects freedom, but I am afraid to say that it does many things that are not apparent in its provisions. In particular, one of the greatest freedoms we need to protect is the right to decide our own laws and, indeed, to ensure that the judiciary complies with the will of Parliament. Unfortunately, on close examination, I found that the Bill’s content is to do with the upholding of European Court rulings. That is where the problem lies, and I fear that some hon. Members may have missed the wood for the trees. This is entitled the Protection of Freedoms Bill, but it would be far better to describe it as the “Subjection to European Rulings Bill”, as one case after another simply endorses decisions taken by the European Court. By that, I mean the European Court of Human Rights in particular.
We recently debated the rights of prisoners to vote, and the result of the Division on the motion was 222 to 15. Unfortunately, I could not be here. I am sorry to have to admit this, but I was working as Chairman of my Select Committee in Budapest. However, I thoroughly endorse what was said in the course of that debate on prisoners’ votes, but there is no reference to prisoners’ votes in the Bill. The Bill has skipped that one; it is waiting for another occasion. The reason is quite simple: the coalition Government know that idea of including prisoners’ votes as one of the freedoms in this Bill would be catastrophic for them. That is not to say that we should endorse the Bill’s reference to other European Court rulings contained in the provisions, but not set out in the Bill. Unless hon. Members have read much of the background material and case law, it is impossible for them to know exactly how much this Bill offends the principle endorsed by this House by 222 votes to 15.
Let me provide some examples. Given that we have only recently come back after a recess, I doubt whether people have had a chance to read the Home Office memorandum on the Bill, and some may be more interested in its detail than others. I find that detail often throws up one or two of the unfortunate aspects of the manner in which Governments—and the coalition Government in particular—operate. The memorandum says:
“This is a human rights enhancing Bill.”
No, it is not; it is a European Court of Human Rights enhancing Bill. I refer to cases such as the S. and Marper case which related to the retention of fingerprints and biometric data. I would like to see such matters properly dealt with in legislation, and the same applies to the stop-and-search provisions, to which the Gillan and Quinton case relates. Why can we not legislate on our terms in this House? Why must we subject the House to legislating to implement the rulings of the European Court of Human Rights, when we have no reason whatever for not legislating on our terms? Putting it in statute form means that the matter goes to our courts for an interpretation of that legislation. Then, in the interpretation of the legislation, our own courts, either at first instance or more likely in the Supreme Court, apply the European jurisprudence.
I remind the House of a point that I have tried to make in debates over a long period and of a speech by the Lord Chief Justice, Lord Judge, who said that we must beware of the manner in which our legislation is being subjugated to Strasbourg decisions. He warned the judges, “Brothers and sisters, beware of applying the decisions of the Strasbourg court.” [Laughter.] Brothers and sisters, comrades!
The manner in which the implementation will happen is a form of Trojan horse. I would want to see many of the problems that the Bill raises dealt with by legislation, to ensure that people were not unfairly stopped and searched or that children got the proper protection. However, it should not be done through this vehicle. By not eliminating the European convention on human rights and the Human Rights Act formula, we give ourselves over increasingly to the Europeanisation of our law-making and the judicial claims made in the Supreme Court at the expense of the House. Effectively, we are digging our own grave.
At the same time, I hear and read that the Government are becoming more “Eurosceptic”—I do not know what that word means; Eurorealist is much more to the point.
Ms Louise Bagshawe (Corby) (Con)
Is my hon. Friend not in danger slightly of over-egging the pudding? I share many of his concerns about European law, but does the Bill not attempt to address some domestic injustices, and should we not support such a step in the right direction?
Mr Cash
As I said, I am extremely glad that many of the provisions are being dealt with, as they needed to be dealt with—but not in this manner. Notwithstanding the Human Rights Act, if it was done as my Bill on terrorism will provide, for example, we could preserve habeas corpus and avoid all the difficulties that have arisen in relation to control orders and pre-charge detentions, on our terms. That is the way we should be going, but that is for another day.
The Bill takes us in the wrong direction. As I said in an intervention on the Home Secretary about powers of entry, the Library note states that
“around one third of these powers of entry derive from regulations made under the European Communities Act 1972.”
The Home Secretary said it was important for us to get rid of many of the 1,272 powers of entry, but, as I pointed out to her then, it is essential for us to get rid of the regulations made under the European Communities Act 1972 as well. I think she would have accepted that, had it not been for the existence of a rather considerable problem: we cannot get rid of the regulations made under the 1972 Act without expressly providing in the legislation that, notwithstanding the Act, we should act in that way. There is an element of what I would not describe as hypocrisy, but would certainly describe as contradiction, in the principle behind the Bill.
I could give many other instances of overlap with the European Court of Human Rights, but I shall merely observe that I think it extremely unfortunate that this is being sold as the Protection of Freedoms Bill when, for practical purposes, it is taking us further and deeper into European integration. I say that without really wanting to have to say it. It would be easy to step back and say, as my hon. Friend the Member for Corby (Ms Bagshawe) said just now, that it does some good. Indeed, I have heard many Members say that there is a great deal of good in it. However, as I said to the Home Secretary earlier, although there may be good intentions behind it, we must ask ourselves what kind of law we want in this country.
When the Supreme Court speaks of the rule of law, I ask yet again: which law, and who will enforce it? We already know that there are serious problems, but here is another one. In one of the cases in question, after the House of Lords had made its judgment the Supreme Court was brought in, and, because the European Court of Human Rights had made a decision in the meantime, decided to endorse that decision rather than the decision made by our own courts. Some very difficult questions arise. There seems to be an increasing tendency for the Supreme Court to assent to the manner in which the European Court of Human Rights makes its decisions, effectively moving into a new arena in which what Parliament may decide is overridden, and making decisions that are not necessarily what the electorate expected when they elected us as Members of Parliament.
Let me also mention, in parenthesis, the accession of the European Union to the European convention on human rights. As I discussed the issue during our debates on the European Union Bill, I shall not go over the territory again, save to say that it creates a great deal of uncertainty about which of the jurisdictions will prevail. I regret to say that I believe that what is happening in the Bill is not what was expected to happen. Some commentators may misunderstand it, but the truth is that if we do not get the principle right—the principle of who rules—we will find ourselves drawn increasingly into a web that is growing all the time, involving the sovereignty of the House and decision making.
I believe that this is entirely deliberate. I am absolutely certain that the Home Secretary has been properly briefed. I think that she knows exactly what is in her Bill. I think that she wants it, I think that she is determined to have it, and I think that the coalition is completely and utterly convinced of its merits. Indeed, the Home Secretary said the following in a statement on the judgment in the Gillan and Quinton case:
“The Government cannot appeal this judgment, although we would not have done so had we been able.”—[Official Report, 8 July 2010; Vol. 513, c. 540.]
This is therefore about an attitude of mind: it is about there being a determination to go down a certain route, irrespective of the consequences for how we in this House legislate. I therefore simply say that I think there are many good reasons for adapting some of the provisions that are currently on the statute book, but the key is how we do it. The crucial point is that if we do it the wrong way, all we will end up doing is reducing the right of this House to legislate for itself.
Proposed Directive (Information Systems)
William Cash Excerpts(13 years, 10 months ago)
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Mr Deputy Speaker (Mr Nigel Evans)
Order. Owing to the pressure on time, please could we have short questions and short answers?
Mr William Cash (Stone) (Con)
The Minister may not be surprised to hear that, as Chair of the European Scrutiny Committee, I do not agree with his assertion that this has been done in accordance with due process. The former Leader of the House of Lords gave an undertaking that, in matters of opt-ins, an indication would be given to the Committee in advance of their intention. That indication has not been given. The draft is still under scrutiny and is currently deficient, as the Minister has conceded. What is the point of having a scrutiny process if it is compromised by decisions taken in advance of that consideration in full by the Committee, which would no doubt have recommended a debate?
Counter-terrorism Review
William Cash Excerpts(13 years, 10 months ago)
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Mrs May
It has been clear from the responses to my statement that there are differing views across the House. We all want to see terrorists investigated, prosecuted and brought to judgment. As I said, the best place for a terrorist is in a prison cell. We want to make every effort to ensure that the processes of investigation and prosecution can be successful, but in a small number of cases prosecution has not been possible and deportation is not possible, so the Government need to act in order to protect the public.
Mr William Cash (Stone) (Con)
There is no freedom without security, so would the Home Secretary consider changing the proposed Bill’s title from the protection of freedom Bill to the security and freedom Bill? The Lord Chief Justice and many others have highlighted the problem that the principles of habeas corpus, due process and fair trial have been significantly hijacked by human rights legislation and judicial interpretation, which have taken us significantly in the wrong direction.
European Investigation Order
William Cash Excerpts(14 years, 4 months ago)
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Mr Speaker
Order. Many Members wish to ask questions, and as I said before, there is great pressure on business, so brevity is required. Hopeful of a lead on that point, I call Mr William Cash.
Mr William Cash (Stone) (Con)
I am deeply concerned that the EIO has not been considered by the European Scrutiny Committee, which was formally set up last night, and nor have many other important matters. The legal basis is qualified majority voting, co-decision and the European Court of Justice under the Lisbon treaty. Will the Secretary of State confirm that the EIO applies to all investigative measures, and that it gives undue rights to police officers from other European countries to order our police to gather sensitive personal information —and, furthermore, DNA and banking records—in relation to non-criminal matters, and from those who are not even suspects? The grounds for refusing an EIO request are totally inadequate, and I am sure that the ESC will demand a debate and call evidence, but regrettably, it cannot do so until 8 September, because it has not been called to sit until then.
Mrs May
I must tell my hon. Friend that decisions on when the ESC meets are rather more a matter for him—as I understand it, he is the Chair of that Committee—than for me. However, I share some of his concern. As he and other Members of the House will know, I have written a pamphlet and proposed a 10-point plan on how Parliament can have more of an opportunity to have a say on, and to debate, decisions on European matters.
The instrument came before the Government on 29 April with a three-month deadline for decision. Of course, that period was partly taken up by the election, and the ESC was formed only last night, as my hon. Friend said. In the normal course of events in Parliament, the ESC could suggest the matter for debate. On that point, it is certainly my hope that when the Government propose to opt in on a major JHA issue, Parliament can consider it. However, I hesitate to give more of a guarantee than that, because what happens in Parliament is a matter for the business managers rather than for me. On the powers that my hon. Friend claims the EIO gives to foreign police forces and others, I must tell him that I think he is wrong.
Prevention and Suppression of Terrorism
William Cash Excerpts(14 years, 5 months ago)
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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.
Counter-terrorism and Security Powers
William Cash Excerpts(14 years, 5 months ago)
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Mrs May
I thank the hon. Gentleman for focusing on that issue. He asked me to ensure that there were no deportations during the review—a rather wide commitment —but the purpose of his question was to focus on deportations with assurances. Of course, the issue arises because we have had a number of cases here in the UK where individuals have been identified as posing a terrorist threat to the UK, but because of the legal interpretations of our duties and requirements under the European convention on human rights, it has not been felt possible to deport those individuals to certain countries. We wish to continue to work with a number of other countries to ensure that it will be possible to deport people with assurances that they will not be subject to torture.
Mr William Cash (Stone) (Con)
On the point that the Home Secretary has just made about legal interpretation, has she taken note of the fact that many senior members of the judiciary, including the Lord Chief Justice, have raised serious concerns relating to the manner in which the convention on human rights has been interpreted by the Court in Strasbourg and that, for practical purposes, the balance between protecting civil liberties on the one hand and the security of the people on the other must be maintained? Therefore, the review is welcome, but she must take into account the fact that many senior members of the judiciary do not regard this as xenophobic legal nonsense.
Mrs May
I am happy to take into account the fact that many members of the judiciary have different views on the issues that we will review. Of course, as I said earlier, we aim to get the right balance between ensuring that we can protect members of the public and ensuring our national security, while maintaining our civil liberties.