Counter-Terrorism Bill Speech

Speech delivered on Tue 1st Apr 2008

I shall set out what we welcome in the Bill, as well as what we deplore in it. There are good and bad things in what Ministers have brought forward. The good things include the use of intercept evidence in limited cases-in our view, too limited-and the ability to question people after charge, again in a limited and incipient form. Those are innovations with the potential to help substantially the attack on terrorism, particularly if combined with the benefits of greater flexibility in the decision to charge already being exercised by the Director of Public Prosecutions, as we have heard. It is the innovations in law, together with the innovations in practice through the variation in the test applied by the DPP, which make the bad elements of the Bill both redundant and harder to understand.

Most of my speech will be taken up with attempting to meet the various arguments advanced by the Home Secretary to justify the further extension of the period of detention without charge. We on the Liberal Benches will fight tooth and nail against these provisions, which we believe will prove to be a serious erosion of hard-won freedoms. Just as crucially, the measures will prove to be counter-productive, as we have heard from the hon. Member for Foyle. Effective policing depends on intelligence, and successful conviction depends on evidence and witnesses. These provisions will ineluctably undermine both.

Nor are we persuaded of the need to abandon juries in coroners' courts or to give the Secretary of State extraordinary powers to appoint special coroners. That may seem a minor matter, but it is far from being so. Coroners' courts were one of the first and most fundamental bulwarks against the abuse by the state of its monopoly of the legal use of force.

We will seek to amend the Bill in Committee before we agree to sacrifice the good elements to get rid of the ugly ones, but there should be no doubt that if we on the Liberal Benches fail to exclude in Committee the provisions for an extension of detention without charge, we will vote against the Bill as a whole. The ugly parts, in their impact and their risks, substantially overwhelm the welcome parts.

It is already possible for someone to be held for four weeks without their knowing what they are charged with or being able to prepare any defence. To extend that to six weeks-a 50 per cent. increase-is deeply intrusive into hard-won civil liberties. Anyone present could, as a result of mistaken identity-there are many such cases on record-be held for six weeks in such a way. Any innocent citizen going about their normal life could be subject to a police and security services mistake.

That has already happened, with three people held for nearly the maximum period under existing law and then released without charge. It was also the case with 23-year-old Mohammed Abdul Kahar and 20-year-old Abul Koyair, after a raid on their home in Forest Gate, London, during which Mr. Kahar was shot in the shoulder. Both were later released without charge. Six Pakistani men were arrested at Gatwick on suspicion of terrorism in January this year, but were later released when it emerged they were all relatives of a key aide of General Musharraf. Mistakes are human. As we have heard from Opposition Members, it is certainly possible for the security services to make serious errors. I make no assumption that the errors are malicious; it is simply in the nature of being human that mistakes are made.

As David Davis pointed out, a mistake with terrible consequences was made in the extradition case of Lotfi Raissi, who spent five months in Belmarsh, accused of being a ringleader in the 9/11 attacks on the twin towers. The Algerian pilot suffered extraordinary stress, the loss of his job, blacklisting which denied him his right to fly, and the breakdown of his marriage. The only question now is whether he is entitled to compensation. An even more serious mistake was made by the police in the case of Jean Charles de Menezes. I make this point again merely to remind the House that the law exists to protect the weak, and mistakes can and do happen that can prove devastating for those involved. The incarceration of an innocent person for six weeks is not a matter to be taken lightly.

The Home Secretary argued that the extension may be necessary because of the complexity of information technology, and the sheer scale of evidence and encryption. The point on encryption was devastatingly dealt with by Mr. Marshall-Andrews, when he pointed out that someone can be charged on this count alone under part III of the Regulation of Investigatory Powers Act 2000, section 49 of which makes it an offence not to disclose a key to protected information. The maximum penalty-even if we do not go down the contempt of court road that he suggested-is two years' imprisonment, during which time other offences could certainly be investigated.

For the sake of the argument, however, let us assume that the material can be read. The Home Secretary has also argued that cases are becoming extraordinarily complex. In one recent case that she mentioned, there were three terabytes of evidence on computer-the equivalent of a library a third the size of the US Library of Congress or more than 10 million books. This point is a boomerang for the Government, because an extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed as the Home Secretary implies. Indeed, if it were necessary to read material equivalent to a third of the US Library of Congress within the proposed legal limit of 42 days, I calculate that that would require 238,095 police officers working eight-hour shifts. That is all the police officers in this country, plus 100,000 on loan from a friendly neighbour.

Curiously, even though other countries are faced with similar threats, none of those whose system of law is most directly comparable with ours has chosen to extend the period of detention to anything like the current 28 days, let alone 42. It is true that Canada alone clings to the traditional habeas corpus, with a period of detention without charge of just one day-due, no doubt, to the influence of our sister party over many years.

The United States and two other common law jurisdictions-South Africa and New Zealand-have extended the period to two days. Ireland has seven days-as, indeed, we had in extremis when we were fighting the more deadly threat in sheer numbers of republican terrorism. Only in Australia has the period of detention been extended to 12 days, but it is still less than half the period under our own current legislation, let alone under what is proposed. Also, there are specific reasons for doing that in Australia, as the law has significant restrictions on questioning, including time restrictions.

Are all these countries that are so comparable to our own country in their legal traditions so wrong? Are the threats that we face so unique that they require us to abandon our historical safeguards against the abuse of state power? The Liberal Democrats are not persuaded.

Moreover, there is a real risk that these provisions will prove to be wholly counter-productive in the prosecution of terror. Effective policing always requires the co-operation of the policed, without which intelligence is almost impossible to glean. Where will the willing informers be if the British state is seen to have declared war on a minority community? Prosecution requires witnesses to give evidence, but will the witnesses be forthcoming if their families and friends feel that they are aiding and abetting a state that is using disproportionate and discriminatory powers?

These are not idle worries. The Home Affairs Committee has stated:

"Extended pre-charge detention carries the danger, which should not be underestimated, of antagonising many who currently recognise the need for cooperating with the police".

The Equality and Human Rights Commission astonishingly warned yesterday that if this legislation went through, it might take the Government to court. It also stated:

"In relation to the principle of non-discrimination, the Commission is concerned as to the potentially adverse impact the proposals will have on Muslim and other ethnic minority communities and on community relations more generally."

It continued:

"The Commission believes, if the Bill becomes law, this will present difficulties for policing 'with consent' and for the prevention and detection of terrorist offences where co-operation and public confidence in the police service is an important consideration."

Having heard what the hon. Member for Foyle has had to say, I do not seek to draw an exact parallel between the proposals in the Bill and what happened when internment was imposed in Northern Ireland on 9 August 1971. Internment is still the most dreadful warning of what can happen when a civilised and democratic state is seen by a large part of its own community to have stooped to the methods it abhors. Internment triggered a deluge of violence, leading to 25 deaths within the month. The remaining trust, eroded as it had been, between the Catholic community in Northern Ireland and the security services was destroyed, and the chance of winning hearts and minds had gone for ever. It was arguably the point at which the British state could no longer win the peace. That was ultimately recognised with the end of internment in December 1975.

I should say something at this point about the much-vaunted parliamentary safeguards suggested by the Home Secretary. We are told that this would not be an automatic extension of the period of detention without charge, because Parliament would have to debate the matter. However, the proposals only guarantee that any parliamentary debate would be held 16 days after the maximum length of time that a suspect could be held. By that time, either the suspect would be charged, in which case any debate would be dealing with a matter that was sub judice, or they would have been released without charge, in which case the debate would be academic.

I wish to finish discussing this issue by pointing out that, in effect, it would be parliamentary scrutiny of an Executive decision undertaken entirely after the event and without any capacity to influence that decision. If we vote for these provisions, let no-one here pretend that we have done other than extend the period of detention without charge. There will be no vote before the fact-we will not even have the ability to oppose a statutory instrument.

Some have suggested that the period before parliamentary approval should be shortened, perhaps to a week or 10 days. That would improve the provision's appearance, but the reality would remain fatally flawed. Why? Because we are dealing with a fatal mixing of the legislative and the judicial. If there is to be a debate on whether to extend detention while someone is being so detained, it is surely dangerous for us to look at the matter. What are the Government to say? They are bound to want to give details of the case in a prejudicial manner, noting the extreme seriousness of the circumstances and so forth. Alternatively, Ministers will clam up and say, "Trust us, but we cannot tell you anything." Debate will either be constitutionally outrageous or a pointless impossibility. Parliament should make the law, and not get involved in individual cases.

Ministers are entitled to ask what alternatives we would suggest in the face of a heightened threat. The Bill itself makes a good start on doing that, and I hope that we can build on that in Committee. First, the Bill contains the suggestion that intercept evidence would be used only in cases of asset freezing, but it does not go far enough. Such evidence should be admissible in all cases. That would give the prosecution the option to use it, even if it does not want to go ahead for reasons of avoiding disclosure and compromising techniques and sources.

It should be possible to continue questioning someone after they have been charged with an offence and not merely, as the Bill proposes, on that particular offence or on terrorist offences, but potentially on others related to it. That would allow an escalation of charges as evidence is assessed and accumulated. Equally, proper safeguards of the sort set out by the Joint Committee on Human Rights must be in place, and those are not contained in this Bill as they should be. I am thinking about video recording, the presence of legal advisers, a prohibition on repeated and harassing questioning, and so forth. The prosecuting authorities should be able to give assurances to key witnesses, not just about witness protection but about immunity from prosecution.

Perhaps the most important change since this House last discussed these matters has already happened. I am talking about the reduction in the threshold applied by the Director of Public Prosecutions from the 50 per cent. likelihood of a conviction before proceeding with a charge. I heard the debate between the Front-Bench spokespeople for the Government and the official Opposition. When one examines Sir Ken Macdonald's evidence to the Home Affairs Committee, one clearly sees that the official Opposition have the matter when it comes to the points that the DPP was making. It has never been the case that the CPS has to have a court-ready case at the point of charge, and there is inevitably flexibility in making that decision. That flexibility is precisely what has persuaded some of the foremost advocates of 90 days' detention two years ago now to oppose an extension even to 42 days. Lord Falconer, the former Lord Chancellor, has said:

"If it is not necessary because you don't need it to fight terrorism effectively, then you shouldn't do it. I strongly believe that the debate about should it be 28 days, 42 days or 90 days has moved on because of the threshold standard. We should recognise that we have addressed effectively the question of the time it takes to investigate".

We also have this on the authority of Sir Ken Macdonald, the DPP. In his evidence to the Home Affairs Committee, to which I referred when I intervened on the Home Secretary, he stated that

"if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible."

The full code test is that the prospect of conviction is more likely than not. Sir Ken went on:

"I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period".

Sir Ken made it clear that he was satisfied with the position as it stands in respect of detention without charge. The Government's attempt to pray him in aid of their position is quite wrong.

Moreover, Sir Ken's approach is working. He makes that clear in an interview with The Times today, which has appeared with felicitous timing. The figures suggest that the DPP and the CPS have more room to amend their judgments about charging beyond the flexibility that they have already described. If the charging decision were broadly in line with the policy as it has been declared to the Home Affairs Committee-that is, that a prosecution would be more likely than not-we would expect a broadly equal balance of convictions and acquittals at the end of the trial. However, the CPS special counter-terrorism unit has enjoyed a 92 per cent. conviction rate against 77 per cent. in other trials. Since the beginning of last year, Sir Ken's figures show an extraordinary consistency. The conviction rate, including those who plead guilty, is 92 per cent. for cases that concluded last year and 92 per cent. for the cases so far this year. There is clearly a lot of room left, in his judgment, to continue to apply flexibility.

The Liberal Democrats accept that our society faces a serious threat from al-Qaeda and from terrorism. In certain respects, the threat is greater than it was during the long fight against republican terrorism. These terrorists are not afraid to die, they do not give warnings and they want to cause mass casualties. We do not deny the need to reinforce our defences against such a threat or to ensure that we have the legislative powers to deal with it. However, the argument is a debate about means, not ends. The means that the Government have proposed are not proportionate to the threat and are not grounded in the reality of the response from many ethnic minority communities. They run a terrible risk of being counter-productive.

Some elements of the Bill are struggling to emerge as an alternative approach to the prosecution of terrorists: the use of intercept evidence and post-charge questioning. There is emerging consensus on an approach that does not play the numbers game with the days of detention but would implement practical measures that are consistent with our traditions. We will not vote against the Bill on Second Reading because we aim to nurture that approach and to delete the destructive positions for increased detention without charge that could in our view prove injurious to civil liberties and the successful prosecution of terrorism. Whatever else, we must never become what we are fighting.

Let me end with an appeal to the Home Secretary. We are in favour of consensus. We strive for it. Yes, there is new consensus. It encompasses the Liberal Democrats, the Conservatives, many Labour rebels, Justice, Liberty, Sir Ken Macdonald, Lord Goldsmith, Lord Falconer, former chief constables such as Lord Dear, the Joint Committee on Human Rights, the Home Affairs Committee and the Equality and Human Rights Commission-the list goes on. If the Government were serious about consensus, they would realise that public and expert opinion does not want a further extension of pre-charge detention. They should join the consensus now and amend the Bill.