POWERS OF ARREST AND DETENTION (Hansard, 28 November 1974)

§ Mr. Stainton
I beg to move, Amendment No. 44, in page 6, line 14, leave out 'five' and insert 'twelve'.
This is a probing amendment designed to discover how the Home Secretary arrived at the figures of 48 hours and five days. It seeks to substitute a total of 14 days for the quoted total of 7 bearing in mind the complications that can arise in investigations. We have heard of the great amount of investigation that had to take place, for example, following the Old Bailey and Aldershot bombings.

§ Mr. Alexander W. Lyon
The answer to the hon. Member is that the power in Clause 7 is wholly exceptional. The normal period that the law allows a man to be held without charge, or before bringing him before a magistrate, is 24 hours, save in serious cases. In this instance we are extending that to a period of 48 hours with an extension for a 901 further five days. There is no proviso that it would be obligatory to bring a man before a magistrate at the end of the period. In a sense this would be an investigation period. Those quite unusual powers obviously have to be contained within the narrowest possible limits.
What has dictated a total of seven days rather than 14 is that the police say that that is an adequate period in which they could make proper investigation about someone who may be suspected of terrorism, so as to establish who he was and what was his background.

§ Mr. Stainton
I accept what the Minister of State says but I repeat what has been said by my right hon. and learned Friend the Member for Epsom and Ewell (Sir P. Rawlinson), an ex-Attorney-General. He emphasised the amount of evidence the police had to collect to establish their case at Aidershot against the Price sisters. One can also observe that in the Millhench case the police had little difficulty in detaining that individual for a period vastly in excess of seven days on various grounds. I am prepared to accept the Minister's assurance. I beg to ask leave to withdraw the amendment.

§ Mr. George Cunningham
I take this opportunity to raise a point about Clause 7(2) which provides that the detention for five days in addition to the 48 hours must be with the approval of the Secretary of State. I understand—and I raise the point now so that it can be publicly on the record—that the intention is that "the approval of the Secretary of State" means that it would be the approval of the Secretary of State personally and that these words do not mean what they would normally mean in a Bill—that a Home Office official could give approval in the name of, and therefore with the authority of, the Secretary of State.
It is understood that the Secretary of State personally cannot always be available. For example, he might be abroad.
902 In those circumstances one would understand a Home Office Minister deputising for him or another Secretary of State provided he was advised by the Home Office Minister deputising for the Home Secretary.
I want an assurance that either the Home Secretary or his next most senior Minister will have personally to approve each case. There might come a time if the Bill has to be renewed at the end of six months when we shall want to consider, in the light of the number of cases involved, whether it makes practical sense to continue with the arrangement. In a Bill which is to last for only six months in the first instance I think it is right that the personal approval of a Minister should be given so that he is aware at all times how many people are held under this unusual provision, thereby enabling him to keep a tight rein on the giving of authority for the five-day detentions.

§ Mr. Stainton
I have only one query, which turns on Clause 7(1)(b) and acts of terrorism. It is clear that Clause 7(1)(a) and (c) are specific matters. Does subsection (l)(b) refer to specific or general acts of terrorism? I am concerned about repetitive arrest. If subsection (1) (b)refers to general acts of terrorism or the preparation of such acts, it would be possible to arrive at repetitive arrest and an onerous situation being exploited by the police against an individual.

§ Mr. Whitehead
As I understand it, Clause 7 enables a constable to arrest without a warrant a person whom he reasonably suspects to be guilty of an offence under Clause 1 or Clause 3. I am concerned about the interpretation of "reasonably" bearing in mind the famous dissenting judgment of Lord Justice Atkins in Liversidge v. Anderson, in which it was said that it appeared that the Home Secretary was interpreting the words "reasonable cause" to mean what he thought was reasonable cause. Is it the position that the constable making the arrest shall have only to say that he thinks he has reasonable cause? By what objective criteria will he have to prove that he had reasonable cause for making the arrest?
I understand that the procedures by which a person is detained under the powers provided by Clause 7 will not be changed in any significant degree. I 903 understand that the régime of interrogation will not be changed and that the Judges' Rules will apply. Will my right hon. Friend give some undertakings in the general sense of Clause 7 as to the degree to which interrogation will continue without caution under the existing Judges' Rules for a person held under these powers, particularly a person held not for two days but seven days after reference to the Secretary of State?
Is my right hon. Friend prepared to consider two safeguards which I and my hon. Friends feel necessary if the clause is to become part of the Bill? First, will he consider—I think this matter was reviewed by the Criminal Law Revision Committee—whether interrogation under these emergency powers should be tape recorded? There are important reasons for recording to take place. Second, is it possible for the Home Office administrative directions which accompany the Judges' Rules to be brought into this measure as a mandatory requirement? They could be speedily drafted and added to the Bill as a fresh schedule.

§ Mr. Andrew F. Bennett
On Clause 7(1)(b) may I press for a reason why this one part of the Bill is not qualified to refer to Northern Ireland, whereas everywhere else in the Bill there is specific reference to Northern Ireland?

§ Mr. Roy Jenkins
I shall seek to answer some of the points raised in this discussion, and the legal points I shall leave my right hon. and learned Friend the Attorney-General to answer.
My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) asked about the personal approval of the Secretary of State. The answer to that is, alas, yes—alas, from my point of view, but perhaps not from anybody else's. As the provision is drafted it would be possible for an official to exercise these powers, but it is the intention that the Secretary of State or, if he is away, a Minister in the Home Office, or possibly another Secretary of State—although I think in this context a Home Office Minister would be more meaningful—will exercise them. There will be no question of there not being ministerial knowledge of exactly how many people are involved. The only exception is that 904 it might be necessary for an official to make a decision overnight in the event of something happening—a matter which which would be referred to the Minister the next morning.
My hon. Friend the Member for Stock-port, North (Mr. Bennett) asked why Clause 7(1)(b) was not specifically related to acts of terrorism in Northern Ireland. I dealt with this point earlier in our proceedings in answer to the hon. Member for Sudbury and Woodbridge (Mr. Stainton). Although it seems to me entirely reasonable in relation to Parts I and II and Clauses 1 and 3, since the decision has to be taken by the Secretary of State who should know what is happening, it does not seem reasonable to expect the constable who has to arrest some person concerned in the commission, preparation of instigation of acts of terrorism to be informed of all the political ramifications which may or may not be involved.

§ The Attorney-General
Questions were asked about the provision in Clause 7(1) relating to a constable who "reasonably suspects" somebody to be guilty of an offence. I do not think the phrase has any magical significance. It means that if a constable suspects somebody, he must have reasonable grounds for that suspicion.

§ Mr. Whitehead
Reasonable grounds presumptive to whom?

§ The Attorney-General
The constable must have reasonable grounds—in other words, this is the guidance which he must follow. If he does not have reasonable grounds for his suspicion and none the less arrests without warrant, he will be committing a civil wrong. The matter could come before the courts on an action by the person arrested. This is a normal way in which the statutes guide the police.
The second question concerned Clause 7(l)(b) whether the acts of terrorism referred to in the provision relating to a person concerned in the commission, preparation or instigation of acts of terrorism were specific acts of terrorism. It would not be right so to describe them. The power is justified as a result of the situation we face. One of the reasons for the grant of this power is that where the police have a suspicion on reasonable grounds that a person is concerned in the 905 commission, preparation or instigation of acts of terrorism, they may be able by detaining him to prevent those acts of terrorism from taking place. In many cases they will be unable to know until they have checked their suspicions what specific acts of terrorism might be involved. Without this power, therefore, it might well be that they would be unable to prevent a major act of terrorism simply because they did not know what specific acts the suspect had in mind.

§ Mr. Stainton
I related this matter to the possibility of repetitive arrest. This could be deployed—one hesitates to say this—by the police simply to exploit the 48 hours' arrest provision against an individual. The Attorney-General has confirmed that in Clause 7(1)(b) one is speaking about general acts of terrorism, a general attitude as compared with a specific act.

§ The Attorney-General
If the hon. Gentleman is speaking about acts of terrorism, I do not think that any general propensity, as it were, would suffice. What is necessary is that the constable should suspect on reasonable grounds that the person in question is concerned in either the commission, preparation or instigation of acts of terrorism even if he is not at that stage able to satisfy himself precisely what they are. There cannot be any question of arresting simply because a constable thinks" This is the sort of person who would be likely to commit acts of terrorism."
The next question concerned the safeguard of a person who is in custody. I can give my hon. Friend the assurance that the normal rules and safeguards in respect of persons held in custody by the police are to be observed by the police in the exercise of this power.

§ Mr. Whitehead
Does not my right hon. and learned Friend agree that there are occasions when the Judges' Rules are not observed? We are dealing here with a category of person about whom the House and probably society in general are not too squeamish—that is, the suspected political terrorist. It is particularly necessary in these circumstances to make clear to the relevant authorities the conditions relating to interrogation and the provision of food and sleep and that physical violence is expressly forbidden. I have in mind some of the experiences 906 in the early days of the Army in Northern Ireland and the interrogation methods used there. Will my right hon. and learned Friend make this as clear as possible to the police authorities when this legislation has gone through?

§ The Attorney-General
I can certainly undertake that my right hon. Friend will make that absolutely clear.
My hon. Friend asked whether it would be possible for administrative rules to be added to the Bill, but plainly, in the timetable to which we are working, that is not possible. I hope that the undertaking I have given will be sufficient.