HC Deb 30 January 1989 vol 146 cc53-71
Mr. Roy Hattersley (Birmingham, Sparkbrook)

I beg to move amendment No. 23, in page 9, line 38, leave out 'five' and insert 'two'.

This amendment, if carried, would require the Government to respect and observe the ruling of the European Court of Human Rights in the case of Brogan and others. That is to say that, if carried, the amendment would require the Government to accept that men and women should not be detained for seven days without either charge or judicial review. In the limited time available for this debate—just over an hour to consider whether the Government were right to derogate from the court's ruling—there is no opportunity to do more than discuss three central issues which should dominate our consideration of the amendments.

The first is the issue of principle—whether it is reasonable in any circumstances to detain a suspect for seven days without charge or judicial review. The second issue is whether it is reasonable to derogate from the European convention on human rights in these circumstances. The third issue is whether it is reasonable for the Government to invite us, as they do today, to pass into law a Bill which, if we are to take the Government's word, as I do, they hope substantially to amend in the immediate future. In each case, the Government's conduct is unreasonable.

By far the most important of the three issues concerns the question whether seven-day detention without judicial review is right, or, for that matter, necessary. The European court adjudges that, in general, it is not right, and it adjudges that for specific reasons. Men and women should be held in prison only when they are suspected of specific offences and when it is at least anticipated that they are to be charged with specific offences, not when their detention is convenient to the Government to deter others or to trawl for information. We know that the immediately previous Home Secretary has been explicit in saying that the prevention of terrorism powers were intended for exactly the purposes that the European court, and, indeed, all civilised people, deplore.

Sir Leon Brittan's own words in the House were these: The use of the powers of detention under the legislation has acted, first, as a deterrent to persons other than the people who have been detained and, secondly, it has in the course of the detention of those concerned enabled some to be excluded and charged on the basis of information to be obtained that was of direct value in the battle against terrorism, even though it did not lead to action against the people concerned."—[Official Report, 24 October 1983, Vol. 47, C. 55–56.] In Committee, the Minister quoted the Solicitor-General before the European court expressly denying that the Government would use detention for those disreputable purposes which the previous Home Secretary said were the intention of the Bill. But it was the Solicitor-General's duty—I do not blame him for carrying it out—to put the best possible interpretation on the Government's actions when he addressed the court. If the previous Home Secretary is to be believed, there is no doubt that, if they wished, any Government could disreputably use the present Act and the proposed powers of the new Bill. Indeed, if the previous Home Secretary is to be believed, there is no doubt that the Government have disreputably used the present Act and the present powers. I repeat that there is absolutely no doubt that, if they choose, future Governments could use such powers to trawl for information.

On 24 October 1983, I asked the previous Home Secretary this question: Is he saying that it is right in a free society to detain innocent people without charge for the purpose of obtaining information from them? His answer was categorical: It has been made clear not by me but by the courts that that is a legitimate and necessary use of the power."—[Official Report, 24 October 1983; Vol. 47, c. 56.] I repeat again that I am well aware that in Strasbourg the Solicitor-General said that the Government would not use these powers for that disreputable purpose, but, unless Sir Leon Brittan was ludicrously wrong, the best that can be said of the Bill is that it provides the power to control that information, and all we can do is hope that no future Government will employ it for that purpose.

In our view, and in the traditional view of the House, it is unacceptable to legislate on the basis that powers may be provided, but there is no need to worry, for the Government will not use them in the way that is allowed. We have contended that, in place of such power, we should apply the provisions of the Police and Criminal Evidence Act 1984. The Secretary of State, who I thought would be here, but is not—I do not blame him for that; he has been here all afternoon—replied to our proposal with an answer which was prolix even by his usual standards: under PACE the powers of arrest can be exercised only where a constable has reasonable grounds to suspect that a particular offence has been committed or is about to be committed".

The right hon. Gentleman went on to say that, under the Bill, it is possible to detain an individual who is suspected of being involved in terrorism in circumstances where one cannot prove, or does not have reasonable grounds to suspect, the commission of a specific arrestable offence."—[Official Report, Standing Committee B, 10 January 1989, c. 295.] It is worth while dwelling for a moment on what the Minister said. Once again, as so often is the case with Government Bills that the Opposition regard as severe infringements of liberty, simply to state the power in the Government's own language shows how wrong the position of that power is. The Minister said that the Government wished for powers, demanded powers, and would insist upon powers that allow them to detain a man or woman who there were no reasonable grounds to suspect had committed an arrestable offence—a man or woman who was not simply innocent because they had not been tried and proved guilty, but a man or woman against whom there was insufficient information to mount a charge. Yet the Government insist that against such persons seven days' detention is essential.

The Under-Secretary went on to say that the powers of detention under PACE were "insufficiently strong". Apart from the issue of principle—putting aside the question of propriety, whether we should ever detain a man or woman against whom no charge can be made—two questions immediately arise from that answer. First, why do we need to detain for seven days a person who there are no reasonable grounds to suspect has committed an arrestable offence? The Under-Secretary of State has not answered that question, other than to say that he will "obtain information" which he did not give to the Committee.

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The second question which the Under-Secretary's answer requires is more fundamental. Is it ever right to detain for seven days a person whom one does not have reasonable grounds to suspect is involved in an arrestable offence? In a free society, the answer must be that such detention cannot be justified. It can only damage the reputation of any country which makes such a proposal.

If we are to have any sort of debate on this important question, time allows only the briefest of references to the two other questions about the Government's attitude to the Brogan judgment which I posed at the beginning of my speech. The Government have entered a derogation from the convention. I have made it clear that I well understand that the Government are wholly within the terms of their agreement and are entitled to make such a derogation. There is no question of the Government having acted illegally or unlawfully, or having broken or abandoned their commitment to the convention in general. Sovereign states would never become parties to such conventions unless such derogations were possible. The question is not whether the Government were within their legal rights— clearly they were—but whether they were just and wise to use their legal rights as they did.

Clearly the terms of the derogation—the notion that terrorism is now putting at risk the whole of the United Kingdom—are palpable nonsense. But I suspect that the Home Secretary will say that the words are no more than a technicality and that if there were to be a derogation it had to be in those terms. The important part of my question does not concern either the technicality or legality. It concerns the justice and wisdom of what the Government have done in terms of fundamental human rights. The Government have chosen to dissociate themselves from the convention in that particular.

Mr. Archer

Lest there be any misunderstanding, can my right hon. Friend confirm that the wording of the derogation is not a matter of technicality? Unless the Government can bring themselves and the situation within the rules they are not entitled to derogate.

Mr. Hattersley

My right hon. and learned Friend, who is careful in these matters, will notice that I am almost as careful, and said that the Home Secretary would undoubtedly attempt to argue that the words are a technicality. If he does not, he will find it difficult to justify on the evidence of the language that the situation on which he relies operates in the whole United Kingdom. As I understand it, to make the derogation he must make that point. I look forward to seeing whether he calls it a technicality, as I predicted, or attempts to justify the words in their literal sense and application to the United Kingdom, which I believe would be impossible.

I reiterate my basic point, with which I know my right hon. and learned Friend agrees, which is whether the Government were right in principle, wisdom and justice to make the choice which they were legally entitled to make. My view, which is the view of my right hon. and hon. Friends, is that, as well as being wrong in principle, to erode our commitment to the cause of freedom which the convention enshrines was also deeply unwise, because it damaged the cause which the Government claim to serve. When the Government attempt to cut funds to the IRA by attempting to have passed through the House a Bill which is specifically in part designed to achieve that objective, by taking their decision about derogation they are providing for IRA fund raisers a propaganda weapon of incalculable value.

The Government will say in the derogation that terrorists are having a profound effect on the life of the whole United Kingdom. Terrorists will say that the Government at Westminster are prepared to abide by the rule of law when it is convenient, but that, when it is inconvenient and the Government wish to detain men and women for seven days without trial or judicial review, they fly to the derogation, with all the consequences involved.

The third question, which I asked a quarter of an hour ago and which I repeat in slightly greater detail, concerns the Government's decision to press ahead with the Bill, although, according to their published statement, they hope to replace it with new powers almost as soon as it becomes law.

If we are to take the Government at their word, which I do, they still hope to arrange a system of judicial review which would provide an examination of the justification of detention after four days, thus bringing our law into line with the ruling of the European Court of Human Rights. The Government are by no means sure that they can achieve that end but I give them credit at least for attempting to being that alternative about. Until we know how they want to organise detention, it is palpably unreasonable to ask the House to pass a Bill which stipulates one form of detention about which the Government may change their mind next year.

The Government have known about the Brogan case for several years. There was a specific reference to it in the report on the prevention of terrorism published by Lord Colville in 1987. Yet the Government behave as if the ruling and their need to react to it came as a complete surprise towards the end of last year. After some confusion, which the Home Secretary will remember well and which I shall detail for him if he wishes, and some contradictory statements about when the Government could or could not make an announcement, whether they would have to derogate and whether the derogation would pe permanent, the Under-Secretary eventually sent a letter to members of the Committee. That letter, sent on 10 January, said in terms that the Government could not announce how they intended to proceed with the question of detention and the possibilities of a judicial review, and therefore with the necessity for permanent derogation, until the Bill becomes law, as the Government purpose, on 24 March.

The House is left in an absurd position. We are being asked to support a Bill which, if it becomes law, the Government will do their best to change almost immiediately out of all recognition. Simply in terms of good government, sensible management of business, courtesy to the House and demonstrating that they have a clear, concise and cogent line on civil liberties, the Government should have come to the House specifically describing which of the alternatives was likely to be the permanent feature of the legislation before they asked us to complete every stage of the Bill's consideration on the Floor.

This is an example of incompetence, but it is the sort of incompetence that invariably comes about through arrogance and a stubborn refusal to admit error and agree to rectify mistakes. If it is impossible—as we understand it, because of the opposition of the Northern Ireland judiciary—for a judicial review to examine the case of men and women detailed under the Prevention of Terrorism Act, arrests should be made under the provisions of the Police and Criminal Evidence Act. That is the sensible as well as the principled response to the dilemma in which the Government find themselves. Support for our amendment would achieve that end.

Mr. Barry Porter (Wirral, South)

I listened with great care to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and I want to confine my remarks to two of his major points. He asked whether it was reasonable for the Government to derogate from the Brogan judgment and the judgment of the European Court of Human Rights, and to detain people in these particular and peculiar circumstances for seven days without trial or judicial review.

Although I was young at the time, as no doubt was the right hon. Member for Sparkbrook, I remember that there were very strong draconian powers of detention during the second world war. I appreciate that we are not at war in the strict, technical sense of the word, but it is clear that the Provisional IRA is quite willing to use the phrase "armed struggle". If that phrase means anything, it means the use of force to obtain a political end. The IRA uses that phrase to all intents and purposes, if it is not a war, it is certainly a quasi-war. Given those circumstances and the use of that phrase by enemies of this kingdom, we are entitled to look at the realities of the situation rather than at the legalistic aspects. The reality is that we cannot deal with those people with the ordinary powers of the law.

It is naive in the extreme to say that the Police and Criminal Evidence Act 1984 provides enough power for the security forces and the intelligence services to provide the police with adequate information to bring certain people within the PACE regulations, under which there must be reasonable suspicion that an offence has been committed or is about to be committed.

I accept that the intelligence services will be able to provide certain information to the police, but it might not be sufficient to allow the police to say that an offence had been or was about to be committed. However, I believe that there would be sufficient information for the police to detain in almost every case. I do not want to know what that information or intelligence is. I cannot believe that it is the end of the world if someone with terrorist connections and about whom there is intelligence is kept for no more than seven days.

Surely it is better to be safe than sorry. Surely the right hon. Member for Sparkbrook must consider the fact that more than 3,000 people have been killed over the past 20 years. Surely it is better that someone should be inconvenienced—and I do not diminish that inconvenience—by being detained without charge for that time, than that someone else on the mainland or in the Province is murdered. Is that such a price to pay? I think not.

The right hon. Member for Sparkbrook said that it was unwise to use the powers because there was a public relations aspect. Although he was not specific about this, he said that it might upset people in the United States of America or elsewhere in Europe and that it would in some way contribute to the funds now being channelled to the Provisional IRA. I suppose that that is possible. However, can the right hon. Gentleman imagine the effect on another part of the public—the citizens of Northern Ireland?

I was in Belfast last week. The most remarkable idea, suspicion or feeling was obvious there that the Government were in some way weakening and preparing to remove themselves from the Province. I believe that that is untrue. This Government, like previous Governments, have made it abundantly clear that they will stand by our co-citizens in Ulster. However, some people on the Unionist side of the community divide were saying that.

If the House accepts this amendment, we must consider another public relations aspect to the issue. People in the Province would say that it was more evidence that the Government are not determined in their fight against the terrorists. The right hon. Member for Sparkbrook should examine his conscience. Even if he thinks that people should not believe that, that is what they will believe. The provision in the Bill to which the amendment refers is a sign of the Government's determination to use a weapon against the Provisional IRA and any Protestant paramilitary organisation which might fall foul of it; more generally, it is a weapon against the forces of violence. It is not too high a price to pay.

Please God that we return to a time when these provisions are not necessary. However, 20 years on from the start of this struggle, these powers are still necessary. It is infinitely better to be safe than sorry. It is better to be sorry that some people no doubt will be detained when in other circumstances they would not. However, I would be more sorry if someone was murdered, assassinated or maimed as a result of this amendment being accepted.

6.15 pm
Mr. Archer

I hope that the hon. Member for Wirral, South (Mr. Porter) will forgive me if I do not immediately take up his arguments. I want to be brief because this is a very short debate. I hope that you, Mr. Speaker, will allow me to voice a protest about the completely inadequate amount of time given for this Report stage by the Government business managers. They have brought this situation about.

I want to respond to only one of the three matters explored by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), but not because the other two points are unimportant. In fact, I agree with my right hon. Friend that his first question was the most important. But I have seized opportunities at other stages during our deliberations on this Bill to deliver my views on those two points. It is important that something should be said in relation to my right hon. Friend's second point. The Official Report of this debate will be widely read internationally and many people will want to know whether hon. Members are urging the United Kingdom to be concerned about its international obligations.

There is an international consensus that terrorism is an international problem and that it must be dealt with on an international level so that those who seek their political ends by the use of violence will have no resting place or hiding place. On 15 July 1986 the Financial Times reported that Interpol spends 10 per cent. of its time on investigating terrorist offences. There were complaints from Conservative Benches when Ireland appeared to be dragging its feet in respect of the European convention on extradition, one of the major purposes of which was to deal with international terrorism.

The European convention on the suppression of terrorism agreed in 1977 was, very properly, ratified by the United Kingdom in 1978. It has now been substantially enacted into our domestic law. Action has also been taken within the EEC, although some people believe that the EEC is not primarily concerned with terrorism. The Trevi group of Justice Ministers has committed itself to a co-ordinated policy and the sharing of information to bring terrorists to justice.

All those initiatives have helped to make it clear that it is not simply terrorism that is international, but that law and order is international as well. Those initiatives show that terrorism will be fought at international levels. That means that nation states should accept some restrictions on their freedom of action and some limitation on their sovereignty in the interests of their people.

The other side of that coin is that we agree on international standards of human rights and limitations—which are proper limitations—on the power of the police and the investigating authorities, so that a citizen of any of the countries which are part of this consensus can expect certain standards from his or her Government. The nations of Western Europe have accepted that they are, and should rightly be, answerable before an international tribunal to their own citizens when there is a complaint about those standards. Those who invoke, quite properly, the international consensus to deal with terrorism, to pursue terrorists and to prevent terrorism are committed equally to that same international consensus from the other purposes—to the commitment to the rule of law.

I hope that not only will there be an agreement throughout the House on that principle, which can be read in the report by those in other countries, but that it will not be in issue that this country is bound in international law by the provisions of the European convention. There will be no issue that we were right to accept that obligation and to ratify the convention and that we were right to submit ourselves to the jurisdiction of the European Court and to the right of individual petition. I believe that that has not been brought into issue even by this Government, who have denied so many of the political propositions which we thought at one time formed part of the political consensus.

It is said that it is our right within the convention—we are entitled to derogate. As my right hon. Friend the Member for Sparkbrook said, the right of derogation is part of the convention. It is not, however, something to be embarked on lightly. It was not intended by those who drafted the convention, who agreed with it and who ratified it, that it should be invoked by a Government every time they found it inconvenient to abide by a ruling of the European court.

As my right hon. Friend the Member for Sparkbrook reminded us, the Government have publicly proclaimed that the activities of the IRA fall within the wording of article 15, which provides that we are entitled to derogate in time of war or other public emergency threatening the life of the nation. If there is room for argument about the meaning of those words, it has to a great extent been resolved. We have the guidance of the European court in the Lawless case. The court said: …in the general context of Article 15 … the natural and customary meaning of the words 'other public emergency threatening the life of the nation' is sufficiently clear; … they refer to an exceptional situation of crisis or emergency … which affects the whole population"— not just the population of Northern Ireland and the United Kingdom, but the whole population— and constitutes a threat to the organised life … of the community of which the State is composed. If that was what the Government were describing in the words of their derogation, it ill fits some of the things which they have said about the success of those who are containing the IRA, which was said with the agreement of many of the Opposition and was something which we welcomed. There will be great rejoicing in the IRA at the wording which the Government have now publicly placed on record.

I do not intend to embark on any of the other issues raised by this debate, but, if that issue is questioned before the European Commission and subsequently before the European Court, I venture to predict that the Government will have quite a rough ride. I do not suppose there is much danger of it, but I would not like to be the advocate who had to argue the Government's case. The provision we are discussing is one which other Governments in Europe, who too have experienced terrorism, have found themselves able to live with. Our commitment to the convention should go out from this House to our friends abroad.

Mr. Mallon

I believe that this provision in the Act has caused more problems than any other, because it has been the most widely used part of the legislation, especially in the North of Ireland. The words of the former Secretary of State, Sir Leon Brittan, were quoted by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). The former Secretary of State said in October 1983 that it was a legitimate and necessary use of power to detain people to obtain information.

One need only look at the figures to realise the extent of this appalling exercise. Sixty-nine per cent. of those held in the North of Ireland under this power of detention have been released without charge, and 91 per cent. of those detained in England, Scotland and Wales have been detained without charge. The hon. Member for Wirral, South (Mr. Porter) glossed over the point and said that it would be better if people were detained for seven days rather than that they should be killed because of the activities of those involved in terrorism. That is a spurious argument when one considers the figures, the law as it stands and what I believe should be one of the golden rules of any legal and judicial process, which is that the purpose of the law is to administer justice and to protect the individual as well as society.

The figures speak for themselves, and there can be no doubt that what Leon Brittan confirmed as a fact is something which has continued until this day. It is known in the North of Ireland and readily admitted privately by the Army, by the police, by the people involved and by everyone in the community that the provision is used for that reason. If dogs in the street could talk, they would be saying the same.

Surely the Act was draconian and punitive enough without the Government involving themselves in abuses of it. I believe that the protections in the Police and Criminal Evidence Act 1984 should be given in the North of Ireland. I mean not just the implications of the various measures under PACE, but the protection of the codes of practice, because that does not apply under PACE as it applies in the North of Ireland under the Northern Ireland order.

What, therefore, can we rely on for protection? Should we rely on the judges' rules, which are completely unstated and, I believe, not clearly defined by the judges or understood by them? The judiciary would be the first to admit that. Alternatively, should we rely on the codes of practice of the RUC, which were not given to this House, or the codes of practice of the Army, which, under new legislation, would be a matter for prosecution if one were to divulge them? There are no codes of practice for people detained under the Act, which is something which should and could have been put right by applying to those people in the North of Ireland the codes of practice of PACE. Unfortunately, that has not been done, so that there is no protection, because none is provided in any other way.

The reality of temporary derogation is that we cannot be a la carte: we cannot take what we like of European judgments and ignore what we do not like. We must abide by the rules. If we do not, we will be seen as acting as bad Europeans. We must ensure at all times that we have a proper supply of inverted commas in our pockets so that they can be put around such words as temporary, when we see how long temporary may be in this type of decision.

I believe that the Secretary of State has three choices in relation to the Brogan decision. He should obey the decision of the director of the European Court, he should change the laws so that they accord with those which exist in the rest of Europe, or he should simply derogate. I believe he has chosen the worst of all worlds. He has done something that will not help to resolve the problem. It will add to the feeling that, when it comes to dealing with the problem of justice in the North of Ireland and the choice between retaining the integrity of justice and the Government's commitments in Europe, they will opt to behave in such a way that not only shows contempt for the European Court of Human Rights and the European convention on human rights—the British Government played a central role in developing them—but demonstrates that they are prepared to pursue an atavistic attitude that is endemic to them. In the last analysis, that atavism will be one of the downfalls of the Government because it is destroying the integrity of the law and the integrity of justice, which must be the foundations of any free society.

6.30 pm

Apart from the contempt the Government have shown for Europe and its laws, it is intrinsically wrong for the Government to show such scant regard for the basic concepts of human rights. They are throwing them out of the window, but, sooner or later, there must come an end to repressive punitive legislation. Someone must call a halt because we are almost at the end of the road and, once we reach it, we must then row back up the river against the tide. The Bill represents one more waterfall on the way back to the type of normality that alone will solve the problems in the North of Ireland.

The hon. Member for Wirral, South (Mr. Porter) made a dangerous claim when he said, I believe with some pleasure, that there was a war going on in the North of Ireland. The only people who want to believe that there is a war are those fighting it. For years the Provisional IRA has said that its prisoners should be treated as prisoners of war. Hence the problems in the prisons with people in compounds who are not treated as ordinary prisoners and who believe themselves to be prisoners of war. To confirm that what the Provisional IRA has said all along is correct—that the country regards itself as being at war—is most dangerous for the people of the North of Ireland. It is also dangerous when one considers that in the light of a publication today and considers it through the minds of those who are on the other side of the coin in the supposed war—those in the Army serving the Government.

Mr. Hunter

I expected that there would be more robust support for the Government's stance from the Conservative Benches, but the mantle falls on me.

The hon. Member for Newry and Armagh (Mr. Mallon) repeated what he has said in Committee about the need to avoid punitive and repressive legislation. Our essential argument is that the Bill is neither but gives the Government the powers necessary to combat an ugly situation.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) delivered his thesis—it is familiar to us and we heard it in Committee from his hon. Friend the Member for Huddersfield (Mr. Sheerman)—which must be rejected. Surely in Northern Ireland we are dealing with a unique situation. It does not exist in any of the other countries that are signatories to the European convention on human rights. The judgment that the right hon. Gentleman has sought to exploit to his political advantage duly acknowledges that the circumstances in Northern Ireland are unique.

The Government are in the unenviable position of having to seek to reconcile irreconcilable legal traditions. A variety of national legal traditions led to the composition of the European Court of Human Rights which must be reconciled by that court. The legal systems are not the same. On Second Reading, my right hon. Friend the Home Secretary referred to the Brogan case and said that, in other European countries, the equivalent to the magistrate plays a much earlier role in the interrogation and investigation process than is the case in this country.

I do not know what my right hon. Friend will say in reply to this debate. He may respond to the judgment in the Brogan case, but I fancy not. I suspect that he will ask for more time and that that request will be well received by Conservative Members. This is such a serious matter that we cannot leap to judgment and we should not try to score cheap political points at each other's expense from it. We want to proceed in a judicial manner. We want to ensure that our procedures are acceptable to other European countries, but our circumstances and traditions are unique. We must ensure that we do not rush into making a judgment that will detract from our ability to combat terrorism.

The powers of arrest and detention enshrined in the Bill are needed to guarantee that we are able to combat terrorism. They should be supported because they are necessary for that purpose. It is also important that we do not rush into making a judgment about how to deal with the Brogan case.

Mr. Maclennan

The right hon. Member for Sparkbrook (Mr. Hattersley) spoke about the reasonableness of using the power of detention in any circumstance. He and other members of the Labour party have been consistent in arguing that the time for the use of such powers has passed and that they are not prepared to support their use.

Although there is no doubt in my mind that the powers in the Bill are a substantial infringement of a citizen's liberties, are draconian and unwelcome and that it is essential that they should be subjected to periodic scrutiny by the House, the case for retaining them within the prevention of terrorism legislation is powerfully made by the evidence of Lord Colville. That argument is most forcefully and compellingly put in appendix C to the report, which describes the events in the week beginning 25 October 1986 in Scotland. A number of people were held under the detention powers, as a result of which, at the end of that week, 10 individuals were charged with serious criminal offences and were convicted.

Apart from that example, the weight of evidence given by Lord Colville about the use that has been made of the powers by the law enforcement authorities is compelling. It is bound to carry weight with all who review these matters. We shall have to return to this question not only because of what has happened in Europe but because of the sense of repugnance felt by hon. Members about detaining people without the strongest possible arguments about the practical necessity for it.

I shall now turn to the second question posed by the right hon. Member for Sparkbrook. It is convenient to follow his example because it will enable me to be brief. I have been consistent about derogation from the moment that this problem arose. I have called upon the Home Secretary to seek some means of complying with the judgment and to interpose judicial scrutiny at an appropriate stage in detention. I said that, if he was not able to do that during the passage of the Bill, it would create—here I agree with the right hon. Member for Sparkbrook—some international embarrassments. It will raise questions about our willingness to abide by the international rule of law and the provisions made for the international protections of fundamental freedoms and human rights.

The argument has moved on since the Home Secretary first addressed it. I listened with care to what he said in the debate on the timetable motion a week ago, and I have no doubt from what he said then that he and his colleagues are seeking means of complying with the ruling of the court in the Brogan case. I hope he will be able to tell us that some means of complying with the judgment will be possible, although he said earlier that that is extremely unlikely before the passage of the legislation is completed. He and his colleagues are engaged in a quest for a means of complying with the judgment of the court. I hope that he can tell us that he is somewhat more optimistic than when he spoke on the subject last week, when he said that he was engaged in an uphill struggle. Those who are responsible for the maintenance of law and order in Britain would do well to co-operate with the Secretary of State in his quest because it is of great assistance to this country to be able to remain fully within the ambit of the convention.

I do not think that the consequences of derogation are as the right hon. and learned Member for Warley, West (Mr. Archer) described them. The Labour Government in which he was Solicitor-General derogated from the European convention in 1978 on the issue of detention in respect of the Northern Ireland (Emergency Provisions) Act 1978. That derogation lasted until 1980 when the use of the powers in the Act were suspended. That was an unfortunate derogation, and many regretted that the Government of the day thought it necessary. However, that was the Labour Government's judgment and the House accepted it. The Home Secretary now judges it to be necessary. Unpalatable though it may be, we shall return to the issue regularly and frequently because we are not persuaded that it is impossible—although it may be difficult to do it now—

Mr. Archer

rose—

Mr. Maclennan

I wish to conclude, because I know that the Home Secretary wishes to speak, but I shall give way to the right hon. and learned Gentleman.

Mr. Archer

Would the hon. Gentleman at least remind the House that, when the Labour Government derogated from the convention, they did so in respect of part of the territory of the United Kingdom—Northern Ireland? They did not undertake to prove that there was a danger to the national existence of the whole of the United Kingdom.

Mr. Maclennan

I am not at all clear that, when the Labour Government derogated from the convention, they sought to justify it in the precise language that the right hon. and learned Gentleman has used. I have the terms of the note that was put before the Council of Europe, and it does not spell out the provisions in the manner in which the right hon. and learned Gentleman suggests. Be that as it may, the Government of the day thought that it was necessary, and that was not questioned. The Home Secretary has given evidence of his good faith and intention in this matter, and I hope that the House will support him in pushing to achieve the judicial review process that is necessary to maintain our position on the international protection of human rights. I deeply regret that so far he has not been able to do that, because that would have made his task with the House and the country much easier. I hope that, before the Bill leaves the other place, which may be in a matter of weeks, that will yet prove possible.

6.45 pm
The Secretary of State for the Home Department (Mr. Douglas Hurd)

The debate has been quietly conducted, but the discussion on the amendment is about the risks that we are prepared to run with terrorism. The amendment would be prepared to run risks that are unacceptable. The House has again been searching to find a balance between the protection of the community as a whole and the protection of the legal rights of the individual. We think that the balance is rightly struck in the Bill, and that the amendment would tilt it unacceptable against the safety of the community.

The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) conveniently organised discussion under three headings. I agree that his first heading is the most important, so I shall deal briefly with the other two. The Brogan judgment did not say that it was wrong or illegal to detain an individual without charge for seven days. It could hardly have done so, because in France, for example, the limit for detention without charge is four months. My hon. Friend the Member for Basingstoke (Mr. Hunter) was right in what he said about the different legal positions.

The Brogan judgment said that a judicial mechanism needed to be interposed so that some independent person could review detention after a certain time. My hon. Friend the Under-Secretary of State and I have been entirely open with the House and the Committee about this. I am quite clear in my mind that it would not be safe to leave the police without the power of detention. The nature of terrorism, which we all read about over Christmas and the new year, bears that out.

Of course we would have preferred not to derogate, and the right hon. and learned Member for Warley, West (Mr. Archer) was right when he said that this is not a subject to be taken lightly as a matter of convenience. We continue to look for a judicial mechanism; the hon. Member for Caithness and Sutherland (Mr. Maclennan) gave a fair account of that quest. I cannot add to the information that I gave him on the subject last week. I said that there were three jurisdictions and that we could not have consulted judges on a hypothetical basis. Had we done so, we would probably have gone well astray, because the judgment of the European Court of Human Rights was not the simple rejection of the use of a power, but was on the proviso that I have mentioned.

The right hon. Member for Sparkbrook argued that in some way we should have held up the Bill until the position was clear. I entirely accept that the timing is awkward for the Government and the House, but the right hon. Gentleman left out of account the fact that, unless the Bill containing the detention power passes into law by 21 March, the present Act will expire and the power will fall. That could not be justified.

The right hon. and learned Member for Warley, West dealt in some detail and quite legitimately with the grounds of article 15. His argument was somewhat torpedoed by the hon. Member for Caithness and Sutherland. I am leaving out the question about a time of war, because I agree with the hon. Member for Newry and Armagh (Mr. Mallon). There are many reasons why it is a mistake to discuss this situation as a time of war, and we are not required to do so under article 15 of the convention. The relevant phrase is: public emergency threatening the life of the nation".

We are all one nation and one people. Although the right hon. and learned Member for Warley, West derogated for Northern Ireland alone, since the terrorist campaign began there have been in Northern Ireland nearly 3,000 deaths and over 30,000 injured and in Britain, nearly 100 deaths and over 1,400 injured. Recent reported events show the extent of the threat, and that d affects more than just one part of the Province or one part of the kingdom.

On the central point, it is our firm and considered view that in some cases—a small number—the police should have more time than the maximum available under the Police and Criminal Evidence Act 1984. My hon. Friend the Member for Wirral, South (Mr. Porter) was right on that. Terrorist investigations tend to be considerably more complex than the cases dealt with normally under That Act. I need not repeat the argument of Lord Colville on this point, and the different examples that he gave, or those given by my hon. Friend the Minister in Committee. However, those examples made the point, and the right hon. Member for Sparkbrook has not addressed them.

I can give two more examples. On 29 April 1986, the police arrested five people in a flat in Strabane and a search of the premises revealed two grenade launchers, two grenades, three rifles and a quantity of ammunition. An extension of detention was authorised to enable the police to await the results of forensic and ballistic tests and to question each man in detail about his involvement. On the fifth day of detention, as a result of this work, the police were able to charge all five men with a variety of terrorist offences. They were later convicted and sentenced to long terms of imprisonment.

My second example came within my time in office. We received information of the presence in this country, and in this part of the country, of people planning terrorist attacks on behalf of the Abu Nidal terrorist organisation. I allowed three days of extended detention. This led to further arrests. I authorised further detentions in respect of six of the suspects for the full five days permitted by the Act, and as a result, I was able to authorise deportation orders, on national security grounds, of all six people concerned. That is a clear example, for only by the use of the extension of detention power in the Act were possible acts of terrorism averted by the proper use of deportation procedure. It could not have been done without that information.

The case is clear, and it is reasonable to require that people detained in this way should have safeguards. They exist under the Police and Criminal Evidence Act in this part of the kingdom. The hon. Member for Newry and Armagh spoke about the situation in the Province, but as he knows that there are safeguards in place—there is not much secret about that—following the action taken after the Bennett report in 1979.

Mr. Mallon

I thank the Home Secretary for pointing out that there are technical safeguards. What safeguards for people held in Northern Ireland under emergency legislation are written into codes of practice or statute?

Mr. Hurd

I am talking about what is in place as a result of changes made after the Bennett report. There has been widespread discussion about the extent of those, and I believe that the situation is adequate.

The right hon. Member for Sparkbrook, and The hon. Member for Newry and Armagh, made the point—that the legislation is essentially pre-emptive. It is designed to prevent acts of terrorism, and its powers are often exercised while terrorist crimes are being prepared. The fact that a terrorist is not charged does not invalidate the grounds on which the detention was made. In answer to the right hon. Member for Sparkbrook, there has to be an intention on the part of the police to develop their suspicion to the point where they have evidence to jusify charges or to consider applying for exclusion or, as in the Abu Nidal case, deportation orders. He was unfair in his quotations from my immediate predecessor, because my predecessor was talking, quite clearly, about the possible results, and not the purpose, of such investigation.

If I thought that there was no purpose beyond gathering intelligence, I would not authorise an extension of a period of detention. Often, the discussions that take place on a request for an extension revolve around that point. In some cases, preparations may not have gone far enough for charges to be brought, or the information available to the police may be too sensitive to be brought before a court, or it may not be admissible in evidence. The case for this power, which was not introduced by the Conservative party, remains valid. Under the law, such a power could not be and should not be used widely. It should be used sparingly, but because of the nature of terrorism, it is needed. I am grateful for the support of the hon. Member for Caithness and Sutherland on that point.

If we did away with this power, which would be the effect of the amendment, we would in a small number of cases, but a small number of important cases, be imperilling the public. We are not inventing this power—we are simply trying to prevent the Opposition from removing it. The amendment would put citizens at risk. Arguably the prime purpose of Government is to provide the necessary protection for our people, who are looking to us for that protection. We should not do anything that would withdraw or weaken that protection. Therefore, I advise the House not to accept this amendment.

Mr. Hattersley

The Home Secretary has been kind enough to leave me three minutes to offer our comments on his justification for his proposal, and I do so in the form in which I began the debate. First, I shall discuss the principle. The Home Secretary is at best ambivalent in his attempt to describe the real meaning and purpose of the powers. He said that detentions were made only when the police officer had a genuine wish to proceed, and the genuine intention of proceeding, with criminal charges. If that is the case, there must be many frustrated and disappointed police officers, for they are constantly making detentions under these powers which do not lead to prosecution. It is only reasonable to assume that, time after time, detention is made without any real expectation that a prosecution will follow in the case of the man who is arrested.

It is all very well for the Home Secretary to say that we did less than justice to his predecessor, but the quotations from that person were exact in every particular. The Home Secretary of the day, in introducing the extension and continuation of these powers, said that it was wholly legitimate, and approved by the courts, that these powers should be used either as a deterrent or in order to trawl for information. Mr. Barry Porter indicated assent. Mr. Hattersley: The hon. Member for Wirral, South (Mr. Porter) nods, honestly and honourably, as he should, because he advocated use of these powers for exactly that purpose.

The Home Secretary must not, or at least should not, tell the House that the powers exist but will not be used in a way that most people regard as reprehensible, because if the powers are there and can be used for that purpose, there may one day be a Home Secretary less reasonable than the right hon. Gentleman. Who knows, Sir Leon Brittan may be rehabilitated and repainted back into the Cabinet photograph from which he has been removed, and may again adopt the view that he was open in adopting when he commended these powers to the House.

I am disappointed with the hon. Member for Caithness and Sutherland (Mr. Maclennan), who is always on the side of liberty, but not enough to vote for it. In many ways, he demonstrated the position of a reluctant Liberal—a reluctant Liberal with a capital L and, today, a reluctant liberal with a small one—anxious to show that he has the libertarian qualifications, but unwilling to express them in the Division Lobby.

Much more important than the hon. Gentleman is the attitude taken by the Home Secretary to our reputation in the world. I did not make any point concerning public relations. Public relations in these matters are unimportant. However, I did refer to the general political reputation of this country as a genuine democracy, which applies the rules of democracy even when it is inconvenient to do so. That applies to our success in fighting terrorism as well as to our general reputation in the world. It is assumed that, by taking such draconian and arbitrary powers, the war against terrorism will be won.

It seems to us that, time after time, we are losing battles against terrorism. Genuine, honest and decent-minded people are worried about our real commitment to liberty and democracy. Unless we convince the law-abiding population of Northern Ireland that we are on the right side, we will not win the battle and, for that reason, we press the amendment.

It being Seven o'clock, MR. SPEAKER proceeded, pursuant, to the order [23 January) and the resolution this day, to put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made.:—

The House divided: Ayes 134, Noes 241.

Division No. 60] [7 pm
AYES
Abbott, Ms Diane Campbell, Ron (Blylh Valley)
Allen, Graham Campbell-Savours, D. N.
Archer, Rt Hon Peter Canavan, Dennis
Barnes, Harry (Derbyshire NE) Clarke, Tom (Monklands W)
Battle, John Clay, Bob
Beckett, Margaret Clelland, David
Benn, Rt Hon Tony Clwyd, Mrs Ann
Bennett, A. F. (D'nt'n & R'dish) Cohen, Harry
Bermingham, Gerald Cook, Robin (Livingston)
Bidwell, Sydney Corbett, Robin
Blair, Tony Corbyn, Jeremy
Boateng, Paul Cousins, Jim
Boyes, Roland Crowther, Stan
Bradley, Keith Cryer, Bob
Bray, Dr Jeremy Cummings, John
Brown, Gordon (D'mline E) Cunliffe, Lawrence
Brown, Nicholas (Newcastle E) Dalyell, Tam
Brown, Ron (Edinburgh Leith) Darling, Alistair
Buchan, Norman Davies, Rt Hon Denzil (Llanelli)
Buckley, George J. Davis, Terry (B'ham Hodge H'I)
Caborn, Richard Dixon, Don
Callaghan, Jim Dobson, Frank
NOES
Aitken, Jonathan Clark, Hon Alan (Plym'th S'n)
Alexander, Richard Clark, Dr Michael (Rochford)
Amess, David Clarke, Rt Hon K. (Rushcliffe)
Arnold, Jacques (Gravesham) Colvin, Michael
Ashby, David Coombs, Anthony (Wyre F'rest)
Baldry, Tony Coombs, Simon (Swindon)
Banks, Robert (Harrogate) Cope, Rt Hon John
Barnes, Mrs Rosie (Greenwich) Cormack, Patrick
Batiste, Spencer Cran, James
Bennett, Nicholas (Pembroke) Critchley, Julian
Bottomley, Peter Curry, David
Brazier, Julian Davies, Q. (Stamf'd & Spald'g)
Bright, Graham Davis, David (Boothferry)
Brown, Michael (Brigg & Cl't's) Day, Stephen
Bruce, Ian (Dorset South) Devlin, Tim
Buck, Sir Antony Dorrell, Stephen
Budgen, Nicholas Durant, Tony
Burns, Simon Dykes, Hugh
Burt, Alistair Evans, David (Welwyn Hatf'd)
Butcher, John Fallon, Michael
Butler, Chris. Fearn, Ronald
Butterfill, John Field, Barry (Isle of Wight)
Campbell, Menzies (Fife NE) Fishburn, John Dudley
Carlisle, John, (Luton N) Fookes, Dame Janet
Carlisle, Kenneth (Lincoln) Forman, Nigel
Carrington, Matthew Fox, Sir Marcus
Carttiss, Michael Franks, Cecil
Chalker, Rt Hon Mrs Lynda Freeman, Roger
Channon, Rt Hon Paul French, Douglas
Chapman, Sydney Fry, Peter
Chope, Christopher Garel-Jones, Tristan
Doran, Frank Mallon, Seamus
Duffy, A. E. P. Marek, Dr John
Dunnachie, Jimmy Martin, Michael J. (Springburn)
Dunwoody, Hon Mrs Gwyneth Martlew, Eric
Eadie, Alexander Michael, Alun
Eastham, Ken Michie, Bill (Sheffield Heeley)
Fatchett, Derek Mitchell, Austin (G't Grimsby)
Faulds, Andrew Morgan, Rhodri
Flannery, Martin Morley, Elliott
Flynn, Paul Morris, Rt Hon A. (W'shawe)
Foot, Rt Hon Michael Morris, Rt Hon J. (Aberavon)
Foster, Derek Mowlam, Marjorie
Fyfe, Maria Mullin, Chris
George, Bruce Murphy, Paul
Godman, Dr Norman A. Nellist, Dave
Gordon, Mildred O'Brien, William
Gould, Bryan Patchett, Terry
Griffiths, Win (Bridgend) Pike, Peter L:
Grocott, Bruce Powell, Ray (Ogmore)
Hattersley, Rt Hon Roy Prescott, John
Haynes, Frank Primarolo, Dawn
Heffer, Eric S. Quin, Ms Joyce
Hinchliffe, David Radice, Giles
Hogg, N. (C'nauld & Kilsyth) Reid, Dr John
Home Robertson, John Richardson, Jo
Hoyle, Doug Roberts, Allan (Bootle)
Hughes, John (Coventry NE) Robertson, George
Hughes, Robert (Aberdeen N) Ross, Ernie (Dundee W)
Hughes, Roy (Newport E) Ruddock, Joan
Hughes, Sean (Knowsley S) Sheerman, Barry
Illsley, Eric Short, Clare
Ingram, Adam Skinner, Dennis
Jones, Barry (Alyn & Deeside) Smith, Andrew (Oxford E)
Jones, Martyn (Clwyd S W) Smith, Rt Hon J. (Monk'ds E)
Lamond, James Soley, Clive
Leadbitter, Ted Spearing, Nigel
Leighton, Ron Strang, Gavin
Lestor, Joan (Eccles) Taylor, Mrs Ann (Dewsbury)
Lofthouse, Geoffrey Wall, Pat
Loyden, Eddie Wareing, Robert N.
McAllion, John Winnick, David
McAvoy, Thomas Wise, Mrs Audrey
McKay, Allen (Barnsley West) Worthington, Tony
McLeish, Henry
McNamara, Kevin Tellers for the Ayes:
Madden, Max Mrs. Llin Golding and
Mahon, Mrs Alice Mr. Frank Cook.
Gill, Christopher Maxwell-Hyslop, Robin
Glyn, Dr Alan Mayhew, Rt Hon Sir Patrick
Goodhart, Sir Philip Meyer, Sir Anthony
Goodlad, Alastair Miller, Sir Hal
Goodson-Wickes, Dr Charles Mills, Iain
Gorst, John Mitchell, Andrew (Gedling)
Gow, Ian Mitchell, Sir David
Gower, Sir Raymond Moate, Roger
Greenway, Harry (Eating N) Montgomery, Sir Fergus
Greenway, John (Ryedale) Moore, Rt Hon John
Gregory, Conal Morrison, Sir Charles
Griffiths, Peter (Portsmouth N) Morrison, Rt Hon P (Chester)
Ground, Patrick Moss, Malcolm
Grylls, Michael Moynihan, Hon Colin
Gummer, Rt Hon John Selwyn Mudd, David
Hamilton, Neil (Tatton) Neale, Gerrard
Hampson, Dr Keith Nelson, Anthony
Hanley, Jeremy Neubert, Michael
Hannam, John Newton, Rt Hon Tony
Hargreaves, A. (B'ham H'll Gr') Nicholls, Patrick
Hargreaves, Ken (Hyndburn) Nicholson, David (Taunton)
Harris, David Norris, Steve
Haselhurst, Alan Onslow, Rt Hon Cranley
Hayes, Jerry Owen, Rt Hon Dr David
Hayward, Robert Paice, James
Heddle, John Patnick, Irvine
Hicks, Mrs Maureen (Wolv' NE) Pattie, Rt Hon Sir Geoffrey
Hicks, Robert (Cornwall SE) Pawsey, James
Hind, Kenneth Peacock, Mrs Elizabeth
Hogg, Hon Douglas (Gr'th'm) Porter, Barry (Wirral S)
Holt, Richard Porter, David (Waveney)
Hordern, Sir Peter Portillo, Michael
Howarth, Alan (Strat'd-on-A) Powell, William (Corby)
Howarth, G. (Cannock & B'wd) Price, Sir David
Hughes, Robert G. (Harrow W) Raff an, Keith
Hunt, David (Wirral W) Raison, Rt Hon Timothy
Hunter, Andrew Redwood, John
Hurd, Rt Hon Douglas Renton, Tim
Irvine, Michael Rhodes James, Robert
Jack, Michael Riddick, Graham
Janman, Tim Ridsdale, Sir Julian
Johnson Smith, Sir Geoffrey Roberts, Wyn (Conwy)
Jones, Gwilym (Cardiff N) Roe, Mrs Marion
Jones, Robert B (Herts W) Rossi, Sir Hugh
Jopling, Rt Hon Michael Rost, Peter
Kellett-Bowman, Dame Elaine Rowe, Andrew
Kennedy, Charles Rumbold, Mrs Angela
Key, Robert Ryder, Richard
King, Roger (B'ham N'thfield) Sackville, Hon Tom
Kirkhope, Timothy Shaw, David (Dover)
Knapman, Roger Shaw, Sir Giles (Pudsey)
Knight, Greg (Derby North) Shephard, Mrs G. (Norfolk SW)
Knight, Dame Jill (Edgbaston) Shepherd, Colin (Hereford)
Knowles, Michael Shersby, Michael
Knox, David Skeet, Sir Trevor
Lamont, Rt Hon Norman Smith, Tim (Beaconsfield)
Latham, Michael Soames, Hon Nicholas
Lawrence, Ivan Speller, Tony
Lee, John (Pendle) Spicer, Sir Jim (Dorset W)
Lennox-Boyd, Hon Mark Spicer, Michael (S Worcs)
Lightbown, David Squire, Robin
Lilley, Peter Stanley, Rt Hon Sir John
Lloyd, Sir Ian (Havant) Steen, Anthony
Lloyd, Peter (Fareham) Stern, Michael
Luce, Rt Hon Richard Stevens, Lewis
Lyell, Sir Nicholas Stewart, Andy (Sherwood)
McCrindle, Robert Sumberg, David
Macfarlane, Sir Neil Summerson, Hugo
MacKay, Andrew (E Berkshire) Taylor, Ian (Esher)
Maclennan, Robert Taylor, John M (Solihull)
McLoughlin, Patrick Taylor, Matthew (Truro)
McNair-Wilson, Sir Michael Taylor, Teddy (S'end E)
McNair-Wilson, P. (New Forest) Tebbit, Rt Hon Norman
Maginnis, Ken Temple-Morris, Peter
Malins, Humfrey Thompson, Patrick (Norwich N)
Mans, Keith Thurnham, Peter
Maples, John Townend, John (Bridlington)
Marshall, John (Hendon S) Townsend, Cyril D. (B'heath)
Marshall, Michael (Arundel) Tracey, Richard
Martin, David (Portsmouth S) Trotter, Neville
Twinn, Dr Ian Wiggin, Jerry
Wakeham, Rt Hon John Winterton, Mrs Ann
Walden, George Winterton, Nicholas
Walker, A. Cecil (Belfast N) Wood, Timothy
Waller, Gary Woodcock, Mike
Wardle, Charles (Bexhill) Yeo, Tim
Warren, Kenneth Young, Sir George (Acton)
Watts, John
Wells, Bowen Tellers for the Noes:
Wheeler, John Mr. David Maclean and
Whitney, Ray Mr. David Heathcoat-Amory.
Widdecombe, Ann

Question accordingly negatived.

Amendment made: No. 4, in clause 15 in page 10, line 5 leave out 'if necessary by force'.—[Mr. Kenneth Carlisle.]

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