§ Mr. Charles Clarke
I beg to move amendment No. 15, in page 18, line 37, after "detained", insert—'In accordance with subsection (5) or (6) or'.
Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendments Nos. 16 to 21.
Amendment No. 164, in schedule 7, page 111, line 37, leave out "a judicial authority" and insert "the Secretary of State".
Amendment No. 137, in page 111, line 44, leave out "seven" and insert "four".
Amendment No. 179, in page 111, line 44, leave out "seven" and insert "five".
Amendment No. 165, in page 112, line 1, leave out subparagraph (4).
Government amendments Nos. 77 to 81.
Amendment No. 166, in page 112, line 23, leave out "A judicial authority", and insert "The Secretary of State".
Amendment No. 167, in page 112, line 39, leave out "judicial authority", and insert "Secretary of State".
Amendment No. 168, in page 112, line 39, leave out from "application" to end of line 4 on page 113.
Government amendment No. 82.
Amendment No. 169, in page 113, line 7, leave out "judicial authority" and insert "Secretary of State".
Amendment No. 170, in page 113, line 11, leave out "A judicial authority" and insert "The Secretary of State".
Amendment No. 171, in page 113, line 26, leave out subparagraph (3).
Government amendment No. 83.
Amendment No. 172, in page 113, line 31, leave out "a judicial authority", and insert "the Secretary of State".
430 Government amendments Nos. 84 to 89.
§ Mr. Clarke
The Government amendments are minor and are intended to allow the judicial authority to adjourn proceedings and to define the point at which the application is made.
§ Mr. Lidington
Several of the amendments in this group were tabled by my right hon. and hon. Friends and me. I had a good go at the subject in Committee, so I shall not detain the House overlong. This is an important subject, as both sides of the Committee recognised. The Government propose to substitute for the authority of the Secretary of State the authority of a judicial authority to determine applications by the police for the extension of detention permitted under clause 40 and schedule 7.
When the Brogan case was originally judged by the European Court of Human Rights, the United Kingdom decided to derogate from the human rights convention in respect of terrorist offences to do with Northern Ireland. The reasons for that decision were important. I understand that the present Government approach the subject from a different perspective and that they have long been committed to the principle of substituting judicial authority for ministerial authority, but I still have concerns that I want to air in the House.
We have just debated the question of proscriptions and deproscriptions. The Minister and I agreed that it was properly the responsibility of a Minister and not of a judge to examine sensitive security and intelligence and to come to an informed conclusion about whether a recommendation should be made to Parliament for the proscription of a terrorist organisation. An analogy can be drawn between that and the proposals in this group of amendments.
The amendments cause us to consider what should happen when a senior police officer is in receipt of sensitive security and intelligence information about the activities or plans of a terrorist suspect. Let us assume that that officer decides that it is necessary, for the furtherance of his terrorist investigation, to apply for an extended period of detention for the individual involved. Should scrutiny of that sensitive information be the responsibility of a Minister, or should it be the responsibility of the sort of judicial authority that the Government propose to establish? Strong arguments can be made that such scrutiny should be performed by the Executive, and not by any judicial authority.
When the previous Government considered this matter, two arguments above all influenced the decision that Ministers took. The first was the general argument that the responsibility was to form a decision on the basis of sensitive information, and that that was not analogous to judicial involvement in public interest immunity hearings or in extensions of detention under PACE.
Under the PACE procedures, the defendant is told the nature of the evidence on which he has been arrested. He is also told the reasons why his continued detention is necessary. In contrast, the procedural safeguards that the Government propose for extended detention under the counter-terrorism arrangements offer fewer safeguards to suspects, because of the sensitivity of the information in question.
Secondly, the previous Government were influenced by concern for the position of the Northern Ireland judiciary. That judiciary has few members, and consists of people 431 who have often been the subject of terrorist threats and attacks. It also includes people who have the great responsibility of deciding serious criminal cases without benefit of a jury because of fears of witness intimidation by terrorist gangs.
In those circumstances, the previous Government thought it right that responsibility for extensions of detention should remain with the Secretary of State. I believe that, in the aftermath of the Brogan case, the Northern Ireland judiciary was very reluctant to take on that responsibility.
I ask the Minister, when he responds, to take account of the arguments that I have adduced. Is he confident that the judiciary of Northern Ireland in particular is ready and willing to take on the extra responsibilities that the Government propose to impose on them?
§ Mr. McNamara
Schedule 7 is interesting, dealing, as it does, with the provisions under clause 40. Paragraph 26 deals with the extension of detention for up to seven days. I welcome—because I have campaigned for it in the past—the introduction of the judicial element into the procedure when applications are made for extensions of detention. However, I am not certain about the procedures that are being followed in this case.
In the past, we were told that the fact that every case went to the Secretary of State acted as a safeguard in preventing an extension of detention. An examination of the statistics, however, suggests that in every case that went before the Secretary of State—or nearly every case—the extension was almost automatically granted. Therefore, the procedure's justification as an additional safeguard for the person being detained was not such a safeguard. That is not surprising, because one arm of the Executive was asking another arm of the Executive to carry out a certain function.
A person who is detained will now be able to make an application to the resident magistrate or to the county court to deal with his or her case. The main fault with that procedure is that the suspect, or his lawyer, or both, may be exempted from the court proceedings and therefore will not see, hear or know the grounds upon which the decision is being made. While judicial intervention is to be welcomed, deciding such cases will place an onerous duty on the Northern Ireland judiciary, particularly if cases take place in the absence of the person detained or of his or her legal representative. They will need to bear that in mind, and not follow what seemed to be the practice of previous Secretaries of State.
Under the current system, an application must be made to extend a period of detention from 48 hours up to five days, and then a further application must be made for a further two-day period, up to a maximum of seven days. Under the new procedure, however, it appears that the judicial authority will be able to order an extension for a full five days. If that is the case, the provision may fall short of the desires and wishes of the European Court of Human Rights in Strasbourg, which seemed to indicate that four days was a sufficient period in which a person could be detained without being brought before a judicial authority for a second occasion.
I believe that the period in which people can be detained under such provisions should be a maximum of four days. In providing a way in which detention can be 432 increased to five days, I believe that the Government may again fall foul of the European court. I shall not divide the House on these matters, but we are continuously finding, as we go through the Bill, provisions that seem contrary to the spirit and precise provisions of the European convention on human rights and of the decisions of the court.
§ Mr. Simon Hughes
Two points arise. Following the speech of the hon. Member for Aylesbury (Mr. Lidington) on the Conservative amendments in the group, may I say that I understand the particular Northern Ireland circumstances of the judiciary that make the argument? However, the House would find it inconsistent if, having asked for judicial oversight of applications in the previous group of amendments, I suddenly supported him in seeking to move it from the judiciary to Ministers.
§ Mr. Hughes
The hon. Gentleman is right. I argue that we should keep the provision. Therefore, on the first issue I support the Government's position.
However, on the second issue, I am more concerned—as is the hon. Member for Hull, North (Mr. McNamara)—about the time limits. We went around this circuit once in Committee, as members of that Committee will remember. I draw hon. Members' attention to the fact that, unusually, on this occasion the Government are going beyond what was recommended by the independent review. Lord Lloyd's review considered how much extra detention should be allowed if a warrant was obtained. The answer was four days in total. That matter was picked up in page 36 of the Government's consultation paper, paragraph 8.21 of which states:While Lord Lloyd acknowledges that there have been occasions on which the police might have found it more difficult to bring charges had they not been able to detain the suspect for longer than 4 days, he suggests that—of course, this is a qualification and it is a phrase that comes up regularly—
once there is a lasting peace in Northern Ireland, it ought to be possible to reduce the maximum period for which a suspect could be detained under the new legislation to a total of 4 days—ie. 2 days on the authority of the police plus 2 days with judicial authorisation before charge or release. His views may well have been influenced by the fact that the practice has been that extensions in international terrorist cases have not exceeded a total of 4 days.Three paragraphs of Government justification follow, considering the consultation paper and arguing that the public should be asked to consider seven days. I hope that I am not misrepresenting the Government when I say that they think that, given the growing threat of international terrorism, they need the maximum possible power. This is one of those occasions on which the Government seem to be going further than they need—and further than reconunended—for no good reason other than the prospect that terrorism is growing throughout the world, so they may need more power. That is the wrong precedent to set in a Bill that we are going to lock into our future history.
If we could not come back to the Bill, we would have to legislate for the worst-case scenario in five, 10 or 20 years. There will be an annual report, but we will not necessarily have an opportunity to reconsider the 433 legislation, as we will do later with the motion to approve the continuance of the emergency powers legislation—if we get that far.
I caution the House, and ask the Minister to justify why we should go beyond the recommendation made by the Government's adviser by nearly doubling the period that he recommended, not on the basis of clear evidence that four days has not been adequate, but on the theoretical basis that seven days would be more advantageous to the authorities. The latter is self-evident.
We must resist Governments gaining power, in particular where they have not made a case for doing so that is based on past practice. This is one of those cases.
§ Mr. Charles Clarke
First, I will deal with the amendment tabled by my hon. Friend the Member for Hull, North (Mr. McNamara). We had a broadly similar argument in Committee. The purpose of the amendment is to reduce the time that a person may be kept in detention from seven to four days. It is likely that the amendment is inspired by the Northern Ireland Human Rights Commission, which, reasonably, submitted evidence on the subject. It argues that detention for more than four days and six hours, as identified in the Brogan case, might be a breach of the European convention on human rights. The Brogan case centred on the time in detention without judicial sanction. The judgment in that case is not relevant to the time that is permissible with judicial approval.
I fully recognise that Lord Lloyd recommended four days' detention in total, even with judicial involvement, but he did not recommend such a reduction in the circumstances that prevailed at the time of writing his report. He was satisfied that there were occasions when the police might have found it more difficult to bring charges if detention were limited to four days. The Government continue to believe that there may be occasions when the police need more than four days and we are introducing judicial authorisation, which is a major departure. As I said in Committee, the judicial authority will have to be satisfied as to the police need for further detention; the Bill requires him also to be satisfied that the investigation is being conducted diligently and expeditiously.
Seven-day detention will remain a rare occurrence, but the provision is needed none the less. I repeat the figures that I quoted in Committee on that matter. The figures for PTA detentions in Northern Ireland from 1 July to 30 September show that four persons were detained in the three to four-day period; two were charged and two were released. In the four to five-day period, two persons were detained; one was charged and the other released. In that quarter, no individuals were detained for more than five days.
I do not accept that seven-day detention breaches the Brogan judgment, which found that detention for four days and six hours was a breach of the convention. The judgment centred on the lack of judicial involvement in the detention process—not on the precise time. Nor do I accept that the judicial authority will grant five-day detentions as a matter of course. The Bill provides for further extension to be granted; that reflects the current position where extensions are granted incrementally.
However, I do not favour placing a statutory limit on the time that can be granted per application. That will be a matter for the judicial authority based on the evidence 434 before him. The ECHR demands that the authority hear both sides; the Bill delivers that. I hope that my hon. Friend will consider withdrawing his amendment.
As for the amendment tabled by the hon. Member for Aylesbury (Mr. Lidington), I agree with him that the issue is extremely important, and, as he acknowledged, we debated it in Committee. The effect of the amendment would be to remove the judicial authority from the process. We would revert to the current position in which extended detention is a matter for the Secretary of State. On Second Reading, the official Opposition suggested that that was a proper role for the Executive—even though it would require continued derogation from the convention. The point was expanded in Committee where the hon. Gentleman suggested that the role was not a proper one for the judiciary—as he has also done this evening.
There is a fundamental difference in the approaches taken by the Opposition and by the Government. It is a perfectly reasonable difference of principle of which I make no criticism. However, the amendments miss the opportunity to place decisions about the liberty of the individual in the hands of those who are best placed to make such a judgment—the judiciary. To take that opportunity would meet our ECHR obligations and, happily, from our perspective, would enable the UK's derogation from the convention to be withdrawn.
Since May 1997, an important aspect of Government policy has been that we should end the UK's derogation from the ECHR. One of the effects of our approach in this matter would be to achieve that.
I fully acknowledge that there is more than one way to approach an issue. In this case, the official Opposition elect to retain executive authority, while the Government believe that it is right to follow the judicial route. For the reasons I have given, I hope that the Opposition amendments will not be pressed to a vote.
I commend the Government amendments to the House.
§ Amendment agreed to.
§ Amendments made: No. 16, in page 18, line 38, leave out "apply" and insert "make an application".
No. 17, in page 18, line 38, leave out—
'Part III of that Schedule'
'paragraph 26 of Schedule 7'.
§ No. 18, in page 18, line 41, leave out "is being made or"
No. 19, in page 18, line 41, leave out from "under" to second "a" in line 42 and insert—
'paragraph 26 or 32 of Schedule 7 in respect of.
No. 20, in page 19, line 1, leave out from "Where" to "in" and insert—
'an application under paragraph 26 or 32 of Schedule 7 is granted'.
No. 21, in page 19, line 3, at end insert—
'() The refusal of an application in respect of a person's detention under paragraph 26 or 32 of Schedule 7 shall not prevent his continued detention in accordance with this section.'.
No. 22, in page 19, line 3, at end insert—
'() A person who has the powers of a constable in one Part of the United Kingdom may exercise the power under subsection (1) in any Part of the United Kingdom.'.[Mrs. McGuire.]