§ '.—(1) All persons detained under section 40 of this Act shall be promptly informed of their right to consult privately with a solicitor and to have a solicitor present at all interviews to be conducted under this Act.
§ (2) All persons wishing to consult a solicitor must be permitted to do so as soon as is reasonably practicable.'.—[Mr. McNamara.]
§ Brought up, and read the First time.
Mr. Deputy Speaker
With this it will be convenient to discuss the following: Amendment No. 173, in clause 40, page 18, line 34, at end insert—'(3A) Where a person is detained under this section for more than 36 hours, a police officer shall state in writing the reasons for continuing to detain him.'
§ Government amendments Nos. 60 to 64 and 67 to 69.
Amendment No. 178, in schedule 7, page 109, line 9, at end insert—
'and, subject to paragraph 19, shall be completed and the decision notified to the detained person within four hours of his arrest.'
§ Government amendments Nos. 70 to 76, 96 to 99, 109 and 116.
§ Mr. McNamara
The question of legal access is interesting, and it appears to be missing from the Bill. I want to assert the right of detained persons to have access to legal advice promptly, before the questioning starts.
364 The situation in Northern Ireland is especially problematic, as those arrested in Britain under the Prevention of Terrorism Acts have, over the years, effectively been held under Police and Criminal Evidence Act 1984 conditions. One former head of the Met said that anybody who was arrested under the PTA in his area would always be held under PACE conditions.
The emergency provisions Act contains a provision allowing for deferral of access to a solicitor for up to 48 hours, which was used widely in Northern Ireland until the 1990s and is still occasionally used. Even when a suspect got access to a lawyer, the lawyer was not permitted to stay in the interview with the suspect, as is the case with PACE. There appears to have been no statutory basis for that exclusion, which resulted from Royal Ulster Constabulary policy and had not been subject to judicial review.
The only occasion when the matter arose was in Murray v. United Kingdom, a case in Strasbourg, in which the applicant argued that the exclusion of his lawyer from the interviews constituted a violation of article 6, which concerns the right to a fair trial. The court did not express an opinion on that point, having already found a violation on the basis of deferral of access to Murray's solicitor, combined with the drawing of inferences from his silence. Its attitude to the exclusion of a solicitor is not clear, but it said:It is of paramount importance for the rights of the defence that an accused has access to a lawyer at the initial stages of police interrogation.
§ Mr. Bermingham
Does my hon. Friend agree that the current preferred thinking is that the refusal of access to a solicitor during an interview would be a breach of article 6.3 and that the court would rule against us, as it appears that the idea of a fair trial—equality of arms—is paramount and the right exists throughout the rest of the United Kingdom?
§ Mr. McNamara
If I understood my hon. Friend correctly, I agree.
Article 6.3, which should be enforced, does not appear in the legislation. I seek an undertaking that there will be access to a solicitor. That is implicit in the Bill, but not specific. I tabled the new clause in the hope that, when their Lordships in one place or another read our debates to see what was intended, a statement from the Front Bench will be on the record.
§ Mr. Harry Cohen (Leyton and Wanstead)
I want to speak mainly to amendments Nos. 173 and 178, although I would also like to say a word about Government amendment No. 64.
Clause 40 concerns arrest without warrant. Liberty issued a briefing note for our Second Reading debate. It said:
The Government intends to retain the arrest powers of the PTA which entitle the police to arrest without warrant anyone who they have reasonable grounds for suspecting. Liberty has long been concerned about the existence and operation of this power and considers that it should not he retained for the following reasons:it is unnecessary: there is no evidence that the PACE powers of arrest are inadequate.it is too wide: it permits a police officer to arrest where the person is not suspected of committing any offence …365powers have been used in the past simply as an intelligence gathering device.These points are particularly important in view of the widened definition of terrorism.That is quite a critique of the power, on the use of which amendment No. 173 is designed to put only a small restraint.
I am concerned about people being held incommunicado. One of my first cases as a Member of Parliament, in the 1980s, was when a constituent came to my advice surgery and reported that she had been to the police because she thought that her son had disappeared and she wanted to report the fact and get their help to find him, but it later transpired that the police were holding him and had not informed her. That was a dreadful abuse of civil liberties.
The police have increasing powers to hold people, but the rights of both the person detained and the family are very important.
§ Dr. Godman
I remind my hon. Friend that he dealt with a case involving my nephew, Luke, who was detained for eight hours in a police station in his constituency. He will confirm that my nephew was innocent of any misdemeanour.
§ Mr. Cohen
I cannot remember all the cases that I have had in 17 years in Parliament, but I am happy that my hon. Friend has put that on the record and that I was able to help his nephew. I am happy to help all my constituents in such circumstances.
Lord Lloyd of Berwick's report on his inquiry into legislation against terrorism—Cm 3420—has been quoted a lot. Paragraph 9.26 on page 48 says:
In England and Wales, whether a person is arrested under PACE or under the PTA, he has the right to consult a solicitor and to have the solicitor present during interview. He is also entitled to have someone he knows informed of his arrest. These rights may be delayed on the authority of a superintendent if he reasonably believes that such communications might be detrimental to the investigation for one or more specified reasons. The maximum period during which a detainee may be held incommunicado corresponds with the length of time for which he may be detained without further authority. Thus, in non-terrorist cases the rights of access may be delayed up to 36 hours whereas a terrorist suspect may be held incommunicado for up to 48 hours. Furthermore, in terrorist cases an officer of Assistant Chief Constable rank or above may order that consultations with a solicitor are to take place within the sight and hearing of a uniformed officer of at least the rank of inspector.That makes it clear that, in non-terrorist cases, the norm is 36 hours. If the period is to last longer than that, it is not unreasonable that the reason for the delay and denial of rights should be specified. A simple explanation would suffice, perhaps involving the suspicion of terrorism, but some concrete justification should be given and someone should not be kept an extra 12 hours and denied those rights without genuine suspicion. That would subvert PACE, because every case could be treated as a terrorist case and a person detained for an extra 12 hours without anybody being notified.
§ Mr. Bermingham
Does my hon. Friend agree that, if those games of holding persons incommunicado—the purpose of which is to put pressure on prisoners—are played, those actions would be subject to subsequent 366 inquiry by the court and, after 2 October, by the European Court of Human Rights? It is ludicrous that we should lose cases because of unnecessary provisions such as the ones before us.
§ Mr. Cohen
That is a good point. It would not be difficult to give a reason, because the Government's proposals in the legislation against terrorism consultation paper suggest that a written record should be kept of the outcome of the review of the case. Lord Lloyd also made it clear that delay had to be for specified reasons.
Lord Lloyd also pointed out that a survey of those detained under the PTA in Britain in 1989–90 found that legal advice was delayed in some 26 per cent. of cases and there was a delay in informing someone of a person's detention in 44 per cent. of cases. Those are high figures, and I hope that we will not see a return to such wholesale denial of rights. In a sense, the Bill would legalise those delays.
Other hon. Members have mentioned the European Court of Human Rights and its judgment in Murray v. United Kingdom. The court found that the denial of access to a lawyer, when combined with the trial court's right to draw adverse inferences from silence under questioning, violated the detainee's rights under article 6 of the European convention on human rights. Consequently, the circumstances that gave rise to the successful challenge in the Murray case could now arise throughout the United Kingdom. I would like an assurance that the Government have addressed that point so that we will not face similar judgments in future.
Amendment No. 178 seeks to ensure that a detained person has access to his or her family after four hours of detention and that the first review of the case should be completed by then. I admit that the figure of four hours has been plucked out of the air, but a review of the case could reasonably be completed within that time. It would be better than a long time without any proper review and the denial of rights of the person being held.
The amendment would amend the review process. I want to ensure that individual rights are maintained, although that is outside the review process. However, the amendment would build on the existing requirement for a review officer to inform the detained person of his rights as soon as continued detention has been authorised, by adding a requirement that the first review must be completed and the decision notified to the detained person within four hours of his arrest. At that point, the detained person would have to be notified of his rights, otherwise—as far as I can see—he would be left without having been notified of his rights for an indefinite period. The amendment would extend the civil liberties of the person involved.
I am concerned about the drafting of Government amendment No. 64, which is not as tight as I would have hoped. The Government may be able to reconsider in the other place. The amendment repeatedly mentions doing thingsas soon as is reasonably practicable.That is a bland requirement, and no explanation for undue delay need be given. No indication is given of how long that requirement could be. The amendment also states:The person named must be … a friend of the detained person … a relative, or … a person who is known to the detained person who is likely to take an interest in his welfare.367 What if none of those categories applies? For example, people from abroad might have no one in those categories in this country. Much abuse is being heaped on beggars at the moment. If they were taken into a police station under these powers, they might have nobody in those categories available.
The amendment also states:Where a detained person is transferred from one police station to another, he shall be entitled to exercise the right … in respect of the police station to which he is transferred.Will that mean that he will be denied those rights at the first police station he is taken to, with the excuse that he will eventually be transferred, thus increasing the delay? It also states that a detained person mayconsult a solicitor as soon as is reasonably practicable, privately and at any time.However, that right is negated later in the amendment, when it provides thata detained person … may consult a solicitor only in the sight and hearing of a qualified officer.Bang goes the right to privacy.
§ Mr. Bermingham
Does my hon. Friend know why is it necessary to put such provisions in the Bill, which will open us up to litigation in the European Court after 2 October, because the European convention on human rights contains the right to private consultation?
§ Mr. Cohen
That is why we need an explanation of Government amendment No. 64. It also states thatan officer of at least the rank of superintendent may authorise a delay.It gives a list of reasonable grounds for authorising a delay, but it does not say that an officer must specify the reason on which he relied. In my view, the reason should be put on the record formally and explained to the detained person.
The amendment also states thatthe reason shall be recorded as soon as is reasonably practicable.As I have already said, that is vague and provides no proper time limit.
§ Mr. Cohen
The phrase could be interpreted in all those ways. That is what is worrying. Given that the police are always busy with crimes, they could say that it was reasonable to delay making a decision on a case, with the result that the person detained could be held a lot longer.
The term is vague. I hope that the Government will at least put time limits on what they consider to be reasonably practicable.
Proposed new subsection (7) states that delays can take placein the absence of a further authorisation under sub-paragraph (1).That means that there could be repeated delays in granting rights to a detainee.
368 I acknowledge that the Government want to improve matters with amendment No. 64, but it is too loosely worded. It needs to be tightened up to ensure that civil liberties are protected.
§ Mr. Simon Hughes
We support new clause 4, and the amendment tabled by the hon. Member for Leyton and Wanstead (Mr. Cohen) touches on some matters raised in Standing Committee. He alluded to the reasonable suspicion test, which we tried to amend in Committee.
This debate illustrates the main point of the previous debate. There is no great difference between the parties about the fact that permanent legislation may be needed, but what should it contain? The powers of detention, the period for which people can be held in detention, how long they can be held before they can talk to a solicitor, or before their families are told—all those matters must be reviewed in the light of experience. They appear again and again in the Lord Lloyd review and in the annual reviews held at present. There needs to be a more regular review system for the legislation.
The hon. Member for St. Helens, South (Mr. Bermingham) mentioned a matter that the Standing Committee touched on regularly. The law will be changed fundamentally when the Human Rights Act 1998 comes into force in October. Not many people outside the House are aware of it, although it may turn out to be one of this Administration's most important achievements. The fact that that Act is coming down the track should make us sensitive about passing legislation that recent case law suggests may be in breach of it, as the hon. Member for Leyton and Wanstead said.
The Secretary of State has asserted that the Bill is compatible with the European convention on human rights, but other legal advice states that parts of it are not compatible with the convention. Where case law warning bells ring about periods of detention, the right to see a solicitor and so on, we should err on the side of caution and legality. We should not give excessive power to the authorities, even if we have to revisit the provisions because they are not perfect.
Britain will not be well served, and Parliament's reputation will be spoiled even further among those people who dislike it already, if we are dragged back again to the European Court for breaches of the convention. We must not ignore those warning bells, which are ringing rather loudly.
§ Mr. McNamara
Is not one of the sad things that we have yet to see the evidence that the Government claim renders the Bill compatible with the convention, despite the number of challenges to that claim?
§ Mr. Hughes
In Committee, I offered to show the Minister of State my legal advice if he would show us his. I have not seen the Government's legal advice. I have mine with me, and the Minister is welcome to see it.
The hon. Member for Hull, North (Mr. McNamara) makes a good point. On issues such as this, the advice to Government must be placed in the public domain. However, the Government must heed the case law, the European convention on human rights and the Human Rights Act 1998. They must try to share the best advice and 369 err on the side of caution. Otherwise, they will have to return to the courts to defend this Bill, and what we have warned about today will come to pass in about a year.
§ Mr. Bermingham
I was not going to speak in this debate, but I wandered into the Chamber to listen to my hon. Friend the Member for Hull, North (Mr. McNamara) who, like me, has had a long involvement in Irish politics in one way or another.
I declare an interest. I am a practising lawyer, and I paid £175 to go on the Bar Council course on human rights legislation. The Human Rights Act 1998 brings the European convention into our domestic law, and is one of the most far-sighted pieces of legislation of my lifetime, and possibly of the previous century. It establishes, once and for all, a person's right to a fair trial. It also establishes equality of arms—as it is phrased—between the rights of an individual and those of the state.
That that has not always been true of our law was especially clear in the 1970s. I served on the Standing Committee that scrutinised the Police and Criminal Evidence Act 1984, when we examined a detained person's rights, and especially that person's right to legal advice and access. The so-called PACE code followed, and it has served us well. If I say that the Court of Appeal has sometimes sought to negate that legislation, and slim down the rights conferred by Parliament, I do so with my tongue in my cheek.
The 1984 Act was far-sighted. One of the cardinal principles of our law has always been the right to legal advice. If it is good enough for the man accused of murder, it is good enough for anybody else. Everybody who is arrested for a domestic crime, save in exceptional circumstances, has almost immediate access to a lawyer. That lawyer has a right to be present throughout the inquiries that are made; he has a right to advise his client whether to say something or not. The laws on the right to silence have changed over the years. Be that as it may, the right of access to a lawyer is at the very heart of our inquisitorial system, which is an accusatorial process when it comes before a court.
§ Mr. Bermingham
My hon. Friend makes a good point, and I will come to it in a moment.
As I said, that right has always been absolute, and people have always been entitled to privacy and integrity. In police stations up and down the land, facilities are available to enable people to have private consultation. The telephones are meant to be secure—there has just been a ruling in a prison case, so the authorities cannot tap telephone calls. There is another case going before the House of Lords, and if that does not succeed before 2 October, it will inevitably go to Europe, where it will succeed. Listening in to telephone calls is an invasion of human rights, and interferes with the equality of arms.
370 The European Court of Human Rights is not just a court for the European Union. It is for the whole of Europe, and stretches across some 26 countries.
§ Mr. Bermingham
I am grateful to my hon. Friend for that. The tests and standards are meant to be the same throughout.
Why should Northern Ireland be different? Why should there be a class of case in which there is not the right for a lawyer to be present at an interview? I do not want to vote on this; I just want the Minister of State to say, "Okay, we'll put it in." The Bill can be amended. What do we lose by including the new clause and making things clear? If we do not do it, it will be done for us.
The trouble with some of these cases, which people often forget, is that if we play games with legislation that is not clear, honest and obvious, we give people who may well be guilty of crime the opportunity to have their convictions quashed later on a technicality. Why on earth do we run the risk?
In some of the cases that went before the European Court, there was overwhelming evidence but, because our rules were not fair, convictions were quashed. Does that really serve justice? The answer is no. When we detain people and deny them access to lawyers, do we achieve anything in a judicial sense? What on earth is the purpose of keeping someone incommunicado? I can understand it while people are being arrested and there is a rolling round-up of villains. The classic example is the armed robbery: the police hold incommunicado those they have caught escaping from a bank. That is perfectly reasonable and proper, because the notice of their arrest may well alert people whom the police are seeking to trace and arrest. No one objects to that. Including such a provision in legislation on terrorism would be equally understandable and proper. The reasoning would be in front of us, and there would be no query about it.
The minute we go beyond being reasonable and do not write into the law the equivalent of the law in other fields, whether in terrorism or something else, we open ourselves up to subsequent actions in the European Court that can lead to the quashing of convictions. Under article 6, if we get it wrong, there is no second chance, no retrial—the conviction is quashed. That is what we saw in the Murray case, which never actually got to the point about legal advice. There were already enough grounds to quash it. The European Court does not necessarily take every point. It looks at the strongest points and rules on those. Murray was one case, and Davis and Johnson is another. Not getting public interest immunity inquiry cases right leads to the quashing of convictions.
So it goes on. In 1984, we wanted to avoid miscarriages of justice, and much legislation has been put in place since then. We have seen some pretty terrible cases, but we create cases of injustice when we do not have simple and fair laws. I ask the Minister of State just to look later at the new clause—that will be good enough for me. They tell me that this is a listening Government, and I hope that they will also listen to me about something else that I raised. I do not like voting against the Government. I try not to. If the Minister of State simply looks at the new clause, he will see the wisdom of ensuring that the law in 371 Northern Ireland is exactly the same as the law in England and Wales. If that is so, we ain't got a problem. Why can it not be like that?
§ Dr. Godman
I promise that I will be brief. I wish to seek clarification with regard to new clause 4 which, it has been suggested to me, excludes Scotland. Yet it refers to clause 40, subsection (3)(b) of which refers to someone being detained under schedule 6. In the table of designated ports in schedule 6, five of them are in Scotland—Ardrossan, Cairnryan, Campbeltown, Stranraer and Troon. If things go well over the next few months, Port Glasgow may have to be added to that list. Negotiations are taking place about a ferry service between Northern Ireland and Port Glasgow. I believe that a ferry terminal will be built there.
This is not a facetious point. We know that extremists on both sides of the divide have their supporters in Scotland. Recently, a person convicted of a terrorist crime was released and has applied to a Scottish university to read for a degree in political science.
The new clause states that all persons detained should have a solicitor present at all interviews to be conducted under this measure. The presence of a solicitor in such interviews is, I believe, standard practice in police and criminal procedures in England. That is not the case in Scotland, and that might present a difficulty if the new clause includes Scotland, as I think that it must, given what I have said about clause 40(3)(b).
Given the activities of some people in Scotland in relation to extremist organisations in Northern Ireland, do persons detained under the Bill have the same rights when being interviewed as apply elsewhere in the United Kingdom?
§ Mr. Bermingham
My hon. Friend makes a very good point about Scotland. Will he accept from me that the inquisitorial procedures in Scotland, with the role of the procurator fiscal, the way in which evidence in accumulated and served and the way in which interviewing take place are different from those of England? Whereas Scotland may well have problems in the future with the European Court, we should not allow Northern Ireland to have problems that can be avoided.
§ Dr. Godman
I have two comments in response to my hon. Friend's intervention. The Scottish legal system is now a devolved matter for the Scottish Parliament. However, there is a difference between the two systems concerning the right to a solicitor. Some years ago, when we were debating a Scottish criminal justice Bill in this place, I sought to amend it along those lines. I was defeated. My right hon. Friend the Member for Glasgow, Anniesland (Mr. Dewar), who then represented Glasgow, Garscadden and who is a lawyer, unfortunately argued against me. However, there is a distinction that has some bearing on the new clause.
§ 8 pm
§ Mr. McNamara
I think that the new clause governs Scotland as well, as it refers to clause 40, which is in part V on counter-terrorist powers, not part VII, which is limited to Northern Ireland.
§ Dr. Godman
I am grateful to my hon. Friend, who has greater knowledge of the law than I. In that case, 372 we may have to amend Scots law, which would be a matter for the Scottish Parliament, even where this sort of legislation is concerned. At the very least, a concordat would have to be established between Ministers from the Home and Northern Ireland Offices and the Scottish Executive.
There are difficulties with the new clause where Scotland is concerned. Even though Scotland has not suffered from the outrages that have been inflicted on English communities—I think that the army general council of the Provisional IRA decided some years ago not to extend the campaign to Scotland—nevertheless senior police officers in the Pitt street headquarters of the Strathclyde police in Glasgow say that numerous supporters of outrageous terrorist activities and activists are based in Scotland.
I merely ask the Minister that persons detained under clause 40 should have the same protection as those detained elsewhere in the United Kingdom.
§ Mr. Lidington
Government amendment No. 64 is the central amendment in this group. It makes sense to relate the other amendments to the Government's proposal. The Government suggest that someone who is detained under the powers in clause 40 should have two rights: to inform a friend, relative or other person of their detention and to have access to a solicitor as soon as reasonably practicable, but subject to a number of exceptions, which are laid down in the Government's amendments to schedule 7.
Labour Members spoke in favour of their amendment. A detainee should have a right to consult his or her solicitor, but the right should be conditional to some extent and should not be left untrammelled. The hon. Member for St. Helens, South (Mr. Bermingham) said how, with a bank robbery, the police might be justified in holding incommunicado members of a gang whom they had captured while they attempted to extract information and get hold of the gang members who had evaded them.
The Government face a difficult balance between the desire to accord people legitimate civil rights and the demands of effective counter-terrorist policing. If someone is allowed unconditional access to a solicitor after detention, there will be a risk that other members of a terrorist organisation may be informed that an arrest has taken place or of a suspicion that an individual has informed the security forces, or that other information may be passed on that would help terrorists to perpetrate their crimes or put the police and security forces at risk.
§ Mr. Bermingham
I think that the hon. Gentleman misunderstood what I said. Under English law, one can hold someone incommunicado for serious arrestable offences. We understand that, it is acceptable and special rules apply. Also, at present one can hold those arrested for terrorist offences incommunicado and no one is suggesting that that should change. The Bill should make it clear that the powers that are being exercised in England and Wales are the powers that will be exercised in Northern Ireland. We are simply saying, "Same place, same powers."
§ Mr. Lidington
The Minister will defend the exact words of the amendment, but the list in sub-paragraphs (4)(a) to (g) is pretty comprehensive in setting out the risks that would legitimately justify withholding access to a solicitor during a counter-terrorist investigation.
373 I understood the intention of the hon. Member for Leyton and Wanstead (Mr. Cohen), but it is a mistake to set a firm time limit for the review of detention. There is always a risk, in particular when one is dealing with officialdom in whatever shape or form, that a maximum time limit will become the minimum. The language of the Bill—that the review should take place as soon as is reasonably practical—offers a better safeguard. In most instances the police service will want to conduct the review and get it out of the way as quickly as possible.
I have three questions for the Minister about the Government amendments. If he cannot reply in detail now, I should be grateful if he would respond in writing in due course.
First, the hon. Member for Greenock and Inverclyde (Dr. Godman) pursued the Scottish angle and schedule 7 seems to include a section that offers safeguards to people detained under clause 40 in Scotland. Amendment No. 64 would put in place comparable safeguards for detainees in England, Wales and Northern Ireland. However, the criteria for withholding access to a solicitor are different. The language of the Bill in page 108, where it relates to Scotland, is much less specific than the items laid down in amendment No. 64, which apply to England, Wales and Northern Ireland. Why is that the case? In practice, is there likely to be a substantial difference between the safeguards and categories of exemption available in England, Wales and Northern Ireland and those available to a detainee in Scotland? That might be an important distinction in an investigation that crosses boundaries within the United Kingdom, if there were indeed a difference of substance in the law that the Government propose.
Secondly, how will the police power to withhold access to a solicitor under certain defined conditions link with the power to seek from a judicial authority an extension of the detention period of up to seven days? Am I correct in my understanding that the Government propose that, provided the conditions in sub-paragraph (4) of amendment No. 64 are met, someone could be denied access to a solicitor for up to the full seven days of detention provided for in the Bill?
Thirdly, I have a question about the right of the detained person to have one named person informed of his detention as soon as reasonably practical. The amendment does not specify the way in which that information should be communicated. The Government clearly realise—in their proposals on legal advice—that there need to be safeguards in relation to the police and the conduct of counter-terrorist investigations. Do not those problems also arise as regards alerting a friend, relative or other person interested in the welfare of the detainee?
Is there a risk that exercising that right, which seems to be unconditional—according to my reading of amendment No. 64—would lead to information getting out that would put lives, or a terrorist investigation, at risk in the same way that the Government have accepted might happen if there were untrammelled access to a solicitor's advice? What is the Government's reason for making that difference between the two categories of right that they want to extend under the amendment?
I look forward to answers to those questions, but the Opposition are broadly content with the Government's proposals.
§ Mr. Charles Clarke
The discussion has been interesting. I welcome the opportunity to speak briefly on several of the issues raised.
My hon. Friend the Member for Hull, North (Mr. McNamara) referred to access to solicitors. I shall deal with the points that he made and with Government amendment No. 64, and the amendments grouped with it, in the same context. There is not much difference between my hon. Friend's position and that in the Government's substantive amendment No. 64 and the others. There is universal acknowledgement that prompt access to a solicitor should be the norm in any of the circumstances outlined in the provisions. However, there is a difference between us; I shall deal further with that when I have made the general case for the Government's substantive amendments.
The Government believe that in terrorist cases, as in ordinary cases under the Police and Criminal Evidence Act 1984, it should be possible in very rare circumstances—I stress that point—on the authority of a senior officer, to delay access to a solicitor. As I understand my hon. Friend's new clause, he thinks that that should not be possible in any circumstances. That is a difference between us. As the hon. Member for Aylesbury (Mr. Lidington) noted, it is a matter on which a balance of judgment has to be made. I shall put some flesh on that point in a moment. Before doing so, I shall explain the effect of the Government amendments.
The Government amendments will add to the Bill the circumstances in which the right to advise someone of one's detention and/or to consult a solicitor may be deferred. When the Bill was introduced, that was achieved by amendments to sections 56 and 58 of PACE and the equivalent Northern Ireland PACE order, found in schedule 13. In the course of drafting those provisions, some technical deficiencies were identified and it was decided, for the ease of the reader, that rather than merely tidying them up by amendment, they should be included in the Bill. That is in line with the provisions for Scotland set out in paragraphs 12 to 16 of schedule 7. I hope that approach will be broadly welcomed.
My hon. Friend the Member for Greenock and Inverclyde (Dr. Godman) and the hon. Member for Aylesbury made some points about the situation in Scotland. The legal position in Scotland is addressed in paragraphs 12 to 16 of schedule 7. As my hon. Friend pointed out, Scotland has a separate criminal justice system, so matters are not dealt with in quite the same way.
In response to the point made by the hon. Member for Aylesbury, let me say that the criteria are slightly different, but as they are consistent we do not think that any substantial difference will emerge. We have considered the issue carefully. However, in the light of the points made in the debate, I am prepared to consider whether my assertion needs closer scrutiny. The hon. Gentleman made a fair point, but the reason why Scotland is dealt with separately is—as my hon. Friend the Member for Greenock and Inverclyde pointed out—that Scotland has a separate system.
The amendments do not change our policy on the arrangements for those detained under the terrorism provisions; they ensure that such people usually have a 375 prompt means of communicating with a named person and/or can obtain access to a solicitor. The amendments continue to provide that those rights would usually be available as soon as practicable. They also provide that, under the Prevention of Terrorism Acts, as at present—I emphasise that that is the situation that exists as we speak—and as provided for when the Bill was introduced, those rights may be deferred in certain circumstances for up to 48 hours.
The circumstances in which the rights may be deferred are set out in paragraph 2C(4) of amendment No. 64. Seven alternatives are envisaged. The first four apply in all PACE cases; the last three are specific to terrorist cases. They include circumstances in which there is reasonable suspicion that access to a solicitor will have the effect of making it more difficult to prevent a terrorist act, or to apprehend someone involved in such an act, or to gather information about the commission, preparation or instigation of acts of terrorism.
That is the fundamental point with which I respond to the intervention made by my hon. Friend the Member for St. Helens, South (Mr. Bermingham). He asked what was different for Northern Ireland. The difference is that we are talking about terrorist legislation. That is what gives rise to the whole measure and to some of the issues that have been raised.
§ Mr. Bermingham
I am not against the idea of delaying the right of access; it is already acceptable in serious, arrestable offences. It is certainly acceptable in terrorist offences—because of the pursuit and arrest of other suspects and so on. The point on which I intervened is my grave concern about the presence of a solicitor during an interview. I can see no reason why that should ever be denied.
§ Mr. Clarke
I understand the point that my hon. Friend makes; I shall return to it in a moment.
We do not expect access to be deferred often. Records for England and Wales show that access has not been deferred in any terrorist cases during the past three years. In Northern Ireland, access was deferred in only 19 cases in 1999, in four cases in 1998, and in 33 cases in 1997. However, it is important to be able to defer access in exceptional cases. That brings me to the new clause tabled by my hon. Friend the Member for Hull, North and the points that he made.
It would not be sensible to bind ourselves to a position in which it was never possible to defer access to a solicitor. If I understand my hon. Friend the Member for St. Helens, South, he appeared to acknowledge that in his intervention. That is not to suggest that the Government assume that some solicitors may have links with terrorism—any more than the fact that such provision exists under PACE for detention in non-terrorist cases suggests that we assume that solicitors might have links with organised crime. However, we must provide in law for the possibility that such a situation might occur. Otherwise, with the absolute right that the new clause provides, even if the police knew that a nominated solicitor was directly linked to a terrorist group, they would be powerless to defer access. However rare we might all believe such circumstances to be—I do not seek 376 to impugn the reputation of solicitors either in Northern Ireland or Great Britain—it is surely our responsibility to ensure that such an eventuality could be dealt with if it arose.
§ Mr. McNamara
I am grateful to my hon. Friend for giving way. My new clause actually states that a person detainedshall be promptly informed of their right to consult privately with a solicitor and to have a solicitor present at all interviews to be conducted under this Act.We are arguing about being interviewed, not about the length of detention—although that might be another argument.
§ Mr. Clarke
It is precisely in response to the concerns expressed by my hon. Friend that a clear provision will be included in the Bill.
My hon. Friend and my hon. Friend the Member for St. Helens, South made some points about human rights. We believe that the Bill is entirely consistent with the European convention on human rights. We have considered the matter at great length and that is why the certificate is in the Bill.
I am perfectly well aware that lawyers may challenge that view, and the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) initiated an entertaining discussion on that in Committee. Indeed, the cynic would say that it is likely that the view will be challenged in law. We believe that the provisions specifically protect the processes that we have described against action in the European Court of Human Rights and under the Human Rights Act 1998.
It is in that context that I deal with the matter raised by my hon. Friend the Member for Hull, North. I am the first to acknowledge the sensitivities of interviewing a person without their having the benefit of a solicitor being present, and those sensitivities include the fact that there could be implications for the weight that may be placed in any subsequent court case on answers given in those circumstances.
§ Mr. Bermingham
My hon. Friend comes to the exact cause of my worry. The problem is the fact that one can draw inferences from the right to silence being exercised or from what is said during an interview. The presence of a lawyer protects the interviewer as well as the interviewee. If we have that in England in criminal and terrorist cases, why on earth are we not including it in the Bill?
§ Mr. Clarke
If my hon. Friend will permit me, I will come to the precise point that he has been raising throughout the discussion.
As I said, the sensitivities include the fact that there could be implications for the weight that may be placed in any subsequent court case on answers given in those circumstances. Sections 76 and 78 of PACE provide for the courts to exclude confessions or other evidence obtained unfairly, and of course it would be for the court to decide whether those provisions applied to evidence adduced in court which was obtained before a solicitor was present. That deals directly with my hon. Friend's point.
As I have said, we do not envisage access being denied other than in the most exceptional circumstances, and we have a responsibility to ensure that those detained under 377 the terrorism provisions, as under PACE, are properly looked after, and that includes having appropriate access to legal advice. Equally, we have a responsibility to prevent acts of terrorism and to apprehend those involved in such acts. That is the balance of judgment that we have made.
I have tried to set out the Government's thinking in response to the points that have been made, and I am prepared to consider whether any of the matters raised need to be addressed. However, what we have said is clear and straightforward.
§ Dr. Godman
I am extremely grateful for the courteous and comprehensive way in which my hon. Friend responded to my concerns about Scotland. On a minor point, in the table of designated ports on page 103, Campbeltown is misspelt.
§ Mr. Clarke
I shall certainly draw that misspelling to the attention of the parliamentary draftsmen.
I turn now to the points raised by my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen). Amendment No. 173 is unnecessary. Paragraph 25 of schedule 7 provides that a review officer must make a written record of the outcome of all reviews and that the record must include the grounds on which continued detention is authorised. That is fundamental to the issues raised by my hon. Friend.
Paragraph 18 provides that the first review of detention must be as soon as practicable after arrest, and reviews must take place thereafter at 12-hour intervals, so although there may not be a review at exactly the 36-hour point specified in the amendment, there will be a review between 36 and 48 hours. As with all reviews, a written record will be made of the outcome, including the reasons for continued detention, and that addresses my hon. Friend's specific point.
Amendment No. 178 in the name of my hon. Friend would require the first detention review to be done within four hours of arrest. In most cases it would not be realistic to have a fixed requirement, and I could not advise the House to accept the amendment. My hon. Friend acknowledged that the figure of four hours was plucked out of the air. I do not suggest that as any criticism of his amendment, but that is essentially the problem in choosing a period, whether it is two hours, four hours or six hours—there is an arbitrary nature to that choice. That is why the wording—[Interruption.]
Mr. Deputy Speaker
Order. I appeal to the House to come to order. There are too many private conversations going on, and the Minister is replying to the points made by hon. Members.
§ Mr. Clarke
I am sorry for going on for slightly longer than I had hoped. Many technical points were made during interventions and I thought that it was courteous to respond to them as fully as possible, even though I am aware that this may not be the height of rhetoric and may not grip everybody in the way that every parliamentarian would wish.
We hold to the phraseas soon as is reasonably practicableprecisely because fixing a particular time would not be effective.
§ Mr. Cohen
I am gripped by interest in the Minister's response, and I accept that my period of four hours before the first review and subsequent report is arbitrary, although it is meant to be a maximum period. My hon. Friend's formula is for the review and report to be doneas soon as is reasonably practicable.Would he expect that to be within four hours?
§ Mr. Clarke
I am certainly prepared to say that the courts would view the period suggested by my hon. Friend as reasonable, but that is a judgment not for me but for the courts, which have to consider situations in the round. Delays can happen for realistic, technical reasons, and they need to be dealt with.
I have tried to deal as fully as I can with the points made by hon. Members, even down to the spelling of important Scottish towns, critical as that is. I hope that, on consideration, my hon. Friend the Member for Hull, North will withdraw his new clause and we will not have a Division.
I am conscious of the time and hon. Members' desire to move on, so I have not spent a great deal of time explaining Government amendments Nos. 60 to 63, which have not been addressed in the debate. I hope that they will be accepted.
§ Mr. McNamara
In view of what the Minister has said and his willingness to look at the points again, presumably before the Bill goes to the other place, and in view of amendment No. 64, which goes some way to meeting our concerns about what was missing from the Bill, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.