Orders of the Day — Terrorism Bill

House of Commons, 9 November 2005.

Clause 23 — Extension of period of detention by judicial Authority

Charles Clarke (Labour, Norwich South)

I beg to move amendment No. 51, in page 22, line 7, leave out 'special'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following: Government amendments Nos. 52 to 55.

Amendment No. 1, in page 22, line 19, leave out 'three months' and insert '28 days'.

Amendment No. 33, in page 22, line 19, leave out 'three months' and insert '60 days'.

Government amendments Nos. 56 to 58.

Amendment No. 29, in page 22, line 36, at end insert—

'(3AB) Where the new specified period will end more than 14 days after the relevant time—

(a) the specified period may only be extended—

(i) pending the result of an examination or analysis which is to be or is being carried out with a view to obtaining relevant evidence, or

(ii) for the purpose of obtaining relevant evidence from outside the United Kingdom or from records within the United Kingdom which cannot reasonably be obtained without such an extension of the specified period;

(b) the specified period may only be extended if the judicial authority is satisfied that there is no reasonable possibility of the detainee being charged immediately with another offence relating to terrorism or a terrorist act;

(c) the judicial authority must approve the nature of any further questioning of the detainee during the new specified period.'.

Government amendments Nos. 59 to 61.

Amendment No. 63, in page 23, line 6, at end insert—

'(6A) After paragraph 37 insert—

"37A (1) Any detained person who has been released—

(a) in accordance with the provisions of paragraph 37 having been detained for not less than 14 days, or

(b) owing to the effluxion of time

("the ex-detainee"), shall be entitled to claim full compensation for his financial losses resulting from his detention.

(2) The Secretary of State shall, within 3 months of the coming into force of section 23 of the Terrorism Act 2005, make regulations establishing a compensation scheme for ex-detainees.

(3) Regulations under sub-paragraph (2) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.".'.

New clause 1—Extension of period of detention by judicial authority: duration—

(2) The Secretary of State may by order made by statutory instrument provide—

(a) that all or any of those provisions which are in force shall continue in force for a period not exceeding twelve months from the coming into opertion of the order; or

(b) that all or any of those provisions which are for the time being in force shall cease to be in force.

(3) No order shall be made under subsection (2) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.'.

New clause 4—Disapplication of Human Rights Act 1998—

'Sections 23 and 24 of this Act shall take effect notwithstanding the Human Rights Act 1998 (c. 42)'.

New clause 7—Duration of Section 23—

'The provisions of section 23 of this Act shall remain in force until one year after their commencement and shall then expire.'.

Government amendment No. 62.

Charles Clarke (Labour, Norwich South)

All the amendments in this group relate to the complex and contentious question of pre-charge detention in terrorist cases. Government amendments Nos. 52, 53, 54, 56, 57, 59, 60 and 62 provide that extensions of detention beyond 14 days must be approved by a High Court judge or, in Scotland, a judge of the Court of Session. That responds directly to concerns raised in the Chamber at Committee stage. Any application that would extend detention beyond 14 days will need to be made to the senior judge. If, for example, on day nine, the police thought that they needed only another couple of days before they would be in a position to release a suspect or suspects, they could still apply to a district judge. If, however, the police were clear at that point that they wanted a further seven days, the application would need to be made to the senior judge.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am grateful to the Home Secretary for giving way at this early juncture. Why is application in Scotland to be made to a court of civil jurisdiction—namely, the Court of Session—for what is essentially a criminal matter?

Charles Clarke (Labour, Norwich South)

Following our exchanges in Committee, I set out clearly to all Scottish Members—I think that the hon. Gentleman will have received my correspondence—the range of issues relating to that particular set of questions. I believe that that addresses the question that he has raised. If not, and he is indicating that it does not, I shall come back to him on the point later in the debate.

In Committee, it was suggested that it was not only the level of judge that was important, but his experience of handling terrorist cases. It was suggested that there should be a cadre of judges designated for that purpose. We have explored that suggestion with the Department for Constitutional Affairs, but it and the judiciary rejected that approach, so it has not been pursued.

Another option raised in Committee, following Lord Carlile's recommendation, was for decisions to be taken by senior circuit judges, with an avenue of appeal to a High Court judge. In our view, that would lead to an appeal in virtually every case with the cases eventually being decided by a High Court judge, so we have achieved the same result with fewer hearings. I can easily explain the effect of the amendments and I have also dealt explicitly with the proposals made by the hon. Member for Stone (Mr. Cash).

It was also suggested that judges should give reasons for their decisions to extend detention. The clear advice we have is that that would open up an avenue of appeal. There is also the risk that the judge might have decided to grant the extension on the basis of sensitive material, so we have decided not to proceed with that suggestion.

Dominic Grieve (Conservative, Beaconsfield)

Can the Home Secretary amplify the exact procedure before the High Court judge? Will it be possible for submissions to be made by the person under detention pending charge? Will he be represented? How will the procedure operate and will the Government publish further material on that point, if necessary?

Charles Clarke (Labour, Norwich South)

The answer is yes. On the procedure, I shall come shortly to the codes of practice that will apply—a point that the hon. Gentleman pressed in Committee and to which I am keen to respond.

I turn to Government amendments Nos. 51 and 58. As the Bill is currently drafted, extensions of pre-charge detention are for seven days unless there are "special circumstances" that warrant a lesser period. The amendments remove the word "special" so that a shorter extension period would be granted if the judge felt that circumstances warranted it. The amendments are identical to ones tabled by the Opposition in Committee, so we are responding to the debate on that issue.

Sylvia Hermon (UUP, North Down)

The Home Secretary will know that successive Chief Constables in Northern Ireland have had to fight terrorism in that part of the United Kingdom. What view does the present Chief Constable, Sir Hugh Orde, have on the renewal of detention every seven days and extensions to 90 days if needed?

Charles Clarke (Labour, Norwich South)

The hon. Lady has more personal experience of the dilemmas caused by such questions than most hon. Members. I have spoken to Sir Hugh Orde on that point, because of his particular experience. He was unequivocally clear, and he authorised me to say so in the House, that the legislation is—in his experience and from his point of view—necessary, and that includes the extension to 90 days. He is also of the view that the seven-day review by High Court judges is the right way to proceed, and that the flexibility that I am discussing is necessary. I hope that Members from Northern Ireland will take account of those views when they vote this evening.

Clare Short (Labour, Birmingham, Ladywood)

Can my right hon. Friend tell the House whether any of our police officers have suggested that we have a power of internment? If they did, what view would the Government take of it?

Charles Clarke (Labour, Norwich South)

Since I have been Home Secretary, there have been no suggestions from any source, the police or the security services, that internment be adopted as a measure to deal with any of these questions. Were that suggestion to be made, I would consider it, but I am sure that the House will agree that the assessment of the operation of internment in the period in which it operated was that it was a counter-productive approach to terrorism in the circumstances. By the way, I reject the rhetorical comment—made not by my right hon. Friend, but by others—that the measures we are discussing today can in any sense be equated with internment. That is simply not the case.

Patrick Cormack (Conservative, South Staffordshire)

Further to the point raised by the hon. Member for North Down (Lady Hermon), Sir Hugh Orde will appear before the Northern Ireland Affairs Committee this afternoon and will doubtless be asked many questions. Are there any chief constables who take a directly contrary view on this issue?

Charles Clarke (Labour, Norwich South)

I am not aware of any. I have not personally spoken to every chief constable, so I cannot put my hand on my heart and say that not one of them takes a different view, but all the chief constables to whom I have personally spoken about it take the strong view that the provisions are necessary. The Association of Chief Police Officers also strongly takes that view, which is held most strongly by those people who have been most directly involved in fighting terrorism.

Peter Lilley (Conservative, Hitchin and Harpenden)

The Home Secretary has just said that the Chief Constable of Northern Ireland had reached his conclusion based on his experience. The letter that we received from Hayman of the Met said that the experience in Northern Ireland was totally different and not relevant. We now face new circumstances. What relevant experience has the Chief Constable had? Does he believe that the new powers are necessary in Northern Ireland and, if so, did the Home Secretary refuse to give him those powers?

Charles Clarke (Labour, Norwich South)

I regret to say that the right hon. Gentleman has misunderstood the point that Assistant Commissioner Hayman made. His point was that the modern terrorism that we face is different in certain important respects from the terrorism that we had to face in the past in Northern Ireland. It is the case that the modern terrorism that we face is a challenge for police in Northern Ireland today in a very direct way, which is why the Chief Constable is entitled to make his comments, not as a point of general principle but in terms of dealing with the modern terrorism that he has to face.

Bill Cash (Conservative, Stone)

The Home Secretary may recall that under schedule 8 it would be open to the judicial authority to exclude any person to whom the application relates—the suspect—or anyone representing him from any part of the hearing. How can he reconcile that with the provisions in the European convention on human rights on fair hearings?

Charles Clarke (Labour, Norwich South)

I shall come on to the amendment tabled by the hon. Gentleman in a few moments. I believe that the two can be reconciled, which is why I have provided the certificate for this legislation.

In answer to the earlier question from the hon. Member for Beaconsfield (Mr. Grieve), I want to say a few words about codes of practice. He also raised the point with me last week. In Committee, it was suggested that we needed a code of practice to govern the treatment of those held under the Terrorism Act 2000. We welcome that suggestion. Powers for that already exist in England, Wales and Northern Ireland. Under section 66 of the Police and Criminal Evidence Act 1984, the Secretary of State can issue a code of practice in respect of those detained under schedule 8 to the 2000 Act if he so wishes. Existing PACE code C already applies to those detained under the Terrorism Act 2000, but we can see grounds for having a separate code for that purpose, as the hon. Gentleman argued earlier in our proceedings.

Such a code would be laid before Parliament and be subject to the affirmative resolution procedure. Similar provisions exist for a code that would relate to the Northern Ireland (Police and Criminal Evidence (Northern Ireland)) Order 1989. In Scotland, codes of practice are not generally used. Instead, the Lord Advocate, as the head of the systems of criminal prosecution and investigation of deaths, has a statutory power to instruct the police in relation to the investigation and reporting of crime under section 12 of the Criminal Procedure (Scotland) Act 1995 and section 17 of the Police (Scotland) Act 1967. Constables must perform their duties subject to the directions of chief constables, and chief constables must comply with all lawful instructions, in relation to the investigation of offences, from the appropriate prosecutor.

The Lord Advocate takes the view that it would be inappropriate to have different powers and periods of pre-charge detention in Scotland from the rest of the UK in terrorist investigations and, in considering appropriate guidance to chief constables in the Scottish context, he would want to maintain a consistent position north and south of the border, as far as possible. His officials would expect to work closely with Home Office officials on the preparation of a code of practice for England and Wales and any equivalent guidance to be issued by the Lord Advocate in Scotland. For those reasons, we are not tabling amendments at this point, but I can give a firm guarantee that the appropriate codes and their equivalent will be brought forward.

Dominic Grieve (Conservative, Beaconsfield)

The Home Secretary will remember that last week we discussed the possibility of altering the rules about interviewing detained people after charge so that it facilitated inquiry after charges had been brought. Will that be part of the subject matter of the codes that he is bringing forward and, if so, does not it have some bearing on the total length of time for which we may need to detain people?

Charles Clarke (Labour, Norwich South)

I do not expect that aspect of the code to deal with the particular point that we debated. Unless I have misunderstood the hon. Gentleman, I think his position is that we need, because of the particular situation of a possibly extended period of pre-charge detention compared with existing detention, to have a different approach to PACE in certain regards. I shall say later—

Charles Clarke (Labour, Norwich South)

I shall give way when I have finished what I was saying to the hon. Gentleman.

The question of judicial scrutiny is important and becomes more and more pressing at each stage of the process, as time moves on, and the judge needs to deal with that directly as we move forward. I am ready to have discussions on that point, too. The proposal is not designed to address the issue of questioning pre and post-charge that we have already discussed.

David Davis (Conservative, Haltemprice and Howden)

That is an extremely important point, which was twice raised by Mr. Hayman in his letter. It was raised during the Privy Council briefing that the Home Secretary organised for the Leader of the Opposition and me. The question of interview post-charge has clearly had a major effect on the attitude of the police to charge and to the proposal that we are discussing. It is clearly the case that if we alter the ability of the police to interview after charge, it will open up to them much evidence and procedure that will act to stop terrorism. Can the Home Secretary please give the House an undertaking that he will put that in process?

Charles Clarke (Labour, Norwich South)

I agree with all that and, as I said to the House both on Second Reading and in Committee, we think the case for the right hon. Gentleman's point is well made. Application of the procedure that he set out may mean that it would be less necessary in a given case, and thus there would be fewer cases where there was an extended period of pre-charge detention. The key point, however, is that it does not remove the need for pre-charge detention in certain circumstances, although I agree that the number would be limited. Nevertheless, I accept the integrity of his point; the view is shared across the Government that we need to achieve the state of affairs that he described. It is none the less important to note that there are implications for other aspects of the conduct of our legal process and they, too, need to be considered.

Keith Vaz (Labour, Leicester East)

We have heard a lot about the views of the police on the extension of the detention period. Given that my right hon. Friend cannot tell us what the Attorney-General has told him, has he spoken to the Director of Public Prosecutions? The Solicitor-General, who has responsibility to the House for the views of the Crown Prosecution Service, is sitting next to my right hon. Friend. What are the views of the DPP about the 90-day period? Secondly, given that the provision will disproportionately affect members of the Asian community, what steps will my right hon. Friend take to ensure that when the police have those additional powers they will engage fully, at a local level, with the Asian community?

Charles Clarke (Labour, Norwich South)

I can give my hon. Friend the specific assurance that he seeks on his first point: the CPS strongly supports the proposed extension to 90 days. I have said that throughout the debate, because the experience of prosecutors intimately involved in such difficult cases has led them to the same conclusions as senior police officers involved in the process. That is their clear and unequivocal position, explicitly and directly.

Charles Clarke (Labour, Norwich South)

I want to finish answering my hon. Friend's question. His second point was very important. Without any encouragement from me, the police, over a period of 10 to 15 years—perhaps since Scarman, perhaps for even longer—have been working extremely hard to transform their relations with various minority ethnic communities in particular cities. Obviously, that is patchy and there are areas where not as much has been done, but some of our great metropolitan forces have made massive strides in developing relationships between operational policing and particular communities that did not exist previously. Moreover, the major faith leaders, nationally and locally, in most of our communities—not all—are working hard to find ways to co-operate in addressing the issues on a basis of respect for different faiths. To be candid, the comparison that was made earlier with current events in France is utterly unhistorically based when we consider our achievements in the UK.

I agree with my hon. Friend that we need to re-intensify our efforts to ensure that police relationships with various ethnic minority communities and faiths are substantial and real in every community in the country. Much work is already going on, but I can give him an assurance, without qualification, of the key importance of that point.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Home Secretary was right to seek the views of the CPS in England and Wales, and it is right that the House should listen to them. Having done so, however, why did not he seek the view of the Lord Advocate with regard to the necessity and workability of 90-day detention in the context of Scots law?

Charles Clarke (Labour, Norwich South)

I set out as clearly as I conceivably could the precise process that we followed in trying to obtain those views. That was the right approach. I set that out both in what I said earlier and in the letter that I sent to Members of Parliament from Scotland. I believe that we have gone about things in the right way and we are establishing properly based legislation for the whole United Kingdom.

Menzies Campbell (Liberal Democrat, North East Fife)

May I take the Home Secretary back to the issue of the Lord Advocate? From what he told the House a moment or two ago, it appears that the Lord Advocate's view is that the period should be the same both north and south of the border, and that the authorities in Scotland should co-operate with the authorities in England, but it does not appear that the Lord Advocate endorsed the principle of 90 days. Is that correct?

Charles Clarke (Labour, Norwich South)

The Lord Advocate endorsed the view that it should be the same north and south of the border, as the right hon. and learned Gentleman said—[Interruption.] That is the case. Our proposal is that there should be a 90-day period south of the border, so the Lord Advocate thinks that there should also be a 90-day period north of the border.

Alex Salmond (Scottish National Party, Banff and Buchan)

How has it transpired that the Lord Advocate, Scotland's senior Law Officer, expressed to the Home Secretary the view that the period of detention pre-trial should be the same north and south of the border, but at no stage in that correspondence or discussion expressed a view about how long that period should be? Does not the Home Secretary accept that many of us find that an incredible state of affairs?

Charles Clarke (Labour, Norwich South)

I am always ready to accept that the hon. Gentleman leading the Scottish National party finds things incredible, but the fact is that I do not think it is incredible; it is a perfectly reasonable state of affairs.

Clare Short (Labour, Birmingham, Ladywood)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

I will give way later.

Amendment No. 63, tabled by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris), addresses an important point that a large number of people have raised with me—compensation in the event that someone was held incorrectly. The amendment provides that those held for more than 14 days and released without charge should be entitled to compensation. That is my hon. Friend's principal proposal.

I have much sympathy with the idea, but there are some issues regarding its implementation. Thus far, we have never paid compensation, other than in cases involving malpractice, to people tried and acquitted, even though they may be held in custody for far longer periods than we are considering in these circumstances. We may or may not agree with the justice of that position, but it has been the case for a long time. We need, therefore, to consider carefully the precedent that we might set if we agreed to the amendment. However, I accept, first, that my hon. Friend is making a serious point and, secondly, that by hypothesis we would be dealing with a very small number of cases indeed—the very small number of cases where people are held, say, for more than 28 days pre-charge and within that group the very, very small group of people who were wrongly held and subsequently not charged. For that reason, because the provision would apply to such a small group of people, I am prepared to look carefully at my hon. Friend's suggestion and will report back to him and the House as soon as I can. I hope that he will understand that we need to take the operational implications fully into account, so I cannot give him an unequivocal commitment at this stage, but on the basis of that proposal, I ask him to consider withdrawing the amendment.

Clare Short (Labour, Birmingham, Ladywood)

I want to take my right hon. Friend back to the point about interviewing a person who has been charged already. My understanding is that, under existing arrangements, if new and significant evidence becomes available, it is possible for the police to apply to re-interview. Is that not the case? Does that not cast some doubt on the case for 90 days?

Charles Clarke (Labour, Norwich South)

I do not think that it casts any doubt whatever on the case for 90 days, but my right hon. Friend stated the situation quite correctly. I have just checked with my colleagues—

David Howarth (Liberal Democrat, Cambridge)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

Some colleagues have a wonderful tendency not to allow me to answer my right hon. Friend—which I will. I shall then consider—I make no commitment—the merit or otherwise of giving way further. Let me try to answer the question that she fairly raises with me. She is fundamentally right in her analysis that it is possible in certain circumstances to re-interview. She is also right in that the Government are considering whether such circumstances could be—[Hon. Members: "We cannot hear."] I beg hon. Members' pardon.

My right hon. Friend is also right in that we are looking carefully, as I have told Opposition Members, to extending the case more widely. She is also right in her implication that, if we were to succeed in doing that, it might reduce the number of people whom we had to hold in pre-charge detention for longer than the current period. All those points are correct. They do not, however, obviate the central point that, even all that said, there will still be cases where it might not be possible to operate in that way. That is why the power that we seek is needed.

David Howarth (Liberal Democrat, Cambridge)

Would the Home Secretary care to comment on the view that has been expressed to me on the questioning of suspects after charge by Professor John Spencer, QC, who is one of the leading experts on the law of criminal procedure in this country and, indeed, throughout Europe? He says that the so-called

"rule that suspects may not be questioned after charge is one that has no clear legal basis, whether in statute or case-law."

He goes on to say that the only possible basis that he can think of is the existence of paragraph 16.5 in PACE code C, to which he refers, and that the conclusion that we must draw is that the power already exists, without primary legislation, for the Home Secretary to create a situation in which terrorist suspects can be questioned after charge, so this part of the Bill has no point whatsoever.

Charles Clarke (Labour, Norwich South)

The hon. Gentleman totally misses the point. It is necessary, even under the PACE code that he describes, that a charge should be in place to go through that process. The hypothesis that we are discussing is that, in a number of cases, there is no possibility of charging on a short-term basis.

I want to move on to the central question of this part of the debate: amendments Nos. 1 and 33, which deal with the length of time for which an individual can be held. That has been a subject of massive debate in the country and in the House. We debated it last week. I said in the House that I thought it important to try to get consensus in the House, and that has been my approach throughout.

Joan Ruddock (Labour, Lewisham, Deptford)

The Prime Minister has sought to make this debate a simple matter of party politics, something with which some of us do not agree. Does my right hon. Friend recall that, when he gave undertakings in the House to find a consensus, we understood that it would be not just with Opposition parties, but that he would seek a consensus of which we on the Labour Benches who had some objections and concerns would become part? I put that to him before he goes on with his prepared speech.

Charles Clarke (Labour, Norwich South)

My hon. Friend makes two points, one of which I do not accept and the second of which I do accept. I simply do not accept her description of the Prime Minister's motivation in terms of party politics. I do not think that it is accurate; I do not think that it is his personal motivation; and I certainly do not believe that it is the Government's motivation. As I said on Second Reading, in Committee and at other times, the question that all Members must address is how can we do our duty as Members of Parliament in dealing with the national interest and national security.

I do not doubt for a second that these are difficult questions for all of us—for my hon. Friend, for myself and for every other hon. Member—but I do not believe that we have at any stage taken this issue from the point of view of party politics. Some have interpreted it that way. We have only to look at the media on any day of the week to see that they provide a prism through which they say that all this debate is about party politics in some respect or another. I have tried personally, when interviewed on the media, to rebut that suggestion because I do not think that it is true. I do not mean that I think that it is right but not correctly done; I think that it is an inaccurate description of the state of affairs.

I now turn to the point about consensus, about which my hon. Friend asks me. I believed and hoped as late as last Thursday that we could achieve a consensus with the main Opposition parties about the length of time that should be used. I also agree with her point that I was talking about consensus with Labour Members as well as with the Opposition parties on this question. That is what motivated me in the way that I operated. She may recall—I think that she will—that I asked every Member of the House to go back to their constituencies last weekend and take the view of their constituents, talk to them and ask their police and whoever else about these questions. I hope that she would agree that many Members have done precisely that: they have gone back and talked to people—I am sure that she is one of those who have done just that—and everyone will make their judgments on that basis.

When I had the meetings with the leadership of the Opposition parties at 11 o'clock last Monday morning in my office—I do not think that the hon. Members for Hornsey and Wood Green (Lynne Featherstone) and for Beaconsfield, who were present for the Liberal Democrats and Conservatives, would contest this—they said that for their part there was no circumstances under which they would consider extending beyond 28 days the amount of time for which detention might operate. That was their considered view. There was a discussion about the period between 14 and 28 days. I was of the view, which has been my view throughout, that 28 days is not long enough to deal with the police case that we have, but I was ready to entertain discussions of a shorter period that could arise. I said that publicly in a variety of circumstances.

Dominic Grieve (Conservative, Beaconsfield)

rose—

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

I shall give way when I have finished what I have to say on this.

I then came to consider the best way to deal with this situation, and the view that I came to was that there ought to be three key areas in which I ought to try to respond to the House, the first of which is the whole area of scrutiny, which we have been talking about already: the role of the High Court judge, the PACE code and the various safeguards in place, which are changes from the position when I was speaking in the House last Thursday.

The second group of issues are those that we will debate later this afternoon relating to intent, glorification and the definition of terrorism—the range of issues that my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) particularly was pressing from our side of the argument and, in fairness, which were expressed by a number of hon. Members on both sides of the House. I felt that I should try to respond to those points, and I believe that we have done so today, although they will be debated later in the process.

Finally, against all my best instincts—I am not a great fan of sunset clauses in general—I thought that the way to deal with the uncertainty that my right hon. Friend the Member for Birmingham, Ladywood (Clare Short) and many other Labour as well as Opposition Members have about the length of time was to say that there would be a period, 12 months, after which clause 23 would run out and the House would decide, on the evidence and on the basis of what had happened in those 90 days, whether or not it should be extended. I am ready to commit, and do commit, to a report to the House on the operation of the law on the 90-day period when the House has to decide it.

Dominic Grieve (Conservative, Beaconsfield)

rose—

Charles Clarke (Labour, Norwich South)

I will give way in my own time. I have seen the hon. Gentleman, who is a very persistent popper up and down, which is very nice.

First, on reporting to the House about the operation of the 90-day period, I commit to do that so that every hon. Member can consider it. Secondly, at the behest of my right hon. Friend the Member for Southampton, Itchen, I have agreed that Lord Carlile should conduct a review of the definition of terrorism within that year, so that that conclusion would also be considered by the House when it comes to that point. Thirdly, as the House already knows, not as a result of this process, Lord Carlile will report on the operation of the control order regime during the course of that year, so that we can have a discussion in the round on those questions.

The view that I came to—perhaps it is the wrong view, or not; people will have their own view—was that that approach was a better way to address people's concerns than by introducing another figure, and I shall tell the House why. Many hon. Members on both sides of the House told me to avoid, if I possibly can, a Dutch auction of the numbers that are being pushed around in different areas. Some say 42 days; some say 60; or whatever it might be. I thought that that was quite a powerful point, and I thought about it over the weekend. I am also aware that many hon. Members came back after those consultations saying that we should take the 90-day period. That is how I got to the position where I am now. It may not satisfy my right hon. Friend the Member for Birmingham, Ladywood, but I hope that she will accept that I have tried hard to fulfil what I said on that occasion.

Dominic Grieve (Conservative, Beaconsfield)

It is right that at Monday's meeting I said to the Home Secretary that our position continued to be that 28 days was the limit of what was acceptable. The Home Secretary indicated that he would incorporate several concessions in the Bill and told those present that he would table an amendment to determine whether a period between 28 and 90 days could form the basis of a compromise. I should be grateful to know why that proposal disappeared during the six hours that followed. There was never any suggestion that it was linked to the other concessions that he was making. When I spoke to him, it appeared that it would be part of a total package that we could consider—so what happened to it?

Charles Clarke (Labour, Norwich South)

I am glad to set the historical record straight. I think that the hon. Gentleman will concede—he will correct me if I am wrong—that at no point during the meeting held in my office last Monday morning did any representative of the Opposition parties raise the idea of a sunset clause or a review—[Interruption.] I beg your pardon, Madam Deputy Speaker. The matter was raised on the Floor of the House, but not during that conversation.

I said to the Opposition parties that morning that I would spend the rest of the day talking to colleagues in the House to test their opinions. I personally attended at least three meetings of Labour Members at which we discussed their views of the state of affairs. A lot of people put their views strongly, but there was not unanimity. Some people strongly felt that we should support the police and go for 90 days, while others strongly felt that the period should not be extended at all. We had frank discussions.

After those meetings and discussions, I had to come to a view on the best course of action to follow, which I did at about 8 o'clock that night. I went for the option of putting the sunset clause before the House because it seemed to be the best way of addressing the matter and enabling all hon. Members to examine the practice of the system and reach a view on how to take things further forward.

Michael Howard (Conservative, Folkestone and Hythe)

In that recitation of what happened on Monday, the Home Secretary conveniently overlooked the fact that after the meeting with my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the spokesman for the Liberal Democrats, he told the media that he would be tabling an amendment to provide for a shorter period of detention. How long did the Prime Minister have to detain him before he decided not to proceed with that amendment?

Charles Clarke (Labour, Norwich South)

The right hon. and learned Gentleman is entirely correct that I did say that to the media after the meeting. He is also entirely correct that I was present at the meeting of the parliamentary Labour party meeting that the Prime Minister attended at which precisely these questions were discussed. I will address the question of detention that the right hon. and learned Gentleman raised with the Prime Minister earlier today. I can give him the example that he seeks from evidence given by Peter Clarke to the Joint Committee on Human Rights.

To answer the right hon. and learned Gentleman's earlier question, I shall quote what Deputy Assistant Commissioner Peter Clarke said about whether the time period would make a difference. DAC Clarke said that he could point to a particular case as an example of terrorists evading justice because of the lack of such a provision. He said:

"had we had this provision in 2002, the outcome of a recent court case, the so-called ricin trial, might have been very different. Mohamed Meguerba was one of the suspects in that case and it is likely that we would have held him or applied for his detention for sufficient time to find that his fingerprints were on the ricin recipe and he would have stood trial as a main conspirator in that case had he not fled the country. As it was, he was not available to stand trial and so the jury were not able to benefit from his presence in the court. I cannot say whether the jury would have come to a different decision"—

of course he could not—

"but I think it would have been possible for the prosecution to present the case in a way which was easier for the jury to understand".

That is a compelling argument that 90 days might have made a difference and allowed things to be dealt with far better.

Michael Howard (Conservative, Folkestone and Hythe)

The Home Secretary will know that I originally raised this matter with the Prime Minister months ago. I asked for a briefing to test whether, if a 90-day period had been in force, it would have led to the apprehension of people who could not otherwise have been apprehended. The Home Secretary must know that the case to which he refers does not in any way justify the 90-day period. The evidence did not take 90 days to materialise. Will he now confirm—the Prime Minister refused to do so earlier today—that there is not a single case to which the police or anyone else can point in which evidence that became available 80 or 90 days after arrest was sufficient to charge the person who had been arrested?

Charles Clarke (Labour, Norwich South)

It is striking that the right hon. and learned Gentleman makes his point in such a way. He is right in one essential respect: we tried to work with him and his colleague, the right hon. Member for Haltemprice and Howden (David Davis), over the summer to address these questions. He is right that we organised a briefing on Privy Council terms to consider such questions for him and his right hon. Friend. He says that he is not convinced by the case. He is entitled not to be convinced by the case—that is his right—but I believe that the case put by DAC Clarke to the Joint Committee on Human Rights was a powerful and effective argument for a 90-day provision.

Kenneth Clarke (Conservative, Rushcliffe)

Like many hon. Members, I have not been party to any of the discussions since last week, about which I make no complaint whatever. The Home Secretary's comments a few moments ago suggested that his approach to other parties and his Back Benchers was made on the basis that the Government were sticking to 90 days, but asking whether they could get 90 days so long as they improved judicial review, or added a sunset clause. In other words, they were saying, "Take the pill; we'll try to put some sugar on it." However, although he has cited one case—I shall not go on about that because I am making an intervention—he has not addressed the fundamental case. If it is to be the rule that after people have been held for 14 days and there is still no evidence to justify charging them they may be held for 90 days, what is the argument for 90 days? He says that he deplores Dutch auctions, but the time period—three months in all—seems to have been plucked out of the air. A man could be repeatedly questioned during that time in the hope that something would turn up that would enable him to be linked with a terrorist plan.

Charles Clarke (Labour, Norwich South)

I give credit to the right hon. and learned Gentleman for his consistency because he made that argument in Committee, too. He also voted against the Bill on Second Reading, as he was entitled to do. My answer is the same argument that has been put through the whole of the debate. There is a compelling case for extending the current 14-day period.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. It is entirely in the gift of the Home Secretary to decide whether to give way.

Charles Clarke (Labour, Norwich South)

The police and the prosecution service have come clearly and unequivocally to the view that in their professional judgment 90 days is the appropriate time. The suggestion of the right hon. and learned Member for Rushcliffe (Mr. Clarke) that the police and the prosecution service have simply plucked some figure out of the air is utterly wrong. The reason the Prime Minister asserted today during Question Time—

Alan Simpson (Labour, Nottingham South)

Will the Secretary of State give way?

Charles Clarke (Labour, Norwich South)

I will give way in my own time, when I have made my own argument, to the people to whom I think it is worth giving way. [Hon. Members: "Ooh!"] There we are; that is what I will do—I think that that is called parliamentary democracy, Madam Deputy Speaker.

I am making the point simply and straightforwardly that we should take the professional judgment of the police, who actually deal with situations such as the one at Russell Square tube station, and the advice of the prosecutors extremely seriously.

Charles Clarke (Labour, Norwich South)

I give way to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who was another participant in the Monday meeting.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I was grateful to the right hon. Gentleman for agreeing to meet me and my hon. Friend the Member for Dundee, East (Stewart Hosie) on Monday morning. He said earlier that he was not in favour of a Dutch auction, having thought about the matter at the weekend, but he gave all those present at the meeting on Monday the clear impression that he would table an amendment to provide for a shorter period of detention. Indeed, some of us were surprised that such an amendment was not tabled that day. When was he overruled by the Prime Minister?

Charles Clarke (Labour, Norwich South)

The hon. Gentleman is entirely wrong. I said I would continue to consult for the rest of the day, which I did, and I then tabled my amendment.

Chris Mullin (Labour, Sunderland South)

With great respect, my right hon. Friend has been misled on the ricin case, because the individual who fled the country while on bail was released by the police after two days in custody, not after 14 days. It cannot therefore be argued that they could have charged him if they had been able to hang on to him for 90 days. Will he confirm that that is the case?

Charles Clarke (Labour, Norwich South)

I can confirm that that is the case, but the specific example I gave demonstrates that there are cases in which the police, when making a judgment about whether to charge someone, can reach a decision that, in my opinion, is damaging to the course of justice.

Tony Wright (Labour, Cannock Chase)

It is not just the police and the prosecution authorities who support the Government's position but Lord Carlile—

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Only with major qualifications.

Tony Wright (Labour, Cannock Chase)

I should have thought that the name of Lord Carlile would have some resonance among Opposition Members. He is the independent reviewer of terrorism legislation, and he said that there should not be a Dutch auction in Parliament on the numbers, which is exactly what is happening. He also said that

"as a maximum three months is probably a practicable and sensible option, all other things being equal."

Is that not a judgment to which we should give considerable weight?

Charles Clarke (Labour, Norwich South)

In my opinion, it is. Lord Carlile also said:

"I am satisfied beyond doubt there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".

Lord Carlile has played an admirable and outstanding role, despite being a Liberal Democrat, in seeking to get terrorism legislation into a coherent form. We should take seriously everything that he says, which is why I have tabled a number of amendments on Report to try to meet some of his concerns. It is incumbent on others, particularly Liberal Democrat Members, to look at what he says in the round and to act accordingly.

John Denham (Labour, Southampton, Itchen)

May I caution my right hon. Friend not to overstate his case? I do not question the integrity of the police in proposing 90 days, and they may well have a good case. However, according to documents released to the Home Affairs Committee, when the Government agreed to support the 90-day proposal, they had received only two documents from the Association of Chief Police Officers—the ACPO press release of 21 July and a two-page summary of two difficult cases, neither of which is analysed to provide a case for 90 days. It would be better if my right hon. Friend did not overstate the strength of his case, and would he not have done better to ask the police to provide a more substantial report before making a decision?

Charles Clarke (Labour, Norwich South)

I accept part of my right hon. Friend's rebuke, as it is important not to overstate the case. However, it is also important not to understate the case. It is important to understand all sides of the case. I have tried throughout—whether successfully or not, others will judge—to put the case in a balanced way and to respond to the debate. I shall continue to do so, but I take my right hon. Friend's point that it is important to address all these things in the round, which is one reason why I decided that a sunset clause—generally, I do not support such provisions—was an appropriate way to proceed and would allow a detailed assessment of the measure by the Home Affairs Committee and others.

Huw Irranca-Davies (Labour, Ogmore)

Over the weekend, I sought the views of South Wales police and had a detailed discussion about the measure with them. They have no interest whatsoever in obtaining those powers for themselves, even though that is how the debate has been played. They are reassured, however, that the powers are in the hands of the judiciary, who will oversee the process and review it every seven days or sooner. I acknowledge what my right hon. Friend the Member for Southampton, Itchen said, but South Wales police are convinced that there are rare circumstances—we hope, however, that we will never have to use the measure—in which 90 days will be required. I urge my right hon. Friend the Home Secretary to consider that view, and not to backtrack too easily.

Charles Clarke (Labour, Norwich South)

I am grateful to my hon. Friend, and I should like to pick out a couple of points. First, he used the word "rare". We are talking about a very small number of cases indeed, but by hypothesis we are trying to deal with some of the most dangerous people in the world. Secondly, we have not made as much of judicial oversight as we should have done, but we should address the powerful issue of a High Court judge reviewing the detention either every seven days or on the more flexible basis that I set out. It is very important indeed that we look at this in a balanced way, which is another argument for the sunset clause—something to which, as I said, I am not usually sympathetic.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. The Home Secretary has been generous in giving way, but I urge hon. Members to make brief interventions, as we have a time limit on the debate.

Madeleine Moon (Labour, Bridgend)

I have attended meetings with the police, and have paid attention to the Hayman review. However, why do the British police need that period, when police forces across Europe—I discount the example of France, because the French cannot teach us much about law and order at the moment—have not taken such powers, even though other countries, particularly Spain have experienced similar problems?

Charles Clarke (Labour, Norwich South)

The fact is, we have very different legal systems, which is why it is difficult to make comparisons. However, to use the example of France, this morning I spoke to Lord Carlile, who had had a conversation with a judge in Paris about that very question. Following a low-level charge—association with "malfaiteurs" or something similar—there can be an investigation of up to four years. Those are the comparisons that we need to make.

Charles Clarke (Labour, Norwich South)

I will give way to three more Government Members.

Joan Ruddock (Labour, Lewisham, Deptford)

I am extremely grateful to my right hon. Friend. Can he confirm whether, in the past 18 months, people held for 14 days under existing terrorism laws have been charged in all cases, and that no one has been set free after being held for that period? Have individuals who have been charged after 14 days been satisfactorily charged? If so, would not 28 days have been a good extension to offer?

Charles Clarke (Labour, Norwich South)

I understand the case that my hon. Friend is making, and the facts that she cites are correct. In one case, a serious situation could have arisen near to the end of the detention period. I draw her attention to Lord Carlile's assessment of the argument that she made, and his conclusion that 90 days is appropriate.

Andrew Dismore (Labour, Hendon)

Earlier, my right hon. Friend referred to the evidence of Mr. Clarke to the Joint Committee on Human Rights. Mr. Clarke emphasised, however, that we are talking about a maximum period of three months:

"I certainly would not envisage the three months becoming the norm."

He also stressed the strain on police officers, who were

"sleeping on the floor, not going home, just ploughing their way through this vast amount of data".

Those officers

"would rather serious criminal investigations were conducted in a slightly calmer and more ordered atmosphere than that."

Without an extension, could the present situation not lead to a miscarriage of justice, because the police cannot investigate properly or effectively, and are unable patiently to work their way through the evidence?

Charles Clarke (Labour, Norwich South)

My hon. Friend is correct, and I am grateful to him for expressing it that way. His point about miscarriages of justice is central to our discussion.

Patrick Hall (Labour, Bedford)

My right hon. Friend has been challenged strongly by the Leader of the Opposition and others for not tabling an amendment today proposing a detention period of fewer than 90 days but more than 28 days. Is not the real political point, however, the fact that the Opposition parties have already stated in principle that they would not support a detention period of more than 28 days, irrespective of the case made by the police?

Charles Clarke (Labour, Norwich South)

My hon. Friend is right. I am not sure whether the phrase "challenged strongly by the Leader of the Opposition" is a contradiction in terms, although that may change after the Conservatives sort out their leadership.

Ian Lucas (Labour, Wrexham)

Is it not important to understand that at the end of the 14-day initial detention period, in no circumstances will there be any application for further detention beyond seven days, and that judicial oversight then kicks in? In the debate we seem to have become fixated on the maximum period and to have ignored the importance of judicial oversight throughout the process.

Charles Clarke (Labour, Norwich South)

My hon. Friend is correct and he makes the point accurately. I agree. Perhaps it is my fault that much of the debate has focused on the maximum period, rather than on the process of ensuring that the maximum is not reached.

Charles Clarke (Labour, Norwich South)

I shall make some progress, but before I conclude I shall give way to one or two of those who want to intervene.

I emphasise, as I said on Second Reading, that we are dealing with a very different threat now from the one we faced in previous decades. Recent terrorist plots have been designed to cause mass casualties with no warnings—I emphasise, no warnings, sometimes using suicide and with the threat of chemical, biological, radiological and nuclear weapons.

Some hon. Members have commented that terrorist cases are no more difficult to prosecute than complex fraud cases, but I argue that there is a very substantive difference between the two. In complex normal cases, the police may build a case before arresting an individual. It may also be possible to catch criminals red-handed in the act of committing a crime such as fraud, as the repercussions are not so great if the crime is committed. The need to ensure public safety by preventing mass casualty attacks that could be catastrophic in their effect means that it is necessary to make arrests in terrorist cases far earlier in the process than in other cases. That often means that much less evidence has been gathered at the point of arrest, so more time will be needed to gather sufficient evidence to charge a suspect.

Moreover, terrorist networks are often international, which means that highly complex inquiries have to be undertaken in many different jurisdictions. I remind the House again of the investigations into the events of 7 and 21 July, which yielded 38,000 exhibits that filled two warehouses, and so on. Terrorist networks are also now highly capable of using technology. In recent cases a large number, sometimes in the hundreds, of computers and hard drives have been seized. Much of the data on such computers and hard drives have been encrypted and take time to decrypt. The data then need to be analysed to incorporate the outcome of that analysis into an interview strategy.

Following the debates in the House and the request from hon. Members in all parts of the House for more substance, over the past few days I have consulted advisers from the National Technical Assistance Centre, whose experts deal with the hardest and most important decryption jobs. Their advice has been unequivocal. A 14 or even 28-day period will not allow them the time they need adequately to investigate the most heavily encrypted data. They have made it clear to me that the use of advanced encryption technology by those who pose a threat to law and order or the security of the country is becoming more widespread and is growing rapidly. Encryption is more pervasive, more complex and easier to use than ever before.

That poses a significant challenge to police and investigators on two fronts. First, it means that even sifting the evidence to identify which computers require specialist investigation and decryption usually—the experts' word—takes a number of weeks. Each computer must be examined to assess what data can be easily gleaned and where heavyweight code-breaking is required.

Secondly, even after the protected data sources have been identified, significant additional time may be needed to decode potential evidence. NTAC has advised me that this is an extremely challenging and time-consuming task, running in the majority of the hardest cases into weeks at the very least, and often even into periods of months. Taking all this together, the technical judgment of the professionals is clear and simple. They need more time to be able to deal with such challenges. We must honour that.

Forensic requirements, too, are more complex and more time-consuming. My right hon. Friend the Member for Leeds, West (Mr. Battle) made a tremendous speech last week about the bomb factory in his constituency and the issues raised by that case. We should take seriously the professional advice of the investigators, the police and the prosecutors about the time needed to enable investigators to reach conclusions.

I shall give way now for the last time, then I shall wind up.

Ann Cryer (Labour, Keighley)

Has my right hon. Friend had a discussion with the chief constable of west Yorkshire about how he and his force will handle the potentially difficult situation following the arrest of, say, someone in Bradford and the 90 days before charge? The family of that person, his biraderi and his community will have no explanation why he is being held. That could prove extremely difficult. What advice would my right hon. Friend give the chief constable in that situation?

Charles Clarke (Labour, Norwich South)

I have had such conversations, and that goes partly to the answer that I have to my hon. Friend the Member for Leicester, East (Keith Vaz) in response to his intervention. I am glad that on 7 and 8 July and the subsequent weekend, there was a substantial programme of discussions between the police and the various communities in west Yorkshire, which were particularly affected. That was extremely impressive. I spoke to many people at the time who were committed to discussing exactly the question raised by my hon. Friend the Member for Keighley (Mrs. Cryer) with the communities from which the individuals came and which were most affected, in the same way as the issues in other cases were raised in Gloucester and other parts of the country. There is only one answer: intensive discussions between the police and the local community, local community leaders and local faith leaders. I say with humility that I do not need to give advice on that to, for example, the west Yorkshire force, because I believe it is committed to doing it, but my hon. Friend is right to say that if we make the changes here, it intensifies the need for such discussions.

Mark Fisher (Labour, Stoke-on-Trent Central)

On community involvement, does the Home Secretary accept that if the legislation is passed, it will harden support within communities surrounding terrorist cells, because it will turn people into martyrs? Undoubtedly, people will be detained on a week-on-week basis, released and found to be innocent. They will go back into those communities and say, "Look, this is the sort of state we are talking about and working against." Surely it will be hugely counter-productive.

Charles Clarke (Labour, Norwich South)

That is a serious point, to which I want to give some time. What my hon. Friend says is utterly wrong. It is totally wrong. If one talks, as my hon. Friends and I have done, to Muslim communities throughout the country, one finds that they are absolutely clear without equivocation that they want no part of this terrorism, they want no identification of the terrorism with what they do, and they want to take that forward. If my hon. Friend takes the trouble to examine the responses of even the families, let alone the families and friends, of those directly involved in the events of 7 July, he will see that many of those individuals were deeply shocked and felt betrayed. It is not true that the action that might be taken gives rise to the kind of threat that my hon. Friend describes.

Chris McCafferty (Labour, Calder Valley)

We have heard a great deal in the debate, rightly, about the issues and the implications for the police. What we have not heard in the debate are the issues and implications for the families of those who may be detained for up to 90 days. What are the financial implications? The people who are detained may be innocent. My right hon. Friend mentioned the possibility of compensation, but that does not help the families while they are living through the 90 days. The person detained may be the only breadwinner in the family, or the family may be on benefit. Has my right hon. Friend had discussions about those implications?

Charles Clarke (Labour, Norwich South)

My hon. Friend makes a serious point. As I said in response to the amendment tabled by my hon. Friend the Member for Wolverhampton, South-West, there are many issues of the type that my hon. Friend the Member for Calder Valley (Chris McCafferty) raises, which it is important to address. That is why, in responding to the amendment, I committed myself to look carefully at how we deal with the question of compensation, including any hardship that might arise.

Richard Burden (Labour, Birmingham, Northfield)

I think that my right hon. Friend misunderstood the point made by my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher). There is no doubt that Muslim communities stand four-square against terrorism, but there is also no doubt that a large section of Muslim youth, who are against terrorism, is profoundly alienated from the system, as it sees it. The co-operation of that section of Muslim youth in intelligence gathering is vital, and the danger is that the Bill will alienate it.

Charles Clarke (Labour, Norwich South)

I apologise to my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), if I misunderstood him. We have had discussions with the Muslim community, including a series of working groups to identify the best way to deal with the issues raised by my hon. Friend the Member for Birmingham, Northfield (Richard Burden). I acknowledge that we must address the existing and potential alienation of young people from those communities.

I have been speaking for an hour, and, in the interests of debate, I shall not give way again, because I have been generous in giving way throughout. In conclusion, there are some people who argue that this has been a politically partisan exercise. I put it to the House that that is the opposite of the case.

Menzies Campbell (Liberal Democrat, North East Fife)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

I have said that I will not give way any more.

It is the obligation of every hon. Member to understand the threats to national security and to equip our security forces with the ability to deal with that in the best and most protected way. Moreover, I say to all those who have doubts about the time period that the whole purpose of the sunset clause is to provide an opportunity carefully to analyse how the period has worked, so that this House and the other place can make a decision on that matter in a year's time, which will allow us to test the hypotheses and concerns that various individuals have genuinely raised. Even the putative leaders of the Conservative party should think hard about their responsibilities on such matters, too. [Hon. Members: "No!"] Yes they should, because they have ducked the issues, and the House should not duck its responsibilities now.

David Davis (Conservative, Haltemprice and Howden)

I start on a sad note, because the Home Secretary's comments about this not being a politically partisan exercise were undermined by his final remark. I am conscious that I am speaking on behalf of a party that has seen friends and colleagues murdered by terrorists. The names are familiar to all hon. Members: Airey Neave, Ian Gow and Anthony Berry. This party has first-hand experience of terror, so the House can draw its own conclusions when it faces silly and, frankly, contemptible accusations that any party, least of all mine, is soft on security.

The war on terror is, after all, a battle of hearts and minds. The Government have passed five terrorism Acts since they came to power—the Criminal Justice (Terrorism and Conspiracy) Act 1998, the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Criminal Justice Act 2003 and, finally, the Prevention of Terrorism Act 2005. Those Acts contain many worthwhile provisions, but none of them prevented the atrocities of 7 July, so let us not pretend that we can win the war on terror by passing every single law that the Government throw up. We will win the war by actually being tough, rather than just talking tough.

There is a lot that the Government could do. They could secure our borders by introducing a new border control force, which is something that we have often proposed, but they will not do it. They could fund the security services properly by scrapping plans for identity cards and spending the money on intelligence, but they will not do it. They could help to convict terrorist suspects by allowing the authorities to submit phone-tap evidence in court, but they will not do it. They could appoint one, single Minister to take control of our fight against terrorism, which has happened in other countries, but they will not do it.

We will take no lessons from the Government about being tough on terrorism, because they have failed to take on board many of our proposals, which, although our proposals were not especially innovative, would have brought us into line with the rest of the world. On the crucial matter before us today—the period for which a suspect can be held without trial—we want toughness that will work.

Like all hon. Members, we have been searching for a workable proposal and we welcome the Government's changes, which we proposed in many cases, such as better judicial scrutiny, new police and criminal evidence codes, which we hope—the Home Secretary did not address this point—will facilitate the interview of suspects after they are charged, and a clause, which is not a sunset clause, that requires the annual review of the legislation. It is right to point out that all those provisions were obtained only through parliamentary pressure from both sides of the House. The Government should also listen to what the House of Commons is saying about the duration of detention. On their own, those improvements to the Bill do not remove our responsibility to ensure that the detention is as limited in time as possible.

It is worth grasping what is at stake right at the start—the imprisonment of men and women without trial in the country that invented habeas corpus. We all accept that, when national security is imperilled, our instinctive support for civil liberties must be qualified and that detention without charge must sometimes happen. That means getting a difficult balance right, because if the period of imprisonment is too brief, the civil liberties of suspects may be protected, but the lives of innocent people may be endangered. If the period of imprisonment is too long, locking up people without charge risks becoming the first resort of the authorities rather than the last. In those circumstances, innocent people are imprisoned. We should remember that a 90-day detention is the equivalent of a six-month jail sentence, and the risks include not only an affront to justice, but a public backlash, in which case legislators' mistakes will become recruiting sergeants for terrorists. The House knows the serious consequences for our national security and our civil liberties if we get the balance wrong in any direction.

Adrian Bailey (Labour, West Bromwich West)

Given that the British judiciary has demonstrated in the past that it is robust in defending human rights against Government legislation, does the right hon. Gentleman not think that the fact the whole process will be subject to judicial oversight after 14 days provides adequate procedural protection? If he does not think that, does he agree that the one-year sunset clause is a further failsafe device?

David Davis (Conservative, Haltemprice and Howden)

The answers are no and no.—[Interruption.] If the hon. Member for Bassetlaw (John Mann) wants me to give way, I will do so. He does not.

Think of the decision facing the judge when the police say, "We think that this person is a possible terrorist, but we have not got to the bottom of the evidence." Is that the test that we should use in this country to imprison people? I hardly think so. The sunset clause is actually a review clause. What will happen next year? The crisis and the political difficulties will have gone, and the provision will be rolled forward.

Huw Irranca-Davies (Labour, Ogmore)

I thank my right hon. Friend for giving way.

David Davis (Conservative, Haltemprice and Howden)

I am not the hon. Gentleman's right hon. Friend.

Huw Irranca-Davies (Labour, Ogmore)

My apologies. The right hon. Gentleman suggested that the provision could become the first resort of the authorities, but once again, a Conservative Member is painting a picture of a police state. The provision will include judicial oversight by High Court judges. Is he suggesting that the judiciary will use the provision like a police state, because my right hon. Friend knows that that is preposterous?

David Davis (Conservative, Haltemprice and Howden)

The hon. Gentleman will start terrible rumours if he is not careful.

The initiative will lie with the police. When the Cabinet Office gave me a Privy Council briefing on the matter, I expressed my concern that the provision will take the pressure off the police to resolve situations quickly. After all, even 14 days is a damaging experience for someone who is innocent, so 90 days is an enormously damaging experience that could wreck lives, ruin jobs and destroy relationships. We must understand that this is a fundamental British freedom that should not be thrown away lightly.

We recognise the Government's difficulties on this. It is of course a matter of judgment. We acknowledge that the world has changed since the IRA halted its terror campaign. New technology brings new security challenges. As the Home Secretary said in relation to the National Technical Assistance Centre, the police and security services need more time to scour CCTV footage and to crack encrypted messages. The international dimension of Islamist terrorism also brings new challenges. That is why my hon. Friends made it clear in Committee that we agree with the Government that the current 14-day limit is too brief and propose its extension to 28 days. I believe that that proposal will find widespread support among Members around the House, including on the Government Benches. But the proposal before the House is not ours but the Government's. The Government propose a full 90 days. The House must therefore ask itself this question: have Ministers made a robust, convincing and evidence-based case, not for an extension, as there is a case for that, but for 90 days? I do not believe that they have.

Kate Hoey (Labour, Vauxhall)

Does the shadow Home Secretary agree that sometimes even Metropolitan police commissioners can get it wrong, as happened in my constituency recently when someone was shot at Stockwell tube? Local people were told for some time that that person was a terrorist, but we then found that everything was absolutely wrong—

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. I am afraid that that matter is sub judice.

David Davis (Conservative, Haltemprice and Howden)

I will not talk about that particular matter, Madam Deputy Speaker, but the hon. Lady makes an important point. There have been well over 800 arrests for terrorist offences in the period since 9/11, yet in that time only between 20 and 30 convictions have been obtained. There is great scope for error here. The fact that this is a very difficult area of policing, as the Home Secretary said, makes the risk of error even greater.

Gordon Prentice (Labour, Pendle)

We heard last week that 28 days was at the outer limits of what would be acceptable under the European convention on human rights. Does the right hon. Gentleman agree that we should have the written opinion of the Attorney-General before we proceed?

David Davis (Conservative, Haltemprice and Howden)

I will call the hon. Gentleman my hon. Friend if he is not careful. If he waits for a moment I will come to that point.

Ian Lucas (Labour, Wrexham)

It is of course correct that this is an extremely difficult issue, but 90 days was proposed because the police made the initial request. Why is the right hon. Gentleman rejecting the police's request for 90 days and trying to impose his own arbitrary deadline of 28 days?

David Davis (Conservative, Haltemprice and Howden)

The point was made best by the Chairman of the Home Affairs Committee, the right hon. Member for Southampton, Itchen (Mr. Denham), who said, quite rightly, that while a case for some extension had been made, there had been no attempt at all to quantify it. I have been through Mr. Hayman's evidence in some detail. The only quantification concerns a fictional case, not actual cases that have been presented, or might have been presented, to the courts. That includes the case to which the hon. Member for Sunderland, South (Mr. Mullin) referred, in which the suspect went off to Algeria having been released after two days.

Clare Short (Labour, Birmingham, Ladywood)

Is the right hon. Gentleman aware that Gareth Peirce, a solicitor who has been involved in many of these cases from the Birmingham Six onwards and who has taken part in an analysis of the detention of people up to 14 days, says that for 95 per cent. of the time, detainees are not questioned but held for hours and even days in their cells? It has been suggested that the police may feel that they have a very long time and therefore not use it, but the evidence is that they are doing that already.

David Davis (Conservative, Haltemprice and Howden)

The right hon. Lady reinforces my point. I should make it clear that I do not blame the police for that. They often face scarce resources and many pressures on their time. If they are counter-terrorist police, they will be trying to deal with other issues, perhaps an immediate risk to the public. All those reasons may lead to an extension beyond what is necessary.

The question before the House is this: have Ministers made a robust, convincing and evidence-based case for 90 days ? Indeed, have they even made a case of which they themselves are convinced? The Attorney-General's spokesman has said publicly that he, the Attorney-General, is not convinced of the case. He is one of the Government's most senior Law Officers, but however senior he may be, he is not the Minister in charge of this legislation—that responsibility falls to the Home Secretary.

Bill Cash (Conservative, Stone)

Will my right hon. Friend give way?

David Davis (Conservative, Haltemprice and Howden)

Before I give way to my hon. Friend, I must allow myself enough time to comprehend his question. I may need to seek an extension of my speech.

Last Wednesday, in Committee, the Home Secretary withdrew the 90-day proposal—scarcely a sign of confidence in it. On Saturday, he said publicly that 90 days was not crucial. On Monday, he emerged from the Home Office to announce that he would table amendments to reduce the time limit from 90 days, but those amendments were never tabled. We have heard his account of it, but the whole House knows the real reason. By yesterday, only a day after the Home Secretary signalled his desire to listen to the mood of the House, listening was off the agenda, because he had lost control of the matter. The whole House knows who has seized control and who has brought back the 90-day proposal that was withdrawn last week and introduced the fig leaf of the so-called sunset clause. The Prime Minister, not the Home Secretary, has brought back the 90 days—the same man who, as Leader of the Opposition, twice failed to support a Conservative amendment on the prevention of terrorism Acts.

John Mann (Labour, Bassetlaw)

The right hon. Gentleman will be aware of the disquiet among some of his closest colleagues about his party taking a position that is not that proposed by the police. In his discussions with the police over the past three months, has he heard any specific proposals from anywhere within the Association of Chief Police Officers that would match his proposal of 28 days, or for any period less than 90 days?

David Davis (Conservative, Haltemprice and Howden)

My conversations with the police have been in order to seek evidence to support any case. I will tell the hon. Gentleman as much as I can about the Privy Council briefing, which was informative, inasmuch as it demonstrated that there was no substantive case for 90 days. The suspect who ran off to Algeria was released after two days. It was intimated that the evidence material to that case was found after a few weeks, not after 90 days. On the decryption of hard disk data, we suggested using the Regulation of Investigatory Powers Act 2000, which puts a four-year sentence on withholding decryption codes. We suggested increasing that sentence, and that does now appear in the Bill. Then the police said, "If we charge them, we can't interview them", so we raised the possibility of interview after charge.

All those things may be incursions on civil liberties, but they are much smaller incursions than those in the Bill. What worried me in my discussions with all the authorities—counter-terrorism authorities, agencies, police, the Home Office—was that they were not looking for the least harmful outcome: they were looking for a simple headline outcome. I was very unhappy about that, and I told the Home Secretary so.

Charles Clarke (Labour, Norwich South)

The right hon. Gentleman has made that argument frequently. Does he accept that there are easily imaginable circumstances in which those who have the encryption key are dead and it no longer exists? In those circumstances, his solution of forcing people to give up the encryption key simply would not succeed.

David Davis (Conservative, Haltemprice and Howden)

We are considering circumstances after arrest. When one times the arrest will be dictated by what has been done with the encryption codes. There is a series of other options. For example, surveillance can be used before arrest. I could devise a fictional circumstance, such as that in Mr. Hayman's letter, that argues for 10 years' detention. The Government must focus, as I have asked them to do probably a dozen times, on providing serious evidence, which we will consider seriously. Until then, we must go for what was described by a Labour Member as the outer limit of what is acceptable.

David Davis (Conservative, Haltemprice and Howden)

I feel under some duty to give way to my hon. Friend.

Bill Cash (Conservative, Stone)

On the Attorney-General's position, my right hon. Friend may know that I received a reply from the Solicitor-General about compatibility with convention rights. It states:

"Given the long-standing convention on not disclosing the content of Law Officer advice or whether or not such advice exists, it would be wrong to comment further on this issue."—[Official Report, 7 November 2005; Vol. 439, c. 2W.]

My right hon. Friend rightly said that the Secretary of State takes responsibility. Does he agree that "Erskine May" and other authorities clearly state that the Secretary of State can decide to release that advice if he deems it expedient to do so? Will he ask the Home Secretary why he does not?

David Davis (Conservative, Haltemprice and Howden)

The Secretary of State can release advice if it is expedient to do so and, I suspect, if it is helpful to his case, which "Erskine May" does not add. We can easily work out why he does not want to release information.

Menzies Campbell (Liberal Democrat, North East Fife)

The right hon. Gentleman allows me, through his reference to the role of the Prime Minister and the Leader of the Opposition, to make a point that I tried to raise with the Home Secretary. He will remember that, during the 1980s and 1990s, out of sincerely held conviction and principle, the Labour party consistently voted against the renewal of the terrorism legislation that related to Northern Ireland. At no time in that period, when Labour Members' attitudes were clearly based on conviction and principle, did anyone accuse them of being complacent or pathetic. Such words lie ill in the mouths of those who criticise others whose opposition to the Government's proposal is equally based on sincere conviction and principle.

David Davis (Conservative, Haltemprice and Howden)

The right hon. and learned Gentleman makes a good point.

Before 7 July, I analysed most of the instances of terrorism in the western world since 9/11 and examined the behaviour of the Opposition in the countries where they happened. I concluded that it was possible in some cases for Oppositions to score political advantage. Indeed, there was a change of Government in Spain. However, I also concluded that, whenever Oppositions did that, there was at least a risk, and generally a probability, that the primary beneficiaries were the terrorists, not western civilisation. I therefore took a stance for which I have been criticised—I believe by hon. Members of all parties but certainly by Conservative Members—of supporting anything that the Government introduced that I believed would be effective against terrorism.

We support much of the Bill—indeed, we are the originators, along with the Liberal Democrats, of approximately two thirds of it. It is unfortunate that the Liberal Democrat senior home affairs spokesman is not here today.

Menzies Campbell (Liberal Democrat, North East Fife)

My hon. Friend is not well.

David Davis (Conservative, Haltemprice and Howden)

Yes, the hon. Gentleman is ill. He would doubtless confirm that I suggested that the Bill be published in September and introduced in the House before Christmas. The original proposal was to introduce it after the Carlile review next January. We have, therefore, been helpful in all sorts of ways. Numerous conversations have taken place with the Home Secretary and the Minister for Policing, Security and Community Safety, as well as other Ministers, to ascertain whether we could find solutions to the problem. There is evidence of that, too, and it reflects well on the Home Secretary from time to time. He altered the glorification clause to reduce the extent of its damage. I suspect that that will happen again.

Throughout the process, there has been an almost extreme attempt to help the Government within the limits of the duties of the House. The first duty of the House is to protect the liberty of the British subject. I do not often agree with Liberals, but I agree with the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) that the comments of the past few days have, at the very least, not been up to the standard of the past four months' co-operation.

John Gummer (Conservative, Suffolk Coastal)

My right hon. Friend is explaining to the House the alternative means of meeting the need that the police have identified. Is not that the fundamental duty of the House? It is for us to decide how best to meet the need that the police identify. It is not for the police to tell the House how to legislate. Is not it a pity that, for the first time in my long history in the House, it appears that a fairly concerted effort has been made to bring pressure on hon. Members not to examine the problem carefully but to accept a solution offered by those whose job is not to find such answers?

David Davis (Conservative, Haltemprice and Howden)

My right hon. Friend is right. I had some doubts, which I did not express, about the constitutional propriety of the process. The police have a task to perform. Their primary task is to protect the citizen from crime, including terrorism. They will get the most powers that they can to achieve that end. Our job is to balance that important task with other important considerations. In the modern world, this country is defined by its institutional history—its history of liberty, judicial process, the presumption of innocence, the right not to be locked up without trial. We point at other countries in scorn about those matters. We should not throw away that history easily, least of all on the judgment of those whose task is difficult and important but should not make us overturn the fundamental duty of the House.

Mark Pritchard (Conservative, The Wrekin)

Does my right hon. Friend agree that a suspect who is detained and released without charge after 89 days will do more harm to community relations than a suspect who is detained and released without charge after 27 days? Are not the Government in danger of having an encrypted community relations policy?

David Davis (Conservative, Haltemprice and Howden)

My hon. Friend is altogether too clever for me, but he makes a good point and I shall revert to it shortly.

Angela Watkinson (Conservative, Upminster)

I wonder what conclusion my right hon. Friend would have drawn if he had been part of the cross-party delegation to South Africa last week. We were conducted round the prison at Robben Island by a former prisoner who commented, "This all happened in the days when we locked people up for 90 days without charge."

David Davis (Conservative, Haltemprice and Howden)

My hon. Friend's point speaks for itself and needs no elaboration.

Shona McIsaac (Labour, Cleethorpes)

rose—

David Davis (Conservative, Haltemprice and Howden)

I shall give way to my hon. Friend shortly.

Shona McIsaac (Labour, Cleethorpes)

Me?

David Davis (Conservative, Haltemprice and Howden)

Yes.

The Prime Minister is on the record as saying that the case for the extension to 90 days is "compelling". He clearly believes that there is such a case, just as he believed in those famous weapons of mass destruction. However, the proven case for 90 days, like that for the weapons, simply does not exist. I am willing to give way now to any hon. Member who can cite a single terrorist incident in this country that would have been averted by the 90-day proposal rather than by good police work or implementation of laws that are already on the statute book.

Michael Jabez Foster (Labour, Hastings and Rye)

We do not know, because it never happened. The right hon. Gentleman has suggested that arrests should be made later, following further surveillance and so on. If he had taken the trouble to speak to local police chiefs, as many of us have, they would have told him that this measure is about the prevention of terrorism, not its detection. Therefore, it is not always possible for the police to wait until they have all the evidence necessary to make an arrest if they need to make that arrest quickly. Does he agree that that is a fair and reasonable stance to take?

David Davis (Conservative, Haltemprice and Howden)

It is interesting that the hon. Gentleman, who is the Parliamentary Private Secretary to the Attorney-General, appears to be making a case for internment. I will pass over his slightly fatuous comment about whether I have spoken to any police chiefs recently. Perhaps he does not know what my job is.

Shona McIsaac (Labour, Cleethorpes)

I thank the right hon. Gentleman for giving way. I was intrigued by his answer to my hon. Friend the Member for Bassetlaw (John Mann) about his discussions with the police to support his case for 28 days. What discussions has he personally had with the terrorism experts on his own police force? What did they say to him that would provide a strong evidence-based case for 28 days?

David Davis (Conservative, Haltemprice and Howden)

If the hon. Lady will forgive me, I thought that talking to the terrorism experts in the Cabinet Office and the Home Office was probably better than talking to the terrorism experts on Humberside. Important as they are to my people, they are not necessarily the people I want to talk to on this particular issue.

Shona McIsaac (Labour, Cleethorpes)

So who did the right hon. Gentleman talk to?

David Davis (Conservative, Haltemprice and Howden)

Does the hon. Lady want to intervene again?

Shona McIsaac (Labour, Cleethorpes)

Is the right hon. Gentleman, who is a neighbour of mine, telling me that he did not speak to the ACPO terrorism representative for the north of England, who is a member of the Humberside police force?

David Davis (Conservative, Haltemprice and Howden)

I have talked to Sir Ian Blair, to Mr. Fox and to a whole series of people whom the Home Secretary organised for me. I took the view that that was quite enough, thank you very much. Let us be clear that the hon. Lady does not misrepresent the point that I am making. She seemed to suggest that I was looking for a case to support the proposal for 28 days, but I have to tell her that I was not. I was looking for any case whatever to support any extension. I did not find any such case at all until last week, when Mr. Hayman's document came out. I grant the hon. Lady that that letter makes some case for some extension, but I have not yet seen any case for 21, 28 or 90 days.

Robert Key (Conservative, Salisbury)

Referring back to the intervention by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), may I, too, tell my right hon. Friend how I deplore the way in which chief constables have been drawn into this political argument? It is the first time in my 22 years in the House that a chief constable has ever contacted me to seek support for a particular clause in a Bill in favour of the police. I received a letter from my excellent chief constable, for whom I have enormous regard and respect, in which he asked me to support the extension. He said:

"The new challenges we face have evolved faster than the legislation and these new powers are therefore necessary."

I wrote back to him, saying:

"If I may say so, I am more likely to be swayed by you than by Charles Clarke! Please will you explain to me why it must be 90 days, not 28? Or would you perhaps be willing to settle for a doubling to 28?"

I have had no reply.

David Davis (Conservative, Haltemprice and Howden)

My hon. Friend makes that case better than I could have done. The simple truth is that, in all the interventions that I have allowed, I have not yet heard the case that any terrorist incident would be prevented by an extension even to 28 days, let alone 90.

John Baron (Conservative, Billericay)

Will the shadow Home Secretary continue to press the Home Secretary on the issue of lack of evidence, and particularly on the point that, if the vast majority of developed countries do not require a 90-day provision, why should we?

David Davis (Conservative, Haltemprice and Howden)

My hon. Friend makes the point that I am about to come to. The case for 90 days has not been proved beyond reasonable doubt, as Sir Ian Blair himself conceded only yesterday.

Dan Norris (Labour, Wansdyke)

Will the right hon. Gentleman give way?

David Davis (Conservative, Haltemprice and Howden)

I will give way shortly, otherwise this speech will consist entirely of responses to interventions.

It will doubtless be argued that what the police want, the police should have. What the police want carries real weight on this side of the House, but it is not in itself conclusive. If the police want 90 days and are given it because we do not want to stand in their way, what would the House say if they were to come back and ask for 100 days, 180 days, 360 days or two years?

While we are at it, another point raised by the Minister was about the security services. Let no one claim that the security services want 90 days. Whitehall officials have reported that the security services have made "no recommendation" on the detention period. To return to the point made by my hon. Friend the Member for Billericay (Mr. Baron), let no one claim, either, that we need to bring our periods of detention into line with those of other countries. In Australia, where a murderous terrorist plot has just, mercifully, been foiled because of vigilant police action, there is fierce debate about an extension from two days to 14 days. Most of the other countries with similar judicial systems to ours have smaller, not greater, rights to detain without trial. On the evidence that we have, 90 days is simply too long, and too long by an order of magnitude.

The relative leisure of the three-month time scale, compared with the present 14 days—or for that matter, 28 days—risks the imprisonment and consequent release without charge of innocent people. Those innocent people will be drawn disproportionately from one section of the community and there is a real risk in that community of a backlash on an unprecedented scale, not to mention the affront to justice that would be felt by all.

When this matter was raised with the Home Secretary, it was clearly a sore point, because he went into his high-decibel overdrive, as he sometimes does. He started talking about how the leaders of the community were entirely onside against terrorism. Of course they are. Of course the heads of the Muslim communities, in particular, are onside against terrorism. They fear this more than we do, I suspect. The problem that they face is the problem of radicalisation—indeed, unknown radicalisation—of very small but dangerous parts of their own community, involving young men in their community. We must not make those community leaders' job more difficult, or, indeed, almost impossible.

Ben Wallace (Conservative, Lancaster and Wyre)

Does the shadow Home Secretary agree that the security services and the police forces are finding it incredibly hard to recruit employees from the ethnic and Muslim communities because of the isolation that they feel? Would not the 90-day provision increase that problem, rather than decrease it?

David Davis (Conservative, Haltemprice and Howden)

My hon. Friend makes a good point.

It was clear from the beginning of this process that the majority of the British people actually favour 90 days, and I think that we should recognise that. I have been accused of opportunism; it is an odd kind of opportunism that takes the unpopular side of the argument, but never mind. A large number of people favour 90 days—perhaps this is true in the Muslim community as well—but they will do so only until the day it goes wrong, and we find that someone has been held for three months, lost his job, broken his family, yet comes out innocent. If he did not hate Britain when he went in, I suspect that he would have a grudge when he came out. That is the situation that we have to look forward to. In the aftermath of 7 July, I quite understand the imperative, but we must be absolutely balanced in the way we approach this issue, and think forward.

Adrian Bailey (Labour, West Bromwich West)

Will the right hon. Gentleman give way?

David Davis (Conservative, Haltemprice and Howden)

Not at the moment.

We need to exercise foresight in regard to the consequences of these measures, which, although they might have the best of intentions, could go wrong.

Julian Brazier (Conservative, Canterbury)

Putting the powerful point that my right hon. Friend has just made together with his previous point, does he agree that the crucial point about the success in Australia, and the fact that that country gets away with requiring only a moderate number of days' detention, is that the Australians have prevented radicalisation through not having human rights legislation that blocks them from getting rid of known agitators and troublemakers?

David Davis (Conservative, Haltemprice and Howden)

I am on record as having said that we need either to reform, replace or repeal the Human Rights Act 1998, for precisely that reason. Beyond that, I had perhaps better not be tempted further.

Adrian Bailey (Labour, West Bromwich West)

rose—

Dan Norris (Labour, Wansdyke)

rose—

David Davis (Conservative, Haltemprice and Howden)

I will give way to the hon. Member for West Bromwich, West (Mr. Bailey). This will be the last time, then possibly the hon. Gentleman, then that is it.

Adrian Bailey (Labour, West Bromwich West)

The right hon. Gentleman is very generous. He has been making the case that the extension to 90 days will radicalise young Muslims. Will he explain how 90 days would radicalise them, yet 28 days would not? Or would they perhaps be a little less radicalised?

David Davis (Conservative, Haltemprice and Howden)

The hon. Gentleman makes a very good point. On Second Reading, I said that I did not really see an argument to go beyond 14 days, and one of the fears was that locking people up for a month is still harmful. The only reason that I would go to 28 days is that the Home Secretary has given an undertaking that the powers will be used extremely sparingly. The trouble with 90 days is that even one mistake will be a disaster. The hon. Gentleman is right that it is a judgment call, but in the balance between liberty and security, this country should always err on the side of liberty.

David Heath (Liberal Democrat, Somerton and Frome)

Anybody who is asked whether they agree with the detention of terrorists will answer, "Yes of course." Our concern is not the detention of terrorists but the detention of people who are not terrorists. That is what will have an effect on the communities of which the right hon. Gentleman speaks.

David Davis (Conservative, Haltemprice and Howden)

The hon. Gentleman makes the point well. The real risk is that, if we detain and then release one suspected terrorist without charge, we radicalise 100 further people—the terrorists of the future. The Bill is dangerous in that respect. The proposal is simply wrong: it will damage liberties, rights and a system of justice fundamental to the British way of life. It will be counter-productive and ineffective.

Dan Norris (Labour, Wansdyke)

Will the right hon. Gentleman give way?

David Davis (Conservative, Haltemprice and Howden)

I said that I would not give way to the hon. Gentleman. If he has a problem with the word "not", I will help him later.

The Bill will be counter-productive and ineffective. Far from being tough on terror, it might turn out to be a gift to the terrorists. That is why we cannot support it today.

David Winnick (Labour, Walsall North)

I welcome the Home Secretary's comments about High Court judges and the use of the sunset clause. I tabled amendments about that for Committee, and like many, if not all my hon. Friends, I am very pleased about my right hon. Friend's comments.

There is, however, one outstanding issue on which agreement has not been reached: detention for 28 days. Apart from anything else, had we been able to reach agreement on that, the House of Commons would be virtually united, and the proposal would go to the other place and almost certainly be accepted.

Jeremy Corbyn (Labour, Islington North)

Will my hon. Friend give way?

David Winnick (Labour, Walsall North)

I will do so in a moment.

One thing should be made absolutely clear: there is no division among us about acceptance of the terrorist threat. As far as I know, no Member of the House is saying that that terrorist threat is exaggerated. Even if the attacks on 7 July had not happened, we know that there are mass murderers who want to bring death and destruction to our country.

Clearly, those of us who have said that, in all the circumstances, the current detention period of 14 days should be doubled to 28 days accept that the police should have that facility. The right hon. Member for Haltemprice and Howden (David Davis) said that he was not too happy about a further 14 days, and none of us are particularly happy about a further period of detention in which no charges are brought. I voted for 14 days because of the terrorist threat, however, and am willing to see that doubled, as I have said from the beginning, and I am hopeful that my amendment might be carried today.

Jeremy Corbyn (Labour, Islington North)

My hon. Friend will be aware that a number of us are totally opposed to 90 days and unhappy with the alternatives proposed. Can he explain to the House how the number of 28 days came to be presented and what its significance is, as some of us are quite puzzled about that?

David Winnick (Labour, Walsall North)

I was asked that question in Committee and pointed out that it did not come from one of my research assistants, if only because I do not have a research assistant. I do not know whether it is a unique form of advanced mathematics, but given that we already have 14 days, and in view of the acute terrorist threat and the police request, I thought that it would not be unreasonable—being a very reasonable and flexible person—to double that to 28 days. If that does not satisfy my hon. Friend, there is nothing that I can do.

Shona McIsaac (Labour, Cleethorpes)

Is my hon. Friend therefore telling the House that he feels that the terrorist threat in this day and age is only twice as bad as before? If he wants Members to support 28 days, he ought to give an evidence-based case.

David Winnick (Labour, Walsall North)

I did not think that there would be any controversy about the acute terrorist threat. Anyone who tried to make out that those of us who put a different view do not recognise the acute terrorist threat would be silly. For heaven's sake, let us consider what happened on 7 July, when so many totally innocent people were massacred. Let us not go down that route.

Clare Short (Labour, Birmingham, Ladywood)

Will my hon. Friend give way?

David Winnick (Labour, Walsall North)

Not at the moment.

This debate is not about the Prime Minister's authority or the standing of the Government. If some of the media, the Opposition or Whips want to play it that way, it does not mean that they are right. I do not challenge the authority of the Prime Minister in any way. I want him to stay in office, and I want this Government to succeed. I spent 18 years in opposition, and I certainly do not want a change of Government. That might clarify the position for some of my hon. Friends who think that I am playing a different game.

What this debate is actually about—it might seem odd or eccentric to mention this—is trying to reach the right balance between our traditional liberties, the rule of law, habeas corpus, and at the same time, in reply to my hon. Friend the Member for Cleethorpes (Shona McIsaac), trying to protect this country from acts of terror. As far as those who are in favour of 90 days are concerned, the balance has been reached. Clearly, however, I and my hon. Friends have tabled the amendment, on which I hope there will be a Division, because we believe that the balance has not been reached with 90 days.

It should be borne in mind that not a single life destroyed by the mass murderers on 7 July would have been saved if the clause had been in operation. In view of what I have just said, I am not putting that as an argument for not having detention for 14 days or 28 days, but we should bear the point in mind.

Angela Smith (Labour, Sheffield, Hillsborough)

Is it not the case that the 90 days might not have saved lives in the 7 July attack, but that that detention period might save lives in future, given the time taken to investigate atrocities that have taken place?

David Winnick (Labour, Walsall North)

The point has already been made: if we readily accept 90 days, and if the police say at some future stage that they need four, five or six months, will we simply turn round and say, "The police have required this, there is an acute terrorist threat, and we will agree"? At what stage will we say that the period of detention should be shorter than the police want? I happen to believe that 28 days is a reasonable compromise.

Another factor that should be borne in mind is that of those who were held for up to 14 days and subsequently released, no one was later charged—the very point made by my hon. Friend the Member for Tooting (Mr. Khan) in Committee. I repeat: no one who was held for up to 14 days and subsequently released was later charged, despite, no doubt, ongoing police investigations. If I may say so, we should exercise a little caution, a little hesitation, before agreeing so readily to 90 days.

Of course the police have a perfect right to request more time. I shall not go into whether the police should be lobbying for it, because I think that that is irrelevant, as are the Prime Minister's authority and the Government's standards. I want to deal with the crux of the matter. What should concern us is the balance to which I have referred.

Clare Short (Labour, Birmingham, Ladywood)

Will my hon. Friend give way?

David Winnick (Labour, Walsall North)

In a moment.

As I have said, the police have a perfect right to ask for more time. I am not criticising the police. I do not dispute the obvious fact that they have a vital job to do in defending our country from death and destruction. Who would dispute that? But just as the police have a right to express their view, we in the House of Commons have a duty to weigh up all the factors before reaching a decision. That is our job—and, no matter how many times it has been mentioned, we should not overlook the fact that three months' detention is the equivalent of six months' imprisonment without remission.

Chris McCafferty (Labour, Calder Valley)

Is my hon. Friend aware that, in concluding that 28 days was about right, he was in complete agreement with the European convention on human rights? As far as I am aware, the United Kingdom has not just signed but ratified the convention, and has not applied for a derogation in order to enact this legislation.

David Winnick (Labour, Walsall North)

That is a good point. I am glad that I am in agreement with some people, as I sometimes appear to be in agreement with hardly anyone.

The right not to be imprisoned without charge, the right not to be subject to arbitrary arrest and detention, and habeas corpus itself are all basic to our very democracy. They had to be fought for. My hon. Friends and I can take some pleasure in the fact that our people did that. Even before our party came into existence, the radicals of earlier centuries fought for those rights. We cannot dismiss that out of hand. We cannot say that because of the acute terrorist threat and all the problems that we unfortunately face, those rights should be seen in a different light. They are fundamental to our democracy and to the rule of law. That is why we should be very hesitant indeed about locking people up for 90 days.

It has been pointed out that 90 days is a maximum, but a maximum is a maximum. Some people may well be held for that period. What if they are innocent? How would we like to be locked up for a period of up to 90 days if we were innocent of a charge? We can imagine the antagonism and hostility that would be felt by people who had been so detained, and we can imagine the effect that that would have. We must be very, very careful to avoid arousing unnecessary bitterness and hostility in people who are innocent.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is making an extremely good speech, and many Members on both sides of the House will wish to support his amendment, but may I draw his attention to a procedural point? Before we can support his amendment, amendment No. 55 must be defeated. Unless we can defeat that Government amendment, we will not have an opportunity to support the hon. Gentleman's excellent proposal.

David Winnick (Labour, Walsall North)

How could I possibly disagree with that? I am pleased that the hon. Gentleman has made the point, though.

We have been told that every seven days the matter will be submitted to a senior judge. I said that it should go before a High Court judge, and I am glad that the Home Secretary has agreed to my suggestion, but in my view not even that constitutes sufficient protection, or sufficient justification for the 90-day provision.

Huw Irranca-Davies (Labour, Ogmore)

Will my hon. Friend give way?

Linda Gilroy (Labour, Plymouth, Sutton)

Will my hon. Friend give way?

David Winnick (Labour, Walsall North)

I think I know the views of my two hon. Friends. May we just work on the assumption that I do not agree with them on this point?

I do not accept for a moment that there is any question of a police state. I do not believe that my case for 28 days is so weak that I have to exaggerate. Nor do I believe that detention of this kind is like internment in Northern Ireland. Let me say this, however. For the entire 30 years, I was involved in the denouncing of IRA murderers and the atrocities that they committed. Who would deny—and I include Conservative Members—that internment served the interests of the IRA? Would anyone now deny the obvious?

I know that we are not discussing internment, but is there not a danger that the Muslim community, the overwhelming majority of whom are as opposed to terrorism as we are, will nevertheless feel that they are being penalised and discriminated against? I again emphasise that their opposition to terrorism is no less than ours. Of course, among the victims of 7 July were Muslims, Christians, Jews, Sikhs, Hindus—the terrorists make no distinction. Indeed, if we said to the mass murderers, "There are Muslims who will be your victims," their response would be, "If they're good Muslims, they will simply go to paradise earlier." So we know the sort of people whom we are dealing with.

Huw Irranca-Davies (Labour, Ogmore)

Will my hon. Friend give way?

David Winnick (Labour, Walsall North)

No. I have limited time, and the House will perhaps be pleased to hear that I am concluding.

I accept that at this moment, I am probably putting forward a minority point of view so far as the country is concerned. Like all politicians, I would much rather be able to say that majority opinion is with us. I could quote opinion polls on various controversial topics that we debated in the last Parliament and on other occasions. I shall not mention those topics now, as they might provoke a certain reaction from the Opposition. I have to accept that the opinion polls on this subject are probably right: that those of us who are urging acceptance of 28 days are, at the moment, probably in the minority. However, if the time ever comes when the House of Commons takes decisions not on their merits, but according to the latest opinion polls, what certain tabloids are saying and those who argue, "Lock them up and throw away the key", frankly, for all the good that we are doing, we might as well pack it in and go home. We have to decide according to the issues.

How many times in the past 30 or 40 years have we taken a minority view on hanging and anti-discrimination measures, for example? Then, we were almost certainly in the minority, but we took a point a view. We did not simply follow public opinion: we led. That was our job and responsibility, and on this issue we should again give a lead.

We and each successive generation of parliamentarians are the custodians of our liberties and freedoms, all of which are very precious to us. How we combine that role with dealing with the terrorist threat is of course a decision to be reached by the House of Commons now, and I have no doubt that that issue will arise again in future. I have not been lobbying my hon. Friends. The Whips have, and that is their job. I do not complain: Whips of all Governments lobby, and ours would be odd Whips if they did not. To those of my hon. Friends who are sure about 90 days, I say, fine. But I ask those who have hesitations—who, on a free vote, would not dream of voting for 90 days—to leave aside the fact that, as we all know, 90 days or anywhere near it will not be accepted by the Lords. There will be movement back and forth between the two Houses and the Government will give way, so, one could argue, why not give in now to the elected House of Commons? To those who have hesitations—who feel, that, on balance, 90 days is excessive—I beg of you: do not vote in the Division Lobby for what you do not believe in.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is a pleasure to follow the hon. Member for Walsall, North (Mr. Winnick). In considering how they should discharge their duties in this House, Members—particularly new Members—would do well to remember the last few minutes of the hon. Gentleman's textbook contribution. He is right: we have to do what is right, even if it is unpopular. The Prime Minister said at Question Time earlier today that he would rather be right and lose than the reverse—a position with which Liberals and Liberal Democrats have become very familiar in the past 80-odd years.

Given that the right hon. Member for Haltemprice and Howden (David Davis) referred to the absence of my hon. Friend the Member for Winchester (Mr. Oaten), I should first apologise to the House on his behalf. He has not been well this week, which is why he is absent. Such absence is, however, no indication whatsoever of a lack of commitment to this issue, about which he feels passionately.

I do not feel any embarrassment in admitting candidly to the House that this is one of the most difficult issues with which I have had to struggle since being elected to this place in 2001. With the exception of the debates and votes in the run-up to the war in Iraq, this is by some considerable margin the most difficult decision that we have faced. Liberal Democrat Members realise and understand the nature of the threat posed by terrorism to our society and our democracy. We understand that the consequences will be severe in human terms if we get it wrong. However, we remain of the view that before going down the road that the Government have proposed for us, there must be solid evidence to justify it, and we remain of the view that, as of today, such evidence has not been provided.

Clare Short (Labour, Birmingham, Ladywood)

I understand that it is widely alleged that the 7 July bombers were under some sort of surveillance and that there is enough evidence to suggest that they could have been charged with raising money for terrorism or other offences. Does the hon. Gentleman agree that, if that is the case, we must have a thorough inquiry to learn the lessons? If it is true that we could have prevented what happened, looking further into what happened on 7 July might lead us to some answers regarding what we are debating today.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The right hon. Lady makes a fine point and I would not dispute her conclusions. Indeed, the question of investigation is ongoing and I feel rather suspicious about those who have sought to thwart any such investigation.

Dan Norris (Labour, Wansdyke)

The hon. Gentleman talks about the need for solid evidence and most of us would agree with that. Already in our legal system, however, is a recognition that getting the necessary evidence is not as straightforward as we would like. For example, we know that only 1 per cent. of people are convicted in child protection cases, but we also know that child abuse is widespread and a terrible thing. Our legal system deals with that by having common law family courts that are able, if necessary in the most extreme circumstances, to take children away from people who might harm them. We have a special system. Despite what the hon. Gentleman says about the need for evidence, the key is that we cannot always prove matters as simply or straightforwardly as we would like, even though we know that bad things are happening. Surely, terrorism provides a similar example: we know that terrible things can and may happen, so we have to ensure that our legal system can deal with them appropriately.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

My experience as a court solicitor suggests that if the hon. Gentleman believes that we can derive a legal system that will catch everyone who may ever have done something wrong, he is hopelessly optimistic.

Dan Norris (Labour, Wansdyke)

rose—

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman has already made three interventions in his one and I have to tell him that the protections and devices that the legal system has already produced in respect of child abuse—I agree that it is a horrific area—all involve judicial supervision.

Dan Norris (Labour, Wansdyke)

rose—

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

If the hon. Gentleman can contain himself, we have taken his example as far as we can and it has always been determined by the courts at a very early opportunity. The parallel, I have to say, simply does not work.

I want to say a few words about communication, or perhaps the lack of it, between the Home Office in London and the Crown Office in Edinburgh. It will not have been lost on the House that the Home Secretary was asked three times—by myself, by my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) and by the hon. Member for Banff and Buchan (Mr. Salmond)—why the Lord Advocate was not asked for a view on the suitability and workability of 90-day detentions without charge in the context of the Scottish legal system. It will not have been lost on the House that on three occasions he gave no answer to that very straightforward question. I do not understand how the Lord Advocate can be asked for an opinion about the desirability of a uniform law to cover the whole of the UK without then being asked for a view on the issue of 90-day detentions. My suspicion is that the Government did not ask because they knew that they would get an answer that they did not like.

Alex Salmond (Scottish National Party, Banff and Buchan)

What does the hon. Gentleman think would be the likely reaction of the House if a Home Secretary were to reveal that he had not asked the opinion of the senior Law Officer in England before producing a measure such as this? Should not hon. Members reflect on that as they consider what is being said?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I hope that hon. Members will reflect on that. I am a Scottish Member of this House, and for me the blatant disregard for the office of the Lord Advocate—never mind the incumbent—is disgraceful and distasteful.

The House must strike a balance in the proposition being considered today. Much has been said about the views and role of the police in this debate, and we may return to that on Third Reading. Liberal Democrat Members have listened to all the contributions that have been made to the debate. We have listened to the police, and will continue to do so: that process must go on. However, we have also listened to people in those communities who believe that they have most to fear. They already feel marginalised and threatened by what they see on the streets and in the pages of the newspapers, and believe that they are most likely to be the victims of 90-day detention. The possibility that young men will be arrested and held for up to a maximum of 90 days before being released without charge will create martyrs in those communities.

Stewart Hosie (Scottish National Party, Dundee East)

Has the hon. Gentleman given any consideration as to whether evidence gathered during 90 days of detention, with close questioning that might last up to 18 an hours a day, might be acceptable in a court of law?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That is a good point, and I shall deal with it in the course of my speech. The House will recall the process by which we arrived at the current rules of evidence and procedure, and the reasons for their introduction.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does my hon. Friend accept that the concerns are not only about communities that may be different from our own and which may subscribe to another faith? All hon. Members know that constituents regularly come to see us when a family member has been detained unreasonably, as they see it, for only 12 or 24 hours. The question that we should ask our constituents is, "Would you find this proposal acceptable for your family—for your brother, son or daughter?" Invariably, they would answer, "No, we would not."

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

My hon. Friend reminds me of the old adage that a conservative is a liberal whose house has been broken into, and that a liberal is a conservative who has been caught speeding. He is absolutely right, though: we must approach this matter from a personal and individual perspective. To suppose that we are dealing with an amorphous mass of people in our communities who carry red terrorist labels that we can all read easily is a dangerous line of thought.

David Hamilton (Labour, Midlothian)

Will the hon. Gentleman give way?

The rest of the debate is in Hansard.