Terrorism (Detention and Human Rights)

I certainly understand the hon. Gentleman’s position, which I suspect is shared by many. However, the fact remains that we cannot realistically expect the intelligence services, the Government or anyone else to give all the detailed information to Parliament, as that might prejudice national security. The problem with the existing system is that reports from the Intelligence and Security Committee often come late in the day and go to the Prime Minister. That Committee does not report directly to Parliament. The advantage of a committee that reported to Parliament would be a greater degree of confidence in the views expressed by any such body. We hope that the Government will also look more favourably on our recommendation that counter-terrorism legislation should contain sunset clauses that limit it to a maximum of five years, and should be subject to parliamentary review of its operation. To turn to our report’s substantive conclusions and recommendations, and the Government’s response, I should like to explain the context of our report. It is the third in a series of reports that we have produced in our continuing open inquiry into counter-terrorism policy and human rights, on which we embarked at the start of this Parliament. The first of those reports considered the then Terrorism Bill and related matters. It was in that report, therefore, that we set out our views on the extension of the pre-charge detention period. In the light of the evidence that was then available to us, the Committee concluded that"““the proportionality case for any increase from the current 14 day limit has not so far been made out””." I should mention in parentheses that my personal view was different, as was that of my right hon. Friend the Member for Southampton, Itchen. I voted for the 90-day extension and was in a minority on my Committee, as one might expect. However, I do not think that anyone could say that I have been soft on terror during my period in Parliament. Indeed, until 9/11 I was seen as the nerd who took an interest in such matters. The day after I seemed to become the world’s leading expert on extremism in Britain. However, any views that I express on the issue must be in the context of the rule of law and the importance of human rights. That has become even more important to me since I took up my job of chairing the Committee. The Committee did not rule out the possibility that evidence might be forthcoming to justify an extension of the detention period, subject to improvements in procedural safeguards. That position obviously differs slightly from the Home Affairs Committee view, and since that time my Committee has not explicitly re-addressed the question. My Committee’s second report dealt with the order that maintained in force the control orders regime, under sections 1 to 9 of the Prevention of Terrorism Act 2005. We considered, agreed and published that report in the short period between the laying of the order and the debates to approve it, which took place on 15 February in both Houses. We accepted in principle that a control orders regime that imposed preventive measures after a proper judicial process was capable of being human rights compatible, but we described the control orders regime contained in the 2005 Act as, in our view, a de facto derogation from articles 5.4 and 6.1 of the convention. We therefore seriously questioned the renewal of the provisions without Parliament being given a proper opportunity for debate on whether a derogation was justifiable. In other words, are the extraordinary measures in the 2005 Act strictly required by the exigencies of the threat that our country faces? The report that we are debating today is our third in the series. We also intend to report soon on the Council of Europe convention on the prevention of terrorism, on how intercept evidence might be made available in terrorist court cases, and on other aspects of counter-terrorism policy. We will, of course, also scrutinise any further legislation that the Government bring forward. A number of those subjects are identified in the report that we are debating today. We are trying to look forward in a constructive way, to help the Government to produce human rights compatible suggestions to improve counter-terrorism. In our earlier reports, we were necessarily reacting to concrete legislative proposals that the Government had advanced. In the current report we set out to make and examine positive proposals for"““more enduring ways of making the Government’s counter-terrorism strategy compatible with our human rights obligations.””" Our focus is on ways of making easier the effective prosecution of terrorist suspects, and on possible alternatives to lengthy pre-charge detention. Article 2 places a clear duty on states to prosecute those who are suspected of involvement in terrorist activity. The main obstacles to prosecution under the criminal law are well known. They were identified by the Newton report and flow from the fact that much information against terrorist suspects is likely to be derived from intelligence. Such intelligence information may not cross the threshold of admissibility, and may fall short of the criminal standard of proof. Section 17 of the Regulation of Investigatory Powers Act 2000 prevents the use of intercept evidence in court. Even if such evidence were admissible, the security and intelligence agencies are opposed to its use in open court for fear of compromising sources or methods. The agencies are also concerned about the breadth of disclosure requirements in English criminal law. However, that does not seem to be a problem for other countries, where enforcement agencies regard our position with disbelief, especially as intercept material supplied from a foreign agency can, I understand, be used, unlike that from a UK source. We looked at a number of ways of overcoming those obstacles to prosecution, some of which we ruled out. We ruled out the use of special advocates in specialist terrorist criminal trials as being incompatible with many of the most basic principles of a fair trial. Following discussions on a visit to France and Spain about the investigating magistrate systems in those two countries, we concluded that nothing from those very different systems should be grafted on to our adversarial common law system. I listened with interest to the point that the hon. Member for Beaconsfield (Mr. Grieve) made in his intervention, with which we concur. We considered that the role of the Crown Prosecution Service should be developed, so that it becomes more proactive in relation to the investigation of offences. In many ways, the CPS fulfils the role of the investigating magistrates in the continental jurisdictions. By building on that role we could import some of the advantages of their activities, albeit in the sense of how they operate, rather than in a structural sense. The growing specialisation in terrorist cases should be supported and strengthened. We have called for CPS relationships with the police and the intelligence services to be enhanced, so that investigations can be structured to maximise the prospects of the information obtained being usable as evidence in a criminal trial. I now come to the first area of significant disagreement between the JCHR and the Home Affairs Committee. Although members of our Committee welcomed the introduction of the new offence of acts preparatory to terrorism, we were concerned when the Home Affairs Committee found that the power of pre-charge detention was being used for the purposes of prevention, rather than investigation. My right hon. Friend suggested that the difference between us might be semantic, but we were concerned when his Committee recommended that statutory authorisations should be provided for such arrangements, which seems to go a little beyond semantics. As we said in our report, preventive detention per se is not permissible under article 5(1), and any statutory authorisation would require a derogation from that article. We are pleased that the Government clarified the position to some extent in their response to us and that they do not intend to amend legislation to permit preventive detention. We recommended that attention should be turned urgently to relaxing the ban on the use of intercept, and I believe that the tide of opinion is turning on that issue, with the Director of Public Prosecutions, the Attorney-General and the Metropolitan Police Commissioner all indicating that it should be looked at favourably. However, I also noted the rather sceptical—