Protection of Freedoms Bill

Chris Bryant Excerpts

Tuesday 11th October 2011 Commons Chamber

[James Brokenshire]

We come back to what I spoke about—the exceptional nature of the powers sought and the point that 14 days should be the norm. Through the new clause, we seek to address the very limited circumstances in which Parliament is not functioning, and we recognise and take on board the Joint Committee’s comments on that. In those circumstances, the Home Secretary and the Government need to be able to act in the national interest to ensure security. For that reason, the emergency order-making power in new clause 13 is limited to periods when the introduction of primary legislation would not be possible—that is, when Parliament is dissolved or before the first Queen’s Speech of the new Parliament.

As we set out in the Government’s response, published last week, to the Joint Committee’s report, we welcome two of the Committee’s further recommendations for increased safeguards, and we have included them in new clause 13. First, applications for any warrant of further detention that would see an individual detained for longer than 14 days may be made only with the personal consent of the Director of Public Prosecutions or the equivalent post holder in Scotland or Northern Ireland. Secondly, whenever an individual is detained for longer than 14 days, their case will be reviewed by the independent reviewer of terrorism legislation, or someone on their behalf, and a report of that review will be sent to the Secretary of State as soon as possible.

Both those changes will also be incorporated in the draft fast-track legislation to increase the maximum length of pre-charge detention to 28 days. New clause 13 and consequential amendments 79 and 80 ensure that there is an effective contingency mechanism for increasing the maximum period of pre-charge detention in the limited period during which Parliament is dissolved. It is right that we should continue to rely on fast-track primary legislation in all other circumstances. On that basis, I commend new clause 13 to the House.

[Chris Bryant (Rhondda) (Lab)]

I will start with some general comments and then come directly to the amendments and new clauses. Obviously, this is the first time that I have spoken about these matters in a shadow ministerial capacity, and I want to underline the fact that Her Majesty’s loyal Opposition remain loyal on these issues. It is often said—just because it is a truism does not make it untrue—that the single most important thing that a Government have to do is protect their citizens, and we fully accept that.

It was said earlier that it is important to balance the security of the nation and civil liberties. I disagree with the framing of the debate in that way, because I think that the two are intertwined—someone has personal liberty only if they are safe and feel it, but they have liberty only if those particular liberties are granted to them as well. I would try to say that the two are not mutually exclusive, but intimately intertwined.

Outside London, people often think that issues of counter-terrorism are primarily the responsibility of the Metropolitan police and to do with what happens in the metropolitan areas of the country. However, I clearly remember that after 11 September, when Americans stopped flying, people were laid off at GE Aviation in Nantgarw just outside my constituency because it did not need to make any more aircraft engines. We are all intimately involved. Following the bombings in London, all the schools in my constituency cancelled their visits to Westminster for about a year, because there was a nervousness about coming up to London. We need to get these issues right.

--- Later in debate ---

[Chris Bryant]

Indeed—but we are trying to do better, and I honestly think that there is a danger. At that time, when there would be a Government but not a Parliament, we would end up with something of a constitutional crisis if the Government chose to delay having a Queen’s Speech to invoke the power, notwithstanding the other elements to which the Minister referred.

Then there is the route of emergency primary legislation. The right hon. and learned Member for North East Fife (Sir Menzies Campbell) referred to the dangers, and he is absolutely right. Obviously, there would be a series of debates in this and the other House, because we would have to go through all three stages in both Houses. I cannot conceive of a set of debates in which one would not get close to having to argue why it was all necessary now and therefore it would not be prejudicing any potential prosecution. That is the Government’s big problem about the route of emergency legislation.

I should also say that, on the whole, emergency legislation is a bad idea. In my experience, the Commons does not do emergency legislation well, and their lordships do not do it much better. I presume that the Minister would want all three stages in both Houses in one day, or at most two. There are real problems with that, because Members would have to be able to table manuscript amendments on Report and would not be able to listen to the Second Reading debate before considering the tabling of amendments. All that would be in danger of leading to bad legislation.

[James Brokenshire]

I welcome the hon. Gentleman to his position and wish him well in his new responsibilities and duties. Does he accept that when the previous Government were considering the extension to 42 days, they were proposing to use exactly the same mechanism?

[Chris Bryant]

I think we have moved on somewhat; certainly I have. Also, the facts have changed. There was a time when a lot more people feared much more that we might need more than 14 days rather more frequently, but the fact is that the powers have not been used—they have not been necessary. The facts have changed, time has passed, and we need to move on. I am grateful for the Minister’s wishing me well, with a slight barb to it.

The Minister said that in the case of phone hacking the House moved remarkably swiftly. In fact, all that happened was Executive action, because the Government were finally persuaded that they should set up the Leveson inquiry. Parliament did absolutely nothing. We did not legislate; we certainly did not go through three stages of a Bill. We may end up legislating in that respect, but it will not happen for some time.

We have had the pre-legislative scrutiny process, and I am grateful to the right hon. and hon. Members who sat on the Committee. However, there is still the danger that following the moment that necessitated emergency legislation—I do not know whether that would be 10, 11 or 12 days in—we would effectively be undertaking ad exemplum legislation, which is always a mistake. I sympathise with the squaring of the circle that the Government are trying to achieve whereby we all accept that the norm should be 14 days, and while in normal circumstances we do not want all those 14 days to be used, we none the less accept that there might be some exceptional circumstances in which 20 days might be necessary. However, I believe that the Government are going down the wrong route in trying to achieve that, as does the pre-legislative scrutiny Committee, which said:

“We believe, however, that the parliamentary scrutiny of primary legislation to this effect would be so circumscribed by the difficulties of explaining the reasons for introducing it without prejudicing the rights of a suspect or suspects to a fair trial as to make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and ineffective for Members of both Houses of Parliament.”

[Mr David Winnick (Walsall North) (Lab)]

As someone who does not have to move on from 42 days, having taken, in my view, the right decision at the time—and previously on 90 days—like my hon. Friend I have the greatest reservations about emergency legislation all in one day. If it is to be detention without charge for 14 days, which, like him, I certainly welcome, I would vote against any measure that the Government clearly have in mind whereby it would be 14 days-plus. That would be totally unsatisfactory, for all the reasons he has cited.

[Chris Bryant]

I think that “I told you so” came at the beginning of my hon. Friend’s comments. Quite often he does turn out to be more correct than me, but there we go—that’s life.

I can imagine a point where we are nine days into somebody’s detention and then the Government realise that they need their emergency legislation. They would not be able to start that process until the 11th day, and then they would suddenly be saying, “Right, we’ve got to put it all through this House and the other House in one day.” That leads to very dangerous decision making, and it is a bad route to go down. It would be a mistake for us to decide in principle that that is what we want to do in some given circumstance. That is why I prefer the route advanced by my right hon. Friends the Members for Cardiff South and Penarth and for Wythenshawe and Sale East (Paul Goggins), the right hon. and learned Member for North East Fife (Sir Menzies Campbell), the right hon. Member for East Yorkshire (Mr Knight), and the hon. Member for Poole (Mr Syms) and for Banbury (Tony Baldry). Having said that, we still need to resolve some of the issues about the level of corralling needed to ensure that the power is not used gratuitously, that the Secretary of State is not able to proceed unhindered, and so on.

[Tom Brake (Carshalton and Wallington) (LD)]

Has the hon. Gentleman already thought through what some of the safeguards should be to ensure that the Secretary of State does not use the provision as an administrative facility to progress from 14 to 28 days?

[Chris Bryant]

New clause 14 makes clear some of the specifics involved. If the Government have things they think should be additional, that debate needs to be had. I suspect that this will not be the end of the matter in this House and that their lordships will want to look very closely at whether there is a better route to achieve the same end.

Nobody is trying to end up in a different place in this regard, but the process of emergency legislation that the Government are using is a mistake. In essence, they have already accepted the principle that there should, in exceptional circumstances, be an additional power. They have accepted that in relation to Dissolution and effectively said that it should be present at other times. The issue is simply about how we make sure that the Secretary of State, if he or she were to have that power, would then be circumscribed by Parliament and by other bodies. Undoubtedly, High Court judges and the Director of Public Prosecutions make decisions that do not allow the Secretary of State to act gratuitously. However, we prefer the route that new clause 14 lays out, and I hope that the Government will think again. I do not expect that we will want to divide the House on this matter, but I hope that their lordships will look at it again.

[Mr Cash]

I will speak briefly because I have already gone through this issue on a number of occasions.

I believe very strongly that if there is a case for extending the period from 14 to 28 days, the Government, by referring to the period in question as merely 14 days and describing it as a permanent reduction in clause 57, and then talking about certain circumstances of an emergency nature that extend it to 28 days, effectively sell the argument down the river. I am trying to look at the principle. In my opinion, 28 days is justified. We have been through the arguments, as the hon. Member for Walsall North (Mr Winnick) said, about whether it should be 42 days or 90 days. Fourteen days can be a very short period, so if there is a case for it being 28 days in certain circumstances, for heaven’s sake let us just accept that 28 days will be used very rarely and only in special circumstances.

Furthermore, to go back to a point that the Minister made, there is the distinct, continuing right of habeas corpus. If a judge thought that somebody was being ill-treated during a period of detention, which is really what this is all about, and he was satisfied by evidence from other sources and an application for habeas corpus, he would go straight down—in Belmarsh, for example, there is a tunnel—and ask to have the person who was being detained produced for him. He would rapidly work out whether that person was being subjected to unfair or unreasonable treatment—we are talking here about the realities of life—and whether he should be given the full benefit of habeas corpus. Habeas corpus means, “You shall have the body,” or, “You shall produce the person.” That, in my judgment, is ultimately what this is all about.