Protection of Freedoms Bill

David Winnick Excerpts

Tuesday 11th October 2011 Commons Chamber

[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.

--- Later in debate ---

[Paul Goggins]

My hon. Friend knows enough about this matter to know that we cannot draw simple comparisons between our system and other systems. Other systems sometimes appear to hold suspects for shorter periods when in fact they are held for longer periods. We have a system that reflects our own judicial culture but also recognises the fact that we face enormous threats and challenges from terrorists in this country, perhaps particularly in this city. We have had to work our way through this, but if he missed the earlier part of my speech, he will not have heard me say that I have had pause to reflect and that I have changed my mind. I think that 14 days should be the maximum in most circumstances, apart from the exceptional circumstances that I am referring to.

[Mr Winnick]

rose—

[Paul Goggins]

I shall give way one more time, but then I want to bring my remarks to a conclusion.

[Mr Winnick]

I am grateful to my right hon. Friend. I accept that he is a convert to 14 days, although I suspect that if we were debating 42 days, he would not necessarily be up on his feet protesting. On the point about the Attorney-General, are we really to believe—this is not a reflection on the Attorney-General in any Government—that if the Home Secretary told the Attorney-General, in the usual way that these things are done, that it was necessary to increase the 14 days in exceptional circumstances, the Attorney-General would say to the Home Secretary, “No”? It is unrealistic.

[Paul Goggins]

I do not accept that it is unrealistic. It would depend on the individual judgment of the Attorney-General linked to the judgment of the Home Secretary, who would have been briefed by the Security Service and others. On its own, it is not a total safeguard, but it is one among several, and I shall briefly go through the others. The Secretary of State would have to give a statement to both Houses as soon as possible. There would have to be a review by the Independent Reviewer of Terrorism Legislation of any case in which a suspect was detained for more than 14 days. There would have to be an annual report by the Home Secretary listing any orders that had been made; that report would have to be debated and voted on in six weeks. Finally, the Director of Public Prosecutions would have to give his personal authorisation to any application to the High Court for a further warrant for detention. We know that that already happens in practice, but it should be on the face of the legislation. Members of the Joint Committee will be pleased that the Minister has tonight confirmed that he will introduce legislation to make the order-making power available during the Dissolution of Parliament, and that he has acknowledged the importance of an independent review of each case and of the personal authorisation of the Director of Public Prosecutions.

The Minister is a reasonable man who genuinely seeks to strike the right balance, but I believe that he has landed in the wrong place on this issue. His preferred route of primary legislation is too risky: time might be against him, and a subsequent trial might be prejudiced. This measure is exceptional, and we all hope that it will never have to be used, but if it is required, it is important that it be absolutely reliable and available as soon as possible.

The Committee’s recommendation respects the Government’s view that 14 days should be the normal maximum; frankly, I think that that is the settled view of Members on both sides of the House. That would give greater certainty in the face of extraordinary challenges, threats and attacks. On behalf of the six members of the Committee, I am happy to commend our recommendations to the Minister, and I hope that, even now, he will give them further consideration.