Protection of Freedoms Bill

Tom Brake Excerpts

Tuesday 11th October 2011 Commons Chamber

[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.

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[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.

[Tom Brake]

I shall speak briefly in support of new clause 13. I welcomed the Government’s review of counter-terrorism security powers, which concluded that the maximum period of pre-charge detention for terrorists should be 14 days. I had anticipated that conclusion, but I had not anticipated that the review would further conclude that there might be exceptional circumstances in which it was necessary to increase the limit on pre-charge detention to 28 days. I cannot foresee the exceptional circumstances in which that might be needed, but I suppose that exceptional circumstances are, by definition, very hard to foresee.

Once the review had concluded that there might be such exceptional circumstances, measures had to be put in place, and I support the Government’s approach to fast-track primary legislation. My concern is that, if we had not done that, we might not have had in place the necessary safeguards to ensure that we would seek an extension to 28 days only in exceptional circumstances.

Clearly, this is not as elegant a solution as simply opting for 14 days. In requiring the additional step, we must ensure that pressure is maintained during the first 14 days to ensure that cases are very actively pursued. I have been told that, in some cases, there has not been quite the necessary degree of energy and commitment during those 14 days. Creating a significant hurdle for exceptional circumstances that requires a parliamentary legislative process should ensure that the necessary safeguards are operated, and it reflects the fact that we have not used 14 days since 2007.

I welcome what the Government are doing. They have identified the need for emergency legislation to be available not only while Parliament is sitting but when it is in recess, and the issue that was correctly identified with regard to Dissolution has also had to be addressed. I am happy to speak in favour of new clause 13 and to welcome it this evening.

[Alun Michael]

The Minister responded reasonably to interventions earlier and I welcome the tone with which he has responded to the debate. However, my hon. Friend the Member for Rhondda (Chris Bryant) was absolutely right that the Government have dug themselves into a hole, and we are trying to help the Home Secretary and the Minister to climb out of it.

The Minister accepted that the powers in the emergency legislation cannot be triggered on the basis of the threat level, but only by the need for extra time for specific investigations. The debates on emergency legislation would therefore either be so general and free from evidence as to be meaningless in terms of scrutiny, or be about specific cases, in which event they could be prejudiced. The right way is for a clearly exceptional power to be set out in primary legislation, with a high bar and stringent requirements to make abuse virtually impossible. As the Government have set their face against that approach, my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and the rest of us have tabled new clause 14, which is a reasonable attempt to find a way around this that would not be damaging to the reputation of the Government, this House or the legislative process.

I urge the Minister, if he can do nothing else, to say that he has heard the debate and to give an undertaking to think further on these points, which are made not to cause difficulties for Ministers, but to try to enable the Government to get us to the right place as far as principle and law are concerned.

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[Tom Brake]

In some respects, this is a Christmas tree of a Bill, but given that each bauble on the tree represents one of our cherished and fundamental freedoms, we can forgive the Home Office for that. Given the extent and range of its measures, it goes a long way towards restoring many of our most fundamental freedoms. Pre-charge detention is reduced to 14 days and the indiscriminate and in many ways ineffective use of stop and search is ended.

The hon. Member for Rhondda (Chris Bryant) said that he did not like the concept of balancing civil liberties and security because he felt that they were intertwined. I agree; the DNA measures ensure that we intertwine civil liberties and people’s safety. Clearly that is an issue on which the Government and the Opposition will continue to disagree. Liberal Democrats understand victims’ concerns, but there is little evidence that the Opposition have any real appreciation of civil liberties and civil liberty concerns. On far too many occasions, Opposition spokesmen have in effect written the headlines for some of our tabloid newspapers, which I find somewhat distasteful.

On CCTV, the Government propose regulation, not obstruction. The Opposition have sought to make the point that the Government actively seek to oppose CCTV, but that is clearly not the Government’s intention. Rather, it is their intention, as reflected in the Bill, to ensure that CCTV is deployed in a way that secures public support. Clearly, there is a huge amount of public support for it, but Members will be aware of at least one occasion on which that public support was not there because there was some subterfuge around the reasons for the deployment of CCTV.

As the Home Secretary has said, subjecting 11 million people to a vetting and barring scheme would be deemed by most people in most countries to have a real impact on people’s civil liberties, and operating a system that captured the details of many hundreds of thousands of people who would not present any threat would have real practical implications. The Government have reminded organisations of the need to maintain vigilance—that they should actively consider scenarios and the circumstances in which people work and accept that they have a responsibility to ensure that appropriate safeguards and monitoring of staff are in place.

I am sure that every hon. Member has had cases of wheel-clamping raised with them. I had a particularly disturbing case involving a woman whose vehicle was clamped on her own estate when she accidentally failed to display the appropriate permit. She ended up recovering her vehicle from a site about 15 miles away, which she had to go to with her young child. She managed to secure the vehicle, but only after handing over a large sum of money to men with large Doberman dogs. I am sure that other hon. Members have had similar experiences reported to them.

[Mark Tami (Alyn and Deeside) (Lab)]

Does the right hon. Gentleman accept that the danger of the Bill is that those same people become rogue ticketers rather than rogue clampers?

[Tom Brake]

Clearly, that is a risk, although as we heard yesterday, in practice that did not happen in Scotland. If parking operators want keepers’ details from the Driver and Vehicle Licensing Agency, they have to be members of the British Parking Association, which will ensure a high standard. If there are issues around BPA members, I am sure that the Government will want actively to take that up with the BPA to ensure that its standards are enhanced.

[Pete Wishart (Perth and North Perthshire) (SNP)]

The right hon. Gentleman is absolutely right that there has been no issue or contention about the proposed measures in Scotland, as is the case with DNA retention, regardless of what we heard from the former Home Secretary. We in the SNP will support the Government this evening. Anything that tackles Labour’s anti-civil libertarian state deserves the support of the House. However, will the right hon. Gentleman assure me that, as a Liberal Democrat, he will do all that he can to ensure that the Conservatives remain on this road and that we continue to have good civil liberties and do not go back to the bad old days of Labour?

[Tom Brake]

I thank the hon. Gentleman for his intervention—for once a helpful intervention from the Opposition Benches. I assure him that I am confident that the coalition Government want to maintain a strong and direct focus on the whole issue of civil liberties.

It seems to me that the use of fingerprinting and biometrics in schools was one of the things that just slipped through and that no one in the Opposition, when in government, had thought about whether it was okay for children to have their fingerprints taken. It required the coalition Government to step in and say that parents should be able to express a view on the taking of personal biometric data from children, rather than having it imposed by schools.

Disregarding convictions for consensual gay sex is another significant step forwards for gay rights, which I am pleased the Government appear intent on pursuing in relation to gay marriage. Datasets being available for reuse will improve transparency in government.

I will point out one bauble that was missing from the Christmas tree: provisions on insulting and section 5 of the Public Order Act 1986. Even if that is missing, I am pleased that the Government are fully committed to a consultation on that, because it is something I want changed. We should be able to insult people as freely as we like, as we do all the time in the House, so long as we do not incite hatred. We need to make that distinction and I hope that that change will be forthcoming.

I am very proud that the Bill will be one of the first that the coalition Government put on the statute book. We have proved without a shadow of a doubt that, where there is a will, Governments can strengthen civil liberties and safeguard safety and security—a fact that we had forgotten after 13 years of Labour rule.