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David Davis: 42 days - the worst of all worlds

Speaking in the remaining stages of the Counter Terrorism Bill, Shadow Home Secretary, David Davis, said:

"Mr Deputy Speaker, I rise to speak in opposition to the government's new clauses and to support amendments 4 and 5 to remove 42 days from the Bill.

Today there are essentially two arguments to deal with.

The first is, has the government made its case for 42 days?

If not, then this change should be rejected out of hand, because you do not give away freedom without good cause.

Secondly, if it has made its case, are the powers proportionate, and are the checks and balances to prevent both improper use of the powers and injustices adequate?

The issue of how long we incarcerate those on whom we have insufficient evidence to charge with any crime has become one of the defining debates of the last ten years in this country.

This week marks the anniversary of the signing of the Magna Carta.

For almost 800 years, we have built on the right of habeas corpus founded in that ancient document the fundamental freedom from arbitrary detention by the state.

The liberty of the person is in our blood, part of our history, part of our way of life.

Conservatives, Labour, Liberal Democrats, Democratic Unionists and other parties.

Liberty is the common strand that binds us together.

We have shed blood to protect it, both abroad and at home.

Today, the government asks us to sacrifice some of that liberty.

The Home Secretary offers a Faustian bargain to trade a fundamental liberty for a little extra security.

And yet as this debate has gone on, the case for 42 days has crumbled, then collapsed.

So, after months of debate, what are the basic facts?

Let us start with the Home Secretary's own witnesses.

Witness number one, Sir Iain Blair, the Metropolitan Police Commissioner.

In his evidence to Parliament, the Commissioner said explicitly 'We have never put forward a case that there is evidence of a need for an extension.'

He based his support for 42 days on a 'pragmatic inference', based on trends in the number of plots and their complexity.

In support of that, he and his counter terrorism chief initially claimed that there had been 15 terrorist plots thwarted since the 7/7 bombing.

It was on that basis he presented his evidence to the Bill Committee.

But then it transpired there had been a mistake.

The corrected evidence revealed the true picture which is that between 2003 and 2005 there were 9 plots and 4 since the beginning of 2006.

So far from increasing the number of plots has decreased over the last 3 years.

Mr Deputy Speaker, that is a good thing.

But it is not an argument for more powers.

And whilst we should not underestimate the threat, we should not overstate it either.

The second witness in support of an increase in detention without charge is Mr Peter Clarke.

As was argued in the 90 day debate, he told us how complex and technical anti-terror cases were becoming.

His example of a technically challenging case was Dhiren Barot.

There is no doubt it was technically challenging, but a case in which charges were successfully brought inside 14 days is hardly evidence that we need three times that long.

Mr Clarke offered the observation that in the Barot case, police officers had occasion to sleep at the office.

Frankly, I would prefer that police officers sleep at the office for two weeks than risk putting innocent people in a cell for 6 weeks.

Her third witness is Ken Jones, the President of ACPO.

He says that the police operating under the current 28 day limit were in his words 'up against the buffers'.

He based his judgement in this on the most complex counter-terrorism investigation in our history Operation Overt the plot to blow ten airliners out of the sky at Heathrow in August 2006.

In that case, five people were held for 27 or 28 days.

So you can see why a superficial analysis leads to the idea that we are 'up against the buffers'.

But only a superficial analysis.

I asked Mr Jones if he had examined the detailed evidence in Operation Overt.

He told me he had not had the 'opportunity'.

Well I did look at the evidence.

Three of the five suspects held for the maximum period more than half were innocent.

That demonstrates not a virtue, but a serious danger in further extension - namely that the longer you hold people without charge, the more likely they are to turn out to be innocent.

And of the six cases that John Stephens said 'took us to the brink' - half were innocent.

Mr Deputy Speaker, Ministers now say they will pay compensation in cases where innocent people are detained for longer than 28 days.

Could we ever have a more explicit admission of the inevitable failure of this law?

Or the foreseeable injustices it will bring?

It is for this House to search its conscience to determine whether putting in place a system of six weeks detention in which on current experience half or more are likely to prove innocent will serve the vital interests of either national security or British justice.

But what of the other two held for 28 days?

These are held up as the illustration that, due to the complexity of investigations, 28 days is proving inadequate.

But, is that really what these cases show?

The key issue here is when the evidence was available on which the charges were based.

Ministers and officials have been asked a number of times to answer this question, and have implied that the evidence was obtained very late in the 28 day period.

During our numerous meetings when we were trying to reach a consensus I asked the Home Secretary three times to show me the facts that demonstrated that evidence gathering had delayed the decision to charge to the limit during Operation Overt.

But she has failed to explain, in even the most general terms - or on a Privy Council basis - what that evidence was or when it was acquired.

So I was forced to establish the facts for myself and then check them with the investigating team at Scotland Yard and with the Crown Prosecution Service.

The facts are as follows:-

In neither of the two cases was the evidential basis of charge encrypted data, evidence requiring complex forensic analysis or intelligence from overseas.

In one case it was telephones, handwritten and printed literature, an unencrypted CD and a receipt.

All this was available within 4 days of arrest.

The second case was based on witness statements, some mobile phone text messages and a single unencrypted computer file.

All this was available within 12 days of arrest.

Mr Deputy Speaker, that does not mean that the police should be criticised.

Far from it.

They should be commended for their handling of that operation.

It does not mean that the CPS acted improperly. They rightly look to gather as much evidence as possible within the timeframe Parliament sets them.

But it does show that all of the evidence on the only two suspects charged after 21 days in the most complex terrorism investigation in our history was in the possession of the police within 4 days and 12 days respectively.

At second reading, my friend the Member for Wycombe asked about the earlier availability of evidence in these two cases. She said:

'I have sought assurances from the police … the occurrence to which he refers did not take place.'

We now know that it did.

Mr Deputy Speaker, it has also been suggested that an extension to 42 days is necessary to protect the public from danger.

That releasing people at 28 days will put the public at risk.

So the House should know that both of those individuals charged at the end of the period of 28 day detention were subsequently released on bail which no court would allow if they posed an ongoing threat to public safety.

Mr Deputy Speaker, the Home Secretary reminds us time and again that she is responsible for national security.

She stresses this responsibility.

The Home Secretary must take advice from all members of our law enforcement agencies.

But she must check it.

She must ask questions.

She must establish the facts.

That is her responsibility.

And as the evidence in favour of extending pre-charge detention has evaporated under scrutiny it has been replaced with growing evidence that prolonging pre-charge detention risks making us less - not more - safe.

The former Chief Inspector of Constabulary described it as a 'propaganda coup' for Al-Qaida

A gift to 'propagandists' that will drive the brainwashed to 'acts of martyrdom' according to one former Metropolitan Police Commissioner.

And a threat to local community intelligence according to the government's own impact assessment.

So the proposal for 42 days is wrong in principle and dangerous in practice.

Mr Deputy Speaker, some weeks ago the government was clearly at risk of losing this aspect of the Bill, so it conjured up a series of so-called safeguards.

They are an attempt to import a diluted version of the Civil Contingencies Act into the Bill.

Again, this comes as something of a surprise.

The House will recall that Ministers spurned the Civil Contingencies Act model for months.

They said it was 'inappropriate'.

'Fundamentally flawed'.

The Home Secretary called it a 'draconian response.'

If the Civil Contingencies Act is draconian, it is hard to understand why in her proposed amendments supposedly based on that Act she deliberately diluted the safeguards.

The Home Secretary says the 42 day power of detention could only be invoked if there was a 'grave exceptional terrorist threat'.

But it is clear that this is not a condition for invoking an extension beyond 28 days.

It is merely a notification requirement to Parliament, entirely irrelevant to the unfettered discretion the Home Secretary will retain.

But even if it were relevant, let us consider what could constitute a 'grave exceptional terrorist threat'?

The small print in the amendments refers to events which cause or threaten 'serious loss of human life',

'serious damage to human welfare in the United Kingdom' or 'serious damage to the security of the United Kingdom'.

These definitions are so broad …a massive expansion of the criteria in the Civil Contingencies Act … that virtually any terrorist plot would satisfy them.

The Dhiren Barot plot in 2004 to set off a dirty bomb would easily meet the conditions but in that case all charges were brought within 14 days.

The Crevice fertiliser bomb plot in 2004 would also meet the definition but all charges were brought within 14 days.

And the 21/7 attacks would certainly qualify but again all charges were brought within 14 days.

The definition of 'grave exceptional terrorist threat' is not only irrelevant to the power of the Home Secretary to order 42 days.

It presents such a low threshold that the Home Secretary, in reporting to Parliament, will in practice just be ticking the box.

Because, Mr Deputy Speaker, there is no ability to challenge her assessment that 42 days detention is necessary in court. Indeed the Prime Minister confirmed in his letter to Members of 7 June that the possibility of judicial review had been deliberately excluded.

And there are no additional judicial safeguards for the individual.

Mr Deputy Speaker, the House need not take my word for it.

David Pannick QC, a leading practitioner in the field, Counsel regularly retained by this government, who quite literally wrote the text book on the subject provided a formal legal opinion and I quote:

'Not only do the Amendments fail to replicate the safeguards in the 2004 Act but they fail, significantly or meaningfully, to provide similar or analogous safeguards.'

Mr Deputy Speaker, the truth is that these so-called concessions are not a serious attempt to sustain consensus by providing proper checks and balances on the Home Secretary's now draconian powers.

They are a vain attempt to save face.

The government has salami-sliced the safeguards.

Watered down the checks.

And buried an issue of high principle amidst a blizzard of fine print.

Mr Deputy Speaker

There is nobody in this House who does not feel horror at the loss of life, the terror, the pain and the mutilation faced by the victims of terrorism.

But two wrongs do not make a right.

Least of all if what we do is ineffective, unnecessary, or even counter-productive.

I have no sympathy for terrorists whatsoever, but I want the House to imagine for a moment what if feels like if you are innocent under this regime.

You are taken from your bed in the early hours of the morning.

You are locked in a cell for 6 weeks - 1000 hours - and you do not know why - not what you are accused of, not what the suspicions are, not what the evidence is.

You do not know what is happening to your job.

You do not know what is happening to your reputation.

You do not know what is happening to your wife and the neighbours.

You do not know what is happening to your children, facing sometimes the harsh cruelty of other children.

You do not know this for six weeks - 1000 hours.

So what we have is the worst of all worlds.

A symbolic assault on liberty which is unnecessary.

A change in the law which is counter-productive.

And a procedure which is unworkable.

Isn't the only way to describe what the government is proposing today is that it is ineffective authoritarianism?"

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