A voice from the Commons

In this article, I shall first explain why an extension of detention without charge matters to ordinary people and their freedoms, then I shall examine the weakness of the government’s case for such an extension and the feeble parliamentary safeguards offered by ministers, and finally I shall argue that such excessive powers may be seen as illegitimate in substantial sections of our nation, and may act as a recruiting sergeant for the extremists.

Let me begin by trying to explain why the powers of executive detention contained in the Bill and the amendments are so serious. They are not powers that apply just to other people; they are powers that could apply to any one of us here today. We could be arrested on our way home, in a case of mistaken identity, and locked up, if the government has its way, not for one day or seven days, but for six weeks. What would detainees’ a person’s employers think? What would their families think? Surely, they might say, the police could not really detain someone without some pretty clear evidence, using powers under a terrorism act. As every street gossip will tell you, there is no smoke without fire.

We know, however, that of the six people who have come close to being detained for the existing limit of 28 days, half have been released without charge or any subsequent proceedings. It is inevitable that if these powers go onto the statute book they will be used for lower-priority cases, because the easier cases will have been dealt with first. The number of innocent people who are detained under the new powers is therefore likely to be particularly high. If the Home Secretary had evidence that the most serious offences had been committed, there would be no need to extend the period without charge because she would be able to charge the people. On the basis of the existing track record, this will affect people who may well be found to be entirely innocent. We know that three of those six people spent a month of their lives not even knowing what offence they had been accused of commiting.

We could all name cases in which great injustices have already been perpetrated. One such case is that of the Algerian pilot Lotfi Raissi; an even more tragic case is that of the young Brazilian Jean Charles de Menezes. Most recently, there is the case of the students who were arrested for having terrorist materials when they were writing a research report on Islamic extremism. The police do a commendable job in difficult circumstances, but they are human and therefore fallible. That is why we have a system of justice, and why checks and balances are crucial. It is also why we should not lightly concede yet another rise in the permitted period of detention without charge.

Let me take the government’s case at face value. The Home Secretary argues that the government needs to extend the period of detention for terrorist suspects from 28 to 42 days because of the increased complexity of terror cases, citing the recent increase in the number of computer files and comparing the alleged airline bombing case in 2006 with the Dhiren Barot case of 2004.

However, that argument rebounds on the government in a very simple way. An extension of a mere two weeks would be entirely useless if each bit of evidence had to be waded through and assessed in the way that the Prime Minister and the Home Secretary have implied.

It has been said that it might be necessary to read material equivalent to one third of the contents of the US Library of Congress within the proposed legal limit of 42 days. If so, that would require 240,000 police officers working eight-hour shifts—a total equivalent to all the police officers in this country, plus 100,000 others on loan from a friendly neighbour.

In fact, the tools available to the police have also increased in power so that sense can be made of large amounts of data. Clearly, search engines are available to others. Moreover, the government does not seem to take the problem too seriously: they legislated in 2000 to make it an offence to withhold data encryption keys, but that offence did not come into force until 2007. So much for any sense of urgency.

We have also heard that an inability to sift through data, whether encrypted or not, was not the cause even in those few cases that went close to the 28-day limit. In fact, the essential data issues were sorted out relatively quickly. Liberty has pointed out that in two of the three cases in which people were subsequently charged, the evidence relied on to bring those charges was obtained within not 27 days, or 26 days, but within four and 12 days, respectively.

No other common-law country has seen the need to do such violence to its freedoms. The government like to bog the debate down in comparisons with Roman-Dutch law. A more sensible comparison would be with countries such as Canada, the US, Australia and New Zealand, which have legal traditions exactly parallel to our own. Canada retains a traditional 24-hour detention period without charge. In the US, the period is two days. Australia has extended the period to 12 days, in part because of the special cooling-off periods between interrogations. There are no provisions in the Bill to put in place the equivalent cooling-off periods that might justify an extension of detention along the lines introduced in Australia.

The possible length of detention without charge is already more than twice as long in Britain as it is in other common law countries, even though we all face the same threats and technologies.

We should stick with the 28 day period because that is what we voted for, but we need to regard it as an emergency measure and keep it under constant review – especially given the lack of evidence that even 28 days is necessary.

The Bill allows questioning to continue after charge, and we welcome that. We should also allow intercept evidence, as is the case in Australia and the United States. The committee considering the Bill took evidence from Sir Ken Macdonald, the Director of Public Prosecutions, who said that his counterparts in the countries that I have named found our refusal to use intercept evidence astonishing.

Most importantly of all, Sir Ken has analysed described the considerable flexibility that the Crown Prosecution Service has to bring charges. It can bring charges even if it is felt at the time that the chances of a successful conviction are less than 50 per cent, the normal test. In fact – and this is crucial – Sir Ken pointed out that the CPS has had a 92 per cent success rate with terrorist convictions since the beginning of last year. As a result, he is on record as saying that the new powers are unnecessary.

Detention without charge for terrorist suspects has already risen from seven days to 14 days and then 28 days, just since 1997. The sad truth is that ministers are using this simple number as a proxy to persuade the public that the government is tough on terror. In fact, such blunt instruments run the substantial risk of alienating the communities that we need to have on board if we are to fight terror effectively.

What we know from ACPO’s evidence is that there have been six cases that have gone near to, but not up to, the limit of 28 days. There is no evidence for any extension beyond 28 days. Even ministers put the case for an extension in entirely contingent terms, and talk about what may happen in the future if a whole series of other events occur.

The police needs intelligence and needs witnesses prepared to give evidence. Britain’s most senior Muslim police officer, Assistant Commissioner Tarique Ghaffur, has warned that these arbitrary powers could have counter-productive effects in the Muslim community, exactly as internment had in Northern Ireland in the 1970s.

Indeed, as we heard from Mark Durkan’s eloquent contribution to the House of Commons debate, internment drove a wedge between communities and the security services. Intelligence dried up, witnesses refused to come forward to give evidence, and the scars remain to this day. Tough macho measures proved horribly counter-productive, exactly as these measures may. I agree that there is not a precise parallel between what is proposed in the Bill and internment, but there is a parallel in terms of the sentiment and motivation behind these proposals and, as a result, there may very well be a parallel in the unfortunate counter-productive effects. Have we not learned the lessons of 30 years ago?

I am encouraged, however, by the number of people who voted for and supported 90 days but who now recognise that circumstances have completely changed. They include Lord Falconer, the former Lord Chancellor, and Lord Goldsmith, the former attorney-general, both of whom highlight the point I have made: that the change in the nature of the threshold test means that circumstances are fundamentally different from when we last considered the issue of extension of detention without charge.

The evidence that Sir Ken Macdonald gave to the Public Bill Committee made it clear that the CPS is heavily involved in all these investigations from the earliest stage, so the evidence that Sir Ken gave is particularly telling.

So what about the so-called safeguards in the government’s amendments to the Bill. First, it would still be up to the Home Secretary to determine whether the conditions for extended detention had been met. In theory, her decision has to be in response to a ‘grave exceptional terrorist threat’, but that need hardly constrain her, as even the possibility of a threat remote from these islands would be enough. New clause 20 states:

‘In this Act grave exceptional terrorist threat means an event or situation involving terrorism which causes or threatens –

(a) serious loss of human life’.

That is not by any means restricted to the United Kingdom. This could almost be regarded as the ‘Tongan clause’ as it would allow any ‘grave exceptional terrorist threat’ in Tonga to trigger the extension by the Home Secretary of the period of detention without charge from 28 days to 42 days. That is not exactly the sort of safeguard this parliament is used to having in connection with a matter involving fundamental freedoms.

Once the Home Secretary had triggered the extension beyond 28 days, there would be a seven-day period within which a debate and a vote would have to be held. Executive detention is thus automatically extended by these provisions to 35 days before parliament would have the opportunity to set it aside.

In any case, it is very hard to see how parliament will tread the narrow line between debate that could be prejudicial to a court case and general blather, which would simply boil down to whether parliament trusted the judgment of the Home Secretary. That is hardly confidence-inspiring, and it is certainly not a serious check on the potential abuse of executive power, so those who would believe that there are genuine safeguards in the Bill are misplacing their faith.

The fight against terrorism is far too important to be reduced to populist symbols that would substantially curb our hard-won freedoms. This cause is central to the Liberal Democrats’ belief in the rule of law, and in checks and balances on arbitrary power. The government runs the risk, with these provisions, of giving the terrorists exactly what they want, which is clear evidence of an insensitive and oppressive state. We must not, and we must never, become what we are fighting.