RT HON JACQUI SMITH MP AND MR DAVID FORD

11 DECEMBER 2007

  Q20  Mrs Dean: Home Secretary, the police are in a different position to other people in the public sector, but the 2.5% will be carried through to next year so what you are talking about is a one-off saving. Is it really worth the loss of goodwill that that is creating?

  Jacqui Smith: I think all the pay awards this year have been staged—for the nurses, the prison officers, the junior doctors, the dentists, the civil servants, the judges. The same argument is the case of course in all of those examples. This is staging to maintain the overall cost within the 2% limit.

  Chairman: Mr Mercer assures me that his question will last 30 seconds.

  Q21  Patrick Mercer: Home Secretary, you are aware of the difficulties that Nottinghamshire Constabulary in particular has faced over the last few years. This is a disastrous decision for them.

  Jacqui Smith: When you talk about the problems that Nottinghamshire Constabulary face—

  Q22  Patrick Mercer: A particular shortage of officers and the attendant denting of morale that has gone with that, despite the leadership of the Chief Constable I might add.

  Jacqui Smith: I think there is a range of issues that contribute to the morale of police officers. Pay is certainly one of them and so is—as I was suggesting earlier on—the number of other police officers that they have alongside them. I have to say that the difference in the police numbers from the cost of implementing the Police Federation's original pay request and the way in which it has eventually turned out is a difference that would have had an on-going effect of over 2,670 police officers, so I simply repeat that it is my responsibility to bear in mind both the impact of pay settlements and overall affordability and the on-going costs for the Police Service in terms of their ability to be able to maintain police officer numbers as well as pay.

  Q23  Chairman: Home Secretary, thank you for answering those questions on police pay. We are opening a short inquiry into this and we will hear from the Federation next week and we will be putting questions to Mr Jones. Let us move to the slightly less controversial subject of counter-terrorism! You have now completed 166 days as Home Secretary and throughout that period of course you have held a consultation into counter-terrorism. You have had 71 written responses, I understand. How many of those said unequivocally to the Home Office and to you that they wanted an extension beyond 28 days?

  Jacqui Smith: Six.

  Q24  Chairman: Six out of the 71? So we assume that the rest were against it.

  Jacqui Smith: No, you asked me how many said unequivocally and six did.

  Q25  Chairman: Okay. How many said unequivocally that they were against the extension?

  Jacqui Smith: I am not sure how many said they were unequivocally against but, as we will be publishing all of those 71, Members will be able to read them for themselves and find out.

  Q26  Chairman: But six say yes to an extended period?

  Jacqui Smith: Yes.

  Q27  Gwyn Prosser: Home Secretary, what did consulting with the community groups tell you about the potential impact of extending or talking about the extension of the 28 days and how much did you take that into account?

  Jacqui Smith: In coming forward with the proposals that we came forward with last week, we took into consideration the overall consultation that we have done, and I think one of the important elements that came forward from community groups, understandably, was a concern which I share which is that in putting in place the tools to tackle terrorism, including changing legislation, we do not do that in a way that will alienate members of the community that we need in order to help to safeguard us against terrorism. I have to say that it has always been my view that the biggest disrupter of community cohesion and of community peace in this country will be and has been successful terrorist attacks or even those that have been foiled, and so I always keep at the heart of decisions that I am making the positive impact of managing to foil attacks in the future as being the most important contributor to overall community cohesion as we go forward. One of the points that certainly impacted on the way that I thought about it was an argument made not just by community groups but by others that we were arguing for a potential future requirement in order to prosecute somebody to be able to hold them longer than 28 days. We were not claiming that that was necessary at the moment but we were arguing that it might be necessary in the future. An argument that was certainly made was, in that case, do you need a permanent and forever extension of the maximum period of pre-charge detention, and I think that was a fair argument. It changes the fundamental basis of the law with respect to pre-charge detention in terrorism cases, and that is one of the reasons why new proposals we have come forward with say explicitly that it would only be possible to extend the period of pre-charge detention in exceptional circumstances, for a time-limited period, and related to a specific set of operational circumstances. I think that that recognises the community concern about a fundamental shift in the nature of the law of pre-charge detention around terrorism, but it also gives us the tool necessary in order to be more confident that we can avoid the future terrorist attack that would itself undermine community confidence.

  Q28  Mr Browne: Home Secretary, I just wanted to ask you a point of clarification because I am confused about one issue which is about six months after I was elected there was the vote on 90 days and I think you were the Chief Whip at the time?

  Jacqui Smith: I was not actually.

  Q29  Mr Browne: When you and the Government lost that vote.

  Jacqui Smith: The Government never lost a vote whilst I was Chief Whip!

  Martin Salter: Could you name the Chief Whip at the time?

  Mr Browne: Who was the Chief Whip?

  Martin Salter: Hilary Armstrong. The nation mourns!

  Chairman: Order, order.

  Q30  Mr Browne: I remember the case being made that 90 days was required to safeguard us against terrorism. Terrorism is becoming, if anything, an ever greater threat and I simply do not understand in my own mind why if 90 days was necessary then, and you voted because you were convinced then that 90 days was necessary, that 42 days is necessary now despite the threat having grown worse in the intervening two and a bit years.

  Jacqui Smith: Let me be completely clear, 42 days is not a target; it is a safeguard. I have been criticised through the process of developing this policy for not starting by saying what the maximum number of days should be. I started by saying that I believed, and others said to me that they also believed that given the way in which the terrorist threat was developing it was likely that there would be a point in the future where to have only 28 days of pre-charge detention period risked a situation where somebody had to be released before it was possible to develop the evidence to charge them and to prosecute them. Given those circumstances, the next question is what should then be the process, what should be the safeguards that you put around any application for an extension beyond 28 days.

  Q31  Chairman: We will be coming to that later in our questioning.

  Jacqui Smith: Okay, so to conclude then where I started, the reason for 42 days is because I think it is right that Parliament should set a maximum time period as a safeguard.

  Q32  Mr Browne: Which is 48 days less than the maximum that you were in favour of two years ago. Why is it that your assessment of the risk is so much diminished in that time that you are now no longer in favour of 90 days? That is what I do not understand.

  Jacqui Smith: We have hardly made a secret of the fact, have we, that as we have gone through this process we have actually tried to come to a situation where we will garner support widely across Parliament and actually be able to implement it.

  Q33  Mr Browne: But it is driven by a calculation of what is politically acceptable rather than the 90 days, which was driven by a calculation of what was necessary to defend us from terrorism?

  Jacqui Smith: Before you interrupted me, what I was coming on to say was: and it is our view that in the system that we have designed 42 days is likely to be adequate in the future to avoid the risks that this is about trying to avoid.

  Q34  Chairman: Before I call on Karen Buck, would you for the purposes of the record identify the gentleman sitting on your right?

  Jacqui Smith: Sorry, this is David Ford and he is the Bill Manager for the Counter-Terrorism Bill, and the Committee will probably remember that he accompanied me last time.

  Q35  Chairman: I was not here last time.

  Jacqui Smith: Yes you were. It was the first time I appeared in front of you.

  Chairman: Order, order! Karen Buck?

  Q36  Ms Buck: I would like to ask you, if I may, a few questions about the Civil Contingencies Act and the relationship between that and the proposal that Liberty put forward. Firstly could I just ask you when you put the 42 day proposal paper last week, what calculations influenced your decision to release those proposals at that time?

  Jacqui Smith: That we had completed the consultation; that we had assessed the results of the consultation; that I had had several meetings, as the Prime Minister said we would have, with Opposition spokespeople and with my own colleagues about the proposals that we had put forward and their views about it; that I knew that this Committee was going to be coming to a conclusion on the very detailed inquiry that you have done and I wanted you to have in front of you before you completed that inquiry what I felt would be an appropriate way now of taking it forward so that you could look at and comment on that.

  Q37  Ms Buck: Just for the record, Liberty—and they have just given us a revised summary of the evidence that they had already put before us—say: "Liberty does not believe that there is any justification for holding suspects beyond 28 days except where this is urgently needed to deal with a real emergency of the kind covered by the Civil Contingencies Act, ie multiple terror plots are identified which would cause significant loss to life or damage to property and before the attacks are carried out or afterwards, large numbers of people suspected of involvement in the plots are arrested." That seems to me, in principle but not in terms of the mechanics, not so very far from where the Government is, but in your paper that you released last week your critique of the Civil Contingencies Act points out a couple of potential problems and I would be very grateful if you would comment on them. You say that it might not be possible to use the Civil Contingencies Act where the police have already disrupted or foiled a large and complex plot and where the suspects have been arrested because there is legal doubt whether such a case would meet the Civil Contingencies Act test of an emergency where there must war or terrorism which threatens serious damage to the security of the United Kingdom. The fact that the arrests had taken place or the plot was foiled would mean that no such emergency had occurred. However, the Contingencies Act also says that it can be used in the case of a threat. I am sorry that is a long preamble. It seems to me that those two things are not entirely consistent. Why is it that you feel that the Civil Contingencies Act cannot be used or amended to deal with those circumstances which would bring you in line with what Liberty say?

  Jacqui Smith: That is one of the concerns that we have about whether or not the Civil Contingencies Act would be appropriate. The first thing to say in response to what you started is that I agree with you that there does now appear to be a consensus that there could be circumstances in which in order to bring somebody to justice you would need to have a longer than 28-day pre-charge detention period. The proposition of the Civil Contingencies Act as a way of doing that is a concession that it might actually exist and therefore the argument, it seems to me, is what is the best way of doing that. I have a more fundamental concern about using a piece of existing legislation over and above whether or not it would fit the circumstance, which I also have some doubts about, and I think that it is right, given what everybody has said about the contentious nature, frankly, of what is being proposed, that we do not try and adapt a piece of legislation which was intended for other purposes but we do, as we would have to through the Counter-Terrorism Bill, give Parliament the chance to look in detail at the circumstances and the process through which any extension of pre-charge detention would be necessary. I am coming on to your point, I promise you. That is my first point—actually I think we should have a new terrorism-specific piece of legislation for this. In the particular case that you were talking about, it is our view that there is some legal doubt about whether or not that would constitute an emergency in the definition of the CCA because the fact that the plot was being monitored and was foiled and the suspects were in custody could be taken to mean that no such emergency had occurred. This is not the only legal risk or concern that we have around this. Another one is for example that it is not legally certain that the CCA could be used to detain individuals as opposed to restricting their movements, so there is a certain amount of uncertainty about that. There is also a question as to whether or not the CCA could be used where a plot was foiled in this country but actually it involved a conspiracy to commit a terrorist outrage overseas, even if for example it was against British interests overseas. There is also a concern that some of the circumstances where we might want to argue that you would need to detain individuals beyond 28 days might be because of the particular nature of the case, the numbers of people perhaps who were arrested, and the complexity around the evidence that needed to be gathered, not that it was part of a particular outrage that might itself constitute an emergency. So those are, if you like, three legal reasons and one more fundamental reason about the nature of the legislation that I think are important. However, what I would want to say about this is I think the putting forward of the Civil Contingencies Act as a proposition has been a very important part of the way in which we have developed our thinking because we have looked at the Civil Contingencies Act seriously and in detail, and what I recognise about it is that it does have those principles of saying there will be particular circumstances, it will be a time-limited situation and it will be exceptional and triggered by those particular circumstances. If you like, those are the principles that we have tried to update and to incorporate into the model that I am now putting forward.

  Martin Salter: Home Secretary, you won plaudits for trying to adopt a consensual approach and taking on board the comments from other parties, moving forward on an all-party basis as opposed to the staring down that occurred on the 90-day debate. I voted for 90 days but it was pretty devoid of too much attempt to build a consensus. Where is the problem here? You have got Liberty arguing for the use of the Civil Contingencies Act which actually would mean 58 days' detention because it is 30 on top of the existing 28. You have got an argument amongst lawyers about whether you reform or modernise the Act or whether you adapt the Act. Surely you can achieve consensus if only by locking the lawyers in a room for 28 days and charging them with coming up with either a reform, a modernisation or an adaptation that stops short of declaring a full-scale state of emergency?

  Q38  Chairman: Home Secretary, lock up the lawyers?

  Jacqui Smith: David might want to comment on this but effectively one of the things that I almost did with the Home Office lawyers was to lock them in a room and say, "I want you to look seriously at the responses to the consultation, in particular the propositions around the Civil Contingencies Act. I think there are some important principles here but in the context of giving Parliament the ability not only to scrutinise but the time which we might need to extend the pre-charge detention period, but before that as well in the context of the Counter-Terrorism Bill, I want you to come up with a proposition which builds on the principles of the Civil Contingencies Act but ameliorates some of the problems which you have told me exist and which I have just described to you." That is what we have tried to do and I believe that we have gone a long way towards doing that.

  Q39  Mr Streeter: Home Secretary, I came into this inquiry with on open mind, recognising that the security of the public is absolutely paramount, but you have so far failed to persuade me that it is right to go beyond 28 days. The police have not persuaded me; you have not persuaded me; the security forces have not persuaded me. I am not alone because the former Attorney General, Lord Goldsmith, when he gave evidence to this Committee, himself expressed a doubt that if you hold someone for 28 days and cannot find the evidence, holding them for a few more days really going to make a difference. Why do you think you have not succeeded in persuading many of us to go beyond 28 days?

  Jacqui Smith: I think there are two questions here. Firstly, I spent some time when I came to the Committee previously explaining that there had not been a case at the moment that had needed longer than 28 days in order to be able to either charge or in fact to release somebody. I do not disagree with the Attorney General, with the DPP, with all of those who have said there has not been a case up until now. However, what I do argue, and what senior police officers argue and what the Independent Reviewer of Terrorism argues and what others, including those who have put forward the Civil Contingencies Act as a proposition have conceded, is that, given the way in which terrorist plots are growing in complexity, the investigations are becoming more complex and the evidence that I put in front of the Committee last time about the way in which those things are developing, there is at least a possibility in the future that a terrorist suspect would need to be released because there was insufficient time in order to fully carry out the investigation and to charge them and to bring them to prosecution. I just believe that it is better, given that I think that that is a risk, to legislate for a way that would mitigate that risk but to do it in a way that would provide the ultimate safeguard so that if I am wrong, if senior police officers are wrong, if the Independent Reviewer of Terrorism is wrong, and if it is never necessary to hold somebody for longer than 28 days, then the period of pre-charge detention will never in law be extended. That seems to me to be a reasonable balance between precaution and legislating calmly now for that potential future risk and ensuring that we are not legislating for something that does not actually end up happening.