RT HON JACQUI SMITH MP AND MR DAVID FORD

11 DECEMBER 2007

  Q60  Chairman: Both the Attorney General and the Solicitor General?

  Jacqui Smith: I did not write two letters but I have received a letter from the Attorney General and I have spoken to the Attorney General and she is clear that these provisions are lawful.

  Q61  Chairman: In view of what he said to this Committee, and what indeed he said to me, are you proposing to continue the dialogue with the DPP on this, because he is presumably important as far as the process is concerned?

  Jacqui Smith: Yes, as I am with other ministers across government.

  Q62  Mrs Dean: Home Secretary, what formal structure, if any, would govern discussions between the DPP and the police in preparing a report to state that an extension to the 28-day limit is needed?

  Jacqui Smith: The important point about the report from the DPP and the chief constable is that this would be an operational consideration of the circumstances that would lead them to believe that in order to be able to gather or to obtain evidence likely to lead them to the position where they could charge someone and there was the possibility of a prosecution, that they might need longer than 28 days. This would be an operational consideration between the DPP, the prosecutors and the police, who of course work very very closely together on any sort of operation that would be likely to come under the auspices of this provision anyway.

  Q63  Mrs Dean: What role would the Home Office play in that?

  Jacqui Smith: I do not think it would be the role of the Home Office in the preparation of that report because, as I say, I think that would be looking at the operational circumstances that they were finding themselves in. The role of that report would then be, if you like, to bring to the attention formally of the Home Secretary the fact that circumstances had arisen where it was at least possible that somebody might have to be released pre-charge if the 28-period had not been extended and that would be, along potentially with other information that the Home Secretary was receiving at that particular time, the prompt for the Home Secretary to bring into force that particular piece of legislation.

  Q64  Mrs Dean: Which parliamentary procedure, if any, would apply to the commencement order extending the limit?

  Jacqui Smith: The process would be that the Home Secretary would sign the order that would commence that particular piece of legislation and would then, as we have said in the proposals, notify Parliament within two days or as soon as practicable.

  Q65  Mrs Dean: So would you undertake to lay the order before Parliament on the same day that it is made?

  Jacqui Smith: Not necessarily, that is the reason for saying within two days. It might be made, for example, at midnight. I think two days is pretty fair myself.

  Q66  Mrs Dean: What must be the process of considering the order in Parliament? Would it be an affirmative resolution, a negative resolution, would it be before the whole House?

  Jacqui Smith: It would be an affirmative motion that would require the support of both Houses within 30 days of the signing of the order.

  Q67  Mrs Dean: And would it be heard in committee or in the main chamber?

  Jacqui Smith: In the end that is obviously up to the business managers, but I would have thought it is likely, given the seriousness of this, that it would be something that would be heard on the floor of the House. However, it is above my pay grade when it comes to the Leader and the Chief Whip.

  Q68  Mr Clappison: I think it follows from the questions you have just been asked that this process may involve a recall of Parliament in certain circumstance; is that right?

  Jacqui Smith: For the 30-day debate it could involve the recall of Parliament. There would of course be 30 days' notice that that was going to happen.

  Q69  Mr Clappison: And there would have to be a statement made by yourself or your successors to the House and then this debate. Is it not going to be rather difficult for both Houses of Parliament to debate this because there would be an on-going operation taking place and the operational details would presumably not be made known to MPs? I know MPs are very good at finding things to debate but surely in this instance it is going to be a very limited form of debate, is it not?

  Jacqui Smith: The Home Secretary's notification to Parliament would need to include statements such as that a terrorist investigation is occurring which has given rise to an exceptional operational need, that it relates to the threat of serious damage as a result of terrorism, that the higher limit is urgently needed and necessary in order to prevent control or mitigate terrorism, that it is compatible with ECHR, and the Home Secretary has received the required report from the DPP and the police. Yes of course, because what we are trying to do in this case is to ensure successful prosecutions, and it would be important—and I am sure that all Members would recognise the significance of this—not to say anything in the debate that might jeopardise a future prosecution. That is part of the reason, incidentally, why I think the 30-day time limit provides the—how can I describe this—spectre of Parliament quite rightly over the head of a Home Secretary when making the decision, but it does not, as for example a CCA requirement to debate it within seven days would, mean that that is having to happen necessarily in the absolute heat of an investigation.

  Q70  Mr Clappison: I agree with you that there may be a spectre there but whether that amounts to scrutiny and a safeguard is a different matter. The propositions which you have just outlined, all of which are contained in your letter, will be made by the Home Secretary but all the facts pertaining to those propositions will be matters which it will be impossible or very difficult for MPs to debate, would they not?

  Jacqui Smith: There are two things in what you have said. You talked about scrutiny and safeguard. I think it is undoubtedly the case that a requirement to get parliamentary approval would act as a safeguard and it would act, quite rightly, as a pressure on a Home Secretary who would be both within 30 days and subsequently accountable to Parliament, and more widely, for a decision that had been taken. We are not dependent solely on this for scrutiny, incidentally. It is an important part of the proposals that we would also ask the Independent Reviewer of Terrorism to scrutinise and produce a report on the Home Secretary's decision to bring into force the proposal with respect to specific individuals, and that would subsequently, at a time when perhaps it was more possible to look at this in a bit more detail, be subject to a parliamentary debate as well.

  Q71  Mr Clappison: Without looking into a crystal ball I think that when it came to scrutiny of this as soon as it came to a debate in the full House MPs would complain that they did not have enough information or were not able to debate the information that they had openly in order to have a proper debate about this.

  Jacqui Smith: In putting forward these proposals I have come under two sets of criticism, firstly, that there is too much parliamentary scrutiny being provided and, secondly, that somehow or another this is a role for Parliament that is inappropriate and should be left to the judiciary or that there is insufficient parliamentary scrutiny and safeguarding. It strikes me therefore that the balance might be just about right.

  Q72  Mr Clappison: Can I come to the question of the safeguard because when Parliament has had this debate, in whatever form the debate is able to take, even were either House of Parliament to vote not to approve what has been suggested, the period of detention would remain in force for a further 30 days.

  Jacqui Smith: No it would not. If Parliament voted against it at 30 days it would fall at that point and anybody who was in detention would be released.

  Q73  Mr Clappison: You say in your letter: "If not approved, the limit would revert after 30 days to the lower limit."

  Jacqui Smith: That first 30 days.

  Q74  Mr Clappison: After that 30 days but that would still, as Mr Winnick rightly said, be more than 28 days in any circumstances and would be an unlikely set of circumstances given that the detention had already been running for some time before the police made the decision to seek a longer period of detention, so it is going to be longer than 42 days.

  Jacqui Smith: Yes, supporting this implies that you believe that there might be a requirement to hold somebody for longer than 28 days. If you do not support that, then any wrinkle of the proposition that I am putting forward will not find favour. If you support it, I think you will see that this is a reasonable attempt to build on some of the proposals that have been put forward.

  Mr Clappison: Can I ask you a factual question. It is a fact, is it not, that if Parliament votes not to approve what has been done it is very likely to have happened anyway, so it is a meaningless vote.

  Q75  Mr Winnick: It is a cosmetic exercise, Home Secretary.

  Jacqui Smith: You are parliamentarians; if you believe that the voice of Parliament has a cosmetic effect on the Executive, well, I disagree with you.

  Mr Winnick: The exercise itself is a cosmetic exercise, that is what I am saying.

  Q76  Chairman: Mr Winnick, could we let the questioning continue.

  Jacqui Smith: I think it is a strong measure of parliamentary pressure and an important safeguard that any Home Secretary making this decision will need to be aware that they will come under extremely close scrutiny from Parliament, both within 30 days and subsequently on the detail of the decision that they have made. You know—

  Mr Clappison: I want to ask another question which is highly relevant to this.

  Chairman: If we could move on.

  Q77  Mr Clappison: This has been put forward, Chairman, as a safeguard so can I suggest to you that from the point of view of the person who is subject to this procedure, from the point of view of that person, it would be misleading to describe this as a safeguard, would it not?

  Jacqui Smith: But I have been extremely clear that there are two separate processes that are happening here. Firstly, there is the process for the bringing into force of a piece of legislation which would previously in the course of the Counter-Terrorism Bill have been subject to considerable parliamentary scrutiny and debate. That is a role for Parliament. Separately there are the individual decisions that would be made about the detention of an individual. That is properly the role of the judiciary and that separation (but with those twin-track safeguards) is what my proposals ensure.

  Q78  Mr Clappison: Can I suggest to you finally that this is a flawed process, that it is misleading to describe it as a safeguard as far as the person is concerned, and as far as Parliament is concerned this is something which is not good for Parliament because you are inviting Parliament to take part in something which is, as Mr Winnick says, a charade.

  Jacqui Smith: You can suggest that to me and I can disagree with you; and I do!

  Mr Winnick: Battles to come.

  Q79  David Davies: Home Secretary, you published your proposals on 5 December and on the same day the Financial Times also published a leaked paragraph from the Chairman's draft report listing absolutely identical proposals in terms of the trigger. Have you had some sight of this draft report?

  Jacqui Smith: No.