RT HON JACQUI SMITH MP, MR DAVID FORD AND MS JILL TAN

19 FEBRUARY 2008

  Q140 Chairman: But he did put a specific timetable on this to the House. He did say quite clearly it would be within two weeks, and the House reacted quite positively to that.

  Jacqui Smith: He said he hoped he would be able to complete his task within two weeks. I think it is the case, given that we have asked an independent commissioner to carry out the inquiry, that it is important that we enable him to do that in the most thorough way, and it is my understanding that is certainly what is happening at the moment.

  Q141  Chairman: Is it still the case that the report will look at the specific issue of the surveillance of the Member of Parliament in the prison, or is it now wider? Is this why it is taking longer?

  Jacqui Smith: No, it is still the case that it will look at the specific issue, as was spelt out in effectively what were the terms of reference that the Justice Secretary, Jack Straw, announced in his statement to Parliament on 4 February.

  Q142  Chairman: Would you clarify the responsibility issues here? We understand, obviously, that the Justice Secretary set up this inquiry, but surveillance is still within your portfolio.

  Jacqui Smith: The Justice Secretary set it up and he was clear when he set it up that it would report to both him and to myself, as the Home Secretary, and, in fact, to the Prime Minister as well. Obviously, the first issue related to the fact that this had happened in a prison, which is within the Department of Justice's purview, but you are right that the whole issue of surveillance and the regulation of surveillance comes within Home Office responsibility, but we are a completely joined up Government, Chairman, and therefore we speak with one voice.

  Q143  Chairman: Of course. So when it comes to the publication of this report and the announcement to Parliament, will you all be doing this together or will you be announcing it?

  Jacqui Smith: It will not be some sort of Acapella show. I suspect I will be doing this thing.

  Q144  Chairman: So you will be giving the statement to the House?

  Jacqui Smith: I said I suspect I will, but—

  Q145  Chairman: I see. One final question on this; colleagues may wish to come in. The big issue of confidentiality of communications between lawyers and clients has also been raised around the subject of the Rose Report. If the Rose Report suggests that this is a wider issue which may require the Wilson Doctrine to be revisited, is this something the Government would be keen to do, would want to do?

  Jacqui Smith: The Justice Secretary and, of course, the Prime Minister have made the position with respect to the Wilson Doctrine very clear. The Justice Secretary also made clear in his statement the nature of the type of surveillance about which this inquiry is concerned, where the Wilson Doctrine is unlikely to be relevant. The inquiry will, of course, be looking at the specific details of this. You asked me earlier on whether or not we had, during the course of this inquiry, widened the terms of reference. They have not been. They remain as the Justice Secretary spelt out on 4 February, but I would suspect that in responding to the report, whoever it is who does it, there will obviously be the opportunity to both set out the range of regulation that there already is around a variety of forms of surveillance and to consider the implications of anything that comes out of the report in doing that.

  Q146  Chairman: But you cannot give us the timetable?

  Jacqui Smith: I am sorry, no, Chairman.

  Q147  Chairman: Can we move on to the counter-terrorism proposals? When the Committee published its report last December you very kindly said some very nice things about this Committee. What most excited you about our report?

  Jacqui Smith: Where do I start, Chairman?

  Q148  Martin Salter: Take as long as you like!

  Jacqui Smith: I think what was important about the Committee's report, as well as the detail that the Committee had gone into, was the fact that the Committee had been able to identify, as I am aware, with almost the entire support across the Committee, the key points about some of the proposals that had been put forward that the Committee felt were important particularly for the design of any approach to pre charge detention in the Bill. The other thing that the Committee's report did, which was very important to me, was it reiterated, I think, the case that I had tried to make when I came before the Committee previously that there was a growing consensus that it was likely to be the case, although it had not yet occurred, that in the future a 28-day limit on holding somebody in a complex terrorist case might prove to be insufficient. So, I think, as I say, both a sort of restatement of where I think that consensus was and then recognition that it should be possible, through building on, I think it was described specifically as modernising the principles of—

  Q149  Mr Winnick: It was about the only support you got, so you should be grateful!

  Jacqui Smith: I will not rise to that one, but that is of course wrong.

  Q150  Chairman: Mr Winnick will question you on this.

  Jacqui Smith: As I say, I think the argument made by the Committee—that there were some fundamental difficulties with the proposition that we should simply rest on being able to use the Civil Contingencies Act in the future but that there were principles in the Civil Contingencies Act which we could modernise and build our proposals on—was the most important element to the Committee, and I hope that is the way we have responded.

  Q151 Chairman: Home Secretary, suppose we asked you in our summary to go out and build a consensus? We said very clearly that there was no evidence to support an extension beyond 28 days, but we said that there may be a possibility of modernising the CCA. What have you done to build that consensus? Who have you met?

  Jacqui Smith: The first thing I think we need to do to build a consensus is that you need to be very willing to move your position. If you remember, when I came to the Committee the first time to talk about our proposals it was on the basis of a document that we had published which said that the Government's preferred position was not just to legislate now but to legislate now for an extension to the pre charge detention period that would come into place now, that would be permanently in legislation. Yes, it had many of the parliamentary and judicial safeguards which still remain, but it saw the need to legislate, not on a precautionary basis, but on the basis that that change would happen now. We have fundamentally changed our position since the first proposition that we put forward, so we are now in the position in the legislation that I published of saying actually we should not legislate in a way that would change the position as from today. We recognise that there are concerns and questions about the sorts of circumstances and the exceptional nature of the circumstances in which you might want to use pre charge detention, so we are legislating, building on the principles of the Civil Contingencies Act, saying that if those circumstances arose in the future, we would have in place, having had ample time to discuss the sort of safeguards around them, the ability to be able to bring into force for a time limited period—another big change that we have made—a piece of legislation that would enable application to a judge for an extension of pre charge detention.

  Q152  Chairman: Have ministers met the DPP, because he was the most trenchant in his concern?

  Jacqui Smith: The Attorney General has met with the DPP. Senior officials with responsibility for the policy have met with the DPP as well.

  Q153  Chairman: And he is on board?

  Jacqui Smith: The DPP recognises that with the system that is put in place---. I think he is completely clear that he will play a part in whatever it is that comes through at the end of Parliament, which, of course, I strongly hope will be the proposals that we put forward.

  Q154  Martin Salter: Home Secretary, the consensus building exercise, as you rightly said, is predetermined on people being prepared to move their decision. It appears to me that the Government has moved from a blanket 90 days—a fairly crude position that it failed to get through Parliament in 2005—to the proposals that you have put before us. Who else appears to have moved their position in this debate in your judgment?

  Jacqui Smith: In my judgment, you are right that we have fundamentally changed our position, but nobody else, despite, in my case, quite a lot of meetings, particularly with opposition parties, appears as yet to have moved their position. To go back to the question the Chairman asked, in order to build a consensus you need not just one side of the discussion to move, you need more than one side of the discussion to be willing to engage in that argument. I do think actually I have not succeeded in building a consensus with opposition parties, but where I think there is now strong consensus, as was represented by the Committee's report, is amongst people, even those who oppose the proposition that we are putting forward, that this is an issue that needs a response now, that it might be appropriate to legislate on the sort of precautionary proportionate basis that I have proposed.

  Q155  Martin Salter: While the Government is moving, can I encourage you to keep moving and take a look at an area where I do think, and a lot of us feel, there is still scope for further movement, and that is this notion that the reserve power (and we have moved a long way from a blanket power, but a reserve power) would need to be approved by Parliament within 30 days. Effectively, that could mean, if we went up to the 30-day limit before Parliament got to debate this issue and either gave or withheld the approval that was being sought, that the suspect would be held beyond the 42-day period anyway, or certainly up to the 42-day period. Do you not accept that there is a case for Parliament to be convened much more urgently if these exceptional circumstances are triggered by the use of the reserve power, because we are in pretty exceptional times if the power, by definition, is triggered anyway? A lot of us would like to see that figure brought down to perhaps 14 or even seven days. Is there any logistical reason why it could not? After all, when we had the Haymarket bombings we were able to have a perfectly intelligent debate in Parliament on the basis of your statement, I think it was. Suspects had been detained, criminal charges followed and Parliament was able to debate that subject very, very quickly, within a few days of the outrage occurring, without prejudicing subsequent criminal charges. So why on earth can we not come together much earlier in these exceptional circumstances?

  Jacqui Smith: This is an interesting area where, number one, we have already moved very significantly. It was not part of our original proposals, nor was it part, as you say, of the 90-day proposals that there should be a role of approval for Parliament of something that is effectively a reserve power that has been brought into operation. I do think it is important, however, in answering your question, to just make a distinction which, incidentally, is another point that people have raised with us that we have worked quite hard to clarify, between what I view as the legitimate role of Parliament, which is to bring into place the piece of legislation that has been the subject of previous debate but to approve the bringing into place of that piece of legislation is the Home Secretary's decision, and then to scrutinise it and give approval after 30 days, and the role of the courts, which is to make a decision about any given individual. You are right that what some people have said is: is there not a danger that this might prejudice the trial? That is why one of the other changes that we have made, even since, incidentally, we have shared draft clauses with people, is to be completely explicit within (I think it is) schedule 1 that outlines the process for the Home Secretary's statement and the subsequent debate, but nothing in there can be taken to refer either to an individual or can be prejudicial to a trial. I will just say, however (I know that this is an argument that has been made and, I suspect, will continue to be made if and when we get this working through Parliament and you referred to the Haymarket situation), there is, of course, within our proposals the requirement on a Home Secretary to notify Parliament through use of a statement within two days after having brought into force the piece of legislation. The Haymarket debate, as you described it, was, of course, the response to a statement that I made on the Monday following. So, I certainly would envisage that these would be the types of circumstances where, even before we got to the point where Parliament was being given the opportunity to approve the decision, actually there would have been discussion within Parliament. It is highly likely that that would have been the situation, and in fact there is provision within the Bill for that.

  Q156  Mr Winnick: It is nice to see you again, Home Secretary. Do you accept in any way whatsoever that the Government's position will be made much harder when the debate takes place in the House over the fact that the Director of Public Prosecutions said to us quite clearly that he was totally satisfied with the 28 days and then, of course, the former Attorney, Lord Goldsmith, telling us also, in his view, 28 days was sufficient?

  Jacqui Smith: It is self-evidently the case that if everybody who had ever worked for or with the Government was on the record as saying that this was the most sensible proposition they had ever seen and we should all get behind it, we probably would not be sitting here: I would not be appearing in front of you for the third time in a row. This is a difficult and controversial area. That is why the Government has been willing to listen and try to develop a consensus throughout, it is why we have been willing to move our position and respond to the points that have been made to us, but in the end we have a question that we need an answer to. If there is a consensus, including within this Committee, that we have a problem here potentially in the future, is it or is it not right that we should legislate now on a proportionate and precautionary basis? As I have said previously, my responsibility as Home Secretary, yes, is to build a consensus and find an agreement and respond to people's concerns, but in the end it is to make sure that I do everything that I can and the Government does everything it can to ensure that the security of people in this country is put centre and front of what we do, and we will do that in a way that attempts to build a consensus—that is why we have moved—but in the end that is my responsibility, and I think actually the vast majority of people in this debate have now moved on from the "if we should legislate" to the "how we should legislate", and I think the passage of this Bill through Parliament will give us the opportunity to look at that in detail and the safeguards around it.

  Q157  Mr Winnick: Of course, the Government have responsibilities as they see it, we also have responsibilities, and obviously the debate will be taking place as, indeed, in 2005. Working on the assumption, which I think you agree with, that the overwhelming majority of Muslims in this country loathe and detest terrorism no less than we do, can you name a single Muslim organisation which has said that it wants to see an extension beyond 28 days?

  Jacqui Smith: Hazel Blears and myself actually had a very useful discussion post the publication of this Bill with the round table that she had set up of Muslim organisations, and actually the conclusion of that, and in the process of discussion from at least one of the people in that room (and I would have to go back to get the details of it), there was quite a lot of good response to the way in which as a government we have been willing to move.

  Q158  Mr Winnick: One of the people?

  Jacqui Smith: No, there was a good response from everybody in the room about the approach that this Government had taken, not just the response to individual terrorist events but also the approach that we had taken to developing the propositions in this Bill and a recognition that what we were doing was finding a route through the very difficult issue of acting but doing so that in a way that was proportionate.

  Q159  Mr Winnick: It does not alter the fact that you have not mentioned an organisation representing Muslims that has said, in effect, that it would be right to go beyond 28 days, so one assumes there has not been.

  Jacqui Smith: I think there are two different points here. Firstly, I think there is a very wide range of organisations, including some of those who actually oppose the detail of how we are intending to do it, who now say they can envisage a situation in the future where 28 days might prove to be insufficient. My argument is, I think there is now a broad consensus that there is a problem here that we need to solve. Where we are now in terms of the discussion, I think, is the detail about how we go about solving it.