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

19 FEBRUARY 2008

  Q160  Mr Winnick: On the basis of parliamentary opinion, you will not dispute the fact that obviously all the political parties in the House of Commons are totally opposed to terrorism. Mr Salter mentioned it, but can you give any explanation of the fact that the opposition parties, as far as one can tell, have not been persuaded to go beyond 28 days?

  Jacqui Smith: I can answer for a lot, Chairman, but I am not sure I can answer for the thinking of the opposition parties on this.

  Q161  Mr Winnick: You have not persuaded them, have you?

  Jacqui Smith: I am disappointed that, despite the extent to which the Government has been willing to move on this and despite the professed view of opposition parties that they too can envisage a situation in the future where 28 days may be insufficient, and despite the cross party pretty much majority on this Committee, we have not yet been able to find a way that people are willing to engage even with the detail of this legislation, but my door remains open. I have had a series of meetings and I am willing to have more, but I think I am pretty clear now that, having moved in the way in which we have done, it is also important that we give Parliament, through the process that we will go through, the opportunity to discuss this.

  Q162  Mr Winnick: Can I put this matter to you. It is my last question on this aspect, Home Secretary. As you know, once the 90 days was defeated, no one voted for the status quo, namely 14 days, neither in the House of Commons nor the House of Lords. I am sure you are aware of that. No-one in fact said, "No, we will not go beyond 14 days", there was unanimous agreement of 28 days, once the 90 days was defeated, and on the basis, as I say, we are all against terrorism, the loathing and contempt that we have for those who want to take the lives of innocent people like what happened three years ago, why do you want to create such controversy, the Government, not just yourself? Why break the consensus? If there is this broad agreement which was reached over 28 days, no one opposing and wishing to keep the 14 days, why bring about, once again, controversy and divide the House over terrorism when really there is no necessity to do so?

  Jacqui Smith: I did not take the job of Home Secretary because I wanted a quiet life. I took the job of Home Secretary because I felt it was my responsibility and the Government's responsibility to do what we considered to be the right thing for the security of this country, and I believe that the proposals that we are now putting forward do that. I note, incidentally, that nobody (and there were very many people who actually felt that the extension from 14 to 28 days at the point at which it was proposed, or the extension beyond 14 days, was the wrong thing to do then) felt that we should not be legislating on a precautionary basis. We did. That was the right thing to do then and we have subsequently proved that.

  Q163  Mr Winnick: You said that about the 90 days. When you were the Chief Whip you urged Labour members to vote for 90 days, presumably on the basis that you believed that 90 days was right?

  Jacqui Smith: I was not the Chief Whip, but I did vote for 90 days because I believed it to be right.

  Q164  Mr Clappison: I hear what you say, Home Secretary, but I think you would accept that all MPs have a duty to scrutinise legislation the Government brings forward to make the best possible legislation, especially in this very delicate field. Can I just go back to what Mr Salter was asking you about, because I am not sure that you directly answered him. It is the case, is it not, that under these proposals a suspect could spend 42 days in detention before Parliament has had an opportunity to debate it and vote against it?

  Jacqui Smith: Yes, it is the case, as I said the last time that I came in front of the Committee. On the point of scrutiny, I strongly agree with you that it is important that there should be sufficient scrutiny, which is one of my criticisms of the proposal that we should simply rest on the Civil Contingencies Act. The difficulty with that, of course, is that there would be, therefore, no scrutiny of the approach through which we might extend the period of pre charge detention, there would be no opportunity to discuss within this Bill, as I am proposing, the sorts of safeguards that we should be putting around that, there would be no scrutiny or opportunity to discuss the exceptional conditions in which you might want to bring forward those proposals, there would be no opportunity to discuss the detail at this point calmly, out of the maelstrom of a terrorist attack, the details of how we should respond to it. For all of these reasons, I think scrutiny is actually strengthened by the proposals that I am putting forward rather that the proposition that we should simply rest on the Civil Contingencies Act.

  Q165  Mr Clappison: That is what I want to ask you about: the value of the parliamentary scrutiny which you are proposing. The last time you came before the Committee and we asked you about this you made this fair point, that the very fact that the Home Secretary would have to go to Parliament with the proposals would be a big factor in itself and a form of safeguard, but, if you remember, you were asked lots of questions about the scrutiny which would take place thereafter. Can I ask you about the procedure which you proposed for Parliament to go through to scrutinise the use of the implementation of the reserve power? Under your proposals before you can obtain this reserve power you have to lay a statement before Parliament. That would be a written statement, would it, or an oral statement?

  Jacqui Smith: I think the way that we have described it is that we would notify Parliament within two days.

  Q166  Mr Clappison: Yes, but you said, when the order has been made you have then got to lay before Parliament a statement complying with the provisions of the Act. That is a written statement, is it?

  Jacqui Smith: It could be a written statement. I could envisage circumstances where it would be an oral statement.

  Q167  Mr Clappison: Under this legislation you were required to say in that statement that an investigation is being conducted into an act of terrorism and that the investigation gives rise to an exceptional operational need. Do you accept that there will be some difficulties for parliamentarians to debate that provision, to examine and scrutinise it to see whether or not the investigation gives rise to an exceptional operational need?

  Jacqui Smith: That is two separate questions, of course. The first thing that happens is that the Home Secretary, as I have said, has to notify Parliament. As Martin Salter pointed out, there have not been very many circumstances where there have been the sorts of serious foiled or successful terrorist attacks where it has not already been the case that the Home Secretary would expect to come to Parliament and make a statement. It is also the case, I am pretty certain, in all of those circumstances, that all parliamentarians have recognised that there is a limit to what, within a very short time period after that happens or within those circumstances, a Home Secretary or any minister can discuss at those points. There is, of course, as well the context of this. In my experience, there would also have been considerable cross-party briefing and discussions, often on Privy Council terms, on the details of what is going on so that people do feel informed about the background circumstances which, I agree with you, it would be difficult to discuss in public, but the point of the 30 days is that actually it may well be possibly by that point for there to be more information in the public domain, still with the proviso, which we have been very clear about in the legislation, that that cannot relate to individuals and it cannot take a form which would prejudice a subsequent case. What you have put your finger on here is a difficult balance. There is a balance to be struck between the extent to which Parliament can debate, discuss and make decisions and the need, as an investigation and inquiry is underway and a court case is pending, to make sure that you do not do anything that prejudices that conviction.

  Chairman: Mr Clappison, can you make this your last question because other members wish to come in on this. You can come in later. Do you have another question?

  Mr Clappison: I have several other questions on this, Chairman.

  Chairman: Would you like to ask one, because there are other members who wish to come in.

  Mr Clappison: It is a matter for you, Chairman.

  Chairman: Do you wish to ask another question?

  Mr Clappison: I certainly do, yes.

  Chairman: Then please ask this as your last question.

  Q168  Mr Clappison: I accept what you say on that, Home Secretary, but there is a difference between a general statement to Parliament and the sort of scrutiny which you are describing, which is Parliamentary scrutiny to see if a condition of legislation is fulfilled, and your condition of legislation here, before the reserve power can come into force, is that the investigation gives rise to an exceptional operational need. The question I will put to you, if I may, Chairman, is how on earth can MPs investigate the evidence, the facts, the circumstances as to whether or not there is an exceptional operational need when an operation is ongoing and there may be all sorts of factors which cannot be revealed to Parliament? How can MPs scrutinise that properly to decide whether or not that condition has been fulfilled?

  Jacqui Smith: Firstly, there are, of course, four opportunities for parliamentary scrutiny in the proposals that I am putting forward: (1) there is the discussion that will happen during the course of this Bill so we can actually talk about different scenarios and circumstances in which it might happen, (2) there is the requirement for the Home Secretary to report to Parliament and the discussions that may well go on around that, (3) there is the debate at 30 days and the motion, (4) there is the subsequent debate on the report of the independent reviewer as to whether or not the Home Secretary was reasonable, carried out the decision in an appropriate way. It is the Home Secretary's decision to make a judgment under the provisions that we have put forward. What I am saying, however, in these circumstances is that I think we have gone a considerable way to recognising the role of Parliament in being able, pre the decision, to think about the circumstances and, post the decision, scrutinise. I would simply also point out that the only alternative that is currently being proposed to deal with this issue, which is the Civil Contingencies Act, would, of course, require a full parliamentary debate seven days after the emergency powers came into operation. It is not as if any alternatives solve what, I agree with you, is a difficult question about the role and the extent of parliamentary involvement.

  Q169  Bob Russell: Home Secretary, it is always possible, of course, that you are the only one instead and everyone else is out of step, but as recently as 7 February, less than two weeks ago, the distinguished group of parliamentarians who sit on the House of Lords/House of Commons Joint Committee on Human Rights published their most recent report, and so far as pre charge detention is concerned (and you must have read this, I am sure) it states their conclusion: "The detailed provisions in the Bill on pre charge detention are substantially the same as the proposals we considered in our report in December. We concluded that the Government had not made a compelling evidence-based case for extending pre charge detention beyond the current limit of 28 days", and they went on to say, "We think that charging suspects only after more than 28 days' detention is likely to be in breach of the European Convention on Human Rights. We think that providing for pre charge detention up to a maximum of 42 days is disproportionate. Further more, we think that the legal framework does not provide sufficient guarantees", et cetera, et cetera. Are they wrong?

  Jacqui Smith: I think on some of those areas they are wrong actually. To return to the point you made at the beginning about whether or not I am the only person who thinks that this is the right thing to do, you, of course, have received evidence on this Committee from Sir Ian Blair, from other senior police officers, who have asked us very seriously to look at this, and the independent reviewer of terrorism. Lord Carlile, of course, said that he thinks this is a reasonable way forward. Of course I read JCHR reports very carefully; I also read your reports very carefully; and it was this Committee that recognised that there may well be a way forward to solve the problem which remains. We can argue about how we are going to deal with this, but the problem remains that most people now accept that 28 days in the future may be insufficient in order to bring an alleged terrorist to successful conviction. In some ways it is easier to identify the problems with the solution than it is to come up with the solution, but I believe that we have as a government taken a serious and a flexible approach to coming up with a solution here and I think the discussion now is, and should be, about the detail of the safeguards and the solution that we are putting in place and not whether or not this is a problem that needs to be solved.

  Q170  Gwyn Prosser: Home Secretary, Mr Winnick made mention of what he calls the 28-day consensus over the vote, but a number of us who sit on this Committee were happy to support the 90 days. However, when we took evidence, as has been mentioned earlier, from the DPP and the former Attorney General my certainty was shaken somewhat by their view that they were comfortable, for the moment, with the 28 days, but they both went on to say when pressed that there could be a situation in the future where it would be necessary to extend it. Taking into account the fact that you have listened, I think, to the recommendations of this Committee, that you moved in a number of degrees in terms of scrutiny and parliamentary involvement, to what extent do you think you have to move further to meet what has been put up as a defence of civil liberties or are you battling against political expediency from the opposition parties?

  Jacqui Smith: I have tried throughout this process to keep party politics out of it. That is why I have worked as hard as I have done to try and build a consensus, but in the end we are all politicians and we will have to make a decision about whether or not the objective that I have set down here, which that there is a potential problem here which, in my view and in the view of others who we task with investigating this, could potentially in the future lead us to a situation where we might not be able to be confident that we can safeguard the British people in the way in which I want to. We will need to make a decision about whether or not what I am proposing is reasonable or whether or not they want to rest on the position that they have found themselves in. But, to reiterate what I said at the beginning, I believe that this is an issue in which party politics is probably not the appropriate way to go forward. It is an issue of the security of this country, it is an issue in which the Government has been willing to move and I hope others will respond in what I hope has been the way that we have approached it during the development of this Bill.

  Q171  Patrick Mercer: Home Secretary, thank you very much for coming in yet again. Before Christmas we were talking about the fact that it would be unwise, imprudent indeed, to wait until the circumstances occurred before we discussed an extension order, and you indicated that the best vehicle for that debate would be the Counter-Terrorism Bill. Can you assure us that there will be a considerable period for that debate?

  Jacqui Smith: You are right that I do believe that it is better to have the opportunity of the Counter-Terrorism Bill in which to do it. It will not, of course, be totally up to me how long we have, but I suspect, given that we have introduced it now, there is a lengthy period of time before we get to the end of the session during which that debate, of course, could happen, and I would, both within the process that we go through in Parliament and outside it, certainly, as I hope I have made clear to the Committee, want to see that debate continuing in order that we can scrutinise those proposals in detail and come to an agreement about the best way forward. I think the important thing about what I am proposing, as opposed to the only other alternative that appears to be on the table at the moment, which is that we should rest on the Civil Contingencies Act, is that there would be no debate if we rested on the Civil Contingencies Act. There will be no opportunity for Parliament to think about the circumstances in which we might need to use this power, the safeguards that we might need to place around them. The inclusion of our proposals in the Counter-Terrorism Bill gives us the opportunity to have that debate, and I am open to it.

  Mr Streeter: Home Secretary, I think the crucial thing for most of us is whether or not your 42-day proposals contain sufficient safeguards to protect civil liberties in this country. You trumpet, understandably, that your proposals contain substantial parliamentary safeguards, and I want to press you a little further on some of those provisions. We have heard that within two days of bringing the new limit into force there will be a statement, but it is a statement, as you have already said yourself and, indeed, is contained in the Bill, "which must not include the name of any person detained under section 41 or any material that might prejudice the prosecution of any person", and then later on in that process, when the judge is approving sentence, we are going have to another statement, possibly an oral statement to the House, but again, not the name of the person or any material which might prejudice a prosecution: in other words, speaking as a lawyer, nothing of any detail, none of the detailed allegations, nothing about the personal circumstances of detainee. I think it renders it—

  Mr Clappison: A sham!

  Q172  Mr Streeter: —utterly impossible then for Parliament to scrutinise your decision in any meaningful way. Is that really a substantial parliamentary safeguard worth the paper it is written on, or is it simply a charade?

  Jacqui Smith: I am always slightly surprised when parliamentarians think that their impact on ministers' decisions is, as Mr Clappison says, a sham. On all of the three occasions that I have come to this Committee I have never felt it is an easy ride, I have to say.

  Q173  Mr Streeter: But you take my point: you will not be able to tell us anything?

  Jacqui Smith: No, I do not take your point. I do not take the assertion that having to explain yourself to Parliament is some sort of easy ride and sham. I do not take that point.

  Q174  Mr Streeter: What would you be able to tell us?

  Jacqui Smith: To go back to what I said previously, one of the interesting points that has been made to us (and I strongly agree with this) is that the parliamentary safeguards and the judicial safeguards need to be appropriate for the roles of those different groups. It seems to me that the role of Parliament is to scrutinise decisions made by the Executive, to challenge, subsequently, those decisions, to scrutinise the bringing into force of parts of legislation that they have previously had the opportunity to talk about in detail. That is what the proposals that we are setting down give as the role to Parliament. I do not believe, and nor do others, that it is the role of Parliament to make decisions about individual detention, and that is why I think we have, effectively, in our proposals, separated out the role of the judiciary, which is to make the decisions about individual periods of detention, to make the decision as to whether or not the case has been proved, that the investigation is proceeding quickly, whether the case is proved, that it is reasonable to detain somebody in the proposals that we are putting forward for an additional period of seven days. That is not the role of Parliament. It is the role of Parliament to approve the bringing into force of the legislation that has been previously discussed. It is the role of the judiciary to consider the individual case. What I will say is that some of those people who accuse our proposals of somehow being a bit limp on the parliamentary safeguards belong to parties whose position appears to be to support a proposal in which there would be far, far less parliamentary scrutiny and parliamentary safeguard than there is in the proposals that I am putting forward; so it is a bit of a difficult circle to square.

  Q175  Mr Streeter: With respect, it is not, because my proposal would be to leave the law as it is, leave it at 28 days. Let me ask you another question.

  Jacqui Smith: That was not, of course, the position of the Committee, on my reading of your report.

  Q176  Mr Streeter: Looking at it from the point of view of the most important person in all of this, i.e. the detainee (which could be my son, my daughter, my next-door neighbour, and it could be the same for any of us), how does your new proposal have substantial parliamentary safeguards if we are not even allowed to ask questions about that person until he or she has been detained without charge for 42 days?

  Jacqui Smith: Because I do not think it is the role of Parliament actually to make decisions about individuals. I think that is the role of the judicial system, which is why we have been very, very clear that individual detention will need very strong judicial oversight in the decision-making, and that, I think, in our system, is where we place responsibility for decisions about individual detention.

  Q177  Chairman: On judicial action you have had a few setbacks in the Court of Appeal in the last few days, in particular with respect to section 57 of the 2000 Act when convictions were quashed in respect of five appellants. Does this worry you about the way in which legislation is drafted on terrorism issues?

  Jacqui Smith: No, it does not, because, firstly, I think it is important that the CPS and the DPP in fact have been very clear that that judgment is, firstly, unlikely to affect other prosecutions. I think the suggestion at the time was that this would somehow or another impact on very many other prosecutions. The view of the CPS is that (1) it would not and (2) of course we have already had the Terrorism Act 2006 too.

  Q178  Chairman: Are you going to appeal?

  Jacqui Smith: These were prosecutions that happened under the 2000 Act. We have already in the 2006 Act changed the nature of some of the offences in this area that the DPP certainly thinks would help to fill any perceived gaps in the legislation. The CPS are considering whether or not they would appeal.

  Q179  Mrs Dean: To follow on the theme of previous questions, given that the parliamentary oversight envisaged, since there is not going to be detail of the individual allowed in that, could be seen to be weak, why have it all? Would it not be more straightforward to admit that the only real protection for the individual is through judicial oversight?

  Jacqui Smith: In developing these propositions, we genuinely looked at those elements that had been put forward as alternatives by others, for example the Civil Contingencies Act. One of the cases that has been made to me in my discussions with opposition parties, not least about the benefit of the Civil Contingencies Act, is that it requires and involves Parliament in making a decision about the bringing into force of the order. In good faith, I, therefore, thought: what can we do, as this Committee has said, to try to build on the principles of the CCA, and we looked at the way in which we could put in place parliamentary safeguards that, in my view, are much stronger than what is being proposed in the CCA but responded to that particular point about an appropriate role for Parliament in the process.

  Chairman: Thank you. Can I now move on to the use of intercept evidence, a recommendation this Committee made in our report which the Government has accepted; so good news. Anne Cryer wants to thank you.