Counter-Terrorism Bill

I am open to the possibility—I am sure the right hon. and learned Gentleman has thought this through—that there must be a screening procedure in matters of national security. I understand that that is the case in the jurisdictions of both the United States and Australia. The details of these matters need to be gone through in Committee. I agree with him that we must ensure that proper and adequate safeguards are put in place for the defendant. It should be possible to continue questioning someone after they have been charged with an offence and not merely, as the Bill proposes, on that particular offence or on terrorist offences, but potentially on others related to it. That would allow an escalation of charges as evidence is assessed and accumulated. Equally, proper safeguards of the sort set out by the Joint Committee on Human Rights must be in place, and those are not contained in this Bill as they should be. I am thinking about video recording, the presence of legal advisers, a prohibition on repeated and harassing questioning, and so forth. The prosecuting authorities should be able to give assurances to key witnesses, not just about witness protection, but about immunity from prosecution. Perhaps the most important change since this House last discussed these matters has already happened. I am talking about the reduction in the threshold applied by the Director of Public Prosecutions from the 50 per cent. likelihood of a conviction before proceeding with a charge. I heard the debate between the Front-Bench spokespeople for the Government and the official Opposition. When one examines Sir Ken Macdonald's evidence to the Home Affairs Committee, one clearly sees that the official Opposition have the matter when it comes to the points that the DPP was making. It has never been the case that the CPS has to have a court-ready case at the point of charge, and there is inevitably flexibility in making that decision. That flexibility is precisely what has persuaded some of the foremost advocates of 90 days' detention two years ago now to oppose an extension even to 42 days. Lord Falconer, the former Lord Chancellor, has said:"““If it is not necessary because you don't need it to fight terrorism effectively, then you shouldn't do it. I strongly believe that the debate about should it be 28 days, 42 days or 90 days has moved on because of the threshold standard. We should recognise that we have addressed effectively the question of the time it takes to investigate””." We also have this on the authority of Sir Ken Macdonald, the DPP. In his evidence to the Home Affairs Committee, to which I referred when I intervened on the Home Secretary, he stated that"““if the prosecutor is considering a case in which, if there was a charge, bail would not be appropriate, and that would cover all terrorist cases, I am sure, the prosecutor can charge on the basis of reasonable suspicion, as long as the case is kept under review and the full code test can be applied as soon as practically possible.””" The full code test is that the prospect of conviction is more likely than not. Sir Ken went on:"““I think an analysis might lead you to conclude that, if after 25 or 26 days you could not find a reasonable suspicion to justify a charging decision, it might be quite difficult for a prosecutor to persuade a court that, even though there is not presently reasonable suspicion to justify the threshold charge, a man or a woman should be kept in custody for a longer period””." Sir Ken made it clear that he was satisfied with the position as it stands in respect of detention without charge. The Government's attempt to pray him in aid of their position is quite wrong. Moreover, Sir Ken's approach is working. He makes that clear in an interview with The Times today, which has appeared with felicitous timing. The figures suggest that the DPP and the CPS have more room to amend their judgments about charging beyond the flexibility that they have already described. If the charging decision were broadly in line with the policy as it has been declared to the Home Affairs Committee—that is, that a prosecution would be more likely than not—we would expect a broadly equal balance of convictions and acquittals at the end of the trial. However, the CPS special counter-terrorism unit has enjoyed a 92 per cent. conviction rate against 77 per cent. in other trials. Since the beginning of last year, Sir Ken's figures show an extraordinary consistency. The conviction rate, including those who plead guilty, is 92 per cent. for cases that concluded last year and 92 per cent. for the cases so far this year. There is clearly a lot of room left, in his judgment, to continue to apply flexibility. The Liberal Democrats accept that our society faces a serious threat from al-Qaeda and from terrorism. In certain respects, the threat is greater than it was during the long fight against republican terrorism. These terrorists are not afraid to die, they do not give warnings and they want to cause mass casualties. We do not deny the need to reinforce our defences against such a threat or to ensure that we have the legislative powers to deal with it. However, the argument is a debate about means, not ends. The means that the Government have proposed are not proportionate to the threat and are not grounded in the reality of the response from many ethnic minority communities. They run a terrible risk of being counter-productive. Some elements of the Bill are struggling to emerge as an alternative approach to the prosecution of terrorists: the use of intercept evidence and post-charge questioning. There is emerging consensus on an approach that does not play the numbers game with the days of detention but would implement practical measures that are consistent with our traditions. We will not vote against the Bill on Second Reading because we aim to nurture that approach and to delete the destructive positions for increased detention without charge that could in our view prove injurious to civil liberties and the successful prosecution of terrorism. Whatever else, we must never become what we are fighting. Let me end with an appeal to the Home Secretary. We are in favour of consensus. We strive for it. Yes, there is new consensus. It encompasses the Liberal Democrats, the Conservatives, many Labour rebels, Justice, Liberty, Sir Ken Macdonald, Lord Goldsmith, Lord Falconer, former chief constables such as Lord Dear, the Joint Committee on Human Rights, the Home Affairs Committee and the Equality and Human Rights Commission—the list goes on. If the Government were serious about consensus, they would realise that public and expert opinion does not want a further extension of pre-charge detention. They should join the consensus now and amend the Bill.