Counter-Terrorism Bill (Programme) (No. 2)

I am grateful to have the opportunity to follow the hon. and learned Member for Beaconsfield (Mr. Grieve), and I agreed with everything that he has had to say about this matter. I am also grateful to my right hon. Friend the Minister for the way in which he has approached it constructively and has moved the debate on a bit. The Joint Committee on Human Rights, which I have the honour of chairing, first recommended the introduction of post-charge questioning as long ago as July 2006 as a way of improving prosecution and as a human rights-compliant alternative to pre-charge detention. The proposal was part of a wider package of measures that we suggested. I accept, as the hon. and learned Member for Beaconsfield has done, that this measure is not a panacea. I also accept the comment of the former deputy assistant commissioner, Peter Clarke, that it is unlikely that a suspect would answer questions after charge, because they do not do so pre-charge. The important fact is that the measure would give us the opportunity to draw adverse inferences at trial if a suspect was not prepared to co-operate. The Government say that the measure does not breach article 6—the right against self-incrimination—and we agree with that, but only if the right safeguards against the oppressive use of post-charge questioning are put in place. That view is shared by Lord Carlile, the independent reviewer of terrorism legislation. His report on the proposed measures for this Bill stated that the provision"““would require careful amendment to the current Police and Criminal Evidence Act 1984 Codes of Practice, or an additional and specific Code.””" He says that that is particularly the case with regard to"““limitations on its extent, and…protection of the suspect from arbitrariness.””" In particular, he mentioned the importance of judicial supervision of the exercise of the power and the need to amend the code to"““include protection against repetitive or oppressive questioning.””" That view was shared by the eminent Professor Clive Walker and Professor Ed Cape, who is a criminal law professor, when they gave evidence to our Committee. They both expressed their strong concerns about the need for a number of detailed safeguards, particularly because the situation is different after charge, when the accused is in a particularly vulnerable position compared with the position pre-charge. Although many of the physical conditions could be dealt with in the PACE codes, it is important to set out in primary legislation the purpose of the questioning, the limitations on it—in particular, that it should be confined to new evidence—and the need for judicial supervision. My new clause 4 would give effect to a series of recommendations proposed by the Joint Committee on Human Rights in its eighth report on counter-terrorism policy, published in February 2008, and in its 10th report on the subject. I am pleased that the Government have accepted some of our recommendations in principle and that we have made progress on others, although decisions remain on some. The two key issues are those highlighted by the hon. and learned Member for Beaconsfield: judicial authority and the time limit for questioning. In their original responses, the Government merely said that it is the prison governor's responsibility thoroughly to scrutinise the request, as they do for post-charge interviews and other matters—and that was about it. Our view was pretty clearly that that was an inadequate safeguard. We now have the proposal on authorisation for 24 hours by a superintendent—presumably, that is again subject only to what the prison governor may or may not have to say about it, and that is not much of a safeguard—and the possibility of authorisation in chunks of five days by magistrates. Of course, it is not just one batch of five days; it can be repeated five days at a time. Some progress has been made, but the position is a long way short of the safeguards that are needed. I stand by our report's view that there should be judicial supervision. We have judicial supervision of pre-charge detention, for the purpose ultimately, I suppose, of questioning the suspect, so what is wrong with post-charge questioning also being subject to that judicial authority? Why choose the magistrates? We can only assume from the explanation that we have been given by the Minister that the magistrates would be expected to undertake rather less scrutiny of the police and Crown Prosecution Service request than a High Court or circuit judge would do. We are told that it might slow down the process, but it is less time-critical because we are talking about after charge, not before. I am very concerned about the five-day chunks, because they could become oppressive. We could end up with a cat and mouse game with the suspect. There is no reason why the police should not be able to organise their questioning before they start. We must also bear in mind that a suspect may be on bail, because the offence is not one of the major or serious ones. In that case, the suspect could be rearrested and interviewed in detention for five days at a time. We are also concerned about the sort of evidence that should be put to the suspect. We accept the argument that it should include new evidence that has come to light post-charge, such as computer decrypts or evidence from overseas that could not reasonably have been received before, but there is a risk of oppressive questioning if old evidence is regurgitated and old questions are put again, effectively giving the police a second bite at the cherry. The new draft PACE code seems to be on the same wavelength as we are with that point, but our view is that, because this is such an important development, the safeguards should be in the Bill.