Counterproductive, ineffective authoritarianism

And so it came to pass, yesterday in the Commons, that 315 idiots voted for this ridiculous proposal, characterised by many as counterproductive, ineffective, incompetent, authoritarian, draconian, a fig leaf, a waste of time.

It started in PMQs, when David Cameron described the proposal as “draconian and incompetent at the same time”, a “symbolic”, “unnecessary”, and “counter-productive” “assault on our liberty”, where there was “no firm evidence in favour of extending detention” – and certainly none was forthcoming later on.

Nick Clegg remarked that if it was not blocked by the Lords, it would be subject to legal challenges from the Equality and Human Rights Commission and in the European Court on Human Rights – I would add that our own courts will also see some action.

He asked why the Prime Minister was “playing politics with our liberties for a Bill that no one thinks is necessary, no one thinks will work in practice and everyone knows will never reach the statute book?”

Some MPs made fools of themselves before the vote.

Jim Sheridan, for example, asked Gordon Brown to

assure the House that the proposed 42-day detention orders will apply only to those who wish to bring terror to the streets and will not impact in any way on the human rights and civil liberties of decent, hard-working British families

and then went on to moan about the miner’s strike, something that happened over twenty years ago!

Gordon Brown wisely avoided giving Sheridan the assurance he wanted.

Later on in the debate, Sheridan intervened on David Davis,

his Government were responsible for internment without charge and without limit of hundreds, if not thousands, of Irish people. Would he therefore inform the House when and how he changed his principles on civil liberties?

David Davis promptly replied that he wasn’t in Government at the time.

The sad thing is, there seem to be a number of people similar to Jim Sheridan in thinking that being detained is something that only happens to the guilty – that it would never happen to him or his family, or friends, just brown people.

But there are lots of people – a minority I’m sure, but a significant minority nonetheless – who are detained who happen to be innocent. There is plenty of precedent and people such as Jim Sheridan should read a bit more and reflect on that.

One of the striking things about the debate was that there was no answer forthcoming from the Government or its supporters as to how, as Michael Howard put it in PMQs,

the House could debate and vote on the detention of a person without charge for up to six weeks without prejudicing any subsequent trial of that person?

Gordon Brown replied with an answer that manifested his incompetence (I can’t call him a liar, MPs do not deliberately mislead us!), and disingenuous and non-answers were a motif in responses to similar questions from other MPs later on in the debate itself, such as Dominic Grieve, intervening on the Home Secretary,

As the request for the operational need will arise from particular cases, how can that approval be given without the House debating and having information about those specific cases?

Mark Durkan,

“the Home Secretary will have to make a statement saying only that there is a grave exceptional threat.”

Diane Abbot, who was impressive and passionate throughout, when intervening on Keith Vaz (Chair of the Home Affairs Committee),

“Will he explain to us how Parliament can exercise scrutiny without having facts in front of it?”

and Paul Goodman,

On the subject of Parliament considering individual cases, is it not inevitable that Members of this House will either be given so much information as to prejudice any trial, or so little as to make any responsible decision making impossible?

Answers came there none.

The problem being that the House will only be asked to vote on the basis of a statement from the Home Secretary that the powers are necessary, not why they are necessary. How can Parliamentarians make an informed decision if they have no information?

Furthermore, Andrew Dismore later pointed out that it would likely be a whipped vote.

Keith Vaz, by the way, after claiming this or that individual was for the proposal, went on with a straight face to say it was wrong for MPs to say “that this or that individual is against the proposal.”

Jacqui Smith demonstrated why she shouldn’t be Home Secretary as she doesn’t seem to get (again I have to accuse her of incompetence, not deception) why legislators should not be involved in judicial functions (this was something other MPs couldn’t get to grips with):

It is wholly appropriate for Parliament to be given the function of approving an order that commences a piece of primary legislation, and wholly appropriate for the courts to assess on a case-by-case basis, as they will do, whether the police and the CPS need more time to collect and examine evidence, so that once that order is commenced, any given individual can be detained for a longer period. That is a completely appropriate use of the parliamentary role, which is separate from the judicial role in overseeing individuals’ detention.

The problem is the end effect of the order will be to allow individuals to be detained in a particular case, so yes, MPs will be debating (albeit indirectly) on the detention of individuals on the basis of a bland statement from the Home Secretary that there is an emergency.

Now, what could be the nature of said emergency?

Jacqui Smith:

The power could be brought into force only where it is needed for investigating serious terrorist offences arising out of a grave and exceptional terrorist threat. People have asked what that means. We know that people have plotted to devastate our transport system, to blow up Bluewater shopping centre and, as I said, to use a dirty bomb. We have also seen plots to ensure multiple atrocities. We have seen plots on an international scale that would have brought death on a considerable scale to British people.

But, fortunately, with the exception of bombs on public transport, none of these have gone beyond plots. Plots alone do not constitute an emergency. Plots alone should not constitute an emergency for the purposes of this legislation and it is therefore disingenuous to use them in support of the argument for it.

Consider Dhiren Barot for example: “The prosecution did not dispute claims from the defense that no funding had been received for the projects, nor any vehicles or bomb-making materials acquired. Nevertheless, it was recognised that it was his intention that hundreds, if not thousands of people should die.”

We should not confuse real, imminent danger with lunatic intentions.

Simon Hughes made a point about derogation:

Clearly, the Government have rowed back from their original 90 days, but there has always been the qualification that it is possible to restrict the liberties protected by the convention—the words are there—when something amounts to a public emergency threatening the life of the nation, so why does not the Home Secretary rely on that, like all other countries do? Why have we seen every few years under this Government an increase in powers of the state over the citizen, when no other comparable country equally threatened has thought it necessary to move in the same direction?

To which Jacqui Smith replied,

I am not completely clear what the hon. Gentleman is arguing, but I have spelled out the nature of the threat that we face, the requirement on us to take that threat seriously and the proportionate way in which we are addressing that. That is the basis of what we originally proposed in the Bill and it is strengthened by the amendments that I am putting forward today.

As I can’t accuse her of deliberate deception I can only conclude she is ignorant of Article 15 of the European Convention on Human Rights:

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

There is precedent for such a derogation.

Indeed, according to the JCHR, the UK is the only country out of 45 in the Council of Europe to have derogated from Article 5; the only country in the world to have derogated from Article 9 of the International Covenant on Civil and Political Rights; and, except for the USA, the only country to have resorted to the indefinite detention of suspected terrorists.

All under a Labour Government.

There was some very interesting information from David Davis:

Let us start with Sir Ian Blair, the Metropolitan Police Commissioner. In his evidence to Parliament, the commissioner said explicitly:

“We have never put forward a case that there is evidence of a need for an extension”. ——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 11, Q3.]

He based his support for 42 days on “a pragmatic inference” based on trends in a number of plots and on those plots’ complexity. In support of that, he and his counter-terrorism chief initially claimed that 15 terrorist plots had been thwarted since the 7/7 bombings. It was on that basis that he presented his evidence to the Bill Committee. But then it transpired that there had been a mistake. The corrected evidence revealed the true picture, which is that between 2003 and 2005, there were nine plots, three a year, and there have been four since the beginning of 2006, two a year. So, the number of plots, far from increasing, has actually decreased over the past three years. That is a good thing, but it is not an argument for extra powers, and although we should not underestimate the threat, we should not overstate it either.

…

The third witness was Ken Jones, the president of the Association of Chief Police Officers, who said that the police, operating under the current 28-day limit were “up against the buffers”. That is the claim being made: not that we might be, but that we are up against the buffers. He based his judgment on the most complex counter-terrorism investigation in our history, Operation Overt, in respect of the alleged plot to blow 10 airliners out of the sky at Heathrow in August 2006. In that case, five people were held for 27 or 28 days. One can see why that superficial analysis leads us to the idea that we are up against the buffers, but it is only a superficial analysis. I asked Mr. Jones yesterday whether he had examined the detailed evidence in Operation Overt. He told me that he had not had the opportunity. I did look at the evidence. Three of the five suspects were held for the maximum period. More than half were innocent.

To which Frank Field replied, “No, they were found not guilty.”

Um, that does mean innocent – indeed formally found innocent. Davis took it in his stride:

Innocent. That demonstrates— [Interruption.] We can reiterate the argument that we had last time. The last time I used “innocent”, Labour Members exploded in uproar at the idea that those people might be innocent, so I told Labour Members that I had asked the police at the time whether they were concerned sufficiently to put those three people under control orders. “No,” they said. I asked whether they were sufficiently concerned to put them under overt or covert surveillance? “No,” they said. I asked whether they were carrying on any further investigations into them? “No,” they said.

…

all the evidence on the only two suspects charged after 21 days was in the possession of the police within four and 12 days respectively. I suspect that that is why the Director of Public Prosecutions does not believe that the extension is at all necessary or foresee circumstances in which it will be necessary in future.

Chris Bryant intervened with the by now well-worn implication that the police will get the huff and sulk if suspects are let go and subsequently blow something up:

The right hon. Gentleman is basing his whole argument on his assertion that there is no evidence that proves that these powers are necessary. Surely the only evidence that there could possibly be would be a catastrophic failure of the criminal justice system that meant that the police were unable to charge somebody before the end of the 28 days and that person then going on to commit a major atrocity. That is precisely what we are all trying to avoid. [ Interruption. ]

If they were not subject to surveillance and/or control order we truly have problems – but I have more faith than Chris Bryant.

Davis also provided some interesting information about charging:

The CPS will seek to obtain a so-called full code charge—one with a 51 per cent. plus chance of conviction—because that is its guidance. If it is unable to obtain it, it may well want to use all the time available to try to do so instead of using the lower so-called threshold charge. The two people I mentioned were charged under the threshold charge arrangements. It is entirely possible—I do not know; it is pure surmise—that there was an attempt to obtain a full code charge. That is entirely legitimate and entirely the proper way for the CPS to act. The situation is not its fault, but our fault, because it arises directly out of the rules system that we created for it.

Later, Julian Lewis expresses the point about the police not letting someone commit an atrocity in a different way:

My right hon. Friend referred to people being released right up against the buffers, as it were. The Government are saying that the nightmare scenario is that someone would be released after 28 days and then go on to commit some heinous offence. They are also saying that the numbers of people involved in the exercise of 42 days’ detention would be very small and in circumstances of grave threat. Surely it is hard to imagine any circumstances where if someone had to be released after 28 days, they would not be under the most intense surveillance thereafter. It is hard to see how even if they were released under those circumstances, they could then precipitate an atrocity on the scale that the Government anticipate.

Nevertheless, Mark Hendrick much later intervened on Elfyn Llwyd with,

I thank the hon. Gentleman for giving way. Is the evidence that he requires witnessing somebody being released after 28 days with the police having been unable to find any evidence, and that individual committing an atrocity—blowing up a city centre, a tube station or an aircraft?

I have more faith in the police than that.

David Davis made a good, humorous point about the Civil Contingencies Act:

The House will recall that Ministers spurned the Civil Contingencies Act model for months and said that it was inappropriate, fundamentally flawed and a draconian response. I begin to wonder who wrote the Act—I thought that it was this Government.

Chris Huhne mentioned Lotfi Raissi and Lynne Featherstone intervened with the good point that the Government’s argument about complexity of cases was an argument for increasing resources not just the length of time someone should be detained. It seems strange no-one thought to bring that up earlier.

Dari Taylor was another MP who made a fool of herself, particuarly when she intervened on Huhne comparing legal systems similar to our own “such as Canada, the US, Australia and New Zealand”:

[Lord Carlile] said that the US Attorney-General had executive witness detention capability and was allowed to hold people for up to a year. He also said that similar powers were held by France and other countries, and that legal systems differ so much that comparisons are nonsensical. Was Lord Carlile being inaccurate? Was he misleading us?

Dari, it is you who doesn’t understand the difference between a material witness in that context and a suspect!

As for Lord Carlile, he has a different opinion about the comparison of legal systems to many other competent people – I wouldn’t accuse him of misleading us, just a different opinion.

John Baron, intervening on Huhne, pointed out that

Liberty’s figures are very clear for other common-law jurisdictions—they show that other countries do not need more than a week—but the power of that argument is given extra force because, both across the Floor of the House and through written parliamentary answers, the Government have admitted that they have undertaken no similar comparison. They are not in a position to criticise those figures, because they have not investigated the comparisons properly themselves.

Jacqui Smith jumped up:

I hope that the hon. Gentleman would want to advise the hon. Member for Billericay (Mr. Baron) to take a good look at a letter I placed in the Library yesterday, which clearly spells out our view of the international comparisons.

But (not having access to the letter) I get the impression that the Government thinks international comparisons are invalid. How convenient.

Andrew Dismore was impressive (if less than charismatic). In particular,

The Government pray in aid a variety of plots and trials, but they have all been dealt with under the existing arrangements satisfactorily and effectively. The Dhiren Barot case has been trotted out again, but that was dealt with under the 14-day rule. That was one of the cases that they used in the argument for 90 days, which led to the compromise of 28 days, so that is an old argument that was dealt with two years ago. The parliamentary Labour party briefing refers to eight other plots, which were all dealt with under the 14-day rule, except the alleged airline plot, which was dealt with under the 28-day provisions. There is no evidence of anyone having been released when they not should not have been. The 28-day power has not been used for a year, and it has hardly been used at all. Yet, this new power is being sought on spec for what we are told are future extreme cases.

He also made the point that we already have powers to deal with “nightmare” and “doomsday” scenarios:

If that is so, the powers are already in place. I am talking about the power to derogate from article 5—the right to liberty—and to disapply a fundamental right that goes back to the Magna Carta of 1215.

Michael Mates pointed out that

The trouble is that the moment the Government realised that they had to start making concessions, they did not make the Bill better—they made it rather worse.

It is a shame no-one thought to have a quiet word with Dari Taylor about the differences between material witnesses and suspects before she rose to speak, because she mentioned them again.

David Howarth intervened,

I am interested in that point. Did Lord Carlile inform the Committee that the US federal material witness statute has been held by the federal court in Idaho not to apply at all to suspects?

Dari, bless her, really didn’t have a clue what he meant, or finally realising she was wrong, responded “Lord Carlile did not make that statement”. She later went on,

Of course, nobody in this House would ever want an innocent person to be held. To date, we have not seen any innocent person being held—[Hon. Members: “Yes, we have.”] All right, up to 14 days, but not 28 days.

Well, that’s wrong too, as David Davis pointed out earlier!

The fact is that we face exceptional circumstances involving horrific terrorist activities. Hon. Gentlemen decry the fact that I had forgotten for a moment that six, or perhaps three people were held beyond 14 days.

It didn’t seem like a matter of memory but a matter of competence. Perhaps she should have done a bit of research before speaking.

Elfyn Llwyd was very passionate, made some powerful arguments, and made the good point that

Many of us who were vehemently opposed to 90 days were eventually persuaded, pragmatically, to fall in line with 28 days. Now, a mere two years later, that consensus has sadly disappeared. One must ask whether there is now a compelling and urgent reason to revisit that decision—a decision of the whole House that was arrived at by consensus. Sadly, I do not think that such a case has been made at all

And more importantly that,

There seems to be an awful presumption among some people in the House that everybody who is arrested is, by definition, guilty. Good God, we have not reached that stage yet, and I hope that we never do.

Mark Hendrick wondered,

[Opposition Members] often complain that Parliament does not have a strong enough role in legislation, but when we are given a stronger role, they seem unwilling to take it up. It is not a question of excluding judges and lawyers—indeed, we have been given chapter and verse today about how they will have a role in the process—but I do not believe that they should be in the driving seat on this issue.

They do not want to confuse legislative and judicial functions. It is not a difficult concept to grasp!

As Dominic Grieve responded,

I do not subscribe to the separation of powers, but I do subscribe to the independence of the judiciary and to the need for a fair trial process. The problem is that that process could be hampered by our debates in this House, and I have heard nothing from the Government that provides any reassurance about that. I do not see how we can carry out the scrutiny that the Government are offering so temptingly without interfering with the fairness of the trial process that occurs thereafter.

Hendrick simply waffled that issue away.

Diane Abbot, in a great speech, asked in relation to Gordon Brown’s offerings,

is it right that our civil liberties should be traded in such a bazaar?

And I will end it there.

It is depressing that there was no evidence for a need, that it is based on hypotheticals; that some MPs clearly do not understand the legislation, and the differences between innocent and guilty, and material witnesses and suspects; that supporters of the proposal cannot answer the question as to how MPs can make an informed decision on extending detention in a particular case; that there were so many MPs prepared to sacrifice our liberties in order to save Gordon Brown.

I hope the Lords kick it out.