New Labour ministers may have bullied and bribed the Commons to pass the counter-terrorism bill, but thankfully they have less leverage in the Lords.
This week's in the upper house, by an impressive 191 votes, was the heaviest the government has suffered since hereditary peers were expelled in 1999.
Ministers comprehensively lost the argument as the big Labour rebellion and the degree of cross-bench criticism showed. Home Secretary Jacqui Smith’s swift abandonment of extended pre-charge detention was a humiliating climb-down. The only consolation for the Government is that the financial crisis made it a good day to bury bad news.
The proposals to lock people up without charge for six weeks – up from four weeks - should never have got so far. Ministers kept talking about striving for consensus, completely oblivious that one already existed – against 42 days. The Liberal Democrats opposed the measures along with huge swathes of the Labour backbenches and even some Conservatives. Opposition in the Lords included two former Lord Chancellors, the former Attorney-General, the former head of MI5, the former Lord Chief Justice, and the former Metropolitan Police Commissioner.
Outside the Lords, almost universal opposition included the former Home Secretary Charles Clarke, Director of Public Prosecutions Sir Ken Macdonald, the Joint Committee on Human Rights, the Home Affairs Select Committee, many senior Police officers, Liberty and a host of other interest groups. As Lord Dear – the retired chief constable and cross-bencher who led the opposition in the Lords - remarked in the debate on Monday ‘it almost beggars belief that any administration could embark on such a course.’
Opponents of 42 days, myself included, felt that the Government’s proposals were disproportionate and unnecessary. The Home Affairs Select Committee said: "Neither the police nor the Government have made a convincing case for the need to extend the 28 day limit." I could not agree more. Detaining a person without charge, without any knowledge of what they are accused of or what the evidence is against them, is an extreme measure and a violation of liberty. The power of the police to do this should only be extended cautiously and in the face of compelling evidence. There was literally none.
The sad reality, however, is that the Government’s proposals were not about making us safer, but about political posturing. The police admit that so far no cases would have required pre-charge detention for longer than 28 days. Moreover, the successful conviction rate for terrorist trials is 92 per cent, compared to 77 per cent for other offences. This in turn shows that the director of public prosecutions has ample flexibility to press charges – and ask for someone awaiting trial to be remanded in custody – rather than rely on pre-charge detention.
No other common law country has a period of detention without charge longer than ours: the next longest is in Australia at 12 days, less than half of our own 28 days. Let us by all means have a grown-up debate about tackling terrorism, and let us start by allowing intercept evidence in court as they do in both the United States and Australia. But I hope this week’s government defeat marks the end of attempts to erode further the rights of defendants.
In reality, the Counter Terrorism Bill was all about making Labour look tough on terrorism by reducing public debate to a number: those in favour of higher numbers are meant to be tougher than those in favour of lower ones. Our opposition will be thrown back in our face in the rhetorical aftermath of an atrocity. When parliament rejected 90 days, Kitty Ussher MP warned that opponents would be left with ‘blood on their hands.’ This time Jacqui Smith has accused us of ignoring ‘the terrorism threat, for fear of taking a tough but necessary decision.’
But this is nonsense, as history teaches us an entirely different lesson. Governments that go over the top by implementing disproportionate and repressive measures lose the sympathy and co-operation of the very groups they need to combat terrorism. That is exactly what happened with the Catholic community in Ireland, where internment triggered a collapse of police intelligence and of willing witnesses. As a result, the struggle against the IRA was set back by years. We will only defeat terrorism – much of which is home-grown – by winning hearts and minds, not by alienating them.
Chris Huhne is the Liberal Democrat Shadow Home Secretary