Orders of the Day — Prevention of Terrorism Bill
House of Commons debates, 23 February 2005, 1:48 pm
Sir Alan Haselhurst (Deputy Speaker)
I have to announce to the House that Mr. Speaker has selected the amendment in the names of the Leader of the Opposition and of the leader of the Liberal Democrat party. He has also placed a 15-minute limit on speeches by Back-Bench Members in the debate.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I beg to move, That the Bill be now read a Second time.
The core of the case for this legislation is that this country faces substantial and real threats to the freedoms of institutions and people in our society that are qualitatively different since
Al-Qaeda and its network are qualitatively different in five ways that I shall set out to the House. First, their ideology is entirely destructive in nature. They wish to destroy religious toleration and tolerance; they wish to destroy freely elected democratic government; they wish to destroy the rule of law in our society; they wish to destroy free discussion and freedom of opinion in the media and elsewhere; they wish to destroy equality for women; they wish to destroy our market economy. The destruction of those things and values for which we and our predecessors in the House have fought for centuries is qualitatively different from terrorism of different types in the past when individuals fought for particular freedoms, as they saw it, in certain circumstances. Al-Qaeda and its colleagues seek to impose on us a nihilist regime.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I shall do so in a moment, when I have made the essence of my argument.
Al-Qaeda and its network are qualitatively different in their destructive character. Secondly, they are distinctive in the cataclysmic and catastrophic lack of restraint in the measures that they use. They are prepared to use biological, chemical and nuclear warfare to poison water supplies and to destroy whole systems of life—mass murder that is utterly different in its scale and impact from any previous terrorism. Thirdly, they are qualitatively different, because they are prepared to combine mass murder, violence and a cataclysmic approach with a suicidal—I use the word advisedly—readiness to commit such crimes. Suicide and martyrdom are not unique in the history of fights of this kind—what is unique is the combination of suicide and the readiness to commit suicide with the mass murder that they seek to commit. That, I believe, requires different measures from us.
The fourth difference is particularly important and needs to be well understood. The capability, resources and capacity of terrorist organisations around al-Qaeda, their ambition and sophisticated operation are of an utterly different order in terms of lawbreaking from their predecessor organisations. The final qualitatively different characteristic of that organisation is its global reach. There have been terrorist acts on an enormous scale: in the US itself on 9/11; in Africa, in Tunisia, Kenya, Egypt and Morocco; in Asia, in Pakistan, Indonesia and Turkey; in the middle east, in Saudi Arabia and Yemen; and in Europe during the general election campaign in Spain. This terrorism therefore has a global reach of a different order.
Mr Peter Lilley (Hitchin & Harpenden, Conservative)
I do not demur from the point that the Home Secretary is making, but is there anything in the Bill that limits or restricts the use of the qualitatively different powers that he is seeking to those who indulge just in this extreme form of terrorism, or are they available for use against any kind of terrorism that he may choose?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
The derogation powers in the Bill require the Secretary of State to put before both Houses of Parliament an assertion or order stating that there is a threat to the nation from international terrorism. Such a derogation could not be made unless both Houses were convinced of the merit of that case. I can tell the right hon. Gentleman and the House that the Government would propose such a derogation only against international terrorism with the characteristics that I have just described.
Mr Edward Leigh (Gainsborough, Conservative)
No one denies that al-Qaeda wants to destroy democratic debate, but is it not then all the more important that in changing practice that has existed in this country for 800 years we have sufficient parliamentary time to do so? All the arguments could be put and, as far as possible, we should proceed by consensus. Would the right hon. Gentleman at least agree to that?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I certainly agree with the desirability of proceeding by consensus, and that is what I have sought to do, both before my statement to the House on
Mrs Helen Jackson (Sheffield, Hillsborough, Labour)
My right hon. Friend described well the international nature of the terrorist threat posed by al-Qaeda and others. I agree that it is distinctly different from the domestic threat, particularly against Westminster, from the IRA in the past. What international endorsement has he sought and received from Europe or further afield for the particular proposals that he is asking us to endorse over the next few days?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am grateful that my hon. Friend accepts the qualitatively different nature of the terrorist threat. The G8, the European Union and the Council of Europe have clear and well-established positions on terrorism with which we work, and we have discussed these issues with the Justice and Home Affairs Council of the European Union. As for endorsement—my hon. Friend's word—of our measures, that has not been delivered by those organisations, because we do not live in a regime of world government in relation to such issues, which are for different nations to address individually.
Mr Jeremy Corbyn (Islington North, Labour)
If the Home Secretary has an enormous body of evidence against individuals who are about to prepare a monstrous attack, surely it is up to him to bring a prosecution against them in the courts in the normal way. The concern of many people both inside and outside the House is that he is seeking powers for Executive control and detention that are outwith all our democratic traditions.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I shall come on to that detailed point in a second, but I agree with my hon. Friend—and it is the Government's policy, as I have set out on a number of occasions—that prosecution in the courts and conviction for particular offences are the most desirable course of action.
Mr David Trimble (Upper Bann, UUP)
I thank the Home Secretary for his generosity, and urge him to reconsider the limitation that he put on the actions that he could take. Surely, the issue is whether there is something that poses a threat to the life of the nation and whether there is an emergency. That emergency and threat could come from a range of sources, and he should not fetter himself too much at this stage.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I agree completely with the right hon. Gentleman, who states the case correctly. In my answer to Mr. Lilley, I said that at the moment the state of emergency or threat to the life of the nation that would require a derogation is focused on international terrorism from al-Qaeda and related organisations. However, I completely accept the point made by Mr. Trimble that in theory and practice it is perfectly possible that terrorist threats of other kinds might arise.
Mr Lembit Öpik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)
I have listened with great interest to the Minister, but he seems to be in danger of generating a league table of terrorism in which paramilitary killings in Northern Ireland are not regarded as just as bad as killings by al-Qaeda. I am sure that he does not intend to give that impression, but why does he think that it is right for the Government to attempt to dispel the motives for terrorism in Northern Ireland when, by contrast, he is intent on using the suppression of the opportunity to terrorise as the sole method for acting against international terrorism?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I would not dream of doing that, and the suggestion of league tables in this area is deeply offensive. My argument, which has been widely made, is that 9/11 changed things, the existence of al-Qaeda and its related organisations changed things and, therefore, it is incumbent on the Government and the House to address that change.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I want to make more progress, but I will give way later.
As I said, the five qualities that I set out, concluding with global reach, show that al-Qaeda is qualitatively different from other organisations. Moreover, al-Qaeda has repeatedly stated that the United Kingdom and its citizens are targets of its terrorist network. Since 9/11—I emphasise this because it is important that it is understood—the police and intelligence services in this country have successfully disrupted a number of attacks in the United Kingdom before they could be mounted. The fact that there has been no terrorist attack in this country since 9/11 is due to the quality of our security services and police, not to any lack of terrorist ambition to mount an attack in this country. It would be deeply ironic if our success in preventing terrorist attacks should persuade us that now is the time to lower our guard in any way. I argue exactly the contrary: that our success in that regard makes it even more important not to lower our guard in any way.
Mr Crispin Blunt (Assistant Chief Whip, Whips; Reigate, Conservative)
Will the Secretary of State give way?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I want to make a little more progress, but I will give way in a moment to the hon. Gentleman and other colleagues.
In the battle against the terrorist threat—it is a battle, and a war, against an organisation that seeks to attack us—we must acknowledge that the terrorists' capacity has changed and increased. We must also acknowledge that our capacity has changed and increased in surveillance, in the resources that we allocate to the security services, and in international co-operation, to which my hon. Friend Helen Jackson referred. We are seeking much higher levels of international co-operation than previously to address precisely those questions. We must strengthen our capacity in those areas. We are engaged in a battle and it is a battle that we cannot resile from in any way.
When Sir John Stevens was Metropolitan Police Commissioner he gave us the following advice in November 2003:
"What we have to do is to see attack as inevitable in terms of the way in which we prepare and try and protect ourselves against such an attack."
I am not prepared to accept that an attack is inevitable and I will do all in my power to prevent the inevitability of any attack. That is why the Bill is before the House.
Mr Crispin Blunt (Assistant Chief Whip, Whips; Reigate, Conservative)
Does the Secretary of State understand the danger of proceeding on the basis of assertion, and the need to produce evidence to sustain support throughout the House and the country for these extraordinary measures? He said that the Government have been successful in preventing operations, but the terrorists surely know that those operations have been disrupted, so why can he not share that information when making his case? He is making a case for the powers of administrative detention on the basis of assertion, but, following the war in Iraq, the Government have lost trust. I urge the Home Secretary to bring a detailed case to the House.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
First, I set out yesterday in the House—I hope that the hon. Gentleman studied what I said in detail—a series of papers addressing precisely the point that he raised. Secondly, he simply does not accept the seriousness of our situation—[Hon. Members: "He did not say that."] He did say that he could not accept it. He said clearly that he could not accept, without further evidence, that we face a threat of the sort that I assert. He should accept that.
Mr Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)
Given that the Home Secretary is referring to international terrorism, can he tell the House of any democracy in which such Executive orders exist?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
A wide range of democracies use such measures, depending on the legal system in the countries concerned. In some European Union countries, individuals may be locked up for three, four or five years, but, as the hon. Gentleman well knows, a different legal system exists in those regimes with an instruction judge system.
Dr Julian Lewis (Shadow Minister, International Affairs; New Forest East, Conservative)
The Home Secretary rightly paid tribute to the security services' successful prevention of attack. It was adequate to use judges in special courts at the height of the IRA offensive when it was involved in wide-scale attacks, so why is it not adequate to use judges in special courts, instead of politicians, at a time when, thank goodness, attacks have not yet been successfully carried out?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
There are different solutions, and having judges in special courts is one solution that could be considered. However, that does not address the central objection of those who criticise the legislation. The fact is that there is evidence of activity that cannot be put before a court, of whatever type. That is the fundamental issue.
Mr Nick Gibb (Bognor Regis & Littlehampton, Conservative)
Given that some countries use intercept evidence in court, would not an alternative approach be to amend our disclosure rules so that intercept evidence could be used in our courts safely and securely?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
We considered that in detail in the review commissioned by the Prime Minister and on which I gave a written statement to the House some weeks ago. It is certainly possible to consider different approaches, but the core point that must be understood is that there is no evidence that the use of intercept evidence has been successful in bringing terrorists to trial in any country in the world. That is the reality with which we must deal.
Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton & Frome, Liberal Democrat)
The Secretary of State knows that our substantial difference of opinion with him is that he is proposing a system of Executive control orders that he would make, which would then be considered by a judge. In our view, it is essential that those orders are confirmed, in the first instance, by a judge on application from him. When the Prime Minister was questioned on the matter, he suggested that the principal argument for that was urgency. Is there not a case for some form of interim order on sufficient evidence, to deal with precisely that issue?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I intend to deal with that matter later in my speech and will address the hon. Gentleman's point then. However, it is an appropriate matter to be discussed in Committee because the issues raised by the Liberal Democrats, as well as those raised by some of my hon. Friends, are legitimate aspects of debate on the Bill.
Mr Tam Dalyell (Linlithgow, Labour)
On a point of fact—it may be to my discredit that I do not know—in which other democracies are people locked up without charge and without trial?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
That happens in France, Spain and Italy, for example, under a different legal regime.
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
The Home Secretary must not mislead the House. He must be acquainted with the different regimes in force in other European countries. If detention takes place in those countries, it is in the context of investigation prior to trial. It is not administrative detention of the sort that he envisages.
Sir Alan Haselhurst (Deputy Speaker)
Order. I suggest that the hon. Gentleman rephrase the initial part of his intervention. No right hon. or hon. Member seeks to mislead the House.
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
The Home Secretary should not inadvertently mislead the House.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I was not seeking to mislead the House in any way, inadvertently or otherwise. I said that there are different regimes of the sort to which the hon. Gentleman referred. The fact is that people end up locked up and deprived of liberty. The different systems are a key issue in looking at the way in which the legislative changes will take place.
Mr Robin Cook (Livingston, Labour)
My right hon. Friend gave an important response to the intervention from Mr. Heath. Does he understand that he would meet the anxieties of many Labour Members who cannot support the Bill as drafted if he would take the next logical step and allow the courts to make the decision in the first instance, rather than second-guessing his decision? The sticking point is that the decision on whether to deprive a citizen of liberty should be judicial and not political.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I certainly understand very well my right hon. Friend's concern, which, it has to be said, is shared by other Members in all parts of the House. In their view, there needs to be judicial involvement at the earliest practical opportunity in the control order process, particularly if it results in someone being deprived of their liberty. I can assure the House that I will continue to give careful consideration to this issue, which has been raised with me by a number of colleagues, and we will of course debate it in detail in Committee on Monday. However, I must be certain that nothing is done to undermine my responsibility or ability as Home Secretary to safeguard the security of the country. That said, I recognise the point that has been made.
Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)
Will the right hon. Gentleman give way?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
No, I will now make some more progress. As I have said, I will come to the judicial point later.
The Bill is before the House as part of a key set of proposals to address the terrorist threat that the country faces. There are four motivating principles behind the Bill, which I want to set out as clearly as I can. The first of them addresses the point made by my hon. Friend Jeremy Corbyn. We need to have a more secure prosecution process; on that, I share the ambition described by my hon. Friend. I emphasise that control orders will be used sparingly and only, as now with the current part 4 powers, in very serious cases. As I explained yesterday, prosecution is, and will continue to be, our preferred approach. These orders are for those dangerous individuals whom we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in the country.
Simply to illustrate the point, let me confirm the facts again. Between
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will do so when I have finished my point on prosecutions.
Before making, renewing or remaking any control order, I shall ask the police whether there are realistic prospects of bringing criminal charges against the individual concerned, and I shall seek the confirmation of the police that further investigations will be carried out during the period when the order is enforced in order to pursue prosecution as the preferred route.
I turn to my final point on prosecution.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will do so in a second. Finally on prosecution, I mentioned yesterday that we are looking at the framework of our current counter-terrorist legislation and at the scope of the offences with which terrorists are charged to see whether there are any gaps or deficiencies that we can and should remedy. I hope to introduce further legislation as soon as it is practicable to do so; that is my objective. Yesterday, I mentioned a potential new offence of being concerned in the commission, preparation or instigation of acts of terrorism, but there are others as well, because we must give the police all the tools that they need to combat terrorism and to bring the perpetrators to justice.
Mr David Winnick (Walsall North, Labour)
As I said yesterday, I will support Second Reading of the Bill later today, but I would be much happier if the Home Secretary would reinforce the point that he made to my right hon. Friend Mr. Cook, when he said, in effect, that he will give very careful consideration to the valid points made by my right hon. Friend and other Members. If the Home Secretary does that, I will vote tonight in the way that I suggested in a much happier frame of mind.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My hon. Friend's happiness is very high on my list of priorities. I can confirm what I said to my right hon. Friend Mr. Cook. However, as I have said on a number of occasions, I will come to the judicial point a little later and I will elaborate on it then.
Mr John Denham (Southampton, Itchen, Labour)
I am grateful to my right hon. Friend for giving way. I welcome what he has said about seeking assurances from the police on whether there is a sufficient case to prosecute and to conduct further investigations. However, might not the appropriate route be for the Director of Public Prosecutions to consider all the information that is available in a particular case, and for him to provide the Home Secretary with advice as to whether that case is prosecutable?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My right hon. Friend and his colleagues on the Home Affairs Committee have addressed this issue, and he has also said to me separately that there is a case for looking at whether an intervening procedure would also help in dealing with this process. I can assure him that I am ready to look at the precise way in which this issue can be dealt with.
Mr Douglas Hogg (Sleaford & North Hykeham, Conservative)
The right hon. Gentleman told the House about the number of individuals charged under terrorist or related legislation. Will he be good enough to tell us how many have been convicted?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will repeat what I said a few seconds ago: 17. I am sorry that the right hon. and learned Gentleman was not listening.
Mr David Kidney (Stafford, Labour)
My right hon. Friend has been very fair in saying on a number of occasions that prosecution would always be the first preferred route, but nowhere in the Bill is that stated. Would he be amenable to amending the Bill, so that it states that that would be a constant consideration of the Home Secretary? The significance of such an amendment is that at every stage of judicial oversight, judges could take that factor into account.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will take advice on that point and on the legal process that my hon. Friend suggests. I can assure him absolutely and without qualification that prosecution is the preferred route, as I was at pains to set out in this speech and in my statement to the House yesterday. I will look into whether that can be reinforced in law in any way.
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
Will my right hon. Friend also seek advice, through the DPP, the police or any other relevant body, as to whether a prosecution might be possible if impediments to the use of certain types of evidence, such as intercept evidence, were removed? I understand that the Metropolitan police, the former head of MI5 and a number of other organisations believe that the Government are tying the hands of the police and others behind their backs with regard to achieving a prosecution in some circumstances.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I want to make the situation clear, and I should point out that I simply do not accept my hon. Friend's description of the position of the Metropolitan police. I think the individual she was referring to was Sir Stephen Lander, the former head of MI5 and chairman designate of the Serious Organised Crime Agency. I commend to her his letter to the newspapers of a few days ago and his excellent interview on the "Today" programme against the leader of the Liberal Democrats, Mr. Kennedy—I should have said "with", not "against"—on precisely that point. Our position is clear.
Ms Vera Baird (Redcar, Labour)
I am very pleased that my right hon. Friend has said that he will consider sending all these files to the DPP, because that is an essential step. Is it not implicit in the application for a control order that the case in question has been impossible to prosecute? It is not appropriate for the Home Office to take such a decision when there is a constitutional figure—the DPP—whose job that is.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I understand that point, which I will consider, and I know that my hon. and learned Friend has written specifically about it. There are serious issues on both sides of the argument, but hers is a well-made point that we can discuss.
Mr Patrick McLoughlin (Deputy Chief Whip, Parliament; West Derbyshire, Conservative)
The right hon. Gentleman is being very generous in giving way. He said that 701 people had been arrested and he then gave the figures for those convicted. What category did the people currently in Belmarsh fall into? Was it thought that there was insufficient evidence to prosecute them?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am not prepared to discuss individual cases, but what I will say is that all the individuals whom the hon. Gentleman refers to are being dealt with under powers in part 4 of the Anti-terrorism, Crime and Security Act 2001, and not under the Terrorism Act 2000, to which my statistics refer.
I said that I wanted to set out the motivating principles behind this legislation, and the first of them is getting a secure route to prosecution. The second is to protect our national security—that must be a key principle behind the resolutions—against the terrorist threat that I have set out. I argue that we need to provide control orders that give the police and the security services the means to apply control to those who are offering precisely the threat against which we have to protect ourselves.
Ms Claire Ward (PPS (Rt Hon John Hutton, Minister of State), Department of Health; Watford, Labour)
rose—
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will complete this point and then give way.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
As I have said on a number of occasions, I like to make my speech in little chunks and then give way to a group of Members; that is what I will do, if the House will permit me. [Interruption.] In the past, too many people have called me a big chunk rather than a little chunk, I am afraid.
The second motivating principle is the need to protect national security, and in particular to provide the control orders that enable us to do that. They give us the means to secure our country that the security services and the police have asked for, and the Newton committee report recommended them in paragraph 251. Indeed, they are widely seen as meeting the disproportionality criticism that the Law Lords set out. I believe they are necessary for the security of this country, which is a key motivating principle, and I argue that strongly. I accept that there are people who say they are necessary but question the way in which they are put in place. That is a legitimate area for discussion, but I argue that they are necessary.
When David Davis makes his speech, will he respond to this serious point? What is the position of the main Opposition party on these matters? It is very important that we understand whether it supports control orders. I thought that the Leader of the Opposition was clear about that, but he became unclear when he met the Prime Minister last Friday, when he said that he did not want control orders at all, and he was less clear a moment ago. I gather that Andrew Marr was saying at lunchtime that he was unclear about the Conservative position, so it would be helpful if the right hon. Member for Haltemprice and Howden could make that clear.
Mr David Trimble (Upper Bann, UUP)
I am concerned about a practical matter with regard to control orders. A whole range of activities is set out in clause 1. How will they be enforced as a matter of practice, not in theory? How can they be enforced without massive use of police resources and huge disruption for local communities?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
The resources issue is serious, as the right hon. Gentleman says, and one of the reasons why there has been a significant increase in resources for the security services in the comprehensive spending review is to try to ensure that we have those means. There is first the legal question and then the question of resources that he raises. We are making resources available to deal with the matter.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I am happy to give the Home Secretary an answer now. If he had read the Hansard of the debate that he was unable to attend—I think he was at the Home Affairs Committee—he would have seen that I dealt directly with the issue. We do not like the idea of control orders. We think that the method for their proposed use is flawed, but we are open-minded if they can be amended to meet our principal concerns about them. That was the point I made at the time in response to Mr. Oaten.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am genuinely delighted at that clarification. It is a difference from the position of the leader of the right hon. Gentleman's party, but I am very glad that, in this case, it is the right hon. Gentleman's writ that is running. It is important that that should be the case, because I seek—let me be clear about this—all-party agreement to the proposition that control orders are part of the armoury that we need to defend ourselves against the terrorist threat. I am delighted that he has signed up to that.
Ms Claire Ward (PPS (Rt Hon John Hutton, Minister of State), Department of Health; Watford, Labour)
My right hon. Friend will recall that I asked him yesterday about the impact of a home detention order on members of the household. May I give him another opportunity to clarify his position on that? Will it be the responsibility of the Home Secretary and of the judge assessing the order to take into consideration the human rights of other members of the household and the impact on them? What legal redress, within the same time scale as the legal redress that my right hon. Friend is setting out, would be available to other members of the household, including minors?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
The short answer to that question is yes. It would be the Home Secretary's obligation to take into account the factors that my hon. Friend set out. The main legal redress would be through the appeal regime established against the control orders. Others in the household, or others around, could have that recourse to appeal their situation. I well understand my hon. Friend's particular concern, but it will be dealt with under the measure.
Mr William Cash (Stone, Conservative)
No doubt there are others to come. So far, does the Home Secretary accept that the prime motivating principle should be that the legislation should stand up, on his terms, to legal challenge in future? The Attorney-General is said to have doubts about that, but as I said to the Home Secretary yesterday, all he has to do is to bring in legislation stating "notwithstanding the Human Rights Act 1998" and then legislate accordingly. If he does so, there is no doubt that he would be able to ensure that the legislation would be upheld because judges would be under a requirement to do so. What is his answer to that?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My answer is: wait until my third motivating principle.
Mr Simon Thomas (Chief Whip; Ceredigion, Plaid Cymru)
With regard to control orders and their ultimate use for administrative detention, the Home Secretary made it clear yesterday that, under the current advice he was receiving, he would not seek to derogate from the charter of human rights and that the current security situation did not demand the imposition of such orders in this country now. So, as a consensus seems to be emerging in the House about the use of control orders below administrative detention, why is it not possible for the Bill's provisions to go up to but not include that, so that we can have a proper debate about control orders without administrative detention? That would give the Home Secretary an opportunity to reconsider and all of us would have more time to consider the exact judicial role in respect of administrative detention. Surely, that would be a much better way to approach the issue.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
There are two answers to that question—one of principle and one of practice. I think it is right in principle that, if there is to be a derogation, the subject of that derogation, in terms both of the threat and of the strict requirement for deprivation of liberty to meet that threat—the two legs of a derogation case—should be debated in this House and the other House. There should be specific discussion of that question, and every Member of this and the other House should make their decision on that issue. That is a superior way of legislating on these difficult matters, rather than the general confusion of another piece of legislation going through.
There is also an important practical question. The fact is that terrorists are moving rapidly and it may be necessary to move rapidly to deal with them. I need only cite the most recent example in Europe. The Madrid atrocity took place during the Spanish general election campaign and such things are always possibilities in this country, too. In those circumstances, we must be able to take the steps necessary to stop such things happening.
Ms Sarah Teather (Health Spokesperson, Health; Brent East, Liberal Democrat)
Does the Home Secretary accept that detention without trial was one of the most controversial and hated aspects of the troubles in Northern Ireland and consequently one of the most effective recruitment routes for terrorist organisations? What are the implications of the Bill for terrorist recruitment in this country?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I do not accept the language that the hon. Lady used, but I accept that there are serious issues about the use of internment in the case that she mentioned. That is why such powers should not be used except in exceptional circumstances and after full consideration, which is precisely what I propose.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I do not want to make the Home Secretary's life more difficult than it is, but on the issue of internment without trial, all the control orders proposed beneath derogation level will still be known to the communities where they are being used. Does he realise that, if the process is not known and understood and believed to be just, those orders, too, will be seen to be unfair?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
That is exactly why the Bill proposes detailed reporting procedures to the House and elsewhere, to set out exactly how the control order regime is operating, the quantity and so on. There may be myths and realities about those questions, but there should be informed and proper debate about the issues. It is exactly for that reason that the orders should be seen not as shadowy things but as something clear that people can discuss and consider in their particularity.
Ms Sally Keeble (Northampton North, Labour)
Can my right hon. Friend give some explanation of the enormous range of provisions for types of control order set out in subsections (3)(a) to (o) of clause 1? Many of those activities look similar to things that I saw happening to friends in South Africa, which will make it extremely hard to vote for the measure. Will he also explain which of them require derogation and how that provision will work?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will deal with the second point first. The derogation arises either when there is an individual measure or a combination of measures that add up to a deprivation of liberty. It will arise when an individual measure or a set of measures is being considered in those circumstances. Although I respect my hon. Friend's personal experience, I do not accept her comparison, because when we reach the point of deprivation of liberty a whole set of other issues comes into play, so we need a separate legal regime.
Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)
rose—
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I shall not give way, as I want to make progress.
The third motivating principle, which exactly meets the point made by the right hon. Member for Haltemprice and Howden, is the need to meet the Law Lords' judgment. In general, I do not regard it as a successful and positive state of affairs when the senior judiciary of this country, the Law Lords, and the Executive are in rather different places, and certainly not in terms of measures of this type. Their criticism of the regime in place was that it was disproportionate in character and discriminatory, and we should take that criticism extremely seriously. The measures that I am putting to the House in the Bill would address that question directly.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I shall give way again when I come to the end of what I am saying. The hon. Gentlemen can listen to what I am saying and then come to a view. The fact is that, from June 2002 until December 2004, when the Law Lords' judgment was passed, a judicial process was taking place, with its final step in the Law Lords' judgment, considering the legality or otherwise of the steps that had been taken. In my opinion, it was correct in relation to that process for us to await the judgment and decide exactly what we would do on the basis of receiving it. We now have that judgment. I argue very strongly that we should not ignore the judgment or flout it, but act on it and try to put in place a regime that is both proportionate and not discriminatory.
Mr William Cash (Stone, Conservative)
The Home Secretary is not really answering my point. It is not a question of whether or not he is complying with the Law Lords' judgment. The problem arises because the Government have got themselves into a complete mess with regard to the human rights legislation. Surely the point is simply that, to ensure that the House can legislate on its own terms, it must legislate notwithstanding the Human Rights Act 1998, and then he is in the clear. Does he not see that?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I do not accept any of that. I simply do not accept the argument. I do not think that it is correct. What I do think is that when the Law Lords of this country make a set of criticisms about the way that we are operating that is well founded, by a vote of eight to one, it is incumbent on the Government—and, I would argue, on Parliament—to respond to that and decide how to deal with it.
Sir Patrick Cormack (South Staffordshire, Conservative)
I am not entirely unsympathetic to many of the points that the Home Secretary is making, but can he tell the House whether there have indeed been discussions with the Lord Chief Justice and the Law Lords on the Bill?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
Yes, I can say that. I can say that explicitly in my case in relation to the Lord Chief Justice, with whom I have informal discussions from time to time. The Law Lords are a very much more distinguished group of people and I am not sure that humble politicians can talk to them in quite that way. The answer is that we are actively discussing these questions with the judiciary. I cannot speak for them, of course, but I have certainly sought—as has the Lord Chancellor in the other place—to take account of what the senior lawyers have been saying about these questions.
Mr Bill Wiggin (Shadow Secretary of State for Wales, Local and Devolved Government Affairs; Leominster, Conservative)
Had the legislation already been in place, how many of the 701 people that the Home Secretary mentioned earlier have been arrested—of whom only 17 were convicted—would have been subject to a control order?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
Those people would not have been subject to control orders because they are going through the courts in the prosecution regime that we are describing, but I cannot, and will not, comment on the situation that arises for any control order in a particular situation over that whole period of time.
Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)
Several times this afternoon, the Home Secretary has mentioned the appeal procedure for control orders. Clause 7 mentions the appeal procedure by way of judicial review. In Scotland, at least, judicial review is a process whereby people challenge the process by which a decision was made, rather than the decision itself. In considering these cases, will the courts be able to consider the evidence itself or will they be able to consider only the process by which the Home Secretary decides that the order is appropriate?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
The courts will be able to consider the material situation. As I said, I will come to the judicial review process in a moment.
The House will be glad to hear that I am now on my final and fourth motivating principle for the Bill: the need to end the uncertainty about the legal position that exists at the moment. Why is renewal of the existing powers, as proposed by the Opposition, in my view so poor an option, other than to give the Conservative party the chance to buy time and get itself sorted out? There are two main considerations, which I set out yesterday in the House.
First, if we were simply to renew the current part 4 legislation, as is proposed, it would be entirely possible for the individuals concerned, at Belmarsh or wherever, to appeal against the Act to the European Court of Human Rights at Strasbourg directly in that time scale. The very act of making that appeal would put uncertainty into the situation, which I believe would be undesirable. Moreover, in that situation, in the case of the individuals currently in Belmarsh, it would be entirely possible for SIAC, when considering their cases, to say that the position that we had taken did not allow detention in those circumstances, despite the fact that the order had been renewed.
If we were to accept the advice of the Opposition to renew the part 4 powers, in effect, we would be establishing a regime that was uncertain and not solid for a period of three, four, five or six months. That is why I urge the Conservative party to come to the view that renewal is not the route that it thinks it is to buy time, as set out by the Leader of the Opposition, but is actually a flawed route.
Those are the four motivating principles of the Bill: first, to secure prosecutions as our best way of moving forward; secondly, to protect national security by the use of control orders; thirdly, to meet the Law Lords' judgment; and, fourthly, to end damaging uncertainty. I argue that all those in the House who can support those four principles ought, in my opinion, to support the Bill on Second Reading and give it the fair wind that it deserves. Of course, none of that ignores the fact that there are issues of legitimate debate below those four principles—if I can put it like that—about the structures that the Bill puts in place. A range of issues will be debated in this House and the other place on those matters. However, it is right to say that, in my judgment, the biggest outstanding issue is the extent and form of judicial involvement in the process. That has been raised by a number of colleagues from my party as well as by other parties.
I intend to set out the judicial process that is within the legislation and then to confirm again the remarks that I made to my right hon. Friend the Member for Livingston earlier. Before I do that, I will give way to an array of talent on the Opposition Benches.
Mr Elfyn Llwyd (Parliamentary Leader; Meirionnydd Nant Conwy, Plaid Cymru)
Given what the Home Secretary has just said—that there are legitimate disputes about the contents of the Bill—why is the debate limited to two days? That is a question that perplexes all hon. Members, on both sides of the Chamber. The Bill deserves far more consideration that it is being given.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
Of course, I hear that argument. It is one that is made by a number of colleagues and it is frequently made when matters of this kind are considered. It has legitimacy, or not. It is an issue. I believe that the time available, both in this House and the other House, is ample to consider these questions. He obviously disagrees and other Members disagree, but that is an issue to be resolved.
Mr Malcolm Bruce (Shadow Secretary of State for Trade & Industry, Trade & Industry; Gordon, Liberal Democrat)
Has the Home Secretary not just described himself as being between a rock and a hard place? If he is not prepared to extend the existing regime—he is quite right to refuse to do so—and he cannot get the legislation through both Houses in the present circumstances, is not the right thing to do to concede that it should be a judicial decision and to stop the charade of trying to pretend that he can maintain his own position?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I think that being between a rock and a hard place is part of the job description for this particular job, but I hope that my shoulders are broad enough to push the rock or the hard place aside to try to get to a solution if I can.
Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)
May I pursue the constructive approach of my hon. Friends and suggest two other reasons why I hope the Home Secretary will be persuaded of the case for making the sequence of events different? The first is to do with the urgency point. He will know well that courts can be summoned and judges can be called on at any hour of the day and throughout the weekend, at any time. Secondly, it would be far better for the upholding of the authority of Government, of any party, for Ministers to have their proposal endorsed by the judiciary, rather than what has happened to many Home Secretaries, which is to have their decision overturned by the courts. It must be better for an idea of his, on advice, to be backed up by the courts at the beginning, rather than undermined a week later.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
That is part of the argument. Let me set out our proposals clearly, so that colleagues can see where we are.
Ms Sally Keeble (Northampton North, Labour)
This builds on my previous question. The Home Secretary indicated in his reply that any of paragraphs (a) to (o) could require a derogation. Is that true? Or is it a certain combination of them? Secondly, under the list of offences, will collusion in the breach by a controlled person be an offence as well—for example, if somebody visits someone outside the hours, employs them, and so on?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
On the first point, I did not say, because it is not the case, that any of the orders, individually themselves, would be a breach of deprivation of liberty. What I did say was that that may be the case for one or more of them. Moreover, if some of those orders were used in combination they could, combined, add up to a deprival of liberty. How that was dealt with would be a matter for legal judgment at the time. On my hon. Friend's second point, I think that the answer to the question is yes, but I will take advice on that before properly answering the point.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I look at the right hon. Gentleman, who is a member of the Intelligence and Security Committee, and if he says the answer is yes, I know it must be yes.
Mr Clive Betts (Sheffield, Attercliffe, Labour)
Can my right hon. Friend confirm that, given the different powers under clauses 1 and 2, if he concludes that a combination of the various measures under clause 1(3) is required which amounts to a deprivation of liberty, the test will be different in relation to whether the control order should be imposed and will be based not on reasonable suspicion but on balance of probabilities?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My hon. Friend is correct. Just to make it absolutely clear, let me say that, if there had been a derogation and there were then a deprivation of liberty by an individual order or a combination of orders, the higher standard of proof established in the Bill would be required.
Let me conclude by setting out quickly what the judicial proposals are.
Mr Jim Cunningham (Coventry South, Labour)
Will the Home Secretary clarify whether the undertaking that he gave my right hon. Friend Mr. Cook will materialise in Committee? In other words, when will we know the conclusion that the Home Secretary has reached?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I will stick by the commitment that I gave, so I hope that what I said will be clear when the Bill is considered in Committee.
Mr Graham Allen (Nottingham North, Labour)
On a point of order, Mr. Speaker. I apologise to the Home Secretary for interrupting his speech, but I seek clarification on procedure. I understand that the Committee stage of the Bill will take place on Monday. Am I right to assume that any amendments that hon. Members might wish to table as a result of the Home Secretary's open-mindedness would have to be tabled before the close of play tomorrow? We might have difficult technical questions about drafting with which we may need assistance before then.
Sir Alan Haselhurst (Deputy Speaker)
The hon. Gentleman will know that the Clerks of the House are well capable of giving assistance to hon. and right hon. Members. Obviously selection has not yet taken place, and the selection process will be as sympathetic as possible to hon. Members, given the circumstances and the context of the Bill.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am grateful for your clarification, Mr. Deputy Speaker.
As my hon. Friend Mr. Betts implied, different procedures are proposed for the judicial scrutiny of derogating and non-derogating control orders. Under the Bill's provisions on non-derogating control orders—those considered beneath the requirements that apply to the deprivation of liberty—an individual may appeal against the making of an order to the High Court. When considering the appeal, the Court must adopt the approach that it would use for an application for judicial review. I anticipate that, in cases that involve a consideration of human rights, the Court will apply greater scrutiny to the Secretary of State's decision and examine closely whether any interference with convention rights is proportionate. There will be a specific obligation to examine such matters carefully.
On derogating control orders, which are dealt with in clause 2 and other provisions of the Bill, there will be an automatic two-stage process for challenging the order. First, clause 2 provides that a derogating control order must be referred immediately to the High Court, which must consider within seven days whether there were reasonable prima facie grounds for making the order. If there are such grounds, the second stage will be that the judge will automatically refer the case for a full hearing by the Court, at which it will make its own decision, following a consideration of all material, about whether, on the balance of probabilities, the individual is or was involved in terrorism-related activity, and about whether the control order and each of the obligations were necessary.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I shall give way when I reach the end of this point, as I have done throughout my speech.
The subject of the order will also have the right of appeal against any modification of a derogating control order, or a decision not to revoke or modify such an order. Just as with an appeal against the making of an order, there will be a full hearing at which the Court will reach its decisions on the relevant matters.
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
If we were to derogate from article 5 of the European convention on human rights, we would keep the need for any such derogation under review. The Bill thus provides for the Secretary of State—
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I heard my hon. and learned Friend, and I shall give way in due course, as I have said to everyone else. He has a very loud voice—it is often louder than the wisdom of his remarks—and I shall certainly give way to him in a moment.
The Bill thus requires the Secretary of State to lay an order, subject to affirmative resolution, before Parliament each year after the first year to state that it continues to be necessary for the Secretary of State to have the power to impose derogating obligations by reference to the derogation, and derogating control orders shall have effect only beyond the first year of the derogation while such an order is in force. That represents the basis of the judicial engagement currently set out in the Bill.
Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
During yesterday's statement, the Home Secretary said that, when such proceedings come before the High Court or the Court of Session, special advocate procedures might be used. Will he bear it in mind that the Constitutional Affairs Committee yesterday received chilling evidence from nine existing special advocates about the difficulties that they face during such proceedings? Will he clarify—it is unclear in the Bill—whether it will be for the High Court and the Court of Session to decide the kind of special advocate proceedings that they will use, if any, or is there another means by which he intends to impose those proceedings on the courts?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I take the right hon. Gentleman's point. Both the Attorney-General and Lord Carlile, in his review of the special procedures, have made similar points. I have not yet had a chance to study the evidence given yesterday in detail—I have only read reports of it. However, I confirm that we accept the need to review the procedures to try to deal with several points that have been made, and we will carry that through.
Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)
I agree with the Home Secretary that judicial protection is important, but does he accept that that is somewhat undermined by paragraph 8 of the schedule to the Bill, which provides that, if an order is quashed, the Home Secretary may make the same order again while relying on the same evidence?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
Not at all. The role of the Court is still clearly established.
Mr Robert Marshall-Andrews (Medway, Labour)
Following on from the point about South Africa that my hon. Friend Ms Keeble has made several times, the High Court's jurisdiction on judicial review extends only to law and procedures, as my right hon. Friend is well aware. Will he state unequivocally that the only review of all the matters to which clause 1 refers—restriction on movement, restriction on work, restriction on association and so on; they are similar to the pass laws in many ways—will be on matters of law and procedure, and that the court will be enjoined that it cannot interfere on matters of fact? Is that right, because it certainly seems to be what appears in the Bill?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I do not think that it is right. We are setting out two different processes, depending on whether derogation applies or not—whether or not there is deprivation of liberty. My hon. and learned Friend is right about non-derogating issues, but not derogating issues.
Mr Richard Burden (Birmingham, Northfield, Labour)
May I raise a similar point, although I am now a little confused? I think that the Secretary of State said that different procedures would apply for non-derogating and derogating orders. However, he earlier said that one or more of the non-derogated matters could become derogated if they were in a particular combination. What would be the procedure for that, and who would decide it?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
The legal power to establish a range of orders under the Bill means that an order for the deprivation of liberty will be made by the Home Secretary and confirmed by a judge. If it were argued that a combination of measures added up to a deprivation of liberty, the judge would make a judgment on that, the Court of Appeal would carry the procedure though and the situation would be dealt with. The case would trip over on to the different process.
Mr Win Griffiths (Bridgend, Labour)
I am pleased that the Home Secretary said that his mind is still open about whether primacy should lie with him or the judiciary. What is the likelihood of his Department tabling an amendment before Monday—I know that the situation is complex because I have been trying to find a way to amend the Bill—that would make it absolutely clear that the judiciary would make a decision based on evidence provided by the Secretary of State about what he is minded to do in such extreme circumstances?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I say again what I said earlier to my right hon. Friend the Member for Livingston. I assure hon. Members that I shall continue to give careful consideration to the issue. That means that I shall examine the appropriate language to deal with the situation.
Mr Clive Betts (Sheffield, Attercliffe, Labour)
May I return to the judicial process for non-derogated orders? Is it not correct that, when judges consider a case, they will not look at it afresh and reach their own decisions based on the evidence, but decide whether the Home Secretary has behaved reasonably by coming to the view that he has reasonable grounds for suspicion? Surely that is an extremely low-level test for taking fairly fundamental rights away from British citizens?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
My hon. Friend is right in what he says, but it is not a low-level test: it is a serious test of a serious, difficult matter. It is an important point for him to make, and I understand why he makes it, but I do not think that it is a low-level test.
Mr John Bercow (Buckingham, Conservative)
Whether judicial decision is made in the first instance, as we believe it should be, or in the last instance, as the Home Secretary prefers, is surely a fairly fundamental matter of principle. Can I therefore take it, from his response to Mr. Cunningham, that the Government's readiness or otherwise to back down next week will depend very much on the size of the revolt this week?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I have become accustomed over the years to admiring the hon. Gentleman's contributions to debate. However, on this occasion, I cannot respect what he says, as it is simply not correct. We will consider the matter on its merits.
Mr Crispin Blunt (Assistant Chief Whip, Whips; Reigate, Conservative)
To follow up the point made by Mr. Betts, surely the test on the Home Secretary, if we are to accept the Bill, should not be that he should be satisfied on the balance of probabilities but beyond reasonable doubt. He is making a test based on no evidence from the defence at all, solely on the case being put to him by the authorities. Why is that test, in those circumstances, not beyond reasonable doubt before he seeks to deprive British citizens of their liberty under a derogating order?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
I am afraid that the hon. Gentleman confirms what he said earlier. Effectively, he is of the view that a control order regime should not be in place. He is entitled to argue that, but I do not accept that position.
I have given way a great deal in this debate and have spoken for just over an hour. I know that a lot of people want to come into the debate.
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
Can I take the Home Secretary back a moment, as this issue goes to the root of some of the problems that the House faces? He expressed concern about the special advocate procedure and said that he shared such concerns, and yet if he reads paragraph 75 of Lord Carlile's report, he will see that he highlights the concerns, saying that he is slightly surprised to have to repeat unfulfilled suggestions from his report a year ago. Does not the Home Secretary understand that one might have greater faith in the Government in these matters had they already responded positively to previous suggestions?
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
That is a debating point, which the hon. Gentleman is entitled to make. I want to put on record that I appreciate the work of Lord Carlile. The hon. Gentleman should examine carefully his report, as his approach in reviewing the legislation confirms precisely the need for the kind of regulation that we have now, because of the threat established.
I said at the beginning, and now conclude by saying, that on the four key principles that I have established and set out, this Bill deserves the support of the House. I hope that it will be agreed today, and I hope that, through agreeing it, we will be able to provide even stronger and more effective protections against the dire threat posed by international terrorism to this country.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:
"this House declines to give a Second Reading to the Prevention of Terrorism Bill, because it contains excessive powers in relation to requirements on a person to remain at a particular place when such powers are not presently necessary;
gives to the Executive powers that should be exercised by the judiciary;
allows decisions to be made on an insufficient standard of proof;
fails to address the need to bring terrorists to trial on the basis of all evidence available;
and thus wrongly infringes the right to liberty of the individual."
I shall start by attempting to put this debate on a proper basis. First, the Home Secretary started with rather a good description of the state of terrorism today. I did not agree with all his five categories for differentiating al-Qaeda, but there is no doubt that it constitutes a qualitatively different set of terrorist threats than existed before. That does not mean that we should throw away all that we have learned in this country in dealing with terrorist threats in the past. It does mean, of course, that we should alter our tactics accordingly. However, we should not throw away the civilised standards of which this country has become proud over the centuries.
I want to make two other points to the Home Secretary. Yesterday, he accused his opponents on this issue of, I think, playing politics with terrorism. That accusation is neither helpful to this debate nor in any sense serious. The easy political line in this sort of debate is to tub-thump about the threats, to raise the temperature and to talk about draconian penalties for terrorists. The harder line is to raise questions of principle, liberty and the proper process of British justice. The easy but, in my view, irresponsible approach would have been to roll over and let the Government legislate in ways that reduce liberty and harm long-standing, important traditions of British justice, which might even worsen rather than improve the terrorist situation.
Secondly, the Home Secretary alleged yesterday that the alternative to what he recommends is that we do nothing. That is clearly and patently untrue. It does not reflect well on the strength of his arguments that he needs to put up such an Aunt Sally. Not only have we made alternative proposals, but I and my predecessor made a number of those proposals to his predecessor, giving the Government a great deal of time to consider them.
Let us take, for example, the proposal that has been raised several times in interventions today, and which the Home Secretary has rejected—that intercept evidence should be used in court to enable more terrorists to be brought to justice and locked up in a prison, not in their living rooms. I said to the then Home Secretary in February 2004:
"Everyone agrees that the most desirable way to deal with terrorists is to bring them before the courts. That is where the Home Secretary should be concentrating his efforts—looking at aspects of the law that make prosecution more difficult and seeing whether they can be corrected."—[Hansard, 25 February 2004; Vol. 418, c. 314.]
The Newton committee highlighted one aspect in particular on which we believe that the Government should act. Paragraph 208 states:
"In our view one way of making it possible to prosecute in more cases will be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court".
We agreed. That conclusion was reached by Lord Lloyd in his 1996 review. It had the backing then of Lord Carlile and has been advocated in relation to terrorist cases for many years by Mr. Trimble. It has had the support of successive Chief Constables in Northern Ireland and of Sir John Stevens, as well as support in the United States and in other areas.
In the United States, extensive details of intercept capacity are published and are a matter of public record. They will therefore already be accounted for in al-Qaeda's behaviour, training and tactics. It is therefore difficult to see how knowledge of our much smaller intercept capacity in this country could make much difference to the training and tactics of al-Qaeda, especially when that is measured against the value of such information in court. That exchange was one year ago.
Mr David Kidney (Stafford, Labour)
I am really nervous about disclosing evidence that ends up putting at risk the lives of people who have helped us to collect the information. In relation to the right hon. Gentleman's reference to Lord Carlile, all that Lord Carlile mentions on page 215 of his review is
"the possible use as evidence in criminal trials of intercepted communications on public telephone systems".
I therefore wonder whether the right hon. Gentleman just supports Lord Carlile on public telephone systems or on the broader intercept debate.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
It is on the broader intercept debate. The line that is best thought through is that of the Newton committee, which considered the matter. It was not a committee nominated by Liberty. It included past Cabinet Ministers and all its members were, I think, Privy Councillors, one of whom had been a Minister with responsibility for security in Northern Ireland. They did not take the issue lightly and they came up with a procedure, which I shall discuss in a minute, that was designed to protect not just intercept evidence but other sensitive intelligence sources.
As an aside, the head of the FBI in the United States says explicitly that he would not have been able to bring many racketeers in the US to justice—a similar sort of problem—had he not had the opportunity to use intercept evidence.
Mr Lembit Öpik (Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs; Montgomeryshire, Liberal Democrat)
Although my intervention does not relate to that specific point, to avoid interrupting the right hon. Gentleman later, may I ask him the same question that I asked the Home Secretary about motive? In the north of Ireland, a great deal of progress has been made by considering the motives behind terrorism. Does he feel that the Government have paid sufficient attention to considering the motives of international terrorists? That is not to condone what they do, but perhaps we would get further with that than with having as our sole methodology the attempt to suppress the opportunity to terrorise, as the Government seem to be doing.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
To be fair to the Home Secretary, his first duty in this respect is to prevent the outcome of terrorist attempts. He cannot be held responsible for reading or misreading terrorists' motives.
To a large extent, many western Governments misread the motives of al-Qaeda. That is something that is not well understood. Of the five conditions of change or difference that the Home Secretary has laid down, I did not agree with his first one, which was about the nihilistic approach. There have been nihilists in the past, but the approach of al-Qaeda is rather more pointed than that. The Home Secretary properly says that his first job is to stop terrorists.
Mr Graham Allen (Nottingham North, Labour)
So that I am clear on Conservative policy, am I right in remembering from the earlier debate to which the right hon. Gentleman contributed that were he the Home Secretary, he would release all the people, in this context, now detained in Belmarsh?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
No, the hon. Gentleman is not right. I talked to the previous Home Secretary about this very issue. I said that whatever our differences and disagreements in public about the principles, I would not be calling for the release of any individuals, precisely because of the knowledge that he has. I do not think that Hansard would show what the hon. Gentleman describes as being my view.
Mr Douglas Hogg (Sleaford & North Hykeham, Conservative)
With regard to the Belmarsh detainees, it is clear that house arrest will not be employed against them in the near future. Does my right hon. Friend accept that if those people were to be released, it is fanciful to suppose that they would constitute a threat to the state, because they will be the subject of the most intense surveillance—and they will know that they are the subject of the most intense surveillance? It is implausible to argue that, in those circumstances, they will try to be involved in terrorism or to make contact with terrorists.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
My right hon. and learned Friend has shared some of his career with me in the Foreign Office. We are both fully aware of the power of intense surveillance, both in terms of controlling the operation of would-be terrorists and in providing information that is useful for prosecuting those would-be terrorists in future. I think that in substance my right hon. and learned Friend is right, although I would not have phrased the matter in quite the way that he did.
I return to the point that the Home Secretary made yesterday, which is that there is no alternative.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I will give way in a moment. I want to get to the end of this section of my speech.
Sir Patrick Cormack (South Staffordshire, Conservative)
It is on the point that my right hon. Friend is making.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
Very well.
Sir Patrick Cormack (South Staffordshire, Conservative)
I am provoked by my right hon. and learned Friend Mr. Hogg. If these people had not been in Belmarsh in the first place, they would not be subject to any sort of surveillance. Does that not illustrate the necessity of having a mechanism, whether the one being proposed or another one, for putting people who are suspected of terrorist activities under proper supervision?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I agree with the conclusion but not with my hon. Friend's premise. It does not follow that if these people were not in Belmarsh they would not be under surveillance. It is entirely likely that they would have been under surveillance if they had not been in Belmarsh. The thrust of the debate is about what the proper surveillance and control is. I hope that we can come to that in a moment.
I shall finish with the issue of the Home Secretary's allegation that there is no alternative. It picks up the point that was made earlier. We recommended taking up the Newton committee proposal that we put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in a way that protects our security services but that is also fair to the defendant. This is relevant to what Lord Carlile says. I cannot remember the page number, but Lord Carlile raises the problem of the Special Immigration Appeals Commission procedures and the fact that nothing has happened to respond to his own recommendations with regard to those procedures. That is one thing that would help, and we supported that idea.
We also supported also the idea of an extra charge. I think that the Home Secretary, from what he said earlier, is taking up the idea of acts preparatory to terrorism. We would also look at laws based on the American anti-racketeering laws, which are designed specifically to deal with the same problems of difficulties in obtaining evidence. We would look at any procedure that protected the traditional rights to justice and liberty of the British subject, but which would advance our ability to catch, to prosecute and to convict terrorists. As I think the Home Secretary agreed, that must be the main thrust.
That raises the issue of the way in which the Government are attacking the problem. In the area of security, the Government have a unique advantage. They have access to data about the activities of terrorists, and knowledge of what they could and could not do in bringing charges given specific problems of evidence. They should have spent the past three years analysing and identifying cases where a change in the law would allow prosecutions to be brought on the basis of available evidence. They should then have discussed those matters with the Opposition parties, and they would have undoubtedly received support for that approach. I am sure that I am right. I certainly speak for the Conservative party, and I suspect that I speak for the Liberal Democrats, too. I see the Liberal Democrat spokesman nodding.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
The right hon. Gentleman does not speak for my party.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I agree with the hon. Gentleman. I do not speak for the Liberal Democrats. I am glad to have that clarification. I would hate that confusion to be promulgated.
We should recognise that the problem that we face arises as a result of poorly drafted legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable, but we should not repeat it now. We should take time to get things right. That is why I offered support to the Government in extending part 4 powers for a limited time. The Home Secretary has said that that will not work. That begs the question why he laid a draft statutory instrument a few weeks ago to achieve exactly that outcome. The explanatory note to that SI read:
"The House of Lords expressly stated that the Act remains a valid, enforceable and effective enactment"
If the Home Secretary has concerns—to be fair to him, he expressed them to me in private some while ago, before we had this debate—he will remember that I said that we would be willing to put in place a short piece of primary legislation to ensure that the process worked. Far from doing nothing, the Opposition have done everything in their power not just to offer alternatives, but to create time for the Government to consider the alternatives and any other reasonable ways of finding an answer to this difficult problem.
As I have said, I agree with the Home Secretary that this is about a qualitatively different sort of terrorism that has been true, and known to have been true, for three and a half years, not three and a half weeks. What we are considering today should have been dealt with in the much longer term, as was promised by the Government, within six months of the publication of the Newton report, but they did not deliver.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
If it is the right hon. Gentleman's view that the part 4 law could be extended, what would his judgment be in those circumstances about what to do with the detainees in Belmarsh? Given that the Home Secretary has said that he does not believe that there needs to be house arrest, I am assuming that we would need part 4 to detain the people in Belmarsh. What would the right hon. Gentleman do with them?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
It is not for me to make judgments on the safety or otherwise of the individuals concerned. It is for us in this place to lay down the rules. One possible piece of primary legislation we could add would be to ensure that bail conditions amounted to the control orders that are laid out in the Bill, if need be, for the duration of three or six months, not in perpetuity and not applying to all British citizens. That is a possibility. That is as close as I will go in commenting on individual cases.
Yesterday, I asked the Home Secretary a number of questions on the substance of the Bill. I have to say that I received no answers to them. Under the proposals that are before us, for the first time in modern British history a politician will be able, by order, to constrain the liberties of a British subject. He would do that either on the balance of probabilities or merely on simple suspicion. He would do it for reasons and on evidence that may not even be known to the British subject who loses his liberty. Virtually every control order costs the subject some liberty. We should not differentiate on that basis. There is not a step change, as it were.
I repeat a quote which I used yesterday from one of the Law Lords, Lord Rodger. He said:
"The Government's assessment is . . . that it is not necessary to detain the British suspects in order to contain the threat that they pose."
That is implicit in the entire policy that the Government adopted, and it emerges in any event from paragraph 36 of the Home Office discussion paper "Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society", which was issued in February 2004. The document states that
"while it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify."
Mr Charles Clarke (Home Secretary; Norwich South, Labour)
Does the right hon. Gentleman recognise the following remarks?
"Those who advocate transferring to the judiciary the power to authorise detention before charge need to ask themselves whether decisions based on intelligence material can really be considered appropriate for judicial consideration . . . We would be asking the judges to perform what is, in essence, an Executive function."—[Hansard, 9 March 1994; Vol. 256, c. 298.]
Those were the words of the Leader of the Opposition when he was Home Secretary in 1994.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The quotation is from an exchange in which the current Prime Minister said that it was vital that when the liberty of subjects is curtailed, it should be done by the judiciary and not the Executive. The Home Secretary should check the entire exchange and fire his research assistant.
The Home Secretary told the Home Affairs Committee that the terrorist threat had not materially changed in the past year, so presumably the earlier comment about draconian powers being difficult to justify is still true. He reinforced the point with his comment that the security services do not believe that they need the full extent of the powers in this Bill at this point in time.
This question, which runs right through the debate, must be asked: what is the immediate emergency that demands that draconian powers against British subjects should be rushed through the Houses of Parliament without proper consideration, scrutiny or debate? What is the emergency that has arisen in the past 12 months that demands that we give the Home Secretary the right to fetter the liberty of British subjects—from restricting their ability to communicate right up to and including house arrest—without proper debate?
The most substantive concern about the procedure, and it is not the only concern, that the Home Secretary mentioned half a dozen times in his opening remarks is that it is proposed that a British citizen will face the loss of liberty on the decision of the Home Secretary, on suspicion alone and on evidence that the accused never sees. Why should that decision be made by a politician and not by a judge? Earlier today, the Prime Minister suggested that that will allow for speed, but in the most risky case a terrorist can be locked up for 14 days. The previous Conservative Government initiated that law and this Government have extended it. That period is far longer than is necessary for a judge to make a decision, even under the review procedure proposed by the Home Secretary.
There are good reasons why the Home Secretary should not take such decisions. Imagine the pressures on any politician, and on the Home Secretary in particular, after a terrorist outrage. Imagine the temptation to be better safe than sorry and to put away everybody, which are precisely the circumstances in which a miscarriage of justice will occur.
Yesterday, the Home Secretary unequivocally stated in his response to Mr. Oaten that he should take those decisions rather than a judge, because of the principle of Ministers' accountability. Within minutes, another Member asked him to comment on a particular case. The Home Secretary replied that he is unable to comment on individual cases, at which point the principle of Ministers' accountability unravels. The nature of the decision is that it is taken on secret grounds, which he cannot share with the House, and that he is unable to comment on the individual case itself. His principle is one of false accountability. Real accountability requires the House to be able to question and the Minister to be able to answer, and that level of accountability cannot exist on this issue.
Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
The matter concerns more than secrecy. It has never been a desired principle of our legal system that Ministers should come before the House to explain why they have decided that A should be locked up and that B should not. Even if secrecy were not an issue, in this country we have never sought to make such decisions in that way—we have left it to the judiciary, without attaching any kind of political process to it.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The right hon. Gentleman is entirely right. I was simply demonstrating the ludicrous nature of the thesis of ministerial accountability in individual cases.
Mr Desmond Swayne (Shadow Minister, Local and Devolved Government Affairs; New Forest West, Conservative)
The Prime Minister gave a rather different answer to the leader of the Liberal party, who asked precisely the same question earlier this afternoon. He said that the argument was the need for urgency, but we all know that the police already have the power to lock up people for 14 days.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
My hon. Friend is correct. The leader of the Liberal party also asked why judges should not act quickly—they act quickly on warrants in any event. The urgency issue is a complete red herring.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I will give way to the hon. Gentleman who, although we disagree about this matter, has an outstanding record.
Mr David Winnick (Walsall North, Labour)
Under the previous Administration, in which the right hon. Gentleman served, one of my constituents, a Sikh, was detained and imprisoned indefinitely without any court action. He was only released because the European Court of Human Rights ruled on the case of another Sikh, who lived in Bedford, as a result of which my constituent was allowed out of prison. There was no court process whatsoever.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I will take another intervention if I am wrong, but I believe that the hon. Gentleman is referring to the Chahal case, which occurred before a deportation. The Home Secretary got that point wrong when he discussed how the French hold people. In France, people are held prior to trial, which is different from holding someone indefinitely.
Mr David Winnick (Walsall North, Labour)
My constituent had lived here lawfully for many years and was the editor of a Sikh journal. He was accused of being involved with terrorism not in the UK, but abroad. However, no court process occurred and, so far as I understand it, there was no question of his being deported. He was just held in prison until the Home Secretary decided on the case. I took a deputation to see the then Home Secretary, who is now the Leader of the Opposition, on that matter. My point is that people have been locked up previously without court action, as we know from the 18B regulation, which was introduced at the start of the 1939 war.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
If the hon. Gentleman were right—I do not think that he is because we are discussing an issue that arises prior to deportation—two wrongs do not make a right.
Mr Graham Allen (Nottingham North, Labour)
I thank the right hon. Gentleman for his generosity in giving way again. Returning to his point about urgency, he mentioned the 14-day period for which people currently may be detained on suspicion of terrorist offences. Does he feel that that period is sufficient to accommodate the point made by my right hon. Friend Mr. Denham? Papers could be got together during that period to assess the possibility of a prosecution and the Director of Public Prosecutions could say yes or no, at which point the Home Secretary could, if it were necessary, seek a detention order from a High Court judge or an Appeal Court judge.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I do not have an instant answer to that question, which I would have to examine in some detail before answering. Throughout the short duration of proceedings on the Bill, we intend to examine all such issues to see whether we can amend the Bill to make it acceptable. We are, after all, trying to achieve the right balance between liberty and the protection and security of the public. My argument today is effectively that the balance in the Bill is wrong.
Mr Tam Dalyell (Linlithgow, Labour)
In one way or another, the right hon. Gentleman has great experience of the security services. Does he share the unease felt by some Members about the information on which Ministers must base their decisions? In 1968, Harold Wilson wanted to appoint the then MP for Lanark, Judith Hart, to his Cabinet. The security services objected on the ground that Mrs. Hart had a communist background, but they had identified the wrong Mrs. Hart, who had nothing to do with the MP for Lanark and who was the wife of a distinguished professor at the university of Oxford. The Home Secretary knows that the security services did not distinguish themselves during the miners' strike—and we will leave weapons of mass destruction out of it.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
As ever, the hon. Gentleman makes his point elegantly.
That brings me to the question of the evidence on which the Home Secretary makes his decision. The Home Secretary proposes that control orders below the derogation threshold—tagging, communication restrictions and the like—should be made on the basis of reasonable suspicion, which is an even lower standard of proof than the assumption of the security services in the case of Judith Hart. Incidentally, the standard of proof is so low that it implies a large number of control orders, and I would like to hear what the Minister for Crime Reduction, Policing and Community Safety thinks will happen when she makes her winding-up speech.
Secondly, though technically capable of challenge, the evidence will not all be seen by the accused—Judith Hart would not have known what she was accused of under these circumstances. Reports coming out of SIAC indicate that, sometimes, the evidence put at the secret hearing is materially different from that put at the open hearing, so much so that the nature of the actual charge is different in the closed hearing from that at the open hearing. That means that, completely contrary to all British principles of justice, the accused will not be able to answer the charge, even if he is absolutely innocent and has a cast-iron alibi.
That brings me again to the nature of the evidence. The former Foreign Secretary, Mr. Cook, has expressed doubts about resting such serious action on unchallenged intelligence data because of the inherently unreliable nature of the information. He has a significant point, which was made even more firmly by the Father of the House.
As the Father of the House says, in previous years I have had various dealings with the agencies. It has become apparent to me that no matter how professional the agencies are—and clearly there have been unprofessional actions on their part—they are always entirely dependent on the accuracy of their sources. These sources are not James Bond with a Minox camera. Generally, they are associates of the target and are motivated by many things—money, greed, envy, malice, hatred and, sometimes, a wish to remove a rival. We are not talking about the most impartial of sources, leaving aside the gross error that the Father of the House mentioned. It is on the basis of suspicion, based on evidence such as that, that the Home Secretary wants to take for himself the powers to constrain the liberty of British subjects.
Mr Douglas Hogg (Sleaford & North Hykeham, Conservative)
May I reinforce my right hon. Friend's point by asking whether he read the letter in The Daily Telegraph yesterday from a man whose father was interned on the corrupt evidence of an informer—a particular case of someone being falsely accused? May I also remind my right hon. Friend that the Leader of the House was prosecuted at the Old Bailey, having been framed by the South African security services?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
My right hon. and learned Friend has a brilliant record in this area and remakes a good point that he made yesterday, which reinforces my point. We are talking about taking away people's liberty on the basis of suspicion, based on that sort of evidence, and without the scope for challenge.
Mr Robert Marshall-Andrews (Medway, Labour)
Will the right hon. Gentleman reflect on the remarkable power in paragraph 4(3)(c) of the schedule—one of the comprehensible parts of the schedule—which says, in terms, that the Secretary of State shall not be required to disclose to the court any information or material that he has but does not intend to use? In other words, by statutory precept the Secretary of State is able to conceal disclosure that might be exculpatory.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
That is an excellent point, which reinforces my concern. I am presuming in all of this a Home Secretary of impeccable motivation who is given information that he will be encouraged not to allow to be challenged. That is simply not acceptable, because the price of mistakes in this area is very high. A miscarriage of justice is always a matter of real concern and, even with these control orders, such miscarriages of justice can wreck lives, even at this apparently low level.
Imagine the impact on a software designer of being denied access to the internet, or on a salesman of being denied access to telephones—it would be the end of his career. In causing harm to the individual, that will give ammunition to the enemies of the state that we are trying to stop with the Bill. The chairman of the Bar Council said:
"Disproportionate measures risk radicalising the community from which a detainee comes. That may make this country less rather than more safe."
Mr John Denham (Southampton, Itchen, Labour)
I should like to be quite clear as to where the right hon. Gentleman's argument is leading. He is making a case for saying that we should act only on the basis of evidence that can be heard in a criminal court and subject to those standards of evidence. It is a reasonable case if he wishes to make it. However, all of the arguments that he is currently making about evidence would mean that no type of control order and no measure short of a full criminal prosecution could be envisaged. Is that what he is saying to the House?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The right hon. Gentleman—who, again, has a distinguished record in this area—is reflecting a suggestion that I made earlier, namely, a distaste for control orders. I am laying out a series of hurdles that we have to get over. One is the question of the judge. Mr. Betts made a good point, saying that the fact that the judge only reviews the matter and judges whether the Home Secretary has acted unreasonably makes the level of proof that much lower again. We have an accumulation of effects that reduce the proposal to acting on suspicion, the dangers of which are large.
To answer the right hon. Gentleman directly, the question that we will be pressing through the course of the Bill is whether it is capable of being turned into something consistent with long-standing traditions of British justice and will help in the fight against terrorism, rather than give ammunition to our enemies.
Mr William Cash (Stone, Conservative)
Has my right hon. Friend noticed that the provisions relating to the repeal of sections 21 to 32 in part 4 take effect on
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I accept my hon. Friend's expertise in the matter. I had not considered the point and it is not central to the thrust of what I am saying. However, I take his point—it indicates, yet again, that this is an ill-thought-through Bill.
Mr John Denham (Southampton, Itchen, Labour)
The right hon. Gentleman must pursue the questions that he has set out in these discussions. He has been in his job for some time and must have formed a view now as to whether there is a group of people who cannot be prosecuted in the courts, but against whom action needs to be taken. Does he accept that such a group exists, in which case could he tell the House today what action he thinks should be taken against it?
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The right hon. Gentleman has been in his job for quite a time, too, and he knows that I am paid to make decisions and not to think out loud. We are trying to ensure that the measure works as well as it can. Also, we have said, in terms, that there are other Bills or laws that ought to be enacted to give the Home Secretary greater powers and to widen his net. At the moment, there are no such powers. As the Home Secretary has said, there have been 701 arrests, approximately 400 prosecutions—a little less than half on terrorist issues, with many others on immigration and other issues—and 17 convictions so far. For three and a half years we have managed to maintain the safety of the public, and the security services have done a very good job in that regard.
What has changed in the past three and a half weeks? If the Home Secretary had been saying for six months, "Look, we are concerned about British subjects being a terrorist threat and we need to deal with this," and if we had talked the matter through in some detail and been able as a House of Commons to come to a considered balance between the threat to the public—which is never as quantifiable as Mr. Denham describes, incidentally—and the ancient rights of the British people, I would be in a frame of mind much more amenable to his question.
We now have essentially two weeks to try to put together the follow-on from a Bill that itself was so ill drafted that it has fallen to pieces in the hands of the Government, and that is not a very good way to secure the future security, or indeed the future liberty, of British subjects.
I was rather sorry that the Home Secretary was not present at the previous debate, because I was going to tease him a little. He and I were at university at approximately the same time, and no doubt we both read the fashionable left-wing writers in those days.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The right hon. Gentleman shakes his head and claims that only I, a Conservative student leader at the time, read them when he did not. Fair enough. But one of the things that they all clearly argued was that one of the primary aims of a terrorist is to provoke a reaction from the state, which in turn will radicalise a part of the population and recruit them for the terrorist cause. There is a serious danger of that if the use of these control orders is seen to be unjust, even by a minority, and that alone should be a telling argument for the power being exercised by the judiciary, not by the Executive.
After three years in which none of these powers has been available against British citizens, at a time when the Home Secretary himself says that the security risk is the same as it was a year ago and the security services and police say that they currently do not need the most draconian powers listed here, why do we suddenly need this measure in 14 days flat in the shadow of a general election? The Prime Minister said that the security services say that they need them. Did they tell him that in the past few weeks? Did they tell him that they needed them instantly? I doubt it.
To reiterate, the Home Secretary is taking powers to curb the freedom of British subjects by order, on suspicion, based on limited and possibly doubtful evidence. He does this after his own Department said that the measure was draconian and unjustifiable less than a year ago, and he does it after no apparent change in the circumstances, in a rushed Bill with wholly inadequate scrutiny in both Houses of Parliament. That cannot be the way for a democracy that believes in the rule of law to proceed.
Lord Lloyd of Berwick, a former Law Lord who has great expertise in this area, said that the Home Secretary
"can confine British citizens for the first time in our history to house arrest. There are upwards of a thousand British citizens suspected of having links with Al-Qa'eda terrorism. Up until now, it has been possible to contain the threat without these special powers. The question is: why has it suddenly become necessary to impose these quite exceptional control orders?"
That is the question that the Home Secretary must now answer.
Mr Brian Sedgemore (Hackney South & Shoreditch, Labour)
As this will almost certainly be my last speech in Parliament, I shall try hard not to upset anyone. However, our debate here tonight is a grim reminder of how the Prime Minister and the Home Secretary are betraying some of Labour's most cherished beliefs. Not content with tossing aside the ideas and ideals that inspire and inform ideology, they seem to be giving up on values too. Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly. It is not just the Government but Back-Bench Members who are to blame. It seems that in situations such as this, politics become incompatible with conscience, principle, decency and self-respect. Regrettably, in such situations, the desire for power and position predominates.
As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today, if hon. Members will pardon the oxymoron, I am reminded that our fathers fought and died for liberty—my own father literally—believing that these things should not happen here, and we would never allow them to happen here. But now we know better. The unthinkable, the unimaginable, is happening here.
In their defence, the Prime Minister and the Home Secretary say that they are behaving tyrannically and trying to make nonsense of the House of Lords decision in A and Others as appellants v. the Home Secretary as respondent because they are frightened, and that the rest of us would be frightened too if only we knew what they will not tell us. They preach the politics of fear and ask us to support political incarceration on demand and punishment without trial.
Sad to say, I do not trust the judgment of either our thespian Prime Minister or our Home Secretary, especially given the latter's performance at the Dispatch Box yesterday. It did not take Home Office civil servants or the secret police long to put poison in his water, did it? Paper No. 1, entitled "International Terrorism: the Threat", which the Home Secretary produced yesterday and I have read, is a putrid document if it is intended to justify the measure. Indeed, the Home Secretary dripped out bits of it and it sounded no better as he spoke than it read. Why does he insult the House? Why cannot he produce a better argument than that?
How on earth did a Labour Government get to the point of creating what was described in the House of Lords hearing as a "gulag" at Belmarsh? I remind my hon. Friends that a gulag is a black hole into which people are forcibly directed without hope of ever getting out. Despite savage criticisms by nine Law Lords in 250 paragraphs, all of which I have read and understood, about the creation of the gulag, I have heard not one word of apology from the Prime Minister or the Home Secretary. Worse, I have heard no word of apology from those Back Benchers who voted to establish the gulag.
Have we all, individually and collectively, no shame? I suppose that once one has shown contempt for liberty by voting against it in the Lobby, it becomes easier to do it a second time and after that, a third time. Thus even Members of Parliament who claim to believe in human rights vote to destroy them.
Many Members have gone nap on the matter. They voted: first, to abolish trial by jury in less serious cases; secondly, to abolish trial by jury in more serious cases; thirdly, to approve an unlawful war; fourthly, to create a gulag at Belmarsh; and fifthly, to lock up innocent people in their homes. It is truly terrifying to imagine what those Members of Parliament will vote for next. I can describe all that only as new Labour's descent into hell, which is not a place where I want to be.
I hope that—but doubt whether—ethical principles and liberal thought will triumph tonight over the lazy minds and disengaged consciences that make Labour's Whips Office look so ridiculous and our Parliament so unprincipled.
It is a foul calumny that we do today. Not since the Act of Settlement 1701 has Parliament usurped the powers of the judiciary and allowed the Executive to lock up people without trial in times of peace. May the Government be damned for it.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I wish Mr. Sedgemore well in his retirement if that was indeed his last speech. Although I do not agree with all the points that he made, I admire his passion and commitment.
We are dealing with extraordinarily complex circumstances. It is easy for us to make the sort of speech that the hon. Gentleman delivered, draw on historical values and discuss the strong principles of justice that are changing. I do not intend to make such a speech. I shall leave that to others who are more eloquent and have a stronger sense of history than me. In the next 20 minutes or so, I shall treat the subject as a practical issue, ascertain whether we can find a way forward and bluntly analyse where there is agreement and disagreement.
Let me begin with agreement. There is probably cross-party agreement that none of us underestimates the issues that we are tackling in this post-9/11 era. None of us underestimates the serious terrorist problems. The Home Secretary's analysis of how matters have changed was spot on. The global implications that he outlined are especially important. They have made the world in which we live different—not only the type of terrorists but their ability to operate globally, with all the communications systems that exist, have changed enormously.
I think there is also agreement—cross-party agreement—on the fact that we have due respect for the intelligence services, and owe them a great debt of gratitude for what they have done over the past three or four years. We want, on a cross-party basis, to give them all the tools that they need in order to do their work. There is also agreement, I believe, that we must do something about the current situation. I am uneasy about what may happen in four or five weeks. If we have no legislation we will create a vacuum, and I do not think we want that. Something must be done to deal with the difficult circumstances.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
I took the precaution of finding out before the debate what would happen if the Bill were not passed. I do not know whether it will be passed at this point, but if it falls there will still be time on the last day for part 4 to be extended by however many months are necessary. The Government can do that instantly if they need to.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I will say later whether I think that that is the right thing to do. My starting point is that we should all agree that we must achieve something on
There is a fourth area of agreement. I think that the Government have been forced to reach that agreement, but in any event they now agree with us that the current measures are not acceptable. We have felt that for some time, as have the official Opposition. Because of the Law Lords' ruling, we have at least secured an acknowledgement from the Home Secretary that we cannot maintain the present situation, particularly in relation to the Belmarsh detainees.
Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)
For the past four years, while we have been arguing collectively with the Government, we have consistently said that there is an alternative to detention without trial and have consistently proposed constructive alternatives. The Government have put themselves in this position by refusing to listen during those four years.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
When my hon. Friend was doing the job that I am now doing, he was clear about our determination, whenever we had to decide what to do with a derogation, not to ignore it but to suggest alternatives. I take that approach as well. We have made such suggestions at various times, and we could have had this debate some time ago, but at least we are having it now, and I think it is agreed that we must now move on.
There is agreement on another matter—helped, I think, by what I considered to be a constructive speech by the Home Secretary. He reiterated that prosecution should be the starting point, and I think we all agree that we should seek prosecution in these cases. Nevertheless, I take the point made by a number of Members that it would be helpful to enshrine that starting principle in the Bill. At present, we have only the Home Secretary's words, and, as some of his hon. Friends have suggested, the principle does not come across strongly enough.
There is some agreement on another issue, which, although we have not discussed it yet, is relevant. Our long-term objective is an international situation in which deportation is a proper solution. I shall deal later with the respects in which we disagree with that, but there is surely consensus that we must be heading there at some point.
I am now convinced of the Home Secretary's arguments that in relation to the current detainees, intercept communication would not have been a useful tool for the purpose of achieving prosecution. I shall deal with the differences between us later, but in the context of that narrow aspect I accept that intercept communication would not have dealt with the existing problem.
There has been some interesting movement on control orders this afternoon. For some time we have argued against a black-and-white approach, suggesting that another tool is needed to deal with the complex issues and that control orders would be useful. There are differences on how they should be introduced, and I shall say something about that shortly, but at least there seems to be cross-party consensus that control orders have a role to play. David Davis, who is having a little natter at the moment, implied earlier that the Conservatives were prepared to consider them in some shape or form. Let us bank that, and see if we can move on. We may not like control orders—I am not wild about them myself—but hey, we are trying to find a sensible solution to all these problems.
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
I accept that one may have to swallow the extremely unpalatable, but every hon. Member should be concerned about the principle of control orders. It is a departure from our established principles and threatens our liberties greatly.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I do not underestimate any of that, and I shall explain how we can make the control orders work and deal with our principles. One has to have other schemes to deal with this issue in addition to the possibility of jail. We have been prepared to say that we will look at control orders—subject, obviously, to the principles that I shall outline later.
Ms Clare Short (Birmingham, Ladywood, Labour)
I am not convinced of the case for control orders. I am absolutely convinced of the case for keeping people under surveillance. In fact, I want them to be listened to on the telephone. I want our security services to find out who they are in touch with and get the information if there is a plot. We can then use that information and arrest. The hon. Gentleman does no honour to his party by so quickly giving away the principle.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I would not say that I have given that away quickly, or that an enormous issue of principle is involved in control orders. The issue is: how do we impose those control orders and on what standard of proof do we impose them? Those are pretty big principles and I shall fight for them, but I am prepared to throw control orders into the equation of the debate to try to find an alternative to holding detainees in the way that they are currently held.
The next area where there is some agreement, or at least where some progress has been made, is the Home Secretary's acknowledgement that there needs to be some judicial involvement in this process. We disagree about where that should be, but it is worth putting on the record that we welcome the fact that, in arguing that the judicial process should be a reviewing mechanism, he has at least moved to strengthen the reviewing mechanism. Derogating control orders will be referred automatically within seven days and judges will be able to look at the evidence independently, rather than just making an assessment following the Home Secretary's decision, which is welcome.
There remain peculiarities in the proposals. The point has been made about the powers that judges would have to redirect the Home Secretary. That raises the question whether the Home Secretary would be bound to listen or could play ping-pong back and forth between the judges.
There is agreement on a point about which I know the Home Secretary cares a lot. He argues continually that he has responsibility for national security. We agree, but we do not necessarily agree that that means he must have the power to make these decisions separate from a judge. We believe that he could keep and fulfill that responsibility while meeting the requirements. The Home Secretary has responsibility for national security, but not for reviewing individuals case by case in the way he suggests.
Mr Robert Marshall-Andrews (Medway, Labour)
The hon. Gentleman speaks warmly of the Government's advance towards judicial review, but has not he picked up the point that there is no judicial review of a control order that deals with the restriction on movement, the restriction in respect of work, the restriction in respect of association, the restriction in respect of residence, where someone can live, whether they have a passport, whether they are to be tagged, who they talk to, and whether they can talk or not? There is no judicial review on any of those issues. Have the Liberal Democrats not picked that up yet?
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I think that the hon. and learned Gentleman is trying to be helpful, but I was going through the bits that I agree with. If he will give me time, I shall get on to the bits that I disagree with. However, let us try to be constructive and say, "Where can I, from my perspective, bank an agreement?" On derogating control orders, there has been some movement from the Government to acknowledge that the judicial review process should be strengthened. I do not think that that is the right way forward, but I acknowledge that they have made some movement in that direction.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
Before I am criticised for supporting the Government, I would like to get on to the bits that I disagree with, but I give way.
Mr Douglas Hogg (Sleaford & North Hykeham, Conservative)
Even if one is trying to improve judicial oversight, it is essential that the interests of the detained person are properly represented. Does the hon. Gentleman accept the critique by Lord Carlile of the role of special counsel? It is plain that the special advocate can barely discuss a case with the detained person.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I entirely agree with the right hon. and learned Gentleman. That is indeed one of the weaknesses that we are trying to highlight.
Having acknowledged some movement on areas of agreement, let us now move on to areas of disagreement and then perhaps seek some ways forward. I want to deal quickly with deportation. We disagree because we would like much stronger reassurances on human rights issues. It is not satisfactory for Ministers to be exchanging memorandums on these issues. The orders must be binding and tested, and we must have some reassurance that, before we proceed with any deportations, proper human rights principles are in place.
We disagree about intercept communications, but the Home Secretary said that he wants to leave the door open. When he made his statement yesterday, I suggested that one way to make progress would be to re-establish the Newton committee or some other body to consider sensible ways in which we could use intercept in certain cases in six months' time.
The main area of fundamental disagreement is the point at which the judicial process kicks in. The Home Secretary believes and insists that it should be after the event; we believe that it should be at the beginning of the process. There is a big gulf between us and it is difficult to see how we can find a way forward as the Bill proceeds through Parliament. It is an important principle—not just a matter of having a timeline and deciding when things should happen—because a politician is being given the ability to restrict the liberties enjoyed in this country solely on the balance of probabilities. That represents a break with years of our history and the Liberal Democrats are extremely uncomfortable with it.
Mr Rob Marris (Wolverhampton South West, Labour)
I share the hon. Gentleman's concerns, as I believe that the Home Secretary should make an application to a judge in the first instance to get the process moving. My right hon. Friend has already agreed today to have another look at the problem. If, after further reflection, it were decided that the application should first go to a judge rather than to the Home Secretary, would the Liberal Democrats support the Bill?
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I want to be as transparent and open as possible about this matter, and if we saw some real movement, we would certainly be in the business of debating some of our other concerns about the Bill.
That deals with one critical issue. I am trying to be as helpful as possible, so I shall move on to raise some further issues on which we want reassurance. My hon. Friend Simon Hughes provided another compelling reason for ensuring that judges are involved at the start of the process when he referred to the continual embarrassment of the Home Secretary in having his decisions overturned by judges as time goes on. That is a strong argument.
Our next major disagreement is over standards of proof. I acknowledge that the wording has now moved a little in the right direction, but not far enough for us. As the Bill proceeds, we must carefully examine the different standards of proof that apply, particularly when we are talking about depriving individuals of their liberty. The highest standards must apply when we are contemplating house arrest or detention, but I disagree with the idea that it is acceptable to have reduced standards of proof for some lower-level control orders. Fundamental issues about liberty may still be at stake when methods other than house arrest—curfew and tagging, for example—are adopted. People are deprived of their liberty in those cases, too, so we would require a great deal of convincing that lower standards of proof were acceptable.
The same applies to the issue of whether evidence can be heard. Mr. Denham, the Chairman of the Home Affairs Committee, intervened on the shadow Home Secretary to ask about the effect of these issues on the operation of control orders. I accept that, in some circumstances, it is not possible to bring in all the evidence, but we want a sensible debate with the Government about ensuring that as much evidence as possible, and the highest possible standards of proof, are used in these cases.
Mr Rob Marris (Wolverhampton South West, Labour)
The hon. Gentleman is trying to be constructive, as I am. Would he accept the balance of probabilities as a standard of proof in clause 1 cases? Would that be acceptable?
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I am not prepared to concede that at the moment. I would want further discussions about a range of possibilities on standards of proof.
Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
Does my hon. Friend agree that it is important to make it clear that a judge's decision relates to non-derogating as well as to derogating orders? Both are eventually subject to judicial review, contrary to what was stated earlier, but should not the initial decision in respect of both types of order be made by a judge?
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
I agree with my right hon. Friend.
On derogation, we have a peculiar situation. The Home Secretary argues that he will not require derogation in respect of house arrest, but seems to want to have it available in the bottom drawer of the Bill so that he can revisit it at some point. So far, no one has made it clear why a derogation may be necessary. The relevant wording is quite powerful and makes it clear that a derogation should be imposed only when there is an
"exceptional situation or crisis that affects the whole population and constitutes a threat to the organised life of the community of which the state is comprised."
We should be under no doubt that a derogation demands quite a high level of threat. Moreover, the House should recall that this country is the only member of the Council of Europe that requires a derogation.
Mr Dominic Grieve (Shadow Attorney General, Home Affairs; Beaconsfield, Conservative)
A moment ago, the hon. Gentleman raised the question of the standard of proof. It is all very well to say that we want to raise it, but the central principle of normal justice systems is that the other side is able to put its case, which means that it must be in a position to answer an allegation. Does he agree that we must be aware that buzz phrases such as "standard of proof" and "balance of probabilities" can easily become meaningless when the system being devised is unfair?
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
The hon. Gentleman is right, which is why judges should make the assessments, and why we must ensure that defendants understand the evidence. For people to be able to defend themselves, they must be able to understand the charge. Preventing miscarriages of justice means that they must also be able to see the evidence.
Mr Douglas Hogg (Sleaford & North Hykeham, Conservative)
The hon. Gentleman is approaching the question of whether there is a threat to the life of the nation. Is he aware of what Lord Hoffmann said in the Belmarsh case? He said:
"I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt but that we will survive Al-Qaeda."
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
The right hon. and learned Gentleman makes an important point. The question of the derogation must be matched against the judgment of the Law Lords, to make sure that we meet the very strong demands that derogation would require when we take away people's liberty.
My second point in respect of derogation is that we are not convinced that some of the lesser issues covered by control orders would not also require some form of derogation. When the Home Secretary made his statement yesterday, I asked what legal advice he had received on that question. It would be helpful if that advice could be published within the next 48 hours, for example, so that we can see what assessment has been made as to whether the various control orders require a derogation.
Mr David Davis (Shadow Secretary of State for Home Affairs and Shadow Home Secretary, Home Affairs; Haltemprice & Howden, Conservative)
The hon. Gentleman spoke about meeting the Law Lords' requirements, but he ought to read everything that they said. Several of the Law Lords said that they did not think that this injustice could be solved by extending it to all British citizens.
Mr Mark Oaten (Shadow Secretary of State for Home Affairs, Home Affairs; Winchester, Liberal Democrat)
The shadow Home Secretary mentions another interesting matter. We have not probed the Home Secretary on that yet, but it will be interesting to know how far he expects the Bill to help in an area where he has previously lacked legal support. We have been talking about foreign nationals, but we have not asked how much the Home Secretary and the intelligence services believe they need the Bill to help with British nationals. When the Minister for Crime Reduction, Policing and Community Safety winds up the debate, I hope that she will say whether she envisages that about 100 or 150 control orders will be issued in the future. Conversely, is it her assumption that the proposed new system will deal with roughly the same numbers of people as is presently the case with foreign nationals?
I have set out where my party agrees with the Government in this matter, and where we disagree. I now want to float some suggestions for a possible way forward in a number of areas. We could achieve cross-party support on control orders and the point at which the Home Secretary would become involved in the process. In exchanges at Prime Minister's Question Time today and during the Home Secretary's statement yesterday, it became clear that there were two barriers to the Home Secretary's agreeing to our suggestion that he should apply to a court in the first place. First, he argues strongly that he has national responsibility for making the decision. We believe that he would not be derogating from that duty if he assessed the intelligence information himself, made a judgment and then applied to a court. I cannot see how that route would leave him open to criticism for failing to meet his responsibilities.
Secondly, objections were expressed both by the Home Secretary and strongly today by the Prime Minister about the time issue. Again, I think we can overcome them. As hon. Members have said, individuals can currently be held for 14 days. I have received legal advice that that may not be adequate to help the Home Secretary with the difficulty of dealing with terrorists. The ability to hold an individual for 14 days is based on the assumption of an investigation taking place and a charge being made. If that were the case, we would work constructively with the Home Secretary to find another way to allow him a limited emergency power for a short period on the assumption that all that was being done was that an individual was being held before the Home Secretary applied to the court for an interim order to start the judicial process. We accept that all the papers and arguments might not be forthcoming within 24 hours. However, because an interim order would be in operation, we would allow some time to elapse so that the papers and the full case for a control order could be advanced. I believe that that meets the concerns about the Home Secretary fulfilling his responsibilities for national security. It would meet the concerns that he and the Prime Minister have expressed about time scales, as he could act the minute that he had the intelligence information. It would also meet the concerns of Liberal Democrats and other hon. Members about the need for a proper judicial process. I hope that in Committee we will have a sensible dialogue about those issues.