Measures to Combat Terrorism

– in the House of Commons at 12:31 pm on 26th January 2005.

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Photo of Charles Clarke Charles Clarke Home Secretary 12:31 pm, 26th January 2005

With permission, Mr. Speaker, I should like to make a statement about the future of the powers in part 4 of the Anti-terrorism, Crime and Security Act 2001. These matters have of course received the closest attention in this House and in the other place, through the work of the Intelligence and Security Committee, the Home Affairs Committee, and the Joint Committee on Human Rights—to all of which I pay respect. I appreciate, too, the valuable work carried out by a Committee of Privy Councillors under the chairmanship of Lord Newton of Braintree, and of course we have had the regular advice of Lord Carlile of Berriew on the operation of both the Anti-terrorism, Crime and Security Act and the Terrorism Act 2000. This work shows the comprehensive scrutiny that both Houses give to these difficult issues. And of course, what I am saying today follows on from the consultation paper that my predecessor published in February last year, which has informed the conclusions that I am presenting today.

As the House well knows, the part 4 powers are immigration powers. They enable me to certify and detain pending deportation suspected international terrorists whom, because of our international commitments, we cannot remove. Despite concerns when we legislated for part 4, the powers have been used very sparingly, with only 17 people certified since the powers were introduced. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose—and that judgment has been upheld regularly by the Special Immigration Appeals Commission.

On 16 December last year the House of Lords Judicial Committee handed down its judgment on the compatibility of the part 4 powers with the European convention on human rights. The members of the Committee quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared section 23 of the Anti-terrorism, Crime and Security Act incompatible with articles 5, on the right to liberty, and 14, on freedom from discrimination, of the ECHR. They did so for two main reasons—first, because they considered that the part 4 powers were discriminatory in that they only applied to foreign nationals, and secondly, because they were not proportionate as a response to the threat that we faced from terrorism.

It is true that the part 4 powers apply only to foreign nationals. The reason for that is that when we looked at the very real threat that we faced from international terrorism in the immediate aftermath of the terrible events of 9/11, we were able to identify a small number of foreign nationals resident here who posed a particular danger to us. Prosecution for their activities was not possible for evidential reasons—although two of those certified and detained under the part 4 powers have since been convicted of criminal offences—and there was no realistic prospect of deporting them.

The part 4 powers were the means of containing those foreign nationals' activities where prosecution was not possible. I can tell the House that the Government believe that the powers have played an essential part in addressing the current public emergency, because they have been successful in containing the threat posed by those certified and detained under them.

Moreover, the powers have had another effect. It is clear from the intelligence reports that I have seen that the existence and use of the powers have helped to make the UK a far more hostile environment for international terrorists to operate in, with the result that some have been deterred from coming here, and others have left entirely, to avoid being certified and detained. I am, of course, pleased about that, and reaffirm that the UK must never be regarded as a soft touch or a safe haven for terrorists.

The Government believed that the part 4 powers were justified, because the threat appeared to come predominantly, albeit not exclusively, from foreign nationals, because foreign nationals do not have the same right to be here as British nationals, and because against the background of UN Security Council resolution 1373's strong condemnation of terrorism, it was necessary to take positive action against peripatetic terrorists who happened to be living here.

That said, however, I accept the Law Lords' declaration of incompatibility with the ECHR of section 23 of the Anti-terrorism Crime and Security Act. I accept, too, the Lords' judgment that new legislative measures must apply equally to nationals as well as to non-nationals. But we still need to decide how to deal with the threat presented by terrorists without the assistance of the part 4 powers.

My starting point is the threat that we face. That is, of course, a heavy responsibility for all concerned, and one that has the highest priority of all. That is why I have to take account of events happening around the world, and in particular here at home. I have had frequent discussions with the director general of the Security Service and the Metropolitan Police Commissioner since my appointment. I am left in absolutely no doubt that nothing has happened recently that diminishes the threat, or calls into question the state of public emergency threatening the life of the nation.

The 2001 Act was enacted because there was an unprecedented terrorist threat to the UK, which was assessed to emanate from al-Qaeda and those individuals and groups within the loosely co-ordinated series of overlapping terrorist networks linked to it. Our understanding of the threat has advanced since then, both from an increasing intelligence base and through the investigation of both successful and thwarted attacks. It is clear that some British nationals are now playing a more significant role in these threats. At the same time, networks consisting of foreign nationals with international links remain.

In the past year, we have seen the multiple attacks in Spain in March 2004, attacks at al-Khobar in Saudi Arabia in May, the attack on the Australian embassy in Jakarta, Indonesia, in September, an attack on an Israeli-owned hotel in Egypt in October, and the attack on the US consulate in Jeddah in Saudi Arabia in December 2004.

In these circumstances, I repeat that my judgment is that there remains a public emergency threatening the life of the nation. The absence of the part 4 powers would present us with real difficulties, so I now set out the ways in which we can meet this threat.

The Government believe that the answer lies in a twin-track approach: specifically, deportation with assurances for foreign nationals whom we can and should deport, and a new mechanism—control orders—for containing and disrupting those whom we cannot prosecute or deport.

I shall deal first with deportation with assurances. As the House knows, we have been trying for some time to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking memorandums of understanding with their countries of origin. We are currently focusing our attention on certain key middle-eastern and north African countries. I am determined to progress this with energy. My noble Friend Baroness Symons of Vernham Dean visited the region last week. She had positive discussions with a number of countries, on which we are now seeking to build.

I want to make it clear that prosecution is, and will remain, our preferred way forward when dealing with all terrorists. All agencies operate on that basis, and will continue to do so, but all of us need to recognise that it is not always possible to bring charges, given the need to protect highly sensitive sources and techniques.

There is a widespread misconception that if we could only adduce intercept as evidence, we would be able to prosecute those detained. However, the review of intercept as evidence found no evidence to support this, and I have consequently made a written statement today, explaining that the Government do not intend to change the existing arrangements. Intercept provides only part of the intelligence against individuals, and sometimes a small part; it does not stand alone. Some of the material that we have in these cases is inadmissible, and other material, while technically admissible, could not be adduced without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of sources at risk. So there are cases in which we remain unable to prosecute. However, that does not mean that we should do nothing to forestall suspected terrorists or to prevent them from planning, assisting or otherwise supporting those willing to carry out attacks.

The Government have therefore decided to replace the part 4 powers with a new system of control orders. We intend that such orders be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity—whether international or domestic—and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities. Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat that each individual posed. Such orders would be preventive and designed to disrupt those seeking to carry out attacks—whether here or elsewhere—or who are planning or otherwise supporting such activities. They would be designed to address directly two of the Law Lords' concerns: discrimination and proportionality.

I turn to the key features of the scheme. The Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an individual is, or has been, concerned with terrorism. If the answer to that question is yes, and if the Secretary of State considers such action necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; and restrictions on access to telecommunications, the internet and other technology. At the top end, control orders would include a requirement to remain at their premises. The controls to be imposed under the new scheme will not include detention in prison, although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment.

There will be independent judicial scrutiny involving the hearing of evidence, in open and closed session, against the imposition of the order or any subsequent variation of its provisions. There will be a mechanism for reviewing and modifying conditions as circumstances warrant, subject again to independent judicial scrutiny. Other safeguards will include the Secretary of State reporting regularly to Parliament on the number of orders made. There will be independent annual review of the powers—as now with the part 4 powers—and annual renewal of them. I am considering separately what role the Intelligence and Security Committee of this House might play in that regard.

The Government of course intend to ensure that any future powers that we take in legislation are wholly compatible with the provisions of the European convention on human rights, and if necessary we will employ a new derogation to that effect. I have sought advice from the director general of the Security Service and the Metropolitan Police Commissioner about the powers that we need to deal effectively with the public emergency threatening the life of the nation, and to deal with British and foreign nationals whom we have grounds to believe are engaged in terrorism. On the basis of that advice, my judgment is that the range of powers that I have outlined, including a criminal sanction for breach, will be essential if we are to contain the threat that those who may be made subject to control orders pose to public safety.

I told the House on 16 December that I intended to renew the part 4 powers as necessary. However, my desire is to introduce a Bill to give effect to control orders as soon as is practicable. I can see advantages in enacting the Bill, if it is possible to do so, to a time scale that makes renewal unnecessary. Should that not be possible—I acknowledge that there are serious time pressures—I will seek to renew the part 4 powers for the limited time necessary to put the new arrangements in place. I will need to lay the renewal order in draft, and I will do so tomorrow.

For this reason, I will not be revoking the certificates on the current detainees between now and when the new legislation is in place, unless, of course, the threat that they pose changes and they no longer meet the criteria for certification. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose. That judgment has been upheld by the Special Immigration Appeals Commission. We believe that those detained under the part 4 powers continue to pose a threat to national security, and that we should seek to ensure that we take all necessary steps to address that threat.

These are all very difficult issues, with no easy answers. A careful balance has to be struck between the rights of individuals and the protection of society against threats from organisations that seek to destroy central attributes of our society, such as freedom of belief, speech and association, freedom of expression and even our central democracy. All parts of our society—Parliament, the legal system and the media—need an open debate about this so that we understand the complexities of the security situation that we face. I will shortly be bringing forward detailed proposals for the best way to conduct that debate.

My principal responsibility as Home Secretary is to preserve our democracy against those who seek to destroy it through terrorist attacks. The threat is real, and I believe that the steps I am announcing today will enable us more effectively to meet that threat. I am, of course, well aware that the proposals I am making today represent a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities and against whom we cannot proceed in open court. That will be contentious, but I believe that the need for us to protect ourselves against the threat justifies the changes I propose. I commend the statement to the House.


WWII - threat to the life of the nation.
Terrorist groups - threat to lives within the nation, but to the nation itself? No.

If one accepts that house arrest would be the best method to protect people (there are surely many others) then the question is: is the chance of protecting some/many lives within the nation (or more cynically, protecting the government's backside) worth more than the ancient right of habeas corpus, and the right to know the charges and evidence against oneself and test these in an open court of law?

It's interesting that almost immediately animal rights activists were talked about as terrorists to whom these control orders could apply. I completely disagree with the tactics of some of the more virulent activists, but the idea that they represent a threat to the life of the nation is laughable. This is a prime example of legislation-stretch - once get this sort of law passed and it becomes ever easier to extend its scope.

Submitted by James Berry

Photo of David Davis David Davis Shadow Secretary of State (Home Office)

I thank the Home Secretary for giving me advance sight of his statement, and more than that, for early notification of the substance of what he would say. I commend him for his welcome recognition of the primacy of law, and the concomitant seriousness with which he treated the judgment of the House of Lords. I also commend him for his efforts with the Governments of the countries from which the current Belmarsh detainees come. The claim from the Home Office that the current arrangements were only a prison with three walls always rang hollow when detainees had reason to fear execution on return to their home countries. I wish him good fortune with his undoubtedly difficult task on that front—it is obviously long overdue.

I also welcome the Home Secretary's announcement of a debate on the proper balance between liberty and security, which is central to the considerations before us today, and also long overdue. As I have said before, the task of the Home Secretary is not only the protection of life, as he describes it, but the protection of our way of life. It is a self-defeating exercise to sacrifice liberty in defence of liberty. Throughout our history, millions of British subjects have sacrificed their lives in defence of the nation's liberties, and it would be a sad paradox if we were to sacrifice a nation's liberty in defence of our own lives today.

From the perspective of those currently detained in Belmarsh and other foreign nationals, the proposal is clearly and undoubtedly an improvement. House arrest is better than imprisonment, even without any access to a garden, a phone, the internet, friends or relatives, which is effectively the state of detainee G today. The lower range of measures, down to tagging, only is clearly still better, and allows the Home Secretary to meet the House of Lords requirement for proportionality.

More concerning, however, is the intention to extend the proposals to British subjects. Some of the most ancient rights of Britons are those of natural justice: the right to presumption of innocence; the right of a person to know the charge against him; and the right to see or hear the evidence brought. All those rights are absent under the SIACSpecial Immigration Appeals Commission—rules. That is why Ian MacDonald, the Government's special advocate who resigned before Christmas, described the rules as

"contrary to our deepest notions of justice".

It is undoubtedly a Kafkaesque process. Will the Home Secretary explain whether, and how, he will bring the process more in line with normal rules of British justice, especially as it will now apply to British citizens?

I understand why the Home Office likes to describe the procedure as a sort of anti-terrorist ASBO, as it does in this morning's press, but we should not kid ourselves—it is not. The upper end of the scale—house arrest—is administrative detention. It is public internment. We know that throughout history internment has generally backfired, because of the resentment that it creates, so unless the process is clearly just, the Home Secretary could find himself confining one known terrorist only to recruit for our enemies 10 unknown terrorists. Justice must be seen to be done, because the perception of injustice could completely destroy or reverse the effectiveness of the proposal.

One detailed aspect of the proposal that must be understood is whether the control orders will be time limited or open ended. There is a world of difference between indefinite detention and a time-limited control order. Will the Home Secretary explain in detail how he thinks those orders will be used?

Even those of us with strong civil libertarian instincts recognise that these have to be compromised occasionally in the interests of security. However, that should happen only after all the avenues within our normal systems of democracy and justice have been exhausted. So the legitimacy of the Home Secretary's proposals rests on his having tried every other normal legal option first.

Over the years, many people—not only one Committee—have recommended making more such terrorism cases capable of being brought to trial by the use of intercept evidence. The most recent example is the eminent report by Lord Newton. All those studies are at odds with the review described in the Home Secretary's statement.

I understand that there may be practical difficulties, but I ask the Home Secretary to revisit the issue, and consider whether the mechanism proposed by Lord Newton—specifically the use of an independent security-cleared examining judge, who collates the sensitive information, ensures that it is fair and presents it to the court, but who prevents defence lawyers from going on fishing expeditions—could be used more generally to allow sensitive intelligence information of all sorts to be brought before the court. We are virtually the only major country in the world that does not use intercept evidence in court. That must make it even more difficult to bring terrorist cases to trial, and as such, degrades both our safety and our system of justice.

I repeat that I would be far more comfortable accepting the Government's proposals if I were convinced that every other legal avenue had been exhausted before we got there.

The Home Secretary, as I understand it, intends that he will report on the process of detention to Parliament through the Intelligence and Security Committee. That is obviously sensible. However, I also believe that there should be a regular report back on the Floor of the House. That, of course, would be less detailed, because it would be open—but I continue to believe that the House of Commons in open session is still the best defender of liberty and justice for British citizens.

The Opposition will look very carefully at the detail of the proposals when the measures are laid before the House. Clearly, this issue has to be resolved as soon as possible. But it is vital to get it right, and in doing so protect our system of justice.

We should remember the words of Benjamin Franklin:

"They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

It is the job of us all to try to get an outcome that preserves for our citizens both liberty and safety, and the Opposition will do all they can to achieve both those aims.

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful to the right hon. Gentleman, and I appreciate the approach that he has taken. It is the case, both in the Intelligence and Security Committee and elsewhere, that there is a great deal of cross-party agreement about how to approach these issues.

I was delighted that the right hon. Gentleman welcomed my proposals for a substantial debate on these matters. In due course I will talk to him and his colleagues about how we might best take that forward. I am happy that there should be a regular report back on the Floor of the House, and there are already some vehicles for that.

I would observe that when we have that debate it is important to recognise that the threats that we face are very different from the threats that Benjamin Franklin was trying to address.


Benjamin Franklin indeed faced different threats to those Mr Clarke seeks to address - the very real possibility that the British Empire would invade & seek to recover its American Colonies. I'd call that a threat to the life of a nation, unlike the situation which now faces us.

Submitted by James Berry

Photo of Charles Clarke Charles Clarke Home Secretary

He was indeed a revolutionary in various respects, though rather an eccentric revolutionary. I think that I am right in saying that he used to stand naked in front of his windows to expose himself to the community as a whole. I am not sure that there is anybody doing that at the moment. [Interruption.] I do not recommend it.

I wish to make it clear that the Home Office was not involved in any briefing on these proposals. It has been at pains to come first to the House on these matters. A phrase such as "anti-terrorist ASBO" is not one with which I would agree; I do not think that it is right in the context of the process.

I agree with the right hon. Gentleman's comments on proportionality. He raises serious points on UK subjects but I put it to him—he knows that this is the case—that we have to address a reality, which is that there are UK subjects ready to use action to destroy the society of which we are a part. It is my obligation—and I think it is one shared by the right hon. Gentleman—to deal with that.

In terms of what the right hon. Gentleman says about going as far as we can to pursue normal rules of justice, to explore all avenues and to pursue all options, I agree with him. As I have said, prosecution in the courts is the best way to address these matters. That is the right way to proceed. We should not—I know that he does not—hide from the fact that all avenues having been explored, and so on, there are still issues that arise, including from some UK citizens. They are very small in number but they have to be addressed and they cannot be ignored.

On procedure, as I said in my statement, there will be independent judicial scrutiny involving the hearing of evidence in open and closed session against the imposition of any order or any subsequent variation of an order. I envisage the use of special advocates in the closed sessions. There will be a mechanism for reviewing and modifying the conditions of any order as circumstances change. The new mechanism will itself be subject to independent judicial scrutiny. Individuals will be served the order and will be able to challenge both it and the conditions that it imposes. The subject of the order will be told as much as possible, commensurate with the need to safeguard sensitive intelligence material. Further details will be in the Bill that I shall publish.

In response to the right hon. Gentleman's point about whether control orders will be indefinite in operation, I say that the order can be varied. The controls can be changed if the threat that the individual poses changes or diminishes over time. The orders can be challenged and they will be regularly reviewed, as I have indicated. On intercept evidence, I have set out the reasons clearly why I have taken the view that I have. Principally, it would not significantly increase our ability to secure convictions in this area. Technology is changing so rapidly that we should take account of that process. That said, I will continue to keep the situation under review, and be informed by the right hon. Gentleman and other Members as we consider these questions.

I am delighted that the official Opposition take a broadly constructive approach on these matters. I urge the right hon. Gentleman, when he considers the difficult question of the balance of liberty and security, even for UK subjects, to recognise the obligations that we all have to put security at the centre of our preoccupations.


There's no evidence that I'm aware of that Ben Franklin used to expose himself, and no authority suggests that he did. It sounds like Clarke made this out of whole cloth to derail the conversatoin.

Still, it's nice to see him suggest that some degree of privacy for citizens is desirable.

Submitted by Danny O'Brien

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs

I thank the Home Secretary for the advance notice that he gave of his statement, and particularly for the constructive approach that he has taken on this issue. For three years the Government have appeared to be dragging their feet, but we now have the sense that the new Home Secretary, in particular, is genuine about finding a way forward. Liberal Democrats will give serious consideration to the measures proposed, especially to the control orders that the right hon. Gentleman is suggesting. Will he confirm that the standard of proof required for those orders will be very high? How many control orders does he envisage being issued? Is it likely that there will be more than the 17 cases of detainees now being held?

The idea of holding individuals in house detention is another solution that, again, we shall examine. Is the right hon. Gentleman really looking at ways in which that could be done without requiring a derogation from our human right commitments?

I am disappointed that the Home Secretary has ruled out the use of intercept communications in securing trials. I understand that they may not be helpful in the case of the current detainees, but does he acknowledge that in future cases information gained from phone tapping could be relevant, and could be used to obtain a trial? I simply ask that the right hon. Gentleman keep the door open on this issue.

I remain concerned about the idea of returning detainees to host countries. Does the Home Secretary acknowledge that any agreement to do that would require strong reassurances on human rights from those countries, and that detainees should be able to challenge any arrangement if they felt that the process was unsafe?

We shall be very constructive about legislation introduced on this issue. We are aware that the March deadline for renewing the derogation is looming. Our priority will be to balance the security of this country with the need to maintain strong principles of justice. Based on what I have heard today, I am encouraged in the belief that we can achieve cross-party support.

Photo of Charles Clarke Charles Clarke Home Secretary

I thank the hon. Gentleman for the general approach that he has taken, and for the constructive way in which he is ready to consider these matters. I acknowledge with him that it will be necessary to scrutinise the proposed legislation in detail, and I look forward to constructive proposals, should they come from the Liberal Democrats.

The standard of proof for the orders will be very high, as it correctly should be. There is nothing that I can constructively say to the House about numbers. We have no ambition to have significantly more control orders than the current number of cases. The whole point is that we cannot anticipate what threat will arise. The way to proceed is through the reporting procedures of various kinds that I have suggested, so that the House can consider the position and come to a view on the use of the orders once they are established.

On the derogation question, we are looking into all aspects of control orders in the context of the need to derogate. As I said in my statement, it is possible that we will need to seek to derogate from the European convention. Obviously that is a matter that we will take extremely seriously, and it would be put forward on the basis that the House considered appropriate at the time. But at the end of the day, my first responsibility is security, as I said earlier, and that is the approach that I will take.

On intercept evidence, I will keep that matter under review, but the fact is that surveillance sources for particular decisions include intercepts and a wide range of other surveillance measures that would not be addressed by the measure and could put people at risk. That is why the review concluded that allowing intercept evidence would not solve the problem in a significant number of cases.

On host countries, I agree with the hon. Gentleman about the need for strong assurances and we would take that issue into account in any memorandum of understanding. At the end of the day, it is for the courts to make their judgment on the issues that arise. I am glad that he wishes to balance security and justice. These are difficult questions and I hope that he will participate in active public debate about them because, for the sake of all parties in the House, it is important that we achieve the correct balance.

Photo of John Denham John Denham Chair, Home Affairs Committee

Will my right hon. Friend clarify the specific point about whether the orders that, at the extreme, could involve house arrest, would be issued for an indefinite period or whether they would be statutory and subject to review? He is right, I am afraid, to acknowledge that, in future, the role played by British citizens in this type of terrorism may become more significant than has been the case in the past, but the use of powers against British citizens will attract more public concern and scrutiny than their use against foreign nationals. Will he look carefully at whether he needs a more structured process of advice before issuing an order so that he is not simply dependent on the advice of the security services? There could be some independent examination of whether a case is prosecutable or an independent assertion that some measures are necessary, even though an individual cannot be prosecuted.

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful for my right hon. Friend's comments. On the timing of the orders, I want to emphasise that the orders can be varied. The controls can be changed if the threat that the individual poses changes or diminishes over time. They can be challenged and they will be reviewed regularly. That goes a significant way towards dealing with the concerns that the Home Affairs Committee may have. On the point about UK nationals, my right hon. Friend is correct and his Committee has played an important role in trying to address these issues in its debates. I hope that in the debate that I suggested was necessary, it will play the role that it has played in the past and stimulate substantive discussion. I am extremely grateful that my right hon. Friend, who has particular specialist knowledge and experience, has acknowledged that it is necessary to look at powers to deal with UK nationals, and not simply deal with the points made by the Law Lords in their judgment, given that there are issues of serious risk. It is a difficult question, but I very much appreciate his Committee's understanding approach.

Photo of Francis Maude Francis Maude Conservative, Horsham

No one will need to be persuaded that the use of powers such as the existing ones and those that the right hon. Gentleman proposes to introduce will make Britain a safer place. That almost goes without saying. However, does he accept—I think that he does—that the price we pay for living in a free country is the fact that we are more vulnerable? We cannot make an open or free society completely safe. While the powers that he proposes to introduce to replace part 4 of the Anti-terrorism, Crime and Security Act are less draconian than the existing powers, he is extending their scope. It is very important that such powers, which extend beyond our usual conception of the rule of law, should not become part of the fabric of our society.

Photo of Charles Clarke Charles Clarke Home Secretary

I accept the right hon. Gentleman's general point, and I have tried to address it. However, there is a serious point to be made. He is right to raise the question of safety and the balance between safety and liberty, but some of the threats that we are talking about, whether a twin towers-style disaster or an attack on an underground system or something else, are catastrophic, and thus different in nature from other safety issues that we address and take into the balance. It is extremely important that we recognise the threat that we may be under in those circumstances and deal with issues of reality when considering what steps to take.

Photo of Professor Ross Cranston Professor Ross Cranston Labour, Dudley North

I congratulate my right hon. Friend on the expedition with which he has acted and the inspired way in which he has responded to the very difficult and challenging judgement by the House of Lords. For what it is worth, I accept his view and that of his predecessor, my right hon. Friend Mr. Blunkett, that there is a real threat that must be addressed. However, may I ask him about the prosecution avenue? Can he give the House an assurance that that will always be fully explored? Perhaps we need to revisit terrorism legislation to explore the width of some of those offences.

Photo of Charles Clarke Charles Clarke Home Secretary

I appreciate my hon. and learned Friend's general support. His knowledge and expertise in these areas is well known and I appreciate his approach. On his specific point about exploring the prosecution process and ensuring that we can pursue it at all levels, I can provide the assurance that he is seeking. I said in my statement that prosecution must always be the principal way of acting and it is certainly the best and most effective way of doing so. That is what we will pursue, which is why I am ready to accept his advice and look carefully at ways in which we can expedite that goal. However, I acknowledge, as I did in my statement, that there will still be cases where prosecution is not possible for various reasons, which is why I have proposed the regime that I set out today.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Will the Secretary of State kindly clarify part of his statement that jumped off the page as I read it? He made it clear that he will progress the memorandums of understanding with various countries with energy and assured the House that Baroness Symons has received a positive response to the discussions that she has had. If that is the case and the Secretary of State is successful, as we hope that he will be, does that mean that in the long term deportation of foreign nationals will take place before control orders are introduced? Could we therefore end up with only UK nationals being subject to control orders?

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. Lady is right that that is possible. It is critical that the House, the country and the legal system acknowledge that terrorism is an international activity that poses an international threat. It is not something which we can deal with simply within our own borders, so it is important that I seek to find agreements with other countries about how we deal with these things. There are agreements between other countries to deal with some of these issues and I believe that we should try to take that forward. Does that mean that, logically, one could reach the point where all foreign nationals were deported to their home countries and control orders would apply only to UK nationals? The answer to that question is yes. Frankly, however, I do not think that that is likely. It would take a considerable time to reach a point where deportation was the route for all foreign nationals. However, even if the logical outcome were fulfilled, I would still say to the House, as I tried to highlight in my statement, that we need a power to deal with UK citizens who wish to bring about the destruction of our society in various ways and whom, for reasons that we have discussed, we cannot prosecute.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

The Home Secretary is right to identify the fact that this will represent the most substantial increase in the state's executive powers over the citizen for 300 years. First, does he acknowledge as a matter of principle, liberty and law that executive detention that is indefinite in nature and without trial is precisely that, whether in Belmarsh or a bungalow? Secondly, will he tell us whether independent judicial scrutiny will be undertaken by the High Court through judicial review or by another body?

Photo of Charles Clarke Charles Clarke Home Secretary

I think that I have already addressed the second point made by my hon. and learned Friend in my response to David Davis, but I will repeat it. Independent judicial scrutiny will involve the hearing of evidence in open and closed session against the imposition of any order or any subsequent variation of an order. I envisage the use of special advocates in the closed sessions and there will be a mechanism for reviewing and modifying the conditions of any order as circumstances change. That new mechanism will be subject to independent judicial scrutiny itself. Individuals will be served an order and can challenge it and the conditions that it imposes. The subject of the order will be told as much as possible, commensurate with the need to safeguard sensitive intelligence material. I think that that deals with the point made by hon. and learned Friend, but I am ready to consider any other points that he and other Members may wish to make, both in Committee and in the House.

On the 300-year history, I was fairly up front in saying in my statement that there was a real issue here that needs to be tackled. In the 300-year history that we are talking about, there have rarely been threats of the type and scale that we have to face in these circumstances. That is why I have proposed the steps that I set out. We will have strong debate about these matters and there will be people who think that, even under the threat that we face, such powers are unacceptable. I understand that, but I consider it my responsibility as Home Secretary to do whatever I can to ensure the security of the whole of our society and what it stands for, and that is what I intend to do.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The right hon. Gentleman will understand that the control orders, especially house detention, are capable of destroying the lives and livelihoods of individuals who have been convicted of no offence. Does he understand that many of us are wholly opposed to such a proposal and will vigorously oppose it wherever it is made? I hope it will be made on the Floor of the House and that the Bill will be taken exclusively on the Floor of the House. I also deplore the fact that he continues to hold in detention the 12 detainees whose detention has been pronounced unlawful by the highest court of appeal in the country.

Photo of Charles Clarke Charles Clarke Home Secretary

I hear the right hon. and learned Gentleman's deploration, but I do not accept it. Those people have been the subject of testimony by serious concerned organisations that understand what they are about and we are not prepared to take the risk of such people at liberty destroying our society. I am very clear about that. He speaks about conviction in this context, and I note that he is wholly opposed to the proposals. I know his long history on these matters, and I am sure he will make his arguments with his usual eloquence. However, as he comes from a legal family of such distinction, I put it to him that the issues that I am talking about—that is, the relationship between security and liberty—are central issues that the judiciary and the whole of the legal process must address as much as anybody else, which is why I want a national debate. It is essential that the issues are addressed, because if he does not understand the threat that is posed to every right for which he and his family have fought over generations, he is missing the central point of the entire debate.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee, Chair, Foreign Affairs Committee

The positive response of those who speak on behalf of the Opposition parties indicates a realistic recognition both of the balance achieved by my right hon. Friend and of the nature of the threat at a time of biological weapons, chemical weapons, dirty bombs and so on. Can my right hon. Friend say more about the other part of the twin-track approach—that is, the relationship with countries from which those who are considered a significant threat come? What are the minimum and specific assurances that he will seek from those Governments?

Photo of Charles Clarke Charles Clarke Home Secretary

I appreciate the general support given by my right hon. Friend. His own experience in the foreign service leads him to speak with great authority on these matters. There are two aspects to his question. First, it is important that in any country to which deportation is considered, the individual does not face torture, the threat of death and so on—the various issues that are rightly raised in the European convention on human rights. Those are questions that we will raise explicitly. It is also important—this is the second part of the second track, so to speak—to recognise that those Governments themselves are sometimes under threat from the same kind of challenges that we have to deal with, and it is important for us to talk to them about how we can deal with these matters. But the fundamental issue is the one that he raises, and it is the reason why I put this in the context of the European convention on human rights at the outset. Obviously the individuals, the courts looking into the situation and others will want to be assured that should those individuals be removed to those countries, they are not at risk of the kind of treatment banned under international law. That will be the bottom line of our consideration of these matters.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The Home Secretary will understand that, as a matter of principle, it is no less offensive to detain a man in his house than it is to detain him in prison by virtue of a ministerial edict. Would it not be safer and a better course for the Home Secretary to apply to the courts to have these people detained, on the basis of evidence that may be withheld from the public and which may even be withheld from the respondent to the application? The Home Secretary ought surely to make his application to the courts, rather than allow his ministerial edicts to be reviewed after the event by the courts.

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. and learned Gentleman is right that that is a possible alternative way of going about it, but I believe that were I to surrender the responsibility of the Executive to the courts to take decisions on these matters, it would in the most real sense be a betrayal of the responsibility that I as Home Secretary and any future holder of this office bear for the security of the state. That responsibility must lie, and in my opinion rightly, with the Executive and in this case with the Home Secretary. To pretend that these matters can be dealt with at one remove by the judiciary on the basis of different issues is wrong. It is right, as the hon. and learned Gentleman acknowledged in his question, that the decisions that I or others make should be subject to review by the judiciary as to whether they have been correctly carried through. That is entirely proper. For me to say that I bear no responsibility for the matter and pass it on to someone else would be wrong.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Does the Home Secretary accept that many of us are extremely concerned about the general trend of anti-terrorist legislation, which allows administrative detention? What has happened at Belmarsh is the British equivalent of Guantanamo Bay. If an administrative order is made against an individual based on security information that the Home Secretary has received, and if that is challenged in a court, would all the evidence on which the Home Secretary made that decision be available to the defendant, or would it be merely a rubber-stamping exercise whereby the Home Secretary can detain or restrict indefinitely the movements of a substantial number of people on the basis of secret information?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend's record and position on the matter is well known and understood, and we have had many debates about it. It is important to understand the difference between various forms of detention. It is not the case that detention in Belmarsh is the same as in Guantanamo. There is a series of different matters that need to be addressed. On his central point, I said in my statement and I say again that the judicial review of the Home Secretary's decision will work on the basis that the defendant has the right to access all the evidence that can be put to him, subject to the test that making that evidence available does not threaten national security. So there are issues that arise, and which my hon. Friend will no doubt push in Committee when we discuss the matter, but the principle established is that the defendant can have access to the evidence, with the exception—it is an important exception, which he highlights in his question—of information that would be prejudicial to national security if made public.

Photo of Julian Lewis Julian Lewis Shadow Minister (Cabinet Office)

Given that the most notorious of the detainees, Abu Qatada, has been described by the Special Immigration Appeals Commission as being

"at the centre in the UK of terrorist activities associated with al Qa'eda", and that it added:

"He is a truly dangerous individual", does the Home Secretary agree that it seems strange that there is no aspect of the anti-terrorism law that can be invoked to bring him before a court? Assuming that he and the others have to be let out of Belmarsh, how will it be practically possible to restrict access to telecommunications and the internet unless they are confined in an individual premises and everybody going in to see them is searched and prevented from taking in such communications equipment with them?

Photo of Charles Clarke Charles Clarke Home Secretary

On the hon. Gentleman's first point, the fact that judgments of the type that he described are reached does not say anything about the source of that judgment. The question is whether the source can be exposed in open court without risking people's lives, the national security system or whatever. That is the answer to his question. On the second part, he is right. The control order regime that I propose suggests a range of controls dealing with access to telecommunications equipment and so on, as I indicated, which will require policing to work effectively. Is it possible? Yes, it certainly is. Can we establish it? Yes, I am advised that we can. But are there issues that arise about it? Yes, there are. That is what we have to address when we consider the detail of the orders.

Photo of David Winnick David Winnick Labour, Walsall North

Considering what happened in Istanbul and Madrid, how could any Home Secretary not take into account the constant danger of terrorism to our country and our people? Bearing in mind the extended powers, what reassurances is my right hon. Friend giving to the Muslim community to let it know that no community in our country will be targeted and that all law-abiding people have nothing to fear?

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful for my hon. Friend's initial point, with which I completely agree. I have attended two meetings with representatives of the Muslim community to discuss those questions and make the precise point that he mentioned. I have not discussed the proposals that I have introduced today with the Muslim community, because I thought it more appropriate to come to the House before talking to other interests directly, but I will discuss those precise issues with members of the Muslim community to provide reassurance.

I reaffirm my hon. Friend's point that no law-abiding citizen of this country, whether they are Muslim or Christian and whatever their race, nationality, creed or belief, has anything to fear from the proposals that I have put in front of the House today. The proposals are intended to target those who aim to destroy the democracy within which we all flourish.

Photo of Mr Simon Thomas Mr Simon Thomas Chief Whip, Spokesperson (Agriculture; Culture; Environment; Heritage; International Development; Sustainable Energy; Transport)

I accept that the Home Secretary has taken time and care to consider his proposals. Many Back Benchers consider it our responsibility to resist any proposals from the Executive to expand their powers in this way, unless the evidence and the need is overwhelmingly demonstrated in this House. To that end, I support the call from Mr. Hogg for the matter to be debated on the Floor of the House, because all hon. Members will have something to say about the central question of the proportionality and application of the proposals.

In his reply to Mr. Oaten, the Home Secretary did not state the number of British citizens whom the proposals might affect. Although he may not be able to answer that question today, by the time that we examine the Bill, he must be able to say how many British citizens are likely to be affected and how many British citizens are being investigated in the context of terrorist activities. For example, animal rights terrorism shows how such measures could be applied much more widely than the context that we have been debating today. The proposals will considerably enhance the Government's powers and we must take a careful, measured approach.

Photo of Charles Clarke Charles Clarke Home Secretary

I want to make three points. First, this is not a numbers game, although numbers are important. As I said in my statement, the part 4 powers have been applied to 17 people since they were enacted, which provides a context. I agree that it is right for the Government of the day to report to the House in a variety of different ways on the number of cases, the situation and so on, but it is not a numbers game.

Secondly, I accept the hon. Gentleman's important point that, before any legislation—in particular, legislation that might involve a derogation from the European convention on human rights—is introduced, a detailed and substantive case must be presented to this House and the other place before they assess what to do. That process is needed to address his point about proportionality, which I accept is an obligation on any Home Secretary who seeks to introduce legislation.

My third point is an appeal to the hon. Gentleman. Although it is important to recognise that the role of Members of Parliament is to act as a check on the Executive and therefore question the Executive, it is also the role of Members of Parliament, as the elected representatives of their communities, to address such issues in the round and decide in the interests of the country as a whole how to deal with the balance between rights and security. That is why I have proposed a broad debate, which we have got. In my opinion, hon. Members should not simply ask, "What are the Executive doing? How can we deal with them?" That is one of their responsibilities, but I put it to the hon. Gentleman that another important responsibility is for elected representatives, and in particular political parties, to debate such matters in the round rather than simply existing as an anti-Executive element.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

Pursuant to the Home Secretary's answer to my hon. and learned Friend Mr. Marshall-Andrews, can we take it that judicial review by the High Court has been excluded in favour of action by the Special Immigration Appeals Commission? Will the Home Secretary's decisions be subject to the High Court and what is the position on judicial review?

Early in his statement, the Home Secretary said that intelligence reports make it clear that the existence and use of the powers have helped to make the UK a far more hostile environment for international terrorists to operate in, with the result that some international terrorists have been deterred from coming here and that others have left to avoid being certified and detained. Does he know that for a fact or is it informed and educated speculation?

Photo of Charles Clarke Charles Clarke Home Secretary

On the first point, I have nothing to add to my statement and my answers to previous questions, including the question from my hon. and learned Friend Mr. Marshall-Andrews. On the second point, it is more than informed speculation that the situation is much more secure and that the country is inhospitable for international terrorists. I am proud that the legislation has helped to achieve that result, which I want to ensure is a characteristic hallmark of this country.

Photo of John Pugh John Pugh Shadow Spokesperson (Education)

Given the Home Secretary's ongoing security concerns and the record on suspicious detainees absconding from custody at John Lennon airport, will the Home Secretary consider improving Customs and Excise as well as legislative change?

Photo of Charles Clarke Charles Clarke Home Secretary

The proposals in the Serious Organised Crime and Police Bill have been specifically designed to ensure better co-operation between the various interested agencies, including Customs and Excise. The hon. Gentleman's point is well made, in the sense that we will invest to ensure that enough staff are available to address the threats and the proposals before the House will help immensely in achieving his ambition.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

Does the Home Secretary accept that many people outside this House welcome his acceptance of the Law Lords' ruling? For some time, many people have said that the legislation is so contrary to any notion of the rule of law that it represents a victory for the terrorist. Will he also accept that, in practice, in the medium term, most of the British nationals who are subject to control orders will be of the Muslim faith? To intern individuals in their own homes in the middle of communities in our great cities will be, if anything, more incendiary than putting them in prison. Many of us welcome the Home Secretary's proposal to hold a full and careful debate to discuss those ideas.

Photo of Charles Clarke Charles Clarke Home Secretary

I appreciate the first part of my hon. Friend's remarks. Her second point follows on from the point raised by my hon. Friend David Winnick. It is important that the debate takes in all communities in this country, including the Muslim community. I reassert that members of the Muslim community have nothing to fear from the measures, unless they are explicitly involved in promoting terrorist activity. That distinction is the core point. If people are promoting terrorism and seeking to engage in terrorism, it is my responsibility to address that situation, whatever their religious faith or race. I cannot say, "You are a terrorist, but because you happen to be of x or y faith, it is okay." I cannot adopt that position, and I am sure that my hon. Friend would not. However, I agree with her fundamental point that plenty of room exists for misunderstandings around such questions and it is part of my obligation to ensure that as few misunderstandings as possible occur.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Business, Innovation and Skills), Shadow Minister

I welcome the Home Secretary's statement and feel that he deserves significant credit for moving so quickly. In the third paragraph of his statement, he discussed our international commitments on suspected international terrorists who are being kept in this country at substantial expense to taxpayers. Deportation with assurances will partly address that problem, but should we not revisit some of those international commitments? Is there not an opportunity for the UN to launch an initiative, too?

Photo of Charles Clarke Charles Clarke Home Secretary

I am more glad than I can say that the hon. Gentleman has raised the point that we need an international approach to the matter that involves the UN and other agencies, which is why I referred to the UN resolution in my statement. I highlighted the matter because working with other countries is the right way to go. On expenditure, we must spend whatever it takes to maintain our security, and I am determined that we will do just that.

Photo of Vera Baird Vera Baird Labour, Redcar

I compliment my right hon. Friend on the thought that he has put into trying to produce a reasonable solution to a very nearly intractable problem. I welcome his stated preference for trying suspected terrorists. Will he guarantee that that possibility will be pursued vigorously? In his view, will it be possible to put British suspects or any of the Belmarsh detainees on trial, and would changes in criminal procedure help with that? While the Belmarsh men were detained, how were British terrorist suspects, who could not be locked up under that law, being contained? I ask that not in a barbed way but in seeking a way forward.

Photo of Charles Clarke Charles Clarke Home Secretary

I appreciate the remarks of my hon. and learned Friend, whose experience in these matters is substantial. I can give her the guarantee that she seeks that I will pursue as energetically as I can a process of ensuring that trial procedures and so on are addressed in a way that means that prosecution in court leading to conviction is the best way to deal with these questions. I will consider any changes in procedure to achieve that.

As for the UK citizens currently involved, the security services have pursued a range of different measures under warrant from me, as Home Secretary, in accordance with the court. However, there have been constraints on the situation, which is why I propose such legislation.

Photo of Michael Meacher Michael Meacher Labour, Oldham West and Royton

While I very much welcome my right hon. Friend's compromise, will he recognise that that is exactly what it is? What is really wrong with the present law is that the standard of proof required, namely reasonable belief or suspicion, is lower even than in civil proceedings; that the Special Immigration Appeals Commission and perhaps his own independent judicial inquiry will still not enable detainees to challenge the evidence against them because they cannot see enough of it; and that so-called "evidence" extracted under torture of a third party is still admissible. Will he address those fundamental points, if not today, in his review of the legislation? In the meantime, will he ensure that his new civil orders, which we welcome, impose strict surveillance conditions, including banning access to the internet and mobile phones, but do not include house arrest, which would breach the human rights convention?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not accept my right hon. Friend's contention that this is in any sense a compromise. It is not—it is an effort to find a way through to deal with the issues. On his specific questions, I dealt with them all in previous answers and I have nothing to add.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire

Is my right hon. Friend aware that I have never been soft on terrorism, having taken a great interest in the affairs of Northern Ireland and having been in Dar-es-Salaam on the day that al-Qaeda blew up the American embassy? However, certain actions may be justified if there is held to be a threat to the life of a nation. Perhaps what is going on in Iraq in relation to terrorism is a threat to the life of that nation. What similar threat exists in this country as distinct from serious threats like those in the past from the Provisional IRA? Should not such problems be dealt with by the courts rather than by special action through the Executive?

Photo of Charles Clarke Charles Clarke Home Secretary

Let me make it clear that I absolutely accept that my hon. Friend is not in any sense soft on terrorism. That is not the case, as his personal record clearly shows. Nor, by the way, do I make that charge against others who might oppose our proposals. These are genuine and difficult problems that need to be addressed in a way that reflects that fact.

As for the courts taking responsibility rather than the Executive—that is, myself as Home Secretary—I go back to what I said earlier. I believe that this is a proper Executive responsibility that should be borne by the Executive—in this case, by the Home Secretary—and not by the courts. I accept that it is right for the courts to have the ability to review the decision that is taken: that is why we are putting this process in place. As I said very clearly in my statement, I have explicitly considered the evidence that has been put to me about the very real threats that we have to deal with, and my conclusion is that we are in such a state. That is why I believe that we have to act in the way that I suggest.