I advise the House that when debating the motion hon. Members should take care to avoid referring to individual cases that may be before the courts. The Chair will be particularly attentive in that respect.
I beg to move,
That this House
calls on the Government to respond to the House of Lords judgment on Belmarsh with a system of dealing with terror suspects which does not require a derogation from European Convention on Human Rights obligations and which enshrines the principle that decisions on restrictions on individual liberties are taken by the courts and not politicians.
A couple of weeks have passed since the new Home Secretary came to the Chamber and announced his proposals on how to respond to the Law Lords' judgment. There has been a fair amount of media speculation and debate in the press and we Liberal Democrats felt it was important to bring that debate to the Floor of the House. We had the first opportunity to call a proper debate to scrutinise the Government's plans, and we have taken it.
I think that I decided on Thursday morning, when I was struck by the enormous amount of media debate on the subject. I thought that the Chamber was the proper place for that debate, which is why we are discussing the Belmarsh judgment today. I see the Minister nodding.
This is an early opportunity to explore some of the issues, but first let me make two things crystal clear. First, we welcome the fact that the Home Secretary came to the Floor of the House to announce his proposals. For too long, legal judgments and the rulings of the Law Lords were dismissed or ignored by the previous Home Secretary. At least we now have a Home Secretary who is prepared to engage in debate. We do not agree with the proposals, but we welcome the opportunity to participate in debate and find a sensible solution.
Secondly, the Liberal Democrats in no way underestimate the seriousness of the threats facing this country. The fact that we differ from the Government on how to tackle those threats does not mean that we do not recognise that the world has changed since 9/11 and that we now face a different problem of international terrorism. It is worth putting on the record our acknowledgement of the fact that we all owe our intelligence services an enormous debt of respect and gratitude for their achievements in the past three or four years. It is nothing short of remarkable we have been able, with the help of their work, to avoid the type of atrocity that we have witnessed in other parts of the world.
The question before us is one of balance. We all walk a tightrope: on the one hand, we must ensure that we have in place the proper protections in a changed world; on the other, we must protect the very liberties that the terrorists would take away from us. In our judgment, the Government have got that balance wrong in the past three years, and the measures proposed by the new Home Secretary a couple of weeks ago will make the position worse in many ways.
Let me examine some of the ideas and propose some alternatives in a constructive way, to see whether we can achieve a measure of consensus on the way forward. Before doing so, I wish to make an observation about the level of threat. Although I do not question the general threat facing this country, questions have arisen about the threat posed by the individuals held in Belmarsh. I am mindful of your ruling, Mr. Deputy Speaker, about being careful in our remarks, and as an Opposition Member who does not have access to full information about those individuals, I accept that Ministers might know more than we do, but the release last week of the former detainee known as C raised some concerns.
I understand that intelligence and information can change. I understand that the Special Immigration Appeals Commission reviewed the case on a couple of occasions. None the less, it seems strange that one day an individual is regarded as being so much of a danger to this country that he can be held without charge, but the next day that individual can be released without any conditions. That seems like an extraordinary shift from black to white.
My understanding of that case is that there was not a change in the evidence; there was simply a change in the judgment to the effect that the evidence was not good enough.
The shadow Home Secretary makes an interesting point about the transparency in respect of understanding why such decisions are taken. The more we hear about C, however, the more the impact on me and perhaps others is that we want to understand more about the intelligence and the reasons why some other detainees are held. That prompts the question whether some of those individuals are such a danger to society that they should be kept in the way in which they have been kept.
Does the hon. Gentleman also agree that under the present arrangements, now overturned by the House of Lords, it would have been open to any of those detainees to go to any country that was prepared to take them? If they were a danger to this country while they were present, would they not equally pose a significant danger not only to this country, but to the wider western world, if they were to find such a country to take them without further detention?
The hon. Gentleman makes a very interesting point. Of course, one of the aspects of 9/11 and of terrorism now is that terrorism is global. The ability to operate in different countries means that we cannot simply assume that a threat will change if somebody is removed to a different country.
I want to make bit of progress.
As for the Government's approach, for the past three years, as we know, detainees have been held without charge. The cases have been under review from the Special Immigration Appeals Commission. As a result of the Government's actions, there has been a need to seek annual review by this House of a derogation from the European convention on human rights. It is fair to say that there were many in the first six months and each year thereafter who were prepared to accept that the Government were dealing with a difficult situation and to give them some leeway, but three years on, that mood has certainly disappeared, and the Liberal Democrats made the judgment last spring that we would vote against that derogation.
The Newton committee has been extremely critical of what the Government have said. In December 2003, the committee, which comprises some of the most senior Members in all parts of the House, including my right hon. Friend Mr. Beith, who is sitting on the Benches behind me, said:
"We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency".
Furthermore, some of the individuals who sit on the Special Immigration Appeals Commission resigned. Mr. Macdonald, who represented the interests of five detainees, became an advocate when SIAC was purely an immigration court dealing with cases that involved national security. He described it as becoming an internment court, however, and said:
"I was increasingly uncomfortable at my position in there, and after the government's reaction to the judgment, I decided it was time to go . . . It's something I've been thinking about for some time. The House of Lords' judgment was so very clear about the need to defend the rule of law and I felt that our role is legitimising something I don't think can be legitimised."
Of course, the Law Lords' ruling was made at the end of last year. They ruled by a majority of eight votes to one that allowing suspects to be held in the way in which they have been held was in breach of their human rights. Lord Nicholls, for example, said that
"indefinite imprisonment without charge or trial is anathema in any country which observes the rules of law."
Lord Hoffmann said:
"The real threat to the life of the nation comes not from terrorism but from laws such as these."
The Government have had many warnings, and they have now at last decided to respond. I want to look at their response, but before I get on to the individual measures, I want also to suggest that we should judge those measures on the basis of two overriding principles. From the Liberal Democrat perspective, those principles are as follows. First, we should not have measures that give the Executive alone the power to take these decisions. Secondly, we should not have to seek a derogation or opt-out from our international responsibilities and from conventions. Those two principles should be the benchmark for deciding what Government measures we can support and which ones we will reject.
Let us look and see how the measures match up against those two criteria. The Government have suggested that house detention be used as part of a control order. We think that that is unacceptable. First, we believe that it would require a further derogation, and the Home Secretary said as much when he came to the House and was questioned by the Opposition parties.
I do not know whether the Minister can say whether further legal advice has been taken, but the Home Secretary indicated that house detention would probably require a derogation and Liberty and other organisations think that it would fall foul of our international responsibilities.
The second problem with house detention is that it covers UK nationals, which is totally unacceptable. The third problem with house detention is that it still leaves the power purely with the Home Secretary. If it were to get through the House, the detainees would be likely to challenge it, in which case the Law Lords would probably vote against it three years down the track after various cat and mouse rulings, and the Government would be no better off than they are at the moment.
Irrespective of those legal concerns and the likelihood that house arrest would be challenged, do we want to live in the kind of society in which the Home Secretary has the power to hold people under house arrest or house detention? Whatever the Government call that policy, that is what it is about. The issue may not involve this Home Secretary, but surely we have a responsibility to legislate for what future Home Secretaries might wish to do. When we legislate in this House, we should legislate not for today, but for what might happen in the future. Giving the Home Secretary the power to hold individuals in that way is totally unacceptable.
I congratulate the hon. Gentleman on how he has conducted the debate, and his party on choosing this important subject for half of its precious Supply day. As well as worrying about how future Home Secretaries might use that power, is it not apposite to consider what recent Home Secretaries—for example, Mr. Howard—might have done with it? It would be benign in some hands and a frightening prospect in others.
Even that former Home Secretary finds the measures unacceptable, which demonstrates how scary they are. The most compelling argument is the list of other countries that use house arrest. Do we really want to be grouped with Burma, Zimbabwe and North Korea? I do not want to be part of the family of countries that have house detention.
Last Friday, I was shadowed by a newly elected member from the Maldives Parliament, who won his seat despite being held under house detention. He found it remarkable that I was spending part of my Friday dealing with the prospect of having to debate house detention in this country. The Liberal Democrats will certainly not support the Government on house detention.
I apologise for not being present from the outset, and for being very stuffed up. The comparison with North Korea, Myanmar and Zimbabwe is not correct. Nobody has suggested for one second that the courts would not closely supervise such a power, if it were necessary to take it. There is no reason why a decision by the Home Secretary should not include an automatic and immediate right of appeal, which does not exist in any of the three countries mentioned by the hon. Gentleman.
I respect the contribution from the hon. and learned Lady, who makes an awful lot of sense on those issues. However, a full judicial process has not been promised as part of house arrest, and the Home Secretary will make the ultimate decision. What the hon. and learned Lady has described is not a full and proper judicial process.
I want to help the hon. Gentleman, albeit that Vera Baird is right about the comparison with North Korea. He has discussed one case in which the evidence probably turned out to be inadequate. If that individual is innocent—we do not know—he has been in jail for three years with no trial and no rights. Without the latest judgment on that case, he might have been held for much longer. From his point of view, the situation is not much different from that in North Korea.
The right hon. Gentleman has made a good point.
The Government's second suggestion is control orders. I have a little bit more sympathy with the ideas of control orders, when they do not involve house detention. Lower forms of control orders would probably not require a derogation—again, legal advice would be required on that point—so they tick that particular box, although they might give the Executive too much power. That is an important issue, and it may be a way forward, particularly in respect of how we can use tagging, limits on access to communications—to phones and computers—or perhaps even restrictions on access to financial services.
We would support the measures on control orders if a number of conditions were met. First, they should be issued by judges. Secondly, there should be absolute confirmation that they would not require a derogation. Thirdly, they should be time-limited and renewable with judicial oversight. Fourthly, they should not be used if there is a proper prospect of prosecution taking place. That is a perfectly sensible way forward, through which we could achieve the balance that is being sought between having some control and building in the judicial process. I hope that the Government will consider those suggestions on control orders.
On whether control orders should be used as an alternative to prosecution, we differ an awful lot from the Government. This is a key issue. As the Newton committee said,
"Terrorists are criminals, and therefore ordinary criminal justice and security provisions should, as far as possible, continue to be the preferred way of countering terrorism."
We strongly agree. Surely the right way to deal with the situation is to seek prosecutions in the normal way. I note that the Home Secretary said in his statement that that was his preferred starting point.
It has been possible to achieve that in some cases. In January 2002, two Algerians were charged with membership of al-Qaeda, and although the case was dropped, a year later they were jailed for 11 years. We know that that can be done, so the critical questions are these: why cannot we do that on more occasions, and why is the Home Secretary ruling it out so clearly at this stage? In part, that hinges on concerns about whether one reveals sources, and the protection that one wants to give them. However, I note from the Home Secretary's remarks that he believes that prosecution probably would not be effective in securing a conviction in relation to the existing cases. That may be so, but we should not rule it out on that basis; surely we should also be legislating for future cases, for which we should legislate to allow intercept evidence to be used.
"I have long been in favour of intercept evidence being used in court. The court can then weigh it up. At the moment nobody can test it."
There are models throughout Europe; individual countries have found a way to get prosecutions and achieve a proper court process. So what are MI6 and GCHQ telling the Home Secretary that is making him so nervous about allowing that? If there is nervousness about the kind of information that is allowed in court, why are the Government not looking into alternative ways in which we could set up the court process? For example, what about specially trained and security-cleared judges, who could prepare a case that could then be heard by a different judge? What about smaller juries, or special security-cleared juries? Or—I do not like this, but if it is a way forward, perhaps we could look into it—a jury could hear the evidence, but not have the source material that it has come from. The Government should try to find a way forward on this important principle, so that we can get more prosecutions, as we did in the past.
I come on to two further issues that concern new offences and relate to ideas that the Government appear to have rejected. The first is the idea—again, used in several European countries—of making planning for terrorist activity an aggravating factor when sentencing, by allowing courts to pass longer sentences for non-terrorist crimes where there is clear evidence that the offender intended to go on to commit an act of terrorism. In essence, if it can be proved that some terrorism is attached to a criminal activity, a longer sentence can be obtained. Why have the Government rejected that as a model?
Why have the Government rejected the idea of introducing new offences to deal with loopholes that mean that an individual could be preparing for a terrorist attack that is not covered by legislation elsewhere? We argue that both those proposals should be included in discussions and may be a way forward.
Let me deal with the Government's final suggestion of deportation. I greatly welcome the Home Secretary's announcement that Ministers have spent some time visiting countries to ascertain whether they can gain agreement on improvements in human rights. All parties welcome that. It should be everyone's long-term objective to try to ensure that individuals are free to go back to countries because their human rights record has improved. However, I would be worried if the Government introduced deportation on the basis of flimsy agreements on a ministerial visit when a memorandum had been signed. That is not good enough and would not persuade us that a robust system was in place to test whether the human rights record had improved sufficiently to allow deportation.
The Government know that if the system were not sufficiently robust, the detainees could test it in the courts. We make the simple suggestion of legally binding framework agreements with the relevant countries that are pre-tested in the courts to ascertain whether they are robust enough. Until those agreements are in place, no deportation should happen.
The hon. Gentleman is making a good speech and a reasonable suggestion. May I take it from his remarks that he has in mind the prudent notion that, in addition to any framework agreement, there should be an observable record of respect for human rights rather than merely a rhetorical expression of support for them?
The hon. Gentleman is right. I do not want a piece of paper but a track record that has been tested, approved and signed by international organisations that we respect for their ability to investigate whether human rights are respected. Only that sort of track record would give me confidence that a deportation could be safe.
I thank the hon. Gentleman for his generosity in giving way again. I am straightforwardly seeking information. The French are known to have sent back at least one suspect to Algeria, which is one of our problem countries. Does he know what arrangements they have and whether we can use them?
I do not know the arrangements and I would be nervous about assuming that simply because another EU member state had sent an individual back to a country, we could tick the box for this country. I want to ensure that we have gone through the process properly. Other arrangements exist, but I want them to be of such a high standard that this country would be happy to sign them. We cannot assume that it is safe to send individuals back simply because other countries have done that.
It is difficult to summarise such a complex issue in 20 minutes. We believe that we should seek a cross-party consensus on such matters. The leaders of the two main Opposition parties will see the Prime Minister about the issue and I hope that we can make some progress. However, time is against us. We are required to renew the derogation in March. As things stand, the Liberal Democrats will vote against it. The Government have had three—nearly four—years to resolve those issues and progress has been too slow.
We want a balance between security and the important principles of justice. I hope that progress can be made, but the Government's proposals so far fail to achieve the balance. In many ways, they make a bad position worse by continuing to undermine the strong principles of justice that have served this country so well for many years.
I beg to move, To leave out from "House" to end and add:
"notes with approval the Government's intention to respond to the House of Lords judgment on Belmarsh by continuing to take all necessary measures to protect the security of the country and its citizens while acting in compliance with the European Convention on Human Rights."
I thank the Liberal Democrats not only for giving up their Opposition time for an important debate, but for the genuinely open and constructive way in which the arguments have been presented. I am keen to develop as far as possible some cross-party consensus about the serious, difficult and complex issues that face the country. I hope that, through debate, argument, discussion and consideration, we can find our way through some of them. We will not always agree and, as Mr. Oaten said in his closing remarks, we are discussing the balance between security and liberty. It is a difficult balance to strike and we may strike it in different places, depending on our perspective. However, I hope that we will act in a spirit of seeking the best solution for the future of this country. I take on board the hon. Gentleman's comments that he takes the threat seriously and that he has regard to the challenges that currently face the country.
I thank my hon. Friend for generously giving way so early in her speech. The point that she made about cross-party consensus can also be made about internal consensus within a party, and I think that such consensus can be found. An example would be when the Home Secretary, in his previous job, faced the very difficult issue of student fees. He took a great deal of time to talk to everyone, and used his ministerial team to do so, and a more consensual approach was arrived at, although it remained a difficult issue. Such balances can be struck, both inside and across the parties.
My hon. Friend is right. When dealing with difficult issues, dialogue usually helps. Being open to other considerations is also important.
As the hon. Member for Winchester suggested, we are under certain time constraints, and time is not always on our side. If we are to renew the part 4 powers, we shall have to do so by
I want to set this matter in context by saying a few words about the threat. The hon. Member for Winchester said that he did not doubt that the threat faced by this country was serious, and that it was of a different order since 9/11. That threat comes not only from foreign nationals, among whom it was concentrated immediately after 9/11. As a result of various operations that we have carried out, and because we are now uncovering more about the extent of the threat and know far more about the networks of terrorism, we understand that the threat comes not only from foreign nationals but, increasingly, from British citizens who are involved in this kind of activity. The threat remains serious, and it is the duty of the Home Secretary to protect the security of the nation. At the end of the day, that is probably his most important task, and he clearly takes it extremely seriously.
It is perhaps worth making the point that 9/11 did not demonstrate a threat that had not existed previously. The threat had indeed existed. The events of 9/11 told the people of the United States of America that it was a very real threat against them—a fact that they had not appreciated—and demonstrated the extent to which the sources of the threat could be hidden in the country that was being threatened, as they were in the United States.
The right hon. Gentleman is correct. Clearly, that threat was real and serious before 9/11. Incidents had taken place that revealed that. I am seeking to show that that threat is developing as we learn more about the activities that go on. The threat remains serious, but it is also becoming more complex and more textured as we learn more about the different individuals involved and approach the issue from different angles. The right hon. Gentleman is absolutely right, however. The threat was clearly there before 9/11.
The Home Secretary has regular, frequent discussions with the director general of the Security Service and the Commissioner of the Metropolitan Police. He also receives regular updates on the level of the threat from the Joint Terrorism Analysis Centre. He is in no doubt—and neither am I—that the threat remains, and that nothing has happened to diminish it or to call into question the Government's assessment that a public emergency is threatening the life of the nation. The judgment in the House of Lords found by a majority of eight to one that that was the case. They certainly came to different conclusions on proportionality and discrimination, but they confirmed that a public emergency was threatening the life of the nation.
That is my starting point for this debate, because it sets out the context of the threat. That necessarily shapes the action that we need to take to meet the threat and to protect the security of this country and its people. We need to strike the right balance between security and liberty, but my personal starting point is that terrorism poses a real and serious threat to the structures and people of this country. We have to put in place a framework that addresses that threat as proportionately as we can, and without discriminating, if we are to meet the terms of the Law Lords' judgment. We are currently engaged in a process to try to find our way through this legal system—with regard not only to our own legal system but to the interaction with the European convention on human rights—to find the way forward.
The hon. Member for Winchester said that we had taken an awfully long time to come forward with our proposals, but I take issue with him on that point. The Law Lords' judgment was made on
The hon. Gentleman also said that he could not possibly support the proposals made by the Home Secretary. That is a little premature. We have had the ministerial statement, but we have not seen the legislation and he has not seen the detail. I appreciate his support for some ideas around control orders, but I ask him to hang fire on judging entirely the proposals that we hope to make in the next few weeks rather than months.
We tried at that time to get a tight-focused response to the threat that was there. We used the Special Immigration Appeals Commission, because it was already in existence and it provided a way to take closed evidence, as well as open. It was chaired by a High Court judge and it had a structure to enable us to deal with the problem. Although the part 4 powers have since been traduced and parodied in some quarters as the Home Secretary's huge, broad-brush attempt to lock people up and throw away the key, nothing could be further from the truth.
We really tried to target the threat, which was mainly from foreign nationals. We could not deport them, so we used some immigration powers that were already on the statute book. That is why we went for that model. Clearly, the House of Lords has decided that that is incompatible with the European convention on human rights, although it has not decided that it is unlawful. Therefore, it is a matter for Parliament to decide how we respond to that.
There were two main complaints: the House of Lords did not feel that the detention powers were proportionate to the public emergency that we face and thought them discriminatory as they applied only to foreign nationals, rather than to British citizens as well. In a way, part of that argument is circular, because the Law Lords also expressed the view that, if the proposals applied only to foreign nationals and there was a threat from British citizens, was it not the case that they were disproportionate if we were not applying them across the board? Although they had concerns on those two separate limbs, there was also a connection between whether the powers were discriminatory and whether there was a similar threat from British citizens—were they therefore disproportionate because we had not exercised them against British citizens in such a way?
Is not this the dilemma that the Minister faces? If the detention orders apply to only a handful of foreign nationals, for the reasons she has given, and if the terrorism threat to this country is much more extensive—for the purposes of the debate, we must accept that it is—it seems almost paradoxical to say that the existence of those powers, confined to foreign nationals, is in any way sufficient or appropriate to meet the threat that the country faces. It seems to be partial because it is discriminatory. If she argues that only a few people are involved, that in a way weakens the case that she has to make. I expose that as a dilemma, without necessarily resolving it.
This whole area is full of dilemmas for us to try to resolve. They are not easy issues. We have said that the part 4 powers were exercised very sparingly indeed; we only ever certified 17 people. Equally, when we introduce control orders, we do not want to use this as a broad-brush measure. We want to target it on the threat. At the moment, all we have are powers of detention or no powers at all. That makes a good case for control orders, because we could have a spectrum of powers tailored individually to the threat that we face, which I hope will help us to meet the claim made by the House of Lords on proportion—this was a matter of all or nothing. The House of Lords did not feel that detention was proportionate in those terms.
Clearly, the case for control orders should be more reassuring to the country, as we shall be able to tailor the web of restrictions to meet the threat that we face, which inevitably will arise at different levels. As a general matter, as the Home Secretary said in his statement, we want control orders to be very tightly focused. We do not envisage using them in such a broad-brush way.
I accept what the Minister says, and the House of Lords judgment was clear, but what we have at the moment is what this Government have given us. She was not a Home Office Minister at the time, but the law that we have was introduced by a Labour Government and passed by Parliament. Some of us opposed it, saying that there were other measures—not all-or-nothing measures. That has always been an agenda option, but the Government decided not to choose it when it was available the first time round.
The existing powers have been subject to appeal. The Court of Appeal supported them unanimously; the House of Lords took a different view. Clearly, therefore, these are controversial matters, in both legal and political terms. The hon. Gentleman decided at the time not to support that way forward, but that way was taken and was supported by the Court of Appeal. We now have the Law Lords' judgment, and we are responding to that.
I was one of those who did not support the legislation when it was first proposed, not because I want there to be any terrorist outrages—quite the opposite—but because I want a process of law, not of Executive detention. The Minister must address whether it is right, in a democracy, for a Government to take on themselves powers to detain people without charge, and without knowledge of the evidence against them—indefinitely, in the case of foreign nationals. The response to the Law Lords' judgment must be that we accept the point of an independent judicial system—independent of the political process.
Yes, I shall come to those points. As my hon. and learned Friend Vera Baird pointed out in her intervention, we want rigorous independent judicial scrutiny of the proposed powers, but I shall come to those.
The proposals for control orders therefore address the issues highlighted by the House of Lords head-on: in relation to proportionality, as we will have a tailored suite of measures; and in relation to discrimination, as they will apply to British citizens as well as foreign nationals. They will apply regardless of the type of terrorism in which people are involved. The proposed restrictions will range from not associating with certain people to not having access to the internet or mobile phones, notification as to an individual's whereabouts and not visiting particular premises or areas. The Home Secretary has made it clear that the decision to make a control order would not be taken lightly and, rightly, would not be unfettered. Safeguards are important, and will include independent judicial oversight of the Home Secretary's decision to make or vary a control order. In addition to the right of appeal immediately against the order, there will be regular independent reviews, not just of the fact that the order has been made but of any conditions attached. Circumstances might change, so different conditions might be appropriate at different times.
The hon. Member for Winchester referred to the revocation of the certificate in relation to C, asking whether one day this person was a huge threat to the security of the nation, and the next day he was not. I shall not comment on his individual case, but circumstances might well change and people's networks of contacts might get degraded through disruption by police operations, so there might no longer be a need for the most rigorous conditions in a control order. It is right that one should be allowed to apply to vary and change the conditions envisaged in the control order at that time.
I shall make one further point, as it may help hon. Members. I am conscious of the time.
It is important to take the issue of who makes the orders head-on, as that is a difference between us at the moment. The Home Secretary said in his statement that
"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."—[Hansard, 26 January 2005; Vol. 430, c. 318.]
The role of the courts is properly to reach a view on the decisions of the Executive in accordance with the law. That is the position that we take in relation to that. Clearly, we shall continue to discuss and debate this matter. As the Home Secretary is responsible for the country's national security, he feels that abrogating those decisions to the judiciary is not the appropriate way to proceed. That does not mean that rigorous, independent judicial oversight cannot be done to make sure that any decisions taken are in accordance with the law. Our motion makes it clear that we want a system that is in compliance with the European convention on human rights. It was this Government who passed the Human Rights Act 1998, and we take our responsibilities incredibly seriously in that regard. We want to make sure that we are in compliance.
As I listen to the Minister, I find her comments increasingly reminiscent of the similar arguments that were used to defend detention without trial in Northern Ireland. Leaving aside the political and legal questions, does she accept that plenty of evidence from Northern Ireland suggests that even control orders have the adverse effect of turning such individuals into martyrs in the eyes of the very people whom she is trying to deter from terrorist activity? May I suggest that many of the proposals, especially on detention, could end up becoming a recruiting sergeant for the terrorists?
We are conscious of those arguments, and we have learned from the experience of trying to deal with terrorism over many years. I am sure that the hon. Gentleman would accept, however, that some individuals are committed to taking action that would strike at the very heart and fabric of the values that we hold dear in our democracy. They are out there. How do we strike a balance and operate a system that enables us to contain the threat against this country and, at the same time, maximise the rule of law?
We must try to ensure that we comply as much as we can but, at the same, we recognise that there are circumstances in which there is not sufficient admissible evidence. If evidence were used, it could reveal the techniques and capabilities of the Security Service, to the detriment of our ability to thwart and disrupt terrorists of that nature. That is an extremely difficult balance to strike. I am afraid that the hon. Gentleman is in danger of painting a black-and-white picture: either we let everyone out or we lock everyone up; either we comply with the rule of law or we completely abrogate it. There is a shade and a spectrum—we can seek to maximise our compliance with the rule of law while at the same time providing a rigorous framework that protects this country.
I do not intend to embark on a dialogue with the Minister, but I would point out that everyone agrees that detention without trial in Northern Ireland was ultimately counter-productive. I am merely suggesting that much of the language and the justification that she is using for Government policy sounds exactly like the justification used before detention without trial was repealed.
The hon. Gentleman repeats his remarks, but I do not think that it would be useful for me to repeat mine.
When the Home Secretary makes the orders he is not passing a sentence on someone; he is taking action to prevent them from threatening the security of this country. The decisions that he makes under part 4 of the present legislation have been subject to review by the Special Immigration Appeals Commission, which is a court chaired by a High Court judge who has seen the evidence, both open and closed. We therefore have a system of good, rigorous, independent judicial oversight, and we would certainly want to have at least as robust a system for the control orders, and to make sure that judges are involved in scrutinising the Home Secretary's decisions.
Surely the Minister appreciates that there is a difference between oversight and judicial decision making. There would be no abrogating of the Home Secretary's responsibility for security if he initiated a process in which the decision was made judicially and not as part of a lengthy subsequent review. There is surely room for the Government to move and recognise that most of the public would be much happier if the decision were in the hands of the judiciary and the Home Secretary merely initiated the process.
I accept the right hon. Gentleman's point, and I am trying to be as honest and straightforward as I can. The Home Secretary makes the decision because it is right, given his personal responsibilities for the security of the nation, for him to do so, rather than give that decision and responsibility to someone else. He accepts that it is right to have good judicial oversight, but he does not think that those decisions should be made by the courts. He thinks that initially they should be made by him in exercising his responsibility on behalf the Executive. I am sure that we will continue to have this debate, but it is right to be open about the matter.
I am sorry to disappoint my hon. and learned Friend, but I am not in a position to make proposals on those matters of detail, which need to be finalised. What is the standard of proof required? What is the extent of judicial oversight? Should there be a judicial review or an appeal? Is the process based on fact and law? Those are all perfectly legitimate questions, but I am not in a position today to give the House the information requested by my hon. and learned Friend. Those matters, including whether judicial oversight will be as robust as we want it, will be properly and fully explored.
The Minister has admitted that this is a really important matter. Would it not be far more acceptable, and better meet the Home Secretary's objectives, if the police were able to arrest someone if they believed that they were conspiring to commit an offence related to terrorism? That is what happens now, and as long as the police officer has a reasonable suspicion, it is not necessary to go to the courts every time the police want to arrest someone. Why cannot we have the same process, which would be open to judicial oversight if the police overstepped the mark?
I understand the hon. Gentleman's point, but I have already said that I am not in a position to provide a final view on the matter. The debate about the right process will continue. My main point is about who initiates and who makes the orders, and we seem to take different views on that. We are happy to discuss these matters as the debate develops on how the process should work.
I want to explain our approach more fully. It has been said several times that the most appropriate way to proceed is to prosecute. I want to put on record the fact that we absolutely share that view. Whenever we can, we want to prosecute, bring people to trial, adduce the evidence and let the court decide. It is only when we cannot prosecute because parts of the evidence are inadmissible or would reveal the capabilities of the Security Service that we find ourselves in the position of requiring some mechanism and machinery to enable us to protect the people of this country through a series of orders, while at the same time ensuring that we comply with the rule of law as much as possible. We always prefer to prosecute when we can. A number of prosecutions have already been launched and hon. Members may be aware of the comments of the new Metropolitan Police Commissioner, who expressed his frustration at how little detail we have been able to provide because these matters are sub judice. The public do not know the extent of the arrests, operations and work that have been carried out in order to bring people to trial. Prosecuting is, as I said, always our preferred option.
Some people are highly exercised about why we decided not to allow intercept to be used as evidence. It is right for me to provide hon. Members with some of our detailed thoughts on that matter. First, it is not a magic bullet. We have said time and again that the review examined whether we would be able to bring more serious criminals and terrorists to trial if we used intercept as evidence. The review found that that would not be the case and it examined the cases of individual detainees. As I understand it, it would not have been possible to bring any of those cases to a formal trial by using intercept evidence.
This country has a unique system of co-operation between our intelligence agencies and the police. It does not exist in many other countries. The sharing of intelligence product with our law enforcement agencies is second to none and there is a genuine worry that if we were to allow intercept to be used as evidence, that unique and close working relationship could be jeopardised. Some of the intelligence product might not be able to be shared with law enforcement in any case. I would be seriously concerned if the excellent disruptive work that currently takes place were to be put at risk because intelligence agencies felt it impossible to share their intelligence product with the police service. Indeed, if we allowed that to happen, as some have proposed, we would be taking a retrograde step. Once again, these are matters of fine balance and our decision is that, on balance, the benefits do not outweigh the costs at this time.
I want to question the Minister on the sensitivity of our allies in the war against terror. Most of them allow intercept evidence, so it seems strange that those who use it themselves should object to our using it. I have always found the argument unpersuasive since the time when I worked in the Foreign Office.
The right hon. Gentleman may find the arguments unpersuasive, but I find them quite persuasive as they are put to me at the moment. Clearly, we all have to make our own judgment about where the balance is drawn. We have a unique system of very close co-operation, and I am worried that we would jeopardise it if we used intercept as evidence. Secondly, we have an adversarial legal system, in which the defence has the right of full disclosure. If the security services were to use those parts of intercept that supported their case, they could be accused of cherry-picking the evidence. Quite rightly, the defence would seek to follow the whole chain of events in respect of the intercept that had been obtained.
Our adversarial system complies with the European convention on human rights and contains a number of hurdles that make it very difficult to use intercept as evidence. Moreover, technology is changing very fast indeed. We have been working to develop a legal model containing a system of checks and balances that would enable us to use intercept as both intelligence and evidence. However, the speed of technological change means that any model that we might develop would not be robust enough to interact with our legal system.
Other hon. Members have asked whether public interest immunity certificates would suffice to enable us to keep sensitive information about the security services' capabilities outwith disclosure. Again, the risk is that the courts would not support the PII certificate. If that happens, a capability that is disclosed is disclosed for all time. That is a major difficulty with using intercepted evidence.
I am not saying that the Government will not keep under review a matter that has been reviewed five times in the past 10 years. On each occasion, it was decided that intercepted evidence should not be used. I appreciate that people argue the other side of the case firmly, but the Government are not convinced that intercepted evidence could be used to fight terrorism more effectively than is the case at present.
I thank the Minister for giving way yet again; she has been very generous. I want to ask a question about the use of PII. Other nations, particularly America, have very formal structures to arbitrate between the interests of the state and of the defendant, and they work well. If the Minister is so doubtful about using PII certificates, why can this country not adopt such a structure?
All these matters have been examined. We have looked at other legal systems and protection mechanisms, as we are keen to find a way forward. However, we cannot simply transplant other systems into our law, as it operates in a different way. We are not convinced that we could achieve a system that was robust enough to protect the security services and at the same time allow us to use useful product.
In some countries that use intercept as evidence, the product is fairly minimal. Because it is used as evidence, other people are unwilling to share their product. That is a real concern for the Government. At the moment, we get excellent product because we are able to use it in surveillance and other activities that enable us to disrupt much of what might otherwise happen. The whole House will agree that the record of our intelligence agencies and police force in disrupting some of what might have happened in this country is second to none.
I apologise to the House for dealing with intercept at length, but the matter has been raised in a number of debates recently, and it was important to go through the issues associated with it.
The hon. Member for Winchester asked whether we would consider the Newton committee's recommendations in respect of looking at other offences committed preparatory to the commission of terrorism. We are actively looking at those recommendations. Control orders are our priority at the moment, as we want to have something in place before the part 4 powers expire. However, if there are other steps that we can take to make our judicial system more effective in fighting the threat of terrorism, we will of course look at all of them.
Mr. Deputy Speaker, I think that I have dealt with most of the issues raised by the hon. Member for Winchester. With your leave, I shall try at the end of the debate to cover any other matters that come up. I am pleased by the tone of the debate so far, and I am sure that all hon. Members will continue to co-operate in the search for solutions to the very difficult problems with which we are faced.
I begin by commending Mr. Oaten on the tone that he set for the debate. This is one of those debates in which hon. Members will not engage in political combat so much as seek to persuade each other. The opposing principles involved—the preservation of life, or the preservation of our way of life—are fundamental, and that is something that we should not underestimate.
I also want to commend the Home Secretary on the long overdue action that he has taken to make deportation possible. As I said to the hon. Member for Winchester, the French seem to be able to deport people to Algeria, which is one of our problem countries. Why can we not do so, not necessarily using the same mechanism, but using our mechanisms? As a former Foreign Office Minister, I recognise that this is a difficult but nevertheless creditable process.
As a former Minister, the right hon. Gentleman is aware that the Foreign Office monitors human rights issues in all countries and that the Home Office has its own internal system, although I believe that it is slightly different. Is he satisfied that if someone is deported to Algeria—there are plenty of other examples—they will not be subject to abuse or Executive detention, not necessarily on arrival, but later, which may be why they left that country in the first place?
The hon. Gentleman has raised a good point, and it is the sort of matter that the Minister would have to address in the memorandum of understanding. I do not agree with the hon. Member for Winchester that there has to be a legal framework, because a memorandum of understanding can be binding between countries. It should address torture and execution, which are the two primary issues, but also Executive detention. A judgment must be made, and it will be a better judgment than the one we have had so far.
I want to read some extracts from the minority opinion of Lord Hoffmann, who made some pertinent points that go to the core of the issue. He said:
"This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom."
As I develop my argument, I shall explain how the Government's proposal still falls within the description of the old system.
What Lord Hoffmann went on to say is important in the context of the Minister's reasonable comments about a state of emergency. He said:
"This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. 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 that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community."
In conclusion, he said:
"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."
I would not have chosen that phrasing, but Lord Hoffmann is saying that terrorists may destroy our buildings and our lives, but without our help they cannot destroy our way of life. That is what this debate is about today.
Does the right hon. Gentleman agree that the implication of that very good summary of the position is that there was not and still is not a case for derogating from our obligations under the European convention on human rights, because it allows flexibility in certain cases? That means that his party, like ours, will hold to the view that we must stay within the European convention and not seek to derogate again, which would be a different position from that taken by his party during the last Parliament.
I take the hon. Gentleman's point. I support the thrust of the argument urged by his party today. He will not be surprised to hear that I would have phrased it in terms not of the ECHR but of our fundamental rights, which are of longer standing. Let us consider how the Government can deal with the matter in a way that meets the fundamental rights about which I am concerned and the concerns that he is expressing.
Although I realise that there is a good reason why the Home Secretary cannot be in the Chamber today, I am sorry that he is not here, as I was going to tease him slightly. When he and I first knew each other more than 30 years ago in the 1960s the most fashionable writers were revolutionary left-wing writers, such as Guevara and Frantz Fanon. Some of the writers that the Home Secretary would have read made it clear that one of the main aims of revolutionary terrorist acts is to provoke a reactionary response from the state, to recruit new people to their cause. We must bear that in mind when addressing these issues so that we do not inadvertently do what the terrorists want us to do—in effect, that is what Lord Hoffmann was talking about.
The Home Secretary's proposed actions may not only be in breach of hundreds of years of our ancient British liberties, they may also be counter-productive. I do not normally quote Frenchmen, but in the words of Talleyrand this is, in terms of the war against terror,
"worse than a crime, it is a mistake".
That is the risk we face. As I said about house arrest when the Home Secretary made his statement to the House on the matter, he may lock up one known terrorist but he will create 10 unknown terrorists. Although house arrest is marginally less draconian than being in prison, the irony is that it may act as a stronger recruiting agent because it is in the middle of the community from which the person comes.
I am not the only person who takes that view—the most eminent ally I have found over the past few days is the chairman of the Bar Council, who said:
"Disproportionate measures risk radicalising the community from which a detainee comes. That may make this country less rather than more safe."
It is important that we keep that in mind.
I assume that the right hon. Gentleman is talking about the current situation in Belmarsh rather than the Home Secretary's new proposals. Can he put that scepticism in the context of his support for the Anti-terrorism, Crime and Security Act 2001? In December, he told Morgan and Platell that he could not remember whether he supported the Act. Is his memory any better now? Can he tell us whether his new position is a U-turn or what he always believed?
If the hon. Gentleman wants us to return to political combat I am happy to do so, but I am not talking about the old system, I am talking about what is now being proposed. The Minister could not elaborate in detail on that set of proposals, but we shall no doubt hear more over the next few weeks. We shall have to assess the proposals in terms both of the fundamental human rights in which I believe, even if the hon. Gentleman does not, and of the safety of our country. I happen to believe that the proper action will maximise both and will not act as a compromise between them, as I shall explain.
We should address the principles of justice that are being jeopardised by the Government's proposals. The first is the presumption of innocence. Then there is the person's right to know the charge against them, the right to know and challenge the evidence against them and the right for the case against them to be proven beyond reasonable doubt. It was failure on all those counts that led Ian Macdonald to resign from his position as a lawyer serving the Special Immigration Appeals Commission. He talked about the new proposals as follows:
"They are really using detention rules which have been declared unlawful. At the end of the day if you're going to keep people in some sort of house arrest or in prison, you really have to take account of what I think is a fundamental principle, that people are presumed innocent. If they're really dangerous they should be charged under criminal law."
That is the key point before us today.
Objections to the SIAC procedures apply equally to the new proposals.
Although Ian Macdonald resigned, that was surely triggered by the House of Lords judgment. I have known him for many years, and he is a man of the highest calibre. He served in his role for more than two years, feeling, as he made clear, that he had been doing something helpful and that he had been able to assist the defendants, which shows that SIAC is not a hopeless and futile pursuit but that it can in fact play an important role. That is not something that should be diminished.
The hon. and learned Lady makes an important point. I think that I am right in saying that Ian Macdonald said when he resigned that he had joined up because he thought he could help by doing a good job. The circumstances that he describes sound like a slow process of becoming more and more disaffected with the operation of the procedures, which, as she suggests, precipitated his resignation after the House of Lords decision. In fact, he was not the only one who felt that way: at least one other resigned and a number of others considered resigning, and for good reason.
My right hon. Friend knows that I am against the Government's proposals in principle. Will he also address the Minister's statement to the effect that there will be rigorous legal supervision of the control order process? He will bear in mind the fact that she was unable to answer the question that Mr. Marshall-Andrews asked about whether the judicial review would extend to facts or only to law. She said that she had not made up her mind. Until we know what her mind is on that matter, she is in no position to say that the judicial supervision will be rigorous.
I start further back than my right hon. and learned Friend. First, I do not like the idea of the Executive taking such decisions. Even under the current procedure, people have been in prison for three years, and perhaps longer in one case—we do not know—so I do not like it from that point of view. I do not like the state taking those decisions into its own hands. As I am about to explain, I also think that the standards applied on questions not only of law but of fact are very important. That is where the primary criticism of SIAC lies, in my judgment.
After all, the purpose of the Newton committee, which was set up at the beginning of the process when the 2001 Act first came into effect, was to assess how the legislation was working and to ensure that the House received a report on its operation. At the beginning, as the hon. and learned Lady made clear in her intervention, many people did not quite know how the system would work, but they wanted to try to make it work. They were very good, high-quality people, but they have reached the conclusion, as Newton did, that the system is not working well.
Let us bear in mind the fact that the Newton committee included several ex-Cabinet Ministers and ex-Ministers who had responsibility for security in Northern Ireland—not people who would normally be viewed as a pushover for the civil liberties lobby. They reached a series of conclusions and a number of principled objections to the operation of detention established by the 2001 Act. Essentially, the committee noted that the suspects faced no specific charge and were not presented with, and given the opportunity to refute, all the evidence against them. It reached the judgment that that increases the risk of a miscarriage of justice—the point that came up in the Liberal spokesman's comments.
The report also suggested that that risk is compounded by certain features of the certification and adjudication process. For example—in my view, this is almost the most important thing at the centre of the issue—the standard of proof involved in the SIAC procedure is "reasonable belief and suspicion". That is an incredibly low standard of proof on which to undertake the incarceration, certainly of a citizen of this country, but frankly, of anyone. Let us understand that point. We talk about the terrorist destroying lives, but incarceration is a way of destroying a life, too. Such people cannot work or do anything. Even if people are incarcerated in their own homes, it still involves the destruction of the life that they have a right to expect if they are innocent.
In addition, the current SIAC rules do not oblige the Home Secretary to reveal all the material that could help the suspect, even in summary form. Sometimes, the vast majority of the details of a case are closed, so the open case might be an unreliable indication of the basis of the closed case. The report also noted that detention under part 4 can be for an indefinite period—one of the more Kafkaesque aspects of the current system.
The problem with the Minister's inability to reply to the hon. and learned Member for Medway is that, as my right hon. and learned Friend Mr. Hogg points out, we must assume for the moment at least that the same approaches, criticisms and concerns will apply to the review process that will follow on from Executive detention or control orders in the looser sense. In my view, that is, frankly, unacceptable. It is not consistent with the long-term liberties of British subjects, and as I have said already, it may be counter-productive.
I have heard all the right hon. Gentleman's reservations about SIAC, but if the same system carries on, surely the answer to the question asked by my hon. and learned Friend the Member for Medway is yes, because the new court to replace SIAC will, as SIAC does, review the facts as well as the law.
The hon. and learned Lady is right, but part of the problem is that the facts will be reviewed using a lower standard of proof. Additionally, in some instances, much of the case might be the secret case rather than the public case. The procedure is poor.
In a moment, because the hon. and learned Lady raised a serious and important question. The procedure is poor for a country that has long stood by the presumption of innocence, the right of people to know the charge and evidence against them, and to be able to refute it beyond reasonable doubt.
People of good will on both sides of the House are trying to help the Government to reconcile the awful dilemma between terrorist threats and attacks on civil liberties. Is not one way forward the fact that few cases have resulted in people being incarcerated in Belmarsh? There have not been several hundred cases, but instead only a relatively small number, so surely that gives us more leeway to use procedural sophistication to try to overcome the dilemma.
I do not think that it does. Obviously it is better to have few cases rather than many, but even one case of injustice is sufficient to warrant the serious attention of the House. It takes only one case of injustice to act as a recruiting sergeant, as I said earlier. That is why I am worried and why I want to outline what I believe is the right procedure for the Government to pursue, which I hope will meet the requirements for both national security and our liberties.
Is not the other problem with the point made by Mr. Allen that although the Home Secretary initially said that he thought that control orders would rarely be handed out, he gave media interviews in which he said that they might have to be handed out to relatives, friends and associates? We might be dealing not with a limited number of control orders, but with a large number.
That is true. The simple fact of the matter is that the House could not pass a law on the presumption that it would apply to only one or two people. It must use the presumption that a law will be used to its maximum. If we look back at the case that the hon. Gentleman raised, I recall that the evidence had not changed but was found to be too weak to sustain the case against the individual. It is implicit in that that a person was locked up wrongly for three years. If only one person is locked up wrongly, let alone hundreds, it is too many.
The Newton committee made several proposals, two of which stand out in the context of today's debate as offering the Government a way forward. It recommends developing a body of counter-terrorist law that is specific to the problem that we face, but capable of being enforced without compromising our criminal justice system. I agree with that, and the Liberal Democrats' proposal was in part a development of it. However, I got the impression that the structure could be wider than that, and if we hear from Mr. Beith, a member of the Newton committee, he might clarify that point. I thought that the committee had in mind a complete body of law applying to terrorist offences that would be part of the criminal law, but separate from it. For example, when the American authorities had trouble securing effective prosecutions against gangsterism and racketeering in north America, they introduced the RICO—Racketeer Influenced and Corrupt Organisations—Act. Perhaps such an approach should be considered for terrorist offences.
The most important suggestion made by the Newton committee was the proposal to render terrorist suspects capable of being brought to trial under the normal British system of justice. It suggested that intercept evidence should be allowed in court, and proposed— I thought that this was the most important aspect—that an investigating judge who was different from the trial judge should sift the sensitive evidence.
The presumption so far seems to have been that such evidence would be only intercept evidence, but the proposal was for assessing and checking sensitive evidence—intercept and all other intelligence-based evidence—before presenting it to the court in a way that protected the intelligence source, human or technical, and at the same time protected the rights of the defendant.
The Minister spoke about public interest immunity certificates. I am not a fan of them. When I have been asked to sign a certificate, I have refused because I have taken the view that they were being used to avoid embarrassment for the Department concerned rather than to pursue justice. Given the Minister's concern about PII certificates and the right of a judge to overrule them, that is the area where the Government's focus should be sharpest, because it is where we have the greatest opportunity for advancing the case for the possibility of prosecuting terrorists while at the same time protecting our services.
I talked privately to the Home Secretary about the matter and, as far as I can without giving away any confidences, I will replicate that conversation. The Home Secretary said, as the Minister has said, that it may not even be primarily intercept evidence that is involved in tracking down suspected terrorists and determining who they are. Let me put the most difficult case and see how we can pursue it under the Newton rules. Let us assume that the data are not intercept data but from an informer whose life might be at risk in a terrorist organisation and who is so nervous that he will not even meet the investigating judge to be interviewed. What will happen to that person if they are not put under house arrest?
The first thing that we must understand is that if the person concerned is a threat to the state and to our citizens, they will be under the most intensive surveillance—what the agencies delicately call technical attack: bugging, video surveillance, human surveillance, intercepts of mobile, landline and satellite telephones, and of e-mails and bank accounts, and the tracking of vehicles. There is a vast range of facilities available to the security services.
If at the end of that process there is no evidence, we are talking about locking somebody up as a result of an uncorroborated comment from an informer who might be an enemy, might be in political opposition to the person, might have been bribed or might merely hate the person. Either one can develop the evidence and determine that the person is a terrorist or one cannot. Given the intensive nature of the surveillance that will be ranged against somebody who is a serious threat to the state, it is untenable that a case could not be built even if the original data that allowed the individual to be targeted were not used.
The countries on mainland Europe that use such a system do so because they have an inquisitorial tradition, where it is acceptable to have an examination by somebody competent to filter out the evidence that can go to stage two. Such a change might require us to alter our mindset and do some jobs not adversarially but by an inquisition. I and my colleagues are up for that, because it preserves a proper legal process and ensures that sources are protected where necessary.
The hon. Gentleman is absolutely right. He probably understands how big a jump it is for me to go to a continental inquisitorial system from the normal adversarial systems that I prefer. The simple fact is that the judge, who will presumably be a specialist in the area, would be duty-bound by the requirement not only to protect absolutely the lives and technical sources of the security services, but to ensure that the defence is not prejudiced in the evidence presented to the court in summary or in total. That seems to me to be a perfectly acceptable system. It will be of a higher quality, and in the long run more effective than our present system, and it will be entirely defensible to the communities that might otherwise be radicalised by inappropriate measures.
Does my right hon. Friend agree that in the scenario he paints involving the single informer who might have a prejudicial interest in the person in question, it would be unacceptable, under the system that the Government propose, for Ministers to conclude that that person was a threat if that was the sheer weight of the evidence available to them? Unless there is some way to test the accusation and to do so objectively, it is not acceptable to put people in prison or to some other inconvenience simply by administrative fiat.
My hon. Friend puts the argument better than I could. We are, in effect, discussing sending someone down on the uncorroborated say-so of a single informant. I defer to my right hon. and learned Friend the Member for Sleaford and North Hykeham, but I spent about nine of 13 years dealing with the agencies involved in this issue, and they were very clear that the people they dealt with did not always demonstrate the most saintly calibre in providing information. The agencies had to corroborate the information that they gave—a matter with which the House has become all too familiar in the past year.
The right hon. Gentleman correctly identifies one of the great difficulties: the inability to establish what information can be released to the defence so that the accused is aware of the allegations being made against him. What is not clear to me is how the process that he describes would enable more information to be released to the defence than would be possible under the Government's proposed system.
The process would allow more information to be released to the court—not to the defence—because, to be frank, it would not allow a fishing expedition to be conducted into the totality of the intelligence agencies' data. As things stand, a defence lawyer would be able to say, reasonably, "We have been given only half the evidence. Now, I need to see the other half." Our aim is to ensure that the balance is maintained.
The second difficult case that I wish to put relates to the Liberal Democrats' proposals for milder methods—using tagging and other sorts of control order. I gave the matter extensive thought in the weekend following the Home Secretary's statement. I started from the presumption that whichever standard of proof was applied to the Government's proposal of house arrest would be applied to control orders—in effect, suspicion. That is a concession in terms of our law and our fundamental liberties.
I then thought what advantage would arise from the Liberal Democrats' proposed method. Tagging is clearly a valuable technique in dealing with criminals. I suspect that the Minister for Crime Reduction, Policing and Community Safety knows more than most about it. Criminals tend to come from a community and to have family in the country, so if they break their tag, they will be found again at some point and go to jail. However, the first thing that a terrorist whose only connections in this country are those of a terrorist network will do when he or she is tagged is cut the tag and vanish. A proposal that appears to provide greater security but, in fact, does not, and which sacrifices normal standards of proof as well, is dangerous.
The right hon. Gentleman gives me the opportunity to make it clear that the Newton committee did not recommend house arrest. It recommended movement restrictions. Such restrictions have to have purposes, primary among which would be to prevent a person who is suspected of associating with terrorists from doing so or furthering their objectives. A combination of restricting a person to a specific locality at certain times, excluding him from certain types of communication and tagging him to determine where he is would provide a basis on which a measure of liberty could be restored to that person, but would also give us some means of knowing that he is not resuming associations of which there is some reasonable evidence.
I accept that that was the argument made in the Newton report, but it is the one aspect of that report by which I was not persuaded, mainly because it seemed that there was the ability to escape at some point. That is the difficulty. We cannot take such a risk with someone who presents a lethal threat to the community. I grant that there is a trade-off with regard to allowing more liberty, but against the standards of proof that that are being talked about, I would not make that trade-off. That is my argument. I say to the right hon. Gentleman that I found the Newton report a formidable document and was unpersuaded only by that one small component. That is why, after some deliberation, my party has come to the conclusion that has been set out today.
In essence, that is right. With regard to the prospect of a terrorist offence, we concluded that the terrorist must either be under control or not. I do not think that the proposal that the hon. Gentleman made, which I accept is new, is one that we can accept.
The issue comes back to the sacrifice that has to be made, which is a sacrifice of standards of proof and the presumption of innocence, which I think are fundamental—in other words, the basic standards of liberty that we determine here. Incidentally, I am not at all sure where the requirements for the standards of proof and control orders would fit into the human rights issues raised by Simon Hughes.
First, I am told—I have not done the research—by somebody who I know has talked to members of the right hon. Gentleman's party, Professor John Spencer in Cambridge, that in other European jurisdictions, there are control orders that have been found to be European convention-compliant. Secondly, like my hon. Friend Mr. Oaten, I ask the right hon. Gentleman to keep the door open, to use a phrase that the Home Secretary used. If we are going to get agreement across parties, we need to be prepared not to close doors at this stage of the debate.
I accept that and hope that the hon. Gentleman recognises that I have tried to speak in precisely that tenor. As he refers to keeping doors open, let me raise with him a serious problem that arose from the comments made by the hon. Member for Winchester. I was not going to deal with the matter, but I shall do so now. The Liberal Democrats are saying that they are going to vote against continuation of the part 4 order. That gives us one month to come to a conclusion on an issue that is undoubtedly one of the most difficult that the House has faced for some years. I am entirely open-minded in this matter. I have some very strong views about the principles, but we come to the matter with an open mind to try to get some sort of conclusion in the national interest. I have tried to lay out precisely why I have serious concerns, and I say to the Liberal Democrats that I have not come to a conclusion about what we are going to do on part 4, but I would not want to impose an artificial deadline on a decision about the liberty and safety of the British public on terms such as those that have been mentioned.
As we are all trying to be helpful to each other, let me be helpful to the right hon. Gentleman. If we ran out of time and could not reach an alternative before the derogation was required, one of the things on which we would wish to engage with the Government would be seeking not an annual derogation, but some sort of ring-fenced period for the derogation, on the understanding that we would seek an agreement before the derogation was allowed to continue.
I am glad that I have made some progress on behalf of the Government.
If we implement the Home Secretary's proposals, inasmuch as we know the detail at the moment, there are still likely to be terrorist acts. There is no doubt about that. If we do not implement the proposals, there are still likely to be terrorist acts. The raw truth is that whichever way we go, there will be terrorist acts. People from all parties have said, "Oh, surely you can't disagree with the Government on this, because you'll be blamed the next time there is a terrorist act." I think that that is ridiculous and I do not think that the Home Secretary would take that stance either; he has effectively told me so already.
My judgment is that, if we take the route of protecting our way of life, it will be the best way of protecting our lives as well. That is the way around the matter. Quite understandably given his task and job, the Home Secretary talks all the time about protecting lives, but we have to protect the way of life as well as lives. If we protect the way of life, we will create fewer recruits for terrorist organisations and actually protect our lives better.
Before the right hon. Gentleman concludes, will he speculate on one matter relating to the Government? Before the House of Lords judgment, there was no indication—perhaps he can help me on this—from the Government or anybody else that it was considered necessary to extend detention without trial to British subjects. The House of Lords judgment was then made and we are now told that it is necessary to extend detention without trial to British subjects. Can he speculate on what has happened in truth during that time?
The hon. and learned Gentleman tempts me too much. I could speculate about the perverse effects of human rights legislation, but I shall not go down that route.
Terrorism is not new to this country and we have faced it down before without giving up our fundamental rights. We did not give up our fundamental rights after an almost successful attack on the Cabinet and the Prime Minister in the Brighton bombing, the assassination of a member of the royal family, the Omagh bombing or the deaths of many soldiers and civilians in Northern Ireland. We did not give them up then and we should not abandon them now. In this debate, we have tried to maintain an open and persuasive approach. We will try to be as constructive as possible in the coming weeks, because the issue is fundamental to all our constituents. I reiterate that the best way in which to defend our lives is to defend our way of life.
I shall begin by responding directly to some of the comments made by David Davis. The fallacy that we have faced the threat of terrorism before and that we can face it this time has been raised on many previous occasions. People who make that claim fail to understand the nature of Irish terrorism, which we faced before, and Islamist terrorism, which we face now.
We were able to "face down" Irish nationalist terrorism because the previous Government, in which the right hon. Gentleman served, and this Government sat round a table with IRA representatives and reached a political agreement. Disagreements arose about exactly how to proceed, but given that the IRA had a political aim, it was possible for elected politicians to sit down with its representatives and ask, "What can we agree on? Where is the common ground?" Through that process, which has been long and hard, we have managed to face down the reality of Irish nationalist terrorism in this country.
I am amazed that the shadow Home Secretary has failed to grasp that, by definition, the people who now plan to engage in terrorism against our people and our nation cannot be reasoned with. On a number of occasions, Osama bin Laden has said that it is perfectly acceptable to kill all American citizens and all Jews, and to destroy the state of Israel. At what point do we sit down around a table to negotiate and ask, "Where is the common ground?" There is no common ground. For the right hon. Member for Haltemprice and Howden to claim that there is any similarity between what we faced in the '60s, '70s and '80s and what we face now, especially since
I am disappointed that the title of the debate is "Belmarsh Judgment" and that the Home Secretary had to come to the House with new proposals to replace the existing arrangements on the detention of terrorist suspects in Belmarsh. I have absolutely no doubt that their lordships made the correct decision as far as the law is concerned, but I am disappointed that we must water down and compromise our arrangements.
I am surprised by the hon. Gentleman's view. I hope that all hon. Members accept that laws passed in this place must comply with our national and international obligations. If the Law Lords, who are judges from all over the United Kingdom, say that something is illegal, I hope that he accepts that that is the final say and that it is right for us to re-examine the matter.
Perhaps I did not make myself clear. I was not suggesting that the Government should ignore the House of Lords ruling—I was expressing disappointment that the Law Lords made that ruling in the first place, because I had hoped that taking the legal framework into account they would conclude that the existing arrangements were legal. However, I entirely understand that we are a responsible Government and have to abide by the rules and laws of the land as decreed by the House of Lords.
I have a question for my hon. Friend the Minister. In Belmarsh there are a dozen or so terrorists—people who were planning to kill and maim citizens of our country, but were free to leave the country at any time simply because they are foreign nationals. The nub of the Lords' objection to the new arrangements is that they do not apply to British nationals. Will my hon. Friend clarify the new arrangements that will apply to foreign nationals and to British citizens? Presumably, British citizens will not be able to escape control orders by leaving the country. Will the provision allowing foreign nationals to leave the country if they wish apply under the new arrangements? In other words, will they be able to escape tagging orders or house arrest by leaving the country?
Since this is the Liberal Democrats' motion, I should like to deal with some of the points raised by Mr. Oaten. Many people taking part in this heated debate will claim that there exists no threat to our nation, and that these measures and others introduced by the Government are therefore unnecessary, or will claim, as I do, that there exists a very real threat and that not only are the proposed measures absolutely necessary, but we may have to consider even more strict measures in future if we are to protect our country.
I am listening carefully to what my hon. Friend is saying. In the light of this threat, how does he justify the detention of people without trial and without knowledge of the charges against them, given that there is a danger that they have been incarcerated on evidence that would not stand up in court, which leads to the self-serving belief that the guilty are being held in jail, when they may well be innocent? That is a much greater threat than that which exists at present.
I am not entirely surprised that my hon. Friend expresses that point of view. Looking at the 12 detainees in Belmarsh, any reasonable person might think that there was not enough evidence admissible in court—that is different from flimsy evidence—to bring about a conviction, while others may think that they have been done bang to rights because they are obviously a clear and present danger to our nation, but it is difficult to understand how anyone could believe that the only reason that they are there is because a vindictive Government is picking on 12 innocent people.
My point, which perhaps I did not make very clearly, is that security services information can be wholly inaccurate. It can be based on people pursuing a vendetta against somebody else in a particular community, and then becomes very dangerous when it gets a life of its own based on a fundamental inaccuracy. I am not suggesting that Ministers go around perversely saying, "I want to imprison X, Y or Z," but they might be advised that there is evidence against that person, and that ends up with their imprisonment.
The Home Secretary has already said that, as with the current system, the new system will be subject to independent judicial oversight. There is nothing more certain to obtain a round of applause during "Any Questions?" or "Question Time" than a member of the panel saying, "The security services got it wrong on Iraq, so they must be wrong here." That is a nonsensical argument. As we have seen, it is very difficult for the security services of any country to come to hard conclusions about the threat that a nation poses to another nation. It is a different ball game altogether to come up with the conclusion that an individual is planning to be a threat to a particular nation. That evidence is much easier to come by. It is wrong to compare the security services' record in Iraq with their record in the context of the Belmarsh detainees.
Does my hon. Friend accept that the risks in getting the matter wrong are immense for any Government and any responsible political party? If people perpetrated a 9/11-style atrocity in the UK and the Government had not taken advantage of the ability to take them out of commission, that Government would never be forgiven. However, does he accept that one of the best ways of gaining public and cross-party support is to ensure that our democracy defends itself in the most democratic way possible, given the constraints? Will he therefore keep his mind open to the possibility of pushing back the Government's view a little on some matters, on which we could achieve broad consensus and so keep our people on side on the important issue of ensuring that terrorists do not have a free rein in this country?
My hon. Friend has perfectly expressed the nub of the argument. I agree that it is important for the protection of our culture and our nation to defend our rights in as democratic a manner as circumstances allow. I believe that the Government's proposed measures do exactly that. That is our fundamental disagreement with the Liberal Democrats. Despite the new-found atmosphere of cross-party co-operation, of which I have never been a great fan, I do not have much confidence in the Liberal Democrats' claims to give the nation's security as high a priority as they should, given the comments of the hon. Member for Winchester.
Of course I shall give way, but I note before I do so that the hon. Gentleman refused to give way to me twice. However, I shall show him the courtesy that he denied me.
I appreciate that. However, I should like the hon. Gentleman to acknowledge that I spent four or five paragraphs of my speech emphasising that the Liberal Democrats do not for a single moment underestimate the security risk to this country. It is disingenuous of him to claim something completely different.
I am sorry that the hon. Gentleman has thrown his rattle out of the pram. If he had not interrupted me, I would have got around to a more in-depth analysis of his comments.
I began by saying that people in this country will say either that there is no threat and the measures are unnecessary or, as I do, that there is a huge threat and they are necessary. The Liberal Democrats, unsurprisingly, say both. They claim that there is a threat but that we need to devise new measures. What measures? They spoke about the balance between security and civil liberties. It seems to me that they strike that balance much more at the civil liberties end. That is understandable, given the traditions of the Liberal party. There is nothing dishonourable in that position but I have the right to say that, if their proposals were implemented, it would have a negative effect on security. That is my position.
The hon. Gentleman's understanding of Northern Ireland history is fascinating if rather different from mine. I remember that negotiation was based on hard-nosed military activity as well as other aspects.
I am interested to hear his comments given that, when the Home Secretary announced the new measures, the Government were most anxiously repatriating British citizens from Guantanamo Bay while the American Government were proving that some of those whom they had set at liberty from Guantanamo Bay had been either killed or captured in subsequent terrorist actions. Is not that an anomaly?
I am not clear about the hon. Gentleman's point. I have always rejected comparisons between Belmarsh and Guantanamo Bay. I receive many letters claiming that Belmarsh is Britain's Guantanamo Bay. That makes no sense and I have always avoided making that comparison. Would the hon. Gentleman like to intervene again to clarify his point?
If I understand the hon. Gentleman correctly, he is suggesting an extremely hard line to protect this country by taking measures that some would view as illiberal, at the same time as the Government suggest that individuals who have been suspected of terrorism should be returned to this country and put at liberty.
Yes, the hon. Gentleman is absolutely right. I continue to oppose the US Administration's illegal detention of people at Guantanamo Bay. The Supreme Court of the United States has decreed that those detentions are illegal. Our Government, however, brought proposals to the House of Commons that were voted on, passed by the upper House, and became law. That is somewhat different from what President Bush did in regard to Guantanamo Bay, which was to detain combatants from the Afghan war in a geographical location specifically chosen because it was outside the legal remit of the United States. That is very different, which is why I have always rejected any comparisons between Guantanamo Bay and Belmarsh. I hope that that clears up the matter for the hon. Gentleman.
The hon. Member for Winchester came out with a curious phrase when he said that we should seek prosecutions "in the normal way". This brings me back to the fundamental issue in the debate that we have been having ever since
Surely the purpose of any Government must be to try to obstruct and to collapse all terrorist networks operating in their country. Nothing that the hon. Member for Winchester said would lead me to believe that terrorists would be quaking in their boots at the thought of any new proposals introduced by the Liberal Democrats. Nothing that the hon. Gentleman is proposing would have a serious effect on the terrorists.
What would the hon. Gentleman say to the right hon. Members for Islington, South and Finsbury (Mr. Smith) and for Gateshead, East and Washington, West (Joyce Quin), who served with me on the Newton committee, and who felt that, although there was a serious threat that required measures to deal with it, the measures that the Government had put into force—which we were reviewing—were unsustainable, and that other measures therefore had to be found?
That is why we are having this debate. The right hon. Gentleman should concede that my view on this matter is pretty unambiguous—[Interruption.] I am an elected Member of this House and I am entitled to my opinion. The decisions facing all democratically elected politicians since 9/11 were always going to be extremely difficult. We were not elected to this House to make easy decisions. We were elected to make very difficult decisions, and sometimes they are unpopular. My views on this do not concur with those of the right hon. Gentleman and his right hon. and hon. Friends—
Indeed. I have no problem with that. I am prepared to stand up here and argue my corner. Let us have a vote on this, and we shall see whose view prevails.
The right hon. Member for Haltemprice and Howden said that a suspect's right to a trial and to know the charges against them were fundamental. He said that they were the fundamental rights of a free citizen in this country. Well, he was half right. Those rights are fundamental. People have the right to a fair trial and to know the charges against them, but another right has much greater priority: a far more fundamental right is the right to life.
Occasionally, I have been a tad unfair in this House to those who have had a legal training—I do not include myself in that number. I hope that my hon. and learned Friend Vera Baird will forgive me for saying this; she and I served on the Standing Committee for the Proceeds of Crime Bill—we sat through 39 sittings—and that was the first time that I had experienced this lawyerly culture. The Proceeds of Crime Bill was designed to allow the Assets Recovery Agency to confiscate such proceeds from people who had not been found guilty of anything in a criminal court, through a civil procedure based on the balance of evidence. That was the fundamental point of that Bill, and it was fought against root and branch by the Liberals and the Conservative party on that particular legal point.
It was claimed by those with legal training that it was unfair for the Assets Recovery Agency to confiscate anything from someone who had not been proven guilty in a court of law. Perhaps they were right; perhaps they were wrong. I certainly had no problem in supporting those measures, and today the Assets Recovery Agency—in Scotland the Crown Office—is confiscating millions of pounds a week from drug dealers who have not been found guilty in court. We do not have enough evidence to convict them, but nevertheless we are confiscating their homes and cars. We are freezing their bank accounts and taking money from them, then distributing it in the communities that their activities have most damaged.
Lawyers among us may say that that process is not particularly fair, just as they are making the same arguments today. If the priority of the Government is to safeguard the lives of our citizens and the fabric of the nation, arguments about due process are the equivalent of arguing about the number of angels dancing on the head of a pin.
My hon. Friend has been very generous in giving way a second time. Was he as surprised as I was to hear from Opposition Front Benchers the implication that none of the people in Belmarsh should have been detained, rather than a suggestion that there should have been greater democratic safeguards or a further judicial or parliamentary review, which some of us would be happy to see? I am sure that Patrick Mercer will jump to his feet if I am wrong in that assumption, but I got the strong impression that they think that all those people should be let out under some free market justice system to do what they may have intended to do.
I get the feeling that the hon. Member for Newark may be about to intervene. The Liberal Democrats challenged the right hon. Member for Haltemprice and Howden during his peroration on whether it should be jail or nothing, and he agreed on that. That leads me to the inevitable conclusion that under a Conservative Government the legislation that all those Members voted for in December 2001 would be scrapped and all the people in Belmarsh, or those who might subsequently be held under house arrest, would be allowed to go free because the threshold of acceptable evidence that they say legal process demands had not been met.
I am most grateful to the hon. Gentleman for his generosity in giving way. My right hon. Friend the Member for Haltemprice and Howden was making the point that, above and beyond everything else, it must be clear to the terrorist that our values remain constant and proper, no matter what threat is thrown at us If that means that we have to examine due process and the constitution as it stands, and if it means that those held without charge who cannot logically be brought to court have to be released, so be it. If we do not do that, we give away one of the fundamental freedoms that terrorists are trying to assault.
I am sure that the many dozens of people watching the debate live on television will reach their own conclusions based on what the hon. Gentleman just said.
I want to address the issue of wire tap or intercept evidence. I was extremely concerned when the Government announced last year that they were considering the possibility of allowing wire tap evidence in court. The security services were extremely concerned that a crucial source of counter-terrorist information would dry up if wire tap evidence were permissible in court. The right hon. Member for Haltemprice and Howden legitimately pointed out that many other countries, including some of our closest allies, allow intercept evidence in court.
Let us look at the American example. In many states in America where wire tap is allowed, that source of information has all but dried up because criminals—members of the mafia and terrorists—understand that things that they say on the telephone will inevitably be used against them in court, and are extremely careful not to say anything on the telephone. That is exactly why, I am glad to say, the Government have been very reluctant to conclude that the law should change.
Had the current legislation continued, as the hon. Gentleman wishes that the Lords had allowed, would not such people say to themselves, "What I say on the wire tap could be used to hold me in Belmarsh"? Surely whether it is used in court, or as part of a wider net to capture them, they will still know, or assume, that they are being tapped.
One of the most unhelpful aspects of the wire tap evidence debate is that it has become so high-profile that what the hon. Gentleman says is probably half right. I would have preferred it if this debate about wire tap intercept evidence had a lower profile. I remain firmly of the belief, however, as do the security services, that admitting that type of evidence in court will do nothing to increase the number of convictions, and will result in information that the security services currently use to avoid terrorist atrocities no longer being available. That is a very important point. I firmly believe that terrorist attacks of the order of Madrid, Istanbul, Bali or even
Given that wire tap evidence is not admissible—and should not be admissible in my view—what should the Home Secretary do when confronted with evidence that a particular individual poses a genuine threat to this country? Should he say, "We don't have enough evidence to convict him in court, so let him go free"? Then, 12 months later, when we have an attack on the London underground or anywhere in the country, the Home Secretary could turn around and say, "Well, it could have been worse. We could have locked him up without trial." That seems to be the position of some Opposition Members, and people who are paying attention to this debate will find that incredible.
The people we are facing—the terrorists who hate our country and culture so much—are willing to risk everything: their possessions, their friends, their family, their lives. It is quite acceptable, and incumbent on us, to realise that in return we should accept a sacrifice. If that sacrifice compromises the level of civil liberties that we enjoy, that is what must happen. The Government are sometimes guilty of claiming that these measures do not represent any kind of compromise on our civil liberties. We must be honest and say that they do. That is what happens when we are in a fight against this kind of terrorism—we compromise our civil liberties, because the alternative does not bear thinking about. There is no point claiming that we have the same civil liberties today as we did three years ago, and neither should we have.
The hon. Member for Winchester said that the Government were given leeway for three years, following the passage of the 2001 Act. The mood to give the Government leeway, however—I presume that he means the derogation from the European convention—has disappeared. He should admit that the reason that that mood has disappeared—I agree that it has—is that we have not suffered that kind of terrorist atrocity in the past three years. Some, such as the New Statesman last week—a magazine to which I am ashamed to be a subscriber—argue that because there has been no terrorist attack on Britain in the past three years, the threat does not exist and we should not bother with any kind of framework for preventing terrorism. The fact that there has not been a successful attack on British soil does not mean that the threat does not exist—it means that the security services have been successful in preventing an attack. No one looking at the events of 9/11, Madrid, Bali and Istanbul could conclude that there is not a threat. That does not make sense. Instead of assuming that a threat does not exist—my comments are not directed at the hon. Member for Winchester—the editor of the New Statesman should run a feature next week paying tribute to the work of the security services, which have saved God knows how many lives as a result of their intelligence work.
In conclusion, the right hon. Member for Haltemprice and Howden repeated something that is often said in this debate. He said that by compromising our civil liberties we are giving some kind of victory to the terrorists—that changing our way of life and giving up some of our freedoms is a victory for terrorism. No, it is not. [Interruption.] I am not speaking on behalf of the Home Secretary—I am expressing my own opinion. There would be a victory for terrorism if a massive bomb went off in a crowded location in one of our capital cities or in any other city. There would be a victory for terrorists if a jumbo jet crashed into the Palace or any other location in the country. Terrorism can be defeated by political, military and intelligence means. Claiming that we would give terrorists the final victory if we denied people held in Belmarsh a trial may receive a round of applause on "Any Questions?", but it does not sit right with the vast majority of my constituents or, I suspect, the constituents of other hon. Members.
Let me point out to the House that approximately 40 minutes are left, with four hon. Members seeking to catch my eye. Perhaps they would show a little more restraint than we have seen so far.
Mr. Harris has invented a category of people—none of them have attended today's debate—who do not believe that there is a serious terrorist threat to this country. I have heard no such person speak today, and I have more reason than anyone else in the Chamber to be aware of the extent to which the work of our security and intelligence services has preserved us from major terrorist actions over a considerable period. My hon. Friend Mr. Oaten made that point in opening the debate, and we all join together in paying tribute to their work. However, that does not absolve us from the need to examine the legislation and see whether it is right, whether it serves its purpose, whether it deals with the full range of threats and whether it is sustainable over a period of time.
The key phrase in the legislation is about the nature of the threat as a
"public emergency threatening the life of the nation".
The threat that faces us is not short-term, and we cannot envisage its early cessation. Indeed, it is difficult to envisage the circumstances in which the loose al-Qaeda network and other groups loosely connected with it would want to desist from their terrorist activity. We cannot act, therefore, on the basis of emergency short-term legislation such as regulation 18B, which was used in the second world war. I was only a baby at the time, but people knew that the war would be over in two or three years, and that we would either win or lose it. We do not know when the present terrorist threat will end, so we need sustainable legislation. There are not many Members in the Chamber, with the possible exception of the hon. Member for Glasgow, Cathcart, who believe that the legislation that the Lords recently challenged and effectively overruled is sustainable. There is a widespread view that we cannot maintain a system of indefinite detention without trial on a ministerial decision. The Government clearly now accept that view, and are working on that basis to devise alternative proposals.
I served as deputy chairman of the Newton committee, but I did not have to work very hard in that capacity, as the committee was well chaired by Lord Newton and we were well supported by the group of senior Members, Privy Councillors of all parties, and one who had no political affiliation. It was wide ranging in its experience and there was no fundamental disagreement over the conclusions that were reached. I give away no secrets when I say that the only subject on which we had real difficulty reaching an agreed wording was what we debated last night—incitement to religious hatred, and how far legislation should go in attempting to deal with it. There was relatively little difficulty in reaching agreement on the matters that we are debating today and what we should propose to the Government.
We found many other things wrong with the Anti-terrorism, Crime and Security Act 2001. The Newton committee was set up because the 2001 legislation was rushed through both Houses of Parliament on the basis that its purpose was to deal with a short-term emergency. In fact, it was stuffed with measures that had nothing to do with short-term needs and nothing to do with terrorism, which further inhibited the ability of the two Houses to get it right at the time. The committee was set up because it became clear that the measure could not be passed through the other place unless some concession were made. The concession was steadily tightened up: first, it was a review committee, then a review committee whose report had to be debated in both Houses, then a committee whose report would, if it were not debated, lead to the entire lapse of the legislation. That reflected the degree of concern felt in both Houses that, because of the immediate circumstances, they were being pressed to push through a measure that they were deeply unhappy about, which required much further and more detailed consideration.
The one point of anger that I would like to express at this stage, before returning to the happy consensual atmosphere of the debate, is that the Government's initial response to the Newton report was misplaced macho posturing. Their initial reaction to the report seemed to suggest that none of the recommendations were of any value whatever and that the Government would carry on very much as they were. I realise that the present Minister for Crime Reduction, Policing and Community Safety took no part in that, but it set a tone for relative inaction over the next 12 months. The committee had proposed that the Government should prepare an alternative to the 2001 legislation, which would need to be renewed or replaced because the derogation would come up in just over a year's time and the legislation would lapse.
I am pleased that things seem to have moved on, largely because of the House of Lords judgment and the coincidental change of Home Secretary, which has also helped. I very much welcome the way in which the present Home Secretary is approaching the matter. That is not to say that I disagreed in all respects with the previous Home Secretary. He made it pretty clear on the record that, in respect of an issue that we shall come to in a few moments, he would have welcomed the ability to use intercept evidence in court, but had to be satisfied that he could secure general agreement among the various Government bodies concerned. He certainly showed continuing interest in intercept and set up further consideration of it even before the Newton committee had raised it.
The Newton package had two main aspects: making prosecution easier and more feasible, and proposing alternative measures where prosecution could not be pursued. The measures to make prosecution more practicable included new offences and offences that could be aggravated by connection with terrorism. The committee drew from experience in other countries and in other areas of law. One important aspect of pursuing prosecution was the idea of having a security-cleared investigating judge as part of the process, and another was using intercept evidence.
I continue to believe, as Newton recommended, that we should remove the blanket ban on the use of intercept evidence. The law should allow it, but that is not to say that it will solve either the existing Belmarsh cases or all the cases in the future. In many circumstances, it would be prejudicial to use it. The main purpose of intercept activity is the gathering of intelligence, which, as the Minister rightly said earlier, plays a valuable role in disruption. It is not collected on an evidential basis, but it is possible to collect it on that basis and use it in certain limited circumstances. We should not preclude it, because there may well be cases in the future where it would be both relevant and helpful. The present blanket ban is difficult to accept.
In my two capacities, I am aware of at least five different reasons why various parts of the system are uncomfortable about the use of intercept evidence in this way. I am not certain about the current balance of opinion about which reason the Government regard as the most important. They are important reasons, but in my opinion, none outweighs the benefits stemming from limited availability of the intercept option. It should be part of the package.
On the other side of the page, as it were, the committee proposed a series of measures that have been echoed by both the Minister and the Conservative spokesman, although the latter questioned them in one respect. The measures deal with people about whom serious suspicions exist, but in respect of whom there is insufficient evidence to lead to a successful prosecution.
The measures did not include house arrest, but did include restriction of movement. That was chosen because it allows potential links with other terrorist activists to be broken—links that could allow the person who would otherwise be detained to have a role in the preparation of further terrorist acts. The Government's proposals include many of the committee's proposed measures.
However, the question then facing the committee has been raised several times in the debate. It is, "What about UK citizens?" That is one of the most difficult issues. When we asked "Are there no UK citizens about whom similar suspicions are held?", we could not get a negative answer. That is, no one could say "No, we have only ever come across foreigners about whom we have such suspicions."
My judgment is that there are UK citizens about whom similar suspicions have been raised. They will have had to be dealt with in other ways, such as by prosecution for other offences, or by surveillance or preventive and disruptive activity of various kinds. There is therefore both an anti-discrimination argument and a practical argument against the use of measures exclusively against foreign citizens. The Government were really saying, "We can get this little group under these measures, but not really anyone else by the use of even remotely similar measures."
It must have been clear to everyone, as soon as the Lords' judgment was delivered, that we could not extend to UK citizens detention without trial on the decision of a Minister. That is so foreign to everything that we—with the possible exception of the hon. Member for Glasgow, Cathcart— believe and accept that there is no way that either House of Parliament could admit it into the range of anti-terrorism measures.
It is all right for Members of Parliament or television commentators to say, "This is an important thing that we have to do to fight terrorism." What about a Muslim who, by some happenstance of association, is threatened with Executive detention without any due process? The whole picture is very different for a person like that. The same was true for quite a few Irish people, both in Northern Ireland and in Great Britain, when they were subject to other limitations. In their situation, matters looked rather different.
It was essential to the basis of our civil liberties that other measures be found, and the committee felt that the Government should have been looking for measures appropriate for dealing with UK citizens about whom there was the suspicion of terrorist activity.
In the interests of time, I shall turn now to my final point—the key concern that we cannot be content with ministerial decision and subsequent judicial review, especially in respect of a process as hidebound as that of the Special Immigration Appeals Commission. The reason is that the people concerned are unable to see the evidence against them. They cannot produce an alibi against a piece of evidence used in SIAC, because they do not know that it is alleged that, say, they attended a particular meeting on a particular day. Therefore, because they do not know the evidence involved, even the most cast-iron alibi cannot be used.
My fundamental point is that making it possible for a Minister to lock up or otherwise restrict the liberty of a UK citizen because it is thought that that person might have terrorist associations—even though the evidence looks promising—will not be acceptable in either House of Parliament.
I therefore want to challenge an important statement that the Minister made. She said that, if this matter were to be given over to the judiciary, the Home Secretary would be abrogating his responsibility for the security of this country. That is not the case. We give the Home Secretary responsibilities to carry out, and he and the police have to bring people to court. He is not abrogating his responsibility for the safety of citizens against crime if he does not pick out a dangerous violent criminal or a repeated sex offender and say, "We're not going to try you because I know you're guilty, so I'm going to put you in prison."
That is not abrogating his responsibility. The Home Secretary allows the police to arrest a person and due process to take place. Therefore, it is no more true that he would be abrogating his responsibility if he ensured that it was a judicial decision and not an Executive decision that might lead even to the limitations that we have talked about today. Obviously, he or the police might initiate that process—it could go as high as the Home Secretary—and he might be abrogating his responsibility if he ignored the repeated pleas to set the process in motion for an individual or group. However, he is erecting a false argument—and he cannot be guilty of the charge—by saying that he cannot give the responsibility to a judge because that would be failing the nation. He would be serving the nation, although judges might not want to be put in that position. However, the public would have much more confidence, and the legislation would be more sustainable, if a judicial and not an Executive decision were made to take away someone's liberty in circumstances where they had not been found guilty of anything, but there were reasonable grounds for suspecting that they may be about to do something very dangerous.
We all recognise how difficult such decisions are, but we want a process in which the public and both Houses of Parliament can have confidence. We are starting a process that might lead us there within a reasonable period. I just wish that it had started when the Committee first reported.
I congratulate Mr. Oaten on the measured way in which he made his proposals, although I do not accept all of them. The only blot was when he bracketed us with Burma and North Korea, which is simply incorrect.
Much of the debate about this issue is simplistic. As my hon. Friend Mr. Harris said, it often equates Belmarsh with Guantanamo Bay, but they are entirely different. It also engages in rhetoric when the Government are accused of betraying human rights.
My hon. Friend the Minister was absolutely right to start with the threat, which is the position taken by many of my constituents when I talk to them about it. They start with the threat demonstrated by 9/11, Spain, Bali and Istanbul. They also refer to what is, in my terms, the pre-enlightenment, anti-democrat, religious fanaticism under which this country is targeted. They also take up the point made by my hon. Friend Mr. Allen that, at most, this country has detained only 17 people. The comparisons with other countries, such as France and so on, are often false because considerably more people are detained there, even though there is an investigating judge. I am not suggesting that we should react in a populist or utilitarian way. We should approach the issue pragmatically, but as a matter of principle. The Government's critics often approach the matter in absolutist terms and do not engage with the debate.
The shadow Home Secretary started with Lord Hoffman and his account of individual rights, but that is only half the story. Too often these days, we focus exclusively on individual and human rights, but that fails to take account of the history of civil rights and liberties in this country. To put it crudely, in the 19th century, the struggle was for democratic institutions and for whole groups of people to vote, assemble and join associations of workers, so that everyone and not just an elite could benefit. We must take into account the fact that we have democratic institutions. We must also take into account the fact that when we talk about rights and liberties, we mean the rights and liberties of groups of people, not just individuals. The Labour party had difficulties with that during the 1930s when Sir Stafford Cripps said that the democratic legislature could overcome property rights. That was an unacceptable position. However, we have a democratic system—a great achievement. It may be flawed, but accounts that state that we have an overpowering Executive are lazy and do not take account of reality.
That 19th-century struggle was also about individual rights, which have of course been overlaid by the great human rights documents of the 20th century—the universal declaration and regional documents such as the European convention on human rights and fundamental freedoms. In the 20th century, we had to reconcile democracy and individual human rights.
The shadow Home Secretary spoke of the great harm caused to individuals by imprisonment. There is no doubt about that, but in our society we have always accepted that we can deliberately impose grave harm on individuals to lessen the risk to others—we do that every day in the criminal courts; I do that when I send people to prison— because it is done in accordance with certain fundamental principles. The human rights documents themselves accept that democracy and individual liberty have to be reconciled. For example, as we know, there are provisions whereby Governments can act in ways that are necessary for a democratic society, so rights have to give way to that.
It is possible for democracy and human rights to be reconciled, but my main point is that we must take into account democratic institutions and the great 19th-century struggle, so that we have a system in which all can participate democratically. Instead of seeing democratic institutions—in this case, the Home Secretary, accountable to Parliament—as a blot on the system, we should applaud them. As we are debating a Liberal Democrat motion, I shall quote what Lord Carlile said recently in The Guardian:
"A great deal of rhetoric has surrounded this subject. The demonisation by some commentators of"— he referred to my right hon. Friend Mr. Blunkett, the former Home Secretary—
"over the issue is totally contrary to my observation, occasionally at close quarters, of a Home Secretary giving honest primacy to national security and public safety."
I certainly agree with those sentiments.
How do we reconcile democratic institutions acting for the collective good with the human rights of individuals? There are three overarching principles. First, actions must be justified democratically, in Parliament and to the public. Secondly, we cannot put security concerns in an absolute and unqualified way, which accords with another principle—that of shared humanity, recognised in the Human Rights Act 1998. A corollary of that is that any response by the Government must be balanced and proportionate, and take individual rights into account. Thirdly, we must act in accordance with law. That does not mean that we must necessarily act in accordance with the way in which the ordinary criminal courts operate.
In the article to which I referred earlier, Lord Carlile said, when talking about the steps that might be taken to address the problem of the Belmarsh judgment:
"The second step might be to develop a trial procedure that would ensure the protection of sensitive intelligence. This may mean thinking beyond the conventional reliance on jury trial."
He went on to say that although he, as a criminal practitioner, believes fundamentally in trial by jury, in some cases that may have to give way. We do not necessarily need to have an adversarial system. The shadow Home Secretary said that it might be possible to have a two-judge process, whereby one judge screened the evidence before it went to court.
I do not have time to comment on the Government proposals in detail. The Liberal Democrat suggestion about deportation—that somehow we should have memorandums and framework agreements with other countries and not act until they are tested—is not sensible. We need also to think about creating new offences and a reformed judicial process. The control orders suggested by the Government also seem a sensible way forward.
I do not believe in absolute solutions to such difficult questions. There are no easy answers, but I am right behind the Government in their attempt to grapple with these difficult issues.
I have no particular expertise to offer the House in relation to terrorism, and no legal qualification, but we all have a common duty to address the civil liberties of this country's subjects, as has been done eloquently in this debate. It has been generally accepted, with possible reservations, that we all know that there is a problem with terrorism, and it is possible to have slightly different interpretations about how best to deal with it.
I commented in an intervention that only a handful of people at Belmarsh had been subject to detention orders, and I am very doubtful whether that covers the whole population of potential terrorists—I think not—so that would not be a sufficient reaction even if it were necessary. There is an argument for having terrorists out in the community where they can be surveyed and we can keep an eye on them, but it is quite proper at least for the Home Secretary, who is a politically accountable officer, to consider whether detention should be part of the portfolio of measures that can be used against terrorism. I may have reservations about how to do that, and about the process, but it at least should be considered.
In some matters, Back Benchers and loyal Opposition parties have to defer to and trust Ministers in relation to the conclusions that they reach, if only because more evidence is available to them than to those outside the loop. I certainly do not question Ministers' motives, and I welcome the tone of the Minister for Crime Reduction, Policing and Community Safety in this debate. We are all trying to feel our way towards an acceptable solution, but the fact that we start with that presumption of trust should not entitle us to give Ministers a blank cheque to do whatever they wish.
Like my right hon. Friend David Davis, I am concerned that there is a risk that we might stimulate terrorism in the act of trying to overcome it. Beyond that, there is also the possibility of paying too high a price for any element of extra security that we may gain by taking certain actions. I have experienced the uncomfortable position of lobbying Ministers and getting them to lobby the Egyptian authorities in relation to one of my constituents who was detained for a very long time and eventually tried and convicted in Cairo, on evidence that would not have been acceptable to the House or to the British courts, for membership of Hizb-ut-Tahrir, and then being told by an Egyptian official, "Well, you lock up people like that as well, don't you?" I found that very uncomfortable.
We should all remember that any action that we decide to take—even if we take it for good reasons—is not cost-free to the citizen. I had the interesting and somewhat disconcerting experience exactly a month ago of being peremptorily stopped in my car and being searched by Ministry of Defence police in uniform under the provisions of the Terrorism Act 2000. All I hope in that matter is that they acted perfectly correctly, that they were not acting on information relayed to them, and perhaps that their action was proportionate and targeted to the matter at hand—I had some doubts about that—but that shows what can happen to any of us. That was a very trivial matter, and I am willing to pay that price, but of course the process on which Ministers' views were overturned by the Lords, and which they are seeking in a sense to replicate with control orders, would greatly increase the inconvenience to citizens.
I must say, even as an amateur in the field of human rights, that at the time of the initial emergency legislation, when it was confined to foreign nationals, I anticipated what would happen in the Lords three years later, when it was struck down on the grounds of partiality. Of course, the collective approach of Ministers has been to say the answer is to make whatever we come up with applicable to British nationals as well.
I emphasise to Ministers that, even if they do not intend, for example, to use powers to lock up the shadow Cabinet on
Conservative Members have what my right hon. and learned Friend the Leader of the Opposition described as "serious misgivings" about the process. Given that there is a common objective, process is central to the debate. My reading is that the Government object not to the concept of a trial and judicial process but to the malign consequences that might arise from that, such as damaging sources or risking individuals, and the possible inability to adduce certain kinds of evidence to the satisfaction of a court.
I have taken some notice of the deliberations of the Newton committee of Privy Councillors of all parties, partly on the back of the extremely eloquent speech made by Mr. Beith, and also because Lord Newton was my first boss nearly 40 years ago—I echo the accolades that have been given to him. The committee made a careful effort to examine the possible constraints in the use of intercept evidence and the judicial process, and tried to find out whether they could be overcome. The Government should consider more carefully the possibility of preparing or filtering evidence through a judicial process before it is considered by a judge.
If there is evidence out there, it must be considered by someone. We hope that it would be considered by a judge before any detention or serious constraint were contemplated. The alternative choice would be for a Minister to consider it, but I would prefer a judge to do that, given the right safeguards. Ministers must remember—as we all must—that however high they might be, the law is above them. Frankly, the Government, to put it delicately, have not been blind to the real threat to our society, but they have evinced an authoritarian attitude. I find that rather distasteful, and it is one reason why I have signed up to the Conservative civil liberties group. It is important for hon. Members on both sides of the House to take such matters seriously and to witness to them. Ministers should not have a free run in this.
Ministers, especially, should understand that there is no middle way between the right thing to do and authoritarianism—they must do the right thing. It would be much better to find a system that strives to achieve judicial results and goes on to punish wicked people for what they are doing wrong, but does not achieve that by extending the powers of individual Ministers. We need a measure of self-restraint. There must be a better way than allowing the Home Secretary to lock people up without giving us evidence that would stand up in court.
I want both Front-Bench spokespersons to be able to deal with all points raised, so I shall be brief. However, whatever hon. Members do, they should not think that I am being brief because my hon. Friend Mr. Harris said everything that I would have said.
Everyone agrees that prosecution is the game of choice. The Tories, however, have to accept that realistically there must be a fall-back position in case prosecution is not practical. Their inquisitorial model does not help in the slightest. It would be difficult to graft it on to our system. We have never had an inquisitorial model. Although we have coroners, both sides are represented during proceedings, so there is an adversarial aspect there. What would happen if there were an appeal under such a model? Proceedings in the Court of Appeal would be adversarial, as would an appeal in the House of Lords, so the model would not slide into the existing system.
The analysis of David Davis did not help us. He seemed to think that the calibre of judge would somehow improve if the procedures were swapped. At present, the Special Immigration Appeals Commission gathers all the material, perhaps subject to public interest immunity certificates. However, no Minister would sign a PII certificate while knowing that it covered material of benefit to the defendant. SIAC in effect receives all relevant material, and then both sides get it, subject of course to the special advocate procedure. The Home Office gets it all and the defence, in one way or another, gets it all.
The special advocate has to take his instructions first, which is very difficult, and then cannot speak once he has seen the material. When not in closed session, the procedure is ordinary. The defence barrister deals with all the open evidence, and then the special advocate deals with all the closed evidence and tries to attack it as best he can on the limited instructions that he has been able to receive. Key to that is that SIAC is well aware that the material has not been properly and thoroughly cross-examined—it is aware of the limitations.
The right hon. Member for Haltemprice and Howden argued that an inquisitorial judge might somehow be able to make up for the deficiencies that fall to the defence, but that is not correct. SIAC knows that the material has not been scrutinised as fully as it would have liked, and must take it on that basis. I know the judiciary involved with SIAC, and I am satisfied that they also adopt an extremely high standard, and I will be very surprised if they do not insist that the material must satisfy them beyond reasonable doubt. Therefore, we must look, as everybody agrees, to prosecution, but we must do so within our own court system model.
I make the serious suggestion that it would be prudent for the Home Secretary to send all the material about all these people to the Director of Public Prosecutions as quickly as possible to see whether the appropriate independent key professional can decide to prosecute all, one, none or any of them. That would clearly appear to be an independent decision based on the evidence, which had nothing to do with the Home Secretary. That should be done straight away.
The Home Secretary also has the power to order further investigation. That is an important point, because it is far from clear that there has been a thorough investigation with a view to prosecution. One sees press reports and one hears lawyers acting for the Belmarsh detainees saying clearly that the detainees have not even been interviewed. If there had been an investigation with a view to prosecution, they would have been interviewed. I am not suggesting that they would have confessed, but interviews can be extremely important. If that position is correct—it comes from the mouths of lawyers whom I know well and who I cannot imagine are saying what is incorrect—there has not been an attempt to investigate properly with a view to prosecution in at least all the cases of the people in Belmarsh. That is crucial.
If the DPP finds in given cases that he cannot prosecute, he should be asked whether any of the proposals of the Newton committee assist him in doing so. He should make recommendations about that. If, even with all the widening that Newton advocates, with independent scrutiny by the DPP, and given the procedures under the Criminal Justice Act 2003, which allow more hearsay and bad character evidence to be considered, it is not possible to prosecute and we cannot deport all the people, we will have to fall back on some restraint. The Tories will have to accept that that is realistic, as they were ready to accept the point in debate on part 4 of the Anti-terrorism, Crime and Security Act 2001. They must keep an open mind on that, as the right hon. Member for Haltemprice and Howden said they would.
The issue of control orders—possibly falling short of house arrest—may boil down to who comes first: the Home Secretary making a decision that is scrutinised by a judge, or the Home Secretary making an application and a judge conducting the initial scrutiny. I appreciate and understand why the Home Secretary thinks that the defence of the realm is a responsibility of the Executive and not of the court. I would prefer the first decision to be taken by the court, but if that is not the Home Secretary's view, and in the end he and the Government find that incompatible with their responsibilities, my right hon. Friend has a duty to shoulder the entire burden of safeguarding the defence of the realm. If it has to be that way round, and so long as there is an appeal that is automatic, immediate and covers all the facts, perhaps even such a suggestion could be acceptable.
I have a strong sense that somewhere in one or other of the strands that we have debated today we will find a common answer. The very fact that we are debating this issue and seeking consensus on it means not that our values have been undermined but that we are determined that democracy will find a way.
What a fine note on which to end the Back-Bench contributions. With perhaps one exception, I am grateful to all the right hon. and hon. Members who spoke in an excellent debate, which shines as an oasis of rationality in the turmoil and pre-electoral bombast in which we so often indulge.
My hon. Friend Mr. Oaten and the Minister for Crime Reduction, Policing and Community Safety set the tone of the debate in seeking consensus and points on which we could agree on the appropriate responses to what we all acknowledge is an extremely serious problem and a difficult dilemma for any Government. David Davis continued in the same tone and I am grateful to him for his remarks. He identified some of the same problems as we do with the present position and, indeed, some of the same responses to it. He stated the problem clearly at the outset when he said that the balance we had to strike was between defence of life and defence of way of life.
We have to consider the proposals before us and their deficiencies when measured against our norms of justice in terms of the standard of proof, reasonable belief and the rights of the accused to know the case against them, to argue the case and to be proved guilty beyond reasonable doubt. We would normally expect all those things of a judicial system in this country and we should surrender them only with great care.
My right hon. Friend Mr. Beith made a thoughtful speech, in which he brought to bear the knowledge that he has gleaned from and contributed to the Newton committee in his plea for sustainable legislation, which we have not had until now.
Ross Cranston spoke of reconciling the different pressures on the Government and referred to three tests of action—that it should be justified, proportionate and in accordance with law. I cannot disagree with his scholarly analysis.
Mr. Boswell made, as usual, a sensible and reasoned speech. We do indeed have to accept that there is a presumption of trust in the Minister and her colleagues. They are in possession of information that we do not have, so in some respects we have to trust their judgment of what is best. However, that does not remove from us the responsibility of questioning their judgment and testing it against the norms of a democratic society.
Vera Baird brought the Back-Bench contributions to a fitting conclusion. She restated our primary point, that prosecution must be the preferred option. It must always be better to put someone before a court of law, if we can find the right means of doing so.
Mr. Harris had something of the air of a braggart swaggering into a bar looking for a fight with anyone he could find. He was to be disappointed. Today, we are looking not for a fight, but for a reasoned argument regarding the way in which we should proceed. Most of those present in the Chamber are not prepared to throw away 1,000 years of British history and British jurisprudence simply to satisfy what might have been interpreted as prejudices on the hon. Gentleman's part. We seek a more reasoned way through the morass.
What is in the proposals? My hon. Friend the Member for Winchester made a strong case that house arrest is not an acceptable option, but simply imprisonment by another means. We believe, and I think that many people would agree, that for that to be imposed by ministerial fiat, without judicial oversight and without the safeguards that we normally build into the law, is a dangerous course. If we are to imprison people, let us say that we are doing so and let us have a judicial process that makes it appropriate for us to deprive them of their liberties, but let us not pretend that we are not doing that.
I can understand why Labour Members bridled at the comparison with totalitarian countries that employ house arrest—we are not that sort of country, and neither should we ever be. But let us also recognise that if we were to ask, say, the Government of Burma what their system was for house arrest and they replied, "Of course, it is entirely done through judicial oversight, because although the decision is made by a Minister, it can be reviewed by a hand-picked panel of judges who will meet in secret and not tell the person involved what evidence is before them and what the charge is," we would raise our eyebrows. We would say that we were not convinced that that was an entirely democratic or judicial system.
There are serious arguments against house arrest, but control orders are a different matter. I was disturbed when the right hon. Member for Haltemprice and Howden appeared to take what was described as a black-and-white view and said that we should either lock people up or let them go. There must be gradations below that and safeguards that we can use to protect our citizenship. If we are to have control orders, they must be under judicial oversight. My hon. Friend the Member for Winchester made the point that we should formulate them in such a way as to ensure that they do not require derogation from the European convention on human rights, which is clearly possible in light of the experience of other countries. If they are to be reviewed, we must be clear what the terms of the review are. Whatever form of judicial system is used to review, will it look into matters of fact or simply matters of law? That is a critical question on which the Minister needs to respond. If it is essential, as the Minister says it is, for the Home Secretary himself to control the process of control orders and initiate them, is it still the Government's view that an order should extend to the family and friends of the person upon whom it is placed? Is that an essential element of the Government's package?
By far the favourite option is that of prosecution, as the hon. and learned Member for Redcar said. We have had a series of debates about the use of intercept evidence and I still do not understand the arguments about the intrinsic difference between intercept evidence and electronic surveillance evidence, for example, and why one is admissible and the other is not. I am still not clear why such evidence cannot be used in some cases to ensure that somebody who should be prosecuted is prosecuted and imprisoned if they are found guilty. That extends well beyond terrorism to serious organised crime and other offences.
If we believe that terrorists do not think that their phones are being tapped, we believe in a very different world fron the one that I think we live in. Equally, if we need new offences, let us look at new offences. One of the problems is that we can prosecute for a conspiracy, but not for a conspiracy of one. If there is a lacuna in the law, let us fill it. Let us look at the suggestions from the Newton committee and do as the hon. and learned Member for Redcar said—pass the matter to the Director of Public Prosecutions and let him give an opinion as to what would make the prosecution that much simpler.
We need to look at novel judicial methods as well. The right hon. Member for Haltemprice and Howden said that he was not attracted to European models, and we know why. Let him look at Scotland, a jurisdiction a little closer to home. I mischievously suggested that we extend the jurisdiction of Scotland to England and Wales in order to have something on which we could build a part-inquisitorial model. Let us have the proposals at the earliest opportunity. Ideally, let us have them before
I need no reminding about the dangers of terrorism: I was in Congress on Capitol hill in Washington DC on
With the leave of the House, Mr. Deputy Speaker, I shall reply to the debate.
I shall try to address as many of the issues raised by hon. Members as possible. The debate has ranged across a number of important, complex matters that go to the heart of our legal and constitutional framework. I am not sure that I can do all those issues justice in the 10 minutes allowed to me, but I shall do my very best.
This afternoon's excellent debate has been filled with considered views, and some challenging issues that go to the heart of how we organise ourselves in this country have been raised. We have had the benefit of the expertise of hon. Members whose knowledge is more extensive than mine. In particular, Mr. Beith is a member of the Newton committee and the debate benefited enormously from his contribution.
A number of my hon. Friends have made useful contributions. Given his robust approach, I am pleased that my hon. Friend Mr. Harris sits on the Government Benches. I have no doubt that I shall call on him to be my champion when I face a formidable array of Opposition Members. I am delighted that he felt able to make such a robust contribution.
Several hon. Members, including Mr. Oaten, raised our move to obtain, where appropriate, memorandums of understanding with third countries on the deportation of some foreign nationals. We have made contact with several Governments and are now actively engaged in discussions. I am pleased to say that those discussions are going well, but more remains to be done. We want to secure an overarching memorandum of understanding with each country to allow us to make tailored agreements for individuals. Such agreements will not be legally binding, but those countries will enter into them. We cannot pre-test those agreements—I do not know how we could do so—but if we were about to deport somebody, they would have a right of appeal and the decision to deport under the memorandums of understanding would be subject to intense judicial scrutiny at that point.
Yes. That is exactly the kind of territory in which we are seeking proper assurances. The Government want to abide by our international obligations and we want reassurances on those points, which is why the discussions are so active.
My hon. Friend the Member for Glasgow, Cathcart made some useful points about the different threat posed by international terrorism as compared with domestic terrorism, which we have faced in the past. He made three points. First, it is difficult to conduct political negotiations with people who want to destroy our way of life and values. Secondly, the terrorists whom we face are committed to mass civilian murders rather than small, targeted terrorist events. Thirdly, those terrorists are not averse to using suicide bombers. In the past, terrorists tried to maximise their chances of survival, but we now face mass civilian casualties and suicide bombing. The nature of the threat is significantly different from that which we have faced in the past.
My hon. Friend asked whether the travel restrictions would apply to British citizens and foreign nationals. In respect of control orders, we will consider the appropriate conditions to meet the threat that faces us. Travel restrictions on foreign nationals and British citizens would be part of that consideration, because we do not want to discriminate against people inappropriately. We would consider whether the conditions were targeted at the threat that we face from those individuals.
The right hon. Member for Berwick-upon-Tweed rightly said that the threat will go on for a long time. That is why we need sustainable legislation in this field, rather than simply responding and reacting to every event as it occurs. Through the legislation that we are formulating, we are trying to come up with a framework that can be adapted to events. That is why we are saying that it should apply to all forms of terrorism that face us—not only international terrorism, but domestic terrorism—and to British citizens as well as foreign nationals. In that way, we can tailor the control orders that we make in accordance with the threat.
I am pleased that the right hon. Gentleman acknowledged that intercept is not the solution in every case. He was careful to try to confine it, and I am glad that he said that it is limited in its use. The costs and benefits of using intercept are a matter of judgment. We have taken our decision, but we will keep the matter under close review. I was pleased that the Newton report made a number of recommendations, which the Government looked at carefully in formulating current policy, and that it said that steps short of detention, such as tagging, curfews and restrictions on movement, could well be appropriate. I understand the right hon. Gentleman's party's difference with us on who should make the initial decision and I am sure that that will continue to be a matter of debate. Clearly, as he suggested, judges will have a view on whether they welcome taking on the decision making or whether that might be appropriate for the Executive.
On intercept, it may be useful for the House if I say that America does not have the same co-operation between intelligence and law enforcement agencies as there is in the UK. In fact, in some cases the intelligence services in America are prohibited by statute from passing intelligence on to law enforcement. The unique, close relationship between the police and intelligence agencies in this country is not mirrored in America, and there is no evidence that America or other European countries can use intercept and get more convictions against terrorists than we can. The review considered that.
My hon. and learned Friend Ross Cranston, in an excellent and thoughtful contribution, showed us not only his knowledge but his insight into and understanding of the issues. His analysis of the justification for action, our shared humanity and the need for balance and proportionality was excellent, and I am grateful for his measured and sincere support.
Mr. Boswell made a typically thoughtful contribution. He said that he would trust Ministers, but not offer us a blank cheque. I entirely understand that he will want to scrutinise exactly what goes on. He raised the important issue of whether the control orders risk stimulating terrorism and further radicalisation. I am acutely conscious of that issue and one strand of our counter-terrorism strategy deals with prevention. That is not just about the harder measures, but working with the Muslim community in particular, and with young people, on solving some of the international issues that lead to radicalisation. It is important that we do that in conjunction with a range of other measures.
My hon. and learned Friend Vera Baird again rightly emphasised that prosecutions are our preferred route. She said that the Conservative Opposition would need a fall-back position. We have all been worried by the polarisation of the Conservatives, who said simply that we should either proceed through trial and prosecution or release with no controls. That is not a tenable position.
We propose a spectrum of measures through the control orders to allow us to tailor the measures so that they are proportionate to the threat, thus meeting the concerns of the House of Lords about disproportionality. Simply having a system whereby we either lock people up through a conventional judicial trial or allow them to go completely free with no controls will not meet the threat, in the view of the people of this country. I am worried about that.
My hon. and learned Friend gave an excellent explanation of the Special Immigration Appeals Commission. We conduct investigations and we will refer matters to the Crown Prosecution Service, if that is the right thing to do.
We have had an excellent debate. It is always our approach to prosecute when we can. We believe that the control orders are a proper response to the House of Lords. They are proportionate and not discriminatory.
Question accordingly negatived.
Question, That the proposed words be there added, put forthwith, pursuant to
Mr. Deputy Speaker forthwith declared the main Question, as amended, to be agreed to.
That this House notes with approval the Government's intention to respond to the House of Lords judgment on Belmarsh by continuing to take all necessary measures to protect the security of the country and its citizens while acting in compliance with the European Convention on Human Rights.