Orders of the Day — Prevention of Terrorism Bill

– in the House of Commons at 1:48 pm on 23rd February 2005.

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[Relevant documents: Memorandums laid before the Constitutional Affairs Committee on the Operation of the Special Immigration Appeals Commission (SIAC), HC323-II, Session 2004–05]

Order for Second Reading read.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I have to announce to the House that Mr. Speaker has selected the amendment in the names of the Leader of the Opposition and of the leader of the Liberal Democrat party. He has also placed a 15-minute limit on speeches by Back-Bench Members in the debate.

Photo of Charles Clarke Charles Clarke Home Secretary 1:49 pm, 23rd February 2005

I beg to move, That the Bill be now read a Second time.

The core of the case for this legislation is that this country faces substantial and real threats to the freedoms of institutions and people in our society that are qualitatively different since 11 September 2001. Despite this country's long experience over decades of terrorism of different kinds in relation to Ireland and anti-colonial struggles of various descriptions, the nature of the threat that we now face is of a qualitatively different order and, in my opinion, requires qualitatively different measures.

Al-Qaeda and its network are qualitatively different in five ways that I shall set out to the House. First, their ideology is entirely destructive in nature. They wish to destroy religious toleration and tolerance; they wish to destroy freely elected democratic government; they wish to destroy the rule of law in our society; they wish to destroy free discussion and freedom of opinion in the media and elsewhere; they wish to destroy equality for women; they wish to destroy our market economy. The destruction of those things and values for which we and our predecessors in the House have fought for centuries is qualitatively different from terrorism of different types in the past when individuals fought for particular freedoms, as they saw it, in certain circumstances. Al-Qaeda and its colleagues seek to impose on us a nihilist regime.

Photo of Charles Clarke Charles Clarke Home Secretary

I shall do so in a moment, when I have made the essence of my argument.

Al-Qaeda and its network are qualitatively different in their destructive character. Secondly, they are distinctive in the cataclysmic and catastrophic lack of restraint in the measures that they use. They are prepared to use biological, chemical and nuclear warfare to poison water supplies and to destroy whole systems of life—mass murder that is utterly different in its scale and impact from any previous terrorism. Thirdly, they are qualitatively different, because they are prepared to combine mass murder, violence and a cataclysmic approach with a suicidal—I use the word advisedly—readiness to commit such crimes. Suicide and martyrdom are not unique in the history of fights of this kind—what is unique is the combination of suicide and the readiness to commit suicide with the mass murder that they seek to commit. That, I believe, requires different measures from us.

The fourth difference is particularly important and needs to be well understood. The capability, resources and capacity of terrorist organisations around al-Qaeda, their ambition and sophisticated operation are of an utterly different order in terms of lawbreaking from their predecessor organisations. The final qualitatively different characteristic of that organisation is its global reach. There have been terrorist acts on an enormous scale: in the US itself on 9/11; in Africa, in Tunisia, Kenya, Egypt and Morocco; in Asia, in Pakistan, Indonesia and Turkey; in the middle east, in Saudi Arabia and Yemen; and in Europe during the general election campaign in Spain. This terrorism therefore has a global reach of a different order.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

I do not demur from the point that the Home Secretary is making, but is there anything in the Bill that limits or restricts the use of the qualitatively different powers that he is seeking to those who indulge just in this extreme form of terrorism, or are they available for use against any kind of terrorism that he may choose?

Photo of Charles Clarke Charles Clarke Home Secretary

The derogation powers in the Bill require the Secretary of State to put before both Houses of Parliament an assertion or order stating that there is a threat to the nation from international terrorism. Such a derogation could not be made unless both Houses were convinced of the merit of that case. I can tell the right hon. Gentleman and the House that the Government would propose such a derogation only against international terrorism with the characteristics that I have just described.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee

No one denies that al-Qaeda wants to destroy democratic debate, but is it not then all the more important that in changing practice that has existed in this country for 800 years we have sufficient parliamentary time to do so? All the arguments could be put and, as far as possible, we should proceed by consensus. Would the right hon. Gentleman at least agree to that?

Photo of Charles Clarke Charles Clarke Home Secretary

I certainly agree with the desirability of proceeding by consensus, and that is what I have sought to do, both before my statement to the House on 26 January and in subsequent discussions. Let us not equate the perfectly legitimate case that the hon. Gentleman made for sufficient time for parliamentary debate, which is part of the conventions of the House, with al-Qaeda's determination to destroy Parliament itself.

Photo of Mrs Helen Jackson Mrs Helen Jackson Labour, Sheffield, Hillsborough

My right hon. Friend described well the international nature of the terrorist threat posed by al-Qaeda and others. I agree that it is distinctly different from the domestic threat, particularly against Westminster, from the IRA in the past. What international endorsement has he sought and received from Europe or further afield for the particular proposals that he is asking us to endorse over the next few days?

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful that my hon. Friend accepts the qualitatively different nature of the terrorist threat. The G8, the European Union and the Council of Europe have clear and well-established positions on terrorism with which we work, and we have discussed these issues with the Justice and Home Affairs Council of the European Union. As for endorsement—my hon. Friend's word—of our measures, that has not been delivered by those organisations, because we do not live in a regime of world government in relation to such issues, which are for different nations to address individually.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

If the Home Secretary has an enormous body of evidence against individuals who are about to prepare a monstrous attack, surely it is up to him to bring a prosecution against them in the courts in the normal way. The concern of many people both inside and outside the House is that he is seeking powers for Executive control and detention that are outwith all our democratic traditions.

Photo of Charles Clarke Charles Clarke Home Secretary

I shall come on to that detailed point in a second, but I agree with my hon. Friend—and it is the Government's policy, as I have set out on a number of occasions—that prosecution in the courts and conviction for particular offences are the most desirable course of action.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I thank the Home Secretary for his generosity, and urge him to reconsider the limitation that he put on the actions that he could take. Surely, the issue is whether there is something that poses a threat to the life of the nation and whether there is an emergency. That emergency and threat could come from a range of sources, and he should not fetter himself too much at this stage.

Photo of Charles Clarke Charles Clarke Home Secretary

I agree completely with the right hon. Gentleman, who states the case correctly. In my answer to Mr. Lilley, I said that at the moment the state of emergency or threat to the life of the nation that would require a derogation is focused on international terrorism from al-Qaeda and related organisations. However, I completely accept the point made by Mr. Trimble that in theory and practice it is perfectly possible that terrorist threats of other kinds might arise.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I have listened with great interest to the Minister, but he seems to be in danger of generating a league table of terrorism in which paramilitary killings in Northern Ireland are not regarded as just as bad as killings by al-Qaeda. I am sure that he does not intend to give that impression, but why does he think that it is right for the Government to attempt to dispel the motives for terrorism in Northern Ireland when, by contrast, he is intent on using the suppression of the opportunity to terrorise as the sole method for acting against international terrorism?

Photo of Charles Clarke Charles Clarke Home Secretary

I would not dream of doing that, and the suggestion of league tables in this area is deeply offensive. My argument, which has been widely made, is that 9/11 changed things, the existence of al-Qaeda and its related organisations changed things and, therefore, it is incumbent on the Government and the House to address that change.

Photo of Frank Field Frank Field Labour, Birkenhead

Will my right hon. Friend give way?

Photo of Charles Clarke Charles Clarke Home Secretary

I want to make more progress, but I will give way later.

As I said, the five qualities that I set out, concluding with global reach, show that al-Qaeda is qualitatively different from other organisations. Moreover, al-Qaeda has repeatedly stated that the United Kingdom and its citizens are targets of its terrorist network. Since 9/11—I emphasise this because it is important that it is understood—the police and intelligence services in this country have successfully disrupted a number of attacks in the United Kingdom before they could be mounted. The fact that there has been no terrorist attack in this country since 9/11 is due to the quality of our security services and police, not to any lack of terrorist ambition to mount an attack in this country. It would be deeply ironic if our success in preventing terrorist attacks should persuade us that now is the time to lower our guard in any way. I argue exactly the contrary: that our success in that regard makes it even more important not to lower our guard in any way.

Photo of Charles Clarke Charles Clarke Home Secretary

I want to make a little more progress, but I will give way in a moment to the hon. Gentleman and other colleagues.

In the battle against the terrorist threat—it is a battle, and a war, against an organisation that seeks to attack us—we must acknowledge that the terrorists' capacity has changed and increased. We must also acknowledge that our capacity has changed and increased in surveillance, in the resources that we allocate to the security services, and in international co-operation, to which my hon. Friend Helen Jackson referred. We are seeking much higher levels of international co-operation than previously to address precisely those questions. We must strengthen our capacity in those areas. We are engaged in a battle and it is a battle that we cannot resile from in any way.

When Sir John Stevens was Metropolitan Police Commissioner he gave us the following advice in November 2003:

"What we have to do is to see attack as inevitable in terms of the way in which we prepare and try and protect ourselves against such an attack."

I am not prepared to accept that an attack is inevitable and I will do all in my power to prevent the inevitability of any attack. That is why the Bill is before the House.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

Does the Secretary of State understand the danger of proceeding on the basis of assertion, and the need to produce evidence to sustain support throughout the House and the country for these extraordinary measures? He said that the Government have been successful in preventing operations, but the terrorists surely know that those operations have been disrupted, so why can he not share that information when making his case? He is making a case for the powers of administrative detention on the basis of assertion, but, following the war in Iraq, the Government have lost trust. I urge the Home Secretary to bring a detailed case to the House.

Photo of Charles Clarke Charles Clarke Home Secretary

First, I set out yesterday in the House—I hope that the hon. Gentleman studied what I said in detail—a series of papers addressing precisely the point that he raised. Secondly, he simply does not accept the seriousness of our situation—[Hon. Members: "He did not say that."] He did say that he could not accept it. He said clearly that he could not accept, without further evidence, that we face a threat of the sort that I assert. He should accept that.

Photo of Charles Clarke Charles Clarke Home Secretary

A wide range of democracies use such measures, depending on the legal system in the countries concerned. In some European Union countries, individuals may be locked up for three, four or five years, but, as the hon. Gentleman well knows, a different legal system exists in those regimes with an instruction judge system.

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

The Home Secretary rightly paid tribute to the security services' successful prevention of attack. It was adequate to use judges in special courts at the height of the IRA offensive when it was involved in wide-scale attacks, so why is it not adequate to use judges in special courts, instead of politicians, at a time when, thank goodness, attacks have not yet been successfully carried out?

Photo of Charles Clarke Charles Clarke Home Secretary

There are different solutions, and having judges in special courts is one solution that could be considered. However, that does not address the central objection of those who criticise the legislation. The fact is that there is evidence of activity that cannot be put before a court, of whatever type. That is the fundamental issue.

Photo of Nick Gibb Nick Gibb Conservative, Bognor Regis and Littlehampton

Given that some countries use intercept evidence in court, would not an alternative approach be to amend our disclosure rules so that intercept evidence could be used in our courts safely and securely?

Photo of Charles Clarke Charles Clarke Home Secretary

We considered that in detail in the review commissioned by the Prime Minister and on which I gave a written statement to the House some weeks ago. It is certainly possible to consider different approaches, but the core point that must be understood is that there is no evidence that the use of intercept evidence has been successful in bringing terrorists to trial in any country in the world. That is the reality with which we must deal.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The Secretary of State knows that our substantial difference of opinion with him is that he is proposing a system of Executive control orders that he would make, which would then be considered by a judge. In our view, it is essential that those orders are confirmed, in the first instance, by a judge on application from him. When the Prime Minister was questioned on the matter, he suggested that the principal argument for that was urgency. Is there not a case for some form of interim order on sufficient evidence, to deal with precisely that issue?

Photo of Charles Clarke Charles Clarke Home Secretary

I intend to deal with that matter later in my speech and will address the hon. Gentleman's point then. However, it is an appropriate matter to be discussed in Committee because the issues raised by the Liberal Democrats, as well as those raised by some of my hon. Friends, are legitimate aspects of debate on the Bill.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

On a point of fact—it may be to my discredit that I do not know—in which other democracies are people locked up without charge and without trial?

Photo of Charles Clarke Charles Clarke Home Secretary

That happens in France, Spain and Italy, for example, under a different legal regime.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary must not mislead the House. He must be acquainted with the different regimes in force in other European countries. If detention takes place in those countries, it is in the context of investigation prior to trial. It is not administrative detention of the sort that he envisages.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

Order. I suggest that the hon. Gentleman rephrase the initial part of his intervention. No right hon. or hon. Member seeks to mislead the House.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary should not inadvertently mislead the House.

Photo of Charles Clarke Charles Clarke Home Secretary

I was not seeking to mislead the House in any way, inadvertently or otherwise. I said that there are different regimes of the sort to which the hon. Gentleman referred. The fact is that people end up locked up and deprived of liberty. The different systems are a key issue in looking at the way in which the legislative changes will take place.

Photo of Robin Cook Robin Cook Labour, Livingston

My right hon. Friend gave an important response to the intervention from Mr. Heath. Does he understand that he would meet the anxieties of many Labour Members who cannot support the Bill as drafted if he would take the next logical step and allow the courts to make the decision in the first instance, rather than second-guessing his decision? The sticking point is that the decision on whether to deprive a citizen of liberty should be judicial and not political.

Photo of Charles Clarke Charles Clarke Home Secretary

I certainly understand very well my right hon. Friend's concern, which, it has to be said, is shared by other Members in all parts of the House. In their view, there needs to be judicial involvement at the earliest practical opportunity in the control order process, particularly if it results in someone being deprived of their liberty. I can assure the House that I will continue to give careful consideration to this issue, which has been raised with me by a number of colleagues, and we will of course debate it in detail in Committee on Monday. However, I must be certain that nothing is done to undermine my responsibility or ability as Home Secretary to safeguard the security of the country. That said, I recognise the point that has been made.

Photo of Charles Clarke Charles Clarke Home Secretary

No, I will now make some more progress. As I have said, I will come to the judicial point later.

The Bill is before the House as part of a key set of proposals to address the terrorist threat that the country faces. There are four motivating principles behind the Bill, which I want to set out as clearly as I can. The first of them addresses the point made by my hon. Friend Jeremy Corbyn. We need to have a more secure prosecution process; on that, I share the ambition described by my hon. Friend. I emphasise that control orders will be used sparingly and only, as now with the current part 4 powers, in very serious cases. As I explained yesterday, prosecution is, and will continue to be, our preferred approach. These orders are for those dangerous individuals whom we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in the country.

Simply to illustrate the point, let me confirm the facts again. Between 11 September 2001 and last December, there were 701 arrests under the Terrorism Act 2000; 119 of those arrested were charged, and 45 of those 119 were charged with other offences as well. A further 135 were charged under legislation other than the 2000 Act, and 17 were then convicted of other offences. I set out those figures to emphasise to the House the seriousness with which we take the view that we must go down the prosecution route first and foremost, if we can achieve that.

Photo of Charles Clarke Charles Clarke Home Secretary

I will do so when I have finished my point on prosecutions.

Before making, renewing or remaking any control order, I shall ask the police whether there are realistic prospects of bringing criminal charges against the individual concerned, and I shall seek the confirmation of the police that further investigations will be carried out during the period when the order is enforced in order to pursue prosecution as the preferred route.

I turn to my final point on prosecution.

Photo of Charles Clarke Charles Clarke Home Secretary

I will do so in a second. Finally on prosecution, I mentioned yesterday that we are looking at the framework of our current counter-terrorist legislation and at the scope of the offences with which terrorists are charged to see whether there are any gaps or deficiencies that we can and should remedy. I hope to introduce further legislation as soon as it is practicable to do so; that is my objective. Yesterday, I mentioned a potential new offence of being concerned in the commission, preparation or instigation of acts of terrorism, but there are others as well, because we must give the police all the tools that they need to combat terrorism and to bring the perpetrators to justice.

Photo of David Winnick David Winnick Labour, Walsall North

As I said yesterday, I will support Second Reading of the Bill later today, but I would be much happier if the Home Secretary would reinforce the point that he made to my right hon. Friend Mr. Cook, when he said, in effect, that he will give very careful consideration to the valid points made by my right hon. Friend and other Members. If the Home Secretary does that, I will vote tonight in the way that I suggested in a much happier frame of mind.

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend's happiness is very high on my list of priorities. I can confirm what I said to my right hon. Friend Mr. Cook. However, as I have said on a number of occasions, I will come to the judicial point a little later and I will elaborate on it then.

Photo of John Denham John Denham Chair, Home Affairs Committee

I am grateful to my right hon. Friend for giving way. I welcome what he has said about seeking assurances from the police on whether there is a sufficient case to prosecute and to conduct further investigations. However, might not the appropriate route be for the Director of Public Prosecutions to consider all the information that is available in a particular case, and for him to provide the Home Secretary with advice as to whether that case is prosecutable?

Photo of Charles Clarke Charles Clarke Home Secretary

My right hon. Friend and his colleagues on the Home Affairs Committee have addressed this issue, and he has also said to me separately that there is a case for looking at whether an intervening procedure would also help in dealing with this process. I can assure him that I am ready to look at the precise way in which this issue can be dealt with.

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

The right hon. Gentleman told the House about the number of individuals charged under terrorist or related legislation. Will he be good enough to tell us how many have been convicted?

Photo of Charles Clarke Charles Clarke Home Secretary

I will repeat what I said a few seconds ago: 17. I am sorry that the right hon. and learned Gentleman was not listening.

Photo of David Kidney David Kidney Labour, Stafford

My right hon. Friend has been very fair in saying on a number of occasions that prosecution would always be the first preferred route, but nowhere in the Bill is that stated. Would he be amenable to amending the Bill, so that it states that that would be a constant consideration of the Home Secretary? The significance of such an amendment is that at every stage of judicial oversight, judges could take that factor into account.

Photo of Charles Clarke Charles Clarke Home Secretary

I will take advice on that point and on the legal process that my hon. Friend suggests. I can assure him absolutely and without qualification that prosecution is the preferred route, as I was at pains to set out in this speech and in my statement to the House yesterday. I will look into whether that can be reinforced in law in any way.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

Will my right hon. Friend also seek advice, through the DPP, the police or any other relevant body, as to whether a prosecution might be possible if impediments to the use of certain types of evidence, such as intercept evidence, were removed? I understand that the Metropolitan police, the former head of MI5 and a number of other organisations believe that the Government are tying the hands of the police and others behind their backs with regard to achieving a prosecution in some circumstances.

Photo of Charles Clarke Charles Clarke Home Secretary

I want to make the situation clear, and I should point out that I simply do not accept my hon. Friend's description of the position of the Metropolitan police. I think the individual she was referring to was Sir Stephen Lander, the former head of MI5 and chairman designate of the Serious Organised Crime Agency. I commend to her his letter to the newspapers of a few days ago and his excellent interview on the "Today" programme against the leader of the Liberal Democrats, Mr. Kennedy—I should have said "with", not "against"—on precisely that point. Our position is clear.

Photo of Vera Baird Vera Baird Labour, Redcar

I am very pleased that my right hon. Friend has said that he will consider sending all these files to the DPP, because that is an essential step. Is it not implicit in the application for a control order that the case in question has been impossible to prosecute? It is not appropriate for the Home Office to take such a decision when there is a constitutional figure—the DPP—whose job that is.

Photo of Charles Clarke Charles Clarke Home Secretary

I understand that point, which I will consider, and I know that my hon. and learned Friend has written specifically about it. There are serious issues on both sides of the argument, but hers is a well-made point that we can discuss.

Photo of Patrick McLoughlin Patrick McLoughlin Opposition Deputy Chief Whip (Commons)

The right hon. Gentleman is being very generous in giving way. He said that 701 people had been arrested and he then gave the figures for those convicted. What category did the people currently in Belmarsh fall into? Was it thought that there was insufficient evidence to prosecute them?

Photo of Charles Clarke Charles Clarke Home Secretary

I am not prepared to discuss individual cases, but what I will say is that all the individuals whom the hon. Gentleman refers to are being dealt with under powers in part 4 of the Anti-terrorism, Crime and Security Act 2001, and not under the Terrorism Act 2000, to which my statistics refer.

I said that I wanted to set out the motivating principles behind this legislation, and the first of them is getting a secure route to prosecution. The second is to protect our national security—that must be a key principle behind the resolutions—against the terrorist threat that I have set out. I argue that we need to provide control orders that give the police and the security services the means to apply control to those who are offering precisely the threat against which we have to protect ourselves.

Photo of Charles Clarke Charles Clarke Home Secretary

I will complete this point and then give way.

Photo of Bill Cash Bill Cash Conservative, Stone

Will the right hon. Gentleman give way?

Photo of Charles Clarke Charles Clarke Home Secretary

As I have said on a number of occasions, I like to make my speech in little chunks and then give way to a group of Members; that is what I will do, if the House will permit me. [Interruption.] In the past, too many people have called me a big chunk rather than a little chunk, I am afraid.

The second motivating principle is the need to protect national security, and in particular to provide the control orders that enable us to do that. They give us the means to secure our country that the security services and the police have asked for, and the Newton committee report recommended them in paragraph 251. Indeed, they are widely seen as meeting the disproportionality criticism that the Law Lords set out. I believe they are necessary for the security of this country, which is a key motivating principle, and I argue that strongly. I accept that there are people who say they are necessary but question the way in which they are put in place. That is a legitimate area for discussion, but I argue that they are necessary.

When David Davis makes his speech, will he respond to this serious point? What is the position of the main Opposition party on these matters? It is very important that we understand whether it supports control orders. I thought that the Leader of the Opposition was clear about that, but he became unclear when he met the Prime Minister last Friday, when he said that he did not want control orders at all, and he was less clear a moment ago. I gather that Andrew Marr was saying at lunchtime that he was unclear about the Conservative position, so it would be helpful if the right hon. Member for Haltemprice and Howden could make that clear.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I am concerned about a practical matter with regard to control orders. A whole range of activities is set out in clause 1. How will they be enforced as a matter of practice, not in theory? How can they be enforced without massive use of police resources and huge disruption for local communities?

Photo of Charles Clarke Charles Clarke Home Secretary

The resources issue is serious, as the right hon. Gentleman says, and one of the reasons why there has been a significant increase in resources for the security services in the comprehensive spending review is to try to ensure that we have those means. There is first the legal question and then the question of resources that he raises. We are making resources available to deal with the matter.

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

I am happy to give the Home Secretary an answer now. If he had read the Hansard of the debate that he was unable to attend—I think he was at the Home Affairs Committee—he would have seen that I dealt directly with the issue. We do not like the idea of control orders. We think that the method for their proposed use is flawed, but we are open-minded if they can be amended to meet our principal concerns about them. That was the point I made at the time in response to Mr. Oaten.

Photo of Charles Clarke Charles Clarke Home Secretary

I am genuinely delighted at that clarification. It is a difference from the position of the leader of the right hon. Gentleman's party, but I am very glad that, in this case, it is the right hon. Gentleman's writ that is running. It is important that that should be the case, because I seek—let me be clear about this—all-party agreement to the proposition that control orders are part of the armoury that we need to defend ourselves against the terrorist threat. I am delighted that he has signed up to that.

Photo of Claire Ward Claire Ward PPS (Rt Hon John Hutton, Minister of State), Department of Health

My right hon. Friend will recall that I asked him yesterday about the impact of a home detention order on members of the household. May I give him another opportunity to clarify his position on that? Will it be the responsibility of the Home Secretary and of the judge assessing the order to take into consideration the human rights of other members of the household and the impact on them? What legal redress, within the same time scale as the legal redress that my right hon. Friend is setting out, would be available to other members of the household, including minors?

Photo of Charles Clarke Charles Clarke Home Secretary

The short answer to that question is yes. It would be the Home Secretary's obligation to take into account the factors that my hon. Friend set out. The main legal redress would be through the appeal regime established against the control orders. Others in the household, or others around, could have that recourse to appeal their situation. I well understand my hon. Friend's particular concern, but it will be dealt with under the measure.

Photo of Bill Cash Bill Cash Conservative, Stone

The Home Secretary has set out his motivating principles—

Photo of Charles Clarke Charles Clarke Home Secretary

I have only just started.

Photo of Bill Cash Bill Cash Conservative, Stone

No doubt there are others to come. So far, does the Home Secretary accept that the prime motivating principle should be that the legislation should stand up, on his terms, to legal challenge in future? The Attorney-General is said to have doubts about that, but as I said to the Home Secretary yesterday, all he has to do is to bring in legislation stating "notwithstanding the Human Rights Act 1998" and then legislate accordingly. If he does so, there is no doubt that he would be able to ensure that the legislation would be upheld because judges would be under a requirement to do so. What is his answer to that?

Photo of Charles Clarke Charles Clarke Home Secretary

My answer is: wait until my third motivating principle.

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

With regard to control orders and their ultimate use for administrative detention, the Home Secretary made it clear yesterday that, under the current advice he was receiving, he would not seek to derogate from the charter of human rights and that the current security situation did not demand the imposition of such orders in this country now. So, as a consensus seems to be emerging in the House about the use of control orders below administrative detention, why is it not possible for the Bill's provisions to go up to but not include that, so that we can have a proper debate about control orders without administrative detention? That would give the Home Secretary an opportunity to reconsider and all of us would have more time to consider the exact judicial role in respect of administrative detention. Surely, that would be a much better way to approach the issue.

Photo of Charles Clarke Charles Clarke Home Secretary

There are two answers to that question—one of principle and one of practice. I think it is right in principle that, if there is to be a derogation, the subject of that derogation, in terms both of the threat and of the strict requirement for deprivation of liberty to meet that threat—the two legs of a derogation case—should be debated in this House and the other House. There should be specific discussion of that question, and every Member of this and the other House should make their decision on that issue. That is a superior way of legislating on these difficult matters, rather than the general confusion of another piece of legislation going through.

There is also an important practical question. The fact is that terrorists are moving rapidly and it may be necessary to move rapidly to deal with them. I need only cite the most recent example in Europe. The Madrid atrocity took place during the Spanish general election campaign and such things are always possibilities in this country, too. In those circumstances, we must be able to take the steps necessary to stop such things happening.

Photo of Sarah Teather Sarah Teather Liberal Democrat, Brent East

Does the Home Secretary accept that detention without trial was one of the most controversial and hated aspects of the troubles in Northern Ireland and consequently one of the most effective recruitment routes for terrorist organisations? What are the implications of the Bill for terrorist recruitment in this country?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not accept the language that the hon. Lady used, but I accept that there are serious issues about the use of internment in the case that she mentioned. That is why such powers should not be used except in exceptional circumstances and after full consideration, which is precisely what I propose.

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

I do not want to make the Home Secretary's life more difficult than it is, but on the issue of internment without trial, all the control orders proposed beneath derogation level will still be known to the communities where they are being used. Does he realise that, if the process is not known and understood and believed to be just, those orders, too, will be seen to be unfair?

Photo of Charles Clarke Charles Clarke Home Secretary

That is exactly why the Bill proposes detailed reporting procedures to the House and elsewhere, to set out exactly how the control order regime is operating, the quantity and so on. There may be myths and realities about those questions, but there should be informed and proper debate about the issues. It is exactly for that reason that the orders should be seen not as shadowy things but as something clear that people can discuss and consider in their particularity.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Can my right hon. Friend give some explanation of the enormous range of provisions for types of control order set out in subsections (3)(a) to (o) of clause 1? Many of those activities look similar to things that I saw happening to friends in South Africa, which will make it extremely hard to vote for the measure. Will he also explain which of them require derogation and how that provision will work?

Photo of Charles Clarke Charles Clarke Home Secretary

I will deal with the second point first. The derogation arises either when there is an individual measure or a combination of measures that add up to a deprivation of liberty. It will arise when an individual measure or a set of measures is being considered in those circumstances. Although I respect my hon. Friend's personal experience, I do not accept her comparison, because when we reach the point of deprivation of liberty a whole set of other issues comes into play, so we need a separate legal regime.

Photo of Charles Clarke Charles Clarke Home Secretary

I shall not give way, as I want to make progress.

The third motivating principle, which exactly meets the point made by the right hon. Member for Haltemprice and Howden, is the need to meet the Law Lords' judgment. In general, I do not regard it as a successful and positive state of affairs when the senior judiciary of this country, the Law Lords, and the Executive are in rather different places, and certainly not in terms of measures of this type. Their criticism of the regime in place was that it was disproportionate in character and discriminatory, and we should take that criticism extremely seriously. The measures that I am putting to the House in the Bill would address that question directly.

Photo of Charles Clarke Charles Clarke Home Secretary

I shall give way again when I come to the end of what I am saying. The hon. Gentlemen can listen to what I am saying and then come to a view. The fact is that, from June 2002 until December 2004, when the Law Lords' judgment was passed, a judicial process was taking place, with its final step in the Law Lords' judgment, considering the legality or otherwise of the steps that had been taken. In my opinion, it was correct in relation to that process for us to await the judgment and decide exactly what we would do on the basis of receiving it. We now have that judgment. I argue very strongly that we should not ignore the judgment or flout it, but act on it and try to put in place a regime that is both proportionate and not discriminatory.

Photo of Bill Cash Bill Cash Conservative, Stone

The Home Secretary is not really answering my point. It is not a question of whether or not he is complying with the Law Lords' judgment. The problem arises because the Government have got themselves into a complete mess with regard to the human rights legislation. Surely the point is simply that, to ensure that the House can legislate on its own terms, it must legislate notwithstanding the Human Rights Act 1998, and then he is in the clear. Does he not see that?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not accept any of that. I simply do not accept the argument. I do not think that it is correct. What I do think is that when the Law Lords of this country make a set of criticisms about the way that we are operating that is well founded, by a vote of eight to one, it is incumbent on the Government—and, I would argue, on Parliament—to respond to that and decide how to deal with it.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

I am not entirely unsympathetic to many of the points that the Home Secretary is making, but can he tell the House whether there have indeed been discussions with the Lord Chief Justice and the Law Lords on the Bill?

Photo of Charles Clarke Charles Clarke Home Secretary

Yes, I can say that. I can say that explicitly in my case in relation to the Lord Chief Justice, with whom I have informal discussions from time to time. The Law Lords are a very much more distinguished group of people and I am not sure that humble politicians can talk to them in quite that way. The answer is that we are actively discussing these questions with the judiciary. I cannot speak for them, of course, but I have certainly sought—as has the Lord Chancellor in the other place—to take account of what the senior lawyers have been saying about these questions.

Photo of Bill Wiggin Bill Wiggin Shadow Secretary of State for Wales

Had the legislation already been in place, how many of the 701 people that the Home Secretary mentioned earlier have been arrested—of whom only 17 were convicted—would have been subject to a control order?

Photo of Charles Clarke Charles Clarke Home Secretary

Those people would not have been subject to control orders because they are going through the courts in the prosecution regime that we are describing, but I cannot, and will not, comment on the situation that arises for any control order in a particular situation over that whole period of time.

Photo of Michael Weir Michael Weir Scottish National Party, Angus

Several times this afternoon, the Home Secretary has mentioned the appeal procedure for control orders. Clause 7 mentions the appeal procedure by way of judicial review. In Scotland, at least, judicial review is a process whereby people challenge the process by which a decision was made, rather than the decision itself. In considering these cases, will the courts be able to consider the evidence itself or will they be able to consider only the process by which the Home Secretary decides that the order is appropriate?

Photo of Charles Clarke Charles Clarke Home Secretary

The courts will be able to consider the material situation. As I said, I will come to the judicial review process in a moment.

The House will be glad to hear that I am now on my final and fourth motivating principle for the Bill: the need to end the uncertainty about the legal position that exists at the moment. Why is renewal of the existing powers, as proposed by the Opposition, in my view so poor an option, other than to give the Conservative party the chance to buy time and get itself sorted out? There are two main considerations, which I set out yesterday in the House.

First, if we were simply to renew the current part 4 legislation, as is proposed, it would be entirely possible for the individuals concerned, at Belmarsh or wherever, to appeal against the Act to the European Court of Human Rights at Strasbourg directly in that time scale. The very act of making that appeal would put uncertainty into the situation, which I believe would be undesirable. Moreover, in that situation, in the case of the individuals currently in Belmarsh, it would be entirely possible for SIAC, when considering their cases, to say that the position that we had taken did not allow detention in those circumstances, despite the fact that the order had been renewed.

If we were to accept the advice of the Opposition to renew the part 4 powers, in effect, we would be establishing a regime that was uncertain and not solid for a period of three, four, five or six months. That is why I urge the Conservative party to come to the view that renewal is not the route that it thinks it is to buy time, as set out by the Leader of the Opposition, but is actually a flawed route.

Those are the four motivating principles of the Bill: first, to secure prosecutions as our best way of moving forward; secondly, to protect national security by the use of control orders; thirdly, to meet the Law Lords' judgment; and, fourthly, to end damaging uncertainty. I argue that all those in the House who can support those four principles ought, in my opinion, to support the Bill on Second Reading and give it the fair wind that it deserves. Of course, none of that ignores the fact that there are issues of legitimate debate below those four principles—if I can put it like that—about the structures that the Bill puts in place. A range of issues will be debated in this House and the other place on those matters. However, it is right to say that, in my judgment, the biggest outstanding issue is the extent and form of judicial involvement in the process. That has been raised by a number of colleagues from my party as well as by other parties.

I intend to set out the judicial process that is within the legislation and then to confirm again the remarks that I made to my right hon. Friend the Member for Livingston earlier. Before I do that, I will give way to an array of talent on the Opposition Benches.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs)

Given what the Home Secretary has just said—that there are legitimate disputes about the contents of the Bill—why is the debate limited to two days? That is a question that perplexes all hon. Members, on both sides of the Chamber. The Bill deserves far more consideration that it is being given.

Photo of Charles Clarke Charles Clarke Home Secretary

Of course, I hear that argument. It is one that is made by a number of colleagues and it is frequently made when matters of this kind are considered. It has legitimacy, or not. It is an issue. I believe that the time available, both in this House and the other House, is ample to consider these questions. He obviously disagrees and other Members disagree, but that is an issue to be resolved.

Photo of Malcolm Bruce Malcolm Bruce Shadow Secretary of State for Business, Innovation and Skills

Has the Home Secretary not just described himself as being between a rock and a hard place? If he is not prepared to extend the existing regime—he is quite right to refuse to do so—and he cannot get the legislation through both Houses in the present circumstances, is not the right thing to do to concede that it should be a judicial decision and to stop the charade of trying to pretend that he can maintain his own position?

Photo of Charles Clarke Charles Clarke Home Secretary

I think that being between a rock and a hard place is part of the job description for this particular job, but I hope that my shoulders are broad enough to push the rock or the hard place aside to try to get to a solution if I can.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

May I pursue the constructive approach of my hon. Friends and suggest two other reasons why I hope the Home Secretary will be persuaded of the case for making the sequence of events different? The first is to do with the urgency point. He will know well that courts can be summoned and judges can be called on at any hour of the day and throughout the weekend, at any time. Secondly, it would be far better for the upholding of the authority of Government, of any party, for Ministers to have their proposal endorsed by the judiciary, rather than what has happened to many Home Secretaries, which is to have their decision overturned by the courts. It must be better for an idea of his, on advice, to be backed up by the courts at the beginning, rather than undermined a week later.

Photo of Charles Clarke Charles Clarke Home Secretary

That is part of the argument. Let me set out our proposals clearly, so that colleagues can see where we are.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

This builds on my previous question. The Home Secretary indicated in his reply that any of paragraphs (a) to (o) could require a derogation. Is that true? Or is it a certain combination of them? Secondly, under the list of offences, will collusion in the breach by a controlled person be an offence as well—for example, if somebody visits someone outside the hours, employs them, and so on?

Photo of Charles Clarke Charles Clarke Home Secretary

On the first point, I did not say, because it is not the case, that any of the orders, individually themselves, would be a breach of deprivation of liberty. What I did say was that that may be the case for one or more of them. Moreover, if some of those orders were used in combination they could, combined, add up to a deprival of liberty. How that was dealt with would be a matter for legal judgment at the time. On my hon. Friend's second point, I think that the answer to the question is yes, but I will take advice on that before properly answering the point.

Photo of Charles Clarke Charles Clarke Home Secretary

I look at the right hon. Gentleman, who is a member of the Intelligence and Security Committee, and if he says the answer is yes, I know it must be yes.

Photo of Clive Betts Clive Betts Labour, Sheffield, Attercliffe

Can my right hon. Friend confirm that, given the different powers under clauses 1 and 2, if he concludes that a combination of the various measures under clause 1(3) is required which amounts to a deprivation of liberty, the test will be different in relation to whether the control order should be imposed and will be based not on reasonable suspicion but on balance of probabilities?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is correct. Just to make it absolutely clear, let me say that, if there had been a derogation and there were then a deprivation of liberty by an individual order or a combination of orders, the higher standard of proof established in the Bill would be required.

Let me conclude by setting out quickly what the judicial proposals are.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

Will the Home Secretary clarify whether the undertaking that he gave my right hon. Friend Mr. Cook will materialise in Committee? In other words, when will we know the conclusion that the Home Secretary has reached?

Photo of Charles Clarke Charles Clarke Home Secretary

I will stick by the commitment that I gave, so I hope that what I said will be clear when the Bill is considered in Committee.

Photo of Graham Allen Graham Allen Labour, Nottingham North

On a point of order, Mr. Speaker. I apologise to the Home Secretary for interrupting his speech, but I seek clarification on procedure. I understand that the Committee stage of the Bill will take place on Monday. Am I right to assume that any amendments that hon. Members might wish to table as a result of the Home Secretary's open-mindedness would have to be tabled before the close of play tomorrow? We might have difficult technical questions about drafting with which we may need assistance before then.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

The hon. Gentleman will know that the Clerks of the House are well capable of giving assistance to hon. and right hon. Members. Obviously selection has not yet taken place, and the selection process will be as sympathetic as possible to hon. Members, given the circumstances and the context of the Bill.

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful for your clarification, Mr. Deputy Speaker.

As my hon. Friend Mr. Betts implied, different procedures are proposed for the judicial scrutiny of derogating and non-derogating control orders. Under the Bill's provisions on non-derogating control orders—those considered beneath the requirements that apply to the deprivation of liberty—an individual may appeal against the making of an order to the High Court. When considering the appeal, the Court must adopt the approach that it would use for an application for judicial review. I anticipate that, in cases that involve a consideration of human rights, the Court will apply greater scrutiny to the Secretary of State's decision and examine closely whether any interference with convention rights is proportionate. There will be a specific obligation to examine such matters carefully.

On derogating control orders, which are dealt with in clause 2 and other provisions of the Bill, there will be an automatic two-stage process for challenging the order. First, clause 2 provides that a derogating control order must be referred immediately to the High Court, which must consider within seven days whether there were reasonable prima facie grounds for making the order. If there are such grounds, the second stage will be that the judge will automatically refer the case for a full hearing by the Court, at which it will make its own decision, following a consideration of all material, about whether, on the balance of probabilities, the individual is or was involved in terrorism-related activity, and about whether the control order and each of the obligations were necessary.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I shall give way when I reach the end of this point, as I have done throughout my speech.

The subject of the order will also have the right of appeal against any modification of a derogating control order, or a decision not to revoke or modify such an order. Just as with an appeal against the making of an order, there will be a full hearing at which the Court will reach its decisions on the relevant matters.

Photo of Charles Clarke Charles Clarke Home Secretary

If we were to derogate from article 5 of the European convention on human rights, we would keep the need for any such derogation under review. The Bill thus provides for the Secretary of State

Photo of Charles Clarke Charles Clarke Home Secretary

I heard my hon. and learned Friend, and I shall give way in due course, as I have said to everyone else. He has a very loud voice—it is often louder than the wisdom of his remarks—and I shall certainly give way to him in a moment.

The Bill thus requires the Secretary of State to lay an order, subject to affirmative resolution, before Parliament each year after the first year to state that it continues to be necessary for the Secretary of State to have the power to impose derogating obligations by reference to the derogation, and derogating control orders shall have effect only beyond the first year of the derogation while such an order is in force. That represents the basis of the judicial engagement currently set out in the Bill.

Several hon. Members:

rose—

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

During yesterday's statement, the Home Secretary said that, when such proceedings come before the High Court or the Court of Session, special advocate procedures might be used. Will he bear it in mind that the Constitutional Affairs Committee yesterday received chilling evidence from nine existing special advocates about the difficulties that they face during such proceedings? Will he clarify—it is unclear in the Bill—whether it will be for the High Court and the Court of Session to decide the kind of special advocate proceedings that they will use, if any, or is there another means by which he intends to impose those proceedings on the courts?

Photo of Charles Clarke Charles Clarke Home Secretary

I take the right hon. Gentleman's point. Both the Attorney-General and Lord Carlile, in his review of the special procedures, have made similar points. I have not yet had a chance to study the evidence given yesterday in detail—I have only read reports of it. However, I confirm that we accept the need to review the procedures to try to deal with several points that have been made, and we will carry that through.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I agree with the Home Secretary that judicial protection is important, but does he accept that that is somewhat undermined by paragraph 8 of the schedule to the Bill, which provides that, if an order is quashed, the Home Secretary may make the same order again while relying on the same evidence?

Photo of Charles Clarke Charles Clarke Home Secretary

Not at all. The role of the Court is still clearly established.

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

Following on from the point about South Africa that my hon. Friend Ms Keeble has made several times, the High Court's jurisdiction on judicial review extends only to law and procedures, as my right hon. Friend is well aware. Will he state unequivocally that the only review of all the matters to which clause 1 refers—restriction on movement, restriction on work, restriction on association and so on; they are similar to the pass laws in many ways—will be on matters of law and procedure, and that the court will be enjoined that it cannot interfere on matters of fact? Is that right, because it certainly seems to be what appears in the Bill?

Photo of Charles Clarke Charles Clarke Home Secretary

I do not think that it is right. We are setting out two different processes, depending on whether derogation applies or not—whether or not there is deprivation of liberty. My hon. and learned Friend is right about non-derogating issues, but not derogating issues.

Photo of Richard Burden Richard Burden Labour, Birmingham, Northfield

May I raise a similar point, although I am now a little confused? I think that the Secretary of State said that different procedures would apply for non-derogating and derogating orders. However, he earlier said that one or more of the non-derogated matters could become derogated if they were in a particular combination. What would be the procedure for that, and who would decide it?

Photo of Charles Clarke Charles Clarke Home Secretary

The legal power to establish a range of orders under the Bill means that an order for the deprivation of liberty will be made by the Home Secretary and confirmed by a judge. If it were argued that a combination of measures added up to a deprivation of liberty, the judge would make a judgment on that, the Court of Appeal would carry the procedure though and the situation would be dealt with. The case would trip over on to the different process.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I am pleased that the Home Secretary said that his mind is still open about whether primacy should lie with him or the judiciary. What is the likelihood of his Department tabling an amendment before Monday—I know that the situation is complex because I have been trying to find a way to amend the Bill—that would make it absolutely clear that the judiciary would make a decision based on evidence provided by the Secretary of State about what he is minded to do in such extreme circumstances?

Photo of Charles Clarke Charles Clarke Home Secretary

I say again what I said earlier to my right hon. Friend the Member for Livingston. I assure hon. Members that I shall continue to give careful consideration to the issue. That means that I shall examine the appropriate language to deal with the situation.

Photo of Clive Betts Clive Betts Labour, Sheffield, Attercliffe

May I return to the judicial process for non-derogated orders? Is it not correct that, when judges consider a case, they will not look at it afresh and reach their own decisions based on the evidence, but decide whether the Home Secretary has behaved reasonably by coming to the view that he has reasonable grounds for suspicion? Surely that is an extremely low-level test for taking fairly fundamental rights away from British citizens?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is right in what he says, but it is not a low-level test: it is a serious test of a serious, difficult matter. It is an important point for him to make, and I understand why he makes it, but I do not think that it is a low-level test.

Photo of John Bercow John Bercow Conservative, Buckingham

Whether judicial decision is made in the first instance, as we believe it should be, or in the last instance, as the Home Secretary prefers, is surely a fairly fundamental matter of principle. Can I therefore take it, from his response to Mr. Cunningham, that the Government's readiness or otherwise to back down next week will depend very much on the size of the revolt this week?

Photo of Charles Clarke Charles Clarke Home Secretary

I have become accustomed over the years to admiring the hon. Gentleman's contributions to debate. However, on this occasion, I cannot respect what he says, as it is simply not correct. We will consider the matter on its merits.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

To follow up the point made by Mr. Betts, surely the test on the Home Secretary, if we are to accept the Bill, should not be that he should be satisfied on the balance of probabilities but beyond reasonable doubt. He is making a test based on no evidence from the defence at all, solely on the case being put to him by the authorities. Why is that test, in those circumstances, not beyond reasonable doubt before he seeks to deprive British citizens of their liberty under a derogating order?

Photo of Charles Clarke Charles Clarke Home Secretary

I am afraid that the hon. Gentleman confirms what he said earlier. Effectively, he is of the view that a control order regime should not be in place. He is entitled to argue that, but I do not accept that position.

I have given way a great deal in this debate and have spoken for just over an hour. I know that a lot of people want to come into the debate.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Can I take the Home Secretary back a moment, as this issue goes to the root of some of the problems that the House faces? He expressed concern about the special advocate procedure and said that he shared such concerns, and yet if he reads paragraph 75 of Lord Carlile's report, he will see that he highlights the concerns, saying that he is slightly surprised to have to repeat unfulfilled suggestions from his report a year ago. Does not the Home Secretary understand that one might have greater faith in the Government in these matters had they already responded positively to previous suggestions?

Photo of Charles Clarke Charles Clarke Home Secretary

That is a debating point, which the hon. Gentleman is entitled to make. I want to put on record that I appreciate the work of Lord Carlile. The hon. Gentleman should examine carefully his report, as his approach in reviewing the legislation confirms precisely the need for the kind of regulation that we have now, because of the threat established.

I said at the beginning, and now conclude by saying, that on the four key principles that I have established and set out, this Bill deserves the support of the House. I hope that it will be agreed today, and I hope that, through agreeing it, we will be able to provide even stronger and more effective protections against the dire threat posed by international terrorism to this country.

Photo of David Davis David Davis Shadow Secretary of State (Home Office) 2:52 pm, 23rd February 2005

I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:

"this House declines to give a Second Reading to the Prevention of Terrorism Bill, because it contains excessive powers in relation to requirements on a person to remain at a particular place when such powers are not presently necessary;
gives to the Executive powers that should be exercised by the judiciary;
allows decisions to be made on an insufficient standard of proof;
fails to address the need to bring terrorists to trial on the basis of all evidence available;
and thus wrongly infringes the right to liberty of the individual."

I shall start by attempting to put this debate on a proper basis. First, the Home Secretary started with rather a good description of the state of terrorism today. I did not agree with all his five categories for differentiating al-Qaeda, but there is no doubt that it constitutes a qualitatively different set of terrorist threats than existed before. That does not mean that we should throw away all that we have learned in this country in dealing with terrorist threats in the past. It does mean, of course, that we should alter our tactics accordingly. However, we should not throw away the civilised standards of which this country has become proud over the centuries.

I want to make two other points to the Home Secretary. Yesterday, he accused his opponents on this issue of, I think, playing politics with terrorism. That accusation is neither helpful to this debate nor in any sense serious. The easy political line in this sort of debate is to tub-thump about the threats, to raise the temperature and to talk about draconian penalties for terrorists. The harder line is to raise questions of principle, liberty and the proper process of British justice. The easy but, in my view, irresponsible approach would have been to roll over and let the Government legislate in ways that reduce liberty and harm long-standing, important traditions of British justice, which might even worsen rather than improve the terrorist situation.

Secondly, the Home Secretary alleged yesterday that the alternative to what he recommends is that we do nothing. That is clearly and patently untrue. It does not reflect well on the strength of his arguments that he needs to put up such an Aunt Sally. Not only have we made alternative proposals, but I and my predecessor made a number of those proposals to his predecessor, giving the Government a great deal of time to consider them.

Let us take, for example, the proposal that has been raised several times in interventions today, and which the Home Secretary has rejected—that intercept evidence should be used in court to enable more terrorists to be brought to justice and locked up in a prison, not in their living rooms. I said to the then Home Secretary in February 2004:

"Everyone agrees that the most desirable way to deal with terrorists is to bring them before the courts. That is where the Home Secretary should be concentrating his efforts—looking at aspects of the law that make prosecution more difficult and seeing whether they can be corrected."—[Hansard, 25 February 2004; Vol. 418, c. 314.]

The Newton committee highlighted one aspect in particular on which we believe that the Government should act. Paragraph 208 states:

"In our view one way of making it possible to prosecute in more cases will be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court".

We agreed. That conclusion was reached by Lord Lloyd in his 1996 review. It had the backing then of Lord Carlile and has been advocated in relation to terrorist cases for many years by Mr. Trimble. It has had the support of successive Chief Constables in Northern Ireland and of Sir John Stevens, as well as support in the United States and in other areas.

In the United States, extensive details of intercept capacity are published and are a matter of public record. They will therefore already be accounted for in al-Qaeda's behaviour, training and tactics. It is therefore difficult to see how knowledge of our much smaller intercept capacity in this country could make much difference to the training and tactics of al-Qaeda, especially when that is measured against the value of such information in court. That exchange was one year ago.

Photo of David Kidney David Kidney Labour, Stafford

I am really nervous about disclosing evidence that ends up putting at risk the lives of people who have helped us to collect the information. In relation to the right hon. Gentleman's reference to Lord Carlile, all that Lord Carlile mentions on page 215 of his review is

"the possible use as evidence in criminal trials of intercepted communications on public telephone systems".

I therefore wonder whether the right hon. Gentleman just supports Lord Carlile on public telephone systems or on the broader intercept debate.

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

It is on the broader intercept debate. The line that is best thought through is that of the Newton committee, which considered the matter. It was not a committee nominated by Liberty. It included past Cabinet Ministers and all its members were, I think, Privy Councillors, one of whom had been a Minister with responsibility for security in Northern Ireland. They did not take the issue lightly and they came up with a procedure, which I shall discuss in a minute, that was designed to protect not just intercept evidence but other sensitive intelligence sources.

As an aside, the head of the FBI in the United States says explicitly that he would not have been able to bring many racketeers in the US to justice—a similar sort of problem—had he not had the opportunity to use intercept evidence.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Although my intervention does not relate to that specific point, to avoid interrupting the right hon. Gentleman later, may I ask him the same question that I asked the Home Secretary about motive? In the north of Ireland, a great deal of progress has been made by considering the motives behind terrorism. Does he feel that the Government have paid sufficient attention to considering the motives of international terrorists? That is not to condone what they do, but perhaps we would get further with that than with having as our sole methodology the attempt to suppress the opportunity to terrorise, as the Government seem to be doing.

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

To be fair to the Home Secretary, his first duty in this respect is to prevent the outcome of terrorist attempts. He cannot be held responsible for reading or misreading terrorists' motives.

To a large extent, many western Governments misread the motives of al-Qaeda. That is something that is not well understood. Of the five conditions of change or difference that the Home Secretary has laid down, I did not agree with his first one, which was about the nihilistic approach. There have been nihilists in the past, but the approach of al-Qaeda is rather more pointed than that. The Home Secretary properly says that his first job is to stop terrorists.

Photo of Graham Allen Graham Allen Labour, Nottingham North

So that I am clear on Conservative policy, am I right in remembering from the earlier debate to which the right hon. Gentleman contributed that were he the Home Secretary, he would release all the people, in this context, now detained in Belmarsh?

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

No, the hon. Gentleman is not right. I talked to the previous Home Secretary about this very issue. I said that whatever our differences and disagreements in public about the principles, I would not be calling for the release of any individuals, precisely because of the knowledge that he has. I do not think that Hansard would show what the hon. Gentleman describes as being my view.

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

With regard to the Belmarsh detainees, it is clear that house arrest will not be employed against them in the near future. Does my right hon. Friend accept that if those people were to be released, it is fanciful to suppose that they would constitute a threat to the state, because they will be the subject of the most intense surveillance—and they will know that they are the subject of the most intense surveillance? It is implausible to argue that, in those circumstances, they will try to be involved in terrorism or to make contact with terrorists.

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

My right hon. and learned Friend has shared some of his career with me in the Foreign Office. We are both fully aware of the power of intense surveillance, both in terms of controlling the operation of would-be terrorists and in providing information that is useful for prosecuting those would-be terrorists in future. I think that in substance my right hon. and learned Friend is right, although I would not have phrased the matter in quite the way that he did.

I return to the point that the Home Secretary made yesterday, which is that there is no alternative.

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

I will give way in a moment. I want to get to the end of this section of my speech.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

It is on the point that my right hon. Friend is making.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

I am provoked by my right hon. and learned Friend Mr. Hogg. If these people had not been in Belmarsh in the first place, they would not be subject to any sort of surveillance. Does that not illustrate the necessity of having a mechanism, whether the one being proposed or another one, for putting people who are suspected of terrorist activities under proper supervision?

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

I agree with the conclusion but not with my hon. Friend's premise. It does not follow that if these people were not in Belmarsh they would not be under surveillance. It is entirely likely that they would have been under surveillance if they had not been in Belmarsh. The thrust of the debate is about what the proper surveillance and control is. I hope that we can come to that in a moment.

I shall finish with the issue of the Home Secretary's allegation that there is no alternative. It picks up the point that was made earlier. We recommended taking up the Newton committee proposal that we put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in a way that protects our security services but that is also fair to the defendant. This is relevant to what Lord Carlile says. I cannot remember the page number, but Lord Carlile raises the problem of the Special Immigration Appeals Commission procedures and the fact that nothing has happened to respond to his own recommendations with regard to those procedures. That is one thing that would help, and we supported that idea.

We also supported also the idea of an extra charge. I think that the Home Secretary, from what he said earlier, is taking up the idea of acts preparatory to terrorism. We would also look at laws based on the American anti-racketeering laws, which are designed specifically to deal with the same problems of difficulties in obtaining evidence. We would look at any procedure that protected the traditional rights to justice and liberty of the British subject, but which would advance our ability to catch, to prosecute and to convict terrorists. As I think the Home Secretary agreed, that must be the main thrust.

That raises the issue of the way in which the Government are attacking the problem. In the area of security, the Government have a unique advantage. They have access to data about the activities of terrorists, and knowledge of what they could and could not do in bringing charges given specific problems of evidence. They should have spent the past three years analysing and identifying cases where a change in the law would allow prosecutions to be brought on the basis of available evidence. They should then have discussed those matters with the Opposition parties, and they would have undoubtedly received support for that approach. I am sure that I am right. I certainly speak for the Conservative party, and I suspect that I speak for the Liberal Democrats, too. I see the Liberal Democrat spokesman nodding.

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

The right hon. Gentleman does not speak for my party.

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

I agree with the hon. Gentleman. I do not speak for the Liberal Democrats. I am glad to have that clarification. I would hate that confusion to be promulgated.

We should recognise that the problem that we face arises as a result of poorly drafted legislation, drawn up in haste in the aftermath of 9/11. That mistake was, of course, understandable, but we should not repeat it now. We should take time to get things right. That is why I offered support to the Government in extending part 4 powers for a limited time. The Home Secretary has said that that will not work. That begs the question why he laid a draft statutory instrument a few weeks ago to achieve exactly that outcome. The explanatory note to that SI read:

"The House of Lords expressly stated that the Act remains a valid, enforceable and effective enactment"

If the Home Secretary has concerns—to be fair to him, he expressed them to me in private some while ago, before we had this debate—he will remember that I said that we would be willing to put in place a short piece of primary legislation to ensure that the process worked. Far from doing nothing, the Opposition have done everything in their power not just to offer alternatives, but to create time for the Government to consider the alternatives and any other reasonable ways of finding an answer to this difficult problem.

As I have said, I agree with the Home Secretary that this is about a qualitatively different sort of terrorism that has been true, and known to have been true, for three and a half years, not three and a half weeks. What we are considering today should have been dealt with in the much longer term, as was promised by the Government, within six months of the publication of the Newton report, but they did not deliver.

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

If it is the right hon. Gentleman's view that the part 4 law could be extended, what would his judgment be in those circumstances about what to do with the detainees in Belmarsh? Given that the Home Secretary has said that he does not believe that there needs to be house arrest, I am assuming that we would need part 4 to detain the people in Belmarsh. What would the right hon. Gentleman do with them?

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

It is not for me to make judgments on the safety or otherwise of the individuals concerned. It is for us in this place to lay down the rules. One possible piece of primary legislation we could add would be to ensure that bail conditions amounted to the control orders that are laid out in the Bill, if need be, for the duration of three or six months, not in perpetuity and not applying to all British citizens. That is a possibility. That is as close as I will go in commenting on individual cases.

Yesterday, I asked the Home Secretary a number of questions on the substance of the Bill. I have to say that I received no answers to them. Under the proposals that are before us, for the first time in modern British history a politician will be able, by order, to constrain the liberties of a British subject. He would do that either on the balance of probabilities or merely on simple suspicion. He would do it for reasons and on evidence that may not even be known to the British subject who loses his liberty. Virtually every control order costs the subject some liberty. We should not differentiate on that basis. There is not a step change, as it were.

I repeat a quote which I used yesterday from one of the Law Lords, Lord Rodger. He said:

"The Government's assessment is . . . that it is not necessary to detain the British suspects in order to contain the threat that they pose."

That is implicit in the entire policy that the Government adopted, and it emerges in any event from paragraph 36 of the Home Office discussion paper "Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society", which was issued in February 2004. The document states that

"while it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify."

Photo of Charles Clarke Charles Clarke Home Secretary

Does the right hon. Gentleman recognise the following remarks?

"Those who advocate transferring to the judiciary the power to authorise detention before charge need to ask themselves whether decisions based on intelligence material can really be considered appropriate for judicial consideration . . . We would be asking the judges to perform what is, in essence, an Executive function."—[Hansard, 9 March 1994; Vol. 256, c. 298.]

Those were the words of the Leader of the Opposition when he was Home Secretary in 1994.

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

The quotation is from an exchange in which the current Prime Minister said that it was vital that when the liberty of subjects is curtailed, it should be done by the judiciary and not the Executive. The Home Secretary should check the entire exchange and fire his research assistant.

The Home Secretary told the Home Affairs Committee that the terrorist threat had not materially changed in the past year, so presumably the earlier comment about draconian powers being difficult to justify is still true. He reinforced the point with his comment that the security services do not believe that they need the full extent of the powers in this Bill at this point in time.

This question, which runs right through the debate, must be asked: what is the immediate emergency that demands that draconian powers against British subjects should be rushed through the Houses of Parliament without proper consideration, scrutiny or debate? What is the emergency that has arisen in the past 12 months that demands that we give the Home Secretary the right to fetter the liberty of British subjects—from restricting their ability to communicate right up to and including house arrest—without proper debate?

The most substantive concern about the procedure, and it is not the only concern, that the Home Secretary mentioned half a dozen times in his opening remarks is that it is proposed that a British citizen will face the loss of liberty on the decision of the Home Secretary, on suspicion alone and on evidence that the accused never sees. Why should that decision be made by a politician and not by a judge? Earlier today, the Prime Minister suggested that that will allow for speed, but in the most risky case a terrorist can be locked up for 14 days. The previous Conservative Government initiated that law and this Government have extended it. That period is far longer than is necessary for a judge to make a decision, even under the review procedure proposed by the Home Secretary.

There are good reasons why the Home Secretary should not take such decisions. Imagine the pressures on any politician, and on the Home Secretary in particular, after a terrorist outrage. Imagine the temptation to be better safe than sorry and to put away everybody, which are precisely the circumstances in which a miscarriage of justice will occur.

Yesterday, the Home Secretary unequivocally stated in his response to Mr. Oaten that he should take those decisions rather than a judge, because of the principle of Ministers' accountability. Within minutes, another Member asked him to comment on a particular case. The Home Secretary replied that he is unable to comment on individual cases, at which point the principle of Ministers' accountability unravels. The nature of the decision is that it is taken on secret grounds, which he cannot share with the House, and that he is unable to comment on the individual case itself. His principle is one of false accountability. Real accountability requires the House to be able to question and the Minister to be able to answer, and that level of accountability cannot exist on this issue.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

The matter concerns more than secrecy. It has never been a desired principle of our legal system that Ministers should come before the House to explain why they have decided that A should be locked up and that B should not. Even if secrecy were not an issue, in this country we have never sought to make such decisions in that way—we have left it to the judiciary, without attaching any kind of political process to it.

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

The right hon. Gentleman is entirely right. I was simply demonstrating the ludicrous nature of the thesis of ministerial accountability in individual cases.

Photo of Desmond Swayne Desmond Swayne Parliamentary Private Secretaries To Leader of the Opposition

The Prime Minister gave a rather different answer to the leader of the Liberal party, who asked precisely the same question earlier this afternoon. He said that the argument was the need for urgency, but we all know that the police already have the power to lock up people for 14 days.

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

My hon. Friend is correct. The leader of the Liberal party also asked why judges should not act quickly—they act quickly on warrants in any event. The urgency issue is a complete red herring.

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

I will give way to the hon. Gentleman who, although we disagree about this matter, has an outstanding record.

Photo of David Winnick David Winnick Labour, Walsall North

Under the previous Administration, in which the right hon. Gentleman served, one of my constituents, a Sikh, was detained and imprisoned indefinitely without any court action. He was only released because the European Court of Human Rights ruled on the case of another Sikh, who lived in Bedford, as a result of which my constituent was allowed out of prison. There was no court process whatsoever.

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

I will take another intervention if I am wrong, but I believe that the hon. Gentleman is referring to the Chahal case, which occurred before a deportation. The Home Secretary got that point wrong when he discussed how the French hold people. In France, people are held prior to trial, which is different from holding someone indefinitely.

Photo of David Winnick David Winnick Labour, Walsall North

My constituent had lived here lawfully for many years and was the editor of a Sikh journal. He was accused of being involved with terrorism not in the UK, but abroad. However, no court process occurred and, so far as I understand it, there was no question of his being deported. He was just held in prison until the Home Secretary decided on the case. I took a deputation to see the then Home Secretary, who is now the Leader of the Opposition, on that matter. My point is that people have been locked up previously without court action, as we know from the 18B regulation, which was introduced at the start of the 1939 war.

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

If the hon. Gentleman were right—I do not think that he is because we are discussing an issue that arises prior to deportation—two wrongs do not make a right.

Photo of Graham Allen Graham Allen Labour, Nottingham North

I thank the right hon. Gentleman for his generosity in giving way again. Returning to his point about urgency, he mentioned the 14-day period for which people currently may be detained on suspicion of terrorist offences. Does he feel that that period is sufficient to accommodate the point made by my right hon. Friend Mr. Denham? Papers could be got together during that period to assess the possibility of a prosecution and the Director of Public Prosecutions could say yes or no, at which point the Home Secretary could, if it were necessary, seek a detention order from a High Court judge or an Appeal Court judge.

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

I do not have an instant answer to that question, which I would have to examine in some detail before answering. Throughout the short duration of proceedings on the Bill, we intend to examine all such issues to see whether we can amend the Bill to make it acceptable. We are, after all, trying to achieve the right balance between liberty and the protection and security of the public. My argument today is effectively that the balance in the Bill is wrong.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

In one way or another, the right hon. Gentleman has great experience of the security services. Does he share the unease felt by some Members about the information on which Ministers must base their decisions? In 1968, Harold Wilson wanted to appoint the then MP for Lanark, Judith Hart, to his Cabinet. The security services objected on the ground that Mrs. Hart had a communist background, but they had identified the wrong Mrs. Hart, who had nothing to do with the MP for Lanark and who was the wife of a distinguished professor at the university of Oxford. The Home Secretary knows that the security services did not distinguish themselves during the miners' strike—and we will leave weapons of mass destruction out of it.

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

As ever, the hon. Gentleman makes his point elegantly.

That brings me to the question of the evidence on which the Home Secretary makes his decision. The Home Secretary proposes that control orders below the derogation threshold—tagging, communication restrictions and the like—should be made on the basis of reasonable suspicion, which is an even lower standard of proof than the assumption of the security services in the case of Judith Hart. Incidentally, the standard of proof is so low that it implies a large number of control orders, and I would like to hear what the Minister for Crime Reduction, Policing and Community Safety thinks will happen when she makes her winding-up speech.

Secondly, though technically capable of challenge, the evidence will not all be seen by the accused—Judith Hart would not have known what she was accused of under these circumstances. Reports coming out of SIAC indicate that, sometimes, the evidence put at the secret hearing is materially different from that put at the open hearing, so much so that the nature of the actual charge is different in the closed hearing from that at the open hearing. That means that, completely contrary to all British principles of justice, the accused will not be able to answer the charge, even if he is absolutely innocent and has a cast-iron alibi.

That brings me again to the nature of the evidence. The former Foreign Secretary, Mr. Cook, has expressed doubts about resting such serious action on unchallenged intelligence data because of the inherently unreliable nature of the information. He has a significant point, which was made even more firmly by the Father of the House.

As the Father of the House says, in previous years I have had various dealings with the agencies. It has become apparent to me that no matter how professional the agencies are—and clearly there have been unprofessional actions on their part—they are always entirely dependent on the accuracy of their sources. These sources are not James Bond with a Minox camera. Generally, they are associates of the target and are motivated by many things—money, greed, envy, malice, hatred and, sometimes, a wish to remove a rival. We are not talking about the most impartial of sources, leaving aside the gross error that the Father of the House mentioned. It is on the basis of suspicion, based on evidence such as that, that the Home Secretary wants to take for himself the powers to constrain the liberty of British subjects.

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

May I reinforce my right hon. Friend's point by asking whether he read the letter in The Daily Telegraph yesterday from a man whose father was interned on the corrupt evidence of an informer—a particular case of someone being falsely accused? May I also remind my right hon. Friend that the Leader of the House was prosecuted at the Old Bailey, having been framed by the South African security services?

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

My right hon. and learned Friend has a brilliant record in this area and remakes a good point that he made yesterday, which reinforces my point. We are talking about taking away people's liberty on the basis of suspicion, based on that sort of evidence, and without the scope for challenge.

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

Will the right hon. Gentleman reflect on the remarkable power in paragraph 4(3)(c) of the schedule—one of the comprehensible parts of the schedule—which says, in terms, that the Secretary of State shall not be required to disclose to the court any information or material that he has but does not intend to use? In other words, by statutory precept the Secretary of State is able to conceal disclosure that might be exculpatory.

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

That is an excellent point, which reinforces my concern. I am presuming in all of this a Home Secretary of impeccable motivation who is given information that he will be encouraged not to allow to be challenged. That is simply not acceptable, because the price of mistakes in this area is very high. A miscarriage of justice is always a matter of real concern and, even with these control orders, such miscarriages of justice can wreck lives, even at this apparently low level.

Imagine the impact on a software designer of being denied access to the internet, or on a salesman of being denied access to telephones—it would be the end of his career. In causing harm to the individual, that will give ammunition to the enemies of the state that we are trying to stop with the Bill. The chairman of the Bar Council said:

"Disproportionate measures risk radicalising the community from which a detainee comes. That may make this country less rather than more safe."

Photo of John Denham John Denham Chair, Home Affairs Committee

I should like to be quite clear as to where the right hon. Gentleman's argument is leading. He is making a case for saying that we should act only on the basis of evidence that can be heard in a criminal court and subject to those standards of evidence. It is a reasonable case if he wishes to make it. However, all of the arguments that he is currently making about evidence would mean that no type of control order and no measure short of a full criminal prosecution could be envisaged. Is that what he is saying to the House?

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

The right hon. Gentleman—who, again, has a distinguished record in this area—is reflecting a suggestion that I made earlier, namely, a distaste for control orders. I am laying out a series of hurdles that we have to get over. One is the question of the judge. Mr. Betts made a good point, saying that the fact that the judge only reviews the matter and judges whether the Home Secretary has acted unreasonably makes the level of proof that much lower again. We have an accumulation of effects that reduce the proposal to acting on suspicion, the dangers of which are large.

To answer the right hon. Gentleman directly, the question that we will be pressing through the course of the Bill is whether it is capable of being turned into something consistent with long-standing traditions of British justice and will help in the fight against terrorism, rather than give ammunition to our enemies.

Photo of Bill Cash Bill Cash Conservative, Stone

Has my right hon. Friend noticed that the provisions relating to the repeal of sections 21 to 32 in part 4 take effect on 14 March? On the same date, of course, the Bill will be enacted or, at least, will be passed by the House. The problem is that there will then be two different rules of law applying, because the repeals that are set out specifically are kept, in effect, during the continuation of appeals. It appears, subject to discussion in Committee, that there will be two sets of laws operating at the same time, which will create even more confusion.

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

I accept my hon. Friend's expertise in the matter. I had not considered the point and it is not central to the thrust of what I am saying. However, I take his point—it indicates, yet again, that this is an ill-thought-through Bill.

Photo of John Denham John Denham Chair, Home Affairs Committee

The right hon. Gentleman must pursue the questions that he has set out in these discussions. He has been in his job for some time and must have formed a view now as to whether there is a group of people who cannot be prosecuted in the courts, but against whom action needs to be taken. Does he accept that such a group exists, in which case could he tell the House today what action he thinks should be taken against it?

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

The right hon. Gentleman has been in his job for quite a time, too, and he knows that I am paid to make decisions and not to think out loud. We are trying to ensure that the measure works as well as it can. Also, we have said, in terms, that there are other Bills or laws that ought to be enacted to give the Home Secretary greater powers and to widen his net. At the moment, there are no such powers. As the Home Secretary has said, there have been 701 arrests, approximately 400 prosecutions—a little less than half on terrorist issues, with many others on immigration and other issues—and 17 convictions so far. For three and a half years we have managed to maintain the safety of the public, and the security services have done a very good job in that regard.

What has changed in the past three and a half weeks? If the Home Secretary had been saying for six months, "Look, we are concerned about British subjects being a terrorist threat and we need to deal with this," and if we had talked the matter through in some detail and been able as a House of Commons to come to a considered balance between the threat to the public—which is never as quantifiable as Mr. Denham describes, incidentally—and the ancient rights of the British people, I would be in a frame of mind much more amenable to his question.

We now have essentially two weeks to try to put together the follow-on from a Bill that itself was so ill drafted that it has fallen to pieces in the hands of the Government, and that is not a very good way to secure the future security, or indeed the future liberty, of British subjects.

I was rather sorry that the Home Secretary was not present at the previous debate, because I was going to tease him a little. He and I were at university at approximately the same time, and no doubt we both read the fashionable left-wing writers in those days.

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

The right hon. Gentleman shakes his head and claims that only I, a Conservative student leader at the time, read them when he did not. Fair enough. But one of the things that they all clearly argued was that one of the primary aims of a terrorist is to provoke a reaction from the state, which in turn will radicalise a part of the population and recruit them for the terrorist cause. There is a serious danger of that if the use of these control orders is seen to be unjust, even by a minority, and that alone should be a telling argument for the power being exercised by the judiciary, not by the Executive.

After three years in which none of these powers has been available against British citizens, at a time when the Home Secretary himself says that the security risk is the same as it was a year ago and the security services and police say that they currently do not need the most draconian powers listed here, why do we suddenly need this measure in 14 days flat in the shadow of a general election? The Prime Minister said that the security services say that they need them. Did they tell him that in the past few weeks? Did they tell him that they needed them instantly? I doubt it.

To reiterate, the Home Secretary is taking powers to curb the freedom of British subjects by order, on suspicion, based on limited and possibly doubtful evidence. He does this after his own Department said that the measure was draconian and unjustifiable less than a year ago, and he does it after no apparent change in the circumstances, in a rushed Bill with wholly inadequate scrutiny in both Houses of Parliament. That cannot be the way for a democracy that believes in the rule of law to proceed.

Lord Lloyd of Berwick, a former Law Lord who has great expertise in this area, said that the Home Secretary

"can confine British citizens for the first time in our history to house arrest. There are upwards of a thousand British citizens suspected of having links with Al-Qa'eda terrorism. Up until now, it has been possible to contain the threat without these special powers. The question is: why has it suddenly become necessary to impose these quite exceptional control orders?"

That is the question that the Home Secretary must now answer.

Photo of Mr Brian Sedgemore Mr Brian Sedgemore Labour, Hackney South and Shoreditch 3:32 pm, 23rd February 2005

As this will almost certainly be my last speech in Parliament, I shall try hard not to upset anyone. However, our debate here tonight is a grim reminder of how the Prime Minister and the Home Secretary are betraying some of Labour's most cherished beliefs. Not content with tossing aside the ideas and ideals that inspire and inform ideology, they seem to be giving up on values too. Liberty, without which democracy has no meaning, and the rule of law, without which state power cannot be contained, look to Parliament for their protection, but this Parliament, sad to say, is failing the nation badly. It is not just the Government but Back-Bench Members who are to blame. It seems that in situations such as this, politics become incompatible with conscience, principle, decency and self-respect. Regrettably, in such situations, the desire for power and position predominates.

As we move towards a system of justice that found favour with the South African Government at the time of apartheid and which parallels Burmese justice today, if hon. Members will pardon the oxymoron, I am reminded that our fathers fought and died for liberty—my own father literally—believing that these things should not happen here, and we would never allow them to happen here. But now we know better. The unthinkable, the unimaginable, is happening here.

In their defence, the Prime Minister and the Home Secretary say that they are behaving tyrannically and trying to make nonsense of the House of Lords decision in A and Others as appellants v. the Home Secretary as respondent because they are frightened, and that the rest of us would be frightened too if only we knew what they will not tell us. They preach the politics of fear and ask us to support political incarceration on demand and punishment without trial.

Sad to say, I do not trust the judgment of either our thespian Prime Minister or our Home Secretary, especially given the latter's performance at the Dispatch Box yesterday. It did not take Home Office civil servants or the secret police long to put poison in his water, did it? Paper No. 1, entitled "International Terrorism: the Threat", which the Home Secretary produced yesterday and I have read, is a putrid document if it is intended to justify the measure. Indeed, the Home Secretary dripped out bits of it and it sounded no better as he spoke than it read. Why does he insult the House? Why cannot he produce a better argument than that?

How on earth did a Labour Government get to the point of creating what was described in the House of Lords hearing as a "gulag" at Belmarsh? I remind my hon. Friends that a gulag is a black hole into which people are forcibly directed without hope of ever getting out. Despite savage criticisms by nine Law Lords in 250 paragraphs, all of which I have read and understood, about the creation of the gulag, I have heard not one word of apology from the Prime Minister or the Home Secretary. Worse, I have heard no word of apology from those Back Benchers who voted to establish the gulag.

Have we all, individually and collectively, no shame? I suppose that once one has shown contempt for liberty by voting against it in the Lobby, it becomes easier to do it a second time and after that, a third time. Thus even Members of Parliament who claim to believe in human rights vote to destroy them.

Many Members have gone nap on the matter. They voted: first, to abolish trial by jury in less serious cases; secondly, to abolish trial by jury in more serious cases; thirdly, to approve an unlawful war; fourthly, to create a gulag at Belmarsh; and fifthly, to lock up innocent people in their homes. It is truly terrifying to imagine what those Members of Parliament will vote for next. I can describe all that only as new Labour's descent into hell, which is not a place where I want to be.

I hope that—but doubt whether—ethical principles and liberal thought will triumph tonight over the lazy minds and disengaged consciences that make Labour's Whips Office look so ridiculous and our Parliament so unprincipled.

It is a foul calumny that we do today. Not since the Act of Settlement 1701 has Parliament usurped the powers of the judiciary and allowed the Executive to lock up people without trial in times of peace. May the Government be damned for it.

S

The document he describes as the putrid 'Paper 1: International Terrorism: The Threat' is here

and he's not wrong.

Submitted by Stefan Magdalinski Read 2 more annotations

Photo of Mark Oaten Mark Oaten Shadow Secretary of State for Home Affairs, Home Affairs 3:38 pm, 23rd February 2005

I wish Mr. Sedgemore well in his retirement if that was indeed his last speech. Although I do not agree with all the points that he made, I admire his passion and commitment.

We are dealing with extraordinarily complex circumstances. It is easy for us to make the sort of speech that the hon. Gentleman delivered, draw on historical values and discuss the strong principles of justice that are changing. I do not intend to make such a speech. I shall leave that to others who are more eloquent and have a stronger sense of history than me. In the next 20 minutes or so, I shall treat the subject as a practical issue, ascertain whether we can find a way forward and bluntly analyse where there is agreement and disagreement.

Let me begin with agreement. There is probably cross-party agreement that none of us underestimates the issues that we are tackling in this post-9/11 era. None of us underestimates the serious terrorist problems. The Home Secretary's analysis of how matters have changed was spot on. The global implications that he outlined are especially important. They have made the world in which we live different—not only the type of terrorists but their ability to operate globally, with all the communications systems that exist, have changed enormously.

I think there is also agreement—cross-party agreement—on the fact that we have due respect for the intelligence services, and owe them a great debt of gratitude for what they have done over the past three or four years. We want, on a cross-party basis, to give them all the tools that they need in order to do their work. There is also agreement, I believe, that we must do something about the current situation. I am uneasy about what may happen in four or five weeks. If we have no legislation we will create a vacuum, and I do not think we want that. Something must be done to deal with the difficult circumstances.

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

I took the precaution of finding out before the debate what would happen if the Bill were not passed. I do not know whether it will be passed at this point, but if it falls there will still be time on the last day for part 4 to be extended by however many months are necessary. The Government can do that instantly if they need to.

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

I will say later whether I think that that is the right thing to do. My starting point is that we should all agree that we must achieve something on 14 March. We cannot allow a vacuum to exist because of political differences; we absolutely must do something.

There is a fourth area of agreement. I think that the Government have been forced to reach that agreement, but in any event they now agree with us that the current measures are not acceptable. We have felt that for some time, as have the official Opposition. Because of the Law Lords' ruling, we have at least secured an acknowledgement from the Home Secretary that we cannot maintain the present situation, particularly in relation to the Belmarsh detainees.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

For the past four years, while we have been arguing collectively with the Government, we have consistently said that there is an alternative to detention without trial and have consistently proposed constructive alternatives. The Government have put themselves in this position by refusing to listen during those four years.

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

When my hon. Friend was doing the job that I am now doing, he was clear about our determination, whenever we had to decide what to do with a derogation, not to ignore it but to suggest alternatives. I take that approach as well. We have made such suggestions at various times, and we could have had this debate some time ago, but at least we are having it now, and I think it is agreed that we must now move on.

There is agreement on another matter—helped, I think, by what I considered to be a constructive speech by the Home Secretary. He reiterated that prosecution should be the starting point, and I think we all agree that we should seek prosecution in these cases. Nevertheless, I take the point made by a number of Members that it would be helpful to enshrine that starting principle in the Bill. At present, we have only the Home Secretary's words, and, as some of his hon. Friends have suggested, the principle does not come across strongly enough.

There is some agreement on another issue, which, although we have not discussed it yet, is relevant. Our long-term objective is an international situation in which deportation is a proper solution. I shall deal later with the respects in which we disagree with that, but there is surely consensus that we must be heading there at some point.

I am now convinced of the Home Secretary's arguments that in relation to the current detainees, intercept communication would not have been a useful tool for the purpose of achieving prosecution. I shall deal with the differences between us later, but in the context of that narrow aspect I accept that intercept communication would not have dealt with the existing problem.

There has been some interesting movement on control orders this afternoon. For some time we have argued against a black-and-white approach, suggesting that another tool is needed to deal with the complex issues and that control orders would be useful. There are differences on how they should be introduced, and I shall say something about that shortly, but at least there seems to be cross-party consensus that control orders have a role to play. David Davis, who is having a little natter at the moment, implied earlier that the Conservatives were prepared to consider them in some shape or form. Let us bank that, and see if we can move on. We may not like control orders—I am not wild about them myself—but hey, we are trying to find a sensible solution to all these problems.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I accept that one may have to swallow the extremely unpalatable, but every hon. Member should be concerned about the principle of control orders. It is a departure from our established principles and threatens our liberties greatly.

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

I do not underestimate any of that, and I shall explain how we can make the control orders work and deal with our principles. One has to have other schemes to deal with this issue in addition to the possibility of jail. We have been prepared to say that we will look at control orders—subject, obviously, to the principles that I shall outline later.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

I am not convinced of the case for control orders. I am absolutely convinced of the case for keeping people under surveillance. In fact, I want them to be listened to on the telephone. I want our security services to find out who they are in touch with and get the information if there is a plot. We can then use that information and arrest. The hon. Gentleman does no honour to his party by so quickly giving away the principle.

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

I would not say that I have given that away quickly, or that an enormous issue of principle is involved in control orders. The issue is: how do we impose those control orders and on what standard of proof do we impose them? Those are pretty big principles and I shall fight for them, but I am prepared to throw control orders into the equation of the debate to try to find an alternative to holding detainees in the way that they are currently held.

The next area where there is some agreement, or at least where some progress has been made, is the Home Secretary's acknowledgement that there needs to be some judicial involvement in this process. We disagree about where that should be, but it is worth putting on the record that we welcome the fact that, in arguing that the judicial process should be a reviewing mechanism, he has at least moved to strengthen the reviewing mechanism. Derogating control orders will be referred automatically within seven days and judges will be able to look at the evidence independently, rather than just making an assessment following the Home Secretary's decision, which is welcome.

There remain peculiarities in the proposals. The point has been made about the powers that judges would have to redirect the Home Secretary. That raises the question whether the Home Secretary would be bound to listen or could play ping-pong back and forth between the judges.

There is agreement on a point about which I know the Home Secretary cares a lot. He argues continually that he has responsibility for national security. We agree, but we do not necessarily agree that that means he must have the power to make these decisions separate from a judge. We believe that he could keep and fulfill that responsibility while meeting the requirements. The Home Secretary has responsibility for national security, but not for reviewing individuals case by case in the way he suggests.

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

The hon. Gentleman speaks warmly of the Government's advance towards judicial review, but has not he picked up the point that there is no judicial review of a control order that deals with the restriction on movement, the restriction in respect of work, the restriction in respect of association, the restriction in respect of residence, where someone can live, whether they have a passport, whether they are to be tagged, who they talk to, and whether they can talk or not? There is no judicial review on any of those issues. Have the Liberal Democrats not picked that up yet?

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

I think that the hon. and learned Gentleman is trying to be helpful, but I was going through the bits that I agree with. If he will give me time, I shall get on to the bits that I disagree with. However, let us try to be constructive and say, "Where can I, from my perspective, bank an agreement?" On derogating control orders, there has been some movement from the Government to acknowledge that the judicial review process should be strengthened. I do not think that that is the right way forward, but I acknowledge that they have made some movement in that direction.

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

Before I am criticised for supporting the Government, I would like to get on to the bits that I disagree with, but I give way.

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

Even if one is trying to improve judicial oversight, it is essential that the interests of the detained person are properly represented. Does the hon. Gentleman accept the critique by Lord Carlile of the role of special counsel? It is plain that the special advocate can barely discuss a case with the detained person.

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

I entirely agree with the right hon. and learned Gentleman. That is indeed one of the weaknesses that we are trying to highlight.

Having acknowledged some movement on areas of agreement, let us now move on to areas of disagreement and then perhaps seek some ways forward. I want to deal quickly with deportation. We disagree because we would like much stronger reassurances on human rights issues. It is not satisfactory for Ministers to be exchanging memorandums on these issues. The orders must be binding and tested, and we must have some reassurance that, before we proceed with any deportations, proper human rights principles are in place.

We disagree about intercept communications, but the Home Secretary said that he wants to leave the door open. When he made his statement yesterday, I suggested that one way to make progress would be to re-establish the Newton committee or some other body to consider sensible ways in which we could use intercept in certain cases in six months' time.

The main area of fundamental disagreement is the point at which the judicial process kicks in. The Home Secretary believes and insists that it should be after the event; we believe that it should be at the beginning of the process. There is a big gulf between us and it is difficult to see how we can find a way forward as the Bill proceeds through Parliament. It is an important principle—not just a matter of having a timeline and deciding when things should happen—because a politician is being given the ability to restrict the liberties enjoyed in this country solely on the balance of probabilities. That represents a break with years of our history and the Liberal Democrats are extremely uncomfortable with it.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

I share the hon. Gentleman's concerns, as I believe that the Home Secretary should make an application to a judge in the first instance to get the process moving. My right hon. Friend has already agreed today to have another look at the problem. If, after further reflection, it were decided that the application should first go to a judge rather than to the Home Secretary, would the Liberal Democrats support the Bill?

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

I want to be as transparent and open as possible about this matter, and if we saw some real movement, we would certainly be in the business of debating some of our other concerns about the Bill.

That deals with one critical issue. I am trying to be as helpful as possible, so I shall move on to raise some further issues on which we want reassurance. My hon. Friend Simon Hughes provided another compelling reason for ensuring that judges are involved at the start of the process when he referred to the continual embarrassment of the Home Secretary in having his decisions overturned by judges as time goes on. That is a strong argument.

Our next major disagreement is over standards of proof. I acknowledge that the wording has now moved a little in the right direction, but not far enough for us. As the Bill proceeds, we must carefully examine the different standards of proof that apply, particularly when we are talking about depriving individuals of their liberty. The highest standards must apply when we are contemplating house arrest or detention, but I disagree with the idea that it is acceptable to have reduced standards of proof for some lower-level control orders. Fundamental issues about liberty may still be at stake when methods other than house arrest—curfew and tagging, for example—are adopted. People are deprived of their liberty in those cases, too, so we would require a great deal of convincing that lower standards of proof were acceptable.

The same applies to the issue of whether evidence can be heard. Mr. Denham, the Chairman of the Home Affairs Committee, intervened on the shadow Home Secretary to ask about the effect of these issues on the operation of control orders. I accept that, in some circumstances, it is not possible to bring in all the evidence, but we want a sensible debate with the Government about ensuring that as much evidence as possible, and the highest possible standards of proof, are used in these cases.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

The hon. Gentleman is trying to be constructive, as I am. Would he accept the balance of probabilities as a standard of proof in clause 1 cases? Would that be acceptable?

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

I am not prepared to concede that at the moment. I would want further discussions about a range of possibilities on standards of proof.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

Does my hon. Friend agree that it is important to make it clear that a judge's decision relates to non-derogating as well as to derogating orders? Both are eventually subject to judicial review, contrary to what was stated earlier, but should not the initial decision in respect of both types of order be made by a judge?

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

I agree with my right hon. Friend.

On derogation, we have a peculiar situation. The Home Secretary argues that he will not require derogation in respect of house arrest, but seems to want to have it available in the bottom drawer of the Bill so that he can revisit it at some point. So far, no one has made it clear why a derogation may be necessary. The relevant wording is quite powerful and makes it clear that a derogation should be imposed only when there is an

"exceptional situation or crisis that affects the whole population and constitutes a threat to the organised life of the community of which the state is comprised."

We should be under no doubt that a derogation demands quite a high level of threat. Moreover, the House should recall that this country is the only member of the Council of Europe that requires a derogation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

A moment ago, the hon. Gentleman raised the question of the standard of proof. It is all very well to say that we want to raise it, but the central principle of normal justice systems is that the other side is able to put its case, which means that it must be in a position to answer an allegation. Does he agree that we must be aware that buzz phrases such as "standard of proof" and "balance of probabilities" can easily become meaningless when the system being devised is unfair?

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

The hon. Gentleman is right, which is why judges should make the assessments, and why we must ensure that defendants understand the evidence. For people to be able to defend themselves, they must be able to understand the charge. Preventing miscarriages of justice means that they must also be able to see the evidence.

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

The hon. Gentleman is approaching the question of whether there is a threat to the life of the nation. Is he aware of what Lord Hoffmann said in the Belmarsh case? He said:

"I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt but that we will survive Al-Qaeda."

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

The right hon. and learned Gentleman makes an important point. The question of the derogation must be matched against the judgment of the Law Lords, to make sure that we meet the very strong demands that derogation would require when we take away people's liberty.

My second point in respect of derogation is that we are not convinced that some of the lesser issues covered by control orders would not also require some form of derogation. When the Home Secretary made his statement yesterday, I asked what legal advice he had received on that question. It would be helpful if that advice could be published within the next 48 hours, for example, so that we can see what assessment has been made as to whether the various control orders require a derogation.

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

The hon. Gentleman spoke about meeting the Law Lords' requirements, but he ought to read everything that they said. Several of the Law Lords said that they did not think that this injustice could be solved by extending it to all British citizens.

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

The shadow Home Secretary mentions another interesting matter. We have not probed the Home Secretary on that yet, but it will be interesting to know how far he expects the Bill to help in an area where he has previously lacked legal support. We have been talking about foreign nationals, but we have not asked how much the Home Secretary and the intelligence services believe they need the Bill to help with British nationals. When the Minister for Crime Reduction, Policing and Community Safety winds up the debate, I hope that she will say whether she envisages that about 100 or 150 control orders will be issued in the future. Conversely, is it her assumption that the proposed new system will deal with roughly the same numbers of people as is presently the case with foreign nationals?

I have set out where my party agrees with the Government in this matter, and where we disagree. I now want to float some suggestions for a possible way forward in a number of areas. We could achieve cross-party support on control orders and the point at which the Home Secretary would become involved in the process. In exchanges at Prime Minister's Question Time today and during the Home Secretary's statement yesterday, it became clear that there were two barriers to the Home Secretary's agreeing to our suggestion that he should apply to a court in the first place. First, he argues strongly that he has national responsibility for making the decision. We believe that he would not be derogating from that duty if he assessed the intelligence information himself, made a judgment and then applied to a court. I cannot see how that route would leave him open to criticism for failing to meet his responsibilities.

Secondly, objections were expressed both by the Home Secretary and strongly today by the Prime Minister about the time issue. Again, I think we can overcome them. As hon. Members have said, individuals can currently be held for 14 days. I have received legal advice that that may not be adequate to help the Home Secretary with the difficulty of dealing with terrorists. The ability to hold an individual for 14 days is based on the assumption of an investigation taking place and a charge being made. If that were the case, we would work constructively with the Home Secretary to find another way to allow him a limited emergency power for a short period on the assumption that all that was being done was that an individual was being held before the Home Secretary applied to the court for an interim order to start the judicial process. We accept that all the papers and arguments might not be forthcoming within 24 hours. However, because an interim order would be in operation, we would allow some time to elapse so that the papers and the full case for a control order could be advanced. I believe that that meets the concerns about the Home Secretary fulfilling his responsibilities for national security. It would meet the concerns that he and the Prime Minister have expressed about time scales, as he could act the minute that he had the intelligence information. It would also meet the concerns of Liberal Democrats and other hon. Members about the need for a proper judicial process. I hope that in Committee we will have a sensible dialogue about those issues.

Photo of David Kidney David Kidney Labour, Stafford

The hon. Gentleman and the shadow Home Secretary advanced the premise that everyone who is served with a control order is already in police custody, but that will not necessarily be the case. Would the hon. Gentleman consider making another suggestion to the Home Secretary: that he should be able to go to the judge in the absence of the individual concerned to get a control order served, then the court proceedings could carry on?

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

I am happy to accept that suggestion, as it is precisely what I was arguing. I assumed that there were no control orders in place and that we were dealing with a fresh piece of intelligence. What, for example, would the Home Secretary do if he were about to have supper on a Saturday night when he received a phone call at 7 o'clock and was given fresh intelligence? I want to find a helpful way of enabling him to manage that process. We could find a further way forward if we secured a promise and a commitment to look at where and at what point different standards of proof apply. It would also be helpful if the Home Secretary gave, first, a commitment to look again at intercept communication with a proper organised structure and timetable and, secondly, an early commitment to consider seriously new laws on acts preparatory to terrorism. That is the constructive approach that we will take in the next week or so as the Bill proceeds through both Houses.

I shall conclude with the dilemma of what we do with the current detainees in Belmarsh.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

I wish to raise a matter that my hon. Friend mentioned earlier. We have to do something with special advocate procedures and the disclosure rules that surround them if any process is to become viable. As these matters will not be for the Special Immigration Appeals Commission but for the High Court or the Court of Session, there must be a process—the Home Secretary has not yet explained what it is—whereby those courts have the authority to decide what those procedures will be.

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

My right hon. Friend is right, and that can be added to my list of issues that we need to discuss.

Finally, on the question of what we do with the current detainees held in Belmarsh, the Home Secretary's statement yesterday that he does not intend to trigger the requirement for house arrest suggests that two things will happen. First, on 14 March, if he gets the Bill through Parliament, he would release the individuals from Belmarsh and, I assume, put them on to a tagging system or perhaps a lower level of surveillance. Secondly, he would release the individual held under house arrest with some form of tagging. It would be helpful to know what plans the Home Secretary has for those individuals and whether my assumption about what will happen is accurate.

The problem remains that, if we cannot reach agreement on the Bill and it is impossible to reach agreement on renewal of derogation along the lines suggested by the shadow Home Secretary, we have a responsibility to do something about those individuals, and certainly not to leave them in Belmarsh for an extended period because we fail to come to a decision. When the Minister winds up, I hope she will say how we can have a constructive discussion about what we should do with those people. It is a shame that they are being held in Belmarsh when the Home Secretary has stated that it is not his intention to hold them there. The sooner we can resolve that problem, the better.

The issue is all about a balance between civil liberties and ensuring the right security in this country. Our judgment is that the Government have had the wrong balance for the past three years, but we acknowledge that it is improving. It is still not right, but there is good will on our side to move that balance in a direction to enable Liberal Democrat Members to support these measures. However, we are a long way from that yet.

Several hon. Members:

rose—

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I remind the House that Mr. Speaker has imposed a 15-minute limit on all Back-Bench speeches. That applies from now on.

Photo of John Denham John Denham Chair, Home Affairs Committee 4:06 pm, 23rd February 2005

I am prepared to make it clear—the shadow Home Secretary was not—that a group of people exists on whom the Government have evidence that they cannot bring to court and against whom it should be necessary to take action. If I have time, I shall develop my reasons for believing that, but I make that statement of my belief for the purpose of my initial comments.

I am primarily concerned in this debate to achieve the right practical outcomes in terms of human rights, civil liberties and our ability to tackle terrorism. An overly legalistic debate on such matters is not always helpful and there is a certain amount of self-flagellation in our approach to such issues in this country. Across the channel, the legal procedures are apparently different. However, the reality is that people are detained for up to four years without trial, and that a regime exists which the French authorities believe leads many people to leave France because they are worried about detention powers. Under that regime, the Government deport people to many countries to which our legal system finds it impossible to deport people. I am not giving a view on whether that is right, but it is a reality in the modern world. Some of the suggestions made during this debate—that we are putting ourselves beyond the pale with our proposals—simply do not recognise the reality of what happens in other countries.

I want to focus on an exchange that I had with the Home Secretary earlier and to move slightly away from whether the Home Secretary or judges should make the initial decision on control orders. I believe that the practical outcome of those two different approaches would not be wildly different. The issue of principle is a major difference, but the practical outcome in terms of who is detained is not likely to be so great.

We could argue that the Government should change their position or that the Opposition have no basis for bringing down the legislation here or in another place, but I want to focus on what happens at an earlier stage in the process. In either model at the moment, the intelligence services and, perhaps, the police present a case to the Home Secretary, which he decides there and then, or takes to a judge. I firmly believe that we need to focus our attention on the process between the advice from the security services and whatever action the Home Secretary then takes. That is critical to the integrity of the decision making. After all, the Home Secretary is not simply deciding in his model whether to issue a control order. He is implicitly taking several different decisions. He is deciding not to prosecute. He is deciding not to carry on looking for further evidence. He is deciding not to rely only on surveillance.

We know—at least, we are told—that the Home Secretary will consider those alternatives, and he has repeatedly said that his preference is to prosecute when possible. The problem for the Home Secretary and for the House is that under the current proposals he has no way to demonstrate that he has considered the alternatives and chosen control orders—whether he makes them himself or applies to a judge—as the best option.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

Why does the right hon. Gentleman assume that no further investigation would take place because a control order had been made? A control order would not be a barrier to further investigation.

Photo of John Denham John Denham Chair, Home Affairs Committee

That is true, but in practical policing terms, once an individual had been alerted by the existence of a control order, the chances of picking up further information that might lead to prosecution would be greatly lessened. In other jurisdictions, such as the French, the process, which usually involves the investigating magistrate and the Ministry of Justice, allows a rational choice to be made between the options.

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

If the ability to make a control order existed, the Home Secretary would not be under very much pressure to authorise further surveillance or make an attempt to prosecute. He could simply rely on the control order.

Photo of John Denham John Denham Chair, Home Affairs Committee

Indeed, and each Member of the House might have to face a constituent whose son, daughter, mother, brother or father is subject to a control order asking for an assurance that it was not only an appropriate response but the most appropriate response. The current procedure would not allow us, or the Home Secretary, to demonstrate that.

Equally, it is not appropriate to ask a judge to make the judgment between different strategies—that is a crucial point. Judges are equipped to take a yes/no decision: they are not equipped, trained or given the remit to choose between three or four different strategies. Therefore, we need to add to the system a process of choosing between the different options. That is something that we could learn from the French system, in which the procedures involving the Ministry of Justice and investigating magistrates appear to allow more proactive consideration of different options.

My right hon. Friend the Home Secretary could make that change with limited, and possibly no, additional statutory powers. He could invite the Director of Public Prosecutions to review in every case the evidence, information and files, and to certify whether a case was prosecutable, to see whether further evidence could be gathered, or to discuss with the appropriate authorities whether continued surveillance would be possible.

If we adopted a proposal from my hon. Friend Mr. Kidney, a simple amendment could place a statutory requirement on the Home Secretary to examine those options and to make that part of whatever judicial process followed. Indeed, if one wished to be inventive and constructive, some judicial skills could be involved in that process. If we did that, the Home Secretary could demonstrate, for each individual case, that the alternative approaches had been independently reviewed.

Some may argue that that option would mean a massive change in the role of the DPP in this country. However, over the past 18 months, as the Crown Prosecution Service has developed CPS charging—instead of the police always doing the charging—we have seen greater day-by-day co-operation between the CPS and the police on the question of relevant and appropriate evidence. In other words, we have moved slightly closer to the more investigatory role that other jurisdictions have. It would be no bad thing if the DPP were invited to play that role, given adequate vetting and security.

I think that my right hon. Friend would say, "Look, as Home Secretary I receive legal advice on these cases; it is not simply a case of closeting myself away with MI5 and MI6 and having a look at the files." When I was a Home Office Minister, I never dealt with the individual cases of those held in Belmarsh, for example, but I did deal with two types of decision that are at least analogous to this one. The first involved the signing of public interest immunity certificates in terrorist cases coming before the courts, and the second involved agreeing stop-and-search powers under section 44 of the Terrorism Act 2000.

The truth is that Ministers get legal advice from Home Office officials on PII certificates. I intend no criticism of those officials, but Ministers know that they have worked very closely with the security services in presenting the advice according to which Ministers are invited to sign PII certificates. In my experience, it was quite difficult to feel that the advice one received was wholly independent and objective, and I found going through the relevant files an extremely time-consuming process.

Photo of Mr John Taylor Mr John Taylor Conservative, Solihull

When Ministers sign PII certificates, they are not making any decision beyond deciding to put matters before a judge, who will have the last word. The Minister makes the application, and the judge makes the decision in the interests of justice.

Photo of John Denham John Denham Chair, Home Affairs Committee

The hon. Gentleman is absolutely right, but I am simply trying to highlight the difficulty experienced by the Home Secretary in relying on internal legal advice in considering these processes, compared with having an independent body such as the DPP examine such cases. The situation was very much the same in respect of section 44 of the Terrorism Act 2000. Ministers could rely on advice telling them to rule out something illegal, but they could be much less confident that the option being offered to them was the best and most appropriate use of the power. This is a critical issue, because a control order is a very significant order. The point is not just that using one should be legal, but that it should be the most appropriate power to use in the circumstances.

There is not much time to consider this issue, but as the House has heard, my view is that introducing such a procedure would greatly strengthen my right hon. Friend the Home Secretary's proposals, which I will vote for tonight, because he has given much consideration to the question of who initiates such decisions, for example. This procedure would make the decision-making process better.

I will conclude by making two quick points. I suspect that when we confront this issue with our Muslim constituents in particular—it is they who are most likely to feel aggrieved at the new measures—we will find that the difficulty lies not so much in whether the Home Secretary takes the decision and a judge confirms it, or whether a judge takes the decision, but in whether the other options, including the possibility of prosecution, have been adequately explored. We must build in a procedure that enables us to say with absolute confidence that the latter is the case. As the shadow Home Secretary rightly said, we have to look at all such laws and measures in terms of their impact on wider community cohesion, and on our ability to get all communities in society behind us. We must prevent these issues from becoming those on which radical elements focus in order to spread their poisonous views.

My second point is that there is a big issue of principle for many of us in extending these powers to British citizens. However, we must be realistic, and in my judgment the type of terrorism that we currently face will be with us for many years to come. Nothing in our past experience of terrorism, or that we can see in the international situation, suggests that the threat is likely to diminish. We already know that some British citizens have been involved in international terrorist activities associated with al-Qaeda, and it would be astonishingly naive to believe that we will not confront that threat in years to come. It is necessary to have a legislative framework that deals with both foreign nationals and British citizens, which is why it is important that we get the legislation on the statute book and why we should not think that we do not need to tackle the problem with considerable urgency.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden 4:19 pm, 23rd February 2005

Nearly all of us in the House accept that the Home Secretary is right when he says that we face a qualitatively different threat, so it behoves us at least to consider whether it is necessary to curtail to some degree traditional civil liberties in this country. I accept that, to some degree, that may be so, but we should try to secure the life of the people of this country with the minimum loss of their liberties.

For my part, if there is to be a loss I would try to limit it to the smallest group of people, which in the first instance seems to be foreign nationals, rather than extending the loss of liberty to British citizens as a whole. I would want to minimise the reduction in the burden of proof and the procedures for proof, which are, as my hon. Friend Mr. Grieve rightly pointed out, equally important. Above all, I would want to minimise reliance on political decisions rather than independent judicial decisions. That is where I take a completely different line from what the Government are proposing in the Bill.

Normally, when we consider matters of this gravity, the Home Secretary, the Prime Minister and the Government seek consensus. They try to take a balanced approach and to eschew partisan rhetoric and point scoring, to maximise support for any reduction in liberty or curtailment of our freedoms. Sadly, that has not been true on this occasion. The Government have made rather pathetic attempts to use the Bill both to burnish their own credentials and to tarnish the Opposition's credentials on the treatment of terrorism. I have to say that that makes it more difficult to give them support, because we cannot but have doubts when powers are introduced in a partisan manner that they may be used in a partisan manner. We remember all too well how the Government were prepared to summon tanks to Heathrow when that was helpful to them, but not to explain subsequently why the tanks were there.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

I will give way in a moment, as I tend to say rather nice things about the right hon. Gentleman, who made an important and valuable contribution to the debate.

Ministers are responsible to the House for securing our lives and upholding our liberties. They should be responsible to the House for putting in place systems for securing that rather than for putting individuals away simply on the Government's say-so. Sadly, Ministers are trying to take powers that would give them personal responsibility for putting people away, while avoiding full accountability to the House by curtailing debate on the Bill in a shameful way and putting the responsibility on others who are not accountable.

At Prime Minister's questions today, the Prime Minister repeatedly invoked what he described as the unanimous recommendation of the police and all the security agencies for the measures that the House is considering. It is wrong in principle for Ministers to invoke their public servants, who are not accountable, to justify measures that those who are accountable are proposing to the House. There are a number of reasons why we should not accept the advice of the security forces without first questioning, probing and evaluating it and weighing it up against other factors. Mr. Denham was right to point out that that is the responsibility of Ministers. A Minister must take decisions on the basis of the advice that he is given, but it is his decision what advice he takes. If he takes bad advice, he is responsible if he has not first probed, tested and evaluated it and made it his own. We have to question the advice that we receive from the security forces and the police, because the Government must weigh security against liberty. The security forces have to consider only one thing. They do not have to put anything else in the other scale. They just have responsibility for trying to maximise the security of this country against security threats.

Secondly, the police and secret services will always think that they know things that they cannot prove and will want to seek to avoid having to prove what they just suspect. Unfortunately, sometimes their suspicions turn out to be false, and they can turn out to be false on quite a large scale, not just on individual occasions. We should remember when taking these powers that the House granted a previous Government the power to introduce internment without trial in Northern Ireland. We should remember how that turned out. I quote from a note from the Library, which in turn quotes a book by Paul Wilkinson, which said:

"Internment or detention without trial, was introduced in 1972" because it

"was argued that the normal judicial processes had proved incapable of providing essential protection for society. The police were hamstrung in their efforts to bring known terrorists to trial, and to have them convicted."

But, as it turned out,

"many of those netted by the security forces had little or nothing to do with involvement in IRA terrorism."

We know the consequences of that. They were threefold: it was not just, first, that individuals were wrongly interned and thereby often radicalised; it was that the guilty were left free to go on carrying out their terrorism; and the community was alienated and often shifted to supporting the very terrorists with which it had previously had no connection. That is why an early action of this Labour Government was to repeal from the statute book the power to introduce internment without trial.

What the then Minister, Lord Dubs, said at the time was:

"The Government have long held the view that internment does not represent an effective counter-terrorism measure . . . Quite apart from any judgment about its appropriateness in principle, the fact is that internment has not worked in practice. Indeed many would say that it was a disaster when last used in the 1970s. There is nothing to suggest that it would be . . . more effective in the future . . . We cannot envisage any circumstances in which we would seek to deprive an individual of his or her liberty without trial and without the normal safeguards that the law provides for the protection of suspects. Such action would surely run counter to the rule of law as it is understood internationally."—[Hansard, House of Lords, 12 January 1998; Vol. 584, c. 889–90.]

In fact, obliging the security forces to find convincing proof, rather than relying on suspicion, will enhance the security of the country, as well as protecting the liberty of the individual.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I do not wish to get into an argument with the right hon. Gentleman about precisely what happened in 1971 in Northern Ireland, but I should like to point out that, even if he takes the view that such measures failed then, he must put into the balance the fact that they were used successfully in the 1920s, 1940s and 1950s in both Northern Ireland and the Republic of Ireland, and of course in England and Wales during the first and second world wars. For that reason, he should not take up an absolute position against this reserve power, which might be necessary.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

I thought that I made it clear that I was not taking up an absolute position against that power. I do accept that there may be a need for curtailment of liberties, but it is up to the Government to persuade us of that in proper and, if necessary, prolonged debate in the House, by investigating the evidence and experience of what has happened in the past and justifying, on the basis of that evidence and experience, what they propose to do in future. One thing that we cannot doubt is that many innocent people were rounded up on the say-so of the police and security authorities, who told Ministers that they knew who was doing it, that they could lock them up, but that they just could not prove it. It is important to remember that.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

Is not the fundamental problem that whereas it is absolutely right to say that it is far better for a guilty person to go free than for an innocent one to be punished, when we are dealing with not only homicidal but suicidal terrorists, surely we must set the greater good and the greater safety of the greater number as the first priority?

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

Indeed, but we should be cautious about doing that in ways that could tip more people into joining the very terrorist organisations that we fear. We should find ways that try to assess each individual, preferably before someone who is independent rather than political, rather than just taking the say-so of the security forces that they know best.

A third reason why we should question, yet not reject, advice from the security forces is that they always have an interest in asking for more measures than they expect to get. When I was Secretary of State for Trade and Industry, I was summoned to appear before the heads of all five agencies because they felt that something that I wished to do—even now, I cannot reveal it to the House—would impinge on methods of surveillance of which I was previously unaware and of which I hope that all hon. Members are still unaware. I wanted none the less to introduce the changes, which have gone on to have a beneficial impact on this country's prosperity, so I argued against the agency heads. It eventually emerged that they could work round my proposals, so they let me go ahead, but they asked for more measures because they wanted to find out how much they could get. In the end, however, they were happy to get nothing and to work round the situation themselves.

There are even greater reasons why the security forces ask for more than the Government can concede now. They know that if they are unable to prevent a major terrorism event—God forbid—it is better for them to be able to say that the Government refused them something than to say that the Government offered everything that had been asked for. The Government, in turn, seem to be playing much the same form of brinkmanship with the House by saying, "If you reject this, we'll label you as soft on terrorism." It is important not that we reject the proposals before us, but that we deal with them sceptically and with great deliberation, and find out whether there are better ways of achieving the same result.

Fourthly, the security forces will always want to keep the processes that they use under wraps. They sometimes want to do that for the good reason that terrorists do not know about these processes and they want to keep them secret so that they can continue to be used without the terrorists realising it. It is probably a little known fact in the House that I was acting Home Secretary for one weekend when my right hon. and learned Friend Mr. Howard was abroad.

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

It was a bank holiday weekend, so it was quite a long one. I found myself being invited to sign documents and permissions to do all sorts of interesting things. It was right for some of them to be kept secret, even though some processes were quite simple, as the IRA probably did not realise that they were being carried out. However, one felt that other processes were being kept secret simply to retain the mystique of the organisations, because they like having secrets and being able to say, "We can tell you, Minister, but you mustn't tell anyone else."

Departments have an interest in emphasising the importance of what they do, so the secret services and the police likewise have no incentive to understate the threats and risks—both general and specific—that the country faces. That is not to deny that we might face an enormous risk, as I said earlier, but we should want to assess and deliberate on each individual case with scepticism and put it to an independent legal test.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

Does the right hon. Gentleman recollect the case of Matrix Churchill and public interest immunity certificates? Does that not warn us to be extremely careful?

Photo of Peter Lilley Peter Lilley Conservative, Hitchin and Harpenden

I would love to go down that line on another occasion, but there are better examples of why we should be careful.

We should not ignore the advice of the security authorities either on policy or on individuals. We should take it extremely seriously. They are brave, honourable supporters of the state and the public interest. We should do what Ministers clearly failed to do in the case of weapons of mass destruction—question, probe and evaluate any evidence that we receive from them before we adopt it, and then Ministers should adopt it in their own authority and not pass off the responsibility and blame to officials.

Sadly, the Government are trying to escape responsibility for what they are doing. They are trying to escape proper debate about what they are doing. I believe that the outcome would be far healthier were the debate longer, and were we able to accept the advice from the Conservative Front Bench and prolong existing measures until we are sure that we are putting in place something that will ensure the security of the nation, which might involve some curtailment of liberties, but will, I hope, not go as far as saying that individuals can be put away on the say-so of a politician rather than an independent judicial source.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury 4:35 pm, 23rd February 2005

As many Members from both sides of the House have observed, we must acknowledge at the outset of debates on these matters that they relate to the very difficult issue of the essential balance between public safety and individual liberty. In relation to judging where legislation should fall in order to strike the right balance, the Home Secretary has struggled with these extremely difficult and serious matters, as has the House. I spent a year of my life on the Newton committee struggling with the self-same issues in relation to the Anti-terrorism, Crime and Security Act 2001.

We must also acknowledge that the Home Secretary has listened to some of the points and criticisms that have been made by Members from all parts of the House in recent months. I welcome the fact that he intends to discuss seriously with other countries the possibility of guarantees of fair treatment if deportation is seen as the appropriate action. I welcome the fact that he is considering a new offence of being concerned in terrorist acts. I also welcome the clear statement that he has given to the House today that prosecution with proper trial must always be the preferred choice if that option is available. The arguments put by my right hon. Friend Mr. Denham in relation to that and the need to strengthen that proposition are well made.

Above all, I welcome the fact that the Home Secretary, in response to the Law Lords' Belmarsh judgment, has sought to introduce a range of charges and penalties that can be imposed so that a particular threat can be met with a proportionate response. That must be the right principle to adopt.

As is the Home Secretary's wont, he has listened to a lot of what has been said to him and he has considered carefully the points that we made in the Newton report. Because he has made progress on these matters, I do not intend to join the Opposition parties in the Lobby tonight, but I fear that I cannot join my right hon. Friend in the Lobby either, because I remain very concerned about certain aspects of the Bill. I have one overarching concern, and I want to make three more detailed points.

The fundamental point relates to that balance between public safety and individual liberty and justice. Let us never forget that the greatest victory that terrorism can have is if it forces us to abandon the very principles of liberty, democracy and the right to justice which we are all seeking to defend against terrorism. These principles should be abandoned only in the face of the utmost and urgent necessity, when the case is utterly compelling, when there is imminent proven danger and when there is absolutely no alternative to taking that action.

Photo of Bill Cash Bill Cash Conservative, Stone

The right hon. Gentleman should recall that during the war, when there were emergency powers, there was regulation 18B, but habeas corpus was still available. It was only because of a disgraceful case called Liversidge v. Anderson that all the issues relating to proper due trial and justice were overruled. That case has been effectively binned by subsequent decisions in the House of Lords. Habeas corpus still applied during the war in the extreme circumstances that the right hon. Gentleman has mentioned.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

The hon. Gentleman makes a valid point. He also reminds us usefully of the experience of the first and second world wars, the use of internment powers during those conflicts and the problems which arose for many individuals because of wrongful internment. Those are issues that we must always bear at the back of our minds.

I accept the point made by my right hon. Friend the Home Secretary about the qualitative difference of present-day terrorism. However, I am not entirely convinced that such absolute circumstances in favour of extreme action exist here and now and require a decision to be taken, apparently, in the next five days. Deciding to take such a step because the security services say that it will be useful is not a sufficient reason for doing so. Of course they will say that the power will be useful. Of course they will say that they would like to have it. It is the job of Government and Parliament to test rigorously whether it is absolutely necessary.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

The right hon. Gentleman is making a powerful speech. Does he agree with me that, as a way forward, the Government could frame an amendment to the law against terrorism to capture and to meet their worries about people whom they are detaining or wish to detain? In that way a case could be brought in court against those people for whatever it is that they have done that has led the security forces to have such fears about them. I would have thought that everybody would then be happy that due process was being followed and that people who were likely to commit terrorist attacks could be captured by the law.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

I am not sure that I follow the right hon. Gentleman entirely in that. I accept that there may be a relatively small number of cases in which evidence is available to the security and police services that cannot be advanced in open court because of the source of that evidence, and that there must be some procedure to take account of those particular cases. It is because I accept that there is a possibility that that is an issue that I believe something along the lines of what my right hon. Friend the Home Secretary is struggling to achieve may be necessary, but I do not think that he has got it completely right.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Does my right hon. Friend agree that exactly the same situation arose in Northern Ireland in relation to admissible evidence, and that that was dealt with over a number of years? Indeed, Mr. Redwood will know better than anyone in this place that it was dealt with without recourse to the powers that we are considering today.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

My hon. Friend is, of course, right. One can observe that the situation in Northern Ireland was dealt with rather successfully because a range of different approaches were taken to the issue, which, taken as a whole, provided an appropriate response.

I said earlier that I have three detailed points of concern. First, I cannot understand the rush. In the Newton committee, we examined the Anti-terrorism, Crime and Security Act 2001 in detail and looked at how it was brought on to the statute book. Our unanimous conclusion was that it never makes sense to legislate in haste on matters of such gravity. In response to the failures and flaws of the 2001 Act, which was introduced in haste, I fear that we are introducing further legislation in haste.

There are ways of getting round the problem of urgency, to which both the Prime Minister and the Home Secretary have alluded. It would be possible to extend the existing powers for a strictly limited period of time by agreement across the parties in this House. Especially in view of the fact that the Home Secretary has specifically said that he does not want to trigger the derogation powers that he is giving himself in the Bill, it is surely possible to leave that element out of the Bill entirely, rapidly to process the remainder of the Bill through the legislative procedures and to return to the derogation proposals and examine them at greater leisure. It is surely better to try to get it right than to get it quickly.

Secondly, I fail to understand why the Home Secretary continues to refuse to consider the use of intercept evidence in court. I know that the security services are against such a proposal, but pretty well everyone else is in favour of it.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

I am not sure whether my right hon. Friend is right to say that the security services are opposed to the use of intercept evidence. Stephen Lander, the former head of MI5, used to be in favour of it—he only changed his tune when he got his new job in the Serious Organised Crime Agency—and Stella Rimington and a range of other people from the security services support it.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

My hon. Friend is, of course, right to identify the fact that many authoritative voices are putting forward that particular view.

Using intercept evidence in court is not a wholesale solution to the problems that we face, but it would help. It is used widely in other countries, including countries such as the United States that face similarly severe terrorist threats. In the Newton committee, we received evidence that evidence derived by the UK security services through intercept in the UK has already been used as evidence in open court in other countries. Legislation permitting the use of intercept evidence could protect the use of evidence that might genuinely endanger national security. Such evidence could be used on an optional rather than mandatory basis, but the blanket ban can and should be lifted.

Thirdly, I remain concerned by the nature and process of judicial authorisation for control orders. I welcome the Home Secretary's acceptance that some judicial participation in the process is required, although what he is proposing in the Bill is limited and would occur only after the event. Imposing a control order first by political decree, and then only subsequently giving limited judicial consideration to it, runs the risk of unbalancing the whole process, because once an order is in place it is much more difficult to overturn and the burden of proof shifts with the status quo. The decision should be justified properly to a judge, even in some summary form, from the outset. I accept, of course, the issues that might arise over the speed of decision making, but I hope that, with a serious willingness to find a consensual way forward, it would be possible to derive a better system, perhaps by having a system of accredited judges on call for initial and rapid interim consideration of proposals made by the Home Secretary.

These are difficult issues; they arise because we live in difficult times. But sometimes the apparently easiest answers are not necessarily the right ones. I hope that the Home Secretary will continue to give careful consideration to the genuine and serious concerns that many on the Labour Benches still have about the precise proposals that he has brought to the House today.

Photo of Boris Johnson Boris Johnson Conservative, Henley 4:50 pm, 23rd February 2005

I hope that the House will forgive me if I begin by repeating some of the powers that the Home Secretary is about to take under this Bill: the power to lock someone up in their own house; the power to stop other people visiting that person; the power to remove any item of property from that person's house; the power to tag that person; the power to ask that person to surrender his or her passport, to report to a police station and to produce any information demanded of him— in other words, the power to incarcerate that person.

These powers are to be exercised against anyone whom the Home Secretary deems to be involved in a terrorism-related activity. Such a person is defined in the broadest possible terms as, for instance, someone engaged in conduct that gives support or assistance to individuals who are known or believed to be engaged in terrorism-related activities. It is the intention to detain such people without trial for an unlimited period, contrary to the most basic principles of English law.

Why have we come to this position? These extraordinary control orders are made necessary because of the House of Lords ruling in December that rightly threw out part 4 of the Anti-terrorism, Crime and Security Act 2001. The Lords pointed out that it was absurd and discriminatory to detain a foreigner and not a UK national, since many of the suspects associated with al-Qaeda are known to be British. The Lords pointed out, furthermore, that it was nonsense to say that someone could present such a threat to the life of this country that he could be detained without trial and yet could be told that he was at all times free to leave this country and go and plot against this country abroad.

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

Does my hon. Friend share my sense of astonishment that we have come to the point at which we are imposing such controls on British citizens as a consequence of an interpretation of the convention on human rights that was designed to protect the human rights of British citizens?

Photo of Boris Johnson Boris Johnson Conservative, Henley

My right hon. and learned Friend adverts to a relevant paradox in the whole business. It is a sign of the Government's incompetence that they have been brought to this pass, because they had a choice. At the moment of reversal at the hands of the Lords, the Home Secretary could have ceased to derogate from article 5 of the convention on human rights and ceased to detain without trial, or he could have chosen to widen detention without trial so that all UK citizens could be banged up on his say-so.

Photo of Bill Cash Bill Cash Conservative, Stone

Will my hon. Friend note that, in Lord Newton's judgment, he prescribed that the new legislation should deal with all terrorism whatever its origin or the nationality of its suspected perpetrators, and should not require a derogation from the European convention on human rights? In other words, relying heavily on the European Commissioner for Human Rights' opinion of August 2002, the Government found themselves effectively boxed in by the prescriptive arrangements provided by the European convention and by the Human Rights Act 1998.

Photo of Boris Johnson Boris Johnson Conservative, Henley

My hon. Friend is learned beyond my wildest dreams in matters connected with the European Union, and he makes an entirely valid point. I do not object so much to the fact of derogation from the European convention on human rights; what I object to in this widening of the principle of detention without trial to apply to all UK citizens is that what we are talking about is nothing less than the suspension of habeas corpus. It should be a fundamental principle of our system that when the state detains a person, they have the right to trial. To remove that basic right is a step that has been taken very few times in our history. It was taken in 1793, when William Pitt removed it following the execution of the King of France and in the revolutionary terror that swept Europe, and it was removed in 1817, opportunistically, by Lord Liverpool. As the Law Lords rightly said, habeas corpus, the right to trial, is a fundamental part of our liberties.

We do not have that right by virtue simply of this European convention; we have it by virtue of 800 years of history and it is enshrined in the Habeas Corpus Act 1679. In order to take it away, the House must genuinely believe that there is a threat to our way of life—in other words, that we are at war. I accept what has been said from both sides of the House about the qualitative difference posed by the threat of al-Qaeda, but I do not believe that that threat is so extreme as to justify such an extension of the power of the state.

It is a great shame that we cannot be told more about the al-Qaeda plots that have been foiled over the past few years. But it is worth pointing out that we have all lived through decades of IRA terrorism, and more British people died annually at the hands of the IRA in the '80s and during much of the '90s than have died since 11 September 2001 at the hands of al-Qaeda. We abandoned detention without trial in 1972 because Operation Motorman, in its attempt to suppress the IRA, proved to be such a failure. Why, therefore, are we reintroducing it now, when I do not believe that we face anything like a warlike threat?

The Government say that our ancient liberty will be protected by the role of the judge who must review the demand of the Home Secretary for certification. On the face of it, as has already been said, that is a flimsy protection. The judge merely has to decide whether the Home Secretary has information capable of constituting reasonable grounds for the Home Secretary to make a control order. I think that you, Mr. Deputy Speaker, will agree that information capable of constituting reasonable grounds is a million miles away from properly satisfying a court that a man should be locked up.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Does the hon. Gentleman agree that one of the problems with that test is that the Home Secretary might indeed have reasonable grounds for believing somebody to be dangerous on the basis of security services evidence but he would have no way of challenging that, and no one else would either, even if it was proved at a later date to be completely inaccurate, and that a grotesque miscarriage of justice may have taken place in the meantime?

Photo of Boris Johnson Boris Johnson Conservative, Henley

I am grateful to the hon. Gentleman for so lucidly anticipating the very point that I was about to make. It may be relatively simple to satisfy a judge that the matters relied upon are capable of constituting grounds for a control order, but that is very different from properly testing, in the adversarial context of a court, whether the information is any good, or whether it has been laid before the Home Secretary by security services that may be either inaccurate or have an axe to grind.

The Father of the House has already made an apposite point about our recent disappointments over weapons of mass destruction. Doubtless, it would have been possible to satisfy a judge that the matters relied upon in respect of the Belmarsh detainees constituted the ground for a control order. Yet several detainees are to be released following the Lords ruling and the Government tell us that, upon their release, they will not be suitable candidates for house arrest. In other words, they have been inside for three years, with the approval of the Special Immigration Appeals Commission, yet now that they are to be released, the Home Secretary says that they are not candidates for derogating or non-derogating control orders. How can we have any confidence that the Bill will protect the innocent when years are already being taken out of people's lives, we do not put them on trial and, when they come out, we implicitly declare that their incarceration was pointless?

I simply do not accept the Government's argument that allowing suspects the right to trial would prejudice sensitive wire-tapping techniques deployed by the intelligence services. As my right hon. and learned Friend Mr. Howard and my right hon. Friend the shadow Home Secretary have said, it is perfectly possible to have a system whereby a pre-trial judge could decide whether details of wire taps should be made available to the full court, and how to be fair to both the defence and the prosecution. That point was made by Mr. Smith, who is my Member of Parliament.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

It is a burden that I wear lightly.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I am most grateful and I am glad that we are united on the subject of the debate. The right hon. Gentleman constructively outlined what the Government should do. He said that wire-tapping evidence should be admissible in court. It is a mystery to me that the Government reject his wise counsel. I should like to know why. I believe that they do so because, as my right hon. Friend Mr. Lilley said, the Bill is a classic secret policeman's measure.

I do not doubt the security services' good intentions. I am sure that all hon. Members agree that they have done a magnificent job in protecting us thus far from the undoubted threats that terrorists pose. However, I cannot for the life of me understand why the state feels it necessary to take new powers now. The control orders would be instantly recognisable not only to the old BOSS security services in South Africa, but to every secret police force, including the Cheka, OGPU, the NKVD and the Securitate.

I cannot believe that Labour Members of Parliament entered politics to take away habeas corpus. I hope that the impassioned denunciation by Mr. Sedgemore will ring in the Home Secretary's capacious ears when he formulates the climbdown that so many of us, from all parties, hope that he will propose in the next few days.

In a hotly contested field, the Bill is one of the worst Government measures that has been produced in my time in the House. No responsible Opposition could conceivably let it through unamended. It is reminiscent of the actions of some tottering Belgian coalition Government of the early 1970s, using the threat of terror as an excuse to enact repressive emergency measures that are never removed from the statute book. I hope that there will be a significant revolt in the Lobby tonight, and that it will be joined by Mr. Dobson, who is about to speak.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras 5:04 pm, 23rd February 2005

I should perhaps declare an interest: the offices of The Spectator are in my constituency.

No one can deny that the scale and, more particularly, the nature of terrorism have changed in recent times and that we must respond to that change. Up to now, our criminal justice system has been geared to the idea of detecting criminals after they have committed their crimes, and then punishing them. The threat from suicide bombers has changed that because, for them, the prospect of punishment is clearly no deterrent. We must therefore change some aspects of our system, the better to prevent terrorist crimes from being committed in the first place.

That is why I supported the earlier prevention of terrorism legislation as a stopgap, and why I have argued for some time that detention in Belmarsh should be replaced by a measure such as control orders to cover some people suspected of involvement in terrorism. So I support, in general, the Government's proposals to introduce control orders that might, for example, restrict suspects' freedom of association, use of communications or access to particular venues or neighbourhoods. However, I cannot and will not support any law that would allow a British citizen to be imprisoned without trial on the say-so of the Home Secretary. There is nothing personal about that: the present Home Secretary is a decent man. But no Home Secretary should have the power to deprive a fellow citizen of his or her liberty without having to lay convincing evidence before a court, and letting the court decide.

The Home Secretary has said that he is responsible for the safety of the country, and that that is why it is constitutionally right for him to initiate the control order process. I have no problem with that, but the power that he seeks from us today is not just to initiate control orders but to implement them. That is why I cannot support what he is proposing. There is a greater constitutional principle at stake here than the duties of the Home Secretary: the fundamental constitutional principle that Ministers cannot lock up fellow citizens. Only courts can do that.

It has been suggested that having to bring each case to court would put innocent lives at risk by preventing the Home Secretary from acting promptly if he believed that there was an immediate threat. That is simply not true. Suspects can be arrested immediately, kept for 14 days, and then possibly remanded in custody until evidence is submitted to a court. I use the word "court" deliberately. That may mean a judge sitting as a court, but the judge and his judgment would be subject to court rules and procedures designed to ensure consideration of the facts as well as the law, and to balance security with justice in what we must all admit are difficult and perplexing circumstances. The right for our case to be heard before a court is the bedrock of our system of justice.

That brings me to my final point. No mature democracy has ever been overthrown by terrorism. The terrorist bosses know that as well as we do. Their aim is not to overthrow our system of government but to provoke responses from us that damage us in the eyes of the people whom they wish to impress. In the case of this country, one of the things that they want to do is get us to abandon our long-standing and honourable claim to be a society that rejects arbitrary imprisonment and rests instead on the demanding and constraining concepts of natural justice and the rule of law.

That is why I cannot accept the Home Secretary's proposals on house arrest. They undermine the timeless rights of British citizens, and would undermine our standing in the world.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 5:09 pm, 23rd February 2005

We have just heard a very important speech. Following on from my hon. Friend Mr. Johnson, I place it with the speech by Mr. Sedgemore, who is to retire at the next election. That was a moving speech because it recounted the very purpose why we are here and the traditions with which the Labour party was most closely associated: the beliefs, rights and freedoms of the individual. Collectively, this Parliament should be asserting what is our constitutional and legal history.

The interesting thing about the Bill is that it draws us together on two themes: our own rights—the tradition from Magna Carta, through habeas corpus to the age of universal democracy in this country—and the protection of our rights through the quasi-separation of powers between the judiciary, the Executive and Parliament itself. In fact, the Government have stumbled not because of the traditions of this country but because of their own flagship legislation, the Human Rights Act 1998. My purpose, in the few minutes that I have, is to try to draw to the attention of the House why I think all this will founder yet again on the basis of that Act.

The Bill gives the Secretary of State powers to place an individual under house arrest or place such restrictions on their movements as amount to a deprivation of their liberty. The Bill refers to those powers as "derogating control orders". They are dealt with in clause 1(3)(g) and 1(4) and clause 2(1). In light of the Home Secretary's announcement that there is currently no need to derogate from article 5 because there are no individuals in respect of whom deprivation of liberty could be said to be strictly required, there would seem to be no need for the Government to take in this legislation the power to make derogating control orders depriving individuals of their liberty by, for example, placing them under house arrest.

Since it is now the Government's position that the intelligence relating to the current detainees cannot justify the deprivation of their liberty, all the Government need to do to meet the concerns expressed by the Law Lords is to provide themselves with the legal basis on which to deal with the current detainees in a way that is proportionate and non-discriminatory. If that can be done, as the Government now say, by measures short of deprivation of liberty, there is no need, in order to deal with the current threat to the nation, to take much wider powers that, by the Government's own admission, are not at present strictly required.

At the very least, there can be no justification for including such wide and unprecedented powers of Executive detention in legislation that is being rushed through Parliament at a speed and on a guillotine that prevents proper scrutiny, in order to get it on the statute book in time to deal with those detained under provisions that are shortly to expire. Legislation passed at such speed should be confined to that which is essential to deal with the problem about to arise. The problem for the Government is what to do with the detainees if the law under which they are currently detained lapses. The Bill should be confined to that, which means that all the provisions concerning derogating control orders should be taken out of the Bill, if necessary to be returned to when there is more opportunity for careful parliamentary scrutiny.

In any event, it also appears questionable as a matter of law whether creating a domestic legal framework that provides in advance for derogating control orders can itself be done without derogating from the European convention on human rights at the time of creating the framework itself, which would require the Government to demonstrate the necessity for having such a framework at the level of threat that currently exists.

The Bill provides for control orders to be made by the Secretary of State that have the effect of depriving individuals of their liberty without any prior judicial involvement and without any intention of bringing them before a court on a criminal charge. The Bill does provide for automatic consideration of such derogating control orders by the High Court within seven days and requires the court to quash the order if not satisfied that the matters relied on by the Secretary of State were capable of constituting reasonable grounds for him to make a control order against that person, or for imposing an obligation amounting to a deprivation of liberty. It also provides, in all other cases, for there to be a hearing by the court. The court must conduct its own hearing and make its own determination of each of the matters determined by the Secretary of State. All that is after the event and not prior to judicial involvement in the decision to deprive someone of liberty.

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

What is more, the process is imperfect because a detained person does not have access to the documents or the evidence and will not have a chance to defend himself or herself against the accusations.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am grateful to my right hon. and learned Friend, who anticipates me.

The degree of judicial involvement provided for in the Bill in relation to derogating control orders is unlikely, in my view, to be compatible with the requirements of the European convention on human rights—in particular, with the requirement in article 5 that any deprivations of liberty must be

"in accordance with a procedure prescribed by law".

Other than in the exceptional circumstances enumerated in article 5(l)(a) to (f), deprivations of an individual's liberty require prior judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the European Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention. The House is familiar with all that, because it has watched over these practices through the centuries.

The Home Secretary's reason for refusing to countenance prior judicial authorisation of the deprivation of liberty is that that would be to abdicate to the judiciary the Executive's responsibility for national security, for which it is rightly accountable to Parliament. With due respect to the Home Secretary, that is an eccentric interpretation of the constitutional doctrine of the separation of powers. It is a long-established principle of the British constitution that, outside the field of immigration, the Executive have no power to detain individuals without prior judicial authorisation, or in circumstances where it is intended to bring the individual before a court as soon as possible for further detention to be authorised.

Both Parliament and the Executive have long accepted and respected the judiciary's responsibility for the liberty of the individual. To invoke national security to deny that role is to subvert our traditional constitutional division of powers. The Home Secretary's argument would, absurdly, apply equally to criminal justice. The Home Secretary is undoubtedly responsible to the public for protecting them against crime, but nobody would suggest that it is an abdication of that role for the Executive to accept that the courts are the appropriate constitutional branch to decide whether particular individuals should be deprived of their liberty. I hope that we will not hear any more such nonsense from the Home Secretary.

Even if there were room for argument about the proper separation of powers in the British constitution, it is unlikely—this is where the arguments will founder—that the European Court of Human Rights would regard the exclusion of prior judicial involvement in deprivations of liberty as compatible with the convention.

I shall leave the legal points there, but I reaffirm that this House is also a custodian of our freedoms. Everyone who votes tonight should be mindful of breaking a great trust and mindful of the fact that the Government—the Executive and a Secretary of State—will effectively be able to detain us. It goes against the spirit of this country, which has a powerful belief in liberty and freedom. The Government and this Home Secretary are striking against it.

Photo of Graham Allen Graham Allen Labour, Nottingham North 5:19 pm, 23rd February 2005

This debate is about the continuing and one-sided battle between Executive power and democracy, rather than about legalisms. The power of the Government has massively increased in recent decades and parliamentary power has diminished almost to the point of being extinguished. Judicial power has often made itself distant and irrelevant, so our system of checks and balances, such as it was, has grown weaker and weaker. That is why we have come to this pass today.

The Government are right to take measures to safeguard us from international terrorism, but Parliament is also right to insist on measures to preserve, especially in difficult times as well as easy times, the balance between security and liberty. If there is the will, in the House and in the Government, to achieve that balance, then further work is necessary on the Bill.

Like many colleagues on all sides of the House, I start from the premise that no Executive authority or Government Minister—even one whom I know and trust—should ever be given the ability to commit an individual to indefinite detention. The right to a fair trial and proper judicial process is a sacred part of our democracy. In a democracy, that right must only ever be suspended with the consent of the judicial process.

There are a number of ways forward on this issue. My right hon. Friend Mr. Denham spoke about the Director of Public Prosecutions and about the need to make sure that evidence is presented in a way that allows a case to go forward. He also said that, if there were no case to answer, there must be a fall-back position, and I hope that the Government will explore that detail.

In addition, my right hon. Friend Mr. Dobson and many other hon. Members made the point that, at present, the police have the ability to detain an arrested terrorist suspect for 14 days. If the Home Secretary wants that person to be detained longer because he has evidence that leads him to believe that that person is highly dangerous, he can within that period apply to a judge in the Appeal Court or the High Court, or whatever level is appropriate, for a time-limited detention order. We need to look at that aspect in more detail as we scrutinise this Bill. Once the order has expired, the Home Secretary must go back to the judge to seek a renewal.

Therefore, to make this bit of the Bill work, the Government have only to move from judicial review to judicial application. The difference is a fine one, but it is the difference between democracy and arbitrary power. It is a difference that Members of Parliament must be the first to recognise and advocate. If we do not do that, why on earth do we need a Parliament at all? It is our duty, and nothing less than our personal responsibility, to make sure that we ask these questions.

As long as the Government incubus controls Parliament, they can force such matters through. No doubt that will happen again today, but some of us in the House of Commons will insist on making our death-rattle heard.

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

The hon. Gentleman is making a very serious point, but does he agree that another matter needs to be taken into account? That is the question of whether an individual should be subject to what amount to penal sanctions even though he or she has not been convicted of any offence. Will he consider that as well?

Photo of Graham Allen Graham Allen Labour, Nottingham North

We all face a terrible dilemma in that respect, and none more so than the Home Secretary. Many hon. Members might indulge in flights of rhetoric that would disappear the first time a serious terrorist incident occurred. I certainly would not want to be one of them. The threat is immense: we can barely comprehend its nature, but it is very different from any threat that we have faced in the past. These are extraordinary times, and they require extraordinary measures. My point is that democracy must also respond in an extraordinary way.

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

I hear what the hon. Gentleman says about concerns disappearing as soon as a terrorist event occurs, but does he accept that the main miscarriages of justice over the last couple of decades have happened in precisely the circumstances he describes—that is, after a terrorist event?

Photo of Graham Allen Graham Allen Labour, Nottingham North

Indeed, and the pressure on the Government would be even greater if this House did not draw a line now. Hon. Members must try to imagine what a Government of any political complexion would be forced into if there were to be an atrocity on the scale of 9/11 in the UK. However, that is not to excuse any Member of this House from seeking to help Government find a way to resolve this very difficult and thorny problem. I hope that colleagues, and above all the electorate, will never forgive any hon. Member who makes political capital out of this problem.

We have witnessed today the extraordinary constitutional innovation of do-it-yourself pre-legislative scrutiny, which I welcome. If the House has any role whatsoever, it is to examine legislation before it is passed by the House—recently that has been very much in evidence in the area of criminal justice. I worked with the Home Secretary on student fees, and it is in his character to be open to ideas and influences and to seek to create better law. He deserves every credit for that, but would we not all have benefited if pre-legislative scrutiny were more protracted and considered than has been the case with our deliberations on the Floor of the House today?

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

My hon. Friend referred to the extraordinary times in which we live. In the interests of candour, is not one partial contributory cause the habit of America and Britain of indulging in illegal wars in the middle east?

Photo of Graham Allen Graham Allen Labour, Nottingham North

If my hon. Friend will forgive me, I will not be drawn into the areas into which he is trying to divert me. None the less, questions about intelligence have some resonance in this area.

We could learn a lesson from the openness of the Home Secretary. I am delighted that he has met the shadow Home Secretary and the Liberal Democrat spokesman, and I congratulate the Prime Minister and others on their open-mindedness. That is the approach of the Executive and the putative Executive, but Parliament also has a responsibility. It must seize the opportunity to ensure that, in future, matters of this importance—and, indeed, the normal legislation that proceeds through the House—receive proper and early scrutiny, because that leads to better law that sticks and does the job that we would all wish it to do.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Perhaps the hon. Gentleman would use his influence to pass that on to his colleagues on the Front Bench. I was grateful for the opportunity to meet the Home Secretary and I am pleased that dialogue can take place. Nevertheless, it is not helpful when other people's reservations, if they go beyond a certain point, are immediately characterised as mere party political advantage and posturing. There are a wide range of views in the House, all of which are legitimate. I heartily endorse the hon. Gentleman's belief that we need to deal with this issue seriously. We are happy to do so, but at times we have been left with the impression that others are not.

Photo of Graham Allen Graham Allen Labour, Nottingham North

If the hon. Gentleman waits for me to exert my influence on my Front-Bench team, he may be in for a very long wait, but I commend it for its open-minded approach to the issue and for listening. That may not have been the case previously, and I congratulate the Home Secretary on the way in which he has conducted the informal pre-legislative scrutiny. It is welcome and I look forward to a slightly more formal approach after future Queen's Speeches.

The power that the Government seek to arrogate is necessarily extraordinary, given the threat that we face. Our democratic response must be equally extraordinary. A one-club policy of containment of international terrorism will not suffice any longer. We need not only the proper involvement of the rule of law, which I hope can be achieved by hon. Members contributing to the progress of the legislation, but also the involvement of the legislature both pre-legislatively and post-legislatively. Given the relatively small number of cases—13 people, I understand, have been taken to Belmarsh in a three-year period—it is within the wit even of this demoralised and dragooned place to organise some parliamentary oversight. It is a shame that we have to fawn and beg the Government to do what is the rightful duty of most other democratic legislatures in the world.

Hoping for favours from a benign Government or personality, or for obstruction from an illegitimate second Chamber, is not, frankly, a substitute for a sustainable strategy to defend our liberties in these difficult times. I hope that people who aspire to lead their parties and our country will not only talk about rights and responsibilities but have the confidence to share them with all our people by putting them down in a written constitution for all to see. What is good enough for the European Union and what Iraqis in their hundreds have been prepared to die for in recent weeks must, surely, find a place in our own country. Today demonstrates again, for those who need it, how flimsy and pathetic are the defences of unentrenched rights in the United Kingdom. A written constitution would define our historic rights and social responsibilities and, incidentally, make clear the emergency powers necessary to defend those liberties from the extraordinary threats that we face today.

I hope that all parties can see that crisis management of Parliament and the media must give way to a more thoughtful and inclusive strategy. I hope that this is the day that we start to realise that British democracy and politics cannot be defined as what happens between No. 10 and the media, but must involve an independent Parliament, a separate judiciary, a legitimate second Chamber and, above all, citizens who understand their rights and responsibilities—in other words, an effective, active and healthy democracy, which is what terrorists and fundamentalists fear the most.

The issue has again highlighted some of the starkest failings of our political system. Just when strong, independent legislative scrutiny of a Government extending their powers at the expense of our liberties is most needed, it is missing. Just when a clear, written constitution should be providing the parameters for resolving the terrible dilemmas between the safeguarding of our rights and our security, it is absent. Just when we need separation of powers so that those who exercise governmental power are not the same people who should be holding them to account, it cannot be found. None of those fundamental flaws in our political system has been addressed by my Government during the past seven years. None has been considered important and may not be considered important today.

I hope that the lessons of today are not lost when the crisis blows over. We are entering an era when such dilemmas will become more common and acute for all of us. Without checks and balances, what could come next, not from this Government but from a future one under the auspices of other people? What action might be contemplated by a future Government in a British 9/11 scenario? There cannot be more serious problems to be faced by all of us in this Chamber. We need to prepare our democratic structures and democratic response now for such eventualities. We should not make them up as we go along, although I have appreciated the flexibility from Ministers today.

Photo of David Winnick David Winnick Labour, Walsall North

My hon. Friend emphasised that there is an acute terrorist danger and few would disagree. Will he bear it in mind that, during the vulgar outburst from my hon. Friend Mr. Sedgemore, not once did he speak about the terrorist danger facing our country?

Photo of Graham Allen Graham Allen Labour, Nottingham North

I shall leave it to my hon. Friend to take that up with my hon. Friend the Member for Hackney, South and Shoreditch.

I hope that the few pips that have squeaked today will help those in No. 10 and those who aspire to be there to understand that in Britain we cannot choose between vigorously fighting terrorism or deepening and strengthening our democracy. Both are essential and inseparable partners if we are to prevail in an ever more dangerous world.

Photo of Malcolm Bruce Malcolm Bruce Shadow Secretary of State for Business, Innovation and Skills 5:34 pm, 23rd February 2005

As we have heard in all speeches from both sides of the House, and as I said in my intervention, the Home Secretary is between a rock and a hard place. It seems that the only way in which he can resolve that is to accept the principle of judicial decision. Listening to this debate, knowing that it will be taken to another place, and with the time constraints on the Government, it is difficult to see how we can fail to get from that point to where we want to be. The question is: why are the Government making it so difficult and painful to get to a point that can unite both sides? My hon. Friend Mr. Oaten made a constructive speech and indicated a willingness to try to ensure that the legislation works, but that fundamental principle must be conceded before anything can flow to an all-party agreement.

I speak as a member of the Parliamentary Assembly of the Council of Europe and of the Legal Affairs and Human Rights Committee; I am also the rapporteur on political prisoners, about which I might say something more shortly. I am left with the question of why the United Kingdom, alone among the 46 members of the Council of Europe, seeks a derogation from article 5 of the European convention on human rights and wants the right to lock up people indefinitely without trial. Why do not other Governments wish to do that, and especially the Spanish Government, given the atrocities that their country has suffered? My first question is: why do we alone feel the need to do that?

In fact, the Home Secretary has suggested that he does not want to do that. He has told us that he is trying to divide his Bill into two sections: derogation and non-derogation. To derogate or not to derogate, that is the question. But he also acknowledged that even non-derogation powers could be challenged, and they probably will be. They certainly will be if they are combined cumulatively under the European convention on human rights. In reality, there are not two categories but one. That said, one category will definitely be challenged, and one will probably be challenged.

It is also important that we do not become too narrowly concerned about the Human Rights Act 1998. It served British citizens well because it dealt with the remoteness of the European convention on human rights and the Strasbourg Court by bringing them closer to us and by making them accessible through our own judicial process. Those who did not like the Law Lords' decision—that might include the Government—know perfectly well that it was based on their interpretation of what the Strasbourg Court would have decided, had the matter gone before it. That was what they were obliged to do.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The hon. Gentleman is making an extraordinarily good case. On the comparators, we are a common-law country; that is what our law is founded on. The observation that so many make is, "How is it that the other common-law societies that we respect—the United States, Canada, Australia—have not found it necessary to take these extraordinary measures?"

Photo of Malcolm Bruce Malcolm Bruce Shadow Secretary of State for Business, Innovation and Skills

I am very happy to accept that intervention because, in a sense, it complements the point I am making. We were, after all, co-authors and founder-signatories of the European convention on human rights, and we put some of our principles at the heart of it. I do not want to go down this road, but it worries me that people say, "Let's repeal the Human Rights Act." They fail to recognise that that would not change anything other than the practice of accessibility; it would not change the law itself. However, that is by the bye.

As I said, I am the rapporteur on political prisoners in Europe, and there is a point at issue that we should recognise. We are rightly concerned about what we are doing for British citizens and residents, and obviously that is what this Parliament is fundamentally about. However, we are also part of an international community and we should consider how this Bill looks from outside. In keeping with the intervention of Mr. Shepherd, how does it look when a country such as the UK feels the need to take these powers when other countries do not? What kind of example does that set?

I have twice had to visit Azerbaijan—I will visit it again next month—to try to secure the release of political prisoners whose imprisonment has been identified by the Council of Europe as incompatible with its obligations. I have also reported on the developing situation of political prisoners in Russia, and I refer to the case of Svetlana Bakhmina to highlight the abuse of power. She is a lawyer and Russian citizen who left this country after a meeting in London and was arrested within 24 hours of returning to Moscow. She was taken into custody, while her young children were left abandoned, and she was subjected to physical force that put her in hospital. Two months later, she is still being detained by the security forces without any charge or evidence being brought. We must remonstrate with the Russians and point out that that is not the way for countries that are signatories to the European convention on human rights to behave. How will it look if we pass this Bill and lock up people without providing the proper process of judicial balance and evidence and the right to have their case tested? I do not believe that we will have the authority or credibility to argue that case. Such behaviour will seriously undermine what we stand for.

When the Home Secretary indicated that he had no intention of seeking an extension of the existing powers, I wondered whether that was because he knows that they will be challenged. That the derogation is an absolute right is not the case; it is subject to certain tests and can be challenged. However, if the Home Secretary is saying that he has no intention of seeking an extension, although the Conservatives suggest that he should, he is putting himself in a position where the time scale within which we have to operate will be extremely short.

I hope that Ministers will take note of the tone of the debate. I notice that only one Member on the Government Benches has so far indicated the intention of voting for the Bill. Of course, people come to these debates to express their views, but there seems to be a paucity of Labour Back Benchers queuing up to give the Government their support.

None of us underestimates the need to address international terrorism. I do not think that we want to challenge the integrity either of Ministers or of the security services—who have access to information that they cannot share—on the need to take such action. I hope, however, that they will accept that this is a mature Parliament and that even if the information cannot be shared with us, we must be satisfied that the process is fair and objective. People have the right to hear the charge against them and to defend themselves. The decision must be taken by an independent, impartial court. I want to make a provocative point, but it is real. If somebody is put into detention without trial by a Minister, we cannot avoid that person being described as a political prisoner.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree entirely with the hon. Gentleman on the point about the Home Secretary not exercising the powers, but may I press him a little further? I suggest that it must be accepted that the nature of the process we shall set up, even if it is carried out by a judge, will have inherent capacity for injustice. That will not be the fault of the judge; it will be because he cannot hear the other side of the case without the necessary information. I urge the hon. Gentleman and everyone else in the House to focus on that issue. We cannot let that point go by the board simply by saying that we shall hand the taking of the decision to the judge.

Photo of Malcolm Bruce Malcolm Bruce Shadow Secretary of State for Business, Innovation and Skills

I completely agree with the hon. Gentleman. I return to the European convention—the right to trial requires that information be put into the court, so we shall have a problem if we think that we can have a process where that is not the case. We shall be on the wrong side of the convention in spirit and, probably, in letter.

I do not for a minute want to give people who are detained on suspicion of being terrorists the comfort of claiming that they are political prisoners. I want us to be able to say that they have been put through a process and determined by an independent judicial system to be subject to the orders on the basis of evidence, with an agreed test of judgment. In that situation, they would not have the right to describe themselves as political prisoners and, more to the point in terms of the integrity of the British state, we would not be subjected to the accusation that we were creating a body of political prisoners. I do not want to be told that I have to investigate the United Kingdom's political prisoners. It is difficult enough doing that in Azerbaijan and Russia, without having to do it at home. I am not being facetious. Questions will be asked if we alone, among the 46 members of the Council of Europe, go down that path and the decision is taken by a Minister subject only to judicial review. We could be accused of creating political prisoners.

It is in everybody's interest to ensure that the process is robust and strong and protects the integrity of the state, the security of the system and the principles of British justice. As my hon. Friend Simon Hughes said in his potent intervention, it is amazing that the Home Secretary actually wants the powers on those terms. If judges review cases properly, there will be the maximum capacity for embarrassment to him. Of course, if there are no means for the proper testing of evidence there may be questions as to how the process could apply.

We need a robust system on which we can agree, which gives us security and control and ensures that we can show that people have been given a proper test and have received proper judgment. That will serve the interests of democracy, about which Mr. Allen was rightly concerned, and of justice and the security of the state.

These are difficult issues and the debate demonstrates that we all recognise that, but I urge the Government to acknowledge that in this context, when we have only a short time, the sooner they concede the principle that judges make the decision and the Government make the case, the sooner we can go on to have a real debate about how to test that case, how to put it through the system and ensure that there is genuine support so that we can defeat terrorism and maintain the integrity of British justice. That is surely what we are all trying to achieve.

Photo of Barbara Follett Barbara Follett Labour, Stevenage 5:45 pm, 23rd February 2005

It is a pleasure to follow Malcolm Bruce. I, too, feel that the example that we set is very important and I intend to cover that in my speech.

Like most other Members who have spoken today, I recognise that we have a problem. I recognise, too, like my hon. Friend Mr. Allen, that very real attempts have been made by the Home Secretary to solve that problem. I salute him for the work that he has been doing and I value it. I also recognise that, in today's world, control orders are sadly necessary, but I do not see why those control orders have to be initiated and implemented by a single politician. Nor do I see why that politician needs to have only reasonable grounds for suspecting that the individual concerned is, or has been, involved in terrorism-related activity. That seriously worries me.

Those reasonable grounds could be based on intelligence evidence. It is the nature of intelligence gathering that it is unreliable. It is difficult. We have no guarantee that that intelligence will be correct. I know, because I have known the Home Secretary for many years and worked with him for many years, that he is an honourable and fair man. He is acting from the very best of motives and in the public interest, but, with the deepest respect, I think that the end does not justify these means. In fact, I fear that if we use undemocratic means such as these, we may unintentionally will new and awful ends. That is why I will not support the Bill tonight and why I ask my right hon. Friend to think again.

There are better ways of doing this—quite a few have been mentioned in the Chamber tonight. I will not go over them because other hon. Members want to speak, but we should involve a judge from the outset, use the Crown Prosecution Service procedure and have a look at how the Canadians use intercept evidence in court. In other words, look at it again and think again about the kind of example that this sets, as the hon. Member for Gordon said. My right hon. Friend Mr. Denham was right when he said that people can be detained without trial for as long as four years on the continent, but does that mean that we should emulate them? Does that mean that that is something that we should even consider?

I lived for many years in South Africa, during the dark days of apartheid. During that time, Britain's legal system was held up as a beacon of light and hope, as the prison bars of the apartheid state closed around us. In 1961, the South African Government introduced the General Law Amendment Act, which allowed people to be detained for 12 days without trial. By 1963, that had been extended to 90 days. By 1965, it was 180 days. Two years later, it became indefinite. At the same time, the apartheid regime was issuing control orders that restricted the right of some citizens to congregate, to work and, in some cases, to leave the confines of their own homes. Those orders had a devastating effect on the life of the suspect and his or her family. I should know—my first husband was served with one of them in 1971. He lived under it for five years, and it was only thanks to the generosity of the university at which he taught that he did not starve. He could not work, leave his home or travel to Cape Town to see his mother, and he barely saw his children.

I know that this is Britain and not South Africa or Burma, but we must not underestimate the importance of what we are doing today and the message that it sends to countries where we are talking about good governance. The example that we set will stay with us for many years. Removing the hope that we give, as we could tonight, might have a deleterious effect.

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

I have been listening to my hon. Friend with considerable admiration and respect. Will she apply her deep knowledge of the matters about which she speaks to clause 1, and especially the provisions in paragraphs (a) to (o) of subsection (3), which set out in detail the restrictions that could be put on people through a non-derogation order? Does she agree that they bear an extraordinary and chilling resemblance to the pass laws in South Africa?

Photo of Barbara Follett Barbara Follett Labour, Stevenage

I wish that I did not have to agree with my hon. and learned Friend, but the provisions do bear an extraordinary resemblance to those laws. We must beware of going down that road. Again, I say that this country is not South Africa, but we have an example to set.

My first husband was put under house arrest because the apartheid state believed that he was a threat to its security. He probably was; he was campaigning to give black people the right to vote and join trade unions. Given the structure of the South African state, he probably was threatening it because it believed that only whites could vote and join trade unions. House arrest hampered him, but did not stop him, which was probably why, just before his five-year order was due to expire, he was shot dead in front of our two young daughters in their bedroom. I tried to comfort them in the days that followed by telling them that we were going to go to Britain, where people were not detained without trial or put under house arrest. When one tries to tell a 13-year-old and a nine-year-old that not all parts of the world are as bad as others, one looks for examples, and we in Britain were that example. I am glad that I am here today so that my now 40-year-old and 36-year-old daughters can hear that we are still fighting to uphold that.

I understand that control orders are necessary in some circumstances, which is why, like my right hon. Friend Mr. Dobson, I supported the Anti-terrorism, Crime and Security Act 2001. However, that Act was a stop-gap measure. It is due to be reviewed in five years and is subject to continual review. The Bill, however, is not a stop-gap measure. It will embed an undemocratic principle in our law. It will remove rights that are guaranteed under the Magna Carta, which says that no free man—I add the word "woman" to that—shall be arrested or detained except by the lawful judgment of his or her peers. If that was good enough for 1215, surely it is good enough for 2005.

I ask the Home Secretary to think again, please. He should get a judge to implement the orders and consider how to use intelligence evidence in court. He should consider putting a time period on the Bill and review it in five years, rather than committing us to it for ever. Above all, he should take time and care. These principles are the very basis of our democracy and our party. If we destroy them, it destroys us.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 5:53 pm, 23rd February 2005

The House has listened with respect and great interest to the speech made by Barbara Follett. She brings to the debate a knowledge of the affairs of South Africa while she was living there, and I have no doubt that that has influenced her judgment and what she said. Incidentally, although I shall return to this point later, I suspect that such knowledge influenced the view of Lord Hoffmann when he made his important speech in the Belmarsh judgment, which I commend to the House.

In one sense, this is an extraordinary debate. To start off with, the House proposes to give Ministers the power of administrative detention, which we have condemned in every other country where it is exercised: for example, Zimbabwe, Burma and Israel. We are proposing to abandon principles that have governed our constitution and legal practices at least since the days of the Stuart kings. We propose to do so in a debate that will last two days. Incidentally, there is one other curious aspect—we are addressing this matter in this way because of the judicial interpretation of the European convention on human rights, which was incorporated into British law to protect human rights in this country. Bizarrely, it is having a contrary effect.

Another extraordinary thing about this debate is the high degree of agreement between the Back Benches on both sides of the House. May I say to the Government that when there is such unity it behoves them to listen carefully to what has been said, notwithstanding their majority?

I am conscious that other Members want to speak. Furthermore, many of the points have been made with great eloquence. I shall therefore focus briefly on four issues: first, the principle of what is involved; secondly, whether there is a need; thirdly, the purported safeguards; and lastly, process.

First, on principle, at the most extreme we are talking about administrative detention—a form of indefinite imprisonment. In relation to the less extreme form of judicial control orders, we are talking about something less. None the less, as Mr. Marshall-Andrews said, it is a process that will destroy people's livelihoods because they will be denied the ability to work, to associate and to have access to their friends. All of that is at the say-so of a Minister. I find that wholly offensive. Ministers should not have those powers. On that point, I am wholly immovable.

Another question of principle arises as to whether such sanctions should be imposed otherwise than after a conviction for a substantive offence. My strong presumption is that such things should be done only after a conviction for a substantive offence. Yes, I will listen to the arguments, and it is possible that I could be moved on that point, but only were there to be a full judicial process. I shall return shortly to a point made by my hon. Friend Mr. Grieve.

The truth is that the powers that we are conferring on the Government are sought in a democratic state only in the direst and darkest days of war. That is not today, whatever other perils we face. Otherwise, they are the kind of powers that are usually sought by dictators to practise tyranny.

Secondly, on the question of need, I do not come blind to this debate. I have practised at the Bar—and still do so—for nearly 40 years, now almost exclusively at the criminal Bar. I also have some relevant experience in government. For two years, I was an Under-Secretary at the Home Office, with responsibility for the terrorism legislation then carried through, and I necessarily had some dealings with the security services. For five years, I was a Foreign Office Minister with a close relationship with the intelligence services and GCHQ, and was very familiar with the kind of considerations that underpin the anxieties now being expressed by the Government. I very much doubt whether there is a justification for what the Government are asking us to do.

To start with—this is a bizarre fact—we are considering the Bill not because the security services have told us that there is a security need, but because the House of Lords, in the Belmarsh judgment, told us that we could not make a distinction between citizens and non-citizens, and that is a very different matter.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

On the security services, how is it possible to establish the universal agreement of all security services that such and such should be true?

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

I do not believe that it is possible. The Father of the House makes a serious point. What is more, the security services seldom express themselves in really robust ways. We have only to consider the Butler committee report—I shall not go into great detail—to find that when the security services assessed the existence or otherwise of weapons of mass destruction in Iraq, they qualified that assessment to a high degree, so I think that the Father of the House is right.

I return to the question of need. My right hon. Friend David Davis has advanced other approaches—for example, the creation of alternative offences, whether it is possible to admit classes of evidence not presently admitted and to safeguard that evidence, and whether perhaps there should be some form of special court. I would contemplate, though I find it difficult to believe that I would accept, that maybe some limited form of control order made by a judge, falling short of house arrest, might be acceptable. I shrink from that but I am prepared to consider it.

There are these alternatives, but there is another alternative that we should not overlook, and that is surveillance. My right hon. Friend the Member for Haltemprice and Howden and I spent a long time in the Foreign Office, and we know quite a lot about surveillance methods. I had responsibility—the House will forgive me if I do not go into too much detail—for ensuring that individual citizens were safe. We relied on surveillance to achieve that. Surveillance can be extremely effective and I doubt whether there is a need for the draconian measures that are proposed.

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

Will my right hon. and learned Friend confirm what I believe is his experience and mine, that when major surveillance is mounted on targets, one of the side effects is that it generates vast quantities of evidence that can be used in court?

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

Yes. It is an important point. If surveillance is maintained, we see the identity of those associated with the suspected person and we learn a great deal about what they are saying and about their financial records, for example. In some cases, it leads to admissible evidence and a prosecution.

I move on to my two final points. The Home Secretary referred to the safeguards in the Bill. Like Mr. Marshall-Andrews, I do not believe that they are in any way adequate. I draw very much on what the hon. and learned Gentleman said. He made a distinction between the safeguards regarding non-derogating powers and those regarding derogating powers. On the non-derogating powers, the hon. and learned Gentleman was entirely right when he said that this is but judicial review—not irrelevant, but it does not go to the question of fact. It merely seeks to determine whether the Home Secretary has acted reasonably within the law. That is very different from examining the known facts.

I concede at once that in respect of the derogating powers the court has a greater role to play. It examines the merits, but it is a partial examination because, of course, the evidence is not disclosed to the detained person. The detained person does not have an opportunity to read the documents and may not know the nature and identity of the accuser. They are not necessarily represented by a person of their own choice. The special advocate cannot take from the detained person what we lawyers call instructions. The process is very imperfect—the Father of the House reminded us of the case of Judith Hart, whom the security services falsely identified. I commend to the House a letter in The Daily Telegraph yesterday from one Edward Greene, who tells readers how his father was interned under the then internment procedures because of a false allegation that was deliberately made to MI5, which had paid a man to produce the names of suspects. That sort of thing is bound to happen.

To take up the point made by my hon. Friend the Member for Beaconsfield, the problem is not only the nature of the process, but the fact that the person facing the allegation does not know the allegation and cannot test it. That is true whether the control order is initiated by a Minister or by a judge, so the objection is not to this form of control order, but to control orders themselves.

Drawing on my personal experience as well as my knowledge of the law as a member of the Bar, let us not forget that many miscarriages of justice have occurred within the context of a judicial process. If one does not have a judicial process, one can be certain that yet more miscarriages will occur, which is the inevitable consequence of the legislation that the House is being asked to approve.

My final point is a word on the process by which the Bill is being hurried through, which is a scandal. The Bill was published for the first time yesterday and today is its Second Reading. Inevitably, the public have not had the opportunity to communicate to us, their representatives, what they think about it, which surely undermines the constitutional practices that we value. The Bill will leave this House on Monday under the tightest of guillotines and after the barest of scrutiny, which is an outrageous way to treat a matter of this importance.

The Home Secretary has said that the Bill is necessary. When we asked him why it is necessary, he asked, "What about the detainees in Belmarsh?" The detainees in Belmarsh can be released tomorrow, because they present no danger to the state. Why do they present no danger to the state? Because we know and they know that they will be under the very closest supervision and surveillance. It is fanciful to suggest that they would do anything to make contact with terrorist organisations in those circumstances, which, if they are guilty, would provide admissible evidence against them and expose their terrorist network. They will not do such things, and if they walked the streets tomorrow, they would do no harm to this state. I say this with regret, but this Bill has a great deal more to do with general elections than it has to do with the security of the state.

I remind the House of the words of Lord Hoffmann, whose background is South African. Perhaps he overstated the case, but this is the conclusion to his judgment on Belmarsh:

"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."

We face that question tonight, and I urge the House to reject the Bill.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 6:09 pm, 23rd February 2005

Returning to the remarks of Malcolm Bruce, I am here to support the Bill, although I cannot say that I welcome it. None of us welcomes the Bill, because of the circumstances in which it has arisen, but I accept the necessity of its introduction.

We need to recognise the Law Lords' decision, recognise its basis and act on it. Those who advocate kicking the Bill into touch and extending the part 4 powers while we come up with something else to replace them are effectively condemning those people who are currently detained in Belmarsh to many more months of detention while the House grinds on and makes its mind up. I do not want those people, who have been found to be unlawfully detained, to be detained any longer than is absolutely necessary.

I do not agree with Mr. Hogg that these people do not necessarily pose a threat to our society. We must recognise the nature of the threat that we face, which is different from the terrorism that we have experienced in this country in the past. The Home Secretary ably set out the different nature of the terrorism we now face; the terrorism of mass murder that is aimed not against specific high-profile targets but at soft targets and the general public wherever they can be murdered in their thousands.

Let us be realistic. Those who advocate the criminal law must recognise that it provides no deterrent to suicide terrorism. If people are prepared to die in the commission of those offences, the criminal law will hold no fears or terror for them. The fear of a lengthy jail sentence to them is an irrelevance. We must recognise the sort of people we are dealing with. It is difficult discussing those in Belmarsh because they have not been identified, but from the information that is publicly available, we can see that they are very dangerous indeed.

The one who has been named, Abu Qatada—even from the information that is in the public domain—can be seen to be an extremely dangerous individual and a close associate of al-Qaeda. He is believed to be al-Qaeda's leading operative in Europe, someone in whom security services throughout Europe are interested. To suggest that simple surveillance is the answer to such people is clearly wrong. Abu Qatada was under surveillance before the power to detain came into effect. The night before—one does not know whether he had a tip-off—he gave the security services the slip and went on the run. It took nine months to track him down again. That is the sort of person we are dealing with, and simple surveillance would not be the answer.

I believe that we are dealing with a relatively small number of people. There are less than a dozen in Belmarsh, and the security services have an interest in perhaps a similar number of UK nationals. We are not looking at a huge round-up of UK or foreign nationals, or at the sort of round-up that happened during the second world war. We are not looking at a "Casablanca"-style round-up of the usual suspects. We are looking at a relatively small number of people who are perceived to be a threat to our society.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs)

The hon. Gentleman understates, or mistakes, his case. The Home Secretary said that there were 1,000 people in the UK who were connected in some way with al-Qaeda. The hon. Gentleman refers to a dozen: a slight difference.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

There may be people who are supporters or advocates of al-Qaeda, but that does not necessarily mean that they are directly associated with or involved in terrorism such that they would fall within the powers in the Bill. From my discussions with people in Scotland Yard and elsewhere, I believe that that is the sort of number they are looking at.

The preference is to try to put people on trial in court. There have been 701 arrests, 119 people have been charged under the Terrorism Act 2000 and 135 have been charged under the general criminal law with murder, grievous bodily harm and firearms, explosives and other offences. There are trials under way, but one of the problems is the reporting restrictions, which mean that nobody really knows what is going on.

One trial has been going on for six months and is expected to last for some time yet, but most people in the House today would not even know of its existence. I understand that another trial is to start on Monday, and again we will hear little about it; further trials are due to take place throughout the year. I think that the Metropolitan Police Commissioner was right to criticise the extent of the reporting restrictions imposed by the courts and the Attorney-General on some of these trials. Yes, of course we have to ensure that those involved have a fair trial, but some of the blanket restrictions that have been imposed are counter-productive. We need to be able to explain to the public what is going on to remind people of the particular problems that we are trying to deal with. If, for example, the Muslim community were aware that people are not simply being locked away and forgotten about, but are being put on trial within the correct process, they would be reassured that people do have the benefit of due process through the courts.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

I have no legal training of any kind, but is my hon. Friend not undermining his own case? He says that these actions are taking place, so any change in the law is not necessary. We cannot have it both ways. Is he really saying that we should hand to terrorists the one absolute victory of knowing that they have destroyed the most important thing, which is the freedom that they so bitterly resent?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

No, I am not saying that. I am illustrating the fact that the system has gone out of its way to put as many people as possible on trial, with correct charges under the criminal law, but inevitably there will be some people against whom there is a strong case but where the evidence is not admissible in court, or can be put into court only in circumstances that would severely compromise its source, so they simply cannot be put on trial.

For example, I agree with the Opposition that we need a new offence of acts preparatory to terrorist activities. That is essential, because at present the prosecution authorities face a real problem in trying to bring some of those activities within a conspiracy charge. Shoehorning into conspiracy charges some of the activities that we are talking about gives rise to the defence that the agreement to commit the criminal act has not been sufficiently formalised. Not having the kind of law that we need opens up a line of defence for potentially quite serious acts. If we were to amend the criminal law, that would give greater opportunity to bring more proceedings.

I also do not agree on the question of intercepts. I fully understand what the Home Secretary has said about that, and he makes a powerful case, but to say that intercepts would be of no use whatever in any case, or would compromise the methodology in every case, is wrong. It would be appropriate to allow intercept evidence to be used, but only if it can be used safely. It is not the panacea that many people think it is. It cannot be used in every case, and there is the problem of interpreting the intercept evidence to the jury—for example, proving the context—and what was actually said usually means something quite different. But intercept evidence that is in the public domain in relation to the cases arising from the kidnapping of tourists in Yemen, which has been printed in the newspapers, would have been quite powerful in dealing with one or two of the individuals involved.

I was impressed by what my right hon. Friend Mr. Denham said about whether the judges or the Home Secretary should make the decision. I would question whether the judges would feel comfortable about making those decisions in the first place. Their role has always, rightly, been to consider the interests of the individual. It is for the Home Secretary to consider the interests of us all collectively. The risk of this approach would in many ways be letting the Home Secretary off the hook. The blame would be passed to somebody else if a particular control order was not imposed by a judge, but the person concerned went on to commit serious terrorist acts. The judges are good at judicial review of administrative decisions; I do not believe that they are very good at making them.

There are risks of miscarriages of justice. Whether there is a miscarriage of justice or a miscarriage of administrative decision may be a semantic argument, but the consequences in these circumstances of a miscarriage are far less than the prospect of someone, as we saw in the Guildford case, being imprisoned for 10 or 15 years. The risk of wearing a tag for months or years is far less.

To move on to some of the practicalities of control orders, of course they will not be as effective as detention has been in dealing with some of those individuals. There is the risk of absconding, as I mentioned in the case of Abu Qatada. There is the risk of breach of the orders and trying to enforce the prosecution that would follow from that, to which I will return. There is also the risk of what might be called mission creep, and wider use of the control orders than has been seen in the use of the powers to detain. The powers of detention are the nuclear option of dealing with terrorism. They are so severe and draconian that they have been used sparingly. However, lesser powers carry the risk of being used more frequently. I should like assurances about that.

There is a major question about resources for operating the new system, which will be harder for the police to manage. I question whether conventional surveillance is a practical proposition, given the number of people involved. The balance between technology and manpower for surveillance will have to be examined. We must also consider the extent to which monitoring is covert or overt, and the extent of tagging. I would be worried if an outsourced company monitored tagging, as has happened with some tagging of ordinary criminals. I should like an assurance that if tagging is to be used, it will not be outsourced. We must guard against that.

Clearly, all subjects of control orders must have their own case officer. An individual risk assessment will be required and resources will also have to be assessed. I should like an assurance that the Home Office, not council tax payers, will provide the additional resources that the police services involved need to carry out the extra duties. For example, the provisions could place a large burden on the Metropolitan police, who have borne the lion's share of anti-terrorism law so far. That will apply especially in the case of an alleged breach of a control order, which will be resource-intensive to investigate. The criminal standard of proof will apply and there will be a need to ensure that the evidence brought is admissible.

We must recognise that the sort of people with whom we are dealing have been well advised in the past. They sail close to the wind in some of their activities. It is fair to say that they have run rings around the authorities in many respects—one has only to consider the activities of Abu Hamza and Omar Bakri Mohammed to understand how they have brought the authorities into disrepute. There is little doubt that they will push orders to the limit and possibly beyond. I want to be satisfied that the Home Secretary believes the orders to be sufficient to ensure that those involved cannot incite and foment extreme views, as has happened in the past.

We should consider the impact of control orders on community cohesion. The police could be operating in a difficult environment if the local community is either supportive or afraid of the subjects of the control orders or their followers. That could affect co-operation with the police, especially in relation to the subject of the control order, or more widely, in the fight against terrorism. There could be a much wider impact on local policing and its relations with minority communities.

The police will also have to protect the subject of the control order from possible victimisation. There have been examples of that in cases involving paedophiles, who have been subject to appalling victimisation. I suspect that those subject to control orders in their homes may face similar problems. There may be an impact on policing levels in local boroughs in London and operational command units elsewhere if the local police service is called on to provide part of the service. I hope that the Home Office will go out of its way to ensure that proper resources are provided for that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

People need not be detained in their homes. The place of detention could be specified as cell 16, wing D, Belmarsh. The point is that they commit an offence if they walk out through the door.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I hope that anyone who walked out through the door when in lawful detention would be deemed to have committed a separate criminal offence. I am dealing with people who are placed under a control order of a rather lesser nature—those who are tagged in their homes, as happens, for example, to sex offenders. They are put under various forms of control and reporting arrangements. We are considering not only the extreme end of the scale, but further down.

There is a need for a consistent approach to control orders. There is a genuine role for Scotland Yard in co-ordinating the approach nationally.

I have not gone into detail about some of the more principled issues, which have been explored fully in the debate. When we consider those issues, it is important not to take our eye off the ball of some of the practicalities that are involved in control orders. I have tried to tackle some of them. I should like reassurance from the Home Office on the practical problems that might arise should the Bill make further progress.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs) 6:24 pm, 23rd February 2005

I speak on behalf of Plaid Cymru and the Scottish National party.

Yesterday's exchanges revealed that the Government's perception of the level of terrorist threats is, according to the Home Secretary, relatively unchanged, as it has been over the past two or three months. The impetus for the Bill is, I think, either the Belmarsh judgment or political necessity. I believe that its timing owes as much to the political calendar as to the scathing, and correct, judgment handed down by the Judicial Committee recently.

I have read Lord Carlile's report and its conclusions. Conclusion 8, on page 37, states:

"Lessons can be learned from the Anti-terrorism, Crime and Security Act 2001 detention provisions to enable new laws to be subject to a fair and acceptable system of law . . . including a more developed special advocate procedure and tribunals with a lay element."

Those of us who do not sign up to the Government's perception of threat from terrorism, or at least the degree of that threat, none the less accept that there is a level of threat, and therefore endorse what Lord Carlile says in his considered and balanced report. I believe that the Bill conflicts directly with that conclusion. Far from attempting to introduce a fair and acceptable system, the Bill will do the opposite.

Briefing notes from Liberty—produced, obviously, quite rapidly—refer, in paragraph 8, to restrictions on liberty being permissible only with a view to some form of criminal disposal at the end of the day. It goes on:

"To be lawful they can only be used to detain or restrict someone with a view to bringing them to trial, to stop them committing an offence or from absconding after committing an offence."

That refers to article 5 of the European convention on human rights.

"Once detained they must be brought to trial within a reasonable time or released."

That is in article 5(3) of the convention.

"Restrictions such as tagging and curfew are established practices in criminal law. They are imposed as bail conditions by police or courts to ensure that, for example, a defendant attends court".

Obviously what is meant is that such restrictions are part of a larger judicial process, and are not an end in themselves.

The Bill gives the Executive, through the Home Secretary, powers that have always resided with the judiciary, and with good cause. The whole issue of the constitution and the separation of powers is involved in this debate. Everyone accepts that there is a need for the separation of powers. A few weeks ago, in a debate in this place, many Labour Members argued that that was a sacrosanct notion, to be applied even to prevent Members from sitting in a judicial capacity. It was, I suppose, a good argument, but none of those siren voices are here today. The new Labour ranks are pretty thin on the ground. The loyalists who argued that case a fortnight ago have gone to earth.

Today, though, we are dealing with a far more serious matter—a far-reaching matter. The Bill will enable the Home Secretary to impose sweeping and far-reaching infringements of liberty on the basis of mere suspicion—albeit reasonable—that an individual is or has been involved in terrorism or terrorism-related activity. What evidence will the Home Secretary have to present to prove that suspicion? It will be evidence produced by the intelligence services.

One of the salutary lessons of the Iraq war is that intelligence briefing alone, and its subsequent interpretation by politicians, often lead us to very wrong conclusions. Mere suspicion has never had any standing in any legal proceedings hitherto. The interpretation of the word "reasonable" will be subjective, and will hardly constitute a safeguard in the circumstances.

Clause 2 allows the Home Secretary to derogate from article 5 of the human rights convention if he is satisfied, merely

"on the balance of probabilities", that a person has been involved in such activity. In other words, the civil burden yet again makes it easier for the Executive to ride roughshod over the individual. If it were ever justified to deprive an individual of his or her liberty in that way, the standard of proof should be far higher. In this instance, the Executive are exercising powers hitherto exclusive to the judiciary, who have always in criminal cases been subject to the higher and safer standard of "beyond reasonable doubt". That is a major concern.

Clause 8 deals with appeals relating to derogating control orders. Subsection (1) refers to where there has been a modification of an order

"without the consent of the controlled person".

Perhaps in due course the Minister can tell the House where she sees actual consent being given by the controlled person. In what circumstances will that happen? I also ask for confirmation that, in the appeal process, the person will be entitled to legal representation of his or her choice and that legal aid should be available.

Clause 9, which relates to appeals in respect of control order decisions, states that no appeal shall lie against the decision of the court

"except on a question of law."

That again is problematic, because, under paragraph 4 of the schedule, the Executive can make up their own rules of court and can

"make provision about the mode and burden of proof in control order proceedings and about evidence in such proceedings" and

"enable or require such proceedings to be determined without a hearing".

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

The hon. Gentleman will be aware that in Scotland, the subject of rules of court is properly the domain of the Scottish Parliament and the Lord President, who is normally the senior judge responsible for their construction. Does he share my concern that there has been no opportunity for the Scottish Parliament to express a view on that matter and that, at the very best, the Government are blundering into a constitutional grey area?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs)

I most definitely share the hon. Gentleman's concern. Rules of court have been formulated over the years with the assistance of the Lord Chief Justice and other members of the judiciary. They have developed over the years. These may blow up in everyone's face. I agree with the hon. Gentleman about the constitutional question as well.

The court can decide an issue without a hearing. The evidence cannot be tested at all and only one avenue of appeal is open—that is, on a question of law.

An appeal on a question of law is normally about whether a reasonable authority would have come to the conclusion on the evidence before it—the Wednesbury principles. How can a proposed appellant mount an appeal when there has been no hearing of the evidence and no chance to test the evidence? Indeed under this Bill the Executive would be entitled to withhold all the evidence from the controlled person or the appellant. Therefore, that avenue of appeal is an utter sham and in practice means nothing. It does not add up to a row of beans.

I am desperately unhappy that the rules of court may make provision allowing control order proceedings or relevant appeal proceedings to take place without the full particulars of the reasons being given, and allowing proceedings to be conducted in the absence of the person being controlled. Those are anathema to anyone who knows anything about the judicial system under which we live and operate.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

To grasshopper back to the position in Scotland, I think that we should take account of clause 12 of the Bill, which states that

"in relation to proceedings relating to a control order in the case of which the controlled person is a person whose principal place of residence is in Scotland", the court

"means the Outer House of the Court of Session".

It is my understanding that the Scottish authorities agreed to this. Whether there was a Sewel motion or not I do not know, but I understand that it was agreed.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence), Shadow Spokesperson (Foreign and Commonwealth Affairs)

I am grateful to the Father of the House for enlightening us on that point, which is extremely important in the circumstances.

In reality, the proposed appellant could not mount an appeal. That right is illusory.

Paragraph 4(2)(d) of the schedule refers to a provision to enable the relevant court to supply a controlled person with

"a summary of the evidence taken" in his or her absence.

Who decides whether that summary is accurate and full? How can we ever know that? That is a crucial point, as it was when taped interview summaries were first brought in through the Police and Criminal Evidence Act 1984. It is vital that full and accurate summaries are produced in these circumstances. Who can test whether the summary is right? I am afraid that the provisions seem designed to introduce courts only of the marsupial variety—the ultimate example of kangaroo justice.

Tucked away in paragraph 4 of the schedule is the right of the Home Secretary to prohibit disclosure of evidence to the party concerned and his or her representative. There may be circumstances, I suppose, where that could be necessary, but I am worried that it will become a standard and widespread practice. Paragraph 6 gives the Executive the right to prevent a person from being legally represented. Once again, that is contrary to anything that anyone would consider as fair jurisdiction and, indeed, it breaches the equality of arms principle in the convention on human rights. That is most worrying, and no doubt the so-called rules of court will be framed in order to make life very difficult for the individual.

Reference is also made to special representation in control order proceedings. Paragraph 7 states:

"The relevant law officer may appoint a person to represent the interests of a relevant party to relevant proceedings in any of those proceedings from which that party and his legal representative (if he has one) are excluded."

What on earth does that mean? A representative is appointed to act on someone's behalf, but that representative has no contact and no dialogue whatever with the controlled person. How can such a lawyer do a reasonable job on behalf of the controlled person? It is an absolute disgrace.

Following the resignation of Ian Macdonald, QC, and Rick Scannell as special advocates, Lord Carlile, QC, said in paragraph 78, page 30 of his report:

"There must be factual issues, about where the detainee was and when, or about the reasons for association with certain persons, on which direct discussion with the detainee or his private lawyers would assist in the doing of justice. I believe that such contact, on a careful basis, would meet many of the concerns expressed by Mr. McDonald and others."

That bears heavily on this particular point, but what have the Government done? They have flown completely in the face of that wise counsel. I do not believe that the Government have given any weight whatever to Lord Carlile's advice, even though he is a pre-eminent legal practitioner. That is most unfortunate. He is trusted, after all, with the oversight of terrorism legislation.

I referred earlier to the Liberty brief, which I cite again:

"In February 2004 six special advocates wrote an open letter to the Home Secretary expressing concerns at plans then circulating".

The issue of reforming the current Special Immigration Appeals Commission trials was mentioned. The brief continues:

"We are convinced that both basic principles of fair trial in the criminal context and our experience of the system to date make such a course untenable. It would contradict three of the cardinal principles of criminal justice: a public trial by an impartial judge and jury of one's peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case made against the accused. The special advocate system is utterly incapable of replacing these essential fundamentals of a fair trial."

Those essential fundamentals of a fair trial are all missing from this Bill. It is a bad Bill and a dangerous one. It has no place in our democracy or in our constitution. It will make bad law and I am afraid that it may well make matters worse and fuel the flames that it attempts to extinguish.

I do not know whether the Bill is part of a political game, but I believe that good sense in the other place will dispatch it as it deserves. It is incapable of amendment, and we in Plaid Cymru and the Scottish National party will vote against it without hesitation.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 6:39 pm, 23rd February 2005

As with everything in life, this Bill has both form and substance, and I shall deal first with the form. The Bill is small but deeply imperfectly formed.

In part, the Bill is incomprehensible. I have been reviewing statutes—many of them criminal statutes—for 35 years, and this Bill is one of the worst, despite its brevity. I spent one hour and 20 minutes attempting to understand clause 4 alone. That clause deals with the duration for which people can be detained under the control orders and is therefore not unimportant, but I completely failed to understand it, even though I was reading my own language. If it had been translated into Arabic, Hindi or Gujarati, the problem would be even worse. We in this Chamber will no doubt argue about the effect that the Bill will have on al-Qaeda, but one thing is certain—they will not understand it.

So much for the Bill's form; I now move to its substance. If its form is bad, its substance is truly dreadful. It is almost certainly one of the worst pieces of legislation that any Government have attempted to put through this House for 200 years. It offends against the cardinal and root principle of our democracy—the separation of powers and the independence of the judiciary.

That principle is not a tributary of democracy, or a bit or part of it. It is what democracy is, and it is fundamental to our system, as it is to all systems of democracy that ultimately derive from revolutions of the people. The constitutional liberties in the US, France and this country are all based on that principle, which was first enunciated by Montesquieu and subsequently taken up by Paine and Jefferson. Their names will resound through the annals of political democracy and liberty when the names of those who are trying to take democracy away from us will be no more than dusty footnotes in the unpleasant history of this era of Parliament.

The principle of judicial independence is under attack in this country, but it is interesting to note that there is an attempt to introduce it into the Russian constitution. I was recently in Russia to give a lecture on the principle and I have given four such lectures in the past year. The Russians approach the notion of judicial independence much as they would approach a yeti or an abominable snowman—they understand that some people have seen such a thing, but they do not really believe that it exists.

The Russians with whom I had dealings listened to me with respect and longing, but on my most recent visit I told them about this Bill. For some time afterwards, the wonderful people with whom I was sitting had their arms around me in commiseration—admittedly, after a few vodkas—for the loss of liberty and the mistakes being made in my country.

The weakness of the Bill is made even greater when a legislature is as supine and ineffectual as this one is. In the brief time that I have been in this House, Parliament has gradually given up any hope of carrying out its major role of acting as a control and check on the Executive. That inability was brilliantly set out earlier by my good and hon. Friend Mr. Sedgemore. That will be his last speech in this place, and he could not have made a greater one. This may be my last speech too, and if it is not, it will not be for want of trying. If it is, I echo what my hon. Friend said: one of the great sadnesses that I will take away from the Chamber is that I have watched it become a Lilliputian assembly. In my time here, it has manifestly failed to act as a check on an over-mighty and increasingly arrogant Executive. There is no greater example of that than what we have witnessed in the course of this debate. For the Home Secretary to say that it is his responsibility to put people in prison and that he will arrogate that responsibility, and then to say that he will take a judicial function that will be subject to a judicial overview is not simply constitutionally illiterate but parliamentary drivel, and it should be treated as such by everyone who had the misfortune to hear it.

May I say three things in the brief time available, provided that no one is decent enough to intervene? Much adulation has been heaped on the present Home Secretary, some of which is richly deserved. However, even if he were the most wonderful, beautiful, benign and wise judicial body, even if he had a reputation for Solomonic justice and Brechtian wisdom, it would not matter a fig. It would be a terrible mistake to hand judicial powers to the Administration, given that there are at least three examples of the dereliction of those powers.

The first, of course, is Belmarsh itself. We are told that, after three years, the 13 people who have been held in that ghastly prison, with its 30 ft walls and razor wire—I know, because I have been there on many occasions myself—are to be released, not into house arrest but on to the streets with tagging or non-derogated orders.

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

Does the hon. and learned Gentleman agree that the necessary implication of the release of those people is that they should not have been held for three years in the first place?

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

It is wonderful how the right hon. and learned Gentleman manages to anticipate almost the precise words that are about to fall from my mouth. In the past three years, successive Home Secretaries—well, mainly one Home Secretary—have repeatedly told SIAC that those people are so dangerous that they cannot possibly be released from the misery and solitary confinement in which they have been interred. Now, they are all to be let out, because repentance is a wonderful and beautiful thing. Perhaps they have repented, but the idea that they have done so simultaneously would represent the greatest collective apostasy since St. Paul's letter to the Corinthians. It is clear that SIAC has been misled for the past three years about those people in Belmarsh. The new Home Secretary, however, has taken a different view, which demonstrates the arbitrary nature of the power that the Government are attempting to achieve.

Secondly, much adulation has been heaped on our security services and I am certain that some of it is deserved. However, the Iraq war is fresh in our minds, along with the duplicity, lies, twisting and distortion of the security services' manifesto. We all know what happened: the information that the security services gave the Government was manipulated before it was placed before the people. The second dossier created on the basis of that intelligence destroyed forever people's faith in this and probably any Government's purveying information accurately and using it in a judicial or any other capacity. That is why Home Office briefings have been received with such contempt both inside and outside Parliament. They are perceived as worthless documents because no one believes the construction placed upon them.

Thirdly, we have every reason to distrust the measure because British subjects will be placed under its aegis as a result of the rulings, speeches and opinions of the House of Lords. Is it coincidental that, when the Law Lords provide an opinion, there are suddenly risks from British subjects? Were there were no risks from them before that? If there were, why were we not told about them? If there were grave risks before that, why did someone not come to Parliament and say so? The Bill is a gross manipulation and distortion of the Law Lords' ruling.

I struggled to find a harmless analogy for what the Government are doing. The best I could come up with is that of a boy who is viciously bullying some people at school, all of them girls. He is hauled up before nine school governors who tell him that he must stop it. He says, "Fine, I'll stop it. I'll cut out the vicious bit and bully everyone." That is precisely the way in which the Government have reacted to the House of Lords judgment. The analogy is harmless and I hope that the point is not lost, even on the Home Secretary.

The substance of the Bill is the supposed effect of judicial overview. I shall say slowly, clearly and distinctly, in case anyone on the Front Bench is listening to what is being said in this House, that there will be no judicial overview as to the fact of the vast majority of the control orders that are envisaged in this Bill. That should be repeated. There will be no factual judicial overview of any of the control orders that affect the right to work, the right to travel, the right to associate, the right to be seen in a specific place, the right to move, the right to have a passport, the right to be with specified people, the right not to be tagged, and the right not to be electronically monitored. For all those control orders, there will be no judicial overview as to fact. If people in this country realised that, their reaction would be very different from what we are told is the popular reaction at the moment.

There will be greater judicial overview of house arrest, but, as has repeatedly been said, those who seek to challenge it in the courts will be bereft of and denied by statute all the information, disclosure and discovery that they need to put before a judge, because the Government have decreed—I pointed the relevant clause out to the Home Secretary—that they do not have to disclose that material to anyone. What is more, even if someone achieved their aim and the court decided that the decision was flawed, they could be re-arrested on another control order the minute they walked out of the door. That process was refined in South Africa time and again under the 108-day rule.

While referring to South Africa, I pay tribute to the wonderful speech of my hon. Friend Barbara Follett. I shall remember it for a long time after I leave this place.

The procedures that the Government propose to put into effect can be found at the end of the Bill. The Government have arrogated to themselves the right to create rules covering evidence, the burden of proof, lack of evidence, and the amount of disclosure. Those completely new rules of court will be introduced by statutory instrument and without proper consultation or scrutiny in this House.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow

Can my hon. Friend explain to a non-lawyer what is involved in the rules of disclosure in obviously delicate circumstances?

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

I can, but it would take me a couple of hours. Very briefly, let me tell my good and hon. Friend that under the present criminal justice system, it is implicit that the prosecution, if in possession of any factual, documentary or other material that might assist the defence, must disclose it to the defence.

Photo of Bill Cash Bill Cash Conservative, Stone

I want to ask a simple question. In light of what the hon. and learned Gentleman has said in his compelling speech, does he think that there is a cat in hell's chance that this legislation will not be overturned by the Law Lords again?

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

I know nothing about the other place. I still live in the forlorn hope that the Bill might be overturned here—if not now, then on Monday.

It cannot be repeated often enough that we will never decrease the sum total of human wickedness by decreasing the sum total of human liberty. If we act in that way, we run the extreme risk of increasing the sum total of human wickedness by denying these very liberties to those who deserve them. Looking back over the past seven years, I am very sorry to reflect on the number of occasions when I have had boringly to repeat that phrase.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 6:55 pm, 23rd February 2005

Mr. Marshall-Andrews referred to the vigour with which the Home Secretary introduced this debate, and I think that he meant that critically. We would normally refer to the Home Secretary's vigour, which was very much on display today and yesterday, with approbation. We can contrast that with the manner in which Northern Ireland affairs are dealt with; indeed, that contrast was very apparent yesterday. However, having said that, I am not entirely happy with the Bill for a number of reasons.

As several Members have said, there is no need to rush through the Bill in this way. The Prime Minister said this afternoon that that was necessary because the Government had to act after the House of Lords judicial ruling. No, they did not. The Human Rights Act 1998 was drafted in such a way as to enable Parliament to disregard rulings made under that Act if it so wished, and that could be done in this case. Furthermore, as was pointed out, given that the Home Secretary said that he would not introduce derogation control orders, other parts of the legislation could have been proceeded with and we could have left consideration of this matter in greater detail for another day. There was no need to rush through this legislation.

I am also not happy about the content of the Bill. First, I am unhappy about the breadth of the control orders. Other Members have already referred to issues relating to paragraphs (a) to (o) in clause 1, and reference has also been made to the moving speech of Barbara Follett. Her experiences in South Africa demonstrate the impact that orders of this nature can have. There is also a practical point that I raised in an intervention on the Home Secretary. I am unclear how these orders will be enforced. Reference has been made to tagging, but tagging merely helps to identify where a person is; it does not identify his activities.

It will not be possible to enforce these control orders without a massive operation by the police and the security services. There will have to be surveillance of people who are subject to such orders and that will take up a tremendous amount of time. That will not be surveillance of people who are active in terrorist organisations, because once the control orders are imposed, that will reveal to the organisation that the authorities are aware of that person and they will probably cease to be active within that organisation. Therefore, we will be devoting a great deal of resources to monitoring someone who is no longer the threat that they once were. The terrorist organisation will then recruit someone else, whereas if we merely maintain surveillance, we would be watching someone who was active, so we would be using our resources much more efficiently. Unless there is more to this provision, I continue to have great difficulty with its breadth and with the question of enforcement.

Much reference has been made to judicial procedures, and in the early part of the debate we discussed the question of when judicial proceedings should take place. As the debate went on, it became clear that that was not the real point. The real point about judicial proceedings was made by Mr. Hogg and the hon. and learned Member for Medway—that the judicial proceedings provided for under the Bill are not judicial proceedings as we understand them, but only a shadow of a judicial proceeding, because material is not disclosed and because the defendant, if we can use that term, is not told what the case against them is.

It being Seven o'clock, the debate stood adjourned.