Business of the House

– in the House of Commons at 6:55 pm on 23rd February 2005.

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Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business),

That, at this day's sitting, the Second Reading of the Prevention of Terrorism Bill may be proceeded with, though opposed, until Eight o'clock.—[Mr. Heppell.]

Question agreed to.

Question again proposed, That the Bill be now read a Second time.

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

I am glad that we have the extra hour to consider the matter, but as I am conscious that other Members want to speak I shall not relax my pace too much.

I was pointing out that these are not judicial proceedings in the normal way. I was concerned by the line being taken by the Liberal Democrat spokesman as I had the impression from what he was saying that the Liberal Democrats would be happy to compromise with the Government if a little more were added, especially on the question of judicial proceedings. If the Liberal Democrats are minded to do that, it would be a mistake. There may be other ways to compromise, but that is not one of them.

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

I want to make it absolutely plain that there is no question of our compromising with the Government about the process being put in the hands of the judiciary, not an elected Minister of the Crown.

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

That reinforces my concern. The judicial proceedings that you will be settling for will be a sham and will be dangerous for the legal process of this country. You will be settling for a judicial process that is not a true one. That is the problem. Judges are there to make decisions based on legally admissible evidence; they are not there to make decisions on intelligence. Judges cannot be expected to assess intelligence, but the orders will operate only on the basis of intelligence, so it is foolish to think—[Interruption.] You would do better to adopt a position of outright opposition to the orders rather than taking the route that you are following at the moment—[Interruption]—I am sorry, Madam Deputy Speaker, I should address my remarks to the Liberal Democrats through you, but I was slightly irritated at that point.

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

I shall not take another intervention. I have made my point and I want to reinforce it by saying that I am surprised that the judges appear to have accepted, or agreed to, those proceedings.

The form of judicial proceedings that we shall have as a result of the Bill will bring the courts into disrepute, will lower public esteem for the courts and will create huge difficulties for judges. I am surprised that they have agreed to such provisions and I suspect that when they come to operate them they will have second thoughts. The question then is: what should be done? The Home Secretary was quite right—there is a huge problem and we have to tackle it.

Reference has been made to the use of intercept evidence, a matter I brought to the House about a dozen years ago and to which I have returned on several occasions. I have never found the Government's arguments against it convincing. Mr. Smith made the point in his speech that changing the law would not compel the introduction of intercept evidence, but would give a discretion that may or may not be exercised and, indeed, could be exercised in such a way as to protect sources.

Another reason given is that the use of such evidence would let terrorists and other criminals realise the extent of surveillance. I have always thought that argument stupid. It assumes that terrorists and criminals do not already know that there is surveillance. They do know about surveillance and they also have a fairly clear idea of its extent. The authorities may have some technical edges of which terrorists are not yet aware, but I suspect that any technical advantage will be temporary and may shift from time to time. What that argument reveals, however, is that the heads of the intelligence services—if they hold that view—assume that they are dealing with rather stupid people in terrorist organisations, and that concerns me because those people are not stupid. If the authorities and the intelligence agencies assume that they are dealing with stupid people who do not know what is going on, they are more likely to make mistakes in their approach to them, so I go back to the question and continue to endorse the use of intercept evidence.

There is also the question—I believe that Lord Carlile picks it up in his report as well—of whether to use non-jury courts, along the lines of those used in Northern Ireland. That is a good idea. The so-called Diplock courts in Northern Ireland were a success, although they were not perfect—I was involved in one case where there was a clear miscarriage of justice. However, I think that there have been fewer miscarriages of justice in Diplock courts than in jury trials in this jurisdiction. Therefore, I recommend that, although I have to say that I think that Lord Carlile made a mistake by suggesting that there would be three-judge courts rather than single-judge courts. That is too extensive a point to deal with now, but there is an awful lot to be said for placing the clear, undivided responsibility on a person who then has to produce his reasons for scrutiny. Once there is more than one person, there is the opportunity to hide behind, and rely on, other people's judgment. Moving beyond one judge is a mistake.

The other thing that can and should be done is surveillance, which has been mentioned in the debate. That can be done. If that is not sufficient and we are dealing with a real emergency, there is something left in reserve that can be used, but only in dire circumstances—namely, a return to Executive detention, as applied in wartime and on a number of occasions in Northern Ireland and the Republic of Ireland. That is not a matter to be dealt with lightly, but it is not matter to be discarded. Those who spoke of it in terms of something that could never, ever be done are making a very serious mistake. There may be circumstances in which it is necessary, but it should be done only in extreme circumstances. If it is done, it is indeed a draconian measure, but the fact that it is so draconian means that it will be used only sparingly.

What bothers me about control orders is that they will become an easy option and people will slip into using of them because they will think, "It's only a control order. It's not the same as putting a person in prison. It's limiting what they can do." Over the years, the number of control orders will gradually accumulate and the problems that arise will grow as a result.

I have reached a conclusion that the legislation has been brought forward too soon. It will not be subject to proper scrutiny and it is fundamentally flawed. Consequently, I would be opposed to it. I have a little concern about the reasoned amendment that has been tabled by the Conservative and Liberal Democrat parties because it could be interpreted as ruling out the reserve power of Executive detention, which I believe must be available. Consequently, I do not regard that part of the reasoned amendment with favour, but, of course, one takes a balanced look at the matter and, on the whole at the end of the day, it is question of one's view on the Bill, and that is what will be expressed. I will not regard myself as being in any way bound by some of the persiflage that I find in the Liberal Democrat and Conservative amendment.

Photo of Vera Baird Vera Baird Labour, Redcar 7:08 pm, 23rd February 2005

I was glad to hear the Home Secretary once again reiterate his commitment to prosecution as his first choice. The problem is that we have been saying that for about three years now and there is no real evidence that anybody has tried to prosecute such people. I accept readily what he said about 700 people being arrested in the past year under the prevention of terrorism Acts. Many have been charged, some have been convicted and, no doubt, some have trials pending. I know that that is true because quite a lot of my former colleagues are making a lot of money out of those trials. The point is not that terrorists are not being prosecuted; it is that there is nothing to add reality to the Home Office assertion that prosecution is the first choice for those people.

The Home Secretary has told the Select Committee on Home Affairs that the prosecution issues are very fully considered, but, frankly, it is not the job of the Home Office to decide whether people who are suspected of offences should be prosecuted. It is the specific constitutional job of the Director of Public Prosecutions, and the files should be sent to him now.

It is implicit when applying for a control order that a decision has already been taken that a person cannot be prosecuted. That decision must be taken independently, so the Bill should set out explicitly that that must be done. The constitution sets out that the clear way of ascertaining whether a person can be prosecuted is through the Director of Public Prosecutions, so there is no reason not to make use of him.

The Home Secretary said both today and yesterday that he was considering new offences, such as being involved in preparation for acts of terrorism. He will of course consult the DPP about such offences. However, if the DPP were asked to look at the files in great detail and found that he could not make such a prosecution, he would be in pole position to advise on the additional offences, or the widening of admissibility, that might facilitate a prosecution in specific cases. We all sit in the Chamber guessing that intercept evidence, other offences or hearsay might help, but we have no idea. We should get the expert prosecutor to examine the problem now.

Such a procedure would above all prove to the public that an independent eye was being cast over the matter. If the consequence of being unable to prosecute is a control order, it is imperative that it does not look as though the Home Secretary is sitting in a huddle with the intelligence services to decide who will be locked up. It must be plain that the constitutionally charged official has made an independent decision.

I do not know whether the Government fear that it would be politically difficult to put a control order on a person who was prosecuted yet acquitted, and thus "an innocent man". If that is in their mind, it should not be. We put restraint orders on people who are acquitted of domestic violence and harassment, and for centuries we have bound over acquitted people to be on good behaviour if something about their conduct has caused the court to be worried about what they might do in the future. Mentioning the court brings me on to control orders.

I congratulate my right hon. Friend the Home Secretary on grasping the need for proportionality and setting out a list of the possible levels of control that he intends to use only to meet the threat as necessary. Of course such measures will be used sparingly, but they are immensely strong. Hon. Members have cited them, so I will not repeat them all, but instead only mention several.

It will be possible to put a restriction on people's work or business, presumably by telling them that they cannot carry out their business or go to work. It will be possible to put a restriction on people's association or communication with specified persons, presumably including any member of their families, such as children and parents. It will be possible to put a restriction on people in respect of their place of residence and the people to whom they give access to their place of residence. Presumably people could be told to move house, or told that they could not move to where they wanted. Another person will be able to restrict someone's movements under the aegis of the measures, and it will be possible for restrictions to be put on where people can go in the UK or outside it. It will even be possible to specify a small part of the UK to be restricted to. That measure could presumably ban people from the streets outside their houses, so it would effectively cause people to be locked up in their own houses. The measures will allow people to be tagged and provide that they must agree to allow people into their houses so that they can be searched. People will also be required to give advance information about their movements, if requested.

I have only cited examples. It is quite clear from clause 1 that the Home Office has complete latitude to impose any condition that it sees fit as long as that is necessary to restrict people about whom there are reasonable grounds to suspect involvement in terrorism-related activity. Just about anything can be done under a control order under clause 1 short of house arrest, but that power exists in clause 2, so I guess that the clause covers everything falling short of that.

The Home Secretary has been rightly praised in the round for upping the judicial scrutiny of the powers, but that will not apply to such control orders. This has been said once, but let me say it again pretty clearly, rather than in lawyers' code, so that people can understand it. Unlike the situation under clause 2 for a derogation control order—a locking-up order—when there will be an automatic reference to the court by the Home Secretary within seven days, a control order under clause 1 will be subject to appeal only as and when an individual chooses to make one. The appeal will be based on whether the decision to impose a control order, or find a person to be a terrorist, is flawed. The court is scrutinising not whether the order should have been made, but whether it has been made in the right way.

Therefore, no court will consider whether there are reasonable grounds to suspect that the person is or has been involved with terrorism-related activity. The question of whether the control order is necessary will not be considered. The questions that will be considered are whether the Home Secretary took the right things into account, left nothing out or did not consider something that he should have done when he made his decision. If the decision is quashed, all the Home Secretary must do is take into account what he left out, or leave out what he should not have put in, and make the same decision again, and there is no appeal—it is finished.

My right hon. Friend the Home Secretary said that if the extent of the control order is so stringent that it would take away liberty, it will tip over into the appeal procedure for clause 2. In my view, however, that is not correct at all. The clause 2 derogation-based house arrest orders can be made only if there is a derogation. When he makes an order for house arrest, he must refer that fact to the High Court, and the Court must hear it within seven days. Making a house arrest order under derogation triggers the appeal to the High Court, which must confirm or quash the order within seven days. That is the only way that one can get any order into the High Court. One cannot get a control order into it. Only when there is a derogation, which there is not, and there is no intention of having one, and only when there is a clause 2 house arrest order, which there will not be in the case of a clause 1 order, can that appeal follow. There will be no scrutiny of the facts at all, and while I accept that there is better scrutiny for house arrest orders, it is incorrect to suggest that that will be applicable to control orders. The only appeal against the control order will be scrutiny of the decision, which is insufficient, poor calibre and adds enormous weight to the argument that the judiciary must be involved from the outset and not later.

In making that argument, I rely on the fact that the Home Secretary has brought judicial scrutiny much closer with regard to derogation-based lock-up orders. He has accepted that on that case. My argument to him is that if one has the power to make a lock-up order under a derogation, but one must refer it to the High Court, which must confirm it or quash it within seven days, that is only a provisional order and the Court is really making the order.

It is not clear to me—this is probably an unpopular argument in the House, given the atmosphere tonight—that there is truly a great erosion of human rights as between a court ordering a control order and, on the other hand, the Secretary of State ordering a control order with the duty to refer it for quashing or confirmation within seven days, in which case it could be quashed or confirmed within as little as a day. I cannot see a massive erosion of human rights as between those two. Obviously, however, it is of the utmost importance; although technically not necessarily massively important, it has a huge impact on the public's view of exactly what we are doing with such people.

If the true position is that because the Home Secretary must get the control order confirmed or quashed within seven days he has really only made a provisional order, how far away is that from him making up his mind that he wants an order, making an application to the court ex parte and asking the court to make a decision within seven days? It is about two penny worth away, as my mother would have put it, is it not?

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

Is not the answer to the hypothetical question that my hon. and learned Friend postulates that if I were to go to the court, I would require the material that the court will require, and I would need to be shown the documents on which the Home Secretary had based his decision in order for the court to exercise a proper jurisdiction? This Bill contains no provision for me to get that disclosure.

Photo of Vera Baird Vera Baird Labour, Redcar

As between making an order and having an appeal within seven days, for which the Home Office has to furnish material, the furnishing of material at the outset when the application is made and requiring the matter to be determined within seven days means that there is not spitting distance between the two. Once we accept, as my right hon. Friend the Home Secretary has for the high-level orders, the principle of close judicial scrutiny, there is little difference to be found. There is therefore every argument for taking the extra step and bringing the judiciary in at the beginning.

That would not end all the problems. I accept what many Members have said about the problems of evidence, special advocates putting the case and the opportunity of challenge. All these matters can be solved with a good deal of effort and cross-party will, if only we can come up with a framework with which all of us are comfortable and within which we could work.

That extra step would end all of the outcry about Executive detention. It would end all of the backlash of the civil liberties groups. It would put away much of the fear of exciting community unrest because of eroding trial rights and replacing that process with Executive detention. It would quiet the public and it would restore our constitution.

I shall vote tonight with my right hon. Friend the Home Secretary because he has clearly said that he understands the issue and that he will consider it extremely seriously. I see no alternative, with 14 March looming large, but to try to get this proposed legislation right in time. I say to my right hon. Friend that I hope that between tonight, when I give him my vote, and the next opportunity for us all to vote, he takes the extra step.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons) 7:21 pm, 23rd February 2005

It is 740 years since Reigate first returned a Member of Parliament, so I have the opportunity to make a truncated contribution to the debate. Some Members will not have the opportunity to make any contribution to this extremely important debate. As the debate comes to a conclusion, it is opportune to weigh in the balance what we are discussing and to look back at the rights that have been acquired by Britons over the centuries.

I turn first to the Magna Carta, 790 years ago. Chapter 29 stated that no freeman shall be taken or imprisoned or seized of his freehold or liberties or

"free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."

These statements and judgments echo down the years.

In 1615, a Chief Justice, Lord Coke, said:

"By the law of God, none ought to be imprisoned but with the cause expressed in the return of his imprisonment, as appeareth in the Acts of the Apostles."

I do not think that I would have expressed the matter quite like that, but this Parliament expressed it in the Petition of Right. In the fifth clause it set out the grievance that

"divers of your subjects have of late been imprisoned without any cause shewed; and when for their deliverance they were brought before your justices, by your majesty's Writs of Habeas Corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer; no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy-council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law."

In 1770, when a Mr. Stewart brought his slave, Somerset, to England, Lord Justice Mansfield said:

"Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free."

Then, 140 years later, in a judgment already referred to by my hon. Friend Mr. Cash—the Liversidge v. Anderson case, a wartime internment case—Lord Atkin said that

"one of the pillars of liberty is that in English law every imprisonment is prime facie unlawful and that it is for the person directing the imprisonment to justify his act."

That is what is at stake in the passage of this Bill, and I wish that more hon. Members were aware of the enormity of what the Government are inviting us to do this evening.

Why now? On Monday, the Leader of the House announced in the business statement that the Bill is necessary because the existing powers will expire on 14 March. When the Home Secretary made his statement on the following day, however, he said that he does not need all the powers in the Bill. Which is it? We know that my hon. Friends have proposed an alternative to enable the Government to keep those powers on the statute book.

The Bill rests on an assumption about the threat faced by the United Kingdom. In a previous incarnation, I was a soldier, working on the assumption that I could trust the integrity of the chain of command when I was given orders and that I could believe that those orders were beneficial and well intentioned. There is a difference between a soldier making those judgments and Parliament imposing the proper restrictions on the Executive, which is a test not necessarily for this Home Secretary but for any Home Secretary in any Executive. That is the standard that we should apply.

My experience in this House in the past seven and a half years leads me to believe that I cannot trust this Executive. I regret to say that I voted for the war in Iraq. I heard the final speech by Mr. Sedgemore, and I felt rebuked by the fact that I had allowed myself to make what I believe was a misjudgment on the basis of the case that the Prime Minister presented to the House and set out to the country in a television broadcast. I believed what he said about the nature of the threat to the United Kingdom, and I feel that I was wilfully misled.

In my eyes, the Prime Minister and the Executive no longer enjoy the benefit of the doubt.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. Will the hon. Gentleman reconsider and withdraw that remark about the Prime Minister?

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I will, of course, observe parliamentary convention and withdraw the remark.

The Government no longer enjoy the benefit of the doubt when they come to the House of the Commons or make their case to the wider public on the threat that the United Kingdom faces. That is one of the reasons why we urgently need a change of Prime Minister. If the Prime Minister has to come to this House again and say that the UK faces a threat that necessitates the UK going to war in order to deal with it, I for one will not give him the benefit of the doubt, which is a huge handicap for any Prime Minister to carry. That point applies directly to the measures that we are being invited to endorse this evening.

The Home Secretary laid out what he sees as the qualitatively different threat from al-Qaeda, which he says is different from anything that has gone before, and set out five of its elements—its ideology, its lack of restraint, the suicidal readiness of its followers, the different order of its capability and resources and its global reach. Some of those propositions are contestable. In terms of taking on the ideology of the French revolution, as it would have appeared to this Parliament in 1792 or 1793, or taking on the ideology of communism for most of the 20th century, the threat is not qualitatively different.

Yesterday, the Government published a paper to support the Bill, listing all the different actions taken by international terrorists. We must be slightly more sophisticated in assessing the threat, and it can be argued that we do not understand al-Qaeda terribly well. If we examine the individual examples of international terrorist attacks since 9/11, a number of different attacks can be explained because they relate to national struggles, such as the struggle between the Israelis and the Palestinians. Al-Qaeda is a predominantly Saudi organisation that is conducting a battle that concerns the control of Saudi Arabia, which is its primary objective. I do not know whether my instincts are correct, but I have a duty to examine the case that the Government are putting forward. In the modern era, the state, in taking on al-Qaeda, has a number of significant advantages that were not available to states taking on threats to the UK before.

The first is that since the war in Afghanistan—undertaken, quite properly, to ensure that al-Qaeda had no place to hide—there is no state within which al-Qaeda can hide. There is international uniformity on bearing down on al-Qaeda—it has no friends. Surveillance techniques have improved significantly in the past seven years, as has information technology, giving the Government enormous powers to gather information about people. Therefore, I believe that taking these powers now is counter-productive. The Bill is a victory for al-Qaeda, and al-Qaeda should not be given this victory.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central 7:31 pm, 23rd February 2005

Consideration of the Bill this afternoon has demonstrated profound weaknesses in this Parliament. We have been debating the central elements of our democracy and of our human and judicial rights: habeas corpus, the independence of the judiciary, and the separation of the powers that distinguish our political system between the judiciary, the legislature and the Executive. Apart from the heroic small group of hon. Members who have been here throughout and contributed to an outstanding debate, where have our colleagues been on these issues? If we are not sent to this Parliament to debate the future of these issues, for what are we sent here?

I fear that in spite of the excellent speech of my hon. Friend Mr. Allen we are going to fail a test in terms of the scrutiny that we have been sent here to apply to Government business. We have done so in the rigour of the debate and in the argument, but I fear that in a few minutes' time, those who were absent and have not heard this excellent debate are going to push the measure through. We will fail in our responsibility to be a check and a balance on the Executive on this most vital issue.

We are making bad law today, or are risking doing so. If so, we are failing as a Parliament. We have to start reasserting the right and the duty of this Parliament to carry out independent scrutiny of the Executive.

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

Another hon. Gentleman wants to get in and I want to give him a minute or two.

We should make a start here today. In particular, those hon. Members who have not been able to be in the Chamber today should read this very good debate and consider it over the weekend. I hope that on Monday, this Chamber will be full for the consideration of issues that are right at the centre of our democracy.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 7:33 pm, 23rd February 2005

This has been, without hesitation, the best debate in which I have had the privilege to take part since I came to this place, and the contribution of Mr. Fisher was one of the best in it so far.

I wish to make a few brief remarks about the operation of the schedule to the Bill, particularly as it pertains to Scotland. As I have made clear, this is a matter in which the Government seek to intrude upon the proper operation of the devolution settlement. The question of rules of court in Scotland is, quite properly, within the remit of the Scottish Parliament. I should like the Minister to tell us what consultation there has been with the Scottish Executive in relation to this, and what opportunity there will be not just for the Scottish Executive but for the Scottish Parliament to express a view. If—as would be constitutionally, or at least morally, proper, in my view—a Sewel motion were to be presented, I cannot envisage the circumstances in which my colleagues in the Scottish Parliament would be supportive of it. The way in which the measure seeks to graft alien principles such as the SIAC procedures on to the judicial process in Scotland is, in my view, absolutely unacceptable. The position of special advocates strikes at the heart of the lawyer-client relationship and leaves it impossible for any lawyer properly to execute their duties and ethics. It is a corrupt and corrupting system, it is bereft of integrity and I cannot countenance its ever being part of the Scottish legal system.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 7:35 pm, 23rd February 2005

This has indeed been an extraordinary debate, and I apologise to hon. Members if, because of the short time for the winding-up speeches, I cannot do justice to all the contributions that have been made.

A sensible place to start is with the three hon. Members—just three—who said that they would support the Government tonight. All three—Mr. Denham, Vera Baird and Mr. Dismore—made speeches which, I am bound to say having listened to them, presented some of the most cogent arguments as to why the legislation is fundamentally flawed.

The hon. Member for Hendon effectively said that the operation of control orders would be so unwieldy as to be almost unworkable. The right hon. Member for Southampton, Itchen made the important point that the decisions that will be taken to impose control orders will effectively block off the possibility of prosecution and reduce the likelihood of that taking place. The hon. and learned Member for Redcar raised a huge number of issues and I fully appreciate that her support was out of loyalty and conditional upon changes being brought about.

There were a large number of other contributions. They ranged from those that sought to look in great detail at some of the legal issues based on experience and knowledge—from my hon. Friend Mr. Shepherd, my right hon. and learned Friend Mr. Hogg and Mr. Marshall-Andrews—to the visceral. There is nothing wrong with visceral contributions on an issue that ought to affect us all viscerally.

Whatever else one can say, whether one is coming to the House to argue in favour of the Bill or against it, the enormity of what we are debating tonight cannot be overlooked. Nothing has worried me more in the course of the debate than the impression given by those on the Treasury Bench that while this is a difficult issue, all is for the best in the best of all possible worlds, and that subject to some tweaking and discussion on the detail, there really can be no objection, in view of the security situation, to suddenly embarking upon this piece of revolutionary legislation that places in the hands of the Executive power over the liberty of the subject. I could not disagree more with the glibness of that approach, and I very much regret it.

I say to the Minister for Crime Reduction, Policing and Community Safety, who I understand will reply to the debate, that she and the Government face a difficult task. One of the problems is that they are privy to lots of information that they cannot share with us, and I appreciate that. But equally, they are privy to lots of information that they can share with us. If the Minister, having been asked yesterday by a journalist on "Newsnight", I think seven times, whether she could explain when the Government decided that the memorandum on the back of the renewal notice that said that it was possible and legal to renew the existing powers was no longer their view, refuses to answer, how can we start out with a sensible debate on important issues?

For the avoidance of doubt, I will now tell the Home Secretary exactly where we stand. A huge number of issues relating to this legislation need to be looked at separately. First, the powers that the Bill creates should be exercised not by the Home Secretary but by a judge. I get the impression that the Government may be beginning to shift on that point. If they are, I wish to heaven that the Minister for Crime Reduction, Policing and Community Safety would state the logical and obvious: judges will have to make the decisions. However, the problem goes much further. It is not simply a matter of the decision, but of the entire process.

I must make a confession. When Conservative Members first informally discussed whether judges should make the decision, I felt an almost visceral—to use that word again—revulsion at the prospect of our asking judges to do that. We are not considering a judicial process at all. It is important that every Member who intends to vote at 8 pm understands that this is not and cannot be a judicial process.

In our constitution, judicial processes involve fairness and hearing the other side's arguments. That means a level playing field on which people can answer the serious allegations that are made against them before they are deprived of their freedom. However, whether a decision is made by judges, or by the Home Secretary and subsequently judicially reviewed, we will establish a system where none of those things apply. I accept that that is a problem for the Government and that they did not intend such a consequence. However, the proceedings will be secret and large quantities of the evidence will, of necessity, be concealed from the defendant, who will not be able to answer the allegations made against him or obtain full representation even through the mechanism of the special advocate procedure.

The Government have had more than a year to examine Lord Carlile's critique of the operation of the special advocate procedure. I appreciate that the Home Secretary has not been in his post for long and that he has inherited an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner. Nevertheless, a year on from Lord Carlile's critique, we have not received a Government response about the way in which the special advocate procedure can be improved. Such details must be addressed. They cannot simply be brushed under the carpet. If we embark on the course of action that the Government propose and introduce control orders, we must consider carefully every line of the Bill to understand the way in which we can improve it to the best of our ability.

Today, great play was made of questions, especially to my right hon. and learned Friend the Leader of the Opposition, such as, "Well, you're against control orders, aren't you?" Of course we should be against control orders. As a principle, control orders should be anathema to every democrat. However, that is not to say that there may not be occasions when we have to swallow the unpalatable. I have told the Home Secretary—I repeat it today—that, although control orders may be unpalatable, we may have to consider them. However, we must ask ourselves to what extent they serve a useful purpose.

An extraordinary state of affairs already pertains. The Home Secretary is rushing the Bill through because the Belmarsh deadline is imminent. However, when the deadline arrives, even with the control orders in place, the people will be released into the community. The Home Secretary has told us that he does not see the necessity of introducing house arrest provisions at the moment. I repeat that the Bill does not only provide for house arrest. The order could be, "Go and live in a cottage on Benbecula," or "Go and live in the Bicester asylum seekers' accommodation." That is possible under the powers that we are creating.

Do the control orders serve a purpose? If we do not intend to provide for house arrest now, why should we give the Home Secretary the power to do something, which would almost certainly breach the European convention on human rights on a challenge, and could not be maintained if it went back to the House of Lords? I believe that he has received legal advice to that effect. If that is the inevitable outcome, there is no point in our including it in the legislation now—and that leaves us with control orders which fall short of home detention.

As we go through the Bill on Monday, the Home Secretary will have to explain how each of the measures that he has spelt out line by line will have a useful function in preventing people from coming along and blowing themselves up either here or outside Parliament, or killing other people. At the moment, I still need some convincing. I can see how control orders might help a little, but the idea that they will prevent determined individuals who are suicide bombers from escaping the clutches of supervision and committing atrocities is one that I do not entirely accept. The point was well made today that surveillance might be more effective, although I am mindful of the fact that surveillance has its problems as well.

I want to give the Minister ample time to respond, because I think she has much to answer. Let me simply say this. The more the debate has gone on, the more we have asked ourselves whether the Bill is curable by amendment. That question may seem very relevant to many Members who are considering how they will vote at 8 pm. I accept that if Members think the Bill is indeed curable by amendment, that may be a reason for giving the Government the benefit of the doubt and, on Monday, going to work to see what can be done about it—but we need only look at the extent of the problems in the document to see that it is unamendable.

Is the Home Secretary seriously considering the possibility that the House should allow rules of court to be prepared by statutory instrument when those rules will be entirely unlike any others that have ever been put together in this country? As I said earlier, the measure requires a system of justice entirely different from any under which we currently operate. That in itself ought to give every hon. Member pause for thought before he or she goes into the Lobby to support the Bill.

What if the Bill is defeated? What if the amendment is carried? I encourage hon. Members to vote for it. We will help the Government if they come back with a proposal quickly. We told the Home Secretary that we would help to extend the existing powers for a short period. I have no desire to extend the existing powers. I accept that they are flawed, and the House of Lords has said that they do not comply with the Human Rights Act. Those are good reasons for getting rid of them. I am bound to say that if that is the small measure we must give the Government to enable them to go away and be sensible, and engage in a proper dialogue we will do it, but until we are given some sign from the Government, the best thing that hon. Members who are true to the oath that they took when they came here, and to our duties to our constituents, can do is to get rid of a Bill which is one of the most horrible things I have seen since I came to the House.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee 7:47 pm, 23rd February 2005

We have had a tremendous debate over the past four or five hours, certainly the most important in which I have taken part during my time here. I am grateful to Members of all parties for their contributions. I shall make a few preliminary remarks before dealing with as many comments as I can.

First, let me make it clear that, in my view, it is essential to the prevention of terrorism for us to remain above the party political fray. There is no issue more pressing, more salient or more difficult to resolve than the balance between the rights of the individual and the rights of wider society, and where to strike that balance is the very stuff of politics. Today's debate, however, is not theoretical. We have heard a lot of theory today, but the debate is real, it is here and it is now. All the evidence and the experience in Bali, Madrid, Iraq and elsewhere shows that terror cells do exist, they are active and they are plotting new atrocities.

So what should Government do? The theories of rights look pretty feeble in the face of the suicide bomber or the suicide hijacker. Edmund Burke and Tom Paine had no concept of the threat that we face from terrorist foes, so our deliberations must reflect the realities, not the theories. No Government faced with the scale of threat that we currently face could fail to act and still expect the support of the public. We must defend the freedoms of the overwhelming majority, who want to live in peace and security, and tackle the tiny minority who are prepared to kill themselves in order to destroy our way of life. I remain convinced that on this fundamental issue we have struck the right balance.

I will now try to deal with the issues that have been raised. I welcome the willingness of David Davis at least to engage with the legislation. He said that he does not particularly like the idea of control orders but he is willing to see whether the Bill can be improved. We certainly all share that aim.

The right hon. Gentleman raised specific issues and wanted other measures to be considered. He asked whether other offences such as acts preparatory to the commission of terrorism could be considered. We are actively looking at that. The Home Secretary said that we will look at that and possibly bring forward further legislation.

The right hon. Gentleman talked about intercept evidence. Many hon. Members have mentioned that again—I think that this is the third or fourth occasion in recent weeks that we have talked about it. He said that, since al-Qaeda knows about US intercept, how would our use of it mean that its practices were altered? Although simple forms of intercept such as wire and phone tapping may well be general knowledge, some of our more sophisticated capabilities, using intercept in different ways, are not necessarily known to those terrorists. If those capabilities become widely known, the terrorists will change the way in which they operate and our ability to disrupt them and to thwart their attacks will be severely compromised.

The right hon. Gentleman asked why it is suddenly necessary to impose these control orders. That issue has been raised more generally. It is necessary now not only because we have to respond to the Law Lords' judgment, but because, as we have done more and more operations to disrupt terrorists, we have found that the threat from British citizens has been developing in a way that was not clear to us immediately following 9/11. Therefore, there is a need now to have powers that respond to the threat not just from foreign nationals but from British citizens.

I say a genuine thank you to Mr. Oaten for his constructive approach to the problem. He is right to say that there is common ground between us and he laid that out in a genuine way. We need to have a regime in place by 14 March to protect the public. He does not want the part 4 powers to be renewed. He wants to see whether we can put something in place. I agree entirely that we need to do more on deportation, getting memorandums of understanding with those third countries, provided that they are robust in human rights terms, to see whether we can return people to where they have come from.

The hon. Gentleman said that control orders could be a useful tool in the variety of mechanisms available to us, and he has generously acknowledged the considerable movement we have made in having a high level of judicial scrutiny, involvement and oversight in the process. However, he is also right to say that there is disagreement between us. There remains the issue of the point at which the judiciary get involved. My hon. and learned Friend Vera Baird said that there was perhaps tuppence between us in terms of when the judiciary should get involved. The Home Secretary has said that we will consider the matter further. No doubt we will debate it in detail on Monday in Committee. We are happy to do that but that is an area where there remains disagreement between us.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I thank the Home Secretary for his commitment to look again at the issue of the primacy of the judiciary in this process. I hope that on Monday we will have a full and successful debate, so a vote for Second Reading will mean a vote for Third Reading. I hope that we do not have to vote against Third Reading because we have not made any progress.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I can give my hon. Friend the assurance that we will continue to engage in detail on this issue when we look at the Bill line by line. We certainly will be doing that on Monday.

The hon. Member for Winchester raised issues about the standard of proof, reasonable suspicion and the balance of probabilities. Another issue he raised was about the fact that there are already police powers to hold people in detention for 14 days. He asked why we should not use those police powers, rather than seeking a seven-day period for the control order. I think that he acknowledged that the current police powers relate to an ongoing investigation and therefore may not be appropriate, but I am sure that we can explore that in greater detail next week, too.

I was grateful to my hon. Friend Mr. Kidney, who raised the possibility of exploring the idea of an interim application. We went on to discuss whether such an application would be ex parte in those circumstances. Those are the sort of detailed matters that we can genuinely discuss on Monday.

I was saddened by the contribution of my hon. Friend Mr. Sedgemore. I acknowledge his strength of feeling, but if that was his last speech in the House, it is a shame that he could not have spoken about a more constructive subject and offered something more positive. I really felt that his contribution was very sad indeed—[Interruption.]

I was grateful for the contribution of my right hon. Friend Mr. Denham, who adopted a very practical approach to the issues. He said that there was too much theoretical legalistic language in tonight's debate and that we needed to get the balance right. He raised some serious issues about what happens when a control order is decided on. He asked whether a decision is taken then about prosecution and on whose advice. I can tell him that every single time that a control order is considered, advice will be sought from the Crown Prosecution Service, as it is now, about whether a prosecution is possible. Prosecution is always our preferred option.

Several hon. Members asked about sending the papers to the Director of Public Prosecutions. I can confirm that the CPS is engaged, but we will look to see whether we can do anything further on this matter. I want to tell the House that a decision to make a control order does not mean that investigation stops. Indeed, investigations have continued into some of the current detainees and further charges have been brought. It is not the case that, once an order is made, all the work on investigation and prosecution comes to a full stop.

Mr. Lilley questioned the advice of the security services and said that it was the job of Ministers to probe, test and evaluate that advice and reach their own decisions. I can give him the assurance that that is exactly what Ministers do: we receive the advice of the security services, but then test it in order to reach our own viewpoint. He said that we should not pass off responsibility to officials, and we are certainly not doing so. Interestingly, the same argument could be applied to passing off our responsibility to the judiciary. That was one of the matters raised by Mr. Trimble, but I can reassure him about that.

My right hon. Friend Mr. Smith, who unfortunately cannot be with us now, did not accept the need for control orders and argued that it was the job of the Government to test whether such powers were necessary. He served on the Newton committee, for which I am grateful, and he also raised the matter of using intercept evidence. I remind the House again that much of the intercept evidence used in other countries is the product of law enforcement agencies. They do not use intelligence product to anything like the extent that we do in this country. I have a genuine fear that, if intelligence product were used, we would see the sources drying up significantly in the future.

As to the contribution of Mr. Johnson, does he accept that there is a serious threat, which I thought was fairly common ground? Does he accept that some people cannot be prosecuted through a conventional legal system? Does he accept that detention in prison under part 4 is not sustainable in the light of the Law Lords' judgment? Frankly, in those circumstances, what would he do? We received no answer to that question whatever.

My right hon. Friend Mr. Dobson made a short and powerful speech in which he said that he would support control orders up to derogation. I hope to persuade him of the need for the extra powers in our later line-by-line examination of the Bill. My hon. Friend Mr. Allen, who has a proud record on constitutional issues, asked for further change, but recognised that extraordinary times need extraordinary measures. I was grateful to him for that.

Malcolm Bruce asked about European issues and invited us to take serious note of the tone of the debate. I can certainly give him the assurance that we will do so. My hon. Friend Barbara Follett made a powerful and moving speech, in which she recounted her personal experience. She said that she could not support the Government on control orders this evening. I hope that she will remain engaged in the debate over the next few days, as she raised some serious and important points.

I am grateful to my hon. Friend Mr. Dismore and to all those hon. Members who offered support. I end by placing on record my appreciation of the work of the security services. They have helped protect this country over the past three and a half years, but have no forum in which they can explain themselves. We owe them a huge debt of gratitude for keeping us safe.

It being Eight o'clock, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the amendment be made.

The House divided: Ayes 216, Noes 316.

Division number 93 Prevention of Terrorism Bill — Second Reading — Amendment

Aye: 214 MPs

No: 315 MPs

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Absent: 125 MPs

Abstained: 1 MP

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Question accordingly negatived.

Main Question put forthwith, pursuant to Standing Order No. 62 (Amendment on Second or Third Reading):—

The House divided: Ayes 309, Noes 233.

Division number 94 Prevention of Terrorism Bill — Second Reading

Aye: 309 MPs

No: 233 MPs

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Absent: 113 MPs

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Question accordingly agreed to.

Bill accordingly read a Second time.