With this it will be convenient to discuss the following:
Amendment No. 180, in page 1, line 9, at end insert—
'(1A) An application for a control order may be made with or without notice to the individual against whom it is proposed to be made.
(1B) On hearing an application for a control order, the court may—
(a) grant the control order, with or without modifications;
(b) dismiss the application; or
(c) adjourn the application to a further hearing on notice to the individual concerned.
(1C) A control order shall provide a period for further review by the court unless the court is satisfied that the individual against whom it is made has had a full opportunity to contest the making of the order.'.
Amendment No. 5, in page 1, line 11, after 'the', insert
'court on the application of the'.
Amendment No. 59, in page 1, line 11, leave out 'Secretary of State' and insert 'court'.
Amendment No. 60, in page 1, line 13, leave out from first 'activity' to end of line 14.
Amendment No. 6, in clause 2, page 3, line 23, after 'The', insert
'court on the application of the'.
Amendment No. 1, in clause 2, page 3, line 23, leave out 'make' and insert 'apply for'.
Amendment No. 64, in clause 2, page 3, line 23, leave out 'make' and insert
'apply to the court for'.
Amendment No. 7, in clause 2, page 3, line 26, leave out 'he' and insert 'it'.
Amendment No. 8, in clause 2, page 3, line 28, leave out 'he' and insert 'it'.
Amendment No. 66, in clause 2, page 3, line 35, leave out from beginning to end of line 34 on page 4.
Amendment No. 184, in clause 2, page 3, line 35, leave out subsections (2) to (7).
Amendment No. 9, in clause 2, page 3, line 35, after 'the', insert
'court on the application of the'.
Amendment No. 2, in clause 2, page 3, line 35, leave out 'makes' and insert 'applies for'.
Amendment No. 3, in clause 2, page 3, line 36, leave out from end of line to end of line 25 on page 4 and insert—
'(a) the court must consider whether the matters relied on by the Secretary of State to justify applying for the order were capable (if not disproved) of constituting reasonable grounds for it to make an interim control order.
(b) in the event of the court making an interim control order it must give directions for the carrying out of a hearing of the court to consider making a control order.
(c) on a hearing by the court under subsection (2) (b) the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State—
(i) in making his decision to apply for the order; and
(ii) in making his decisions to apply for the obligations imposed by the order; and the court must make its own determination on the balance of probabilities on each of those matters.'.
Amendment No. 10, in clause 2, page 3, line 37, leave out subparagraph (a) and insert—
'(a) the controlled person may appeal within 14 days—
(i) in England and Wales or in Northern Ireland to the Court of Appeal, or
(ii) in Scotland to the Inner House of the Court of Session;
(aa) the appeal must be considered within 7 days of the application; and'.
Amendment No. 134, in clause 2, page 3, line 39, leave out from 'whether' to end of line 42 and insert—
'the Secretary of State has shown on the balance of probabilities—
(i) that the person is an individual who is or has been involved in terrorism-related activity, there is a designated derogation within subsection (1) (c) and the obligation is within subsection (1)(d); and
(ii) that the imposition of the obligation is necessary for purposes connected with protecting members of the public from risks arising out of, or associated with, a particular public emergency.'.
Amendment No. 164, in clause 2, page 3, line 44, leave out '7' and insert '3'.
Amendment No. 136, in clause 2, page 3, line 45, at end insert—
'(3A) The controlled person has a right to be heard on a reference under subsection (2)(a).'.
Amendment No. 135, in clause 2, page 4, leave out lines 1 to 7 and insert—
'(a) if not satisfied that the Secretary of State has proved the matters in subsection (2)(b)(i), must quash the order;
(b) if satisfied that the matters in subsection (2)(b)(i) have been proved but not satisfied that the matters in subsection (2)(b)(ii) have been proved, must quash the derogating obligation imposed by the order.'.
Amendment No. 11, in clause 2, page 4, line 10, leave out 'by the court' and insert 'of the appeal'.
Amendment No. 12, in clause 2, page 4, line 11, after second 'the', insert
'court on the application of the'.
Amendment No. 13, in clause 2, page 4, line 21, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 137, in clause 2, page 4, line 22, at end insert—
'(e) power to award damages to the controlled person.'.
Amendment No. 139, in clause 2, page 4, line 22, at end insert—
'(e) power to award to the controlled person their costs of the proceedings.'.
Amendment No. 14, in clause 3, page 4, line 43, after 'The', insert
'court on the application of the'.
Amendment No. 70, in clause 3, page 4, line 43, leave out from 'The' to 'control' and insert
'The court may renew a'.
Amendment No. 185, in clause 3, page 4, line 43, leave out 'Secretary of State' and insert 'court'.
Amendment No. 15, in clause 3, page 4, line 44, leave out 'he' and insert 'it'.
Amendment No. 16, in clause 3, page 5, line 7, after first 'the', insert
'court on the application of the'.
Amendment No. 73, in clause 3, page 5, line 7, leave out 'Secretary of State' and insert 'court'.
Amendment No. 17, in clause 4, page 5, line 19, after 'the', insert
'court on the application of the'.
Amendment No. 187, in clause 4, page 5, line 21, leave out 'make' and insert
'apply to the court for'.
Amendment No. 18, in clause 4, page 5, line 30, after second 'the', insert
'court on the application of the'.
Amendment No. 188, in clause 4, page 5, line 31, leave out 'impose' and insert 'apply for'.
Amendment No. 20, in clause 4, page 5, line 33, after 'the', insert
'court on the application of the'.
Amendment No. 21, in clause 4, page 5, line 35, after 'the', insert
'court on the application of the'.
Amendment No. 23, in clause 4, page 6, line 4, after 'the', insert
'court on the application of the'.
Amendment No. 24, in clause 4, page 6, line 4, leave out 'of his'.
Amendment No. 25, in clause 4, page 6, leave out lines 8 and 9.
Amendment No. 193, in clause 5, page 6, line 15, leave out 'make' and insert 'apply for'.
Amendment No. 26, in clause 5, page 6, line 16, leave out 'Secretary of State' and insert 'court'.
Amendment No. 76, in clause 5, page 6, leave out line 19.
Amendment No. 27, in clause 5, page 6, line 19, leave out 'Secretary of State' and insert 'court'.
Amendment No. 77, in clause 5, page 6, line 20, leave out subsections (2) and (3) and insert—
'(2) The Secretary of State may make an application to the court at any time to—
(a) revoke a control order;
(b) relax or remove an obligation imposed by such an order;
(c) modify the obligations imposed by such an order.'.
Amendment No. 28, in clause 5, page 6, line 20, after 'The', insert
'court on the application of the'.
Amendment No. 219, in clause 5, page 6, line 20, leave out from 'The' to end of line 21 and insert
'court may on application by the Secretary of State'.
Amendment No. 191, in clause 5, page 6, line 20, after 'State', insert 'or the court'.
Amendment No. 29, in clause 5, page 6, line 27, leave out 'he' and insert 'it'.
Amendment No. 30, in clause 5, page 6, line 30, after 'The', insert
'court on the application of the'.
Amendment No. 192, in clause 5, page 6, line 30, after 'State', insert 'or the court'.
Amendment No. 31, in clause 5, page 6, line 33, leave out 'Secretary of State' and insert 'court'.
Amendment No. 32, in clause 5, page 6, line 34, leave out 'of his'.
Amendment No. 33, in clause 5, page 7, line 2, after 'the', insert
'court on the application of the'.
Amendment No. 224, in clause 5, page 7, line 7, leave out subsection (7).
Amendment No. 34, in clause 5, page 7, line 7, after 'the', insert
'court on the application of the'.
Amendment No. 79, in clause 5, page 7, line 7, leave out 'Secretary of State' and insert 'court'.
Amendment No. 194, in clause 5, page 7, line 7, after 'State', insert 'or the court'.
Amendment No. 35, in clause 5, page 7, line 8, leave out 'he' and insert 'it'.
Amendment No. 80, in clause 5, page 7, line 8, leave out 'he' and insert 'the Secretary of State'.
Amendment No. 225, in clause 5, page 7, line 10, leave out subsection (8).
Amendment No. 36, in clause 5, page 7, line 12, leave out 'Secretary of State' and insert 'court'.
Amendment No. 37, in clause 7, page 8, line 40, leave out 'Secretary of State' and insert 'court'.
Amendment No. 38, in clause 7, page 9, line 1, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 39, in clause 7, page 9, line 13, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 40, in clause 7, page 9, line 25, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 41, in clause 7, page 9, line 27, leave out 'his decision' and insert
'the decision of the court of first instance'.
Amendment No. 42, in clause 7, page 9, line 32, leave out 'his decision' and insert
'the decision of the court of first instance'.
Amendment No. 43, in clause 7, page 9, line 37, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 44, in clause 7, page 9, line 42, at end add—
'(10) An appeal under this section shall be made—
(a) in England and Wales or in Northern Ireland to the Court of Appeal, or
(b) in Scotland to the Inner House of the Court of Session.'.
Amendment No. 45, in clause 8, page 10, line 1, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 46, in clause 8, page 10, line 5, leave out
'by the Secretary of State' and insert
'of the court of first instance'.
Amendment No. 47, in clause 8, page 10, line 8, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 48, in clause 8, page 10, line 13, leave out 'Secretary of State's decision' and insert
'decision of the court of first instance'.
Amendment No. 49, in clause 8, page 10, line 16, leave out 'Secretary of State' and insert 'court of first instance'.
Amendment No. 51, in clause 9, page 10, line 19, leave out subsection (1).
Amendment No. 53, in clause 9, page 11, line 1, after 'the', insert
'court on the application of the'.
Amendment No. 87, in clause 9, page 11, line 1, leave out 'Secretary of State' and insert 'court'.
Amendment No. 203, in clause 9, page 11, line 4, leave out paragraphs (b) and (c).
Amendment No. 230, in clause 11, page 12, line 41, leave out
'his exercise of the control order powers' and insert
'the use of control orders'.
Amendment No. 89, in clause 11, page 13, line 13, leave out
'make, renew, modify and revoke' and insert
'make application to the court for the making, renewing, modification and revoking of'.
Amendment No. 216, in clause 12, page 13, leave out lines 37 to 46.
Amendment No. 90, in clause 12, page 14, line 37, leave out subsection (3).
New clause 1—Special court in respect of control orders—
'(1) There shall be a special court ("the court") to be known as the Court of Terrorism Control.
(2) The Court shall consist of six members who shall be judges of the High Court of England and Wales or of the Court of Session or of the High Court of Northern Ireland and of whom three members shall constitute a quorum for the purpose of hearing an application.
(3) The court shall have power to make its own rules and to determine its own procedure.
(4) The functions of the court shall be to make control orders pursuant to section 1 of this Act.'.
New clause 3—Power of court to make determination—
'The powers of the court in making the determinations under sections 1 and 2 are confined to—
(a) power to grant the application;
(b) power to refuse the application;
(c) power to refuse to make one or more obligations set out in the application.'.
New clause 6—Power to make control orders—
'(1) An application for an order under this section may be made by the Secretary of State if he is satisfied that the following conditions are fulfilled with respect to any person, namely:
(a) that the person is or has been involved in terrorism-related activity;
(b) that, having regard to all the evidence that would be admissible in criminal proceedings, there is no realistic prospect for conviction of that person for any criminal offence relating to their involvement in such activity; and
(c) that such an order is necessary, for the purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on the individual.
(2) The Secretary of State shall not make such an application without consulting the Director of Public Prosecutions.
(3) Such an application shall be made to:
(a) the High Court in England and Wales in respect of persons resident in England or Wales,
(b) the Outer House of the Court of Session in respect of persons resident in Scotland; and
(c) the High Court in Northern Ireland in respect of persons resident in Northern Ireland.
(4) If, on such an application, it is proved that the conditions set out in subsection 1(1) are fulfilled, the court may make an order under this section (a "control order") imposing any of the obligations set out in subsection 1(8).
(5) For the purpose of determining whether the condition mentioned in subsection 1(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
(6) In determining whether the condition mentioned in subsection (1)(a) is fulfilled, the court must apply the criminal standard of proof.
(7) The obligations that may be imposed on a defendant under this section are limited to the following:
(a) a prohibition or restriction on his possession or use of specified articles or substances;
(b) a restriction on his use of specified services or specified facilities, or on his carrying on specified activities;
(c) a restriction on his association or communications with specified persons or with other persons generally;
(d) a prohibition on his being at specified places or within a specified area at specified times or on specified days; and
(e) a requirement on him to report to a specified person at specified times and places.
(8) The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply:
(a) that the obligation is necessary for the purposes connected with protecting members of the public from the risk of terrorism;
(b) that the same purposes could not be achieved by less restrictive means; and
(c) that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(9) The Secretary of State or the defendant may apply to the court which made the control order for it to be varied or discharged by further order.
(10) For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following:
(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which knowingly facilitates the commission, preparation or instigation of such acts, or which is intended to do so; and
(c) conduct which knowingly gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so.
(11) Evidence established to have been obtained under torture shall not be admitted in any proceedings.'.
I rise with some trepidation to support the amendment, the 47 others in the group and new clause 1, which all relate to decisions made by a court through the judicial process rather than by the Secretary of State as the person in the Executive arm of Government responsible for such matters. I am keeping in mind both the letter that has been distributed to us, as it is bound to have some bearing on the debate, and the fact that when we discussed these issues during the passage of the Anti-terrorism, Crime and Security Act 2001, I voted for procedures that have since been declared illegal. I feel, therefore, that I need to explain—although not at length—why I have come to a different opinion.
In the appalling aftermath of the terrible twin towers incident in New York, there seemed a pressing and urgent need to do something significant to cope with what seemed an immediate danger. Some people may say that because nothing has happened in the United Kingdom over the past few years I am getting complacent, but that is not the case. I am moving the amendments in the context of the fact that it appears that our intelligence services are doing a good job in maintaining their monitoring of the potential terrorist threat. I wish them well and applaud all that they are doing in that regard. Obviously I do not want any form of terrorist activity in the UK to come to a terrible successful conclusion. However, I am also aware that the terrorist threat is no longer a one-off, but will be a significant experience for perhaps months or years. While the middle east remains a festering sore on the human political and social condition, there is a danger that the threat of terrorism will continue. In other words, it could be around for a long time. So issues relating to putting suspected terrorists under some form of house arrest imprisonment or other non-derogating actions to control the potential terrorist threat—
I do not know whether I was fortunate or unfortunate in being the first Member called to speak, but my amendments cover both derogating and non- derogating control orders. It is important that the whole process be subject to a legal decision when the Secretary of State makes an application for action to be taken.
Has the hon. Gentleman had the opportunity to read the letter from the Home Secretary on these matters? Does he feel that the letter answers the concerns set out in his amendment? My reading of the amendment is that it goes wider than the letter, which relates only to derogating orders. Will the amendment tackle the difficulty, admitted on Second Reading last week, that a combination of non-derogating control orders could amount to a deprivation of liberty and thereby become an issue that should go before the courts or invoke the need to derogate from the convention on human rights? Does he feel that the amendment overcomes the problems that I still have, as perhaps does he, with the letter from the Home Secretary?
On the basis of what is in the Home Secretary's letter, I am still waiting for an explanation and a filling out of exactly what is meant in terms of the non-derogating orders. My own position is that there should be a proper legal process in both cases because that would cover the point about some of the non-derogating issues, perhaps when put together, really being derogating ones.
The hon. Gentleman has just made the point that there should be a proper legal process. Does he understand that he is only taking a small step by substituting the judge for the Home Secretary? The real problem is that even if the judge makes the decision, that is a not a proper legal process, because the detained person does not know the evidence, does not know the identity of the informer, is not properly represented, cannot see the evidence and cannot ask questions of counsel.
If the right hon. and learned Gentleman has read new clause 1, which I tabled, he may see in that perhaps an imperfect attempt to try to deal with some of the issues that he raises. In new clause 1, I propose the setting up of a court of terrorism control, where between three and six judges could meet to consider what the Home Secretary has said and decide exactly how to proceed in handling the evidence. I admit that I am a layman, not a lawyer, but I believe that that would give the court the opportunity to decide how to handle the evidence and whether it needed the clarifications to which the right hon. and learned Gentleman refers. I will come back to that later on.
As someone who broadly supports what the Government intend to do, does my hon. Friend agree that although the Home Secretary has undoubtedly made a move in view of the concern expressed last week so far as derogating orders are concerned—they will have to be initiated by a judge, which is certainly a step forward—it is unfortunate, however, that there has been no progress at all on non-derogating control orders, which relate to issues other than house arrest, as he knows, such as tagging and the rest of it? The Home Secretary's letter simply says that the person involved can apply very quickly to the courts. Surely a person should be subject to a control order only as a result of court action. That is a very important point. Does my hon. Friend not agree?
My hon. Friend will be aware that I am speaking now because amendment No. 4 deals with that very point. I look forward to an expansion in what the Home Secretary has to say about the matter. Given that he has already conceded that on derogating orders the judge's role should be primary, perhaps there is room for the debate to develop on that point in a similar fashion.
In view of the fact that the Home Secretary has indicated that he would be happy to speak at an early stage, and as we are in Committee and the hon. Gentleman can take part in the debate again, would it not be a good idea if we heard from the Home Secretary very soon?
That is a very good idea, and I am bearing it in mind. Of course, hon. Members have made a couple of interventions on my speech, which has slowed me down, but in the light of the letter and the conversations that I have had this morning on some of these issues, I certainly do not intend to make the speech that I was planning last night—although I believe that it is necessary at least to refer to some of those matters before I sit down.
The first issue is the House of Lords judgment that, of course, precipitated the need for this debate and these changes in the law. The one simple point that I want to make about that judgment is that it has two significant parts, the first of which relates to the discrimination between nationals and non-nationals in the United Kingdom, and the second of which is that the Law Lords felt that the response was not proportionate to the threat that we face from terrorism. Of course, we could debate that at some length, but I feel that, all in all, the decision not to use the courts in the first place was wrong. Therefore, the Law Lords were right to say that the provision to set aside the courts as the first place to take such matters was disproportionate. That is why I tabled the amendment.
Since then, we had over the weekend the report from the Joint Committee on Human Rights. It makes some clear recommendations. Without mentioning each one in detail, I wish to refer to paragraphs 11, 12 and 13 that refer, in particular, to the
"lack of prior judicial involvement in orders depriving of liberty".
They make it absolutely clear and without any doubt whatever that the law as we have it and as it is proposed under the Bill contravene—
I was just about to point out that the law both as it is and as it is proposed contravenes the European convention on human rights. I know that the hon. Gentleman is very keen to uphold that.
The hon. Gentleman refers to the report of the Joint Committee on Human Rights that, understandably from its point of view, would enhance and entrench the role of the Human Rights Act 1998. However, does he know that Lord Hoffmann, in a postscript to the Rehman case, made the position clear only a couple of years ago? He said:
"It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process."
He then adds that those persons are those
"whom the people have elected and whom they can remove."
In other words, Lord Hoffmann clearly contradicts the basis upon which the Joint Committee is proceeding.
The hon. Gentleman points to only one case in which there is a difference of opinion. I would have thought that the Law Lords and the Joint Committee—which, I believe, is a parliamentary Committee—have made judgments with which Lord Hoffmann could be happy. The Joint Committee has made it very clear that the derogating orders that would deprive people of their liberty disregard the convention and our own law. Therefore, they would be illegal.
On the limited judicial control of the non-derogating control orders, the Joint Committee has a less strident opinion. Nevertheless, it flags up a sufficient warning that it believes that, even under the non-derogating orders, there would be a case to be taken and the Government would be likely to be found to be acting illegally under our legislation with regard to the European convention on human rights. That is why I hope that later in the debate, it will become clear how the Secretary of State will handle the derogating and non-derogating orders. I hope that in both cases, there is sufficient clarity that primary decisions will lie with the courts.
Before I conclude, I want to refer briefly to new clause 1, which, in a sense, is a probing effort to try to consider how we can handle the issue of the sensitive material that has been gathered and has led the Secretary of State to believe that someone should be deprived of his liberty in an extreme case, or have some sort of control order placed upon him. There should be some way in which a suspect's case could be properly considered and he should have the opportunity to mount a defence.
One of the significant things that we must bear in mind was referred to by an article in The Guardian this morning—I hope that my right hon. Friend the Secretary of State will not see that as a weakness in my argument. The article was written by Clare Dyer, the newspaper's legal correspondent. She pointed out that the Tipton three, who were held at Guantanamo Bay and released without charge after two years, were detained because the Americans believed that they had a video showing them with Osama bin Laden in 2000. However, if the three men had known that at an early stage, they would have been able to prove that one of them was working in an electrical store in the United Kingdom at the time and the other two were in trouble with the police. The situation could thus have been cleared up quickly.
There must be a process by which evidence can be considered and suspects can have the opportunity to clear their names. I envisage a court of terrorism control with between three and six judges who could consider evidence and decide, on their own initiative, the procedures that would be needed to allow the suspects to defend themselves. They could then decide whether the application made by the Secretary of State was correct.
As the Bill stands, the Secretary of State will be the prosecutor, judge and jury in the first instance for both types of order. We already know that thanks to the pressure from the House of Commons, the Home Secretary is now minded to make it absolutely clear that a judge will make decisions in cases when people would be deprived of liberty, and that there will be a different and stronger procedure for non-derogating orders—although as a layman, I am not entirely clear about how that would work. When the Secretary of State speaks, it would be helpful if he would let me know that judges will have a primary role with regard to both types of order, because I would then be able to withdraw my amendment. I am currently waiting in hopeful expectation that he will be able to agree in principle with the points made in my amendments to clause 1 and in new clause 1.
May I first apologise to hon. Members and you, Sir Michael, if I erred by writing to the party leaders and putting the letter in the Library of the House? I took that course of action for a simple reason: I felt that I had reached a set of preliminary conclusions following the views expressed in the House last week and subsequent conversations. I thought that it would help today's discussion if I tried to set out clearly where we were, rather than not revealing that until a later stage of the debate. If I have created confusion and caused a problem with the consideration of the Bill, I apologise to the Committee and you, Sir Michael.
I thank the Home Secretary for his apology. The letter seems to imply that he has decided clearly how he wishes to amend the Bill, but the obvious complaint is that he has decided not to put the relevant amendments before the Committee for discussion today. Of course they will need drafting, but I cannot imagine that that would take days and days with a little late-night work. Will he explain why he has not put the amendments before the Committee? Why could he not do so this evening, if we were prepared to continue after 10 pm? Why could we not consider them on Wednesday, because if the official Opposition were prepared to give up their Supply day, the Leader of the House could make the necessary business statement to allow us to do that. Given the complexity of the matter, it is unsatisfactory for the Home Secretary to outline what he has decided to do—the parliamentary draftsman have probably already drafted the measures—yet for us not to be able to read the amendments so that we can have a serious, sensible and detailed discussion about them of the kind that should take place in the Committee, if it is to have a scrutinising function.
There are two reasons why I have taken the course of action that I have taken. The first is that I finally resolved this morning what to write in the letter, which is why it came over to the House at about half-past 12. It is a preliminary set of conclusions, which I thought I should make available before we discussed the situation further. The fact is that we do not have the detailed amendments in draft to put before the Committee today, and they will not be available today.
The second reason is that I want, and I think the Committee should want, to hear the debate that we are about to have so that we are clear about the place from which a wide range of Members argue their particular points of view. That is why I have taken this course of action. As I said, the alternative open to me was to say nothing other than at the end of the discussion on the various groups of amendments. I thought that that would not be the right way to proceed.
Does the right hon. Gentleman understand the problem? If, as appears to be the case, he tables the amendments in the other place, the House will have barely any opportunity to consider the detail because they will come back for discussion under a tight timetable motion. The truth is that hon. Members will never have the opportunity properly to discuss the amendments that will lie at the heart of the new Bill.
As I understand it, the other place will consider the Bill tomorrow. That means that the Home Secretary's proposed amendments must be in an advanced stage of drafting. He has had Wednesday offered for an extension of the debate. If he reflects on the primacy of this Chamber, surely he can accede to us the right to discuss that which will go before the Lords by utilising the Opposition time now made available. That really would be helpful and perhaps ease the Bill's passage.
While much that is in the Home Secretary's letter to his opposite number is to be welcomed, especially his commitment to put the issue of effective house arrest before a judge, does he recognise that his failure to accept the amendments tabled by my right hon. Friend Mr. Cook and others puts many Labour Members in a difficult position, because we are extremely reluctant to vote for an unamended Bill?
The procedure is important because it is the only instrument by which the Opposition can debate a Bill. By advancing in a letter an amendment that is not part of the marshalled amendments and was not taken into account when the six-hour limit was set, the Home Secretary places the Committee in a difficult position. I do not deny him the good motive that he wants the House of Commons to know what he is thinking, but what he is thinking and writing about is not before the Committee as part of the Bill or the amendments. It is just a piece of paper that contains his thoughts. We in the Opposition—what he does in the Government, only he can speak for—can only discuss what is in the Bill and what has been chosen to be discussed on the marshalled list of amendments.
We have six hours in which to discuss a page and a half of amendments on the selection list. The amendment set out in the letter is the latest addition, but it is unofficial. Of course, we listen to the Home Secretary with the greatest of care—he is a Secretary of State—but we are supposed to take it on good faith that he will give us adequate time when the Bill returns from the House of Lords. The history of the Government suggests that we will get one, two or three hours maximum to discuss Lords amendments. If he thinks that that is adequate and a proper way to discuss the Bill, I am afraid that he will lose our support.
Is not the nub of the matter what appears in the top paragraph of page 2 of the letter, which says:
"(with a special advocate representing the interests of the subject of the order in closed sessions)"?
In other words, the subject of the order will not know the evidence against them and will not have a proper opportunity to rebut it. Therefore, whatever tinkering there might be with the role of the judge, there is no real protection for the individual who is imprisoned.
That intervention helps me to make progress on putting the substance of what I will suggest before the Committee for hon. Members to consider.
After my apology to hon. Members, I wanted to acknowledge the importance that my hon. Friend the Member for Bridgend gave to the 9/11 events and what we are dealing with, and he was right to do so. Only today we have had the case of Saajid Badat, who has admitted plotting to blow up a plane and who the intelligence services believe was in league with Richard Reid—both, by the way, British citizens. That proves two things.
Precisely; that is my point. First, there is a real threat with which we have to deal, and we must never forget that point in all our discussion. Secondly, the preferred route of this Government, as with previous Governments, is that of prosecution and the courts in precisely the way indicated. That is the route that we will choose. As I shall go on to say, we seek to strengthen in the legislation the commitment to go down the prosecution route, for the reason argued by Members throughout the House.
No, I shall make a bit of progress before I give way again.
On Second Reading, I undertook to look carefully at the cases that had been made to achieve judicial involvement in the order-making process at the earliest possible stage, in line with the considerations put forward by many in the House. I stated that my first consideration would be the security of the nation, and I retain the view that the proposals in the Bill are the best ones. I am strengthened in that view by some senior judicial opinion. I cite, for example, Lord Donaldson—a former Master of the Rolls and one of the highest people in the country on the civil side of the law—who said on the radio this morning:
"I don't agree with the idea of involving the judges at the initial stage. It's never been the case. It would involve them forming a view and expressing a view as to the correctness of the order before they'd even heard the person who was affected by it. Furthermore, there would be a change in people's perception of what a judge was."
"A judge is the referee or umpire; he's not a player."
I state that to indicate that there are serious and senior judges in this country who are of the view that it would be better to remain as we are proposing in the Bill rather than to make the changes that I propose. I nevertheless take the view that it is right to make the changes that I suggest for reasons which I shall state.
That is not the interpretation that I put on Lord Donaldson's words. On the contrary, the interpretation that I place on them is that, as we said on Second Reading, the judiciary would be most reluctant to be sullied with a process involving them that falls short of proper judicial procedure. The ball is in the Government's court to provide a process that comes as close to proper judicial procedure as possible. It is possible to do that if the Home Secretary allows for a proper procedure under which the judge can hear the other side before determining any order.
I was not seeking to interpret Lord Donaldson; I was quoting him exactly—I used his precise words. The hon. Gentleman does not understand the critical point, which must be understood, that the Bill covers territory in which we cannot prosecute successfully, and that some people threaten the security of the country through terrorism. That is the territory, and I share the view, which is held on both sides of the House, that we should minimise the number of people who are in it.
That is why I say, let us strengthen the paths to prosecution, and that is also why I say, let us bring cases through the courts—earlier, I mentioned the case of Mr. Badat—where we can do so. However, I also assert that we are not in that position in a very small number of cases, where the issue is whether we simply allow such people to operate unchallenged or whether we challenge them. Lord Donaldson is saying that judges are not best involved in that small area, which is his argument, not mine.
Is not the key issue, on which we touched on Second Reading, why the Home Secretary finds it necessary to take a power where he can be woken at 2 am to direct immediately that a person should be subject to a control order, when, as we have discussed before, if the police believe that a person poses an imminent threat, they already have 14-day detention powers under terrorism legislation, which is ample time in which to bring an inter partes hearing before a judge to determine whether an order should be made?
I accept that point, which is why I have set out the proposals for change in my letter. I believe it desirable that we achieve a position in which legislation on the statute book is supported by as broad a range of opinion in this House as we can possibly achieve. I cited Lord Donaldson, who, I believe, is not the only senior judge to take that view, because we are making a change that the judges themselves may not believe to be the best course of action from their point of view.
The Home Secretary has just said that he needs to deal with very few people, which gives the game away on the need to push through the powers with such haste. In his letter to my right hon. Friend David Davis, he said:
"There is a further area where I have been persuaded by the debates in the House that some amendment is needed", and he has gone on at some length about his interpretation of Lord Donaldson's words. Given the huge controversy that surrounds the implications of what he is doing, he needs consensus and support, but the way in which he is handling the matter is ensuring that he gets as little consensus and support as possible. He should urgently review how he is dealing with the matter in the Committee.
The hon. Gentleman has made it clear at every stage that he is against any form of control orders, which he does not believe to be right. In the small area that I described, he concludes that the best thing—I accept his integrity and honour in putting this view forward—would be to do nothing. He is entitled to that view, but I cannot accept it.
The Home Secretary has said that these measures, which we all find distasteful, will apply only to a small number of people, but earlier today the Prime Minister said that in the view of the security services there are "several hundred people" for whom these powers are necessary. Who should we believe?
The Prime Minister was referring to the 700 cases, I think, where action has been taken which has already been reported. There are a large number of people who, we think, pose a threat to what we believe. However, a significant number of those can be dealt with through the prosecution route, which is the route that we prefer to follow.
Given the detailed contents of the right hon. Gentleman's letter to my right hon. Friend David Davis, nothing that he has said this afternoon explains why he cannot table Government amendments for the Committee to consider this week. In view of the fact that the Home Secretary must have heard the expressions of grave concern in all parts of the House about the way in which he has handled the matter during the consideration of the programme motion, did he not think it a good idea to have a word with his right hon. Friend the Chief Whip or with the Leader of the House or both, with a view to saying to the Committee, "Yes, we accept the Opposition's suggestion. Let there be an additional day for debate. Let that day be Wednesday." What is so difficult about the Home Secretary swallowing a little bit of humble pie?
As the Member who had the privilege this morning of taking part in the debate with Lord Donaldson, I am not sure that I find Lord Donaldson's views any more persuasive at 5 o'clock in the afternoon than they were at 9 o'clock in the morning. I particularly remain unpersuaded of his argument that the Attorney-General would be an adequate check and balance on the way in which the Government carried out the powers. I fully take my right hon. Friend's point that a number of judges will be very unhappy about the idea of the deprivation of liberty of the citizen without charge, without conviction and without trial. However, if that is the course that we are to take—it is in his Bill—to many of us a sticking point is that the decision on that should be taken by the courts, not by the Government.
No, I shall go on to the point that I wished to make, which is that despite the view that I have just expressed of my concern about the position of judges, I have come to the view that there is great merit in seeking as wide a consensus as is possible across Parliament. That is why I have come to the conclusion that I should move in this area in precisely the direction suggested by my right hon. Friend Mr. Cook not only today but on Second Reading. I take the opportunity to pay tribute to the way in which the arguments on the matter have been made, both by him and by many of my hon. Friends, who have sought in a perfectly proper way to make the case that he summarised a moment ago—that decisions on deprivation of liberty are best taken by judges, not by other people.
However, when considering the balance of these matters—and it is a matter of balance—I came to the conclusion that I set out in the letter today. I propose to amend the Bill to provide for derogating control orders to be made by a judge in the High Court, rather than as now by the Secretary of State. That is a change of position and I have made it for the reasons that I have given.
The Home Secretary suggests that the official Opposition have not indicated their position, so I repeat it. First, the orders must be made by the judiciary, not by the Executive—I shall come back to that in a moment. Secondly, the Home Secretary will have to justify before the House each and every aspect of the control orders that he seeks. If he can persuade us that each and every one of them is required, he will have our support, but the difficulty is that his past utterances have not suggested to us that some of the control orders are justified at all. Why, if the right hon. Gentleman accepts the principle of the judiciary dealing with orders where there is a derogation, should he not apply it also to those where he believes he does not have to derogate, given that many of them as they appear in the Bill are substantial infringements of the liberty of the individual?
Can my right hon. Friend give us a very clear assurance that as regards the prima facie consideration by the judge that he intends in relation to the derogating orders and the subsequent referral to the full court, the judge and the court will on both occasions be able to look at the facts of the case and to consider all the information that he has had at his disposal, and will not simply be looking at process?
I can give that absolute assurance. That is very important. The meaning of the criticism that was made of me by several hon. Members during the Second Reading debate last Thursday was precisely that a court might be able only to look at the processes, not the substance—
I will not give way until I have finished my sentence. It is not unreasonable for me to try to finish my sentence before giving way.
The point that I was seeking to make is that many Members criticised my proposal on the grounds that it did not give, as they originally thought, the basis for the court to consider the whole situation, as my right hon. Friend Mr. Smith suggested. I have accepted that criticism in the case of derogating cases, and that is the basis of what I have put forward. In a second, if I am given the time, I will deal with the points made by my right hon. Friend and set out the procedure that will be followed.
Since I happen to believe that there is an acute terrorist threat to this country, I am going to support control orders, as I did last week. I do not believe that the Government have some hidden agenda to undermine civil liberties. However, as my right hon. Friend has, rightly, gone as far as he has on house arrest, why does he not go further, as Mr. Grieve suggested, to get court intervention on control orders, not simply my right hon. Friend's intervention in the first instance? Surely he can go further than he already has.
At the point of the full hearing, there would be what is known as an inter partes hearing, where all sides have access to the information via the special advocacy procedure that has been established to deal with the security issues.
Further to that point, I read paragraph 4(3)(c) of the schedule as indicating that the Home Secretary can pick and choose what evidence he puts before the judge, not before the defendant, when the matter comes to an inter partes hearing. If so, that is not compatible with the answer that he gave a short time ago in response to the intervention on whether the judge would be able to consider all the evidence in the case. That point requires clarification.
My hon. Friend the Minister for Crime Reduction, Policing and Community Safety will do that later on. However, I can say in summary that it is not our intention to allow the Secretary of State not to disclose exculpatory material to the controlled person or the special advocate. Our intention in the paragraph to which the hon. Gentleman refers is to replicate the substance of the SIAC procedure, so that the court directs the Secretary of State to serve closed material that is sensitive and where there could be vulnerability to the suspect. After the Secretary of State's objection has been heard in closed session, the Secretary of State is able to withdraw that evidence, and if he does so he is not required to disclose it. The Security Service already has the practice of disclosing any exculpatory material, and that will continue.
To be clear, we would be happy to reconsider the wording of paragraph 4(3)(c) with a view to improving it.
In case people are confused, will the Home Secretary confirm that while the special advocate may be able to see the evidence, they are not allowed to show it to the defendant?
On a point of order, Sir Michael. I apologise to the Committee and to the Home Secretary for interrupting him while he is trying to explain something. However, the longer his speech goes on, the more unsatisfactory the process is revealed to be. We are trying to discuss a huge infringement of the liberty of the individual, on the back of a letter and without any of the amendments or rules of procedure that the Home Secretary seeks to explain. I congratulate him on wanting to explain, but what are the procedures of the House for? That is not just a boring lawyer's point. How can those procedures be properly protected when the Home Secretary can destroy the whole purpose of the Committee stage by coming to the Chamber with a letter to the shadow Home Secretary and making a speech that is wholly unconnected with the fabric of the Bill as presented by the Government? We are being expected to swallow that hook, line and sinker. Surely some control should be placed on a Secretary of State and Government who ride roughshod over the House's proper discussion procedures.
Why is my right hon. Friend not prepared to put the making of non-derogating control orders in the hands of the court or to allow the court to consider the facts of such cases rather than just the procedure?
As I think I have said about four times already, I will come to that point when I am allowed to make some progress.
The new procedure for derogating control orders will be—I will propose this for consideration in the other place—that the Secretary of State would make an ex parte application to the High Court for an order and that the application would be heard by a judge as quickly as possible.
I am grateful, Sir Michael. I am of course entirely happy not to try to describe the procedure that I will set out, but to be quite candid, it would be better if I did try to do so.
I thank my hon. Friend for that.
The new procedure for derogating control orders that I shall suggest is as follows. First, the Secretary of State would make an ex parte application to the High Court for an order. Secondly, the application would be heard by the judge as quickly as possible—say, within 24 to 48 hours. The judge would look at all the material on which the application was based and decide whether there was a prima facie case. If so, he or she would make the order. The order would be subject to automatic referral to the full court for an inter partes hearing, with a special advocate representing the interests of the subject of the order in closed sessions, as currently provided in the Bill. The order could be renewed on application by the Secretary of State following a further inter partes hearing. That is the procedure that would give effect to the assurance that I gave earlier on a process that would meet the need seen by the Committee for a judicial decision to be the first point of call on these matters.
In response to a point made on Second Reading by Mr. Oaten, I then set out the procedure necessary to deal with an emergency in which we need to prevent the subject of an application from disappearing in the period between the Secretary of State making the application and the order being served.
Given the difficulties that the Home Secretary has had with special advocates under the present regime, and given that the Prime Minister says that these provisions could affect several hundred people, is the Home Secretary satisfied that there will be enough qualified lawyers willing to take on the role of special advocate in the circumstances that he is outlining?
Will the Home Secretary not at least concede that this is an extremely unsatisfactory way in which to proceed with the Bill? Why can he not, even at this late stage, table amendments that this House, the elected House of Commons, could discuss on Wednesday? He could have had his Bill debated with good will and in good order, within the Government's own allotted time, if only he had given us a little more time and treated the House with a little more courtesy. I am sure that it is not his intention to be contemptuous of the House, but that is the effect of the way in which he is proceeding. Will he not concede that?
As I have said on a number of occasions, it would have been more discourteous to the House not to have shared my intentions and thoughts with it at the earliest possible moment. To have had a discussion without sharing them would have resulted in a worse state of affairs.
The change that I have just outlined is the first, and most important, of the three changes that I intend to suggest. The second deals with the question—
I thank the Home Secretary for giving way. My question is relevant to the procedure. He has described the process in which a Home Secretary or his representatives would go before a judge and seek an order in relation to a prima facie case. Will he make it clear whether, in seeking such an order, it would be sufficient for the judge to be satisfied that there were reasonable grounds for suspicion that the person posed a threat to public safety, or would he have to be satisfied that there was an imminent threat to security that justified depriving that person of his liberty? Will a judge considering an application for such an order have as full a hearing as he is ever going to be allowed to have? Will he be able to see all the material on which the Home Secretary and the Security Service are basing their application, and will he have the opportunity to challenge it or to listen to an advocate challenging it? Will the Home Secretary give the Committee a fuller explanation of what is to happen at that preliminary stage of an application for a prima facie order? He might simply be introducing a rather routine procedure before going back to what he proposed in the first place.
The first thing to emphasise is that my proposal will be that there be a full hearing at the stage after the prima facie stage. At that full hearing, which will be intra partes, it will be both possible and the reality that the judge will be able to look at all the evidence, either in closed session or open session, and that there will be a position in which the advocates of both sides will be able to make their points in court in that way.
Opposition Members have raised questions about the detained person. That point has been well covered before in this discussion. It remains my strong view that the special advocate process in these arrangements in front of the High Court is an appropriate procedure to follow in those circumstances.
Am I to understand that at the prima facie stage there will be no hearing? At that stage, will the judge have the material that is being relied on, and will the judge have to be satisfied that a threat exists, or merely satisfied that there are grounds for suspicion?
First, all the papers will be available at the prima facie stage. Secondly, the hearing will be ex parte rather than intra partes: that is, not all sides will be able to be there. Thirdly, the judge will have to be satisfied on the balance of probabilities that the individual concerned is a threat to the country.
The right hon. Gentleman talks of inter partes hearings, but I think he also concedes that the detained person will not be told the names of his accusers, will not be shown the nature of the evidence, will not see the documents, and will not have an opportunity to question any of his accusers. What is more, the judge may not have an opportunity to put any relevant questions to the detained person. Have I understood the position correctly?
The right hon. and learned Gentleman has understood correctly that the detained person will be represented by a special advocate in those circumstances, and it will be the special advocate who can interrogate on the issues before the court. I know that for the right hon. and learned Gentleman this is a disqualifying position. If the defendant himself cannot take instructions, from his point of view no control order should operate. He believes there should be no such legal process in such circumstances: his position is clear. Given the balance between security and liberty, he and I differ on how we should proceed.
There is an argument to be had, and the right hon. and learned Gentleman will vote accordingly. I believe, and I think the country generally believes, that when there is a reasonable belief that an individual will commit a terrorist act and that we can prevent that from happening, we should do so. That is not the right hon. and learned Gentleman's position, but it is mine.
The Home Secretary can only have agreed to make what some of us regard as concessions in relation to derogating orders because he accepts the principle urged on him by Members on all sides that in matters of deprivation of liberty, a judge should be responsible for making the decision that has that effect. If he accepts that principle in relation to derogating orders, why should he not accept it in relation to non-derogating orders?
I am coming to that. I find myself in some difficulty: I am trying to give way as much as possible while also making progress. I think I will act on that stimulus, and make my next three points about changes in the position before responding in detail to the question asked by the right hon. and learned Gentleman.
I set out in the letter, and now set out for the Committee's benefit, three respects in which we intend to change the procedures for non-derogating control orders in what I consider to be a significant and substantial way. First, we propose that when an appeal is made against a non-derogating order by an individual who wishes to do so, a limit should be set on the time before which it can go to a judge. The criticism has been made that if there were no time limit, no judicial review could take place effectively and definitely. I am saying that we should make the first concession in this context, and provide for a time limit. That is important from the point of view of those who fear that people under non-derogating orders may never have their case heard by a judge—and, incidentally, it refutes the view of those who say that there is no proper legal process in this regard.
I will in a second—to my right hon. Friend in particular.
The second issue relates to prosecutions. Let me repeat that, as a matter of practice as well as of policy, prosecution should remain our first option, and the prospect of bringing such a prosecution should remain under review even when a control order has been imposed. I am exploring with the police and the Crown Prosecution Service how we might best include that in the Bill. I intend to place an obligation on the police—in consultation with the prosecution authorities when that is appropriate—to keep under review the prospect of a prosecution in respect of any individual who is made subject to a control order.
My officials are working on those points now, so that the necessary amendments can be made to the Bill at Committee stage in the Lords. In making this proposal, I am particularly conscious of the argument advanced by my right hon. Friend Mr. Denham and by my hon. and learned Friend Vera Baird, who have argued strongly for the prosecution case to be there throughout
I hope that we will be able to explore the latter point if we ever get to that part of the Bill, but I wonder whether my right hon. Friend can pick up one small but important point. He talked about a time limit for referral to judicial review on the non-derogating orders. Whatever the other arguments, is he able to say what he has in mind for that time limit? Would it be, say, 14 days, for example?
On a point of order, Sir Michael. We have just heard the Home Secretary say, I thought quite categorically, that there would be a time scale for the referrals for judicial review. In fact, following an intervention, he suggested that 14 days would be reasonable. However, in the letter that has been produced for the Committee this afternoon, he says that he will be
"looking closely at whether it would be possible to provide in the Rules which will govern the courts' proceedings in these cases for any such appeals to be heard within a set timescale. My conclusions will be reported to the Lords . . . and, if necessary, amendments laid at that stage."
That underlines how ridiculous it is trying to deal with this process. Is it in order that we have one thing written and another thing said and no amendments to debate?
On the point that has been raised, the fact is that the best way of putting a time scale into this can be either through the rules of the court or through legislation. It is precisely that which we are considering. We will need to consider it in a little detail before finally tabling an amendment.
May I take the Home Secretary back to the intervention of Mr. Denham? One of the problems of prosecution is that, the moment the Government embark on the course of action of issuing a control order, it is likely to make the possibility of a fair trial of any person who has been subject to those procedures extremely difficult. What will the Government do about that?
That is a real question. My right hon. Friend the Member for Southampton, Itchen has raised it on a number of occasions, which is why it is important that the avenues for prosecution are explored to their utmost before getting to the point where we have the control order as suggested, but at the end of the day—I come back to the point that I made earlier—we need to be able to deal with this small group of people in the way I have suggested.
Not at this stage.
I have heard the arguments, which relate to the prosecution point, about whether, once legislation has been brought forward to give effect to any new offences—and I indicated those both in my statement last Tuesday and on Second Reading—there is still a need for control orders. Therefore, I will be asking the independent reviewer of the control orders legislation specifically to comment on the impact of any new legislation each year in his report on the operation of the new powers.
I will give way in a second. I need to clarify one point for Mr. Clarke in case I in any way misled him and the Committee. To be absolutely clear, at the first stage of the hearing the test is "prima facie", not
"satisfied on balance of probabilities", but it is fuller than he suggested because it includes whether or not there are reasonable grounds for suspecting that the person is a terrorist and whether there are reasonable grounds for believing that the imposition of obligations is necessary. Of course, the full hearing will be heard very soon afterwards. I did not want to mislead him, so I wanted to clarify that point.
I am very grateful to the Home Secretary for that clarification, but I am also grateful for the concessions that he is plainly trying to make to get as wide a body of support as possible. Indeed, his final point goes to the root of his concession. He has been asked by Members in all parts of the Committee whether he will hand over the power that he is seeking as Home Secretary to deprive someone of their liberty to a judge who, upon application from him, can then deprive someone of their liberty. According to the Home Secretary, all that the judge will have to be satisfied of at this first stage is that there is a case to answer. That is not in fact a full transfer of the decision. What troubles many of us is that a British subject or a foreigner—we cannot discriminate—should not be deprived of his liberty by the order of the Home Secretary, unless the latter can satisfy a judge through what is an admittedly closed judicial process that there is at least, on the balance of probability, a need now to deprive that individual of his liberty. With great respect to the Home Secretary, all that he is doing is putting in a minor check before the process proceeds to an inter-parte hearing, which, he says, will provide the substantial protection at a later stage.
I do not accept that this is a minor change. First, the judge is able to see all the material. Secondly, a full hearing will rapidly occur in the circumstances described. The change that I am proposing is therefore very much more than a minor one.
In a second.
I have set out four changes that I believe go a significant way towards dealing with the concerns expressed not only about derogating, but non-derogating control orders. I have been asked by a number of Members in all parts of the Committee to explain why I differentiate between the two types of order. I intend to do just that, but before I do so I will give way to my hon. Friend Andrew Mackinlay.
That is the issue about which I wanted to ask my right hon. Friend. We do not understand why there should be a different threshold of test before a judge in respect of non-derogating orders, which can be just as offensive not just to the individuals suffering them, but to Members of Parliament who are concerned about jealously preserving rights and liberties. Why should there be a different procedure? Why can we not have full and thorough oversight by a judge in all circumstances, and in respect of all the evidence relating to non-derogating orders?
I do not want to press this point time and again, but will the Home Secretary ensure that the House has ample opportunity—by that I mean not just one or two hours—after the other place has considered the amendments to reconsider them in the light of the Lords discussion? We are delighted to hear from the Home Secretary, but this discussion has got precisely nothing to do with the tabled amendments. We must have an opportunity to look at them and to discuss his ideas once the amendments have been considered by the Lords.
Does the Home Secretary accept that, as I mentioned on Second Reading, one of the biggest problems is the question of whether a person detained in such circumstances would have the right to habeas corpus? It is crystal clear that the decision taken by the House of Lords during the second world war in the case of Liversidge v. Anderson has since been completely overridden by subsequent decisions taken by the Lords and others. The Home Secretary knows about whom I am talking. Will he state unequivocally now that there will be no interference with the right of habeas corpus, bearing in mind that habeas corpus was still available during the second world war under emergency powers?
I am advised that I can give the assurance that the hon. Gentleman is looking for: the proposals that I have established will not interfere with habeas corpus.
I come now to the question—which a number of Members have genuinely raised—of why I have sought to differentiate between cases involving a deprivation of liberty and those that do not. I begin by acknowledging that all control orders will impose greater or lesser restrictions on individuals' activities and movements. They could interfere with convention rights such as the right to respect for private and family life—article 8—freedom of expression—article 10—and freedom of assembly and association—article 11. There is no doubt about that whatsoever. It is also clear that interference with those rights is permissible under the convention, provided that it is justified by a legitimate aim and is proportionate. It does not involve a derogation from the ECHR and it is not the same as a "deprivation of liberty". Restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of "deprivation of liberty"—not as set out by me, but as set out in the European convention to which this country has rightly signed up.
What is necessary for deprivation of liberty to take place? It is about the extent to which a person's physical liberty is curtailed; it must be of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted. I put it to all Members with all the powers at my command that this distinction between a restriction of liberty and a deprivation of liberty is a real and important one—it is not simply trivial in regard to these issues.
We hear what the Home Secretary says, which is, indeed, enshrined in an unsigned and unattributed document that can be found in the Vote Office—"A Note on Non-Derogating Control Orders". It describes deprivation of liberty as "a technical term" from the outset and at the end draws a distinction between liberty being deprived and liberty being restricted. May I ask the Home Secretary where on earth that distinction can be found in the European convention on human rights, or, indeed, in any other legal authority known in this country?
I will give way later.
If we are saying that any restriction on liberty, of whatever kind, is equivalent to any other restriction of liberty, of whatever kind—the argument put by my hon. Friend the Member for Thurrock was that there is, indeed, equality of concern between any restriction of liberty that might arise—I am afraid that I simply cannot accept that. There is a distinction between a particular restriction and what amounts to a deprivation of liberty under the European convention. My point, which I make powerfully, is that it is legitimate under that convention to restrict liberty, provided it is justified by a legitimate aim and provided it is proportionate.
The document to which my hon. and learned Friend Mr. Marshall-Andrews referred, continues on page 2:
"It is the case that a combination of measures—not specifically provided for in the designated derogation order—could amount to a deprivation of liberty within the meaning of Article 5 ECHR. But if a control order contained such measures it would be unlawful and would be quashed by the court on appeal."
I can understand the distinction, but a package of measures could be susceptible to attack in court if we had not derogated. However, what would be the position down the road if we had derogated from the ECHR and in a non-derogated case a package of measures were, taken together, extremely restrictive? Could the individual still apply to the court, or would the court say that the UK had now derogated?
It is a good question and the position that would arise is clear. It would be open to anyone who had an interest in that particular case to argue that the procedures under derogation applied to the package of non-derogated rights in those circumstances and it would move over. That is to say, the police, the security services or the Home Secretary would not be acting legally if they put forward a package of measures that added up to deprivation under the procedures set out for non-derogated rights. I believe that that makes it clear.
The job of the Committee is to try to balance concern for civil liberties against the danger of terrorism. If we do not achieve a proper balance, we are not doing our job as Members of Parliament. I accept, of course, my right hon. Friend's integrity, but if there is a distinction between depriving someone of liberty and restricting it, and if we are going to restrict a person's liberty, why not allow the usual court procedures to apply to those circumstances? That would surely allow the Home Secretary to gain far more support for what he is trying to achieve. I simply cannot see any reason—I doubt whether the other place will either—to grant such a distinction.
Perhaps I have not been clear enough in setting out my case. I appreciate what my hon. Friend said about my integrity in these matters. There is a range of circumstances surrounding restrictions of liberty, and the restrictions are exercised by various authorities. To provide an example, there are currently warrants authorised by the Home Secretary that allow people's telephone conversations to be listened to under a certain procedure that is clearly set out and approved by the House. Does that amount to a restriction of the liberty of the person whose phone is being listened to? I would say that it does. If a police officer locks someone up in a cell for a while for causing an affray, that is also clearly a restriction of liberty.
No, I will not give way until I have finished what I am saying.
It was argued on Second Reading by my hon. Friends and others that it is unacceptable to deprive someone of liberty, in the context of house arrest or detention or other serious cases, without judicial authority. I have thought about it and answered the point. I have responded positively to that concern, although I cannot escape the fact that a wide range of restrictions of liberty apply.
I have to say that I disagree entirely with the distinction that the Home Secretary has attempted to draw. Although listening into someone's telephone calls may interfere with their right to privacy, it does not interfere with their liberty. Liberty is about a person's ability to go about their lawful business without interference. One need reflect only on the powers that the Home Secretary is arrogating to himself in clause 1 to see that there are numerous powers that interfere with a person's ability to go about their lawful business—and some of them do so in a potentially very unpleasant fashion, which I would certainly equate with a clear deprivation or infringement of their liberty. I cannot understand the argument that these should be subject to a different category of test before the courts. The Home Secretary has so far produced no rational justification for doing so.
So let me attempt to do just that. Although my hon. and learned Friend Mr. Marshall-Andrews wants to punish me for it, I am quoting from the note to which he referred earlier. I thought that it would be helpful to the Committee to produce a note to clarify the position. The fact is that control orders are preventative orders. They are designed to prevent future atrocities from happening—
Yes, I will give way before I leave the point. My hon. and learned Friend is always impatient. Some say that it is one of his more endearing characteristics, but I am not sure that I agree.
As I was saying, the control orders are designed to prevent future atrocities from happening, not to punish a person for past events. Those preventive orders require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures are necessary and appropriate to meet those risks. It must be carried out on the basis of a wide range of complex intelligence and other material, and it involves making inferences and evaluations about matters affecting national security. I maintain that the Secretary of State is in a better position to carry out those judgments than the courts.
I am most grateful to the Home Secretary for giving way, and in particular for the charm and affection with which he does so, which makes it slightly unfortunate that I have to ask this question. He has told the Committee that the European convention on human rights provides a distinction between deprivation and restriction of liberty and that it specifically allows for restriction of liberty, so will he please tell us in which particular article that appears?
I do not have the article in front of me. I am advised that it is article 5, but I would be wary of putting that on the record.
The example that I gave earlier was of a number of articles in the European convention on human rights that allow a restriction of liberty in a number of different areas.
May I ask the question in a more personal way? The Home Secretary used to be president of his university students union. Does he accept that his successor, as president of the Cambridge students union, should be deprived of his or her right to go to Scotland, to meet their family, to talk to people, or to read something without being able to argue their case in open court? That is the issue. I cannot believe that he would have accepted that when he was president of the students union and I cannot believe that, in his heart of hearts, he believes that it is acceptable now.
I am trying to think who the hon. Gentleman is referring to. My successor was a man, not a woman.
In my heart of hearts, I believe strongly that the nation's security is important and that it is important to stand up for the nation's security. That is what I intend to do.
Could I return to the sentence that my hon. Friend Rob Marris quoted? A combination of measures could amount to deprivation of liberty under article 5. That document refers to control orders, not derogating orders. My right hon. Friend accepts, therefore, that it is possible to take liberty away through a non-derogatory control order. If liberty is taken away under clause 2, he must go to a judge first. He can take liberty away under clause 1, but without going to a judge, except that there would be a right of appeal. In both cases, liberty is taken away, so how can a different procedure be justified?
I think I can help my hon. and learned Friend. First, a Home Secretary who, on advice, including legal advice, sought improperly—that is the implication of the question—to deprive someone of liberty, whether by an individual derogating control order, or by a combination of non-derogating control orders, would be acting wrongly. Moreover, having acted wrongly, he would be overruled by a judge on appeal and the case would then have to be referred immediately, under the derogating procedure, to the higher level judicial authority set out in the proposal. That is a clear guarantee to meet the sort of concern that my hon. and learned Friend is raising.
There is a major difference, which I tried to set out earlier. Let me be clear about whether non-derogating control orders deprive someone of liberty. Derogating obligations must be set out in designated derogation orders. There must be an order to allow the whole process to take place and it must be approved by the House and the other place. It will be clear from the designated derogation order what may be permitted in the derogating control order. The derogating control order before the House and the other place must set out what might be permitted in the derogating control order. If those measures were imposed, the derogated control order procedure would have to be followed and is set out in my proposals. If the other measures were not in the designated control order and amounted to deprivation of liberty, they would be unlawful and would be quashed.
I accept that entirely, but a judge must be asked to consider an application to take someone's liberty away under clause 2 and, if it is unlawful, he will not grant it. Why does not the same apply under clause 1? It would be unlawful if my right hon. Friend made an order under clause 1 that deprived someone of liberty, but the subject would be locked up and could appeal. If the Home Secretary had to apply to a judge first, the judge would not grant the order if it was unlawful.
The procedures that I set out meet the guarantee that my hon. and learned Friend is asking for. If she is asking why do I not propose an identical procedure for derogated control orders and non-derogated control orders, the answer is that the deprivation of liberty issue is of a key and different character from the restrictions of liberty that we are talking about elsewhere.
I am grateful to my right hon. Friend for giving way for the umpteenth time. He has been generous with his time.
The lawyers' festival that we are having today does not fully reflect the balance of views elsewhere. People are looking for a guarantee against arbitrary detention and reassurance that people who are reasonably suspected of being a threat are detained until their cases can be fairly heard within a reasonable time. I broadly sympathise with my right hon. Friend, but I am not sure that it would interfere with what he is trying to achieve if he also involved a judge in the weaker cases that we are now discussing.
I have voluntarily imprisoned myself in a lawyers' festival and sought to eschew appeals to a wider public generally in this argument, although there is plenty of room to do so. I agree with my hon. Friend that it is reasonable for the elected House of Parliament to bear in mind what our constituents think about these matters. They want a Government that will protect national security and we are determined to do so.
I understand that my right hon. Friend's current difficulty stems in part from the concession that he made earlier today. As I said last week, none of our institutions, including the judiciary, is properly designed for the purposes that we face. We must evolve further in an investigatory direction in the years to come.
My right hon. Friend has just read from the note from the Vote Office. He said of non-derogating control orders that
"The assessment must be carried out on the basis of a wide range of complex intelligence material and involves inferences and evaluations being made in relation to matters affecting national security."
That is true, but it is equally true of derogating control orders. That is the process.
With all due respect to my right hon. Friend, having made the decision today to put that process in the hands of the judiciary for derogating control orders, the argument for doing the same for non-derogating control orders becomes irresistible. I entirely accept his argument that they are measures of a different order and that people are nit-picking around that issue, but it does not justify a separate process.
I respect my right hon. Friend, but there is an important qualitative difference between deprivation of liberty as defined by the European convention on human rights—[Hon. Members: "We cannot hear."] I am sorry if hon. Members could not hear me. I believe that there is a qualitative difference between deprivation of liberty within the context of the European convention on human rights and something that is not a deprivation of liberty. I understand the concerns that hon. Members are raising about how far one goes down that course, whether a combination of restrictions can add up to a deprivation and how to ensure that that is properly dealt with by the procedures, but there is a qualitative difference, which is established in case law—the cases are given in the document—and in many other ways.
I entirely accept the first half of my right hon. Friend's argument that there is a qualitative difference, but where does that provide the justification for a difference of process? What is going on is this terribly difficult issue of assessing what the intelligence services are telling us, the national risk and the role to be played by an individual. We must either decide that we are to involve the judiciary at the outset, or that we are not. Having decided that we are, we must do that across the piece.
The Second Deputy Chairman:
Order. I believe that I may presume what the hon. Gentleman wishes to say. It would be helpful if the Home Secretary could address the whole Committee. It is tempting to address the person who has just intervened, but it is more helpful to address the whole Committee.
I apologise to members of the Committee who did not find my back as entrancing a prospect as my hon. Friends do.
I was saying that I was grateful to my right hon. Friend for accepting a key and important part of the argument—that there is a distinction between circumstances in which an individual is to be deprived of his liberty and those in which he is not deprived of his liberty. My right hon. Friend then argued—if I have correctly understood him—that, despite that distinction, the processes in both cases should be the same. I do not accept that point because the key argument that I heard for the involvement of a judge at the initial stage related to the deprivation of liberty. The argument was that, whether it involved house arrest or detention of some other kind, deprivation of liberty was such a serious matter that it could not be left in the hands of a Minister, but had to be put before a judge. I have, reluctantly, accepted that argument, which was made by my right hon. Friend and others, but I do not think that that argument applies to cases in which the subject will not be deprived of his liberty.
I am most grateful to the Home Secretary for being so generous in giving way. A moment ago, he reminded us that the purpose of the legislation was to try to ensure, so far as we can, the protection of the people of the United Kingdom. How will they be better protected if he pronounces the order in cases of non-derogating orders, instead of a judge doing so?
In either case, whether it is done by the Home Secretary or a judge, the people of the United Kingdom will be better protected if we have a regime of control orders that deals with the people in question. That is common ground between us. We then come to the issue of prevention, which is at the core of this discussion, and the range of considerations that have to be taken into account. The question that then arises is whether a Minister—the Home Secretary, in this case—is in a better position to make that assessment than a judge. I argue that the Minister would be in a better position to make the assessment—
That is an important question. It is because, by definition, someone from the Executive would have access to all the information in a way that a judge would not. However, I also accept the argument that, in the case of deprivation of liberty, the penalty is so great that judicial involvement is required. That is the basis of the argument that I make.
In the latter part of his answer, the Home Secretary seemed to say that it is a question of degree but, for most right hon. and hon. Members, it appears to be a question of principle.
Let me take the context that is given in the note that I provided earlier. In the case of Rehman, Lord Hope set out the position clearly. He concluded:
"It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee."
That argument was made in the context of a deportation judgment, but those same considerations apply in the cases that we are discussing. That is a substantial difference, as I hope the Committee will acknowledge.
I wonder whether the Home Secretary has fully understood the position. If he has not, it may explain some of his difficulty. It has always been accepted in English law that the Home Secretary has a residual Executive right to deport aliens. That is one of the reasons those deportation rights have remained, even if qualified by the Human Rights Act 1998. However, we are not now talking about deportation or dealing with aliens: we are talking about the rights of British subjects to live in peace and be subject to pains and penalties only by due process of law. We are moving into uncharted waters because the Home Secretary says that he wishes to introduce a completely new system of imposing pains and penalties on individuals without due process of law. The argument that he has just put forward about deportation is irrelevant, because we must consider how best—in the circumstances that the Home Secretary has put forward—we can protect the liberty of the individual. The Committee's overwhelming view is that that can be best done by having a judicial process.
I am sorry if the hon. Gentleman feels that I have not understood the issues. I must say that I have spent decades of my life being patronised by lawyers, and I do not appreciate it.
I understand the issues clearly and well. I draw to the hon. Gentleman's attention the fact that both Badat and Reid, whom I mentioned earlier, are British citizens, and that is why the issue before us is not simply about immigration law. It is the issue of what we do about British citizens as well. That was the point made by the Law Lords. The regime that we are talking about will apply to British citizens, and it is a serious matter—I have not sought to hide that at any point in the debate—of the balance of judgments between security and liberty. However, the fact is that real and present dangers exist that we must address. We can legitimately have an argument about the right procedure, but the Committee should not try to suggest that there is no issue to be addressed. There is an issue that must be addressed.
I have no hesitation in admitting that I do not understand one particular point. In the Home Secretary's mind, what measures amount to a deprivation of liberty and what measures amount to a restriction of liberty? What combination of restrictions of liberty could amount to a deprivation of liberty? Could he give examples of each of those three categories?
I shall give the Committee examples. An example of a restriction of liberty might be being forbidden to have a mobile telephone or to contact another named individual, who is known to be a terrorist organiser of some kind. A deprivation of liberty would be a matter of what is colloquially called house arrest or of actual detention. The question of whether a combination of restrictions adds up to deprivation depends on the particular combination. I dealt with that point when replying to my hon. and learned Friend the Member for Redcar.
The distinction that the Home Secretary draws between non-derogating and derogating orders is very difficult in many instances. For example, a person's ability to work could be restricted by orders relating to the use of the internet. Only a judge can determine whether what the Home Secretary calls non-derogating matters are proportionate. Therefore, ultimately, the orders should come before a judge who can decide that question under the terms of the convention and our human rights legislation. That is why Mr. Denham and Vera Baird were right to say that no distinction should be made between the processes for determining those matters.
I have sought, as best I can, to say why I think that there should be a difference. Fundamentally, the difference is that deprivation of liberty is a qualitatively different matter from restrictions on liberty.
I accept my right hon. Friend's point about the qualitative difference, but we must proceed on the assumption that any deprivation of rights should not be subject to the arbitrary decision of the Home Secretary. My right hon. Friend has sensibly conceded the change in relation to locking people up. It is reasonable to assume that the people who need to be locked up are the most dangerous of the categories being dealt with, so we find it difficult to understand why he is not prepared to use the same procedure for those who are less dangerous.
I am grateful to my right hon. Friend, as his intervention allows me to set out clearly the reasons for the argument that the Home Secretary is not unlimited in what he or she can do on these measures. First, the Bill itself makes it clear that a control order can impose only obligations that the Secretary of State considers "necessary" for preventing or restricting further involvement of the individual in terrorism related activities. That is a substantial restriction. Secondly, the Secretary of State is required by section 6 of the Human Rights Act 1998 to act compatibly with the convention rights of the individual and his family. It would be unlawful for the Secretary of State to impose restrictions that breached their convention rights. Moreover, the courts would quash an order that did so. Interferences with private and family life, association and communication will have to be expressly justified in each case by a specific aim permitted by the convention—in this case, we are talking about national security—and will also have to be proportionate to that end. The Secretary of State will have to weigh up very carefully in each case whether measures can be imposed that are consistent with convention rights. Finally, the Secretary of State's decision may be appealed to judicial review in the ways that I have indicated. More generally, we are proposing a complicated set of procedures whereby the Secretary of State has to report to the House on the way in which the control order regime is operating.
I am sure that my right hon. Friend will weigh up those things incredibly carefully, but may I return him to what my hon. and learned Friend Vera Baird said? By the time somebody who was put under a combination of control orders that individually were restrictions but collectively could amount to deprivation of liberty could question that, it would be a bit late. By that stage, they might be unable to talk to people or to move around. All they could do would be to appeal on judicial review. There is no automaticity in that. In my right hon. Friend's first proposal, he suggested that a court should automatically check what the Home Secretary was doing, so why in this proposal is there not even automaticity?
To be candid, although I understand the argument that the identical process should extend to non-derogated orders as to derogated orders I do not accept it for the reasons that have been set out. My hon. Friend's concern that there would be some process of slide, whereby a combination of non-derogated deprivations that added up to a derogation would slip past the courts and procedures, is simply wrong.
I have considered the best course of action to follow when so many Members want to intervene, and I shall now come to the end of my remarks at this stage, to enable proper speeches and contributions to be made by Members who wish to do so.
I have set out clearly a course of action that responds to many, many of the issues that were raised. It deals with the fact that we have to make a balance between security and liberty. I believe that we are making it correctly in these procedures, and that we are seeking appropriately and correctly to find the balance.
On a point of order, Sir Michael. I apologise to the Home Secretary for interrupting him, but this is an important matter of procedure. Will it be possible to reply to the substantial case that the Home Secretary has made against the abolition of the distinction between non-derogating and derogating control orders, which was actually selected for consideration in the second group under clause 2? Will it be in order to make speeches, following the Home Secretary's points, under the group that we are currently discussing?
On a point of order, Sir Michael. The Home Secretary has been generous in giving way and he has spoken at length, but almost exclusively to his letter, which has no legal standing at all. He has not spoken at all to this group of amendments and new clauses. Is it your understanding, Sir Michael, that he will seek to catch your eye later in the debate? Almost uniquely in such a situation, the Home Secretary has not addressed at all the items before the Committee for consideration.
The Second Deputy Chairman:
The right hon. Gentleman is not raising a point of order so much as a matter for debate. The Committee is obviously ranging widely at the moment, and that is part of its wide range.
Further to that point of order, Sir Michael. I hope that the Home Secretary can help us. May we ask him through you if he will indicate which of the amendments in the group are covered by his proposals? Those could easily be voted through and we should be halfway done.
Further to that point of order, Sir Michael. I think that we are dealing with a matter of order and not just of the content of the debate. For about an hour and a half, the Home Secretary has carried out something of a tour de force, discussing and debating with every member of the Committee the concessions that he is trying to make, but he has illustrated the dangers of not following the normal procedures by just making a speech at large about what the Bill will be like when it has been amended and the type of issue that will then be thrown up. Having listened for an hour and a half, I am partially persuaded on some points, although not on others. Like other Members, I can think of a whole raft of amendments that I should now like to table to clarify some of those points—although I would be helped if I could first see what the Government were proposing.
This is a chaotic way of proceeding. For most of the last two hours nothing has been said that bears any relation to the selection of amendments before us. With respect, Sir Michael, I repeat the request that we have a brief adjournment or suspension of the sitting to consider how best to proceed. Perhaps the Leader of the House might be tempted from 50 yd away, where he is no doubt watching these proceedings on screen, to come to the Chamber and suggest how we might proceed. If we now revert to the first selection of amendments, Sir Michael, and you call Members to make speeches and remotely try to keep to the rules of order, you will have to rule most of the speakers out of order as soon as they start dilating on half the things that the Home Secretary has just told us. That underlines why we have normal procedures—
The Second Deputy Chairman:
Order. A number of Members have asked for a suspension this afternoon, but we have proceeded in the circumstances in which we found ourselves. I am not in a position now to suspend the Committee, but I am in a position to make sure that we debate the amendments before us and their effects and ramifications, which are wide. If matters had been out of order, my predecessor in the Chair would have ruled them so. We are now simply wasting time—
The Second Deputy Chairman:
Order. It is important that we have some order. We have had interventions on interventions on interventions this afternoon, and it is very difficult to get order in those circumstances. It is time we moved on. The Chair will do his best to make sure that things are in order. I call Mr. Dominic Grieve.
I hope that it will be in order, Sir Michael, if I treat amendment No. 4, tabled by Mr. Griffiths, as a request to the Committee to include not only judicial oversight, but judicial participation in the making of control orders as proposed by the Government. I am obviously also aware that many other amendments follow on from that tabled by the hon. Gentleman— including some tabled by myself and my hon. Friends, and indeed, in some cases, signed up to by Members on both sides of the House—that provide different ways and mechanisms for doing that. Perhaps I can just say in passing, to avoid having to return to it, that new clause 6, which comes at the tail end of the group—I am very grateful to Justice for proposing it in such short order—provides a mechanism that would allow a possible way forward by providing such a system. I shall say no more about that at this stage.
Before my hon. Friend moves on and says no more about that matter, may I ask him about new clause 6? As he correctly says, it comes at the end of the great list of amendments about which we have not been speaking for the past hour and a half, and as it is a new clause, any vote taken on it will presumably come towards the end of our proceedings. Will he ask us to divide the Committee on new clause 6? It is clearly not only a matter that needs to be spoken about, but a public expression of opinion received.
I have some slight doubt about whether we will reach new clause 6 to put it to the vote, but it certainly struck me that it is the closest that we have come to finding a sensible mechanism if we are to pursue a line of discussion about setting up a sensible framework for judges to make decisions about whether control orders should be imposed.
I do not in any way wish to enter a discordant note, but I suggest that my hon. Friend look at new clause 6(8), which says:
"The court shall not impose any obligation under subsection (7) unless it is satisfied", among other conditions,
"that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998".
He will appreciate the fact that I have affirmed over and over again—this did not come out just now—that the problem is that the Government are in a jam precisely because the human rights legislation has created a lot of artificial distinctions that they are now trying to deal with. Does he accept that it would not be desirable for us to adopt provisions that have to be consistent with the Human Rights Act, and that new clause 5, which I tabled, would provide a way to deal with that?
Given that the Human Rights Act is on the statute book, I think that it were well that the Committee should seek to comply with it. There may well be wider issues about whether the Human Rights Act is desirable, or whether we should simply rely on the European convention on human rights, but for the present purposes of today's debate, I am comfortable with new clause 6 in the form in which it was proposed.
"is or has been involved in terrorism-related activity".
It goes on to say—I presume that this is the position of the official Opposition—that
"the court must apply the criminal standard of proof."
Surely if there is sufficient evidence to show to a criminal standard of proof that people are involved in terrorism-related activities, the thing to do would be to prosecute them for terrorist activities. Are not the Opposition ruling out the very problem that we are trying to tackle: individuals against whom there is not sufficient information to apply the criminal standard of proof, but against whom we still need to take action?
The right hon. Gentleman is slightly jumping the gun. We are considering the Bill in Committee. In theory, we are supposed to be moving amendments for consideration by the Committee, so that it may consider them. There are some perfectly valid arguments and points to be made about using a different standard of proof from the criminal standard of proof, although for the purposes of debate, I certainly share Justice's view that the idea of starting with the criminal standard is a good one. I am also mindful of the right hon. Gentleman's point.
One of our problems is that the debate in Committee has been completely corrupted: instead of our having the opportunity for informed debate on individual points, which is what I should have liked, it has been hijacked and we must move on to the rather different problem of evaluating the comments made by the hon. Member for Bridgend against the proposals made by the Home Secretary in his lengthy speech. It is to that issue that I shall now turn, but before doing so, I reiterate for the benefit of Mr. Denham that as we are starting with a model that is not necessarily word for word what we want, it struck me when I considered the various amendments that Justice's ideas merited careful scrutiny, and I flag that up in case we ever, which I rather doubt, have an opportunity to return to them.
I now turn to what the Home Secretary had to say. The nub of his argument is that although he has conceded, compared with his position last week, that there are arguments for the sort of mechanisms that the hon. Member for Bridgend wants for control orders that require derogation, he can see no reason or purpose for having them in cases that do not require derogation. As I hope was clear from my interventions, I find the Home Secretary's argument completely unsustainable, and I wish to take just a few minutes of the Committee's time to explain why.
First, I return to the comment that I made to the Home Secretary originally that elicited his remark that he was being patronised by lawyers. I certainly apologise to him; I had no intention of patronising him—rather, I thought that as Home Secretary, he would probably have access to a great deal of sound legal advice and opinion. However, I did not understand the point that he made. He had called in aid Lord Hope's comments in a case called Rehman in which he said that in deportation cases it was appropriate that the Home Secretary, rather than a judge, should make the decision when the wider national interest had to be considered. I suppose that, to an extent, the Home Secretary linked that to the comments that Lord Donaldson made earlier today, when he expressed some reservations about judges being the principal participants in the process of control orders that the Government wish to take up.
I wish to make two points about those comments. First, if Lord Hope was referring only to deportation—I have to tell the right hon. Gentleman that I think that he was—that is clearly different from a process whereby the Home Secretary decides to take powers not to deal with aliens by deporting them, which has long been accepted in this country as one of the very few Executive powers to deprive people of their liberty that the Home Secretary has, but to translate that into a completely new field, irrespective of whether it applies to foreigners or British citizens, where the Home Secretary, by Executive fiat, deprives individuals of liberty. I believe that the two things are entirely different in principle. The truth is that we are moving into completely uncharted waters.
Is not the difference also that with deportation orders, there is an appeal process before the action—the deportation—is carried out, whereas control orders will be implemented before any appeal process can take place?
The hon. Lady is right, and of course, I accept that the end result of the deportation process is not that people are permanently deprived of their liberty, but that they deported. So the two things do not have equivalence, but we in this country have always accepted—certainly, until the Human Rights Act began to bite—that the Home Secretary has powers to detain aliens, pending their deportation, subject to judicial scrutiny and safeguards. We are not talking about that; we are talking about, at worst, a system of Executive detention, and at best, a parallel system of justice with control orders based, most regrettably, on secrecy, on the inability of a defendant to be given the full facts that he must answer, and on a person being subject to a variety of constraints that would previously have been totally unknown in our law. That is the point.
The hon. Gentleman prays in aid Lord Hope's comments in the Rehman case and claims that they relate specifically to a deportation case. Of course that is right, but surely the point of Lord Hope's comments is that he was drawing a distinction and claiming that
"the whole concept of a standard of proof is not particularly helpful in a case such as the present . . . It is a question of evaluation and judgment."
He was talking specifically not about the kind of case on which he was sitting in judgment, but about whether we move to a new standard of proof.
I understand what Lord Hope was saying, but he was saying it with specific reference to the only circumstances in which the problem arose: deportation cases. We are not talking about deportation cases. Indeed, the right hon. Member for Southampton, Itchen, who is no longer in his place, rightly identified one of the new procedure's basic problems, which is that the ordinary standards of proof—whether proof beyond reasonable doubt, so that people are sure to the criminal standard, or on the balance of probabilities—have fairly marginal relevance, arguably, to the sort of procedure that we will be asking judges to carry out.
That is why I say to the Home Secretary that I have little doubt that Lord Donaldson's anxieties and distaste for this procedure, and perhaps slight desire to pass it back to the Executive, have their origin in not wishing to see the judiciary sullied by interference in a procedure that does not meet the ordinary norms of justice. That is a very big problem, and one that we will have to grapple with.
Does the hon. Gentleman agree that the problem with the Home Secretary's argument about the difference between derogating and non-derogating orders, as evidenced this afternoon, is that he seems to be telling us that we must let the penalty rather than the principle decide the process? Although the Bill will go to the other place, we are in danger of creating legislation in which those who are seen by the Home Secretary to be the greatest threat to the security of the state will have the greatest judicial protection, while those who are deemed to be a lesser threat to the state will have a lesser degree of judicial protection. That is a crazy system if the Home Secretary is serious about the fact that he will make the decisions about who is or is not dangerous to the state.
The hon. Gentleman makes a very good point, and I shall try to come to that issue directly.
If the Home Secretary can justify each and every control order that he seeks—not just the general overarching principle; it is the detail that matters—we must accept that we are setting up a novel and parallel system of justice that is thoroughly imperfect in terms of the rights of the person who is accused. As I said on Second Reading, when my colleagues first floated to me, as a lawyer, the idea of judges taking such decisions, I found that rather distasteful. It seemed to me to undermine the way in which I expect justice to be done. However, on reconsidering the matter, I have absolutely no doubt—the view seems to be shared by many Members—that if we really have to go do down this unpleasant and unsatisfactory road, it is much better that judges take the decisions. That will at least provide some protection for the individual and a sense of reassurance that he has been treated fairly.
May I put two points to the hon. Gentleman, and perhaps take him into the wider debate? It is not right to say that we have never had these powers before in this country in recent years—we have. We had them in Northern Ireland with internment, and a lot of bad messages came from that. Thousands of people were involved, and there was no judicial process. Similarly, there is no judicial process with exclusion orders. I have increasingly taken the view in recent years that because of the nature of the threat now—I will very much welcome the hon. Gentleman's comments on this—we should perhaps move towards what we seem to be moving towards anyway. I refer to an inquisitorial system of justice for the narrow area of terrorism. We are bringing judges into the process, and the reason why this problem is not faced in Europe is that people are locked up there while judges decide. That may be what we are deciding now.
I appreciate the hon. Gentleman's point, but I think that we are mixing two different issues. There is the perfectly valid argument—one that we have been pushing—that we need to review our criminal procedures to see whether it might be possible to bring suspected terrorists to trial more easily in view of some of the evidential problems that surround successfully prosecuting them. We have made proposals to the Government about that. We have said, "Allow intercept evidence, and have an examining judge collate the material." However, we have not gone down the road of having an inquisitorial process, as in France.
I have the pleasure of being half French. I am familiar with France, speak the language and have ample opportunity to see how the French judicial system operates in practice. It has many flaws, and they are flaws that I would not wish to see reproduced in this country. That is one of the reasons why I believe our common law system to be superior.
I agree very much with the hon. Gentleman; I would not want the French system here. However, on the narrow issue of terrorism, I wonder whether we could consider something that might work here with rather more controls than they have in France. Let us remember that they do it rather better elsewhere in Europe. Otherwise we will end up with a system of judges simply deciding the process, and not the whole court procedure.
I appreciate the hon. Gentleman's point, but we are at risk of straying from the subject matter of the Bill. I wish that this were part of the debate, but it is not. All I can say to the hon. Gentleman is that I believe that there is a way of trying to move in that direction without getting rid of the common law protections, and we have put that to the Government in debate on a number of occasions. Unfortunately, our proposal has not been taken up.
The suggestion made on Second Reading that France was very different because it effectively had Executive detention, with investigating magistrates able to lock people up for ever and a day, is a bit of a calumny on the French system. Although it allows for quite lengthy detention, that still has to be part of a procedure leading to court. If the procedure does not lead to court because there is not the evidence, no amount of investigation can justify detaining someone.
I appreciate that my hon. Friend does not want to linger on this point for too long, but has not Mr. Soley made the point that Lord Donaldson was frightened of this morning? Lord Donaldson does not want judges to descend into becoming advocates for one cause or another. He wants judges to remain impartial, disinterested referees or umpires, to use his words. We do not want judges to become advocates on behalf of the Government, MI5 or whoever it might be. Their role is to make sure that the Government do not apply unfair evidential or other tests to the detriment of an individual who should have his fair day in court. If we stand for anything, that is what we also stand for.
I agree with my hon. and learned Friend. My right hon. and learned Friend the Member for Sleaford and North Hykeham made that point powerfully and provoked the Home Secretary into saying, "On that basis, control orders are anathema to you."
To say that I dislike the control orders proposed by the Home Secretary is a serious understatement. I find them disgusting—there is no other way of describing it. However, I have to face up to the fact that the Government may be able to argue that however repellent and disgusting the orders may be, it is necessary to have a procedure for detaining people without the normal due process of law. The question that we must consider is, what is the best way of doing that, granted all the many imperfections? Although I understand that judges may not wish to participate in such a process, the opportunity for a judge at least to evaluate the evidence presented offers a better degree of protection than the Home Secretary doing it himself. That will be subject to many caveats, and we need to consider the detail in the rest of the Bill.
My hon. Friend is making an extremely important speech and I share his distaste. I am delighted by what he has said so far. Does he agree that we would have more confidence in the Government's case if some of the people released from Guantanamo Bay were now facing trial on charges and if we thought that the people who will be released from Belmarsh in due course would also face future judicial action? Is it not remarkable that none of the people who were arrested on suspicion can face trial for any offence at all? I thought we had strengthened the anti-terrorist laws.
My right hon. Friend is right to suggest that the Government have still not found a way of bringing to trial the people against whom they claim that they have massive intelligence information implicating them in terrorism. That is a serious issue, and it returns me to the comments made by the hon. Member for Ealing, Acton and Shepherd's Bush.
The issue that we must consider is whether judges should make the orders only in cases in which there is a derogation from the European convention on human rights or in all circumstances. On that issue, I found the Home Secretary's arguments incomprehensible. I could not understand why, having conceded that it was necessary for judges to become involved where there was derogation, that was not necessary or could not be done where there was no derogation. There was no coherence whatever in that argument. Indeed, there are compelling reasons for saying that the interferences with the liberty of the individual that are implicit and explicit in the various powers for which clause 1 provides are such that a judge should be required to make an evaluation.
The hon. Gentleman knows that I agree with much of what he is saying. Was he as surprised as me that one of the Home Secretary's arguments was the fact that he would be in possession of more information that would be likely to be of evidential value than a judge? If that is the case, does it not suggest that the whole judicial review process is likely to be flawed, given that matters on which the Home Secretary relies will not be relayed to a court?
I entirely agree. The hon. Gentleman might recall that in an intervention on the Home Secretary, I pointed out my puzzlement that the schedule to the Bill seemed to provide that the Home Secretary could be privy to information during the proceedings that he would not have to disclose to the judge, even though it might be relevant. He then said that the provision could perhaps be better worded and that an amendment might be tabled at some stage in the Bill's passage.
Let us be quite clear that as the Bill is drafted, the Secretary of State is not required to disclose information if he does not propose to rely on it during proceedings. That is remarkable, because I had imagined that if proceedings were to be held in front of a judge, he would be given all necessary information to decide whether the Home Secretary's application for a control order was justified. I do not think that the security of the state would be completely jeopardised if a judge were made privy to such information. Indeed, on a new Home Secretary's first day of work, he will be called upon to make orders on the advice of his officials, with no experience of the background situation in the Department. It is thus a little far fetched to suggest that the Home Secretary is privy to a magical understanding of what the security of the state requires that no one else may have.
We shall have to return to a further argument that the Home Secretary put forward at a later stage of the Bill's passage—or at some point, anyway, because we will not have a later stage. The Home Secretary will need to act quickly. He conceded that in the case of a derogating order, which is presumably the situation in which he must act fastest, he would go to a judge. In the case of a non-derogating order, however, I do not understand why he would need to exercise an Executive function from his bed at 2.30 am when the matter could be taken to a judge at that time. Furthermore, as I have said to the Minister for Crime Reduction, Policing and Community Safety—I hope that she will respond to this point at some stage—given that existing terrorist legislation allows the police to detain and interview people for up to 14 days if they suspect that a terrorist offence has been committed, I do not understand why the Bill needs to give Executive power for immediate detention to the Home Secretary instead of to the police in the usual way. The police would then decide with the Home Secretary that if no prosecution could be brought, an order should be applied for in the ordinary way.
Does the hon. Gentleman accept that the powers under the Terrorism Act 2000 relate to an ongoing investigation of someone who is involved in the preparation, committal or instigation of an offence? As control orders are preventive measures, consideration can be given to not only what has happened, but what might happen in the context of the threat as a whole. A different process of decision making will be used from that which applies when people are arrested on the basis that they have already committed an offence. This point goes to the heart of the matter. The hon. Gentleman is talking about a justice system that examines things after they have happened, but control orders are designed to deal with not only what has happened, but what might happen.
I do not think that I agree with the Minister. When the suspected terrorists were flown back from Guantanamo Bay, instead of coming off the plane and going into the bosom of their families, they were detained by the police, presumably to ascertain whether they had committed offences. After being interviewed, they were released. It beggars belief for the Minister to suggest that if people were suspected of serious involvement in terrorism, there would not be grounds on which the police could arrest them to ascertain whether criminal offences had been committed. I find it impossible to accept that, so I hope that the Minister will clarify her remarks because the situation seems very strange.
The problem might be that the Government, in their typical fashion, have tried to over-egg the pudding. The Secretary of State has put his case to the world through the media by saying that he needs the power because he might have to make an immediate on-the-spot decision in the middle of the night that could have important consequences for protecting people from an immediate threat of violence. I think the Minister would agree that under that test, the police would have ample grounds to intervene immediately.
Is not the absurdity of the Government's position starker than that? I have telephoned judges at all hours of the day and in the dead of night to get a civil injunction to prevent a newspaper from publishing a potentially defamatory article. It cannot be suggested that a judge would be disturbed by receiving a telephone call from the Home Secretary's advocate to say, "I'd like a control order, please." If a judge will grant a civil order to ban the immediate publication of a newspaper article, he will not jib one jot at being woken up to make a control order.
My hon. and learned Friend is right: there is absolutely no reason why a judge would not do that. However, I am making the point that given the police's powers of detention, there might be no need whatever for ex parte orders. There will be 14 days to establish an inter partes hearing, so the Minister's anxiety has little validity.
I want to allow other hon. Members to speak, so I shall bring my remarks to a close. We must face the fact that on any rational analysis, the proposals are seriously flawed. The Secretary of State made the distinction between major infringements of a subject's liberty and minor infringements. It is true that major infringements might be more reprehensible, unless they can be justified, but none of the infringements of a person's liberty proposed in clause 1 should be tolerated unless there are sound and persuasive reasons for doing so. The Committee must face the fact that the Bill is a long-term measure. I fear that such procedures and processes will be in place for years, which makes them entirely different from those in place during the second world war for the detention of enemy aliens, or even the unusual application on certain British subjects under regulation 18B.
I hope that the Minister will be able to respond to my points at some stage. No coherent argument has been made for rejecting the amendment moved by the hon. Member for Bridgend. If the Committee wishes to persuade the Government that from the beginning judges must make control orders, irrespective of whether they are derogating or non-derogating orders, the sensible thing to do is to vote for the amendment. I hope that the hon. Gentleman will press the amendment to a Division because such an expression of the Committee's opinion would be the best mechanism to present an alternative to the process that the Home Secretary proposes. The Home Secretary tries to persuade us that his proposal is acceptable, but I disagree. He has not made the case for his proposal. Indeed, by making his concession, for which we are grateful, he has gone a long way towards conceding the validity of the case that the hon. Member for Bridgend made.
It was said a long time ago this afternoon that the letter circulated by the Home Secretary rendered a number of the amendments otiose. I can probably say that it renders my amendments most otiose of all, in that he has accepted the principle behind my amendments to clause 2—that the decision should be made in the first instance by the courts. I rejoice in the fact that my amendments are otiose. That is welcome news.
I would rejoice unconfined if the Home Secretary had said that he would accept the text of my amendments. I have no doubt that the text is defective. I have never come across an amendment tabled by a Back Bencher about which a Minister could not find a reason to argue that it was defective. Indeed, one of my regrets from my period as Foreign Secretary was that we had few pieces of legislation and I did not have adequate opportunity to tell Back Benchers that their amendments were defective. Nevertheless, it would have been a better way of proceeding had the Home Secretary accepted my amendment, or one of the other amendments, and tidied it up in the other place so that when we depart from this place at the end of the day we would at least know what words we had agreed to, rather than expecting them to come back from the House of Lords in a week or two's time.
As a former Leader of the House, will the right hon. Gentleman confirm that even at this late hour it is possible for the Home Secretary to accept our offer of using Wednesday's Supply day to debate in detail the amendments that are, in effect, contained in the letter? It would also be possible for a business motion to be introduced to allow those amendments to be tabled right up to the beginning of the debate. Is that not what the Home Secretary should do?
On a personal matter, may I wish Mr. Cook a happy birthday?
I am glad that the right hon. Gentleman brought his remarks to a point of consensus in his conclusion.On the other matter, of course it is technically possible to have a business statement at any time in our proceedings, although it is rather late in the day for us to start all over again. The difficulty is that we are taking the Committee proceedings and the Report stage at one sitting. Had we separated those two, it would have been entirely possible for the Home Secretary, as he has sought to do today, to respond to the feeling expressed in Committee, to give the assurances that he has given, and to introduce the text for us to consider on Report, rather than doing that in the House of Lords.
Nevertheless, my right hon. Friend was wise to accept the thrust of my amendment, and I can give three reasons why that is the case. First, it is vital that we retain the separation of powers between the Executive and the courts. Any decision on the deprivation of liberty of the citizen should be a matter of judicial process rather than a political judgment. After all, it is our best protection against the arbitrary use of power by the Executive to ensure that any infringement of the liberty of a subject should be a matter of due legal process.
Secondly, the Home Secretary is the wrong person to exercise this particular power. My right hon. Friend said today, as he has said a number of times, that it is the Home Secretary who has responsibility for safeguarding the security of the nation. I would not argue with that—it is a perfectly fair statement—but it is precisely that consideration that makes him the wrong person to apply the control orders. The decision must necessarily be a balancing act between the evidence of a threat and the right to the liberty of the citizen. The place to put that balancing act to the test is in the courts. It should not be inside the Home Secretary's private office.
Only one thing concerns me about what the right hon. Gentleman said both on the "Today" programme and now. Although I understand where he is coming from, does he accept that he is effectively repudiating the history of the best part of 100 years—including the ruling by Lord Hoffmann in the Rehman case recently—in which the Home Secretary is assumed to have knowledge, experience and judgment which are, in the view of eminent jurists, including Members of the House of Lords, preferable to those of the courts? That was clearly stated in a House of Lords case only a couple of years ago.
My broad political ideology does not preclude me from saying that something that has been done for 100 years might possibly be wrong. On the specific issue, however, I have grave anxieties about the argument that the Home Secretary should have access to information to which the rest of us and the courts do not have access. I would be very reluctant indeed to go down the line of depriving a citizen of liberty on the grounds that the Home Secretary's information is not known to the rest of us, particularly in the light of our experience in this Parliament of the case for the war against Iraq.
I am wholly in sympathy with my right hon. Friend's comments. Does he agree that in the process of the Home Secretary having access to information to which no one else has access, one of the key details is that the person who is accused will not be able to hear what he is accused of? Is he satisfied with that?
No, I am not. There are good grounds for having an argument about what the disclosure rules and procedures should be when the matter comes before a court, but we must first get a case to court. If the decisions are taken inside the Home Office, there is little chance of the suspect having an opportunity to dispose of the matter of which he is accused.
This is not an ad hominem point. If my right hon. Friend were Home Secretary for life, I might be slightly more relaxed about the powers, but he will not be. Other people will become Home Secretary. It is theoretically possible that it may even be someone from another party. [Hon. Members: "Oh."] I am seeking to find a point of consensus without becoming controversial. The serious point is that we are giving powers not to my right hon. Friend as an individual, but to his post, and I do not think that they sit readily with his post.
I said that there were three reasons why my right hon. Friend is to be congratulated on his decision to accept the principle of my amendment. The third is that I worry gravely that the powers, in particular the power of house arrest, could be counterproductive in the fight against terrorism. Over the weekend, we heard of the new plans for the Maze prison now that it is to be demolished. It is, perhaps, appropriate to remember that internment was abolished not so much because of concern about civil liberties, but because it was proving counterproductive in the fight against terrorism. It was much more successful in provoking sympathy for the IRA than it was in assisting the police in combating terrorism.
Let us be frank. We all know that the control orders are most likely to be applied against citizens of Britain who are British Muslims. Those of us who have been in contact with that community know perfectly well the alienation and disaffection that has been caused among many young British Muslims by the way in which current powers under the prevention of terrorism legislation have been used. We need all the communities of Britain to work with us to ensure that we defeat the common enemy of terrorism, and we need all members of the British society to believe that they are allies in that fight and that none of them is a suspect because they belong to any one particular community.
My hon. Friend Lynne Jones anticipated my point. I am glad that my right hon. Friend the Home Secretary has accepted the logic of the argument in relation to clause 2, but that argument applies with almost equal force to clause 1. I congratulate him on a bravura performance of stamina at the Dispatch Box. It is perhaps a pity that the Oscar ceremony took place last night and his performance cannot be considered for an award. I feel a certain sense of guilt, in that I tempted him into accepting my amendment to clause 2, thereby creating some of the difficulty in arguments that he has had in relation to clause 1.
Listening to how the debate unfolded in the hour and a half when my right hon. Friend was at the Dispatch Box, however, it was impossible to avoid the point that the only distinction that could be made was a matter of degree, not a matter of principle. Indeed, he relied not on a qualitative argument, but on a quantitative argument. I am not sure that that adequately justifies adopting a different procedure for the two different forms of control order. Indeed, the restrictions on liberty in clause 1 are severe. They enable the Home Secretary to specify where the citizen will work, to whom the citizen will talk, where the citizen will stay, who visits him there and where he can travel to within the United Kingdom. We are talking not about where he can travel by leaving the UK, but specifically about where he can travel in the UK. Those are very grave restrictions on liberty. My right hon. Friend might be wise in the light of this afternoon's experience to tell the Committee before we conclude our business that he will reflect on the arguments that have been put to him and consider ways in which they can be brought into the text of the Bill before proceedings are completed in both Chambers.
Would it not be useful for the Home Secretary to bear in mind the fact that those of us who recognise the shortcomings and think that such a proposal could be counterproductive, but accept control orders for the reasons that we have explained, nevertheless feel very strongly—no less than Members who are opposed to the measures—that the matter of who is to be subjected to a control order should be initiated by the court? Clearly, the vast majority of Labour MPs on listening to the debate would certainly agree. If the Home Secretary is to concede, as he must do next door, he should do so earlier and to the House of Commons.
Like the Home Secretary, my right hon. Friend is a lay person; I am a lawyer. The Home Secretary seems to be putting forward a lawyer's argument that deprivation of liberty is a technical term that appears in article 5 of the European convention on human rights. However, if my right hon. Friend Mr. Cook went into a pub in Livingston—or if I went into a pub in Wolverhampton—and said that the Home Secretary had placed restrictions on an individual so that he could not go to work, speak to his wife, or use his mobile phone or computer, and that where he could travel in the United Kingdom was limited, he would find that the average lay person would think that that was deprivation of liberty.
I suspect that my hon. Friend accurately reflects what might be described as the public house commonsense view of the matter. I would add, though, that I would be cautious about accepting the idea of a lawyer's point of view. In my experience, there is no one single point of view that can be expressed as a lawyer's point of view. Indeed, one can usually find a lawyer to support any possible point of view. I very much doubt whether every lawyer will accept the distinction that we have heard made from the Dispatch Box today, and I would not be at all surprised, should this Bill reach the statute book and be implemented, if we found them arguing in the courts that the restrictions on liberty under clause 1 also require a derogation every bit as much as those under clause 2. I am conscious of the fact that a large number of Members wish to speak, so I shall conclude.
I mentioned that it has been striking how few voices have been raised in favour of the contents of the measure. One of the main reasons for that is that the places around the world where we find legislation parallel with what we are debating are not comfortable. I heard on BBC radio yesterday the chief of staff of F. W. de Klerk justifying the measure before us. That was not advice that I wished to hear or a source that commended the Bill to me.
Those of us who have spent much of our political careers condemning countries where it is possible to put citizens under house arrest on the decision of a politician on the basis of secret police evidence have every reason to be concerned about this Bill. I am glad that this afternoon we have been able to take the significant step to remove one of the worst offences of the measure, but I hope that my right hon. Friend the Home Secretary will reflect on what has been said and enable us to go further in order to remove some of the more offensive aspects of the Bill.
I do not intend to speak for very long because many Members want to speak. It has become clear from events this afternoon that what we say in this Chamber is not what will matter in the next 48 hours. That is a frustration for many of us.
It is difficult to decide whether we are debating a set of clauses or a letter. The clauses in front of us are unacceptable. Even though I welcome some of the measures that have been set out in the letter, the letter is also unacceptable. Therefore, regardless of how one interprets any votes later—it will be difficult to do so—for clarity I should say that whether in relation to the clauses or to the new proposals made by the Home Secretary, we will be voting against the measures.
We debated at length on Second Reading how it was unacceptable for the Home Secretary to give himself so much power to take away the liberties of others. I genuinely welcome his reflection on that and the fact that he has put forward in his letter a different set of proposals. They do not go far enough, but it would be churlish not to acknowledge that. Just as last week he was able to move on the issue of judicial involvement and judicial review, he has made a fundamental leap in recognising that the role of the judge is not to be one of just signing off or reviewing, and that they, rather than politicians, can take the decisions.
I want to flag up a few concerns about what the Home Secretary has proposed in his letter. If it were possible to table amendments to a letter, we would do so. Let us regard our proposals as a postscript to his letter. We hope that we can address them in more detail in another place and that at some point this evening the Minister will respond to them.
We have always acknowledged that if a judge were able to take the initial decision, we would have to overcome what I have described as the problem of the Home Secretary getting a call at 2 o'clock in the morning. In his letter, the Home Secretary outlined the way in which he would amend police powers. It is important that we understand more about that process. There is still the critical issue of whether the Home Secretary or the intelligence services would be directing a chief constable and quite how that relationship would work when that call comes through to the Home Secretary. We have acknowledged that, as a mechanism for achieving what we want—a judge deciding—there must be something to fill that gap.
In the letter, the Home Secretary acknowledges that we will be able to move towards a prima facie case within 24 hours. At the right time of day, that period could be shortened; it may well be possible to get through a court process a great deal faster than that. I see no reason why we should not try to move much closer to a point where that takes place almost as soon as the information is brought forward, instead of setting a limit of 24 hours.
I am listening with interest to the hon. Gentleman. I do not think that such a problem exists. If we want to get an injunction in the middle of the night to stop a newspaper publishing something, we can do so. The process of warrantry that covers a great deal of the intrusive actions of our various agencies can be undergone in the middle of the night, and indeed often is. Are we making too much of a problem of this? It can be dealt with by a judge at any point of day or night.
I would make two points to the shadow Home Secretary. First, I have acknowledged that the police powers to hold individuals for 14 days may not be acceptable. In relation to those current powers, we would be moving towards a definite charge; clearly, in these circumstances, we would not be doing so. Secondly, if we agreed to many of the amendments, we might be talking about judges who are security vetted and of different types. Therefore, it is unlikely that there would be many of them around at the drop of a hat, as there are for a newspaper libel action. However, I accept the right hon. Gentleman's point that we should try to narrow the gap between the Home Secretary seeking emergency powers and the considering of the prima facie case.
Another concern, and one at which the Lords will need to look, are the grounds for which a prima facie case can be considered. At the moment, it is suggested that that should be based on "reasonable grounds". Even though that would be at a very early stage in the process, we are uncomfortable that the grounds should be "reasonable grounds".
Thirdly, when will consideration be given in that process to prosecution? On many occasions, the Home Secretary has said that he intends to move to prosecution at an early stage, but could we not consider the prima facie case for prosecution? Under the Home Secretary's proposals, when will the consideration whether to prosecute occur? In our judgment, the sooner that matter is addressed in the Bill, the better.
The Home Secretary's letter is very quiet on the time that it would take to move from the prima facie case to applying for a full control order, and we have received no indication of how long that period would be. A period must clearly be provided to allow cases to be developed, and I would have hoped to receive some indication that we are discussing a not very long period of between seven and 14 days from seeking a prima facie case to moving towards a full control order being applied for and decided by a judge.
So far, we have discussed helpful steps in the right direction in relation to the powers of the judge and we seek clarity on how those powers will work. However, issues of fundamental principle also exist, and they mean that we are uncomfortable with the direction in which the Government are heading. Evidence is one such key issue and it is not satisfactory that the Government still intend individuals not to be able to see the evidence against them. At the moment, a special advocate can see such evidence, but they cannot necessarily share the information with the defendant.
There must be a way to allow a defendant to argue about matters of fact in such cases. It would be crazy if an individual had a charge put against them, but they were not allowed to know the information, although they had an alibi. We must be able to work through such matter of fact issues to make sure that a gross miscarriage of justice does not occur simply because certain levels of evidence were not considered.
May I draw my hon. Friend's attention to the evidence submitted to the Constitutional Affairs Committee by nine of the special advocates, which indicates the difficulty in which special advocates operate? For precisely the reasons that he has just given, the special advocates say that they cannot guarantee to secure justice for the people on whose behalf they are supposed to act. Their participation in the existing SIAC proceedings should not be taken as indicating that they are satisfied that those proceedings are fair.
My right hon. Friend has made an excellent point. The SIAC proceedings put not only the defendant but the special advocates in an impossible situation. Without a system to allow the basic facts to be heard on all sides, miscarriages of justice will occur.
I agree entirely with the hon. Gentleman. One of the problems that we face is that the Home Secretary makes concessions on the Bill when he is under pressure, but remains reluctant to allow detailed scrutiny of the entirety of the legislation, which today's Committee will certainly not provide.
I could not agree more, but we are where we are. Let us hope that the detail of those issues will be examined in another place and that we can make a useful contribution in Committee.
The hon. Gentleman is making some good points. I disagree with what Mr. Grieve has just said because we are discussing not substantive material that will go on in the Bill, but detailed rules of court. I have never understood why one should not know whether an individual has an alibi because one does not know the day on which they were alleged to have done something. If the special advocate knows the gist of the allegation, why should he not agree a series of questions with the judge to be put to the defendant? He would not have to ask, "What were you doing on
The hon. and learned Lady is right—the situation is not black and white. It cannot be beyond the wit of man and the good will of those involved in the process to create a way to establish issues of fact without giving away sensitive information. When the Bill reaches another place, I hope that the Home Secretary will examine ways to achieve that. I disagree with the hon. and learned Lady in saying that such issues should be dealt with in the Bill. The matters of principle must be addressed in some way in the language of the Bill before my hon. Friends and I can support it.
Vera Baird has said that the matter does not need to be dealt with in the Bill, but it is dealt with in the Bill because the schedule gives the Lord Chancellor the power to make rules that the High Court must accept. If the Lord Chancellor were required to engage in consultation, the schedule even presumes that the consultation in which he engaged before the Bill was passed would count towards it.
My right hon. Friend has made an excellent point. These are classic in the Bill issues and they are the bottom line on whether we will support the Bill in the future.
Mr. Beith has pre-empted my point, but I shall go further: is it not the case that the novelty of the procedures that we are setting up makes it all the more important that we should have some understanding of the court? Ordinarily, when rules of courts are provided by statutory instrument, everybody knows roughly what sort of rules will be introduced, but in this case we do not know because of the complete novelty of the procedure.
I shall clarify what I mean. The schedule contains a power, which is not altogether commendable, to make rules of court, but is not that power needed? The power to make rules of court must appear in the Bill, because one cannot not conceivably legislate for every detailed arrangement of the kind that I have suggested to the hon. Gentleman.
My position is not a million miles away from that of the hon. and learned Lady, but Liberal Democrat Members cannot support a Bill as an act of faith or on the basis of a statement from the Minister. We must understand how evidence will be heard within the mechanics of the process.
I want to discuss some other aspects of the Home Secretary's proposals, and I hope that they will be addressed in another place. On the standard of proof, the different clauses contain different standards of proof, but we cannot understand why different standards of proof are necessary throughout the process. It is possible to move towards higher standards of proof throughout the process, particularly if one is dealing with special courts in which one can achieve a standard of proof without revealing sensitive aspects of the evidence, which is difficult in an ordinary court process.
The Home Secretary took a large number of interventions on his justification for having a different set of rules for the higher and lower control orders—those that derogate and those that do not. Frankly, he was not convincing on that particular issue. I accept that there is a difference between placing someone under house arrest, tagging them, imposing a curfew, prohibiting who someone can see, or preventing someone from working, but in one way or another all those examples concern losses of liberty. If someone were to tell me with whom I can work, where I can travel and whom I can meet, I would regard it as a gross invasion of my liberty.
European jurisprudence accepts that those examples are deprivations of liberty, but the courts in Europe sometimes allow such deprivations on the grounds of proportionality or for the protection of national security. The distinction is not in principle, and it simply concerns what the court will and will not allow.
But that was not the Home Secretary's argument. He argued that because one punishment is worse than another, the process of managing that punishment should be different, in which case why do murder and theft both currently go before a court and a judge? The logical conclusion to draw from the Home Secretary's argument is that we should put murder in front of judges, but not bother with theft. Whatever level we are discussing, the principle should be the same whether we are discussing a higher or lower level of taking liberty away.
Does my hon. Friend share my concern that the Home Secretary went further and said that the difference between non-derogation and derogation was that only he would have all the evidence for non-derogation offences, which implies that people who were less of a threat and would not be detained would go through a more serious breach of justice?
There could have been some logic to the Home Secretary's argument if he had presented it the other way round, corresponding to the degree of severity.
Mr. Cook was right to say that this will be a sticking point, not least on the Government Back Benches. It is a pity that before the Bill goes to another place we could not hear from the Home Secretary, who has already made helpful concessions, that he is prepared to keep the door open and consider the issue again. Had that been the case, we would have felt that the debate had served some purpose, instead of such a concession being dragged out of the Government, kicking and screaming, in the House of Lords. Even if that does not become part of the Bill, it will be challenged sooner or later on legal grounds. I hope that the Home Secretary and the Minister will indicate that they are prepared the keep the door open, so that the same system is in place for a higher and a lower control order.
I agree with much of what the hon. Gentleman said, but is he not being too meek and modest? We are sent to the House to scrutinise Government legislation. We are not doing that today. We are discussing a statement that the Home Secretary made. Mr. Oaten says that we may, if we are lucky, be able to chat briefly about the scrutiny of the legislation in the other House, but that is not what we are sent here for. We are sent here to scrutinise and satisfy ourselves that the judgment of the Home Secretary and the Government is correct. We are not doing that with this Bill.
The hon. Gentleman makes an excellent point. I am a mild-mannered kind of guy and I find it hard to get worked up about these matters, but if I were worked up about the Bill, I would be extremely unhappy about taking part in a debate knowing that the points that I made would not be voted on tonight because the Committee cannot vote on the real issue. It is ridiculous that we are voting on a set of clauses that could be thrown in the bin. The issue on which we should be voting is a letter, which of course we cannot amend. That is frustrating, but all we can do is send a very strong signal to another place. If Members there do not listen, I hope that when the Bill returns to the House we are given more time and space to make our arguments at that point.
First, does my hon. Friend recognise the bizarre paradox that the Government are relying on a House that they constantly criticise for being unrepresentative to do the major scrutiny? Secondly, is not the point that my hon. Friend has made often the best reason why all sorts of control orders should be subject to the same process? If people are kept in their house, not allowed to go to certain parts of the country and so on, are not those just the people who are more likely to be martyrs to the cause if they have not had a chance to argue their case and show why they should not be subject to that decision? We are creating more and more people who are likely to be antagonistic to the Government and to the very liberties that we want to uphold.
My hon. Friend is right. Having a good system of justice in place is important in its own right, but it has the further important benefit that it does not make people feel that the system is working against them.
In conclusion, we have reluctantly accepted the need for control orders. We have acknowledged that there is a gap—a procedural problem—and a way forward must be found. I have acknowledged that the Home Secretary has taken some steps in the right direction, but they are tiny steps, and big leaps are needed in the future for the Liberal Democrats to support the Bill. We will need clarification on whether there is to be a two-tier system of derogation and non-derogation orders. We will need to see a proper system that allows evidence to be heard along the lines that we have discussed, so that the issues of fact can be dealt with. We will need convincing that the Government are serious about considering better standards of proof. Changes are needed to the legislation on acts preparatory to terrorism so that charges can be brought against individuals. There is a long way to go and at this stage we cannot support the Bill, letter, clause or whatever we are debating this evening.
I hope not to detain the Committee for long. Having been involved in debates on the prevention of terrorism for about 25 years, I feel that I have built up some knowledge of the subject. One of the few encouraging aspects of the present situation is that we seem to be much more concerned about the legislation than we were before, when the Liberals and the Conservatives would often vote together to keep the prevention of terrorism Act on the statute book.
I want to make one point about the past, and I make it to the former Home Secretary, Mr. Clarke as well. Successive Governments, Labour and Tory, renewed legislation in the House, often in overnight debates, and they did so at times when we were locking up several thousand people in internment in a ship in Belfast and elsewhere in Northern Ireland. We excluded people from one part of the United Kingdom to another, again without judicial intervention, under successive Governments throughout that time.
What we are doing tonight is not essentially different. I do not use that as an argument for supporting the Bill. My right hon. Friend Mr. Cook deployed one of the arguments that I used to use—that we were locking up many innocent people and, in doing so, losing support. But today there is a difference, and things have changed. I am pleased to say that the present situation is not nearly as bad as it was then. In the worst year of the 1980s, we locked up close to 6,000 people, of whom fewer than 1 per cent. were put on trial for anything to do with terrorism. The numbers now are far smaller, and the way in which the powers are used is a credit to the police. If they were used as they were in the past, I would be appalled at the consequences, particularly for the Islamic population of Britain, who tend to be in the front line on this matter.
I must say this to the Committee, and I say it carefully: I agree with the Home Secretary that the threat from terrorism is fundamentally different. That does not mean that we should conclude that what we are doing tonight is good. I shall return to that. The threat is fundamentally different, not only for the reasons given by the Home Secretary and others about suicide attacks and so on, but because the problem is so great when a terrorist organisation seeks to kill the largest number possible. Kofi Annan made a very good speech on the subject in London, but unfortunately he made it on the same day as Prince Charles announced his engagement to Camilla, so it got no mention in the press at all. He spoke about the threat of an attack on London, the numbers involved and the impact on the world economy if weapons of mass destruction were used. It was an important speech. He also spoke of the United Nations being a target for those organisations, as people who read the transcripts from al-Jazeera and other stations will know. The problem is fundamentally different.
My issue with the Bill is the same as everyone else's. I do not believe that anyone in the House, including the Home Secretary, is happy about taking such powers. I propose a slightly different way forward. If the amendments being discussed are taken a little further, they will apparently satisfy the Liberals and may satisfy the Conservatives. We should not be content with that. We cannot continue with a situation that has gone on for 20 or 30 years, whereby we try to deal with terrorism in a way that is not suited to the British judicial system. That was the point of my intervention on Mr. Grieve.
Let me make it clear that I do not like what the French do, but it is important to understand that the French system is not the only one in Europe. Importantly, the Europeans deal with terrorism by locking people up for long periods without putting them on trial straight away, but they have a judicial system for doing that. The reason, as I understand it—I am not a lawyer—is that the inquisitorial system allows them to investigate the possibility of proceeding with a case, whereas the British system, which is adversarial, requires two people to be put up, one on either side, which leads to the very problem that my hon. and learned Friend Vera Baird expressed so powerfully—it makes it impossible to take evidence in the normal way in a British court. However we dress this up, we will not be able to do that.
I have great confidence in the Home Secretary, who really does work hard on these issues to move them forward. That is one of the reasons why I will support him tonight. I also think that we need to do something because the threat is very severe. However, I do not want to leave it there. We recognise that we have to do something for the present, but we cannot continue to legislate on terrorism in this way, because we will end up going round this track over and over again. I have heard many of today's arguments before in the past 20 or 30 years. I fear that what will happen is what happened during that period, when the prevention of terrorism Act was renewed every year or every few years and the same debates took place over the same concerns. We must not fall into that trap.
I ask the Home Secretary to take the lead in bringing together the political parties represented here to consider a long-term solution to the problem. We should bear it in mind that the United Nations is now recommending that there be an international definition of terrorism. That proposal appeared in the high level panel's report in January and is likely to be accepted. It is also suggesting that it should be dealt with by the International Criminal Court or considered as a crime against humanity. There is potential in those areas.
We cannot go on with the traditional British way of doing this. It has not worked very well in the past, and it is satisfying no one, including, at present, members of the Government. I should like us to find a way forward and we can do that only if the Government and the major Opposition parties work together to consider our adopting, as I have suggested, a system along the European lines whereby for the very narrow area of terrorism we have an inquisitorial system that allows evidence to be considered before a court. I do not want Britain to have an inquisitorial system generally—it has many failings, as the hon. Member for Beaconsfield said—but we kid ourselves if we think that the common law system provides an answer to the problem that lies at the heart of the Government's difficulties: that is, that the current British system has no way of dealing with a situation where there is enough information on an individual, either from this country or from overseas, to suggest that they might do something that will cost hundreds, if not thousands of lives.
It is that serious and I ask that we try to find a way of producing a longer-term answer than this measure. For the moment, I will vote for it in the hope that the Home Secretary will continue to make concessions and to consider other methods, but even if he makes all the concessions that the Conservatives and the Liberals want, I will remain deeply troubled by this legislation. We cannot leave it here. We have not come up with a solution to this problem in the past 20 or 30 years and we need to take a long, hard look at the way in which we approach it.
I agree with some of the reservations expressed by Mr. Soley, but I hope that he does not end up simply voting for what we have got because he thinks that it is absolutely necessary. It is crucial that we spend the next few days or weeks—however long we have—trying to put adequate precautions into this legislation. I agree with him that the problem of how we deal with protecting the public against terrorism while protecting the essential values of our society and the freedom of the citizen is a critical matter to which we will have to return.
The Home Secretary began his appeal to the Committee by reminding us of the extremely serious threat that we face from terrorists in this country and stating that there were some cases that could not be proceeded with by an ordinary criminal prosecution in the ordinary process of the courts. Last week, he implied that many of his critics did not accept either of those points, so for the avoidance of doubt I should say that I agree strongly with both of them. We obviously face a very imminent terrorist threat. It is the duty of the Home Secretary to organise the defence of the country against such threats, and one cannot proceed by an ordinary trial in all cases. But there I pause. If we accept all that, and accept that we have to deal with it, we must make it clear that we must not allow those arguments to induce us to agree to things that we would regret upon careful consideration and which damage our society at the same time as they protect it.
We have lived with the terrorist threat for most of the past 20 or 30 years. To be fair, I would be prepared to concede that it has probably got slightly worse, but only because its practitioners now include people who will commit suicide themselves, whereas at least the terrorists of the IRA and the Angry Brigade tried to escape from the scene of the crime. Nevertheless, we have had to protect this country against many dreadful terrorist outrages—they were no small-scale incidents. In the time that I have been in this House, there has been a bomb in Westminster Hall. Colleagues and Members of this House have been killed by terrorists. We have seen big spectaculars. We can argue about who carried out particular attacks, but there is no doubt that Irish terrorist bombs killed a lot of young people in a packed space in a pub in Birmingham and a lot of people in a pub in Guildford. There have been the outrages at the Old Bailey and the Grand hotel, Brighton. Serious terrorism is not new to this country—it is not something of which we first became aware after 9/11 in the United States, although that outrage was even worse than anything that we had experienced.
As a result, we have sought to take precautions. The danger is that we will be tempted to keep going ever further out of a sense of fear and a spirit of revenge against those who perpetrated the last outrage. Fear is no guide to judgment whatsoever. The Home Secretary was not doing it today, but whenever I see, as I sometimes do, the Government resorting to trying to whip up fear of terrorism to take us into measures that we would not otherwise contemplate, we should all beware of going down that path.
I entirely accept that there are occasions on which one cannot have an ordinary prosecution—for example, where one is not quite sure what the man has done, let alone able to prove the crime that he has committed, or where one is not quite sure what he is planning, but has very good reason to believe that he is planning some major outrage and has to protect against it. There are also cases where one cannot have a jury because it will be intimidated and threatened, where one cannot let the man see witnesses because they will be intimidated and threatened, and where one cannot let the accused person see all the evidence because, if one has got the right man, he will discover the one thing that he wants to know—exactly how one found out what he was planning, which would be of great assistance thereafter.
I recognise all those difficulties, which we have had to face in the past. The hon. Member for Ealing, Acton and Shepherd's Bush was, again, right to say that we have been doing this for 20 years. When I was Home Secretary, and when the worst had passed and we were not interning thousands of people, the Labour party had the present Prime Minister as its shadow home affairs spokesman. I seem to recall—I do not think that he ducked out of it—that he led for his party in its vehement objection every year to the renewal of the prevention of terrorism Act on the grounds that exclusion orders were non-judicial, that they had no evidence behind them and that we had a draconian security process.
I mention that not in order to turn this into a partisan debate—which the Home Secretary had stopped doing, although he was obviously doing it in his public performances last week—but to remind the Committee how matters can slip and where we can be taken if every time a Government come back to this House with prevention of terrorism measures we are persuaded by the exigencies of the moment to give up yet one more protection and to go one step further. That is why I decided, when I heard about this Bill and when the Home Secretary made his statement, that we were taking a big leap by suddenly giving the Home Secretary—a Minister; a member of the Executive—the power to deprive a British citizen of his liberty and not making that a judicial action by an independent judge or member of the judiciary through some constrained judicial process. I am glad to say that we seem to be making some progress in pulling back from that, but we have to pull back a whole lot further, because this is a very important step.
I am tempted to say that, looking back over the years, some of the silliest pieces of advice that I was ever given urged me to do certain things on the grounds of security, protection of the national interest and prevention of terrorism. The second most silly have been on the grounds of health and safety: the blood is made to chill in the face of what might happen if one does not take some essential step. One has to count to 10 and say that the step is basically stupid, illiberal, unacceptable and disproportionate and that, if this society does not stop giving and receiving such advice, we must fear where we end up.
It is a convention of politics that Ministers always heap praise on their officials, which they do not always reciprocate. In particular, it is a convention that praise is heaped on the security services by all and sundry. I accept that we have excellent security services—they are essential and do a valuable job. However, I will go no further than to say that I do not believe that they are infallible. They are virtually unaccountable now, even though attempts are made to make them accountable.
One of my predecessors, the late Roy Jenkins, strongly advised me early in my term of office to keep an eye on what those people were doing, because I would never find out what they were really up to. I will say no more on that. Any Home Secretary who uncritically and unquestioningly takes the advice of the security services runs a risk on those occasional moments when they make a mistake or advise him to do something foolish.
There is a danger in our system of politics, which I have seen, that senior politicians and senior officials who have access to an exciting and hidden world of security will get carried away with their excitement. They can sometimes become vulnerable to advice to do things that, with hindsight, are not altogether wise. However, if I am not careful, that will get me back into discussions that we had last year about a war with Mr. Cook—the former Foreign Secretary—who is sitting next to Mr. Dalyell, and others. However, the idea that the public often have—that if the security services and the police demand something, it is unpatriotic for the House of Commons to refuse it—would be dangerous for us to accept.
I am worried about what we might slip into. My concerns are up to date and pertinent. Let us remember the position of the people who were in Belmarsh. The previous Home Secretary was completely satisfied—and, let us face it, so was the House of Commons, because we did not really make a challenge—that those people were so dangerous that they had to be incarcerated in the most secure prison that could be found in the United Kingdom for an indefinite period. Where are we now? The same people are to be let out and not pursued under the legislation. It is open to us to say that perhaps the original judgment cannot have been made as confidently as we were led to believe it was made at the time. Let us beware allowing misjudgments to enter into our deliberations.
Let us not be carried away by the concessions that are being hinted at and sketched out in exciting terms. I express my genuine gratitude to the Home Secretary for moving. He has come forward with explanations of judicial process, and I agree with the former Foreign Secretary, the right hon. Member for Livingston that the Home Secretary laid on a quite remarkable performance of an hour and a half, taking on all-comers in his usual combative way, wading through the rather thin paragraphs of his letter and trying to persuade hon. Members that he was on the way to an altogether more civil liberties-conscious solution. I am not wholly persuaded, however, that that will take us to where we want to go, unless we are careful.
The Home Secretary did not come to the House because he had genuinely changed his mind. He made it clear that he preferred the position from which he had started. He came here because it dawned on him and his colleagues that they were not going to get their Bill if they did not change it. Last week, I could not understand why they had not realised that. Most people, when they are running at a brick wall, eventually stop. I expressed the opinion in various interviews that the Government did not have the faintest chance of getting the principle through both Houses. The Home Secretary has now seen that. That is what brought him here, but he did not come in a forthcoming mood.
The Home Secretary followed the unfortunate Minister for Crime Reduction, Policing and Community Safety, who was put up to defend the ridiculous programme motion. She knew that the Home Secretary was going to change the Bill. She knew that the letter was being distributed—at that stage to favoured recipients, but eventually to us all. She also knew that the whole Bill would be rewritten in the House of Lords. However, she explained that we would have only a limited time—was it seven hours?—to discuss the whole shooting match, including Committee, Report and Third Reading, before the Bill went off to the House of Lords, when we would discover exactly what it was going to say.
The Minister gave no reason for that brevity. She did not try to argue, because everything had been decided. To be fair to her—she is still here to reply to this debate—she had no discretion to alter anything. The Leader of House, who could have done something, was sitting 50 yd away, refusing to come and take part in the shambles that had broken out on the Floor about the business of the House, which he had organised. The Home Secretary was lurking behind the Chamber.
I was touching on the spirit of the concessions. However, I shall return to the Home Secretary's description of the judicial process. I was merely indicating that he did not seem to be an altogether willing and cheerful bearer of good news to the House. We must consider his proposals with particular care.
The Home Secretary made the curious division of orders into two levels: the deprivation of liberty and the restraint of liberty. That struck me as the nearest thing to legal gobbledegook that I have heard in the House since last week, when we first embarked on the whole debate. He plainly did not want to change his proposals, but he realised that he had to for the most serious orders, so they would have a judicial process, although he would not do for the less serious orders, even though both involved exactly the same deprivation of liberty and exactly the same judgment.
It was explained to us why the serious orders could, to a certain extent, be decided by a judge—I will return to that—but the less serious ones could not. That is set out in the anonymous document from the Home Office that we received just as we began. The relevant paragraph on the second page, headed "Why should the Secretary of State make non-derogating control orders?", says:
"Control orders are preventative orders. They are designed to prevent future atrocities from happening—they are not designed to punish a person for past events."
That is true of all control orders. The serious ones are not based on any crime or past event that one is going to prove, but are preventive. Everything that follows in the document is applicable to all control orders, of all severity. The only reason the Home Secretary has made a concession is because he thinks that the House will get even more excited about locking somebody up than we will about taking their freedom of movement or their mobile phone. He wants to keep the lesser orders to himself.
I suspect that the real reason why the Government have from the start resisted involving a judge at all was because of the obvious objection: that judges have the habit of being more critical and letting people out. There are cases that are not possible to get past a judge. That is why the Government want to avoid a judge; otherwise, it is difficult to see the different judgment that divides the orders horizontally, as it were.
The description of the role given in the document concludes with a sentence that the Home Secretary plainly still believes:
"This is a role which the Secretary of State is best placed to carry out rather than the courts."
I simply do not understand that. The intellectual attainment of the average judge is roughly equivalent to that of the average Secretary of State, if not greater. The mastery of detail of the average holder of judicial office is at least equal to that of most people who hold great offices of state. Such decisions are of course a difficult matter of judgment and it is difficult to apply the ordinary burden of proof. However, judges have to deal with matters of judgment all the time—sometimes quite fine and difficult ones. Judges assess risk and what is necessary, weighing the public interest on the one hand against the need to protect the liberty of the individual on the other.
Judges will be more conscious of the overriding national interest in its fullest sense, and will be inclined to be a bit more liberal and libertarian than a Home Secretary relying on the advice of the security services. Let us not deceive ourselves—that is why it is argued that the Secretary of State is more suited to the role than a judge.
My last point deals with determining how we should look at the proposals on cases where a judge has been let in, when we get them. I am not sure how far the judge will be allowed by the proposals to supplant the Home Secretary to any effective extent. Only in the more serious cases is it suggested that the Home Secretary will have to go before a judge and apply for an order. That was always what I argued for: it is the key to the whole Bill. However, it seems that this will involve something like the committal proceedings of the kind that, in cases of ordinary serious crime, take place—or used to; it very rarely happens in that way now—before a magistrate prior to the committal to a Crown court. Under the new proposal, subject to the rather weak test set out in the first clause of the Bill, a person will go before the judge in the committal proceedings, which will be ex parte—that means that the other side will not be present—in a closed hearing. All that the Home Secretary will have to show to the judge is that there is a case to answer to go on to a full tribunal. Eventually, there will be an inter partes hearing at which the whole thing will be sorted out. I hope that, when we get the wording of the Bill, it will be absolutely clear that the decision to intern will be taken by the judge—first at the preliminary stage, and finally at the inter partes hearing—not only after looking at process and at whether the Home Secretary has behaved unreasonably, but after considering the case in the round and being satisfied at both stages that an overriding threat to the national interest is involved, and that the decision to incarcerate or confine the person will be proportionate to the risk that is seriously feared to be about to happen. That is not clear at the moment.
There are two other things that the judge should do. Prosecution is to be preferred in all these cases, and there is always a danger that people might not be prosecuted because they might be acquitted. Even the first judge at the committal hearing should have to be persuaded that there is a good argument for the case not following the ordinary process. New clause 6 provides that it should be the duty of that first judge to be satisfied that there is a good reason why the evidence—or at least a great deal of it—should not be put before an ordinary process.
The second thing that a judge should decide is how much of the information should be shared not only with the advocate who is going to challenge the evidence in the next court, but with the defendant himself. I shall not repeat what Vera Baird said earlier, but she made an extremely good point in this regard. The judge listening to the first hearing could make orders regarding the conduct of the trial. There is no reason why the Home Secretary and his security people should not have to sit down with that judge and decide how much information should be given to the defendant—and, therefore, his advocate—by way of a broad description of what he is accused of. They might not be able to tell him what the evidence is—they certainly would not be able to tell him how they got it—but he should be allowed to know that he stands accused of colluding with a particular person, planning a particular escapade, or whatever the allegation happened to be. All that needs to be set out.
I shall not go on because, as I have already said, we are discussing the Bill even though we do not know what it will finally look like. There are far more details to come. When they are drafted, the clauses on these provisions will be quite complex. It is laughable that we are all sitting here waiting for the true Bill to be drawn up and presented to the House of Lords. We all know that the Minister of State will again be put up to tell us that we have only an hour and a half, or two hours, in which to consider the whole shooting match when the Bill comes back to us. This House will be used as a cipher in this way until, one day, it stands up and rejects a programme motion tabled by some Government or another. These motions get more draconian year by year, and the one that we debated earlier—on the most serious Bill that the House has had to consider during the lifetime of this Parliament—is one of the silliest that we have ever had. If we are offered two hours in which to consider the Lords amendments, I shall invite the House to reject the programme motion involved, although that will be in the hands of Labour Members. The Government would not fall if the motion were rejected, and if they knew in advance that we were going to reject it, we might get a proper programme motion. There are ways round this problem, and we must have more sensible discussions in future.
Meanwhile, I shall vote for amendment No. 4 if it is pressed to a vote. All that we have is the Bill before us and a selection of amendments. At least amendment No. 4 asserts that we want a proper judicial process. We might as well send the Bill to the House of Lords in a form that slightly more closely represents the true feeling of the vast majority of the people in this House. The original Bill was a disaster, and we might as well make a few changes to it before we send it off to the Lords, where they will start all over again.
Many hon. Members have expressed concerns about control orders, so I shall not go into them further. I accept the Home Secretary's powerful case that we face a unique threat from terrorism, although there are degrees of difference because of the potential scale of the outrages that we might face. As Mr. Clarke has just said, the terrorists are prepared to kill themselves and are not looking for an exit strategy. That presents us with a different problem from any that we have faced in the past.
I would say to my right hon. Friend the Home Secretary that many of us are prepared to go down the road to control orders, provided that the safeguard of an independent judge making the decision in each case exists. That is fundamental to the way I feel about this issue. I welcome my right hon. Friend's concessions. He has listened carefully to the points that have been put to him about derogating control orders, as we can see from the fact that he is now prepared to have a judge consider such a case in the first instance and quickly thereafter hear the whole case at an inter partes hearing. I welcome that change, which has virtually satisfied me on that aspect of the Bill.
However, although the Home Secretary gave a considerable performance in taking so many interventions earlier, he completely failed to convince me that the same process that he now proposes for derogating control orders should not also be used for non-derogating control orders. I simply did not understand his arguments on that issue. The debate would have been greatly shortened if he had been prepared to make a concession on that point as well.
We have heard many arguments today about the difference between the restriction of liberty and the deprivation of liberty. As I understand it, the essence of the difference is that with non-derogating control orders, certain restrictions drawn from the list in clause 1(3) will be deemed appropriate to certain individuals. However, if that list grows, we could reach a point at which the restrictions on an individual could constitute a deprivation of their liberty, and the non-derogating order could become a derogating order. A completely different process would then be used. It is difficult to justify a difference of degree—that is what it would become—when some restrictions would be imposed under a non-derogating order, but if a few more were imposed, it would become a derogating order. The processes under which the orders would be considered would be completely different. The Home Secretary failed to justify that in his speech.
I am impressed by the fact that my hon. Friend is making exactly the same point as that made by Mr. Clarke a moment ago. The right hon. and learned Gentleman suggested that the changes had resulted from the Home Secretary recognising that he was running into a brick wall in the House last week. Is not my hon. Friend describing this week's brick wall? It is inevitable that the Home Secretary will have to concede this point and recognise that there is no distinction between derogating and non-derogating control orders. Surely it would therefore be better for him to do so in this Committee now, because he is going to lose this argument in the other place. It would be more satisfactory if we had a chance to scrutinise any new proposals that he is going to make.
I very much agree with my hon. Friend. It might not be inevitable—although it probably is—that changes will be made in the other place, and I hope that the Home Secretary will listen to his Labour colleagues on this point, for reasons that I shall come to, and on which I hope that he will reflect.
The Home Secretary has in some ways worsened the situation, in that the two processes involved in making the orders will now be even wider apart than they are in the Bill as it stands. Not only do we have the complete difference in process that was there before, involving a different burden of proof—reasonable suspicion in the case of non-derogating orders, and balance of probability in the case of derogating orders—but there is now a second difference. A judge will now be brought in at the very beginning in the case of a derogating order. Although the note that has been circulated on non-derogating orders says that there is a role for the judiciary on appeal in such cases, and the Home Secretary now says that that should happen within a given period of time, it would of course happen on judicial review.
A judge dealing with non-derogating orders will never reach the point of deciding at first instance whether the orders are correct and whether the proposed measures are reasonable. All that a judge can do at judicial review is decide whether the Home Secretary has behaved, at first instance, in a reasonable way—reasonable in terms of both process and decision following examination of the facts. The process will involve second-guessing the Home Secretary's decision all the time. That is the fundamental difference between the ways in which the two kinds of order, and the judicial roles, will operate.
The existence of two processes involving orders that are very similar, and in some instances different only in terms of degree, is a recipe for potential disaster. What if the Home Secretary says that he believes, in a certain case, that the balance of measures under clause 1(3) makes a derogating order necessary? What if that is subjected to due process and reaches the judges, and the judges decide that the balance of measures is wrong? What if they decide that fewer restrictions are appropriate in that specific case? What if that smaller number of measures then becomes the subject of a non-derogating rather than a derogating order? The court will not be able to deal with a non-derogating order. All that the court can do is decide on judicial review whether the Home Secretary was right to impose a non-derogating order—and in this instance the Home Secretary will not have done so. His initial view will have been that a derogating order was required.
I give that example because I think that the existence of two different processes aimed at addressing very similar issues could lead to complications. I hope that the Home Secretary will take it seriously. It is not a tricky example dreamt up for the occasion, but an example of something that could happen, which could slow down and interfere with the process that we are trying to bring about.
The Home Secretary has clearly stated that his most important duty is to ensure the security of the nation, and that that is his paramount concern. Today he has presented proposals to change the way in which derogated orders are made, and to involve a judge from the outset. Presumably he now believes that that is appropriate. Presumably he does not believe that it weakens the legislation or the fight against terrorism in any way. Presumably he would not recommend such an arrangement if he believed that it would do that. If involving a judge in derogating orders at first instance will not weaken the fight against terrorism, why should it weaken the fight against terrorism to involve a judge at first instance in non-derogating orders?
If my right hon. Friend cannot convince me on that point, I will find it very difficult to support him—and I think that that applies to other Labour Members, too. I simply do not see why involving a judge would weaken the legislation. I believe that it would provide the independent scrutiny that many of us want, and would enable us to vote for the Bill.
I agree with the last point made by Mr. Betts. Before that, however, we heard an important speech from my right hon. and learned Friend Mr. Clarke, who in the space of 15 or 20 minutes produced a pretty good criticism of the measure before us—or, at any rate, the measure that we think is before us.
These proceedings are, of course, entirely absurd. I accept that the Home Secretary came here to do his best to explain his change of mind, or at least a change in the expression of his policy, but I am afraid that that is not good enough. Nor is it good enough for the Minister of State, during her brief speech on the guillotine motion, to fail to mention the Home Secretary's letter to the shadow Home Secretary. Surely it was germane to that debate that the Home Secretary was about to refer in the Chamber to a letter that none of us had seen.
Having said that, I should add that it is not always best to choose the easiest route. The easiest route is, of course, that chosen by the Home Secretary—legislating by letter and hoping that no one will notice—but that simply will not do. It also produces a general lack of public consent for legislation that the House will pass.
We all have to put up with legislation of whose consequences we disapprove. The Government pass tax laws of which those affected do not necessarily approve; they pass all sorts of laws of which we do not necessarily approve. Criminals in the dock clearly disapprove of some of the laws with which they have become entangled. Nevertheless, all of us—whether or not we support the Government of the day—consent to legislation, because we broadly approve of the procedures by which it is passed. There is a general unspoken consent to the system.
That consent is important. Unless people respect the process whereby the law is made, they will not respect the law and will not agree to be bound by it. That is what leads to civil disobedience and a breakdown in our democratic system. I am worried about what will happen if the Home Secretary's proposals, as they appear in the Bill, are passed. What, for goodness sake, are we here to discuss in Committee? We are here to discuss a page and a half of amendments, as they appear on the selection list—43 pages in the amendment paper. We discover from a letter, however, that the Home Secretary has other plans: he wants the unelected House to have first sight of his new version of the Bill. Why did he make that speech here in Committee? He should have made it on Second Reading—a new Second Reading. What he has proposed, after all, is a fundamental reconstruction of his Bill and a complete change of policy.
I realise that in many instances it is inappropriate for everyone to see everything. I have not been involved in an espionage case at the Old Bailey, or in a case in which members of the Security Service have approached the judge with the aim of obtaining a public interest immunity certificate to prevent the defendant or his lawyers from seeing various details of the Crown's case. That happens, however. In espionage cases tried at the Old Bailey, and, no doubt, other important courts, part of the process may take place in camera so that public and press are excluded, or parts of the Crown's case are withheld from the defence. That is not wholly satisfactory, but so that some form of justice that is broadly acceptable can be achieved, the courts permit it, and Parliament has permitted the courts to permit it.
Here, the circumstances are rather different. I have attempted to intervene on the Home Secretary repeatedly to say that his system of legislating by letter is entirely inadequate, but let us consider what he is trying to do. He is telling the Committee that the arrangements for derogated control orders should be different from those for non-derogated control orders. He says that derogated orders should be given the benefit of judicial intervention. He is prepared to go ex parte to a judge, or at least get his representatives to do so, and ask for a quick assessment of whether there is a case for an interim order pending an inter partes hearing at which the Home Secretary's representatives, and, perhaps those of the respondent, will be entitled to appear and present their arguments before the judge.
It may well be that, for reasons of national security or for other reasons, the defence will not be allowed to see all that the judge sees. The judge himself may not be told all that the Home Secretary knows. But—if we set aside our initial disapproval of control orders—under the derogated process that we are told will be introduced through legislation by epistle, there will at least be some degree of judicial oversight. What puzzles me, and what has puzzled other Members this afternoon, is that the Home Secretary seems to make a distinction that does not exist—a distinction between the inconvenience caused to the respondent by a derogating order and the inconvenience caused to him by a non-derogating order.
Non-derogating orders are not confined to the categories set out in clause 1(3). If one goes through the list there, one sees some that may be capable of being non-derogating and some for which, clearly, derogation could be required. However, one is given no guidance in the Secretary of State's speech, his letter or the note that has appeared in the Vote Office which of the control orders in subsection (3) are likely to be non-derogated, which are likely to be derogated and which of those that are non-derogated are, when combined with others, likely to bring them into the category of derogated.
We are not given much comfort. Subsection (3) begins:
"The obligations that may be imposed by a control order on the controlled person include, in particular" paragraphs (a) to (o)—but there may be a host of other forms of control order that the Home Secretary has not condescended to tell us about in the Bill, in the schedule, in his letter or in his note. We are left to guess about those. He may have some other ideas that he does not wish to reveal to us today about what could constitute a possible control order.
Just because something is in clause 1 does not mean to say that it is bound to be a non-derogatable order. I think that I heard Mr. Cook claim that only orders under clause 2 would require a derogation from the convention. The implication of his remarks was that those set out in clause 1(3) would not. That is not what the Bill says. The Bill says that the Home Secretary is to be given power to derogate from the convention under clause 2, but in doing that and in finding it necessary to derogate from the convention, he can also draw into his order some, all or many of the powers to be found in subsection (3) of clause 1. Therefore, we should not be fooled into thinking that the sorts of control orders that will require derogation are more heinous or more restrictive of human rights and civil liberties than those that are to be found in clause 1(3). There is a massive absence of clarity both in the process by which these things are to be decided and in the way in which the Bill sets them out.
Take, for example, clause 1(8):
"For the purposes of this Act involvement in terrorism-related activity is any one or more of the following—
(a) the commission, preparation or instigation of acts of terrorism", which is fair enough,
"(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so", which is probably fair enough, and