New Clause 6 — Power to make control orders

Orders of the Day — Prevention of Terrorism Bill – in the House of Commons at 9:56 pm on 28th February 2005.

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'(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.'. —[Mr. Grieve]

Brought up, and read the First time.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 194, Noes 284.

Division number 102

See full list of votes (From The Public Whip)

Question accordingly negatived.

Motion made, and Question put, That clauses 1 to 13 stand part of the Bill, and That the schedule be the schedule to the Bill:—

The Committee divided: Ayes 281, Noes 198.

Division number 103

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Clauses 1 to 13 ordered to stand part of the Bill.

Schedule agreed to.

Photo of Margaret Moran Margaret Moran Assistant Whip

I beg to report that the Committee has gone through the Bill and directed me to report the same without amendment. [Interruption.]

Bill reported, without amendment.

Order for Third Reading read.

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

On a point of order, Madam Deputy Speaker. How can the Government Whip, Margaret Moran, say that the House has considered the whole Bill, when quite plainly we have not?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The House has followed the programme motion on which it voted earlier today. I am afraid that that is the fact of the matter.

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

Further to that point of order, Madam Deputy Speaker. I realise that the House has followed the programme motion, but we have not discussed the Bill. Should it not be in the power of the Speaker to inform the other place that we have not done that which we ought to have done?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The right hon. and learned Gentleman's point of order is not the responsibility of the Chair.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Further to that point of order, Madam Deputy Speaker. Is it not a fact that the Whip had no choice and that it is a parliamentary convention that she utter such words? We should deplore the fact that this House has considered just one part of a major Bill. With an hour's Third Reading we are sending it off to the House of Lords, yet we have not had the chance to debate any other of its important parts.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I can only repeat my ruling on the matter, that the House has followed the programme motion which was agreed earlier today.

Photo of Charles Clarke Charles Clarke Home Secretary 10:44 pm, 28th February 2005

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

Today's debate has been very important, and we have discussed the fundamental issues—the freedom of the individual, the right and duty of the state to protect the people within its borders and their interests from attack and the balance to be struck between the two. The Government take the view that we must take all reasonable and practical steps to protect people in this country from those determined to destroy our way of life, and the Prevention of Terrorism Bill does precisely that.

Photo of Charles Clarke Charles Clarke Home Secretary

No.

The Bill provides the police and security services with another weapon in their armoury. It is designed specifically to deal with one of the most difficult and challenging problems facing us—how we should deal with those whom we cannot prosecute or deport, but who are nevertheless planning and plotting against this country.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

On a point of order, Madam Deputy Speaker. The Home Secretary is purporting to describe a Bill, the clauses of which have not been discussed at all. It is difficult for the House to draw conclusions on Third Reading about the features of the Bill, when it has not had the opportunity to examine whether the clauses bear out the claims that he is making. Do you have an answer to that problem?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

I remind hon. Members again that the occupant of the Chair follows the programme motion, which hon. Members agreed earlier today.

Photo of Charles Clarke Charles Clarke Home Secretary

Control orders are preventive measures, not punishments, and they will be used carefully and only in serious cases. One has only to examine how sparingly the part 4 powers have been used to see that the Government take their responsibilities very seriously and act only when strictly necessary, and I believe that the same will be true of the new control orders.

As I have indicated today, with legislation of this type I believe—despite today's events—that there is great merit in seeking as wide a consensus as is possible across Parliament. To that end, I have today announced some changes which I propose to make to the Bill in the hope that such a consensus can be achieved—

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

On a point of order, Madam Deputy Speaker. Am I right in thinking that on Third Reading the Secretary of State is confined to the Bill as it now stands, not as it might become?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

The hon. Gentleman is correct in his assumption.

Photo of Charles Clarke Charles Clarke Home Secretary

I happily accept your ruling, Madam Deputy Speaker, because it allows me to move on to the main burden of the points that I want to make. We must remember why we are considering the Bill: we are considering it because the whole of this country, and not the Government or the Labour party, faces a terrorist threat. [Interruption.] Opposition Members do not accept the truth of that point. We face a terrorist threat, and those who think that we do not, who obviously include many Opposition Members, need to face the facts.

Photo of Charles Clarke Charles Clarke Home Secretary

No.

Al-Qaeda and its associates have a strategy to try to destroy the central themes of our democratic society, and this House must decide how best we can address that threat. In so doing, we must seek to analyse and understand the threat that we face, which we have done—we have laid the results before this House and are trying directly to assess the threat. Today's events clearly demonstrate that we must acknowledge that British citizens as well as non-British citizens are focused on the target of seeking to destroy through terrorist activity the society that we seek to represent.

Photo of Charles Clarke Charles Clarke Home Secretary

No, I will not give way. I gave way a great deal earlier today, but I will not give way at this point to pettifogging points of the kind that I think hon. Gentlemen are likely to make. We should discuss the arguments of substance around the Bill, and that is what I intend to do. The argument of substance—

Photo of David Wilshire David Wilshire Assistant Chief Whip, Whips

On a point of order, Madam Deputy Speaker. If the Home Secretary is arguing that we should discuss the Bill, why has he denied us the time to do so? Can you not make a ruling that enables him to keep his word?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

That is not a point of order for the Chair. I have already ruled on that. I call Mr. Secretary Clarke.

Photo of Charles Clarke Charles Clarke Home Secretary

Thank you, Madam Deputy Speaker. It is important that we debate on Third Reading the reason why the Bill is necessary, and why I hope Members will vote for it. The basic reason why I ask the House to vote for it is that we face a terrorist threat from British and non-British citizens—British as evidenced by the case of Mr. Badat today and of Richard Reid, and non-British as indicated by the events that took place in many other areas. We need to take the powers to address that threat.

Photo of Charles Clarke Charles Clarke Home Secretary

No, I will not. I acknowledge that in taking those powers, which are serious powers, and as I stated in the House on 26 January, are major issues for the House to address, we need to do so in a way that does our very best to respect individual liberty and the issues that arise in that regard.

Photo of Charles Clarke Charles Clarke Home Secretary

I contend that we have done just that in putting forward the measures that we have in the House. I hope that colleagues in the House making the arguments about Third Reading, as they will, will also face up to the question of how the British state should respond to the threats against it, which really exist.

Photo of Charles Clarke Charles Clarke Home Secretary

No. Should those threats be ignored, as I contend the Conservative Opposition seek to ignore them? Should the measures be amended, as the Liberal Democrats, in fairness to them, have argued throughout the debate? [Interruption.]

Photo of Charles Clarke Charles Clarke Home Secretary

I conclude by referring to the core fact that we should all take account of what our electors sent us here to do. Our electors sent us here to protect the liberties of this country. [Interruption.]

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. The House must come to order.

Photo of Charles Clarke Charles Clarke Home Secretary

When asked in The Daily Telegraph poll today,

"Do you agree or disagree with the following statement? 'It may be necessary sometimes to take action against people who have not yet committed any offence, but about whom the intelligence services have evidence that they are planning an act of terrorism'— a good question—82 per cent. of Conservative supporters said yes, 13 per cent. of Conservative supporters said no. In the same way, when asked directly whether—this is precisely the point made by a stream of Opposition Members during the debate—

"In opposing the Government's Bill and saying that Parliament should take longer to consider the matter, the Conservatives are playing politics, rather than displaying a genuine concern for civil liberties".

53 per cent. in The Daily Telegraph poll said yes, it is true that the Conservatives are playing politics and 29 per cent. said no. Finally—[Interruption.]

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I understand that feelings are running high in the House this evening, but it does not help us at all when there is so much noise in the Chamber.

Photo of Charles Clarke Charles Clarke Home Secretary

No, I shall not give way. I have made that clear throughout.

As for the charge made against the Government by many hon. Members that the Bill is further evidence that we are instinctively authoritarian and do not care enough about civil liberties, the poll for The Daily Telegraph shows that 33 per cent. of people agree with that, while 50 per cent. disagree.

Why do I cite those figures in this Third Reading debate? For one simple reason—[Interruption.]

Several hon. Members:

rose—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I think that the Secretary of State has made it clear that he is not giving way.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

On a point of order, Madam Deputy Speaker. If the Home Secretary is going to keep asking questions, will he please say that they are rhetorical questions, to which he does not want an answer?

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

That is not a point of order for the Chair.

Photo of Charles Clarke Charles Clarke Home Secretary

The hon. Gentleman makes a good point, except that he ignores the fact that I have given the answers of the British people, who reject the position of the Conservatives.

I cite these figures because we must never forget, as we consider the very important legal and other arguments about the balance of security versus the issue of individual liberty, that what the British people want us to do is to protect their national security. I hope that this Bill will be given its Third Reading.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:56 pm, 28th February 2005

I am truly sorry to see the Home Secretary mired in these fantasies and delusions of his own making. He comes to the House, presents a Bill and commends its Third Reading to the House, yet he knows that the debates in Committee have shown that it contains serious flaws that he has to rectify, and that his Government, through the Whips on his Treasury Bench, have, through their programming, denied the House of Commons any opportunity to consider its details.

We are being invited to vote on a Bill having not considered the following matters: the obligations on the Secretary of State in connection with control orders; the content of control orders; the definition of "terrorist-related activity"; the balance of proof in relation to the making of control orders; the abolition of a distinction between non-derogating and derogating control orders; the duration of the Act, which some Members might think a most important issue; the content and delivery of a notice of modification of an order; the power of the court to make a conditional discharge; the mechanisms of appeal; the possibility of providing for costs and damages if wrong is done to the individual who is adversely affected by these measures; appeals relating to derogating control orders; reviews; and control order proceedings in the schedule, which, as Members have commented in the short debates that we have been able to have, is clearly a document of the mightiest mischief, because it provides a mechanism whereby this Government—in whom I have to say that I no longer have any confidence whatsoever in terms of the maintenance of civil liberties in this country—can produce whatever they like by way of rules of court in an area of novel power-making.

How has this situation come about? Over the past week, the Home Secretary has weaved backwards and forwards between saying, when he wishes to appeal to one audience, that this is a non-party-political matter that requires serious consideration, and then denouncing one Opposition party or another for playing politics. Most of the time it has been my party that has been accused of playing politics, but when the Liberal Democrats have stood up against him, it is allegedly they who have been doing so.

The shallowness of the way in which the Government have embarked upon this project is breathtaking. Although they have known since 16 December that their existing powers were wholly flawed, all they did in the intervening six weeks was to go behind the scenes and decide to try to cobble something together. Here was an opportunity for the Home Secretary, in the new job that he had acquired, to show that he would rise to his office. He could have approached any party for consultation on a pre-legislative basis, but no. He and the Prime Minister, having decided what they would do, graciously extended the opportunity to come into the big tent. However, the moment any objection is raised, one is cast into the outer darkness.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

Does the hon. Gentleman agree that, from the time of the Anti-terrorism, Crime and Security Act 2001 and that of the imprisonment of people in Belmarsh, the Government have issued no invitation to take part in two or three-party proceedings to discuss what should happen if, ultimately, the courts ruled, as many of us argued, that their proposals were illegal?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with the hon. Gentleman—what he says is the absolute truth. I believed at the time that the lack of consultation was due to the bizarre and individual attitudes of the previous Home Secretary. However, it has become clear that he has spread contagion throughout the Government because the current Home Secretary has adopted all his worst vices in his approach to the matters that we are considering.

What are we to make of the Home Secretary's coming to the Dispatch Box a few moments ago and reciting a series of mantras about the public opinion polls? I stress to him that 99 per cent. of people in this country might believe in the Bill, but I would not vote for it. Hon. Members who consider their consciences, the way in which the Government have gone about the matter and the enormity of what is involved, can readily dismiss the appeals to public sentiment, whether it is accurate or not.

The Government are highly populist. The Prime Minister picks his position carefully. If he believes that he can take some shallow swing of the popular mood with him, that justifies his doing anything, however authoritarian, illiberal or undermining of the constitution. The long-term damage is enormous.

I cannot understand how a Government who were elected for the first time in 1997 on the back of commendable promises about their standards of integrity could descend so rapidly into the gutter, in the way in which we have witnessed in the past few weeks.

The Bill does not deserve a Third Reading. It is fundamentally flawed. It could be made tolerable, but we have been allowed to do nothing to enable that to happen. Every hon. Member should consider sending a signal to the other place that we need its help. Heaven knows, we do.

We have demeaned ourselves in the past 24 hours. We have allowed a measure that is poor in quality, content and concept to pass through its Committee stage. We have one last opportunity to say that, although we are prepared to consider the problems that confront the Government, we are not willing to put up with such a dog's breakfast, which so undermines the basic principles of liberty in this country. I therefore ask hon. Members to vote against Third Reading and repeat the signal.

We hear a lot about standing up to protect people. I do not need lessons from the Home Secretary about protecting people. I am satisfied that there is a threat to this country but one does not solve it by turning into a coward and dying a thousand deaths, which the right hon. Gentleman appears to invite the population of this country to do. It is possible to respond to and deal with terrorism in ways that are compatible with our freedoms and liberties. The Bill fails that test completely.

Photo of Mr Tam Dalyell Mr Tam Dalyell Labour, Linlithgow 11:04 pm, 28th February 2005

Third Reading provides an opportunity to ask a question about the constitutional position in relation to Scotland. Jim Wallace, the Deputy First Minister of the Scottish Parliament, raised the prospect of his party at Holyrood triggering a constitutional showdown with the UK Government over the latter's plans for house arrest without trial for terror suspects. He said that the Liberal Democrats would refuse to support aspects of the Bill that fell within the competence of Scottish Ministers and on which Holyrood had to agree, courtesy of a device called a Sewel motion, to allow Westminster to legislate for the whole of the UK. That would mean that, if it came to a Holyrood vote, only Labour MSPs would be certain to support the Sewel motion supporting the Home Secretary. Frankly, I would add that some Labour MSPs would not be dragged by wild horses into such a Lobby.

That would mean that, with the main parties also against the plans, the Home Secretary would fail to secure the agreement of enough MSPs for the legislation to cover Scotland. The UK Government would have no choice but to ignore the views of MSPs and, for the first time since devolution, impose legislation in the teeth of Holyrood opposition. I ask the Home Secretary for his comments on this serious situation for us north of the border.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 11:06 pm, 28th February 2005

This is a debate of the utmost gravity on a matter to which the House should give the highest priority: not only the safety of the people of this country but their liberties. I accuse the Government of dereliction of duty over the past three years for not having sought an acceptable formula to deal with a threat that we acknowledge. I find it incredible that a Bill of this importance should have received no Committee or Report stage today. Instead, it received a mutant form of Second Reading for the second time, which will have to be repeated when the Bill comes back from the Lords in unrecognisable form. A number of new clauses and 227 amendments have simply not been debated today. When will the House get up off its knees and tell the Executive, "Enough is enough. We will not put up with abuses of this kind"?

We are told that the Home Secretary has made a serious concession by accepting the need for judicial oversight of derogating control orders. We are grateful for that; it is a measure that we have argued for and that we believe should be in place. It cannot be right that a citizen of this country should be put under house arrest by the diktat of a member of the Executive, rather than by the courts. Perhaps the Home Secretary believes that that concession is sufficient to win the support of the House, but if he was not disabused of that idea by the debate, I hope that he was disabused of it by the result of the Division and the reduction in his Government's majority. That will send the clearest possible signal to the other place that there is a high level of dissatisfaction with the proposals on both sides of the House.

That is hardly surprising. We have not even seen the concession that we have been promised. The Home Secretary could not bring himself to table amendments on the provision in this elected House so that we could debate it. It is based on a prima facie hearing before a court in which he originally said, with a slip of the tongue, that consideration would be on the balance of probabilities. He then corrected himself and said that there would need to be reasonable grounds to suspect that an individual had been involved in terrorism. That is exactly the low level of proof that has given us so much cause for concern already.

We then come to the argument about non-derogating orders. Most people outside the House will not have a clue what the distinction is between a derogating order and a non-derogating order in the context of the Bill. I have to say that many of us inside the House do not have a clue either. We have heard cogent contributions, particularly from Labour Members, pointing out the deficiency of the proposals in regard to appeals and to the definition of a derogating order.

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

Does the hon. Gentleman agree that that difficulty of understanding may explain why 59 Labour Members voted against the Government in the first Division, including seven Privy Councillors, the Father of the House and three former Cabinet Ministers?

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

I thank the right hon. and learned Gentleman for putting that on the record, because it makes it clear that for each hon. Member who voted against the Government there was at least one, perhaps two, who disagreed with what they intend to do. If the Government think they can get the Bill through the House in this form, they are mistaken: it will not pass.

I have heard the Prime Minister trying to explain the Government's position, and trying to win the favour of the country in, apparently, an all-out bid to impress readers of The Daily Telegraph, as we just heard from the Home Secretary. His basic argument boils down to this: "What would people think if we knew that someone was a danger to the country and did nothing about it, and then an atrocity was committed?" I would ask the Prime Minister and the Home Secretary this in return: what would people think if the Home Secretary knew that someone was a danger to the country, but did not have the tools to do anything about it because of a totally arbitrary distinction between derogating and non-derogating orders and between whether he goes to a judge one week later or in the first instance, and an atrocity was committed?

This is nonsense. It is possible for us to reach a consensus; why on earth are the Government refusing to allow that to happen?

Photo of David Winnick David Winnick Labour, Walsall North

Following the intervention by Mr. Hogg, may I say that I speak purely and simply for myself? As one of the 59 Labour Members who voted as we did—I make no apologies for that; far from it—I shall vote for Third Reading for reasons given by the Home Secretary, but I shall do so in the hope that, one way or another, what we want and what the hon. Gentleman wants in terms of control orders will be brought about.

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

I hear what the hon. Gentleman says, and I note his intention. I am grateful for his support in the Lobby earlier, but I am saddened that he now feels able to support the Bill in a triumph of hope over experience. I am surprised that he puts his trust in an unelected House rather than in this elected House of Commons to get the legislation right.

There are many points that we have not had an opportunity to debate: the standard of evidence required to deprive someone of his liberty, or restrict his liberty; the rules of court and the admissibility of evidence, and the degree to which evidence can be shared. Of course we understand that there are matters that it would not be proper to share with the accused in this instance because of the risk to security, but it would not be impossible to devise protocols allowing people at least to know the broad outline of the charge against them. That is the basis of our judicial system, and it is not one to be lightly thrown aside. We have had no opportunity to make prosecution under the laws of the land—in a proper court, conducted through the Director of Public Prosecutions—a priority in statute.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

As the hon. Gentleman knows, I am fundamentally opposed to the principle of Executive detention and Executive orders, but his argument has lost me slightly. Is he saying that the Liberal Democrats do not want defendants to have access to the evidence against them?

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

That is precisely the reverse of my position. I shall leave it at that.

I also think it important to ensure that the conditions of an order are intelligible to the person on whom they are imposed. Many such people will not have English as a first language, but there is no such provision in the Bill. Mr. Grieve raised another important point, about the temporary nature of the legislation. Surely we do not envisage the state of emergency described by the Government as being of indefinite duration—or perhaps we do. If so, the Bill deserves better scrutiny; if not, there should be a clear limit to its duration.

In short, the Bill as it is formulated simply will not do. I repeat that we recognise the dangers that the Government describe. We recognise the need to ensure that our citizens are properly protected. We are prepared to continue the dialogue and hope that it will be more fruitful than it has so far been, while acknowledging the very small movement that the Home Secretary has accepted. We believe—this is a fundamental principle—that the safety of the people is paramount, but the liberties of the people are also paramount. This House and the Executive have to find the balance. Frankly, this is no way in which to do it.

Photo of John Denham John Denham Chair, Home Affairs Committee 11:15 pm, 28th February 2005

In the 12 years or so that I have been in the House, the number of days on which what happens in the House of Commons Chamber seems to matter have each year declined dramatically, so it was fun to be here today and last Wednesday, when one got the sense that an actual debate was taking place.

It is interesting to consider how today's and last week's debates will look in two or three years. What conclusions will we draw? I suggest that we will draw a number of conclusions. One will be that some of the complaints were overstated. Our ability to restrict the liberties of citizens and to detain people without trial will be considerably less than that of France, Spain or other countries similar to ours, whatever the outcome of the Bill. That has sometimes been lost sight of in the debate on the current legislation.

Secondly, we may recognise that, in our society, there are many circumstances in which people's liberty is restricted without their appearing before a judge for quite some period—I am thinking of the Mental Health Act 1983 as well as of police powers. So let us put the matter in perspective. Some of the discussion today, which has focused so much on judges, has taken us away from the more fundamental debate, which appeared only from time to time: whether it is right at all to have the sort of restrictions on freedom and liberty that are implied by control orders. I believe that that is necessary and that the terrorist threat justifies it. It is a shame that the inability to resolve the issue about judges has stopped that being the central focus of today's debate because, for a lot of people in the Conservative party and for some Labour Members, that is an even more fundamental issue.

Thirdly, I am sure that the Bill will be amended in another place and we will revisit it. Clearly, it is not capable of giving us the structure that we need to deal with these terrorist issues for the future. We must ensure that, over the next two or three years, that structure is put in place. If I am right in thinking that there is a group of individuals against whom we cannot put together a court case for a criminal hearing and we have to take action, the real challenge is that neither the process of the Home Secretary looking at the evidence nor a judge having it presented to him or her will prove to be adequate. Where the security services produce evidence against an individual, it is important to interrogate that evidence as effectively as possible, to consider not just a control order but the other strategies that could be used against that individual, and to weigh the overall national security risk.

I believe that that role can be performed only if there is a procedure that takes on board some of the elements of the investigating magistrate that one has in other jurisdictions. Judges will be able to consider whether a control order should apply. It is much more difficult for them, in any of the proposed procedures, to consider that option against the other options and strategies that could be considered for dealing with that individual. I tabled amendments, which we did not reach, to expand the role of the Director of Public Prosecutions, not simply so that there was a public certification of the inability to prosecute; it was with a conscious eye on the need to develop some investigative capacity within the state, perhaps with a judicial role, to carry out the type of investigation that is necessary. I am absolutely convinced that that is the direction that we need to explore and move in over the next couple of years. We will make what progress we can on this Bill and get it into the best possible form, but I doubt that we will achieve that by Tuesday.

Photo of Charles Clarke Charles Clarke Home Secretary

Does my right hon. Friend accept that I share precisely his view that we need to address this issue in the round? He has explained the situation admirably, and the time scale of two to three years that he sets out is the right way to proceed. We cannot deal with this issue immediately, and the direction that he has describes is entirely correct.

Photo of John Denham John Denham Chair, Home Affairs Committee

I am grateful to my right hon. Friend. When the Bill is debated in another place, I hope that the Minister with responsibility for it will be able to give a little more in the way of a definite commitment in that direction. Many of us would be happy with the Bill if we thought that further movement would be made along those lines.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

Does the right hon. Gentleman accept that the logic of his argument is that we should seek to deal with the problem that will present itself in March, when we will be unable to renew an illegal law and people will have to be released from prison? If we limited ourselves to doing that and nothing else, we could give proper time in due course to the wider issues that he talks about.

Photo of John Denham John Denham Chair, Home Affairs Committee

I do not entirely agree with the hon. Gentleman, and for this reason. The law that we would have to renew in March, but which we cannot because of the Law Lords' judgment, applies solely to foreign nationals. I do not necessarily believe that we have a year or two before needing to put in place a framework to deal with British citizens who might be involved in terrorism; some moves in that direction are necessary now. But I say with all due respect to my right hon. Friend the Home Secretary—he has approached this entire debate with great openness, but he needs to respond further—that although he has at no stage proposed anything that deserves the name "Executive detention", the proposal looks like that and can be presented as such. We need a proposal that cannot be described in those terms, because the wider misinterpretation of the Bill will be too damaging. Our constituents must not be made to feel that their liberties are being restricted by Executive action.

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

Is my right hon. Friend not concerned about paragraph 8(2) of the schedule in particular? The effect of non-derogating control orders not being subject to prior judicial decision will be that, even if an order is quashed or a court refuses to renew it, the Home Secretary will be able to exercise his power to make a new order in respect of the same matters—in whole if necessary—because he failed to achieve such an order in the first place. In other words, it is rather like the cat and mouse Act, in that the Home Secretary can keep bringing the matter back before the courts. In the meantime, the person subject to the control order has had their liberties infringed.

Photo of John Denham John Denham Chair, Home Affairs Committee

I cannot answer for the Home Secretary, but I believe that he said earlier that he is willing to look at the schedule's wording. However, it is a shame that that has to be done in another place, rather than here. Round-tripping of the sort that my hon. Friend describes would clearly be unacceptable, because that would be getting into the territory of Executive action untrammelled by judicial review. [Interruption.]

I hear a number of Members asking how I can say that the proposal does not constitute Executive detention. A process initiated by the Home Secretary, swiftly followed by a judicial process, cannot be equated with those regimes around the world in which people are locked up simply on the say so of politicians. To make that equation is to distort what has taken place; none the less, the danger that the Government must recognise is that that is how the Bill will be presented in the popular language, unless it is further amended. The only way out of this situation now is to have an initial judicial role for all types of control order.

I finish on this note. However hard we now work to get the Bill in order, it is only a stop-gap measure. It cannot provide the lasting framework that we need to deal with a problem that, I am afraid, will be with us for many years.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West 11:24 pm, 28th February 2005

Mr. Denham has done the House a service in talking about the Bill as part of the approach that the Government and Parliament need to adapt to the problems of terrorism and justice. One of the issues that matters to me is what happens when someone becomes subject to a control order. Who can speak for them; who can advise them; who can raise queries about them on the basis of information?

In evidence provided to the Select Committee on Constitutional Affairs six days ago, the special advocates said that they were first briefed by a man from the Treasury solicitors who was not security cleared and who was then unable to provide them with information relevant to the security problems that had to be faced. Even if we believe that 95 per cent. of the people who are fingered or targeted under the legislation are in some sense guilty or rightly suspected, let us assume that neither the Government nor their agencies are 100 per cent. correct. It seems that a special advocate, who is appointed not by the person under suspicion but by the Government, is not allowed to resign. That may be a technical issue for some people, but it really matters.

It is significant that the sort of terrorist suspect that we saw during the IRA troubles could secure a lawyer such as Gareth Peirce to establish alibis and demonstrate that suspicions were not well founded. If that is to be thrown away, I firmly believe that the House has a duty not to leave the Bill to the other place, but to call the Government, the Leader of the House and the Chief Whip to account and invite the Home Secretary to explain openly the problems that justify the approach that he is adopting in the Bill.

The truth is that some of us, probably including the Leader of the House, took pride in breaking control orders when they were applied to people in South Africa or when prevention of terrorism legislation was used to control people such as the late Reverend Beyers Naude, or when the defence and aid fund was used to channel funds from Scandinavia, north-west Europe and this country in order to defend people in South Africa. Yet the legislation that we are now proposing will prevent people from being defended in a similar way because they will not have been accused. People will not know what they have been charged with.

I put that simple point to the Home Secretary and Labour Members, including the 59 who did not vote with the Government in the Lobbies this evening, and to those who should have crept in to join the 59. I hope that those creepers will feel ashamed of themselves for their inaction this evening. Just eight more hon. Members would have changed the result of the vote. I hope that the media, who occasionally watch our proceedings, will grasp the significance of how close the Government came to defeat on a simple point of justice and law. The Government have got it wrong.

The Government should not simply pass the buck to the House of Lords. They should come back before this House and test the arguments again. They should reflect on what the Select Committee has suggested. I hope that they are strong and brave enough to improve the Bill through proper debate and agreement. They need to secure the best possible protection against terrorism without throwing justice and the tenets of democracy out with the bathwater.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central 11:26 pm, 28th February 2005

I am grateful for the opportunity to speak briefly in the debate. I want to say that none of those who voted in favour of the amendment proposed by my hon. Friend Mr. Griffiths and against the Government on various other provisions are unaware of the dangers of terrorism. Indeed, I do not believe that a single Member is complacent or soft on terrorism. We are all, frankly, frightened and concerned about it. The idea that any one of us cares more about the security of this country than anyone else is a wrong-headed mistake. Every Member cares deeply, on behalf of constituents, about the security of this country and would do nothing to put it at risk.

Nevertheless, as the Home Secretary has seen, many of us remain unconvinced by the Bill or the way it has been conducted. My right hon. Friend Mr. Denham, whose contributions on both days have been distinguished and extremely thoughtful, was typically generous to the Government in saying that the detention orders did not really amount to Executive action. Whether my right hon. Friend is right or wrong, the Home Secretary has moved some way today. Given that he has done so, many Members are baffled about why he cannot go the whole way and move on both derogating and non-derogating orders. It is incomprehensible.

The Home Secretary was wholly unconvincing in his answers today, and it is not at all brave of me to predict that the Bill will be changed in the other place. I do not know why the Home Secretary insisted on resisting that change here, in the democratic Chamber of our Parliament, when he must know that his position is illogical and will not do. It will be thrown out, and we will back here again in a few days' time. He will then have to explain to the House why he has had to think again and why the Executive will not be involved in the decision on either type of order. It baffles me why he has not given way on that today, but I am sure that that will change. There is no point in getting heated about it, because it will change.

Many of us have been so distracted by that issue today that we hardly noticed that we did not have a chance to express our grave concerns about evidence in these matters. That part of the Bill has not even been explored. I would have thought that every Member of this House, regardless of party politics, must be concerned about somebody's liberty being put at risk without their even knowing of what they are accused. I accept that the Home Secretary will say, "Ah, these are very difficult matters. These are very dangerous people." Well, we came across those issues in Northern Ireland and nobody pretends that there is an easy call to make, but surely we can do better than we have done with this Bill? There must be avowals that we can put in place to allow a judicial process to hear the evidence and let the accused know of it—even if only in the most general way, as my hon. and learned Friend Vera Baird said. It is essential that someone on a charge that threatens to remove their liberty should have the right to hear the evidence against them.

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

Is not there also a danger to our security if one of these orders is imposed too early on, say, a junior member of a network, before the intelligence services have learned as much as they might do and before they have evidence to bring a charge of conspiracy? We would then be in a worse position because the other members of the network would be alerted.

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

I am grateful to the right hon. Gentleman, because that is a very good point. Indeed, my right hon. Friend the Member for Southampton, Itchen made a similar point. That is a concern that is shared across the House, and it is a valuable contribution to the debate.

The issue of evidence, and the accused's right to hear it, is difficult, but we must be able to do better than the present Bill. The same applies to intercept evidence. It is a difficult issue, as the Home Secretary rightly pointed out to us, but we have not really attempted to grapple with it at this stage. We must do so.

Parliament has been bounced. We have had three years to think about this issue and we have failed to do so. That is not only the fault of the Government, because Members have not bombarded the Government with demands for debates or further legislation. Many of us, on both sides of the House, knew that this issue was simmering, but we, just as much as the Government, failed to do anything. However, we have undoubtedly been bounced in the past week. The Bill was published on 22 February, and only six days later we have had a rushed Second Reading and—to the huge discredit of this Chamber—a farce of a Committee stage, in which we have not properly considered the Bill. That is what we are sent here to do by our constituents. We are sent here to scrutinise legislation and to try to make our laws good, sensible and workable. We have failed tonight.

The Government did not help by bouncing the Bill through on a ridiculous programme motion, but we had the ability to throw that out. We could have said to the Government, "Don't be ridiculous. On a Bill of this enormous constitutional importance, we cannot accept a ridiculous timetable like that." We can certainly warm our hands at the indignity of the Government, who have imposed the measure on us, but we, too, are to blame because it was in our hands to throw out that thoroughly discreditable programme motion. We are as much to blame as the Government.

Photo of Mrs Anne Picking Mrs Anne Picking Labour, East Lothian

My hon. Friend is discussing the merit and credit of the House, but does he agree that the House took a decision? He may think that the decision was discredited and that it was not what he wanted to hear—[Interruption.]

Photo of Mrs Anne Picking Mrs Anne Picking Labour, East Lothian

Thank you very much indeed, Mr. Deputy Speaker.

Surely to goodness, my hon. Friend Mr. Fisher must agree that democracy and the majority prevailed; and as much as he disagrees with it, that is the will of the House. It was done correctly through proper procedure. There was a vote and a majority decision. What is the point in harping on about it?

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

I hear what my hon. Friend says and, of course, she is right: the House voted. I was saying that the House did not think carefully enough when it voted.

On Second Reading, the House was pretty empty. I made a short contribution at the end of that debate deploring the fact that so few Members were in attendance for such an important Bill. That debate was of high quality, as was the debate today, when the attendance was much better. The House comes out of that better today than on Second Reading.

Photo of Michael Jabez Foster Michael Jabez Foster PPS (Rt Hon Lord Goldsmith, Attorney General), Law Officers' Department, PPS (Rt Hon Harriet Harman QC, Solicitor General), Law Officers' Department

Does my hon. Friend understand how distressing and upsetting it is for Members who disagree with him intensely? Many of us fully support the Bill and have no problem with it at all. He says that no thought has been given to it, but many of us have given enormous thought to the Bill and we simply think it is right.

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

My hon. Friend misses my point. The Bill is of enormous importance. It started by—[Interruption.]

Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

Order. I think we ought to finish—[Interruption.] Order. I think we ought at least to finish the day in an orderly manner.

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

My hon. Friend Mr. Foster misses my point. Of course, Members on both sides of the House are entitled to vote and to believe passionately what they believe. We are all honourable Members and we have serious views. I am not complaining that my hon. Friend does not feel the same way about things as me. I am saying that the House has not had time to go into the detail of the Bill.

There is a schedule that explains how control orders work, but we have not had a moment—not even a minute—to discuss it. These are serious matters, but we have not taken them seriously. I fully respect my hon. Friend's views and opinions, but we have not scrutinised a hugely important Bill. We have not done ourselves credit.

We are sent here to scrutinise. I feel that on these Benches we have put too much blind trust in party and have not trusted enough in our own consideration. However, everybody comes to their own view. It is not yet beyond the wit of the House to get this right. The extraordinary thing about the debate is that beneath the criticism and, sometimes, the bad temper there is clearly a will on both sides of the House to get the Bill right. There were flickerings of that when the Prime Minister and the Home Secretary invited the other parties to Downing street. It is clear that everybody, because they are concerned about the threat of terrorism, wants to try to find a solution, but that will not be achieved by the adversarial process inherent in both our judicial system and the House; it must be through consensus and debate. Intercept evidence in court and other matters are difficult.

We shall not reach a solution by opposing each other. The Government must go into discussion with the other parties. I detect good will from all the other parties in the House to try to find a solution and a compromise.

I do not pay attention to the opinion polls that the Home Secretary was shoving down our throats. I do not think that the public will take it kindly if we come up with ill considered, ill-thought-out legislation. They will not respect us. We should give ourselves the time to come up with the difficult and quite subtle things that are needed to sort out these problems. I believe that we can do that, but it is ridiculous that we are now dependent on the other place. We ought to be ashamed of ourselves, and we ought to learn from this and ensure that the House insists in future on its will to have time to debate important legislation and the wit, good will and respect for one another to come to difficult, but possible, compromises.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 11:40 pm, 28th February 2005

The good hon. Member for Stoke-on-Trent, Central (Mr. Fisher) is making a bid to become Home Secretary, but that was much more in evidence with the distinguished speech by Mr. Denham. However, they are confronted by the same question as all other Members are confronted with: should the Bill, as unamended, have a Third Reading? That is the question. The Home Secretary's long exegesis about the dreams that he will have down in another place is irrelevant to the vote that we take tonight. Do we, the House of Commons, approve of the Bill that we have been discussing today? It is simple as that.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I hope that my hon. and learned Friend will forgive me if I do not give way, because I want to concentrate our minds on exactly what we are doing.

If we vote for the Bill, it is an expression by the House that it believes in every clause and detail of it. All the arguments that we have heard today, including the exegesis by the Home Secretary, have demonstrated again and again in which way and what way the Bill is flawed. Some of us feel deeply and passionately that it is flawed because it touches on the very intimacy of the relationship of the British citizen to the British state. It suggests fundamentally and profoundly to many of us that the due process of law is that we should know with what we are charged, and we should be able to answer that charge before we lose our liberty. That is so profound and fundamental that the justification for change must be clear and overwhelming. That is not in the Bill.

What the Bill says relates to orders. As Barbara Follett so compellingly told the House last Wednesday, the pass laws of South Africa stand out as a beacon of what we should not do. The actions taken by Mr. Mugabe in pursuit of his ends or by the Burmese junta are not appropriate for this country. That passionate belief has been expounded across the Floor of the House both last Wednesday and again today, but we come back to what we do when the vote on Third Reading is called.

The Bill must not be passed even in the terms that the Home Secretary has presented us with this afternoon, when he says that this is not the Bill that the country will be presented with if it becomes an Act of Parliament. If that is the case, how can we be self-respecting and stand up for the rights and appropriateness of the House by voting for the Bill when we know that it is not the Act of Parliament that will pass? So we should, in our sense of being who we are as a Parliament, reject it.

It being one hour after commencement of proceedings on the motion, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [23 February and this day].

Question put, That the Bill be now read the Third time:—

The House divided: Ayes 272, Noes 219.

Division number 104

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Bill read the Third time, and passed.