With this it will be convenient to discuss Government amendments (a) to (c) thereto, Lords amendments Nos. 2 to 5, Lords amendment No. 6 and Government motion to disagree, Lords amendment No. 7, Lords amendment No. 8, Government motion to disagree and amendment (a), Lords amendment No. 9 and Government motion to disagree, Lords amendments Nos. 10 and 11, Lords amendments Nos. 12 and 13 and Government motions to disagree, Lords amendment No. 14, Lords amendment No. 15 and Government motion to disagree, Lords amendment No. 16 and Government amendments (a) to (g) thereto, Lords amendment No. 17, Government motion to disagree and Government amendments (a) to (f) to the words so restored to the Bill, Lords amendments Nos. 18 to 21, Lords amendment No. 22 and Government motion to disagree, Lords amendment No. 23 and Government amendment (a) thereto, Lords amendments Nos. 24 to 26, Lords amendment Nos. 27 and 28 and Government motions to disagree, Lords amendments Nos. 29 and 30, Lords amendment Nos. 31 and 32 and Government motions to disagree, Lords amendment No. 33, Government motion to disagree and Government amendments (a) to (c) in lieu, Lords amendments Nos. 34 to 36, Lords amendment No. 37 and Government motion to disagree, Government amendments (a) to (o) in lieu of Lords amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, Lords amendments Nos. 38 to 40 and Government motions to disagree, Lords amendment No. 41, Lords amendment No. 42, Government motion to disagree and Government amendments (a) to (c) in lieu, and Lords amendment No. 43.
There has already been a substantial debate and I intend to address four key issues. First, who should make control orders and are the procedures fair? Secondly, what are the prospects for prosecution in any of the cases in which a control order is being considered? Thirdly, what should be the burden of proof in relation to any of those control orders? Fourthly, should those powers be—in the colloquial—sunseted, so that they expire at some given point in the future? I shall take each of those four key points in turn, which will deal with the bulk of the Lords amendments, and I shall deal with other points in my winding-up remarks.
No, not at this stage.
On the first point—who should make control orders and are the procedures fair—the Government still believe that there are three reasons why the Secretary of State should make the orders. First, the protection of national security is the responsibility of the Government. Secondly, there is no legal or constitutional principle that the Secretary of State—the Executive—cannot make such orders, and there is nothing in the law or in the European convention on human rights that requires the judiciary to make such orders. Thirdly, making control orders requires not only an examination of factual matters, but an analysis of the overall security situation and assessments of the risks posed by a particular individual and of what measures are necessary and appropriate to meet those risks in order to prevent that individual from continuing to carry out his or her terrorist-related activity.
That requires the careful sifting of a wide range of intelligence material. Inferences must be drawn, evaluations must be made of the weight to be placed on what is often a mass of small pieces of information that have been brought together and painstakingly checked against each other, and an assessment must be made of the impact of those things upon national security. In the past, Governments of all parties have taken the view that the Secretary of State is better placed than the courts to make assessments related to the national interest.
That said, I have listened carefully to all that has been said in this House, particularly from the Government Benches in another place and elsewhere. I wholly understand the concerns of those who want greater judicial involvement in the order-making process, so that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate. That is why, in relation to derogating control orders, I said in Committee that the Government would introduce amendments in another place so as to provide for derogating control orders to be made by a judge of the High Court on an application by the Secretary of State. That was in recognition of the fact that derogating orders would be the most serious orders because they were the ones that would impose obligations which amounted to a deprivation of liberty.
The order-making procedure for derogating control orders that I propose is set out in the amendments before this House. In summary, the security services and the police will put together the case for an order and identify the measures they think necessary to prevent the individual in question from continuing to carry out terrorist-related activities. The Home Secretary or other Secretary of State will then look at the case and as part of that process—I want to emphasise this point—ask whether the police, in consultation with the prosecuting authorities, have considered whether there is a realistic prospect of prosecuting the individual for terrorist or other offences.
If the Home Secretary or other Secretary of State thinks that the test for making a derogation order is made, an application will be made, ex parte, to the High Court for the court to make the order. If the court thinks that there is material which, if not disproved, is sufficient to justify the order being made, it will make the order and refer it immediately for a full inter partes hearing as quickly as possible. At each stage, the court will be able to look at all the material relevant to the case and to examine witnesses. At the full hearing, the defence will have the open material in a Secretary of State's case. The person who is to be subject to the order will be represented at the full hearing by the legal representative of his choice in open sessions and by a special advocate in closed sessions. The special advocate will have access to all the closed material.
The court's judgment will be in two halves—open and closed—and the subject of the order will see the court's open judgment.
The Home Secretary may not have had the opportunity to look at the evidence given by the Attorney-General to the Constitutional Affairs Committee yesterday, which has been published today. It was clear from that evidence that the special advocate procedure needs to be improved in various ways to enable advocates to have the assistance they need and to give them a means of communicating with the defendant on matters that he might be able to refute if he knew what was being alleged. Does the Home Secretary have anything to say about the Government's thinking on that?
The right hon. Gentleman is correct. Indeed, I said in Committee and confirm again now that Lord Carlile made a number of recommendations in relation to that in his review of the procedure. My right hon. Friend the Attorney-General has also made such recommendations, which I believe that he discussed with the Select Committee to which the right hon. Gentleman refers. I can confirm, as did my noble Friend the Attorney-General, that we believe that there are aspects of the procedure that need to be improved, and that is the process that he set out yesterday in his evidence to the Committee.
The Home Secretary is dealing with the procedures in court. Can he go into detail about the extent to which he has consulted with judges on those procedures, and is he absolutely sure that they are willing to operate this system? I recollect that when something similar was proposed in Northern Ireland many years ago, the judges there made it clear that they would not operate a system of that nature.
I have had discussions with some judges. My noble Friend the Lord Chancellor has had specific discussions with judges, including in Northern Ireland, on precisely the questions that the right hon. Gentleman raises. My understanding is that judges are ready to carry out the will of Parliament in these matters and to carry this through—although it is true, as I said in Committee and have said elsewhere, that some of the most senior judges in the land have their doubts about whether this is the most appropriate process. That was one of the principal reasons why I was concerned at earlier stages of the debate not to give way on the arguments about judicial decision-making in this area. I was aware that some very senior judges had concerns about these matters. However, I am clear that their view is that they will carry out the will of Parliament, as they rightly should.
The Home Secretary briefly referred to the prospect of prosecution as an alternative to the process that we are considering. In the past, he has agreed that, when possible, prosecution is preferable, as in the case of the shoe bomber. Do I understand him correctly that the key consideration will be whether the police and the prosecuting authorities, having been asked by the Home Secretary to examine the matter, believe that prosecution is preferable or possible? Is not that open to the danger that they will decide that some evidence is a bit thin, some witnesses are a bit unreliable, there is plenty of suspicion and therefore a more certain outcome could be secured if they go for the procedure for which the measure provides? Although I accept that some people cannot be prosecuted, would it not be better to ask a judge to consider whether the case should be proceeded with in the way that we are discussing, or sent back to the prosecuting authorities to bring an ordinary prosecution?
The right hon. and learned Gentleman used the words "preferable" and "possible". Our position is clear. It has been clearly set out and I confirm it today: it is always preferable to prosecute. In the Gloucester shoe bombing case that he mentioned, and in other cases, prosecution is best way in which to proceed. The Home Secretary will seek advice on whether it is possible to prosecute, but I emphasise that it will always be preferable to do so.
The right hon. and learned Gentleman asked whether I believed that it was appropriate for a judge to decide whether a prosecution should take place. The House would move down a dangerous path if we suggested that, above and beyond the responsibilities that the proposals give judges, we should give them the power to decide whether a prosecution was appropriate. I believe that it is rightly for the Executive—the Secretary of State in the circumstances that we are considering—to make a decision, based on advice.
Is it now the Home Secretary's position that he is prepared to consider circumstances in which defendants could hear the charge against them in closed session? Does he acknowledge that even if we have judges in place, on matters of fact defendants should be able at least to make their case against that fact?
I have not concluded my comments on derogated control orders. I believe that the rest of my remarks will cover the hon. Gentleman's question, but I shall come back to him if he feels that they have not.
I want to revert to the question of special advocates. Two things need to be done. First, defendants in such cases typically will not even talk to special advocates because they are appointed by the Solicitor-General, who is close to the Attorney-General who sometimes opposes the applications. Is it not possible for a special advocates list of security-cleared barristers to be drawn up so that defendants can pick their own?
Secondly, special advocates need to be able to consult their clients to get instructions after they have seen the intelligence material. Is it not possible for a discussion to take place between the special advocate and the judge, in the hope that some questions can be asked without posing a danger to intelligence, thus giving the defendant a fairer crack of the whip?
My hon. and learned Friend has made two perfectly appropriate proposals: first, that the defendant should have a better choice of special advocate to represent him or her; and secondly, that the defendant should have more information about the hearing as it proceeds. Both are precisely the sort of proposal to which I referred in response to the right hon. Gentleman for the north-east of England—[Hon. Members: "Berwick-upon-Tweed."] I believe that "not quite Scotland" is the place. The proposals are helpful and can be tackled in the dialogue that was mentioned a second ago.
I believe that the procedure that I have outlined is appropriate, given the seriousness of derogating orders, and that it meets the concerns that were expressed in the House for judicial involvement in their making. Hon. Members will note that there could be a gap in time between my applying for a derogating control order and the court's making it. It is possible that, in that short time, the subject of the proposed order could be tipped off or disappear because he had made travel arrangements. I therefore included in the Bill a power for the police to arrest and detain an individual pending the outcome of a court's consideration of an application for an order and, if made, pending it being served.
Not at the moment. The power of detention lasts for a maximum of 48 hours in the first instance. The court can extend that for up to a further 48 hours. I do not anticipate that it will be used often, but we should not allow the purpose of the order to be thwarted by the disappearance of its subject in the interim.
The proposals fulfil the commitment that I made to hon. Members in Committee to introduce changes in derogating control orders. They are reflected in the Lords amendments that are now before us.
I believe that the Home Secretary has to have prime position with regard to the question of whether an executive action against terrorist suspects is involved and has to be sustained. Does he accept that the mess that has been created by the Bill has been the result of our accepting the European convention on human rights, which is at the heart—[Interruption.]
The whole House will admire the persistence with which the hon. Gentleman makes his purblind case.I strongly believe that, in relation to the Bill and to other issues more generally, the Human Rights Act 1998 represents a major step forward in the structure of law in this country, and that it has benefited people in this country. The difficult questions that have to be resolved—and they are difficult—on the balance between national security and liberty have been assisted by the Act, by the work of the Joint Committee on Human Rights and by the discussions that we have had in the House. I pay tribute to hon. Members on both sides of the House who have played a role in ensuring that we get better scrutiny of these difficult issues. I have concluded very carefully that the protections afforded to the individual in the legislation that we are proposing, which follows the Human Rights Act, are vastly superior to any protections that existed in any legislation when the Conservatives were in government. I acknowledge that there are issues still to be addressed, but let us not hide the progress that has been made.
I note that the Government are seeking to reverse Lords amendment No. 40, which provides for fairness in the process, in compliance with article 6 of the European convention on human rights. Why are the Government seeking to do that if they intend these procedures to be compliant?
I shall come to that amendment later in my speech, and I shall deal with the hon. Gentleman's question then.
I come now to non-derogating control orders. Colleagues in the House of Commons and in the other place have suggested that the High Court should make non-derogating control orders, as well as derogating control orders, and have amended the Bill accordingly. Again, I have considered the matter carefully and I understand the strong opinions that have been expressed. I remain of the view that these orders are different in nature from derogating orders, but I accept that some measure of judicial involvement in the process is necessary and desirable.
My amendments, which I laid before the House this morning, therefore provide that the Secretary of State must apply to the High Court for permission to make a non-derogating order, save where urgent action is required. I shall explain a little more about what I mean by "urgent action" in a moment. The normal process for making non-derogating control orders will therefore work in the following way. The Security Service and the police will put a case together, as I have already described. If the Secretary of State thinks that the test is met, an application to the High Court for leave to make the order will be made. If the court agrees that the Secretary of State has a case, it will give the Secretary of State permission to make the order, and the order will be made. The Secretary of State will then refer the order to the court, which will arrange for a full hearing to take place as soon as possible thereafter. If the court refuses leave, the order will not be made.
At the full hearing, the court will consider all the material before it, examine witnesses, and so on. It will be able to hear the case in both open and closed sessions. As with derogating control orders, the subject will have access to the open material, and his or her interests will be represented by the counsel of his or her choice in open session, and by a special advocate in closed session under the special advocate procedure. I acknowledge the points raised by my hon. and learned Friend Vera Baird about trying to improve that process. Again, the subject of the order will have access to the open judgment.
As someone who broadly supports the Bill, I should like to remind the House that this is the first anniversary of the atrocities that occurred in Madrid. Will my right hon. Friend explain why, when some of us who are in favour of the Bill pressed for this measure to be included last week, he absolutely refused to do so? That is why quite a number of us voted against the Government. Why has he now conceded to the Lords when he should have conceded to us last week? It is quite obvious that what he is now proposing is right and justified, and that it is what so many of us were urging him to do last week.
I am delighted by and grateful for my hon. Friend's ringing endorsement of my proposal. In candour, there are two reasons why I have changed my position since the debate last week.
First, I believed that it was important to have an urgency procedure, which I shall set out. The direct proposal considered by the House last week did not have such an urgency procedure and there was a risk that certain people to whom it might be necessary to apply a control order would no longer be there.
Secondly, I set out last week, and again today, that I do not feel that judicial involvement at the first stage, in the way that is suggested, is necessarily the best way to proceed. I acknowledge, however, the strength of opinion both in this place in last week's vote and in the other place. That is a necessary process of parliamentary discussion as it moves forward. I have therefore taken account of that. I could take the course of stating my position and never changing it under any circumstances, but that would not be the right way of dealing with such matters. We are seeking some consensus on this legislation and that is why I have changed my view.
What concerns me is the idea that the proposal is in some way a concession. Is it not right that the power of the court is expressly limited to the power of judicial review? If that is the case, the court has no overriding jurisdiction over matters of fact—it is limited to law and procedure. The Home Secretary knows that very well. Why has that not been brought out?
I will come to the points on judicial review in a moment.
On derogating control orders, my hon. and learned Friend is wrong. The proposals on derogating control orders and judicial involvement relate entirely to the judgment on matters of fact to which he refers. On non-derogating control orders, it is not the case that judicial review does not have power—it certainly does. I will come to that in a moment.
On urgency, there may be urgent cases in which waiting for permission from the court is not an option. In such circumstances, we need to take action immediately. I propose that the Secretary of State should be able to make the order immediately. The Secretary of State would immediately have to certify the urgency of the case on the order, and it would then take effect immediately. When such an urgent procedure is used, the Secretary of State must refer the order immediately to the court for confirmation within seven days. If it is confirmed, the court will then make arrangements for a full hearing.
I have considered carefully whether urgency can be defined in the Bill and I am advised that an exhaustive list could not be produced. The procedure will rarely be used. The circumstances for use will most likely be when the subject seems likely to disappear before permission could be obtained because he or she had been tipped off or had made arrangements to travel. In case it has been forgotten, I remind the House that that was a specific problem in December 2001, just after 9/11, when a few suspects disappeared just before the part 4 powers came into force. That is a description of what has actually happened rather than of something that is entirely hypothetical.
We cannot use the arrest and detention power provided in relation to derogating control orders because we have not derogated and do not intend to derogate now. In any event, that power would not be available in relation to non-derogating orders. I believe that the urgency procedure that I have outlined fills the gap. The subject of the order will be able to challenge before the court whether the case was urgent and the use of the urgent procedure will be included in the quarterly reports that the Secretary of State makes to Parliament on use of the control order powers in the period in question, so the whole House will be able to examine the extent to which the urgency procedures have been used.
Can I press my right hon. Friend further on the court procedure to examine subsequently the urgent decision that he has made? Under his amendment, the court can consider whether the Secretary of State's decision was "obviously flawed". In making that decision, can the court consider not just the process whereby the Secretary of State reached his decision, but the full facts that he had in front of him?
The short answer is yes. The judicial review principles, which have been well developed over a considerable period, particularly since the passing of the Human Rights Act 1998, are fairly clear. They mean, first, that the court can consider matters of fact and not simply points of law. That is relevant to my right hon. Friend's question. The court will look at all the material relating to and underpinning the Home Secretary's case and ask questions about the decisions made on what should happen next.
Judicial review is concerned with reviewing whether the decision maker could properly make the decision that he made, but I think it entirely wrong to characterise it as a process concerned only with law and procedure. Even before the Human Rights Act 1998, courts on judicial reviews would, where appropriate, look at the facts to establish whether they could support the decision reached.
It is not being restricted to the provisions of judicial review. The fact is that we have a different level of process above the derogating line from that below it, and that is how it should be.
Will my right hon. Friend confirm, or otherwise, that under subsection (6) of his amendment the court will consider not just whether the Secretary of State was justified in wanting to make a non-derogating order, but whether the measures proposed were right? Will the court be able to consider whether the actions proposed are proportionate to the case being put, not simply whether there should be an order at all?
Yes. The specifics can and, I am sure, will be examined in terms by the court in such cases. When I reach the appropriate point in my speech, I will deal with my right hon. Friend's point about prosecution issues, which he has said throughout should be properly addressed.
I will not give way again at this stage. I must make some more progress first.
Let me deal next with the issue of those currently detained under the part 4 powers. My amendment also allows me to make a non-derogating control order—without leave from the court—against the current part 4 detainees, subject to the requirement that I must refer the case to the courts immediately for confirmation of the orders within seven days, as in the general criteria that I set out.
The courts have already considered and determined that there are grounds for suspecting each of the individuals concerned of being involved in terrorism and that they pose a real threat to national security. It is very important to the protection of national security that we take immediate action in respect of them, so that they can be controlled immediately on their release from detention under the part 4 powers. Any orders made against the current part 4 detainees must be referred immediately to the High Court for confirmation. If they are confirmed, the court will make arrangements for a full hearing of the detainees' cases as soon as possible thereafter.
I believe that the changes that I have made in relation to judicial involvement in the process, and the way in which I have responded to my hon. and learned Friend Mr. Marshall-Andrews, reflect a strong opinion in both Houses of Parliament. I hope that they will enable many to accept that the processes that I am introducing will meet the concerns that have been expressed.
I apologise if I have not read the amendment correctly. I have had limited time in which to read it.
Points have been raised about the application of the judicial review approach. The court's supervision of non-derogating control orders is tied to the determination of
"what constitutes a flawed decision".
"must apply the principles applicable on an application for judicial review."
Under subsection (2) (b),
"the court may give that permission unless it determines that that decision is obviously flawed".
That suggests to me that the court has a discretion quite apart from the issue of whether the decision is obviously flawed. The judicial review principles apply to that, but the use of the word "may" implies that the court has a discretion and that, even if it concludes that the decision is obviously flawed, it may decide not to grant permission. That would give the courts a very wide power to refuse permission. Is my construction of the amendment correct?
I am thinking very carefully about what the right hon. Gentleman said, and I was nodding as he described the situation because his description was right. For the reasons that I set out earlier, the principles of judicial review are wide and will be applied to individual cases, as I said to my right hon. Friend Mr. Denham. However, although the general point made by Mr. Trimble was right, I am not sure that the conclusion of his intervention, in which he considered the wider situation, was right.
Mr. Marshall-Andrews is still in practice and I am not, but I was at the receiving end of quite a lot of judicial reviews in my time in office, and it seems to me that a rather startling explanation has been given of the processes involved. Surely there are many cases in which a judge does not overturn the Secretary of State's decision, even though he personally disagrees with the Secretary of State about its merits and would not have taken it on the evidence before him. The judge lets the decision go ahead if he decides that it was within the power of the Secretary of State, that he followed the right processes and that he was entitled to do what he did. A judge will look at the facts only if he concludes that no reasonable Secretary of State, on looking at the facts, could conceivably have come to the opinion originally reached. That is not a full judicial process—it is wholly biased in favour of the Secretary of State's decision going ahead. There is no reason for having different processes for the lesser decisions and for the higher ones.
I beg the right hon. and learned Gentleman's pardon: the Leader of the Opposition beats him handsomely in that regard. The fact is that, since the right hon. and learned Gentleman was Home Secretary, the Human Rights Act 1998 has changed the way in which the judicial process operates in such cases. The answer that I gave earlier is an accurate description of the way in which the judicial review works.
I will not give way.
I turn to the second issue relating to the amendments from the other place, which is consulting the police on the realistic prospect of prosecution before and after a control order is made. In practice, the police and relevant prosecuting authorities consult extensively on every terrorist arrest to see whether there is any possibility of prosecution. The Crown Prosecution Service in England and Wales, for example, considers all the material and decides whether there is a basis for a successful prosecution, and whether such a prosecution is in the public interest.
Submissions to the Home Secretary on individual cases for control orders will always include, as they have done under the part 4 cases, written advice on prosecution. Prosecution is always our first option and, as we discussed earlier, that has been demonstrated in a number of cases, such as that involving the shoe bomber from Gloucester. I have taken account of what has been said in this House and elsewhere—I have taken particular note of the comments of my right hon. Friend the Member for Southampton, Itchen—and we are looking at whether we can introduce new offences that will increase the number of successful prosecutions of suspected terrorists.
I recognise Members' concern that the Bill should require me to explore with the police whether there are realistic prospects of a prosecution in any given case before making, or applying for, a control order, and I am ready to do so. My amendments therefore require the Secretary of State to consult the police—at the level of chief officer of the relevant force—before making or applying for a control order, on whether there is a prospect of the individual concerned being prosecuted for a terrorist offence.
The new provisions also require the police—in consultation with the relevant prosecuting authority, where appropriate—to keep such matters under review once an order has been made. I do not believe that the existence of a control order will preclude successful prosecution at a later date. I remind the House that two of those certified under the part 4 powers currently in place were subsequently charged and successfully prosecuted for terrorist-related offences—an indication that we continue to deal with these matters directly.
Will my right hon. Friend confirm whether, under his proposals, the response from the chief constable and, where appropriate, the prosecuting authorities concerning whether the case in question was prosecutable—presumably, it would not be—would be part of the material evidence given to the court and would be available to the judge? In other words, there would clearly be judicial scrutiny of the fact that the prosecution had been considered by the relevant authorities and could not be taken further.
I tabled amendments last week that would have required my right hon. Friend to consult the Director of Public Prosecutions before a control order was made or applied for. Will he confirm that Lords amendment No. 16 does not require that and that it is the Government's amendment (d) that introduces it rather than the Lords amendment itself?
I do not think that I am seeking to amend it further. My proposed amendment states:
"Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism".
It later continues:
"In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (3), to the extent that he considers it appropriate to do so."
I think that that is as clear as it can be and sets out the position clearly.
The answer that the Home Secretary gave to Mr. Kidney was not entirely correct. Lords amendment No. 8, which deals with the making of control orders, introduces a clause to require that the Director of Public Prosecutions be consulted before an order is made. The right hon. Gentleman is proposing to delete that and, rather curiously, to place his provision in a clause titled "Criminal investigations after making of control order". Is not that a rather curious place at which to put it?
Perhaps I have not been clear enough, but the fact is that the amendments make it clear, as my hon. Friend Mr. Kidney explained in his intervention a few moments ago, that, before a control order is made, it is necessary to get the chief police officer's view in consultation with the prosecuting authorities on the possibility of prosecution.
On a point of order, Madam Deputy Speaker. These are complicated sets of amendments and it is simply not good enough for the Home Secretary to come to the House and express his intentions in loose terminology without marrying or reconciling what he wants to do with the amendments tabled in the other place. On that basis, how can the House reach a proper conclusion or appreciation of what the Government are trying to do?
I am grateful for your guidance, Madam Deputy Speaker, and I shall seek to offer both good temper and moderation in my presentation of the case.
The third point that the House of Lords put to us relates to the burden of proof—a serious matter on which there has been substantial debate. I want to start from the reality of what control orders are. They are preventive orders, not punishments. They are designed to prevent future atrocities from being committed, not to punish for what has been done in the past.
No, I will not.
The orders require an assessment of the overall security situation, of the risk posed by particular individuals and of what measures are necessary and proportionate to meet those risks. The Lords amendments suggest that the balance of probabilities is the right test for determining whether the subject of an order is, or has been, involved in terrorism. The Lords acknowledged that that would be a high test, and the Government do not believe that it would be appropriate for all control orders.
The Home Secretary says that the control orders are not intended to be punishments. Does he accept that they can inflict huge harm through restraining movement, communication, contact, association and many other things that are normally considered to be human rights in this country?
Of course I accept that. I cannot recall whether the right hon. Gentleman attended our debate in Standing Committee on this matter, but the distinction between restriction and deprivation of liberty is very important. Each of these proposals amounts to a restriction of liberty, but the central message of the Law Lords' judgment on the part 4 powers is that whatever we do must be proportionate. We must deal with any perceived threat proportionately, and that is what the control orders will do. Without them, we have no way to offer the proportionate control counselled by the Law Lords.
If a judge concludes that it is probable that I will join a gang of drunks to cause trouble in central Nottingham, he can impose an antisocial behaviour order to prohibit me from associating with them. However, does my right hon. Friend agree that the absurd result of the Lords amendments is that, even if the judge concluded that I wished to associate with a gang to blow up central Nottingham, he would be powerless to intervene?
I would not make that exact comparison, but my hon. Friend's central point is correct. The burden of proof is critical when it comes to considering what control order is being applied in a given circumstance.
No, not at this stage.
Making control orders involves assessing the threat posed by a person's past conduct and the risk of further such conduct in the future. That assessment is based on intelligence material, as opposed to evidence that can be adduced in court. A determination must then be made of what controls are needed to meet the threat and mitigate the risk.
I propose that the test should be reasonable suspicion, which I believe is better when analysing intelligence material and drawing inferences from it. The Special Immigration Appeals Commission and the Court of Appeal have both accepted that that is the right course to take in respect of the part 4 powers currently in place under immigration legislation.
For example, Lord Justice Laws argued that the nature of the subject matter is such that it will usually be impossible to prove past facts that make the case that X is a terrorist. I have said the same on many occasions. Accordingly, a requirement of proof would frustrate the policy, and the objectives of the powers. The target of the policy includes those who belong to loose, amorphous and unorganised groups. The choice of reasonable suspicion is apt to strike that target.
Nevertheless, we have accepted that balance of probabilities should be the test for derogating control orders. That is because the subjects of those orders will be deprived of their liberty. That goes back to the proportionality point that I made in response to David Davis.
For the reasons given, I do not think that the balance of probabilities test should apply to non-derogating orders. My amendments therefore provide that the test to determine whether, for derogating control orders, X is, or has been, a terrorist should be the balance of probabilities. For non-derogating control orders, the test should be reasonable suspicion.
I am advised that a higher test would mean that some control orders could not be sought, and that potentially dangerous individuals could simply slip away. I am not prepared to operate in such circumstances.
Does the Home Secretary concede that even the lesser control orders affect people's liberty, as they tell people where they can travel and work? He has conceded that a judge must decide on those control orders, so does he accept that the same standard of proof is needed for the orders about which he has just been speaking? It is hardly fair to say that the balance of probabilities is a high test, given that that could be 51 per cent. against 49 per cent. Surely the same standards should apply for all control orders?
First, I acknowledge that, as we have said from the outset—Mr. Oaten and I agree—the balance between security and individual liberty is at the core of this discussion. Therefore, proportionality in the standard of proof and the type of control order also relate to those matters. There is not an absolute here—although some may say that there is—but a question of balance.
The legislation, including the standard of proof, intends to address those points. One of his hon. Friends said on Radio 5 today,
"The most important right is the right to life and I will be brutally frank with you and tell you that if this legislation is not passed there is a marginally increased likelihood of some sort of terrorist attack killing a number of our citizens. The difficulty is weighing that up against the risk to people's liberty who may be thrown into gaol without any real cause but simply on some sort of suspicion."
That is the sort of issue that we must address and our proposals do precisely that.
I am still confused about something. If we assume that the most dangerous suspects are those who could be subject to derogated control orders and that their cases should be subject to the higher standard of proof—that is, on the balance of probabilities—why should less dangerous suspects be subject to a lesser standard of proof, particularly given my right hon. Friend's welcome movement today in saying that under non-derogating orders the court can consider facts and not just the Home Secretary's judgment?
The key point is the one I made a moment ago. It is important to acknowledge that there is a distinction between deprivation of liberty and not depriving someone of liberty. That has been important in terms of the judgment of the European convention on human rights and it is important in practical terms and the extent to which people are controlled in those circumstances. It is true that there are issues of restriction of liberty at a lesser level than deprivation of liberty, but my argument is that those are different cases and should be dealt with in the proportionate way I described.
My right hon. Friend may be surprised to learn that I am sympathetic to his argument on this point, but I do not understand why the Government disagree with Lords amendment No. 6, which he did not mention. It makes provision for someone who is subject to a control order to have access to supplies of food and personal necessities. Why do the Government disagree with the Lords?
I shall come to that, but the short answer is that those requirements are met and the Lords amendment is unnecessary to secure what my hon. Friend seeks to achieve. I shall speak about that in more detail in a moment.
I have made it clear that the new procedures are fair and ensure early judicial involvement. In non-derogating control orders, the judge may refuse leave to make the order or quash an order that has been made under the urgency procedure if he feels that the test is not met. In derogating control orders, the court makes the order. In both cases there will be automatic referral for a full hearing of the court. In non-derogating orders, the court will apply judicial review principles. In derogating control orders, the court will decide the case on its merits. I do not accept that judicial review principles are not appropriate. As I said, the court has been developing those principles since before the introduction of the Human Rights Act 1998. I believe that the issues that have been raised create fairness in the system.
A number of colleagues have asked whether those issues and approaches are fair to the defence.
No, I will not.
The subject of the order—the defendant—will have access to the advocate of his choice in open sessions and will be represented by a special advocate in closed sessions. The courts have accepted that that is the fairest system possible, given the need to protect sensitive material.
As I said to my hon. and learned Friend the Member for Redcar, the Government are looking to widen the pool of special advocates to give the subject of the order greater choice. SIAC-type procedures will be followed in control order proceedings. The rules to be made by the Lord Chancellor or the Lord President in Scotland in the first instance, and thereafter by the relevant rules committees, will ensure that. We need to establish those rules quickly, and once the first set of rules is made, they will be made thereafter by the appropriate rules committee. The rules will be in place immediately, and there will need to be a vote in both Houses of Parliament if they are to remain in force beyond 40 sitting days.
The cases for control orders will, as now with the part 4 powers, be prepared extremely carefully. The Secretary of State will put forward a balanced case to the court that will include both material that makes his case and exculpatory material that undermines it. The courts will expect, and rightly demand, a high standard of fairness, which is as it should be. Much of the material will be sensitive and not capable of being shown to the subject of the order and his lawyer in open session, but it will be available to the court and to the special advocate, part of whose job is to try to secure the widest possible disclosure of material to the subject of the order.
I have said that I will do so in a second. Perhaps the right hon. and learned Gentleman could do me the courtesy of resuming his seat while I continue my speech.
We are now looking urgently at better training for special advocates, at better support systems for them and at whether they can have greater access to the subject of the order. The aim is to ensure that special advocates can do their job to the best of their ability, but still commensurate with the need to protect sensitive material, sources and techniques.
How very gracious of the Home Secretary. Will he understand that the special advocate cannot do his job properly, or even at all, unless he can discuss with the detained person the nature of the evidence being deployed against him and obtain his proper instructions on that evidence?
That reprises a discussion that we had last week. I think that the right hon. and learned Gentleman will confirm—if I am wrong, perhaps he will correct me—that he totally opposes any control order process of any description.
No, I do not. My position is set out in amendment (a) to amendment No. 8. Provided that there is due process, I will go along with control orders. The problem is that there is no due process. Until there is, I oppose control orders.
I am glad that the right hon. and learned Gentleman has made that acknowledgement. It is a change of position, but it is a welcome change of position in the right direction.
I turn now to the final substantive set of amendments from the Lords, which are on sunsetting.
I think that the Home Secretary has misrepresented the views of my right hon. and learned Friend Mr. Hogg. The Home Secretary should address the question of how a special advocate will deal with an allegation when he is unable to tell the accused enough to enable him to give an alibi, even if that alibi is the absolute and concrete truth. We understand the Home Secretary's motivation, but he should explain to the House of Commons exactly how his proposal will work.
The point that the right hon. Gentleman has not fully grasped is that the control order that we propose will be a preventive device to prevent an individual from offering a terrorist threat to the country, in various ways. It will not be a judgment on the facts in the traditional court approach, via a prosecuting rule, on whether a crime has been committed in a particular way. The Government agree that it is superior, where possible, to take the latter course of prosecution, for a variety of reasons. I hope that the right hon. Gentleman will accept that I was not seeking to malign his colleague: I thought that I had heard a change from what was said last week. I know that he accepts that in such circumstances, a control order, limited as it may be, could be necessary, and he presses me about the procedures to ensure that the matter is properly carried through.
The open evidence is disclosed to the appellant and the special advocate at a relatively early stage of the process. That enables the special advocate to discuss it with the appellant before he sees the closed evidence. It is only after seeing the closed evidence that he cannot communicate with the appellant, except in limited circumstances. The closed evidence is thus provided to the special advocate at a later stage. I think that that deals with the situation in a way that protects our national security.
The Home Secretary recognised earlier that although control orders might not be intended to punish, there is a strong penal element to them because they would do harm to an individual. Concern about the matter was raised by Ian MacDonald, the special advocate who resigned. He said that sometimes the closed evidence was so different from the open evidence that the charge became different, to all intents and purposes, so the accused was thus incapable of answering it. The scope for a miscarriage of justice is enormous in such circumstances. That is a disaster in itself, but it would also be disastrous for the effectiveness of anti-terrorist orders because it would create a recruiting sergeant and radicalise our opponents.
It is important to acknowledge that special advocates have different views on the point that the right hon. Gentleman sets out. Secondly, it is important to appreciate that we are listening carefully to what special advocates have said about procedural issues. That is why I responded at the beginning of the debate to the right hon. Member for Berwick-upon-Tweed—I hope that I got his constituency right on this occasion—
The right hon. Gentleman's constituency is indeed in the north-east, or even further north than the north-east, if one can say such a thing.
There are questions about the special advocate procedure. My hon. and learned Friend the Member for Redcar, who is also from the north-east, has consistently and strongly asked me such questions during the passage of the Bill. She and the right hon. Members for Berwick-upon-Tweed and for Haltemprice and Howden are right to say that we need a process that is as fair as possible to appellants. I believe that we are doing that.
No, I shall not.
However, I do not accept that wanting such a process means that we do not need a procedure including special advocates, closed sessions, open sessions and the like. We must judge the right balance to strike.
I have spoken for a long time, so I want to conclude by talking about the sunset clause. That has been a big issue in the other place—and in this House as well, to an extent. However, with respect, our proposals have not been fully understood. Although I do not make this point in a partisan way, I note that the proposal made by the right hon. Member for Haltemprice and Howden on a sunset clause was put forward not during the bilateral conversations that we have been having, but in an open press conference as an attempt to set out a direct position.
Let me go through the five—potentially six—stages of review that exist. First, the Home Secretary will be required to report every three months on the existence of control orders. He will have to report to the House publicly on what has happened, how many have been issued and how many were urgent.
Secondly, the Bill will require the reviewer—who will have a similar function to Lord Carlile in his review of SIAC cases—to make a report to Parliament every year on the operation of our proposals. That provision was in the Bill that we introduced in the first place. The report could address all the questions that we are discussing today. As I specifically said earlier, I would ask the reviewer to examine in the next such report the implications of new legislation on prosecution and determine how that matter could be addressed. The report would be entirely independent and frank and would set out any issues raised by judges, courts, Members of Parliament or anyone else.
No, I will give way when I have finished what I am saying.
Thirdly, I have tabled a new amendment to provide that the Bill would need to be renewed annually by a vote in each House of Parliament. Such a vote a year from now would be informed by the quarterly control order reports and the report by the special independent reviewer.
I shall give way in a second.
Parliament could decide that it did not wish to renew the legislation, for example if the review raised issues showing that it was not working properly. Those three steps are there today and now.
The fourth stage of the review, which was also in the Bill when it was first published, is that in the event that we have a derogating order in place, which as the House will recall I do not propose at the moment, there would again be an annual vote to renew by both Houses of Parliament. Fifthly, I have acknowledged—I stated it on
Sixthly and finally, there will be—in case it has escaped anybody's attention—a general election in the next 15 months or so. At that general election, it sounds as though one party will be saying, "Confirm the legislation", while other parties will be saying, "Repeal it", so the people of the country can have a view on that, too. I argue that those six stages add up to a substantial capacity for Parliament, and indeed the people of this country, to review the legislation and to decide to stop it if they so wish.
I warmly welcome the measured and reasonable way in which my right hon. Friend is responding to the anxieties that have been expressed in both Houses of Parliament. Does he agree that one of the advantages of having a year before we renew the measure is that we shall have time for reflection? I put it to him that this contentious legislation would greatly benefit from something like the Newton committee treatment. My right hon. Friend proposes to strike out Lords amendment No. 31, which would set up such a committee. I do not quarrel with that action on the procedure, but I ask my right hon. Friend to reflect on the fact that the principle is sound, and that he might find it helpful a year from now when the measure comes up for renewal to have independent recommendations for improvement to the Act in the light of experience from a broader group than just one reviewer.
I am grateful to my right hon. Friend for making that point. I agree with him; it is a question of not just the ability to review but, as he implies, the ability to review in an informed way. I think that the process I have put in place—three-monthly reports and an independent review—is exactly the vehicle by which it will be possible to obtain that informed review. On my right hon. Friend's idea about Privy Counsellors and a committee of that type, I pay respect today, as I have done in the past, to the extremely positive work of Lord Newton and his committee. I also pay tribute to the work of the Intelligence and Security Committee in reviewing such matters, which has been important in this and other areas. I can say to my right hon. Friend that I will certainly look at whether there are better ways to continue the review of this matter and consider what is the right way to proceed. The reason that I was and am against the Lords amendment is that to specify a particular form of review, especially in light of the wide range of information we have at this stage, is overly prescriptive.
I welcome what my right hon. Friend has just said. I certainly think that is better than a sunset clause. It is important that we recognise that for the past 20 or 30 years, none of us has been happy with the way we have legislated on terrorism. The measure we are discussing today is not as bad as some aspects of the old prevention of terrorism Acts and it is certainly not as bad as the internment Acts. I would very much welcome my right hon. Friend's going a step further to offer talks to the other parties—I know that he cannot commit future Governments—and they ought to respond positively in terms of the review and come forward with other suggestions as time goes by.
I very, very much agree with my hon. Friend and would like to make three points in response to him. First, his first point is not sufficiently appreciated. It is a fact that we are giving greater priority to human rights and civil liberties in these procedures than in any previous type of such legislation. Secondly, I pay tribute to my hon. Friend who, when he led for the Labour Opposition on these matters before we came into office, dealt with the then Government in a universally positive and constructive way. He recognised his responsibility in opposition to deal with such matters responsibly. That is a positive example from which all parties in the House might usefully draw some lessons. Thirdly, I agree that after a general election it would be beneficial to hold conversations of the type that we were referring to. I do not specify a particular form, but with a Parliament stretching in front of us, to try to go back to the old days when Labour was in opposition and we had all-party agreement on such things might be a good way to proceed, and I am certainly ready to act to try to achieve that.
Does my right hon. Friend accept that one of the problems with the House being given an opportunity to vote on an order is that such orders are not amendable and therefore it is not possible for the House to keep part of the Bill—or part of the Act, as it would then be—and to get rid of bits of it in a phased way? It is possible to have a statutory instrument that is amendable. Will he look further at making it possible for us to consider an amendable statutory instrument so that we could shave away parts of the Bill as they became unnecessary?
I will think about that proposal, and I accept the weakness of the order system that my hon. Friend describes. That is why the order system that I was referring to for the derogating order was a better way to proceed—
I will give way when I have finished what I am saying.
I acknowledge that there are issues that I will think about in relation to what my hon. Friend says. However, I believe that, if we were to get to the state of affairs with the independent reviewer where the conversations that we have had had taken place and where both Houses of Parliament thought that the current legislation should not continue, that would be precisely the time to discuss what form of legislation should replace the Bill.
I am most grateful to the Home Secretary for giving way. He is aware, and I dare say that he would agree, that the Bill has had to be passed through the House in considerable haste. I do not think that he would disagree with that. It is also very controversial and, as he knows from the debate in the other place and in this House, it has excited a great deal of comment because much of it is draconian and certainly novel in terms of civil liberties in this country. Are those not compelling reasons why there should be a sunset clause? That would make absolutely sure that the House and the Government do their duty properly by allowing the legislation to be considered afresh with the possibility of alternatives being properly aired in the House, rather than, as I fear, the Government simply keeping this going in the medium term, as the Prime Minister says. That is likely to be for many years if they have their way.
The hon. Gentleman argues the case—the compelling case, in his language—for looking at the operation of the legislation in precisely the detailed way that I have described. That is not a compelling argument for including an eight-month sunset clause, which would give no time at all to consider the issue seriously and take it forward.
Thank you, Madam Deputy Speaker. I am acutely aware that I have already taken an hour and seven minutes of the House's time. Other hon. Members will want to speak, and I cannot be accused of not having given way fairly generously during the debate.
On the remainder of the Lords amendments, I conclude by saying that Lords amendments Nos. 6, 27, 31 and 32 are unnecessary. Lords amendment No. 6 is unnecessary because those who need social security benefits will receive them if they are eligible without provision having to be made in the Bill—to answer the question asked by my hon. Friend Lynne Jones—and a control order must be necessary and proportionate, and one that denied an individual access to food, clothing and sustenance would plainly not be proportionate. The other Lords amendments are unnecessary because, in my view, clause 11 already makes adequate provision for the Bill to be reviewed in the operation of the Act once passed by the processes that I have already described.
I am grateful to the Home Secretary. May I just come back briefly? If the Bill ever becomes law and if a review is given to the House when it is reviewed, will he undertake that that review will contain an independent judicial statement on the limitations of judicial review, so that the House is definitely not misled as to the nature of judicial intervention as to fact?
The one thing about which I feel absolutely certain is that the chance of an absolutely categorical statement of interpretation of any aspect in law is always unlikely, even from my hon. and learned Friend.
The law on judicial review, as stated previously by my hon. and learned Friend Mr. Marshall-Andrews and by Mr. Clarke, would have been accurate in 1948, when the Wednesbury case was decided, but that is no longer accurate following the Daly case in the House of Lords, in which it was stated that the day has come when
"it will be . . . widely recognised that . . . Wednesbury . . . was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial" review.
I remind my right hon. Friend of what somebody once said of Cavour, that he loved moderation immoderately. I ask my right hon. Friend not to get carried away with concessions and sunset clauses but to bear in mind over the next couple of days that there remain many Members of this place and a great majority of people outside it who do not want to see all these things that lawyers in this place and the other place have been talking about, who believe that my right hon. Friend was right in the first place and that the country should be protected by elected Members of Parliament and Ministers of the Crown, and not by unelected and unaccountable judges.
I am extremely grateful for the moderate way in which my hon. Friend immoderately makes his case. He allows me to conclude by saying that I believe that it is the duty of this elected House to set out the basis of the defence of our national security. I assert that strongly. On that basis, I urge this elected House to support the amendments that I have put in place and to reject the Lords amendments.
Listening to the debate has been rather instructive. It is unusual for a debate of this nature to include such principled clashes across the Chamber at this stage of a Bill. I think that it is a reflection of the way in which the Bill has been handled. I am led to read to the House a short extract from the editorial of this morning's edition of The Times, that well-known Conservative newspaper. It reads:
"The humiliating defeats in the Lords on the Prevention of Terrorism Bill are not only an extraordinary setback two months before an expected general election; they are also a telling indictment of the muddle, incompetence and myopia that have characterised the sloppy handling of this vital issue. The defeats are too resounding to be brushed aside by a Government desperate to enact legislation to replace the current detention powers that expire on Monday; with both Lord Irvine of Laird, the former Lord Chancellor and . . . Lord Condon, one of Britain's most experienced former police chiefs, voting against the measures, the moral weight of opposition makes it clear that Labour is facing its sternest test of how to handle the whole issue of terrorism . . . The inept handling of this Bill . . . has had the worst possible effect. It has politicised an issue that should command a consensus among all responsible MPs to safeguard Britain and its liberties"
The issue of terrorism and the related legislation should command a consensus. I hoped a few weeks ago that we would find a way to get the Government out of the jam that they had created for themselves. However, they appear to have been determined to try to use the Bill as a political weapon. The Prime Minister virtually said as much at questions today. Despite that, I will make one more attempt to appeal to the Government's sense of reason.
I shall start by highlighting the most important amendments that the Home Secretary talked about today. I welcome his acceptance of the need for judge-led decisions on all the control order matters. It is belated—it should have been in the first draft of the legislation—and it certainly would have been put into the Bill if there had been proper Commons scrutiny, as I think was apparent from the comment of David Winnick.
Having listened to the Home Secretary and to interventions by Mr. Marshall-Andrews and my right hon. and learned Friend Mr. Clarke, I can see little justification for interfering in the system of judicial control orders, but that is being done by means of the Government amendment to Lords amendment No. 1. The Government have not made the case—listening to the Home Secretary, I did not hear a case—for substituting reasonable suspicion for the balance of probabilities. I shall return to that point in a moment.
Lords amendment No. 16, which gives primacy to prosecution, is being interfered with by the Government, again for no good reason. Indeed, together with the deletion of Lords amendment No. 18, that interference will have the opposite effect to the one intended by the Home Secretary. Most tellingly, the Government have rejected the Privy Council review process, which alone can show how the legislation will work in practice. When taken with the objection to the sunset clause, that demonstrates a total lack of willingness to heed the anxieties of Members of all parties about the control order system that the Government are introducing, and hardly inspires confidence in assurances that they have given us. The same is true of their refusal to accept Lords amendment No. 38, which requires the Lord Chief Justice to set the rules, and Lords amendment No. 40, which would ensure that the procedure is compatible with the European convention on human rights by ensuring that there is a fair hearing. It is hard to understand why the Government are seeking to delete that amendment, particularly given the answer that the Home Secretary gave my hon. Friend Mr. Grieve, the shadow Attorney-General.
I declare an interest as a member of the Newton committee. Will my right hon. Friend bear in mind the fact that findings of that committee were at considerable odds with what was then Government policy, and are much closer to what is now emerging as Government policy. However, before the door of the Home Office was closed, as we delivered our proposals they were comprehensively rubbished by the previous Home Secretary, Mr. Blunkett. We are here today not because of the Newton committee's review but because of the Law Lords. Will my right hon. Friend bear that in mind when he assesses the importance of the review procedures—as opposed to the sunset clause—to which the Government are seeking the agreement of the House?
My right hon. Friend has made a very good point. Perhaps I could develop it by discussing the events that have led to this position. The Home Secretary has said several times today alone that the Government had only 12 weeks in which to put the legislation together. That is not true. They were aware for some time that there were fundamental flaws in the Anti-terrorism, Crime and Security Act 2001. I do not blame or condemn them for those flaws, as that measure was rushed through in the aftermath of 9/11, so it is understandable that mistakes were made. However, it would not be understandable if they repeated those mistakes. We anticipated the weaknesses and flagged them up. In response, the Government set up the Newton committee, on which my right hon. Friend, to review the operation of the Act, highlight its weaknesses and propose alternatives.
The Newton committee reported in 2003, and did exactly what it had been asked to do. Before the Home Office door closed, as my right hon. Friend said, its proposals were rubbished. It made a number of sensible proposals, but the Government, apart from rubbishing them, did nothing. We have heard from officials at the Home Office that papers were prepared, but that there was no political direction. Even when it became apparent in October 2004 that the Government were expected to lose the forthcoming House of Lords judgment in December 2004, they did nothing. When the judgment was made, for weeks nothing happened, except that the Government introduced the statutory instrument to renew the old law—the part 4 provision.
The Government have tried to represent the Opposition—and there has been more of this today—as being difficult over the Bill. That is blatantly untrue. We have made at least three separate proposals to the Government. First, we offered them the option of extending part 4 of the 2001 Act, which would allow more time to consider a new Bill and new powers to deal with the problem of defending the nation, but for reasons that the Home Secretary gave and that I accepted, they rejected that. On
One of the purposes of a sunset clause is to enable the Government to evaluate their ability to lock up known terrorists. The 10 to 20 people whom the Home Secretary intends to have placed under a control order, if guilty of terrorism, acts preparatory to terrorism, or acts that the Government think are wrong within the law, should be in prison, not on the street. That is why the Bill must expire and be replaced by legislation that has been properly considered and will allow us to catch terrorists without penalising ordinary people. We believe that such legislation is possible.
The right hon. Gentleman speaks of seven months. If he has in mind other approaches, including another Act, for example, for acts preparatory to terrorism, quite a lot of background work will be needed between the two Houses. Surely he must accept that renewing the legislation every year would give the Government the flexibility over the next 12 months to do that? It would be a far better approach than a sunset clause, which would mean rushing the work in a way that would be unacceptable.
I shall return to some of the hon. Gentleman's points. It strikes me as extraordinary that a Government who force us to consider a Bill in eight days object to having eight and a half months to consider a new Bill. It is self-evidently illogical—I was going to say something ruder—an illogical proposal. But we are not starting from year zero. The Newton committee has already reported and largely been ignored—indeed, rubbished—so we have some data already. I am sure other aspects have been considered. If it is a matter of a month here or there, there is no argument. If, instead of
We need a principled approach to how we review and renew the Bill. We accept, as Lord Newton's committee does, that there is a clear need for special legislation to deal with the problems that we face today. There is a need, as he said, for specialist counter-terrorism legislation because of the way terrorists operate, which makes them hard to catch and convict, and because of the risks they pose to society, but, as the Newton committee again said,
"counter-terrorist legislation must also contain proper protections for the privacy and liberty of the individual".
Can the right hon. Gentleman help the House by saying whether, this time next year, if we had the legislation that he would like to see, it would still contain control orders or measures that are pretty much the same as control orders? If he sees that as part of the package of the future, why does he want a sunset clause, which would bring those measures to an end?
I shall come to some of those points shortly. I take the view that in policy as serious as this, the Government should not do what the Americans call load, fire, aim, which means make up one's mind before one sees the facts. The Government need to assess how many people would be affected by control orders. That number changes, depending on the nature of the current law. If the law is widened or extended, if the procedures for using intercept and sensitive evidence are changed, if that evidence can be brought to court, the number of people who are guilty of terrorism but are incapable of being brought to court will go down. The number may go down to zero, but we cannot do that without the evidence necessary. That is one of the reasons why implicit in the idea of a sunset clause was the concept of another unbiased, highly cleared Privy Councillor committee to report back to both Houses of Parliament and give them the data on which to make that important judgment.
Does my right hon. Friend accept that a sunset clause is the best way to deal with the practical realities that the House faces? Does he also accept that it is incompatible with the principle that he just enunciated for any future legislation on the prevention of terrorism to be made within the framework endorsed by the Bill, namely the Human Rights Act 1988 and the European convention on human rights?
I agree with the first half of my hon. Friend's remarks, but—this may be a sad thing—I must deal with the matter in the present reality.
The sunset clause proposal is the reason why we have offered the Government several serious alternatives. We have said that we would support new offences such as acts preparatory to terrorism or an offence similar to those in America's Racketeer Influenced and Corrupt Organisations Act—RICO laws are very effective in America. We need a sunset clause to allow those matters to be considered properly and, where appropriate, to be passed into law as a substitute for the Bill.
My right hon. Friend has just referred to the law of the United States. Will he remind the House that the fifth amendment to the United States constitution prevents anybody from being held in custody without the due process of law?
My right hon. and learned Friend is right. If any country faces a higher risk than us, however, it is the United States, which is coping.
The Government should accept the recommendations made in the Newton report, such as allowing the use of intercept evidence, which would allow cases to be brought to a court of law with a judge and jury so that people are properly convicted. In order to protect sensitive intelligence and its sources, we propose that a judge should be responsible for assessing the evidence and ensuring that a balanced case is presented. In some of his asides, the Home Secretary has sympathised with that view, but we have heard little of that in today's debate. That recommendation would ensure fairness for the defence while protecting sensitive sources, and such a trial would be conducted by a different judge, normally sitting with a jury. Again, that is likely to happen only if we get a sunset clause.
Because I am not a lawyer, I ask the right hon. Gentleman to excuse me if I am confused. I can see the point of principled objection to control orders, but he seems to be suggesting that, if he were here in a year's time, five control orders would possibly be permissible, 10 would perhaps be permissible, but 20 would not be permissible. Is his objection to control orders based on numbers, as his answers suggest, or on a point of principle?
The hon. Gentleman has made a fair point. If he followed yesterday's debate in the upper House, he will have noticed that we did not support the Liberal amendment to ensure that the accused knows all or a large part of the information laid against them. Control orders exist in cases in which one cannot tell the accused everything, but any civilised person—certainly anyone who has read Kafka—would be horrified at somebody going through a process, even if it is meant to be preventive rather than punitive, without knowing the charge against them. It is best to avoid that situation, where it is possible to do so.
If two or three people are involved, however, it is possible to judge the risk involved in replacing that mechanism with close surveillance—that is possible with two or three people, but not with 200. One can also ask whether that can be done in a civilised way in order to defend our society, without imposing mechanisms that are normally used only in dictatorships. The hon. Gentleman is right that that judgment is based on a clash of principles, but he must understand that basing it on scary comments made on "Woman's Hour" is not a good way in which to proceed.
Those things will happen only if we get a sunset clause. First and foremost, the end for the Government must be the imprisonment of those people who are a danger to the country, but in reaching that end, we must be careful not to use means that degrade our constitution and Parliament. This Bill suspends habeas corpus and brings to an end the presumption of innocence in British law. These are massive changes in our citizens' constitutional rights, yet they were rammed through the Commons, the traditional defender of those rights, in one day. The Lords were given three days—I suspect only because the Government cannot dictate the timetable in quite the same draconian way as they can in the Commons.
Habeas corpus and the presumption of innocence matter in themselves, but they also matter because they have a direct influence on the Bill's effectiveness as an anti-terrorist measure. Take the Government's stand on the level of evidence required. Lords amendment No. 9 proposes the relatively low civil standard of the balance of probabilities. The Government want reasonable suspicion. What is the difference? Who will be caught by one but not the other? The Government's proposal will net people whom they suspect, but are probably not terrorists. I will repeat that, because it is very important. Rejecting the balance of probabilities means that the Government are willing to put a control order on somebody who is probably not a terrorist. That is a formula for not one miscarriage of justice but many. Every miscarriage of justice is a wrong in itself, but in anti-terrorist law every miscarriage of justice is a seed from which anger and resentment grow—anger and resentment that feed the enemy we are trying to defeat and act as a recruiting sergeant for the evil men who would destroy not just our lives but the institutions, freedoms and beliefs that make our country what it is.
My right hon. Friend is making a powerful speech, but I want to take him back to his point about time. Does he realise that we have now used up more than half the time allocated for this debate? We have heard from the Home Secretary, and we are hearing an excellent speech from my right hon. Friend, but who else will be able to take part adequately?
My hon. Friend is right. I am endeavouring to make this a short speech, so I will not take too many more interventions. The Government set this timetable, and I am afraid that when we look back in 25 or 50 years, or when we get to the end of this global emergency, we will wonder why we gave up these things in eight days.
With great respect, my right hon. Friend is exaggerating the length of time that this House has had to consider the Bill. In the previous debate, we did not have the Bill before us—we had a letter that described what the Bill was going to be like in the other House. The Home Secretary said that he would consult about the possibility of giving us a little more time to consider the Bill when it came back here, yet we have only three hours in total to discuss every Lords amendment, and the Government reject the prospect of coming back to legislate again properly after the election.
I will make some progress, if the right hon. Gentleman will forgive me, because we are running out of time. I am not too fussed about saying that, with respect, because I have already given way to him twice.
This particular problem is partially correctible by accepting the Lords amendment, but the Bill is flawed on many fronts and needs a complete rethink. That is not provided—let me deal with the Home Secretary's point directly—by the Government amendment proposing an annual debate. Those of us who have taken part in such debates know that they offer an opportunity only for ratification, not a complete rethink. This Bill needs more than that—it needs a rewrite, not a rubber stamp. That is why the House of Lords voted 3:1 in favour of a sunset clause, with a record majority of 187 votes. That is why the previous Labour Lord Chancellor voted for it. That is why the previous Labour Cabinet Minister, Lord Barnett, voted for it. That is why Baroness Hayman, the Labour member of the Newton committee, voted for it. That is why a previous Home Secretary, Northern Ireland Secretary, Defence Secretary, and Attorney-General all voted for it. And that is why the sunset clause proposal had a majority of 45, without the Conservative votes, in the House of Lords. The proposal is important, not only because the Bill may prove counter-productive, but because there is a better alternative.
Let me quote the noble Baroness Williams of Crosby, who is not someone I normally quote. She said:
"Finally, in this House, with the possible exception of the Government Front Bench, a clear consensus is already building up about what a new Bill ought to look like. It is not divided on party lines, nor on lines of the particular attitude one may have as regards one's previous interests or concerns. There is clearly a very wide support for a different kind of Bill."—[Official Report, House of Lords,
I say to the Government that it is possible to get the matter right but they will not do that if they insist on trying to use this badly flawed Bill as some strange test of political machismo. Of course they should be tough on terrorism, but clumsy on terrorism is not tough on terrorism. Heavy handed on liberty is not tough on terrorism, and careless of justice is not tough on terrorism.
The Bill is a bad measure, although it has been improved somewhat by the Lords. I recommend to hon. Members that we accept all the Lords amendments, let the Government use the improved Bill, but, most of all, allow Parliament to write a better one before the year is out.
In view of the time, I shall be as brief as I can.
Let me start with the sunset clause and the remarks of David Davis. He made several important points of principle about the hundreds of years of liberty that were being set aside and the tests that should apply in the judicial process. However, it is fair to remind him that, when, as a member of the previous Government, he voted every year to renew the Prevention of Terrorism Act, he supported a measure that prevented thousands of British citizens from living in England, Wales and Scotland, with no judicial process or legal standard of proof and none of the safeguards that my right hon. Friend the Home Secretary has suggested. The right hon. Member for Haltemprice and Howden cannot therefore credibly discover a set of principles and concerns about British liberties that he never applied when he was in government. Exclusion orders are similar to the non-derogated control orders.
My right hon. Friend the Home Secretary has proposed the same type of order with some protection. The question is whether we should apply a sunset clause or an annual vote to the measure. As I said on Third Reading, I believe that the Bill is only a stage in the move towards the sort of terrorism legislation that we need. Many proposals from the Newton report and other suggestions, such as acts preparatory, need to be considered carefully. I would like to revisit my right hon. Friend's decision to rule out intercept evidence, although I agree that it has marginal relevance to many of the cases that we are considering.
I also believe that we should pursue the concept of the investigative magistrate, although, as a non-lawyer, I am prepared to admit that marrying a principle that has evolved in European continental law with the British system of common law may not be quite so easy. Such a process cannot be completed by November or even December this year. Indeed, if there is to be a general election, there are probably no more sitting days between now and then than there were between the Belmarsh judgment and now. Part of the problem about which people have complained is trying to pass legislation with a gun pointed to our heads because of the parliamentary timetable. It makes no sense to cock the gun now on the measure.
I was surprised by some of the comments of the right hon. Member for Haltemprice and Howden. I believe that he meant that, in his view, there will not and should not be control orders and that is why he is happy to have a sunset clause, because it would provide that they would be with us briefly and disappear. Frankly, he would do better to be honest and vote against the Bill rather than hiding behind a sunset clause.
Sadly, measures such as control orders are likely to be a feature of our counter-terrorism strategy for some considerable time. We need an approach that does not provide for having them for eight months and then getting rid of them but one whereby they will be part of the framework, which will be better in future. That is why annual renewal and a vote in the House is infinitely preferable to trying to include a sunset clause, which is a dishonest way in which to tackle the issue.
A renewal order would not amend the Bill. That point has already been clearly made. I entirely trust my right hon. Friend the Home Secretary, and, indeed, I would trust any of the Opposition parties, were they to win the general election. Everyone agrees that this is not the final word on anti-terrorism legislation. New legislation will be initiated by my party and would be initiated by other parties if there were a change of Government after the election. The issue is to get the rest of the anti-terrorism legislation right, not to introduce control orders for a period of six months, eight months or a year and then drop them. Frankly, if I thought that that was what we were going to do, I would vote against the Bill because that would be nonsense. There would be no protection against terrorism under such short-term measures. Sadly, we are building a framework of legislation that is likely to play an important part in our lives for 10 or 15 years or more. To set a timetable of only months before scrapping the legislation would be nonsense.
The right hon. Gentleman is making a thoughtful speech. He said, however, that the proposal for a sunset clause was dishonest. Is he really accusing those who voted for it in the other place of being disingenuous or dishonest? He heard from my right hon. Friend the Member for Haltemprice and Howden that that measure would have been passed without a single Conservative vote. He knows that his own colleagues voted for it. Is he really saying that they are dishonest?
I certainly believe that there were those who voted for the sunset clause in the other place because of their intense dislike of the whole principle of control orders and who wish to see them come to an end. I cannot, of course, speak for any of them, and my judgment can be on only some of them. Those who believe that we need control orders know that my right hon. Friend the Home Secretary is right to introduce his proposal for an annual vote in both Houses of Parliament, to provide a check on this legislation.
Does my right hon. Friend agree that the difference between the Government, the Lords and the lawyers is that neither the Lords nor the lawyers would be held accountable for any terrorist attack?
It is undoubtedly true that that responsibility lies with the Government, although, in fairness, that does not remove from any of us the obligation to scrutinise the legislation carefully.
I am disappointed that the official Opposition have not managed to decide which side of the fence they are on in regard to control orders. I would have thought that, by now, we would have heard a more definitive response from them.
Indeed it is, particularly in the light of the high level of reporting, analysis and scrutiny that my right hon. Friend the Home Secretary has offered. It is not as though we would be going into that annual vote without a considerable amount of knowledge about how the legislation was operating in practice. Indeed, by the time we reach the second, if not the first, renewal, the use of the orders will no doubt have been tested in the High Court under the European convention on human rights, so there will have been independent scrutiny of the compliance of the legislation with the convention. I think that that is entirely adequate.
Does my right hon. Friend agree that, although David Davis happily voted year after year for the prevention of terrorism Acts, a major change has taken place in the security context since then? At the time of the PTA, we did not have suicide bombers or bioterrorists, for example. The nature of the threat that our citizens face is now much greater.
That is undeniably true. It is disappointing that those who regularly voted for the extension of the prevention of terrorism Acts with no qualms about issues of judicial process, of civil liberties or of hundreds of years of human rights have suddenly discovered those issues in such an implausible way during this process. However, that does not remove from us the need to get this legislation right.
No, I wish to make some progress, because many other Members wish to speak.
In general, there has been a welcome of my right hon. Friend's moves to put the judiciary at the heart, and in every possible circumstance at the beginning, of the process. I will not dwell on that, but it is an important move, and it gave rise to most concern for many of us when we last discussed the issue.
Let me touch briefly on the question of the balance of probability versus suspicion. First, this House should not lightly set aside the advice that we are told that the Home Secretary and the Prime Minister have received from the security services about the nature of the evidence available to them. Each of us must make this judgment individually. If they advise us that the lower threshold is necessary at least to have some level of control over people who might pose a threat to our wider society, lightly setting that aside is dangerous.
Secondly, the process that my right hon. Friend has proposed—this point was confirmed in exchanges with him—does not just verify whether it was right to have a control order but enables the judge to consider whether the particular measures in the control order are justified by the evidence put forward. Those of us who have watched the judiciary at work over the years, for example, in relation to antisocial behaviour orders, are familiar with the fact that the more draconian the order that one seeks, the more questioning and sceptical judges are likely to be about the quality of evidence that they receive. I am confident that if we stick with my right hon. Friend's proposals, judicial scrutiny will be adequate to ensure that there is sufficient evidence to justify the level of restriction proposed.
On a point of order, Mr. Deputy Speaker. In the preceding Committee stage, the Home Secretary, in answer to my question,
"Will he state unequivocally now that there will be no interference with the right of habeas corpus", said,
"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."—[Hansard, 28 February 2005; Vol. 431, c. 692.]
That is not the case, and Mr. Denham is disputing that.
On the issue of the balance of proof, my view is that we should not lightly set aside the advice that we get from the Security Service, and I am confident that the process is sufficient to ensure that the level of restriction is justified by the level of evidence that is presented to the court. In those circumstances, we would do better to stay with what my right hon. Friend proposes. The level of scrutiny of this legislation, which has now been guaranteed, together with the fact that it will be annually reviewed, will give us the opportunity to revisit the matter in practice rather than having the somewhat theoretical debate that we are having this afternoon.
Can my right hon. Friend give me some guidance? Clearly, constraining people's liberty when there is only a 40 per cent. probability that they are in the category that should be constrained, as that is what reasonable suspicion can lead to, is an innovation. The Opposition spokesman said that such a person is hence probably not a terrorist. Clearly, it is still possible to justify detaining someone when there is only a 40 per cent. probability that they are a terrorist if the crimes that they might commit on release are so enormous as to compensate, as it were, for that lower level of probability. Is that what my right hon. Friend has in mind? If so, that gives us all pause for thought about the threshold and whether it is suitable.
I recognise my hon. Friend's argument, but I shall pick him up on one important point: he talked about release. Orders under this level of suspicion do not lead to detention. It would be a matter of some concern if they were to do so. At the lower level of restriction on someone's absolute freedom, I believe that the sort of test that he has outlined is justified as a precautionary measure. The measure is not equivalent to a punishment, detention in someone's home or locking someone up in prison. It is a prudent measure taken on the basis of the information that is available to protect the public. On that basis, we should support my right hon. Friend's proposals.
Because so many other Members wish to speak, I shall leave my remarks at that.
It is a pleasure to follow Mr. Denham. I was struck by his comment, near the beginning of his speech, that he expected the Bill to be in force for 10, 15 or 20 years. I suggest that if that is indeed the case, it deserves rather more than three hours' debate.
Despite my respect for individuals in another place, I take no pleasure in the fact that it is the unelected House that presented us with the Bill that we are considering today. This is effectively the third attempt at Second Reading, but it takes place in very restricted circumstances. The defeats incurred by the Government in the House of Lords were considerable. The Lords looked at the Bill and decided that it was beyond reasonable suspicion that it was a bad Bill, beyond the balance of probabilities that it was a bad Bill, indeed beyond reasonable doubt that it was a bad Bill, and that it was a Bill that they must amend.
Is the hon. Gentleman aware that his hon. Friend Mr. Rendel was on national radio earlier today? He said:
"I personally believe and my party believes that it is worthwhile to have a marginal increase in the risk of terrorism".
He went on to say:
"I don't think it is very likely that there will be huge amounts of people killed in terrorism."
Will the hon. Gentleman take this opportunity to distance himself and his party from those outrageous remarks—or does he really believe that the risk is worth accepting?
I am surprised that the hon. Lady has raised an issue that has already been raised by her right hon. Friend the Home Secretary. I do not think that it adds to the debate.
The principles to which the Home Secretary adhered so firmly only a week ago appear to have shifted, especially in the context of judicial review. I listened to the Prime Minister at Question Time today, and I felt that he experienced some difficulty in distinguishing between principles and what was expedient. I found his explanation of why he rejected the sunset clause—to which I shall return shortly—incredible. He told us that it was impossible, because it was the clear advice of the police and the security services that we should not have such a clause. How absurd is that?
This is a parliamentary matter. This is a question of how we determine the laws of this country. I do not believe it is a matter on which the police and the security services either have an opinion or would vouchsafe an opinion to the Prime Minister.
That view has certainly been expressed. I think that in general, whenever the Prime Minister makes assertions of that kind, he would be wise to publish the material on which he bases those assertions. Sometimes there seems to be a substantial difference between the one and the other.
The Home Secretary is not an unintelligent man, and he has a proper regard for his duties. As has been pointed out, however, he has repeatedly suggested that he is making concessions. He is not making concessions; he is being defeated. He is being defeated by a House that does not agree with his proposals—not by virtue of the votes of Opposition parties, but by virtue of the votes of members of his own party who have held senior office in that party, and members who have held judicial office and office in the senior ranks of the police service. So it would be wise if he were to take notice of what has been said.
There are basic principles on which we must be clear when we look at this legislation. We have said all along—I repeat the point for the benefit of Claire Ward—that we recognise that a threat exists, and we want to find the right mechanisms to address it. [Interruption.] That is the principal responsibility of any Government—and, indeed, of any Parliament—and part of the response to it is ensuring that the measures that we put in place are commensurate with the risks involved—[Interruption.]
Does the hon. Gentleman think it pretty disgraceful that the Home Secretary, having given us only three hours in which to discuss this vast range of amendments, has now pushed off?
I do find it odd, but not unusual given the record of this Government.
What are the principles that we wish to see espoused in the Bill? First, there is the very important point that a judge, rather than an elected politician, should take decisions on restricting an individual's liberties. I acknowledge that we are making progress in that area, but the Home Secretary is still determined to persevere with what is a very odd position—at least until his next defeat at the other end of the Corridor. He wants to promote this entirely arbitrary distinction between a derogating and a non-derogating order.
When we had this debate at the last time of asking in this place, it was quite clear that many Labour Members were entirely unpersuaded that there was a difference between derogating and non-derogating orders that required a different judicial process. Yet the Home Secretary is persisting in his view not only that such a distinction is necessary, but that the capacity in which a judge can act in the case of non-derogating orders is limited to judicial review, and that he cannot look at all the given circumstances. I simply do not accept that that is a reasonable distinction. We know that non-derogating orders can constitute a very substantial restriction on an individual's liberties, and we believe that a judge should take such decisions. They should of course be taken on the basis of evidence put forward by the Home Secretary, his having consulted the security services. The Home Secretary is indeed the starting point of this process, but it is the judge in court who should determine whether such restrictions should be made.
The second principle is the primacy of prosecution. The Home Secretary has repeatedly asserted that it is right that prosecution be the preferred route in the case of any individual whom we believe to be guilty of, or preparing for, terrorism acts. We agree. In fact, that is precisely what the House of Lords said in their amendment—which the Home Secretary proposes to delete this evening. Deleting it cannot be right. I accept that an alternative wording is inserted at a later—and inappropriate—point in the Bill, requiring the police to continue investigating such cases and to satisfy themselves before an order is made. But that gives the Bill a very strange architecture, and it does not reflect the Lords' clear and unambiguous assertion that the Director of Public Prosecutions must be consulted before an order is made. We believe that there should be no ambiguity concerning control orders. They should be for a fixed period, but of course renewable if that proves necessary. The Home Secretary seems to have accepted that point.
An extraordinary argument has been advanced concerning the standard of proof. David Davis described the situation extremely well when he pointed out that these orders are to be placed on people who are probably not terrorists, by definition, according to the standard of proof that is to be applied.
There are two reasons why I believe that it is not unreasonable to have the balance of probabilities as the test. First, the starting point should innately be the "beyond reasonable proof" criminal test and we are coming down from that, not up, on the say-so of the Home Secretary. Secondly, these hearings are to consider material that is not admissible in a court, so there is already a lowering of the standard of proof. I have no quarrel with that. There are circumstances in which that is right, but if we are proceed with it, it must surely be linked in with the balance of probabilities as the very lowest standard of proof that is appropriate.
That is necessary if we are to ensure due process, which is a critical issue. I note the amendment tabled by Mr. Hogg and commend it to the House. The issue was explored in the other place and we should continue to explore it. I do not accept that we can buy this pig-in-a-poke whereby there will be rules of court, but we are not allowed to know about them. At the moment, this House is apparently not allowed to share in the draft rules of court that are being prepared. In any case, we are told, this is a matter for the Lord Chancellor, not the Lord Chief Justice. I do not accept that: it should be a matter for the Lord Chief Justice and the rules of court should be clear about the admissibility of evidence derived from torture, for example. We wholly reject the idea that evidence derived from torture should play any part in any British judicial process. I simply do not understand why the Home Secretary is intent on removing the Bill's amended reference to compliance with human rights legislation.
We believe that if the Government intend to introduce house arrest at any stage in future, it should clearly be a matter for this House—indeed, for both Houses—to determine and that that should be stated unambiguously. We believe that the Government should be actively exploring issues such as the use of intercept evidence in respect of new offences such as committing acts preparatory to terrorism. Sensible suggestions have been made and I believe that the Home Secretary will consider them, which is an essential part of the preparation for what I hope will be a better and more effective anti-terrorism Bill that will be laid before the next Parliament.
That brings me to my final point, which is about the principle of the sunset clause. The reason for having such a clause is very clear. The legislation is imperfect and it is being rushed through Parliament, yet it needs the proper attention of both Houses of Parliament. It has been brought forward in haste, simply because nothing was done for three years to correct the deficiencies of previous legislation. We now face an unacceptable potential hiatus in our protections against terrorism. That is why we need emergency legislation to go through, but equally why such legislation should lapse. The sunset clause is therefore crucial.
It is quite wrong to suggest that annual renewal can provide any substitute for ab initio consideration of the legislation. There is nothing to stop the House re-enacting a similar Bill if, in due course, it is decided that that is the right thing to do. The problem with renewal is that that is the only option that the House will have. One can imagine the circumstances in a week's time. The Home Secretary will say that we have no protection against terrorism and ask why Members are prepared to reject the only protection that we have against it. If we only have the option of renewal, that is what will be put before the House.
Does the hon. Gentleman agree that renewal is no substitute for a sunset clause? It is not a question of renewing this Bill, but of rewriting it. The run-up to a general election is the worst possible time to be drafting legislation such as this, and the very least that the House can do is vote in favour of the sunset clause.
I am most grateful to the hon. Lady for her support. Her view is shared by the overwhelming majority in another place, which would have accepted the proposal without a single Conservative peer going through the Aye Lobby. I would love to believe that every hon. Member would recognise the importance of revisiting this matter after the general election, but I have no great expectation of that.
Does the hon. Gentleman agree that there is never a good time for considering or passing legislation such as this? It is not a question of whether it is desirable, but of whether it is necessary.
There is never a good time to consider a legislation such as this, but there is sometimes ample time. We could have discussed this Bill three years ago, or a year ago. We could have discussed the recommendations from the Newton committee, or those made by my noble friend Lord Carlile, but we have not done so. The Government left this Bill to the last possible moment and then said, "We have an emergency." That is an unacceptable way to bring forward a Bill such as this.
Many other hon. Members wish to speak, so I shall end by saying that this House's prime concern is the protection of the people of this country. It is entirely inappropriate for any hon. Member to suggest otherwise. As the Home Secretary says, we must balance that concern with protection of the liberties that we have always enjoyed.
I believe that a consensus can be reached. Throughout our discussions, my hon. Friend Mr. Oaten has started from the point that our party believes that a consensus is possible. The Lords amendments take us very close to that consensus. To reject that through political machismo or obstinacy, or for any other reason, would be absurd and dangerous. It would threaten the physical safety of the people of this country, and the safety of the institutions that we hold dear.
I find it difficult to understand why Ministers might risk losing a Bill as important as this just because they refuse to listen to those who perhaps know a little more than they do about this subject, and who have made very sensible suggestions for making this an effective piece of legislation.
I moved an amendment, when the Committee of the whole House examined this Bill, that would have provided that a court would decide on an application for an order from the Home Secretary. In that debate, my right hon. Friend said that he believed that that should be an Executive decision, and he made that clear again at the start of his contribution this afternoon. I hold an equally strong but opposite view. Like my right hon. Friend, I am not a lawyer, but my feeling is that the decision cannot be left entirely to the Executive.
The Bill has returned from the other place with myriad amendments. Some of them appear complex to people who are not lawyers. The Government have replied with their own set of amendments and they, too, are quite complex. In my contribution this afternoon, I want to set out what I believe the Home Secretary is trying to achieve. I also want to explore what might happen in the future, and I hope that some of my fears about this legislation will be calmed.
Perhaps my hon. Friend the Minister for Crime Reduction, Policing and Community Safety, who is on the Front Bench, will correct me if I go wrong, but this is what I believe will happen. The Home Secretary will apply to a High Court judge for a non-derogating control order in the same way that he will apply for a derogating control order. An order will not take effect unless it is confirmed by the judge, who will consider the evidence and decide whether the Home Secretary has a prima facie case for making an order, whether non-derogating or derogating. That is true despite the controversy that has emerged in this debate about how judicial review might work in respect of non-derogating orders.
The lawyers seem to have a difference of opinion, but I am reassured by my right hon. Friend's statement that the judge will be able to consider the evidence when making a decision. When the judge considers the evidence for an order from the Home Secretary, and if he agrees and the order takes effect, he will immediately and automatically transfer that order to the court for a full hearing. That will take place as soon as possible and the defence will be consulted about the amount of time it needs before proceeding to the High Court hearing. In addition, there will be an emergency procedure. The Home Secretary will be able to make an emergency order to take effect immediately, but at the same time he will refer the emergency order—
I do not mean to be short with the hon. Gentleman, but is he attacking his own Home Secretary? Does he think that the Home Secretary so inadequately explained his case for more than an hour that it is necessary to repeat the process?
I believe that it is. There was a considerable amount of discussion about whether the Home Secretary was right or wrong, and I am saying what I believe he is trying to do.
The Home Secretary will be able to make an order to take effect immediately, but at the same time he will refer it to the court for confirmation within seven days. If the court confirms the order, it will go to the High Court for a full hearing. If it is not confirmed, it will cease to have effect.
The Home Secretary said—let me be plain about this because there seems to be considerable disquiet that it will not happen—that he will report to Parliament on the application of all orders every three months, and he will explain, if he has used the emergency procedure, exactly why he did so. There will be accountability. In making all the orders, the Home Secretary will be required to consult the police and the prosecuting authorities before making them and the police, and the prosecuting authorities will have the opportunity to tell the Home Secretary whether a case can be taken to court as normal. That will be in addition to the fact that in the Bill that went to the other place, the Secretary of State was already making provision for the police and prosecuting authorities to keep under review any person subject to a control order and to continue the process of gathering evidence.
I have been following with interest what my hon. Friend is saying. Can he tell us where in the procedures a person subject to detention will be told the evidence on which he is being detained?
I was coming to that. The Secretary of State was at pains to point out that some of the evidence could be heard in open court and some would be heard in closed session. An undertaken has been given that the special advocates will be brought together to try to develop a system whereby defendants will be able to know if not everything, enough of the case against them to enable them to mount a defence. That is very important, and the quarterly reports to Parliament will provide an opportunity to test the extent to which that is happening. At the end of the year, Parliament will have an opportunity to decide whether the system is working and it will be able to vote down the legislation if it wants to do so.
Yes, it is possible that certain intelligence evidence will not be made known to the defendant. These are difficult circumstances and the system is not perfect. We do not live in an ideal world, but hon. Members are welcome to tell me how they think the procedures could be better.
Given that so much will ride on information from the intelligence services, is there not a mechanism we could use to test independently the veracity and reliability of information from the security services? We all remember that Colin Powell, then US Secretary of State, relied on information from the British security services in respect of the second dodgy dossier, which was written by a PhD student and was completely fictitious.
I would hope that in similar circumstances the judge would be able to make some assessment of the evidence. Given that much of the evidence is seen by the Intelligence and Security Committee, I had hoped that an amendment could be tabled to involve it in the process. I hope that that Committee could still become involved.
I should point out that the ISC does not look at the individual evidence relating to individual cases. I do not speak on behalf of the Committee on this point, but it would be a major departure for it to become involved in adjudicating on how sound the evidence was in individual cases. One should perhaps therefore look elsewhere for a procedure to meet that requirement.
The right hon. Gentleman can perhaps correct me on this point, but I wonder whether the Committee would be able to consider the issues in specific cases to assess the value of the evidence against the information it received in the normal run of its examination of intelligence and security matters. I would have thought that the Committee's members would be an eminently suitable group of people to assess whether the evidence was of sufficient quality to enable a judge to make a decision.
My right hon. Friend the Home Secretary made it clear this afternoon that he accepted that the measures were temporary—although we do not know whether they will last one year, 10 years or 20 years—and that he would seek to develop a consensus about new legislation to deal with terrorism that would mean that this legislation would not have to be used. Although my right hon. Friend is not willing to accept amendment No 31, he made it clear that he would consider some of the wider points about trying to achieve a consensus through some sort of Privy Council committee, if not a Newton-style committee. I accept that the legislation is not perfect, but my right hon. Friend has moved—
My hon. Friend tabled an amendment that was defeated by only 14 votes last week—and many hon. Members will hang on his answer to the following question. Despite the Bill's residual flaws, is he content that it should reach the statute book in its present form, with the standard of proof for non-derogating orders remaining suspicion only and charges not necessarily being communicated to the defendant? Could not it still have come straight from "The Trial" by Franz Kafka?
We can always compare issues in a drama on a stage with what happens in real life, but I believe that the Secretary of State has accepted the fundamental point that he will not make the decision himself, but put the matter to a judge, after which the case will go to a High Court hearing. There will be an opportunity for the evidence to be examined at that hearing, so we have made significant progress.
The hon. Gentleman might be saying that the Government Front Bench is misleading me, but my view, after reading the amendments, is that the Secretary of State will make an application to a judge for a non-derogating order—[Hon. Members: "No."] Well, the Secretary of State will make an order that will be put to a judge so that the judge can decide whether it is right before it is implemented. The judge will be able to reject the order, which would mean that it would not be implemented, or to amend it if he thinks that the Secretary of State's proposal is disproportionate.
I must say to the hon. Gentleman that there is a clear difference between an order that is made by a judge and an order that is made by the Secretary of State and presented to a judge for ratification. We have been trying to debate that matter this afternoon. If it has been suggested to him that those orders would be one and the same, he is being misled.
I am not saying that the orders would be one and the same; I am saying that a non-derogating order made by the Secretary of State could not be implemented unless a judge approved it. If a judge approved it, the case would go to the High Court for further consideration so that the person subject to the order could build up a defence of his position. The Government are examining ways of improving the operation of the special advocate procedure so that such defences can be more effective.
Given the situation in which we find ourselves, rather than having no protection at all we should accept the provisions and the Secretary of State's offer to examine the broader situation over a slightly longer time scale. The Bill gives both Houses the opportunity to vote annually on whether to renew it, so an annual sunset clause is built into it. That is why, even though the Bill is not perfect, I am prepared to support the Government tonight.
I am grateful to Mr. Speaker for selecting amendment (a) to Lords amendment No. 8, which stands in my name and is designed to ensure that there is due process. Before I speak to the amendment, however, I want to say something about the Prime Minister. He, along with the Home Secretary, has told the House several times that he is acting on the advice of the intelligence and security services. However, he also told us that when he said that there were weapons of mass destruction in Iraq. Let us remember a clear finding of the Butler report: the Government did not fully or accurately represent to the House the contents of the intelligence reports that they were receiving. That being so, I say to the Prime Minister and the Home Secretary that if they wish to rely on such advice, they would do well to place it in its written form in the Library of the House of Commons, because otherwise I question it.
I am conscious that we have only a short time for the debate and that many other right hon. and hon. Members wish to speak, so I shall be brief. I shall not go on at any length about the deplorable nature of our proceedings or, indeed, the Bill. I shall focus on justice, because the one thing that we should be asking ourselves is whether what we are doing is just in the broadest possible sense. Let us remind ourselves that these control orders, whether they be derogating or non-derogating, restrict the liberty of the citizen to an extraordinary extent. The derogating orders will keep people in custody; the non-derogating orders can destroy their livelihood and their social existence.
No, I shall not give way at this juncture.
The orders are of profound consequence, and that is no doubt why the American constitution—the fifth amendment—would prevent the American Government from doing just what we are doing. The only place they can do it is in Guantanamo bay because the American constitution does not protect people in Guantanamo bay. What we are doing today is what the Americans are doing in Guantanamo bay, but cannot do on the mainland of the United States. I find that a deplorable and shameful thing.
No, I am going to proceed. I shall be brief because other Members want to speak.
The point I am making to the House is not so much about the identity of the person making the order, although it is better by far that the judge should play a prominent part—what really matters is the process. What material will be placed before the person making the order, on the basis of which somebody can have his liberty and livelihood destroyed? It is at that point that I come to my amendment, which is a modest one. I ask the House to consider it.
First, the detained person should have reasonable notice of the proceedings. Who could quarrel with that? Next, the detained person should have a summary of the allegations. Who could quarrel with that? Next, unless the judge orders otherwise, and that is a protection to the Crown, the detained person should know the nature of the evidence against him or her. Otherwise, how can he instruct the special advocate? Next, he should be present throughout the proceedings. Next, he should be able to give evidence and call witnesses. Next, he should be able to submit relevant documents. Next, he should be able to ask questions of those who are accusing him. Those are the basic rights that we demand of any court in any civilised country.
If we deny people those rights, we deny them justice. I have practised in the courts for 40 years or more—in the same type of courts as Mr. Marshall-Andrews. We know that grave injustices occur even within the judicial system as it exists in the criminal courts. It is certain—absolutely certain—that grave injustices will flow from that which we are doing today.
I say to the House and to Members in the other place that we should not be party to such a disgraceful interference with political and legal rights. We are betraying our country. We are betraying our constituents. We should uphold the House of Lords in all its amendments.
I am trying to recognise the dilemma in which the Government find themselves, as they try to find a way between the requirements of security and our traditions of the rule of law and natural justice.
I do not support the sunset clause. Like probably everyone in the House today, I accept that it is unlikely that we shall get this legislation right. It will need sorting out. After the general election, the Government propose to introduce new legislation on terrorism, which will probably command broad support. We shall have to look at that and other terrorism legislation in the statute book and try to come up with something better, but the idea that it can be done by November is preposterous.
No work will be done on those measures between now and the general election. There will be turmoil for a few weeks after the general election. There will then be a few weeks of Parliament going about its normal business. Then there will be a recess followed by the party conferences and we shall actually get down to this business, which should be at the heart of what the House is doing, only in October—five or six weeks before the due date of the sunset clause. The idea that the sunset clause would enable us to look rationally, deeply and carefully at the legislation is preposterous and anyone who thinks about it would have to recognise that.
No, I really must get on.
I do not understand why my right hon. Friend the Home Secretary is not prepared to accept the position of the House of Lords on the lesser orders. As I said during the previous debate on the Bill, we can assume that the people who will be subject to house arrest are the most dangerous ones. He has conceded that the judge will take the decision in those cases and I cannot really understand why he will not concede that the judge should take the decision in the lesser cases. That seems to amount, roughly speaking, to administrative convenience, and we should not support that. It is still not clear to me—non-lawyer that I am—whether the judge will be able to look at the facts in all cases, or whether the suspect will know enough about the charges to be able to challenge them, and we need to look very carefully at that.
No, I would rather not.
On the burden of proof, I have not followed the logic of my right hon. Friend the Home Secretary—he is a good friend of mine—in that he says that we do not need a high burden of proof because this is not punishment. He is quite right: the burden of proof that we need for punishment is that of being guilty beyond reasonable doubt. Nevertheless, people's liberty will be interfered with, and I must admit that I find myself somewhere between "balance of probability" and "reasonable suspicion". We are in that territory. If we had had enough time to think about that, we might have even come up with a novel definition somewhere between those of balance of probability and reasonable suspicion.
No, I really must get on.
The other point that I would make is that my right hon. Friend the Home Secretary cited certain cases where judges—of course, they are not always right, nor is the Appellate Committee of the House of Lords—and said that reasonable suspicion was all right, but those cases applied to people who were not British citizens. We are talking about an extension of that approach to British citizens for the first time in our history, and I personally cannot, and will not, do that.
I would welcome an opportunity to look at the legislation in perhaps a year's time, when we have all had the opportunity to do so very carefully. The House, which is elected to protect not only the security of the country, but rights to natural justice and the rule of law, could look at it very carefully and we would have done our job properly, which no one can possibly even assert that we have been able to do in the preposterously short time that has been available to either us or the House of Lords.
I once checked on the passage of the Bill of Rights in 1688. It went to and fro, from the Lords to the Commons and back again, and the Commons eventually gave way because the king prorogued the Parliament and they beat him to it, but I have to say that the House of Commons was then in favour of protecting the rights of the individual and the Lords were against doing so—sadly, it seems to be the other way round today.
I have the great pleasure of having five minutes—I hope to limit myself to that—of the 20 left to the House to discuss this entire measure, and it is a privilege to have any portion of the three hours that we have been allotted. I might be able to beat five minutes because it seems to me that a very large number of those hon. Members who have taken part in the proceedings have got as near to a consensus as we did a little over a week ago, when we supported the amendment moved by Mr. Griffiths and got very near to defeating the Government. There is an enormous degree of consensus, with various Members expressing discontent on both sides of the House. Most of us accept that something like control orders need to be introduced, most of us accept that some special procedures need to be introduced and most of us fully acknowledge our duty to look after the security of this country.
The hon. Member for Bridgend, who courageously pressed his amendment last week, has been persuaded that somehow all has now been satisfied. I accept that the Home Secretary has tried to make concessions. I suspect that he has had difficulties with some of his colleagues in making them. He has tried to meet us but he has not in any way resolved the difficulties surrounding the Bill, in my opinion.
All that I can do is express my frustrations with the enormous issues that are not resolved, which cannot be resolved in the next hour or two, and which cannot be resolved by both Houses in the time remaining before a general election. There is the question, which the hon. Member for Bridgend pressed, about who makes the decision on a control order for the lesser degree of control orders. The Secretary of State is going back to giving himself the power to make the order and subjecting himself to judicial review. I have not practised law for a quarter of a century, so I shall leave others to argue what the up-to-date position is, but I am sure that judicial review does not mean that the judge starts all over again and decides what makes the original decision, on what he regards as the merits. It is a lesser procedure of challenge. It is certainly less than the concession that has been made on the more important control orders. Otherwise, why have the Government gone back to bring in judicial review and not allow the lower orders to be subject to the same process?
There is the question of who determines whether prosecution would have been the proper procedure. I am not content with consulting the police and prosecution authorities before the Home Secretary decides whether or not he would rather go down the route of a control order with the powers that we are discussing.
The burden of proof seems to dissatisfy almost everyone who has spoken this evening. It is astonishing that we are being asked to agree that someone who is probably not guilty of the allegations should be made subject to such severe restrictions on his liberty and livelihood. We would not accept that for a parking ticket, but we are being asked to accept it for a control order. There is an area yet to be developed about how far the accused person should know the nature of the charges against him. His advocate will not be allowed to go back to him once he discovers the true nature of the charges against such a person. That person will not be given even a general description of what actually will lead to him losing his liberty.
I disagree with only one point made by Mr. Dobson. I urge the House and the other place to stick to the idea of a sunset clause. We all know that we have to have legislation in place by this weekend. We know also that the legislation that we have is not what the Home Secretary would have wished. We have had no chance to change it but the other place has had three days and it has knocked it about considerably. I suggest that the Government should take the powers that they will have and then we should all agree that, after the election, a fresh piece of legislation should be introduced. We should have a Second Reading, an organised Committee, consideration on Report and a Third Reading before the measure goes to another place.
No amendments were tabled and considered, except those presented by my right hon. and learned Friend Mr. Hogg, along with a crowd of amendments covering the entire Bill. It is a bizarre means of proceeding. The House spent more than 700 hours considering fox hunting, yet it is debating the substance of this Bill in three hours in bizarre procedural terms. It is clear that we should return to the matter and have proper legislation.
Whichever party wins the next election, there will be no difficulty in getting a majority of the House to agree that pretty severe measures, with some unfortunate derogations from our individual liberties, are required to tackle the serious problem of terrorism. We are told no. Some Labour Members say that a concession would be an annual review. I am not going to return to sterile arguments about why some Members were voting on the opposite side when we had annual reviews on the control of terrorism legislation. Mr. Denham used to vote against them and I used to argue in favour of them. We all agreed, however, on the rest of the measure. We were arguing only about exclusion orders. They stopped somebody who had been living in Ireland for some time getting off a ferry when it reached Liverpool. That person would be sent back, and Labour Members objected to that. We should bear in mind how far we have slipped from then. Look at what we are talking about now. Look at what the right hon. Gentleman is advocating now. He thought that there was a matter of principle.
I cannot give way to the right hon. Gentleman. I will just complete my five minutes before I resume my place. I realise that he is on the side of the angels, but his particular angel is being too naive if he thinks that we are half way near to getting the sort of terrorism legislation that the House should approve, in any circumstances, once it is given the proper time to debate it.
I am not going to pretend that the Bill is perfect, but now the situation is plain: control orders will not be made by the Secretary of State and they will all have to be made by application to the court and a judge, save for urgent non-derogated orders. I accept that such orders will be rare, as my right hon. Friend the Home Secretary said, but these are extremely important matters. Government Members who have held out for the applications to be made to the judge first would not like the court to be sidestepped if every application were claimed to be urgent because it dealt with terrorism. I therefore rely heavily on my right hon. Friend's assurances that it will be only in rare cases that the court is sidestepped.
Decisions will be made by judges, not the Home Secretary, who has Executive responsibility for national security and who will carry the can if he has too light a touch with suspected terrorists and an incident occurs. That responsibility is a strong wind blowing in one direction and the most civil libertarian Home Secretary would find it difficult to balance it against the civil liberties of the person from whom they are told the danger is coming. A judge does not have that Executive responsibility. His professional role is to be completely separate from the Government and objectively and with reasoning to make a judgment between the Government concerned and the ordinary liberties that hon. Members, I and the defendant all share. From that point of view, the judge's decision is fairer and better and there is a better calibre of scrutiny all round. Detention is not Executive detention if it is imposed by a judge who is satisfied that the Home Secretary's application passes the test in the statute.
I regret that I cannot give way, because I have to hurry.
I shall return to the test in the statute in a minute. However, I wish that we had never even started to talk about Executive detention. We have now moved away from that completely. Talk of Magna Carta has clogged the airwaves for several weeks, but it was simply not necessary. It is a far from perfectly analogy, but the orders are recognisably similar to antisocial behaviour orders. Someone applies for an antisocial behaviour order, often on hearsay, and information is collated by a local authority noise inspector or by a police officer who was not present when the incidents occurred. Following a complaint that someone has behaved in an antisocial way—they have not committed a crime, but they offer a risk—rules are imposed and the recipient of the order cannot go into a particular area, must wear a tag and must be in their home after 10 pm. It is not the same as a control order, but it is in the same ball park. Anticipating that someone is engaged in terrorism, we will require him to follow orders imposed by a court to protect the public from risk.
Turning briefly to the test, there is a major question to be asked—is the standard of proof good enough? We are arguing about two different requirements. Are there reasonable grounds to suspect that someone is a terrorist, or is it more probable than not that he is a terrorist? That it is not half as important as the question of whether he can answer the charges against him. In most instances in which there are reasonable grounds to suspect that the guy is a terrorist, that is unlikely not to be the case. If there are reasonable grounds to suspect that he is a terrorist, he probably is one. In my own view, I must tell the House plainly that, where there is evidence providing reasonable grounds to suspect that he is a terrorist, a judge should impose restraints on him to stop him carrying on in that way.
Far more important than that almost but not quite arcane point about the standard of proof is the condition that the suspect must have the best opportunity to answer the case against him. I have been greatly cheered by the attitude of my right hon. Friend the Home Secretary to reviewing the system of special advocates.
It is clear that, at present, defendants in this position will not talk to their special advocates because they regard them as appointed by the Attorney-General, who is often their opponent in these very cases. It is imperative that these people should have faith in their advocates and be allowed to pick from a security cleared list of barristers, so that they have their own choice of person. Then the advocate can see the defendant, take a long and detailed history over the relevant period, then see the secret intelligence and hope that he has the instructions to answer the allegations. If he has not, my right hon. Friend has also indicated that he would be willing to discuss a system where, in that situation, a special advocate lists the questions that he wants to ask and approaches the judge as to whether he may be able to ask them without endangering intelligence. This is as good as it is ever going to get.
That is extremely reassuring. We all wish people who are suspected of terrorism could be brought to the criminal courts and tried. Now, one cannot do anything else to these people until one has ascertained that they cannot be tried. That, too, is hugely reassuring. I do not see that a sunset clause in November would help anyone at all. There is supposed to be a general election in May. It will take us until June to be sworn in again. By July, we will be in recess until October. A long time for reflection is needed to improve upon the Bill, and November has nothing to do with it. It will be reviewed in a year.
No, I do not have time and others want to get in. I am about to conclude.
Let me make a short list. One has to exhaust the possibilities of prosecuting before one can make an order. One can get an order only if one goes to a judge and the Home Secretary has a positive attitude to ensuring that the defendants get a better deal out of their special advocates than they get now. That is good progress towards an acceptable Bill. The people who are in Belmarsh will be coming out on Friday. We can, in my view, with greater contentment than I thought possible last week, vote now for the Bill.
Vera Baird, for whom I have considerable respect, is rather too easily persuaded. There is a great degree of consensus in the Chamber tonight, and between the Chamber and the other place, first, that some legislation is necessary—we accept that, albeit reluctantly; secondly, that the Bill is wholly unsatisfactory; and thirdly, that the way in which the House of Commons has been treated by the Government in general and the Home Secretary in particular is nothing short of disgraceful.
We have had three hours today, ending at 7.5 pm, to consider a raft of amendments passed by the House of Lords, which had a couple of days in Committee to crawl over the Bill and to improve it. We will have had three hours, of which the Home Secretary took an hour and 10 minutes or more. My right hon. Friend David Davis made an admirable speech from the Front Bench, and spoke for about half an hour. The rest of the House of Commons, including the Liberal Democrat Front-Bench spokesman, has had less than an hour and a half. That is a disgrace.
I hope the Home Secretary will recognise that such treatment of Parliament and of the elected Chamber, which is supposed to have primacy, is something of which he ought to be deeply ashamed. He should be all the more ashamed when we are dealing with such a far-reaching subject that touches upon the liberty of the individual. I am one of those who have some sympathy with what the Government seek to do, but I feel nothing but disgust for the manner in which they have done it.
I urge the Home Secretary to think again about the sunset clause. Reviewing the Act every year is no answer because, as others have pointed out, when the Act comes up, it has to be accepted or rejected. Whoever is the Home Secretary, we are under pressure to do that. The Home Secretary has only one point of substance in his opposition to the sunset clause, and that is the timing of the sunset. My right hon. Friend the Member for Haltemprice and Howden made it plain that the sunset need not necessarily be in November. Let it be at the end of the year, at the end of January or even a year from today, but there should be a sunset clause so that this wholly unsatisfactory, imperfect, intrusive, draconian legislation can be properly examined, so that there can be pre-legislative scrutiny of whatever is put before both Houses, so that there can be full consideration in both Houses, and so that Members in all parts of the House can contribute to the debate in a way in which we have not been able to do hitherto.
I make this plea to the Home Secretary: let the sunset be later than November, but there must be a sunset. He proposes to foist upon the country an imperfect, appallingly drafted Bill. The other place has tried to improve the Bill, and it has improved it in some measure, but he does not want its improvements. He wants the Bill on the statute book, and he wants it to be reviewed annually, but it should not be.
The Bill is far too appalling for any Government to take any pride in it, and the Home Secretary should at least rescue some of his reputation, if he has any left.
This will probably be the last time that I discuss this issue, with which I have been involved since the 1970s in this House. I address my remarks to a number of Conservative Members who have spoken, including the former Home Secretary, Mr. Clarke, and Mr. Hogg.
When the right hon. and learned Member for Sleaford and North Hykeham was a Home Office Minister, he used to lecture me on why I should not try to criticise the prevention of terrorism Act. At that time, we were excluding people within the UK and picking up several thousand people a year, of whom we charged less than 1 per cent. with terrorist offences. Before that, the right hon. and learned Members for Rushcliffe and for Sleaford and North Hykeham supported Northern Ireland internment orders, which resulted in several thousand people being interned on the Secretary of State's say so with no judicial involvement whatever, which was a total breach of habeas corpus.
Conservative Members' indignation is not right. I do not say that just to score a political point—it could be argued that I do so in view of the history—but to make the point that we must not continue to legislate on terrorism in this way. For some 30 years, we have legislated on terrorism, which is a central problem for the British judicial system—this point applies to other systems, too, although perhaps it applies to ours in particular—because in dealing with terrorism, we are trying to stop something happening.
British law is good at dealing with situations in which an offence has been committed. If the Liberal spokesman, Mr. Heath, re-reads his speech, he will see that his party's position is muddled. He wants to introduce a legal process to deal with someone who has committed a crime, whereas the Bill—this is why the Conservatives and Liberals supported the old prevention of terrorism Act—is designed to stop something happening.
If anybody has any doubt about the seriousness of the situation, they should examine the UN report on terrorism, "Threats, Challenges and Change". A couple of weeks ago, Kofi Annan discussed the profound and serious threat to London of a terrorist attack using weapons of mass destruction, which we must take seriously. I fully understand the Home Secretary's position when he argued that the legislation should be executive, because we are trying to prevent something from happening and are not dealing with an offence that has been committed. The Bill is a way of trying to assess intelligence in order to prevent such action. However, because of the feeling in the House of Commons and the House of Lords, my right hon. Friend the Home Secretary was absolutely right to make these changes, and I particularly welcome the annual renewal of the legislation.
We must take our time to get the legislation right. After the election, the three main parties—I hope that the minor parties will participate, too—must find a structure in which we can come up with a system to deal with an ongoing terrorist threat, which Kofi Annan and the UN report say will continue for some decades yet, which will be international and suicidal and which will aim to kill masses of civilians.
That is what we have to deal with, and it would be a good idea for the parties to agree a broad structure. We should consider a new Act that deals with acts preparatory to an act of terrorism. We should consider the possibility of importing, difficult as it will be, the narrow area of European law whereby the inquisitorial system is used for terrorism, or the Irish system of special courts. Those are all options that we are not currently considering. I certainly do not want to go back to what the Tories did when they rammed legislation through, often late at night when nobody was around. They complain about three hours of debate today, but they did it at 1 o'clock in the morning. That was an appalling way in which to legislate on terrorism.
I make my final plea to the Tories and the Liberals, who have a duty not only to support the Bill today but to come back after the election and join in all-party talks to set up the appropriate Committee structure in this House to examine the procedure and then come up with legislation that we can all live with over the coming years.
I support the Lords in all their contentions in respect of the Bill. This comes down to a question of trust. I listened to the Prime Minister today when he asserted, as he often does, that only he and his Home Secretary can judge the security of the citizen, the security of this nation and the balance between the two. I do not accept that proposition. As my right hon. and learned Friend Mr. Hogg pointed out, he took us to war on a supposition—[Hon. Members: "Oh!"] Hon. Members may say, "Oh!", but that fundamentally undermines our confidence in a Government whose assertions put at risk our liberty, freedom, custom and history.
I stand by those things that have seen us through the most desperate hours in the life of this nation. The security of this nation is secure in our hands if we have access to due process. This Government have sought to strike away the most fundamental liberties that we need to secure our own freedom—[Interruption.] Mr. Campbell may shout at me, but the truth is that this is what this House stands for. We are meant to be able to hold up these standards, and they should not depend on the House of Lords reminding us where we come from and what this is all about. I urge this House to continue to support the House of Lords and to give us the opportunity to consider this legislation again in a sensible, measured and proper way, because the way in which it has been debated is a denial of due process, which is what the whole argument is about.
The legislation that is before us this evening is some of the most serious and important that we will ever be called upon to consider. I think that there is now a recognition right across the House that there is a real and serious—
This is not about winding-up speeches. The hon. Lady tried to catch my eye, and I have agreed to let her speak. Sometimes the hon. Gentleman tries to catch my eye, and I let him speak.
This is serious and complex legislation. I think that there is now widespread recognition of a real and serious terrorist threat of a different nature from that which we faced in the past. The amendments put forward today represent significant progress. I am grateful to all my hon. Friends for the constructive way in which they have engaged and the suggestions that they have made. We now have significant judicial involvement in all the orders that we seek. We have consultation with the police on whether prosecution is possible, because that is always our preferred route. We have examined the standard of proof and my hon. Friend Mr. Soley made it clear that we are considering preventive orders, which seek to anticipate what might happen, and assessments of intelligence and risk. I therefore believe that our standard of proof for reasonable suspicion for the non-derogating orders is correct.
The Bill includes a series of checks and balances. We have proposed annual renewal and three-monthly reports to Parliament on the way in which the measure works. We will have an independent review of how the Bill works in practice. The sunset clause that Conservative Members propose is unrealistic for the practical reasons that my right hon. Friend Mr. Dobson set out.
A sunset clause is inappropriate for another reason: it could send the message to terrorists, who will be watching our debate closely, that we are uncertain about what we want to do to ensure that we have a proper legal framework to tackle terrorism in our country. We have tried to establish a legal framework that balances national security with individual liberty, but it is vital that we convey the message that we want to make this country the most hostile environment in which terrorists could consider operating. That is why we need a series of control orders that are proportionate to the threat that we face and non-discriminatory, in compliance with the European convention. Our amendments will achieve that.
I ask the House to support our amendments and reject the Lords amendments—
It being three hours after the commencement of proceedings, Mr. Speaker put the Question necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].
Question accordingly agreed to.
Lords amendment, as amended, agreed to.
Amendments made: (b) and (c).
Lords amendment, as amended, agreed to.
Lords amendment: No. 16
Amendments made: (a) to (g).
Lords amendment, as amended, agreed to.
Lords amendment: No. 23
Amendment made: (a).
Lords amendment, as amended, agreed to.
Lords amendment No. 6 disagreed to.
Lords amendment: No. 8.
Motion made, and Question put, That this House disagrees with the Lords in the said amendment.—[Mr. Heppell.]
The House divided: Ayes 340, Noes 251.