Lords reasons for insisting on certain of their amendments to which the Commons have disagreed, considered.

I must inform the House that a message has been brought from the Lords as follows. The Lords insist on certain of their amendments to the Prevention of Terrorism Bill to which the Commons have disagreed, for which insistence they assign their reasons. They agree to certain Commons amendments to certain Lords amendments and disagree to certain other Commons amendments to Lords amendments, for which disagreement they assign their reasons. They do not insist on certain other amendments to which the Commons have disagreed but do propose amendments in lieu thereof, and they do not insist on their remaining amendments to which the Commons have disagreed. Copies of Lords reasons and amendments are available in the Vote Office, as are the Government's proposals relating to the message. All Government proposals will be debated together.

Lords reason: 1D

I beg to move, That this House
insists on its amendments 1A and 1B to Lords Amendment No.1, insists on its disagreement to Lords amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and insists on its amendments 37A to 37O, disagrees to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8, and proposes amendments (a) to (f) to the words restored to the Bill by its insistence on its disagreement to Lords amendment No. 17.

With this it will be convenient to discuss Lords reasons 12A, 13A, 15A, 17G, 22A, 27B, 28A, 31B, Government motion to insist &c. and Government amendments (a) and (b), Lords reason 33D and Government motion to disagree &c., Lords reasons 37P to 37T, 38A, 39A, 40A, 42D, 42E and Government motion to insist &c.

As you indicated, Mr. Deputy Speaker, we are debating all the amendments together, and I intend very briefly to go through the Government's position on each of the issues that has been addressed.

I turn first to Lords reasons 38A, 39A, 40A, etc. The effect of the Lords motion is that the Lords have insisted on their Amendment to the schedule that provides for the Lord Chief Justice to make the rules and to require rules of court to be compatible with article 6 of the European convention on human rights and have proposed a different procedure for the making of first rules. We do not accept that that set of proposals is sensible. First, the Lord Chief Justice does not make rules of court. Secondly, the rules must be compatible with article 6 in any event. Thirdly, we have changed the procedure to allow affirmative resolutions to approve the rules. I therefore ask the House to insist on its disagreement to Lords amendments Nos. 38, 39 and 40, insist on its amendments Nos. 42A and 42B, agree to its amendment No. 42C, agree to Lords amendment No. 42D and disagree with Lords amendment No. 42E proposed in lieu.

Secondly, I address Lords reason 1D, which refers to the Secretary of State making non-derogating orders and to the standard of proof. The effect of the Lords' motion is that they have rejected our amendments in relation to the making and judicial supervision of non-derogating control orders and to standards of proof. They are insisting on their own amendments in relation to those matters. We had a very long debate on those issues last night. The will of the House was expressed very clearly indeed. I do not propose to accept the amendments proposed, since I believe that a reduction in the standard of proof would lead to the likelihood that certain dangerous individuals who otherwise would be brought under control through control orders would not be so controlled. That is the advice that I have had from the police and the security services. I therefore conclude that the Lords amendments are not an improvement.

My amendments indicated very considerable movement by the Government to address the concerns expressed in both Houses. For that reason, I ask the House to insist on its amendments Nos. 1A and 1B to Lords amendment No. 1, insist on its disagreement to Lords amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, and insist on its amendments Nos. 37A to 37O, to disagree to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8, and propose the additional amendments listed in my name on the marshalled list.

I believe that Mr. Grieve, in responding to this discussion, should answer a key question when considering these amendments. Will he confirm that his policy neglects the advice of the police and security services and would mean that control orders would not be placed on certain individuals whom the police and security services consider a threat?

Will the Home Secretary acknowledge that it is difficult for Opposition parties to answer that question unless we can be shown the evidence on which the assumption is based? Will he make available the evidence that is being given to him by intelligence sources?

I will make available in general terms—[Hon. Members: "Oh"]—it is a very important distinction—the evidence for the basis of the case that we make. Indeed, I did that only last week in a general case to explain why we were concerned about the issues. I will not confirm that I will make available in particular terms the particular situation relating to particular individuals, because it is precisely in those particular circumstances that national security issues are at risk. However, I can say to the hon. Gentleman that I am ready to acknowledge, as he asks, that, on the procedures for which he has been pressing and that my noble Friend the Attorney-General has set out in relation to Committees of the House, it is important to be clear that they allow the special advocate to understand the case in the round. I shall comment on that in more detail later in my remarks.

Both the Home Secretary and the Prime Minister have repeatedly said that the security services require the control orders. Without going into individual cases, it ought to be perfectly possible for the Government to place before the House, as they have done in the past, the views of the security services—both security services—so that the House can know whether that is correct. As the Home Secretary will appreciate, ever since the events surrounding the Iraq war it has been difficult to take anything that the Government say on trust.

I am very sorry indeed that the hon. Gentleman should seek to cast doubt on the security services—[Hon. Members: "No, you did."] No, that is precisely what he sought to do. I have always acknowledged, from my statement on 26 January and throughout the various debates, that the issue of weapons of mass destruction in Iraq has caused concern and has led to issues of trust that need to be addressed—

Will the Home Secretary give way?

Will the Home Secretary give way?

No, I am not giving way.

There are issues of trust in relation to both the Government and security and intelligence information. That is a fair point to make in discussion. However, because the doubt has been raised in the way Mr. Grieve raised it, I argue—it is an important argument—that it cannot be asserted simply on the basis of that doubt that all evaluations by all the security services of any threat to come should be cast aside, because they should not be.

Will the Home Secretary give way?

I shall give way once more and then I want to make progress.

Let us bring the discussion to this particular topic. The Home Secretary knows that, last week, the Prime Minister claimed that there were hundreds of potential terrorists abroad in this country. Within 24 hours, there had been a leak from the security services saying that that was nonsense and that the figure was between 10 and 20. Clearly, we cannot verify whether that leak was accurate, but the Home Secretary might reflect that it casts some doubt on whether we should accept either his word or that of the Prime Minister on anything.

First, the hon. Gentleman is not talking about leaks and all that side of things. The figures that he quotes are actually set out in the financial memorandum and the regulatory impact assessment that we put before the House when we published the measure. They are entirely public documents and one would think that a competent Opposition would have studied them carefully before considering the situation—[Interruption.]

How come the Home Secretary has been unable to persuade Paul Condon of all this?

The main reason for that is an important one, which relates to a discussion that we held earlier. The events of 9/11 and those that followed were particularly significant. Paul Condon resigned as Metropolitan Police Commissioner before that time—[Interruption.] Yes, he did. The House should consider equally the remarks of Sir John Stevens, Lord Stevens, on that question. He was commissioner at that time and had to deal with those issues. The House should also consider the position of the current commissioner. Today, at a briefing for the crime reporters association—

Will the Home Secretary give way?

Will the Home Secretary give way?

I am not giving way, as I have already made clear.

The question to the Metropolitan Police Commissioner was:

"Do you have a feeling that the legislation"— on the prevention of terrorism—

"is being prepared so rapidly by the Government because of concerns over the General Election?"

That was putting the Opposition's allegations directly to the commissioner. He answered:

"I cannot say that, but I can say very clearly that the Government is in a position that on Monday if this legislation is not passed these men must be released from Belmarsh".

That was the commissioner speaking. He continued:

"I think that will be a grave threat to the national security, I can certainly say that."

The evidence from the former Metropolitan Police Commissioner, who had the job of dealing with the post-9/11 situation, and the current Metropolitan Police Commissioner, is absolutely clear on this question.

Several hon. Members:

rose—

No, I shall not give way. I am going to make progress.

Order. I think the Home Secretary is indicating that he is not giving way at this juncture.

Thank you, Mr. Deputy Speaker.

I now turn to Lords reasons 27B, 31B and 32B, dealing with Privy Council review and annual reviewer, and Lords Amendment No. 33D, dealing with the Sunset clause. The Government's motion—

Several hon. Members:

rose—

I shall not give way.

The Government's motion states that the House insists on its disagreement with Lords amendments Nos. 27, 31 and 32 and proposes amendments in lieu in relation to the scope of the independent annual review. The effect of the two amendments tabled in my name is to extend the scope of the independent annual review of the Act so that the review covers the whole Act, rather than just sections 1 to 6 on operation of control orders, as now.

Under these amendments, the appeal provisions will come within the scope of the review, as will the arrangements for reviewing the Act once passed. I think this proposal goes towards dealing with some concerns that have been expressed on both sides of the House and also by my noble Friend Baroness Hayman in the other place, about the way in which these issues are to be considered when the legislation is taken forward.

As I said yesterday, the Bill already provides a number of provisions for substantial and considered review of this system of legislation. They are, first, the quarterly reports that I, as Secretary of State, make to Parliament on the use of the powers to make control orders and, secondly, an independent reviewer—now, I suggest, of the whole operation of the Act—making an annual report, which is laid before Parliament. I confirm what I have said before: I will ask the independent reviewer to look specifically at the continuing need for the provisions in this Bill in the light of any new counter-terrorist legislation.

I propose—I emphasise this new proposition now—to widen the remit to the whole Act, not simply the control order powers and the offence provisions.

My proposal of last night was for the annual renewal of the Act with a vote in both Houses of Parliament to look at that situation. The proposal in the Bill enables the House to vote annually on the need to continue the capacity to make derogating control orders, if at some future stage we decide to derogate. I gave a commitment to my hon. Friend Mr. Soley yesterday to have discussion across all parties after the election about the best way of taking this legislation forward. Of course, the opportunity for new legislation in the next Session gives us another opportunity to review these provisions.

I can confirm—again responding to Baroness Hayman—that we will ensure that the proposed legislation both has proper pre-legislative scrutiny and will be introduced as early as possible in the next Session.

I believe it is important, coming back to the attitude of the Conservative party, that the hon. Member for Beaconsfield state whether, in any post-election discussion of the type that we have discussed in the House, the Conservatives will accept control orders as a means of giving the security services the powers they need to deal with these threats. I also think that it is incumbent on him, on behalf of the official Opposition, to confirm that his election manifesto will include the pledge to repeal control orders, if that is indeed his position. The House deserves an answer to that question.

On the basis of these proposals, we do not feel that we need a further Privy Council review or an additional review committee, and it is total nonsense to remove the annual review of the Act. To be quite frank, the Amendment passed in the other place is an offence against the excellent current reviewer, Lord Carlile of Berriew, and the work he is doing in carrying that through. To suggest he is not doing good work in this matter was a serious mistake by the Lords, in my opinion. I am determined that we insist on our disagreement with the amendments so as to maintain the existence of the independent reviewer. [Interruption.] I suggest that colleagues look at what he said in the debate in the House of Lords. He did not agree with himself being abolished in the way suggested by this particular proposal—not surprisingly, because he has done a pretty good independent, non-politically partisan job, to which we should all pay respect and tribute. That is why I am determined that we insist on our disagreement with the Lords amendments and thus maintain the existence of the independent reviewer.

I hope that the House will insist on its disagreement to Lords amendments Nos. 27, 31 and 32 and that it will accept the Government amendments in lieu. I also hope that the House will disagree with Lords amendment No. 33D and agree to amendments Nos. 33A to 33C.

When the hon. Member for Beaconsfield responds, I hope that he will set out what leads him to believe that a magic solution will be found by the end of March next year that will allow agreement to be reached on all these things. Even more, I hope that we will hear whether he accepts that his proposal to end control orders in November—or even at the end of March 2006—would encourage terrorists to locate in Britain, because I believe that that would be the effect of his actions. That is why I commend both our amendments and the statement of the Commissioner of Police of the Metropolis to the House and hope that hon. Members will support our amendments this evening.

I am sorry to hear the Home Secretary's tone this evening. It was characterised by his assertion a few moments ago that due to some activity of the House or the Opposition, individuals would be released from Belmarsh next week. Nothing could be further from the truth. The release will happen whether the Government get the Bill or not. It would not need to happen if the Government renewed their part 4 powers, but as it was said in court today, their response to the bail applications made under part 4 of the Anti-terrorism, Crime and Security Act 2001 has been shambolic, so they have got themselves into their present difficulties.

Will my hon. Friend remind the House that the Home Secretary has already told us that he does not propose to use control orders to hold those people in custody?

Indeed, and those people will not even be subject to home detention. The statement made by the Home Secretary started with a complete inaccuracy.

The first thing that shines through from the Lords amendments is that Members of the other place have tried to achieve a consensus in a conciliatory fashion. How else can one interpret the Amendment tabled by Baroness Hayman proposing a Sunset clause extending to 12 months? We were happy to accept that amendment as a gesture to the Government, even though, I might add, it is unnecessary if they are being sincere and wish to get on with further legislation.

Did my hon. Friend note that the Home Secretary walked through the Division Lobby earlier today to vote for a Sunset clause to help Sinn Fein-IRA Members? Is it not ironic that he rejects a reasonable sunset Clause to help civil liberties, but supports a sunset clause that aids and abets terrorists?

I agree entirely with my right hon. Friend.

On the subject of sincerity, has my hon. Friend had the chance to study the words of the Home Secretary that I showed him during the suspension? They read:

"Our strategy should therefore be to insist that the bill does not diminish the liberty of the subject but amplifies it; that the true liberty of the subject consists in the freedom to walk the streets unmolested . . . and that far from circumscribing the liberty of the subject this will enlarge it . . . Paradox works well and mists up the windows, which is handy. 'The loss of liberty is the price we pay for freedom' type thing."

My hon. Friend will realise that they are the words of the fictitious Home Secretary in Alan Bennett's excellent play "The History Boys". They were intended as satire, but now sound eerily and worryingly prophetic.

Indeed. Government Members yesterday suggested that the need for security was so great that any infringement of liberty might be tolerated. We disagree profoundly with the Government on that point.

The situation regarding the Sunset clause is quite clear. The Government know from the comments of many of their Back Benchers, including those whom they persuaded to support them yesterday, that the Bill is without doubt a major infringement of civil liberties and is poorly drafted. Vera Baird made that comment, even though, in her loyalty, she came back to support the Government. The Home Secretary should therefore accept that the legislation should have a finite limit. Without such a limit, I have no confidence that the Government will ever review the measure properly. We will simply be asked to rubber-stamp its renewal, and there will be no creative thinking about how we resolve our present dilemma and maintain civil liberties while fighting terrorism adequately.

Once again, the Opposition have made much of the opinions of people who have formerly held eminent positions. Does the hon. Gentleman accept that his proposals fly in face of the contemporary opinions of the security services and the police? If his measures are accepted, they will fly in the face of that advice and jeopardise the citizens of the United Kingdom.

The hon. Gentleman's generalised comments are not very helpful, as we need to look at specific points. Is he suggesting that the security services have said that a Sunset clause defeats the object of the Bill? It plainly does not, and it is nonsense to make that assertion.

Is my hon. Friend, like me, worried not only about the attack on civil liberties but about the fact that the Bill does not guarantee the security of the British people? The Government know that there are hundreds of terrorists out there, but we now know that not a single one will be charged or locked up.

My right hon. Friend makes a good point. That is a serious problem, and it is one reason why we tabled a provision on the director of public prosecutions, as there should be proper consultation to ensure that wherever possible prosecution is pursued. That is another area that the Government have dismissed entirely.

The hon. Gentleman is generous in giving way again. To pursue his point about the security services and the police, they are asking for control orders. What is the Opposition's policy on control orders? If they have no intention of using them, will they include such a statement in their manifesto?

The hon. Gentleman is not listening to the debate. However much I dislike the prospect, it is within the Government's power to obtain control orders within a few hours. What is preventing them from doing so is the purest petulance. The Government have insisted that there should be a distinction between derogated and non-derogated orders.

Does the hon. Gentleman accept that there is a huge divide in the House on a number of issues, but that the crucial issue is the Sunset clause? There may be only one Government Member who believes that the measures fall short of the threat but, having listened to the Home Secretary, I accept completely that the threat is of a nature that we have not faced before. I am therefore worried about whether the measures proposed by the hon. Gentleman are adequate to deal with the threat. Without a sunset Clause, we can never go back to the drawing board to consider measures that are adequate to the challenge. I am worried that a review in 12 months' time will merely provide approval, not a basic analysis of what is required, given the challenge that the Home Secretary said we face.

I agree entirely with the right hon. Gentleman's sensible comments. If the Government accepted the Sunset clause in the spirit in which it is intended, the House could start to make real progress. The reluctance of the Home Secretary and the Prime Minister to accept a sunset Clause on an issue of huge importance to civil liberties does them no credit whatsoever.

Is the hon. Gentleman saying that if the Government accepted the Sunset clause, the official Opposition would drop all their objections to the remaining measures, knowing that we could return to the drawing board after the election?

The Government should go further and I shall explain why. I simply do not understand why they chose to make an issue of the distinction between derogating and non-derogating orders. During the debate last week, the hon. and learned Member for Redcar made an exceptionally good speech in which she explained why the distinction between derogating and non-derogating orders should be removed. She also highlighted why judicial review proceedings are inadequate for non-derogating orders. Her comments then were absolutely correct and I accept that she accepted less than that yesterday out of loyalty. I have yet to understand the rationale behind the Home Secretary's insistence that the distinction must be maintained.

The answer to the question asked by Mr. Field is that we insist that the Government move on the issue.

The hon. Gentleman knows very well that when I referred to judicial review I was addressing the question of an appeal on an unsatisfactory basis. I have been substantially reassured because the judge will now come first in non-derogating control orders. I hope that the hon. Gentleman will not misrepresent what I said a week ago.

The hon. Gentleman seems to be suggesting that a Sunset clause is a precondition for conversations between parties about future legislation. That is utter rubbish and the public should understand that. Conversations have been offered here and now by the Home Secretary, irrespective of the sunset Clause, and he has promised new legislation next year. The Opposition have every opportunity to contribute to better future legislation on this matter. The sunset clause is a silly, political tactic.

The hon. and learned Lady is naive if she thinks that in the absence of a Sunset clause we will get any joy from this Government on a proper review of this legislation with its draconian clauses and consequences.

I have here the comments made by the hon. and learned Lady on 28 February and they could not be more crystal clear in their condemnation of a review system as opposed to one where the judge makes the initial decision. I invite her to read her words.

As someone who was, in the words of Vera Baird, given the opportunity to contribute to legislation in the Newton committee, I remind the House that the only sunset depended on the committee's report being debated. When the all-party committee produced a set of alternative proposals, the Home Office did not have to consider adopting them because the legislation continued. Only the sunsetting of the legislation by the House of Lords led to the Government taking up the committee's proposals.

Yes, indeed. Baroness Hayman was a member of that committee, which may explain why she places so little faith in the Home Secretary's assurances. I am bound to say to the hon. and learned Member for Redcar that she should not place much faith in those assurances.

Will the hon. Gentleman give way?

No. I want to bring my comments to a conclusion.

The Government have also objected to all the other proposals made in the other place to improve the Bill. I do not understand the Government's continuing insistence on reasonable suspicion rather than the balance of probabilities. There is no justification for that stance particularly as, again, it offers a different test from that in derogating orders.

Will the hon. Gentleman give way?

No. I am sorry, but I must make progress.

There can be no logical reason for that distinction. The Government's refusal to have a full Privy Council review is extraordinary. If the Government want the Bill, they can have it. It can be on the statute book later tonight, but a little reasonableness would be helpful. We have been subjected over the past week to vitriol, bullying and, now, petulance. The petulance extends so far that No. 10 appears to be briefing that there will be a General Election on this issue unless the Opposition give way.

This is an issue of conscience, and should be so for every Member of this House. Nothing will induce me to allow the Bill to pass in its present form and every hon. Member should consider carefully the duty they owe to their constituents in respect of ensuring that liberty is maintained in this country. In particular, the Government's refusal to accept the Sunset clause highlights the fact that they are untrustworthy on this legislation, and the Home Secretary has done nothing to dispel that distrust this evening. I ask the House to support the Lords amendments and to enable this matter to come to a rapid conclusion.

I call Mr. Marshall-Andrews.

Oh, good!

We have another half an hour, and I will not speak for very long, because other Members may wish to speak, including Chris Ruane—I am sure that he has a serious and interesting contribution to make.

My point concerns review by the judiciary of derogating and non-derogating clauses. I take the view that the House was seriously misled yesterday and when we debated the matter before. This is a central issue. The Government make a distinction between derogating and non-derogating issues; I do not accept that distinction, but the Government make it. In respect of derogating issues—house arrest—the Government provide that the court will have full powers to look at the facts and to come to its own conclusions. So far, so good. I would reluctantly accept that, if it were the case for all the orders.

Non-derogating orders are not mere chaff in the system. They will involve people's right to work, to associate and to move, and their being tagged and electronically monitored. They are as close to the pass Laws in South Africa as it is possible to get, and they are a serious matter. The question that the House must ask is whether there will be proper judicial review of those proceedings. The House has been told on several occasions that there will be, because the court will be allowed to consider the orders, but it may do so only on the basis of judicial review. The basis of judicial review does not allow a court to reopen the case and look at the facts on which the order was made. It is worth repeating that point time and again. Assurances to the House, whether from Front or Back Benchers, and from people who should know better, are simply wrong. The House must take that on board.

Will my hon. and learned Friend give way?

There is no distinction to be made—[Hon. Members: "give way."] After my next few sentences, I shall give way.

There is no distinction to be made between whether such an order gets to a judge on appeal or as of right. The same process will be applied—namely, that the judge will apply the constrictions of judicial review. That is what my hon. and learned Friend Vera Baird objected to initially—realistically and properly—and I supported her. She now supports the change that has been made to the Bill, but it is precisely the same test, of judicial review. The House should understand that no judge will be able to look at the facts of the matter. It is essential to take that on board when hon. Members vote on whether the non-derogating orders should be accepted as they stand.

Is my hon. and learned Friend giving way?

Hon. Members:

Yes.

Order. Let us clarify the situation. Is the hon. and learned Gentleman giving way?

Yes, Mr. Deputy Speaker.

The hon. and learned Gentleman has not yet completed his remarks. I call Vera Baird.

Thank you, Mr. Deputy Speaker.

My hon. and learned Friend knows well that if a judge is asked at the outset to consider whether there are reasonable grounds on which one can, as Home Secretary, suspect that a person is engaged in terrorism, the only possible way to reach a judgment is for the judge to look at the evidence and form a view. My hon. and learned Friend must not mislead the House about that.

That Intervention would be valid were that the test, but it is not. As my hon. and learned Friend well knows, the test is whether the judge feels, not that the decision was wrong based on the facts, but that it was obviously flawed—not that the decision is wrong, or that the judge disagrees with it, but that it was obviously flawed. That is the test of judicial review.

I am not entirely sure what "obviously" means in the present circumstances. Can a judge say, "Well, I thought the decision wasn't obviously flawed. Having looked at the background, I think it was flawed, but initially it was not obviously flawed"? What is a judge to make of the provision? I have not the remotest idea. It is bad to pass a statute that affects the liberties of our citizens based on such an amount of doubt. I simply ask hon. Members to take that on board when making their decision on this particular issue.

I have already admitted that I am not a lawyer, but I have looked at Clause 7, which states:

"The function of the court on an appeal . . . is to determine whether any of the following decisions of the Secretary of State was flawed—

(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order".

Clause 1, which will become section 1, empowers the Secretary of State to make an order

"if he . . . has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".

It seems to me that the judge cannot decide whether the Secretary of State's decision was flawed without knowing the basis on which the Secretary of State made that decision.

Precisely. [Laughter.] I hope that hon. Members realise that this is not a flippant point but a serious one. Of course the judge must look at the reasons. Having done so, a judge may think that he would not have acted in the same way, or that what the Secretary of State did was wrong, or that his decision was wrong. Nevertheless, what he must conclude is that the decision was obviously flawed, and he must do so applying the principles of judicial review. Judicial review comes from the prerogative writs—ancient writs in this country—which were always and deliberately set out on the basis that judges should not question decisions taken by the Executive—quite right, too. Hear, hear; I agree—they should not. That is the basis of judicial review. That is its whole life and mainspring in the legal system.

I congratulate the hon. and learned Gentleman on trying to explain to people who will not have read the Bill before they vote for it precisely what they will be doing. Judicial review involves looking at the process, not at the substance of a decision. What hon. Members will do blindly, if they do not listen to him, is pretend that the review is a proper form of appeal. It is not. Please, will he continue to say what he has to say with greater force and clarity?

I am not sure that I shall accept that invitation, generous though it was. I make no apologies for being a lawyer. There are charlatans in my profession, as there are in every profession. Equally, we can number in my profession some of the finest politicians, alive and dead. They have made their contribution in their time, and it has often been in the field of civil liberty—precisely the subject that we are discussing. It is in that spirit that I make this contribution.

I do not wish the House to be misled into passing legislation and believing that it is giving to judges a power that the Bill manifestly and obviously does not give to them, will never give to them and should not give to them, under judicial review, because to extend judicial review is, by definition, to diminish the power of the House and its Ministers. That is why judicial review exists, and why it is so heavily circumscribed. To suggest that we are giving judges the power to strike down Ministers by judicial review is—I am sorry—casuistry, and should be treated as such.

rose—

No, I have already given way. [Hon. Members: "Go on!"] As I am encouraged by those surrounding me, of course I will give way.

I am glad that my hon. and learned Friend accepted that he was outnumbered. There must be a real danger that the public watching us now think that we are two QCs arguing about how many angels one can get on the head of a pin. For the avoidance of doubt, and since my name has been used and, I think, been used slightly badly, may I make it plain that a test whereby a judge of the High Court will consider, on all the evidence, whether there is reasonable cause to suspect that a person is engaged in terrorism is a satisfactory test, as far as I am concerned.

So my hon. and learned Friend has said. Of course we are talking about law. The Bill makes law. It is impossible to avoid that. It is making immensely bad law, and that is why we must talk about it. I have said what I said, and shot my bolt on the issue, and I hope that some hon. Members, at least, will take on board what I say in the spirit in which I am saying it.

I come to the Sunset clause; the time has now been extended to a year. What we are giving birth to here, if we give birth to it at all, is a very malformed animal indeed. In saying that, I enjoy the support not only of people who have fought the Bill throughout, but of people like my hon. and learned Friend the Member for Redcar and many commentators who believe that the Bill is seriously malformed. The Bill cannot be resuscitated and cured, by definition. What we need is a rebirth. We need a new Bill and we need it quickly. The period of a year, which has been proposed in Another place by a noble Lord of my party, is worthy of support. One year is enough. We need to bring back in a year not this old malformed Bill, resurfaced and rehatched, but a new Bill to deal with the problems of terrorism, which are undoubtedly real.

It is a great misfortune that again we have such an abbreviated debate on this important Bill.

I should like to think that the Home Secretary and others in the Chamber recognise the high level of agreement between parties, between Benches and between Houses. We all agree that there is a serious threat of terrorism. We all agree that there is a need to take appropriate measures to combat it. Most of us agree that, regrettably, control orders are probably part of the apparatus that is required. We have been prepared to accept that there needs to be an emergency process that enables the Secretary of State to apply for those control orders, even on the grounds of reasonable suspicion. Those in Another place who have considered the Bill have done an extremely good job of tabling amendments that work and make the Bill better.

The Home Secretary should have no doubts about whether he will have his Bill, because he has it already. The Bill is workable, and it is for him to take it. It is not good enough to suggest that either a recalcitrant upper House or an obstructive Opposition in this Chamber is stopping him having what he needs in order to combat terrorism effectively.

Which extraordinary suggestions from the other place does the Home Secretary propose to remove this evening? He proposes to remove the power of the Lord Chief Justice, rather than the Lord Chancellor, to make rules of court. A few weeks ago, we considered the abolition of the post of Lord Chancellor, and it is absurd to suggest that as a matter of principle the Lord Chancellor must make rules of court rather than the Lord Chief Justice.

The Home Secretary has asked us to reject the contention that article 6 of the European convention on human rights should be addressed on the face of the Bill. That is ridiculous, but he insists that he will not budge. He could help the House this evening by making it explicit that the process will not accept evidence gained by torture under other jurisdictions, but he has not made that expressly plain.

I have given that exact assurance in this House, and to the Joint Committee on Human Rights and the Home Affairs Committee.

I am grateful to the Home Secretary.

I am also grateful to the Home Secretary for accepting Lords Amendment No. 42D, which is extremely important because it sets out the rules by which possibly exculpatory evidence could be disclosed to defendants or their representatives. Although that mechanism would be imperfect in normal criminal proceedings, it is a great improvement.

May I take the opportunity to confirm that that is the case, and that we are ready to examine further ways to improve the process involving special advocates?

We are making significant progress in that area, and more progress remains to be made.

It is extraordinary that the Home Secretary persists with the artificial distinction between derogating and non-derogating orders. Indeed, many Labour Members have said that there should no difference in legal process between those two types of order.

Will the hon. Gentleman give way?

No, we do not have time. The hon. Gentleman voted for the timetable motion, which prevents debate. [Hon. Members: "Hear, hear."]

There is no logical reason for a separate judicial process between derogating and non-derogating orders, and I still hope that the Home Secretary will agree that matter with us.

On the standard of proof, we have a significant disagreement, and the Home Secretary has not yet established to my satisfaction why the balance of probabilities is an inappropriate test to decide whether someone should lose their liberty. I believe that that test is appropriate, but he has told me that the security services require that the test should be based on reasonable suspicion rather than the balance of probabilities. That simple assertion is not enough, and I invite him to provide us with evidence that will allow us to understand why he believes that the balance of probabilities is not the appropriate standard of proof.

The Home Secretary has asked us to remove the reference to the Director of Public Prosecutions—which, incidentally, is in the wrong part of the Bill—and argues that the matter should be put before a chief of police. However, we have argued for years that the prosecuting authorities rather than the police should decide whether to prosecute. Why is he taking that retrograde step, and why on earth should that be a sticking point?

The Home Secretary has asked us to remove the provisions for a Privy Council annual review. Notwithstanding the concerns about the future employment of my noble Friend Lord Carlile—I hope that Lord Carlile or someone else will have the opportunity to continue as an independent reviewer—the Privy Council is a useful mechanism for examining the performance of the legislation in action.

The position on the Sunset clause is the biggest absurdity of all. We have a Labour peer—Baroness Hayman, previously a Member of this House—putting forward the eminently sensible suggestion of a sunset Clause, to come into effect after a year, for this legislation, which is acknowledged on all sides to be temporary, emergency and not entirely well considered.

That is not acceptable.

The hon. Gentleman says from a sedentary position—I am happy to read him into the record, as he is so desperate to get into it—that that is not acceptable. So what is not acceptable? We are told that it is unacceptable for the legislation to cease to have effect after a year, but acceptable for the House to reject it after a year as a renewal. We are told that it is not acceptable for the House to improve the Bill, but acceptable for it to reject the Bill. In any case, we are told by Baroness Scotland that by that time we will have new and better legislation, because, as she virtually admitted to the other House, this legislation is defective and we can do better—in other words, there is no need to worry about the renewal because something else would already be on the statute book. Yet if there is no need to worry about renewal, why is there any need to worry about a Sunset clause? There is no logic in that position. It is unacceptable for the Government to hide behind it as a pretext that that is a bar to their having their legislation.

To say that to accept a sunset Clause is to send a signal to the terrorist is the worst argument that I have ever heard. That is to say that al-Qaeda operatives all over the world are waiting to hear whether we are going to have a sunset clause or a renewal facility on 31 March next year, and if we make the right decision they will be satisfied and put their bombs away.

This is an absurdity. The Government have it within their power to have their legislation tonight—they will have it within an hour or two if they take the necessary steps. They have moved a very long way in several areas; we are grateful for that. They have a couple more steps to go, and then they will have their legislation. But if they do not take those steps—if they believe that the sunset clause is the sticking point that prevents them from having their legislation—not only will they look absurd, but we can only conclude that they did not actually want this Bill in the first place.

So that nobody is misled by anybody on either side of this House, let me clearly set out my understanding of the position. The test in the Bill is very plain—are there reasonable grounds to suspect that the person is engaged in terrorism? The only way of assessing that is to look at the evidence and evaluate it. The judge must act as the gatekeeper for the Home Secretary in evaluating the evidence and concluding whether his proposal is within a range of reasonable responses to that evidence. If he finds that it is outside the range of reasonable responses, he will quash it and it will never get off the ground.

There is an additional element that my hon. and learned Friend Mr. Marshall-Andrews—and he is my friend—missed out. Since the prerogative writs of the 17th century, the element of proportionality has come in as another important test that is, again, based on the evidence. That came in with the Human Rights Act 1998. What changed my mind was the putting of the judge first and requiring him to be responsible for these decisions—to gate-keep. I am satisfied that the judges will develop an excellent jurisprudence because of that responsibility, which will ensure the maximum amount of fairness for the individuals involved.

rose—

I want to move on because I have less time than my hon. and learned Friend took.

The Tories and the Liberal Democrats must not pretend that a Sunset clause is the key to negotiations for new legislation because my right hon. Friend the Home Secretary has made it clear that he will introduce a new Bill.

Let me deal with the burden of proof, because it rears its head high.

Will my hon. and learned Friend give way?

I am sorry but I will not. [Hon. Members: "give way."] I do not have time—[Interruption.]

Order. The hon. and learned Lady is not giving way.

I, too, know when I am outnumbered.

In a previous speech, my hon. and learned Friend said that the Bill was cobbled together, flawed and worrying. Surely the point of a Sunset clause is that we have something, and also more time to consider the matter and reach greater consensus. Is that not a good idea?

I do not think that I used the words that my right hon. Friend attributed to me, but I know what she means. No one is 100 per cent. satisfied that the measure is perfect, but my right hon. Friend the Home Secretary said that he will introduce a new Bill next year, in any event. Surely we ought to—[Interruption.]

May I deal with the burden of proof? All hon. Members appear to believe that that is important.

Will my hon. and learned Friend give way?

I have only three minutes and my hon. and learned Friend has already taken up a good deal of time.

It is my clear view that hon. Members are misguided in concentrating on the burden of proof. The distinction between reasonable cause to suspect that someone is involved in terrorism and it's being more probable than not is not worth dying in a ditch for. Hon. Members should concentrate on firming up the admirable concessions that the Home Secretary made yesterday on giving defendants a better deal by reorganising the special advocacy system so that they are likely to get to know more about their case.

Differences in the burden of proof pale into insignificance next to the concessions that my right hon. Friend has made. If hon. Members are interested in justice for defendants, they should concentrate on those concessions so that they can be reduced to paper to ensure that the special advocate system will be examined and that defendants get a better deal. That is truly the right way forward. It was clear in yesterday's debate that, if Conservative Members take a realistic approach to justice for defendants, they will find my right hon. Friend helpful. He plainly suggested that yesterday. I therefore conclude that that is the obvious route to take. If Conservative Members do not take it, they must simply be playing politics because there is a clear way in which to improve the Bill now.

I spoke about judicial review yesterday and I agree with the speech that Mr. Marshall-Andrews made earlier and with the speech that Vera Baird made on the same subject previously. Anyone who believes that a case has been made in which the merits of the issue are put in the hands of the judge has been misled.

With respect, I do not agree with the hon. and learned Member for Redcar that the difference between reasonable suspicion and the balance of probabilities is purely academic. No other part of the law is treated in that way. There will be cases in which there are plenty of grounds for suspicion but one feels that the man is probably innocent. If the Bill is allowed to proceed, someone in that position will be subject to all its rigours.

Let me consider briefly the advice of the Security Service—the new point on which the Home Secretary placed particular stress. Surely he could share a little more of the Security Service advice on the burden of proof and on the Sunset clause. The only argument that I have heard advanced about the burden of proof is that the Security Service insists on it. I find that unlikely. If that is Security Service advice, it must have peculiar lawyers. I am sure that we shall revert to the point later and I should like the Home Secretary to let us know whether the Security Service says that we should have a balance of probabilities, not reasonable suspicion.

Will the right hon. and learned Gentleman give way?

No—I apologise.

On the Sunset clause, is the Security Service saying that it is not acceptable for us to give ourselves 12 months in which to produce a new Bill, and do the Government believe that they have to press on with it for that reason?

The Downing street spokesman on behalf of the Prime Minister gave the genuine reason this afternoon. He totally prejudged this evening's proceedings. Downing street has instructed the Home Office to come along with all those reasons. The spokesman said that to amend the Bill further would send the wrong message to the terrorists and the police and security services, and that that applied not just to the sunset Clause but to the burden of proof. Mr. Heath exposed to ridicule brilliantly, I think, the idea that this is a message to terrorists. Everybody in the House is prepared to accept that there will be a fairly draconian Bill to protect the public if—

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [9 March].

Question put,

The House divided: Ayes 320, Noes 226.

Question accordingly agreed to.

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.

Lords amendments: 27B, 31B and 32B

Motion made, and Question put,

That this House insists on its disagreement to Lords Amendments 27, 31 and 32 but proposes the following amendments in lieu: (a), in page 12, line 45, leave out "sections 1 to 6" and insert "this Act".

(b), in page 13, line 3, leave out "those sections" and insert "this Act".—[Ms Blears.]

The House proceeded to a Division.

Order. Ms Abbott should not be using a mobile phone in the House; she should really know that by now.

The House having divided: Ayes 327, Noes 212.

Question accordingly agreed to.

Lords amendments Nos. 27B, 31B and 32B disagreed to.

Amendments in lieu agreed to.

Lords amendment: No.33D

Motion made, and Question put,

That this House disagrees with the Lords in the said amendment and proposes amendments Nos. 33A to 33C in lieu.—[Ms Blears.]

The House divided: Ayes 324, Noes 217.