Prevention of Terrorism Bill

– in the House of Commons at 1:30 am on 10th March 2005.

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

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 1:39 am, 10th March 2005

Once again, Mr. Deputy Speaker, we have an example of how the Government lack any frankness in their dealings with the House. The question that my right hon. Friend Mr. Letwin asked about what the Prime Minister said classically illustrates how the Government gloss the truth to suit their convenience. Instead of coming to the House, asking frankly for measures deemed necessary and engaging in proper debate, the Government spend their entire time fast-tracking the process, putting out spin, deceiving the public and then asking us to rubber-stamp their activities.

Let us examine the three issues of contention that now appear to remain. First, the Minister for Crime Reduction, Policing and Community Safety has told the House that she cannot accept that the distinction between derogating and non-derogating measures should disappear and she proposes instead a most deliciously complicated further tier of bureaucracy in an attempt to avoid the issue. Let me tell the Minister that as a recipe for further legal challenges, it would take some beating. I ask myself why the Government are going to such absurd lengths to avoid doing the sensible thing that the other place has asked for—treating derogating and non-derogating orders identically.

If what the Minister says is right, the derogating orders that the Secretary of State is keeping as an "important reserve power" that he may have to use in extremis, are, on her own analysis, completely valueless. I simply do not understand why the Minister keeps on refusing to do the simple and straightforward thing—indeed, the very thing that the Government originally gave the impression to the other place that they were going to do, which is to treat derogating and non-derogating orders identically. There is no explanation for that other than the Government's absolute determination not to be seen to be amenable to reason. If that is an example of the Government's common sense that they want to convey to the public, it takes some beating. There is no justification for the distinction.

Let me remind the Minister what Vera Baird said about non-derogating orders:

"I do not wish to labour the point, but the penalties that can befall someone under clause 1 are extraordinarily intrusive and can transform a person's life. They include obvious interferences with freedom of movement, family life and freedom of association. Someone may be ordered not to speak to any member of his family and he may be told to move house, stop doing his business or job or to change his job. He has to agree in certain circumstances to tell people in advance what his movements will be".

She went on to say:

"That is a very serious interference with liberty."—[Hansard, 28 February 2005; Vol. 431, c. 744.]

She was correct and the Minister is wrong. I am sorry that the Minister has suborned the hon. and learned Lady. We stand on the basis—

Photo of Vera Baird Vera Baird Labour, Redcar

Do I look suborned, Mr. Deputy Speaker? The hon. Gentleman has to remember that if these powers, which can be intrusive exactly as I said, cross over into an intrusion on article 5, they will never be granted because the judge is now at the front. It would be an unlawful order and the judge would not grant it. Checkmate on that one, I think.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is a fascinating comment, but it is not what the hon. and learned Lady said last week. She cannot escape her own analysis, which was absolutely correct and which the Government would have done well to heed. If the Government would see sense and treat derogating and non-derogating orders identically, they would be doing justice to the people subject to the orders. They would also solve their current problem and go a long way to resolving all the issues before the House tonight.

I turn now to whether a review should be prepared by an independent reviewer or a group of Privy Councillors. It is obvious that a proper and full review by Privy Councillors would be better than one by a single, independent reviewer. The latter would merely be a document handed to the Government, while the former would be a major document handed to Parliament for consideration. Furthermore, under the regime proposed by the other place, the reviews would take place at regular intervals and enable the House to monitor events.

Photo of Charles Clarke Charles Clarke Home Secretary 1:45 am, 10th March 2005

I should be happy to. The hon. Gentleman has completely failed to note that the independent reviewer will report to Parliament, not the Government, and that Parliament would debate his review. The amendment before the House means that when the renewal order is considered every year, it will be based on the independent review given to Parliament. That review will not be some Government thing on the side, as Parliament will examine it. As always, he simply does not understand what he is talking about.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I understand that the last Privy Council report, chaired by Lord Newton, was ignored by the Government. I suspect that the Government do not want a Privy Councillors' report because they know that they will not be able to ignore it a second time. That is why I think that the House should demand it. There is no reason for not having such a report. The Government's insistence on their position is another example of them dancing on the head of a pin for no good reason. The House should reject that stand.

Finally, we come to the sunset clause, about which there is a fundamental difference between Opposition and Government. This Bill must be tolerated, but it is very badly drafted—and I might add that the hon. and learned Member for Redcar thinks that as well, as do many other Labour Members.

The Bill was passed in haste, without consultation or normal Committee and Report stages. This morning, we have had about nine minutes to consider important Government amendments. The Bill should die soon, and be replaced with something new that is passed in ordinary form. That is totally different from what the Minister proposes. The mechanisms that she proposes will mean that the legislation can be renewed again and again. It is not good enough to suggest that the two approaches are equivalent.

If the Government were honest, they would say, like the Prime Minister, that the Bill is for the medium term and that the country will have to bear it for the next 10 or 20 years, if this Government remain in office. Alternatively, the Government should accept the sunset clause. The sunset clause is a thoroughly sensible measure that would ensure that the House does its duty before 12 months are out. The Government should look at the alternatives to a measure that the Minister knows undermines civil liberties.

G

Dear Sir

I cannot see why Dominic Grieve and his conservative colleagues wish that a judge should be in control. They are unelected and for most of them not in touch with the people in this country or reality. They are about the only group of employees who are not held responsible for their mistakes. They can judge a railway employee should be convicted of manslaughter for making a mistake (for whatever reason, we are human) but if they let someone go on a technicality who goes on to kill again, nothing is done.They have a tendancy to change the law to what they think it should be not to what the law was meant for. Judges and lawyers are already to powerful a group to keep allowing them this amount of power

Submitted by Graham Bream Read 4 more annotations

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I give way to the Home Secretary, so that he can explain what he was mumbling.

Photo of Charles Clarke Charles Clarke Home Secretary

I am grateful for this opportunity, as I had not intended to intervene. I have a simple question for the hon. Gentleman, who is sitting next to the Leader of the Opposition. Given his view of this matter, will the right hon. and learned Gentleman commit his party to repealing this legislation in his election manifesto?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary knows that we consider this legislation poorly drafted and bad, so the first thing that we will do when we get into office is to find a means of replacing it with something that allows the security—[Interruption.] Look, the Minister and his predecessor have spent the last 12 months with their heads buried in the sand in respect of the recommendations of Lord Newton. There are alternatives and they need to be considered, but the Government have not given the slightest indication of even engaging in that process. There is the question of prosecuting. There is the question of using intercept evidence. There is a question, if nothing else, if I may say to the Home Secretary, about putting in the things that at the moment he refuses to have in this legislation. The sooner we can get rid of control orders and this type of measure, the better. [Interruption.] Yes—the sooner we can get rid of measures such as control orders, the better for this country.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

But as I said to the Minister—I said it two weeks ago and I say it again—[Interruption.]

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I am sorry to interrupt the hon. Gentleman. The House must come to order. We must hear both sides of the argument clearly.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As I have said before to the Home Secretary, we are prepared to accept that control orders may in the short term be necessary, but at the moment we do not have the input from the security services that the Minister has, which is why we have spent the last week trying to improve the orders to remove those aspects that we consider intolerable. The Minister has not been willing to engage in that process, and I greatly regret that. He is showing no signs of doing so tonight.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions

On control orders specifically, the very fact that the security services and the police forces are asking for this measure seems to suggest that, however imperfect, we are trying to deliver a vehicle that is fit for purpose. What the hon. Gentleman is suggesting is that in nine months we scrap the vehicle entirely, as opposed to looking at it, revising it and renewing it. I suggest to him that the Government have at this stage of the morning bent over backwards to try and comply with some moderate way forward on this and he is now setting his face against it, and on Monday morning we may well have terrorists walking the streets of this country.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The alleged terrorists are going to be walking the streets tomorrow morning, irrespective of whether this legislation is passed or not and that is a measure of the Government's failure to address this issue over the last 12 months.

It is a straightforward issue. If the Government believed that civil liberties were important in this country they would consent to a sunset clause, if only to come back in 12 months' time and explain why, reluctantly, they had to continue with these measures. The fact that they will not taints the entire way in which they have approached this matter. I am left with the unpleasant sensation that the Government—[Interruption.] It is unpleasant, because I would much rather have had the Government persuade me of the necessity of these measures. I am left with the unpleasant sensation that the Government have been playing the cheapest form of politics with this matter, and we on this side of the House will vote to uphold the Lords amendments.

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

In my experience it is very rare that we have a rational debate at this time in the morning, and I think that the experience of the last few minutes has proved that point. It is unfortunate that yet again we are having to face an abbreviated debate on a matter of huge importance, and that we seem to be making so little progress in what ought to be a substantial debate on how we can improve the Bill.

The Minister says that no one has come up with any other proposal to meet her requirements. May I invite her to read Lords amendments Nos. 1, 8 and 12—Lords amendments ad nauseam that do the job that she has asked Parliament to do, which is to provide an adequate response to the agreed threat of terrorism and an adequate response to the needs that the security services and the police have identified? They provide her with the control orders that she has asked for, and they provide a court procedure that is adequate to meet the needs and the balance that the Home Secretary has suggested is the essential part of balancing the threat with the commensurate judicial procedures. All those things are in place, and she and her right hon. Friend have rejected them, so we are left debating the same topics, time and again.

We have made some movement—I accept that, and the Minister knows that I have welcomed it—but we are left with these clear distinctions between our positions. Let us be absolutely clear what they are. First, we have the arbitrary distinction between derogating and non-derogating orders, which the Government perversely insist on, despite the advice of not only those in another place who have looked at this and who have a very clear view that there is no such arbitrary distinction, but Labour Members sitting behind her now who have indicated their complete dissatisfaction with that arbitrary distinction. So there is no distinction, yet we have a different judicial process.

Photo of Dave Watts Dave Watts PPS (Rt Hon John Prescott, Deputy Prime Minister), Office of the Deputy Prime Minister

Can the hon. Gentleman tell us whether any of the Lords or lawyers that we are talking about will be held accountable for any terrorist threat?

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

I can tell the hon. Gentleman that every Member of this House and every Member of the other House will be held responsible if we get this law wrong. If he believes that any Member of this House or any Member of the other House does not hold that as their prime responsibility, he is very mistaken, and I challenge him to find anyone who does not. The fact is that if we get it wrong, and if we produce bad law that creates resentment among many communities in this country, we are creating the circumstances in which terrorism breeds and increasing the dangers to the people of this country. That is what he needs to remember.

Photo of Kevin Brennan Kevin Brennan PPS (Rt Hon Alan Milburn, Chancellor of the Duchy of Lancaster), Cabinet Office

On the sunset clause, Baroness Hayman, who moved the 12-month clause, has said in another place that, as the elected House has rejected it, the unelected House should now give way. Does the hon. Gentleman and his party agree with that?

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

I do not know whether the hon. Gentleman has understood the fact that we are elected. This is the elected House, and we reject the view of the Ministers.

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

We reject the view of the Government that there should be no end to the suspension of habeas corpus and the substantial departure from our traditional laws.

Photo of Kevin Brennan Kevin Brennan PPS (Rt Hon Alan Milburn, Chancellor of the Duchy of Lancaster), Cabinet Office

Just to clarify this for the hon. Gentleman, Baroness Hayman, who moved the 12-month sunset clause, has said that the unelected House should give way at this point to the views of the elected House. [Interruption.] That is what she said. Does he agree that that should be the case and that the elected House should have its way—yes or no?

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

The hon. Gentleman should be very careful with this. He is quoting in aid a Labour Member of the other House who made a perfectly sensible proposition that was agreed by 250 peers and disagreed to by but 100 peers. That view has been reinforced by the most recent vote of the House of Lords, and she abstained. I believe she was right.

I say again to Ministers that I welcome the small amount of movement this evening. Let us get back to the serious content of the amendments. I welcome what the Minister said about the independent reviewer, who will have a crucial role to play in the process. As she knows, we would like a Privy Council Committee in addition to the independent reviewer, because we believe that that could do a better job of deriving the legislation we need to fight terrorism effectively. It has been admitted from the Dispatch Box in another place that this measure is not adequate, that we need new laws to fight terrorism properly, and that that will be the first responsibility of an incoming Government, of whatever persuasion, after the general election. It is an essential and urgent task. That makes it even more bizarre that the Government are prepared to accept this inadequate legislation—described clearly as inadequate from the Dispatch Box in another place and implied by Ministers in this place, as well—and that there is no proposal to make that legislation come to the end of its natural life next year so that it can be replaced by better legislation.

Let us look at amendment (a), which the Minister did not greatly amplify—[Interruption.] All those Members who jeer and say that they will always reject a sunset clause should note that 33A begins:

"Except so far as otherwise provided under this section, sections 1 to 6 expire at the end of the period of 12 months beginning with the day on which this Act is passed."

The House has gone quiet. That is a Government amendment saying that the Act will expire. The proposed new clause goes on to qualify that provision in ways that I find unacceptable, because they do not actually do the job. But let us not pretend that there is a great divide of principle between the Government and the Opposition on what happens to terrorism legislation. The Government have given the game away.

I close with this point. Earlier, my right hon. Friend Mr. Beith referred to the frank, and hardly surprising, comment made by the Lord Chancellor in another place. He was asked directly whether the security services had recommended that the Bill should have no sunset clause, and he said "No"—in frank contradistinction to what the Prime Minister said on Wednesday at the Dispatch Box in Prime Minister's questions. It was nonsense when the Prime Minister said it then. The Lord Chancellor has let the cat out of the bag. There is no argument that we should not have the clause. We should. That is why it is right that the amendments should go back to another place—[Interruption.] The Minister is shaking her head. Perhaps we should have an answer. Will she tell us? Have the security services recommended that or not?

Hon. Members:

Answer.

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

I have already made it clear—[Interruption.] Yes. The security services have told us that they want control orders. They have not said that they want a sunset clause[Interruption.] I say to the House that the Government are proposing the legislation. We are trying to make sure that it does what the security services want us to do, which is to provide control orders that will protect the national security of this country. That is what the Government are trying to do. We are not saying that every clause we propose is demanded by the security services, but I am saying that the security services want us to have control orders. That is why I was asking Mr. Grieve whether the Conservatives support control orders.

J

Oh, being a Minister is such an easy job. You only do what MI5 and the other secret intelligence services tell you to, no matter how bonkers it is. After all, you're not sent there as a civilian representative of the people to work for us to restrain the system of monopolized violence that is the definition of the state. That's certainly not what universal suffrage and the fight for civil rights was all about, for sure. We've created a situation where the spooks can say "Abracadabra", and they suddenly get...

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Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

On a point of order, Mr. Deputy Speaker. As page 74 of "Erskine May" makes clear,

"it is of paramount importance that ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity".

In the light of what has occurred, when the Prime Minister gave a clear account that the security services had said that it was against the sunset clause, yet we now know from the Minister that that is not the case, clearly the Prime Minister must come here and apologise to the House. He must correct the information—[Interruption.]

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. The hon. Gentleman will know that the Chair has no power to command the presence of any particular Minister at any particular time. I suggest to the House that these are matters of judgment, which will continue to be—[Interruption.] Order. They will continue to be at the centre of debate. These are matters for the House to decide.

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

The House can draw a very clear moral from this: never believe a thing that the Prime Minister says he is told by the security services. We have too much experience of this now.

The Government are entitled to have their legislation to fight terrorism, but they must have the right legislation. That is what all of us who are sensibly engaged in this debate are determined to achieve by the end of this evening or tomorrow. I believe that another place will have another go at this. Eventually, the Government will see sense and we will have that sensible legislation.

Photo of Mr George Foulkes Mr George Foulkes Labour/Co-operative, Carrick, Cumnock and Doon Valley

I want to make one point. Mr. Heath seemed deliberately to misunderstand the points made in interventions by my hon. Friends. Earlier, Mr. Grieve spoke about a serious interference in liberty. I went through to hear the debate in the other place and the— [Interruption.]

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I say to the House that levity has its place, but probably not at six minutes past 2 in the morning.

Hon. Members:

Elevation!

Photo of Mr George Foulkes Mr George Foulkes Labour/Co-operative, Carrick, Cumnock and Doon Valley

What we are seeing from Opposition Members is the effect of the grape, rather than anything else. I remind the House—[Interruption.]

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I do not think that the right hon. Gentleman's remark helped the situation. Let us get back to the central issue of the debate. I say to the House, let every right hon. and hon. Member be heard properly.

Photo of Mr George Foulkes Mr George Foulkes Labour/Co-operative, Carrick, Cumnock and Doon Valley

I am grateful to you, Mr. Deputy Speaker.

The hon. Member for Beaconsfield spoke about a serious interference in liberty. This is a serious matter. As I said, I went through to hear the Lord Chancellor, and I want to make just one point. The Lord Chancellor pointed out to the other place that it had asked the Government to make five changes in the Bill. The Government had accepted four of those five changes—80 per cent. of what the House of Lords asked us for. The Lord Chancellor went on to say, "Accept the primacy of the House of Commons." For a third time, the House of Lords rejected the primacy of the House of Commons. That is not a serious interference in liberty; it is a serious interference in democracy.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Earlier in our debates, the Home Secretary made a perfectly reasonable plea, which was that in these serious matters of counter-terrorism, the Government have a right to ask for the trust of the House of Commons in trying to come to their conclusions. That is why I say to the Home Secretary that it is with the heart of that trust that we are concerned tonight. The sunset clause is so important because we cannot trust the people who are asking for our trust.

I merely say to the Home Secretary that for him to pray in aid the security services, and for it then to be proved that the security services have not asked for one of the key things that he implied they had asked for, and that the Prime Minister said they had asked for, is to remove the trust of this House.

Photo of Charles Clarke Charles Clarke Home Secretary

I have in front of me the Hansard report of the references that are being discussed. The Prime Minister said:

"I am afraid that we"— meaning the Government—

"are not prepared to accept either the amendment on the sunset clause or the other amendment voted for by the House of Lords, and which the Conservatives in the House of Lords backed, to change the burden of proof. That would not be wise; it would be contrary to the strong advice given to us by our security services and our police, and I am simply not prepared to do it."—[Hansard, 9 March 2005; Vol. 431, c. 1510.]

That is what he said. The security services and the police have advised us categorically and clearly, as they should do, on measures. They have advised us quite explicitly that we should not change the burden of proof for non-derogating control orders. The reason why they have given that advice is very simply because they know, as do we, that there are certain people who are dangerous to the country, but could not be controlled if such a situation existed.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

On a point of order, Mr. Deputy Speaker. The House is this morning debating matters of the most fundamental importance to our country. They relate to the protection of our country from the threat of terrorism, and the fundamental liberties of the people of this country. It is essential for the future confidence in this House, and the political system as a whole, that these debates take place on the basis of the truth.

On Wednesday, in answer to a question from me, the Prime Minister said that it would not be wise to accept either the amendment on the sunset clause, or the other amendment to which the Home Secretary referred, because that would be

"contrary to the strong advice given to us by our security services and our police".—[Hansard, 9 March 2005; Vol. 431, c. 1510.]

It is now crystal clear that that is not the case. Is it not essential, in the interests of the body politic of this country, that the Prime Minister now come to the House to withdraw a statement that the Minister for Crime Reduction, Policing and Community Safety this morning, and the Lord Chancellor earlier, said was not an accurate statement of the position?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

I have given the Leader of the Opposition some latitude to put that on the record. However, I must say to the right hon. and learned Gentleman that the Chair has no power to command a Minister to attend the House—[Interruption.] Order. I do not need the advice of hon. Gentlemen. The Chair cannot intervene to cause a Minister to appear. The right hon. and learned Gentleman has made his point, but there is nothing that the Chair can do to advance it.

Photo of Charles Clarke Charles Clarke Home Secretary

Further to that point of order, Mr. Speaker. Is it in order to ask Mr. Howard to read out verbatim the statement to which he referred, in every respect, and in particular to ask him to read out the Prime Minister's observation that the suggestion of a change to the burden of proof was not recommended by the security services in such a way? Let the right hon. and learned Gentleman read out the whole Hansard quotation.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

We are now clearly moving from a point of order on to a point of debate, but I am mindful that we are still attempting to listen to the contribution of Mr. Gummer. I think that we would do better to return to the mainstream of the debate.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal 2:15 am, 10th March 2005

In column 1510, the word "either" refers to both those issues—that cannot be gainsaid. However, even if there were a slip of the tongue and that was not quite what the Prime Minister meant, if he respected the seriousness of the issue he would be here to listen to our debate and defend the way in which he had expressed himself. The problem is that on previous occasions the Prime Minister has appeared not to tell exactly the truth in certain circumstances.

Hon. Members:

Withdraw!

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I think that there is a more felicitous way in which the right hon. Gentleman could try to make his point.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I regret my infelicity and I withdraw any indication that the Prime Minister meant to say something that was untrue. I shall use more felicitous phrasing: there are many people both outside and inside the House who have misunderstood what the Prime Minister said, including the Home Secretary.

Photo of Charles Clarke Charles Clarke Home Secretary

On a point of order, Mr. Deputy Speaker. I am grateful to you both for clarification and for seeking a withdrawal of the comment by Mr. Gummer. I hope you agree that it is important to the House that he withdraw unequivocally the suggestion that the Prime Minister made that interpretation.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

No one should accuse any right hon. or hon. Member of untruthfulness or deceit. Mr. Gummer has withdrawn any suggestion that he was making such an allegation. What is at issue is a matter of judgment—there is no question but that it is a matter of contention, and is not something on which the Chair can rule.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

When a misunderstanding of such importance has occurred—indeed, it has clearly arisen on both sides of the House—it must be put right. That becomes more necessary the graver the issue. That is why I want to answer a comment made by Mr. Foulkes. Everybody in the House is trying to do a very difficult thing and protect the nation against terrorism while at the same time upholding human rights so that terrorism does not grow among individuals who have legitimate grounds for believing that their human rights may have been invaded.

It is legitimate for us to disagree about how to deal with these things, and it is therefore proper for the Government to make sure that if their judgments turn out to be wrong, we have a ready opportunity to put that right. That is why the sunset clause is so important. It gives the House an honourable opportunity: if what is done for all sorts of reasons in haste and with many misunderstandings—I am not making any allegations—turns out to be less than the best, we will assuredly and without peradventure have a chance to get it right. People who accuse Conservative Members of being anything other than staunchly opposed to terrorism are wrong. We are so strongly opposed to terrorism that we want the best legislation that we can get, we want to make it work and we want a Prime Minister who can be trusted not to be misunderstood by his own Home Secretary.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

This debate would have been better informed if we had had longer to debate the serious issues before us—

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I can only say to the hon. and learned Gentleman that I am sorry that the debate had to end on a climactic note.

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

The House divided: Ayes 298, Noes 216.

Division number 135

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

On a point of order, Mr. Deputy Speaker. The Home Secretary invited us to read the passage from Hansard that led to the previous exchanges. This is what the Prime Minister said—[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. [Interruption.] Order. I will hear this point of order.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

The Prime Minister said:

"I am afraid that we are not prepared to accept either the amendment on the sunset clause or the other amendment voted for by the House of Lords, and which the Conservatives in the House of Lords backed, to change the burden of proof."

He said "either" and "or". He continued:

"That would not be wise; it would be contrary to the strong advice given to us by our security services and our police, and I am simply not prepared to do it."

That was clearly referring to both the amendments.

There is another quotation—[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The right hon. and learned Gentleman must be very clear—[Interruption.] Order. This is a very serious matter. The right hon. and learned Gentleman must be very clear about making a point of order that the Chair can deal with.

Photo of Michael Howard Michael Howard Leader of the Opposition, Leader of Her Majesty's Official Opposition, Leader of the Conservative Party

I have to lay the foundations for it. There is another quotation from Hansard. At column 1511, the Prime Minister said:

"We have made concessions that we think are reasonable; we will not make those that are against the direct advice that we are receiving."—[Hansard, 9 March 2005; Vol. 431, c. 1510-11.]

The Prime Minister is in the precincts—he voted in the previous Division. Is there any precedent for a Prime Minister who is present in the precincts of this Palace, and against whom such accusations have been made, to fail to have the courage to come to the Dispatch Box[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I understand the right hon. and learned Gentleman's point of order but it only adds to a point of order that has already been made this evening. Everybody in the Chamber, and those outside, will have heard the point of order. The Chair has no responsibility for bringing Ministers or Prime Ministers[Interruption.] Order. I repeat that the Chair has no responsibility for bringing Ministers or Prime Ministers to the House. The right hon. and learned Gentleman's point is on the record and the House must make its own judgment about it.

Photo of Charles Kennedy Charles Kennedy Leader of the Liberal Democrats

On a point of order, Mr. Deputy Speaker. Given your ruling of a moment ago and the definite ambiguity, to say the least, that exists, would it be in order for you to request that the Prime Minister or the Government place the available evidence in the Library, so that an objective judgment can be formed since, clearly, the Prime Minister is not coming to the House to explain?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

I can only repeat what I have already said. The Chair does not have responsibility for those matters and cannot insist on them. The Chamber will have heard the right hon. Gentleman's points, and those inside and outside it will have to make their judgment about what has happened this evening.

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

On a point of order, Mr. Deputy Speaker. I want to make it clear to the House—[Interruption.] It is an important matter for the record of the House. The words that the Leader of the Opposition read out are followed by several statements by the Prime Minister. He said:

"The point of principle is on the control orders and the burden of proof."—[Hansard, 9 March 2005; Vol. 431, c. 1511.]

He goes on to say—[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. [Hon. Members: "Where is he?"] Order. I am reluctant to stop the Minister in mid-flow but all those matters—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. All those matters are becoming a continuation—[Interruption.] Order. There are serious matters before the House and it behoves us to behave properly when we discuss issues of such gravity. All that is happening now is an extension of the previous debate. [Interruption.] Order. I do not intend to take any more points of order from either side of the House. I shall move to the next Division.

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour, pursuant to Order [9 March].

Lords amendments: 27, 31 and 32.

Motion made, and Question put,

That this House insists on its disagreement with the Lords in their amendments Nos. 27, 31 and 32 and on its amendments Nos. 27C and 27D in lieu and proposes amendment (a) in lieu.—[Ms Blears.]

The House divided: Ayes 310, Noes 207.

Division number 136

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I said earlier that we are debating a very serious matter. I have already heard two points of order from the Opposition side of the House—[Interruption.] Order. The Minister wishes to make a point of order and must be heard.

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

Thank you, Mr. Deputy Speaker.

I simply want to make it clear that when the Prime Minister was responding to the issue about the sunset clause, he said:

"I do not agree with the sunset clause, for this simple"—

[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I do not want to repeat myself—[Interruption.] Order. The House must listen to the Minister.

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

The Prime Minister said:

"I do not agree with the sunset clause, for this simple reason: it is important that we send a clear signal now that this legislation is on the statute book and will remain on the statute book."—[Hansard, 9 March 2005; Vol. 431, c. 1511.]

He made no reference to the advice of the Security Service. [Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I think that the House—[Interruption.] No, I am not taking any more points of order. It would be a good idea if we moved on to the next Division.

Lords amendment: 33D

Motion made, and Question put,

That this House disagrees with Lords amendment No. 33D and insists on its amendment No. 33C in lieu, does not insist on its amendments Nos. 33A and 33B and proposes amendments (a) and (b) in lieu.—[Ms Blears.]

The House divided: Ayes 307, Noes 212.

Division number 137

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Sitting suspended.

On resuming—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means) 8:00 am, 10th March 2005

I must inform the House that a message has been brought from the Lords as follows. The Lords insist on their amendments to the Prevention of Terrorism Bill to which the Commons have insisted on their disagreement. They insist on their disagreement to the amendments proposed by the Commons on which the Commons had insisted, and they disagree to the amendments proposed by the Commons in lieu for which insistences and disagreements they assign their reasons. Copies of the Lords reasons are available in the Vote Office, as are the Government's propositions relating to the message. All Government proposals are being debated together.

Lords reasons: 1F and 37W.

Photo of Charles Clarke Charles Clarke Home Secretary

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 Nos. 37A to 37C and 37E to 37O, does not insist on its amendment No. 37V, insists on its disagreement to Lords amendments Nos. 37Q to 37T proposed in lieu of Lords amendment No. 8 and insists on its amendments Nos. 17H to 17M to the words restored to the Bill by its insistence on its disagreement to Lords amendment No. 17 and proposes amendment (a) in lieu.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this we will discuss Lords reasons 8B, 12C, 13C, 15C, 17P, 22C, 27F, 28C, 31D, 32D and Government motion to insist &c. and Government amendment (a), and Lords reason 33H and Government motion to insist &c. and Government amendments (a) and (b) and Lords reason 37W.

Photo of Charles Clarke Charles Clarke Home Secretary

It is perhaps appropriate that we hope to complete the passage of the Bill today, on the first anniversary of the tragic Madrid bombing. That is a sad reminder of the reality with which all Members of this House and the other place must deal when considering these matters.

I am proposing three amendments to the Bill. The question of the making of non-derogating control orders, the burden of proof and the judicial supervision of non-derogating control orders relates to Lords reason 1F. My amendment provides that when the Secretary of State applies to the court for permission to make a non-derogating control order, he or she must supply the court with a copy of the order that he or she proposes to make.

We have been having a debate on the question of the Privy Council review versus an independent reviewer, which relates to Lords reasons 27F, 31D and 32D. My amendment provides that the independent annual reviewer must comment on the extent of the Secretary of State's use of the urgency procedure in relation to the making of non-derogating control orders in his report. That is an effort to meet the concerns expressed on my side of the House about the use of the urgency procedure and to ensure that that matter is properly in the public domain.

The third amendment that I propose deals with the question of annual renewal versus a sunset clause, which is covered by Lords reason 33H. My amendment would require the Secretary of State to consult the director general of the Security Service before making the annual renewal order.

Hon. Members:

Give way.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The Home Secretary has indicated that he is not going to give way at the moment.

Photo of Charles Clarke Charles Clarke Home Secretary

I am afraid that I am eerily familiar with the point that the hon. Gentleman wishes to make. Indeed, he made it to me in the Lobby only a few minutes ago. I think that I would like the debate to proceed on the issues before the House rather than his specific questions.

The story of the night both here and in the other House is that of a series of constructive moves made by this House. I shall list only the issues raised overnight—not the ones raised previously. We have proposed using the affirmative procedure in respect of the rules of court. We have proposed providing a wider role for the independent reviewer so that he or she can look at the whole Act. We have taken steps to ensure that the independent reviewer's report will be available so that the annual renewal debate on the Act can be proper and informed. We wish to include in the Bill the requirement for the Secretary of State to ask the independent reviewer to comment specifically on the implications for the Act of any future legislation on terrorism.

We have proposed putting a specific requirement on the Secretary of State to consult the independent reviewer before laying an order to renew the control order powers each year. We have proposed measures to include additional protection for the subjects of non-derogating control orders in the Bill and specifically to enshrine existing procedures to ensure that exculpatory material will be disclosed to the court and the special advocate in all cases, and also to the subject of the order, unless that is contrary to the public interest. We have moved amendments to allow the disclosure of unused material unless that is contrary to the public interest.

I have read that long list of the constructive moves made by the Government and the House to try to meet concerns expressed throughout the whole House and in the other place because it shows that we want to find constructive solutions. I contrast the approach of the Government and the Commons to the zero movement—that is literally the case—of the Conservatives and the Liberal Democrats who control the other place. In 12 hours, there have been two rounds of consideration, but there has not been any movement at all. There have been two separate sessions in the Lords with zero response. Theirs is a stick-in-the mud response in which they have dug their heels into the sand and prevented the elected House from carrying out its proposals.

The country needs a Bill that prevents terrorism and protects our people. Our constituents, who elect us to the House, need that protection, and that is why we are addressing the issue in this way. I believe that it is time for the Conservatives and the Liberal Democrats in the other place to respect the considered views of the elected Chamber. I urge the House to support the amendments and I urge Conservative and Liberal Democrat Members in the other place to give us their support.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry that the night has not brought the Home Secretary good counsel. I rather hoped that when we reassembled this morning a greater degree of clarity and common sense would prevail. Instead, we have had a repetition of the same old mantras. The Home Secretary said that he is making a major concession, but it appears that that means giving a copy of the order to the person concerned. He knows that the distinction that he continues to try to make between derogating and non-derogating orders is wrong and absurd. The logical conclusion of his argument is that derogating orders are valueless, as was explained by the Minister for Crime Reduction, Policing and Community Safety last night. There is no reason why non-derogating orders should not be subject to the same protection as derogating orders. Having had his moment of clarity, it is extraordinary that the Home Secretary is still unable and unwilling to give a logical explanation of why he will not concede that point, which we believe is of great importance.

The liberty of the individual must be protected, miscarriages of justice must be prevented, and if this anti-terrorism legislation is to work and command public approval in all communities in this country it must be seen to be transparently fair. It is extraordinary that the Home Secretary is prepared to tolerate a system in which there is inherent and manifest unfairness. The explanations that he has offered to justify it are frankly gobbledygook. We are told that there is a major concession on Privy Council review—there is not. The extent of the urgent procedure may be looked at by the independent reviewer, but there has been no attempt by the Home Secretary to engage with the value and merits of a full Privy Council review.

Finally, there is the issue of the sunset clause. The Home Secretary does not seem to have grasped the significance of the sunset clause to Parliament as a whole. This legislation is unusual and draconian, and it would be wrong to put something on the statute book that has the capacity to become permanent. There is no reason why the sunset clause should not be included in the Bill, and the mechanisms that the Home Secretary is giving himself to renew the legislation by order are fundamentally flawed and wrong. If the Home Secretary thinks that there will be movement in the other place on that point, he is profoundly mistaken, because it is of such importance.

Photo of Simon Hughes Simon Hughes Party Chair, Liberal Democrats

Does the hon. Gentleman remember that when the Government last came to us, in 2001, with emergency powers to deal with terrorism, there was tension between the two Houses and a deadline to meet? However, a resolution was achieved because two principles were accepted by the Government—first, that there should be due process throughout, and secondly, that there should be a sunset clause. When the Government accepted those proposals, there was movement and both Houses came to an agreement.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I could not agree more. I am a great believer in sunset clauses generally, because there is much stale legislation on the statute book. This legislation requires a sunset clause. It is ridiculous that we should consider allowing legislation passed in such haste to remain on the statute book for an indeterminate period.

Photo of Charles Clarke Charles Clarke Home Secretary

If the hon. Gentleman likes sunset clauses so much, will he propose his own personal sunset clause by answering the question I asked him last night? Will he put in his manifesto his intention to repeal the legislation before us?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Home Secretary is suffering from severe cognitive dysfunction. I explained our position to him last night, and I am sorry if he cannot now remember it. I can only assume that his general anger and frustration got the better of him and he was not listening to a word I said. That is why I appear to be repeating myself, and I shall try to avoid doing that.

The Home Secretary said that no concessions had been made in the other place. That was not my impression. When the debate started, we wanted a sunset clause of eight months—and there were strong reasons for that. A concession was made and on a very sensible Labour amendment, we accepted a sunset clause of 12 months. So it is wrong for the Home Secretary to say that no attempt has been made to reach agreement. I am here, if the Home Secretary wants to talk to me—any time he likes—as are all my hon. Friends.

Fundamental issues remain to be addressed, but the Home Secretary has not even attempted to do so.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will my hon. Friend explain to the Home Secretary that the sunset clause gives the House of Commons the power to control the legislation? The House of Lords is in fact enabling this House to protect its own future in controlling this legislation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, indeed. Much was said yesterday about the primacy of this Chamber, but this is a parliamentary matter, for the whole of Parliament. If we do not allow the other place to carry out its functions, and ignore what it says, we end up with bad legislation.

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

Does my hon. Friend also agree that a sunset clause would enable the House of Commons, for the first time in this debate, to add in a Committee stage to examine the detail of each and every clause, which hitherto we have not been able to do?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Of course it would, and it is a scandal that we were prevented from doing so. There was no reason why we could not have done so. We have sat through the night now and we could have sat through the night last week, but the Government would not allow us to do so. We might then have had a better chance of achieving consensus.

The Government have consistently denied this House any opportunity to reach consensus, which makes a complete mockery of our procedures.

Photo of Dennis Skinner Dennis Skinner Member, Labour Party National Executive Committee

If the Tories are so keen on sunset clauses, and in view of the fact that I was here during the 18 years when they were in power, can the hon. Gentleman tell me why no sunset clauses were included in the rail and coal privatisations? Why did the Single European Act and the Maastricht treaty not include sunset clauses? I could go on for another 20 minutes. The truth is that the Tory Opposition are using unelected Members in the other place to overturn the will of hon. Members in this House, who are directly elected by our constituents.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 8:15 am, 10th March 2005

The hon. Gentleman's latter comments were on message, but I suspect that his initial remarks were off message, as far as Labour Members are concerned. First, those laws are good laws. [Interruption.] The Labour Government adopted them and did not reverse them. If those laws are so bad, why have the Government not taken the opportunity to deal with them? Secondly, those laws do not touch on the liberty of the subject, which this Bill does, and they were not timetabled with knives, which this Government have used ruthlessly.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

I am grateful to the hon. Gentleman for giving way, because of what he has said about the liberty of the subject. Some of us divided this House in 1971 on internment without trial, because we felt that incarceration without trial was wrong. The Tory party pushed the measure through and maintained it throughout its time in government. Why should we not be suspicious about this apparent Damascene conversion?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

First, Mr. Skinner did not mention that legislation. Secondly, Mr. McNamara took a principled stand on that matter, which the passage of time has probably proved to have been entirely correct. The House would do well to reflect on his example.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

This view may not be fashionable on these Benches, but these proceedings are bringing this House into disrepute. In the other place, the party majorities reflect voting across the country, and the exaggerated majority in this House undermines the House's democratic authority.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Lady is right, which is why it is so foolish for hon. Members to recite mantras about the primacy of this House. Parliament is supposed to operate with the participation of both Chambers. The upper House reflects the fact that some aspects of this Chamber are not purely democratic. The system can work and should work, if only the Home Secretary and the Government would listen.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

On many occasions during the past eight years, the Government have reasonably introduced legislation relating to terrorism in Northern Ireland that explicitly includes sunset clauses, and we renew such legislation every year on the basis of a debate. Does he agree that there is no principle preventing the Government from introducing a sunset clause on this occasion? Out of bloody mindedness, they refuse to apply a consistent policy, as they have done on Northern Ireland matters.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is right. One of the oddest features of the process has been the Government's complete unwillingness to engage in real dialogue with the Opposition parties.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is the truth. The Government came up with an idea and presented the Opposition parties with a fait accompli. They then said, "Take it or leave it." There was no discussion in January, when the Government could have held a creative conversation to try to achieve common ground. They did not do so, which is regrettable, because I do not think that we would be here today if that had happened.

Photo of Tom Harris Tom Harris PPS (Rt Hon John Spellar, Minister of State), Northern Ireland Office

There is an important point of principle here, as the hon. Gentleman rightly says. This elected House of Commons has repeatedly, over the past day and the past week, made its position clear on some fundamental points, and the unelected Chamber has, on similar terms, made its point of view very clear. Can the hon. Gentleman confirm that it is his position and that of the Conservative party that where the elected House of Commons and the unelected House of Lords disagree, the view of the Commons should prevail?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The upper House has engaged itself as a revising Chamber, and it has put forward suggestions for improving the legislation—that is exactly what it should be doing. It is now being subjected to a battle of attrition by the Government to try to whittle down the overwhelming view expressed there, not only by Conservative and Liberal Democrat peers but by Cross Benchers and even some of the Government's own peers. That is the extent of the problem that the Government face, and until they start to listen, they will continue to have a problem. All that I can say to the Home Secretary is that I hope that during the passage of the morning he may come to have a little more sense, because he can have this Bill and the protections that it offers, and at the same time, civil liberties can be protected; at the moment, they are not. The House should support the Lords amendments.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

At first, one could characterise this Bill as a nasty little Bill because we live in a nasty little world. I abstained on Second and Third Reading because I wanted the Home Secretary to make concessions. To my mind, he has done so, and I have been happy to vote with the Government when the Bill has recently been before the House.

There are currently three sticking points. The first sticking point is the sunset clause. Mr. Grieve tells us that a sunset clause is necessary because otherwise the Bill, when enacted, could go on and on. He seems to forget the fundamental constitutional principle that one Parliament cannot bind another, that we will have a general election within the next 18 months, because constitutionally we must, and that any subsequent Parliament can look at this legislation again.

The second sticking point is the question of Privy Councillors conducting the review. I remind hon. Members that myriad independent reviews in the past were not carried out by Privy Councillors, and they were in no way the lapdogs of Government. If we think back to the previous Government, we had the Scarman inquiry, and the Scott inquiry into Matrix Churchill. Just because a review is carried out by an independent person does not mean that the inquiry is a stitch-up from the beginning.

The third sticking point involves non-derogating control orders and the burden of proof. I can see why the Conservatives argue for that principle, but it has not been a principle in the past and is not a principle in many parts of our criminal law. If someone is remanded in custody, that is because there is a reasonable suspicion that they have committed an offence. They can be remanded in custody for weeks. Under the previous Government, as some Members may recall, there was the case of Mr. Osman, who fought extradition from this country because there was a reasonable suspicion that he had carried out criminal activities abroad. He was incarcerated in this country for years under the previous Government—it did not seem to be a principle to the Conservatives then.

Most hon. Members have been with a constituent, as I have, and discussed an issue that appears to be have been resolved in the conversation, when the constituent says, "And another thing," so one has a discussion about that—but then the constituent says, "And another thing." That characterises the Opposition's position. The Liberal Democrats and the Conservatives have made no concessions, yet the Government have made them as part of the debate in the Chamber and in the other place, and I respect my Government for that. I shall continue voting with them because I do not wish to be in a position whereby the House of Lords dictates to us and does not engage in proper concessions. Such engagement is the way in which a mature society should resolve those issues.

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

I welcome the tone, if not all the content, of the hon. Gentleman's speech. It is time we regained that sense of seriousness which, I am afraid, has not characterised some of our debates in the past few hours.

We must remember the context of the debate. The Home Secretary was right to remind us at the beginning of his remarks that today is the anniversary of an appalling terrorist atrocity in Madrid. We are all trying to ensure that such an atrocity cannot happen in the United Kingdom.

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

I find that remark deeply offensive. We are trying to find the best way of stopping terrorists and dealing with them effectively.

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

No. [Interruption.] I will not take an intervention. [Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The hon. Gentleman has indicated that he is not giving way at the moment. The House should come to order, remember that we are discussing serious matters and listen to the hon. Gentleman who has the Floor.

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

I am most grateful, Mr. Deputy Speaker, because, as I said at the outset, it is important that we remember exactly what we are about. We are trying to find—I hope through consensus—the best way of protecting the citizens of this country and ensuring that they are subject to fair laws. I respect many of the comments that Rob Marris made, but it is wrong to say that no attempt has been made to find that consensus.

We have understood the Home Secretary's arguments and accepted that, although control orders are deeply unpleasant, they will be part of the architecture of fighting terrorism in this country. We have accepted, because it was appropriate, that the emergency arrangements were a necessary part of the construction of those control orders. We have sought to find any number of ways of constructing an appropriate legal framework in which those control orders could be made. The other place has played a significant part in that dialogue and we have made progress. The House should accept that.

Volume is no substitute for content, and we should examine what the House of Lords says. It does not state that it wishes to oppose the Government's proposals. Far from it—it wants to work with the Government. It insists on its amendment, which we propose to delete today, on a matter that is deeply significant not only to people from abroad whom we might not like the look of, but to British citizens and the way in which they will be treated in our courts. It is important to read the Lords reasons. Reason 1F states:

"Because the Lords remain of the view that reasonable suspicion is too low a test; that the authority to conduct a prosecution should be the Director of Public Prosecutions and not the chief of the relevant police force; and that all control orders should be subject to the same procedure before the courts."

There are many right hon. and hon. Members on the Labour Benches who agree with all those propositions. I see some of them nodding now.

Photo of Kevin Brennan Kevin Brennan PPS (Rt Hon Alan Milburn, Chancellor of the Duchy of Lancaster), Cabinet Office

What is the opinion of the hon. Gentleman, as a Liberal Democrat—I emphasise the word "democrat"—as to whose view should prevail if there is ultimately an honest disagreement between this House and the unelected House?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 8:30 am, 10th March 2005

We are engaging—[Hon. Members: "Answer."] I am answering the question. We are engaged in a process of dialogue that I hope will result in justice for the people of this country. The honest answer is that, ultimately, the House of Commons must of course be the prime House. I have no quarrel about that, and nor would any of my noble Friends at the other end of the Corridor. I return to what they are saying: it is not that the House must not have the anti-terrorism proposals that the Home Secretary has put forward—but there is a perfectly proper argument that reasonable suspicion is too low a test. We heard Mr. Clarke, in an earlier speech, saying that we do not even accept that for a parking ticket for British citizens, yet we are prepared to accept it for deprivation of liberty. I take that seriously, and I hope that Members on the other side of the Chamber take it seriously. They would have done so in previous years and previous debates, so I hope that they still do.

The second component is that the prosecution should be conducted by the Director of Public Prosecutions. The Home Secretary has acknowledged that principle. He has chosen, for reasons that are not entirely clear, to say that he wishes to consult the chief of police rather than the person who is charged with making a prosecution—the Director of Public Prosecutions. I do not understand that. I do not understand the matter of principle involved in that. I would have thought that it is all a matter of proper dialogue and negotiation.

The third point relates to the common procedure for these orders. Again, we have heard cogent speeches from well-respected Government Members saying that there should be exactly that, so let us not pretend that there is a matter of principle between the two sides of the House on that point.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

The hon. Gentleman, in his usual way, is putting cogent arguments to the House. He is setting out concessions, to which I have adverted, made by the Government and the Home Secretary. I may have misunderstood him, but I have not understood him to be putting forward any concessions made by his party during the debating process of the last two weeks. He is setting out principles of his party, and I respect that. What concessions has his party made during this debating process?

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

Because the hon. Gentleman asks the question in a sensible way, I will do my best to answer. A whole series of amendments have come forward from the Home Secretary that have not returned to this House. He may have noticed that we are now down to three propositions as the areas of differentiation. Initially, we were very concerned, as I said, about the whole concept of control orders. We have accepted that. We were concerned about reasonable suspicion for an emergency control, as a matter of principle. We have accepted that there are conditions in which that will be the appropriate test. Clearly, therefore, we are making progress in those areas.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

Will the hon. Gentleman give way?

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

The hon. Gentleman has been pestering me for two days, so yes.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am very grateful to the hon. Gentleman. He has been making the point that all control orders should be treated precisely the same, which is a principle to which their lordships are still holding. Does not he accept that many in the House believe that it is wholly different to impose a control order that deprives someone of their liberty by putting them under house arrest and to impose one that merely says that somebody is not allowed to work in a nuclear establishment or that they will have their passport removed?

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

Let me take the hon. Gentleman's point at face value. What is proposed in these control orders is a whole spectrum of controls, ranging from minimal matters to serious restrictions on the liberties of the individual. There is no sharp dividing line. At one end there is what has been described as home arrest; at the other there is merely reporting to a police station, or something of that sort. Between the two, there are what can only be construed as serious deprivations of liberty, which could fall short of a derogation. I think it entirely reasonable to have a common judicial process.

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

Would the hon. Gentleman care to remind Chris Bryant that non-derogating orders are capable of wholly destroying the lives and livelihoods of the people with whom they interfere—and, moreover, the lives and livelihoods of their friends and families? They are extremely draconian measures.

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

The right hon. and learned Gentleman is right. They can be. The problem is that there is such a range of potential—I was going to say penalties, but we cannot really call them penalties, because they are not penalties for a crime committed; they are penalties imposed in the anticipation of a crime.

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

No. I think I have given way enough.

I must tell the hon. Member for Rhondda this: it cannot be described as a minor deprivation when someone cannot work, cannot leave a particular area, cannot consort with friends, cannot telephone anyone and cannot use the internet. All those orders are on the palette available to the Home Secretary. It cannot be said that all of them are inconsequential matters for the individual, and that the orders should continue for as long as the Home Secretary may determine. I am sorry, but I do not believe that those are inconsequential matters.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

Will the hon. Gentleman give way?

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

I will, for the very last time, let the hon. Gentleman explore his point.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am grateful, because this is one of the first times that we have explored the issue since yesterday. Surely the point is that any control order that contravened article 5 would automatically be a derogating power, and consequently would be struck down by the judges.

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

I understand that point, but the fact that we have a spectrum enabling a series of non-derogating controls to become derogating controls, and therefore be subject to annulment, emphasises my argument for a common judicial process. There is a perfectly sensible debate that we could have. We should not be characterised as obstructive Members of another House trying to deprive the Government of their Bill.

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

Not now. Others want to speak.

Two matters of process are before the House, and one matter of principle. The matter of principle is what I have just been talking about, and on that I still believe that we can reach an accommodation. The two matters of process are the Privy Council review of the legislation—which I think is a sensible outcome and one to be desired, particularly given the Government's new amendment to provide an independent reviewer—and the sunset clause.

The sunset clause is a matter of practicality: it is a protection against the continuation of what is, in anyone's book, a hastily constructed and dangerously draconian measure. It is an emergency measure, which has not been properly considered by the House of Commons or anyone outside it. I believe that it is sensible to provide a sunset clause enabling the new Parliament, however it may be formed, to discuss the legislation, with an appropriate amount of time.

If the Secretary of State wants to return to us with a different date for the sunset clause, we shall listen to what he has to say. As I pointed out yesterday, he has already provided for a proto-sunset clause in his amendments. There is a pretence that there is a huge difference between the two Houses—an impasse—but it is an impasse in the mind of the Prime Minister. It is the Prime Minister who cannot countenance the fact that we could reach an accommodation.

I return to the point with which I started. These matters are too serious for us to engage in knockabout across the Chamber, which I think does nothing for the reputation of the House. It is time we sat round the table and arrived at a consensus so that we can get these measures on the statute book. Why? Because it is the anniversary of a major atrocity in a European city and because we have been told that there are dangerous terrorists who need to be locked up for the protection of our citizens, but are now walking freely the streets of Britain. Those are the reasons why we need the legislation to go through in a form acceptable to this and the other House. It is time we sat down and ensured that that happens.

Photo of John Denham John Denham Chair, Home Affairs Committee

When I became a Minister in 1997, a wise older politician said to me, "John, before you take a major decision, just remember how it will look at the public inquiry into the subsequent disaster." Some of us fear that, in the years to come, there may be a public inquiry into how al-Qaeda were able to mount the attack that they succeeded in getting away with, despite the best efforts of our security services. I have to say that if a video were shown of the proceedings of this and the other House, it would not reflect well on the efforts being made to protect this country from terrorism.

I say that because a Bill about terrorism has now been elevated into what has the signs of being a serious constitutional crisis, which should not have been allowed to happen. Mistakes have been made on all sides and people have become very heated, but we now need to take stock of where we are today.

During my time in Parliament, disagreements between this House and the other place have occurred over many pieces of legislation. It has often taken place against the pressure of time at the end of a Session. I have never known a situation, however, in which a way through could not be found. In each of those cases, there were real differences—differences in the sense that two reasonable people could hold a different point of view—but a way through was found. In every single case, the way through was found in support of the position of the democratically elected Chamber of Parliament.

If we reflect on where we are with the Bill, it is clear that there are real differences in the sense that two reasonable people could take a different point of view, but those real differences are not sufficient to justify the constitutional crisis into which we are now falling.

There are two major points. The first is the argument about the level of proof. It is a simple fact that Opposition Members who were in their places to do so, voted regularly for the prevention of terrorism Acts, which gave the Secretary of State the power to determine where British citizens should live. He had that power not after going to a judge, not on reasonable suspicion, not on any legal test or procedure, but simply because the man who is now the Leader of the Opposition said, "You are not living there, sunshine, and that is an end to it—no argument." The party that voted for that cannot sensibly now say that the argument about the level of proof is sufficient to provoke a constitutional crisis. It makes no sense.

Photo of Clare Short Clare Short Labour, Birmingham, Ladywood

Earlier, my hon. Friend Mr. McNamara reminded the House about internment. This Bill proposes a form of internment, albeit with different gradations. People will be detained not for what they do but for what they might do. That, fundamentally, is what internment is, and everyone agrees that it led to massive recruitment to the IRA. Given that the definition of terrorism has such a low threshold, it is my serious view that by proceeding in this way we will incite more people to anger and make it more likely that they will support terrorist organisations. Therefore, I think that the revising House needs to restrain this House from making such a major error, especially as our procedures have been found so wanting.

Photo of John Denham John Denham Chair, Home Affairs Committee 8:45 am, 10th March 2005

I resigned from my ministerial position before the war because I thought that that was the right thing to do. I shall take no lessons from my right hon. Friend about terrorism.

It is of course possible for two people to have a reasonable difference of opinion as to whether the Bill is right, but I repeat that the Opposition never thought it necessary to have any judicial process or legal constraint before restricting the rights of British citizens. The House has considered the Bill and has reached the view—it is the same as mine—that the current legal test is satisfactory and adequate, as it must be scrutinised by a judge, who must agree that the evidence justifies the nature of the restriction order.

Photo of John Denham John Denham Chair, Home Affairs Committee

No. This House has resolved its opinion; the question is whether it will be overturned in another place by those who have not been elected.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Gentleman must agree that there is a great difference, in nature and quality, between saying to someone, "You shall stay in Northern Ireland and not enter mainland Great Britain," and, "You shall stay in a particular location and not communicate with members of your family or use the internet or a telephone." The orders proposed in the Bill have a great deal more in the way of paraphernalia but, leaving that to one side, does he agree that the difference that I have set out means that, when it comes to those orders, there is a strong argument that the test of reasonable suspicion is inadequate? He presents himself as a voice of reason; I hope that he accepts that there is, at least, a difference.

Photo of John Denham John Denham Chair, Home Affairs Committee

Interventions sometimes read well in Hansard, and sometimes they do not. I think that the hon. Gentleman will find that that one does not. However, I am glad that he got to his feet, as he has just justified the fact that the previous Conservative Government introduced an order that restricted the freedom of British citizens but which had no legal process or test, and no examination of evidence.

I quite accept that some control orders would be less intrusive than the exclusion orders. Some would be more intrusive, but this Bill contains a test. It provides for judicial process and a test of evidence. The Opposition never wanted that.

We have established that the principle in respect of evidence has never concerned the Opposition. Reasonable people can take different views, and that is fair enough, but this House has considered the evidence question and come to a view.

The second substantial issue that I want to raise is that of the sunset clause.

Photo of John Denham John Denham Chair, Home Affairs Committee

No. Two reasonable people can disagree about introducing a sunset clause into the Bill or providing for annual renewal, but the fundamental issue is whether we in this House, and the other place, should have the democratic ability, every year, to get rid of this legislation if we do not like it. That has been established as a result of the changes made to the Bill, and it is not the basis for a constitutional crisis between this House and the other place.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

I would like to take the right hon. Gentleman's mind back to the debates on the annual renewal of the prevention of terrorism Act, which are essentially the mechanism that the Government have so far agreed for a reconsideration of that Act year by year. The dilemma that faced the Labour party year after year was whether to oppose the renewal, in the face of the argument that Labour would prove soft on terrorism if it did, because it was a take-it-or-leave it situation. Does he realise that that will be the situation under this Bill unless we have a mechanism whereby the Bill lapses and must be replaced by new and better legislation?

Photo of John Denham John Denham Chair, Home Affairs Committee

Of course the process of annual renewal can be limited; it was under the prevention of terrorism Act. It is a genuine and reasonable difference of opinion that one can have about a sunset clause as opposed to annual renewal. Is that a basis, however, for saying that the differences are so great that this House and its democratic majority should be overruled by an unelected Chamber? I do not think that it is.

My point is this: this Chamber has improved this legislation considerably since its introduction by my right hon. Friend the Home Secretary. As very often in the House, decisions in another place have had an impact and have been taken into account. Equally, the legislation has been changed by the actions of Members here—let us be honest, partly by those Members who did not vote for it on this side who might have been expected to, and partly by a number of Members who did vote for the Government but perhaps have made it clear that we wanted to see changes made. This Chamber has improved the Bill. We have now reached a situation where there are differences of opinion between the House and another place, but none that justify the House now conceding to the other place.

We may well be fighting an election in a few weeks' time. [Hon. Members: "Really?"] So I am given to understand from the newspapers. The truth is that if the House is forced to give in by the other place, the election of every single Member of the House will be diminished as a result. The process will be diminished. Those on the other side who are organising in the House of Lords to achieve that should be mindful of the consequences.

Photo of Bill Cash Bill Cash Conservative, Stone

The Bill achieves neither objective: neither the security of the nation nor the liberty of the subject. The first duty of all judges is to maintain habeas corpus. In the preceding question that I put to the Home Secretary and to his Minister, I referred to something that I put to the Home Secretary with regard to habeas corpus:

"Will he state unequivocally now that there will be no interference with the right of habeas corpus"?

He answered:

"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.]

It does—that in itself is a reason why the Bill should not proceed.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Has my hon. Friend analysed the Home Secretary's amendment (a), which is supposed to give us comfort because it provides judicial oversight? Has he noticed that the Home Secretary gives himself permission to make control orders, which can be overseen by the court only in very limited circumstances? It has to be demonstrated that the Minister's decision was obviously flawed. What happens if the decision was flawed but not obviously so? The Home Secretary's powers are left unattacked.

Photo of Bill Cash Bill Cash Conservative, Stone

My hon. and learned Friend is completely right. He demonstrates the fact that the Bill itself is fundamentally flawed. That is why the Bill must be subjected to a sunset clause, but in subjecting it to a sunset clause we shall then have an opportunity, during the time that this is available, to consider the proper basis—[Interruption.]

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Conversations are breaking out in the House. I cannot hear the hon. Gentleman who is addressing the House. [Interruption.] Order.

Photo of Bill Cash Bill Cash Conservative, Stone

The plain fact is that the Bill is fundamentally flawed on all the principles on which it is being proposed. It does not secure the nation. It is liable to create further trouble and dissention among those whom we are seeking to control—the terrorists. It denies the liberty of the subject—habeas corpus—but the Home Secretary refuses to accept that, although he originally said that it would contain habeas corpus. He would not give way to me—as you noticed, Mr. Deputy Speaker—because he knew that I would raise that point. All that he could do was come up with a cheap jibe.

The plain fact is that the Home Secretary knows that the Bill must be subjected to a sunset clause, but I ask the House to consider the central problem with the Bill: it is dependent on the application of the European convention on human rights. [Hon. Members: "Hurray!"] Hon. Members opposite may have their moment, but the reason why the Bill cannot work is that there is an internal tension, which the Home Secretary knows, between complying with the European convention on human rights on the one hand and trying to ensure the security of the nation on the other.

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

Does my hon. Friend agree that another central flaw with the Bill is that, ultimately, it does not secure a fair hearing for the person who will be affected by the control order?

Photo of Bill Cash Bill Cash Conservative, Stone

I entirely agree with right hon. and learned Friend. He is absolutely right. Indeed, I introduced a Bill two days ago to provide precisely this: if it were enacted, we would provide that a writ of habeas corpus and a fair trial in accordance with due process and the rule of law should be available to every person. The Bill achieves neither the security of the nation nor the liberty of the subject. It should be subjected to a sunset clause. Furthermore, during that period, we should also make certain that the legislation makes sense and disapply the nonsense of the European convention on human rights in respect of this legislation.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

More than a week ago, I was able to move an amendment to the Bill that—if Opposition Members had been as zealous as they have been in the arguments that they have put forward in today's debates—might have given us a different outcome, but they did not appear to be serious about the issues at stake. Fortunately, my right hon. Friend the Home Secretary took on board the issue about which I asked for a vote in the House—that he should apply to court for an order to be implemented.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The hon. Gentleman may be well based in his point, but has he looked at amendment (a) to see what limited powers the court has to review the Home Secretary's orders? He should just read it, and find out for himself how limited are the powers of the court and how massive are the powers that the Home Secretary is giving to himself.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I have sat through all the debates on the Bill. We have discussed judicial review and there seem to be large differences as to how it would work. My view is that under the Human Rights Act, which many of the hon. and learned Gentleman's hon. Friends seem to despise—despite the fact that it protects the rights of individuals—there would be every opportunity for a defendant to have his case put fairly in the circumstances provided for by the Bill.

With the scope that the Bill gives for this place and the other House to vote down all the legislation on the orders, there is sufficient safeguard, with the other amendments tabled by my right hon. Friend the Home Secretary, for the Bill to be accepted. No one on the Opposition Benches has mentioned tonight—or rather this morning—that my right hon. Friend is already committed to bringing all parties around the table to try to develop new terrorism legislation that may enable much of the Bill to fall in future. Let us put that to the test. Let us vote the Bill through this evening. Let the other House listen to our view.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

If there were a free vote, who thinks that Members on the Labour Benches would vote for the sunset clause? Stand up. Come on, stand up. No one is standing up. Not a single one. If the Conservatives were putting that forward, who thinks—

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

The House divided: Ayes 301, Noes 211.

Division number 138

See full list of votes (From The Public Whip)

Question accordingly agreed to.

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

Lords reasons: 27F, 31D and 32E.

Motion made, and Question put, That this House insists on its disagreement with the Lords in their amendments Nos. 27, 31, and 32 and on its amendments Nos. 27C and 27D in lieu, does not insist on its amendment No. 32D and proposes amendment (a) in lieu.—[Ms Blears.]

The House divided: Ayes 307, Noes 203.

Division number 139

See full list of votes (From The Public Whip)

Question accordingly agreed to.

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

Amendment (a) agreed to.

Lords reason: No. 33H.

Motion made, and Question put, That this House disagrees with Lords Amendment 33D and insists on its Amendments 33C and 33G in lieu, does not insist on its Amendment 33F and proposes Amendments (a) and (b) in lieu.—[Ms Blears.]

The House divided: Ayes 307, Noes 216.

Division number 140

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Sitting suspended.

On resuming—

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons 3:30 pm, 10th March 2005

On a point of order, Mr. Speaker. As we meet here, I understand that it has been trailed on television that the Prime Minister is making a major statement about these proceedings outside Downing street—as we meet here. You are rightly jealous of the rights of this House. Last night, it emerged that the Prime Minister's statement that the security services had advised against a sunset clause was wrong, but he refused to come here to explain. Is it not time—

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. I am busy enough looking after the affairs of this Chamber. What goes on outside the Chamber is not a matter for me. [Interruption.] Order. This House has been called to look after a certain piece of legislation, and that is what we are going to do. I can deal with this matter simply and say that it is not a point of order, so I hope that the hon. Gentleman is not going to pursue it.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

Further to that point of order, Mr. Speaker.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. What I am going to do is this. In a moment, I shall read out the title of the Bill, so we will be given a time at which the clock will start ticking. I will then accept points of order.

Before I do that, please allow me to make a statement. I would like to express my gratitude—and I am sure that I speak for all hon. and right hon. Members—to the Officers and staff of the House for the hard work and dedication that they have shown and I am sure will continue to show during today's sitting.

Lords reasons further considered.

J

No kidding. I think they should have gone on strike and made the Honourable Members do their own damn paperwork. They might not be so keen on creating so much if this was the case.

Submitted by Julian Todd

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons 3:32 pm, 10th March 2005

I must inform the House that a message has been brought from the Lords as follows. The Lords insist on an amendment to the Prevention of Terrorism Bill to which the Commons have disagreed and do disagree with the Commons in their amendments in lieu thereof, for which insistence and disagreement they assign their reason. They do not insist on an amendment to which the Commons have disagreed, disagree to the amendment proposed by the Commons in lieu, but do propose an amendment in lieu thereof, and they do not insist on certain other of their amendments to which the Commons have insisted on their disagreement and agree without amendment to the amendments proposed by the Commons in lieu thereof.

J

Does this actually mean anything?

Submitted by John Newbery Read 1 more annotation

Photo of Menzies Campbell Menzies Campbell Shadow Secretary of State (Foreign Affairs)

On a point of order, Mr. Speaker. May I associate myself with the observations made a moment ago by Mr. Heald? You are by tradition, history and convention the guardian of the interests of the House and the protector of our ability to discharge our responsibilities. If a statement is being made outside the House that bears on these proceedings, how then can we properly fulfil our responsibilities? May I take it that, if the Prime Minister were to seek your approval to make a statement before the House, you would readily assent to that?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Further to that point of order, Mr. Speaker. Is it not the case that it is insulting and contemptuous to the proceedings in this House for a Minister to behave in this way? Will you not protect the House in these circumstances?

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

Further to that point of order, Mr. Speaker. In the past you have expressed grave displeasure when Ministers have come to the House second, after having made on a radio or television programme an announcement that was due to be made in the House. Is there not therefore precedent for you to call the Prime Minister to account for making a statement outside the House, instead of in the House? It is a contempt of Parliament. His Parliamentary Private Secretary is present. You could dispatch him to No. 10 and get the Prime Minister to come and answer the questions.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. Let me answer. We are now on timetabled business. We are therefore considering the business before us. Many Members of the House, Government and Opposition have discussed the matter outside the House, and I will not stop anyone doing so. I have an hour's business before me and I am applying the rules of the House. That is what I will do. If someone tables an urgent question on Monday, I will consider these matters, but let us get on with the business in hand.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

Further to that point of order, Mr. Speaker. Does it lie within your power to grant a brief adjournment of the House to enable us to study what the Prime Minister has said, in case it is germane to the proceedings that we are about to begin?

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

That sounds sensible. It looks as though we will have a brief suspension within an hour and a half, and we can then discuss all the matters we want to discuss.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. I know the right hon. Gentleman takes the matter very seriously, as he has spoken to me about it. We are now timetabled and the clock is ticking away.

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

Further to that point of order, Mr. Speaker. There is a possibility that what the Prime Minister is saying to the press will have a serious impact on this debate. Until we know what he is saying, we cannot properly address the debate. Therefore, in seeking an adjournment, my hon. Friend Mr. Luff is entirely right.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Let me give the right hon. and learned Gentleman a promise. As I stated to the hon. Member for Mid-Worcestershire, within an hour and a half these proceedings will be suspended. I will look at a transcript of what the Prime Minister said. I promise to do that.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

I am getting rather weary of points of order that are not genuine points of order.

Photo of Mr George Foulkes Mr George Foulkes Labour/Co-operative, Carrick, Cumnock and Doon Valley

Is it in order to raise points of order on media speculation and hypothetical matters? If it is, I could do it every day.

Photo of Julian Lewis Julian Lewis Shadow Minister (Cabinet Office)

On a point of order, Mr. Speaker. Did the Prime Minister's office have the courtesy to inform your office that he would be making a statement at the same time as we would be reconvening to discuss these matters?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the House do now adjourn so that we can listen to the Prime Minister.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. The hon. Gentleman is out of order.

Copies of the Lords reasons are available in the Vote Office, as are the Government's propositions relating to the message. All Government proposals are being debated together.

Lords reasons: 1A and 1B.

Photo of Charles Clarke Charles Clarke Home Secretary

I beg to move, That this House
insists on its amendments 1A and 1B to Lords amendment 1, insists on its disagreement to Lords amendments 12, 13, 15, 17, 22, 28 and 37 and insists on its amendments 37A to 37C and 37E to 37O and 37X, insists on its disagreement to Lords amendments 37Q, 37S and 37T proposed in lieu of Lords amendment 8, insists on its amendments 17H to 17M to the words restored to the Bill by its insistence on its disagreement to Lords amendment 17 and disagrees with Lords amendment 37Y.

In the light of the points of order, I should like to make it clear to the House that my remarks will set out clearly for the House to debate and discuss the situation on the Bill. As Home Secretary, I will set out the position in a moment. Right hon. and hon. Members will have every opportunity to discuss it.

Later this afternoon—not at this moment—the Prime Minister will give certain media interviews. He is not making a statement, as reported. You, Mr. Speaker, were entirely correct when you referred to media speculation in that regard. Like many other Members of the House, as you observed, the Prime Minister is giving interviews later this afternoon. That is perfectly appropriate.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

The information given on the television was that the interview was at Downing street at 3.30—

Photo of Charles Clarke Charles Clarke Home Secretary

I turn now to the substance of this stage of the debate. The amendments before us, which would ensure that the Secretary of State must consult the intelligence services commissioner before making an order under this section, follow three sessions of ping-pong and more than 24 hours of very substantial debate in both Houses. We are now entering a fourth round of ping-pong. The will of this elected House has been consistent and strong, particularly on the two issues that remain outstanding between here and the Lords.

Voting in the other place on those two issues has been as follows. On the so-called sunset clauses, the first Division resulted in a 150 majority against. That majority reduced subsequently to 85, then to 68, and finally to 71. [Hon. Members: That does not add up."] On the burden of proof, the Divisions resulted in a majority of 89 against, then 71, then 55, and finally 48.

Photo of Charles Clarke Charles Clarke Home Secretary

No I will not.

At the same time, it is absolutely clear that the position of this elected House of Commons has remained strong, and that it has done so while support in the unelected House of Lords for those who oppose the Government's approach is in steady decline. The reason for that is that the Government's arguments against raising the standard of proof for non-derogating orders, and against the proposed sunset clause, are clear and strong. I will repeat them.

I shall deal first with the standard of proof, which Mr. Grieve has spent a lot of time discussing on the Floor of this House. With respect, he is missing a point that is of absolutely central importance. The decision to reduce the standard of proof would inevitably lead to the likelihood that certain dangerous individuals would not be brought under control—that is the core of the argument. There are other legal arguments that also have weight, but I will not refer to them now.

Photo of Charles Clarke Charles Clarke Home Secretary

The core point is that passing the measures proposed by the Opposition would make it more difficult, rather than less, for us to deal with threats to the country.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

If the burden of proof were changed, fewer people would of course be affected by the orders, but those who would not be affected would presumably be those who, on the balance of probability, were not guilty of the allegations made against them. How can the Home Secretary persuade us to resist that conclusion?

Photo of Charles Clarke Charles Clarke Home Secretary

On the right hon. and learned Gentleman's first point, which he has made consistently throughout our discussions, it remains the case that we are talking about individuals who pose a very substantial risk to the people of this country.

We all know that an individual who is a suicide bomber and who takes such action is in a position to create mayhem and distress on an immense scale. That is why it is important that we have the powers set out, which I stand by.

Photo of Parmjit Dhanda Parmjit Dhanda Labour, Gloucester

On the burden of proof, the Home Secretary and I both know the difficulties that we in Gloucester have experienced since the arrest of the shoe bomber in November 2003. The threshold of evidence was very high when the police raided the house in question and looked for a conviction, which they got, but my right hon. Friend and the rest of this House should be aware that a shoe, a detonator and explosives were in that house for two years prior to the raid, so it is desperately important that the threshold be low enough for the police to do something about such a situation within such a period.

Photo of Charles Clarke Charles Clarke Home Secretary 3:45 pm, 10th March 2005

First, my hon. Friend is completely right in everything that he says; secondly, I pay tribute to him for the work that he has done in his community to deal with these issues; thirdly, and this answers the point made by Mr. Clarke, the damage that that individual would have done is absolutely catastrophic. We have to take account of that, as my hon. Friend seeks to do.

On the sunset clause, I have told the House on a number of occasions, and I set it out again here today, that if we put one in the Bill we will be saying that powers that this House considers necessary to deal with the threat that we face may, in the very near future, be thought not to be necessary. That will send a clear message to terrorist organisations that this is a place where they can thrive, and I reject that approach.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If that is the Home Secretary's concern, why were the Government content to put exactly such sunset clauses in other anti-terrorist legislation recently passed by this House?

Photo of Charles Clarke Charles Clarke Home Secretary

There are, as the hon. Gentleman says, examples of other legislation, of different types, which have sunset clauses—that is true. In each case, the argument needs to be taken on its merits. When I consider the merits of the case for such a clause in this Bill, I come to the conclusion that the risk is not right. There is a more fundamental reason for my position, which I have stated before and will state again.

Photo of Charles Clarke Charles Clarke Home Secretary

Not at the moment.

If the interest of the Opposition parties and the other place is in having substantive and substantial consideration of the right kind of anti-terrorist legislation for us, I point out that we have already put in place a whole series of means of achieving just that, and I shall list them again. There are the quarterly reports that I, as Secretary of State, make to Parliament on the use of the powers to make control orders and on surrounding issues. There is the independent reviewer, who looks at the whole operation of the Act, as a result of some of the changes that I have made, and makes a report to be laid before Parliament. There is the process of annual review that allows both Houses of Parliament to decide, by vote, whether to continue the Act. There is the fact that on the derogation orders there is also an annual renewal that operates in that way. There is the fact that, as I announced on 22 February, my clear intention is to introduce further counter-terrorist legislation as soon as parliamentary time allows. As the House knows, our intention has always been that that would be in the next Session of Parliament.

Photo of Huw Irranca-Davies Huw Irranca-Davies PPS (Rt Hon Jane Kennedy, Minister of State), Department for Work and Pensions

Will my right hon. Friend confirm, for clarity in the House, that none of the measures that he has laid out before us is new—they have been before us all the time—and the combination of those measures makes the demand for a sunset clause completely redundant?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is entirely right, because there is a choice with the legislation. One can take the approach, suggested by the Opposition parties, that there is a defined moment at which anti-terrorist legislation simply disappears. The other approach, which I think is better, is to say that we need to have a system that improves the operation of our counter-terrorism legislation, learns from experience and decides how, if necessary, we make amendments. That is the superior legislative approach.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Is not the Home Secretary entirely right, but the other way about? The only way the House of Commons can debate these matters without having to choose between no terrorism law or the present terrorism law is if there is a sunset clause.

Photo of Charles Clarke Charles Clarke Home Secretary

The right hon. Gentleman is wrong, and I will now explain what I intend to do to address his point more clearly.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Does my right hon. Friend agree that an appropriate way of trying to build the broadest consensus across the House—indeed, across both Houses—would be to introduce a draft counter-terrorism Bill, which could be considered at great length and in great detail by all sections of both Houses?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is entirely right. Indeed, I have a suggestion that I hope colleagues in both Houses, on all sides, will consider.

Several hon. Members:

rose—

Photo of Charles Clarke Charles Clarke Home Secretary

I shall not give way.

I want to propose the positive course of action suggested by my hon. Friend because we know, following this ping-pong, that many colleagues in the other place understand that, in a democracy, the will of the elected House should prevail. I announced in my statement on 22 February my clear intention to introduce further counter-terrorist legislation as soon as parliamentary time allows. I can tell the House that the Government will ensure that the new legislation that I announced some weeks ago is timetabled in such a way that hon. Members will have had the opportunity to consider the first report of the independent reviewer before they seek to table amendments. The effect of that, of course, is that the operation of the Bill before us now and the reviewer's independent review will be available to Members of both Houses in considering amendments to that legislation.

To achieve that, I suggest a timetable along the following lines for the House to consider. I suggest that, in March 2005, we get Royal Assent for this Bill; that, immediately thereafter, we appoint the independent reviewer; and that, in the late autumn of 2005, we publish the draft counter-terrorism Bill and begin its pre-legislative scrutiny, which I promised to the House.

In early 2006, the first report of the independent reviewer would be presented to the Home Secretary, who would lay the report before Parliament, as previously pledged. The report would include both the reviewer's report on the operation of the current Bill and the implications of the new offences for this Bill. In spring 2006, the new counter-terrorism Bill would be introduced in the Commons, informed by the analysis that I have just described. In March 2006, a year from today, there would be the first renewal of the prevention of terrorism Act order. Until July 2006, the counter-terrorism Bill would proceed through Parliament and, we hope, receive Royal Assent in July 2006.

I say in all seriousness that the course of action that I suggest is a constructive attempt to find a way forward and out of the area we are in. It will allow both Houses to consider the situation in detail and, instead of allowing the legislation to disappear, allow it to be improved. I therefore now invite Conservatives and Liberal Democrats in this House and in the other place to recognise the value of my constructive proposal, to recognise the need for the views of this House—the elected Chamber—to prevail, to withdraw their amendments in the other place on the sunset clause and on standards of proof and to drop their remaining opposition to the Bill.

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

The Home Secretary will recognise from my previous comments that the Liberal Democrats are anxious to find a way of getting round this apparently insoluble problem. Our prime requirement is that we have a mechanism by which new legislation may be introduced with a proper timetable and a proper opportunity to amend it. That was not on offer as part of the right hon. Gentleman's previous proposals. May I ask about what is now being proposed, which I certainly will consider carefully? First, will it be on the face of the Bill and therefore part of statute; and, secondly, does the right hon. Gentleman envisage that the process will be complete by November 2006?

Photo of Charles Clarke Charles Clarke Home Secretary

First, as I have said before, the hon. Gentleman and his party have sought on various occasions to make constructive proposals. As late as this afternoon, a different set of constructive proposals were made with which I could not agree. Nevertheless, I acknowledge that, unlike the main Opposition party, the Liberal Democrats have sought to take a positive approach on these matters.

On the hon. Gentleman's second question, yes, it would be our intention that by November 2006 the new Bill would have Royal Assent; and, on his first question, it would not be our intention to place the timetable issues on the face of the Bill, but the statement before this House is serious testimony that the hon. Gentleman should accept.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

My right hon. Friend's proposed timetable must surely be the complete answer to anyone who says that there will not be adequate opportunity to test a new measure in this House. Will it not put to the test the motives of those who persist in opposing it, because surely it is puzzling that those who talk about fundamental principles ignore another fundamental constitutional principle—that this House has primacy?

Photo of Charles Clarke Charles Clarke Home Secretary

My right hon. Friend is entirely correct, first with regard to the primacy of this elected House, and, secondly, by putting his finger on the difference of approach that has existed between some opponents of the Bill. The difference of approach is between those who have been seriously concerned that there should be an improvement measure to ensure that the full applications of the Bill can be considered, and those who have proposed a sunset clause as a political tactic with no relationship to any other reality.

Photo of Mr Clive Soley Mr Clive Soley Labour, Ealing, Acton and Shepherd's Bush

My right hon. Friend explains in more detail what he indicated in outline last Wednesday, which should have been accepted last Wednesday. I put it to my right hon. Friend that, as he will know, he cannot put it on the face of the Bill, but in order to deal with this increasingly absurd situation both the other political parties could make it clear that, in the likely or unlikely event of their being in a position to do so after the general election, they would follow exactly the same procedure as he is, and then all three parties would be committed to it and we would have good way forward?

Photo of Charles Clarke Charles Clarke Home Secretary

My hon. Friend is entirely correct, and it was he who raised in the debates in the House the desirability of all-party discussions after the general election to try to bring the difficult task of terrorism legislation to the state of affairs where it was dealt with on a non-partisan basis—something that used to exist when the Labour party was in opposition. [Interruption.] My hon. Friend is entirely correct that the way to approach this is for each of the parties to indicate their serious intention to take forward in good spirit the approach that I suggest.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

The Home Secretary appears to be giving a fairly binding obligation to introduce legislation that this House can consider in a proper, ordered fashion, with time for debate, this winter. I am sure he accepts that it would be rather shameful if his party were to win the election and go back on that. If the Conservative party were to win the election, it is committed to introducing similar legislation. [Interruption.]

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. I must hear what the right hon. and learned Gentleman is saying.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

If the Labour party is successful in the election, a problem could arise if the scope of the legislation introduced by the Home Secretary's Government was so narrow that it precluded consideration of parts of the present legislation. Is he prepared to undertake that all the subjects that have caused the present rather serious crisis will be within the scope of any draft Bill that he brings before this House to consider in an orderly fashion?

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee) 4:00 pm, 10th March 2005

I can give that assurance, and for this reason: it was from these Benches that we proposed the amendment to the role of the independent reviewer to shift the responsibility of the independent reviewer from simply looking at the operation of the control orders to looking at the operation of the whole of the Act. That is why the language I used a moment ago made it clear that the responsibility of the independent reviewer in looking at the whole of the operation of the Act was to make a report on all the matters concerned in order to inform the legislation that he proposes.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I am delighted that the right hon. and learned Member for Rushcliffe, whom we should all like to see back at the head of the leadership of his party, is committing that party to introducing legislation of this type. To be entirely candid, I know that he is sincere in his support—

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. The right hon. and learned Gentleman cannot keep standing. He is not allowed to stand while another hon. Member is addressing the Chamber.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I know that the right hon. and learned Member for Rushcliffe is committed to the control order regime that we are describing, and that he has simply had a number of objections to the way in which we have done things.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

He acknowledges that now. That is not true of those on the Front Bench of his party, and I am delighted by his commitment.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I make the statement I am making today—

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I make my statement in a constructive spirit, but I have to say—I want to make this absolutely clear—that if it is rejected by the Opposition parties, I shall have no hesitation whatsoever in recommending to my colleagues in this House that they continue to press for as long as it takes to put the Bill on to the statute book.

I commend our proposals to the House.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I told the Home Secretary this morning that if he wanted to discuss any matters in respect of the Bill with me or any of my hon. Friends, we were perfectly open to meeting him. Since then, the Home Secretary has been seen wandering around the corridors of the other place. Indeed, on one occasion, he spoke rudely to a Liberal peer about his speech, in a case of mistaken identity.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I do not think I was very rude. I simply thought that the peer made a very poor speech on behalf of the Liberal Democrats in the other place.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The trouble is, the Home Secretary spoke to the wrong person.

That, I have to say, is, as far as I am aware, the full extent of the Home Secretary's approach to Opposition parties. It is certainly the case in so far as my own party is concerned. I take this opportunity, therefore, seeing that the Home Secretary has never engaged in the sort of discussions that—[Interruption.]

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have previously been involved in this stage of a Bill's progress through the House. Under the Home Secretary's predecessor, issues were resolved because discussions took place between the parties. I simply point out that the Home Secretary has not been willing to do that. Therefore, the only discussions that can take place must take place here. It is difficult for him to complain if he does not approach other people to reach consensus.

Photo of Patrick Cormack Patrick Cormack Conservative, South Staffordshire

The Home Secretary has made much of the primacy of this House. Had he had proper regard to that in the way in which the Bill was introduced and handled, we would not be in this mess today.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is right. When the Home Secretary cited, at great length, his timetable for the passage of new anti-terrorist legislation, one could say only that one wished that something similar had been provided for this Bill, because then we would not have had the problem.

I take this opportunity to explain to the Home Secretary the areas of disagreement that we have. I hope to take this opportunity to point out to him that there might still be ways forward.

The Home Secretary dealt with the standard of proof. If he wishes to lower it to mere suspicion, I can guarantee that he will succeed in pulling in more people. It is inevitable that that will happen; indeed, if he decides to do it on a whim, he can lower the standard still further. However, if he is going to deprive a person of their liberty for a prolonged period, which is what his administrative action will result in, the question he must answer is whether it is proper to do that on reasonable suspicion rather than according to a normal standard of civil proof.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

Is not this getting rather like a bad film—"This is where we came in"? The arguments on the standard of proof have been rehearsed again and again. In my judgment, the Home Secretary has put a very reasonable proposition to Opposition Front Benchers. Is it so difficult to say yes or no?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I merely point out that the process of debate, in which I thought this House was supposed to engage, does seem to have enabled us to narrow some issues, so I hope that Donald Anderson will bear with me while I raise again with the Home Secretary the issues relating to the standard of proof. [Interruption.]

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. A Northern Ireland Minister keeps shouting. I have asked for order. I do not wish to pick out one individual Member, but I am being tempted to do so.

Photo of Barry Sheerman Barry Sheerman Chair, Education & Skills Committee

I will not ask how much.

Mr. Grieve is in a state of confusion. May the House be suspended for five minutes while he takes counsel from the Leader of the Opposition and the shadow

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If I start to speak very slowly and clearly, perhaps Mr. Sheerman will understand me.

I suggest to the Home Secretary that the standard of proof of the balance of probabilities is a much better one. I urge him, again, to reconsider that.

Let me turn to the sunset clause. I hope that Members and the Home Secretary had an opportunity to hear the debate in the other place that preceded this one. If they did, they would have heard Lord Morris of Aberavon explain that in legislation of this type, which gives the Government unusual powers, it is completely acceptable, and, indeed, good practice, that there should be some form of sunset clause. He acknowledged that the period ought to be open to negotiation, and he suggested that the Government suggest what that period should be.

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

The Home Secretary has told the House that he expects to have new legislation in place by November 2006. That being so, does my hon. Friend understand why we should not have a sunset clause, which comes into effect in November 2006? Does he also understand that if that were before the House, even those who like myself are basically opposed to the Bill in principle would accept it?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend makes a very good point. If the Home Secretary would only listen to what Lord Morris had to say, I believe that the matter would be capable of being resolved. I urge the right hon. Gentleman at this eleventh hour to do just that. He sketched out a timetable for his future legislation that, if I may say so, is undoubtedly helpful in explaining to the House how the Government intend to go about their business. However, there is no reason why that timetable cannot be married with a sunset clause. [Interruption.]

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have to say to the House—[Interruption.]

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. It seems that Ministers want to shout today. I tell the Minister for the Cabinet Office, "Do not shout." If the hon. Gentleman is put out of the Chamber, he may not be able to vote.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Does my hon. Friend agree that one of the reasons why the Government truncate debate and one of the reasons why they will not allow a sunset clause is that they lack self-confidence in their own proposals? Does my hon. Friend agree also that a Government who believe in the merits of their legislation would allow the House time for debate and would allow time for the House and the country to consider the Bill with a sunset clause?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I find it strange that the Government, who to my mind had the good sense in the Anti-terrorism, Crime and Security Act 2001 to grant a sunset clause

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

No. I must move on.

They granted such a clause in that instance but refuse to grant a reasonable sunset clause now, when the effects of the Bill on civil liberties would be far more draconian than the terms of the 2001 Act.

I see the Home Secretary sitting in his place, and I begin to detect that he knows that the argument has merit. I fear that the truth is that he has been persistently overruled in this matter by No. 10 Downing street. There can be no reason for not uniting his legislative proposals with a sunset clause. I ask him now, before the Bill returns to the other place, to reconsider the issue. If he wishes to discuss it with us, he can do so.

Others in the House—

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

I have, regrettably, felt it necessary to vote with the hon. Gentleman against the Government consistently on the matter of a sunset clause. Having listened to the timetable that my right hon. Friend the Home Secretary has set out, does the hon. Gentleman share my view that we have a sunset clause that "would smell as sweet" and sound as sweet "by any other name"? If we cannot see what is beneath our nose, I think that my right hon. Friend deserves the thanks of the House for an intelligent, flexible and witty solution, and we would do well to accept it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is quite right. The Home Secretary's timetable is an important contribution to the debate. If the Government honour their commitments, there might turn out to be, or might probably turn out to be, a sunset clause. The trouble is that there is no requirement on the Government to turn the proposal into a sunset clause if, when the time comes, the Government decide to have two pieces of legislation on the statute book in parallel.

The argument that if the Home Secretary is prepared to offer such a programme, there is absolutely no reason why a sunset clause should not be put in the legislation must equally well apply. We really cannot get away from that. I urge every Member of the House who wishes to see this matter resolved to look sensibly at the creation of a sunset clause that guarantees that this legislation cannot stay on the statute book for a day longer than is necessary.That is the issue; the problem has been that the Government have refused consistently to respond. I ask the Home Secretary to urge the Prime Minister to do so instead of posturing around in Downing street with his own media bids. Then we might be able to make progress. Until then, I regret to have to tell the Home Secretary that we stand by the Lords amendments.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 4:15 pm, 10th March 2005

First, may I acknowledge a fact that has not been acknowledged in this debate? There has been movement between the other place and here in the process of these amendments. Two concessions have been made by another place in recognition of the Home Secretary's position: one on the part of the Conservatives in dropping the amendment on the Privy Council committee that they had been pressing; the other on our part in dropping our insistence on the reference to the Director of Public Prosecutions, not because we believe that that was not the right way of doing it, but because we had acknowledged that the right hon. Gentleman has at least produced an apparatus for achieving the consultation on prosecutions.

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

Not at the moment. [Hon. Members: "Go on."] Well, if the whole House is going to feel sorry for the hon. Gentleman, I will give way.

Photo of Michael Weir Michael Weir Scottish National Party, Angus

I thank the hon. Gentleman—or perhaps the House—for giving way.

The hon. Gentleman said that the Liberals in the other place gave way on the issue of the Director of Public Prosecutions, but does he not realise—he should, because his party in Scotland is in government with the Labour party—that this creates a special Scottish problem? The effect is that a senior police officer will be the one to determine whether there is a possibility of prosecution. That is a novel concept in Scots law and takes away the traditional procurator fiscal service.

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

The hon. Gentleman has made his point.

Two issues remain in play as far as we are concerned before we complete our consideration of the Bill. One is a matter of principle. The Home Secretary understands that we have a principled objection to the standard of proof that he believes is necessary and that we believe is too low. We will not agree on that issue. We have debated it time and time again; we will not agree. Nor will we stand down from our conviction that the balance of probabilities is the least standard of proof that is appropriate for the deprivation of liberties of British subjects. We shall persist with that, but we acknowledge the fact that the right hon. Gentleman is not going to move.

The other is a matter of process—how this House deals with this deeply inadequate, deeply flawed and deeply hurried legislation in future, so that we get better and stronger legislation to deal with the threat of terrorism. That is what we all want, and that is what the right hon. Gentleman, by a serial process, has given us to understand is his intention in bringing forward extra legislation in future.

Those hon. Members who heard the debate in the other place earlier this afternoon will have recognised the fact that men and women of good will on both sides in that House were very anxious to find a way of getting round the obstacle of what has been called a sunset clause. That is clearly an obstacle because of the barriers that have been put around it by the Prime Minister and others as a matter for dispute between the political parties.

The Home Secretary has put forward various proposals that enable the House to reconsider the Bill. We acknowledge that, but there is one last problem, which was quite unavoidable. That problem is the fact that Parliament would not be in a position to amend the legislation on renewal. Renewal orders are not amendable. As we have said repeatedly, the problem with that is that this House and another would be given the options of accepting renewal or rejecting it, and nothing else. It is not difficult to understand that. in the circumstances of a terrorist threat, only acceptance of renewal would be a proper course of action for responsible parliamentarians. Therefore, the House would not have the option of making good what we believe to be inadequate legislation.

Those of good will in another place, in whose number we include Lord Morris of Aberavon, who spoke extremely well, Lord King of Bridgwater, who made an outstanding speech, and my noble Friend Lord Steel of Aikwood—

Hon. Members:

Give way.

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

All of them were clearly seeking a mechanism whereby we might get around the apparently immovable obstacle erected by the Prime Minister.

Hon. Members:

Give way!

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

I have listened carefully to the Home Secretary's words this afternoon. Had he made those proposals with such clarity some hours ago, or even some days ago, we might have saved an awful lot of time. [Hon. Members: "Ah!"] No, the right hon. Gentleman has not yet convinced me. I want to see his proposals in writing and to consider their implications. I want the opportunity to discuss them with my right hon. and hon. Friends—and perhaps with the Conservatives as well, because I believe that, in this sphere, it is far better to have consensus between the parties than to have dispute. I hope that that is not an unreasonable view to take. I hope that that is what we all seek on a matter of such importance to the people we represent.

Photo of Charles Clarke Charles Clarke Home Secretary

I very much appreciate the hon. Gentleman's tone and I am happy to discuss with him and his colleagues what I am proposing in whatever detail he would like. I shall also be happy to make sure that a written copy of what I said is available for him and other right hon. and hon. Members to consider in a proper way.

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

I am most grateful to the Home Secretary and I take him up on his offer. We must now talk sensibly about how we can bring our proceedings to a satisfactory close. We shall not change our attitude toward the matter of principle—the balance of probabilities. He knows and I know that we differ on that point. However, on the point of process, if we can arrive at a solution that is satisfactory to this House and to the other place, so be it—we will have achieved substantial progress.

My final point is simply that, had we had a timetable for such legislation three years ago, we might not have been in the lamentable position that we are in today. We might not have had to consider legislation of such importance against the backdrop of an apparent emergency—an emergency that is, in fact, of the Government's own making. It is the Government's failure to take seriously the process of review, the Newton committee's proposals and the views of all those outside the House who said that we needed better, more appropriate anti-terrorism legislation that has brought us to where we are today. Given that we are here, let us see whether we can make progress.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

Mr. Heath has spoken very reasonably. He should be given time to examine the proposition, so that he and his colleagues can come to a proper conclusion.

The debate has been good in parts because it deals with grand principles, such as habeas corpus, which several hon. Members have mentioned. However, we have now reached the point at which, whatever the procedural faults of the past, we are narrowing the issues and coming close to consensus. The matter is now one of judgment and balance. In my view, we all recognise the nature of the threat. I was impressed by what my hon. Friend Mr. Dhanda said about the shoe bomber in his own constituency[Interruption.]

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

Order. There is far too much noise in the Chamber. It is unfair on the right hon. Gentleman.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

Anyone who doubts that there is a real threat and often from unexpected quarters—people who are not known to the police—need not only listen to what very senior police officers have said about the numbers and nature of the threat, but simply read the details of the guilty plea of that Gloucester shoe bomber in order to get some indication.

I think that we have narrowed the issue to two points.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Does my right hon. Friend accept that a criminal court convicted that individual and that the legislation that we are passing will allow people to be restricted or detained on the basis of hearsay evidence through the security services? The defendant will know nothing about it; nor will the public, and therein lies the road to miscarriages of justice.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

The nature of the threat puts us in unprecedented times. These are not matters of parking fines, as one former Home Secretary meant to say. These are times when young men are prepared to blow themselves up along with several hundred people who are on the plane with them. Therefore, this country has to have the appropriate means to defend our citizens.

Perhaps we have at last reached a divide in our debate and we can separate, as I believe the hon. Member for Somerton and Frome has, people of good will who are prepared to seek points of principle and try to reach accommodations, from those whose motives are somewhat different.

As far as the standard of proof is concerned, clearly we have the difference between the balance of probabilities and reasonable suspicion. I have already mentioned the Gloucester bomber and the nature of threat. If I were sitting on such a case, I confess that, faced with reasonable suspicion or the balance of probabilities, I would bear in mind the awful nature of what would happen if I took the wrong view, and the effect on our citizens if afterwards I realised that I had applied too high a standard of proof and people were allowed to walk the streets and wilfully blow up our own people.

I turn finally to the second area of concern and difference: the sunset clause. What I dislike about the sunset clause—I understand the motive behind it; it is a very honourable one—is that it is absolute. It does not allow Members to discuss matters properly and to go through all our procedures.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

I am making a very short speech.

Surely the key question on the sunset clause is this: what is the objective of a sunset clause and can that objective be met in any other way? After all, a sunset clause is only a device to reach a particular end. So I pose the question whether that end can be reached in a more acceptable way—indeed, in a way that gives not only this House but the other place ample time in which to discuss and to amend. It is absolutely clear that the alternative put forward by my right hon. Friend the Home Secretary achieves that objective in a far more acceptable way. I therefore hope that reasonable colleagues on the Opposition Benches will consider that offer. Does it have to be written down? It will be in Hansard, and I am sure that my right hon. Friend would sign his notes if necessary.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Gentleman is making some very important points. If the Government's offer is indeed a fair one, there can be no reason for not having a sunset clause in the legislation that would expire at exactly the same moment as the legislative programme that the Government are envisaging comes to fruition, providing reassurance that bad law, which I am afraid we are seeking to pass at the moment, will not stay long on the statute book.

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

Both the sunset clause and the device proposed by my right hon. Friend the Secretary of State could achieve the same end. I concede that, but the disadvantage of a sunset clause is that it is absolute; it will fall at a certain time. The Opposition wanted, as a first foot forward, a six-month period until November. That was absolutely absurd in terms of our parliamentary timetable, even with the amount of days on which the House will be sitting before November. Even on March, it would impose an arbitrary timetable.

In my judgment, the step-by-step approach that my right hon. Friend has reasonably proposed achieves the same end in a far more acceptable way. This will separate the sheep from the goats. It will certainly separate those whose motives are to embarrass the Government from those—[Interruption.]

Photo of Mr Donald Anderson Mr Donald Anderson Chair, Foreign Affairs Committee

This matter will certainly separate those who, like the Liberal Democrats, hold a certain view on points of principle that they have properly put forward from those who may have another agenda.

Looking at the proposal dispassionately and objectively, it is clear that it achieves the object that the Opposition have put forward, and it does so in a way that gives far more opportunity for Parliament without the risks attendant on the sunset clause.

Finally, we have heard much about constitutional points. I have been in the House a very long time, and I know of no example in which the ping-pong has been so prolonged. In my judgment, in the past, those in the other place have recognised that, ultimately, it is the will of this House that will prevail. For whatever reason, they seem persistent; there is even a rumour around the House that they wish to adjourn until Monday. If they were to do so, they would clearly keep the headlines, but they would spoil the programme of the Government and their motives would be very much in question.

It is the will of this House that should prevail. There has been ample debate, and a real concession and a real way through has been put forward by my right hon. Friend. Surely, any reasonable person should now accept it.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

I have hesitated to participate in this debate because I am not a lawyer, and—[Interruption.]

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

I understand that the Bill was provoked by the situation of those in Belmarsh and the inability to retain them in detention, and the decision of the Law Lords that that was contrary to the European convention on human rights. If that was so, I find that difficult to understand, because it was said that they were held because they were foreigners and that it was not the same for British citizens. Of course, the detainees were detained as foreigners who were being rejected asylum and whom we wished to deport. It would be very difficult to put British citizens in the same position. By definition, that could—

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

The House divided: Ayes 321, Noes 215.

Division number 141

See full list of votes (From The Public Whip)

Question accordingly agreed to.

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

Lords amendment: No. 33

Motion made, and Question put, That this House insists on its disagreement with Lords amendment No. 33D and insists on its amendments Nos. 33C, 33G and 33J in lieu, does not insist on its amendment No. 331 and proposes amendment (a) in lieu.—[Ms Blears.]

The House divided: Ayes 325, Noes 196.

Division number 142

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendment No. 37Y: Ms Hazel Blears, Mr. Dominic Grieve, Mr. David Heath, Mr. John Heppell and Kali Mountford; Ms Hazel Blears to be the Chairman of the Committee; three to be the quorum of the Committee.—[Mr. Heppell.]

To withdraw immediately.

Reasons for disagreeing to certain Lords amendments reported and agreed to; to be communicated to the Lords.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

On a point of order, Mr. Speaker. I did not join in the congratulations and tributes paid to the staff of the House earlier today. On behalf of all right hon. and hon. Members on the Opposition Benches, I now join in those tributes. What the staff have done today has been magnificent.

Photo of Robert Smith Robert Smith Opposition Deputy Chief Whip (Commons)

Further to that point of order, Mr. Speaker. I associate the Liberal Democrats with those congratulations, and pay tribute, in particular, to the innovative way in which the staff adapted the House and the facilities of the House to cope with the unusual circumstances in which they found themselves.

Photo of Peter Hain Peter Hain Chair, Modernisation of the House of Commons Committee, The Secretary of State for Wales, Leader of the House of Commons and Lord Privy Seal

Further to that point of order Mr. Speaker. On behalf of the whole House, I make exactly the same points. I particularly thank the catering staff, who have had to respond at very late notice and have done absolutely magnificently on behalf of us all in the process, and have had little sleep in so doing.

Sitting suspended.

On resuming—

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

I have to inform the House that a message has been brought from the Lords as follows. The Lords do not insist on their amendment to the Prevention of Terrorism Bill to which the Commons has disagreed and do agree with the Commons in their amendment in lieu thereof. They do not insist on an amendment in lieu of certain other Lords amendments to which the Commons have disagreed and do agree to the amendments proposed by the Commons in lieu thereof. They agree with the amendments proposed by the Commons to the words so restored to the Bill.