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 Prevention of Terrorism Bill — Insisted Amendment — Courts and Conrol Orders

Aye: 298 MPs

No: 216 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 141 MPs

Absents: A-Z by last name

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 Prevention of Terrorism Bill — Insisted Amendment — Privy Council Review

Aye: 310 MPs

No: 206 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 139 MPs

Absents: A-Z by last name

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 Prevention of Terrorism Bill — Weak Sunset Clause

Aye: 307 MPs

No: 211 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 137 MPs

Absents: A-Z by last name

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 Prevention of Terrorism Bill — Insisted Again — Courts and Control Orders

Aye: 300 MPs

No: 210 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name