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Mr. Gummer: Does not my hon. Friend remember the debates on this very accession to the European treaty, in which the Labour party told us that none of these things would occur? They said that everything was all right because no judge would reach such a decision. We now have a ludicrous situation in which we are busy trying to kill bin Laden directly, but if he were to arrive in this country we would not be able to send him to the US in case he was killed after the due process of law. I am opposed to capital punishment, but that is ludicrous.

Mr. Paice: My right hon. Friend makes the point more effectively than I could. The situation is anomalous. I hope that the Minister will tell the House whether the Government's advice is that the extradition treaty supersedes article 3 or whether, as we believe, article 3 takes precedence.

We are going to offer the Home Secretary the opportunity to reassert the will of Parliament on article 3. The Government should give notice that we will denunciate the convention and rejoin immediately after entering a reservation on article 3. It is beyond doubt that that is legally possible. Our legal opinion says so, as does paragraph 19 in today's report of the Joint Committee on Human Rights, which states:

That is precisely what we propose, and the power to do so is clear under article 57.

Mr. McNamara: The hon. Gentleman makes an interesting point. Have the other 42 members of the Council of Europe agreed to accept such a procedure? Is he certain that he would get a majority in the Parliamentary Assembly to accept it?

Mr. Paice: I was just coming to that precise point. I believe that it was raised this afternoon by the hon. Gentleman, speaking sotto voce, from a sedentary position, and by the Home Secretary. It seems from the right hon. Gentleman's comments that he too knows that denunciation can be done, but has decided that it should not be done. He resorted to the argument that the hon. Gentleman has just repeated. Our legal advice, such as it is, is that, under article 59, as long as the United Kingdom remains a member of the Council of Europe, we would be able to re-accede after denunciation.

We can go beyond that. Today's report from the Home Affairs Committee also refers to the issue, and paragraph 20 clearly says:

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Again, we agree. However, the Committee states that after having said that it thinks

That would indeed achieve the same ends. If, by following that proposal, we could avoid denunciation, which I accept is a fairly dramatic option, that would be more acceptable. However, unless the Minister can convince us otherwise, there is no evidence that the Government have embarked on any such discussions with fellow members of the Council of Europe.

Mr. McNamara: I apologise to colleagues for persisting with this point, but paragraph 3 of article 58 says:

If we cease to be a member, how can we, under article 59, resurrect rights that we no longer have?

Mr. Paice: Our advice is that we could do so if, on denunciation, we announced that we intended to re-accede, having entered a reservation. Article 59 says:

Mr. A. J. Beith (Berwick-upon-Tweed): Even if that were legally possible, what example does the hon. Gentleman think it sets to countries who have joined the Council of Europe in recent years and others who now wish to join if we advocate denunciation whenever we are faced with a conflict, instead of seeking a specific derogation and having to satisfy certain conditions for that?

Hon. Members: What about France?

Mr. Paice: As my hon. Friends suggest, I refer the right hon. Gentleman to the French situation. What we are proposing is certainly no worse and no different. We are considering a very serious security situation, and sometimes in response to such situations we have to take unpalatable measures. In the normal course of events, nobody would advocate this proposal or indeed, I suspect, the order that we are debating, but serious situations may require extraordinary actions.

Mr. Stephen O'Brien (Eddisbury): Will my hon. Friend give way?

Mr. Paice: No, if my hon. Friend will forgive me, I want to conclude because I know that many hon. Members want to contribute.

The effect of the order, taken with part 4 of the Bill, is that only internment will be available. As hon. Members said this afternoon, every internee would become a cause celebre in their group. They would become a target for future atrocities and hostage taking to secure their release.

Wherever possible, that risk should not have to be faced by the British people. If at all possible, those individuals should be deported to countries with sound legal systems, where we can be assured that they will be reasonably treated, according to law. Because it will take six months

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for our proposed denunciation and re-accession to take place, because there are urgent cases now, and because there will be cases where there is no suitable country to which to deport the individual, internment is, regrettably, necessary. Reluctantly, we support the order, but believe it to be wholly inadequate in addressing the wider issue.

11.15 pm

Mr. Graham Allen (Nottingham, North): I shall vote for the Government, and urge everyone in the House to do likewise, but I hope that colleagues will vote for the order with a heavy heart and little joy. We know why we must do so but, equally, we all know that it is a small victory for the terrorists.

Tonight, we are suspending the right to trial. Bizarrely, we are doing so through an Executive order, which cannot be amended and came into force last week. The order is being debated after 10.30 pm; there will, perhaps, be 40 to 45 minutes of Back Benchers' speeches in a mere hour and a half's debate, at the end of which there will be no immediate vote. There has been scant, if heroic, pre-legislative scrutiny of the order by the Joint Committee on Human Rights and the Select Committee on Home Affairs. That would be insulting for some obscure weights and measures order but, as the order before us compromises one of our basic freedoms, it is wholly unacceptable. It reveals all too accurately the contempt in which Parliament is held by the Executive; it could only happen in Britain. I hope that the Joint Committee on Human Rights, chaired by my hon. Friend the Member for Bristol, East (Jean Corston), will, as a matter of urgency, propose better safeguards in future, as the next attempt at abrogating part of the European convention on human rights may come from quarters more sinister than my right hon. Friend the Home Secretary. In future, tougher obstacles will be needed, when the threat to our liberties may be more genuine and widespread.

The United States, which has a separate legislature and Executive, has done things slightly differently. I was informed by the House of Commons Library that the Americans spent six weeks deliberating on the issue, and that that involved intense bipartisan negotiations and bicameral negotiations. Many of the provisions first introduced by Attorney-General John Ashcroft have been dropped or diluted, including a request for the authority to detain indefinitely non-USA citizens suspected of posing a terrorist threat. In the final version of the Americans' bill, detention is limited to seven days. Senator Patrick Leahy, the senior member of the Senate judiciary committee, said,

Mr. Paul Tyler (North Cornwall): Will the hon. Gentleman give way?

Mr. Allen: If the hon. Gentleman will forgive me, I will continue, as I know that many colleagues wish to express their opinion.

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In the USA, there has been a partnership. The country was afflicted by the tragedy to an even greater extent than the United Kingdom, yet it has found the ability to resolve the matter, with the legislature and the Executive working together. It took the House more than 50 years to incorporate the ECHR in English law—I say "English" advisedly—but now it is to be compromised after just one year. One of John Smith's ambitions was to incorporate the ECHR to give domestically enforceable rights to British citizens for the first time. It was intended that incorporation would be followed by a home-grown British Bill of Rights. I had the privilege of working on that policy when I was a Front-Bench member of the shadow home affairs team led by my right hon. Friend the Prime Minister. Where I had hoped for further progress, the events of 11 September have forced a step backwards.

The House should not mince its words. The Executive are in effect suspending habeas corpus and ending trial by jury, a right that can be traced back more than 700 years to the Magna Carta. We are bringing in indefinite internment and introducing to the English mainland something that we never did even at the height of the IRA offensive. As with internment, the normal burden of proof will be reversed: people will be treated as guilty unless they can prove their innocence. Those who are detained will not be able to see the evidence gathered against them, and will therefore not be able to challenge its accuracy.

None the less, the Home Secretary and the Prime Minister say that they believe the measure is necessary to combat terrorism, and I will trust their judgment. I am certain that they have no other motive. Indeed, it would be unlawful for them to have any other motive. However, the Prime Minister intriguingly said last Wednesday, at column 878 of Hansard, that when he meets other world leaders, they pressure him to do something about those in the UK who plot against them. When the Minister winds up, could she be a little more specific about who such people are and whether those world leaders have given Her Majesty's Government their list of plotters who seem so to embarrass them in conversation with the Prime Minister?

Many questions have been answered during the debate earlier today, so I can move on fairly quickly. I still fail to understand why none of the other 40 European countries that are party to the European convention has found it necessary to suspend the right to trial. What are the special factors that have led the UK alone to require such protection? Even in the USA, as I said, the constitution has not been abrogated or suspended, and detention has been limited to a relatively short period. The person must then be charged or released. Despite their pain, the Americans have adopted a balanced approach.

The Home Secretary's new powers can be applied only to people whom he knows to be in the country and whom he can correctly identify. The powers will provide no protection whatever against terrorists who are in the country illegally, or under false identities, or who simply have not made themselves known. Perhaps the Minister can tell the House whether she already knows the people whom she would wish to detain. Can she confirm reports that have appeared in the press that there is a maximum of 16 or 20 individuals against whom the power is to be used?

The new powers to detain are to be applied to people who have not so far given cause for arrest or committed any offences of incitement, attempt or conspiracy. In other

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words, the intelligence information against them is not substantial enough to sustain any of those charges, even at the conspiracy level. We will rely on information from the security services.

I must tell my hon. Friend the Minister that the security services had a rather patchy record leading up to 11 September and on the activities of the al-Qaeda network. Is she fully reassured from her contacts with the security services that the quality of the information that they will provide to her will form a firm basis for holding people in detention? Could some of those people be held on the say-so not of security service operatives working for the UK, but of operatives working for other security agencies? I hope that my hon. Friend will find time to answer that question.

I am keen to let others speak, so I shall end with these remarks: the Government are using their muscle today to force the House to extinguish for certain people a fundamental liberty. The House should have been enabled to do everything it could to satisfy itself that the measure is necessary for the prevention of greater evil. Although the penalties are to be applied to foreign nationals, we owe them the same duty to scrutinise and question the measure as we owe our own citizens and constituents.

As I trust the Prime Minister, and because of the need to show no flinching in the face of terrorism, I shall vote for the order, which has a life of 15 months. However, I urge the Government not to bring it back for renewal unless there is compelling evidence to show that the security gains have massively outweighed the appalling precedent of suspending one of our key human rights. For the future, I ask the Prime Minister to accept that an empowered and vigilant House of Commons should not be feared, but should be his strongest ally against terrorism. I look forward to this House being treated more seriously in future on these questions of fundamental human rights.

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