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Mr. Marshall-Andrews: How can it be up to the courts when judicial review is expressly excluded from the

25 Feb 2004 : Column 364

procedure? Allied to that point, if the procedure is justified, how long is it justified to keep a man in detention without trial? Two years have elapsed and no evidence has been provided, which signifies the probability that there is none that will be admissible. How much longer should those people remain in custody?

Mr. Cash: The hon. and learned Gentleman says that judicial review is expressly excluded, but if he is referring—as I am—to the issuing of a certificate, the very use of the word "reasonable" in the context of section 21(1) of the 2001 Act gives the courts the right to question the proceedings. Furthermore, subsection (8) states:

to which I have already referred. That is not eliminating judicial review; it imposes degrees on the conditions for its use.

Sections 25 and 26 deal with appeals against certification and the review of certification. I have already covered that territory, but the provisions state that on appeal

and this is the point to which I referred earlier—

This is a difficult area and I do not approach it with the same certainty as I approach the Civil Contingencies Bill, on which the hon. and learned Gentleman and I think on almost identical lines.

In the context of the debate and the report, however, I have to make a distinction, because we need to be immensely responsible in our attitudes. It may seem strange that a former shadow Attorney-General should line himself up with the Government, but it is important to make distinctions that are necessary in the interests of public safety and public security.

I am not unaware of the dangers inherent in moving into such territory. For example, I am extremely mindful of the statements that have been made in respect of habeas corpus. I have not yet heard them mentioned today, but they seem to be an essential ingredient in this matter. In one very important case, it was said:

That speaks for itself.

The importance that needs to be attached to dealing with the question in the context of article 5.4 of the European convention on human rights is self-evident, but I have argued from the Front Bench in the past—I will do so from the Back Benches for as long as is necessary—that such questions should not be driven by human rights legislation itself, as I rather suspect that the Newton committee was driven. Indeed, that was also evident in the report published today by the Joint Committee on Human Rights. I take a very different view.

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Again, Lord Hoffmann said unequivocally in the case of Simms and O'Brien that Parliament has the right to amend or even repeal the Human Rights Act 1998, if unambiguous legislation is introduced expressly to do so. Therefore, to hinge the whole argument on human rights legislation raises the question of what is the right thing for Parliament to decide for itself to do in respect of the protection and security of the nation and the individuals who live in it.

Similar questions arose in the case of Liversidge and Anderson in the early 1940s. Again, that case was decided on the ground that the words "reasonable cause to believe" were included in the Defence of the Realm Act 1915. That was decided in a manner that Lord Diplock, Lord Reid and several other judges have condemned. So a whole stack of very important civil liberty questions lies at the heart of this matter; but, by a rational explanation and by considering the objective and purpose of the legislation under debate, I strongly say that the first duty of the Government and, indeed, the Opposition is to have regard to the safety and security of the people of this country, including my constituents.

I am more than prepared to suggest, therefore, that we should look at the legislation by all means and see whether we can come up with a sensible alternative, but let us not fall into the trap of putting the principle of jurisprudence above the security of the nation and the constituents whom we represent. That is genuinely what is at stake. Therefore, to that extent, I support the Government and disapprove of what the Newton committee report says on part 4.

5.53 pm

Vera Baird (Redcar) (Lab): The Home Secretary is on strong grounds to ask for the renewal of these provisions today. Clearly, everyone agrees that there is still a threat to the nation's security—something about which one, of course, wants to be profoundly sceptical, but no one seems to doubt that the threat exists. In addition, not only the Home Secretary but the courts and the Carlile review all agree that the individuals who are being detained are a threat to the nation. The Government, with their public protection hat on, SIAC, with its ability to peruse convention rights and civil liberties on behalf of individuals, and Lord Carlile, who scrutinised such things on behalf of the public, all agree about that. It is a strength, too, that the Home Office has used this power very sparingly. I take some cheer from that for another reason: it suggests that the intelligence services, too, have to some extent kept matters in proportion, because they have not gone around looking for enormous amounts of evidence to press against enormous numbers of people. That is a reasonable, and cheering, inference. One's view of the matter depends on whose eyes one looks at it through. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) will not agree, but I am pleased that two people have been prosecuted since their detention on the basis of information that has since been made available, because that suggests that a degree of active investigation is continuing. Indeed, it must continue—there must be a permanent principle that prosecution is the right thing to do.

Some hon. Members have called this the British Guantanamo, but there is no real justification for that. Okay, it is detention without trial—I regret that and I do

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not like it—but the detention of those in Guantanamo Bay is not a scar; it is a suppurating boil on the face of democracy. People have been deliberately tipped into an offshore legal black hole—not because they are seen first and foremost as a threat to the nation, but because the authorities want to interrogate them while they are completely disoriented and out of touch with everyone else.

By contrast, the Home Secretary has told us that he uses a high test before he certifies, and I accept that. As soon as a certificate is issued, there is a right—albeit perhaps only nominal—to apply for bail. Although that is of course unlikely to succeed, it means that someone cannot be incarcerated and just left in prison, because they come to the attention of the judiciary immediately. Within three months, an appeal to SIAC is launched, followed by periodic reviews initiated by the authorities—the first after six months, and thereafter every three months. I do not accept that those appeals are futile, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) suggested. He quoted the Newton report as saying that there has been an insufficiently proactive and focused case management approach to determining whether an individual should continue to be detained. That is a criticism of the authorities. Newton adds the caveat that there has not yet been a review because the cases have been under appeal almost from the start. That has been a protracted process owing to a whole range of factors, some of them outside the control of the Home Office and clearly in the camp of SIAC. As for a review brought about by the authorities themselves, we are not yet even into that territory. The people I know who will act for the detainees will not participate in futile appeals—they will be meaningful appeals, not least because of their presence.

It must be admitted that all the hearings will involve a partial recourse to secret intelligence. As a civil libertarian, I find that difficult to deal with. However, using a special advocate who takes instructions from the detainee and examines the evidence on his behalf, seems the best possible way of making that reasonable. He cannot speak to the detainee afterwards—that is right, although it must be difficult—but takes his comprehensive instructions first and does his best. I am satisfied that the special advocates whom I know will do a sound job and would not co-operate with a procedure that was merely a futile exercise to be gone through.

We have heard the criticism that this is detention on less than the civil standard of proof because it is based only on reasonable suspicion. That is unrealistic. I accept that my right hon. Friend the Home Secretary has adopted a far higher standard, and I am sure that it is not possible for SIAC to consider whether there are grounds for reasonable belief without considering the facts on which those grounds are based. Furthermore, it will do that with the jaundiced eye of a civil court that knows that its finding implies that someone has committed a crime, so it will adopt the ordinarily elevated standard of proof that a civil court adopts in that situation.

That said, 12 people have been in custody for almost two years without being told exactly what they are alleged to have done. They are in the particularly hopeless position of not knowing how long their detention will be; they are of necessity in a high-security

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prison that is usually reserved for the worst criminals, although there remains a very real possibility that they are not criminals at all, or that some of them are not; and their issue has never been tested. I would add that these powers apply only to non-citizens, all of whom are Muslims subject to immigration control. It is arguably legally discriminatory—the House of Lords will decide that soon—and is certainly extremely discriminatory in the real world. Moreover, Newton says that the threat, contrary to what appeared to be the case two years ago, when it came almost wholly from foreign nationals, comes almost equally from UK citizens, but the measure provides protection only against foreign nationals. Having derogated from the European convention, abrogated basic rights to freedom and risked community disharmony, we have at best gained only partial protection. It cannot last, and there is no basis on which it should be allowed to do so. It must be subjected, as we are said to be subject by al-Qaeda, to constant attack.

As my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) said, we should be operating in the realms of criminal law, and should move towards that as quickly as possible. When I asked my right hon. Friend the Home Secretary whether, if we work hard at expanding the capability of the criminal law, we will succeed in getting rid of part 4, he said, very clearly, no. We have no option but to accept that today—everyone agrees that there is an emergency and a threat. We cannot possibly demand that the measure ends now, so we must vote for it tonight. However, it is my right hon. Friend who will, as many people have said, carry the can if any of the detainees cause trouble if he lets them out or gives up the right to detain them. He will be the last person to be convinced, so we consultees—we are all consultees in the process—have a task to perform. We have to work to try to get him to change his mind about part 4.

All of us who are consulted should aim to ensure that the criminal law can achieve the successful prosecution of British or foreign nationals who are terrorists. There is no other way in which can we persuade the Home Secretary that we can do without part 4, and we must do so by letting the provision fall into disuse and using the criminal law more often. I accept the point made strongly by the right hon. Member for North-West Cambridgeshire (Sir Brian Mawhinney) that verifying intelligence is simultaneously a great difficulty in the procedure and an inadequate basis for evidence. However, we must seek to crystallise intelligence into evidence so that it can be scrutinised in the way in which courts usually scrutinise and verify the evidence—frankly, it is very similar to intelligence evidence—which they hear day in, day out about organised crime. That evidence comes from informants, convicted criminals and, sometimes, deep, dark parts of the underworld. It is uncertain in nature, but courts scrutinise it once it has been put into a statement or an oral form, and make up their mind about it.

We must do the same with intelligence. As more than one Member has said, there is a genuine need to challenge the current culture of intelligence secrecy, which goes beyond phone tapping. If one were to suggest to the intelligence services that they submit a

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statement to the court, they would say that it would work out who it was from, how they got it, who told them about it and so on. Like any culture, if left unchallenged, the assumptions of that culture of secrecy will become set in stone. I suspect that that is happening, and I shall return to the subject when I deal briefly with phone tapping.

More intelligence should be admitted in criminal trials. We should not forget the powers that are already available. The Criminal Justice Act 2003 allows the admission of hearsay. It allows first-hand evidence—"I saw it". However, it also allows second-hand evidence—"he told me he saw it"—third-hand evidence, "he told me she said she saw it", and written instead of oral evidence. If that is good enough for ordinary criminal trials, it is clearly good enough for terrorist trials, and is a way in which intelligence evidence can be admitted. The weight put on it is a matter for the court, but it is available and is a mechanism that should be tried.

Witness protection measures are sophisticated and go far and wide. There are, for example, devices that distort voices. I appeared in a major case of organised crime in which an informant gave evidence. He was produced from nowhere in the sense that he had been circling in a car before he came into court. He was dressed like a sort of Indian mystic—he was covered from head to foot in white clothing and wore a patently false beard. One could not therefore tell whether he was tall or short, fat or thin, or anything else about him. Despite all that, he gave evidence from behind a screen and left through a back door. However, he was worth bringing to court because he had an impact on the case. Witness protection measures, even as bizarre as those, are used in the ordinary courts and can be used in the instance that we are considering.

As the Newton committee recommends, surveillance, although expensive, can be much more intensive than it currently appears to be and can be admitted. More overseas courts admit more surveillance than we have historically ever done. Again, I suspect that the intelligence culture of deep, dark secrecy is responsible for that.

Hon. Members have made points about phone tapping, but we are under increasing pressure to change the rule. In an intervention, I mentioned a case in which I appeared shortly before being elected. Members of an alleged international drugs ring were telephoning about day-to-day arrangements for dealing with the consignment. The phone taps that were picked up at the Dutch end were admitted into the Old Bailey and those that were presumably picked up at the English end—no one can say whether there were any, but it would be nonsense if there were not—could not be used. Our European partners will not tolerate for much longer a position whereby they can give us evidence to help get rid of international crime but we neither use our own nor give it to them. Clearly, there is plenty of scope and the sooner the review produces a positive answer, the better. Again, I suspect that the security services have been unduly cautious for a long time.

There is a further problem about admitting such material. If a prosecution wants to use 20 minutes of the product of phone tapping, when a person's phone has been tapped for six months, it would be necessary, for fairness, to disclose the whole six months to the defence so that it can ascertain whether anything helps to

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exculpate the accused. Of course, that is enormously expensive, cumbersome and perhaps capable of more closely approaching a threat to the method of obtaining the material. However, I believe that there is scope for compromise, probably through an independent judge scrutinising the material. Again, it is a tactic that can be used.

There is therefore a rainbow of measures, some extant and some potential. They form a rainbow only in the sense of ultimately offering some light for detainees because they will facilitate bringing more of them to trial. I accept that the standard of proof that is currently used is high and we are therefore, at all stages, not far away from being able to try such people if only we are a little imaginative about criminal procedure. To try such people must be our aim, thereby reducing the need for the part 4 powers by removing the foreign nationals out of Belmarsh and into court and protecting us, through the courts, from the British national extremists, who, we are told, now constitute an equal threat.

We consultees must work with the Home Office ceaselessly and use our imagination to build on those and other possibilities, with the intention of shaving part 4 to the minimum and in the hope that we can entirely remove any need for it to survive.

I end on a note of uncertainty, which runs through my position on the matter. If we go through the process, work hard, smarten up the criminal justice system, put the part 4 detainees on trial but part 4 continues, we fail to convict them and they are acquitted, will they simply be detained again?

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