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David Davis (Haltemprice and Howden) (Con): I thank the Home Secretary for giving me advance sight of his statement, and more than that, for early notification of the substance of what he would say. I commend him for his welcome recognition of the primacy of law, and the concomitant seriousness with which he treated the judgment of the House of Lords. I also commend him for his efforts with the Governments of the countries from which the current Belmarsh detainees come. The claim from the Home Office that the current arrangements were only a prison with three walls always rang hollow when detainees had reason to fear execution on return to their home countries. I wish him good fortune with his undoubtedly difficult task on that front—it is obviously long overdue.

I also welcome the Home Secretary's announcement of a debate on the proper balance between liberty and security, which is central to the considerations before us today, and also long overdue. As I have said before, the task of the Home Secretary is not only the protection of life, as he describes it, but the protection of our way of life. It is a self-defeating exercise to sacrifice liberty in defence of liberty. Throughout our history, millions of British subjects have sacrificed their lives in defence of the nation's liberties, and it would be a sad paradox if we were to sacrifice a nation's liberty in defence of our own lives today.

From the perspective of those currently detained in Belmarsh and other foreign nationals, the proposal is clearly and undoubtedly an improvement. House arrest is better than imprisonment, even without any access to a garden, a phone, the internet, friends or relatives, which is effectively the state of detainee G today. The lower range of measures, down to tagging, only is clearly still better, and allows the Home Secretary to meet the House of Lords requirement for proportionality.
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More concerning, however, is the intention to extend the proposals to British subjects. Some of the most ancient rights of Britons are those of natural justice: the right to presumption of innocence; the right of a person to know the charge against him; and the right to see or hear the evidence brought. All those rights are absent under the SIAC—Special Immigration Appeals Commission—rules. That is why Ian MacDonald, the Government's special advocate who resigned before Christmas, described the rules as

It is undoubtedly a Kafkaesque process. Will the Home Secretary explain whether, and how, he will bring the process more in line with normal rules of British justice, especially as it will now apply to British citizens?

I understand why the Home Office likes to describe the procedure as a sort of anti-terrorist ASBO, as it does in this morning's press, but we should not kid ourselves—it is not. The upper end of the scale—house arrest—is administrative detention. It is public internment. We know that throughout history internment has generally backfired, because of the resentment that it creates, so unless the process is clearly just, the Home Secretary could find himself confining one known terrorist only to recruit for our enemies 10 unknown terrorists. Justice must be seen to be done, because the perception of injustice could completely destroy or reverse the effectiveness of the proposal.

One detailed aspect of the proposal that must be understood is whether the control orders will be time limited or open ended. There is a world of difference between indefinite detention and a time-limited control order. Will the Home Secretary explain in detail how he thinks those orders will be used?

Even those of us with strong civil libertarian instincts recognise that these have to be compromised occasionally in the interests of security. However, that should happen only after all the avenues within our normal systems of democracy and justice have been exhausted. So the legitimacy of the Home Secretary's proposals rests on his having tried every other normal legal option first.

Over the years, many people—not only one Committee—have recommended making more such terrorism cases capable of being brought to trial by the use of intercept evidence. The most recent example is the eminent report by Lord Newton. All those studies are at odds with the review described in the Home Secretary's statement.

I understand that there may be practical difficulties, but I ask the Home Secretary to revisit the issue, and consider whether the mechanism proposed by Lord Newton—specifically the use of an independent security-cleared examining judge, who collates the sensitive information, ensures that it is fair and presents it to the court, but who prevents defence lawyers from going on fishing expeditions—could be used more generally to allow sensitive intelligence information of all sorts to be brought before the court. We are virtually the only major country in the world that does not use intercept evidence in court. That must make it even more difficult to bring terrorist cases to trial, and as such, degrades both our safety and our system of justice.
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I repeat that I would be far more comfortable accepting the Government's proposals if I were convinced that every other legal avenue had been exhausted before we got there.

The Home Secretary, as I understand it, intends that he will report on the process of detention to Parliament through the Intelligence and Security Committee. That is obviously sensible. However, I also believe that there should be a regular report back on the Floor of the House. That, of course, would be less detailed, because it would be open—but I continue to believe that the House of Commons in open session is still the best defender of liberty and justice for British citizens.

The Opposition will look very carefully at the detail of the proposals when the measures are laid before the House. Clearly, this issue has to be resolved as soon as possible. But it is vital to get it right, and in doing so protect our system of justice.

We should remember the words of Benjamin Franklin:

It is the job of us all to try to get an outcome that preserves for our citizens both liberty and safety, and the Opposition will do all they can to achieve both those aims.

Mr. Clarke: I am grateful to the right hon. Gentleman, and I appreciate the approach that he has taken. It is the case, both in the Intelligence and Security Committee and elsewhere, that there is a great deal of cross-party agreement about how to approach these issues.

I was delighted that the right hon. Gentleman welcomed my proposals for a substantial debate on these matters. In due course I will talk to him and his colleagues about how we might best take that forward. I am happy that there should be a regular report back on the Floor of the House, and there are already some vehicles for that.

I would observe that when we have that debate it is important to recognise that the threats that we face are very different from the threats that Benjamin Franklin was trying to address.

David Davis: He was a revolutionary.

Mr. Clarke: He was indeed a revolutionary in various respects, though rather an eccentric revolutionary. I think that I am right in saying that he used to stand naked in front of his windows to expose himself to the community as a whole. I am not sure that there is anybody doing that at the moment. [Interruption.] I do not recommend it.

I wish to make it clear that the Home Office was not involved in any briefing on these proposals. It has been at pains to come first to the House on these matters. A phrase such as "anti-terrorist ASBO" is not one with which I would agree; I do not think that it is right in the context of the process.

I agree with the right hon. Gentleman's comments on proportionality. He raises serious points on UK subjects but I put it to him—he knows that this is the case—that
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we have to address a reality, which is that there are UK subjects ready to use action to destroy the society of which we are a part. It is my obligation—and I think it is one shared by the right hon. Gentleman—to deal with that.

In terms of what the right hon. Gentleman says about going as far as we can to pursue normal rules of justice, to explore all avenues and to pursue all options, I agree with him. As I have said, prosecution in the courts is the best way to address these matters. That is the right way to proceed. We should not—I know that he does not—hide from the fact that all avenues having been explored, and so on, there are still issues that arise, including from some UK citizens. They are very small in number but they have to be addressed and they cannot be ignored.

On procedure, as I said in my statement, there will be independent judicial scrutiny involving the hearing of evidence in open and closed session against the imposition of any order or any subsequent variation of an order. I envisage the use of special advocates in the closed sessions. There will be a mechanism for reviewing and modifying the conditions of any order as circumstances change. The new mechanism will itself be subject to independent judicial scrutiny. Individuals will be served the order and will be able to challenge both it and the conditions that it imposes. The subject of the order will be told as much as possible, commensurate with the need to safeguard sensitive intelligence material. Further details will be in the Bill that I shall publish.

In response to the right hon. Gentleman's point about whether control orders will be indefinite in operation, I say that the order can be varied. The controls can be changed if the threat that the individual poses changes or diminishes over time. The orders can be challenged and they will be regularly reviewed, as I have indicated. On intercept evidence, I have set out the reasons clearly why I have taken the view that I have. Principally, it would not significantly increase our ability to secure convictions in this area. Technology is changing so rapidly that we should take account of that process. That said, I will continue to keep the situation under review, and be informed by the right hon. Gentleman and other Members as we consider these questions.

I am delighted that the official Opposition take a broadly constructive approach on these matters. I urge the right hon. Gentleman, when he considers the difficult question of the balance of liberty and security, even for UK subjects, to recognise the obligations that we all have to put security at the centre of our preoccupations.

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