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Mr. Mark Oaten (Winchester) (LD): I thank the Home Secretary for the advance notice that he gave of his statement, and particularly for the constructive approach that he has taken on this issue. For three years the Government have appeared to be dragging their feet, but we now have the sense that the new Home Secretary, in particular, is genuine about finding a way forward. Liberal Democrats will give serious consideration to the measures proposed, especially to the control orders that the right hon. Gentleman is suggesting. Will he confirm that the standard of proof required for those orders will be very high? How many control orders does he envisage being issued? Is it likely that there will be more than the 17 cases of detainees now being held?
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The idea of holding individuals in house detention is another solution that, again, we shall examine. Is the right hon. Gentleman really looking at ways in which that could be done without requiring a derogation from our human right commitments?

I am disappointed that the Home Secretary has ruled out the use of intercept communications in securing trials. I understand that they may not be helpful in the case of the current detainees, but does he acknowledge that in future cases information gained from phone tapping could be relevant, and could be used to obtain a trial? I simply ask that the right hon. Gentleman keep the door open on this issue.

I remain concerned about the idea of returning detainees to host countries. Does the Home Secretary acknowledge that any agreement to do that would require strong reassurances on human rights from those countries, and that detainees should be able to challenge any arrangement if they felt that the process was unsafe?

We shall be very constructive about legislation introduced on this issue. We are aware that the March deadline for renewing the derogation is looming. Our priority will be to balance the security of this country with the need to maintain strong principles of justice. Based on what I have heard today, I am encouraged in the belief that we can achieve cross-party support.

Mr. Clarke: I thank the hon. Gentleman for the general approach that he has taken, and for the constructive way in which he is ready to consider these matters. I acknowledge with him that it will be necessary to scrutinise the proposed legislation in detail, and I look forward to constructive proposals, should they come from the Liberal Democrats.

The standard of proof for the orders will be very high, as it correctly should be. There is nothing that I can constructively say to the House about numbers. We have no ambition to have significantly more control orders than the current number of cases. The whole point is that we cannot anticipate what threat will arise. The way to proceed is through the reporting procedures of various kinds that I have suggested, so that the House can consider the position and come to a view on the use of the orders once they are established.

On the derogation question, we are looking into all aspects of control orders in the context of the need to derogate. As I said in my statement, it is possible that we will need to seek to derogate from the European convention. Obviously that is a matter that we will take extremely seriously, and it would be put forward on the basis that the House considered appropriate at the time. But at the end of the day, my first responsibility is security, as I said earlier, and that is the approach that I will take.

On intercept evidence, I will keep that matter under review, but the fact is that surveillance sources for particular decisions include intercepts and a wide range of other surveillance measures that would not be addressed by the measure and could put people at risk. That is why the review concluded that allowing intercept evidence would not solve the problem in a significant number of cases.

On host countries, I agree with the hon. Gentleman about the need for strong assurances and we would take that issue into account in any memorandum of
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understanding. At the end of the day, it is for the courts to make their judgment on the issues that arise. I am glad that he wishes to balance security and justice. These are difficult questions and I hope that he will participate in active public debate about them because, for the sake of all parties in the House, it is important that we achieve the correct balance.

Mr. John Denham (Southampton, Itchen) (Lab): Will my right hon. Friend clarify the specific point about whether the orders that, at the extreme, could involve house arrest, would be issued for an indefinite period or whether they would be statutory and subject to review? He is right, I am afraid, to acknowledge that, in future, the role played by British citizens in this type of terrorism may become more significant than has been the case in the past, but the use of powers against British citizens will attract more public concern and scrutiny than their use against foreign nationals. Will he look carefully at whether he needs a more structured process of advice before issuing an order so that he is not simply dependent on the advice of the security services? There could be some independent examination of whether a case is prosecutable or an independent assertion that some measures are necessary, even though an individual cannot be prosecuted.

Mr. Clarke: I am grateful for my right hon. Friend's comments. On the timing of the orders, I want to emphasise that the orders can be varied. The controls can be changed if the threat that the individual poses changes or diminishes over time. They can be challenged and they will be reviewed regularly. That goes a significant way towards dealing with the concerns that the Home Affairs Committee may have. On the point about UK nationals, my right hon. Friend is correct and his Committee has played an important role in trying to address these issues in its debates. I hope that in the debate that I suggested was necessary, it will play the role that it has played in the past and stimulate substantive discussion. I am extremely grateful that my right hon. Friend, who has particular specialist knowledge and experience, has acknowledged that it is necessary to look at powers to deal with UK nationals, and not simply deal with the points made by the Law Lords in their judgment, given that there are issues of serious risk. It is a difficult question, but I very much appreciate his Committee's understanding approach.

Mr. Francis Maude (Horsham) (Con): No one will need to be persuaded that the use of powers such as the existing ones and those that the right hon. Gentleman proposes to introduce will make Britain a safer place. That almost goes without saying. However, does he accept—I think that he does—that the price we pay for living in a free country is the fact that we are more vulnerable? We cannot make an open or free society completely safe. While the powers that he proposes to introduce to replace part 4 of the Anti-terrorism, Crime and Security Act are less draconian than the existing powers, he is extending their scope. It is very important that such powers, which extend beyond our usual conception of the rule of law, should not become part of the fabric of our society.
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Mr. Clarke: I accept the right hon. Gentleman's general point, and I have tried to address it. However, there is a serious point to be made. He is right to raise the question of safety and the balance between safety and liberty, but some of the threats that we are talking about, whether a twin towers-style disaster or an attack on an underground system or something else, are catastrophic, and thus different in nature from other safety issues that we address and take into the balance. It is extremely important that we recognise the threat that we may be under in those circumstances and deal with issues of reality when considering what steps to take.

Ross Cranston (Dudley, North) (Lab): I congratulate my right hon. Friend on the expedition with which he has acted and the inspired way in which he has responded to the very difficult and challenging judgement by the House of Lords. For what it is worth, I accept his view and that of his predecessor, my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), that there is a real threat that must be addressed. However, may I ask him about the prosecution avenue? Can he give the House an assurance that that will always be fully explored? Perhaps we need to revisit terrorism legislation to explore the width of some of those offences.

Mr. Clarke: I appreciate my hon. and learned Friend's general support. His knowledge and expertise in these areas is well known and I appreciate his approach. On his specific point about exploring the prosecution process and ensuring that we can pursue it at all levels, I can provide the assurance that he is seeking. I said in my statement that prosecution must always be the principal way of acting and it is certainly the best and most effective way of doing so. That is what we will pursue, which is why I am ready to accept his advice and look carefully at ways in which we can expedite that goal. However, I acknowledge, as I did in my statement, that there will still be cases where prosecution is not possible for various reasons, which is why I have proposed the regime that I set out today.

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