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Lady Hermon (North Down) (UUP): Will the Secretary of State kindly clarify part of his statement that jumped off the page as I read it? He made it clear that he will progress the memorandums of understanding with various countries with energy and assured the House that Baroness Symons has received a positive response to the discussions that she has had. If that is the case and the Secretary of State is successful, as we hope that he will be, does that mean that in the long term deportation of foreign nationals will take place before control orders are introduced? Could we therefore end up with only UK nationals being subject to control orders?

Mr. Clarke: The hon. Lady is right that that is possible. It is critical that the House, the country and the legal system acknowledge that terrorism is an international activity that poses an international threat. It is not something which we can deal with simply within our own borders, so it is important that I seek to find agreements with other countries about how we deal with these things. There are agreements between other
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countries to deal with some of these issues and I believe that we should try to take that forward. Does that mean that, logically, one could reach the point where all foreign nationals were deported to their home countries and control orders would apply only to UK nationals? The answer to that question is yes. Frankly, however, I do not think that that is likely. It would take a considerable time to reach a point where deportation was the route for all foreign nationals. However, even if the logical outcome were fulfilled, I would still say to the House, as I tried to highlight in my statement, that we need a power to deal with UK citizens who wish to bring about the destruction of our society in various ways and whom, for reasons that we have discussed, we cannot prosecute.

Mr. Robert Marshall-Andrews (Medway) (Lab): The Home Secretary is right to identify the fact that this will represent the most substantial increase in the state's executive powers over the citizen for 300 years. First, does he acknowledge as a matter of principle, liberty and law that executive detention that is indefinite in nature and without trial is precisely that, whether in Belmarsh or a bungalow? Secondly, will he tell us whether independent judicial scrutiny will be undertaken by the High Court through judicial review or by another body?

Mr. Clarke: I think that I have already addressed the second point made by my hon. and learned Friend in my response to the right hon. Member for Haltemprice and Howden (David Davis), but I will repeat it. Independent judicial scrutiny will involve 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 and there will be a mechanism for reviewing and modifying the conditions of any order as circumstances change. That new mechanism will be subject to independent judicial scrutiny itself. Individuals will be served an order and can challenge 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. I think that that deals with the point made by hon. and learned Friend, but I am ready to consider any other points that he and other Members may wish to make, both in Committee and in the House.

On the 300-year history, I was fairly up front in saying in my statement that there was a real issue here that needs to be tackled. In the 300-year history that we are talking about, there have rarely been threats of the type and scale that we have to face in these circumstances. That is why I have proposed the steps that I set out. We will have strong debate about these matters and there will be people who think that, even under the threat that we face, such powers are unacceptable. I understand that, but I consider it my responsibility as Home Secretary to do whatever I can to ensure the security of the whole of our society and what it stands for, and that is what I intend to do.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The right hon. Gentleman will understand that the control orders, especially house detention, are capable of destroying the lives and livelihoods of individuals who have been convicted of no offence. Does
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he understand that many of us are wholly opposed to such a proposal and will vigorously oppose it wherever it is made? I hope it will be made on the Floor of the House and that the Bill will be taken exclusively on the Floor of the House. I also deplore the fact that he continues to hold in detention the 12 detainees whose detention has been pronounced unlawful by the highest court of appeal in the country.

Mr. Clarke: I hear the right hon. and learned Gentleman's deploration, but I do not accept it. Those people have been the subject of testimony by serious concerned organisations that understand what they are about and we are not prepared to take the risk of such people at liberty destroying our society. I am very clear about that. He speaks about conviction in this context, and I note that he is wholly opposed to the proposals. I know his long history on these matters, and I am sure he will make his arguments with his usual eloquence. However, as he comes from a legal family of such distinction, I put it to him that the issues that I am talking about—that is, the relationship between security and liberty—are central issues that the judiciary and the whole of the legal process must address as much as anybody else, which is why I want a national debate. It is essential that the issues are addressed, because if he does not understand the threat that is posed to every right for which he and his family have fought over generations, he is missing the central point of the entire debate.

Donald Anderson (Swansea, East) (Lab): The positive response of those who speak on behalf of the Opposition parties indicates a realistic recognition both of the balance achieved by my right hon. Friend and of the nature of the threat at a time of biological weapons, chemical weapons, dirty bombs and so on. Can my right hon. Friend say more about the other part of the twin-track approach—that is, the relationship with countries from which those who are considered a significant threat come? What are the minimum and specific assurances that he will seek from those Governments?

Mr. Clarke: I appreciate the general support given by my right hon. Friend. His own experience in the foreign service leads him to speak with great authority on these matters. There are two aspects to his question. First, it is important that in any country to which deportation is considered, the individual does not face torture, the threat of death and so on—the various issues that are rightly raised in the European convention on human rights. Those are questions that we will raise explicitly. It is also important—this is the second part of the second track, so to speak—to recognise that those Governments themselves are sometimes under threat from the same kind of challenges that we have to deal with, and it is important for us to talk to them about how we can deal with these matters. But the fundamental issue is the one that he raises, and it is the reason why I put this in the context of the European convention on human rights at the outset. Obviously the individuals, the courts looking into the situation and others will want to be assured that should those individuals be removed to those countries, they are not
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at risk of the kind of treatment banned under international law. That will be the bottom line of our consideration of these matters.

Mr. Edward Garnier (Harborough) (Con): The Home Secretary will understand that, as a matter of principle, it is no less offensive to detain a man in his house than it is to detain him in prison by virtue of a ministerial edict. Would it not be safer and a better course for the Home Secretary to apply to the courts to have these people detained, on the basis of evidence that may be withheld from the public and which may even be withheld from the respondent to the application? The Home Secretary ought surely to make his application to the courts, rather than allow his ministerial edicts to be reviewed after the event by the courts.

Mr. Clarke: The hon. and learned Gentleman is right that that is a possible alternative way of going about it, but I believe that were I to surrender the responsibility of the Executive to the courts to take decisions on these matters, it would in the most real sense be a betrayal of the responsibility that I as Home Secretary and any future holder of this office bear for the security of the state. That responsibility must lie, and in my opinion rightly, with the Executive and in this case with the Home Secretary. To pretend that these matters can be dealt with at one remove by the judiciary on the basis of different issues is wrong. It is right, as the hon. and learned Gentleman acknowledged in his question, that the decisions that I or others make should be subject to review by the judiciary as to whether they have been correctly carried through. That is entirely proper. For me to say that I bear no responsibility for the matter and pass it on to someone else would be wrong.

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