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Vera Baird: Although Ian Macdonald resigned, that was surely triggered by the House of Lords judgment. I have known him for many years, and he is a man of the highest calibre. He served in his role for more than two years, feeling, as he made clear, that he had been doing something helpful and that he had been able to assist the defendants, which shows that SIAC is not a hopeless and futile pursuit but that it can in fact play an important role. That is not something that should be diminished.

David Davis: The hon. and learned Lady makes an important point. I think that I am right in saying that Ian Macdonald said when he resigned that he had joined up because he thought he could help by doing a good job. The circumstances that he describes sound like a slow process of becoming more and more disaffected with the operation of the procedures, which, as she suggests, precipitated his resignation after the House of Lords decision. In fact, he was not the only one who felt that way: at least one other resigned and a number of others considered resigning, and for good reason.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): My right hon. Friend knows that I am against the Government's proposals in principle. Will he also address the Minister's statement to the effect that there will be rigorous legal supervision of the control order process? He will bear in mind the fact that she was unable to answer the question that the hon. and learned Member for Medway (Mr. Marshall-Andrews) asked about whether the judicial review would extend to facts or only to law. She said that she had not made up her mind. Until we know what her mind is on that matter, she is in no position to say that the judicial supervision will be rigorous.

David Davis: I start further back than my right hon. and learned Friend. First, I do not like the idea of the Executive taking such decisions. Even under the current procedure, people have been in prison for three years, and perhaps longer in one case—we do not know—so I do not like it from that point of view. I do not like the state taking those decisions into its own hands. As I am about to explain, I also think that the standards applied
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on questions not only of law but of fact are very important. That is where the primary criticism of SIAC lies, in my judgment.

After all, the purpose of the Newton committee, which was set up at the beginning of the process when the 2001 Act first came into effect, was to assess how the legislation was working and to ensure that the House received a report on its operation. At the beginning, as the hon. and learned Lady made clear in her intervention, many people did not quite know how the system would work, but they wanted to try to make it work. They were very good, high-quality people, but they have reached the conclusion, as Newton did, that the system is not working well.

Let us bear in mind the fact that the Newton committee included several ex-Cabinet Ministers and ex-Ministers who had responsibility for security in Northern Ireland—not people who would normally be viewed as a pushover for the civil liberties lobby. They reached a series of conclusions and a number of principled objections to the operation of detention established by the 2001 Act. Essentially, the committee noted that the suspects faced no specific charge and were not presented with, and given the opportunity to refute, all the evidence against them. It reached the judgment that that increases the risk of a miscarriage of justice—the point that came up in the Liberal spokesman's comments.

The report also suggested that that risk is compounded by certain features of the certification and adjudication process. For example—in my view, this is almost the most important thing at the centre of the issue—the standard of proof involved in the SIAC procedure is "reasonable belief and suspicion". That is an incredibly low standard of proof on which to undertake the incarceration, certainly of a citizen of this country, but frankly, of anyone. Let us understand that point. We talk about the terrorist destroying lives, but incarceration is a way of destroying a life, too. Such people cannot work or do anything. Even if people are incarcerated in their own homes, it still involves the destruction of the life that they have a right to expect if they are innocent.

In addition, the current SIAC rules do not oblige the Home Secretary to reveal all the material that could help the suspect, even in summary form. Sometimes, the vast majority of the details of a case are closed, so the open case might be an unreliable indication of the basis of the closed case. The report also noted that detention under part 4 can be for an indefinite period—one of the more Kafkaesque aspects of the current system.

The problem with the Minister's inability to reply to the hon. and learned Member for Medway is that, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) points out, we must assume for the moment at least that the same approaches, criticisms and concerns will apply to the review process that will follow on from Executive detention or control orders in the looser sense. In my view, that is, frankly, unacceptable. It is not consistent with the long-term liberties of British subjects, and as I have said already, it may be counter-productive.
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Vera Baird: I have heard all the right hon. Gentleman's reservations about SIAC, but if the same system carries on, surely the answer to the question asked by my hon. and learned Friend the Member for Medway is yes, because the new court to replace SIAC will, as SIAC does, review the facts as well as the law.

David Davis: The hon. and learned Lady is right, but part of the problem is that the facts will be reviewed using a lower standard of proof. Additionally, in some instances, much of the case might be the secret case rather than the public case. The procedure is poor.

Mr. Allen: Will the right hon. Gentleman give way?

David Davis: In a moment, because the hon. and learned Lady raised a serious and important question. The procedure is poor for a country that has long stood by the presumption of innocence, the right of people to know the charge and evidence against them, and to be able to refute it beyond reasonable doubt.

Mr. Allen: People of good will on both sides of the House are trying to help the Government to reconcile the awful dilemma between terrorist threats and attacks on civil liberties. Is not one way forward the fact that few cases have resulted in people being incarcerated in Belmarsh? There have not been several hundred cases, but instead only a relatively small number, so surely that gives us more leeway to use procedural sophistication to try to overcome the dilemma.

David Davis: I do not think that it does. Obviously it is better to have few cases rather than many, but even one case of injustice is sufficient to warrant the serious attention of the House. It takes only one case of injustice to act as a recruiting sergeant, as I said earlier. That is why I am worried and why I want to outline what I believe is the right procedure for the Government to pursue, which I hope will meet the requirements for both national security and our liberties.

Mr. Oaten: Is not the other problem with the point made by the hon. Member for Nottingham, North (Mr. Allen) that although the Home Secretary initially said that he thought that control orders would rarely be handed out, he gave media interviews in which he said that they might have to be handed out to relatives, friends and associates? We might be dealing not with a limited number of control orders, but with a large number.

David Davis: That is true. The simple fact of the matter is that the House could not pass a law on the presumption that it would apply to only one or two people. It must use the presumption that a law will be used to its maximum. If we look back at the case that the hon. Gentleman raised, I recall that the evidence had not changed but was found to be too weak to sustain the case against the individual. It is implicit in that that a person was locked up wrongly for three years. If only one person is locked up wrongly, let alone hundreds, it is too many.

The Newton committee made several proposals, two of which stand out in the context of today's debate as offering the Government a way forward. It recommends developing a body of counter-terrorist law that is
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specific to the problem that we face, but capable of being enforced without compromising our criminal justice system. I agree with that, and the Liberal Democrats' proposal was in part a development of it. However, I got the impression that the structure could be wider than that, and if we hear from the right hon. Member for Berwick-upon-Tweed (Mr. Beith), a member of the Newton committee, he might clarify that point. I thought that the committee had in mind a complete body of law applying to terrorist offences that would be part of the criminal law, but separate from it. For example, when the American authorities had trouble securing effective prosecutions against gangsterism and racketeering in north America, they introduced the RICO—Racketeer Influenced and Corrupt Organisations—Act. Perhaps such an approach should be considered for terrorist offences.

The most important suggestion made by the Newton committee was the proposal to render terrorist suspects capable of being brought to trial under the normal British system of justice. It suggested that intercept evidence should be allowed in court, and proposed— I thought that this was the most important aspect—that an investigating judge who was different from the trial judge should sift the sensitive evidence.

The presumption so far seems to have been that such evidence would be only intercept evidence, but the proposal was for assessing and checking sensitive evidence—intercept and all other intelligence-based evidence—before presenting it to the court in a way that protected the intelligence source, human or technical, and at the same time protected the rights of the defendant.

The Minister spoke about public interest immunity certificates. I am not a fan of them. When I have been asked to sign a certificate, I have refused because I have taken the view that they were being used to avoid embarrassment for the Department concerned rather than to pursue justice. Given the Minister's concern about PII certificates and the right of a judge to overrule them, that is the area where the Government's focus should be sharpest, because it is where we have the greatest opportunity for advancing the case for the possibility of prosecuting terrorists while at the same time protecting our services.

I talked privately to the Home Secretary about the matter and, as far as I can without giving away any confidences, I will replicate that conversation. The Home Secretary said, as the Minister has said, that it may not even be primarily intercept evidence that is involved in tracking down suspected terrorists and determining who they are. Let me put the most difficult case and see how we can pursue it under the Newton rules. Let us assume that the data are not intercept data but from an informer whose life might be at risk in a terrorist organisation and who is so nervous that he will not even meet the investigating judge to be interviewed. What will happen to that person if they are not put under house arrest?

The first thing that we must understand is that if the person concerned is a threat to the state and to our citizens, they will be under the most intensive surveillance—what the agencies delicately call technical attack: bugging, video surveillance, human surveillance, intercepts of mobile, landline and satellite telephones,
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and of e-mails and bank accounts, and the tracking of vehicles. There is a vast range of facilities available to the security services.

If at the end of that process there is no evidence, we are talking about locking somebody up as a result of an uncorroborated comment from an informer who might be an enemy, might be in political opposition to the person, might have been bribed or might merely hate the person. Either one can develop the evidence and determine that the person is a terrorist or one cannot. Given the intensive nature of the surveillance that will be ranged against somebody who is a serious threat to the state, it is untenable that a case could not be built even if the original data that allowed the individual to be targeted were not used.

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