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Simon Hughes: The countries on mainland Europe that use such a system do so because they have an inquisitorial tradition, where it is acceptable to have an examination by somebody competent to filter out the evidence that can go to stage two. Such a change might require us to alter our mindset and do some jobs not adversarially but by an inquisition. I and my colleagues are up for that, because it preserves a proper legal process and ensures that sources are protected where necessary.

David Davis: The hon. Gentleman is absolutely right. He probably understands how big a jump it is for me to go to a continental inquisitorial system from the normal adversarial systems that I prefer. The simple fact is that the judge, who will presumably be a specialist in the area, would be duty-bound by the requirement not only to protect absolutely the lives and technical sources of the security services, but to ensure that the defence is not prejudiced in the evidence presented to the court in summary or in total. That seems to me to be a perfectly acceptable system. It will be of a higher quality, and in the long run more effective than our present system, and it will be entirely defensible to the communities that might otherwise be radicalised by inappropriate measures.

Mr. Boswell: Does my right hon. Friend agree that in the scenario he paints involving the single informer who might have a prejudicial interest in the person in question, it would be unacceptable, under the system that the Government propose, for Ministers to conclude that that person was a threat if that was the sheer weight of the evidence available to them? Unless there is some way to test the accusation and to do so objectively, it is not acceptable to put people in prison or to some other inconvenience simply by administrative fiat.

David Davis: My hon. Friend puts the argument better than I could. We are, in effect, discussing sending someone down on the uncorroborated say-so of a single informant. I defer to my right hon. and learned Friend the Member for Sleaford and North Hykeham, but I spent about nine of 13 years dealing with the agencies involved in this issue, and they were very clear that the people they dealt with did not always demonstrate the most saintly calibre in providing information. The
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agencies had to corroborate the information that they gave—a matter with which the House has become all too familiar in the past year.

Ian Lucas (Wrexham) (Lab): The right hon. Gentleman correctly identifies one of the great difficulties: the inability to establish what information can be released to the defence so that the accused is aware of the allegations being made against him. What is not clear to me is how the process that he describes would enable more information to be released to the defence than would be possible under the Government's proposed system.

David Davis: The process would allow more information to be released to the court—not to the defence—because, to be frank, it would not allow a fishing expedition to be conducted into the totality of the intelligence agencies' data. As things stand, a defence lawyer would be able to say, reasonably, "We have been given only half the evidence. Now, I need to see the other half." Our aim is to ensure that the balance is maintained.

The second difficult case that I wish to put relates to the Liberal Democrats' proposals for milder methods—using tagging and other sorts of control order. I gave the matter extensive thought in the weekend following the Home Secretary's statement. I started from the presumption that whichever standard of proof was applied to the Government's proposal of house arrest would be applied to control orders—in effect, suspicion. That is a concession in terms of our law and our fundamental liberties.

I then thought what advantage would arise from the Liberal Democrats' proposed method. Tagging is clearly a valuable technique in dealing with criminals. I suspect that the Minister for Crime Reduction, Policing and Community Safety knows more than most about it. Criminals tend to come from a community and to have family in the country, so if they break their tag, they will be found again at some point and go to jail. However, the first thing that a terrorist whose only connections in this country are those of a terrorist network will do when he or she is tagged is cut the tag and vanish. A proposal that appears to provide greater security but, in fact, does not, and which sacrifices normal standards of proof as well, is dangerous.

Mr. Beith: The right hon. Gentleman gives me the opportunity to make it clear that the Newton committee did not recommend house arrest. It recommended movement restrictions. Such restrictions have to have purposes, primary among which would be to prevent a person who is suspected of associating with terrorists from doing so or furthering their objectives. A combination of restricting a person to a specific locality at certain times, excluding him from certain types of communication and tagging him to determine where he is would provide a basis on which a measure of liberty could be restored to that person, but would also give us some means of knowing that he is not resuming associations of which there is some reasonable evidence.

David Davis: I accept that that was the argument made in the Newton report, but it is the one aspect of that report by which I was not persuaded, mainly
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because it seemed that there was the ability to escape at some point. That is the difficulty. We cannot take such a risk with someone who presents a lethal threat to the community. I grant that there is a trade-off with regard to allowing more liberty, but against the standards of proof that that are being talked about, I would not make that trade-off. That is my argument. I say to the right hon. Gentleman that I found the Newton report a formidable document and was unpersuaded only by that one small component. That is why, after some deliberation, my party has come to the conclusion that has been set out today.

Mr. Oaten: Just to be clear, the right hon. Gentleman's position is black and white: the person is either in jail or they are released.

David Davis: In essence, that is right. With regard to the prospect of a terrorist offence, we concluded that the terrorist must either be under control or not. I do not think that the proposal that the hon. Gentleman made, which I accept is new, is one that we can accept.

The issue comes back to the sacrifice that has to be made, which is a sacrifice of standards of proof and the presumption of innocence, which I think are fundamental—in other words, the basic standards of liberty that we determine here. Incidentally, I am not at all sure where the requirements for the standards of proof and control orders would fit into the human rights issues raised by the hon. Member for Southwark, North and Bermondsey (Simon Hughes).

Simon Hughes: First, I am told—I have not done the research—by somebody who I know has talked to members of the right hon. Gentleman's party, Professor John Spencer in Cambridge, that in other European jurisdictions, there are control orders that have been found to be European convention-compliant. Secondly, like my hon. Friend the Member for Winchester (Mr. Oaten), I ask the right hon. Gentleman to keep the door open, to use a phrase that the Home Secretary used. If we are going to get agreement across parties, we need to be prepared not to close doors at this stage of the debate.

David Davis: I accept that and hope that the hon. Gentleman recognises that I have tried to speak in precisely that tenor. As he refers to keeping doors open, let me raise with him a serious problem that arose from the comments made by the hon. Member for Winchester. I was not going to deal with the matter, but I shall do so now. The Liberal Democrats are saying that they are going to vote against continuation of the part 4 order. That gives us one month to come to a conclusion on an issue that is undoubtedly one of the most difficult that the House has faced for some years. I am entirely open-minded in this matter. I have some very strong views about the principles, but we come to the matter with an open mind to try to get some sort of conclusion in the national interest. I have tried to lay out precisely why I have serious concerns, and I say to the Liberal Democrats that I have not come to a conclusion about what we are going to do on part 4, but I would not
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want to impose an artificial deadline on a decision about the liberty and safety of the British public on terms such as those that have been mentioned.

Mr. Oaten rose—

David Davis: I shall give way, since I have taken the hon. Gentleman on directly.

Mr. Oaten: As we are all trying to be helpful to each other, let me be helpful to the right hon. Gentleman. If we ran out of time and could not reach an alternative before the derogation was required, one of the things on which we would wish to engage with the Government would be seeking not an annual derogation, but some sort of ring-fenced period for the derogation, on the understanding that we would seek an agreement before the derogation was allowed to continue.

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