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Mr. Allen: My hon. Friend has been very generous in giving way a second time. Was he as surprised as I was to hear from Opposition Front Benchers the implication that none of the people in Belmarsh should have been detained, rather than a suggestion that there should have been greater democratic safeguards or a further judicial or parliamentary review, which some of us would be happy to see? I am sure that the hon. Member for Newark (Patrick Mercer) will jump to his feet if I am wrong in that assumption, but I got the strong impression that they think that all those people should be let out under some free market justice system to do what they may have intended to do.

Mr. Harris: I get the feeling that the hon. Member for Newark may be about to intervene. The Liberal Democrats challenged the right hon. Member for Haltemprice and Howden during his peroration on whether it should be jail or nothing, and he agreed on that. That leads me to the inevitable conclusion that under a Conservative Government the legislation that all those Members voted for in December 2001 would be scrapped and all the people in Belmarsh,
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or those who might subsequently be held under house arrest, would be allowed to go free because the threshold of acceptable evidence that they say legal process demands had not been met.

Patrick Mercer: I am most grateful to the hon. Gentleman for his generosity in giving way. My right hon. Friend the Member for Haltemprice and Howden was making the point that, above and beyond everything else, it must be clear to the terrorist that our values remain constant and proper, no matter what threat is thrown at us If that means that we have to examine due process and the constitution as it stands, and if it means that those held without charge who cannot logically be brought to court have to be released, so be it. If we do not do that, we give away one of the fundamental freedoms that terrorists are trying to assault.

Mr. Harris: I am sure that the many dozens of people watching the debate live on television will reach their own conclusions based on what the hon. Gentleman just said.

I want to address the issue of wire tap or intercept evidence. I was extremely concerned when the Government announced last year that they were considering the possibility of allowing wire tap evidence in court. The security services were extremely concerned that a crucial source of counter-terrorist information would dry up if wire tap evidence were permissible in court. The right hon. Member for Haltemprice and Howden legitimately pointed out that many other countries, including some of our closest allies, allow intercept evidence in court.

Let us look at the American example. In many states in America where wire tap is allowed, that source of information has all but dried up because criminals—members of the mafia and terrorists—understand that things that they say on the telephone will inevitably be used against them in court, and are extremely careful not to say anything on the telephone. That is exactly why, I am glad to say, the Government have been very reluctant to conclude that the law should change.

Sir Robert Smith (West Aberdeenshire and Kincardine) (LD): Had the current legislation continued, as the hon. Gentleman wishes that the Lords had allowed, would not such people say to themselves, "What I say on the wire tap could be used to hold me in Belmarsh"? Surely whether it is used in court, or as part of a wider net to capture them, they will still know, or assume, that they are being tapped.

Mr. Harris: One of the most unhelpful aspects of the wire tap evidence debate is that it has become so high-profile that what the hon. Gentleman says is probably half right. I would have preferred it if this debate about wire tap intercept evidence had a lower profile. I remain firmly of the belief, however, as do the security services, that admitting that type of evidence in court will do nothing to increase the number of convictions, and will result in information that the security services currently use to avoid terrorist atrocities no longer being available. That is a very important point. I firmly believe
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that terrorist attacks of the order of Madrid, Istanbul, Bali or even 11 September in New York and Washington have already been avoided in this country thanks to the measures introduced in the 2001 Act. I believe that all the 12 people in Belmarsh were involved in conspiring in some kind of terrorist activity, and at least some of them would by now have carried out attacks on this country.

Given that wire tap evidence is not admissible—and should not be admissible in my view—what should the Home Secretary do when confronted with evidence that a particular individual poses a genuine threat to this country? Should he say, "We don't have enough evidence to convict him in court, so let him go free"? Then, 12 months later, when we have an attack on the London underground or anywhere in the country, the Home Secretary could turn around and say, "Well, it could have been worse. We could have locked him up without trial." That seems to be the position of some Opposition Members, and people who are paying attention to this debate will find that incredible.

The people we are facing—the terrorists who hate our country and culture so much—are willing to risk everything: their possessions, their friends, their family, their lives. It is quite acceptable, and incumbent on us, to realise that in return we should accept a sacrifice. If that sacrifice compromises the level of civil liberties that we enjoy, that is what must happen. The Government are sometimes guilty of claiming that these measures do not represent any kind of compromise on our civil liberties. We must be honest and say that they do. That is what happens when we are in a fight against this kind of terrorism—we compromise our civil liberties, because the alternative does not bear thinking about. There is no point claiming that we have the same civil liberties today as we did three years ago, and neither should we have.

The hon. Member for Winchester said that the Government were given leeway for three years, following the passage of the 2001 Act. The mood to give the Government leeway, however—I presume that he means the derogation from the European convention—has disappeared. He should admit that the reason that that mood has disappeared—I agree that it has—is that we have not suffered that kind of terrorist atrocity in the past three years. Some, such as the New Statesman last week—a magazine to which I am ashamed to be a subscriber—argue that because there has been no terrorist attack on Britain in the past three years, the threat does not exist and we should not bother with any kind of framework for preventing terrorism. The fact that there has not been a successful attack on British soil does not mean that the threat does not exist—it means that the security services have been successful in preventing an attack. No one looking at the events of 9/11, Madrid, Bali and Istanbul could conclude that there is not a threat. That does not make sense. Instead of assuming that a threat does not exist—my comments are not directed at the hon. Member for Winchester—the editor of the New Statesman should run a feature next week paying tribute to the work of the security services, which have saved God knows how many lives as a result of their intelligence work.

In conclusion, the right hon. Member for Haltemprice and Howden repeated something that is often said in this debate. He said that by compromising our civil liberties we are giving some kind of victory to the terrorists—that
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changing our way of life and giving up some of our freedoms is a victory for terrorism. No, it is not. [Interruption.] I am not speaking on behalf of the Home Secretary—I am expressing my own opinion. There would be a victory for terrorism if a massive bomb went off in a crowded location in one of our capital cities or in any other city. There would be a victory for terrorists if a jumbo jet crashed into the Palace or any other location in the country. Terrorism can be defeated by political, military and intelligence means. Claiming that we would give terrorists the final victory if we denied people held in Belmarsh a trial may receive a round of applause on "Any Questions?", but it does not sit right with the vast majority of my constituents or, I suspect, the constituents of other hon. Members.

Mr. Deputy Speaker: Let me point out to the House that approximately 40 minutes are left, with four hon. Members seeking to catch my eye. Perhaps they would show a little more restraint than we have seen so far.

6.2 pm

Mr. A. J. Beith (Berwick-upon-Tweed) (LD): The hon. Member for Glasgow, Cathcart (Mr. Harris) has invented a category of people—none of them have attended today's debate—who do not believe that there is a serious terrorist threat to this country. I have heard no such person speak today, and I have more reason than anyone else in the Chamber to be aware of the extent to which the work of our security and intelligence services has preserved us from major terrorist actions over a considerable period. My hon. Friend the Member for Winchester (Mr. Oaten) made that point in opening the debate, and we all join together in paying tribute to their work. However, that does not absolve us from the need to examine the legislation and see whether it is right, whether it serves its purpose, whether it deals with the full range of threats and whether it is sustainable over a period of time.

The key phrase in the legislation is about the nature of the threat as a

The threat that faces us is not short-term, and we cannot envisage its early cessation. Indeed, it is difficult to envisage the circumstances in which the loose al-Qaeda network and other groups loosely connected with it would want to desist from their terrorist activity. We cannot act, therefore, on the basis of emergency short-term legislation such as regulation 18B, which was used in the second world war. I was only a baby at the time, but people knew that the war would be over in two or three years, and that we would either win or lose it. We do not know when the present terrorist threat will end, so we need sustainable legislation. There are not many Members in the Chamber, with the possible exception of the hon. Member for Glasgow, Cathcart, who believe that the legislation that the Lords recently challenged and effectively overruled is sustainable. There is a widespread view that we cannot maintain a system of indefinite detention without trial on a ministerial decision. The Government clearly now accept that view, and are working on that basis to devise alternative proposals.

I served as deputy chairman of the Newton committee, but I did not have to work very hard in that capacity, as the committee was well chaired by Lord
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Newton and we were well supported by the group of senior Members, Privy Councillors of all parties, and one who had no political affiliation. It was wide ranging in its experience and there was no fundamental disagreement over the conclusions that were reached. I give away no secrets when I say that the only subject on which we had real difficulty reaching an agreed wording was what we debated last night—incitement to religious hatred, and how far legislation should go in attempting to deal with it. There was relatively little difficulty in reaching agreement on the matters that we are debating today and what we should propose to the Government.

We found many other things wrong with the Anti-terrorism, Crime and Security Act 2001. The Newton committee was set up because the 2001 legislation was rushed through both Houses of Parliament on the basis that its purpose was to deal with a short-term emergency. In fact, it was stuffed with measures that had nothing to do with short-term needs and nothing to do with terrorism, which further inhibited the ability of the two Houses to get it right at the time. The committee was set up because it became clear that the measure could not be passed through the other place unless some concession were made. The concession was steadily tightened up: first, it was a review committee, then a review committee whose report had to be debated in both Houses, then a committee whose report would, if it were not debated, lead to the entire lapse of the legislation. That reflected the degree of concern felt in both Houses that, because of the immediate circumstances, they were being pressed to push through a measure that they were deeply unhappy about, which required much further and more detailed consideration.

The one point of anger that I would like to express at this stage, before returning to the happy consensual atmosphere of the debate, is that the Government's initial response to the Newton report was misplaced macho posturing. Their initial reaction to the report seemed to suggest that none of the recommendations were of any value whatever and that the Government would carry on very much as they were. I realise that the present Minister for Crime Reduction, Policing and Community Safety took no part in that, but it set a tone for relative inaction over the next 12 months. The committee had proposed that the Government should prepare an alternative to the 2001 legislation, which would need to be renewed or replaced because the derogation would come up in just over a year's time and the legislation would lapse.

I am pleased that things seem to have moved on, largely because of the House of Lords judgment and the coincidental change of Home Secretary, which has also helped. I very much welcome the way in which the present Home Secretary is approaching the matter. That is not to say that I disagreed in all respects with the previous Home Secretary. He made it pretty clear on the record that, in respect of an issue that we shall come to in a few moments, he would have welcomed the ability to use intercept evidence in court, but had to be satisfied that he could secure general agreement among the various Government bodies concerned. He certainly showed continuing interest in intercept and set up further consideration of it even before the Newton committee had raised it.
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The Newton package had two main aspects: making prosecution easier and more feasible, and proposing alternative measures where prosecution could not be pursued. The measures to make prosecution more practicable included new offences and offences that could be aggravated by connection with terrorism. The committee drew from experience in other countries and in other areas of law. One important aspect of pursuing prosecution was the idea of having a security-cleared investigating judge as part of the process, and another was using intercept evidence.

I continue to believe, as Newton recommended, that we should remove the blanket ban on the use of intercept evidence. The law should allow it, but that is not to say that it will solve either the existing Belmarsh cases or all the cases in the future. In many circumstances, it would be prejudicial to use it. The main purpose of intercept activity is the gathering of intelligence, which, as the Minister rightly said earlier, plays a valuable role in disruption. It is not collected on an evidential basis, but it is possible to collect it on that basis and use it in certain limited circumstances. We should not preclude it, because there may well be cases in the future where it would be both relevant and helpful. The present blanket ban is difficult to accept.

In my two capacities, I am aware of at least five different reasons why various parts of the system are uncomfortable about the use of intercept evidence in this way. I am not certain about the current balance of opinion about which reason the Government regard as the most important. They are important reasons, but in my opinion, none outweighs the benefits stemming from limited availability of the intercept option. It should be part of the package.

On the other side of the page, as it were, the committee proposed a series of measures that have been echoed by both the Minister and the Conservative spokesman, although the latter questioned them in one respect. The measures deal with people about whom serious suspicions exist, but in respect of whom there is insufficient evidence to lead to a successful prosecution.

The measures did not include house arrest, but did include restriction of movement. That was chosen because it allows potential links with other terrorist activists to be broken—links that could allow the person who would otherwise be detained to have a role in the preparation of further terrorist acts. The Government's proposals include many of the committee's proposed measures.

However, the question then facing the committee has been raised several times in the debate. It is, "What about UK citizens?" That is one of the most difficult issues. When we asked "Are there no UK citizens about whom similar suspicions are held?", we could not get a negative answer. That is, no one could say "No, we have only ever come across foreigners about whom we have such suspicions."

My judgment is that there are UK citizens about whom similar suspicions have been raised. They will have had to be dealt with in other ways, such as by prosecution for other offences, or by surveillance or preventive and disruptive activity of various kinds. There is therefore both an anti-discrimination argument
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and a practical argument against the use of measures exclusively against foreign citizens. The Government were really saying, "We can get this little group under these measures, but not really anyone else by the use of even remotely similar measures."

It must have been clear to everyone, as soon as the Lords' judgment was delivered, that we could not extend to UK citizens detention without trial on the decision of a Minister. That is so foreign to everything that we—with the possible exception of the hon. Member for Glasgow, Cathcart— believe and accept that there is no way that either House of Parliament could admit it into the range of anti-terrorism measures.

It is all right for Members of Parliament or television commentators to say, "This is an important thing that we have to do to fight terrorism." What about a Muslim who, by some happenstance of association, is threatened with Executive detention without any due process? The whole picture is very different for a person like that. The same was true for quite a few Irish people, both in Northern Ireland and in Great Britain, when they were subject to other limitations. In their situation, matters looked rather different.

It was essential to the basis of our civil liberties that other measures be found, and the committee felt that the Government should have been looking for measures appropriate for dealing with UK citizens about whom there was the suspicion of terrorist activity.

In the interests of time, I shall turn now to my final point—the key concern that we cannot be content with ministerial decision and subsequent judicial review, especially in respect of a process as hidebound as that of the Special Immigration Appeals Commission. The reason is that the people concerned are unable to see the evidence against them. They cannot produce an alibi against a piece of evidence used in SIAC, because they do not know that it is alleged that, say, they attended a particular meeting on a particular day. Therefore, because they do not know the evidence involved, even the most cast-iron alibi cannot be used.

My fundamental point is that making it possible for a Minister to lock up or otherwise restrict the liberty of a UK citizen because it is thought that that person might have terrorist associations—even though the evidence looks promising—will not be acceptable in either House of Parliament.

I therefore want to challenge an important statement that the Minister made. She said that, if this matter were to be given over to the judiciary, the Home Secretary would be abrogating his responsibility for the security of this country. That is not the case. We give the Home Secretary responsibilities to carry out, and he and the police have to bring people to court. He is not abrogating his responsibility for the safety of citizens against crime if he does not pick out a dangerous violent criminal or a repeated sex offender and say, "We're not going to try you because I know you're guilty, so I'm going to put you in prison."

That is not abrogating his responsibility. The Home Secretary allows the police to arrest a person and due process to take place. Therefore, it is no more true that he would be abrogating his responsibility if he ensured that it was a judicial decision and not an Executive decision that might lead even to the limitations that we have talked about today. Obviously, he or the police
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might initiate that process—it could go as high as the Home Secretary—and he might be abrogating his responsibility if he ignored the repeated pleas to set the process in motion for an individual or group. However, he is erecting a false argument—and he cannot be guilty of the charge—by saying that he cannot give the responsibility to a judge because that would be failing the nation. He would be serving the nation, although judges might not want to be put in that position. However, the public would have much more confidence, and the legislation would be more sustainable, if a judicial and not an Executive decision were made to take away someone's liberty in circumstances where they had not been found guilty of anything, but there were reasonable grounds for suspecting that they may be about to do something very dangerous.

We all recognise how difficult such decisions are, but we want a process in which the public and both Houses of Parliament can have confidence. We are starting a process that might lead us there within a reasonable period. I just wish that it had started when the Committee first reported.

6.15 pm

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