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Vera Baird (Redcar) (Lab): I want both Front-Bench spokespersons to be able to deal with all points raised, so I shall be brief. However, whatever hon. Members do, they should not think that I am being brief because my hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) said everything that I would have said.

Everyone agrees that prosecution is the game of choice. The Tories, however, have to accept that realistically there must be a fall-back position in case prosecution is not practical. Their inquisitorial model does not help in the slightest. It would be difficult to graft it on to our system. We have never had an inquisitorial model. Although we have coroners, both sides are represented during proceedings, so there is an adversarial aspect there. What would happen if there were an appeal under such a model? Proceedings in the Court of Appeal would be adversarial, as would an appeal in the House of Lords, so the model would not slide into the existing system.

The analysis of the right hon. Member for Haltemprice and Howden (David Davis) did not help us. He seemed to think that the calibre of judge would somehow improve if the procedures were swapped. At present, the Special Immigration Appeals Commission gathers all the material, perhaps subject to public interest immunity certificates. However, no Minister would sign a PII certificate while knowing that it covered material of benefit to the defendant. SIAC in
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effect receives all relevant material, and then both sides get it, subject of course to the special advocate procedure. The Home Office gets it all and the defence, in one way or another, gets it all.

The special advocate has to take his instructions first, which is very difficult, and then cannot speak once he has seen the material. When not in closed session, the procedure is ordinary. The defence barrister deals with all the open evidence, and then the special advocate deals with all the closed evidence and tries to attack it as best he can on the limited instructions that he has been able to receive. Key to that is that SIAC is well aware that the material has not been properly and thoroughly cross-examined—it is aware of the limitations.

The right hon. Member for Haltemprice and Howden argued that an inquisitorial judge might somehow be able to make up for the deficiencies that fall to the defence, but that is not correct. SIAC knows that the material has not been scrutinised as fully as it would have liked, and must take it on that basis. I know the judiciary involved with SIAC, and I am satisfied that they also adopt an extremely high standard, and I will be very surprised if they do not insist that the material must satisfy them beyond reasonable doubt. Therefore, we must look, as everybody agrees, to prosecution, but we must do so within our own court system model.

I make the serious suggestion that it would be prudent for the Home Secretary to send all the material about all these people to the Director of Public Prosecutions as quickly as possible to see whether the appropriate independent key professional can decide to prosecute all, one, none or any of them. That would clearly appear to be an independent decision based on the evidence, which had nothing to do with the Home Secretary. That should be done straight away.

The Home Secretary also has the power to order further investigation. That is an important point, because it is far from clear that there has been a thorough investigation with a view to prosecution. One sees press reports and one hears lawyers acting for the Belmarsh detainees saying clearly that the detainees have not even been interviewed. If there had been an investigation with a view to prosecution, they would have been interviewed. I am not suggesting that they would have confessed, but interviews can be extremely important. If that position is correct—it comes from the mouths of lawyers whom I know well and who I cannot imagine are saying what is incorrect—there has not been an attempt to investigate properly with a view to prosecution in at least all the cases of the people in Belmarsh. That is crucial.

If the DPP finds in given cases that he cannot prosecute, he should be asked whether any of the proposals of the Newton committee assist him in doing so. He should make recommendations about that. If, even with all the widening that Newton advocates, with independent scrutiny by the DPP, and given the procedures under the Criminal Justice Act 2003, which allow more hearsay and bad character evidence to be considered, it is not possible to prosecute and we cannot deport all the people, we will have to fall back on some restraint. The Tories will have to accept that that is realistic, as they were ready to accept the point in debate on part 4 of the Anti-terrorism, Crime and Security Act
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2001. They must keep an open mind on that, as the right hon. Member for Haltemprice and Howden said they would.

The issue of control orders—possibly falling short of house arrest—may boil down to who comes first: the Home Secretary making a decision that is scrutinised by a judge, or the Home Secretary making an application and a judge conducting the initial scrutiny. I appreciate and understand why the Home Secretary thinks that the defence of the realm is a responsibility of the Executive and not of the court. I would prefer the first decision to be taken by the court, but if that is not the Home Secretary's view, and in the end he and the Government find that incompatible with their responsibilities, my right hon. Friend has a duty to shoulder the entire burden of safeguarding the defence of the realm. If it has to be that way round, and so long as there is an appeal that is automatic, immediate and covers all the facts, perhaps even such a suggestion could be acceptable.

I have a strong sense that somewhere in one or other of the strands that we have debated today we will find a common answer. The very fact that we are debating this issue and seeking consensus on it means not that our values have been undermined but that we are determined that democracy will find a way.

6.39 pm

Mr. David Heath (Somerton and Frome) (LD): What a fine note on which to end the Back-Bench contributions. With perhaps one exception, I am grateful to all the right hon. and hon. Members who spoke in an excellent debate, which shines as an oasis of rationality in the turmoil and pre-electoral bombast in which we so often indulge.

My hon. Friend the Member for Winchester (Mr. Oaten) and the Minister for Crime Reduction, Policing and Community Safety set the tone of the debate in seeking consensus and points on which we could agree on the appropriate responses to what we all acknowledge is an extremely serious problem and a difficult dilemma for any Government. The right hon. Member for Haltemprice and Howden (David Davis) continued in the same tone and I am grateful to him for his remarks. He identified some of the same problems as we do with the present position and, indeed, some of the same responses to it. He stated the problem clearly at the outset when he said that the balance we had to strike was between defence of life and defence of way of life.

We have to consider the proposals before us and their deficiencies when measured against our norms of justice in terms of the standard of proof, reasonable belief and the rights of the accused to know the case against them, to argue the case and to be proved guilty beyond reasonable doubt. We would normally expect all those things of a judicial system in this country and we should surrender them only with great care.

My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) made a thoughtful speech, in which he brought to bear the knowledge that he has gleaned from and contributed to the Newton committee in his plea for sustainable legislation, which we have not had until now.
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The hon. and learned Member for Dudley, North (Ross Cranston) spoke of reconciling the different pressures on the Government and referred to three tests of action—that it should be justified, proportionate and in accordance with law. I cannot disagree with his scholarly analysis.

The hon. Member for Daventry (Mr. Boswell) made, as usual, a sensible and reasoned speech. We do indeed have to accept that there is a presumption of trust in the Minister and her colleagues. They are in possession of information that we do not have, so in some respects we have to trust their judgment of what is best. However, that does not remove from us the responsibility of questioning their judgment and testing it against the norms of a democratic society.

The hon. and learned Member for Redcar (Vera Baird) brought the Back-Bench contributions to a fitting conclusion. She restated our primary point, that prosecution must be the preferred option. It must always be better to put someone before a court of law, if we can find the right means of doing so.

The hon. Member for Glasgow, Cathcart (Mr. Harris) had something of the air of a braggart swaggering into a bar looking for a fight with anyone he could find. He was to be disappointed. Today, we are looking not for a fight, but for a reasoned argument regarding the way in which we should proceed. Most of those present in the Chamber are not prepared to throw away 1,000 years of British history and British jurisprudence simply to satisfy what might have been interpreted as prejudices on the hon. Gentleman's part. We seek a more reasoned way through the morass.

What is in the proposals? My hon. Friend the Member for Winchester made a strong case that house arrest is not an acceptable option, but simply imprisonment by another means. We believe, and I think that many people would agree, that for that to be imposed by ministerial fiat, without judicial oversight and without the safeguards that we normally build into the law, is a dangerous course. If we are to imprison people, let us say that we are doing so and let us have a judicial process that makes it appropriate for us to deprive them of their liberties, but let us not pretend that we are not doing that.

I can understand why Labour Members bridled at the comparison with totalitarian countries that employ house arrest—we are not that sort of country, and neither should we ever be. But let us also recognise that if we were to ask, say, the Government of Burma what their system was for house arrest and they replied, "Of course, it is entirely done through judicial oversight, because although the decision is made by a Minister, it can be reviewed by a hand-picked panel of judges who will meet in secret and not tell the person involved what evidence is before them and what the charge is," we would raise our eyebrows. We would say that we were not convinced that that was an entirely democratic or judicial system.

There are serious arguments against house arrest, but control orders are a different matter. I was disturbed when the right hon. Member for Haltemprice and Howden appeared to take what was described as a black-and-white view and said that we should either lock people up or let them go. There must be gradations below that and safeguards that we can use to protect our
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citizenship. If we are to have control orders, they must be under judicial oversight. My hon. Friend the Member for Winchester made the point that we should formulate them in such a way as to ensure that they do not require derogation from the European convention on human rights, which is clearly possible in light of the experience of other countries. If they are to be reviewed, we must be clear what the terms of the review are. Whatever form of judicial system is used to review, will it look into matters of fact or simply matters of law? That is a critical question on which the Minister needs to respond. If it is essential, as the Minister says it is, for the Home Secretary himself to control the process of control orders and initiate them, is it still the Government's view that an order should extend to the family and friends of the person upon whom it is placed? Is that an essential element of the Government's package?

By far the favourite option is that of prosecution, as the hon. and learned Member for Redcar said. We have had a series of debates about the use of intercept evidence and I still do not understand the arguments about the intrinsic difference between intercept evidence and electronic surveillance evidence, for example, and why one is admissible and the other is not. I am still not clear why such evidence cannot be used in some cases to ensure that somebody who should be prosecuted is prosecuted and imprisoned if they are found guilty. That extends well beyond terrorism to serious organised crime and other offences.

If we believe that terrorists do not think that their phones are being tapped, we believe in a very different world fron the one that I think we live in. Equally, if we need new offences, let us look at new offences. One of the problems is that we can prosecute for a conspiracy, but not for a conspiracy of one. If there is a lacuna in the law, let us fill it. Let us look at the suggestions from the Newton committee and do as the hon. and learned Member for Redcar said—pass the matter to the Director of Public Prosecutions and let him give an opinion as to what would make the prosecution that much simpler.

We need to look at novel judicial methods as well. The right hon. Member for Haltemprice and Howden said that he was not attracted to European models, and we know why. Let him look at Scotland, a jurisdiction a little closer to home. I mischievously suggested that we extend the jurisdiction of Scotland to England and Wales in order to have something on which we could build a part-inquisitorial model. Let us have the proposals at the earliest opportunity. Ideally, let us have them before 13 March, so that we can discuss them. If that is not possible, let us at least make progress in that direction.

I need no reminding about the dangers of terrorism: I was in Congress on Capitol hill in Washington DC on 11 September 2001 and saw the evidence of terrorist action with my own eyes. We face a serious threat, and the difficulty is finding an equilibrium between providing freedom from fear or worse for our citizens, which is every Government's duty, and providing freedom under law, which is what we are looking to the Government to provide.
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6.50 pm

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