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David Davis (Haltemprice and Howden) (Con): I thank the Home Secretary for the advance notice of the statement and for his advance briefing on the subject. The whole House will join us in paying tribute to the vigilance and professionalism of the police and security services who protect us so well.
I do not underestimate the difficulty of the problem facing the Home Secretary. I accept that there are no easy answers, and as far as I am aware, nobody is saying that we should do nothing. However, I have to tell him that I believe that he has settled on the wrong answers, which will sacrifice essential and long-standing British principles of liberty and justice in a way that is unlikely materially to enhance the security of our people—indeed, which may act to reduce that security.
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The Government have been forced to this point by the decision of the House of Lords two months ago. One of the comments by Lord Hoffmann is particularly relevant:
"I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution".
But that, in effect, is what the Home Secretary is doing. Although he has qualified it—properly and in response to representations—with some safeguards, under these proposals, for the first time in modern British history, a politician will be able by order to restrain the liberties of a British subject. He will do that on the basis either of balance of probabilities or even of simple suspicion. He will do it for reasons, and on evidence, that may not even be known to the British subject whose liberty is lost.
A further quote from the Law Lords, this time from Lord Rodger, highlights just how extraordinary that step is:
"The Government's assessment is . . . that it is not necessary to detain the British suspects in order to contain the threat that they pose. That is implicit in the entire policy that they adopted and emerges in any event from para 36 of the Home Office discussion paper on Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society issued in February 2004: 'While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify.'"
It should be noted that the Home Secretary told the Home Affairs Committee a few weeks ago that the terrorist threat has not materially changed in the last year, so presumably that comment is still true. He reinforced that point today with his comment that the security services do not believe that they need the full extent of the powers in the Bill at this point.
The question that has to be asked is: what is the immediate emergency that demands that draconian powers against British subjects be rushed through these Houses of Parliament without proper consideration, scrutiny or debate? What is the emergency that has arisen in the past 12 months that demands that, without proper debate, we give the Home Secretary the right to fetter the liberty of British subjects, from restricting their ability to communicate right up to and including house arrest? The only answer is, of course, the House of Lords' judgment. It is very clear from what I have quoted already that the Law Lords themselves did not envisage or encourage the proposals that the Home Secretary has put forward today.
Tomorrow, we will debate the details and principles of the Bill, but I want to raise one or two material concerns today. The first and most fundamental is the fact that the decision is to be made by the Home Secretary, not a court of law. The Home Secretary said that decisions that affect national security should be for a politician, not a judge, to make. That is a remarkable, novel and hazardous doctrine. Even in the second world war, when enemy spies threatened the lives of thousands, indeed hundreds of thousands, of soldiers and civilians, they were tried by a judge and jury under normal rules of evidence.
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I have heard it said today that the power is designed to allow the Home Secretary to act quickly. The Home Secretary's proposals for the strongest powers, above the derogation level, require review by a judge within seven days, yet under laws passed by the Government the police are already allowed to detain a terrorist suspect for up to 14 days without charge. It is, therefore, possible to detain a suspect for seven days, to bring them before a judge and have the judge make the decision, without giving the Home Secretary those powers—so the Home Secretary is abandoning a key principle of British justice for no obvious practical advantage. That thread runs through the proposals—a willingness to abandon proven principles of British justice, with little proven advantage in addressing the security threat.
Two weeks ago, the Prime Minister apologised for the Guildford four decision. He made that apology about a decision taken in open court, with a judge and jury, with a standard of proof based on "beyond reasonable doubt", but which was still a miscarriage of justice. Conventional wisdom says that that miscarriage of justice was in part caused by the emotions in the aftermath of a terrorist outrage. What if a decision, using these powers, was taken by a Home Secretary in the aftermath of another terrorist attack? Under these proposals, a British citizen could be confined at the behest of the Home Secretary, on the balance of probabilities, on evidence never seen by the accused. What then would be the odds on a miscarriage of justice?
The Government have quite properly and laudably put into effect measures to prevent the radicalisation of some groups in our society. These proposed laws, and the sense of injustice that they could create, could completely negate those efforts, and could indeed act as a recruiting sergeant for the enemies of the state.
I reiterate: the Home Secretary does not have an easy task here and he has my sympathy in that regard, but there are better ways to achieve what he seeks. First, the House should have proper time to consider these proposals carefully. To that end, we are willing to support renewal of part 4 of the Anti-terrorism, Crime and Security Act 2001 for a limited period, specifically to allow time to get this right. The Home Secretary has said that he does not think that will work, which gives rise to the question of why, earlier this month, he laid the draft order for that renewal.
We are willing, for that limited period, to co-operate in primary legislation that limits the bail conditions that the Special Immigration Appeals Commission can allow, in effect guaranteeing that the control orders the Home Secretary is outlining in the Bill—up to and including house arrest—would apply to the remaining Belmarsh detainees until properly considered legislation came into effect. That would limit the possible injustice to a small number of people for a short and limited time, and would also give the Home Secretary the certainty he is seeking for foreign nationals.
Meanwhile, I ask the Home Secretary to give proper consideration to the proposals that all Opposition parties—and, indeed, members of his own party—have made to him: allowing the use of intercept evidence in court, along with all the other evidence that surveillance generates; the use of an investigating judge to marshal
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and vet evidence for the court, to protect the interests both of the security services and of the defendants; the creation of new offences, to which he alluded in his statement, such as that of "committing acts preparatory to terrorism", or offences based on American anti-racketeering laws that deal with the same sort of problems in that country; and practical options, such as significant increases in the resources available to the agencies for surveillance and other purposes.
All those proposals, and others, will receive a constructive response from the Opposition, if they are allowed proper time for consideration. Nobody is suggesting to the Home Secretary that we should wait for a terrorist outrage, but we must consider these matters properly. If, however, the Government insist on rushing these measures through, I fear that they may do the opposite of what they want. They will create a sense of injustice among many British citizens, and do what I warned when we first discussed this: for every known terrorist that the Home Secretary confines, he may create 10 unknown terrorists, free to do harm to our people and to our nation. That would be more than a mistake; it would be a tragedy.
Mr. Clarke: I am afraid to say that the right hon. Gentleman has confirmed what I said at the beginning. He and his party are in the do-nothing camp—[Hon. Members: "Oh!"] Do nothing, first and foremost, about the Law Lords' judgment—saying that nothing should be done about the 8–1 judgment indicating that the existing legislation is both disproportionate and discriminatory. If the Law Lords say that we have discriminatory and disproportionate legislation, I believe that there is an obligation on the whole House, not simply on the Government, to address that, and that is what we are doing.
Secondly, on the point of substance, I indicated, and the right hon. Gentleman knows, that there are cases in which we cannot prosecute potentially extremely dangerous people, either because the material we have is inadmissible or because it cannot be used for fear of revealing and endangering sources and techniques. He knows that extremely well, but his proposition in those circumstances is explicitly to do nothing whatever about people who offer that threat. He has made it clear, as has the Leader of the Opposition, that they do not favour control orders as a device for dealing with the threat. They do not favour addressing the question directly at all. That is why it is fair to say that the right hon. Gentleman is not addressing the threat.
Thirdly, on the judicial point, I have indicated absolutely clearly, very explicitly, substantial judicial involvement in the decisions that the Home Secretary of the day will take, including, particularly at the level of deprivation of liberty, the ability of a judge to hold a full hearing, on the balance of probabilities, rapidly to consider the Home Secretary's decision. That is not the unvarnished decision of a politician; it is the decision of a Minister of the Crown accountable to the House, subject to detailed judicial confirmation in the fullest possible way, and it should not be portrayed as anything different from that.
Finally, the right hon. Gentleman proposes renewing in the other place, and later in this place, the legislation that the Law Lords have struck down as discriminatory and disproportionate. As he knows, the fact is that were
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we to seek such renewal, and even were that renewal to be agreed by the House and elsewhere, despite the fact that that flew in the face of the overwhelming judgment of the Law Lords, for all the reasons that were stated, it would be entirely possible for the individuals concerned to appeal that Act to the European Court of Human Rights at Strasbourg directly in that time scale. Secondly, in that situation, it would be entirely possible for SIAC, when considering the case of the individuals currently in Belmarsh, to say that the position we had taken did not allow detention in those circumstances, despite the fact that the order had been renewed.
If we were to accept the right hon. Gentleman's advice, we would be establishing a regime that was uncertain and unsolid, and flew in the face of the Law Lords, for a period of three, four, five or six months while the Opposition made up their mind about what they wanted to do. Even at this point, I urge them to reflect again as parliamentarians on their responsibilities to this country and to our security, and to face up to those responsibilities rather than flying away from them.
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