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Mr. Mark Oaten (Winchester) (LD): I thank the Home Secretary for being so generous with his time and for giving us advance notice of his statement. I hope that he knows that over the past week the Liberal Democrats have genuinely tried to find a real solution for this complex issue. We acknowledge that the Government have moved some way in terms of strengthening judicial review, but the difference between us remains that the Home Secretary still considers that the judge should review his decisions, while we believe that it should be judges who take the decisions, not politicians. If he is prepared to let a judge overrule his decision, I do not understand why he is not prepared to let a judge take that decision in the first place.

Does the Home Secretary realise that if he were to apply to judges for the control orders he would, in our judgment, still be meeting his responsibilities as Home Secretary in terms of dealing with national security? Again, I ask him to reconsider his position on that issue.

Will the Home Secretary acknowledge that his current proposals are still based on "reasonable grounds"? Should not we be moving towards a higher burden of proof? Proof should be "beyond reasonable doubt" when it comes to removing the liberties of people in this country.

On intercepted communications, we disagree with the Home Secretary, but he previously said that he would leave the door open on the issue. I ask him today to go further than that: will he consider re-establishing the Newton committee to make specific proposals on how intercepted evidence could be used by the end of the year?

The Home Secretary suggested that a derogation will not be needed for control orders that do not involve house arrest, but is he aware of Liberty's legal advice that indicates that, in fact, a derogation would be required for any control order? What legal advice has he sought on that issue?

Finally, will the Home Secretary outline what his plans are if today's proposals are rejected by both Houses? Will he seek a renewal of the part 4 powers? If so, will he confirm what period he would require for that
 
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renewal? These judgments are all about the balance between the principles of justice and maintaining security. The proposals that the Government have outlined today get that balance wrong and that is why we cannot support them.

Mr. Clarke: Let me first say that I agree with the hon. Gentleman that the approach that the Liberal Democrats have taken in the various conversations that we have had has been constructive, broadly speaking, in contrast to that of the Conservative party. Secondly, I accept that he and his colleagues have argued throughout that a judge, not a Minister such as the Home Secretary, should take these decisions in various areas. The reason why, ultimately, I do not agree is that the principle of Ministers' accountability to the House and Parliament is important, particularly in cases of national security, where the Government are charged with the responsibility of addressing those questions. However, I accept that there is a genuine difference of opinion about the way to address and deal with those questions, and I hope that he will pursue that as we consider the legislation as it goes through both Houses of Parliament. That is the right place to have exactly that discussion and conversation. We are imposing a higher burden of proof than was previously the case, both at the level below the deprivation of liberty and at the level above it.

I believe that the Intelligence and Security Committee will look at the intercepted evidence issues and I await with interest what it has to say on the matter, but I can tell the House that I have made my decision, although I have also said in my written statement to the House that I will keep the matter under review because, on the balance of judgment, my assessment is that to admit intercepted evidence would not assist in getting convictions. However, I am absolutely ready to keep that position under review, and, as I say, I look forward to what the Intelligence and Security Committee has to say in due course on the matter.

The legal advice that I have received is clear about the deprivation of liberty. There are always legal arguments that will proceed—we will simply see how that goes, as we move forward—but we are absolutely clear that there is a difference between, for example, some form of requirement to stay in a home or, for that matter, in a prison, and the idea of using an electronic tag or whatever. Those are qualitatively different in nature in so far as the deprivation of liberty is concerned.

On renewal, I do not anticipate being in the situation that the hon. Gentleman suggested.

Mr. Andrew Dismore (Hendon) (Lab): May I bring to my right hon. Friend's attention the case of Abu Qatada, who is one of those detained in Belmarsh? I am sure that my right hon. Friend will remember that, the night before the detention powers came into effect, Abu Qatada gave the security services the slip and was on the run for some nine months before he was detained. He is widely believed to be one of the key al-Qaeda operatives in Europe. Can my right hon. Friend assure us that his new powers, if they are introduced, will be sufficient to control Abu Qatada if he is released from Belmarsh and put under the proposed regime?
 
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Mr. Clarke: First, I will not comment on individual cases. Secondly, I can give my hon. Friend the assurance that he seeks. The advice that I have received from the security services and the police in relation to the individuals with whom we are currently concerned is that the control order regime at a level of less than the deprivation of liberty would be sufficient to secure those people, control them and prevent them from engaging in terrorist acts. I would not have made my recommendation on this matter unless there had been such a clear recommendation from the police and security services.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The right hon. Gentleman is suggesting serious restrictions on the liberty of the subject by Executive order. In exploring the risk of a miscarriage of justice based on suspicion, will he consult the Leader of the House? He will remember that the Leader of the House was brought to trial on a robbery charge in 1975. He was almost certainly framed and, in any event, he was acquitted, but there must have been reasonable suspicion or he would not have been brought to trial. Does that not emphasise the real dangers of taking away people's liberty based on suspicion? Surely we should accord the ordinary citizen the same protection that was accorded to the Leader of the House?

Mr. Clarke: First, there is absolutely no comparison between the two cases. The fact is that we are talking in the legislation that I am introducing today about people suspected of terrorism—very serious events that require a different level of action from others. Secondly, I am explicitly proposing a level of judicial confirmation of the decisions that the Home Secretary takes that simply did not arise in the case that the right hon. and learned Gentleman identified.

Alan Howarth (Newport, East) (Lab): My right hon. Friend will accept that Parliament has a duty to be vigilant on behalf of civil liberties, but surely we need to be hard-headed and not just romantic as we acquit ourselves of that duty. Does he accept that some of his critics ignore the fact that it is far from unprecedented for the Executive to curtail freedoms in a national emergency, that his present proposals are a great deal more limited, focused and subject to scrutiny than those of many previous Administrations, and that he cannot ignore the real threats that the nation faces, whether by allowing those who would perpetrate atrocities to go about their business or by dumping the proper responsibility as an elected Government on to the judges, when he has the primary responsibility?

Mr. Clarke: I very much agree with my right hon. Friend. The historical examples are legion. I was reading the other day of the decisions taken by Abraham Lincoln when he was President of the United States of America in precisely this area. He was a great fighter for liberty and he justified exactly what we are doing on the basis of the need to defend liberty. I remind all Members that the price of liberty is eternal vigilance. It is that vigilance against a real and substantial terrorist threat that it is my responsibility to carry through, and I will.
 
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Mr. Kenneth Clarke (Rushcliffe) (Con): First, does the Home Secretary accept that we face no greater risk today from British citizens committing terrorist acts than we did before the House of Lords judgment? Does he therefore accept that he has made no case at all to explain why he comes here seeking greater powers than any Home Secretary in modern times has had over British citizens and greater powers than were ever sought by his predecessor, his Government or any other Government in modern times? Secondly, does he not accept that there is a huge gulf in principle between the Home Secretary having the authority to deprive the citizen of his liberty and then someone seeking judicial review and going before a judge to try to satisfy the judge that a mistake has been made, and the judge having the first responsibility? Surely it is practicable to devise safe, secure procedures of a confined, enclosed kind whereby the Home Secretary can go before a judge and satisfy someone who is independent, which is more important than answerability to the majority in the House, that it is right to deprive a citizen of his liberty.

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