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Mr. Clarke: There are two answers to that question—one of principle and one of practice. I think it is right in principle that, if there is to be a derogation, the subject of that derogation, in terms both of the threat and of the strict requirement for deprivation of liberty to meet that threat—the two legs of a derogation case—should be debated in this House and the other House. There should be specific discussion of that question, and every Member of this and the other House should make their decision on that issue. That is a superior way of legislating on these difficult matters, rather than the general confusion of another piece of legislation going through.

There is also an important practical question. The fact is that terrorists are moving rapidly and it may be necessary to move rapidly to deal with them. I need only cite the most recent example in Europe. The Madrid atrocity took place during the Spanish general election campaign and such things are always possibilities in this country, too. In those circumstances, we must be able to take the steps necessary to stop such things happening.

Sarah Teather (Brent, East) (LD): Does the Home Secretary accept that detention without trial was one of the most controversial and hated aspects of the troubles in Northern Ireland and consequently one of the most effective recruitment routes for terrorist organisations? What are the implications of the Bill for terrorist recruitment in this country?

Mr. Clarke: I do not accept the language that the hon. Lady used, but I accept that there are serious issues about the use of internment in the case that she mentioned. That is why such powers should not be used except in exceptional circumstances and after full consideration, which is precisely what I propose.

David Davis: I do not want to make the Home Secretary's life more difficult than it is, but on the issue of internment without trial, all the control orders proposed beneath derogation level will still be known to
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the communities where they are being used. Does he realise that, if the process is not known and understood and believed to be just, those orders, too, will be seen to be unfair?

Mr. Clarke: That is exactly why the Bill proposes detailed reporting procedures to the House and elsewhere, to set out exactly how the control order regime is operating, the quantity and so on. There may be myths and realities about those questions, but there should be informed and proper debate about the issues. It is exactly for that reason that the orders should be seen not as shadowy things but as something clear that people can discuss and consider in their particularity.

Ms Sally Keeble (Northampton, North) (Lab): Can my right hon. Friend give some explanation of the enormous range of provisions for types of control order set out in subsections (3)(a) to (o) of clause 1? Many of those activities look similar to things that I saw happening to friends in South Africa, which will make it extremely hard to vote for the measure. Will he also explain which of them require derogation and how that provision will work?

Mr. Clarke: I will deal with the second point first. The derogation arises either when there is an individual measure or a combination of measures that add up to a deprivation of liberty. It will arise when an individual measure or a set of measures is being considered in those circumstances. Although I respect my hon. Friend's personal experience, I do not accept her comparison, because when we reach the point of deprivation of liberty a whole set of other issues comes into play, so we need a separate legal regime.

Mr. Weir rose—

Mr. Clarke: I shall not give way, as I want to make progress.

The third motivating principle, which exactly meets the point made by the right hon. Member for Haltemprice and Howden, is the need to meet the Law Lords' judgment. In general, I do not regard it as a successful and positive state of affairs when the senior judiciary of this country, the Law Lords, and the Executive are in rather different places, and certainly not in terms of measures of this type. Their criticism of the regime in place was that it was disproportionate in character and discriminatory, and we should take that criticism extremely seriously. The measures that I am putting to the House in the Bill would address that question directly.

Mr. Cash rose—

Sir Patrick Cormack (South Staffordshire) (Con) rose—

Mr. Clarke: I shall give way again when I come to the end of what I am saying. The hon. Gentlemen can listen to what I am saying and then come to a view. The fact is that, from June 2002 until December 2004, when the Law Lords' judgment was passed, a judicial process was
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taking place, with its final step in the Law Lords' judgment, considering the legality or otherwise of the steps that had been taken. In my opinion, it was correct in relation to that process for us to await the judgment and decide exactly what we would do on the basis of receiving it. We now have that judgment. I argue very strongly that we should not ignore the judgment or flout it, but act on it and try to put in place a regime that is both proportionate and not discriminatory.

Mr. Cash: The Home Secretary is not really answering my point. It is not a question of whether or not he is complying with the Law Lords' judgment. The problem arises because the Government have got themselves into a complete mess with regard to the human rights legislation. Surely the point is simply that, to ensure that the House can legislate on its own terms, it must legislate notwithstanding the Human Rights Act 1998, and then he is in the clear. Does he not see that?

Mr. Clarke: I do not accept any of that. I simply do not accept the argument. I do not think that it is correct. What I do think is that when the Law Lords of this country make a set of criticisms about the way that we are operating that is well founded, by a vote of eight to one, it is incumbent on the Government—and, I would argue, on Parliament—to respond to that and decide how to deal with it.

Sir Patrick Cormack: I am not entirely unsympathetic to many of the points that the Home Secretary is making, but can he tell the House whether there have indeed been discussions with the Lord Chief Justice and the Law Lords on the Bill?

Mr. Clarke: Yes, I can say that. I can say that explicitly in my case in relation to the Lord Chief Justice, with whom I have informal discussions from time to time. The Law Lords are a very much more distinguished group of people and I am not sure that humble politicians can talk to them in quite that way. The answer is that we are actively discussing these questions with the judiciary. I cannot speak for them, of course, but I have certainly sought—as has the Lord Chancellor in the other place—to take account of what the senior lawyers have been saying about these questions.

Mr. Bill Wiggin (Leominster) (Con): Had the legislation already been in place, how many of the 701 people that the Home Secretary mentioned earlier have been arrested—of whom only 17 were convicted—would have been subject to a control order?

Mr. Clarke: Those people would not have been subject to control orders because they are going through the courts in the prosecution regime that we are describing, but I cannot, and will not, comment on the situation that arises for any control order in a particular situation over that whole period of time.

Mr. Weir: Several times this afternoon, the Home Secretary has mentioned the appeal procedure for control orders. Clause 7 mentions the appeal procedure by way of judicial review. In Scotland, at least, judicial review is a process whereby people challenge the process
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by which a decision was made, rather than the decision itself. In considering these cases, will the courts be able to consider the evidence itself or will they be able to consider only the process by which the Home Secretary decides that the order is appropriate?

Mr. Clarke: The courts will be able to consider the material situation. As I said, I will come to the judicial review process in a moment.

The House will be glad to hear that I am now on my final and fourth motivating principle for the Bill: the need to end the uncertainty about the legal position that exists at the moment. Why is renewal of the existing powers, as proposed by the Opposition, in my view so poor an option, other than to give the Conservative party the chance to buy time and get itself sorted out? There are two main considerations, which I set out yesterday in the House.

First, if we were simply to renew the current part 4 legislation, as is proposed, it would be entirely possible for the individuals concerned, at Belmarsh or wherever, to appeal against the Act to the European Court of Human Rights at Strasbourg directly in that time scale. The very act of making that appeal would put uncertainty into the situation, which I believe would be undesirable. Moreover, in that situation, in the case of the individuals currently in Belmarsh, it would be entirely possible for SIAC, when considering their cases, to say that the position that 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 advice of the Opposition to renew the part 4 powers, in effect, we would be establishing a regime that was uncertain and not solid for a period of three, four, five or six months. That is why I urge the Conservative party to come to the view that renewal is not the route that it thinks it is to buy time, as set out by the Leader of the Opposition, but is actually a flawed route.

Those are the four motivating principles of the Bill: first, to secure prosecutions as our best way of moving forward; secondly, to protect national security by the use of control orders; thirdly, to meet the Law Lords' judgment; and, fourthly, to end damaging uncertainty. I argue that all those in the House who can support those four principles ought, in my opinion, to support the Bill on Second Reading and give it the fair wind that it deserves. Of course, none of that ignores the fact that there are issues of legitimate debate below those four principles—if I can put it like that—about the structures that the Bill puts in place. A range of issues will be debated in this House and the other place on those matters. However, it is right to say that, in my judgment, the biggest outstanding issue is the extent and form of judicial involvement in the process. That has been raised by a number of colleagues from my party as well as by other parties.

I intend to set out the judicial process that is within the legislation and then to confirm again the remarks that I made to my right hon. Friend the Member for Livingston earlier. Before I do that, I will give way to an array of talent on the Opposition Benches.

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