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Mr. Llwyd: Given what the Home Secretary has just said—that there are legitimate disputes about the
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contents of the Bill—why is the debate limited to two days? That is a question that perplexes all hon. Members, on both sides of the Chamber. The Bill deserves far more consideration that it is being given.

Mr. Clarke: Of course, I hear that argument. It is one that is made by a number of colleagues and it is frequently made when matters of this kind are considered. It has legitimacy, or not. It is an issue. I believe that the time available, both in this House and the other House, is ample to consider these questions. He obviously disagrees and other Members disagree, but that is an issue to be resolved.

Malcolm Bruce (Gordon) (LD): Has the Home Secretary not just described himself as being between a rock and a hard place? If he is not prepared to extend the existing regime—he is quite right to refuse to do so—and he cannot get the legislation through both Houses in the present circumstances, is not the right thing to do to concede that it should be a judicial decision and to stop the charade of trying to pretend that he can maintain his own position?

Mr. Clarke: I think that being between a rock and a hard place is part of the job description for this particular job, but I hope that my shoulders are broad enough to push the rock or the hard place aside to try to get to a solution if I can.

Simon Hughes (Southwark, North and Bermondsey) (LD): May I pursue the constructive approach of my hon. Friends and suggest two other reasons why I hope the Home Secretary will be persuaded of the case for making the sequence of events different? The first is to do with the urgency point. He will know well that courts can be summoned and judges can be called on at any hour of the day and throughout the weekend, at any time. Secondly, it would be far better for the upholding of the authority of Government, of any party, for Ministers to have their proposal endorsed by the judiciary, rather than what has happened to many Home Secretaries, which is to have their decision overturned by the courts. It must be better for an idea of his, on advice, to be backed up by the courts at the beginning, rather than undermined a week later.

Mr. Clarke: That is part of the argument. Let me set out our proposals clearly, so that colleagues can see where we are.

Ms Keeble: This builds on my previous question. The Home Secretary indicated in his reply that any of paragraphs (a) to (o) could require a derogation. Is that true? Or is it a certain combination of them? Secondly, under the list of offences, will collusion in the breach by a controlled person be an offence as well—for example, if somebody visits someone outside the hours, employs them, and so on?

Mr. Clarke: On the first point, I did not say, because it is not the case, that any of the orders, individually themselves, would be a breach of deprivation of liberty. What I did say was that that may be the case for one or more of them. Moreover, if some of those orders were used in combination they could, combined, add up to a
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deprival of liberty. How that was dealt with would be a matter for legal judgment at the time. On my hon. Friend's second point, I think that the answer to the question is yes, but I will take advice on that before properly answering the point.

Mr. A. J. Beith (Berwick-upon-Tweed) (LD): The answer is yes.

Mr. Clarke: I look at the right hon. Gentleman, who is a member of the Intelligence and Security Committee, and if he says the answer is yes, I know it must be yes.

Mr. Clive Betts (Sheffield, Attercliffe) (Lab): Can my right hon. Friend confirm that, given the different powers under clauses 1 and 2, if he concludes that a combination of the various measures under clause 1(3) is required which amounts to a deprivation of liberty, the test will be different in relation to whether the control order should be imposed and will be based not on reasonable suspicion but on balance of probabilities?

Mr. Clarke: My hon. Friend is correct. Just to make it absolutely clear, let me say that, if there had been a derogation and there were then a deprivation of liberty by an individual order or a combination of orders, the higher standard of proof established in the Bill would be required.

Let me conclude by setting out quickly what the judicial proposals are.

Mr. Jim Cunningham (Coventry, South) (Lab) Will the Home Secretary clarify whether the undertaking that he gave my right hon. Friend the Member for Livingston (Mr. Cook) will materialise in Committee? In other words, when will we know the conclusion that the Home Secretary has reached?

Mr. Clarke: I will stick by the commitment that I gave, so I hope that what I said will be clear when the Bill is considered in Committee.

Mr. Graham Allen (Nottingham, North) (Lab): On a point of order, Mr. Speaker. I apologise to the Home Secretary for interrupting his speech, but I seek clarification on procedure. I understand that the Committee stage of the Bill will take place on Monday. Am I right to assume that any amendments that hon. Members might wish to table as a result of the Home Secretary's open-mindedness would have to be tabled before the close of play tomorrow? We might have difficult technical questions about drafting with which we may need assistance before then.

Mr. Deputy Speaker: The hon. Gentleman will know that the Clerks of the House are well capable of giving assistance to hon. and right hon. Members. Obviously selection has not yet taken place, and the selection process will be as sympathetic as possible to hon. Members, given the circumstances and the context of the Bill.

Mr. Clarke: I am grateful for your clarification, Mr. Deputy Speaker.
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As my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) implied, different procedures are proposed for the judicial scrutiny of derogating and non-derogating control orders. Under the Bill's provisions on non-derogating control orders—those considered beneath the requirements that apply to the deprivation of liberty—an individual may appeal against the making of an order to the High Court. When considering the appeal, the Court must adopt the approach that it would use for an application for judicial review. I anticipate that, in cases that involve a consideration of human rights, the Court will apply greater scrutiny to the Secretary of State's decision and examine closely whether any interference with convention rights is proportionate. There will be a specific obligation to examine such matters carefully.

On derogating control orders, which are dealt with in clause 2 and other provisions of the Bill, there will be an automatic two-stage process for challenging the order. First, clause 2 provides that a derogating control order must be referred immediately to the High Court, which must consider within seven days whether there were reasonable prima facie grounds for making the order. If there are such grounds, the second stage will be that the judge will automatically refer the case for a full hearing by the Court, at which it will make its own decision, following a consideration of all material, about whether, on the balance of probabilities, the individual is or was involved in terrorism-related activity, and about whether the control order and each of the obligations were necessary.

Several hon. Members rose—

Mr. Clarke: I shall give way when I reach the end of this point, as I have done throughout my speech.

The subject of the order will also have the right of appeal against any modification of a derogating control order, or a decision not to revoke or modify such an order. Just as with an appeal against the making of an order, there will be a full hearing at which the Court will reach its decisions on the relevant matters.

Mr. Robert Marshall-Andrews (Medway) (Lab): Will the Secretary of State give way?

Mr. Clarke: If we were to derogate from article 5 of the European convention on human rights, we would keep the need for any such derogation under review. The Bill thus provides for the Secretary of State—

Mr. Marshall-Andrews: Will the Secretary of State give way?

Mr. Clarke: I heard my hon. and learned Friend, and I shall give way in due course, as I have said to everyone else. He has a very loud voice—it is often louder than the wisdom of his remarks—and I shall certainly give way to him in a moment.

The Bill thus requires the Secretary of State to lay an order, subject to affirmative resolution, before Parliament each year after the first year to state that it continues to be necessary for the Secretary of State to have the power to impose derogating obligations by reference to the derogation, and derogating control
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orders shall have effect only beyond the first year of the derogation while such an order is in force. That represents the basis of the judicial engagement currently set out in the Bill.

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