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Several hon. Members rose—

Mr. Clarke: I first give way to the right hon. Member for Berwick-upon-Tweed (Mr. Beith).

Mr. Beith: During yesterday's statement, the Home Secretary said that, when such proceedings come before the High Court or the Court of Session, special advocate procedures might be used. Will he bear it in mind that the Constitutional Affairs Committee yesterday received chilling evidence from nine existing special advocates about the difficulties that they face during such proceedings? Will he clarify—it is unclear in the Bill—whether it will be for the High Court and the Court of Session to decide the kind of special advocate proceedings that they will use, if any, or is there another means by which he intends to impose those proceedings on the courts?

Mr. Clarke: I take the right hon. Gentleman's point. Both the Attorney-General and Lord Carlile, in his review of the special procedures, have made similar points. I have not yet had a chance to study the evidence given yesterday in detail—I have only read reports of it. However, I confirm that we accept the need to review the procedures to try to deal with several points that have been made, and we will carry that through.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): I agree with the Home Secretary that judicial protection is important, but does he accept that that is somewhat undermined by paragraph 8 of the schedule to the Bill, which provides that, if an order is quashed, the Home Secretary may make the same order again while relying on the same evidence?

Mr. Clarke: Not at all. The role of the Court is still clearly established.

Mr. Marshall-Andrews: Following on from the point about South Africa that my hon. Friend the Member for Northampton, North (Ms Keeble) has made several times, the High Court's jurisdiction on judicial review extends only to law and procedures, as my right hon. Friend is well aware. Will he state unequivocally that the only review of all the matters to which clause 1 refers—restriction on movement, restriction on work, restriction on association and so on; they are similar to the pass laws in many ways—will be on matters of law and procedure, and that the court will be enjoined that it cannot interfere on matters of fact? Is that right, because it certainly seems to be what appears in the Bill?

Mr. Clarke: I do not think that it is right. We are setting out two different processes, depending on whether derogation applies or not—whether or not there is deprivation of liberty. My hon. and learned Friend is right about non-derogating issues, but not derogating issues.
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Richard Burden (Birmingham, Northfield) (Lab): May I raise a similar point, although I am now a little confused? I think that the Secretary of State said that different procedures would apply for non-derogating and derogating orders. However, he earlier said that one or more of the non-derogated matters could become derogated if they were in a particular combination. What would be the procedure for that, and who would decide it?

Mr. Clarke: The legal power to establish a range of orders under the Bill means that an order for the deprivation of liberty will be made by the Home Secretary and confirmed by a judge. If it were argued that a combination of measures added up to a deprivation of liberty, the judge would make a judgment on that, the Court of Appeal would carry the procedure though and the situation would be dealt with. The case would trip over on to the different process.

Mr. Win Griffiths (Bridgend) (Lab): I am pleased that the Home Secretary said that his mind is still open about whether primacy should lie with him or the judiciary. What is the likelihood of his Department tabling an amendment before Monday—I know that the situation is complex because I have been trying to find a way to amend the Bill—that would make it absolutely clear that the judiciary would make a decision based on evidence provided by the Secretary of State about what he is minded to do in such extreme circumstances?

Mr. Clarke: I say again what I said earlier to my right hon. Friend the Member for Livingston. I assure hon. Members that I shall continue to give careful consideration to the issue. That means that I shall examine the appropriate language to deal with the situation.

Mr. Betts: May I return to the judicial process for non-derogated orders? Is it not correct that, when judges consider a case, they will not look at it afresh and reach their own decisions based on the evidence, but decide whether the Home Secretary has behaved reasonably by coming to the view that he has reasonable grounds for suspicion? Surely that is an extremely low-level test for taking fairly fundamental rights away from British citizens?

Mr. Clarke: My hon. Friend is right in what he says, but it is not a low-level test: it is a serious test of a serious, difficult matter. It is an important point for him to make, and I understand why he makes it, but I do not think that it is a low-level test.

Mr. John Bercow (Buckingham) (Con): Whether judicial decision is made in the first instance, as we believe it should be, or in the last instance, as the Home Secretary prefers, is surely a fairly fundamental matter of principle. Can I therefore take it, from his response to the hon. Member for Coventry, South (Mr. Cunningham), that the Government's readiness or otherwise to back down next week will depend very much on the size of the revolt this week?

Mr. Clarke: I have become accustomed over the years to admiring the hon. Gentleman's contributions to
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debate. However, on this occasion, I cannot respect what he says, as it is simply not correct. We will consider the matter on its merits.

Mr. Blunt: To follow up the point made by the hon. Member for Sheffield, Attercliffe (Mr. Betts), surely the test on the Home Secretary, if we are to accept the Bill, should not be that he should be satisfied on the balance of probabilities but beyond reasonable doubt. He is making a test based on no evidence from the defence at all, solely on the case being put to him by the authorities. Why is that test, in those circumstances, not beyond reasonable doubt before he seeks to deprive British citizens of their liberty under a derogating order?

Mr. Clarke: I am afraid that the hon. Gentleman confirms what he said earlier. Effectively, he is of the view that a control order regime should not be in place. He is entitled to argue that, but I do not accept that position.

I have given way a great deal in this debate and have spoken for just over an hour. I know that a lot of people want to come into the debate.

Mr. Grieve: Can I take the Home Secretary back a moment, as this issue goes to the root of some of the problems that the House faces? He expressed concern about the special advocate procedure and said that he shared such concerns, and yet if he reads paragraph 75 of Lord Carlile's report, he will see that he highlights the concerns, saying that he is slightly surprised to have to repeat unfulfilled suggestions from his report a year ago. Does not the Home Secretary understand that one might have greater faith in the Government in these matters had they already responded positively to previous suggestions?

Mr. Clarke: That is a debating point, which the hon. Gentleman is entitled to make. I want to put on record that I appreciate the work of Lord Carlile. The hon. Gentleman should examine carefully his report, as his approach in reviewing the legislation confirms precisely the need for the kind of regulation that we have now, because of the threat established.

I said at the beginning, and now conclude by saying, that on the four key principles that I have established and set out, this Bill deserves the support of the House. I hope that it will be agreed today, and I hope that, through agreeing it, we will be able to provide even stronger and more effective protections against the dire threat posed by international terrorism to this country.

2.52 pm

David Davis (Haltemprice and Howden) (Con): I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:

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I shall start by attempting to put this debate on a proper basis. First, the Home Secretary started with rather a good description of the state of terrorism today. I did not agree with all his five categories for differentiating al-Qaeda, but there is no doubt that it constitutes a qualitatively different set of terrorist threats than existed before. That does not mean that we should throw away all that we have learned in this country in dealing with terrorist threats in the past. It does mean, of course, that we should alter our tactics accordingly. However, we should not throw away the civilised standards of which this country has become proud over the centuries.

I want to make two other points to the Home Secretary. Yesterday, he accused his opponents on this issue of, I think, playing politics with terrorism. That accusation is neither helpful to this debate nor in any sense serious. The easy political line in this sort of debate is to tub-thump about the threats, to raise the temperature and to talk about draconian penalties for terrorists. The harder line is to raise questions of principle, liberty and the proper process of British justice. The easy but, in my view, irresponsible approach would have been to roll over and let the Government legislate in ways that reduce liberty and harm long-standing, important traditions of British justice, which might even worsen rather than improve the terrorist situation.

Secondly, the Home Secretary alleged yesterday that the alternative to what he recommends is that we do nothing. That is clearly and patently untrue. It does not reflect well on the strength of his arguments that he needs to put up such an Aunt Sally. Not only have we made alternative proposals, but I and my predecessor made a number of those proposals to his predecessor, giving the Government a great deal of time to consider them.

Let us take, for example, the proposal that has been raised several times in interventions today, and which the Home Secretary has rejected—that intercept evidence should be used in court to enable more terrorists to be brought to justice and locked up in a prison, not in their living rooms. I said to the then Home Secretary in February 2004:

The Newton committee highlighted one aspect in particular on which we believe that the Government should act. Paragraph 208 states:

We agreed. That conclusion was reached by Lord Lloyd in his 1996 review. It had the backing then of Lord Carlile and has been advocated in relation to terrorist cases for many years by the right hon. Member for Upper Bann (Mr. Trimble). It has had the support of successive Chief Constables in Northern Ireland and of Sir John Stevens, as well as support in the United States and in other areas.

In the United States, extensive details of intercept capacity are published and are a matter of public record.
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They will therefore already be accounted for in al-Qaeda's behaviour, training and tactics. It is therefore difficult to see how knowledge of our much smaller intercept capacity in this country could make much difference to the training and tactics of al-Qaeda, especially when that is measured against the value of such information in court. That exchange was one year ago.

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