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Mr. Oaten: If it is the right hon. Gentleman's view that the part 4 law could be extended, what would his judgment be in those circumstances about what to do with the detainees in Belmarsh? Given that the Home Secretary has said that he does not believe that there needs to be house arrest, I am assuming that we would need part 4 to detain the people in Belmarsh. What would the right hon. Gentleman do with them?
David Davis: It is not for me to make judgments on the safety or otherwise of the individuals concerned. It is for us in this place to lay down the rules. One possible piece of primary legislation we could add would be to ensure that bail conditions amounted to the control orders that are laid out in the Bill, if need be, for the duration of three or six months, not in perpetuity and not applying to all British citizens. That is a possibility. That is as close as I will go in commenting on individual cases.
Yesterday, I asked the Home Secretary a number of questions on the substance of the Bill. I have to say that I received no answers to them. Under the proposals that are before us, for the first time in modern British history a politician will be able, by order, to constrain the liberties of a British subject. He would do that either on the balance of probabilities or merely on simple suspicion. He would do it for reasons and on evidence that may not even be known to the British subject who loses his liberty. Virtually every control order costs the subject some liberty. We should not differentiate on that basis. There is not a step change, as it were.
I repeat a quote which I used yesterday from one of the Law Lords, Lord Rodger. He said:
"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 the Government adopted, and it emerges in any event from paragraph 36 of the Home Office discussion paper "Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society", which was issued in February 2004. The document states that
"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."
Mr. Charles Clarke: Does the right hon. Gentleman recognise the following remarks?
"Those who advocate transferring to the judiciary the power to authorise detention before charge need to ask themselves whether decisions based on intelligence material can really be considered appropriate for judicial consideration . . . We would be asking the judges to perform what is, in essence, an Executive function."—[Official Report, 9 March 1994; Vol. 256, c. 298.]
Those were the words of the Leader of the Opposition when he was Home Secretary in 1994.
David Davis: The quotation is from an exchange in which the current Prime Minister said that it was vital that when the liberty of subjects is curtailed, it should be done by the judiciary and not the Executive. The Home Secretary should check the entire exchange and fire his research assistant.
The Home Secretary told the Home Affairs Committee that the terrorist threat had not materially changed in the past year, so presumably the earlier comment about draconian powers being difficult to justify is still true. He reinforced the point with his comment that the security services do not believe that they need the full extent of the powers in this Bill at this point in time.
This question, which runs right through the debate, must be asked: what is the immediate emergency that demands that draconian powers against British subjects should be rushed through the Houses of Parliament without proper consideration, scrutiny or debate? What is the emergency that has arisen in the past 12 months that demands that 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—without proper debate?
The most substantive concern about the procedure, and it is not the only concern, that the Home Secretary mentioned half a dozen times in his opening remarks is that it is proposed that a British citizen will face the loss of liberty on the decision of the Home Secretary, on suspicion alone and on evidence that the accused never sees. Why should that decision be made by a politician and not by a judge? Earlier today, the Prime Minister suggested that that will allow for speed, but in the most risky case a terrorist can be locked up for 14 days. The previous Conservative Government initiated that law and this Government have extended it. That period is far longer than is necessary for a judge to make a decision, even under the review procedure proposed by the Home Secretary.
There are good reasons why the Home Secretary should not take such decisions. Imagine the pressures on any politician, and on the Home Secretary in particular, after a terrorist outrage. Imagine the temptation to be better safe than sorry and to put away everybody, which are precisely the circumstances in which a miscarriage of justice will occur.
Yesterday, the Home Secretary unequivocally stated in his response to the hon. Member for Winchester (Mr. Oaten) that he should take those decisions rather than a judge, because of the principle of Ministers' accountability. Within minutes, another Member asked him to comment on a particular case. The Home Secretary replied that he is unable to comment on individual cases, at which point the principle of
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Ministers' accountability unravels. The nature of the decision is that it is taken on secret grounds, which he cannot share with the House, and that he is unable to comment on the individual case itself. His principle is one of false accountability. Real accountability requires the House to be able to question and the Minister to be able to answer, and that level of accountability cannot exist on this issue.
Mr. Beith : The matter concerns more than secrecy. It has never been a desired principle of our legal system that Ministers should come before the House to explain why they have decided that A should be locked up and that B should not. Even if secrecy were not an issue, in this country we have never sought to make such decisions in that way—we have left it to the judiciary, without attaching any kind of political process to it.
David Davis: The right hon. Gentleman is entirely right. I was simply demonstrating the ludicrous nature of the thesis of ministerial accountability in individual cases.
Mr. Desmond Swayne (New Forest, West) (Con): The Prime Minister gave a rather different answer to the leader of the Liberal party, who asked precisely the same question earlier this afternoon. He said that the argument was the need for urgency, but we all know that the police already have the power to lock up people for 14 days.
David Davis: My hon. Friend is correct. The leader of the Liberal party also asked why judges should not act quickly—they act quickly on warrants in any event. The urgency issue is a complete red herring.
David Davis: I will give way to the hon. Gentleman who, although we disagree about this matter, has an outstanding record.
David Winnick: Under the previous Administration, in which the right hon. Gentleman served, one of my constituents, a Sikh, was detained and imprisoned indefinitely without any court action. He was only released because the European Court of Human Rights ruled on the case of another Sikh, who lived in Bedford, as a result of which my constituent was allowed out of prison. There was no court process whatsoever.
David Davis: I will take another intervention if I am wrong, but I believe that the hon. Gentleman is referring to the Chahal case, which occurred before a deportation. The Home Secretary got that point wrong when he discussed how the French hold people. In France, people are held prior to trial, which is different from holding someone indefinitely.
David Winnick:
My constituent had lived here lawfully for many years and was the editor of a Sikh journal. He was accused of being involved with terrorism not in the UK, but abroad. However, no court process occurred and, so far as I understand it, there was no question of his being deported. He was just held in prison until the Home Secretary decided on the case. I
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took a deputation to see the then Home Secretary, who is now the Leader of the Opposition, on that matter. My point is that people have been locked up previously without court action, as we know from the 18B regulation, which was introduced at the start of the 1939 war.
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