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David Davis: If the hon. Gentleman were right—I do not think that he is because we are discussing an issue that arises prior to deportation—two wrongs do not make a right.

Mr. Allen: I thank the right hon. Gentleman for his generosity in giving way again. Returning to his point about urgency, he mentioned the 14-day period for which people currently may be detained on suspicion of terrorist offences. Does he feel that that period is sufficient to accommodate the point made by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham)? Papers could be got together during that period to assess the possibility of a prosecution and the Director of Public Prosecutions could say yes or no, at which point the Home Secretary could, if it were necessary, seek a detention order from a High Court judge or an Appeal Court judge.

David Davis: I do not have an instant answer to that question, which I would have to examine in some detail before answering. Throughout the short duration of proceedings on the Bill, we intend to examine all such issues to see whether we can amend the Bill to make it acceptable. We are, after all, trying to achieve the right balance between liberty and the protection and security of the public. My argument today is effectively that the balance in the Bill is wrong.

Mr. Dalyell : In one way or another, the right hon. Gentleman has great experience of the security services. Does he share the unease felt by some Members about the information on which Ministers must base their decisions? In 1968, Harold Wilson wanted to appoint the then MP for Lanark, Judith Hart, to his Cabinet. The security services objected on the ground that Mrs. Hart had a communist background, but they had identified the wrong Mrs. Hart, who had nothing to do with the MP for Lanark and who was the wife of a distinguished professor at the university of Oxford. The Home Secretary knows that the security services did not distinguish themselves during the miners' strike—and we will leave weapons of mass destruction out of it.

David Davis: As ever, the hon. Gentleman makes his point elegantly.

That brings me to the question of the evidence on which the Home Secretary makes his decision. The Home Secretary proposes that control orders below the derogation threshold—tagging, communication restrictions and the like—should be made on the basis of reasonable suspicion, which is an even lower standard of proof than the assumption of the security services in the case of Judith Hart. Incidentally, the standard of proof is so low that it implies a large number of control orders, and I would like to hear what the Minister for Crime Reduction, Policing and Community Safety thinks will happen when she makes her winding-up speech.
 
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Secondly, though technically capable of challenge, the evidence will not all be seen by the accused—Judith Hart would not have known what she was accused of under these circumstances. Reports coming out of SIAC indicate that, sometimes, the evidence put at the secret hearing is materially different from that put at the open hearing, so much so that the nature of the actual charge is different in the closed hearing from that at the open hearing. That means that, completely contrary to all British principles of justice, the accused will not be able to answer the charge, even if he is absolutely innocent and has a cast-iron alibi.

That brings me again to the nature of the evidence. The former Foreign Secretary, the right hon. Member for Livingston (Mr. Cook), has expressed doubts about resting such serious action on unchallenged intelligence data because of the inherently unreliable nature of the information. He has a significant point, which was made even more firmly by the Father of the House.

As the Father of the House says, in previous years I have had various dealings with the agencies. It has become apparent to me that no matter how professional the agencies are—and clearly there have been unprofessional actions on their part—they are always entirely dependent on the accuracy of their sources. These sources are not James Bond with a Minox camera. Generally, they are associates of the target and are motivated by many things—money, greed, envy, malice, hatred and, sometimes, a wish to remove a rival. We are not talking about the most impartial of sources, leaving aside the gross error that the Father of the House mentioned. It is on the basis of suspicion, based on evidence such as that, that the Home Secretary wants to take for himself the powers to constrain the liberty of British subjects.

Mr. Hogg : May I reinforce my right hon. Friend's point by asking whether he read the letter in The Daily Telegraph yesterday from a man whose father was interned on the corrupt evidence of an informer—a particular case of someone being falsely accused? May I also remind my right hon. Friend that the Leader of the House was prosecuted at the Old Bailey, having been framed by the South African security services?

David Davis: My right hon. and learned Friend has a brilliant record in this area and remakes a good point that he made yesterday, which reinforces my point. We are talking about taking away people's liberty on the basis of suspicion, based on that sort of evidence, and without the scope for challenge.

Mr. Marshall-Andrews : Will the right hon. Gentleman reflect on the remarkable power in paragraph 4(3)(c) of the schedule—one of the comprehensible parts of the schedule—which says, in terms, that the Secretary of State shall not be required to disclose to the court any information or material that he has but does not intend to use? In other words, by statutory precept the Secretary of State is able to conceal disclosure that might be exculpatory.

David Davis: That is an excellent point, which reinforces my concern. I am presuming in all of this a Home Secretary of impeccable motivation who is given information that he will be encouraged not to allow to
 
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be challenged. That is simply not acceptable, because the price of mistakes in this area is very high. A miscarriage of justice is always a matter of real concern and, even with these control orders, such miscarriages of justice can wreck lives, even at this apparently low level.

Imagine the impact on a software designer of being denied access to the internet, or on a salesman of being denied access to telephones—it would be the end of his career. In causing harm to the individual, that will give ammunition to the enemies of the state that we are trying to stop with the Bill. The chairman of the Bar Council said:

      "Disproportionate measures risk radicalising the community from which a detainee comes. That may make this country less rather than more safe."

Mr. Denham : I should like to be quite clear as to where the right hon. Gentleman's argument is leading. He is making a case for saying that we should act only on the basis of evidence that can be heard in a criminal court and subject to those standards of evidence. It is a reasonable case if he wishes to make it. However, all of the arguments that he is currently making about evidence would mean that no type of control order and no measure short of a full criminal prosecution could be envisaged. Is that what he is saying to the House?

David Davis: The right hon. Gentleman—who, again, has a distinguished record in this area—is reflecting a suggestion that I made earlier, namely, a distaste for control orders. I am laying out a series of hurdles that we have to get over. One is the question of the judge. The hon. Member for Sheffield, Attercliffe (Mr. Betts) made a good point, saying that the fact that the judge only reviews the matter and judges whether the Home Secretary has acted unreasonably makes the level of proof that much lower again. We have an accumulation of effects that reduce the proposal to acting on suspicion, the dangers of which are large.

To answer the right hon. Gentleman directly, the question that we will be pressing through the course of the Bill is whether it is capable of being turned into something consistent with long-standing traditions of British justice and will help in the fight against terrorism, rather than give ammunition to our enemies.

Mr. Cash : Has my right hon. Friend noticed that the provisions relating to the repeal of sections 21 to 32 in part 4 take effect on 14 March? On the same date, of course, the Bill will be enacted or, at least, will be passed by the House. The problem is that there will then be two different rules of law applying, because the repeals that are set out specifically are kept, in effect, during the continuation of appeals. It appears, subject to discussion in Committee, that there will be two sets of laws operating at the same time, which will create even more confusion.

David Davis: I accept my hon. Friend's expertise in the matter. I had not considered the point and it is not central to the thrust of what I am saying. However, I take his point—it indicates, yet again, that this is an ill-thought-through Bill.

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