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Mr. Mark Oaten (Winchester) (LD): I wish the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore) well in his retirement if that was indeed his last speech. Although I do not agree with all the points that he made, I admire his passion and commitment.

We are dealing with extraordinarily complex circumstances. It is easy for us to make the sort of speech that the hon. Gentleman delivered, draw on historical values and discuss the strong principles of justice that are changing. I do not intend to make such a speech. I
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shall leave that to others who are more eloquent and have a stronger sense of history than me. In the next 20 minutes or so, I shall treat the subject as a practical issue, ascertain whether we can find a way forward and bluntly analyse where there is agreement and disagreement.

Let me begin with agreement. There is probably cross-party agreement that none of us underestimates the issues that we are tackling in this post-9/11 era. None of us underestimates the serious terrorist problems. The Home Secretary's analysis of how matters have changed was spot on. The global implications that he outlined are especially important. They have made the world in which we live different—not only the type of terrorists but their ability to operate globally, with all the communications systems that exist, have changed enormously.

I think there is also agreement—cross-party agreement—on the fact that we have due respect for the intelligence services, and owe them a great debt of gratitude for what they have done over the past three or four years. We want, on a cross-party basis, to give them all the tools that they need in order to do their work. There is also agreement, I believe, that we must do something about the current situation. I am uneasy about what may happen in four or five weeks. If we have no legislation we will create a vacuum, and I do not think we want that. Something must be done to deal with the difficult circumstances.

David Davis : I took the precaution of finding out before the debate what would happen if the Bill were not passed. I do not know whether it will be passed at this point, but if it falls there will still be time on the last day for part 4 to be extended by however many months are necessary. The Government can do that instantly if they need to.

Mr. Oaten: I will say later whether I think that that is the right thing to do. My starting point is that we should all agree that we must achieve something on 14 March. We cannot allow a vacuum to exist because of political differences; we absolutely must do something.

There is a fourth area of agreement. I think that the Government have been forced to reach that agreement, but in any event they now agree with us that the current measures are not acceptable. We have felt that for some time, as have the official Opposition. Because of the Law Lords' ruling, we have at least secured an acknowledgement from the Home Secretary that we cannot maintain the present situation, particularly in relation to the Belmarsh detainees.

Simon Hughes : For the past four years, while we have been arguing collectively with the Government, we have consistently said that there is an alternative to detention without trial and have consistently proposed constructive alternatives. The Government have put themselves in this position by refusing to listen during those four years.

Mr. Oaten: When my hon. Friend was doing the job that I am now doing, he was clear about our determination, whenever we had to decide what to do with a derogation, not to ignore it but to suggest
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alternatives. I take that approach as well. We have made such suggestions at various times, and we could have had this debate some time ago, but at least we are having it now, and I think it is agreed that we must now move on.

There is agreement on another matter—helped, I think, by what I considered to be a constructive speech by the Home Secretary. He reiterated that prosecution should be the starting point, and I think we all agree that we should seek prosecution in these cases. Nevertheless, I take the point made by a number of Members that it would be helpful to enshrine that starting principle in the Bill. At present, we have only the Home Secretary's words, and, as some of his hon. Friends have suggested, the principle does not come across strongly enough.

There is some agreement on another issue, which, although we have not discussed it yet, is relevant. Our long-term objective is an international situation in which deportation is a proper solution. I shall deal later with the respects in which we disagree with that, but there is surely consensus that we must be heading there at some point.

I am now convinced of the Home Secretary's arguments that in relation to the current detainees, intercept communication would not have been a useful tool for the purpose of achieving prosecution. I shall deal with the differences between us later, but in the context of that narrow aspect I accept that intercept communication would not have dealt with the existing problem.

There has been some interesting movement on control orders this afternoon. For some time we have argued against a black-and-white approach, suggesting that another tool is needed to deal with the complex issues and that control orders would be useful. There are differences on how they should be introduced, and I shall say something about that shortly, but at least there seems to be cross-party consensus that control orders have a role to play. The right hon. Member for Haltemprice and Howden (David Davis), who is having a little natter at the moment, implied earlier that the Conservatives were prepared to consider them in some shape or form. Let us bank that, and see if we can move on. We may not like control orders—I am not wild about them myself—but hey, we are trying to find a sensible solution to all these problems.

Mr. Grieve : I accept that one may have to swallow the extremely unpalatable, but every hon. Member should be concerned about the principle of control orders. It is a departure from our established principles and threatens our liberties greatly.

Mr. Oaten: I do not underestimate any of that, and I shall explain how we can make the control orders work and deal with our principles. One has to have other schemes to deal with this issue in addition to the possibility of jail. We have been prepared to say that we will look at control orders—subject, obviously, to the principles that I shall outline later.

Clare Short (Birmingham, Ladywood) (Lab): I am not convinced of the case for control orders. I am absolutely convinced of the case for keeping people under surveillance. In fact, I want them to be listened to
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on the telephone. I want our security services to find out who they are in touch with and get the information if there is a plot. We can then use that information and arrest. The hon. Gentleman does no honour to his party by so quickly giving away the principle.

Mr. Oaten: I would not say that I have given that away quickly, or that an enormous issue of principle is involved in control orders. The issue is: how do we impose those control orders and on what standard of proof do we impose them? Those are pretty big principles and I shall fight for them, but I am prepared to throw control orders into the equation of the debate to try to find an alternative to holding detainees in the way that they are currently held.

The next area where there is some agreement, or at least where some progress has been made, is the Home Secretary's acknowledgement that there needs to be some judicial involvement in this process. We disagree about where that should be, but it is worth putting on the record that we welcome the fact that, in arguing that the judicial process should be a reviewing mechanism, he has at least moved to strengthen the reviewing mechanism. Derogating control orders will be referred automatically within seven days and judges will be able to look at the evidence independently, rather than just making an assessment following the Home Secretary's decision, which is welcome.

There remain peculiarities in the proposals. The point has been made about the powers that judges would have to redirect the Home Secretary. That raises the question whether the Home Secretary would be bound to listen or could play ping-pong back and forth between the judges.

There is agreement on a point about which I know the Home Secretary cares a lot. He argues continually that he has responsibility for national security. We agree, but we do not necessarily agree that that means he must have the power to make these decisions separate from a judge. We believe that he could keep and fulfill that responsibility while meeting the requirements. The Home Secretary has responsibility for national security, but not for reviewing individuals case by case in the way he suggests.

Mr. Marshall-Andrews : The hon. Gentleman speaks warmly of the Government's advance towards judicial review, but has not he picked up the point that there is no judicial review of a control order that deals with the restriction on movement, the restriction in respect of work, the restriction in respect of association, the restriction in respect of residence, where someone can live, whether they have a passport, whether they are to be tagged, who they talk to, and whether they can talk or not? There is no judicial review on any of those issues. Have the Liberal Democrats not picked that up yet?

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