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Mr. Oaten: I think that the hon. and learned Gentleman is trying to be helpful, but I was going through the bits that I agree with. If he will give me time, I shall get on to the bits that I disagree with. However, let us try to be constructive and say, "Where can I, from my perspective, bank an agreement?" On derogating control orders, there has been some movement from the
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Government to acknowledge that the judicial review process should be strengthened. I do not think that that is the right way forward, but I acknowledge that they have made some movement in that direction.

Mr. Hogg : Will the hon. Gentleman give way?

Mr. Oaten: Before I am criticised for supporting the Government, I would like to get on to the bits that I disagree with, but I give way.

Mr. Hogg: Even if one is trying to improve judicial oversight, it is essential that the interests of the detained person are properly represented. Does the hon. Gentleman accept the critique by Lord Carlile of the role of special counsel? It is plain that the special advocate can barely discuss a case with the detained person.

Mr. Oaten: I entirely agree with the right hon. and learned Gentleman. That is indeed one of the weaknesses that we are trying to highlight.

Having acknowledged some movement on areas of agreement, let us now move on to areas of disagreement and then perhaps seek some ways forward. I want to deal quickly with deportation. We disagree because we would like much stronger reassurances on human rights issues. It is not satisfactory for Ministers to be exchanging memorandums on these issues. The orders must be binding and tested, and we must have some reassurance that, before we proceed with any deportations, proper human rights principles are in place.

We disagree about intercept communications, but the Home Secretary said that he wants to leave the door open. When he made his statement yesterday, I suggested that one way to make progress would be to re-establish the Newton committee or some other body to consider sensible ways in which we could use intercept in certain cases in six months' time.

The main area of fundamental disagreement is the point at which the judicial process kicks in. The Home Secretary believes and insists that it should be after the event; we believe that it should be at the beginning of the process. There is a big gulf between us and it is difficult to see how we can find a way forward as the Bill proceeds through Parliament. It is an important principle—not just a matter of having a timeline and deciding when things should happen—because a politician is being given the ability to restrict the liberties enjoyed in this country solely on the balance of probabilities. That represents a break with years of our history and the Liberal Democrats are extremely uncomfortable with it.

Rob Marris (Wolverhampton, South-West) (Lab): I share the hon. Gentleman's concerns, as I believe that the Home Secretary should make an application to a judge in the first instance to get the process moving. My right hon. Friend has already agreed today to have another look at the problem. If, after further reflection, it were decided that the application should first go to a judge rather than to the Home Secretary, would the Liberal Democrats support the Bill?

Mr. Oaten: I want to be as transparent and open as possible about this matter, and if we saw some real movement, we would certainly be in the business of debating some of our other concerns about the Bill.
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That deals with one critical issue. I am trying to be as helpful as possible, so I shall move on to raise some further issues on which we want reassurance. My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) provided another compelling reason for ensuring that judges are involved at the start of the process when he referred to the continual embarrassment of the Home Secretary in having his decisions overturned by judges as time goes on. That is a strong argument.

Our next major disagreement is over standards of proof. I acknowledge that the wording has now moved a little in the right direction, but not far enough for us. As the Bill proceeds, we must carefully examine the different standards of proof that apply, particularly when we are talking about depriving individuals of their liberty. The highest standards must apply when we are contemplating house arrest or detention, but I disagree with the idea that it is acceptable to have reduced standards of proof for some lower-level control orders. Fundamental issues about liberty may still be at stake when methods other than house arrest—curfew and tagging, for example—are adopted. People are deprived of their liberty in those cases, too, so we would require a great deal of convincing that lower standards of proof were acceptable.

The same applies to the issue of whether evidence can be heard. The right hon. Member for Southampton, Itchen (Mr. Denham), the Chairman of the Home Affairs Committee, intervened on the shadow Home Secretary to ask about the effect of these issues on the operation of control orders. I accept that, in some circumstances, it is not possible to bring in all the evidence, but we want a sensible debate with the Government about ensuring that as much evidence as possible, and the highest possible standards of proof, are used in these cases.

Rob Marris: The hon. Gentleman is trying to be constructive, as I am. Would he accept the balance of probabilities as a standard of proof in clause 1 cases? Would that be acceptable?

Mr. Oaten: I am not prepared to concede that at the moment. I would want further discussions about a range of possibilities on standards of proof.

Mr. Beith: Does my hon. Friend agree that it is important to make it clear that a judge's decision relates to non-derogating as well as to derogating orders? Both are eventually subject to judicial review, contrary to what was stated earlier, but should not the initial decision in respect of both types of order be made by a judge?

Mr. Oaten: I agree with my right hon. Friend.

On derogation, we have a peculiar situation. The Home Secretary argues that he will not require derogation in respect of house arrest, but seems to want to have it available in the bottom drawer of the Bill so that he can revisit it at some point. So far, no one has made it clear why a derogation may be necessary. The
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relevant wording is quite powerful and makes it clear that a derogation should be imposed only when there is an

We should be under no doubt that a derogation demands quite a high level of threat. Moreover, the House should recall that this country is the only member of the Council of Europe that requires a derogation.

Mr. Grieve : A moment ago, the hon. Gentleman raised the question of the standard of proof. It is all very well to say that we want to raise it, but the central principle of normal justice systems is that the other side is able to put its case, which means that it must be in a position to answer an allegation. Does he agree that we must be aware that buzz phrases such as "standard of proof" and "balance of probabilities" can easily become meaningless when the system being devised is unfair?

Mr. Oaten: The hon. Gentleman is right, which is why judges should make the assessments, and why we must ensure that defendants understand the evidence. For people to be able to defend themselves, they must be able to understand the charge. Preventing miscarriages of justice means that they must also be able to see the evidence.

Mr. Hogg: The hon. Gentleman is approaching the question of whether there is a threat to the life of the nation. Is he aware of what Lord Hoffmann said in the Belmarsh case? He said:

Mr. Oaten: The right hon. and learned Gentleman makes an important point. The question of the derogation must be matched against the judgment of the Law Lords, to make sure that we meet the very strong demands that derogation would require when we take away people's liberty.

My second point in respect of derogation is that we are not convinced that some of the lesser issues covered by control orders would not also require some form of derogation. When the Home Secretary made his statement yesterday, I asked what legal advice he had received on that question. It would be helpful if that advice could be published within the next 48 hours, for example, so that we can see what assessment has been made as to whether the various control orders require a derogation.

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