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David Davis: The hon. Gentleman spoke about meeting the Law Lords' requirements, but he ought to read everything that they said. Several of the Law Lords said that they did not think that this injustice could be solved by extending it to all British citizens.

Mr. Oaten: The shadow Home Secretary mentions another interesting matter. We have not probed the Home Secretary on that yet, but it will be interesting to know how far he expects the Bill to help in an area where he has previously lacked legal support. We have been
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talking about foreign nationals, but we have not asked how much the Home Secretary and the intelligence services believe they need the Bill to help with British nationals. When the Minister for Crime Reduction, Policing and Community Safety winds up the debate, I hope that she will say whether she envisages that about 100 or 150 control orders will be issued in the future. Conversely, is it her assumption that the proposed new system will deal with roughly the same numbers of people as is presently the case with foreign nationals?

I have set out where my party agrees with the Government in this matter, and where we disagree. I now want to float some suggestions for a possible way forward in a number of areas. We could achieve cross-party support on control orders and the point at which the Home Secretary would become involved in the process. In exchanges at Prime Minister's Question Time today and during the Home Secretary's statement yesterday, it became clear that there were two barriers to the Home Secretary's agreeing to our suggestion that he should apply to a court in the first place. First, he argues strongly that he has national responsibility for making the decision. We believe that he would not be derogating from that duty if he assessed the intelligence information himself, made a judgment and then applied to a court. I cannot see how that route would leave him open to criticism for failing to meet his responsibilities.

Secondly, objections were expressed both by the Home Secretary and strongly today by the Prime Minister about the time issue. Again, I think we can overcome them. As hon. Members have said, individuals can currently be held for 14 days. I have received legal advice that that may not be adequate to help the Home Secretary with the difficulty of dealing with terrorists. The ability to hold an individual for 14 days is based on the assumption of an investigation taking place and a charge being made. If that were the case, we would work constructively with the Home Secretary to find another way to allow him a limited emergency power for a short period on the assumption that all that was being done was that an individual was being held before the Home Secretary applied to the court for an interim order to start the judicial process. We accept that all the papers and arguments might not be forthcoming within 24 hours. However, because an interim order would be in operation, we would allow some time to elapse so that the papers and the full case for a control order could be advanced. I believe that that meets the concerns about the Home Secretary fulfilling his responsibilities for national security. It would meet the concerns that he and the Prime Minister have expressed about time scales, as he could act the minute that he had the intelligence information. It would also meet the concerns of Liberal Democrats and other hon. Members about the need for a proper judicial process. I hope that in Committee we will have a sensible dialogue about those issues.

Mr. Kidney : The hon. Gentleman and the shadow Home Secretary advanced the premise that everyone who is served with a control order is already in police custody, but that will not necessarily be the case. Would the hon. Gentleman consider making another
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suggestion to the Home Secretary: that he should be able to go to the judge in the absence of the individual concerned to get a control order served, then the court proceedings could carry on?

Mr. Oaten: I am happy to accept that suggestion, as it is precisely what I was arguing. I assumed that there were no control orders in place and that we were dealing with a fresh piece of intelligence. What, for example, would the Home Secretary do if he were about to have supper on a Saturday night when he received a phone call at 7 o'clock and was given fresh intelligence? I want to find a helpful way of enabling him to manage that process. We could find a further way forward if we secured a promise and a commitment to look at where and at what point different standards of proof apply. It would also be helpful if the Home Secretary gave, first, a commitment to look again at intercept communication with a proper organised structure and timetable and, secondly, an early commitment to consider seriously new laws on acts preparatory to terrorism. That is the constructive approach that we will take in the next week or so as the Bill proceeds through both Houses.

I shall conclude with the dilemma of what we do with the current detainees in Belmarsh.

Mr. Beith: I wish to raise a matter that my hon. Friend mentioned earlier. We have to do something with special advocate procedures and the disclosure rules that surround them if any process is to become viable. As these matters will not be for the Special Immigration Appeals Commission but for the High Court or the Court of Session, there must be a process—the Home Secretary has not yet explained what it is—whereby those courts have the authority to decide what those procedures will be.

Mr. Oaten: My right hon. Friend is right, and that can be added to my list of issues that we need to discuss.

Finally, on the question of what we do with the current detainees held in Belmarsh, the Home Secretary's statement yesterday that he does not intend to trigger the requirement for house arrest suggests that two things will happen. First, on 14 March, if he gets the Bill through Parliament, he would release the individuals from Belmarsh and, I assume, put them on to a tagging system or perhaps a lower level of surveillance. Secondly, he would release the individual held under house arrest with some form of tagging. It would be helpful to know what plans the Home Secretary has for those individuals and whether my assumption about what will happen is accurate.

The problem remains that, if we cannot reach agreement on the Bill and it is impossible to reach agreement on renewal of derogation along the lines suggested by the shadow Home Secretary, we have a responsibility to do something about those individuals, and certainly not to leave them in Belmarsh for an extended period because we fail to come to a decision. When the Minister winds up, I hope she will say how we can have a constructive discussion about what we should do with those people. It is a shame that they are being held in Belmarsh when the Home Secretary has stated that it is not his intention to hold them there. The sooner we can resolve that problem, the better.
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The issue is all about a balance between civil liberties and ensuring the right security in this country. Our judgment is that the Government have had the wrong balance for the past three years, but we acknowledge that it is improving. It is still not right, but there is good will on our side to move that balance in a direction to enable Liberal Democrat Members to support these measures. However, we are a long way from that yet.

Several hon. Members rose—

Mr. Deputy Speaker: I remind the House that Mr. Speaker has imposed a 15-minute limit on all Back-Bench speeches. That applies from now on.

4.6 pm

Mr. John Denham (Southampton, Itchen) (Lab): I am prepared to make it clear—the shadow Home Secretary was not—that a group of people exists on whom the Government have evidence that they cannot bring to court and against whom it should be necessary to take action. If I have time, I shall develop my reasons for believing that, but I make that statement of my belief for the purpose of my initial comments.

I am primarily concerned in this debate to achieve the right practical outcomes in terms of human rights, civil liberties and our ability to tackle terrorism. An overly legalistic debate on such matters is not always helpful and there is a certain amount of self-flagellation in our approach to such issues in this country. Across the channel, the legal procedures are apparently different. However, the reality is that people are detained for up to four years without trial, and that a regime exists which the French authorities believe leads many people to leave France because they are worried about detention powers. Under that regime, the Government deport people to many countries to which our legal system finds it impossible to deport people. I am not giving a view on whether that is right, but it is a reality in the modern world. Some of the suggestions made during this debate—that we are putting ourselves beyond the pale with our proposals—simply do not recognise the reality of what happens in other countries.

I want to focus on an exchange that I had with the Home Secretary earlier and to move slightly away from whether the Home Secretary or judges should make the initial decision on control orders. I believe that the practical outcome of those two different approaches would not be wildly different. The issue of principle is a major difference, but the practical outcome in terms of who is detained is not likely to be so great.

We could argue that the Government should change their position or that the Opposition have no basis for bringing down the legislation here or in another place, but I want to focus on what happens at an earlier stage in the process. In either model at the moment, the intelligence services and, perhaps, the police present a case to the Home Secretary, which he decides there and then, or takes to a judge. I firmly believe that we need to focus our attention on the process between the advice from the security services and whatever action the Home Secretary then takes. That is critical to the integrity of the decision making. After all, the Home Secretary is not simply deciding in his model whether to issue a control order. He is implicitly taking several different decisions.
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He is deciding not to prosecute. He is deciding not to carry on looking for further evidence. He is deciding not to rely only on surveillance.

We know—at least, we are told—that the Home Secretary will consider those alternatives, and he has repeatedly said that his preference is to prosecute when possible. The problem for the Home Secretary and for the House is that under the current proposals he has no way to demonstrate that he has considered the alternatives and chosen control orders—whether he makes them himself or applies to a judge—as the best option.

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