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Mr. Carmichael: Why does the right hon. Gentleman assume that no further investigation would take place because a control order had been made? A control order would not be a barrier to further investigation.

Mr. Denham: That is true, but in practical policing terms, once an individual had been alerted by the existence of a control order, the chances of picking up further information that might lead to prosecution would be greatly lessened. In other jurisdictions, such as the French, the process, which usually involves the investigating magistrate and the Ministry of Justice, allows a rational choice to be made between the options.

Mr. Hogg: If the ability to make a control order existed, the Home Secretary would not be under very much pressure to authorise further surveillance or make an attempt to prosecute. He could simply rely on the control order.

Mr. Denham: Indeed, and each Member of the House might have to face a constituent whose son, daughter, mother, brother or father is subject to a control order asking for an assurance that it was not only an appropriate response but the most appropriate response. The current procedure would not allow us, or the Home Secretary, to demonstrate that.

Equally, it is not appropriate to ask a judge to make the judgment between different strategies—that is a crucial point. Judges are equipped to take a yes/no decision: they are not equipped, trained or given the remit to choose between three or four different strategies. Therefore, we need to add to the system a process of choosing between the different options. That is something that we could learn from the French system, in which the procedures involving the Ministry of Justice and investigating magistrates appear to allow more proactive consideration of different options.

My right hon. Friend the Home Secretary could make that change with limited, and possibly no, additional statutory powers. He could invite the Director of Public Prosecutions to review in every case the evidence, information and files, and to certify whether a case was prosecutable, to see whether further evidence could be gathered, or to discuss with the appropriate authorities whether continued surveillance would be possible.

If we adopted a proposal from my hon. Friend the Member for Stafford (Mr. Kidney), a simple amendment could place a statutory requirement on the Home Secretary to examine those options and to make that part of whatever judicial process followed. Indeed, if one wished to be inventive and constructive, some
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judicial skills could be involved in that process. If we did that, the Home Secretary could demonstrate, for each individual case, that the alternative approaches had been independently reviewed.

Some may argue that that option would mean a massive change in the role of the DPP in this country. However, over the past 18 months, as the Crown Prosecution Service has developed CPS charging—instead of the police always doing the charging—we have seen greater day-by-day co-operation between the CPS and the police on the question of relevant and appropriate evidence. In other words, we have moved slightly closer to the more investigatory role that other jurisdictions have. It would be no bad thing if the DPP were invited to play that role, given adequate vetting and security.

I think that my right hon. Friend would say, "Look, as Home Secretary I receive legal advice on these cases; it is not simply a case of closeting myself away with MI5 and MI6 and having a look at the files." When I was a Home Office Minister, I never dealt with the individual cases of those held in Belmarsh, for example, but I did deal with two types of decision that are at least analogous to this one. The first involved the signing of public interest immunity certificates in terrorist cases coming before the courts, and the second involved agreeing stop-and-search powers under section 44 of the Terrorism Act 2000.

The truth is that Ministers get legal advice from Home Office officials on PII certificates. I intend no criticism of those officials, but Ministers know that they have worked very closely with the security services in presenting the advice according to which Ministers are invited to sign PII certificates. In my experience, it was quite difficult to feel that the advice one received was wholly independent and objective, and I found going through the relevant files an extremely time-consuming process.

Mr. John Taylor (Solihull) (Con): When Ministers sign PII certificates, they are not making any decision beyond deciding to put matters before a judge, who will have the last word. The Minister makes the application, and the judge makes the decision in the interests of justice.

Mr. Denham: The hon. Gentleman is absolutely right, but I am simply trying to highlight the difficulty experienced by the Home Secretary in relying on internal legal advice in considering these processes, compared with having an independent body such as the DPP examine such cases. The situation was very much the same in respect of section 44 of the Terrorism Act 2000. Ministers could rely on advice telling them to rule out something illegal, but they could be much less confident that the option being offered to them was the best and most appropriate use of the power. This is a critical issue, because a control order is a very significant order. The point is not just that using one should be legal, but that it should be the most appropriate power to use in the circumstances.

There is not much time to consider this issue, but as the House has heard, my view is that introducing such a procedure would greatly strengthen my right hon.
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Friend the Home Secretary's proposals, which I will vote for tonight, because he has given much consideration to the question of who initiates such decisions, for example. This procedure would make the decision-making process better.

I will conclude by making two quick points. I suspect that when we confront this issue with our Muslim constituents in particular—it is they who are most likely to feel aggrieved at the new measures—we will find that the difficulty lies not so much in whether the Home Secretary takes the decision and a judge confirms it, or whether a judge takes the decision, but in whether the other options, including the possibility of prosecution, have been adequately explored. We must build in a procedure that enables us to say with absolute confidence that the latter is the case. As the shadow Home Secretary rightly said, we have to look at all such laws and measures in terms of their impact on wider community cohesion, and on our ability to get all communities in society behind us. We must prevent these issues from becoming those on which radical elements focus in order to spread their poisonous views.

My second point is that there is a big issue of principle for many of us in extending these powers to British citizens. However, we must be realistic, and in my judgment the type of terrorism that we currently face will be with us for many years to come. Nothing in our past experience of terrorism, or that we can see in the international situation, suggests that the threat is likely to diminish. We already know that some British citizens have been involved in international terrorist activities associated with al-Qaeda, and it would be astonishingly naive to believe that we will not confront that threat in years to come. It is necessary to have a legislative framework that deals with both foreign nationals and British citizens, which is why it is important that we get the legislation on the statute book and why we should not think that we do not need to tackle the problem with considerable urgency.

4.19 pm

Mr. Peter Lilley (Hitchin and Harpenden) (Con): Nearly all of us in the House accept that the Home Secretary is right when he says that we face a qualitatively different threat, so it behoves us at least to consider whether it is necessary to curtail to some degree traditional civil liberties in this country. I accept that, to some degree, that may be so, but we should try to secure the life of the people of this country with the minimum loss of their liberties.

For my part, if there is to be a loss I would try to limit it to the smallest group of people, which in the first instance seems to be foreign nationals, rather than extending the loss of liberty to British citizens as a whole. I would want to minimise the reduction in the burden of proof and the procedures for proof, which are, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) rightly pointed out, equally important. Above all, I would want to minimise reliance on political decisions rather than independent judicial decisions. That is where I take a completely different line from what the Government are proposing in the Bill.

Normally, when we consider matters of this gravity, the Home Secretary, the Prime Minister and the Government seek consensus. They try to take a
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balanced approach and to eschew partisan rhetoric and point scoring, to maximise support for any reduction in liberty or curtailment of our freedoms. Sadly, that has not been true on this occasion. The Government have made rather pathetic attempts to use the Bill both to burnish their own credentials and to tarnish the Opposition's credentials on the treatment of terrorism. I have to say that that makes it more difficult to give them support, because we cannot but have doubts when powers are introduced in a partisan manner that they may be used in a partisan manner. We remember all too well how the Government were prepared to summon tanks to Heathrow when that was helpful to them, but not to explain subsequently why the tanks were there.

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