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Lynne Jones: I am not sure whether my right hon. Friend is right to say that the security services are opposed to the use of intercept evidence. Stephen Lander, the former head of MI5, used to be in favour of it—he only changed his tune when he got his new job in the Serious Organised Crime Agency—and Stella Rimington and a range of other people from the security services support it.

Mr. Smith: My hon. Friend is, of course, right to identify the fact that many authoritative voices are putting forward that particular view.

Using intercept evidence in court is not a wholesale solution to the problems that we face, but it would help. It is used widely in other countries, including countries such as the United States that face similarly severe terrorist threats. In the Newton committee, we received evidence that evidence derived by the UK security services through intercept in the UK has already been used as evidence in open court in other countries. Legislation permitting the use of intercept evidence could protect the use of evidence that might genuinely endanger national security. Such evidence could be used on an optional rather than mandatory basis, but the blanket ban can and should be lifted.

Thirdly, I remain concerned by the nature and process of judicial authorisation for control orders. I welcome the Home Secretary's acceptance that some judicial participation in the process is required, although what he is proposing in the Bill is limited and would occur only after the event. Imposing a control order first by political decree, and then only subsequently giving limited judicial consideration to it, runs the risk of unbalancing the whole process, because once an order is in place it is much more difficult to overturn and the burden of proof shifts with the status quo. The decision should be justified properly to a judge, even in some summary form, from the outset. I accept, of course, the issues that might arise over the speed of decision making, but I hope that, with a serious willingness to find a consensual way forward, it would be possible to derive a better system, perhaps by having a system of accredited judges on call for initial and rapid interim consideration of proposals made by the Home Secretary.

These are difficult issues; they arise because we live in difficult times. But sometimes the apparently easiest answers are not necessarily the right ones. I hope that the Home Secretary will continue to give careful consideration to the genuine and serious concerns that many on the Labour Benches still have about the precise proposals that he has brought to the House today.
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4.50 pm

Mr. Boris Johnson (Henley) (Con): I hope that the House will forgive me if I begin by repeating some of the powers that the Home Secretary is about to take under this Bill: the power to lock someone up in their own house; the power to stop other people visiting that person; the power to remove any item of property from that person's house; the power to tag that person; the power to ask that person to surrender his or her passport, to report to a police station and to produce any information demanded of him— in other words, the power to incarcerate that person.

These powers are to be exercised against anyone whom the Home Secretary deems to be involved in a terrorism-related activity. Such a person is defined in the broadest possible terms as, for instance, someone engaged in conduct that gives support or assistance to individuals who are known or believed to be engaged in terrorism-related activities. It is the intention to detain such people without trial for an unlimited period, contrary to the most basic principles of English law.

Why have we come to this position? These extraordinary control orders are made necessary because of the House of Lords ruling in December that rightly threw out part 4 of the Anti-terrorism, Crime and Security Act 2001. The Lords pointed out that it was absurd and discriminatory to detain a foreigner and not a UK national, since many of the suspects associated with al-Qaeda are known to be British. The Lords pointed out, furthermore, that it was nonsense to say that someone could present such a threat to the life of this country that he could be detained without trial and yet could be told that he was at all times free to leave this country and go and plot against this country abroad.

Mr. Hogg: Does my hon. Friend share my sense of astonishment that we have come to the point at which we are imposing such controls on British citizens as a consequence of an interpretation of the convention on human rights that was designed to protect the human rights of British citizens?

Mr. Johnson: My right hon. and learned Friend adverts to a relevant paradox in the whole business. It is a sign of the Government's incompetence that they have been brought to this pass, because they had a choice. At the moment of reversal at the hands of the Lords, the Home Secretary could have ceased to derogate from article 5 of the convention on human rights and ceased to detain without trial, or he could have chosen to widen detention without trial so that all UK citizens could be banged up on his say-so.

Mr. Cash: Will my hon. Friend note that, in Lord Newton's judgment, he prescribed that the new legislation should deal with all terrorism whatever its origin or the nationality of its suspected perpetrators, and should not require a derogation from the European convention on human rights? In other words, relying heavily on the European Commissioner for Human Rights' opinion of August 2002, the Government found themselves effectively boxed in by the prescriptive arrangements provided by the European convention and by the Human Rights Act 1998.

Mr. Johnson: My hon. Friend is learned beyond my wildest dreams in matters connected with the European
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Union, and he makes an entirely valid point. I do not object so much to the fact of derogation from the European convention on human rights; what I object to in this widening of the principle of detention without trial to apply to all UK citizens is that what we are talking about is nothing less than the suspension of habeas corpus. It should be a fundamental principle of our system that when the state detains a person, they have the right to trial. To remove that basic right is a step that has been taken very few times in our history. It was taken in 1793, when William Pitt removed it following the execution of the King of France and in the revolutionary terror that swept Europe, and it was removed in 1817, opportunistically, by Lord Liverpool. As the Law Lords rightly said, habeas corpus, the right to trial, is a fundamental part of our liberties.

We do not have that right by virtue simply of this European convention; we have it by virtue of 800 years of history and it is enshrined in the Habeas Corpus Act 1679. In order to take it away, the House must genuinely believe that there is a threat to our way of life—in other words, that we are at war. I accept what has been said from both sides of the House about the qualitative difference posed by the threat of al-Qaeda, but I do not believe that that threat is so extreme as to justify such an extension of the power of the state.

It is a great shame that we cannot be told more about the al-Qaeda plots that have been foiled over the past few years. But it is worth pointing out that we have all lived through decades of IRA terrorism, and more British people died annually at the hands of the IRA in the '80s and during much of the '90s than have died since 11 September 2001 at the hands of al-Qaeda. We abandoned detention without trial in 1972 because Operation Motorman, in its attempt to suppress the IRA, proved to be such a failure. Why, therefore, are we reintroducing it now, when I do not believe that we face anything like a warlike threat?

The Government say that our ancient liberty will be protected by the role of the judge who must review the demand of the Home Secretary for certification. On the face of it, as has already been said, that is a flimsy protection. The judge merely has to decide whether the Home Secretary has information capable of constituting reasonable grounds for the Home Secretary to make a control order. I think that you, Mr. Deputy Speaker, will agree that information capable of constituting reasonable grounds is a million miles away from properly satisfying a court that a man should be locked up.

Jeremy Corbyn: Does the hon. Gentleman agree that one of the problems with that test is that the Home Secretary might indeed have reasonable grounds for believing somebody to be dangerous on the basis of security services evidence but he would have no way of challenging that, and no one else would either, even if it was proved at a later date to be completely inaccurate, and that a grotesque miscarriage of justice may have taken place in the meantime?

Mr. Johnson: I am grateful to the hon. Gentleman for so lucidly anticipating the very point that I was about to make. It may be relatively simple to satisfy a judge that the matters relied upon are capable of constituting grounds for a control order, but that is very different
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from properly testing, in the adversarial context of a court, whether the information is any good, or whether it has been laid before the Home Secretary by security services that may be either inaccurate or have an axe to grind.

The Father of the House has already made an apposite point about our recent disappointments over weapons of mass destruction. Doubtless, it would have been possible to satisfy a judge that the matters relied upon in respect of the Belmarsh detainees constituted the ground for a control order. Yet several detainees are to be released following the Lords ruling and the Government tell us that, upon their release, they will not be suitable candidates for house arrest. In other words, they have been inside for three years, with the approval of the Special Immigration Appeals Commission, yet now that they are to be released, the Home Secretary says that they are not candidates for derogating or non-derogating control orders. How can we have any confidence that the Bill will protect the innocent when years are already being taken out of people's lives, we do not put them on trial and, when they come out, we implicitly declare that their incarceration was pointless?

I simply do not accept the Government's argument that allowing suspects the right to trial would prejudice sensitive wire-tapping techniques deployed by the intelligence services. As my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and my right hon. Friend the shadow Home Secretary have said, it is perfectly possible to have a system whereby a pre-trial judge could decide whether details of wire taps should be made available to the full court, and how to be fair to both the defence and the prosecution. That point was made by the right hon. Member for Islington, South and Finsbury (Mr. Smith), who is my Member of Parliament.

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