---

Mr. Hogg: What is more, the process is imperfect because a detained person does not have access to the documents or the evidence and will not have a chance to defend himself or herself against the accusations.

Mr. Shepherd: I am grateful to my right hon. and learned Friend, who anticipates me.

The degree of judicial involvement provided for in the Bill in relation to derogating control orders is unlikely, in my view, to be compatible with the requirements of the European convention on human rights—in
 
23 Feb 2005 : Column 392
 
particular, with the requirement in article 5 that any deprivations of liberty must be

"in accordance with a procedure prescribed by law".

Other than in the exceptional circumstances enumerated in article 5(l)(a) to (f), deprivations of an individual's liberty require prior judicial authorisation if they are to be in accordance with a procedure prescribed by law. Such prior judicial authorisation is regarded by the European Court of Human Rights as an inherent feature of the rule of law, which requires safeguards against arbitrary detention. The House is familiar with all that, because it has watched over these practices through the centuries.

The Home Secretary's reason for refusing to countenance prior judicial authorisation of the deprivation of liberty is that that would be to abdicate to the judiciary the Executive's responsibility for national security, for which it is rightly accountable to Parliament. With due respect to the Home Secretary, that is an eccentric interpretation of the constitutional doctrine of the separation of powers. It is a long-established principle of the British constitution that, outside the field of immigration, the Executive have no power to detain individuals without prior judicial authorisation, or in circumstances where it is intended to bring the individual before a court as soon as possible for further detention to be authorised.

Both Parliament and the Executive have long accepted and respected the judiciary's responsibility for the liberty of the individual. To invoke national security to deny that role is to subvert our traditional constitutional division of powers. The Home Secretary's argument would, absurdly, apply equally to criminal justice. The Home Secretary is undoubtedly responsible to the public for protecting them against crime, but nobody would suggest that it is an abdication of that role for the Executive to accept that the courts are the appropriate constitutional branch to decide whether particular individuals should be deprived of their liberty. I hope that we will not hear any more such nonsense from the Home Secretary.

Even if there were room for argument about the proper separation of powers in the British constitution, it is unlikely—this is where the arguments will founder—that the European Court of Human Rights would regard the exclusion of prior judicial involvement in deprivations of liberty as compatible with the convention.

I shall leave the legal points there, but I reaffirm that this House is also a custodian of our freedoms. Everyone who votes tonight should be mindful of breaking a great trust and mindful of the fact that the Government—the Executive and a Secretary of State—will effectively be able to detain us. It goes against the spirit of this country, which has a powerful belief in liberty and freedom. The Government and this Home Secretary are striking against it.

5.19 pm

Mr. Graham Allen (Nottingham, North) (Lab): This debate is about the continuing and one-sided battle between Executive power and democracy, rather than about legalisms. The power of the Government has massively increased in recent decades and parliamentary power has diminished almost to the point of being
 
23 Feb 2005 : Column 393
 
extinguished. Judicial power has often made itself distant and irrelevant, so our system of checks and balances, such as it was, has grown weaker and weaker. That is why we have come to this pass today.

The Government are right to take measures to safeguard us from international terrorism, but Parliament is also right to insist on measures to preserve, especially in difficult times as well as easy times, the balance between security and liberty. If there is the will, in the House and in the Government, to achieve that balance, then further work is necessary on the Bill.

Like many colleagues on all sides of the House, I start from the premise that no Executive authority or Government Minister—even one whom I know and trust—should ever be given the ability to commit an individual to indefinite detention. The right to a fair trial and proper judicial process is a sacred part of our democracy. In a democracy, that right must only ever be suspended with the consent of the judicial process.

There are a number of ways forward on this issue. My right hon. Friend the Member for Southampton, Itchen (Mr. Denham) spoke about the Director of Public Prosecutions and about the need to make sure that evidence is presented in a way that allows a case to go forward. He also said that, if there were no case to answer, there must be a fall-back position, and I hope that the Government will explore that detail.

In addition, my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) and many other hon. Members made the point that, at present, the police have the ability to detain an arrested terrorist suspect for 14 days. If the Home Secretary wants that person to be detained longer because he has evidence that leads him to believe that that person is highly dangerous, he can within that period apply to a judge in the Appeal Court or the High Court, or whatever level is appropriate, for a time-limited detention order. We need to look at that aspect in more detail as we scrutinise this Bill. Once the order has expired, the Home Secretary must go back to the judge to seek a renewal.

Therefore, to make this bit of the Bill work, the Government have only to move from judicial review to judicial application. The difference is a fine one, but it is the difference between democracy and arbitrary power. It is a difference that Members of Parliament must be the first to recognise and advocate. If we do not do that, why on earth do we need a Parliament at all? It is our duty, and nothing less than our personal responsibility, to make sure that we ask these questions.

As long as the Government incubus controls Parliament, they can force such matters through. No doubt that will happen again today, but some of us in the House of Commons will insist on making our death-rattle heard.

Mr. Hogg: The hon. Gentleman is making a very serious point, but does he agree that another matter needs to be taken into account? That is the question of whether an individual should be subject to what amount to penal sanctions even though he or she has not been convicted of any offence. Will he consider that as well?

Mr. Allen: We all face a terrible dilemma in that respect, and none more so than the Home Secretary.
 
23 Feb 2005 : Column 394
 
Many hon. Members might indulge in flights of rhetoric that would disappear the first time a serious terrorist incident occurred. I certainly would not want to be one of them. The threat is immense: we can barely comprehend its nature, but it is very different from any threat that we have faced in the past. These are extraordinary times, and they require extraordinary measures. My point is that democracy must also respond in an extraordinary way.

David Davis: I hear what the hon. Gentleman says about concerns disappearing as soon as a terrorist event occurs, but does he accept that the main miscarriages of justice over the last couple of decades have happened in precisely the circumstances he describes—that is, after a terrorist event?

Mr. Allen: Indeed, and the pressure on the Government would be even greater if this House did not draw a line now. Hon. Members must try to imagine what a Government of any political complexion would be forced into if there were to be an atrocity on the scale of 9/11 in the UK. However, that is not to excuse any Member of this House from seeking to help Government find a way to resolve this very difficult and thorny problem. I hope that colleagues, and above all the electorate, will never forgive any hon. Member who makes political capital out of this problem.

We have witnessed today the extraordinary constitutional innovation of do-it-yourself pre-legislative scrutiny, which I welcome. If the House has any role whatsoever, it is to examine legislation before it is passed by the House—recently that has been very much in evidence in the area of criminal justice. I worked with the Home Secretary on student fees, and it is in his character to be open to ideas and influences and to seek to create better law. He deserves every credit for that, but would we not all have benefited if pre-legislative scrutiny were more protracted and considered than has been the case with our deliberations on the Floor of the House today?

Mr. Dalyell: My hon. Friend referred to the extraordinary times in which we live. In the interests of candour, is not one partial contributory cause the habit of America and Britain of indulging in illegal wars in the middle east?

---