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Mr. Carmichael: The hon. Gentleman will be aware that in Scotland, the subject of rules of court is properly the domain of the Scottish Parliament and the Lord President, who is normally the senior judge responsible for their construction. Does he share my concern that there has been no opportunity for the Scottish Parliament to express a view on that matter and that, at the very best, the Government are blundering into a constitutional grey area?
Mr. Llwyd: I most definitely share the hon. Gentleman's concern. Rules of court have been formulated over the years with the assistance of the Lord Chief Justice and other members of the judiciary. They have developed over the years. These may blow up in everyone's face. I agree with the hon. Gentleman about the constitutional question as well.
The court can decide an issue without a hearing. The evidence cannot be tested at all and only one avenue of appeal is open—that is, on a question of law.
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An appeal on a question of law is normally about whether a reasonable authority would have come to the conclusion on the evidence before it—the Wednesbury principles. How can a proposed appellant mount an appeal when there has been no hearing of the evidence and no chance to test the evidence? Indeed under this Bill the Executive would be entitled to withhold all the evidence from the controlled person or the appellant. Therefore, that avenue of appeal is an utter sham and in practice means nothing. It does not add up to a row of beans.
I am desperately unhappy that the rules of court may make provision allowing control order proceedings or relevant appeal proceedings to take place without the full particulars of the reasons being given, and allowing proceedings to be conducted in the absence of the person being controlled. Those are anathema to anyone who knows anything about the judicial system under which we live and operate.
Mr. Dalyell: To grasshopper back to the position in Scotland, I think that we should take account of clause 12 of the Bill, which states that
"in relation to proceedings relating to a control order in the case of which the controlled person is a person whose principal place of residence is in Scotland",
It is my understanding that the Scottish authorities agreed to this. Whether there was a Sewel motion or not I do not know, but I understand that it was agreed.
Mr. Llwyd: I am grateful to the Father of the House for enlightening us on that point, which is extremely important in the circumstances.
In reality, the proposed appellant could not mount an appeal. That right is illusory.
Paragraph 4(2)(d) of the schedule refers to a provision to enable the relevant court to supply a controlled person with
Who decides whether that summary is accurate and full? How can we ever know that? That is a crucial point, as it was when taped interview summaries were first brought in through the Police and Criminal Evidence Act 1984. It is vital that full and accurate summaries are produced in these circumstances. Who can test whether the summary is right? I am afraid that the provisions seem designed to introduce courts only of the marsupial variety—the ultimate example of kangaroo justice.
Tucked away in paragraph 4 of the schedule is the right of the Home Secretary to prohibit disclosure of evidence to the party concerned and his or her representative. There may be circumstances, I suppose, where that could be necessary, but I am worried that it will become a standard and widespread practice. Paragraph 6 gives the Executive the right to prevent a person from being legally represented. Once again, that is contrary to anything that anyone would consider as fair jurisdiction and, indeed, it breaches the equality of arms principle in the convention on human rights. That is most worrying, and no doubt the so-called rules of court will be framed in order to make life very difficult for the individual.
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Reference is also made to special representation in control order proceedings. Paragraph 7 states:
"The relevant law officer may appoint a person to represent the interests of a relevant party to relevant proceedings in any of those proceedings from which that party and his legal representative (if he has one) are excluded."
What on earth does that mean? A representative is appointed to act on someone's behalf, but that representative has no contact and no dialogue whatever with the controlled person. How can such a lawyer do a reasonable job on behalf of the controlled person? It is an absolute disgrace.
Following the resignation of Ian Macdonald, QC, and Rick Scannell as special advocates, Lord Carlile, QC, said in paragraph 78, page 30 of his report:
"There must be factual issues, about where the detainee was and when, or about the reasons for association with certain persons, on which direct discussion with the detainee or his private lawyers would assist in the doing of justice. I believe that such contact, on a careful basis, would meet many of the concerns expressed by Mr. McDonald and others."
That bears heavily on this particular point, but what have the Government done? They have flown completely in the face of that wise counsel. I do not believe that the Government have given any weight whatever to Lord Carlile's advice, even though he is a pre-eminent legal practitioner. That is most unfortunate. He is trusted, after all, with the oversight of terrorism legislation.
I referred earlier to the Liberty brief, which I cite again:
"In February 2004 six special advocates wrote an open letter to the Home Secretary expressing concerns at plans then circulating".
The issue of reforming the current Special Immigration Appeals Commission trials was mentioned. The brief continues:
"We are convinced that both basic principles of fair trial in the criminal context and our experience of the system to date make such a course untenable. It would contradict three of the cardinal principles of criminal justice: a public trial by an impartial judge and jury of one's peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case made against the accused. The special advocate system is utterly incapable of replacing these essential fundamentals of a fair trial."
Those essential fundamentals of a fair trial are all missing from this Bill. It is a bad Bill and a dangerous one. It has no place in our democracy or in our constitution. It will make bad law and I am afraid that it may well make matters worse and fuel the flames that it attempts to extinguish.
I do not know whether the Bill is part of a political game, but I believe that good sense in the other place will dispatch it as it deserves. It is incapable of amendment, and we in Plaid Cymru and the Scottish National party will vote against it without hesitation.
6.39 pm
Mr. Robert Marshall-Andrews (Medway) (Lab): As with everything in life, this Bill has both form and substance, and I shall deal first with the form. The Bill is small but deeply imperfectly formed.
In part, the Bill is incomprehensible. I have been reviewing statutes—many of them criminal statutes—for 35 years, and this Bill is one of the worst, despite its
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brevity. I spent one hour and 20 minutes attempting to understand clause 4 alone. That clause deals with the duration for which people can be detained under the control orders and is therefore not unimportant, but I completely failed to understand it, even though I was reading my own language. If it had been translated into Arabic, Hindi or Gujarati, the problem would be even worse. We in this Chamber will no doubt argue about the effect that the Bill will have on al-Qaeda, but one thing is certain—they will not understand it.
So much for the Bill's form; I now move to its substance. If its form is bad, its substance is truly dreadful. It is almost certainly one of the worst pieces of legislation that any Government have attempted to put through this House for 200 years. It offends against the cardinal and root principle of our democracy—the separation of powers and the independence of the judiciary.
That principle is not a tributary of democracy, or a bit or part of it. It is what democracy is, and it is fundamental to our system, as it is to all systems of democracy that ultimately derive from revolutions of the people. The constitutional liberties in the US, France and this country are all based on that principle, which was first enunciated by Montesquieu and subsequently taken up by Paine and Jefferson. Their names will resound through the annals of political democracy and liberty when the names of those who are trying to take democracy away from us will be no more than dusty footnotes in the unpleasant history of this era of Parliament.
The principle of judicial independence is under attack in this country, but it is interesting to note that there is an attempt to introduce it into the Russian constitution. I was recently in Russia to give a lecture on the principle and I have given four such lectures in the past year. The Russians approach the notion of judicial independence much as they would approach a yeti or an abominable snowman—they understand that some people have seen such a thing, but they do not really believe that it exists.
The Russians with whom I had dealings listened to me with respect and longing, but on my most recent visit I told them about this Bill. For some time afterwards, the wonderful people with whom I was sitting had their arms around me in commiseration—admittedly, after a few vodkas—for the loss of liberty and the mistakes being made in my country.
The weakness of the Bill is made even greater when a legislature is as supine and ineffectual as this one is. In the brief time that I have been in this House, Parliament has gradually given up any hope of carrying out its major role of acting as a control and check on the Executive. That inability was brilliantly set out earlier by my good and hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). That will be his last speech in this place, and he could not have made a greater one. This may be my last speech too, and if it is not, it will not be for want of trying. If it is, I echo what my hon. Friend said: one of the great sadnesses that I will take away from the Chamber is that I have watched it become a Lilliputian assembly. In my time here, it has manifestly failed to act as a check on an over-mighty and increasingly arrogant Executive. There is no greater example of that than what we have witnessed in the course of this debate. For the Home Secretary to say that it is his responsibility to put people in prison and
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that he will arrogate that responsibility, and then to say that he will take a judicial function that will be subject to a judicial overview is not simply constitutionally illiterate but parliamentary drivel, and it should be treated as such by everyone who had the misfortune to hear it.
May I say three things in the brief time available, provided that no one is decent enough to intervene? Much adulation has been heaped on the present Home Secretary, some of which is richly deserved. However, even if he were the most wonderful, beautiful, benign and wise judicial body, even if he had a reputation for Solomonic justice and Brechtian wisdom, it would not matter a fig. It would be a terrible mistake to hand judicial powers to the Administration, given that there are at least three examples of the dereliction of those powers.
The first, of course, is Belmarsh itself. We are told that, after three years, the 13 people who have been held in that ghastly prison, with its 30 ft walls and razor wire—I know, because I have been there on many occasions myself—are to be released, not into house arrest but on to the streets with tagging or non-derogated orders.
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