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Mr. Mark Fisher (Stoke-on-Trent, Central) (Lab):
Consideration of the Bill this afternoon has demonstrated profound weaknesses in this Parliament. We have been debating the central elements of our democracy and of our human and judicial rights: habeas corpus, the independence of the judiciary, and the separation of the powers that distinguish our political system between the judiciary, the legislature and the Executive. Apart from the heroic small group of hon. Members who have been here throughout and contributed to an outstanding debate, where have our colleagues been on these issues? If we are not sent to this Parliament to debate the future of these issues, for what are we sent here?
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I fear that in spite of the excellent speech of my hon. Friend the Member for Nottingham, North (Mr. Allen) we are going to fail a test in terms of the scrutiny that we have been sent here to apply to Government business. We have done so in the rigour of the debate and in the argument, but I fear that in a few minutes' time, those who were absent and have not heard this excellent debate are going to push the measure through. We will fail in our responsibility to be a check and a balance on the Executive on this most vital issue.
We are making bad law today, or are risking doing so. If so, we are failing as a Parliament. We have to start reasserting the right and the duty of this Parliament to carry out independent scrutiny of the Executive.
Mr. Frank Field: Will my hon. Friend give way?
Mr. Fisher: Another hon. Gentleman wants to get in and I want to give him a minute or two.
We should make a start here today. In particular, those hon. Members who have not been able to be in the Chamber today should read this very good debate and consider it over the weekend. I hope that on Monday, this Chamber will be full for the consideration of issues that are right at the centre of our democracy.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): This has been, without hesitation, the best debate in which I have had the privilege to take part since I came to this place, and the contribution of the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) was one of the best in it so far.
I wish to make a few brief remarks about the operation of the schedule to the Bill, particularly as it pertains to Scotland. As I have made clear, this is a matter in which the Government seek to intrude upon the proper operation of the devolution settlement. The question of rules of court in Scotland is, quite properly, within the remit of the Scottish Parliament. I should like the Minister to tell us what consultation there has been with the Scottish Executive in relation to this, and what opportunity there will be not just for the Scottish Executive but for the Scottish Parliament to express a view. Ifas would be constitutionally, or at least morally, proper, in my viewa Sewel motion were to be presented, I cannot envisage the circumstances in which my colleagues in the Scottish Parliament would be supportive of it. The way in which the measure seeks to graft alien principles such as the SIAC procedures on to the judicial process in Scotland is, in my view, absolutely unacceptable. The position of special advocates strikes at the heart of the lawyer-client relationship and leaves it impossible for any lawyer properly to execute their duties and ethics. It is a corrupt and corrupting system, it is bereft of integrity and I cannot countenance its ever being part of the Scottish legal system.
Mr. Dominic Grieve (Beaconsfield) (Con):
This has indeed been an extraordinary debate, and I apologise to hon. Members if, because of the short time for the winding-up speeches, I cannot do justice to all the contributions that have been made.
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A sensible place to start is with the three hon. Membersjust threewho said that they would support the Government tonight. All threethe right hon. Member for Southampton, Itchen (Mr. Denham), the hon. and learned Member for Redcar (Vera Baird) and the hon. Member for Hendon (Mr. Dismore)made speeches which, I am bound to say having listened to them, presented some of the most cogent arguments as to why the legislation is fundamentally flawed.
The hon. Member for Hendon effectively said that the operation of control orders would be so unwieldy as to be almost unworkable. The right hon. Member for Southampton, Itchen made the important point that the decisions that will be taken to impose control orders will effectively block off the possibility of prosecution and reduce the likelihood of that taking place. The hon. and learned Member for Redcar raised a huge number of issues and I fully appreciate that her support was out of loyalty and conditional upon changes being brought about.
There were a large number of other contributions. They ranged from those that sought to look in great detail at some of the legal issues based on experience and knowledgefrom my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. and learned Member for Medway (Mr. Marshall-Andrews)to the visceral. There is nothing wrong with visceral contributions on an issue that ought to affect us all viscerally.
Whatever else one can say, whether one is coming to the House to argue in favour of the Bill or against it, the enormity of what we are debating tonight cannot be overlooked. Nothing has worried me more in the course of the debate than the impression given by those on the Treasury Bench that while this is a difficult issue, all is for the best in the best of all possible worlds, and that subject to some tweaking and discussion on the detail, there really can be no objection, in view of the security situation, to suddenly embarking upon this piece of revolutionary legislation that places in the hands of the Executive power over the liberty of the subject. I could not disagree more with the glibness of that approach, and I very much regret it.
I say to the Minister for Crime Reduction, Policing and Community Safety, who I understand will reply to the debate, that she and the Government face a difficult task. One of the problems is that they are privy to lots of information that they cannot share with us, and I appreciate that. But equally, they are privy to lots of information that they can share with us. If the Minister, having been asked yesterday by a journalist on "Newsnight", I think seven times, whether she could explain when the Government decided that the memorandum on the back of the renewal notice that said that it was possible and legal to renew the existing powers was no longer their view, refuses to answer, how can we start out with a sensible debate on important issues?
For the avoidance of doubt, I will now tell the Home Secretary exactly where we stand. A huge number of issues relating to this legislation need to be looked at separately. First, the powers that the Bill creates should be exercised not by the Home Secretary but by a judge. I get the impression that the Government may be
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beginning to shift on that point. If they are, I wish to heaven that the Minister for Crime Reduction, Policing and Community Safety would state the logical and obvious: judges will have to make the decisions. However, the problem goes much further. It is not simply a matter of the decision, but of the entire process.
I must make a confession. When Conservative Members first informally discussed whether judges should make the decision, I felt an almost visceralto use that word againrevulsion at the prospect of our asking judges to do that. We are not considering a judicial process at all. It is important that every Member who intends to vote at 8 pm understands that this is not and cannot be a judicial process.
In our constitution, judicial processes involve fairness and hearing the other side's arguments. That means a level playing field on which people can answer the serious allegations that are made against them before they are deprived of their freedom. However, whether a decision is made by judges, or by the Home Secretary and subsequently judicially reviewed, we will establish a system where none of those things apply. I accept that that is a problem for the Government and that they did not intend such a consequence. However, the proceedings will be secret and large quantities of the evidence will, of necessity, be concealed from the defendant, who will not be able to answer the allegations made against him or obtain full representation even through the mechanism of the special advocate procedure.
The Government have had more than a year to examine Lord Carlile's critique of the operation of the special advocate procedure. I appreciate that the Home Secretary has not been in his post for long and that he has inherited an unfortunate legacy from someone who rode roughshod over liberties in this country in a breathtaking manner. Nevertheless, a year on from Lord Carlile's critique, we have not received a Government response about the way in which the special advocate procedure can be improved. Such details must be addressed. They cannot simply be brushed under the carpet. If we embark on the course of action that the Government propose and introduce control orders, we must consider carefully every line of the Bill to understand the way in which we can improve it to the best of our ability.
Today, great play was made of questions, especially to my right hon. and learned Friend the Leader of the Opposition, such as, "Well, you're against control orders, aren't you?" Of course we should be against control orders. As a principle, control orders should be anathema to every democrat. However, that is not to say that there may not be occasions when we have to swallow the unpalatable. I have told the Home SecretaryI repeat it todaythat, although control orders may be unpalatable, we may have to consider them. However, we must ask ourselves to what extent they serve a useful purpose.
An extraordinary state of affairs already pertains. The Home Secretary is rushing the Bill through because the Belmarsh deadline is imminent. However, when the deadline arrives, even with the control orders in place, the people will be released into the community. The Home Secretary has told us that he does not see the
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necessity of introducing house arrest provisions at the moment. I repeat that the Bill does not only provide for house arrest. The order could be, "Go and live in a cottage on Benbecula," or "Go and live in the Bicester asylum seekers' accommodation." That is possible under the powers that we are creating.
Do the control orders serve a purpose? If we do not intend to provide for house arrest now, why should we give the Home Secretary the power to do something, which would almost certainly breach the European convention on human rights on a challenge, and could not be maintained if it went back to the House of Lords? I believe that he has received legal advice to that effect. If that is the inevitable outcome, there is no point in our including it in the legislation nowand that leaves us with control orders which fall short of home detention.
As we go through the Bill on Monday, the Home Secretary will have to explain how each of the measures that he has spelt out line by line will have a useful function in preventing people from coming along and blowing themselves up either here or outside Parliament, or killing other people. At the moment, I still need some convincing. I can see how control orders might help a little, but the idea that they will prevent determined individuals who are suicide bombers from escaping the clutches of supervision and committing atrocities is one that I do not entirely accept. The point was well made today that surveillance might be more effective, although I am mindful of the fact that surveillance has its problems as well.
I want to give the Minister ample time to respond, because I think she has much to answer. Let me simply say this. The more the debate has gone on, the more we have asked ourselves whether the Bill is curable by amendment. That question may seem very relevant to many Members who are considering how they will vote at 8 pm. I accept that if Members think the Bill is indeed curable by amendment, that may be a reason for giving the Government the benefit of the doubt and, on Monday, going to work to see what can be done about itbut we need only look at the extent of the problems in the document to see that it is unamendable.
Is the Home Secretary seriously considering the possibility that the House should allow rules of court to be prepared by statutory instrument when those rules will be entirely unlike any others that have ever been put together in this country? As I said earlier, the measure requires a system of justice entirely different from any under which we currently operate. That in itself ought to give every hon. Member pause for thought before he or she goes into the Lobby to support the Bill.
What if the Bill is defeated? What if the amendment is carried? I encourage hon. Members to vote for it. We will help the Government if they come back with a proposal quickly. We told the Home Secretary that we would help to extend the existing powers for a short period. I have no desire to extend the existing powers. I accept that they are flawed, and the House of Lords has said that they do not comply with the Human Rights Act. Those are good reasons for getting rid of them. I am bound to say that if that is the small measure we must give the Government to enable them to go away and be sensible, and engage in a proper dialogue we will do it, but until we are given some sign from the Government, the best thing that hon. Members who are true to the oath that they took when they came here, and to our
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duties to our constituents, can do is to get rid of a Bill which is one of the most horrible things I have seen since I came to the House.
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