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Mr. Cash: Will the hon. Gentleman give way?
Mr. Griffiths:
I was just about to point out that the law both as it is and as it is proposed contravenes the European convention on human rights. I know that the hon. Gentleman is very keen to uphold that.
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Mr. Cash: The hon. Gentleman refers to the report of the Joint Committee on Human Rights that, understandably from its point of view, would enhance and entrench the role of the Human Rights Act 1998. However, does he know that Lord Hoffmann, in a postscript to the Rehman case, made the position clear only a couple of years ago? He said:
"It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process."
He then adds that those persons are those
In other words, Lord Hoffmann clearly contradicts the basis upon which the Joint Committee is proceeding.
Mr. Griffiths: The hon. Gentleman points to only one case in which there is a difference of opinion. I would have thought that the Law Lords and the Joint Committee—which, I believe, is a parliamentary Committee—have made judgments with which Lord Hoffmann could be happy. The Joint Committee has made it very clear that the derogating orders that would deprive people of their liberty disregard the convention and our own law. Therefore, they would be illegal.
On the limited judicial control of the non-derogating control orders, the Joint Committee has a less strident opinion. Nevertheless, it flags up a sufficient warning that it believes that, even under the non-derogating orders, there would be a case to be taken and the Government would be likely to be found to be acting illegally under our legislation with regard to the European convention on human rights. That is why I hope that later in the debate, it will become clear how the Secretary of State will handle the derogating and non-derogating orders. I hope that in both cases, there is sufficient clarity that primary decisions will lie with the courts.
Before I conclude, I want to refer briefly to new clause 1, which, in a sense, is a probing effort to try to consider how we can handle the issue of the sensitive material that has been gathered and has led the Secretary of State to believe that someone should be deprived of his liberty in an extreme case, or have some sort of control order placed upon him. There should be some way in which a suspect's case could be properly considered and he should have the opportunity to mount a defence.
One of the significant things that we must bear in mind was referred to by an article in The Guardian this morning—I hope that my right hon. Friend the Secretary of State will not see that as a weakness in my argument. The article was written by Clare Dyer, the newspaper's legal correspondent. She pointed out that the Tipton three, who were held at Guantanamo Bay and released without charge after two years, were detained because the Americans believed that they had a video showing them with Osama bin Laden in 2000. However, if the three men had known that at an early stage, they would have been able to prove that one of them was working in an electrical store in the United Kingdom at the time and the other two were in trouble with the police. The situation could thus have been cleared up quickly.
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There must be a process by which evidence can be considered and suspects can have the opportunity to clear their names. I envisage a court of terrorism control with between three and six judges who could consider evidence and decide, on their own initiative, the procedures that would be needed to allow the suspects to defend themselves. They could then decide whether the application made by the Secretary of State was correct.
As the Bill stands, the Secretary of State will be the prosecutor, judge and jury in the first instance for both types of order. We already know that thanks to the pressure from the House of Commons, the Home Secretary is now minded to make it absolutely clear that a judge will make decisions in cases when people would be deprived of liberty, and that there will be a different and stronger procedure for non-derogating orders—although as a layman, I am not entirely clear about how that would work. When the Secretary of State speaks, it would be helpful if he would let me know that judges will have a primary role with regard to both types of order, because I would then be able to withdraw my amendment. I am currently waiting in hopeful expectation that he will be able to agree in principle with the points made in my amendments to clause 1 and in new clause 1.
Mr. Charles Clarke: May I first apologise to hon. Members and you, Sir Michael, if I erred by writing to the party leaders and putting the letter in the Library of the House? I took that course of action for a simple reason: I felt that I had reached a set of preliminary conclusions following the views expressed in the House last week and subsequent conversations. I thought that it would help today's discussion if I tried to set out clearly where we were, rather than not revealing that until a later stage of the debate. If I have created confusion and caused a problem with the consideration of the Bill, I apologise to the Committee and you, Sir Michael.
Mr. Kenneth Clarke
: I thank the Home Secretary for his apology. The letter seems to imply that he has decided clearly how he wishes to amend the Bill, but the obvious complaint is that he has decided not to put the relevant amendments before the Committee for discussion today. Of course they will need drafting, but I cannot imagine that that would take days and days with a little late-night work. Will he explain why he has not put the amendments before the Committee? Why could he not do so this evening, if we were prepared to continue after 10 pm? Why could we not consider them on Wednesday, because if the official Opposition were prepared to give up their Supply day, the Leader of the House could make the necessary business statement to allow us to do that. Given the complexity of the matter, it is unsatisfactory for the Home Secretary to outline what he has decided to do—the parliamentary draftsman have probably already drafted the measures—yet for us not to be able to read the amendments so that we can have a serious, sensible and detailed discussion about them of the kind that should take place in the Committee, if it is to have a scrutinising function.
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5 pm
Mr. Charles Clarke: There are two reasons why I have taken the course of action that I have taken. The first is that I finally resolved this morning what to write in the letter, which is why it came over to the House at about half-past 12. It is a preliminary set of conclusions, which I thought I should make available before we discussed the situation further. The fact is that we do not have the detailed amendments in draft to put before the Committee today, and they will not be available today.
The second reason is that I want, and I think the Committee should want, to hear the debate that we are about to have so that we are clear about the place from which a wide range of Members argue their particular points of view. That is why I have taken this course of action. As I said, the alternative open to me was to say nothing other than at the end of the discussion on the various groups of amendments. I thought that that would not be the right way to proceed.
Mr. Clarke: I shall give way, but I want to deal with the substance of the comments made by my hon. Friend the Member for Bridgend (Mr. Griffiths).
Mr. Hogg : Does the right hon. Gentleman understand the problem? If, as appears to be the case, he tables the amendments in the other place, the House will have barely any opportunity to consider the detail because they will come back for discussion under a tight timetable motion. The truth is that hon. Members will never have the opportunity properly to discuss the amendments that will lie at the heart of the new Bill.
Mr. Clarke: I understand that, but it is also the case, as the right hon. and learned Gentleman acknowledged, that the other place will have the chance to discuss those amendments in great detail and that this House will then have the opportunity to consider them.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): As I understand it, the other place will consider the Bill tomorrow. That means that the Home Secretary's proposed amendments must be in an advanced stage of drafting. He has had Wednesday offered for an extension of the debate. If he reflects on the primacy of this Chamber, surely he can accede to us the right to discuss that which will go before the Lords by utilising the Opposition time now made available. That really would be helpful and perhaps ease the Bill's passage.
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