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Mr. Clarke: The hon. Gentleman has made it clear at every stage that he is against any form of control orders,
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which he does not believe to be right. In the small area that I described, he concludes that the best thing—I accept his integrity and honour in putting this view forward—would be to do nothing. He is entitled to that view, but I cannot accept it.

Mr. Peter Lilley (Hitchin and Harpenden) (Con): The Home Secretary has said that these measures, which we all find distasteful, will apply only to a small number of people, but earlier today the Prime Minister said that in the view of the security services there are "several hundred people" for whom these powers are necessary. Who should we believe?

Mr. Clarke: The Prime Minister was referring to the 700 cases, I think, where action has been taken which has already been reported. There are a large number of people who, we think, pose a threat to what we believe. However, a significant number of those can be dealt with through the prosecution route, which is the route that we prefer to follow.

5.15 pm

Mr. John Bercow (Buckingham) (Con): Given the detailed contents of the right hon. Gentleman's letter to my right hon. Friend the Member for Haltemprice and Howden (David Davis), nothing that he has said this afternoon explains why he cannot table Government amendments for the Committee to consider this week. In view of the fact that the Home Secretary must have heard the expressions of grave concern in all parts of the House about the way in which he has handled the matter during the consideration of the programme motion, did he not think it a good idea to have a word with his right hon. Friend the Chief Whip or with the Leader of the House or both, with a view to saying to the Committee, "Yes, we accept the Opposition's suggestion. Let there be an additional day for debate. Let that day be Wednesday." What is so difficult about the Home Secretary swallowing a little bit of humble pie?

Mr. Clarke: We have dealt with all those points at some length. The whole point about the Conservative Opposition is that there is no Opposition proposal. There is no clarity whatever. We have a shifting position, sands moving the whole time, about control orders or not.

Mr. Robin Cook (Livingston) (Lab): As the Member who had the privilege this morning of taking part in the debate with Lord Donaldson, I am not sure that I find Lord Donaldson's views any more persuasive at 5 o'clock in the afternoon than they were at 9 o'clock in the morning. I particularly remain unpersuaded of his argument that the Attorney-General would be an adequate check and balance on the way in which the Government carried out the powers. I fully take my right hon. Friend's point that a number of judges will be very unhappy about the idea of the deprivation of liberty of the citizen without charge, without conviction and without trial. However, if that is the course that we
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are to take—it is in his Bill—to many of us a sticking point is that the decision on that should be taken by the courts, not by the Government.

Mr. Clarke: I agree with my right hon. Friend. That enables me to move on to the main point that I wished to make, and I am grateful to him for allowing me to do so.

Lynne Jones (Birmingham, Selly Oak) (Lab): Will my right hon. Friend give way?

Mr. Clarke: No, I shall go on to the point that I wished to make, which is that despite the view that I have just expressed of my concern about the position of judges, I have come to the view that there is great merit in seeking as wide a consensus as is possible across Parliament. That is why I have come to the conclusion that I should move in this area in precisely the direction suggested by my right hon. Friend the Member for Livingston (Mr. Cook) not only today but on Second Reading. I take the opportunity to pay tribute to the way in which the arguments on the matter have been made, both by him and by many of my hon. Friends, who have sought in a perfectly proper way to make the case that he summarised a moment ago—that decisions on deprivation of liberty are best taken by judges, not by other people.

However, when considering the balance of these matters—and it is a matter of balance—I came to the conclusion that I set out in the letter today. I propose to amend the Bill to provide for derogating control orders to be made by a judge in the High Court, rather than as now by the Secretary of State. That is a change of position and I have made it for the reasons that I have given.

Mr. Grieve rose—

Mr. Clarke: I have sought to acknowledge the strength of opinion that exists in all parts of the House. I shall go on to say three other things that I have also concluded, but before doing that I give way to the hon. Member for Beaconsfield (Mr. Grieve).

Mr. Grieve: The Home Secretary suggests that the official Opposition have not indicated their position, so I repeat it. First, the orders must be made by the judiciary, not by the Executive—I shall come back to that in a moment. Secondly, the Home Secretary will have to justify before the House each and every aspect of the control orders that he seeks. If he can persuade us that each and every one of them is required, he will have our support, but the difficulty is that his past utterances have not suggested to us that some of the control orders are justified at all. Why, if the right hon. Gentleman accepts the principle of the judiciary dealing with orders where there is a derogation, should he not apply it also to those where he believes he does not have to derogate, given that many of them as they appear in the Bill are substantial infringements of the liberty of the individual?

Mr. Clarke: I will come to the hon. Gentleman's final important point, which has also been raised by others, when I set out the four points that I intend to deal with.
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Mr. Chris Smith (Islington, South and Finsbury) (Lab): Can my right hon. Friend give us a very clear assurance that as regards the prima facie consideration by the judge that he intends in relation to the derogating orders and the subsequent referral to the full court, the judge and the court will on both occasions be able to look at the facts of the case and to consider all the information that he has had at his disposal, and will not simply be looking at process?

Mr. Clarke: I can give that absolute assurance. That is very important. The meaning of the criticism that was made of me by several hon. Members during the Second Reading debate last Thursday was precisely that a court might be able only to look at the processes, not the substance—

Several hon. Members rose—

Mr. Clarke: I will not give way until I have finished my sentence. It is not unreasonable for me to try to finish my sentence before giving way.

The point that I was seeking to make is that many Members criticised my proposal on the grounds that it did not give, as they originally thought, the basis for the court to consider the whole situation, as my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) suggested. I have accepted that criticism in the case of derogating cases, and that is the basis of what I have put forward. In a second, if I am given the time, I will deal with the points made by my right hon. Friend and set out the procedure that will be followed.

Mr. Michael Weir (Angus) (SNP): Will the Home Secretary please clarify something? In his letter he talks about an application to the High Court, which is not defined in the Bill, although a court is defined. Can he confirm that in Scotland the high court will be the Court of Sessions?

Mr. Clarke: I can confirm that.

David Winnick: Since I happen to believe that there is an acute terrorist threat to this country, I am going to support control orders, as I did last week. I do not believe that the Government have some hidden agenda to undermine civil liberties. However, as my right hon. Friend has, rightly, gone as far as he has on house arrest, why does he not go further, as the hon. Member for Beaconsfield (Mr. Grieve) suggested, to get court intervention on control orders, not simply my right hon. Friend's intervention in the first instance? Surely he can go further than he already has.

Mr. Clarke: I will come to that argument in a second, if I may.

Jeremy Corbyn (Islington, North) (Lab): In response to my right hon. Friend the Member for Islington, South and Finsbury (Chris Smith), the Home Secretary said that the judge and the court would have access to all the information under which the orders had been sought. What information would be made available to the defendant in that process?
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