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Mr. Clarke: At the point of the full hearing, there would be what is known as an inter partes hearing, where all sides have access to the information via the special advocacy procedure that has been established to deal with the security issues.
Mr. Grieve: Further to that point, I read paragraph 4(3)(c) of the schedule as indicating that the Home Secretary can pick and choose what evidence he puts before the judge, not before the defendant, when the matter comes to an inter partes hearing. If so, that is not compatible with the answer that he gave a short time ago in response to the intervention on whether the judge would be able to consider all the evidence in the case. That point requires clarification.
Mr. Clarke: My hon. Friend the Minister for Crime Reduction, Policing and Community Safety will do that later on. However, I can say in summary that it is not our intention to allow the Secretary of State not to disclose exculpatory material to the controlled person or the special advocate. Our intention in the paragraph to which the hon. Gentleman refers is to replicate the substance of the SIAC procedure, so that the court directs the Secretary of State to serve closed material that is sensitive and where there could be vulnerability to the suspect. After the Secretary of State's objection has been heard in closed session, the Secretary of State is able to withdraw that evidence, and if he does so he is not required to disclose it. The Security Service already has the practice of disclosing any exculpatory material, and that will continue.
To be clear, we would be happy to reconsider the wording of paragraph 4(3)(c) with a view to improving it.
Mr. Mark Oaten (Winchester) (LD) rose—
Mr. Clarke: I will give way to the hon. Gentleman, then I shall try to explain the procedure before having too much discussion on it beforehand.
Mr. Oaten: In case people are confused, will the Home Secretary confirm that while the special advocate may be able to see the evidence, they are not allowed to show it to the defendant?
Mr. Clarke: If it is in the closed session, the hon. Gentleman is right, because of the national security issue involved. For some, that means that no such procedure can be acceptable and that, effectively therefore, according to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), no control regime can exist.
Mr. Clarke: The right hon. and learned Gentleman says, "Absolutely", thus confirming that, whatever Opposition Front Benchers say, senior and respected Conservative Back Benchers believe that there should be no control order regime at all.
I shall set out precisely what the new procedure—
Lynne Jones:
Will my right hon. Friend give way?
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Mr. Clarke: Not at this stage—I will do so later.
Mr. Garnier: On a point of order, Sir Michael. I apologise to the Committee and to the Home Secretary for interrupting him while he is trying to explain something. However, the longer his speech goes on, the more unsatisfactory the process is revealed to be. We are trying to discuss a huge infringement of the liberty of the individual, on the back of a letter and without any of the amendments or rules of procedure that the Home Secretary seeks to explain. I congratulate him on wanting to explain, but what are the procedures of the House for? That is not just a boring lawyer's point. How can those procedures be properly protected when the Home Secretary can destroy the whole purpose of the Committee stage by coming to the Chamber with a letter to the shadow Home Secretary and making a speech that is wholly unconnected with the fabric of the Bill as presented by the Government? We are being expected to swallow that hook, line and sinker. Surely some control should be placed on a Secretary of State and Government who ride roughshod over the House's proper discussion procedures.
The Second Deputy Chairman: The programme motion has been decided. There is nothing more we can do at this stage other than consider the amendments that are before the Committee, which is what we are doing.
The Second Deputy Chairman: Order. I have dealt with the point of order. We should now proceed and let the Home Secretary explain.
Lynne Jones: Will my right hon. Friend give way?
Mr. Clarke: I will give way and then say what I was going to say.
Lynne Jones: Why is my right hon. Friend not prepared to put the making of non-derogating control orders in the hands of the court or to allow the court to consider the facts of such cases rather than just the procedure?
Mr. Clarke: As I think I have said about four times already, I will come to that point when I am allowed to make some progress.
The new procedure for derogating control orders will be—I will propose this for consideration in the other place—that the Secretary of State would make an ex parte application to the High Court for an order and that the application would be heard by a judge as quickly as possible.
Mr. Shepherd:
On a point of order, Sir Michael. I raise this with the greatest reluctance. The Home Secretary is taking us into territories that none of us can read either in the Bill or in any amendment. How can he be in order when he is going off on that line of attack?
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The Second Deputy Chairman: The Home Secretary is speaking to the amendment and the group. The Committee should now allow him the time to explain what he is seeking to explain and then take a view on his explanation.
Mr. Clarke: I am grateful, Sir Michael. I am of course entirely happy not to try to describe the procedure that I will set out, but to be quite candid, it would be better if I did try to do so.
Andrew Mackinlay (Thurrock) (Lab): Well if you want my vote, you had better explain; otherwise—dream on.
Mr. Clarke: I thank my hon. Friend for that.
The new procedure for derogating control orders that I shall suggest is as follows. First, the Secretary of State would make an ex parte application to the High Court for an order. Secondly, the application would be heard by the judge as quickly as possible—say, within 24 to 48 hours. The judge would look at all the material on which the application was based and decide whether there was a prima facie case. If so, he or she would make the order. The order would be subject to automatic referral to the full court for an inter partes hearing, with a special advocate representing the interests of the subject of the order in closed sessions, as currently provided in the Bill. The order could be renewed on application by the Secretary of State following a further inter partes hearing. That is the procedure that would give effect to the assurance that I gave earlier on a process that would meet the need seen by the Committee for a judicial decision to be the first point of call on these matters.
5.30 pm
In response to a point made on Second Reading by the hon. Member for Winchester (Mr. Oaten), I then set out the procedure necessary to deal with an emergency in which we need to prevent the subject of an application from disappearing in the period between the Secretary of State making the application and the order being served.
Mr. Robert Marshall-Andrews (Medway) (Lab): A prima facie case of what?
Mr. Clarke: A prima facie case that an order ought to be served on an individual on the basis of the terrorist threat that that individual posed. The point is that it would be for the judge to make that assessment on the basis of an application from the Home Secretary.
Malcolm Bruce (Gordon) (LD): Given the difficulties that the Home Secretary has had with special advocates under the present regime, and given that the Prime Minister says that these provisions could affect several hundred people, is the Home Secretary satisfied that there will be enough qualified lawyers willing to take on the role of special advocate in the circumstances that he is outlining?
Mr. Clarke:
First, I am certain that that will be the case. Secondly, the Prime Minister did not make the assertion that the hon. Gentleman suggests.
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