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Sir Patrick Cormack: Will the Home Secretary not at least concede that this is an extremely unsatisfactory way in which to proceed with the Bill? Why can he not, even at this late stage, table amendments that this House, the elected House of Commons, could discuss on Wednesday? He could have had his Bill debated with good will and in good order, within the Government's own allotted time, if only he had given us a little more time and treated the House with a little more courtesy. I am sure that it is not his intention to be contemptuous of the House, but that is the effect of the way in which he is proceeding. Will he not concede that?
Mr. Clarke: As I have said on a number of occasions, it would have been more discourteous to the House not to have shared my intentions and thoughts with it at the earliest possible moment. To have had a discussion without sharing them would have resulted in a worse state of affairs.
The change that I have just outlined is the first, and most important, of the three changes that I intend to suggest. The second deals with the question—
Mr. Kenneth Clarke: I thank the Home Secretary for giving way. My question is relevant to the procedure. He has described the process in which a Home Secretary or his representatives would go before a judge and seek an order in relation to a prima facie case. Will he make it clear whether, in seeking such an order, it would be sufficient for the judge to be satisfied that there were reasonable grounds for suspicion that the person posed a threat to public safety, or would he have to be satisfied that there was an imminent threat to security that justified depriving that person of his liberty? Will a judge considering an application for such an order have as full a hearing as he is ever going to be allowed to have? Will he be able to see all the material on which the Home Secretary and the Security Service are basing their application, and will he have the opportunity to challenge it or to listen to an advocate challenging it? Will the Home Secretary give the Committee a fuller explanation of what is to happen at that preliminary stage of an application for a prima facie order? He might simply be introducing a rather routine procedure before going back to what he proposed in the first place.
Mr. Charles Clarke: The first thing to emphasise is that my proposal will be that there be a full hearing at the stage after the prima facie stage. At that full hearing, which will be intra partes, it will be both possible and the reality that the judge will be able to look at all the evidence, either in closed session or open session, and that there will be a position in which the advocates of both sides will be able to make their points in court in that way.
Opposition Members have raised questions about the detained person. That point has been well covered before in this discussion. It remains my strong view that the special advocate process in these arrangements in front of the High Court is an appropriate procedure to follow in those circumstances.
Mr. Kenneth Clarke:
Am I to understand that at the prima facie stage there will be no hearing? At that stage,
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will the judge have the material that is being relied on, and will the judge have to be satisfied that a threat exists, or merely satisfied that there are grounds for suspicion?
Mr. Charles Clarke: First, all the papers will be available at the prima facie stage. Secondly, the hearing will be ex parte rather than intra partes: that is, not all sides will be able to be there. Thirdly, the judge will have to be satisfied on the balance of probabilities that the individual concerned is a threat to the country.
Mr. Hogg: The right hon. Gentleman talks of inter partes hearings, but I think he also concedes that the detained person will not be told the names of his accusers, will not be shown the nature of the evidence, will not see the documents, and will not have an opportunity to question any of his accusers. What is more, the judge may not have an opportunity to put any relevant questions to the detained person. Have I understood the position correctly?
Mr. Clarke: The right hon. and learned Gentleman has understood correctly that the detained person will be represented by a special advocate in those circumstances, and it will be the special advocate who can interrogate on the issues before the court. I know that for the right hon. and learned Gentleman this is a disqualifying position. If the defendant himself cannot take instructions, from his point of view no control order should operate. He believes there should be no such legal process in such circumstances: his position is clear. Given the balance between security and liberty, he and I differ on how we should proceed.
There is an argument to be had, and the right hon. and learned Gentleman will vote accordingly. I believe, and I think the country generally believes, that when there is a reasonable belief that an individual will commit a terrorist act and that we can prevent that from happening, we should do so. That is not the right hon. and learned Gentleman's position, but it is mine.
Sir Menzies Campbell (North-East Fife) (LD): The Home Secretary can only have agreed to make what some of us regard as concessions in relation to derogating orders because he accepts the principle urged on him by Members on all sides that in matters of deprivation of liberty, a judge should be responsible for making the decision that has that effect. If he accepts that principle in relation to derogating orders, why should he not accept it in relation to non-derogating orders?
Mr. Clarke: I am coming to that. I find myself in some difficulty: I am trying to give way as much as possible while also making progress. I think I will act on that stimulus, and make my next three points about changes in the position before responding in detail to the question asked by the right hon. and learned Gentleman.
I set out in the letter, and now set out for the Committee's benefit, three respects in which we intend to change the procedures for non-derogating control orders in what I consider to be a significant and substantial way. First, we propose that when an appeal is made against a non-derogating order by an individual who wishes to do so, a limit should be set on the time
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before which it can go to a judge. The criticism has been made that if there were no time limit, no judicial review could take place effectively and definitely. I am saying that we should make the first concession in this context, and provide for a time limit. That is important from the point of view of those who fear that people under non-derogating orders may never have their case heard by a judge—and, incidentally, it refutes the view of those who say that there is no proper legal process in this regard.
Mr. John Denham (Southampton, Itchen) (Lab): Will my right hon. Friend give way?
Mr. Clarke: I will in a second—to my right hon. Friend in particular.
The second issue relates to prosecutions. Let me repeat that, as a matter of practice as well as of policy, prosecution should remain our first option, and the prospect of bringing such a prosecution should remain under review even when a control order has been imposed. I am exploring with the police and the Crown Prosecution Service how we might best include that in the Bill. I intend to place an obligation on the police—in consultation with the prosecution authorities when that is appropriate—to keep under review the prospect of a prosecution in respect of any individual who is made subject to a control order.
My officials are working on those points now, so that the necessary amendments can be made to the Bill at Committee stage in the Lords. In making this proposal, I am particularly conscious of the argument advanced by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and by my hon. and learned Friend the Member for Redcar (Vera Baird), who have argued strongly for the prosecution case to be there throughout
Mr. Denham: I hope that we will be able to explore the latter point if we ever get to that part of the Bill, but I wonder whether my right hon. Friend can pick up one small but important point. He talked about a time limit for referral to judicial review on the non-derogating orders. Whatever the other arguments, is he able to say what he has in mind for that time limit? Would it be, say, 14 days, for example?
Mr. Clarke: Fourteen days may well be a reasonable time scale. One is thinking about a 14 to 28-day period. It is of that order. It requires a little more discussion with the CPS authorities and so on, but it is that kind of time scale that we are describing.
Mr. Simon Thomas : On a point of order, Sir Michael. We have just heard the Home Secretary say, I thought quite categorically, that there would be a time scale for the referrals for judicial review. In fact, following an intervention, he suggested that 14 days would be reasonable. However, in the letter that has been produced for the Committee this afternoon, he says that he will be
"looking closely at whether it would be possible to provide in the Rules which will govern the courts' proceedings in these cases for any such appeals to be heard within a set timescale. My conclusions will be reported to the Lords . . . and, if necessary, amendments laid at that stage."
That underlines how ridiculous it is trying to deal with this process. Is it in order that we have one thing written and another thing said and no amendments to debate?
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