| Previous Section | Index | Home Page |
The Second Deputy Chairman: The point that the hon. Gentleman makes is more a matter for debate than a point of order, but I have no doubt that the Home Secretary may want to respond to it.
Mr. Clarke: On the point that has been raised, the fact is that the best way of putting a time scale into this can be either through the rules of the court or through legislation. It is precisely that which we are considering. We will need to consider it in a little detail before finally tabling an amendment.
Mr. Grieve : May I take the Home Secretary back to the intervention of the right hon. Member for Southampton, Itchen (Mr. Denham)? One of the problems of prosecution is that, the moment the Government embark on the course of action of issuing a control order, it is likely to make the possibility of a fair trial of any person who has been subject to those procedures extremely difficult. What will the Government do about that?
Mr. Clarke: That is a real question. My right hon. Friend the Member for Southampton, Itchen has raised it on a number of occasions, which is why it is important that the avenues for prosecution are explored to their utmost before getting to the point where we have the control order as suggested, but at the end of the day—I come back to the point that I made earlier—we need to be able to deal with this small group of people in the way I have suggested.
Lynne Jones : Will my right hon. Friend give way?
Mr. Clarke: Not at this stage.
I have heard the arguments, which relate to the prosecution point, about whether, once legislation has been brought forward to give effect to any new offences—and I indicated those both in my statement last Tuesday and on Second Reading—there is still a need for control orders. Therefore, I will be asking the independent reviewer of the control orders legislation specifically to comment on the impact of any new legislation each year in his report on the operation of the new powers.
Andrew Mackinlay : Will my right hon. Friend give way?
Simon Hughes : Will the Home Secretary give way?
Mr. Clarke: Not at this moment.
I believe that, in putting forward these four changes, I am seeking very substantially to meet the views of the Committee.
Andrew Mackinlay: Will my right hon. Friend give way?
Mr. Clarke:
I will give way in a second. I need to clarify one point for the right hon. and learned Member
28 Feb 2005 : Column 691
for Rushcliffe (Mr. Clarke) in case I in any way misled him and the Committee. To be absolutely clear, at the first stage of the hearing the test is "prima facie", not
but it is fuller than he suggested because it includes whether or not there are reasonable grounds for suspecting that the person is a terrorist and whether there are reasonable grounds for believing that the imposition of obligations is necessary. Of course, the full hearing will be heard very soon afterwards. I did not want to mislead him, so I wanted to clarify that point.
Mr. Kenneth Clarke: I am very grateful to the Home Secretary for that clarification, but I am also grateful for the concessions that he is plainly trying to make to get as wide a body of support as possible. Indeed, his final point goes to the root of his concession. He has been asked by Members in all parts of the Committee whether he will hand over the power that he is seeking as Home Secretary to deprive someone of their liberty to a judge who, upon application from him, can then deprive someone of their liberty. According to the Home Secretary, all that the judge will have to be satisfied of at this first stage is that there is a case to answer. That is not in fact a full transfer of the decision. What troubles many of us is that a British subject or a foreigner—we cannot discriminate—should not be deprived of his liberty by the order of the Home Secretary, unless the latter can satisfy a judge through what is an admittedly closed judicial process that there is at least, on the balance of probability, a need now to deprive that individual of his liberty. With great respect to the Home Secretary, all that he is doing is putting in a minor check before the process proceeds to an inter-parte hearing, which, he says, will provide the substantial protection at a later stage.
5.45 pm
Mr. Clarke: I do not accept that this is a minor change. First, the judge is able to see all the material. Secondly, a full hearing will rapidly occur in the circumstances described. The change that I am proposing is therefore very much more than a minor one.
Andrew Mackinlay : Will my right hon. Friend give way?
I have set out four changes that I believe go a significant way towards dealing with the concerns expressed not only about derogating, but non-derogating control orders. I have been asked by a number of Members in all parts of the Committee to explain why I differentiate between the two types of order. I intend to do just that, but before I do so I will give way to my hon. Friend the Member for Thurrock (Andrew Mackinlay).
Andrew Mackinlay:
That is the issue about which I wanted to ask my right hon. Friend. We do not understand why there should be a different threshold of test before a judge in respect of non-derogating orders,
28 Feb 2005 : Column 692
which can be just as offensive not just to the individuals suffering them, but to Members of Parliament who are concerned about jealously preserving rights and liberties. Why should there be a different procedure? Why can we not have full and thorough oversight by a judge in all circumstances, and in respect of all the evidence relating to non-derogating orders?
Mr. Clarke: That is precisely the issue that I am about to address.
Mr. Garnier : I do not want to press this point time and again, but will the Home Secretary ensure that the House has ample opportunity—by that I mean not just one or two hours—after the other place has considered the amendments to reconsider them in the light of the Lords discussion? We are delighted to hear from the Home Secretary, but this discussion has got precisely nothing to do with the tabled amendments. We must have an opportunity to look at them and to discuss his ideas once the amendments have been considered by the Lords.
Mr. Clarke: The hon. and learned Gentleman has made that point before and I have noted it.
Mr. Cash: Does the Home Secretary accept that, as I mentioned on Second Reading, one of the biggest problems is the question of whether a person detained in such circumstances would have the right to habeas corpus? It is crystal clear that the decision taken by the House of Lords during the second world war in the case of Liversidge v. Anderson has since been completely overridden by subsequent decisions taken by the Lords and others. The Home Secretary knows about whom I am talking. Will he state unequivocally now that there will be no interference with the right of habeas corpus, bearing in mind that habeas corpus was still available during the second world war under emergency powers?
Mr. Clarke: I am advised that I can give the assurance that the hon. Gentleman is looking for: the proposals that I have established will not interfere with habeas corpus.
I come now to the question—which a number of Members have genuinely raised—of why I have sought to differentiate between cases involving a deprivation of liberty and those that do not. I begin by acknowledging that all control orders will impose greater or lesser restrictions on individuals' activities and movements. They could interfere with convention rights such as the right to respect for private and family life—article 8—freedom of expression—article 10—and freedom of assembly and association—article 11. There is no doubt about that whatsoever. It is also clear that interference with those rights is permissible under the convention, provided that it is justified by a legitimate aim and is proportionate. It does not involve a derogation from the ECHR and it is not the same as a "deprivation of liberty". Restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of "deprivation of liberty"—not as set out by me, but as set out in the European convention to which this country has rightly signed up.
28 Feb 2005 : Column 693
What is necessary for deprivation of liberty to take place? It is about the extent to which a person's physical liberty is curtailed; it must be of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted. I put it to all Members with all the powers at my command that this distinction between a restriction of liberty and a deprivation of liberty is a real and important one—it is not simply trivial in regard to these issues.
| Next Section | Index | Home Page |