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Mr. Marshall-Andrews : We hear what the Home Secretary says, which is, indeed, enshrined in an unsigned and unattributed document that can be found in the Vote Office—"A Note on Non-Derogating Control Orders". It describes deprivation of liberty as "a technical term" from the outset and at the end draws a distinction between liberty being deprived and liberty being restricted. May I ask the Home Secretary where on earth that distinction can be found in the European convention on human rights, or, indeed, in any other legal authority known in this country?
Mr. Clarke: As I understand it, the distinction is drawn very clearly in the European convention on human rights and it has been carried through in the judgments of the European Court. That is the basis on which the argument is made. It is a critical point.
Mr. Clarke: I will give way later.
If we are saying that any restriction on liberty, of whatever kind, is equivalent to any other restriction of liberty, of whatever kind—the argument put by my hon. Friend the Member for Thurrock was that there is, indeed, equality of concern between any restriction of liberty that might arise—I am afraid that I simply cannot accept that. There is a distinction between a particular restriction and what amounts to a deprivation of liberty under the European convention. My point, which I make powerfully, is that it is legitimate under that convention to restrict liberty, provided it is justified by a legitimate aim and provided it is proportionate.
Rob Marris (Wolverhampton, South-West) (Lab): The document to which my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) referred, continues on page 2:
"It is the case that a combination of measures—not specifically provided for in the designated derogation order—could amount to a deprivation of liberty within the meaning of Article 5 ECHR. But if a control order contained such measures it would be unlawful and would be quashed by the court on appeal."
I can understand the distinction, but a package of measures could be susceptible to attack in court if we had not derogated. However, what would be the position down the road if we had derogated from the ECHR and in a non-derogated case a package of measures were, taken together, extremely restrictive? Could the individual still apply to the court, or would the court say that the UK had now derogated?
Mr. Clarke:
It is a good question and the position that would arise is clear. It would be open to anyone who had an interest in that particular case to argue that the
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procedures under derogation applied to the package of non-derogated rights in those circumstances and it would move over. That is to say, the police, the security services or the Home Secretary would not be acting legally if they put forward a package of measures that added up to deprivation under the procedures set out for non-derogated rights. I believe that that makes it clear.
David Winnick : The job of the Committee is to try to balance concern for civil liberties against the danger of terrorism. If we do not achieve a proper balance, we are not doing our job as Members of Parliament. I accept, of course, my right hon. Friend's integrity, but if there is a distinction between depriving someone of liberty and restricting it, and if we are going to restrict a person's liberty, why not allow the usual court procedures to apply to those circumstances? That would surely allow the Home Secretary to gain far more support for what he is trying to achieve. I simply cannot see any reason—I doubt whether the other place will either—to grant such a distinction.
Mr. Clarke: Perhaps I have not been clear enough in setting out my case. I appreciate what my hon. Friend said about my integrity in these matters. There is a range of circumstances surrounding restrictions of liberty, and the restrictions are exercised by various authorities. To provide an example, there are currently warrants authorised by the Home Secretary that allow people's telephone conversations to be listened to under a certain procedure that is clearly set out and approved by the House. Does that amount to a restriction of the liberty of the person whose phone is being listened to? I would say that it does. If a police officer locks someone up in a cell for a while for causing an affray, that is also clearly a restriction of liberty.
Mr. Clarke: In all cases under law, a proportionate series of levels of judicial involvement are justified according to the particular circumstances that pertain.
Mr. Grieve : Will the Secretary of State give way?
Mr. Clarke: No, I will not give way until I have finished what I am saying.
It was argued on Second Reading by my hon. Friends and others that it is unacceptable to deprive someone of liberty, in the context of house arrest or detention or other serious cases, without judicial authority. I have thought about it and answered the point. I have responded positively to that concern, although I cannot escape the fact that a wide range of restrictions of liberty apply.
Mr. Grieve:
I have to say that I disagree entirely with the distinction that the Home Secretary has attempted to draw. Although listening into someone's telephone calls may interfere with their right to privacy, it does not interfere with their liberty. Liberty is about a person's ability to go about their lawful business without interference. One need reflect only on the powers that the Home Secretary is arrogating to himself in clause 1 to see that there are numerous powers that interfere with a person's ability to go about their lawful business—and
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some of them do so in a potentially very unpleasant fashion, which I would certainly equate with a clear deprivation or infringement of their liberty. I cannot understand the argument that these should be subject to a different category of test before the courts. The Home Secretary has so far produced no rational justification for doing so.
Mr. Clarke: So let me attempt to do just that. Although my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) wants to punish me for it, I am quoting from the note to which he referred earlier. I thought that it would be helpful to the Committee to produce a note to clarify the position. The fact is that control orders are preventative orders. They are designed to prevent future atrocities from happening—
Mr. Marshall-Andrews: Will the Home Secretary give way?
Mr. Clarke: I will not give way until I have finished my sentence.
Mr. Marshall-Andrews: Before the point is left?
Mr. Clarke: Yes, I will give way before I leave the point. My hon. and learned Friend is always impatient. Some say that it is one of his more endearing characteristics, but I am not sure that I agree.
As I was saying, the control orders are designed to prevent future atrocities from happening, not to punish a person for past events. Those preventive orders require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures are necessary and appropriate to meet those risks. It must be carried out on the basis of a wide range of complex intelligence and other material, and it involves making inferences and evaluations about matters affecting national security. I maintain that the Secretary of State is in a better position to carry out those judgments than the courts.
Mr. Marshall-Andrews: I am most grateful to the Home Secretary for giving way, and in particular for the charm and affection with which he does so, which makes it slightly unfortunate that I have to ask this question. He has told the Committee that the European convention on human rights provides a distinction between deprivation and restriction of liberty and that it specifically allows for restriction of liberty, so will he please tell us in which particular article that appears?
Mr. Clarke: I do not have the article in front of me. I am advised that it is article 5, but I would be wary of putting that on the record.
The example that I gave earlier was of a number of articles in the European convention on human rights that allow a restriction of liberty in a number of different areas.
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6 pm
Simon Hughes: May I ask the question in a more personal way? The Home Secretary used to be president of his university students union. Does he accept that his successor, as president of the Cambridge students union, should be deprived of his or her right to go to Scotland, to meet their family, to talk to people, or to read something without being able to argue their case in open court? That is the issue. I cannot believe that he would have accepted that when he was president of the students union and I cannot believe that, in his heart of hearts, he believes that it is acceptable now.
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