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Vera Baird (Redcar) (Lab): Could I return to the sentence that my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) quoted? A combination of measures could amount to deprivation of liberty under article 5. That document refers to control orders, not derogating orders. My right hon. Friend accepts, therefore, that it is possible to take liberty away through a non-derogatory control order. If liberty is taken away under clause 2, he must go to a judge first. He can take liberty away under clause 1, but without going to a judge, except that there would be a right of appeal. In both cases, liberty is taken away, so how can a different procedure be justified?
Mr. Clarke: I think I can help my hon. and learned Friend. First, a Home Secretary who, on advice, including legal advice, sought improperlythat is the implication of the questionto deprive someone of liberty, whether by an individual derogating control order, or by a combination of non-derogating control orders, would be acting wrongly. Moreover, having acted wrongly, he would be overruled by a judge on appeal and the case would then have to be referred immediately, under the derogating procedure, to the higher level judicial authority set out in the proposal. That is a clear guarantee to meet the sort of concern that my hon. and learned Friend is raising.
Vera Baird: The difficulty is that the liberty of the subject will already have been taken away by Executive order and the victim could only appeal. The Home Secretary accepts that taking away someone's liberty under a clause 2 order should be done only by a judge. What is the difference?
There is a major difference, which I tried to set out earlier. Let me be clear about whether non-derogating control orders deprive someone of liberty. Derogating obligations must be set out in designated derogation orders. There must be an order to allow the whole process to take place and it must be approved by the House and the other place. It will be clear from the designated derogation order what may be permitted in the derogating control order. The derogating control order before the House and the other place must set out
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what might be permitted in the derogating control order. If those measures were imposed, the derogated control order procedure would have to be followed and is set out in my proposals. If the other measures were not in the designated control order and amounted to deprivation of liberty, they would be unlawful and would be quashed.
Vera Baird: I accept that entirely, but a judge must be asked to consider an application to take someone's liberty away under clause 2 and, if it is unlawful, he will not grant it. Why does not the same apply under clause 1? It would be unlawful if my right hon. Friend made an order under clause 1 that deprived someone of liberty, but the subject would be locked up and could appeal. If the Home Secretary had to apply to a judge first, the judge would not grant the order if it was unlawful.
Mr. Clarke: The procedures that I set out meet the guarantee that my hon. and learned Friend is asking for. If she is asking why do I not propose an identical procedure for derogated control orders and non-derogated control orders, the answer is that the deprivation of liberty issue is of a key and different character from the restrictions of liberty that we are talking about elsewhere.
The lawyers' festival that we are having today does not fully reflect the balance of views elsewhere. People are looking for a guarantee against arbitrary detention and reassurance that people who are reasonably suspected of being a threat are detained until their cases can be fairly heard within a reasonable time. I broadly sympathise with my right hon. Friend, but I am not sure that it would interfere with what he is trying to achieve if he also involved a judge in the weaker cases that we are now discussing.
Mr. Clarke: I have voluntarily imprisoned myself in a lawyers' festival and sought to eschew appeals to a wider public generally in this argument, although there is plenty of room to do so. I agree with my hon. Friend that it is reasonable for the elected House of Parliament to bear in mind what our constituents think about these matters. They want a Government that will protect national security and we are determined to do so.
Mr. Denham: I understand that my right hon. Friend's current difficulty stems in part from the concession that he made earlier today. As I said last week, none of our institutions, including the judiciary, is properly designed for the purposes that we face. We must evolve further in an investigatory direction in the years to come.
"The assessment must be carried out on the basis of a wide range of complex intelligence material and involves inferences and evaluations being made in relation to matters affecting national security."
With all due respect to my right hon. Friend, having made the decision today to put that process in the hands of the judiciary for derogating control orders, the argument for doing the same for non-derogating control orders becomes irresistible. I entirely accept his argument that they are measures of a different order and that people are nit-picking around that issue, but it does not justify a separate process.
Mr. Clarke: I respect my right hon. Friend, but there is an important qualitative difference between deprivation of liberty as defined by the European convention on human rights[Hon. Members: "We cannot hear."] I am sorry if hon. Members could not hear me. I believe that there is a qualitative difference between deprivation of liberty within the context of the European convention on human rights and something that is not a deprivation of liberty. I understand the concerns that hon. Members are raising about how far one goes down that course, whether a combination of restrictions can add up to a deprivation and how to ensure that that is properly dealt with by the procedures, but there is a qualitative difference, which is established in case lawthe cases are given in the documentand in many other ways.
Mr. Denham: I entirely accept the first half of my right hon. Friend's argument that there is a qualitative difference, but where does that provide the justification for a difference of process? What is going on is this terribly difficult issue of assessing what the intelligence services are telling us, the national risk and the role to be played by an individual. We must either decide that we are to involve the judiciary at the outset, or that we are not. Having decided that we are, we must do that across the piece.
The Second Deputy Chairman: Order. I believe that I may presume what the hon. Gentleman wishes to say. It would be helpful if the Home Secretary could address the whole Committee. It is tempting to address the person who has just intervened, but it is more helpful to address the whole Committee.
I was saying that I was grateful to my right hon. Friend for accepting a key and important part of the argumentthat there is a distinction between circumstances in which an individual is to be deprived of his liberty and those in which he is not deprived of his liberty. My right hon. Friend then arguedif I have correctly understood himthat, despite that distinction, the processes in both cases should be the same. I do not accept that point because the key argument that I heard for the involvement of a judge at the initial stage related to the deprivation of liberty. The argument was that, whether it involved house arrest or
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detention of some other kind, deprivation of liberty was such a serious matter that it could not be left in the hands of a Minister, but had to be put before a judge. I have, reluctantly, accepted that argument, which was made by my right hon. Friend and others, but I do not think that that argument applies to cases in which the subject will not be deprived of his liberty.
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