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Sir Menzies Campbell: I am most grateful to the Home Secretary for being so generous in giving way. A moment ago, he reminded us that the purpose of the legislation was to try to ensure, so far as we can, the protection of the people of the United Kingdom. How will they be better protected if he pronounces the order in cases of non-derogating orders, instead of a judge doing so?

Mr. Clarke: In either case, whether it is done by the Home Secretary or a judge, the people of the United Kingdom will be better protected if we have a regime of control orders that deals with the people in question. That is common ground between us. We then come to the issue of prevention, which is at the core of this discussion, and the range of considerations that have to be taken into account. The question that then arises is whether a Minister—the Home Secretary, in this case—is in a better position to make that assessment than a judge. I argue that the Minister would be in a better position to make the assessment—

Andrew Mackinlay: Why?

Mr. Clarke: That is an important question. It is because, by definition, someone from the Executive would have access to all the information in a way that a judge would not. However, I also accept the argument that, in the case of deprivation of liberty, the penalty is so great that judicial involvement is required. That is the basis of the argument that I make.

Sir Menzies Campbell: In the latter part of his answer, the Home Secretary seemed to say that it is a question of degree but, for most right hon. and hon. Members, it appears to be a question of principle.

Mr. Clarke: Let me take the context that is given in the note that I provided earlier. In the case of Rehman, Lord Hope set out the position clearly. He concluded:

That argument was made in the context of a deportation judgment, but those same considerations apply in the cases that we are discussing. That is a substantial difference, as I hope the Committee will acknowledge.

Mr. Grieve: I wonder whether the Home Secretary has fully understood the position. If he has not, it may explain some of his difficulty. It has always been accepted in English law that the Home Secretary has a residual Executive right to deport aliens. That is one of the reasons those deportation rights have remained, even if qualified by the Human Rights Act 1998. However, we are not now
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talking about deportation or dealing with aliens: we are talking about the rights of British subjects to live in peace and be subject to pains and penalties only by due process of law. We are moving into uncharted waters because the Home Secretary says that he wishes to introduce a completely new system of imposing pains and penalties on individuals without due process of law. The argument that he has just put forward about deportation is irrelevant, because we must consider how best—in the circumstances that the Home Secretary has put forward—we can protect the liberty of the individual. The Committee's overwhelming view is that that can be best done by having a judicial process.

6.15 pm

Mr. Clarke: I am sorry if the hon. Gentleman feels that I have not understood the issues. I must say that I have spent decades of my life being patronised by lawyers, and I do not appreciate it.

I understand the issues clearly and well. I draw to the hon. Gentleman's attention the fact that both Badat and Reid, whom I mentioned earlier, are British citizens, and that is why the issue before us is not simply about immigration law. It is the issue of what we do about British citizens as well. That was the point made by the Law Lords. The regime that we are talking about will apply to British citizens, and it is a serious matter—I have not sought to hide that at any point in the debate—of the balance of judgments between security and liberty. However, the fact is that real and present dangers exist that we must address. We can legitimately have an argument about the right procedure, but the Committee should not try to suggest that there is no issue to be addressed. There is an issue that must be addressed.

Mr. Boris Johnson (Henley) (Con): I have no hesitation in admitting that I do not understand one particular point. In the Home Secretary's mind, what measures amount to a deprivation of liberty and what measures amount to a restriction of liberty? What combination of restrictions of liberty could amount to a deprivation of liberty? Could he give examples of each of those three categories?

Mr. Clarke: I shall give the Committee examples. An example of a restriction of liberty might be being forbidden to have a mobile telephone or to contact another named individual, who is known to be a terrorist organiser of some kind. A deprivation of liberty would be a matter of what is colloquially called house arrest or of actual detention. The question of whether a combination of restrictions adds up to deprivation depends on the particular combination. I dealt with that point when replying to my hon. and learned Friend the Member for Redcar.

Mr. Shepherd: The distinction that the Home Secretary draws between non-derogating and derogating orders is very difficult in many instances. For example, a person's ability to work could be restricted by orders relating to the use of the internet. Only a judge can determine whether what the Home Secretary calls non-derogating matters are proportionate. Therefore, ultimately, the orders should come before a judge who can decide that question under the terms of the
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convention and our human rights legislation. That is why the right hon. Member for Southampton, Itchen (Mr. Denham) and the hon. and learned Member for Redcar (Vera Baird) were right to say that no distinction should be made between the processes for determining those matters.

Mr. Clarke: I have sought, as best I can, to say why I think that there should be a difference. Fundamentally, the difference is that deprivation of liberty is a qualitatively different matter from restrictions on liberty.

Mr. Frank Dobson (Holborn and St. Pancras) (Lab): I accept my right hon. Friend's point about the qualitative difference, but we must proceed on the assumption that any deprivation of rights should not be subject to the arbitrary decision of the Home Secretary. My right hon. Friend has sensibly conceded the change in relation to locking people up. It is reasonable to assume that the people who need to be locked up are the most dangerous of the categories being dealt with, so we find it difficult to understand why he is not prepared to use the same procedure for those who are less dangerous.

Mr. Clarke: I am grateful to my right hon. Friend, as his intervention allows me to set out clearly the reasons for the argument that the Home Secretary is not unlimited in what he or she can do on these measures. First, the Bill itself makes it clear that a control order can impose only obligations that the Secretary of State considers "necessary" for preventing or restricting further involvement of the individual in terrorism related activities. That is a substantial restriction. Secondly, the Secretary of State is required by section 6 of the Human Rights Act 1998 to act compatibly with the convention rights of the individual and his family. It would be unlawful for the Secretary of State to impose restrictions that breached their convention rights. Moreover, the courts would quash an order that did so. Interferences with private and family life, association and communication will have to be expressly justified in each case by a specific aim permitted by the convention—in this case, we are talking about national security—and will also have to be proportionate to that end. The Secretary of State will have to weigh up very carefully in each case whether measures can be imposed that are consistent with convention rights. Finally, the Secretary of State's decision may be appealed to judicial review in the ways that I have indicated. More generally, we are proposing a complicated set of procedures whereby the Secretary of State has to report to the House on the way in which the control order regime is operating.

Richard Burden (Birmingham, Northfield) (Lab): I am sure that my right hon. Friend will weigh up those things incredibly carefully, but may I return him to what my hon. and learned Friend the Member for Redcar (Vera Baird) said? By the time somebody who was put under a combination of control orders that individually were restrictions but collectively could amount to deprivation of liberty could question that, it would be a bit late. By that stage, they might be unable to talk to people or to move around. All they could do would be
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to appeal on judicial review. There is no automaticity in that. In my right hon. Friend's first proposal, he suggested that a court should automatically check what the Home Secretary was doing, so why in this proposal is there not even automaticity?

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