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Mr. Grieve: Given that the Human Rights Act is on the statute book, I think that it were well that the Committee should seek to comply with it. There may well be wider issues about whether the Human Rights Act is desirable, or whether we should simply rely on the European convention on human rights, but for the present purposes of today's debate, I am comfortable with new clause 6 in the form in which it was proposed.
Mr. Denham: The hon. Gentleman draws the Committee's attention to new clause 6, in the name of the shadow Home Secretary. It is a proposal for control orders for a person who
It goes on to say—I presume that this is the position of the official Opposition—that
Surely if there is sufficient evidence to show to a criminal standard of proof that people are involved in terrorism-related activities, the thing to do would be to prosecute them for terrorist activities. Are not the Opposition ruling out the very problem that we are trying to tackle: individuals against whom there is not sufficient information to apply the criminal standard of proof, but against whom we still need to take action?
Mr. Grieve: The right hon. Gentleman is slightly jumping the gun. We are considering the Bill in Committee. In theory, we are supposed to be moving amendments for consideration by the Committee, so that it may consider them. There are some perfectly valid arguments and points to be made about using a different standard of proof from the criminal standard of proof, although for the purposes of debate, I certainly share Justice's view that the idea of starting with the criminal standard is a good one. I am also mindful of the right hon. Gentleman's point.
One of our problems is that the debate in Committee has been completely corrupted: instead of our having the opportunity for informed debate on individual points, which is what I should have liked, it has been hijacked and we must move on to the rather different problem of evaluating the comments made by the hon. Member for Bridgend against the proposals made by the Home Secretary in his lengthy speech. It is to that issue that I shall now turn, but before doing so, I reiterate for the benefit of the right hon. Member for Southampton, Itchen (Mr. Denham) that as we are starting with a model that is not necessarily word for word what we want, it struck me when I considered the various amendments that Justice's ideas merited careful scrutiny, and I flag that up in case we ever, which I rather doubt, have an opportunity to return to them.
I now turn to what the Home Secretary had to say. The nub of his argument is that although he has conceded, compared with his position last week, that there are arguments for the sort of mechanisms that the hon. Member for Bridgend wants for control orders that require derogation, he can see no reason or purpose for having them in cases that do not require derogation. As I hope was clear from my interventions, I find the Home Secretary's argument completely unsustainable, and I wish to take just a few minutes of the Committee's time to explain why.
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First, I return to the comment that I made to the Home Secretary originally that elicited his remark that he was being patronised by lawyers. I certainly apologise to him; I had no intention of patronising him—rather, I thought that as Home Secretary, he would probably have access to a great deal of sound legal advice and opinion. However, I did not understand the point that he made. He had called in aid Lord Hope's comments in a case called Rehman in which he said that in deportation cases it was appropriate that the Home Secretary, rather than a judge, should make the decision when the wider national interest had to be considered. I suppose that, to an extent, the Home Secretary linked that to the comments that Lord Donaldson made earlier today, when he expressed some reservations about judges being the principal participants in the process of control orders that the Government wish to take up.
I wish to make two points about those comments. First, if Lord Hope was referring only to deportation—I have to tell the right hon. Gentleman that I think that he was—that is clearly different from a process whereby the Home Secretary decides to take powers not to deal with aliens by deporting them, which has long been accepted in this country as one of the very few Executive powers to deprive people of their liberty that the Home Secretary has, but to translate that into a completely new field, irrespective of whether it applies to foreigners or British citizens, where the Home Secretary, by Executive fiat, deprives individuals of liberty. I believe that the two things are entirely different in principle. The truth is that we are moving into completely uncharted waters.
Lynne Jones: Is not the difference also that with deportation orders, there is an appeal process before the action—the deportation—is carried out, whereas control orders will be implemented before any appeal process can take place?
Mr. Grieve: The hon. Lady is right, and of course, I accept that the end result of the deportation process is not that people are permanently deprived of their liberty, but that they deported. So the two things do not have equivalence, but we in this country have always accepted—certainly, until the Human Rights Act began to bite—that the Home Secretary has powers to detain aliens, pending their deportation, subject to judicial scrutiny and safeguards. We are not talking about that; we are talking about, at worst, a system of Executive detention, and at best, a parallel system of justice with control orders based, most regrettably, on secrecy, on the inability of a defendant to be given the full facts that he must answer, and on a person being subject to a variety of constraints that would previously have been totally unknown in our law. That is the point.
Mr. Tom Harris (Glasgow, Cathcart) (Lab): The hon. Gentleman prays in aid Lord Hope's comments in the Rehman case and claims that they relate specifically to a deportation case. Of course that is right, but surely the point of Lord Hope's comments is that he was drawing a distinction and claiming that
"the whole concept of a standard of proof is not particularly helpful in a case such as the present . . . It is a question of evaluation and judgment."
He was talking specifically not about the kind of case on which he was sitting in judgment, but about whether we move to a new standard of proof.
Mr. Grieve: I understand what Lord Hope was saying, but he was saying it with specific reference to the only circumstances in which the problem arose: deportation cases. We are not talking about deportation cases. Indeed, the right hon. Member for Southampton, Itchen, who is no longer in his place, rightly identified one of the new procedure's basic problems, which is that the ordinary standards of proof—whether proof beyond reasonable doubt, so that people are sure to the criminal standard, or on the balance of probabilities—have fairly marginal relevance, arguably, to the sort of procedure that we will be asking judges to carry out.
That is why I say to the Home Secretary that I have little doubt that Lord Donaldson's anxieties and distaste for this procedure, and perhaps slight desire to pass it back to the Executive, have their origin in not wishing to see the judiciary sullied by interference in a procedure that does not meet the ordinary norms of justice. That is a very big problem, and one that we will have to grapple with.
Mr. Simon Thomas: Does the hon. Gentleman agree that the problem with the Home Secretary's argument about the difference between derogating and non-derogating orders, as evidenced this afternoon, is that he seems to be telling us that we must let the penalty rather than the principle decide the process? Although the Bill will go to the other place, we are in danger of creating legislation in which those who are seen by the Home Secretary to be the greatest threat to the security of the state will have the greatest judicial protection, while those who are deemed to be a lesser threat to the state will have a lesser degree of judicial protection. That is a crazy system if the Home Secretary is serious about the fact that he will make the decisions about who is or is not dangerous to the state.
Mr. Grieve: The hon. Gentleman makes a very good point, and I shall try to come to that issue directly.
If the Home Secretary can justify each and every control order that he seeks—not just the general overarching principle; it is the detail that matters—we must accept that we are setting up a novel and parallel system of justice that is thoroughly imperfect in terms of the rights of the person who is accused. As I said on Second Reading, when my colleagues first floated to me, as a lawyer, the idea of judges taking such decisions, I found that rather distasteful. It seemed to me to undermine the way in which I expect justice to be done. However, on reconsidering the matter, I have absolutely no doubt—the view seems to be shared by many Members—that if we really have to go do down this unpleasant and unsatisfactory road, it is much better that judges take the decisions. That will at least provide some protection for the individual and a sense of reassurance that he has been treated fairly.
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