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Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab):
May I put two points to the hon. Gentleman, and
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perhaps take him into the wider debate? It is not right to say that we have never had these powers before in this country in recent years—we have. We had them in Northern Ireland with internment, and a lot of bad messages came from that. Thousands of people were involved, and there was no judicial process. Similarly, there is no judicial process with exclusion orders. I have increasingly taken the view in recent years that because of the nature of the threat now—I will very much welcome the hon. Gentleman's comments on this—we should perhaps move towards what we seem to be moving towards anyway. I refer to an inquisitorial system of justice for the narrow area of terrorism. We are bringing judges into the process, and the reason why this problem is not faced in Europe is that people are locked up there while judges decide. That may be what we are deciding now.
Mr. Grieve: I appreciate the hon. Gentleman's point, but I think that we are mixing two different issues. There is the perfectly valid argument—one that we have been pushing—that we need to review our criminal procedures to see whether it might be possible to bring suspected terrorists to trial more easily in view of some of the evidential problems that surround successfully prosecuting them. We have made proposals to the Government about that. We have said, "Allow intercept evidence, and have an examining judge collate the material." However, we have not gone down the road of having an inquisitorial process, as in France.
I have the pleasure of being half French. I am familiar with France, speak the language and have ample opportunity to see how the French judicial system operates in practice. It has many flaws, and they are flaws that I would not wish to see reproduced in this country. That is one of the reasons why I believe our common law system to be superior.
6.45 pm
Mr. Soley: I agree very much with the hon. Gentleman; I would not want the French system here. However, on the narrow issue of terrorism, I wonder whether we could consider something that might work here with rather more controls than they have in France. Let us remember that they do it rather better elsewhere in Europe. Otherwise we will end up with a system of judges simply deciding the process, and not the whole court procedure.
Mr. Grieve: I appreciate the hon. Gentleman's point, but we are at risk of straying from the subject matter of the Bill. I wish that this were part of the debate, but it is not. All I can say to the hon. Gentleman is that I believe that there is a way of trying to move in that direction without getting rid of the common law protections, and we have put that to the Government in debate on a number of occasions. Unfortunately, our proposal has not been taken up.
The suggestion made on Second Reading that France was very different because it effectively had Executive detention, with investigating magistrates able to lock people up for ever and a day, is a bit of a calumny on the French system. Although it allows for quite lengthy detention, that still has to be part of a procedure leading
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to court. If the procedure does not lead to court because there is not the evidence, no amount of investigation can justify detaining someone.
Mr. Garnier: I appreciate that my hon. Friend does not want to linger on this point for too long, but has not the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) made the point that Lord Donaldson was frightened of this morning? Lord Donaldson does not want judges to descend into becoming advocates for one cause or another. He wants judges to remain impartial, disinterested referees or umpires, to use his words. We do not want judges to become advocates on behalf of the Government, MI5 or whoever it might be. Their role is to make sure that the Government do not apply unfair evidential or other tests to the detriment of an individual who should have his fair day in court. If we stand for anything, that is what we also stand for.
Mr. Grieve: I agree with my hon. and learned Friend. My right hon. and learned Friend the Member for Sleaford and North Hykeham made that point powerfully and provoked the Home Secretary into saying, "On that basis, control orders are anathema to you."
To say that I dislike the control orders proposed by the Home Secretary is a serious understatement. I find them disgusting—there is no other way of describing it. However, I have to face up to the fact that the Government may be able to argue that however repellent and disgusting the orders may be, it is necessary to have a procedure for detaining people without the normal due process of law. The question that we must consider is, what is the best way of doing that, granted all the many imperfections? Although I understand that judges may not wish to participate in such a process, the opportunity for a judge at least to evaluate the evidence presented offers a better degree of protection than the Home Secretary doing it himself. That will be subject to many caveats, and we need to consider the detail in the rest of the Bill.
Mr. John Redwood (Wokingham) (Con): My hon. Friend is making an extremely important speech and I share his distaste. I am delighted by what he has said so far. Does he agree that we would have more confidence in the Government's case if some of the people released from Guantanamo Bay were now facing trial on charges and if we thought that the people who will be released from Belmarsh in due course would also face future judicial action? Is it not remarkable that none of the people who were arrested on suspicion can face trial for any offence at all? I thought we had strengthened the anti-terrorist laws.
Mr. Grieve: My right hon. Friend is right to suggest that the Government have still not found a way of bringing to trial the people against whom they claim that they have massive intelligence information implicating them in terrorism. That is a serious issue, and it returns me to the comments made by the hon. Member for Ealing, Acton and Shepherd's Bush.
The issue that we must consider is whether judges should make the orders only in cases in which there is a derogation from the European convention on human rights or in all circumstances. On that issue, I found the
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Home Secretary's arguments incomprehensible. I could not understand why, having conceded that it was necessary for judges to become involved where there was derogation, that was not necessary or could not be done where there was no derogation. There was no coherence whatever in that argument. Indeed, there are compelling reasons for saying that the interferences with the liberty of the individual that are implicit and explicit in the various powers for which clause 1 provides are such that a judge should be required to make an evaluation.
Mr. David Heath (Somerton and Frome) (LD): The hon. Gentleman knows that I agree with much of what he is saying. Was he as surprised as me that one of the Home Secretary's arguments was the fact that he would be in possession of more information that would be likely to be of evidential value than a judge? If that is the case, does it not suggest that the whole judicial review process is likely to be flawed, given that matters on which the Home Secretary relies will not be relayed to a court?
Mr. Grieve: I entirely agree. The hon. Gentleman might recall that in an intervention on the Home Secretary, I pointed out my puzzlement that the schedule to the Bill seemed to provide that the Home Secretary could be privy to information during the proceedings that he would not have to disclose to the judge, even though it might be relevant. He then said that the provision could perhaps be better worded and that an amendment might be tabled at some stage in the Bill's passage.
Let us be quite clear that as the Bill is drafted, the Secretary of State is not required to disclose information if he does not propose to rely on it during proceedings. That is remarkable, because I had imagined that if proceedings were to be held in front of a judge, he would be given all necessary information to decide whether the Home Secretary's application for a control order was justified. I do not think that the security of the state would be completely jeopardised if a judge were made privy to such information. Indeed, on a new Home Secretary's first day of work, he will be called upon to make orders on the advice of his officials, with no experience of the background situation in the Department. It is thus a little far fetched to suggest that the Home Secretary is privy to a magical understanding of what the security of the state requires that no one else may have.
We shall have to return to a further argument that the Home Secretary put forward at a later stage of the Bill's passage—or at some point, anyway, because we will not have a later stage. The Home Secretary will need to act quickly. He conceded that in the case of a derogating order, which is presumably the situation in which he must act fastest, he would go to a judge. In the case of a non-derogating order, however, I do not understand why he would need to exercise an Executive function from his bed at 2.30 am when the matter could be taken to a judge at that time. Furthermore, as I have said to the Minister for Crime Reduction, Policing and Community Safety—I hope that she will respond to this point at some stage—given that existing terrorist legislation allows the police to detain and interview people for up to 14 days if they suspect that a terrorist offence has been committed, I do not understand why
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the Bill needs to give Executive power for immediate detention to the Home Secretary instead of to the police in the usual way. The police would then decide with the Home Secretary that if no prosecution could be brought, an order should be applied for in the ordinary way.
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