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The Minister for Crime Reduction, Policing and Community Safety (Ms Hazel Blears): Does the hon. Gentleman accept that the powers under the Terrorism Act 2000 relate to an ongoing investigation of someone who is involved in the preparation, committal or instigation of an offence? As control orders are preventive measures, consideration can be given to not only what has happened, but what might happen in the context of the threat as a whole. A different process of decision making will be used from that which applies when people are arrested on the basis that they have already committed an offence. This point goes to the heart of the matter. The hon. Gentleman is talking about a justice system that examines things after they have happened, but control orders are designed to deal with not only what has happened, but what might happen.

Mr. Grieve: I do not think that I agree with the Minister. When the suspected terrorists were flown back from Guantanamo Bay, instead of coming off the plane and going into the bosom of their families, they were detained by the police, presumably to ascertain whether they had committed offences. After being interviewed, they were released. It beggars belief for the Minister to suggest that if people were suspected of serious involvement in terrorism, there would not be grounds on which the police could arrest them to ascertain whether criminal offences had been committed. I find it impossible to accept that, so I hope that the Minister will clarify her remarks because the situation seems very strange.

The problem might be that the Government, in their typical fashion, have tried to over-egg the pudding. The Secretary of State has put his case to the world through the media by saying that he needs the power because he might have to make an immediate on-the-spot decision in the middle of the night that could have important consequences for protecting people from an immediate threat of violence. I think the Minister would agree that under that test, the police would have ample grounds to intervene immediately.

Mr. Garnier: Is not the absurdity of the Government's position starker than that? I have telephoned judges at all hours of the day and in the dead of night to get a civil injunction to prevent a newspaper from publishing a potentially defamatory article. It cannot be suggested that a judge would be disturbed by receiving a telephone call from the Home Secretary's advocate to say, "I'd like a control order, please." If a judge will grant a civil order to ban the immediate publication of a newspaper article, he will not jib one jot at being woken up to make a control order.

Mr. Grieve: My hon. and learned Friend is right: there is absolutely no reason why a judge would not do that. However, I am making the point that given the police's
 
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powers of detention, there might be no need whatever for ex parte orders. There will be 14 days to establish an inter partes hearing, so the Minister's anxiety has little validity.

I want to allow other hon. Members to speak, so I shall bring my remarks to a close. We must face the fact that on any rational analysis, the proposals are seriously flawed. The Secretary of State made the distinction between major infringements of a subject's liberty and minor infringements. It is true that major infringements might be more reprehensible, unless they can be justified, but none of the infringements of a person's liberty proposed in clause 1 should be tolerated unless there are sound and persuasive reasons for doing so. The Committee must face the fact that the Bill is a long-term measure. I fear that such procedures and processes will be in place for years, which makes them entirely different from those in place during the second world war for the detention of enemy aliens, or even the unusual application on certain British subjects under regulation 18B.

I hope that the Minister will be able to respond to my points at some stage. No coherent argument has been made for rejecting the amendment moved by the hon. Member for Bridgend. If the Committee wishes to persuade the Government that from the beginning judges must make control orders, irrespective of whether they are derogating or non-derogating orders, the sensible thing to do is to vote for the amendment. I hope that the hon. Gentleman will press the amendment to a Division because such an expression of the Committee's opinion would be the best mechanism to present an alternative to the process that the Home Secretary proposes. The Home Secretary tries to persuade us that his proposal is acceptable, but I disagree. He has not made the case for his proposal. Indeed, by making his concession, for which we are grateful, he has gone a long way towards conceding the validity of the case that the hon. Member for Bridgend made.

Mr. Robin Cook: It was said a long time ago this afternoon that the letter circulated by the Home Secretary rendered a number of the amendments otiose. I can probably say that it renders my amendments most otiose of all, in that he has accepted the principle behind my amendments to clause 2—that the decision should be made in the first instance by the courts. I rejoice in the fact that my amendments are otiose. That is welcome news.

7 pm

I would rejoice unconfined if the Home Secretary had said that he would accept the text of my amendments. I have no doubt that the text is defective. I have never come across an amendment tabled by a Back Bencher about which a Minister could not find a reason to argue that it was defective. Indeed, one of my regrets from my period as Foreign Secretary was that we had few pieces of legislation and I did not have adequate opportunity to tell Back Benchers that their amendments were defective. Nevertheless, it would have been a better way of proceeding had the Home Secretary accepted my amendment, or one of the other amendments, and tidied it up in the other place so that when we depart from this
 
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place at the end of the day we would at least know what words we had agreed to, rather than expecting them to come back from the House of Lords in a week or two's time.

Mr. Greg Knight: As a former Leader of the House, will the right hon. Gentleman confirm that even at this late hour it is possible for the Home Secretary to accept our offer of using Wednesday's Supply day to debate in detail the amendments that are, in effect, contained in the letter? It would also be possible for a business motion to be introduced to allow those amendments to be tabled right up to the beginning of the debate. Is that not what the Home Secretary should do?

On a personal matter, may I wish the right hon. Member for Livingston (Mr. Cook) a happy birthday?

Mr. Cook: I am glad that the right hon. Gentleman brought his remarks to a point of consensus in his conclusion.On the other matter, of course it is technically possible to have a business statement at any time in our proceedings, although it is rather late in the day for us to start all over again. The difficulty is that we are taking the Committee proceedings and the Report stage at one sitting. Had we separated those two, it would have been entirely possible for the Home Secretary, as he has sought to do today, to respond to the feeling expressed in Committee, to give the assurances that he has given, and to introduce the text for us to consider on Report, rather than doing that in the House of Lords.

Nevertheless, my right hon. Friend was wise to accept the thrust of my amendment, and I can give three reasons why that is the case. First, it is vital that we retain the separation of powers between the Executive and the courts. Any decision on the deprivation of liberty of the citizen should be a matter of judicial process rather than a political judgment. After all, it is our best protection against the arbitrary use of power by the Executive to ensure that any infringement of the liberty of a subject should be a matter of due legal process.

Secondly, the Home Secretary is the wrong person to exercise this particular power. My right hon. Friend said today, as he has said a number of times, that it is the Home Secretary who has responsibility for safeguarding the security of the nation. I would not argue with that—it is a perfectly fair statement—but it is precisely that consideration that makes him the wrong person to apply the control orders. The decision must necessarily be a balancing act between the evidence of a threat and the right to the liberty of the citizen. The place to put that balancing act to the test is in the courts. It should not be inside the Home Secretary's private office.

Mr. Cash: Only one thing concerns me about what the right hon. Gentleman said both on the "Today" programme and now. Although I understand where he is coming from, does he accept that he is effectively repudiating the history of the best part of 100 years—including the ruling by Lord Hoffmann in the Rehman case recently—in which the Home Secretary is assumed to have knowledge, experience and judgment which are, in the view of eminent jurists, including Members of the
 
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House of Lords, preferable to those of the courts? That was clearly stated in a House of Lords case only a couple of years ago.

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