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Mr. Oaten : I do not intend to speak for very long because many Members want to speak. It has become clear from events this afternoon that what we say in this Chamber is not what will matter in the next 48 hours. That is a frustration for many of us.

It is difficult to decide whether we are debating a set of clauses or a letter. The clauses in front of us are unacceptable. Even though I welcome some of the measures that have been set out in the letter, the letter is also unacceptable. Therefore, regardless of how one interprets any votes later—it will be difficult to do so—for clarity I should say that whether in relation to the clauses or to the new proposals made by the Home Secretary, we will be voting against the measures.

7.15 pm

We debated at length on Second Reading how it was unacceptable for the Home Secretary to give himself so much power to take away the liberties of others. I genuinely welcome his reflection on that and the fact that he has put forward in his letter a different set of proposals. They do not go far enough, but it would be churlish not to acknowledge that. Just as last week he was able to move on the issue of judicial involvement and judicial review, he has made a fundamental leap in recognising that the role of the judge is not to be one of just signing off or reviewing, and that they, rather than politicians, can take the decisions.

I want to flag up a few concerns about what the Home Secretary has proposed in his letter. If it were possible to table amendments to a letter, we would do so. Let us regard our proposals as a postscript to his letter. We hope that we can address them in more detail in another place and that at some point this evening the Minister will respond to them.

We have always acknowledged that if a judge were able to take the initial decision, we would have to overcome what I have described as the problem of the Home Secretary getting a call at 2 o'clock in the morning. In his letter, the Home Secretary outlined the way in which he would amend police powers. It is important that we understand more about that process. There is still the critical issue of whether the Home Secretary or the intelligence services would be directing a chief constable and quite how that relationship would work when that call comes through to the Home Secretary. We have acknowledged that, as a mechanism for achieving what we want—a judge deciding—there must be something to fill that gap.

In the letter, the Home Secretary acknowledges that we will be able to move towards a prima facie case within 24 hours. At the right time of day, that period could be shortened; it may well be possible to get through a court process a great deal faster than that. I see no reason why we should not try to move much closer to a point where that takes place almost as soon as the information is brought forward, instead of setting a limit of 24 hours.

David Davis (Haltemprice and Howden) (Con): I am listening with interest to the hon. Gentleman. I do not think that such a problem exists. If we want to get an injunction in the middle of the night to stop a newspaper publishing something, we can do so. The process of warrantry that covers a great deal of the intrusive
 
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actions of our various agencies can be undergone in the middle of the night, and indeed often is. Are we making too much of a problem of this? It can be dealt with by a judge at any point of day or night.

Mr. Oaten: I would make two points to the shadow Home Secretary. First, I have acknowledged that the police powers to hold individuals for 14 days may not be acceptable. In relation to those current powers, we would be moving towards a definite charge; clearly, in these circumstances, we would not be doing so. Secondly, if we agreed to many of the amendments, we might be talking about judges who are security vetted and of different types. Therefore, it is unlikely that there would be many of them around at the drop of a hat, as there are for a newspaper libel action. However, I accept the right hon. Gentleman's point that we should try to narrow the gap between the Home Secretary seeking emergency powers and the considering of the prima facie case.

Another concern, and one at which the Lords will need to look, are the grounds for which a prima facie case can be considered. At the moment, it is suggested that that should be based on "reasonable grounds". Even though that would be at a very early stage in the process, we are uncomfortable that the grounds should be "reasonable grounds".

Thirdly, when will consideration be given in that process to prosecution? On many occasions, the Home Secretary has said that he intends to move to prosecution at an early stage, but could we not consider the prima facie case for prosecution? Under the Home Secretary's proposals, when will the consideration whether to prosecute occur? In our judgment, the sooner that matter is addressed in the Bill, the better.

The Home Secretary's letter is very quiet on the time that it would take to move from the prima facie case to applying for a full control order, and we have received no indication of how long that period would be. A period must clearly be provided to allow cases to be developed, and I would have hoped to receive some indication that we are discussing a not very long period of between seven and 14 days from seeking a prima facie case to moving towards a full control order being applied for and decided by a judge.

So far, we have discussed helpful steps in the right direction in relation to the powers of the judge and we seek clarity on how those powers will work. However, issues of fundamental principle also exist, and they mean that we are uncomfortable with the direction in which the Government are heading. Evidence is one such key issue and it is not satisfactory that the Government still intend individuals not to be able to see the evidence against them. At the moment, a special advocate can see such evidence, but they cannot necessarily share the information with the defendant.

There must be a way to allow a defendant to argue about matters of fact in such cases. It would be crazy if an individual had a charge put against them, but they were not allowed to know the information, although they had an alibi. We must be able to work through such matter of fact issues to make sure that a gross miscarriage of justice does not occur simply because certain levels of evidence were not considered.
 
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Mr. A. J. Beith (Berwick-upon-Tweed) (LD): May I draw my hon. Friend's attention to the evidence submitted to the Constitutional Affairs Committee by nine of the special advocates, which indicates the difficulty in which special advocates operate? For precisely the reasons that he has just given, the special advocates say that they cannot guarantee to secure justice for the people on whose behalf they are supposed to act. Their participation in the existing SIAC proceedings should not be taken as indicating that they are satisfied that those proceedings are fair.

Mr. Oaten: My right hon. Friend has made an excellent point. The SIAC proceedings put not only the defendant but the special advocates in an impossible situation. Without a system to allow the basic facts to be heard on all sides, miscarriages of justice will occur.

Mr. Grieve: I agree entirely with the hon. Gentleman. One of the problems that we face is that the Home Secretary makes concessions on the Bill when he is under pressure, but remains reluctant to allow detailed scrutiny of the entirety of the legislation, which today's Committee will certainly not provide.

Mr. Oaten: I could not agree more, but we are where we are. Let us hope that the detail of those issues will be examined in another place and that we can make a useful contribution in Committee.

Vera Baird: The hon. Gentleman is making some good points. I disagree with what the hon. Member for Beaconsfield (Mr. Grieve) has just said because we are discussing not substantive material that will go on in the Bill, but detailed rules of court. I have never understood why one should not know whether an individual has an alibi because one does not know the day on which they were alleged to have done something. If the special advocate knows the gist of the allegation, why should he not agree a series of questions with the judge to be put to the defendant? He would not have to ask, "What were you doing on 10 March?" He could ask, "What were you doing in March?", and do his best from the individual's diaries. Such a process would gradually erode the worst bite of the injustices in the system.

Mr. Oaten: The hon. and learned Lady is right—the situation is not black and white. It cannot be beyond the wit of man and the good will of those involved in the process to create a way to establish issues of fact without giving away sensitive information. When the Bill reaches another place, I hope that the Home Secretary will examine ways to achieve that. I disagree with the hon. and learned Lady in saying that such issues should be dealt with in the Bill. The matters of principle must be addressed in some way in the language of the Bill before my hon. Friends and I can support it.

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