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Mr. Tam Dalyell (Linlithgow) (Lab): The right hon. and learned Gentleman has occupied the important position of Home Secretary. Does he have any reflections on the fallibility or infallibility of advice from security services?

Mr. Clarke: It is a convention of politics that Ministers always heap praise on their officials, which they do not always reciprocate. In particular, it is a convention that praise is heaped on the security services
 
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by all and sundry. I accept that we have excellent security services—they are essential and do a valuable job. However, I will go no further than to say that I do not believe that they are infallible. They are virtually unaccountable now, even though attempts are made to make them accountable.

One of my predecessors, the late Roy Jenkins, strongly advised me early in my term of office to keep an eye on what those people were doing, because I would never find out what they were really up to. I will say no more on that. Any Home Secretary who uncritically and unquestioningly takes the advice of the security services runs a risk on those occasional moments when they make a mistake or advise him to do something foolish.

There is a danger in our system of politics, which I have seen, that senior politicians and senior officials who have access to an exciting and hidden world of security will get carried away with their excitement. They can sometimes become vulnerable to advice to do things that, with hindsight, are not altogether wise. However, if I am not careful, that will get me back into discussions that we had last year about a war with the right hon. Member for Livingston (Mr. Cook)—the former Foreign Secretary—who is sitting next to the hon. Member for Linlithgow (Mr. Dalyell), and others. However, the idea that the public often have—that if the security services and the police demand something, it is unpatriotic for the House of Commons to refuse it—would be dangerous for us to accept.

I am worried about what we might slip into. My concerns are up to date and pertinent. Let us remember the position of the people who were in Belmarsh. The previous Home Secretary was completely satisfied—and, let us face it, so was the House of Commons, because we did not really make a challenge—that those people were so dangerous that they had to be incarcerated in the most secure prison that could be found in the United Kingdom for an indefinite period. Where are we now? The same people are to be let out and not pursued under the legislation. It is open to us to say that perhaps the original judgment cannot have been made as confidently as we were led to believe it was made at the time. Let us beware allowing misjudgments to enter into our deliberations.

Let us not be carried away by the concessions that are being hinted at and sketched out in exciting terms. I express my genuine gratitude to the Home Secretary for moving. He has come forward with explanations of judicial process, and I agree with the former Foreign Secretary, the right hon. Member for Livingston that the Home Secretary laid on a quite remarkable performance of an hour and a half, taking on all-comers in his usual combative way, wading through the rather thin paragraphs of his letter and trying to persuade hon. Members that he was on the way to an altogether more civil liberties-conscious solution. I am not wholly persuaded, however, that that will take us to where we want to go, unless we are careful.

The Home Secretary did not come to the House because he had genuinely changed his mind. He made it clear that he preferred the position from which he had started. He came here because it dawned on him and his colleagues that they were not going to get their Bill if they did not change it. Last week, I could not
 
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understand why they had not realised that. Most people, when they are running at a brick wall, eventually stop. I expressed the opinion in various interviews that the Government did not have the faintest chance of getting the principle through both Houses. The Home Secretary has now seen that. That is what brought him here, but he did not come in a forthcoming mood.

The Home Secretary followed the unfortunate Minister for Crime Reduction, Policing and Community Safety, who was put up to defend the ridiculous programme motion. She knew that the Home Secretary was going to change the Bill. She knew that the letter was being distributed—at that stage to favoured recipients, but eventually to us all. She also knew that the whole Bill would be rewritten in the House of Lords. However, she explained that we would have only a limited time—was it seven hours?—to discuss the whole shooting match, including Committee, Report and Third Reading, before the Bill went off to the House of Lords, when we would discover exactly what it was going to say.

The Minister gave no reason for that brevity. She did not try to argue, because everything had been decided. To be fair to her—she is still here to reply to this debate—she had no discretion to alter anything. The Leader of House, who could have done something, was sitting 50 yd away, refusing to come and take part in the shambles that had broken out on the Floor about the business of the House, which he had organised. The Home Secretary was lurking behind the Chamber.

The First Deputy Chairman of Ways and Means (Sylvia Heal): Order. The right hon. and learned Gentleman is going rather wide of the debate.

Mr. Clarke: I was touching on the spirit of the concessions. However, I shall return to the Home Secretary's description of the judicial process. I was merely indicating that he did not seem to be an altogether willing and cheerful bearer of good news to the House. We must consider his proposals with particular care.

The Home Secretary made the curious division of orders into two levels: the deprivation of liberty and the restraint of liberty. That struck me as the nearest thing to legal gobbledegook that I have heard in the House since last week, when we first embarked on the whole debate. He plainly did not want to change his proposals, but he realised that he had to for the most serious orders, so they would have a judicial process, although he would not do for the less serious orders, even though both involved exactly the same deprivation of liberty and exactly the same judgment.

It was explained to us why the serious orders could, to a certain extent, be decided by a judge—I will return to that—but the less serious ones could not. That is set out in the anonymous document from the Home Office that we received just as we began. The relevant paragraph on the second page, headed "Why should the Secretary of State make non-derogating control orders?", says:

"Control orders are preventative orders. They are designed to prevent future atrocities from happening—they are not designed to punish a person for past events."

That is true of all control orders. The serious ones are not based on any crime or past event that one is going to prove, but are preventive. Everything that follows in the
 
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document is applicable to all control orders, of all severity. The only reason the Home Secretary has made a concession is because he thinks that the House will get even more excited about locking somebody up than we will about taking their freedom of movement or their mobile phone. He wants to keep the lesser orders to himself.

I suspect that the real reason why the Government have from the start resisted involving a judge at all was because of the obvious objection: that judges have the habit of being more critical and letting people out. There are cases that are not possible to get past a judge. That is why the Government want to avoid a judge; otherwise, it is difficult to see the different judgment that divides the orders horizontally, as it were.

The description of the role given in the document concludes with a sentence that the Home Secretary plainly still believes:

"This is a role which the Secretary of State is best placed to carry out rather than the courts."

I simply do not understand that. The intellectual attainment of the average judge is roughly equivalent to that of the average Secretary of State, if not greater. The mastery of detail of the average holder of judicial office is at least equal to that of most people who hold great offices of state. Such decisions are of course a difficult matter of judgment and it is difficult to apply the ordinary burden of proof. However, judges have to deal with matters of judgment all the time—sometimes quite fine and difficult ones. Judges assess risk and what is necessary, weighing the public interest on the one hand against the need to protect the liberty of the individual on the other.

Judges will be more conscious of the overriding national interest in its fullest sense, and will be inclined to be a bit more liberal and libertarian than a Home Secretary relying on the advice of the security services. Let us not deceive ourselves—that is why it is argued that the Secretary of State is more suited to the role than a judge.

8 pm

My last point deals with determining how we should look at the proposals on cases where a judge has been let in, when we get them. I am not sure how far the judge will be allowed by the proposals to supplant the Home Secretary to any effective extent. Only in the more serious cases is it suggested that the Home Secretary will have to go before a judge and apply for an order. That was always what I argued for: it is the key to the whole Bill. However, it seems that this will involve something like the committal proceedings of the kind that, in cases of ordinary serious crime, take place—or used to; it very rarely happens in that way now—before a magistrate prior to the committal to a Crown court. Under the new proposal, subject to the rather weak test set out in the first clause of the Bill, a person will go before the judge in the committal proceedings, which will be ex parte—that means that the other side will not be present—in a closed hearing. All that the Home Secretary will have to show to the judge is that there is a case to answer to go on to a full tribunal. Eventually, there will be an inter partes hearing at which the whole thing will be sorted out. I hope that, when we get the wording of the Bill, it will be absolutely clear that the decision to intern will be
 
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taken by the judge—first at the preliminary stage, and finally at the inter partes hearing—not only after looking at process and at whether the Home Secretary has behaved unreasonably, but after considering the case in the round and being satisfied at both stages that an overriding threat to the national interest is involved, and that the decision to incarcerate or confine the person will be proportionate to the risk that is seriously feared to be about to happen. That is not clear at the moment.

There are two other things that the judge should do. Prosecution is to be preferred in all these cases, and there is always a danger that people might not be prosecuted because they might be acquitted. Even the first judge at the committal hearing should have to be persuaded that there is a good argument for the case not following the ordinary process. New clause 6 provides that it should be the duty of that first judge to be satisfied that there is a good reason why the evidence—or at least a great deal of it—should not be put before an ordinary process.

The second thing that a judge should decide is how much of the information should be shared not only with the advocate who is going to challenge the evidence in the next court, but with the defendant himself. I shall not repeat what the hon. and learned Member for Redcar (Vera Baird) said earlier, but she made an extremely good point in this regard. The judge listening to the first hearing could make orders regarding the conduct of the trial. There is no reason why the Home Secretary and his security people should not have to sit down with that judge and decide how much information should be given to the defendant—and, therefore, his advocate—by way of a broad description of what he is accused of. They might not be able to tell him what the evidence is—they certainly would not be able to tell him how they got it—but he should be allowed to know that he stands accused of colluding with a particular person, planning a particular escapade, or whatever the allegation happened to be. All that needs to be set out.

I shall not go on because, as I have already said, we are discussing the Bill even though we do not know what it will finally look like. There are far more details to come. When they are drafted, the clauses on these provisions will be quite complex. It is laughable that we are all sitting here waiting for the true Bill to be drawn up and presented to the House of Lords. We all know that the Minister of State will again be put up to tell us that we have only an hour and a half, or two hours, in which to consider the whole shooting match when the Bill comes back to us. This House will be used as a cipher in this way until, one day, it stands up and rejects a programme motion tabled by some Government or another. These motions get more draconian year by year, and the one that we debated earlier—on the most serious Bill that the House has had to consider during the lifetime of this Parliament—is one of the silliest that we have ever had. If we are offered two hours in which to consider the Lords amendments, I shall invite the House to reject the programme motion involved, although that will be in the hands of Labour Members. The Government would not fall if the motion were rejected, and if they knew in advance that we were going to reject it, we might get a proper programme motion. There are ways round this problem, and we must have more sensible discussions in future.

Meanwhile, I shall vote for amendment No. 4 if it is pressed to a vote. All that we have is the Bill before us and a selection of amendments. At least amendment No.
 
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4 asserts that we want a proper judicial process. We might as well send the Bill to the House of Lords in a form that slightly more closely represents the true feeling of the vast majority of the people in this House. The original Bill was a disaster, and we might as well make a few changes to it before we send it off to the Lords, where they will start all over again.

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