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Mr. Clive Betts (Sheffield, Attercliffe) (Lab): Many hon. Members have expressed concerns about control orders, so I shall not go into them further. I accept the Home Secretary's powerful case that we face a unique threat from terrorism, although there are degrees of difference because of the potential scale of the outrages that we might face. As the right hon. and learned Member for Rushcliffe (Mr. Clarke) has just said, the terrorists are prepared to kill themselves and are not looking for an exit strategy. That presents us with a different problem from any that we have faced in the past.
I would say to my right hon. Friend the Home Secretary that many of us are prepared to go down the road to control orders, provided that the safeguard of an independent judge making the decision in each case exists. That is fundamental to the way I feel about this issue. I welcome my right hon. Friend's concessions. He has listened carefully to the points that have been put to him about derogating control orders, as we can see from the fact that he is now prepared to have a judge consider such a case in the first instance and quickly thereafter hear the whole case at an inter partes hearing. I welcome that change, which has virtually satisfied me on that aspect of the Bill.
However, although the Home Secretary gave a considerable performance in taking so many interventions earlier, he completely failed to convince me that the same process that he now proposes for derogating control orders should not also be used for non-derogating control orders. I simply did not understand his arguments on that issue. The debate would have been greatly shortened if he had been prepared to make a concession on that point as well.
We have heard many arguments today about the difference between the restriction of liberty and the deprivation of liberty. As I understand it, the essence of the difference is that with non-derogating control orders, certain restrictions drawn from the list in clause 1(3) will be deemed appropriate to certain individuals. However, if that list grows, we could reach a point at which the restrictions on an individual could constitute a deprivation of their liberty, and the non-derogating order could become a derogating order. A completely different process would then be used. It is difficult to justify a difference of degree—that is what it would become—when some restrictions would be imposed under a non-derogating order, but if a few more were imposed, it would become a derogating order. The processes under which the orders would be considered would be completely different. The Home Secretary failed to justify that in his speech.
Mr. Fisher:
I am impressed by the fact that my hon. Friend is making exactly the same point as that made by the right hon. and learned Member for Rushcliffe (Mr.
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Clarke) a moment ago. The right hon. and learned Gentleman suggested that the changes had resulted from the Home Secretary recognising that he was running into a brick wall in the House last week. Is not my hon. Friend describing this week's brick wall? It is inevitable that the Home Secretary will have to concede this point and recognise that there is no distinction between derogating and non-derogating control orders. Surely it would therefore be better for him to do so in this Committee now, because he is going to lose this argument in the other place. It would be more satisfactory if we had a chance to scrutinise any new proposals that he is going to make.
Mr. Betts: I very much agree with my hon. Friend. It might not be inevitable—although it probably is—that changes will be made in the other place, and I hope that the Home Secretary will listen to his Labour colleagues on this point, for reasons that I shall come to, and on which I hope that he will reflect.
The Home Secretary has in some ways worsened the situation, in that the two processes involved in making the orders will now be even wider apart than they are in the Bill as it stands. Not only do we have the complete difference in process that was there before, involving a different burden of proof—reasonable suspicion in the case of non-derogating orders, and balance of probability in the case of derogating orders—but there is now a second difference. A judge will now be brought in at the very beginning in the case of a derogating order. Although the note that has been circulated on non-derogating orders says that there is a role for the judiciary on appeal in such cases, and the Home Secretary now says that that should happen within a given period of time, it would of course happen on judicial review.
A judge dealing with non-derogating orders will never reach the point of deciding at first instance whether the orders are correct and whether the proposed measures are reasonable. All that a judge can do at judicial review is decide whether the Home Secretary has behaved, at first instance, in a reasonable way—reasonable in terms of both process and decision following examination of the facts. The process will involve second-guessing the Home Secretary's decision all the time. That is the fundamental difference between the ways in which the two kinds of order, and the judicial roles, will operate.
The existence of two processes involving orders that are very similar, and in some instances different only in terms of degree, is a recipe for potential disaster. What if the Home Secretary says that he believes, in a certain case, that the balance of measures under clause 1(3) makes a derogating order necessary? What if that is subjected to due process and reaches the judges, and the judges decide that the balance of measures is wrong? What if they decide that fewer restrictions are appropriate in that specific case? What if that smaller number of measures then becomes the subject of a non-derogating rather than a derogating order? The court will not be able to deal with a non-derogating order. All that the court can do is decide on judicial review whether the Home Secretary was right to impose a non-derogating order—and in this instance the Home Secretary will not have done so. His initial view will have been that a derogating order was required.
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I give that example because I think that the existence of two different processes aimed at addressing very similar issues could lead to complications. I hope that the Home Secretary will take it seriously. It is not a tricky example dreamt up for the occasion, but an example of something that could happen, which could slow down and interfere with the process that we are trying to bring about.
The Home Secretary has clearly stated that his most important duty is to ensure the security of the nation, and that that is his paramount concern. Today he has presented proposals to change the way in which derogated orders are made, and to involve a judge from the outset. Presumably he now believes that that is appropriate. Presumably he does not believe that it weakens the legislation or the fight against terrorism in any way. Presumably he would not recommend such an arrangement if he believed that it would do that. If involving a judge in derogating orders at first instance will not weaken the fight against terrorism, why should it weaken the fight against terrorism to involve a judge at first instance in non-derogating orders?
If my right hon. Friend cannot convince me on that point, I will find it very difficult to support him—and I think that that applies to other Labour Members, too. I simply do not see why involving a judge would weaken the legislation. I believe that it would provide the independent scrutiny that many of us want, and would enable us to vote for the Bill.
Mr. Garnier: I agree with the last point made by the hon. Member for Sheffield, Attercliffe (Mr. Betts). Before that, however, we heard an important speech from my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), who in the space of 15 or 20 minutes produced a pretty good criticism of the measure before us—or, at any rate, the measure that we think is before us.
These proceedings are, of course, entirely absurd. I accept that the Home Secretary came here to do his best to explain his change of mind, or at least a change in the expression of his policy, but I am afraid that that is not good enough. Nor is it good enough for the Minister of State, during her brief speech on the guillotine motion, to fail to mention the Home Secretary's letter to the shadow Home Secretary. Surely it was germane to that debate that the Home Secretary was about to refer in the Chamber to a letter that none of us had seen.
Having said that, I should add that it is not always best to choose the easiest route. The easiest route is, of course, that chosen by the Home Secretary—legislating by letter and hoping that no one will notice—but that simply will not do. It also produces a general lack of public consent for legislation that the House will pass.
We all have to put up with legislation of whose consequences we disapprove. The Government pass tax laws of which those affected do not necessarily approve; they pass all sorts of laws of which we do not necessarily approve. Criminals in the dock clearly disapprove of some of the laws with which they have become entangled. Nevertheless, all of us—whether or not we support the Government of the day—consent to legislation, because we broadly approve of the procedures by which it is passed. There is a general unspoken consent to the system.
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8.15 pm
That consent is important. Unless people respect the process whereby the law is made, they will not respect the law and will not agree to be bound by it. That is what leads to civil disobedience and a breakdown in our democratic system. I am worried about what will happen if the Home Secretary's proposals, as they appear in the Bill, are passed. What, for goodness sake, are we here to discuss in Committee? We are here to discuss a page and a half of amendments, as they appear on the selection list—43 pages in the amendment paper. We discover from a letter, however, that the Home Secretary has other plans: he wants the unelected House to have first sight of his new version of the Bill. Why did he make that speech here in Committee? He should have made it on Second Reading—a new Second Reading. What he has proposed, after all, is a fundamental reconstruction of his Bill and a complete change of policy.
I realise that in many instances it is inappropriate for everyone to see everything. I have not been involved in an espionage case at the Old Bailey, or in a case in which members of the Security Service have approached the judge with the aim of obtaining a public interest immunity certificate to prevent the defendant or his lawyers from seeing various details of the Crown's case. That happens, however. In espionage cases tried at the Old Bailey, and, no doubt, other important courts, part of the process may take place in camera so that public and press are excluded, or parts of the Crown's case are withheld from the defence. That is not wholly satisfactory, but so that some form of justice that is broadly acceptable can be achieved, the courts permit it, and Parliament has permitted the courts to permit it.
Here, the circumstances are rather different. I have attempted to intervene on the Home Secretary repeatedly to say that his system of legislating by letter is entirely inadequate, but let us consider what he is trying to do. He is telling the Committee that the arrangements for derogated control orders should be different from those for non-derogated control orders. He says that derogated orders should be given the benefit of judicial intervention. He is prepared to go ex parte to a judge, or at least get his representatives to do so, and ask for a quick assessment of whether there is a case for an interim order pending an inter partes hearing at which the Home Secretary's representatives, and, perhaps those of the respondent, will be entitled to appear and present their arguments before the judge.
It may well be that, for reasons of national security or for other reasons, the defence will not be allowed to see all that the judge sees. The judge himself may not be told all that the Home Secretary knows. But—if we set aside our initial disapproval of control orders—under the derogated process that we are told will be introduced through legislation by epistle, there will at least be some degree of judicial oversight. What puzzles me, and what has puzzled other Members this afternoon, is that the Home Secretary seems to make a distinction that does not exist—a distinction between the inconvenience caused to the respondent by a derogating order and the inconvenience caused to him by a non-derogating order.
Non-derogating orders are not confined to the categories set out in clause 1(3). If one goes through the list there, one sees some that may be capable of being
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non-derogating and some for which, clearly, derogation could be required. However, one is given no guidance in the Secretary of State's speech, his letter or the note that has appeared in the Vote Office which of the control orders in subsection (3) are likely to be non-derogated, which are likely to be derogated and which of those that are non-derogated are, when combined with others, likely to bring them into the category of derogated.
We are not given much comfort. Subsection (3) begins:
"The obligations that may be imposed by a control order on the controlled person include, in particular"
paragraphs (a) to (o)—but there may be a host of other forms of control order that the Home Secretary has not condescended to tell us about in the Bill, in the schedule, in his letter or in his note. We are left to guess about those. He may have some other ideas that he does not wish to reveal to us today about what could constitute a possible control order.
Just because something is in clause 1 does not mean to say that it is bound to be a non-derogatable order. I think that I heard the right hon. Member for Livingston (Mr. Cook) claim that only orders under clause 2 would require a derogation from the convention. The implication of his remarks was that those set out in clause 1(3) would not. That is not what the Bill says. The Bill says that the Home Secretary is to be given power to derogate from the convention under clause 2, but in doing that and in finding it necessary to derogate from the convention, he can also draw into his order some, all or many of the powers to be found in subsection (3) of clause 1. Therefore, we should not be fooled into thinking that the sorts of control orders that will require derogation are more heinous or more restrictive of human rights and civil liberties than those that are to be found in clause 1(3). There is a massive absence of clarity both in the process by which these things are to be decided and in the way in which the Bill sets them out.
Take, for example, clause 1(8):
"For the purposes of this Act involvement in terrorism-related activity is any one or more of the following—
"(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so",
which is probably fair enough, and
"(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so".
The making of a speech by a republican Member of Parliament in this Chamber in support of something that the IRA has done or intended to do during any given period could be seen as
What are those acts? The subsection states that
"for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
Therefore, if I were to stand up and speak for the downtrodden masses of some minority in some far-flung country, would I be accused of conduct that supports or
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assists individuals who are involved in general acts of terrorism? It is simply extraordinary that the Home Secretary should come forward with this sort of legislation.
It seems that if we are to get any clarity about the Government's intentions and the content of the Government's policy, we need to scrap this whole proceeding and start again. It is not good enough for the Home Secretary or his junior Minister to come into this Committee to advocate by letter and by a note to be found in the Vote Office massive changes to the Bill and the policy behind it. Nor is it apt, with such legislation, for a Home Secretary to rely on the House of Lords to be the first recipient of his properly drafted proposal. It must be the case, since the junior Minister must have known about the letter but did not tell us about it, that the Home Secretary has in his room the drafted amendments that he wishes to make to the Bill, but which will be introduced only in the House of Lords. They are in existence, I have no doubt. If they are not, no doubt they will be whipped off some computer between now and the close of business tonight, so that they are ready for the House of Lords tomorrow. It is unreasonable to expect the public to consent to such legislation, whether they approve or disapprove of the behaviour of the people whom the Bill seeks to catch. It is unreasonable to go about changing the law in this way.
My right hon. and learned Friend the Member for Rushcliffe said far more concisely and with far greater power of oratory and experience what I would like to say on this matter. I hope that those who have a choice, particularly those in the House of Lords, will, when they pick up Hansard, remember to read what he said, even if they do not read what I said, and bear in mind what the shadow Home Secretary said in his answer to the statement by the Home Secretary at the beginning of this process in the early part of last week.
This is a black day for Parliament. If it allows itself to be trodden on by a Government who do this, we might as well all pack up and not worry about the rights of anyone, be they suspected of terrorism or not.
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