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Ms Sally Keeble (Northampton, North) (Lab): I am pleased to have a chance to take part in the debate, as I have some questions that I want answered about how this process would work.

I welcome the letter, although I regret the procedure that it has plunged us into. It would have been important to see what I imagine will be a long amendment or series of amendments, which should have been debated here. We should have been able to see them, so that we at least knew what we were dealing with. As my right hon. Friend the Member for Livingston (Mr. Cook) said, for many of us, it was our opposition to these types of regimes and measures that got us into politics in the first place. It is not helped when some of us object to the way in which the other place is constituted and feel strongly that, for reasons of democratic accountability, those matters should have been debated here.

Having said that, the letter takes forward some of my concerns about striking a balance. My constituents and, I imagine, quite a number of others are concerned to see security weighed against issues about their right to live
 
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free from interference from an authoritarian state. Some people may regard the civil liberties arguments as secondary, but when one has lived in an authoritarian state, as I have, one is as concerned about the operation of the security police as one is sometimes about criminals. It is no light matter, and we must pay careful attention to both sides.

On Second Reading, I intervened on my right hon. Friend the Home Secretary on one of the issues that concerned me. There seemed to be quite a muddle in clause 1, with a wide range of powers to deal with a wide range of activities, without the clarity that we would expect for certain activities leading to certain actions by the state carrying certain penalties. Setting out two distinct penalties and two distinct procedures has provided some clarity.

8.30 pm

Let me turn to an issue that I hope will be dealt with in the wind-up. It appears that we still have two different levels of proof: reasonable suspicion and "the balance of probabilities". It seems strange that different levels of proof are required irrespective of the activities in which such people might have been engaged. If we are to have two penalties, two procedures and two burdens of proof, they should attach to the different levels of activity, which clause 1 also mentions.

Paragraphs (a) to (d) of clause 1(8) provide for a wide range of activities to which such orders could be attached. I hope that the Government will explain which procedure is likely to attach to which activity, and with what levels of burden of proof. Putting someone under house arrest should be considered only in respect of more substantive and serious activities, such as the commission or preparation of an act of terrorism, or conduct that helps somebody so to act. Alternatively, a lesser sanction such as the ordinary control order might attach to assisting in the commission of such acts. Perhaps the Government will also clarify whether a different burden of proof will attach to different levels of activity. I am not happy at the prospect of the Bill's going to the Lords—assuming that it is given a Third Reading—with confusion remaining as to how the new provisions will be put into effect. Our constituents will be watching to see in what ways they might trigger such penalties.

I hope that Ministers will reflect carefully on the following point. The one sanction that my right hon. Friend the Home Secretary mentioned in talking about the types of orders—apart from house arrest—that might be imposed was that relating to mobile phones. There are tyrannies of the left and of the right, and although they start from very different political points, both often lead to similar results. These include the use of house arrest and detention, muddle surrounding the use of judicial procedures and the role of politicians, and major abuses of human rights. As well as major infringements such as house arrest, there can also be minor ones that none the less weigh heavily on the people concerned, and which speak of a highly authoritarian state.

I shall give Ministers one such example to think about that is roughly on a par with the mobile phone example mentioned earlier. A friend of mine who lived in South Africa was subject to such an order. Although the state
 
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allowed him to attend his wedding because it was a so-called Christian state that therefore regarded marriage in a church as important, it would not allow him to attend the reception because it was a social gathering. If we introduce control orders, we must be very clear about what we are doing. We must ensure that orders that are intended to provide for constituents' safety and security, and to protect this country from any kind of terrorist attack, do not lead to the petty vindictiveness associated with authoritarian states, and to the imposition of completely unreasonable limitations on people's freedom of movement and ability to go about their ordinary lives.

In conclusion, I again ask Ministers to clarify whether they intend to make any changes to paragraphs (a) to (d) of clause 1(8), and to explain how such changes might relate to the different types of control orders and the manner of their introduction.

Mr. Cash: Fascinating though this debate has been and important though the contributions have been, there has perhaps been a slight tendency for the Committee to underestimate the danger posed to national security. Much has rightly been said about civil liberty, and I do not doubt for one minute that that issue is of absolute and fundamental importance. However, we are in a somewhat curious position. On the one hand, a state of emergency was declared in the aftermath of the destruction of the twin towers; on the other, we are not actually in a state of war.

In drawing an analogy with the circumstances that gave rise to past examples of detention without trial, one automatically looks back to the first and second world wars. As I said repeatedly in interventions on the Home Secretary during last week's statement and on Second Reading, we should consider the case of Liversidge v. Anderson. I seem to be the only person interested in it, but it is of fundamental importance to our understanding of how such matters should be dealt with. On that occasion, the Home Secretary's function in relation to detention without trial was associated with the words "reasonable cause to believe". In a time of war, when there was detention without trial, the court in question—the House of Lords—overrode the test of reasonableness in favour of the individual. It gave the judgment to the Home Secretary on the grounds that, in the light of the various circumstances, he was best placed to know the intelligence and the danger to the state, and that his function had to predominate.

As I pointed out in interventions, the fact remains that the only dissenting judgment from that of Lord Atkin was unequivocally supported in all subsequent rulings in the House of Lords and in other important cases. It could be said, in the context of the Liversidge v. Anderson case, that the test of reasonableness should not have been overridden and that the House of Lords was wrong on that occasion. That is more or less the basis on which the current legal position stands in respect of wartime circumstances.

In other cases, the courts have given, to use the words of one of the academic authorities, "short shrift" in wartime to the individual who has been held in detention without trial, where there was suspicion that that person was involved in activities that were contrary to the interests of the state. Much of our debate so far has tended to gravitate more around the civil liberties issues,
 
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which we all acknowledge are of fundamental importance, than around the necessity to secure the interests of the people of this country in a time of emergency.

I have also mentioned the Rehman case, in which the judgment of Lord Hoffmann was unequivocal. It is important to mention Lord Hoffmann in our debate. In the Belmarsh case, it was he who used the most insistent language against the Government. I should like to quote from the Rehman case, where the noble Lord Hoffmann argued that the events of 11 September 2001 in Washington and New York were

"a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy . . . through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."

There is, therefore, a certain correlation between what the Home Secretary says and what Lord Hoffmann said in that important judgment.

None of that in any way disposes me to change my view that the manner in which the Bill has been conducted and the outrageous way in which the Government have applied the programme motion to such important debates is disgraceful. I could not support the Government's handling of the Bill in any way, but I have to say that there are a whole string of precedents to demonstrate that, in wartime emergencies, the courts have been reluctant to support civil liberties. As I have said, we are now in a twilight position whereby we live in peacetime, but face emergencies. That poses a curious and difficult dilemma over the balance of judgment between preserving civil liberties and dealing with terrorist activities.

One matter that has troubled me throughout these proceedings is the tendency to overlook the crucial facet of respect for the law, which the terrorists themselves are disinclined to accept. Some—Members will know who I am talking about—are of the persuasion that there is a superior law to the law of this land, so they are not interested in our arguments about civil liberties. For certain people, as I say, there is a higher law than the law of the land. That problem cropped up in the 16th century, when serious questions about treason were connected with political activity. For example, the Jesuits were accused—many were hung, drawn and quartered—because they believed that they were pursuing objectives that could be justified as representing a higher religious law. That has dissipated in the interim and we now all subscribe to the rule of law. However, there are those who do not subscribe to our understanding of the rule of law, and that must be taken into account. It scarcely matters what our laws are if some people—even a tiny minority—do not subscribe to our rule of law and we end up with civil liberties ahead of the realities with which we could be faced.
 
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8.45 pm

In the important case of Conway v. Rimmer some years ago, Lord Pearce said:

"the flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings".

We must bear that in mind when considering such important matters.

The issue at the centre of this debate is that the Government have locked themselves into a dilemma and thrown away the key. The key is the enthusiastic and determined upholding of the Human Rights Act 1998, which put the European convention on human rights into United Kingdom law. Few in the Committee would believe that I am not in favour of maintaining the rights of the individual. Human rights are important; the problem is the framework within which they are put.

The 1998 Act can be overridden by Parliament and in the case of Simms and O'Brien, Lord Hoffmann said unequivocally that if we were to legislate inconsistently, unclearly and ambiguously, contrary to the 1998 Act, we could do so. I tabled a new clause that would have made that crystal clear but, unfortunately, it was not selected. The Government deserve to be severely censured for the way in which this farce has been conducted this afternoon, but the Bill will go to the House of Lords and amendments will be tabled there. It would be sensible to attach to the Bill a preamble stating "notwithstanding the Human Rights Act 1998". We would then know that we were legislating on our own terms in this House on behalf of the voters of this country, who are more concerned about the balance between liberty and protection of the nation to ensure that they are properly protected. That debate has not yet concluded and it is disgraceful that the Government have prevented the matter from being properly debated this afternoon. Had they tabled amendments—I believe that they have, at least, been drafted—we could have had a much more constructive discussion.

The second issue concerns proportionality and discrimination. In the Belmarsh case, eight of the nine distinguished and important judges in the House of Lords made a decision based on the Human Rights Act 1998 and its application to those circumstances. The issue should not be proportionality and discrimination. Leaving aside the 1998 Act for the time being, the issue should be about the proper balance between the liberty of the subject and the safety of subjects. I do not think that we have got to that point properly in these discussions, and I blame the Government for that. They have been besotted with the Human Rights Act 1998 and they have not handled this Bill well, although I appreciate the difficulties involved.

The real question should be to ensure that we have fair trials for those people who are imprisoned or detained. At the moment, there is no evidence that they would get a fair trial. It is a disgraceful state of affairs if the House of Commons is incapable of coming up with legislation that would guarantee that people had a fair trial on the evidence that could be produced, so that they could be properly prosecuted. Of course that can be achieved.
 
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I have real problems with the way in which the Bill's passage has been conducted, but I also have real problems with the solution that the Government have provided. I also have considerable difficulties with the Joint Committee on Human Rights and the report it published on 25 February. The section entitled "The lack of prior judicial involvement in orders depriving of liberty" is based entirely on the Committee's assumption that the whole matter should be conducted within the framework of the ECHR and the 1998 Act. The same was true of the Law Lords' judgment in the Belmarsh case. The Committee will gather that I repudiate that assumption. The danger is that the Bill will be unsustainable and is as likely as not to be overturned by the Law Lords in the application of the 1998 Act. We will have made no further progress, despite this farcical pantomime, in getting the balance right between liberty and security.

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