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Mr. Jim Cousins (Newcastle upon Tyne, Central) (Lab): If the hon. Gentleman does not like the European convention on human rights or the Human Rights Act 1998, will he consider Magna Carta and the Glorious Revolution of 1688? Perhaps they would appeal more to him.

Mr. Cash: I do not think that we need do as the hon. Gentleman suggests, although we have a great attachment—understandably—to the idea of Magna Carta. Even more important was what I said to the Home Secretary when I asked him whether habeas corpus would still be applicable after the Bill became law. That is a really important question for today. He gave an unequivocal yes to that question, and I was glad to hear it. In the wartime cases I mentioned earlier, the remedy of habeas corpus was still available, although because of Liversidge v. Anderson it became impossible to apply. I extracted from the Home Secretary this afternoon what I regard as the most important concession—or perhaps I should say assertion, because I do not want to give the wrong impression. The fact that the Home Secretary said that habeas corpus will still be applicable is fundamental to our proceedings today.

In my intervention on my hon. Friend the Member for Beaconsfield (Mr. Grieve), we discussed new clause 6. I cannot give it enthusiastic support because at its very heart, in subsection (8), it states:

"The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply."

Those conditions include:

"that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1988",

which takes me back to my concern about that Act.

The application of the Act has resulted in the creation of the Government's current problem. Throughout other jurisdictions in the European community, or the European Union, there are procedures that fall far short of the sort of procedure whereby we are accustomed to preserve the civil liberties of the people of this country, and it is ironic that we are continually being faced down with accusations that we are being anti-European when we make remarks of that kind; in fact, we are really trying to say that the voters of this country should decide on the laws under which they are to be governed, and how they are to be governed, and that we should
 
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regulate those laws not by reference to some European nirvana but because we have legislated in the House in accordance with what the voters of this country want.

The reason the proceedings today have been so farcical and are a disgrace to the traditions of the House is that we are still discussing proposals for amendments that are not being put before us and that we are unable to do more than second-guess. They are confused, and adversely affected, by a commitment to a European convention that has created the very problems that we are trying to resolve.

Ms Keeble: On a point of order, Sir Michael. Perhaps I should have asked this question later on. We shall be voting on the amendment that obviously contains aspects of judicial review. If the Lords do not pass the Government's amendment or accept a different version and the Bill returns to this place for us to vote on the Lords amendments, will we be able to consider the amendment that the Government are proposing to put forward, or will we be able to vote only on the Bill as it comes from the Lords? Can you, Sir Michael, explain the proceedings so that they are clear?

The Second Deputy Chairman of Ways and Means (Sir Michael Lord): The answer to the hon. Lady is, no, I do not think that I can. She is putting a hypothetical question to the Chair. There is no point in trying to assume what will happen until we see how the debate and votes go.

Vera Baird: I congratulate my right hon. Friend the Home Secretary on having taken steps to put the judge first where, under clause 2, liberty will be taken away and there will be a derogation from the convention to facilitate that. It will now have to be done on application to the court and, overwhelmingly, there will be no Executive detention. That is a hugely important point, and I congratulate my right hon. Friend. If that is contrary to his instincts, as he asserts, his better judgment has certainly won the day.

That provokes a question that has been raised repeatedly: if that system is good enough for the higher level, why is not it good enough for the lower level of taking away liberty? I want to make a point that has not yet, I think, been made. The Home Secretary has made it clear that he has no intention of derogating. Consequently clause 2, on which the concession is made, will not come into effect, so although the concession is important it is only academic, because he will not derogate. We must thus focus our attention on clause 1, the non-derogating control orders, because—foreign, British, Belmarsh detainee or free at the moment—all the people who fall within the ambit of   needing to be controlled will be dealt with under clause 1, not clause 2. We are still concerned with a section of statute whereby the Home Secretary can make an order that severely limits a person's liberty and all that person can do is appeal afterwards to the court, if he chooses to do so. I accept that, under the concession made by the Home Secretary, such things may happen more quickly than was first anticipated under the Bill, but that is a rather weak point, and I want to make a different point that has been reflected already in what was said by my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts).
 
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9 pm

The appeal that can follow the making of a clause 1 control order is not only unsatisfactory because it comes second, but is of extremely poor quality: it is judicial review—very suitable for reviewing the way in which lower courts, planning inspectors or local authorities make their decisions and scrutinising the way in which such a decision is taken, but highly inappropriate for deciding whether people have been deprived of their liberty or whether their liberty has been limited.

Such reviews take into account how the decision was made, so the decision can be quashed if something is left out that should have been taken into account, or if something is taken into account that should not have been taken into account. However, all that need be done is to take the same decision again while taking account of what was left out the first time or whatever the court has found wrong. The same decision can be taken again, so long as it is done properly. No one looks at the merits. No one determines the facts thoroughly—that is done only in so far as is necessary for that very limited process—so it is a very poor form of appeal, as well as being only an appeal.

If the clause 1 order goes too far and, as we discussed in an exchange that I had with the Home Secretary, takes away liberty—given the variety of possibilities in clause 1, any number of them put together could amount to a breach of article 5—on the judicial review, or what I have called the poor quality appeal, the judge could find that order unlawful, contrary to article 5, and quash it. So for those top-end cases where the Home Secretary inadvertently orders something that breaches article 5, even though it comes under clause 1, the appeal process can quash it—but liberty will have been taken away under clause 1 by then, and all that can happen is that the person can appeal, with his liberty being restored to him some time later.

If the reason why an application must be made to a judge under clause 2 is that taking away liberty is too severe a penalty for the Home Secretary to impose, that argument applies equally to clause 1. From time to time, a very fine balance will have to be struck about whether or not a combination of all the possible orders goes over the article 5 limit. It is unrealistic to think that it is not appropriate to let the court make such decisions. It is harder to get the balance right with such decisions than simply to order house arrest, and it is extra important that the courts should have scrutiny over those decisions, but liberty is gone in exactly the same way as under clause 2, so there is no reason not to apply the same procedure.

Mr. Weir: I am following the hon. and learned Lady's argument and very much agree with what she is saying. She welcomed the change to the derogated orders, but if we are talking about an ex parte application where the judge can only look at the material, as the Home Secretary's letter says—we have no further detail than that—I am not sure whether there is much difference. As I read that letter, the judge will not able to look behind that material and consider the evidence. Does the hon. and learned Lady agree with that interpretation?

Vera Baird: Obviously, a two-stage process is involved—it is intended to be an ex parte application for
 
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speed, whereby the judge will consider whether there is a prima facie case. The process is not at all unfamiliar to lawyers. He will make what is in effect an interim order, and there will be an inter partes hearing when all the material will be put. So I suppose that that is unsatisfactory, but it is all that is practical in the very short term.

I repeat that, although at the top end of those orders, if they break article 5, they can be quashed. That is a good thing. None the less, it is very bad that they can be quashed only after liberty has been taken away, and that they ever came into being. Any judge to whom an application was made under clause 1 who thought that all the controls went so far as to breach article 5 would simply never make the order, so there would never be a deprivation of liberty. Surely that is the right way round. However, for something that falls short of taking liberty away, the level of the appeal is very poor.

I do not wish to labour the point, but the penalties that can befall someone under clause 1 are extraordinarily intrusive and can transform a person's life. They include obvious interferences with freedom of movement, family life and freedom of association. Someone may be ordered not to speak to any member of his family and he may be told to move house, stop doing his business or job or to change his job. He has to agree in certain circumstances to tell people in advance what his movements will be, and he has to allow his premises to be searched. He can be made to wear a tag and may not be able to use the internet or a mobile phone. Limits can also be placed on his movements all over the United Kingdom. In fact, there might be a mixture of all the penalties together or any other thing that the Home Office thinks is necessary in addition to those that I have mentioned. That is a very serious interference with liberty.

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