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Richard Burden: Does my hon. and learned Friend agree that the intrusions can be so great that, in a particular combination of circumstances, they could, in practice, get in the way of that individual being able to exercise his rights of appeal? He might not be able to contact the people whom he needs to contact, and if he did not know his way around the law in the first place, he might not even be able to access the judicial involvement that the Bill would wish him to have.
Vera Baird: I suppose that that might be theoretically possible, but I would not have thought it likely that the Home Secretary would make an order that someone could not phone his solicitor and discuss the situation in which he had been placed. However, I guess that the possibility cannot be excluded.
Let me emphasise what I have said already. All the penalties—or any of them—can be imposed on an individual and no judge will look at the questions of fact as to whether there are reasonable grounds for suspecting that that individual is involved in terrorism at all, or at whether the restrictions are necessary to protect the public. Nobody will look at that. Colleagues may think that that is completely unacceptable and that the poor quality of appeal, as placed in the legislation, is a potent additional reason to all those that have been heard before for us all sticking out for an application having to be made to a judge and the whole thing being assimilated with the new process in clause 2.
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I wish to consider the reasons that have been put forward for separating clause 1 from clause 2. The Home Secretary said that the task of assessing and evaluating evidence in order to take a preventive measure is something that the Secretary of State is better equipped to do than a judge. I guess that that means assessing intelligence. As the right hon. and learned Member for Rushcliffe (Mr. Clarke) said, that point applies to both clauses 1 and 2. House arrest, under clause 2, is a preventive measure. It is not about something that has happened before but about something that one wants to stop happening again. If the Home Secretary concedes that, when it comes to evaluating whether clause 2 measures are necessary, the right person to do that is a judge, the same argument has to go for whether a clause 1 provision is necessary.
Is there any real difference? Let us look at the test for a clause 1 order. Clause 1(1) says that the Secretary of State may make an order if he
"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b)
Let us look at the test in clause 2. Subsection (1) states that the Secretary of State can make an order if
"(a) he is satisfied, on the balance of probabilities, that the person is an individual who is or has been involved in terrorism-related activity;
(b) he considers that the imposition . . . is necessary for purposes connected with protecting members of the public".
That is exactly the same test. If the judge is the right person to perform that test for clause 2, he is obviously the right person to perform it for clause 1.
What else has been put forward? Only a few may fall under the ambit of clause 2, but at the moment we are told that there are none. More may come under the ambit of clause 1, so will we overwhelm the judiciary with a large number of cases if we require it to look at those covered by clause 1? I do not imagine so; no one has ever talked of more than, at most, a few hundred. In the context of the cases that the courts hear day in and day out, that is not a large number to add on. One would also imagine that lower-level control orders need not necessarily go to the High Court, because they could go to a professional magistrate who had security clearance. There would be a good deal of scope for that to happen, so we would not overwhelm the judiciary.
It is said that the judges do not want such involvement. Lord Donaldson, who retired a decade ago, said that, but his comments seem to have been open to interpretation. I have not heard further compelling evidence that working judges today do not want to deal with the orders. It seems that they will at least do clause 2 adjudications under sufferance, so why should it be more difficult for them to do clause 1 adjudications? I dare say that they will do what Parliament asks them to do.
I could not follow the distinction between a deprivation of liberty and interference with liberty. If there is a real distinction between the quality of the impact of the control orders, that is a poor reason for obtaining them using different procedures.
On Second Reading, I asked the Home Secretary to take the small step of putting the judge first, thus springing us free from Executive detention and
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interference with liberty. He has taken half that step, but by doing so he has utterly shattered any logical reason why he should not take the other half. Amendment No. 4 better represents what the proper position should be than the Bill, as it would provide for judicial involvement in clause 1 applications.
We are in a hideous position because we will no doubt be asked to vote today against judicial involvement in clause 1 applications. However, the Bill will go to the Lords tomorrow. The Lords will no doubt vote for judicial involvement in clause 1 applications, and this time next week we will doubtless be asked to vote for that. The situation is a complete nonsense and the shortage of time makes that nonsense greater and more obvious.
I regret having to say this, because I have immense respect for the Home Secretary and am pleased that he has taken the step that he has. However, drawing a distinction between clause 1 and clause 2 orders makes no sense whatsoever, and I am afraid that we should say so.
Sir Patrick Cormack: Hon. Members always listen to the hon. and learned Member for Redcar (Vera Baird) with attention and respect. She has great forensic skills and is a lawyer of tremendous experience. She brings her experience to our debates in the Chamber, so we are grateful to her. I agreed with many things that she said.
As I am not a lawyer, I start from a slightly different base to the hon. and learned Lady. When the Government first announced the Bill, I was extremely sympathetic to it. I believe that the prime duty of any Government is to safeguard the integrity of the state and all its citizens. Although in the normal course of events, as I said to my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) last week, it is far better for a guilty person to go free than for an innocent one to be punished, when one is dealing with suicidal terrorists, one perhaps has to redress the balance a little.
I am, however, persuaded that the Home Secretary has not handled the situation as well as he should have done. Although he is not here, I make a point to him through the Minister for Crime Reduction, Policing and Community Safety. I remember saying this when we were in government and I was speaking from the other side of the House: any Minister of the Crown should beware of taking powers that he does not wish his opponent to use. For any Home Secretary to take such supreme powers is dangerous, both in itself and in its implications. However, I rather agree with the hon. and learned Member for Redcar that this time next week we will probably see yet another step on the road to sanity.
9.15 pm
We are all in your debt, Sir Michael, for allowing a wide-ranging debate on this series of amendments. It was essential that you did so in the wake of that extremely long speech, or teach-in as it almost was, by the Home Secretary. He was generous in giving way, but he came to the Committee having circulated that letter and in effect gave notice that he was going to rewrite some of the fundamental parts of the Bill. So all the amendments in the first group are, in the words of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), otiose.
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The real problem that the Committee faces is that because the Government have handled the matter so badly, a Bill of far-reaching importance is not having the parliamentary scrutiny in this place that Members on both sides believe it should have. When the Leader of the House announced in that brief business statement a week ago today that we would have the Bill, I begged him to defer Second Reading until today so that we could have the weekend to discuss it and reflect on it, and to have the remaining stages later this week. Frankly, there was no reason why we could not have done that and also adhered to the Government's timetable.
I believe that the Government have panicked. The offer made by my right hon. and hon. Friends on the Front Bench to extend the existing provisions of the current Act was right. That could have been done and it would have been reasonable to do it, but even accepting the Government's case that they did not wish to do that, we could still have met their timetable of 13 or 14 March and had a more coherent and better discussion in this place.
The time is now 9.17 pm and, according to the timetable motion passed earlier today, these proceedings have to come to a conclusion at 10 o'clock—you, Sir Michael, or whoever is occupying Chair, have no option on that—yet we are still on the first group of amendments. I was briefly absent from the Chamber, but heard most of the speeches. I certainly did not hear a word of filibustering from hon. Members on either side of the Committee. Yet all these other important aspects of the Bill remain to be discussed, and none of them will be discussed.
When we move on to Third Reading, we will leave a Bill that directly, or indirectly by implication, could affect the lives of many people and change the balance in so far as the liberty of the subject in this country is concerned. When we leave the Bill, we will not have scrutinised it or discussed it in the House of Commons. Yes, it will have four days in the other place. Yes, there are many learned lawyers in the other place who will be able to bring the wisdom and experience that the hon. and learned Member for Redcar brought to her contribution.
I am one of those who believe that the House of Lords, as currently constituted, adds great value to our democratic procedures. I do not suppose that the hon. and learned Lady would entirely agree with that, but I am sure that she would agree that there will be detailed scrutiny and sensible debate down the Corridor. However, we are the elected House and have a duty to hold the Government to account, and, because we do not have a separation of powers, the Government have a duty to allow us to hold them to account. That duty has not been fulfilled in respect of this extremely important Bill.
I have been here now for almost 35 years and others in the Chamber have been here as long. I see the right hon. Member for Oldham, West and Royton (Mr. Meacher) in his place. I do not remember any major piece of legislation—he may, and I will give way to him if he does so—that has aroused such widespread unease in all parts of the House. I do not remember any major piece
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of legislation put forward by any Government, from the Government of Edward Heath to the present one, for which not a single speaker on Second Reading or in Committee has made an enthusiastically endorsing speech. Yet, in spite of that and of the grave misgivings, which are honourably shared by many on the Government Benches, we are not to have the chance properly to examine and scrutinise.
Many of us made appeals this afternoon in points of order and in other ways. We must have tried severely the patience of Sir Alan, Mrs. Heal and you, Sir Michael, and for that I am sure I can apologise on behalf of us all. However, they were legitimate points of order. We tried very hard to get a suspension so that there could be reconsideration of the timetable and so that we could have another day of debate. If we had had another day of debate on Wednesday, we could at least have discussed in some detail most of the major aspects of the Bill. It is tragic—I use the word deliberately—that the Prevention of Terrorism Bill has become the prevention of parliamentary debate Bill.
I know that people in the country are deeply worried about terrorism; of course they are. I saw, as I am sure almost everyone present will have done, the poll in The Daily Telegraph this morning, which showed a large majority of people taking the line, which broadly I take, that if it is necessary to sacrifice a little civil liberty for overall civil protection, then so be it. If that is the line taken, how much more is it our duty to ensure that any Bill that we enact does not bolster the power of any Government or individual Minister, but rather gives the final arbitrating role to a judge or even perhaps, as suggested in one amendment that I tabled, which I am sure was quite properly not selected, to the Select Committee on Intelligence and Security, without the agreement of which and without full consultation with it the Home Secretary could not act. That would be a safeguard.
The hon. and learned Member for Redcar was a little scathing about Lord Donaldson, but my hon. Friend the Member for Stone (Mr. Cash) quoted Lord Hoffmann. There is a certain reluctance among judges past and present. If the decision is not to fall to a judge, at the very least it should be taken by a cross-party group of Members who can advise and work with the Home Secretary. I believe that the hon. Member for Bridgend (Mr. Griffiths) tabled a similar amendment. We tabled them totally independently of each other, neither knowing that the other had done it. Both of us were seeking a solution that would take away the arbitrary power of the Home Secretary, whoever he or she may be.
The Bill will pass to the other place tomorrow. Their lordships will have their four days in Committee. The Bill will then have to come back to us as amended. I echo the plea made by a number of hon. Members earlier in the debate: let us have a generous allocation of time to debate the Lords amendments in this place, because the House of Commons would be held in contempt if it were given one or two hours to discuss such matters of far-reaching importance. Third Reading will be brief, and only one or two hon. Members will have an opportunity to make a few points of principle.
I have great respect for the Minister for Crime Reduction, Policing and Community Safety. She is always courteous and often humorous. She has done
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extremely well in her relatively brief time in the House and I wish her well in future, especially in opposition. Will she please listen carefully to the concerns expressed by Labour Members, as well those expressed from this side of the Committee? The Government have not treated Parliament with respect, which they should have done in introducing a Bill that is unprecedented in 300 years or more.
This is a sad day for those of us who care about Parliament. I hope that the Government will never again seek to railroad through a Bill of major constitutional importance with such a ridiculous timetable.
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