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Mr. Dalyell : Third Reading provides an opportunity to ask a question about the constitutional position in relation to Scotland. Jim Wallace, the Deputy First Minister of the Scottish Parliament, raised the prospect of his party at Holyrood triggering a constitutional showdown with the UK Government over the latter's plans for house arrest without trial for terror suspects. He said that the Liberal Democrats would refuse to support aspects of the Bill that fell within the competence of Scottish Ministers and on which Holyrood had to agree, courtesy of a device called a Sewel motion, to allow Westminster to legislate for the whole of the UK. That would mean that, if it came to a Holyrood vote, only Labour MSPs would be certain to support the Sewel motion supporting the Home Secretary. Frankly, I would add that some Labour MSPs would not be dragged by wild horses into such a Lobby.

That would mean that, with the main parties also against the plans, the Home Secretary would fail to secure the agreement of enough MSPs for the legislation
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to cover Scotland. The UK Government would have no choice but to ignore the views of MSPs and, for the first time since devolution, impose legislation in the teeth of Holyrood opposition. I ask the Home Secretary for his comments on this serious situation for us north of the border.

11.6 pm

Mr. Heath : This is a debate of the utmost gravity on a matter to which the House should give the highest priority: not only the safety of the people of this country but their liberties. I accuse the Government of dereliction of duty over the past three years for not having sought an acceptable formula to deal with a threat that we acknowledge. I find it incredible that a Bill of this importance should have received no Committee or Report stage today. Instead, it received a mutant form of Second Reading for the second time, which will have to be repeated when the Bill comes back from the Lords in unrecognisable form. A number of new clauses and 227 amendments have simply not been debated today. When will the House get up off its knees and tell the Executive, "Enough is enough. We will not put up with abuses of this kind"?

We are told that the Home Secretary has made a serious concession by accepting the need for judicial oversight of derogating control orders. We are grateful for that; it is a measure that we have argued for and that we believe should be in place. It cannot be right that a citizen of this country should be put under house arrest by the diktat of a member of the Executive, rather than by the courts. Perhaps the Home Secretary believes that that concession is sufficient to win the support of the House, but if he was not disabused of that idea by the debate, I hope that he was disabused of it by the result of the Division and the reduction in his Government's majority. That will send the clearest possible signal to the other place that there is a high level of dissatisfaction with the proposals on both sides of the House.

That is hardly surprising. We have not even seen the concession that we have been promised. The Home Secretary could not bring himself to table amendments on the provision in this elected House so that we could debate it. It is based on a prima facie hearing before a court in which he originally said, with a slip of the tongue, that consideration would be on the balance of probabilities. He then corrected himself and said that there would need to be reasonable grounds to suspect that an individual had been involved in terrorism. That is exactly the low level of proof that has given us so much cause for concern already.

We then come to the argument about non-derogating orders. Most people outside the House will not have a clue what the distinction is between a derogating order and a non-derogating order in the context of the Bill. I have to say that many of us inside the House do not have a clue either. We have heard cogent contributions, particularly from Labour Members, pointing out the deficiency of the proposals in regard to appeals and to the definition of a derogating order.

Mr. Hogg : Does the hon. Gentleman agree that that difficulty of understanding may explain why 59 Labour
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Members voted against the Government in the first Division, including seven Privy Councillors, the Father of the House and three former Cabinet Ministers?

Mr. Heath: I thank the right hon. and learned Gentleman for putting that on the record, because it makes it clear that for each hon. Member who voted against the Government there was at least one, perhaps two, who disagreed with what they intend to do. If the Government think they can get the Bill through the House in this form, they are mistaken: it will not pass.

I have heard the Prime Minister trying to explain the Government's position, and trying to win the favour of the country in, apparently, an all-out bid to impress readers of The Daily Telegraph, as we just heard from the Home Secretary. His basic argument boils down to this: "What would people think if we knew that someone was a danger to the country and did nothing about it, and then an atrocity was committed?" I would ask the Prime Minister and the Home Secretary this in return: what would people think if the Home Secretary knew that someone was a danger to the country, but did not have the tools to do anything about it because of a totally arbitrary distinction between derogating and non-derogating orders and between whether he goes to a judge one week later or in the first instance, and an atrocity was committed?

This is nonsense. It is possible for us to reach a consensus; why on earth are the Government refusing to allow that to happen?

David Winnick : Following the intervention by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), may I say that I speak purely and simply for myself? As one of the 59 Labour Members who voted as we did—I make no apologies for that; far from it—I shall vote for Third Reading for reasons given by the Home Secretary, but I shall do so in the hope that, one way or another, what we want and what the hon. Gentleman wants in terms of control orders will be brought about.

Mr. Heath: I hear what the hon. Gentleman says, and I note his intention. I am grateful for his support in the Lobby earlier, but I am saddened that he now feels able to support the Bill in a triumph of hope over experience. I am surprised that he puts his trust in an unelected House rather than in this elected House of Commons to get the legislation right.

There are many points that we have not had an opportunity to debate: the standard of evidence required to deprive someone of his liberty, or restrict his liberty; the rules of court and the admissibility of evidence, and the degree to which evidence can be shared. Of course we understand that there are matters that it would not be proper to share with the accused in this instance because of the risk to security, but it would not be impossible to devise protocols allowing people at least to know the broad outline of the charge against them. That is the basis of our judicial system, and it is not one to be lightly thrown aside. We have had no opportunity to make prosecution under the laws of the land—in a proper court, conducted through the Director of Public Prosecutions—a priority in statute.
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Jeremy Corbyn : As the hon. Gentleman knows, I am fundamentally opposed to the principle of Executive detention and Executive orders, but his argument has lost me slightly. Is he saying that the Liberal Democrats do not want defendants to have access to the evidence against them?

Mr. Heath: That is precisely the reverse of my position. I shall leave it at that.

I also think it important to ensure that the conditions of an order are intelligible to the person on whom they are imposed. Many such people will not have English as a first language, but there is no such provision in the Bill. The hon. Member for Beaconsfield (Mr. Grieve) raised another important point, about the temporary nature of the legislation. Surely we do not envisage the state of emergency described by the Government as being of indefinite duration—or perhaps we do. If so, the Bill deserves better scrutiny; if not, there should be a clear limit to its duration.

In short, the Bill as it is formulated simply will not do. I repeat that we recognise the dangers that the Government describe. We recognise the need to ensure that our citizens are properly protected. We are prepared to continue the dialogue and hope that it will be more fruitful than it has so far been, while acknowledging the very small movement that the Home Secretary has accepted. We believe—this is a fundamental principle—that the safety of the people is paramount, but the liberties of the people are also paramount. This House and the Executive have to find the balance. Frankly, this is no way in which to do it.

11.15 pm

Mr. Denham: In the 12 years or so that I have been in the House, the number of days on which what happens in the House of Commons Chamber seems to matter have each year declined dramatically, so it was fun to be here today and last Wednesday, when one got the sense that an actual debate was taking place.

It is interesting to consider how today's and last week's debates will look in two or three years. What conclusions will we draw? I suggest that we will draw a number of conclusions. One will be that some of the complaints were overstated. Our ability to restrict the liberties of citizens and to detain people without trial will be considerably less than that of France, Spain or other countries similar to ours, whatever the outcome of the Bill. That has sometimes been lost sight of in the debate on the current legislation.

Secondly, we may recognise that, in our society, there are many circumstances in which people's liberty is restricted without their appearing before a judge for quite some period—I am thinking of the Mental Health Act 1983 as well as of police powers. So let us put the matter in perspective. Some of the discussion today, which has focused so much on judges, has taken us away from the more fundamental debate, which appeared only from time to time: whether it is right at all to have the sort of restrictions on freedom and liberty that are implied by control orders. I believe that that is necessary and that the terrorist threat justifies it. It is a shame that the inability to resolve the issue about judges has stopped that being the central focus of today's debate because, for a lot of people in the Conservative party and for some Labour Members, that is an even more fundamental issue.
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Thirdly, I am sure that the Bill will be amended in another place and we will revisit it. Clearly, it is not capable of giving us the structure that we need to deal with these terrorist issues for the future. We must ensure that, over the next two or three years, that structure is put in place. If I am right in thinking that there is a group of individuals against whom we cannot put together a court case for a criminal hearing and we have to take action, the real challenge is that neither the process of the Home Secretary looking at the evidence nor a judge having it presented to him or her will prove to be adequate. Where the security services produce evidence against an individual, it is important to interrogate that evidence as effectively as possible, to consider not just a control order but the other strategies that could be used against that individual, and to weigh the overall national security risk.

I believe that that role can be performed only if there is a procedure that takes on board some of the elements of the investigating magistrate that one has in other jurisdictions. Judges will be able to consider whether a control order should apply. It is much more difficult for them, in any of the proposed procedures, to consider that option against the other options and strategies that could be considered for dealing with that individual. I tabled amendments, which we did not reach, to expand the role of the Director of Public Prosecutions, not simply so that there was a public certification of the inability to prosecute; it was with a conscious eye on the need to develop some investigative capacity within the state, perhaps with a judicial role, to carry out the type of investigation that is necessary. I am absolutely convinced that that is the direction that we need to explore and move in over the next couple of years. We will make what progress we can on this Bill and get it into the best possible form, but I doubt that we will achieve that by Tuesday.

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