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Mr. Charles Clarke: Does my right hon. Friend accept that I share precisely his view that we need to address this issue in the round? He has explained the situation admirably, and the time scale of two to three years that he sets out is the right way to proceed. We cannot deal with this issue immediately, and the direction that he has describes is entirely correct.

Mr. Denham: I am grateful to my right hon. Friend. When the Bill is debated in another place, I hope that the Minister with responsibility for it will be able to give a little more in the way of a definite commitment in that direction. Many of us would be happy with the Bill if we thought that further movement would be made along those lines.

Simon Hughes : Does the right hon. Gentleman accept that the logic of his argument is that we should seek to deal with the problem that will present itself in March, when we will be unable to renew an illegal law and people will have to be released from prison? If we limited ourselves to doing that and nothing else, we could give proper time in due course to the wider issues that he talks about.

Mr. Denham: I do not entirely agree with the hon. Gentleman, and for this reason. The law that we would have to renew in March, but which we cannot because
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of the Law Lords' judgment, applies solely to foreign nationals. I do not necessarily believe that we have a year or two before needing to put in place a framework to deal with British citizens who might be involved in terrorism; some moves in that direction are necessary now. But I say with all due respect to my right hon. Friend the Home Secretary—he has approached this entire debate with great openness, but he needs to respond further—that although he has at no stage proposed anything that deserves the name "Executive detention", the proposal looks like that and can be presented as such. We need a proposal that cannot be described in those terms, because the wider misinterpretation of the Bill will be too damaging. Our constituents must not be made to feel that their liberties are being restricted by Executive action.

Lynne Jones : Is my right hon. Friend not concerned about paragraph 8(2) of the schedule in particular? The effect of non-derogating control orders not being subject to prior judicial decision will be that, even if an order is quashed or a court refuses to renew it, the Home Secretary will be able to exercise his power to make a new order in respect of the same matters—in whole if necessary—because he failed to achieve such an order in the first place. In other words, it is rather like the cat and mouse Act, in that the Home Secretary can keep bringing the matter back before the courts. In the meantime, the person subject to the control order has had their liberties infringed.

Mr. Denham: I cannot answer for the Home Secretary, but I believe that he said earlier that he is willing to look at the schedule's wording. However, it is a shame that that has to be done in another place, rather than here. Round-tripping of the sort that my hon. Friend describes would clearly be unacceptable, because that would be getting into the territory of Executive action untrammelled by judicial review. [Interruption.]

I hear a number of Members asking how I can say that the proposal does not constitute Executive detention. A process initiated by the Home Secretary, swiftly followed by a judicial process, cannot be equated with those regimes around the world in which people are locked up simply on the say so of politicians. To make that equation is to distort what has taken place; none the less, the danger that the Government must recognise is that that is how the Bill will be presented in the popular language, unless it is further amended. The only way out of this situation now is to have an initial judicial role for all types of control order.

I finish on this note. However hard we now work to get the Bill in order, it is only a stop-gap measure. It cannot provide the lasting framework that we need to deal with a problem that, I am afraid, will be with us for many years.

11.24 pm

Peter Bottomley: The right hon. Member for Southampton, Itchen (Mr. Denham) has done the House a service in talking about the Bill as part of the approach that the Government and Parliament need to adapt to the problems of terrorism and justice. One of the issues that matters to me is what happens when
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someone becomes subject to a control order. Who can speak for them; who can advise them; who can raise queries about them on the basis of information?

In evidence provided to the Select Committee on Constitutional Affairs six days ago, the special advocates said that they were first briefed by a man from the Treasury solicitors who was not security cleared and who was then unable to provide them with information relevant to the security problems that had to be faced. Even if we believe that 95 per cent. of the people who are fingered or targeted under the legislation are in some sense guilty or rightly suspected, let us assume that neither the Government nor their agencies are 100 per cent. correct. It seems that a special advocate, who is appointed not by the person under suspicion but by the Government, is not allowed to resign. That may be a technical issue for some people, but it really matters.

It is significant that the sort of terrorist suspect that we saw during the IRA troubles could secure a lawyer such as Gareth Peirce to establish alibis and demonstrate that suspicions were not well founded. If that is to be thrown away, I firmly believe that the House has a duty not to leave the Bill to the other place, but to call the Government, the Leader of the House and the Chief Whip to account and invite the Home Secretary to explain openly the problems that justify the approach that he is adopting in the Bill.

The truth is that some of us, probably including the Leader of the House, took pride in breaking control orders when they were applied to people in South Africa or when prevention of terrorism legislation was used to control people such as the late Reverend Beyers Naude, or when the defence and aid fund was used to channel funds from Scandinavia, north-west Europe and this country in order to defend people in South Africa. Yet the legislation that we are now proposing will prevent people from being defended in a similar way because they will not have been accused. People will not know what they have been charged with.

I put that simple point to the Home Secretary and Labour Members, including the 59 who did not vote with the Government in the Lobbies this evening, and to those who should have crept in to join the 59. I hope that those creepers will feel ashamed of themselves for their inaction this evening. Just eight more hon. Members would have changed the result of the vote. I hope that the media, who occasionally watch our proceedings, will grasp the significance of how close the Government came to defeat on a simple point of justice and law. The Government have got it wrong.

The Government should not simply pass the buck to the House of Lords. They should come back before this House and test the arguments again. They should reflect on what the Select Committee has suggested. I hope that they are strong and brave enough to improve the Bill through proper debate and agreement. They need to secure the best possible protection against terrorism without throwing justice and the tenets of democracy out with the bathwater.

11.26 pm

Mr. Fisher: I am grateful for the opportunity to speak briefly in the debate. I want to say that none of those who voted in favour of the amendment proposed by my hon. Friend the Member for Bridgend (Mr. Griffiths)
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and against the Government on various other provisions are unaware of the dangers of terrorism. Indeed, I do not believe that a single Member is complacent or soft on terrorism. We are all, frankly, frightened and concerned about it. The idea that any one of us cares more about the security of this country than anyone else is a wrong-headed mistake. Every Member cares deeply, on behalf of constituents, about the security of this country and would do nothing to put it at risk.

Nevertheless, as the Home Secretary has seen, many of us remain unconvinced by the Bill or the way it has been conducted. My right hon. Friend the Member for Southampton, Itchen (Mr. Denham), whose contributions on both days have been distinguished and extremely thoughtful, was typically generous to the Government in saying that the detention orders did not really amount to Executive action. Whether my right hon. Friend is right or wrong, the Home Secretary has moved some way today. Given that he has done so, many Members are baffled   about why he cannot go the whole way and move on both derogating and non-derogating orders. It is incomprehensible.

The Home Secretary was wholly unconvincing in his answers today, and it is not at all brave of me to predict that the Bill will be changed in the other place. I do not know why the Home Secretary insisted on resisting that change here, in the democratic Chamber of our Parliament, when he must know that his position is illogical and will not do. It will be thrown out, and we will back here again in a few days' time. He will then have to explain to the House why he has had to think again and why the Executive will not be involved in the decision on either type of order. It baffles me why he has not given way on that today, but I am sure that that will change. There is no point in getting heated about it, because it will change.

Many of us have been so distracted by that issue today that we hardly noticed that we did not have a chance to express our grave concerns about evidence in these matters. That part of the Bill has not even been explored. I would have thought that every Member of this House, regardless of party politics, must be concerned about somebody's liberty being put at risk without their even knowing of what they are accused. I accept that the Home Secretary will say, "Ah, these are very difficult matters. These are very dangerous people." Well, we came across those issues in Northern Ireland and nobody pretends that there is an easy call to make, but surely we can do better than we have done with this Bill? There must be avowals that we can put in place to allow a judicial process to hear the evidence and let the accused know of it—even if only in the most general way, as my hon. and learned Friend the Member for Redcar (Vera Baird) said. It is essential that someone on a charge that threatens to remove their liberty should have the right to hear the evidence against them.

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