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Orders of the Day

Prevention of Terrorism Bill

Lords amendments considered.

Madam Deputy Speaker (Sylvia Heal): I must inform the House that a message has been brought from the Lords as follows. The Lords agree to the Prevention of Terrorism Bill with amendments, to which they desire the agreement of the Commons. Copies of the Lords amendments are available in the Vote Office.

Mr. A. J. Beith (Berwick-upon-Tweed) (LD): On a point of order, Madam Deputy Speaker. It appears that the House will not have access to a document that is relevant to Lords amendment No. 42, which is one of the amendments that you have selected for debate this afternoon. That document is the draft rules that the Lord Chancellor would impose on the High Court under the provisions of the amendment. The document exists and has been shown to various people on a consultative basis. I see no reason why it could not be made available to Members generally because of its extreme relevance to the matter under discussion. Could you encourage Ministers to make it available? When a power to make rules is being introduced, if those rules already exist in draft form the House is normally given the details. A Minister from the Lord Chancellor's Department is present, as is the Leader of the House. Perhaps they might assist you by indicating that they could make the document available.

Madam Deputy Speaker: I must inform the right hon. Gentleman that I have no knowledge of the point of order that he has raised with the Chair.

Mr. Oliver Heald (North-East Hertfordshire) (Con): Further to that point of order, Madam Deputy Speaker. I understood that it was the correct principle in the Chamber that if a document is referred to by a Minister and it is a state paper, it should be made available to the House for debate. Clearly, if it is referred to in an amendment, it is obviously being referred to by a Minister, so in those circumstances would you rule that a state paper, such as the draft rules that are to apply in the High Court in respect of a provision before us, should be made available? After all, it is an odd proceeding that we are having on the Bill, and if documents are available why on earth should we not have them? You will remember that it was the Lord Chancellor's Department that let us down so very badly over the Mental Capacity Bill, when documents were made available not to all Members of the House, but only to some Members. Is it not time for an end to this and for the document to be made available now?

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Further to that point of order, Madam Deputy Speaker. The amendment that stands in my name, which calls for due process, has been selected. The draft rules may touch on the territory covered by my amendment, in which case the House needs to see the draft rules before it can seriously consider my amendment.

Madam Deputy Speaker: As I said earlier, I have no knowledge of the matter and do not know whether the
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document is a state paper, but Ministers on the Treasury Bench have heard what has been said. The right hon. and learned Gentleman's latter point may well be pursued in the course of the debate.

I inform the House that all Lords amendments, and amendments to those amendments, will be included in the scope of the debate.

Clause 1

Power to Make Control Orders

Lords amendment: No. 1.

4.5 pm

The Secretary of State for the Home Department (Mr. Charles Clarke): I beg to move, That this House disagrees with the Lords in the said amendment.

Madam Deputy Speaker: With this it will be convenient to discuss Government amendments (a) to (c) thereto, Lords amendments Nos. 2 to 5, Lords amendment No. 6 and Government motion to disagree, Lords amendment No. 7, Lords amendment No. 8, Government motion to disagree and amendment (a), Lords amendment No. 9 and Government motion to disagree, Lords amendments Nos. 10 and 11, Lords amendments Nos. 12 and 13 and Government motions to disagree, Lords amendment No. 14, Lords amendment No. 15 and Government motion to disagree, Lords amendment No. 16 and Government amendments (a) to (g) thereto, Lords amendment No. 17, Government motion to disagree and Government amendments (a) to (f) to the words so restored to the Bill, Lords amendments Nos. 18 to 21, Lords amendment No. 22 and Government motion to disagree, Lords amendment No. 23 and Government amendment (a) thereto, Lords amendments Nos. 24 to 26, Lords amendment Nos. 27 and 28 and Government motions to disagree, Lords amendments Nos. 29 and 30, Lords amendment Nos. 31 and 32 and Government motions to disagree, Lords amendment No. 33, Government motion to disagree and Government amendments (a) to (c) in lieu, Lords amendments Nos. 34 to 36, Lords amendment No. 37 and Government motion to disagree, Government amendments (a) to (o) in lieu of Lords amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, Lords amendments Nos. 38 to 40 and Government motions to disagree, Lords amendment No. 41, Lords amendment No. 42, Government motion to disagree and Government amendments (a) to (c) in lieu, and Lords amendment No. 43.

Mr. Clarke: There has already been a substantial debate and I intend to address four key issues. First, who should make control orders and are the procedures fair? Secondly, what are the prospects for prosecution in any of the cases in which a control order is being considered? Thirdly, what should be the burden of proof in relation to any of those control orders? Fourthly, should those powers be—in the colloquial—sunseted, so that they expire at some given point in the future? I shall take each of those four key points in turn, which will deal with the bulk of the Lords amendments, and I shall deal with other points in my winding-up remarks.

Simon Hughes (Southwark, North and Bermondsey) (LD): Will the Secretary of State allow me?

Mr. Clarke: No, not at this stage.
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On the first point—who should make control orders and are the procedures fair—the Government still believe that there are three reasons why the Secretary of State should make the orders. First, the protection of national security is the responsibility of the Government. Secondly, there is no legal or constitutional principle that the Secretary of State—the Executive—cannot make such orders, and there is nothing in the law or in the European convention on human rights that requires the judiciary to make such orders. Thirdly, making control orders requires not only an examination of factual matters, but an analysis of the overall security situation and assessments of the risks posed by a particular individual and of what measures are necessary and appropriate to meet those risks in order to prevent that individual from continuing to carry out his or her terrorist-related activity.

That requires the careful sifting of a wide range of intelligence material. Inferences must be drawn, evaluations must be made of the weight to be placed on what is often a mass of small pieces of information that have been brought together and painstakingly checked against each other, and an assessment must be made of the impact of those things upon national security. In the past, Governments of all parties have taken the view that the Secretary of State is better placed than the courts to make assessments related to the national interest.

That said, I have listened carefully to all that has been said in this House, particularly from the Government Benches in another place and elsewhere. I wholly understand the concerns of those who want greater judicial involvement in the order-making process, so that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate. That is why, in relation to derogating control orders, I said in Committee that the Government would introduce amendments in another place so as to provide for derogating control orders to be made by a judge of the High Court on an application by the Secretary of State. That was in recognition of the fact that derogating orders would be the most serious orders because they were the ones that would impose obligations which amounted to a deprivation of liberty.

The order-making procedure for derogating control orders that I propose is set out in the amendments before this House. In summary, the security services and the police will put together the case for an order and identify the measures they think necessary to prevent the individual in question from continuing to carry out terrorist-related activities. The Home Secretary or other Secretary of State will then look at the case and as part of that process—I want to emphasise this point—ask whether the police, in consultation with the prosecuting authorities, have considered whether there is a realistic prospect of prosecuting the individual for terrorist or other offences.

If the Home Secretary or other Secretary of State thinks that the test for making a derogation order is made, an application will be made, ex parte, to the High Court for the court to make the order. If the court thinks that there is material which, if not disproved, is sufficient to justify the order being made, it will make the order and refer it immediately for a full inter partes hearing as quickly as possible. At each stage, the court will be able
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to look at all the material relevant to the case and to examine witnesses. At the full hearing, the defence will have the open material in a Secretary of State's case. The person who is to be subject to the order will be represented at the full hearing by the legal representative of his choice in open sessions and by a special advocate in closed sessions. The special advocate will have access to all the closed material.

The court's judgment will be in two halves—open and closed—and the subject of the order will see the court's open judgment.

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