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Mr. Beith : The Home Secretary may not have had the opportunity to look at the evidence given by the Attorney-General to the Constitutional Affairs Committee yesterday, which has been published today. It was clear from that evidence that the special advocate procedure needs to be improved in various ways to enable advocates to have the assistance they need and to give them a means of communicating with the defendant on matters that he might be able to refute if he knew what was being alleged. Does the Home Secretary have anything to say about the Government's thinking on that?

Mr. Clarke: The right hon. Gentleman is correct. Indeed, I said in Committee and confirm again now that Lord Carlile made a number of recommendations in relation to that in his review of the procedure. My right hon. Friend the Attorney-General has also made such recommendations, which I believe that he discussed with the Select Committee to which the right hon. Gentleman refers. I can confirm, as did my noble Friend the Attorney-General, that we believe that there are aspects of the procedure that need to be improved, and that is the process that he set out yesterday in his evidence to the Committee.

Mr. David Trimble (Upper Bann) (UUP): The Home Secretary is dealing with the procedures in court. Can he go into detail about the extent to which he has consulted with judges on those procedures, and is he absolutely sure that they are willing to operate this system? I recollect that when something similar was proposed in Northern Ireland many years ago, the judges there made it clear that they would not operate a system of that nature.

Mr. Clarke: I have had discussions with some judges. My noble Friend the Lord Chancellor has had specific discussions with judges, including in Northern Ireland, on precisely the questions that the right hon. Gentleman raises. My understanding is that judges are ready to carry out the will of Parliament in these matters and to carry this through—although it is true, as I said in Committee and have said elsewhere, that some of the most senior judges in the land have their doubts about whether this is the most appropriate process. That was one of the principal reasons why I was concerned at earlier stages of the debate not to give way on the arguments about judicial decision-making in this area. I was aware that some very senior judges had concerns about these matters. However, I am clear that their view is that they will carry out the will of Parliament, as they rightly should.
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4.15 pm

Mr. Kenneth Clarke (Rushcliffe) (Con): The Home Secretary briefly referred to the prospect of prosecution as an alternative to the process that we are considering. In the past, he has agreed that, when possible, prosecution is preferable, as in the case of the shoe bomber. Do I understand him correctly that the key consideration will be whether the police and the prosecuting authorities, having been asked by the Home Secretary to examine the matter, believe that prosecution is preferable or possible? Is not that open to the danger that they will decide that some evidence is a bit thin, some witnesses are a bit unreliable, there is plenty of suspicion and therefore a more certain outcome could be secured if they go for the procedure for which the measure provides? Although I accept that some people cannot be prosecuted, would it not be better to ask a judge to consider whether the case should be proceeded with in the way that we are discussing, or sent back to the prosecuting authorities to bring an ordinary prosecution?

Mr. Charles Clarke: The right hon. and learned Gentleman used the words "preferable" and "possible". Our position is clear. It has been clearly set out and I confirm it today: it is always preferable to prosecute. In the Gloucester shoe bombing case that he mentioned, and in other cases, prosecution is best way in which to proceed. The Home Secretary will seek advice on whether it is possible to prosecute, but I emphasise that it will always be preferable to do so.

The right hon. and learned Gentleman asked whether I believed that it was appropriate for a judge to decide whether a prosecution should take place. The House would move down a dangerous path if we suggested that, above and beyond the responsibilities that the proposals give judges, we should give them the power to decide whether a prosecution was appropriate. I believe that it is rightly for the Executive—the Secretary of State in the circumstances that we are considering—to make a decision, based on advice.

Mr. Mark Oaten (Winchester) (LD): Is it now the Home Secretary's position that he is prepared to consider circumstances in which defendants could hear the charge against them in closed session? Does he acknowledge that even if we have judges in place, on matters of fact defendants should be able at least to make their case against that fact?

Mr. Clarke: I have not concluded my comments on derogated control orders. I believe that the rest of my remarks will cover the hon. Gentleman's question, but I shall come back to him if he feels that they have not.

Vera Baird (Redcar) (Lab): I want to revert to the question of special advocates. Two things need to be done. First, defendants in such cases typically will not even talk to special advocates because they are appointed by the Solicitor-General, who is close to the Attorney-General who sometimes opposes the applications. Is it not possible for a special advocates list of security-cleared barristers to be drawn up so that defendants can pick their own?

Secondly, special advocates need to be able to consult their clients to get instructions after they have seen the intelligence material. Is it not possible for a discussion to
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take place between the special advocate and the judge, in the hope that some questions can be asked without posing a danger to intelligence, thus giving the defendant a fairer crack of the whip?

Mr. Clarke: My hon. and learned Friend has made two perfectly appropriate proposals: first, that the defendant should have a better choice of special advocate to represent him or her; and secondly, that the defendant should have more information about the hearing as it proceeds. Both are precisely the sort of proposal to which I referred in response to the right hon. Gentleman for the north-east of England—[Hon. Members: "Berwick-upon-Tweed."] I believe that "not quite Scotland" is the place. The proposals are helpful and can be tackled in the dialogue that was mentioned a second ago.

I believe that the procedure that I have outlined is appropriate, given the seriousness of derogating orders, and that it meets the concerns that were expressed in the House for judicial involvement in their making. Hon. Members will note that there could be a gap in time between my applying for a derogating control order and the court's making it. It is possible that, in that short time, the subject of the proposed order could be tipped off or disappear because he had made travel arrangements. I therefore included in the Bill a power for the police to arrest and detain an individual pending the outcome of a court's consideration of an application for an order and, if made, pending it being served.

Mr. William Cash (Stone) (Con): Will the Home Secretary give way?

Mr. Clarke: Not at the moment. The power of detention lasts for a maximum of 48 hours in the first instance. The court can extend that for up to a further 48 hours. I do not anticipate that it will be used often, but we should not allow the purpose of the order to be thwarted by the disappearance of its subject in the interim.

The proposals fulfil the commitment that I made to hon. Members in Committee to introduce changes in derogating control orders. They are reflected in the Lords amendments that are now before us.

Mr. Cash: I believe that the Home Secretary has to have prime position with regard to the question of whether an executive action against terrorist suspects is involved and has to be sustained. Does he accept that the mess that has been created by the Bill has been the result of our accepting the European convention on human rights, which is at the heart—[Interruption.]

Madam Deputy Speaker: Order. The scope of this debate is quite wide, but hon. Members must speak to the amendments on the Order Paper.

Mr. Clarke: The whole House will admire the persistence with which the hon. Gentleman makes his purblind case.I strongly believe that, in relation to the Bill and to other issues more generally, the Human Rights Act 1998 represents a major step forward in the structure of law in this country, and that it has benefited people in this country. The difficult questions that have to be resolved—and they are difficult—on the balance
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between national security and liberty have been assisted by the Act, by the work of the Joint Committee on Human Rights and by the discussions that we have had in the House. I pay tribute to hon. Members on both sides of the House who have played a role in ensuring that we get better scrutiny of these difficult issues. I have concluded very carefully that the protections afforded to the individual in the legislation that we are proposing, which follows the Human Rights Act, are vastly superior to any protections that existed in any legislation when the Conservatives were in government. I acknowledge that there are issues still to be addressed, but let us not hide the progress that has been made.

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