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Mr. Dominic Grieve (Beaconsfield) (Con): I note that the Government are seeking to reverse Lords amendment No. 40, which provides for fairness in the process, in compliance with article 6 of the European convention on human rights. Why are the Government seeking to do that if they intend these procedures to be compliant?

Mr. Clarke: I shall come to that amendment later in my speech, and I shall deal with the hon. Gentleman's question then.

I come now to non-derogating control orders. Colleagues in the House of Commons and in the other place have suggested that the High Court should make non-derogating control orders, as well as derogating control orders, and have amended the Bill accordingly. Again, I have considered the matter carefully and I understand the strong opinions that have been expressed. I remain of the view that these orders are different in nature from derogating orders, but I accept that some measure of judicial involvement in the process is necessary and desirable.

My amendments, which I laid before the House this morning, therefore provide that the Secretary of State must apply to the High Court for permission to make a non-derogating order, save where urgent action is required. I shall explain a little more about what I mean by "urgent action" in a moment. The normal process for making non-derogating control orders will therefore work in the following way. The Security Service and the police will put a case together, as I have already described. If the Secretary of State thinks that the test is met, an application to the High Court for leave to make the order will be made. If the court agrees that the Secretary of State has a case, it will give the Secretary of State permission to make the order, and the order will be made. The Secretary of State will then refer the order to the court, which will arrange for a full hearing to take place as soon as possible thereafter. If the court refuses leave, the order will not be made.

At the full hearing, the court will consider all the material before it, examine witnesses, and so on. It will be able to hear the case in both open and closed sessions. As with derogating control orders, the subject will have access to the open material, and his or her interests will be represented by the counsel of his or her choice in open session, and by a special advocate in closed session under the special advocate procedure. I acknowledge the points raised by my hon. and learned Friend the
 
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Member for Redcar (Vera Baird) about trying to improve that process. Again, the subject of the order will have access to the open judgment.

David Winnick (Walsall, North) (Lab): As someone who broadly supports the Bill, I should like to remind the House that this is the first anniversary of the atrocities that occurred in Madrid. Will my right hon. Friend explain why, when some of us who are in favour of the Bill pressed for this measure to be included last week, he absolutely refused to do so? That is why quite a number of us voted against the Government. Why has he now conceded to the Lords when he should have conceded to us last week? It is quite obvious that what he is now proposing is right and justified, and that it is what so many of us were urging him to do last week.

Mr. Clarke: I am delighted by and grateful for my hon. Friend's ringing endorsement of my proposal. In candour, there are two reasons why I have changed my position since the debate last week.

First, I believed that it was important to have an urgency procedure, which I shall set out. The direct proposal considered by the House last week did not have such an urgency procedure and there was a risk that certain people to whom it might be necessary to apply a control order would no longer be there.

Secondly, I set out last week, and again today, that I do not feel that judicial involvement at the first stage, in the way that is suggested, is necessarily the best way to proceed. I acknowledge, however, the strength of opinion both in this place in last week's vote and in the other place. That is a necessary process of parliamentary discussion as it moves forward. I have therefore taken account of that. I could take the course of stating my position and never changing it under any circumstances, but that would not be the right way of dealing with such matters. We are seeking some consensus on this legislation and that is why I have changed my view.

Mr. Robert Marshall-Andrews (Medway) (Lab): What concerns me is the idea that the proposal is in some way a concession. Is it not right that the power of the court is expressly limited to the power of judicial review? If that is the case, the court has no overriding jurisdiction over matters of fact—it is limited to law and procedure. The Home Secretary knows that very well. Why has that not been brought out?

Mr. Clarke: I will come to the points on judicial review in a moment.

On derogating control orders, my hon. and learned Friend is wrong. The proposals on derogating control orders and judicial involvement relate entirely to the judgment on matters of fact to which he refers. On non-derogating control orders, it is not the case that judicial review does not have power—it certainly does. I will come to that in a moment.

On urgency, there may be urgent cases in which waiting for permission from the court is not an option. In such circumstances, we need to take action immediately. I propose that the Secretary of State should be able to make the order immediately. The Secretary of State would immediately have to certify the urgency of the case on the order, and it would then take
 
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effect immediately. When such an urgent procedure is used, the Secretary of State must refer the order immediately to the court for confirmation within seven days. If it is confirmed, the court will then make arrangements for a full hearing.

I have considered carefully whether urgency can be defined in the Bill and I am advised that an exhaustive list could not be produced. The procedure will rarely be used. The circumstances for use will most likely be when the subject seems likely to disappear before permission could be obtained because he or she had been tipped off or had made arrangements to travel. In case it has been forgotten, I remind the House that that was a specific problem in December 2001, just after 9/11, when a few suspects disappeared just before the part 4 powers came into force. That is a description of what has actually happened rather than of something that is entirely hypothetical.

We cannot use the arrest and detention power provided in relation to derogating control orders because we have not derogated and do not intend to derogate now. In any event, that power would not be available in relation to non-derogating orders. I believe that the urgency procedure that I have outlined fills the gap. The subject of the order will be able to challenge before the court whether the case was urgent and the use of the urgent procedure will be included in the quarterly reports that the Secretary of State makes to Parliament on use of the control order powers in the period in question, so the whole House will be able to examine the extent to which the urgency procedures have been used.

Mr. Chris Smith (Islington, South and Finsbury) (Lab): Can I press my right hon. Friend further on the court procedure to examine subsequently the urgent decision that he has made? Under his amendment, the court can consider whether the Secretary of State's decision was "obviously flawed". In making that decision, can the court consider not just the process whereby the Secretary of State reached his decision, but the full facts that he had in front of him?

Mr. Clarke: The short answer is yes. The judicial review principles, which have been well developed over a considerable period, particularly since the passing of the Human Rights Act 1998, are fairly clear. They mean, first, that the court can consider matters of fact and not simply points of law. That is relevant to my right hon. Friend's question. The court will look at all the material relating to and underpinning the Home Secretary's case and ask questions about the decisions made on what should happen next.

4.30 pm

Judicial review is concerned with reviewing whether the decision maker could properly make the decision that he made, but I think it entirely wrong to characterise it as a process concerned only with law and procedure. Even before the Human Rights Act 1998,
 
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courts on judicial reviews would, where appropriate, look at the facts to establish whether they could support the decision reached.

Mr. Marshall-Andrews: What the Home Secretary is saying is legal heresy, but if it is correct and the court can look at all that, why is it necessary to restrict it to the provisions of judicial review?

Mr. Clarke: It is not being restricted to the provisions of judicial review. The fact is that we have a different level of process above the derogating line from that below it, and that is how it should be.

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