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Mr. John Denham (Southampton, Itchen) (Lab): Will my right hon. Friend confirm, or otherwise, that under subsection (6) of his amendment the court will consider not just whether the Secretary of State was justified in wanting to make a non-derogating order, but whether the measures proposed were right? Will the court be able to consider whether the actions proposed are proportionate to the case being put, not simply whether there should be an order at all?

Mr. Clarke: Yes. The specifics can and, I am sure, will be examined in terms by the court in such cases. When I reach the appropriate point in my speech, I will deal with my right hon. Friend's point about prosecution issues, which he has said throughout should be properly addressed.

Several hon. Members rose—

Mr. Clarke: I will not give way again at this stage. I must make some more progress first.

Let me deal next with the issue of those currently detained under the part 4 powers. My amendment also allows me to make a non-derogating control order—without leave from the court—against the current part 4 detainees, subject to the requirement that I must refer the case to the courts immediately for confirmation of the orders within seven days, as in the general criteria that I set out.

The courts have already considered and determined that there are grounds for suspecting each of the individuals concerned of being involved in terrorism and that they pose a real threat to national security. It is very important to the protection of national security that we take immediate action in respect of them, so that they can be controlled immediately on their release from detention under the part 4 powers. Any orders made against the current part 4 detainees must be referred immediately to the High Court for confirmation. If they are confirmed, the court will make arrangements for a full hearing of the detainees' cases as soon as possible thereafter.

I believe that the changes that I have made in relation to judicial involvement in the process, and the way in which I have responded to my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews), reflect a strong opinion in both Houses of Parliament. I hope that they will enable many to accept that the processes that I am introducing will meet the concerns that have been expressed.

Mr. Trimble: I apologise if I have not read the amendment correctly. I have had limited time in which to read it.
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Points have been raised about the application of the judicial review approach. The court's supervision of non-derogating control orders is tied to the determination of

The court

Under subsection (2) (b),

That suggests to me that the court has a discretion quite apart from the issue of whether the decision is obviously flawed. The judicial review principles apply to that, but the use of the word "may" implies that the court has a discretion and that, even if it concludes that the decision is obviously flawed, it may decide not to grant permission. That would give the courts a very wide power to refuse permission. Is my construction of the amendment correct?

Mr. Clarke: I am thinking very carefully about what the right hon. Gentleman said, and I was nodding as he described the situation because his description was right. For the reasons that I set out earlier, the principles of judicial review are wide and will be applied to individual cases, as I said to my right hon. Friend the Member for Southampton, Itchen (Mr. Denham). However, although the general point made by the right hon. Member for Upper Bann (Mr. Trimble) was right, I am not sure that the conclusion of his intervention, in which he considered the wider situation, was right.

Mr. Kenneth Clarke: The hon. and learned Member for Medway (Mr. Marshall-Andrews) is still in practice and I am not, but I was at the receiving end of quite a lot of judicial reviews in my time in office, and it seems to me that a rather startling explanation has been given of the processes involved. Surely there are many cases in which a judge does not overturn the Secretary of State's decision, even though he personally disagrees with the Secretary of State about its merits and would not have taken it on the evidence before him. The judge lets the decision go ahead if he decides that it was within the power of the Secretary of State, that he followed the right processes and that he was entitled to do what he did. A judge will look at the facts only if he concludes that no reasonable Secretary of State, on looking at the facts, could conceivably have come to the opinion originally reached. That is not a full judicial process—it is wholly biased in favour of the Secretary of State's decision going ahead. There is no reason for having different processes for the lesser decisions and for the higher ones.

Mr. Charles Clarke: With great respect to the right hon. and learned Gentleman, I am not sure who would win the contest between him and the Leader of the Opposition concerning whose decisions were most often overturned by the courts.

Mr. Kenneth Clarke: I was overturned twice.

Mr. Charles Clarke: I beg the right hon. and learned Gentleman's pardon: the Leader of the Opposition
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beats him handsomely in that regard. The fact is that, since the right hon. and learned Gentleman was Home Secretary, the Human Rights Act 1998 has changed the way in which the judicial process operates in such cases. The answer that I gave earlier is an accurate description of the way in which the judicial review works.

Several hon. Members rose—

Mr. Clarke: I will not give way.

I turn to the second issue relating to the amendments from the other place, which is consulting the police on the realistic prospect of prosecution before and after a control order is made. In practice, the police and relevant prosecuting authorities consult extensively on every terrorist arrest to see whether there is any possibility of prosecution. The Crown Prosecution Service in England and Wales, for example, considers all the material and decides whether there is a basis for a successful prosecution, and whether such a prosecution is in the public interest.

Submissions to the Home Secretary on individual cases for control orders will always include, as they have done under the part 4 cases, written advice on prosecution. Prosecution is always our first option and, as we discussed earlier, that has been demonstrated in a number of cases, such as that involving the shoe bomber from Gloucester. I have taken account of what has been said in this House and elsewhere—I have taken particular note of the comments of my right hon. Friend the Member for Southampton, Itchen—and we are looking at whether we can introduce new offences that will increase the number of successful prosecutions of suspected terrorists.

I recognise Members' concern that the Bill should require me to explore with the police whether there are realistic prospects of a prosecution in any given case before making, or applying for, a control order, and I am ready to do so. My amendments therefore require the Secretary of State to consult the police—at the level of chief officer of the relevant force—before making or applying for a control order, on whether there is a prospect of the individual concerned being prosecuted for a terrorist offence.

The new provisions also require the police—in consultation with the relevant prosecuting authority, where appropriate—to keep such matters under review once an order has been made. I do not believe that the existence of a control order will preclude successful prosecution at a later date. I remind the House that two of those certified under the part 4 powers currently in place were subsequently charged and successfully prosecuted for terrorist-related offences—an indication that we continue to deal with these matters directly.

Mr. Denham: Will my right hon. Friend confirm whether, under his proposals, the response from the chief constable and, where appropriate, the prosecuting authorities concerning whether the case in question was prosecutable—presumably, it would not be—would be part of the material evidence given to the court and would be available to the judge? In other words, there would clearly be judicial scrutiny of the fact that the prosecution had been considered by the relevant authorities and could not be taken further.

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