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Mr. Clarke: That could certainly be put in front of the court in the way that my right hon. Friend suggests. It
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would then be necessary for the court to take note of the fact that an assertion had been made by the Secretary of State about the prosecution route.

Mr. David Kidney (Stafford) (Lab): I tabled amendments last week that would have required my right hon. Friend to consult the Director of Public Prosecutions before a control order was made or applied for. Will he confirm that Lords amendment No. 16 does not require that and that it is the Government's amendment (d) that introduces it rather than the Lords amendment itself?

Mr. Clarke: My hon. Friend is entirely correct and I can tell the House that it was his intervention, and that of one or two others, that convinced me that this was the right course for the Government to follow. [Interruption.] What I am saying is quite right.

Mr. Grieve: It would be helpful if the Home Secretary clarified the nature of the amendments that he has tabled to Lords amendment No. 16, which provides for a mechanism of consultation that he is now seeking to amend further.

Mr. Clarke: I do not think that I am seeking to amend it further. My proposed amendment states:

It later continues:

I think that that is as clear as it can be and sets out the position clearly.

Mr. David Heath (Somerton and Frome) (LD) rose—

Mr. Clarke: I shall give way for the final time on this part of our proceedings.

Mr. Heath: The answer that the Home Secretary gave to the hon. Member for Stafford (Mr. Kidney) was not entirely correct. Lords amendment No. 8, which deals with the making of control orders, introduces a clause to require that the Director of Public Prosecutions be consulted before an order is made. The right hon. Gentleman is proposing to delete that and, rather curiously, to place his provision in a clause titled "Criminal investigations after making of control order". Is not that a rather curious place at which to put it?

Mr. Clarke: Perhaps I have not been clear enough, but the fact is that the amendments make it clear, as my hon. Friend the Member for Stafford (Mr. Kidney) explained in his intervention a few moments ago, that, before a control order is made, it is necessary to get the
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chief police officer's view in consultation with the prosecuting authorities on the possibility of prosecution.

Several hon. Members rose—

Mr. Clarke: I am not giving way further on this matter.

Mr. Grieve: On a point of order, Madam Deputy Speaker. These are complicated sets of amendments and it is simply not good enough for the Home Secretary to come to the House and express his intentions in loose terminology without marrying or reconciling what he wants to do with the amendments tabled in the other place. On that basis, how can the House reach a proper conclusion or appreciation of what the Government are trying to do?

Madam Deputy Speaker: That is not a point of order, but a point for debate. I remind all hon. Members of what "Erskine May" says about good temper and moderation, which is something that we should all bear in mind.

Mr. Clarke: I am grateful for your guidance, Madam Deputy Speaker, and I shall seek to offer both good temper and moderation in my presentation of the case.

The third point that the House of Lords put to us relates to the burden of proof—a serious matter on which there has been substantial debate. I want to start from the reality of what control orders are. They are preventive orders, not punishments. They are designed to prevent future atrocities from being committed, not to punish for what has been done in the past.

Mr. Bill Wiggin (Leominster) (Con): Will the Home Secretary give way on that?

Mr. Clarke: No, I will not.

The orders require an assessment of the overall security situation, of the risk posed by particular individuals and of what measures are necessary and proportionate to meet those risks. The Lords amendments suggest that the balance of probabilities is the right test for determining whether the subject of an order is, or has been, involved in terrorism. The Lords acknowledged that that would be a high test, and the Government do not believe that it would be appropriate for all control orders.

4.45 pm

David Davis (Haltemprice and Howden) (Con): The Home Secretary says that the control orders are not intended to be punishments. Does he accept that they can inflict huge harm through restraining movement, communication, contact, association and many other things that are normally considered to be human rights in this country?

Mr. Clarke: Of course I accept that. I cannot recall whether the right hon. Gentleman attended our debate in Standing Committee on this matter, but the distinction between restriction and deprivation of liberty is very important. Each of these proposals amounts to a
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restriction of liberty, but the central message of the Law Lords' judgment on the part 4 powers is that whatever we do must be proportionate. We must deal with any perceived threat proportionately, and that is what the control orders will do. Without them, we have no way to offer the proportionate control counselled by the Law Lords.

Dr. Nick Palmer (Broxtowe) (Lab): If a judge concludes that it is probable that I will join a gang of drunks to cause trouble in central Nottingham, he can impose an antisocial behaviour order to prohibit me from associating with them. However, does my right hon. Friend agree that the absurd result of the Lords amendments is that, even if the judge concluded that I wished to associate with a gang to blow up central Nottingham, he would be powerless to intervene?

Mr. Clarke: I would not make that exact comparison, but my hon. Friend's central point is correct. The burden of proof is critical when it comes to considering what control order is being applied in a given circumstance.

Clare Short (Birmingham, Ladywood) (Lab): Will my right hon. Friend give way?

Mr. Clarke: No, not at this stage.

Making control orders involves assessing the threat posed by a person's past conduct and the risk of further such conduct in the future. That assessment is based on intelligence material, as opposed to evidence that can be adduced in court. A determination must then be made of what controls are needed to meet the threat and mitigate the risk.

I propose that the test should be reasonable suspicion, which I believe is better when analysing intelligence material and drawing inferences from it. The Special Immigration Appeals Commission and the Court of Appeal have both accepted that that is the right course to take in respect of the part 4 powers currently in place under immigration legislation.

For example, Lord Justice Laws argued that the nature of the subject matter is such that it will usually be impossible to prove past facts that make the case that X is a terrorist. I have said the same on many occasions. Accordingly, a requirement of proof would frustrate the policy, and the objectives of the powers. The target of the policy includes those who belong to loose, amorphous and unorganised groups. The choice of reasonable suspicion is apt to strike that target.

Nevertheless, we have accepted that balance of probabilities should be the test for derogating control orders. That is because the subjects of those orders will be deprived of their liberty. That goes back to the proportionality point that I made in response to the right hon. Member for Haltemprice and Howden (David Davis).

For the reasons given, I do not think that the balance of probabilities test should apply to non-derogating orders. My amendments therefore provide that the test to determine whether, for derogating control orders, X is, or has been, a terrorist should be the balance of probabilities. For non-derogating control orders, the test should be reasonable suspicion.
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I am advised that a higher test would mean that some control orders could not be sought, and that potentially dangerous individuals could simply slip away. I am not prepared to operate in such circumstances.

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