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Mr. Oaten: Does the Home Secretary concede that even the lesser control orders affect people's liberty, as they tell people where they can travel and work? He has conceded that a judge must decide on those control orders, so does he accept that the same standard of proof is needed for the orders about which he has just been speaking? It is hardly fair to say that the balance of probabilities is a high test, given that that could be 51 per cent. against 49 per cent. Surely the same standards should apply for all control orders?
Mr. Clarke: First, I acknowledge that, as we have said from the outsetthe hon. Member for Winchester (Mr. Oaten) and I agreethe balance between security and individual liberty is at the core of this discussion. Therefore, proportionality in the standard of proof and the type of control order also relate to those matters. There is not an absolute herealthough some may say that there isbut a question of balance.
"The most important right is the right to life and I will be brutally frank with you and tell you that if this legislation is not passed there is a marginally increased likelihood of some sort of terrorist attack killing a number of our citizens. The difficulty is weighing that up against the risk to people's liberty who may be thrown into gaol without any real cause but simply on some sort of suspicion."
Richard Burden (Birmingham, Northfield) (Lab): I am still confused about something. If we assume that the most dangerous suspects are those who could be subject to derogated control orders and that their cases should be subject to the higher standard of proofthat is, on the balance of probabilitieswhy should less dangerous suspects be subject to a lesser standard of proof, particularly given my right hon. Friend's welcome movement today in saying that under non-derogating orders the court can consider facts and not just the Home Secretary's judgment?
Mr. Clarke: The key point is the one I made a moment ago. It is important to acknowledge that there is a distinction between deprivation of liberty and not depriving someone of liberty. That has been important in terms of the judgment of the European convention on human rights and it is important in practical terms and the extent to which people are controlled in those circumstances. It is true that there are issues of restriction of liberty at a lesser level than deprivation of liberty, but my argument is that those are different cases and should be dealt with in the proportionate way I described.
Lynne Jones (Birmingham, Selly Oak) (Lab):
My right hon. Friend may be surprised to learn that I am sympathetic to his argument on this point, but I do not understand why the Government disagree with Lords
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amendment No. 6, which he did not mention. It makes provision for someone who is subject to a control order to have access to supplies of food and personal necessities. Why do the Government disagree with the Lords?
Mr. Clarke: I shall come to that, but the short answer is that those requirements are met and the Lords amendment is unnecessary to secure what my hon. Friend seeks to achieve. I shall speak about that in more detail in a moment.
I have made it clear that the new procedures are fair and ensure early judicial involvement. In non-derogating control orders, the judge may refuse leave to make the order or quash an order that has been made under the urgency procedure if he feels that the test is not met. In derogating control orders, the court makes the order. In both cases there will be automatic referral for a full hearing of the court. In non-derogating orders, the court will apply judicial review principles. In derogating control orders, the court will decide the case on its merits. I do not accept that judicial review principles are not appropriate. As I said, the court has been developing those principles since before the introduction of the Human Rights Act 1998. I believe that the issues that have been raised create fairness in the system.
The subject of the orderthe defendantwill have access to the advocate of his choice in open sessions and will be represented by a special advocate in closed sessions. The courts have accepted that that is the fairest system possible, given the need to protect sensitive material.
As I said to my hon. and learned Friend the Member for Redcar, the Government are looking to widen the pool of special advocates to give the subject of the order greater choice. SIAC-type procedures will be followed in control order proceedings. The rules to be made by the Lord Chancellor or the Lord President in Scotland in the first instance, and thereafter by the relevant rules committees, will ensure that. We need to establish those rules quickly, and once the first set of rules is made, they will be made thereafter by the appropriate rules committee. The rules will be in place immediately, and there will need to be a vote in both Houses of Parliament if they are to remain in force beyond 40 sitting days.
The cases for control orders will, as now with the part 4 powers, be prepared extremely carefully. The Secretary of State will put forward a balanced case to the court that will include both material that makes his case and exculpatory material that undermines it. The courts will expect, and rightly demand, a high standard of fairness, which is as it should be. Much of the material will be sensitive and not capable of being shown to the subject of the order and his lawyer in open session, but it will be available to the court and to the special
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advocate, part of whose job is to try to secure the widest possible disclosure of material to the subject of the order.
We are now looking urgently at better training for special advocates, at better support systems for them and at whether they can have greater access to the subject of the order. The aim is to ensure that special advocates can do their job to the best of their ability, but still commensurate with the need to protect sensitive material, sources and techniques.
Mr. Hogg: How very gracious of the Home Secretary. Will he understand that the special advocate cannot do his job properly, or even at all, unless he can discuss with the detained person the nature of the evidence being deployed against him and obtain his proper instructions on that evidence?
Mr. Clarke: That reprises a discussion that we had last week. I think that the right hon. and learned Gentleman will confirmif I am wrong, perhaps he will correct methat he totally opposes any control order process of any description.
Mr. Hogg: No, I do not. My position is set out in amendment (a) to amendment No. 8. Provided that there is due process, I will go along with control orders. The problem is that there is no due process. Until there is, I oppose control orders.
David Davis : I think that the Home Secretary has misrepresented the views of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). The Home Secretary should address the question of how a special advocate will deal with an allegation when he is unable to tell the accused enough to enable him to give an alibi, even if that alibi is the absolute and concrete truth. We understand the Home Secretary's motivation, but he should explain to the House of Commons exactly how his proposal will work.
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