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Mr. Clarke: The point that the right hon. Gentleman has not fully grasped is that the control order that we
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propose will be a preventive device to prevent an individual from offering a terrorist threat to the country, in various ways. It will not be a judgment on the facts in the traditional court approach, via a prosecuting rule, on whether a crime has been committed in a particular way. The Government agree that it is superior, where possible, to take the latter course of prosecution, for a variety of reasons. I hope that the right hon. Gentleman will accept that I was not seeking to malign his colleague: I thought that I had heard a change from what was said last week. I know that he accepts that in such circumstances, a control order, limited as it may be, could be necessary, and he presses me about the procedures to ensure that the matter is properly carried through.

The open evidence is disclosed to the appellant and the special advocate at a relatively early stage of the process. That enables the special advocate to discuss it with the appellant before he sees the closed evidence. It is only after seeing the closed evidence that he cannot communicate with the appellant, except in limited circumstances. The closed evidence is thus provided to the special advocate at a later stage. I think that that deals with the situation in a way that protects our national security.

5 pm

David Davis: The Home Secretary recognised earlier that although control orders might not be intended to punish, there is a strong penal element to them because they would do harm to an individual. Concern about the matter was raised by Ian MacDonald, the special advocate who resigned. He said that sometimes the closed evidence was so different from the open evidence that the charge became different, to all intents and purposes, so the accused was thus incapable of answering it. The scope for a miscarriage of justice is enormous in such circumstances. That is a disaster in itself, but it would also be disastrous for the effectiveness of anti-terrorist orders because it would create a recruiting sergeant and radicalise our opponents.

Mr. Clarke: It is important to acknowledge that special advocates have different views on the point that the right hon. Gentleman sets out. Secondly, it is important to appreciate that we are listening carefully to what special advocates have said about procedural issues. That is why I responded at the beginning of the debate to the right hon. Member for Berwick-upon-Tweed—I hope that I got his constituency right on this occasion—

Mr. Beith: It is in the north-east.

Mr. Clarke: The right hon. Gentleman's constituency is indeed in the north-east, or even further north than the north-east, if one can say such a thing.

There are questions about the special advocate procedure. My hon. and learned Friend the Member for Redcar, who is also from the north-east, has consistently and strongly asked me such questions during the passage of the Bill. She and the right hon. Members for
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Berwick-upon-Tweed and for Haltemprice and Howden are right to say that we need a process that is as fair as possible to appellants. I believe that we are doing that.

Mr. Marshall-Andrews: Will the Secretary of State give way?

Mr. Clarke: No, I shall not.

However, I do not accept that wanting such a process means that we do not need a procedure including special advocates, closed sessions, open sessions and the like. We must judge the right balance to strike.

I have spoken for a long time, so I want to conclude by talking about the sunset clause. That has been a big issue in the other place—and in this House as well, to an extent. However, with respect, our proposals have not been fully understood. Although I do not make this point in a partisan way, I note that the proposal made by the right hon. Member for Haltemprice and Howden on a sunset clause was put forward not during the bilateral conversations that we have been having, but in an open press conference as an attempt to set out a direct position.

Let me go through the five—potentially six—stages of review that exist. First, the Home Secretary will be required to report every three months on the existence of control orders. He will have to report to the House publicly on what has happened, how many have been issued and how many were urgent.

Secondly, the Bill will require the reviewer—who will have a similar function to Lord Carlile in his review of SIAC cases—to make a report to Parliament every year on the operation of our proposals. That provision was in the Bill that we introduced in the first place. The report could address all the questions that we are discussing today. As I specifically said earlier, I would ask the reviewer to examine in the next such report the implications of new legislation on prosecution and determine how that matter could be addressed. The report would be entirely independent and frank and would set out any issues raised by judges, courts, Members of Parliament or anyone else.

Mr. Robin Cook (Livingston) (Lab): Will my right hon. Friend give way?

Mr. Clarke: No, I will give way when I have finished what I am saying.

Thirdly, I have tabled a new amendment to provide that the Bill would need to be renewed annually by a vote in each House of Parliament. Such a vote a year from now would be informed by the quarterly control order reports and the report by the special independent reviewer.

Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab): Will my right hon. Friend give way?

Mr. Clarke: I shall give way in a second.

Parliament could decide that it did not wish to renew the legislation, for example if the review raised issues showing that it was not working properly. Those three steps are there today and now.
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The fourth stage of the review, which was also in the Bill when it was first published, is that in the event that we have a derogating order in place, which as the House will recall I do not propose at the moment, there would again be an annual vote to renew by both Houses of Parliament. Fifthly, I have acknowledged—I stated it on 26 January—that we need new legislation on offences relating to terrorism and we intend, if re-elected, to put such legislation before the House early in the new Parliament. Again, that will be an occasion to address those questions.

Sixthly and finally, there will be—in case it has escaped anybody's attention—a general election in the next 15 months or so. At that general election, it sounds as though one party will be saying, "Confirm the legislation", while other parties will be saying, "Repeal it", so the people of the country can have a view on that, too. I argue that those six stages add up to a substantial capacity for Parliament, and indeed the people of this country, to review the legislation and to decide to stop it if they so wish.

Mr. Grieve Will the right hon. Gentleman give way?

Mr. Clarke: Not at this moment. I shall give way first to my right hon. Friend the Member for Livingston (Mr. Cook) and then to my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley).

Mr. Robin Cook: I warmly welcome the measured and reasonable way in which my right hon. Friend is responding to the anxieties that have been expressed in both Houses of Parliament. Does he agree that one of the advantages of having a year before we renew the measure is that we shall have time for reflection? I put it to him that this contentious legislation would greatly benefit from something like the Newton committee treatment. My right hon. Friend proposes to strike out Lords amendment No. 31, which would set up such a committee. I do not quarrel with that action on the procedure, but I ask my right hon. Friend to reflect on the fact that the principle is sound, and that he might find it helpful a year from now when the measure comes up for renewal to have independent recommendations for improvement to the Act in the light of experience from a broader group than just one reviewer.

Mr. Clarke: I am grateful to my right hon. Friend for making that point. I agree with him; it is a question of not just the ability to review but, as he implies, the ability to review in an informed way. I think that the process I have put in place—three-monthly reports and an independent review—is exactly the vehicle by which it will be possible to obtain that informed review. On my right hon. Friend's idea about Privy Counsellors and a committee of that type, I pay respect today, as I have done in the past, to the extremely positive work of Lord Newton and his committee. I also pay tribute to the work of the Intelligence and Security Committee in reviewing such matters, which has been important in this and other areas. I can say to my right hon. Friend that I will certainly look at whether there are better ways to continue the review of this matter and consider what is the right way to proceed. The reason that I was and
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am against the Lords amendment is that to specify a particular form of review, especially in light of the wide range of information we have at this stage, is overly prescriptive.

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