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Mr. Soley: I welcome what my right hon. Friend has just said. I certainly think that is better than a sunset clause. It is important that we recognise that for the past 20 or 30 years, none of us has been happy with the way we have legislated on terrorism. The measure we are discussing today is not as bad as some aspects of the old prevention of terrorism Acts and it is certainly not as bad as the internment Acts. I would very much welcome my right hon. Friend's going a step further to offer talks to the other parties—I know that he cannot commit future Governments—and they ought to respond positively in terms of the review and come forward with other suggestions as time goes by.
Mr. Clarke: I very, very much agree with my hon. Friend and would like to make three points in response to him. First, his first point is not sufficiently appreciated. It is a fact that we are giving greater priority to human rights and civil liberties in these procedures than in any previous type of such legislation. Secondly, I pay tribute to my hon. Friend who, when he led for the Labour Opposition on these matters before we came into office, dealt with the then Government in a universally positive and constructive way. He recognised his responsibility in opposition to deal with such matters responsibly. That is a positive example from which all parties in the House might usefully draw some lessons. Thirdly, I agree that after a general election it would be beneficial to hold conversations of the type that we were referring to. I do not specify a particular form, but with a Parliament stretching in front of us, to try to go back to the old days when Labour was in opposition and we had all-party agreement on such things might be a good way to proceed, and I am certainly ready to act to try to achieve that.
Andrew Bennett (Denton and Reddish) (Lab): Does my right hon. Friend accept that one of the problems with the House being given an opportunity to vote on an order is that such orders are not amendable and therefore it is not possible for the House to keep part of the Bill—or part of the Act, as it would then be—and to get rid of bits of it in a phased way? It is possible to have a statutory instrument that is amendable. Will he look further at making it possible for us to consider an amendable statutory instrument so that we could shave away parts of the Bill as they became unnecessary?
Mr. Clarke: I will think about that proposal, and I accept the weakness of the order system that my hon. Friend describes. That is why the order system that I was referring to for the derogating order was a better way to proceed—
Mr. Grieve: Will the right hon. Gentleman give way?
Mr. Clarke: I will give way when I have finished what I am saying.
I acknowledge that there are issues that I will think about in relation to what my hon. Friend says. However, I believe that, if we were to get to the state of
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affairs with the independent reviewer where the conversations that we have had had taken place and where both Houses of Parliament thought that the current legislation should not continue, that would be precisely the time to discuss what form of legislation should replace the Bill.
Mr. Grieve: I am most grateful to the Home Secretary for giving way. He is aware, and I dare say that he would agree, that the Bill has had to be passed through the House in considerable haste. I do not think that he would disagree with that. It is also very controversial and, as he knows from the debate in the other place and in this House, it has excited a great deal of comment because much of it is draconian and certainly novel in terms of civil liberties in this country. Are those not compelling reasons why there should be a sunset clause? That would make absolutely sure that the House and the Government do their duty properly by allowing the legislation to be considered afresh with the possibility of alternatives being properly aired in the House, rather than, as I fear, the Government simply keeping this going in the medium term, as the Prime Minister says. That is likely to be for many years if they have their way.
Mr. Clarke: The hon. Gentleman argues the case—the compelling case, in his language—for looking at the operation of the legislation in precisely the detailed way that I have described. That is not a compelling argument for including an eight-month sunset clause, which would give no time at all to consider the issue seriously and take it forward.
Mr. Clarke: I turn finally to the other Lords amendments. The remainder—[Interruption.]
Madam Deputy Speaker: Order. It is obvious that the Home Secretary is not prepared to give way at the moment.
Mr. Clarke: Thank you, Madam Deputy Speaker. I am acutely aware that I have already taken an hour and seven minutes of the House's time. Other hon. Members will want to speak, and I cannot be accused of not having given way fairly generously during the debate.
On the remainder of the Lords amendments, I conclude by saying that Lords amendments Nos. 6, 27, 31 and 32 are unnecessary. Lords amendment No. 6 is unnecessary because those who need social security benefits will receive them if they are eligible without provision having to be made in the Bill—to answer the question asked by my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones)—and a control order must be necessary and proportionate, and one that denied an individual access to food, clothing and sustenance would plainly not be proportionate. The other Lords amendments are unnecessary because, in my view, clause 11 already makes adequate provision
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for the Bill to be reviewed in the operation of the Act once passed by the processes that I have already described.
Mr. Clarke: In the spirit of fair play, which is my wont, I give way for the final time in the debate to the crusader for liberty who is my hon. and learned Friend the Member for Medway.
Mr. Marshall-Andrews: I am grateful to the Home Secretary. May I just come back briefly? If the Bill ever becomes law and if a review is given to the House when it is reviewed, will he undertake that that review will contain an independent judicial statement on the limitations of judicial review, so that the House is definitely not misled as to the nature of judicial intervention as to fact?
Mr. Clarke: The one thing about which I feel absolutely certain is that the chance of an absolutely categorical statement of interpretation of any aspect in law is always unlikely, even from my hon. and learned Friend.
Mr. Paul Stinchcombe (Wellingborough) (Lab): The law on judicial review, as stated previously by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) and by the right hon. and learned Member for Rushcliffe (Mr. Clarke), would have been accurate in 1948, when the Wednesbury case was decided, but that is no longer accurate following the Daly case in the House of Lords, in which it was stated that the day has come when
"it will be . . . widely recognised that . . . Wednesbury . . . was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial"
5.15 pm
Mr. Clarke: First, I pay tribute to my hon. Friend's service on the Joint Human Rights Committee; and secondly, I defer to his legal experience. I am not sure whether my hon. and learned Friend the Member for Medway would also defer to his legal experience.
Mr. Siôn Simon (Birmingham, Erdington) (Lab): I remind my right hon. Friend of what somebody once said of Cavour, that he loved moderation immoderately. I ask my right hon. Friend not to get carried away with concessions and sunset clauses but to bear in mind over the next couple of days that there remain many Members of this place and a great majority of people outside it who do not want to see all these things that lawyers in this place and the other place have been talking about, who believe that my right hon. Friend was right in the first place and that the country should be protected by elected Members of Parliament and Ministers of the Crown, and not by unelected and unaccountable judges.
Mr. Clarke:
I am extremely grateful for the moderate way in which my hon. Friend immoderately makes his
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case. He allows me to conclude by saying that I believe that it is the duty of this elected House to set out the basis of the defence of our national security. I assert that strongly. On that basis, I urge this elected House to support the amendments that I have put in place and to reject the Lords amendments.
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