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David Davis: Listening to the debate has been rather instructive. It is unusual for a debate of this nature to include such principled clashes across the Chamber at this stage of a Bill. I think that it is a reflection of the way in which the Bill has been handled. I am led to read to the House a short extract from the editorial of this morning's edition of The Times, that well-known Conservative newspaper. It reads:

"The humiliating defeats in the Lords on the Prevention of Terrorism Bill are not only an extraordinary setback two months before an expected general election; they are also a telling indictment of the muddle, incompetence and myopia that have characterised the sloppy handling of this vital issue. The defeats are too resounding to be brushed aside by a Government desperate to enact legislation to replace the current detention powers that expire on Monday; with both Lord Irvine of Laird, the former Lord Chancellor and  . . . Lord Condon, one of Britain's most experienced former police chiefs, voting against the measures, the moral weight of opposition makes it clear that Labour is facing its sternest test of how to handle the whole issue of terrorism . . . The inept handling of this Bill . . . has had the worst possible effect. It has politicised an issue that should command a consensus among all responsible MPs to safeguard Britain and its liberties"

I agree.

The issue of terrorism and the related legislation should command a consensus. I hoped a few weeks ago that we would find a way to get the Government out of the jam that they had created for themselves. However, they appear to have been determined to try to use the Bill as a political weapon. The Prime Minister virtually said as much at questions today. Despite that, I will make one more attempt to appeal to the Government's sense of reason.

I shall start by highlighting the most important amendments that the Home Secretary talked about today. I welcome his acceptance of the need for judge-led decisions on all the control order matters. It is belated—it should have been in the first draft of the legislation—and it certainly would have been put into the Bill if there had been proper Commons scrutiny, as I think was apparent from the comment of the hon. Member for Walsall, North (David Winnick).

Having listened to the Home Secretary and to interventions by the hon. and learned Member for Medway (Mr. Marshall-Andrews) and my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), I can see little justification for interfering in the system of judicial control orders, but that is being done by means of the Government amendment to Lords amendment No. 1. The Government have not made the case—listening to the Home Secretary, I did not hear a case—for substituting reasonable suspicion for the balance of probabilities. I shall return to that point in a moment.

Lords amendment No. 16, which gives primacy to prosecution, is being interfered with by the Government, again for no good reason. Indeed,
 
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together with the deletion of Lords amendment No. 18, that interference will have the opposite effect to the one intended by the Home Secretary. Most tellingly, the Government have rejected the Privy Council review process, which alone can show how the legislation will work in practice. When taken with the objection to the sunset clause, that demonstrates a total lack of willingness to heed the anxieties of Members of all parties about the control order system that the Government are introducing, and hardly inspires confidence in assurances that they have given us. The same is true of their refusal to accept Lords amendment No. 38, which requires the Lord Chief Justice to set the rules, and Lords amendment No. 40, which would ensure that the procedure is compatible with the European convention on human rights by ensuring that there is a fair hearing. It is hard to understand why the Government are seeking to delete that amendment, particularly given the answer that the Home Secretary gave my hon. Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General.

Sir Brian Mawhinney (North-West Cambridgeshire) (Con): I declare an interest as a member of the Newton committee. Will my right hon. Friend bear in mind the fact that findings of that committee were at considerable odds with what was then Government policy, and are much closer to what is now emerging as Government policy. However, before the door of the Home Office was closed, as we delivered our proposals they were comprehensively rubbished by the previous Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). We are here today not because of the Newton committee's review but because of the Law Lords. Will my right hon. Friend bear that in mind when he assesses the importance of the review procedures—as opposed to the sunset clause—to which the Government are seeking the agreement of the House?

David Davis: My right hon. Friend has made a very good point. Perhaps I could develop it by discussing the events that have led to this position. The Home Secretary has said several times today alone that the Government had only 12 weeks in which to put the legislation together. That is not true. They were aware for some time that there were fundamental flaws in the Anti-terrorism, Crime and Security Act 2001. I do not blame or condemn them for those flaws, as that measure was rushed through in the aftermath of 9/11, so it is understandable that mistakes were made. However, it would not be understandable if they repeated those mistakes. We anticipated the weaknesses and flagged them up. In response, the Government set up the Newton committee, on which my right hon. Friend, to review the operation of the Act, highlight its weaknesses and propose alternatives.

The Newton committee reported in 2003, and did exactly what it had been asked to do. Before the Home Office door closed, as my right hon. Friend said, its proposals were rubbished. It made a number of sensible proposals, but the Government, apart from rubbishing them, did nothing. We have heard from officials at the Home Office that papers were prepared, but that there was no political direction. Even when it became apparent in October 2004 that the Government were expected to lose the forthcoming House of Lords
 
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judgment in December 2004, they did nothing. When the judgment was made, for weeks nothing happened, except that the Government introduced the statutory instrument to renew the old law—the part 4 provision.

The Government have tried to represent the Opposition—and there has been more of this today—as being difficult over the Bill. That is blatantly untrue. We have made at least three separate proposals to the Government. First, we offered them the option of extending part 4 of the 2001 Act, which would allow more time to consider a new Bill and new powers to deal with the problem of defending the nation, but for reasons that the Home Secretary gave and that I accepted, they rejected that. On 22 February, therefore, we said that we were willing to back an extension of part 4 with primary legislation to limit the bail conditions that the Special Immigration Appeals Commission can set. In effect, that would guarantee that the control orders outlined by the Home Secretary in the Bill up to and including house arrest would apply to the remaining Belmarsh detainees until properly considered legislation came into effect. That would limit the possible injustice to a small number of people for a short, limited period, but it would also give the Home Secretary the certainty—that was the word he used when speaking to me—that he is seeking when dealing with those foreign nationals. But they rejected that too. Finally, we proposed, in addition to other amendments, to approve this fundamentally flawed Bill for a limited period, a sunset clause. Today and before, they rejected that as well.

One of the purposes of a sunset clause is to enable the Government to evaluate their ability to lock up known terrorists. The 10 to 20 people whom the Home Secretary intends to have placed under a control order, if guilty of terrorism, acts preparatory to terrorism, or acts that the Government think are wrong within the law, should be in prison, not on the street. That is why the Bill must expire and be replaced by legislation that has been properly considered and will allow us to catch terrorists without penalising ordinary people. We believe that such legislation is possible.

Mr. Soley: The right hon. Gentleman speaks of seven months. If he has in mind other approaches, including another Act, for example, for acts preparatory to terrorism, quite a lot of background work will be needed between the two Houses. Surely he must accept that renewing the legislation every year would give the Government the flexibility over the next 12 months to do that? It would be a far better approach than a sunset clause, which would mean rushing the work in a way that would be unacceptable.

David Davis: I shall return to some of the hon. Gentleman's points. It strikes me as extraordinary that a Government who force us to consider a Bill in eight days object to having eight and a half months to consider a new Bill. It is self-evidently illogical—I was going to say something ruder—an illogical proposal. But we are not starting from year zero. The Newton committee has already reported and largely been ignored—indeed, rubbished—so we have some data already. I am sure other aspects have been considered. If it is a matter of a month here or there, there is no argument. If, instead of
 
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30 November, the Government want to make the target date Christmas, I will happily discuss that with the Home Secretary. That is not the argument.

We need a principled approach to how we review and renew the Bill. We accept, as Lord Newton's committee does, that there is a clear need for special legislation to deal with the problems that we face today. There is a need, as he said, for specialist counter-terrorism legislation because of the way terrorists operate, which makes them hard to catch and convict, and because of the risks they pose to society, but, as the Newton committee again said,

"counter-terrorist legislation must also contain proper protections for the privacy and liberty of the individual".

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