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Mr. Denham: Can the right hon. Gentleman help the House by saying whether, this time next year, if we had the legislation that he would like to see, it would still contain control orders or measures that are pretty much the same as control orders? If he sees that as part of the package of the future, why does he want a sunset clause, which would bring those measures to an end?

David Davis: I shall come to some of those points shortly. I take the view that in policy as serious as this, the Government should not do what the Americans call load, fire, aim, which means make up one's mind before one sees the facts. The Government need to assess how many people would be affected by control orders. That number changes, depending on the nature of the current law. If the law is widened or extended, if the procedures for using intercept and sensitive evidence are changed, if that evidence can be brought to court, the number of people who are guilty of terrorism but are incapable of being brought to court will go down. The number may go down to zero, but we cannot do that without the evidence necessary. That is one of the reasons why implicit in the idea of a sunset clause was the concept of another unbiased, highly cleared Privy Councillor committee to report back to both Houses of Parliament and give them the data on which to make that important judgment.

5.30 pm

Mr. Cash: Does my right hon. Friend accept that a sunset clause is the best way to deal with the practical realities that the House faces? Does he also accept that it is incompatible with the principle that he just enunciated for any future legislation on the prevention of terrorism to be made within the framework endorsed by the Bill, namely the Human Rights Act 1988 and the European convention on human rights?

David Davis: I agree with the first half of my hon. Friend's remarks, but—this may be a sad thing—I must deal with the matter in the present reality.

The sunset clause proposal is the reason why we have offered the Government several serious alternatives. We have said that we would support new offences such as acts preparatory to terrorism or an offence similar to those in America's Racketeer Influenced and Corrupt Organisations Act—RICO laws are very effective in America. We need a sunset clause to allow those matters to be considered properly and, where appropriate, to be passed into law as a substitute for the Bill.

Mr. Hogg: My right hon. Friend has just referred to the law of the United States. Will he remind the House
 
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that the fifth amendment to the United States constitution prevents anybody from being held in custody without the due process of law?

David Davis: My right hon. and learned Friend is right. If any country faces a higher risk than us, however, it is the United States, which is coping.

The Government should accept the recommendations made in the Newton report, such as allowing the use of intercept evidence, which would allow cases to be brought to a court of law with a judge and jury so that people are properly convicted. In order to protect sensitive intelligence and its sources, we propose that a judge should be responsible for assessing the evidence and ensuring that a balanced case is presented. In some of his asides, the Home Secretary has sympathised with that view, but we have heard little of that in today's debate. That recommendation would ensure fairness for the defence while protecting sensitive sources, and such a trial would be conducted by a different judge, normally sitting with a jury. Again, that is likely to happen only if we get a sunset clause.

Huw Irranca-Davies (Ogmore) (Lab): Because I am not a lawyer, I ask the right hon. Gentleman to excuse me if I am confused. I can see the point of principled objection to control orders, but he seems to be suggesting that, if he were here in a year's time, five control orders would possibly be permissible, 10 would perhaps be permissible, but 20 would not be permissible. Is his objection to control orders based on numbers, as his answers suggest, or on a point of principle?

David Davis: The hon. Gentleman has made a fair point. If he followed yesterday's debate in the upper House, he will have noticed that we did not support the Liberal amendment to ensure that the accused knows all or a large part of the information laid against them. Control orders exist in cases in which one cannot tell the accused everything, but any civilised person—certainly anyone who has read Kafka—would be horrified at somebody going through a process, even if it is meant to be preventive rather than punitive, without knowing the charge against them. It is best to avoid that situation, where it is possible to do so.

If two or three people are involved, however, it is possible to judge the risk involved in replacing that mechanism with close surveillance—that is possible with two or three people, but not with 200. One can also ask whether that can be done in a civilised way in order to defend our society, without imposing mechanisms that are normally used only in dictatorships. The hon. Gentleman is right that that judgment is based on a clash of principles, but he must understand that basing it on scary comments made on "Woman's Hour" is not a good way in which to proceed.

Those things will happen only if we get a sunset clause. First and foremost, the end for the Government must be the imprisonment of those people who are a danger to the country, but in reaching that end, we must be careful not to use means that degrade our constitution and Parliament. This Bill suspends habeas corpus and brings to an end the presumption of innocence in British law. These are massive changes in
 
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our citizens' constitutional rights, yet they were rammed through the Commons, the traditional defender of those rights, in one day. The Lords were given three days—I suspect only because the Government cannot dictate the timetable in quite the same draconian way as they can in the Commons.

Habeas corpus and the presumption of innocence matter in themselves, but they also matter because they have a direct influence on the Bill's effectiveness as an anti-terrorist measure. Take the Government's stand on the level of evidence required. Lords amendment No. 9 proposes the relatively low civil standard of the balance of probabilities. The Government want reasonable suspicion. What is the difference? Who will be caught by one but not the other? The Government's proposal will net people whom they suspect, but are probably not terrorists. I will repeat that, because it is very important. Rejecting the balance of probabilities means that the Government are willing to put a control order on somebody who is probably not a terrorist. That is a formula for not one miscarriage of justice but many. Every miscarriage of justice is a wrong in itself, but in anti-terrorist law every miscarriage of justice is a seed from which anger and resentment grow—anger and resentment that feed the enemy we are trying to defeat and act as a recruiting sergeant for the evil men who would destroy not just our lives but the institutions, freedoms and beliefs that make our country what it is.

Sir Patrick Cormack (South Staffordshire) (Con): My right hon. Friend is making a powerful speech, but I want to take him back to his point about time. Does he realise that we have now used up more than half the time allocated for this debate? We have heard from the Home Secretary, and we are hearing an excellent speech from my right hon. Friend, but who else will be able to take part adequately?

David Davis: My hon. Friend is right. I am endeavouring to make this a short speech, so I will not take too many more interventions. The Government set this timetable, and I am afraid that when we look back in 25 or 50 years, or when we get to the end of this global emergency, we will wonder why we gave up these things in eight days.

Mr. Kenneth Clarke: With great respect, my right hon. Friend is exaggerating the length of time that this House has had to consider the Bill. In the previous debate, we did not have the Bill before us—we had a letter that described what the Bill was going to be like in the other House. The Home Secretary said that he would consult about the possibility of giving us a little more time to consider the Bill when it came back here, yet we have only three hours in total to discuss every Lords amendment, and the Government reject the prospect of coming back to legislate again properly after the election.

David Davis: My right hon. and learned Friend is absolutely right—he always catches me out when I am trying to be too reasonable.

Mr. Denham rose—

David Davis: I will make some progress, if the right hon. Gentleman will forgive me, because we are running out of time. I am not too fussed about saying that, with respect, because I have already given way to him twice.
 
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This particular problem is partially correctible by accepting the Lords amendment, but the Bill is flawed on many fronts and needs a complete rethink. That is not provided—let me deal with the Home Secretary's point directly—by the Government amendment proposing an annual debate. Those of us who have taken part in such debates know that they offer an opportunity only for ratification, not a complete rethink. This Bill needs more than that—it needs a rewrite, not a rubber stamp. That is why the House of Lords voted 3:1 in favour of a sunset clause, with a record majority of 187 votes. That is why the previous Labour Lord Chancellor voted for it. That is why the previous Labour Cabinet Minister, Lord Barnett, voted for it. That is why Baroness Hayman, the Labour member of the Newton committee, voted for it. That is why a previous Home Secretary, Northern Ireland Secretary, Defence Secretary, and Attorney-General all voted for it. And that is why the sunset clause proposal had a majority of 45, without the Conservative votes, in the House of Lords. The proposal is important, not only because the Bill may prove counter-productive, but because there is a better alternative.

Let me quote the noble Baroness Williams of Crosby, who is not someone I normally quote. She said:

"Finally, in this House, with the possible exception of the Government Front Bench, a clear consensus is already building up about what a new Bill ought to look like. It is not divided on party lines, nor on lines of the particular attitude one may have as regards one's previous interests or concerns. There is clearly a very wide support for a different kind of Bill."—[Official Report, House of Lords, 8 March 2005; Vol. 670 c. 650.]

I say to the Government that it is possible to get the matter right but they will not do that if they insist on trying to use this badly flawed Bill as some strange test of political machismo. Of course they should be tough on terrorism, but clumsy on terrorism is not tough on terrorism. Heavy handed on liberty is not tough on terrorism, and careless of justice is not tough on terrorism.

The Bill is a bad measure, although it has been improved somewhat by the Lords. I recommend to hon. Members that we accept all the Lords amendments, let the Government use the improved Bill, but, most of all, allow Parliament to write a better one before the year is out.

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