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"I am advised that I can give the assurance that the hon. Gentleman is looking for: the proposals that I have established will not interfere with habeas corpus."[Official Report, 28 February 2005; Vol. 431, c. 692.]
On the issue of the balance of proof, my view is that we should not lightly set aside the advice that we get from the Security Service, and I am confident that the process is sufficient to ensure that the level of restriction is justified by the level of evidence that is presented to the court. In those circumstances, we would do better to stay with what my right hon. Friend proposes. The level of scrutiny of this legislation, which has now been guaranteed, together with the fact that it will be annually reviewed, will give us the opportunity to revisit the matter in practice rather than having the somewhat theoretical debate that we are having this afternoon.
Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op): Can my right hon. Friend give me some guidance? Clearly, constraining people's liberty when there is only a 40 per cent. probability that they are in the category that should be constrained, as that is what reasonable suspicion can lead to, is an innovation. The Opposition spokesman said that such a person is hence probably not a terrorist. Clearly, it is still possible to justify detaining someone when there is only a 40 per cent. probability that they are a terrorist if the crimes that they might commit on release are so enormous as to compensate, as it were, for that lower level of probability. Is that what my right hon. Friend has in mind? If so, that gives us all pause for thought about the threshold and whether it is suitable.
Mr. Denham: I recognise my hon. Friend's argument, but I shall pick him up on one important point: he talked about release. Orders under this level of suspicion do not lead to detention. It would be a matter of some concern if they were to do so. At the lower level of restriction on someone's absolute freedom, I believe that the sort of test that he has outlined is justified as a precautionary measure. The measure is not equivalent to a punishment, detention in someone's home or locking someone up in prison. It is a prudent measure taken on the basis of the information that is available to protect the public. On that basis, we should support my right hon. Friend's proposals.
Mr. Heath: It is a pleasure to follow the right hon. Member for Southampton, Itchen (Mr. Denham). I was struck by his comment, near the beginning of his speech, that he expected the Bill to be in force for 10, 15 or 20 years. I suggest that if that is indeed the case, it deserves rather more than three hours' debate.
Despite my respect for individuals in another place, I take no pleasure in the fact that it is the unelected House that presented us with the Bill that we are considering today. This is effectively the third attempt at Second Reading, but it takes place in very restricted
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circumstances. The defeats incurred by the Government in the House of Lords were considerable. The Lords looked at the Bill and decided that it was beyond reasonable suspicion that it was a bad Bill, beyond the balance of probabilities that it was a bad Bill, indeed beyond reasonable doubt that it was a bad Bill, and that it was a Bill that they must amend.
Mr. Heath: The principles to which the Home Secretary adhered so firmly only a week ago appear to have shifted, especially in the context of judicial review. I listened to the Prime Minister at Question Time today, and I felt that he experienced some difficulty in distinguishing between principles and what was expedient. I found his explanation of why he rejected the sunset clauseto which I shall return shortlyincredible. He told us that it was impossible, because it was the clear advice of the police and the security services that we should not have such a clause. How absurd is that?
This is a parliamentary matter. This is a question of how we determine the laws of this country. I do not believe it is a matter on which the police and the security services either have an opinion or would vouchsafe an opinion to the Prime Minister.
Mr. Hogg : Perhaps the hon. Gentleman will remind the House that the outcome of the Hutton report made it wholly plain that the Prime Minister does not always give a full, clear or accurate account of the advice that he receives from the intelligence services.
That view has certainly been expressed. I think that in general, whenever the Prime Minister
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makes assertions of that kind, he would be wise to publish the material on which he bases those assertions. Sometimes there seems to be a substantial difference between the one and the other.
The Home Secretary is not an unintelligent man, and he has a proper regard for his duties. As has been pointed out, however, he has repeatedly suggested that he is making concessions. He is not making concessions; he is being defeated. He is being defeated by a House that does not agree with his proposalsnot by virtue of the votes of Opposition parties, but by virtue of the votes of members of his own party who have held senior office in that party, and members who have held judicial office and office in the senior ranks of the police service. So it would be wise if he were to take notice of what has been said.
There are basic principles on which we must be clear when we look at this legislation. We have said all alongI repeat the point for the benefit of the hon. Member for Watford (Claire Ward)that we recognise that a threat exists, and we want to find the right mechanisms to address it. [Interruption.] That is the principal responsibility of any Governmentand, indeed, of any Parliamentand part of the response to it is ensuring that the measures that we put in place are commensurate with the risks involved[Interruption.]
Sir Patrick Cormack: Does the hon. Gentleman think it pretty disgraceful that the Home Secretary, having given us only three hours in which to discuss this vast range of amendments, has now pushed off?
What are the principles that we wish to see espoused in the Bill? First, there is the very important point that a judge, rather than an elected politician, should take decisions on restricting an individual's liberties. I acknowledge that we are making progress in that area, but the Home Secretary is still determined to persevere with what is a very odd positionat least until his next defeat at the other end of the Corridor. He wants to promote this entirely arbitrary distinction between a derogating and a non-derogating order.
When we had this debate at the last time of asking in this place, it was quite clear that many Labour Members were entirely unpersuaded that there was a difference between derogating and non-derogating orders that required a different judicial process. Yet the Home Secretary is persisting in his view not only that such a distinction is necessary, but that the capacity in which a judge can act in the case of non-derogating orders is limited to judicial review, and that he cannot look at all the given circumstances. I simply do not accept that that
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is a reasonable distinction. We know that non-derogating orders can constitute a very substantial restriction on an individual's liberties, and we believe that a judge should take such decisions. They should of course be taken on the basis of evidence put forward by the Home Secretary, his having consulted the security services. The Home Secretary is indeed the starting point of this process, but it is the judge in court who should determine whether such restrictions should be made.
The second principle is the primacy of prosecution. The Home Secretary has repeatedly asserted that it is right that prosecution be the preferred route in the case of any individual whom we believe to be guilty of, or preparing for, terrorism acts. We agree. In fact, that is precisely what the House of Lords said in their amendmentwhich the Home Secretary proposes to delete this evening. Deleting it cannot be right. I accept that an alternative wording is inserted at a laterand inappropriatepoint in the Bill, requiring the police to continue investigating such cases and to satisfy themselves before an order is made. But that gives the Bill a very strange architecture, and it does not reflect the Lords' clear and unambiguous assertion that the Director of Public Prosecutions must be consulted before an order is made. We believe that there should be no ambiguity concerning control orders. They should be for a fixed period, but of course renewable if that proves necessary. The Home Secretary seems to have accepted that point.
An extraordinary argument has been advanced concerning the standard of proof. The right hon. Member for Haltemprice and Howden (David Davis) described the situation extremely well when he pointed out that these orders are to be placed on people who are probably not terrorists, by definition, according to the standard of proof that is to be applied.
There are two reasons why I believe that it is not unreasonable to have the balance of probabilities as the test. First, the starting point should innately be the "beyond reasonable proof" criminal test and we are coming down from that, not up, on the say-so of the Home Secretary. Secondly, these hearings are to consider material that is not admissible in a court, so there is already a lowering of the standard of proof. I have no quarrel with that. There are circumstances in which that is right, but if we are proceed with it, it must surely be linked in with the balance of probabilities as the very lowest standard of proof that is appropriate.
That is necessary if we are to ensure due process, which is a critical issue. I note the amendment tabled by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and commend it to the House. The issue was explored in the other place and we should continue to explore it. I do not accept that we can buy this pig-in-a-poke whereby there will be rules of court, but we are not allowed to know about them. At the moment, this House is apparently not allowed to share in the draft rules of court that are being prepared. In any case, we are told, this is a matter for the Lord Chancellor, not the Lord Chief Justice. I do not accept that: it should be a matter for the Lord Chief Justice and the rules of court should be clear about the admissibility of evidence derived from torture, for example. We wholly reject the idea that evidence derived from torture should play any part in any British judicial process. I
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simply do not understand why the Home Secretary is intent on removing the Bill's amended reference to compliance with human rights legislation.
We believe that if the Government intend to introduce house arrest at any stage in future, it should clearly be a matter for this Houseindeed, for both Housesto determine and that that should be stated unambiguously. We believe that the Government should be actively exploring issues such as the use of intercept evidence in respect of new offences such as committing acts preparatory to terrorism. Sensible suggestions have been made and I believe that the Home Secretary will consider them, which is an essential part of the preparation for what I hope will be a better and more effective anti-terrorism Bill that will be laid before the next Parliament.
That brings me to my final point, which is about the principle of the sunset clause. The reason for having such a clause is very clear. The legislation is imperfect and it is being rushed through Parliament, yet it needs the proper attention of both Houses of Parliament. It has been brought forward in haste, simply because nothing was done for three years to correct the deficiencies of previous legislation. We now face an unacceptable potential hiatus in our protections against terrorism. That is why we need emergency legislation to go through, but equally why such legislation should lapse. The sunset clause is therefore crucial.
It is quite wrong to suggest that annual renewal can provide any substitute for ab initio consideration of the legislation. There is nothing to stop the House re-enacting a similar Bill if, in due course, it is decided that that is the right thing to do. The problem with renewal is that that is the only option that the House will have. One can imagine the circumstances in a week's time. The Home Secretary will say that we have no protection against terrorism and ask why Members are prepared to reject the only protection that we have against it. If we only have the option of renewal, that is what will be put before the House.
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