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Mr. Beith : I should point out that the ISC does not look at the individual evidence relating to individual cases. I do not speak on behalf of the Committee on this point, but it would be a major departure for it to become involved in adjudicating on how sound the evidence was in individual cases. One should perhaps therefore look elsewhere for a procedure to meet that requirement.
Mr. Griffiths: The right hon. Gentleman can perhaps correct me on this point, but I wonder whether the Committee would be able to consider the issues in specific cases to assess the value of the evidence against the information it received in the normal run of its examination of intelligence and security matters. I would have thought that the Committee's members would be an eminently suitable group of people to assess whether the evidence was of sufficient quality to enable a judge to make a decision.
My right hon. Friend the Home Secretary made it clear this afternoon that he accepted that the measures were temporaryalthough we do not know whether they will last one year, 10 years or 20 yearsand that he would seek to develop a consensus about new legislation to deal with terrorism that would mean that this
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legislation would not have to be used. Although my right hon. Friend is not willing to accept amendment No 31, he made it clear that he would consider some of the wider points about trying to achieve a consensus through some sort of Privy Council committee, if not a Newton-style committee. I accept that the legislation is not perfect, but my right hon. Friend has moved
David Taylor (North-West Leicestershire) (Lab/Co-op): My hon. Friend tabled an amendment that was defeated by only 14 votes last weekand many hon. Members will hang on his answer to the following question. Despite the Bill's residual flaws, is he content that it should reach the statute book in its present form, with the standard of proof for non-derogating orders remaining suspicion only and charges not necessarily being communicated to the defendant? Could not it still have come straight from "The Trial" by Franz Kafka?
Mr. Griffiths: We can always compare issues in a drama on a stage with what happens in real life, but I believe that the Secretary of State has accepted the fundamental point that he will not make the decision himself, but put the matter to a judge, after which the case will go to a High Court hearing. There will be an opportunity for the evidence to be examined at that hearing, so we have made significant progress.
Mr. Grieve: As I read amendment (a) to Lords amendment No. 1, the Secretary of State is taking back the power to make the orders. I have listened to the hon. Gentleman carefully, but I am worried that he might have been misled by what the Government have told him.
Mr. Griffiths: The hon. Gentleman might be saying that the Government Front Bench is misleading me, but my view, after reading the amendments, is that the Secretary of State will make an application to a judge for a non-derogating order[Hon. Members: "No."] Well, the Secretary of State will make an order that will be put to a judge so that the judge can decide whether it is right before it is implemented. The judge will be able to reject the order, which would mean that it would not be implemented, or to amend it if he thinks that the Secretary of State's proposal is disproportionate.
Mr. Grieve: I must say to the hon. Gentleman that there is a clear difference between an order that is made by a judge and an order that is made by the Secretary of State and presented to a judge for ratification. We have been trying to debate that matter this afternoon. If it has been suggested to him that those orders would be one and the same, he is being misled.
I am not saying that the orders would be one and the same; I am saying that a non-derogating
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order made by the Secretary of State could not be implemented unless a judge approved it. If a judge approved it, the case would go to the High Court for further consideration so that the person subject to the order could build up a defence of his position. The Government are examining ways of improving the operation of the special advocate procedure so that such defences can be more effective.
Given the situation in which we find ourselves, rather than having no protection at all we should accept the provisions and the Secretary of State's offer to examine the broader situation over a slightly longer time scale. The Bill gives both Houses the opportunity to vote annually on whether to renew it, so an annual sunset clause is built into it. That is why, even though the Bill is not perfect, I am prepared to support the Government tonight.
Mr. Hogg: I am grateful to Mr. Speaker for selecting amendment (a) to Lords amendment No. 8, which stands in my name and is designed to ensure that there is due process. Before I speak to the amendment, however, I want to say something about the Prime Minister. He, along with the Home Secretary, has told the House several times that he is acting on the advice of the intelligence and security services. However, he also told us that when he said that there were weapons of mass destruction in Iraq. Let us remember a clear finding of the Butler report: the Government did not fully or accurately represent to the House the contents of the intelligence reports that they were receiving. That being so, I say to the Prime Minister and the Home Secretary that if they wish to rely on such advice, they would do well to place it in its written form in the Library of the House of Commons, because otherwise I question it.
I am conscious that we have only a short time for the debate and that many other right hon. and hon. Members wish to speak, so I shall be brief. I shall not go on at any length about the deplorable nature of our proceedings or, indeed, the Bill. I shall focus on justice, because the one thing that we should be asking ourselves is whether what we are doing is just in the broadest possible sense. Let us remind ourselves that these control orders, whether they be derogating or non-derogating, restrict the liberty of the citizen to an extraordinary extent. The derogating orders will keep people in custody; the non-derogating orders can destroy their livelihood and their social existence.
The orders are of profound consequence, and that is no doubt why the American constitutionthe fifth amendmentwould prevent the American Government from doing just what we are doing. The only place they can do it is in Guantanamo bay because the American constitution does not protect people in Guantanamo bay. What we are doing today is what the
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Americans are doing in Guantanamo bay, but cannot do on the mainland of the United States. I find that a deplorable and shameful thing.
The point I am making to the House is not so much about the identity of the person making the order, although it is better by far that the judge should play a prominent partwhat really matters is the process. What material will be placed before the person making the order, on the basis of which somebody can have his liberty and livelihood destroyed? It is at that point that I come to my amendment, which is a modest one. I ask the House to consider it.
First, the detained person should have reasonable notice of the proceedings. Who could quarrel with that? Next, the detained person should have a summary of the allegations. Who could quarrel with that? Next, unless the judge orders otherwise, and that is a protection to the Crown, the detained person should know the nature of the evidence against him or her. Otherwise, how can he instruct the special advocate? Next, he should be present throughout the proceedings. Next, he should be able to give evidence and call witnesses. Next, he should be able to submit relevant documents. Next, he should be able to ask questions of those who are accusing him. Those are the basic rights that we demand of any court in any civilised country.
If we deny people those rights, we deny them justice. I have practised in the courts for 40 years or morein the same type of courts as the hon. and learned Member for Medway (Mr. Marshall-Andrews). We know that grave injustices occur even within the judicial system as it exists in the criminal courts. It is certainabsolutely certainthat grave injustices will flow from that which we are doing today.
I say to the House and to Members in the other place that we should not be party to such a disgraceful interference with political and legal rights. We are betraying our country. We are betraying our constituents. We should uphold the House of Lords in all its amendments.
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