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Mr. Frank Dobson (Holborn and St. Pancras) (Lab): I am trying to recognise the dilemma in which the Government find themselves, as they try to find a way between the requirements of security and our traditions of the rule of law and natural justice.
I do not support the sunset clause. Like probably everyone in the House today, I accept that it is unlikely that we shall get this legislation right. It will need sorting out. After the general election, the Government propose to introduce new legislation on terrorism, which will probably command broad support. We shall have to look at that and other terrorism legislation in the statute book and try to come up with something better, but the idea that it can be done by November is preposterous.
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No work will be done on those measures between now and the general election. There will be turmoil for a few weeks after the general election. There will then be a few weeks of Parliament going about its normal business. Then there will be a recess followed by the party conferences and we shall actually get down to this business, which should be at the heart of what the House is doing, only in Octoberfive or six weeks before the due date of the sunset clause. The idea that the sunset clause would enable us to look rationally, deeply and carefully at the legislation is preposterous and anyone who thinks about it would have to recognise that.
I do not understand why my right hon. Friend the Home Secretary is not prepared to accept the position of the House of Lords on the lesser orders. As I said during the previous debate on the Bill, we can assume that the people who will be subject to house arrest are the most dangerous ones. He has conceded that the judge will take the decision in those cases and I cannot really understand why he will not concede that the judge should take the decision in the lesser cases. That seems to amount, roughly speaking, to administrative convenience, and we should not support that. It is still not clear to menon-lawyer that I amwhether the judge will be able to look at the facts in all cases, or whether the suspect will know enough about the charges to be able to challenge them, and we need to look very carefully at that.
On the burden of proof, I have not followed the logic of my right hon. Friend the Home Secretaryhe is a good friend of minein that he says that we do not need a high burden of proof because this is not punishment. He is quite right: the burden of proof that we need for punishment is that of being guilty beyond reasonable doubt. Nevertheless, people's liberty will be interfered with, and I must admit that I find myself somewhere between "balance of probability" and "reasonable suspicion". We are in that territory. If we had had enough time to think about that, we might have even come up with a novel definition somewhere between those of balance of probability and reasonable suspicion.
The other point that I would make is that my right hon. Friend the Home Secretary cited certain cases where judgesof course, they are not always right, nor is the Appellate Committee of the House of Lordsand said that reasonable suspicion was all right, but those cases applied to people who were not British citizens. We are talking about an extension of that approach to British citizens for the first time in our history, and I personally cannot, and will not, do that.
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I would welcome an opportunity to look at the legislation in perhaps a year's time, when we have all had the opportunity to do so very carefully. The House, which is elected to protect not only the security of the country, but rights to natural justice and the rule of law, could look at it very carefully and we would have done our job properly, which no one can possibly even assert that we have been able to do in the preposterously short time that has been available to either us or the House of Lords.
I once checked on the passage of the Bill of Rights in 1688. It went to and fro, from the Lords to the Commons and back again, and the Commons eventually gave way because the king prorogued the Parliament and they beat him to it, but I have to say that the House of Commons was then in favour of protecting the rights of the individual and the Lords were against doing sosadly, it seems to be the other way round today.
Mr. Kenneth Clarke: I have the great pleasure of having five minutesI hope to limit myself to thatof the 20 left to the House to discuss this entire measure, and it is a privilege to have any portion of the three hours that we have been allotted. I might be able to beat five minutes because it seems to me that a very large number of those hon. Members who have taken part in the proceedings have got as near to a consensus as we did a little over a week ago, when we supported the amendment moved by the hon. Member for Bridgend (Mr. Griffiths) and got very near to defeating the Government. There is an enormous degree of consensus, with various Members expressing discontent on both sides of the House. Most of us accept that something like control orders need to be introduced, most of us accept that some special procedures need to be introduced and most of us fully acknowledge our duty to look after the security of this country.
The hon. Member for Bridgend, who courageously pressed his amendment last week, has been persuaded that somehow all has now been satisfied. I accept that the Home Secretary has tried to make concessions. I suspect that he has had difficulties with some of his colleagues in making them. He has tried to meet us but he has not in any way resolved the difficulties surrounding the Bill, in my opinion.
All that I can do is express my frustrations with the enormous issues that are not resolved, which cannot be resolved in the next hour or two, and which cannot be resolved by both Houses in the time remaining before a general election. There is the question, which the hon. Member for Bridgend pressed, about who makes the decision on a control order for the lesser degree of control orders. The Secretary of State is going back to giving himself the power to make the order and subjecting himself to judicial review. I have not practised law for a quarter of a century, so I shall leave others to argue what the up-to-date position is, but I am sure that judicial review does not mean that the judge starts all over again and decides what makes the original decision, on what he regards as the merits. It is a lesser procedure of challenge. It is certainly less than the concession that has been made on the more important control orders. Otherwise, why have the Government gone back to bring in judicial review and not allow the lower orders to be subject to the same process?
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There is the question of who determines whether prosecution would have been the proper procedure. I am not content with consulting the police and prosecution authorities before the Home Secretary decides whether or not he would rather go down the route of a control order with the powers that we are discussing.
The burden of proof seems to dissatisfy almost everyone who has spoken this evening. It is astonishing that we are being asked to agree that someone who is probably not guilty of the allegations should be made subject to such severe restrictions on his liberty and livelihood. We would not accept that for a parking ticket, but we are being asked to accept it for a control order. There is an area yet to be developed about how far the accused person should know the nature of the charges against him. His advocate will not be allowed to go back to him once he discovers the true nature of the charges against such a person. That person will not be given even a general description of what actually will lead to him losing his liberty.
I disagree with only one point made by the right hon. Member for Holborn and St. Pancras (Mr. Dobson). I urge the House and the other place to stick to the idea of a sunset clause. We all know that we have to have legislation in place by this weekend. We know also that the legislation that we have is not what the Home Secretary would have wished. We have had no chance to change it but the other place has had three days and it has knocked it about considerably. I suggest that the Government should take the powers that they will have and then we should all agree that, after the election, a fresh piece of legislation should be introduced. We should have a Second Reading, an organised Committee, consideration on Report and a Third Reading before the measure goes to another place.
No amendments were tabled and considered, except those presented by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), along with a crowd of amendments covering the entire Bill. It is a bizarre means of proceeding. The House spent more than 700 hours considering fox hunting, yet it is debating the substance of this Bill in three hours in bizarre procedural terms. It is clear that we should return to the matter and have proper legislation.
Whichever party wins the next election, there will be no difficulty in getting a majority of the House to agree that pretty severe measures, with some unfortunate derogations from our individual liberties, are required to tackle the serious problem of terrorism. We are told no. Some Labour Members say that a concession would be an annual review. I am not going to return to sterile arguments about why some Members were voting on the opposite side when we had annual reviews on the control of terrorism legislation. The right hon. Member for Southampton, Itchen (Mr. Denham) used to vote against them and I used to argue in favour of them. We all agreed, however, on the rest of the measure. We were arguing only about exclusion orders. They stopped somebody who had been living in Ireland for some time getting off a ferry when it reached Liverpool. That person would be sent back, and Labour Members objected to that. We should bear in mind how far we have slipped from then. Look at what we are talking
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about now. Look at what the right hon. Gentleman is advocating now. He thought that there was a matter of principle.
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