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Mr. Denham: Will the right hon. and learned Gentleman give way?
Mr. Clarke: I cannot give way to the right hon. Gentleman. I will just complete my five minutes before I resume my place. I realise that he is on the side of the angels, but his particular angel is being too naive if he thinks that we are half way near to getting the sort of terrorism legislation that the House should approve, in any circumstances, once it is given the proper time to debate it.
6.45 pm
Vera Baird: I am not going to pretend that the Bill is perfect, but now the situation is plain: control orders will not be made by the Secretary of State and they will all have to be made by application to the court and a judge, save for urgent non-derogated orders. I accept that such orders will be rare, as my right hon. Friend the Home Secretary said, but these are extremely important matters. Government Members who have held out for the applications to be made to the judge first would not like the court to be sidestepped if every application were claimed to be urgent because it dealt with terrorism. I therefore rely heavily on my right hon. Friend's assurances that it will be only in rare cases that the court is sidestepped.
Decisions will be made by judges, not the Home Secretary, who has Executive responsibility for national security and who will carry the can if he has too light a touch with suspected terrorists and an incident occurs. That responsibility is a strong wind blowing in one direction and the most civil libertarian Home Secretary would find it difficult to balance it against the civil liberties of the person from whom they are told the danger is coming. A judge does not have that Executive responsibility. His professional role is to be completely separate from the Government and objectively and with reasoning to make a judgment between the Government concerned and the ordinary liberties that hon. Members, I and the defendant all share. From that point of view, the judge's decision is fairer and better and there is a better calibre of scrutiny all round. Detention is not Executive detention if it is imposed by a judge who is satisfied that the Home Secretary's application passes the test in the statute.
Vera Baird: I regret that I cannot give way, because I have to hurry.
I shall return to the test in the statute in a minute. However, I wish that we had never even started to talk about Executive detention. We have now moved away from that completely. Talk of Magna Carta has clogged the airwaves for several weeks, but it was simply not
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necessary. It is a far from perfectly analogy, but the orders are recognisably similar to antisocial behaviour orders. Someone applies for an antisocial behaviour order, often on hearsay, and information is collated by a local authority noise inspector or by a police officer who was not present when the incidents occurred. Following a complaint that someone has behaved in an antisocial way—they have not committed a crime, but they offer a risk—rules are imposed and the recipient of the order cannot go into a particular area, must wear a tag and must be in their home after 10 pm. It is not the same as a control order, but it is in the same ball park. Anticipating that someone is engaged in terrorism, we will require him to follow orders imposed by a court to protect the public from risk.
Turning briefly to the test, there is a major question to be asked—is the standard of proof good enough? We are arguing about two different requirements. Are there reasonable grounds to suspect that someone is a terrorist, or is it more probable than not that he is a terrorist? That it is not half as important as the question of whether he can answer the charges against him. In most instances in which there are reasonable grounds to suspect that the guy is a terrorist, that is unlikely not to be the case. If there are reasonable grounds to suspect that he is a terrorist, he probably is one. In my own view, I must tell the House plainly that, where there is evidence providing reasonable grounds to suspect that he is a terrorist, a judge should impose restraints on him to stop him carrying on in that way.
Far more important than that almost but not quite arcane point about the standard of proof is the condition that the suspect must have the best opportunity to answer the case against him. I have been greatly cheered by the attitude of my right hon. Friend the Home Secretary to reviewing the system of special advocates.
It is clear that, at present, defendants in this position will not talk to their special advocates because they regard them as appointed by the Attorney-General, who is often their opponent in these very cases. It is imperative that these people should have faith in their advocates and be allowed to pick from a security cleared list of barristers, so that they have their own choice of person. Then the advocate can see the defendant, take a long and detailed history over the relevant period, then see the secret intelligence and hope that he has the instructions to answer the allegations. If he has not, my right hon. Friend has also indicated that he would be willing to discuss a system where, in that situation, a special advocate lists the questions that he wants to ask and approaches the judge as to whether he may be able to ask them without endangering intelligence. This is as good as it is ever going to get.
That is extremely reassuring. We all wish people who are suspected of terrorism could be brought to the criminal courts and tried. Now, one cannot do anything else to these people until one has ascertained that they cannot be tried. That, too, is hugely reassuring. I do not see that a sunset clause in November would help anyone at all. There is supposed to be a general election in May. It will take us until June to be sworn in again. By July, we will be in recess until October. A long time for
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reflection is needed to improve upon the Bill, and November has nothing to do with it. It will be reviewed in a year.
Mr. McWalter: Will my hon. and learned Friend give way?
Vera Baird: No, I do not have time and others want to get in. I am about to conclude.
Let me make a short list. One has to exhaust the possibilities of prosecuting before one can make an order. One can get an order only if one goes to a judge and the Home Secretary has a positive attitude to ensuring that the defendants get a better deal out of their special advocates than they get now. That is good progress towards an acceptable Bill. The people who are in Belmarsh will be coming out on Friday. We can, in my view, with greater contentment than I thought possible last week, vote now for the Bill.
Sir Patrick Cormack : The hon. and learned Member for Redcar (Vera Baird), for whom I have considerable respect, is rather too easily persuaded. There is a great degree of consensus in the Chamber tonight, and between the Chamber and the other place, first, that some legislation is necessary—we accept that, albeit reluctantly; secondly, that the Bill is wholly unsatisfactory; and thirdly, that the way in which the House of Commons has been treated by the Government in general and the Home Secretary in particular is nothing short of disgraceful.
We have had three hours today, ending at 7.5 pm, to consider a raft of amendments passed by the House of Lords, which had a couple of days in Committee to crawl over the Bill and to improve it. We will have had three hours, of which the Home Secretary took an hour and 10 minutes or more. My right hon. Friend the Member for Haltemprice and Howden (David Davis) made an admirable speech from the Front Bench, and spoke for about half an hour. The rest of the House of Commons, including the Liberal Democrat Front-Bench spokesman, has had less than an hour and a half. That is a disgrace.
I hope the Home Secretary will recognise that such treatment of Parliament and of the elected Chamber, which is supposed to have primacy, is something of which he ought to be deeply ashamed. He should be all the more ashamed when we are dealing with such a far-reaching subject that touches upon the liberty of the individual. I am one of those who have some sympathy with what the Government seek to do, but I feel nothing but disgust for the manner in which they have done it.
I urge the Home Secretary to think again about the sunset clause. Reviewing the Act every year is no answer because, as others have pointed out, when the Act comes up, it has to be accepted or rejected. Whoever is the Home Secretary, we are under pressure to do that. The Home Secretary has only one point of substance in his opposition to the sunset clause, and that is the timing of the sunset. My right hon. Friend the Member for Haltemprice and Howden made it plain that the sunset need not necessarily be in November. Let it be at the end of the year, at the end of January or even a year from today, but there should be a sunset clause so that this wholly unsatisfactory, imperfect, intrusive, draconian
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legislation can be properly examined, so that there can be pre-legislative scrutiny of whatever is put before both Houses, so that there can be full consideration in both Houses, and so that Members in all parts of the House can contribute to the debate in a way in which we have not been able to do hitherto.
I make this plea to the Home Secretary: let the sunset be later than November, but there must be a sunset. He proposes to foist upon the country an imperfect, appallingly drafted Bill. The other place has tried to improve the Bill, and it has improved it in some measure, but he does not want its improvements. He wants the Bill on the statute book, and he wants it to be reviewed annually, but it should not be.
The Bill is far too appalling for any Government to take any pride in it, and the Home Secretary should at least rescue some of his reputation, if he has any left.
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