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Mr. Grieve: No. I want to bring my comments to a conclusion.

The Government have also objected to all the other proposals made in the other place to improve the Bill. I do not understand the Government's continuing insistence on reasonable suspicion rather than the balance of probabilities. There is no justification for that stance particularly as, again, it offers a different test from that in derogating orders.

Vera Baird: Will the hon. Gentleman give way?

Mr. Grieve: No. I am sorry, but I must make progress.

There can be no logical reason for that distinction. The Government's refusal to have a full Privy Council review is extraordinary. If the Government want the Bill, they can have it. It can be on the statute book later tonight, but a little reasonableness would be helpful. We have been subjected over the past week to vitriol, bullying and, now, petulance. The petulance extends so far that No. 10 appears to be briefing that there will be a general election on this issue unless the Opposition give way.

This is an issue of conscience, and should be so for every Member of this House. Nothing will induce me to allow the Bill to pass in its present form and every hon. Member should consider carefully the duty they owe to their constituents in respect of ensuring that liberty is maintained in this country. In particular, the Government's refusal to accept the sunset clause highlights the fact that they are untrustworthy on this legislation, and the Home Secretary has done nothing to dispel that distrust this evening. I ask the House to support the Lords amendments and to enable this matter to come to a rapid conclusion.
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6.30 pm

Mr. Deputy Speaker: I call Mr. Marshall-Andrews.

Chris Ruane (Vale of Clwyd) (Lab): Oh, good!

Mr. Robert Marshall-Andrews (Medway) (Lab): We have another half an hour, and I will not speak for very long, because other Members may wish to speak, including the hon. Member for Vale of Clwyd (Chris Ruane)—I am sure that he has a serious and interesting contribution to make.

My point concerns review by the judiciary of derogating and non-derogating clauses. I take the view that the House was seriously misled yesterday and when we debated the matter before. This is a central issue. The Government make a distinction between derogating and non-derogating issues; I do not accept that distinction, but the Government make it. In respect of derogating issues—house arrest—the Government provide that the court will have full powers to look at the facts and to come to its own conclusions. So far, so good. I would reluctantly accept that, if it were the case for all the orders.

Non-derogating orders are not mere chaff in the system. They will involve people's right to work, to associate and to move, and their being tagged and electronically monitored. They are as close to the pass laws in South Africa as it is possible to get, and they are a serious matter. The question that the House must ask is whether there will be proper judicial review of those proceedings. The House has been told on several occasions that there will be, because the court will be allowed to consider the orders, but it may do so only on the basis of judicial review. The basis of judicial review does not allow a court to reopen the case and look at the facts on which the order was made. It is worth repeating that point time and again. Assurances to the House, whether from Front or Back Benchers, and from people who should know better, are simply wrong. The House must take that on board.

Vera Baird: Will my hon. and learned Friend give way?

Mr. Marshall-Andrews: There is no distinction to be made—[Hon. Members: "Give way."] After my next few sentences, I shall give way.

There is no distinction to be made between whether such an order gets to a judge on appeal or as of right. The same process will be applied—namely, that the judge will apply the constrictions of judicial review. That is what my hon. and learned Friend the Member for Redcar (Vera Baird) objected to initially—realistically and properly—and I supported her. She now supports the change that has been made to the Bill, but it is precisely the same test, of judicial review. The House should understand that no judge will be able to
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look at the facts of the matter. It is essential to take that on board when hon. Members vote on whether the non-derogating orders should be accepted as they stand.

Vera Baird: Is my hon. and learned Friend giving way?

Hon. Members: Yes.

Mr. Deputy Speaker: Order. Let us clarify the situation. Is the hon. and learned Gentleman giving way?

Mr. Marshall-Andrews: Yes, Mr. Deputy Speaker.

Mr. Deputy Speaker: The hon. and learned Gentleman has not yet completed his remarks. I call Vera Baird.

Vera Baird: Thank you, Mr. Deputy Speaker.

My hon. and learned Friend knows well that if a judge is asked at the outset to consider whether there are reasonable grounds on which one can, as Home Secretary, suspect that a person is engaged in terrorism, the only possible way to reach a judgment is for the judge to look at the evidence and form a view. My hon. and learned Friend must not mislead the House about that.

Mr. Marshall-Andrews: That intervention would be valid were that the test, but it is not. As my hon. and learned Friend well knows, the test is whether the judge feels, not that the decision was wrong based on the facts, but that it was obviously flawed—not that the decision is wrong, or that the judge disagrees with it, but that it was obviously flawed. That is the test of judicial review.

I am not entirely sure what "obviously" means in the present circumstances. Can a judge say, "Well, I thought the decision wasn't obviously flawed. Having looked at the background, I think it was flawed, but initially it was not obviously flawed"? What is a judge to make of the provision? I have not the remotest idea. It is bad to pass a statute that affects the liberties of our citizens based on such an amount of doubt. I simply ask hon. Members to take that on board when making their decision on this particular issue.

Mr. Win Griffiths (Bridgend) (Lab): I have already admitted that I am not a lawyer, but I have looked at clause 7, which states:

(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order".

Clause 1, which will become section 1, empowers the Secretary of State to make an order

It seems to me that the judge cannot decide whether the Secretary of State's decision was flawed without knowing the basis on which the Secretary of State made that decision.

Mr. Marshall-Andrews: Precisely. [Laughter.] I hope that hon. Members realise that this is not a flippant
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point but a serious one. Of course the judge must look at the reasons. Having done so, a judge may think that he would not have acted in the same way, or that what the Secretary of State did was wrong, or that his decision was wrong. Nevertheless, what he must conclude is that the decision was obviously flawed, and he must do so applying the principles of judicial review. Judicial review comes from the prerogative writs—ancient writs in this country—which were always and deliberately set out on the basis that judges should not question decisions taken by the Executive—quite right, too. Hear, hear; I agree—they should not. That is the basis of judicial review. That is its whole life and mainspring in the legal system.

Mr. Edward Garnier (Harborough) (Con): I congratulate the hon. and learned Gentleman on trying to explain to people who will not have read the Bill before they vote for it precisely what they will be doing. Judicial review involves looking at the process, not at the substance of a decision. What hon. Members will do blindly, if they do not listen to him, is pretend that the review is a proper form of appeal. It is not. Please, will he continue to say what he has to say with greater force and clarity?

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