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Mr. Marshall-Andrews: I am not sure that I shall accept that invitation, generous though it was. I make no apologies for being a lawyer. There are charlatans in my profession, as there are in every profession. Equally, we can number in my profession some of the finest politicians, alive and dead. They have made their contribution in their time, and it has often been in the field of civil liberty—precisely the subject that we are discussing. It is in that spirit that I make this contribution.

I do not wish the House to be misled into passing legislation and believing that it is giving to judges a power that the Bill manifestly and obviously does not give to them, will never give to them and should not give to them, under judicial review, because to extend judicial review is, by definition, to diminish the power of the House and its Ministers. That is why judicial review exists, and why it is so heavily circumscribed. To suggest that we are giving judges the power to strike down Ministers by judicial review is—I am sorry—casuistry, and should be treated as such.

Vera Baird rose—

Mr. Marshall-Andrews: No, I have already given way. [Hon. Members: "Go on!"] As I am encouraged by those surrounding me, of course I will give way.

Vera Baird: I am glad that my hon. and learned Friend accepted that he was outnumbered. There must be a real danger that the public watching us now think that we are two QCs arguing about how many angels one can get on the head of a pin. For the avoidance of doubt, and since my name has been used and, I think, been used slightly badly, may I make it plain that a test whereby a judge of the High Court will consider, on all
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the evidence, whether there is reasonable cause to suspect that a person is engaged in terrorism is a satisfactory test, as far as I am concerned.

Mr. Marshall-Andrews: So my hon. and learned Friend has said. Of course we are talking about law. The Bill makes law. It is impossible to avoid that. It is making immensely bad law, and that is why we must talk about it. I have said what I said, and shot my bolt on the issue, and I hope that some hon. Members, at least, will take on board what I say in the spirit in which I am saying it.

I come to the sunset clause; the time has now been extended to a year. What we are giving birth to here, if we give birth to it at all, is a very malformed animal indeed. In saying that, I enjoy the support not only of people who have fought the Bill throughout, but of people like my hon. and learned Friend the Member for Redcar and many commentators who believe that the Bill is seriously malformed. The Bill cannot be resuscitated and cured, by definition. What we need is a rebirth. We need a new Bill and we need it quickly. The period of a year, which has been proposed in another place by a noble Lord of my party, is worthy of support. One year is enough. We need to bring back in a year not this old malformed Bill, resurfaced and rehatched, but a new Bill to deal with the problems of terrorism, which are undoubtedly real.

Mr. David Heath (Somerton and Frome) (LD): It is a great misfortune that again we have such an abbreviated debate on this important Bill.

I should like to think that the Home Secretary and others in the Chamber recognise the high level of agreement between parties, between Benches and between Houses. We all agree that there is a serious threat of terrorism. We all agree that there is a need to take appropriate measures to combat it. Most of us agree that, regrettably, control orders are probably part of the apparatus that is required. We have been prepared to accept that there needs to be an emergency process that enables the Secretary of State to apply for those control orders, even on the grounds of reasonable suspicion. Those in another place who have considered the Bill have done an extremely good job of tabling amendments that work and make the Bill better.

The Home Secretary should have no doubts about whether he will have his Bill, because he has it already. The Bill is workable, and it is for him to take it. It is not good enough to suggest that either a recalcitrant upper House or an obstructive Opposition in this Chamber is stopping him having what he needs in order to combat terrorism effectively.

6.45 pm

Which extraordinary suggestions from the other place does the Home Secretary propose to remove this evening? He proposes to remove the power of the Lord Chief Justice, rather than the Lord Chancellor, to make rules of court. A few weeks ago, we considered the abolition of the post of Lord Chancellor, and it is absurd to suggest that as a matter of principle the Lord Chancellor must make rules of court rather than the Lord Chief Justice.
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The Home Secretary has asked us to reject the contention that article 6 of the European convention on human rights should be addressed on the face of the Bill. That is ridiculous, but he insists that he will not budge. He could help the House this evening by making it explicit that the process will not accept evidence gained by torture under other jurisdictions, but he has not made that expressly plain.

Mr. Charles Clarke: I have given that exact assurance in this House, and to the Joint Committee on Human Rights and the Home Affairs Committee.

Mr. Heath: I am grateful to the Home Secretary.

I am also grateful to the Home Secretary for accepting Lords amendment No. 42D, which is extremely important because it sets out the rules by which possibly exculpatory evidence could be disclosed to defendants or their representatives. Although that mechanism would be imperfect in normal criminal proceedings, it is a great improvement.

Mr. Clarke: May I take the opportunity to confirm that that is the case, and that we are ready to examine further ways to improve the process involving special advocates?

Mr. Heath: We are making significant progress in that area, and more progress remains to be made.

It is extraordinary that the Home Secretary persists with the artificial distinction between derogating and non-derogating orders. Indeed, many Labour Members have said that there should no difference in legal process between those two types of order.

Chris Bryant: Will the hon. Gentleman give way?

Mr. Heath: No, we do not have time. The hon. Gentleman voted for the timetable motion, which prevents debate. [Hon. Members: "Hear, hear."]

There is no logical reason for a separate judicial process between derogating and non-derogating orders, and I still hope that the Home Secretary will agree that matter with us.

On the standard of proof, we have a significant disagreement, and the Home Secretary has not yet established to my satisfaction why the balance of probabilities is an inappropriate test to decide whether someone should lose their liberty. I believe that that test is appropriate, but he has told me that the security services require that the test should be based on reasonable suspicion rather than the balance of probabilities. That simple assertion is not enough, and I invite him to provide us with evidence that will allow us to understand why he believes that the balance of probabilities is not the appropriate standard of proof.

The Home Secretary has asked us to remove the reference to the Director of Public Prosecutions—which, incidentally, is in the wrong part of the Bill—and argues that the matter should be put before a chief of police. However, we have argued for years that the prosecuting authorities rather than the police should
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decide whether to prosecute. Why is he taking that retrograde step, and why on earth should that be a sticking point?

The Home Secretary has asked us to remove the provisions for a Privy Council annual review. Notwithstanding the concerns about the future employment of my noble Friend Lord Carlile—I hope that Lord Carlile or someone else will have the opportunity to continue as an independent reviewer—the Privy Council is a useful mechanism for examining the performance of the legislation in action.

The position on the sunset clause is the biggest absurdity of all. We have a Labour peer—Baroness Hayman, previously a Member of this House—putting forward the eminently sensible suggestion of a sunset clause, to come into effect after a year, for this legislation, which is acknowledged on all sides to be temporary, emergency and not entirely well considered.

Chris Bryant: That is not acceptable.

Mr. Heath: The hon. Gentleman says from a sedentary position—I am happy to read him into the record, as he is so desperate to get into it—that that is not acceptable. So what is not acceptable? We are told that it is unacceptable for the legislation to cease to have effect after a year, but acceptable for the House to reject it after a year as a renewal. We are told that it is not acceptable for the House to improve the Bill, but acceptable for it to reject the Bill. In any case, we are told by Baroness Scotland that by that time we will have new and better legislation, because, as she virtually admitted to the other House, this legislation is defective and we can do better—in other words, there is no need to worry about the renewal because something else would already be on the statute book. Yet if there is no need to worry about renewal, why is there any need to worry about a sunset clause? There is no logic in that position. It is unacceptable for the Government to hide behind it as a pretext that that is a bar to their having their legislation.

To say that to accept a sunset clause is to send a signal to the terrorist is the worst argument that I have ever heard. That is to say that al-Qaeda operatives all over the world are waiting to hear whether we are going to have a sunset clause or a renewal facility on 31 March next year, and if we make the right decision they will be satisfied and put their bombs away.

This is an absurdity. The Government have it within their power to have their legislation tonight—they will have it within an hour or two if they take the necessary steps. They have moved a very long way in several areas; we are grateful for that. They have a couple more steps to go, and then they will have their legislation. But if they do not take those steps—if they believe that the sunset clause is the sticking point that prevents them from having their legislation—not only will they look absurd, but we can only conclude that they did not actually want this Bill in the first place.

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