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Vera Baird : So that nobody is misled by anybody on either side of this House, let me clearly set out my understanding of the position. The test in the Bill is very plain—are there reasonable grounds to suspect that the person is engaged in terrorism? The only way of assessing that is to look at the evidence and evaluate it.
 
10 Mar 2005 : Column 1777
 
The judge must act as the gatekeeper for the Home Secretary in evaluating the evidence and concluding whether his proposal is within a range of reasonable responses to that evidence. If he finds that it is outside the range of reasonable responses, he will quash it and it will never get off the ground.

There is an additional element that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—and he is my friend—missed out. Since the prerogative writs of the 17th century, the element of proportionality has come in as another important test that is, again, based on the evidence. That came in with the Human Rights Act 1998. What changed my mind was the putting of the judge first and requiring him to be responsible for these decisions—to gate-keep. I am satisfied that the judges will develop an excellent jurisprudence because of that responsibility, which will ensure the maximum amount of fairness for the individuals involved.

Mr. Marshall-Andrews rose—

Vera Baird: I want to move on because I have less time than my hon. and learned Friend took.

The Tories and the Liberal Democrats must not pretend that a sunset clause is the key to negotiations for new legislation because my right hon. Friend the Home Secretary has made it clear that he will introduce a new Bill.

Let me deal with the burden of proof, because it rears its head high.

Clare Short (Birmingham, Ladywood) (Lab): Will my hon. and learned Friend give way?

Vera Baird: I am sorry but I will not. [Hon. Members: "Give way."] I do not have time—[Interruption.]

Mr. Deputy Speaker: Order. The hon. and learned Lady is not giving way.

Vera Baird: I, too, know when I am outnumbered.

Clare Short: In a previous speech, my hon. and learned Friend said that the Bill was cobbled together, flawed and worrying. Surely the point of a sunset clause is that we have something, and also more time to consider the matter and reach greater consensus. Is that not a good idea?

Vera Baird: I do not think that I used the words that my right hon. Friend attributed to me, but I know what she means. No one is 100 per cent. satisfied that the measure is perfect, but my right hon. Friend the Home Secretary said that he will introduce a new Bill next year, in any event. Surely we ought to—[Interruption.]

May I deal with the burden of proof? All hon. Members appear to believe that that is important.

Mr. Marshall-Andrews: Will my hon. and learned Friend give way?

Vera Baird: I have only three minutes and my hon. and learned Friend has already taken up a good deal of time.
 
10 Mar 2005 : Column 1778
 

It is my clear view that hon. Members are misguided in concentrating on the burden of proof. The distinction between reasonable cause to suspect that someone is involved in terrorism and it's being more probable than not is not worth dying in a ditch for. Hon. Members should concentrate on firming up the admirable concessions that the Home Secretary made yesterday on giving defendants a better deal by reorganising the special advocacy system so that they are likely to get to know more about their case.

Differences in the burden of proof pale into insignificance next to the concessions that my right hon. Friend has made. If hon. Members are interested in justice for defendants, they should concentrate on those concessions so that they can be reduced to paper to ensure that the special advocate system will be examined and that defendants get a better deal. That is truly the right way forward. It was clear in yesterday's debate that, if Conservative Members take a realistic approach to justice for defendants, they will find my right hon. Friend helpful. He plainly suggested that yesterday. I therefore conclude that that is the obvious route to take. If Conservative Members do not take it, they must simply be playing politics because there is a clear way in which to improve the Bill now.

Mr. Kenneth Clarke (Rushcliffe) (Con): I spoke about judicial review yesterday and I agree with the speech that the hon. and learned Member for Medway (Mr. Marshall-Andrews) made earlier and with the speech that the hon. and learned Member for Redcar (Vera Baird) made on the same subject previously. Anyone who believes that a case has been made in which the merits of the issue are put in the hands of the judge has been misled.

With respect, I do not agree with the hon. and learned Member for Redcar that the difference between reasonable suspicion and the balance of probabilities is purely academic. No other part of the law is treated in that way. There will be cases in which there are plenty of grounds for suspicion but one feels that the man is probably innocent. If the Bill is allowed to proceed, someone in that position will be subject to all its rigours.

Let me consider briefly the advice of the Security Service—the new point on which the Home Secretary placed particular stress. Surely he could share a little more of the Security Service advice on the burden of proof and on the sunset clause. The only argument that I have heard advanced about the burden of proof is that the Security Service insists on it. I find that unlikely. If that is Security Service advice, it must have peculiar lawyers. I am sure that we shall revert to the point later and I should like the Home Secretary to let us know whether the Security Service says that we should have a balance of probabilities, not reasonable suspicion.

Vera Baird: Will the right hon. and learned Gentleman give way?

Mr. Clarke: No—I apologise.

On the sunset clause, is the Security Service saying that it is not acceptable for us to give ourselves 12 months in which to produce a new Bill, and do the Government believe that they have to press on with it for that reason?
 
10 Mar 2005 : Column 1779
 

The Downing street spokesman on behalf of the Prime Minister gave the genuine reason this afternoon. He totally prejudged this evening's proceedings. Downing street has instructed the Home Office to come along with all those reasons. The spokesman said that to amend the Bill further would send the wrong message to the terrorists and the police and security services, and that that applied not just to the sunset clause but to the burden of proof. The hon. Member for Somerton and Frome (Mr. Heath) exposed to ridicule brilliantly, I think, the idea that this is a message to terrorists. Everybody in the House is prepared to accept that there will be a fairly draconian Bill to protect the public if—

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [9 March].

Question put,

The House divided: Ayes 320, Noes 226.

Division No. 131
[7 pm


AYES

Adams, Irene (Paisley N)
Ainger, Nick
Ainsworth, Bob (Cov'try NE)
Alexander, Douglas
Allen, Graham
Anderson, rh Donald (Swansea E)
Anderson, Janet (Rossendale & Darwen)
Armstrong, rh Ms Hilary
Atherton, Ms Candy
Bailey, Adrian
Baird, Vera
Banks, Tony
Barron, rh Kevin
Battle, rh John
Bayley, Hugh
Beard, Nigel
Beckett, rh Margaret
Bell, Sir Stuart
Benn, rh Hilary
Benton, Joe (Bootle)
Berry, Roger
Betts, Clive
Blackman, Liz
Blair, rh Tony
Blears, Ms Hazel
Blunkett, rh David
Boateng, rh Paul
Borrow, David
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brennan, Kevin
Brown, rh Gordon (Dunfermline E)
Brown, rh Nicholas (Newcastle E Wallsend)
Brown, Russell (Dumfries)
Browne, Desmond
Bryant, Chris
Buck, Ms Karen
Burgon, Colin
Burnham, Andy
Byers, rh Stephen
Byrne, Liam (B'ham Hodge H)
Caborn, rh Richard
Cairns, David
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Campbell, Ronnie (Blyth V)
Caplin, Ivor
Casale, Roger
Caton, Martin
Challen, Colin
Chapman, Ben (Wirral S)
Chaytor, David
Clark, Mrs Helen (Peterborough)
Clark, Dr. Lynda (Edinburgh Pentlands)
Clarke, rh Charles (Norwich S)
Clarke, rh Tom (Coatbridge & Chryston)
Clelland, David
Clwyd, Ann (Cynon V)
Coaker, Vernon
Coffey, Ms Ann
Colman, Tony
Cook, Frank (Stockton N)
Cooper, Yvette
Cranston, Ross
Cruddas, Jon
Cryer, Ann (Keighley)
Cryer, John (Hornchurch)
Cummings, John
Cunningham, Jim (Coventry S)
Cunningham, Tony (Workington)
Curtis-Thomas, Mrs Claire
Darling, rh Alistair
Davey, Valerie (Bristol W)
David, Wayne
Davidson, Ian
Davies, rh Denzil (Llanelli)
Davies, Geraint (Croydon C)
Dawson, Hilton
Dean, Mrs Janet
Denham, rh John
Dhanda, Parmjit
Dismore, Andrew
Dobbin, Jim (Heywood)
Dowd, Jim (Lewisham W)
Drew, David (Stroud)
Drown, Ms Julia
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Ennis, Jeff (Barnsley E)
Farrelly, Paul
Field, rh Frank (Birkenhead)
Fitzpatrick, Jim
Fitzsimons, Mrs Lorna
Flint, Caroline
Foster, rh Derek
Foster, Michael (Worcester)
Foster, Michael Jabez (Hastings & Rye)
Foulkes, rh George
Francis, Dr. Hywel
Gardiner, Barry
Gilroy, Linda
Goggins, Paul
Griffiths, Jane (Reading E)
Griffiths, Nigel (Edinburgh S)
Griffiths, Win (Bridgend)
Hain, rh Peter
Hall, Mike (Weaver Vale)
Hall, Patrick (Bedford)
Hamilton, David (Midlothian)
Hamilton, Fabian (Leeds NE)
Harman, rh Ms Harriet
Harris, Tom (Glasgow Cathcart)
Havard, Dai (MerthyrTydfil & Rhymney)
Healey, John
Henderson, Doug (Newcastle N)
Henderson, Ivan (Harwich)
Hendrick, Mark
Hepburn, Stephen
Heppell, John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith (Streatham)
Hodge, rh Margaret
Hood, Jimmy (Clydesdale)
Hope, Phil (Corby)
Howarth, rh Alan (Newport E)
Howells, Dr. Kim
Hoyle, Lindsay
Hughes, Kevin (Doncaster N)
Humble, Mrs Joan
Hurst, Alan (Braintree)
Hutton, rh John
Iddon, Dr. Brian
Illsley, Eric
Ingram, rh Adam
Irranca-Davies, Huw
Jackson, Robert (Wantage)
Jamieson, David
Jenkins, Brian
Johnson, rh Alan (Hull W)
Johnson, Miss Melanie (Welwyn Hatfield)
Jones, Helen (Warrington N)
Jones, Kevan (N Durham)
Jones, Martyn (Clwyd S)
Jowell, rh Tessa
Joyce, Eric (Falkirk W)
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keen, Alan (Feltham)
Keen, Ann (Brentford)
Kelly, rh Ruth (Bolton W)
Kemp, Fraser
Kennedy, rh Jane (Wavertree)
Khabra, Piara S.
Kidney, David
King, Andy (Rugby)
Knight, Jim (S Dorset)
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, David
Laxton, Bob (Derby N)
Lazarowicz, Mark
Lepper, David
Leslie, Christopher
Levitt, Tom (High Peak)
Lewis, Ivan (Bury S)
Liddell, rh Mrs Helen
Linton, Martin
Lloyd, Tony (Manchester C)
Love, Andrew
Lucas, Ian (Wrexham)
Luke, Iain (Dundee E)
Lyons, John (Strathkelvin)
McAvoy, rh Thomas
McCabe, Stephen
McCafferty, Chris
McCartney, rh Ian
McDonagh, Siobhain
MacDonald, Calum
MacDougall, John
McFall, rh John
McGuire, Mrs Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
Mackinlay, Andrew
McNulty, Tony
MacShane, Denis
Mactaggart, Fiona
McWalter, Tony
Mahmood, Khalid
Mallaber, Judy
Mann, John (Bassetlaw)
Marris, Rob (Wolverh'ton SW)
Marsden, Gordon (Blackpool S)
Marshall, David (Glasgow Shettleston)
Martlew, Eric
Meale, Alan (Mansfield)
Michael, rh Alun
Milburn, rh Alan
Miliband, David
Miller, Andrew
Moffatt, Laura
Mole, Chris
Moonie, Dr. Lewis
Moran, Margaret
Morgan, Julie
Morris, rh Estelle
Mountford, Kali
Mudie, George
Mullin, Chris
Munn, Ms Meg
Murphy, Denis (Wansbeck)
Murphy, Jim (Eastwood)
Murphy, rh Paul (Torfaen)
Naysmith, Dr. Doug
Norris, Dan (Wansdyke)
O'Brien, Mike (N Warks)
O'Hara, Edward
Olner, Bill
O'Neill, Martin
Organ, Diana
Osborne, Sandra (Ayr)
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Perham, Linda
Picking, Anne
Pickthall, Colin
Pike, Peter (Burnley)
Plaskitt, James
Pollard, Kerry
Pond, Chris (Gravesham)
Pope, Greg (Hyndburn)
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prescott, rh John
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Ken
Purnell, James
Quin, rh Joyce
Quinn, Lawrie
Rammell, Bill
Raynsford, rh Nick
Reed, Andy (Loughborough)
Reid, rh Dr. John (Hamilton N & Bellshill)
Robertson, John (Glasgow Anniesland)
Robinson, Geoffrey (Coventry NW)
Roche, Mrs Barbara
Rooney, Terry
Ross, Ernie (Dundee W)
Roy, Frank (Motherwell)
Ruane, Chris
Ruddock, Joan
Russell, Ms Christine (City of Chester)
Ryan, Joan (Enfield N)
Salter, Martin
Savidge, Malcolm
Sawford, Phil
Sheerman, Barry
Sheridan, Jim
Simon, Siôn (B'ham Erdington)
Singh, Marsha
Smith, rh Andrew (Oxford E)
Smith, Angela (Basildon)
Smith, Geraldine (Morecambe & Lunesdale)
Smith, rh Jacqui (Redditch)
Smith, John (Glamorgan)
Soley, Clive
Southworth, Helen
Spellar, rh John
Starkey, Dr. Phyllis
Steinberg, Gerry
Stewart, David (Inverness E & Lochaber)
Stewart, Ian (Eccles)
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Straw, rh Jack
Stuart, Ms Gisela
Sutcliffe, Gerry
Taylor, rh Ann (Dewsbury)
Taylor, Dari (Stockton S)
Thomas, Gareth (Clwyd W)
Thomas, Gareth (Harrow W)
Timms, Stephen
Tipping, Paddy
Todd, Mark (S Derbyshire)
Touhig, Don (Islwyn)
Trickett, Jon
Turner, Dennis (Wolverh'ton SE)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Twigg, Stephen (Enfield)
Tynan, Bill (Hamilton S)
Vaz, Keith (Leicester E)
Walley, Ms Joan
Ward, Claire
Watson, Tom
Watts, David
White, Brian
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Alan (Swansea W)
Williams, Betty (Conwy)
Wills, Michael
Wilson, rh Brian
Winterton, Ms Rosie (Doncaster C)
Woodward, Shaun
Woolas, Phil
Worthington, Tony
Wright, Anthony D. (Gt Yarmouth)
Wright, David (Telford)
Wright, Iain (Hartlepool)
Wright, Tony (Cannock)
Wyatt, Derek

Tellers for the Ayes:

Gillian Merron and
Paul Clark


NOES

Abbott, Ms Diane
Allan, Richard
Amess, David
Ancram, rh Michael
Arbuthnot, rh James
Atkinson, David (Bour'mth E)
Atkinson, Peter (Hexham)
Bacon, Richard
Baker, Norman
Baldry, Tony
Barker, Gregory
Barnes, Harry
Baron, John (Billericay)
Barrett, John
Beggs, Roy (E Antrim)
Beith, rh A. J.
Bellingham, Henry
Bennett, Andrew
Bercow, John
Beresford, Sir Paul
Blunt, Crispin
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, rh Virginia (SW Surrey)
Brady, Graham
Brake, Tom (Carshalton)
Brazier, Julian
Breed, Colin
Brooke, Mrs Annette L.
Browning, Mrs Angela
Bruce, Malcolm
Burnett, John
Burns, Simon
Burstow, Paul
Burt, Alistair
Butterfill, Sir John
Cable, Dr. Vincent
Cameron, David
Campbell, rh Sir Menzies (NE Fife)
Carmichael, Alistair
Cash, William
Chapman, Sir Sydney (Chipping Barnet)
Chidgey, David
Chope, Christopher
Clappison, James
Clarke, rh Kenneth (Rushcliffe)
Clifton-Brown, Geoffrey
Collins, Tim
Conway, Derek
Corbyn, Jeremy
Cormack, Sir Patrick
Cotter, Brian
Cousins, Jim
Curry, rh David
Dalyell, Tam
Davey, Edward (Kingston)
Davies, Quentin (Grantham & Stamford)
Davis, rh David (Haltemprice & Howden)
Djanogly, Jonathan
Dobson, rh Frank
Dorrell, rh Stephen
Doughty, Sue
Duncan, Alan (Rutland)
Duncan, Peter (Galloway)
Dunwoody, Mrs Gwyneth
Evans, Nigel
Fabricant, Michael
Fallon, Michael
Field, Mark (Cities of London & Westminster)
Fisher, Mark
Flight, Howard
Flook, Adrian
Follett, Barbara
Forth, rh Eric
Foster, Don (Bath)
Fox, Dr. Liam
Francois, Mark
Gale, Roger (N Thanet)
Garnier, Edward
George, Andrew (St. Ives)
Gibb, Nick (Bognor Regis)
Gibson, Dr. Ian
Gidley, Sandra
Gill, Parmjit Singh
Godsiff, Roger
Goodman, Paul
Gray, James (N Wilts)
Grayling, Chris
Green, Damian (Ashford)
Green, Matthew (Ludlow)
Greenway, John
Grieve, Dominic
Gummer, rh John
Hammond, Philip
Harris, Dr. Evan (Oxford W & Abingdon)
Harvey, Nick
Hawkins, Nick
Hayes, John (S Holland)
Heald, Oliver
Heath, David
Hendry, Charles
Hoban, Mark (Fareham)
Hoey, Kate (Vauxhall)
Hogg, rh Douglas
Holmes, Paul
Hopkins, Kelvin
Horam, John (Orpington)
Howarth, Gerald (Aldershot)
Hughes, Simon (Southwark N)
Jack, rh Michael
Jackson, Glenda (Hampstead & Highgate)
Jenkin, Bernard
Johnson, Boris (Henley)
Jones, Lynne (Selly Oak)
Jones, Nigel (Cheltenham)
Keetch, Paul
Kennedy, rh Charles (Ross Skye & Inverness)
Key, Robert (Salisbury)
Kilfoyle, Peter
Kirkbride, Miss Julie
Kirkwood, Sir Archy
Knight, rh Greg (E Yorkshire)
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lamb, Norman
Lansley, Andrew
Laws, David (Yeovil)
Leigh, Edward
Letwin, rh Oliver
Lewis, Dr. Julian (New Forest E)
Liddell-Grainger, Ian
Lidington, David
Lilley, rh Peter
Loughton, Tim
Luff, Peter (M-Worcs)
McDonnell, John
McIntosh, Miss Anne
Mackay, rh Andrew
Maclean, rh David
McLoughlin, Patrick
McNamara, Kevin
Malins, Humfrey
Marshall-Andrews, Robert
Maude, rh Francis
May, rh Mrs Theresa
Meacher, rh Michael
Mercer, Patrick
Mitchell, Andrew (Sutton Coldfield)
Moore, Michael
Moss, Malcolm
Murrison, Dr. Andrew
Norman, Archie
Oaten, Mark (Winchester)
O'Brien, Stephen (Eddisbury)
Öpik, Lembit
Osborne, George (Tatton)
Ottaway, Richard
Paisley, Rev. Ian
Paterson, Owen
Pickles, Eric
Portillo, rh Michael
Prentice, Gordon (Pendle)
Prisk, Mark (Hertford)
Pugh, Dr. John
Redwood, rh John
Reid, Alan (Argyll & Bute)
Rendel, David
Robathan, Andrew
Robertson, Angus (Moray)
Robertson, Hugh (Faversham & M-Kent)
Robertson, Laurence (Tewk'b'ry)
Rosindell, Andrew
Ruffley, David
Russell, Bob (Colchester)
Sanders, Adrian
Sedgemore, Brian
Selous, Andrew
Shephard, rh Mrs Gillian
Shepherd, Richard
Short, rh Clare
Simmonds, Mark
Simpson, Alan (Nottingham S)
Simpson, Keith (M-Norfolk)
Skinner, Dennis
Smith, Sir Robert (W Ab'd'ns & Kincardine)
Spelman, Mrs Caroline
Spicer, Sir Michael
Spink, Bob (Castle Point)
Spring, Richard
Stanley, rh Sir John
Streeter, Gary
Stunell, Andrew
Swayne, Desmond
Swire, Hugo (E Devon)
Syms, Robert
Tapsell, Sir Peter
Taylor, David (NW Leics)
Taylor, John (Solihull)
Taylor, Matthew (Truro)
Taylor, Dr. Richard (Wyre F)
Taylor, Sir Teddy
Teather, Sarah
Thurso, John
Tonge, Dr. Jenny
Tredinnick, David
Trend, Michael
Trimble, rh David
Turner, Andrew (Isle of Wight)
Tyler, Paul (N Cornwall)
Tyrie, Andrew
Walter, Robert
Wareing, Robert N.
Watkinson, Angela
Webb, Steve (Northavon)
Weir, Michael
Wiggin, Bill
Wilkinson, John
Willetts, David
Willis, Phil
Wilshire, David
Winterton, Ann (Congleton)
Winterton, Sir Nicholas (Macclesfield)
Wood, Mike (Batley)
Yeo, Tim (S Suffolk)
Younger-Ross, Richard

Tellers for the Noes:

Mr. Roger Williams and
Mr. John Randall


Question accordingly agreed to.


 
10 Mar 2005 : Column 1783
 

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.

Lords amendments: 27B, 31B and 32B

Motion made, and Question put,

The House proceeded to a Division.


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