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22 Feb 2007 : Column 449
1.53 pm

Mr. William Cash (Stone) (Con): My first point is that I am extremely glad that Lord Carlile has produced yet another report. We are fortunate to have him to provide insights into the way in which the Prevention of Terrorism Act 2005 operates. I have to say that I was anything but convinced on the subject. The Minister will understand that I have taken a position of principle on the matter, with regard to the former Home Secretary, the right hon. Member for Norwich, South (Mr. Clarke). I have the gravest reservations about the way in which the Act was passed, after an all-night sitting, and about the construction of the Act.

We are not talking about merely technical matters; questions of liberty are raised, and I am deeply worried about the fact that people are not necessarily being given the full opportunity to have their cases adequately considered in the courts in the right manner. I was so concerned about the Prevention of Terrorism Bill when it was before the House that I produced my own Bill, called the Prevention of Terrorism (No.2) Bill, the essence of which was to provide, in a couple of clauses, that we would not ring-fence the Human Rights Act 1998. However, my Front-Bench colleagues insisted on doing so through an amendment to the Government’s Bill. It is essential that it is understood that my Bill would have provided for due process, a fair trial and habeas corpus for alleged suspects.

As I say, a question of liberty arises, but unfortunately, the 2005 Act has a convoluted construction because of the problems of entirely avoiding having to deal with the unfortunate implications of the Human Rights Act. There was the whole concept of non-derogating control orders to consider, as well as the Act’s convoluted language, and the struggle within it. As one reads the Act, one can picture the draftsman desperately trying to achieve the objectives, which are to provide for proper public security, and to keep under proper control people who are, or who are alleged to be, a serious danger to the public. By the way, given that three of the people subject to control orders have absconded, it does not seem to have worked. One can sense from the very wording of the statute the desperate struggle of parliamentary counsel, who were trying to keep themselves within the framework of the Human Rights Act as far as possible, and that became the object of the exercise. It is a simple fact that if we had legislated without reference to the Human Rights Act, we could have come up with solutions that would have enabled us to achieve all the objectives, namely public security, giving a fair trial to the people against whom there are allegations, providing them with due process, and ensuring that there was habeas corpus.

A red judge, as we call them, can be made available at any time, and as Lord Justice Steyn has said, the most sacred duty of any judge is to support the notion and the practicality of habeas corpus. However, as I put it to the former Home Secretary, who was in such a muddle when answering questions that I asked during proceedings on the Government’s Bill and before then, what has been created is a mish-mash—an inadequate, unstructured Act of Parliament that simply does not serve the purpose of maintaining public security on the
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one hand, or of ensuring fair trial, due process and habeas corpus on the other. Those are my intrinsic objections, and they cannot get more lethal than that.

I understand entirely why my hon. Friend, and good friend, the Member for Newark (Patrick Mercer) said that the Opposition will, with great reluctance, support the Government today. In all fairness, I appreciate that there are complications, but the Minister himself admits that the current situation is not a satisfactory way of dealing with things. Surely this is not the basis on which Parliament should be legislating. Today, the Front-Bench spokesmen on both sides of the House are agreeing, in a virtually empty House, to continue an order that is of huge importance, not only because of the noble Lord Carlile’s report, but because of the intrinsic questions that it raises about the relationship of the state to the individual, the liberty of the subject and public security. The measures are to be put to the House on a Thursday afternoon, in a continuation order, after one and a half hours of debate. The issue is of great importance, and we were kept up all night to discuss these incredibly important matters on an emergency basis, but everybody knows that the legislation is not working properly.

I will not carp and be disrespectful, but with the greatest respect to my hon. Friends and Government Members, I point out that we are faced with legislation that is inadequate, hopeless and convoluted. It aims to deal with the central problem of how to balance the needs of public security in relation to terrorism with the issue of liberty, but I regret that we could not come up with a better solution, and that we will continue in limbo for another year. That is extraordinary, which is why I intend to vote against the order, and I have informed the Whips accordingly. It is a matter of concern that we have not had a long enough debate to deal with these serious issues.

There has not been a single mention of the 28-day period. Although it was agreed in the House that 28 days would be the maximum, I have always expressed grave doubts about whether that period would be sufficient. We have only one and a half hours to deal with a matter that led a Home Secretary to resign and provoked enormous debate and, given the Prime Minister’s insistence on 90 days, revolt in the Cabinet. So far, however, that period has not even been mentioned. Two former Attorneys-General in the House of Lords said that the minimum period ought to be 45 days. No doubt, they talked to Lord Carlile about the implications of his report and the issues that arose from it. I accept that at this stage it has not been necessary to take up the full 28 days, but that is not the issue, as we must consider whether or not it is necessary to increase that period in the coming year.

I do not know the answer, but we have an arbitrary cut-off date. I am not wedded to 90 days, and would probably settle for 60 or even 45. When the matter was first debated, I believe that Conservative Front-Bench spokesmen did not even want to change the limit to 14 days, although I may be wrong about that. The limit gradually increased until the 28-day period was accepted. However, whether it is 28 or 14 days, that will not necessarily solve the problem at a given time. If we provide proper, fair trials—even the worst terrorists are entitled to a fair trial—and if there is due process, with habeas corpus and proper safeguards from a red judge
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to ensure that suspects are not ill-treated, alleged suspects can be held for a reasonable length of time. Given modern communication methods and the difficulties highlighted in reports by the Metropolitan police and others, it may be necessary to extend the period beyond 28 days.

David Howarth (Cambridge) (LD): Is not the alternative approach to the matters in the order to allow questioning post-charge and wire-tap evidence? If both of those were adopted, there would not be any need for the hon. Gentleman’s proposals.

Mr. Cash: As ever, I listen carefully to the hon. Gentleman, who is a distinguished lawyer. Often, we nearly agree on things to the point of voting together, but he will accept that my decision to vote against the order is not based by any means on the Liberals’ position. It is based on my own position, which I have maintained over a period of time. I accept, however, what he said, and the business of wire taps and evidence adduced in court is important in these exceptional circumstances. Recent reports on phone tapping strongly suggest that the practice takes place on a massive scale.

Mr. McNulty indicated dissent.

Mr. Cash: I am glad that the Minister is shaking is head, because I am not trying to make a cheap point, and would never do so. There are substantial grounds for believing that there are many cases in which a lesser degree of evidence is required than in the cases that we are discussing. I take very seriously the point about intercepts made by the hon. Member for Cambridge (David Howarth). We must consider the matter carefully, as it leads to a fundamental question that arises again and again. At the heart of my concern about the legislation, as with identity cards, is the balance between the application of the Human Rights Act 1998 and the protection of the public. I have frequently written about that in national newspapers in the past few years. We face enormous terrorist threats and, as the Minister conceded, the danger from terrorism is still severe. He knows that better than me, as he is in possession of facts that are not available to the public at large—I accept entirely the reasons for that. Given the severe danger facing the public and the necessity of maintaining a proper system of liberty for alleged suspects it is essential that we think more carefully—a one-and-a-half hour debate is not sufficient—about the continuation of an Act that spokesmen on both Front Benches believe is wholly unsatisfactory. I have never in my life been more convinced that a piece of legislation has led to a wholly unsatisfactory state of affairs. The Government, the official Opposition and the Liberal party all agree, to adapt the famous words of Thomas Becket in “Murder in the Cathedral”, that this is bad legislation for all the best reasons. That is the crucial question that faces us:

I have no intention of voting for the control order.

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2.7 pm

Dr. Evan Harris (Oxford, West and Abingdon) (LD): I wish to make a couple of points about the report by the Joint Committee on Human Rights on the renewal of the order last year. The Committee expressed a number of concerns to which the Government have responded.

It is unfortunate that we should have to debate renewal without the benefit of a further report from the Joint Committee. Lord Carlile’s report was published on 19 February, and we are debating the order on 22 February, so the House should accept that it is difficult for a Select Committee, however assiduous, to produce a report within that period. I hope, however, that a report will be produced in time for the debate in the House of Lords on 5 March. I would be grateful if the Minister confirmed that Lord Carlile’s report was published as soon as he received it. Is it possible to ensure that the scrutiny provisions in the House work? Do we need to hold the debate on 22 February instead of giving time to the Committee that is most closely associated with the matter—clearly, however, it is not the only one—to do its valuable work? Indeed, the Government themselves have acknowledged the value of that work, and responded in the 24th report of the last Session to the 12th report, which dealt with the renewal of control orders.

The Joint Committee has produced a further report, “Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention”, which identifies how we can overcome obstacles to prosecution and provides alternatives to non-jail detention. It supports the points made by my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg) about the use of intercept evidence and overcoming other obstacles to prosecution, and it strengthens arguments against the renewal of control orders in the Joint Committee’s previous report. Alternatives have been canvassed and examined in detail, and important judicial decisions have been made.

Mr. David Winnick (Walsall, North) (Lab): However unsatisfactory the control orders might be—obviously, there will be a Division—does the hon. Gentleman agree that the solution advocated by the hon. Member for Stone (Mr. Cash), if it was a solution—extending the period of 28 days—would be far worse?

Dr. Harris: Yes. There are a number of wrong ways of going about this, and we have heard several of them. I believe that control orders in their current form are a wrong way, and that we need an alternative to all detention that breaches civil liberties and, in my view, that of the Joint Committee and that of some judges, breaches the Human Rights Act because of a lack of derogation. The same could well apply to lengthy pre-charge detention of the kind described by the hon. Member for Stone (Mr. Cash), against which the hon. Member for Walsall, North (Mr. Winnick) has campaigned so assiduously.

In its 24th report on the renewal order, published last year, the Joint Committee argued that the case for a consolidating Act was “potentially quite strong”, and that

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I realise that there was a renewal last year without that opportunity because of exigencies that had arisen in the meantime and the need to introduce further legislation to deal with that. But now we are discussing a second renewal without a clear prospect that any consolidating legislation will be in time for the next renewal, and that both Houses will have an opportunity to debate and amend the provisions that we are currently debating, in an unamendable form, for one and a half hours. Will the Minister assure us that before the next renewal there will be an opportunity for substantive amendment?

The Government’s response to our recommendation stated that the Home Secretary was

and that the Government intended

It is not clear whether those two sentences amount to agreement with the point that we had made.

I also want to say something about the question of compliance with our treaty obligations under the European convention on human rights. We said we were concerned about the fact that non-derogating control orders were

Since then judicial decisions have upheld that view in a number of cases, and disagreed with the Government’s view. I hope the Minister will explain why he feels that he has received judicial support for his disagreement with our statement that there is a clear danger that without derogation there will be a breach of the Human Rights Act, and the courts will be able to quash orders.

Mr. Cash: I would be the first to defend the right of judges to make their decisions according to the rule of law, but the question is which law. That is where the problem lies. Far too much discretion is given to judges, as is clear from the judgment by Mr. Justice Sullivan mentioned in Lord Carlile’s report. The degree of deference is now being qualified. I am concerned about the degree of judicial activism that is taking us further and further down the road of entrenching the whole concept of the human rights legislation.

Dr. Harris: The hon. Gentleman’s intervention gave him a good opportunity to set out his very clear view.

The conclusion of the Joint Committee’s report deals with the House’s right properly to debate whether there should be derogation:

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We have not been given that opportunity, which is another reason—in addition to those given by my hon. Friend the Member for Sheffield, Hallam and, although without the vote to go along with them, by the hon. Member for Newark (Patrick Mercer)—why I, and others, will vote against the renewal. We recognise, as does the Joint Committee, the need to tackle terrorism, but we believe that without adequate parliamentary scrutiny we risk making matters worse and providing for bad law that will be counter-productive in the long run.

2.15 pm

Mr. McNulty: I value the work of the Joint Committee, as I have said before. Its reports are extremely useful.

Lord Carlile’s report was published for Parliament at the earliest opportunity, given the recess, namely on Monday.

I shall try to deal with many of the points that have been raised, and correct one, if not two, of my own comments. I recognise the furrow that the hon. Member for Stone (Mr. Cash) is ploughing, but I cannot let him get away with the assertion, for it is no more than that, that if the Human Rights Act is taken away, the need for control orders will disappear entirely. Nor do I accept the assertion that it will disappear, as if by magic, if we introduce intercept as evidence and post-charge questioning. It is simply that: an assertion.

Mr. Clegg rose—

Mr. McNulty: I want to make some progress before I give way. As the hon. Gentleman has made very clear, our time is limited.

It was interesting to note that the hon. Gentleman had no answer to the intervention from my hon. Friend the Member for West Bromwich, East (Mr. Watson), other than to express the plaintive hope that somehow evidence would be found against the 18 people currently under control orders and that public safety would prevail.

Mr. Clegg: I clearly stipulated the four areas in which we wanted revisions to the control order regime, a process that is not available to us. I did not claim that flanking legislative measures might serve as a wholesale replacement for control orders; they are necessary in addition to a thorough review and revision of the control orders.

Mr. McNulty: My hon. Friend asked a clear question: what would happen if the control orders governing those 18 were struck down tomorrow. The hon. Gentleman responded that hopefully there would be a bit more surveillance, and hopefully some evidence would come out of the woodwork so that they could be prosecuted. That is not sufficient. [Interruption.] These are not the politics of terror. This is not a little schoolboys’ club; we need to be very serious. [Interruption.] I was merely responding to the words of the hon. Gentleman.

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