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11 Jun 2008 : Column 373

I mentioned pragmatism earlier. Let me be perfectly honest and say that, despite my regard for civil liberties, if proper, urgent and telling evidence had been produced of the need to bring in the proposed law, I would seriously have had to reconsider the position, take off my civil libertarian hat or wig and start thinking carefully. However, nothing of that sort has been produced, including during the whole period of the Public Bill Committee. I have heard nothing to persuade me even the slightest way towards the Government’s view. We know that the Law Society has made its view clear, as has the Joint Committee on Human Rights. As I said, I shall not mention the various bodies that have provided evidence, but I stress again that when it comes to evidence, I have seen nothing of a persuasive nature.

When the Home Secretary was interviewed on Radio 4 a few months ago, she admitted that she had no idea at all how many days were required. I intervened on the right hon. Lady earlier, but I am none the wiser. If, as we are told, the alleged plots are becoming more and more complex to unravel, why is the magic figure now half that of the previously recommended 90 days? Can anyone explain that?

In evidence to the Public Bill Committee on 22 April, Sir Ian Blair said:

He went on:

I say to Sir Ian Blair that that is hardly evidence on which I shall act to erode civil liberties.

Mr. Redwood: The hon. Gentleman is making a powerful case. Does he agree that, under this procedure, arresting someone who was a terrorist could be a disaster for the anti-terrorism campaign, because there might be no evidence or knowledge of what that terrorist had been up to? They might not know the network and all the other members of it would be alerted by that single arrest. Evidence would then get destroyed, which would make things very difficult.

Mr. Llwyd: Again, that is a strong point and I am obliged to the right hon. Gentleman for making it.

Today, we find out whether the debate is either well timed or an act of sheer desperation. We heard—

Mr. Mark Hendrick (Preston) (Lab/Co-op): Will the hon. Gentleman give way?

Mr. Llwyd: Not at the moment.

We heard from Lord Stevens that there is a real need for this measure and that some evidence is now coming through. I ask the question: are the Government using Lord Stevens as some kind of outrider to avoid having to “sex up” evidence, as they did with the Iraq dossier? I do not know, but I would not put it past them.

Dr. Julian Lewis: That was only 45 minutes.

Mr. Llwyd: Yes, that is quite right. As a responsible Member of Parliament, I say that if any evidence had been produced to me, I would have reconsidered. I would have looked carefully at the measure.

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Mr. Hendrick: I thank the hon. Gentleman for giving way. Is the evidence that he requires witnessing somebody being released after 28 days with the police having been unable to find any evidence, and that individual committing an atrocity—blowing up a city centre, a tube station or an aircraft?

Mr. Llwyd: Is the hon. Gentleman suggesting that a control order would not immediately kick in, with intensive covert and overt surveillance? That is a preposterous notion.

David Howarth: To add to what the hon. Gentleman is saying, the point that has just been made applies to any number, whether it is 42 or 90.

Mr. Llwyd: Indeed it does.

I shall deal briefly with the safeguard—the parliamentary scrutiny. It is a complete fig leaf and a waste of time, for two main reasons. If we are given merely an outline of the case and the need for an extension on the view of the Secretary of State, Parliament will nod it through and vote yes. What if the matter goes to appeal and a court says no? Where will we be at that point? That is one of the problems involved with dressing Parliament up in a quasi-judicial function—a constitutional experiment that is doomed to failure.

On the other hand, if we are given all the details, as we arguably should be if we are to supervise the thing properly and scrutinise it, that will make a fair trial impossible. In the rush to try to get Back Benchers on board, the Government have made a complete mess of this part of the Bill. It is not even logical, let alone workable. It is nothing other than a fig leaf and, in the words of the Joint Committee on Human Rights,

Justice said:

This part of the Bill is flawed. I have not touched on some of the opinions of various informed people on whether it is compliant with human rights, but I will not go down that road now. I know, however, that the Government have their opinion, and it is a moot point to say the least. Whatever we legislate and whenever we legislate, we should do it proportionately. This part of the Bill is not proportionate in any way. It is bad law, it has no evidential basis, it is unconstitutional and it is downright wrong. It has no place in any modern democracy.

Mr. Marsden: I want to focus on new clause 20 and amendment (a). Like many Members, I was a teenager in the 1970s. I was thoroughly aware—as we all were—of the terrible events involving the IRA in Northern Ireland, and, of course, the appalling miscarriages of justice suffered by the Birmingham Six and the Guildford Four. Similarly, like so many others here, at the time of both 7/7 and 9/11 I had friends and associates in the eye of the storm. Those experiences, and the history of legislation generally, have convinced me that we must do our best not to legislate in hot blood, and not to make hasty decisions in particular circumstances.

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4.15 pm

I do not mean in anything that I say today to decry anyone’s commitment to security or liberties, or to be soft on terror. This is not some macho or self-righteous exercise. Equally, however, I do not want the Bill to become a victim of mission creep, as has happened in other contexts recently. Two or three years ago, for instance, we passed legislation relating to the Regulation of Investigatory Powers Act 2000 which, in my view, is potentially going down that road.

That is why I want to concentrate on new clause 20. It is because we prize liberty so much that the nature and scale of the threat, and the triggers to it, are so important. They are important not merely to the making of a case to convince us here today or the House of Lords tomorrow, but because they must convince, and appear appropriate to, the broader communities in the country—not just ethnic communities, but others—who must be kept on board in any democracy and in any legislation that we pass. Public scepticism about politics and politicians will always be prevalent, and is arguably more prevalent now than for many years. That is why we need to go the extra mile to convince people, and to spell out why the Government want this reserve power.

Ideally, I should like to hear more details from Ministers about the links between what might happen here in the United Kingdom and what might happen overseas. There has been some reference to that this afternoon, but I want to hear more. As for the broader issue of the sort of incident that would cause the reserve power to kick in, the Home Secretary has given a number of further details, both in response to an interesting and useful intervention from the hon. Member for Castle Point (Bob Spink) and in the letter to the Joint Committee on Human Rights.

Let me return to one of the central questions that have danced around today’s debate: the question of whether we as parliamentarians would have a role, or a right to take a view, were the reserve power to kick in. I heard what was said by my hon. Friend the Member for Hendon (Mr. Dismore); I have also spent some time trying to follow the twists and turns of the various reports from the Joint Committee and the most recent letter that he has received from the Home Secretary. I agree with him that our discussion has featured many red herrings, many misleading comparisons between inappropriate jurisdictions, and the bandying of many not very robust and, frankly, intellectually dishonest arguments by Members on both sides of the debate. However, I must say, with all respect to my hon. Friend and his Committee’s report, that just as I do not want the Bill to lead to mission creep, I do not want to see it result in judicial creep. One of the issues that we must address this afternoon is the oxygen of publicity, and how it will affect any reserve powers given to the House.

I am not a lawyer, but I am an historian, and I know something—although perhaps not as much as I should—about the doctrine of the separation of powers. I am rather mystified by the blithe assumption made by several hon. Members that we have a great doctrine of the separation of powers in this country. We certainly do not have it as it exists in the US.

There is an enormous inconsistency in this matter, especially among some Opposition Members. They often complain that Parliament does not have a strong enough role in legislation, but when we are given a stronger role,
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they seem unwilling to take it up. It is not a question of excluding judges and lawyers—indeed, we have been given chapter and verse today about how they will have a role in the process—but I do not believe that they should be in the driving seat on this issue.

Mr. Grieve: As a Conservative, I do not subscribe to the separation of powers, but I do subscribe to the independence of the judiciary and to the need for a fair trial process. The problem is that that process could be hampered by our debates in this House, and I have heard nothing from the Government that provides any reassurance about that. I do not see how we can carry out the scrutiny that the Government are offering so temptingly without interfering with the fairness of the trial process that occurs thereafter.

Mr. Marsden: I thank the hon. and learned Gentleman for that intervention. I have great respect for the fairness and balance that he exhibits in these matters, and I am glad that he does not necessarily subscribe to the separation of powers. However, I fear that he is not doing justice to what Ministers propose, or to the House’s ingenuity, when it comes to dealing with matters in a way that will not prejudice future legal proceedings. I believe that we will be able to discuss such matters and show our constituents—at what I presume will be a moment of significant and supreme national crisis—that we are taking the issues presented to us seriously.

Mark Durkan: The hon. Gentleman says that he believes that hon. Members would be ingenious enough to handle the scrutiny requirements placed on us, but what do we do when constituents come to us for help with family members detained under the proposed powers? If we are asked to use the scrutiny procedure to challenge decisions and to speak up for members of our communities, what should we say—to our constituents, our colleagues in this Chamber and to the Government? How can we make the parliamentary scrutiny meaningful?

Mr. Marsden: I thank my hon. Friend for that intervention, not least because he has enormous experience of these matters in Northern Ireland. I hesitate to take issue with him, but I will, because I believe that Members of Parliament have a dual role. Of course we must speak up for our constituents and respect the principle of sub judice when we make representations on their behalf, but we also have a duty to represent what we believe to be their views and concerns at times of national crisis. Each Member of Parliament has the ability to do that, and we must exercise our power in that respect when such matters come before the House.

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

Mr. Marsden: No, I am sorry. I will not take any more interventions, as I am mindful that other people want to speak.

As has been said already, we have to balance civil liberties and security. That is a common theme on both sides of the House, and I do not want to have to tell my Blackpool constituents that we have outsourced all our deliberations on important matters to the lawyers, good though the lawyers may be. I believe that the Government have offered considerable movement on these issues,
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and that both the safeguards that they have put in place and the reserve powers are significant. I remind the House of the Roman adage that the safety of the people is the supreme law. That law must always weigh heavily in the balance when we discuss changes in civil liberties and in procedure.

Although I would still like to hear more from Ministers on some aspects of the trigger, I believe, after consideration, that the Government have got the balance right, which is why I propose to support them this evening.

Sir Menzies Campbell (North-East Fife) (LD): I regret to say that I do not share the conclusion drawn by the hon. Member for Blackpool, South (Mr. Marsden). I shall vote against the Government—not because I am soft on terror or because I fail to recognise the seriousness of the threat, but because I believe that the Government’s proposals are profoundly mistaken, and that they are wrong in both principle and practice.

Much of what I might have said has already been eloquently expressed by my hon. Friend the Member for Eastleigh (Chris Huhne) and the right hon. Member for Haltemprice and Howden (David Davis). In approaching this matter, we all have a responsibility to show independent judgment, and we must exercise that judgment in striking a balance between the competing interests of security and individual freedom. If I have a criticism of the debate so far, it is that the second of these interests has formed a smaller part of our proceedings than I would have wished.

When I look across at the Labour Benches, I am reminded that for a long time Labour Members voted against the renewal of prevention of terrorism legislation so far as it applied to Northern Ireland. In 1987, after I was elected, I participated in the votes on that. In those days, Labour voted against, but then, lo, there came out of the north-east a new young shadow Home Secretary from the constituency of Sedgefield, and he persuaded his party that instead of voting against, abstention would be sufficient. My point is that Labour Members did all that through exercising their independent judgment, and we too must exercise that when the matter under discussion goes to the vote. My objection to the Government position has been echoed by many Members in our debate: they have simply failed to prove the case at this time for the extension of the period of detention that they seek.

I do not rely on the judgments of others. That is a kind of political card game: “You play your Lord Stevens, and I’ll play my Lord Falconer, and what did Lord Goldsmith have to say about this?”—or Lord Carlile, for that matter. Such judgments may be persuasive, but they are by no means determinative of the positions we must take.

I would have had more respect for the Government if they had been willing to put their case simply, frankly and bluntly. I am not against consultation, but the scurrying around of the last few days and weeks has been demeaning to the Government, and also to Parliament. Compensation for miners is, no doubt, an extremely important issue, as is raising the economic blockade of Cuba, but what the devil have they got to do with the prevention of terrorism in the United Kingdom? Also, from where have come the allegations of Danegeld for the Democratic Unionist party? I hope that none of these stories is true; I hope that they are all the product
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of fevered imaginations. However, if they are part of what is necessary for the Government to have their legislation, I suspect that they are not a price worth paying.

I will vote against the Government because any time any Government seek to diminish the freedoms that are the cornerstone of our system, it is our duty collectively and individually to hold that Government to account and to subject them to the most rigorous scrutiny. That duty transcends all our other responsibilities; it is our primary duty. It is the constitutional reason why we are sent to this place, and, if I may be excused sounding somewhat flippant, I should say that it has nothing to do with the communications allowance, nothing to do with how many prepaid envelopes we use, and nothing to do with seeking to be regarded as the constituency MP of the year. Our job is to hold the Government to account and to scrutinise them as rigorously as we can. When what they are seeking to do interferes with the liberty of the citizen, that duty is even more important than it normally is.

4.30 pm

That duty transcends the credibility, and even the survival, of the Prime Minister. This debate and the vote that we will have in due course should not be about whether he is strengthened or weakened, because the issue is whether the rights of our citizens are strengthened or weakened by what we do in this place. I shall vote against the Government, because I think that the so-called concessions are—to use less elegant language than the Joint Committee on Human Rights did—political boiler plate.

The concessions leave far too much to the discretion of the Home Secretary, they are—as the hon. and learned Member for Beaconsfield (Mr. Grieve) has pointed out in several telling interventions—complicated to the point of incomprehensibility and ambiguity, and they blur the distinction between the responsibility of Parliament and the administration of justice. If we make a judgment that it is necessary to introduce the reserve power, and if that judgment is based on the circumstances surrounding an individual case, we inevitably become engaged in the administration of justice. The inferences that may be drawn from either a willingness or an unwillingness to accept the Government’s case could be substantial in the subsequent disposal of the case against that person. I have searched my memory, and searched elsewhere, but I can think of no other instance when the House of the Commons has been called on to pass legislation based on individual circumstances after criminal proceedings have been commenced against an individual. If that is not a novel constitutional doctrine, I do not know what is.

Mr. Redwood: Would the right hon. and learned Gentleman not also concede that it is a cruel irony that we who are fighting terrorism in order to preserve democracy and liberty, then surrender those things in the name of fighting it?

Sir Menzies Campbell: Of course, and that point has been made by some of those who have been cited in the debate as having experience, and as therefore being people to whom we should pay attention. If we want to defeat the terrorists, we have to defeat not only their wish to blow up buildings, but their wish to damage and undermine the very freedoms upon which our system is based.

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