Anti-terrorism, Crime and Security Bill

House of Commons, 21 November 2001.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is an indication of the huge importance of this debate that the Committee is very full. I hope that the Home Secretary will accept that we have listened to him with great attention, and that colleagues on both sides of the House are trying to deal with a set of complex matters that have greatly preoccupied many hon. Members and many people outside this place.

Two parliamentary Committees, the Select Committee on Home Affairs and the Joint Committee on Human Rights, have attentively deliberated and given helpful advice. When we began the debate, I was conscious of the fact that we had about one-and-three-quarter hours to discuss 15 clauses, 22 amendments and one new clause to do with what the letter column of The Times—not The Guardian—in a headline above letters from Lord Donaldson, Lord Russell and Professor Brian Simpson described as

"Inherent dangers in plan to intern terrorist suspects".

The House accepts that the Home Secretary has a duty to try to think of ways of dealing with the issue. We all understand. There is no dissent about that. The Home Secretary has not only the opportunity but the duty to do that, and we do not criticise him at all.

The right hon. Gentleman is right to say that three different types of conclusion have been reached. The Government's conclusion is in the proposal that we are discussing. The Conservatives' conclusion relates to other articles of the human rights convention and would allow people to be sent back to countries to which the Home Secretary and I agree we would not want them sent. We believe that it is better to uphold our international obligations not to send people to such countries—and that view is confirmed by the all-party Home Affairs Committee.

The third conclusion is that expressed by my colleagues and me. I shall summarise it in a moment, because it is important that the Home Secretary and I do not disagree about what the different positions are.

This debate is hugely important for all us. I shall try to explain objectively why that is so, by reading one paragraph from the report of the Home Affairs Committee, published last Monday. Paragraph 32 states:

"One ground for concern is the quality of the intelligence information on which detention was based. We note that in 1991, some 176 Iraqis and other Arabs were detained during the Gulf war. We understand that many of those, if not all, were eventually released without charge and some were subsequently awarded compensation."

We are debating proposed laws that risk doing injustice to people, so it is hugely important that the House, collectively, should try not to do that. Those people would not by definition be British but that does not reduce our obligations, as I am sure the Home Secretary agrees.

From the two Select Committee reports, I have drawn seven suggestions that would make the legislation more specific and targeted. The first is that we should define more tightly the term "international terrorists". The Home Secretary has helpfully acknowledged that he is willing to consider that, so I shall not pursue the point. I remind him that the Human Rights Committee noted that no other legislation authorises detention on the basis of criteria so vague as the current measure.

Secondly, the Select Committee makes the serious point that the legislation could be held to discriminate on grounds of nationality. We are proposing to detain people who are not British nationals and do not have the right to indefinite residence. We would not propose so to detain British nationals, so such provisions might be illegal under human rights and other international law. The Select Committee was not persuaded by the Home Secretary's evidence.

The third suggestion relates to an important point in clause 27—it would be easy to become technical at this stage, but I shall try not to be. That point is addressed in an amendment tabled by the hon. Member for Bristol, East (Jean Corston), as a result of the Select Committee's considerations, and in amendment No. 114, tabled by my hon. Friends and me. The provisions deal with circumstances in which, when a certificate has been cancelled, another certificate can be issued. They deal with the criticism that has been properly made of the clause. The clause states that a certificate can be reissued

"on the grounds of a change of circumstance or otherwise".

That is too wide. Will the Home Secretary consider amendment No. 114, which seeks to be even more specific than the amendment tabled by the hon. Lady?

The Home Secretary has dealt in part with my fourth point. The initial issue of the certificate should be subject to a test of reasonableness. I shall return to that point. The Home Secretary has accepted that the measure should include such a proposal.

I hope that the right hon. Gentleman is also minded to accept my fifth suggestion, which is also based on Select Committee advice: it is far better that the right to be represented—even in the unusual circumstances of an appeal hearing—should continue through each stage of the hearing, even if it goes to appeal at the Court of Appeal and the House of Lords. The reason is obvious: there may be new evidence that the representative of the detained person might not otherwise see and about which they could not argue before the commission.

The sixth point relates to the length of detention. To summarise one of the amendments, it would be much more acceptable if the length of detention without automatic review were shorter. We have proposed that the intervals should be no longer than three months. After that, detention should be reviewed.

The seventh point is that the police should not, as proposed, hold the fingerprints of asylum seekers indefinitely, as though they were in the same category as people who were being held in relation to other crimes, but that there should be a limitation. It is most unfair to group together people who have been suspected of a crime and those who are only in this country because they are seeking asylum.

So there are seven specific proposals for improvement, and I hope that they will all find favour with the Government today or, at worst, next week when the Bill is considered in the House of Lords. They have all-party support, although they have been proposed in different ways.

The Home Secretary rightly wants to know what alternative general argument my colleagues and I would put. Before I turn to the specifics, which I can do very briefly, I shall put two very simple principles to him. First, this is not a matter for lawyers and judges; it is an issue for ordinary individuals who may become swept up in a nationalist fervour or become involved with other people who are, or who may come here as students, or who may have family in this country and who find themselves suspected by the intelligence services or others of being involved in terrorism in some way.

I hope that we can get away from thinking that the concerns about judicial review are the concerns of lawyers. They are absolutely not lawyers' concerns. This country's history is one of dealing with people—whether British born or immigrants—and ensuring that they are treated properly, but cases have often ended up in the courts because the Executive have failed those people. Tribunals have often been involved, and judges and lawyers have often had to help them to argue their cases. They may have had no English or poor English; they may have been elderly or infirm.

Detention without trial is a citizens' issue; it is an issue of civil liberty for the ordinary, non-professional individual. I hope that the debate can continue on the assumption that this issue is not academic or esoteric; it goes to the core of whether everyone has equality before the law in this great country of ours.

Oliver Letwin (Conservative, West Dorset)

I want to be clear about the hon. Gentleman's argument in relation to part 4. Is he arguing that there is no substantial difference between a United Kingdom citizen who poses a threat and a foreign national who poses a threat and that he would prefer part 4 to be eliminated altogether? Does he want to join us and others in wanting to limit those provisions as a second-best solution? Or is he arguing, as I would, that, in some circumstances, the Home Secretary has a moral right to take action against foreign nationals who pose a threat to our security that he would not necessarily be able to take in relation to our own citizens?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Those are perfectly proper questions, as I would expect from the hon. Gentleman. It is perfectly reasonable to deal differently, as far as is required, with people who are United Kingdom citizens, who by definition have a right to live here, and people who do not have that right. We must all be permitted to accept that discrimination. The answer to the question about what we would argue should therefore happen is to be found in the improvements to the process that we and others have proposed. I can list those proposals very simply.

First, we should look for international solutions, just as we have done in the context of the International Criminal Court. That point was picked up by the hon. Member for Witney (Mr. Cameron), who serves on the Home Affairs Committee. The sooner we can find a Europe-wide solution for people who are not citizens of any given country the better. That is one route that we must pursue, but I accept that we cannot do it today.

Secondly, as suggested to the Select Committees, there are a panoply of offences under current terrorism legislation, especially the Terrorism Act 2000, which do not appear to have been considered or used but which appear to fit the bill. I shall give two examples. I served on the Committee that considered the 2000 Act and remember the long debates. People can already be arrested, charged and prosecuted for directing activities and incitement to commit terrorism abroad under that Act, in which terrorism is broadly defined. We should consider those offences before we conclude that they do not work.

The third option, which was proposed in evidence to the Select Committees, is that if the evidence is defective, we should ask the Intelligence and Security Committee—which reports to the Prime Minister—and the Joint Committee on Human Rights to consider whether ways in which evidence is dealt with might be better adjusted in such circumstances, so that things that are currently precluded could be allowed in evidence, thus allowing trial and conviction. I do not pretend that that would necessarily allow the detention of everyone the Home Secretary has in mind, but we should try them first. We should never go down the road that ends in detention without trial—possibly for five years, as we agreed on Monday, although that is subject to review—without first considering every single other option.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to take the hon. Gentleman back to his second option—to consider the existing offences under the Terrorism Act 2000. We could reinforce that approach by changing the standard for proof, so that the offence could be established on the balance of probabilities, not beyond reasonable doubt. In other words, the civil rather than the criminal standard could be applied.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That proposal is controversial, but perfectly proper, and it leads us to the fact that we cannot properly get this law right unless we consider how to get to where we all agree we want to go without, by accident, getting to where many of us agree we should not go. However, we are precluded from doing so tonight. That is the problem with the process.

I want to make another point before dealing with the other amendments in the group—I am conscious that this debate is ridiculously restricted. There is a real issue about asylum seekers, but we will not have a chance to consider it again. Again, Select Committees addressed that issue. I have asked the new representative in the United Kingdom of the United Nations High Commissioner for Refugees, and my advice is that under the convention on refugees we have to allow people to put their case. Then we can say, "They are precluded from qualifying because of the exception rule"—that is, because of their track record. But we cannot preclude people from having their asylum case considered by simply imposing a barrier. That is an important distinction, and international law is on the side of the UNHCR.

We welcome the Government's proposals in amendments to clause 21 to move from the test of believing to that of "reasonably" believing, but the hon. Member for West Dorset (Mr. Letwin) and I believe that there should be a higher test than that, and both main Opposition parties have tabled an amendment to that effect. We believe that the phrase "substantial grounds to believe" should be used in that test before the certification process is triggered. We have tabled a series of amendments, such as amendments Nos. 96 and 97, to deal with that issue, as well as that involving substantial grounds for suspicion.

We argue that we should at least limit the grounds for excluding judicial review, but Liberal Democrat Members and many others on both sides of the House would prefer it if clauses 21 and 29 were removed altogether.

Kevin McNamara (Labour, Kingston upon Hull North)

And clause 23. That is the principal one.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I think that the hon. Gentleman would accept that clauses 21 and 29 are the key ones.

Kevin McNamara (Labour, Kingston upon Hull North)

rose—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course I accept that clause 23 is very important. There is a strong view in the House and in the Select Committees that those clauses should be deleted and that no qualification is appropriate because the other processes that I suggest should be tried first.

I have said that the review period must be shorter. There is an important need to tighten the grounds for issuing new certificates. The Scottish National party and others have tabled amendments that deal with improving the SIAC process, inasmuch as that process will be appropriate. In addition to the recommendations of the Select Committees, the SNP has made welcome recommendations to have a two-year maximum period.

It is crucial that we do not let things with which we are uncomfortable leave Committee. I say this carefully, but it is better to give the Executive too little power at the moment than to give them too much. Had we voted for an automatic sunset provision, we might be willing and able to err in the other direction. However, because we do not have that qualification to the extent that we would wish, I ask the Committee to be cautious.

These are just about the most serious issues that this place can debate. We do not have enough time to do them justice, but I hope that the Home Secretary will respond to all positive suggestions for improving the Bill. I hope that the Committee will vote to keep the right of the courts always to be able to make sure that the Executive are doing their job properly.

Jean Corston (Labour, Bristol East)

I shall be as brief as I possibly can in view of the number of Members who wish to speak.

I thank the Home Secretary for giving us assurances in respect of amendment No. 126, standing in my name and that of my hon. Friend the Member for Redcar (Vera Baird). It contains what I describe as the "otherwise test." I also thank him for agreeing to reconsider the definition of "links with", because both issues were drawn to the attention of the House by the Joint Committee on Human Rights, of which my hon. Friend and I are members.

Amendment No. 127 deals with the appeal procedure. The Joint Committee was persuaded that the due process of rights and obligations was fulfilled under SIAC because it can offer a full hearing on the merits of a case, because a nominated representative can represent the interests of the applicant and because there is an opportunity to appeal on points of law. However, before the Court of Appeal or on appeal from that court to the House of Lords, there is a risk that the appeals procedure would be insufficient to meet the standards of articles 5(4) or article 6 of the European convention on human rights, because there is no provision under the legislation or under the Special Immigration Appeals Commission Act 1997 for the nominated representative to represent the applicant's interest in the appeal.

Therefore, there might be a violation of the European convention on human rights if the nature of national security considerations in the case unduly inhibited an applicant or his or her representatives from formulating a point of law or if new evidence was presented on appeal on behalf of the Secretary of State.

David Blunkett (Labour, Sheffield, Brightside)

I am mindful of the interpretation that has been made. Within the terms that we discussed at the Human Rights Committee and in the debate on Monday, lawyers advise me that, when the advocate—the person nominated from the list provided—is appointed for the particular purposes of evidence that would not be admissible in other circumstances, nothing precludes the representative nominated by the person concerned from taking other aspects of the case, including appeal. That person may also decide to nominate themselves as the advocate and take the appeal to the Court of Appeal or to the Lords if leave is given.

Jean Corston (Labour, Bristol East)

I thank my right hon. Friend; that is very helpful. We tabled the amendment because, when we took evidence from him and his officials on 14 November, my hon. Friend the Member for St. Helens, South (Mr. Woodward) raised this particular point at question 39 of the minutes of evidence. In response, Mr. Carter, an assistant legal adviser to the Home Office, said:

"The Court of Appeal, as I understand it, in the Rehman case allowed a special representative who acted before SIAC".

My right hon. Friend added:

"So they could if they wished."

Bearing in mind the fact that amendment No. 127 refers to the "avoidance of doubt", it seems to me and to my hon. Friend the Member for Redcar that it would be entirely sensible for the Bill to make it clear that such representation is a matter of right.

Oliver Letwin (Conservative, West Dorset)

I do not want to detain the House long. Much of what I want to say about this group of amendments and clauses was said on Second Reading. I certainly do not want to rehearse those arguments again.

I shall briefly touch on amendment No. 98, which was tabled jointly with Liberal Democrat Members. If we understand the issue correctly, the amendment represents a position that I would have expected the Home Secretary to hold as well. I therefore wonder whether we have made an error or whether he has. We shall perhaps see which is the case during the debate.

The current articulation of part 4 is such that it quite rightly and very specifically excludes from the indefinite detention provisions anybody who is a UK citizen. Such a person would obviously not fall to be removed, so the triggers that are available in part 4 would not apply to a UK citizen.

The provisions deal with foreign nationals. If a particular foreign national were to come to the UK with the ambition—in the Home Secretary's belief, reasonable belief or substantial grounds for belief—of aiming at the destruction of Baghdad or New York, the Home Secretary would be able, under part 4 and subject to the Special Immigration Appeals Commission, to detain that individual indefinitely. However, the oddity of the situation is that the second definition in clause 21(4) would mean that, if that same individual coming from the same foreign place had it in mind—in the Home Secretary's belief, reasonable belief or whatever—to blow up Belfast as part of a joint operation with the Real IRA, the Home Secretary would not be able to detain that person indefinitely.

I do not know whether the judgment of our compatriots over the ages will be that part 4 is right or wrong. However, like my right hon. Friend the Leader of the Opposition, my hon. Friend the shadow Secretary of State for Northern Ireland, the leader of the Ulster Unionist party and, I believe, the leader of the Liberal Democrats, I am clear that if part 4, however it may be amended, is justified, it should apply equally to a foreign national who has in his sights Belfast as much as if he had in his sights Baghdad.

Mark Fisher (Labour, Stoke-on-Trent Central)

Will the hon. Gentleman explain the position of what I would term "hybrid cases", in which the Home Secretary can identify a group of people who are engaged in planning for a terrorist activity? Some of them will fall within the Bill's remit but the others may be English nationals and will not. How will the nationals be treated when the people with whom they are plotting will be covered by the Bill? Is not such a hybrid case a genuine problem? How would the hon. Gentleman's amendment tackle it?

Oliver Letwin (Conservative, West Dorset)

I have wrestled with that very question and that is what gave rise to my intervention on the hon. Member for Southwark, North and Bermondsey (Simon Hughes). I may be wrong, because I do not believe it will possible for some time to tell whether what any of us believes is right or wrong. However, I shall describe the conclusion that I have reached.

I believe that there is a substantial difference between the protection of civil liberty that we should feel we have a duty to accord to those who are our fellow citizens, whatever they may be doing or plotting, and the protection of civil liberty that we feel we should have a duty to accord to foreign nationals. I accept that that is a very difficult distinction to make. Both groups are human beings and it is necessary to accord respect to both. However, when someone who is not a national enters our country, there is a special obligation on that person not to use us as a base for his activities and not to attack us. If someone is a citizen of this country, however, there is a special obligation on us to treat them in a certain way. I admit all the difficulties of that distinction, and I suspect that the Home Secretary does too, but I join him in making it.

To answer the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) straight, our amendment does not deal with what he identifies, although I do not, as the problem of hybridity. That is an anomaly, an inelegance and perhaps even a problem in the long term, but in the short term the bigger problem is with a person who is a foreign national. I am willing to join the Home Secretary in agreeing that such a person should be detained in some circumstances. If that foreign national has it in mind to blow up part of our country, the provisions for detention do not apply. That is strange and I cannot find it in me to support that distinction.

Andrew Hunter (Conservative, Basingstoke)

Is not the issue of hybridity more complex than that? According to media reports, seven men are held under the successor to the Prevention of Terrorism Acts, two of whom are Irish citizens, five of whom are United Kingdom citizens. If the Bill becomes law, a different legal regime will apply to the two on the assumption that they are Irish citizens and the others are UK citizens. Where do we stand on dual citizenship? Tens of thousands of UK citizens who identify themselves with a nationalist background in Northern Ireland have dual citizenship. How does one define them? If they commit a terrorist offence, are they foreign terrorists or domestic terrorists?

Oliver Letwin (Conservative, West Dorset)

The problem is that the difficulty to which my hon. Friend alludes does not arise from the Bill. In the case to which he refers, neither the Irish nationals nor the UK nationals would be caught by the provisions for indefinite detention. In that context, the Irish nationals would be concerned only with the affairs of a part of the UK, so they would be excluded from the provisions. That is the exclusion that the leader of the Ulster Unionists, my right hon. Friend the leader of the Conservative party, my hon. Friends and the hon. Member for Southwark, North and Bermondsey cannot stomach. I hope that the Home Secretary makes the change recommended in amendment No. 98, although another method of achieving that would be acceptable.

We tabled amendment No. 101 to provide for strictly limited judicial review. On Second Reading there was a fascinating exchange between the hon. and learned Member for Dudley, North (Ross Cranston), the Home Secretary, other hon. Members and me. The hon. and learned Member for Dudley, North is a former Solicitor-General and a distinguished jurist. He argued that there was no need for the limited scope of judicial review that the amendment would introduce because an appeal on a point of law could include an appeal on the question of whether SIAC had conformed to its procedures as laid down by the Lord Chancellor.

Following that debate, we again consulted jurists—hopefully as distinguished as the hon. and learned Gentleman—who do not take such a clear view. I am genuinely in doubt about what the situation is, and I should like the Home Secretary to reassure us that if it turns out that the appeal on a point of law does not provide for appeals relating to the procedure of SIAC, he will amend the law immediately to ensure that such appeals are possible. If he gives that assurance, we will happily not push our amendment to a vote either here or in the House of Lords. I have no wish to saddle the Bill with an unnecessary amendment.

David Blunkett (Labour, Sheffield, Brightside)

I will not saddle myself with an immediate answer. Instead, in the spirit of the hon. Gentleman's comments, I agree to examine that matter for the purpose of clarification between now and the Bill's entry into the House of Lords.

Oliver Letwin (Conservative, West Dorset)

I am grateful to the Home Secretary for that. We await his considered view. I accept that we cannot expect him to give an immediate decision.

It is difficult to be clear on such a complex chain of argument, but I hope to set out our position on detention and deportation, which we recommend as an alternative solution. I want to stress that there is no question of the Conservative party suggesting that a Home Secretary should be compelled to remove a person to what he regards as an unacceptable fate. We accept that he should judge whether a particular fate is unacceptable in the light of the character of that fate for that person and of the risk to our national security posed by that person. We want the Home Secretary to take powers that give him the flexibility to make that judgment case by case. In many instances—for example, in relation to India and the United States—it would be reasonable to use the power of removal rather than to detain the individuals. That would pose a lesser risk.

It is on that basis and that basis alone that we would be reasonably comfortable with the detention powers, as modified by the amendments that we tabled with the Liberal Democrats and those tabled by the Home Secretary. We would be willing to subscribe with the gravest reservations to part 4 even if he does not accept our alternative flexible arrangements, because we accept the argument that he probably does not have sufficient powers to deal with the situation that he judges to be so serious.

I cannot say, as the debate unfolds in the House and the other place, whether we would be willing to stomach these powers if clause 29 remains intact and there is no further judicial review of the merits. We are struggling inwardly with that. If we were to vote on clause 29 today, I would ask my hon. Friends to abstain while we wrestle further with that problem. I hope that the Home Secretary will also wrestle with it, so that when the Bill eventually emerges from the other place, which has so much more time to consider it, we will have found a solution that makes the detention clauses as unobnoxious to our civil liberties as possible. They must also do as little as possible to endanger our country's reputation and safety when we consider the possibility of the friends and relations of those detained using certain methods to get them out.

With those provisos and reservations we give a highly qualified backing to the clauses that cause so many hon. Members on both sides of the House such concern.

Denzil Davies (Labour, Llanelli)

I shall briefly raise what may appear to be a somewhat technical point concerning clause 25.

Amendments have been tabled to clause 25, but I do not wish to discuss them. The only question that I have for the Home Secretary relates to the primary legislation, if I may refer to it in that way—the Special Immigration Appeals Commission Act 1997. My right hon. Friend said that he had read the Hansard of the Second Reading debate of that legislation. I do not know whether he has had a chance to read the Act, but that Act sets out in section 2 the jurisdiction of the commission, and the jurisdiction relates to the various Acts—mainly immigration Acts—that are set out in subsection (2).

Of course subsection (2) does not refer to clause 25 of the Bill before us, because it was a 1997 Act. Clause 25 says:

"A suspected . . . terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21."

There may be something else in the legislation that I have missed—there may be an amendment of the 1997 Act somewhere in the legislation—but merely to state that fact does not confer on the Special Immigration Appeals Commission the power to hear appeals under clause 21. There may be a catch-all clause somewhere in the 1997 Act, but I have not found that either.

It has been argued in previous debates on the Bill that SIAC, or whatever it is called, is not appropriate. The Home Secretary says that of course it is because it is about immigration and we are talking about immigration, but I believe that one has to look at the specific areas of jurisdiction in relation to legislation for which SIAC was established; and it is established under section 2 of the 1997 Act.

My simple question, which does not go to the heart of the Bill but is necessary in the interests of clarity—after all, we are in Committee—is: is my right hon. Friend satisfied that merely stating that SIAC can hear appeals under clause 21 gives it a jurisdiction to do so? The parent Act, the 1997 Act, obviously cannot relate to this present legislation.

David Blunkett (Labour, Sheffield, Brightside)

I wish to be helpful. I believe that it does have jurisdiction, because it is dealing with the powers that were granted, long before SIAC was created, in terms of certification. The role of SIAC, agreed in 1997, was hence to deal with that certification process. I am happy to provide the necessary legal evidence to my right hon. Friend and to other Members if that will help—over the next two weeks—them to be fully satisfied that what we are saying is the case.

Denzil Davies (Labour, Llanelli)

I am grateful to my right hon. Friend. I am not criticising him when I say that I do not really understand. Apparently there were some powers that were there before SIAC was established, and we are now taking those from the air, or somewhere, and bringing them back. That may be the case, but I will avail myself of my right hon. Friend's kind offer, and if his lawyers, who I am sure are worthy gentlemen, and obviously better than some lawyers in private practice, are prepared to supply him with chapter and verse, which I am sure that he will sign, we shall all be very happy.

George Osborne (Conservative, Tatton)

I want to speak briefly on the clauses. I welcome the limited sunset clause that has been agreed to. My good and hon. Friend the Member for Witney (Mr. Cameron), who is not in his place, put his name to that amendment. It was the first amendment that he had ever put his name to, and he is in deep shock because the Government have accepted it.

Angela Eagle (Labour, Wallasey)

He is not here.

George Osborne (Conservative, Tatton)

He is not here because, I believe, he has a dinner; we dealt with that earlier in Committee. [Hon. Members: "Oh."] Well, I am here, so I should like to say that, in my view, the sunset clause only makes part 4 less bad than it was. We are undermining the basic, historical liberties that have been established over hundreds of years of common law—basic liberties such as the right to a writ of habeas corpus, the right to normal legal proceedings, the right to know what a person is accused of and the right to challenge that evidence in a court of law. I notice that, in the report of the Select Committee on Home Affairs, which it did extremely well to produce in such a short time, Lord Donaldson, the former Master of the Rolls, is quoted as follows:

"The right of an individual to apply to the courts by judicial review for a writ of habeas corpus . . . is one of the foundations of the rule of law and . . . previous attempts by Parliament and others to exclude the supervisory jurisdiction of the courts in various contexts . . . have"

all

"been held to be ineffective."

We know where the Government are coming from on this, because in recent weeks the Home Secretary has made no secret of the disdain in which he holds lawyers. He expressed it in his speech to the Labour party conference. He expressed it in his article in The Times after his conference speech, in which he said that

"British democracy was not created by lawyers and judges"—

which I believe to be a misunderstanding of the history of this country, because we cannot point to a single—

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman is not the only guilty party, because this confusion has been a feature of our discussions in Committee tonight. There are various legal systems in the United Kingdom and it is wholly inaccurate to refer to British law in the various circumstances covered by the Bill.

George Osborne (Conservative, Tatton)

I am happy to confine myself to English law, which has a long history of liberty established by the rule of common law and by decisions of judges and jurists over many centuries, which are in many cases as important as acts of revolution or Acts passed in the House over the centuries.

Today we find ourselves contorting our long tradition of domestic liberty. We are jumping through legal hoops. We are going through legal fictions, such as declaring ourselves to be in a state of public emergency, because we—by that I mean Governments who have acted in our name and that of the House—have signed themselves up to international agreements that have been interpreted far more widely than was expected when they were signed up to.

We have already gone through the steps of derogating from article 5 of the European convention on human rights, and I have yet to hear a convincing explanation from a Minister of why we cannot go through the process suggested by my hon. Friend the Member for West Dorset (Mr. Letwin), which is to withdraw from the European convention for a split second and rejoin with reservations, which are exactly what France has. By doing so, we would be dealing with the root cause of all the problems that we have been discussing today and on Monday—the conventions that we have signed up to and the way in which they are interpreted by lawyers—and we would have no need to twist our domestic laws and liberties.

Diane Abbott (Labour, Hackney North and Stoke Newington)

We are now, happily, moving from the choreography of carefully calibrated concessions on to the substance of the Bill, and the substance of the set of clauses before us is the notion of internment without trial. I have heard Ministers say that it is not internment because people can always leave the country, but I point out to colleagues that anyone who knows anything about the workings of the immigration system knows that it is highly unlikely that any other European Union or American state would accept someone whom we had just interned, so in reality the only place they could go would be the country in which they were at risk of torture or worse—so it will feel, and look, very much like internment without trial.

Much has been made of the suddenness with which this issue has been blown up and the importance of moving speedily, but it has long been the wish of some of the most gruesome, most barbaric, most undemocratic regimes in the world to get the Government to act against people whom they deem to be terrorists. Finally, and fortuitously for them, they have got their wish in these clauses on internment.

As other hon. Members have pointed out, these clauses potentially have a very wide ambit. It is no good Ministers briefing people privately that only half a dozen individuals will be affected. Thousands of people in this country are card-carrying members of organisations that we, perhaps rightly, have proscribed, but which they consider to be nationalist groups of a somewhat robust nature. I know that membership of the PKK or of certain Sikh organisations will not, on its own, bring people within the ambit of certification, but the Bill is potentially wide ranging, and that is why it is unfortunate that we have so little time to debate it.

Let me remind the House that it has long been accepted, certainly by most Labour Members, that internment was one of the best recruitment sergeants that the IRA ever had. We are supposed to be acting against terrorism and reassuring young people, whether they are Muslim or Catholic, about the fairness of British society and the things that we stand for, but the notion of internment without trial runs clean contrary to the idea of an effective war against terrorism. Even if it were possible to persuade some of us that in certain limited circumstances—much more prescribed than those in the Bill—internment was the only practical option, the notion of internment without judicial review would be completely unacceptable.

I know that I will see colleagues marching through the Lobby to vote for internment without trial whom, many years ago, I would never have dreamt of seeing voting for such a thing. The Government, with the size of their majority, can pass these clauses any which way they like, but many hon. Members on both sides of the House look to the Lords to make this legislation acceptable both to the course of an effective war on terrorism and to this country's traditions of liberty and justice.

Annabelle Ewing (Scottish National Party, Perth)

I shall be brief because I know that many hon. Members wish to speak. It goes without saying that many of the Bill's provisions are welcome and do not cause concern, but I am afraid that part 4 does not fall into that category. I join the many hon. Members on both sides of the House who lament the extremely limited time that we have been given to examine these fundamental provisions.

As a lawyer—one of that popular breed—and a Scottish Member, I must point out that many of the provisions will have a significant impact on Scots criminal law. It is a great shame that we are debating them in a Committee of the whole House in proceedings that will last only three days. Only one Scottish Labour Member has seen fit to participate and, when one considers that the Scottish Executive happily proposed in a Sewel motion that the matter be passed to Westminster to be dealt with, that is a great shame for all those who have an interest in the integrity of Scots law.

The SNP cannot support a measure to introduce detention without trial. We believe that the right to trial following detention is a fundamental tenet of the legal systems in Scotland and elsewhere in the United Kingdom. If the Government are to depart from that, they will have to make a much better case. That is why my hon. Friends and I voted against the motion to invoke the derogation from the European convention on human rights. It is notable that no other contracting party to the convention has sought that derogation, and the UK Government have failed to make a case for their desire to do so.

I find it staggering that the Government seek not only to invoke a derogation but, in clause 30, to preclude the jurisdiction of our supreme courts to test the validity of that derogation by way of judicial review. That is why my hon. Friends and I have tabled an amendment to the clause.

Many comments have been made about SIAC, and I made an intervention on the nature of that strange body. One hon. Gentleman made the point that if we involved the courts fully, it would be like substituting one High Court judge for another. With respect, that shows a fundamental misunderstanding of the nature of the legal systems in this country. To say that SIAC is a court could not be further from the truth. It bears no resemblance to a court, and if we want to bestow on that body significant powers on the right to appeal and to a trial following detention, we should come out and say so, instead of pretending that SIAC is a court of law.

It is not helpful to say that there is an appeal on a point of law which may or may not involve certain procedural matters. We are talking about the right to appeal, on a point of fact or law, to the court of first instance about the decision of the court of first instance. Which court would then determine the merits of the initial decision? The answer is no court. Surely we cannot sign up to such a fundamental breach of our civil liberties without due cause being shown, which it has not been.

My colleagues and I will be unable to support the clauses. The Home Secretary pointed out that choices had to be made, and he is correct. In any measure to be adopted, there is always a balance to be struck between the interests of security and respect for fundamental civil liberties. The Government have not struck that balance in part 4.

Mike O'Brien (Labour, North Warwickshire)

I rise to support the provisions that the Home Secretary has brought to the House, but also to say how pleased I am with his agreement to make concessions. Like many Members, I am uncomfortable with some of the provisions, particularly those on detention and human rights legislation. I helped to get that legislation through the House, and I feel distinctly uncomfortable about circumstances in which it may be undermined. The sunset clause agreed by the Home Secretary is therefore very welcome, and I congratulate members of the Home Affairs Committee on their efforts to secure that.

The circumstances facing this country after 11 September mean that there is a serious threat to the people of this country, which means that we should take the necessary steps to protect them. There are people in the United Kingdom who are wanted for terrorism in other countries; they may have committed no offence in this country for which we can arrest them, but we cannot return them to their country of origin. In the current international crisis, we must be able to deal with such situations.

When the Human Rights Act 1998 was being discussed, we were well aware that this problem might present itself. At that stage, however, it did not look as if the threat from such individuals would be great. After 11 September, the situation changed. I hope that in due course we will be able to overturn our derogation from part of the European convention on human rights and fully comply with it. That may well be some time in the future, but the sooner the better. What is required now is a balanced response, and that is what the Government seek.

Robert Marshall-Andrews (Labour, Medway)

Will the hon. Gentleman give way?

Mike O'Brien (Labour, North Warwickshire)

I am conscious that I have limited time, but I will give way.

Robert Marshall-Andrews (Labour, Medway)

I am interested in the observation that we are going to imprison people who have committed no offence in this country. As I understand it, even the Home Secretary does not go that far, as he says that there are people who have committed offences, but who, for some reason or other, we cannot bring to trial.

Mike O'Brien (Labour, North Warwickshire)

As I understand it, my right hon. Friend the Home Secretary is saying that we have good cause for believing that the people in question are involved in activities that might lead to terrorist offences or are supportive of such offences. That is a somewhat different prospect. Of course, if those involved had committed offences in this country, we would be able to deal with them in our courts. That is the way in which we should deal with them, but we are facing circumstances that are somewhat different. I am afraid, therefore, that my hon. and learned Friend, who is usually very good on these matters, is not quite right on the point that he made.

I want to deal briefly with a number of issues. First, the decision to be taken by any Home Secretary in these circumstances will be difficult. He will have to make a judgment based on the evidence, some of which will come from confidential and high-security sources. That is a difficult decision for him to make, but once it is made, it is right that it should be subject to a review. SIAC has been established for the purpose of reviewing very difficult decisions made by the Home Secretary. I have heard some nonsense from the Opposition about SIAC being a mere immigration commission that is of little importance. It deals with fundamental issues about returning people to countries when they will not necessarily wish to return there.

Annabelle Ewing (Scottish National Party, Perth)

Will the hon. Gentleman give way?

Mike O'Brien (Labour, North Warwickshire)

No, I shall not do so.

Decisions may be made and referred to SIAC about returning people to their countries. Of course, they may be in some fear about doing so, so SIAC deals with serious situations. That is why it is a high-powered commission on which a High Court judge, an immigration judge and a specialist in security matters sit. This is indeed a very serious body. I believe that the question whether it qualifies as a court of record is immaterial. It is a serious and high-powered body that is presided over by a High Court judge and deals with serious issues. It has a special procedure that enables intelligence information to be dealt with by the special counsel procedure set up under the legislation.

Bridget Prentice (Labour, Lewisham East)

On the information from security services, will my hon. Friend make a quick comment about why it is important for the cases to be dealt with by SIAC and not judicial review, because of the potential effect on our intelligence services?

Mike O'Brien (Labour, North Warwickshire)

That was the very point with which I was about to deal. Under SIAC procedures, the defendant does not get to know the source of the intelligence information that is provided to the Home Secretary. If we were to deal with these matters by judicial review, they would be referred to the divisional court. There is not currently a procedure that could enable the defendant to put his case properly before the divisional court by way of judicial review and in which he would have access to all the information about which the decision is made, other than by using certificates of public interest immunity. I suspect that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) will be seeking to intervene on that point. We know about the problems that have arisen in relation to certificates of public interest immunity in the past. There is a great reluctance to apply them, but that would seem to be the only way in which we could get these matters before the divisional court. We would be creating an entirely artificial situation that would not enable the defendant properly to examine the case against him in any event and would not involve the sort of the protections that hon. Members on both sides of the House have been seeking to claim too much in respect of judicial review.

Robert Marshall-Andrews (Labour, Medway)

That point is simply wrong. The divisional court has the powers to receive whatever evidence it wants, in whichever form it wants. It does not have to reveal material from security sources to somebody who appeals to it. I am afraid that my hon. Friend is simply wrong.

Mike O'Brien (Labour, North Warwickshire)

My hon. and learned Friend misses my point. If he is suggesting that judicial review would enable the Home Secretary's decision to be reviewed by the court in its fullest context, including the intelligence information that is supplied to him, I must point out that that is not the case. In effect, he is agreeing with me that such a procedure would not provide the level of judicial review that most people—who are not lawyers in this House—would expect those who favour proper protection to want. The only protection that they expect is that provided by ensuring that the Home Secretary's decision is fully reviewed in a process that includes the intelligence information. The only context in which the intelligence information and all the other facts of the case can be properly reviewed is SIAC, which has proper procedures, a senior High Court judge and circumstances in which all the facts can be examined. The special counsel can examine the security matters and the defendant's own counsel can examine the other matters before SIAC, and a judgment can then be made. It is unnecessary to have first, a High Court judge, an immigration judge and others review the Home Secretary's decision, and then also to go off to the High Court for another few judges to review it once again, without even the benefit of the defendant putting the full case, as he is unable to have before him all the facts that will be before SIAC.

Thus, judicial review would create a wholly unnecessary, virtually spurious and messy new procedure. The Home Secretary's decision can be properly reviewed and it is necessary for that review to take place, but once the decision has been made, there is sufficient protection in the sort of procedures that we are undertaking for a very small number of people. It seems to me that the Home Secretary has shown that he is prepared to listen and to consider the concerns of hon. Members. However, I do not think that he needs to listen to the arguments that have been advanced in relation to judicial review. He can do so, but I do not think that he should accede to them, as the result would be a situation that would not protect the defendant in the way in which some of those who advocate it suggest.

The objective for the Home Secretary should be to protect the citizens of this country and to ensure that we also protect their liberties. He is seeking to create the right balance in doing that and I support him on the plans that he is proposing.

Quentin Davies (Conservative, Grantham and Stamford)

I am conscious that we have very little time left and that we have not had an opportunity to hear back from the Government about the all-important matter of amendment No. 98. I remind the House that that amendment seeks to remove the lines in clause 21(4) that state:

"'international terrorism' does not include terrorism concerned only with the affairs of a part of the United Kingdom."

The provision has caused the greatest consternation and anxiety in Northern Ireland. When others of our countrymen realise what the Government have in mind, they will share that concern.

Two big issues are at stake: the practical issue and the issue of principle. My hon. Friend the Member for West Dorset (Mr. Letwin) set out the practical issue very clearly. If someone who is a terrorist or is connected with a terrorist organisation and whose purposes are not at all friendly—indeed, they will be very hostile—comes to this country with the objective of getting involved in terrorism in a part of the United Kingdom, perhaps in Northern Ireland, the powers that the Home Secretary is rightly taking to deal with an emergency would not apply. In that respect, there is a major lacuna and a big practical problem that has been left unresolved.

The whole House will notice that the Home Secretary and his colleagues on the Treasury Bench did not take the opportunity that was open to them either to intervene on my hon. Friend the shadow Home Secretary or to seek to respond to the point. There is a fundamental matter of principle as to whether we should allow into the law of the land an invidious distinction that implies that different regimes can be applied to those involved in international terrorism and those involved in terrorism within our shores. There must be an absolute principle—and I would have thought that the House of Commons would accept it unanimously—that we must be at least as rigorous in pursuing threats to our own people as we are in defending other countries around the world against the threat of terrorism.

We expect other countries to show the same solidarity when we face terrorist threats as we have shown when such threats have been directed against them. Equally, we must ensure that our laws are even-handed and do not distinguish between the two. The last thing that we must do is to leave gaps in our laws that can be exploited by terrorists who might be targeting the United Kingdom when we are trying to close those gaps as regards terrorists who operate elsewhere.

It being half-past eight o'clock,The Chairman, pursuant to Order [this day], put forthwith the Question already proposed from the Chair.

Amendment agreed to.

Amendment proposed: No. 98, in clause 21, page 11, leave out lines 12 and 13.—[Mr. Letwin.]

Clause 25 — Certification: appeal

Clause 26 — Certification: review

Clause 106 — Bribery and corruption: foreign officers etc.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this we may discuss the following: Clauses 107 and 108 stand part.

New clause 5—Consent for prosecution under sections 106 or 107—

'.—(1) No prosecution for an offence under sections 106 or 107 shall be instituted except by or with the consent of the Attorney General.

(2) The Secretary of State shall lay before both Houses of Parliament at least once every twelve months a report on any prosecutions arising under section 106 or 107.'.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Mrs. Heal. I raise this point of order so that we do not make mistakes later on. The provisions in the group that we are about to discuss all relate to bribery and corruption. Clauses 107 and 108 are then grouped next on the list. If we finish our debate on that group before 10 o'clock and are able to begin consideration of clause 109 at 10 o'clock, can we vote on clause 109—I guess that clause 110 will be grouped with it—without having compromised our views on the earlier clauses which will by then have been disposed of? I want to ensure that they can be separated.

Oliver Letwin (Conservative, West Dorset)

Further to that point of order, Mrs. Heal. If matters should not fall that way, I understand that you will be under an obligation under Standing Orders to call clauses 107, 108, 109 and 110 together. In which case, I place it on record that although we will be voting against that collectivity, it will actually be a vote against clauses 109 and 110 and not against clauses 107 and 108.

Beverley Hughes (Labour, Stretford and Urmston)

Clauses 106 and 107 implement proposals contained in our White Paper, "Raising Standards and Upholding Integrity: the Prevention of Corruption". As we noted earlier, all parties expressed support for the clauses. We hope that the clauses meet our commitments to the OECD convention.

Clause 106 will ensure that the common law offence of bribery extends to persons holding public office outside the United Kingdom. It will also amend the Prevention of Corruption Acts to ensure that they cover the bribery and corruption of foreign public bodies and officials, as well as those in the private sector, irrespective of whether their functions are carried out here or abroad.

Clause 107 will extend our courts' extraterritorial jurisdiction over bribery and corruption offences committed abroad by United Kingdom nationals and bodies incorporated under United Kingdom law. Clause 108 is technical, but important, as it will ensure that the existing presumption of corruption will not apply more widely as a result of those clauses.

Humfrey Malins (Conservative, Woking)

I hope that the Committee will sympathise with me tonight because such is the nature of this place and these proceedings that, at different times during the course of the day, I have anticipated having to speak on bribery at very great length, very briefly or not at all. I have concluded that brevity would be appreciated by the Committee, because other important debates should be allowed to start as soon as possible after this one.

What of these proposals to implement the OECD convention so as to make it an offence to bribe a foreign official to induce him to give a benefit? In short, the proposals are worthy, and they have our support. Their implementation may have nothing to do with the current emergency; their connection with terrorism or security may be almost non-existent, but we are right to find a place for them nevertheless. However, may I make a few points to the Committee?

First, I find it terribly sad that we have no time to discuss these matters fully. They deserve close scrutiny; they deserve the attention of the whole House. One of the saddest things about today is that a number of very important issues will not get the time that they deserve. They deserve also very wide consultation, so I hope that the Government have consulted the British business world—after all, it will be affected—and taken its views into account.

I hope, too, that the Government have considered some of the practical difficulties of holding criminal court cases here that involve principally witnesses based outside our jurisdiction and that they have spoken to bodies such as a the Crown Prosecution Service, the judiciary and the Bar Council about some of those possible difficulties.

Secondly, do the Government realise that the proposals may have profound effects on our trade and on employment in this country? Do they accept that the proposals that we are considering tonight are thought by many to be a major self-denying ordinance, which we will, no doubt, obey in this country, while many of our competitors will not? Many countries that are signed up already ignore the convention, or they allow people to avoid it by using devices such as bogus consultancy contracts.

Of course, it is wrong to bribe foreign officials to get contracts, but that is often the way of the buying world. Interestingly, no country in Africa or the middle east has signed up. Only one country in south America is signed up. Very few countries in Asia have signed up, and Russia and China have not. It is because the Opposition feel that in all cases, including the common law offence of bribing a foreign official that will be newly created under clause 106, prosecutions should be brought only with the Attorney-General's consent, and because we believe that an annual report to Parliament detailing all such prosecutions should be required that the Opposition have proposed new clause 5, which covers just those points.

Particularly, in view of the time constraints on all hon. Members tonight, I hope that the Government will be very kind and helpful, and that they will accept new clause 5. It is quite a good new clause; I helped to draft it myself. It would be a great kindness if the Government were to consider it. I know that they have doubts about it, but an annual report to Parliament on prosecutions should not cause them any difficulty.

Denzil Davies (Labour, Llanelli)

Will the hon. Gentleman tell us why he wants prosecutions to be brought only with the Attorney-General's consent?

Humfrey Malins (Conservative, Woking)

The Attorney-General's consent is already required for certain bribery offences. These provisions also face a novelty. If a British person bribes someone abroad—whether within or without the Bill's remit—there may be sensitive legal complications. Therefore, it seems to Conservative Members that the Attorney-General's consent would be very useful in every case.

Kevin McNamara (Labour, Kingston upon Hull North)

Is the hon. Gentleman suggesting that there might be cases in which bribery is all right? Is he suggesting that it might be useful to secure a nice, fat, juicy defence contract but that it would not be nice if it secured a simple one for organic food?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a point, and I am stumped for a response. I have just noticed the clock, and I undertook to be brief. How time passes when one is enjoying oneself.

George Osborne (Conservative, Tatton)

Have not the Government wished for a long time to incorporate the OECD convention on bribery into British law? Although we can debate at length the merits of the convention and whether it should be incorporated, it has absolutely nothing to do with the emergency powers needed to deal with the international terrorist threat.

Humfrey Malins (Conservative, Woking)

My hon. Friend is absolutely right; I made that point earlier.

I conclude by asking the Minister to clarify the position. I hope that I am wrong, but it seems to me that the common law offence as proposed would be committed by our security services every time that they bribed a foreign official to spy for us. That is a serious point and I would be very glad if she could deal with it. If that problem exists, I am sure that, for obvious reasons, the Committee would wish to remove it.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I am a little diffident about this proposal. Years ago, I had a summer job in Africa and I was responsible for accepting goods into a company's warehouse. It was impossible to do that job without providing money to a Government official. Much of the world works on that basis. In some countries, simple transactions need the lubrication of assisting public officials to make ends meet. That places us in a difficult position. Under the provision, I would presumably have been guilty of transmitting a $20 "dash", as it is called in Africa. However, that process operates around the world.

Humfrey Malins (Conservative, Woking)

My hon. Friend is right. He refers to the practice of giving a "dash" and, if I may be forgiven for saying so, I must point out that my dear late mother passed her driving test in Africa only because my father, who was a Church of England clergyman, gave a "dash" to the driving instructor.

We have to look at the world as it is. We have to be sure that, in implementing the proposals, we take into account the effect that they will have on British business and commerce. [Interruption.] It is all very well for Labour Members to mutter, but Conservative Members have some concern for British business and we know something of the problems in the world. We hope that the Government will the examine the matter carefully and—possibly in another place—reconsider the provision to satisfy themselves that these proposals, which on paper are very worthy, will not be the impediment to British industry that some of us fear that they will be.

Norman Baker (Liberal Democrat, Lewes)

I shall be quick. Clauses 106 to 108 are unusual in two ways: they are reasonably uncontroversial by comparison with the rest of the Bill and the Government bothered to discuss them properly with the Conservative and Liberal Democrat parties, an approach that might commend itself to other provisions. Although I agree with the hon. Member for Woking (Mr. Malins) that the clauses have little to do with terrorism, or anti-terrorism for that matter, we should still speed them on their way. I am conscious that clause 109 is more controversial and attempts to bypass Parliament almost entirely in a sweeping way. However, I shall conclude my remarks by saying that we support the clauses.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I do not want to speed the clauses on their way. They are sanctioned by the phrase "politically correct", but are probably bad legislation. My hon. Friend the Member for Tatton (Mr. Osborne) made a sound point when he said that the provisions have nothing to do with terrorism, but they are subject to a timetable and as a consequence right hon. and hon. Members are too inhibited to speak about them. That is a thoroughly bad thing. I am against the measures for three substantial reasons, which in itself is a good enough reason to oppose the Bill.

First, it is a general proposition of English law that people are not subject to the English criminal law for acts done outside this country's jurisdiction. There are some rare exceptions to that, but as a general proposition we should not extend English law in that way. It gives rise to a range of evidential problems and is difficult to justify because we have to ask what public interest is at stake. That brings me to my second point, which was raised by my hon. Friend the Member for Woking (Mr. Malins).

It is my strong suspicion that the clauses would catch the security services. The Minister should comment on that. Let us be clear about one thing: members of the security services frequently bribe foreign officials in the interests of the United Kingdom. I was in the Foreign Office for five years and no one had better tell me that that does not happen. I find it difficult to understand why such people should be caught by the provisions, and if they are not to be caught, why not?

The American Government have put a price on the head of bin Laden, and a good thing too. In some circumstances, that could constitute a bribe to an official to have him killed, but we are told that that would be an offence under this legislation. If my interpretation of the Bill is wrong, I look forward to hearing the Minister tell me why, but, on the face of it, I am right and the Bill is absurd.

My final point relates to what my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said. All of us who have been involved in trade abroad—I did it as a Foreign Office Minister—know full well the consultancy arrangement and commission. Time and time again, major contracts are acquired by payments of substantial commission. If we are honest about those payments, they constitute a bribe. The money is paid to an agent; it is called a commission. From that commission, the agent pays an inducement. That happens throughout the world. All trading countries do it. If we create a criminal structure that prevents our businesses from doing that, or being fearful of doing that, we will place a serious constraint on them.

I will have no part of the clauses, although I suspect that not enough hon. Members will vote with me. I hope that the provisions will be examined more fully in another place and that the Minister will give a proper answer to my questions. The clauses should not be in the Bill. They involve serious issues.

Beverley Hughes (Labour, Stretford and Urmston)

I disagree entirely with the argument that the right hon. and learned Gentleman just made, and which the hon. Member for Woking (Mr. Malins) made in his introduction: that there is no relationship between these clauses and terrorism. Some Members on the Opposition Front Bench do not share their views either. There is obviously a relationship, in that corrupt Governments help to create the conditions that engender terrorism and we need to make it clear that the bribery of foreign officials is just as unacceptable as the bribery of United Kingdom officials.

George Osborne (Conservative, Tatton)

For how long has it been the intention of the Home Office to incorporate in British law the Organisation for Economic Co-operation and Development convention on bribery? Could the Minister say for how long that has been an objective, so that we may judge whether it needs to be in this emergency legislation?

Beverley Hughes (Labour, Stretford and Urmston)

The convention was ratified by the UK Government in December 1998.

George Osborne (Conservative, Tatton)

Right.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman has not been in the House very long, but he may know that last year, a White Paper was published that proposed the revision of all our laws on bribery and corruption. Such revisions will be made in due course. In the meantime, all parties have agreed that these two clauses represent the minimum that we need to do to try to ensure our compliance with the OECD convention as far as we can. Actually, the start of that process was a specific request in a debate in the House, by the Conservative party's spokesperson on international development, the hon. Member for Meriden (Mrs. Spelman), that the Bill be used as the vehicle for these two clauses.

We certainly agree with the spirit of the first part of new clause 5, but I have to tell the hon. Member for Woking, despite his evident hard work prior to tonight, that I am afraid that that has all been irrelevant because the Bill amends existing statutory offences, both of which already require a Law Officer's consent, so that requirement applies to the clauses in part 12 without the need for any further amendment.

Andrew Turner (Conservative, Isle of Wight)

Could the Minister help me by answering the question asked by my right hon. and learned Friend the Member for Grantham—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Sleaford and North Hykeham.

Andrew Turner (Conservative, Isle of Wight)

Grantham and Sleaford. [Hon. Members]: No. Just Sleaford?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Sleaford and North Hykeham.

Andrew Turner (Conservative, Isle of Wight)

I am so sorry. I am wasting time. The question was whether bribing a foreign official to indicate the whereabouts of Mr. bin Laden would be unlawful under the clause.

Beverley Hughes (Labour, Stretford and Urmston)

I shall reach that point in a moment.

Just to deal with the second part of the new clause at this stage, I do not share the view of the hon. Member for Woking that the proposal for reporting to Parliament is necessary. The total number of persons proceeded against under the Prevention of Corruption Acts in the last calendar year was 17. On the basis of the experience in the United States we expect, as a result of these clauses, only another very small number—perhaps fewer than five—and I believe that a report to Parliament on that basis would be rather over-egging it.

Denzil Davies (Labour, Llanelli)

There may be only a few cases, but is not there a case in principle for asking the Attorney-General to make a report to the House of Commons on the exercise or non-exercise of his discretion?

Beverley Hughes (Labour, Stretford and Urmston)

No; I do not share that view. I do not consider that necessary. That is why, at the appropriate time, I shall ask the hon. Member for Woking not to press new clause 5.

In answer to the question about the security services, we certainly do not envisage any circumstance where a prosecutor would consider instigating any proceedings in the situations outlined by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), and the requirement that the Attorney-General do give his consent to any statutory prosecutions is a long-stop safeguard, were that to be needed.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

But let us be clear about what the hon. Lady has said. She has said that the act would be criminal, but that she is relying on the discretion of the Attorney- General not to start a prosecution.

Beverley Hughes (Labour, Stretford and Urmston)

That is not what I said. I said that we did not envisage any circumstances, such as those outlined by the right hon. and learned Gentleman, which would satisfy the threshold for prosecution and, in any case, the fact that the Attorney-General's consent would be required is a safeguard.

Question put and agreed to.

Clause 106 ordered to stand part of the Bill.

Clauses 107 and 108 ordered to stand part of the Bill.

Clause 109 — Implementation of the third pillar

Oliver Letwin (Conservative, West Dorset)

I beg to move amendment No. 102, in page 65, line 19, after "may", insert "not".

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following amendments: No. 103, page 65, line 19, after "provision", insert "except".

No. 59, in page 65 leave out lines 21 to 28 and insert—

'arising from the 2001 Framework Decision of the European Union on combating terrorism'.

No. 104, in page 65 line 21, after "pillar", insert—

'limited to those directives that may be required to be implemented by 31st December 2001 under the Framework Decision on Counter–Terrorism and the 1994 and 1995 Supplementary Convention on Extradition'.

No. 22, in page 66, line 8, leave out—

'except in accordance with subsection (7)'.

No. 21, in page 66 line 24, leave out subsection (7).

Clause stand part.

Clause 110 stand part.

Oliver Letwin (Conservative, West Dorset)

I begin what will, of necessity, not be a long utterance by pointing out, mainly for the purposes of the other place but also I hope, in due course, for a wider audience, that it is positively one of the most astonishing features of our much-prized democracy that we can be discussing in 14 minutes a couple of clauses that relate to the fundamental structure of this country's constitution.

Clause 109 deals with the removal of proper parliamentary scrutiny of legislation on justice and home affairs, which it was the noble purpose of our former colleague and Prime Minister, John Major, to institute when he brought about, at great pains to himself and to the Government whom he led, the third pillar of the EU.

We are now faced with a Bill that will make it possible for the Government of the day to implement decisions on matters of British law, with criminal penalties attached, which have been arrived at by negotiation under the prerogative power between Ministers in Brussels, without going through the laborious process that our predecessors so carefully constructed of First and Second Reading, Committee stage, Third Reading and a similar passage in the House of Lords. None of that will now be necessary.

Teddy Taylor (Conservative, Rochford and Southend East)

Does my hon. Friend not think it terribly wrong to treat European Union treaties as though they had been amended by the treaty of Nice before that treaty has been approved by all member states?

Oliver Letwin (Conservative, West Dorset)

I do, although I have to say that by comparison with the fundamental destruction of parliamentary check that these clauses bring about, that is a fine point, which I would expect my hon. Friend to make. It is an important one, but it is by no means as important.

Angela Eagle (Labour, Wallasey)

Does the hon. Gentleman admit that the powers that we are talking about are broadly similar to, and based on, those in section 2(2) of the European Communities Act 1972, which have been working very well since our accession in that year, and that they guarantee effective parliamentary scrutiny?

Oliver Letwin (Conservative, West Dorset)

I suppose that the Minister and I have completely different views of the centrality of legislation that entails putting people in jail. Perhaps that is the central theme running through our discussions tonight. We are dealing here with something that people in the time of Charles I would certainly have recognised but which it appears Ministers have lost sight of. Our predecessors fought a civil war to try to prevent the Executive from introducing legislation under the prerogative power that would put our citizens in jail. Now, as long as the Executive take themselves off to Brussels, they will be able to do just that in a 90-minute debate hidden away Upstairs. That is a monstrosity.

Kevin McNamara (Labour, Kingston upon Hull North)

The hon. Gentleman will be aware that the city of Hull started the civil war by slamming its gates in the face of King Charles I, who went off to Nottingham in a huff. There is a democratic deficit in relation to the whole question of the third pillar. Would it not be far better if we were to seek to amend the treaties so that the ambit of the third pillar, and defence aspects and so on, came under the aegis of a properly elected European Parliament?

Oliver Letwin (Conservative, West Dorset)

The hon. Gentleman and I will differ on that point, but at least we are joined in holding the view that there should by some means be a proper democratic check. I prefer that which is provided by our own Parliament.

The Bill proposes not the replacement of one democratic check with another, but merely the removal of the greater part of that which exists. I hope that the hon. Gentleman will join us in seeking to remove these clauses wholesale, with one slight exception that the Opposition have explored with the Liberal Democrats. We understand there to be a small set of pre-existing obligations under the third pillar, which we have specifically exempted in our amendments.

We also understand that it is the intention of Ministers—we hope that they will fulfil it in practice—to introduce the European arrest warrant provisions, and hence to subject them to the full glare of parliamentary scrutiny with a reasonable timetable. We are grateful for that. Thus, we are talking about implementation of every decision and framework decision under the third pillar thereafter. I hope that the Committee will realise what it is doing if it allows Ministers to introduce the legislation in its current form. If it does not realise that, I hope that the other place will do so.

George Osborne (Conservative, Tatton)

My point concerns an issue raised by my hon. Friend the Member for Witney (Mr. Cameron) in his cross-examination of the Under-Secretary in the Select Committee on Home Affairs. He asked her whether, as a result of the clause, measures that had absolutely nothing to do with terrorism could be introduced by affirmative resolution in this House rather than in primary legislation. She said, "The answer is yes."

Oliver Letwin (Conservative, West Dorset)

Not only was that her answer, but it was true.

David Cameron (Conservative, Witney)

Does my hon. Friend accept that it is not only Opposition Members who feel strongly about the extraordinary power that is being taken in the clause? The Home Affairs Committee—a Labour-dominated body—agreed unanimously that it was wrong to take the power. Indeed, amendment No. 59, which originates from the Committee, seeks to restrict the power to provisions that apply to terrorism in the framework directive.

Oliver Letwin (Conservative, West Dorset)

My hon. Friend is absolutely right.

I now want to sit down to give the maximum opportunity to my opposite number, the hon. Member for Southwark, North and Bermondsey (Simon Hughes), to make the point that we are not discussing a piece of Conservative Euroscepticism. The issue has nothing to do with that, as it relates to the preservation of the fundamental ability of this House to protect British citizens.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall be extremely brief. I want to make the point that I was invited to make by the hon. Member for West Dorset (Mr. Letwin). The view about how we should proceed on this matter unites people who have always been sceptical about more powers going to the European Union, such as the hon. Member for Rochford and Southend, East (Sir T. Taylor), and those who have been very positive about that prospect.

We object for three simple reasons. First, it was always understood that justice and home affairs matters needed to be treated differently. That is why there is such a thing as the third pillar and why legislation dealing with liberty, prisons, policing and the rest has always been treated differently—Parliament has always been most keen to reserve its authority over those matters.

Secondly, in that area the decision of the Council of Ministers is not subject to a co-decision by the European Parliament. I do not think that all my colleagues are aware of that fact. There does not have to be democratic accountability somewhere else for that decision. There is no democratic accountability.

Angela Eagle (Labour, Wallasey)

I think that the hon. Gentleman will find that the European Parliament takes a co-decision on some of the issues. His argument that there is no way in which that Parliament can oversee the matter—leaving aside the scrutiny that takes place as all these directives are drawn up through our processes here—is wrong.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I stand to be corrected, but I talk to colleagues who are Members of the European Parliament and lead the group there. I understand that the matters that would be governed by these clauses, which would allow the Secretary of State to put statutory instruments before the House to be debated and disposed of in 90 minutes, are not matters that would go to the European Parliament after the Council of Ministers decides on them.

The hon. Member for West Dorset, the Conservative party, the Liberal Democrat party and I have agreed that, where the United Kingdom has said that it will pass certain measures into law by the end of this year, we must do so—matters that are clearly related to terrorism or have a timetable commitment.

We are not willing, however, to sign up to a sudden change in a very delicately negotiated constitutional settlement, which provides that third pillar justice and home affairs matters will be treated differently until and unless Parliament decides otherwise. We have not debated whether we should decide differently. We have never looked at the issue in the round. We have not considered amendments to the treaty. We are being asked to do all that here, in a limited time, in the context of this Bill. That is inappropriate and I hope that hon. Members on both sides will support the amendments and will vote that the clauses should be taken out of the Bill.

Angela Eagle (Labour, Wallasey)

I ask the Committee to resist all the amendments and agree that clauses 109 and 110 should stand part of the Bill.

On bypassing Parliament, which is the issue that has caused the outrage, these powers have been broadly working in relation to the first pillar since 1972. They provide an effective way for this Parliament to scrutinise the decisions taken—by unanimity—in the Justice and Home Affairs Council.

Annabelle Ewing (Scottish National Party, Perth)

Will the hon. Lady give way?

Angela Eagle (Labour, Wallasey)

I do not have time. I have only two minutes to answer some of the questions that have been raised. [Interruption.] I will not give way. [Interruption.] If Opposition Members had not spent so much time talking and voting, we would have had the time to have a much—[Interruption.]

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Order. Hon. Members may wish to hear what the Minister has to say.

Angela Eagle (Labour, Wallasey)

If we had spent less time on some of the shenanigans that we have witnessed tonight, we would have had more time to deal with the debates.

Andrew Turner (Conservative, Isle of Wight)

On a point of order, Mrs. Heal. Is it right to describe debating and voting on clauses as shenanigans? Is it not a right of hon. Members?

Angela Eagle (Labour, Wallasey)

The amendments to the clauses that try to focus only on terrorism simply do not work. The framework decisions that the Justice and Home Affairs Council is drawing up deal with serious crime too. If Opposition Members are serious about fighting terrorism, they need to consider not only the framework decision on terrorism but the decisions on freezing assets, money laundering and mutual judicial co-operation, which help us to catch terrorists. We know from the documents that are emerging from Kabul that al-Qaeda has been involved in money laundering and drug smuggling.

Opposition Members want to say that terrorism is important, but they also want to tie our hands when it comes to judicial co-operation on dealing with terrorist organisations. They need to realise that we need to take power at European level to ensure that we can deal with global organisations in the most effective way.

It being Ten o'clock, The Chairman, pursuant to Order [this day], put forthwith the Question already proposed from the Chair

Clause 111 — Use of noxious substances to cause harm and intimidate

Clause 115 — Information about acts of terrorism