Orders of the Day — Anti-terrorism, Crime and Security Bill

House of Commons, 12 December 2001.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I must draw the attention of the House to the fact that privilege is involved in Lords amendment No. 43, which is to be considered today. If the House agrees to this Lords amendment, I shall ensure that the appropriate entry is made in the Journal.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Madam Deputy Speaker. For the convenience of the House, it would be helpful, given that we have groups of Government motions and amendments from the other place, if you could tell us what will happen when we reach each of the cut-off deadlines, in terms of what could be voted on, what must be voted on, what will be taken separately and what will be taken together. That would spare us the confusion that we, not surprisingly, got into last week, when we got into slightly difficult procedural areas.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I think that there could be quite an involved answer to the hon. Gentleman's question. May I suggest that he confers with the Clerk at the Table, so that we can proceed with the business of the day?

Jeremy Corbyn (Labour, Islington North)

Further to that point of order, Madam Deputy Speaker. I recognise your advice to the hon. Member for Southwark, North and Bermondsey (Simon Hughes) to go and talk to the Clerk, but may their conversation be broadcast to the rest of us, so that we can have some understanding of exactly what voting there is to be and when, and what we are voting on?

David Blunkett (Labour, Sheffield, Brightside)

Further to that point of order, Madam Deputy Speaker. I might be able to help here. I hope that there is consensus on being able to vote on each collective part of the Bill as returned to us from the House of Lords, so that, on the cut-off points, we are able to vote on the substantive main amendment with those taken with it—so that there is an understanding of the terms in which we are doing that—rather than spend all the time having to vote on individual items. We would be very happy to accommodate that with all Members of the House.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

All motions to disagree and Lords amendments will be voted on separately.

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

On a point of order, Madam Deputy Speaker. I think that you might just have answered my point of order. However, although I am sure that the Home Secretary was trying to be helpful to the House, it is perhaps a failing on my part that I did not understand exactly what he was saying.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Could I perhaps clarify my response? All motions to agree will be taken together, and amendments to Lords amendments will be taken separately. Motions to disagree will be taken separately as well.

Jeremy Corbyn (Labour, Islington North)

On a point of order, Madam Deputy Speaker. I understand the advice that you have just given to the House. Are those votes going to be taken at the conclusion of each section, or are we going to have a mammoth voting session at midnight?

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Under the programme motion that was agreed, you will see that there are set times for those votes to be taken.

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

On a point of order, Madam Deputy Speaker. So far as I can see, that means that there are potentially at least seven votes in the first section, which could take at least an hour and a half. We have only an hour and a quarter to debate the whole of the next section.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

May I remind the hon. Gentleman that that is a consequence of the programme motion that was agreed to?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Madam Deputy Speaker. This is my last point of order. I am trying to be helpful to the House in responding to the Home Secretary's helpful intervention. Certainly, those on our Benches—and I think that I am right in saying the Conservatives, too—would seek to test the opinion of the House on an issue at the beginning of a group, rather than detain the House by voting on all the subsequent matters. We will choose—I hope with the compliance, as it were, of the Government—the substantive main point, and seek to divide on it, and then move on to the next section.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I thank the hon. Gentleman for that.

Oliver Letwin (Conservative, West Dorset)

On a point of order, Madam Deputy Speaker. I rise just to confirm that that is also our intention.

David Blunkett (Labour, Sheffield, Brightside)

On a point of order, Madam Deputy Speaker. I had better confirm that that is my understanding as well.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I think that we are now all in agreement.

Clause 17 — Extension of existing disclosure powers

David Blunkett (Labour, Sheffield, Brightside)

I beg to move, That the House disagrees with the Lords in the said amendment.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this, we may take the following: Lords amendment No. 6 and the Government motion to disagree thereto, Lords amendments Nos. 7 and 8 and the Government motion to disagree thereto, Lords amendment No. 38 and the Government motion to disagree thereto, Lords amendments Nos. 39 and 40 and the Government motion to disagree thereto, Lords amendments Nos. 41 to 43, Lords amendment No. 44 and the Government motion to disagree thereto, Lords amendments Nos. 45 to 47, Lords amendment No. 48 and amendments (a) and (b) thereto, Lords amendments Nos. 49 to 64.

David Blunkett (Labour, Sheffield, Brightside)

First, and in the interests of brevity, I shall describe the way in which we want to proceed this evening and subsequently in the House of Lords. Many things have been said outside the House, but the tone of debate on Second Reading and in Committee was one of constructive dialogue among people rightly querying, scrutinising and, where appropriate, opposing. Tonight and tomorrow, I want to proceed in the same spirit from the Government Front Bench to seek to allay fears and to find common ground where it exists, disagreeing only where we genuinely do so.

There have been misunderstandings from time to time, but the Human Rights Committee, the Home Affairs Committee, individual Members and parties have made suggestions here and in the House of Lords that we have taken on board, whether on sunset clauses or reviews or on reasonableness or links with terrorism. We have adjusted the justice and home affairs provisions. We have included consultation and, where appropriate, affirmative resolution. We have sought to accommodate where we can the genuine concerns of Members of this House and Members of the House of Lords. I intend to try to do so as we proceed tonight.

I must make it clear, however, that no one would understand a position whereby we failed to take the necessary action and, having so failed, were later proved to have failed to provide the necessary protections. That is the spirit in which I intend to proceed.

At the end of September, the Leader of the Opposition pointed out why, on part 3 and parts 10 and 11, we need to be clear about the interrelationship of one set of actions with another:

"Global terrorism and organised crime are now inextricably linked. The boundary between terrorist activity and criminal activity has become increasingly blurred. The fingerprints of terrorism lie on the drugs dealt to our children on street corners as surely as they lie on the plans to destroy the World Trade Centre . . . We need to combat the link between international crime and terrorism."

I agree, which is why we ask that parts 3, 10, 11 and 13, with the provisos that we shall deal with tonight, be returned to the House of Lords in a form that restores the previous intentions.

I ask the House to reject Lords amendments Nos. 5, 6 and 8, because they would confine what is possible to what

"directly or indirectly relates to a risk to national security or to a terrorist."

We do not believe that it will be possible for people to do their jobs appropriately if those confining mechanisms are put in place. Our law enforcement agencies, the services that provide support to them and our security services have given us a clear understanding that if the Lords amendments are approved by the two Houses, they will simply not be able to do their job. On part 10, the Lords amendments as framed would set the situation back rather than help people to do a better job. I give an example on part 3 in relation to the interchange of information, the knowledge that exists and the way in which people react.

Take an employment agency that is being inspected. The inspectors come across information relating to an individual seeking to take up a particular, sensitive job. It is discovered that that person has claimed large amounts of benefit. Let us call him Mr. AQ, just as an example of someone who might seek to do that. According to the framing of the House of Lords proposal, it would not be possible for that information to be shared. No one outside the House would thank us if we so restrained information giving and the sharing of concerns that Mr. AQ continued to draw benefits. It would be illegal to pass on the information required.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I fail to understand the Secretary of State's reasoning. If it were suspected that Mr. AQ is involved in terrorism and a threat to national security, under the terms of the Lords amendment the information could be shared. On the other hand, if we wanted to investigate Mr. AQ for benefit fraud, surely the correct way to deal with that would be through benefit fraud legislation, not anti-terrorism legislation.

David Blunkett (Labour, Sheffield, Brightside)

But we would not know; that is the point. A Mr. AQ is investigated for a range of activities, including massive benefit fraud, and discovered—he may be discovered, let us put it no more strongly than that—to be involved in or even wanted by security and intelligence services elsewhere. That is just a possibility, which even those on the Liberal Democrat Benches might concede to be fairly close to reality.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Does the Home Secretary not realise that a wide gate is opening, through which comes this proposition? Anyone suspected of any crime, or indeed anyone against whom there is evidence of any crime, may have applied to them the full rigour of measures that we could not justify for inclusion in normal criminal legislation. There is just a possibility, unsupported by evidence, that he might have a terrorist intention, but surely that is not the purpose of the Bill. Its purpose is to enable the authorities, if they have such a suspicion of a terrorist involvement, to bring into play powers not normally thought proportionate to the crimes involved.

David Blunkett (Labour, Sheffield, Brightside)

I would not dream of doing to the right hon. Gentleman what Lord Ackner did to me on radio on Sunday—patronise him. Let me put it this way: the interchange described by the Leader of the Opposition on 26 September is the one that I am referring to, and I want to send it back to the House of Lords for reconsideration. I have described a tightening of the noose.

Take Customs and Excise rightly intervening on those who seek to smuggle, be it drugs, people or tobacco. It suspects that someone is undertaking a crime, but it needs to be able to share information, even if it has no proof. Remember that, in those particular circumstances, judicial review and the normal protections of the legal fraternity fall into play. There may be no suspicion of terrorist activity, but Customs and Excise needs to be able to share information with law enforcement agencies, knowing that a great deal of drug smuggling and other activity leads to the funding of terrorism, as the Leader of the Opposition rightly pointed out.

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

Can the Home Secretary explain how a suspicion may be arrived at if there is no proof of any sort against such a person?

David Blunkett (Labour, Sheffield, Brightside)

Obviously, it must be late in the day and late in the week, because I am struggling to understand why my hon. Friend feels that a body involved in such dealings—as Customs and Excise is day in, day out—that had a reason to pass material to the police would do so other than because it suspected that something was amiss. [Interruption.] No, no. The restriction being imposed, if my hon. Friend would kindly read what the Lords have done, restricts to the point where a body has to suspect that a terrorist act is in the offing.

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

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

In a second.

I know that my hon. Friend is trying to help me and to ensure that the position is clarified so that the law enforcement agencies can do their job effectively, irrespective of whether he feels that there should have been a separate Bill. I refer him to schedule 4, which contains a list of disclosure powers that would allow investigation, all involving a different time scale and a different premise. Before the Lords amended it, the clause sought to harmonise arrangements for the sharing of information in a way that would assist the apprehending of terrorists. That is where we started on Second Reading, and it is where we are today.

I think that we have made some progress, in that many who were worried are now less worried. In the Lords great confusion arose, rather than clarity, but we have sought to deal with that by discussing the data protection provisions that can be brought into play. It may help my hon. Friend and Opposition Members, however, if I say what I think we should also do.

As well as referring to the Data Protection Act 1998, we have indicated that the Human Rights Act 1998 would protect people from unjustifiable intrusion. Because—as has just been illustrated—there has been so much worry and suspicion, my colleagues and I feel that we should ask our colleagues in the Lords, when they consider these measures tomorrow afternoon and evening, to clarify what we believed, and still believe, to be automatically the position under the Human Rights Act: that proportionality should apply in relation to the use of the powers we are discussing, so that a judgment can be made on whether those using them have taken into account the proportionality of their suspicions.

Norman Baker (Liberal Democrat, Lewes)

Does the Home Secretary accept that there may be disclosures, or sharing, of information of which an individual has and can have no knowledge, and that that individual will therefore be unable to invoke the Human Rights Act?

David Blunkett (Labour, Sheffield, Brightside)

Yes. That is why my amendment helps: rather than having to apply the Human Rights Act retrospectively, or rely on agencies' familiarity with the terms of the Act, people would be able to understand the meaning of "proportionality" if it were built into the legislation and the guidance issued to such agencies.

We want to ensure that the Bill stands the test of time, and later we will discuss how Members might be accommodated in that regard. Given that we are trying to be helpful, it would assist us if others were helpful to us. I understand the suspicion that is felt; I understand why it is right for every Member, whatever side he or she is on, to ensure that the Executive are challenged and scrutinised. Given that I am trying to be helpful, however, I hope that my efforts will be reciprocated, because tomorrow night we must make decisions that will indeed stand the test of time.

Brian Mawhinney (Conservative, North West Cambridgeshire)

The Home Secretary knows that I broadly support what he is trying to achieve in this regard, but I want to ask him a question that has, in part, already been asked from the Liberal Democrat Benches.

Lords amendment No. 6 concerns national security and terrorist activity, which, as the Home Secretary says, are frequently linked. However, it uses the word "suspects", rather than referring merely to evidence. I wonder whether the Home Secretary is not going too far in opening the gate wider, and whether his lawyers may not have lead him to believe that the word "suspects" is wide enough to encompass what he is trying to achieve.

David Blunkett (Labour, Sheffield, Brightside)

As I have said, we are building the concept of proportionality into the Bill. There are many "suspicions"; the action taken on the basis of those suspicions is the crucial issue, given that we are authorising action through the law. I think that if we can coalesce in ensuring that the suspicion leading to such action is proportionate, we can allay some fears.

We are resisting amendment No. 38, which relates to part 10, and Nos. 40 and 44, which relate to part 11. Our reasons concern the interface between what is needed to tackle terrorism directly and the picking up, as it were, of lines that lead to an understanding of how to pursue terrorists through a knowledge of organised crime and the actions of our services.

Some Members have expressed concern about the extension of powers. As I said in Committee, we have reflected and have sought to allay their fears—for instance, in regard to the use of Ministry of Defence and British Transport police in areas outside their immediate jurisdiction. We have provided for the involvement of the Police Complaints Authority—in future, the independent Police Complaints Commission—in the event of problems, and the Bill already provides for considerable restraints.

The House of Lords—inadvertently, of course; no one would have done this intentionally—has made the use of the MOD and British Transport police even more difficult than it is now. This week a British Transport police officer went beyond his jurisdiction at Finsbury Park station to help a serving Metropolitan police officer who was being attacked by a man with a knife. Both were quite seriously injured. British Transport police helped to restrain the man, who is now in custody.

No one, whatever their feelings or suspicions, would want us to constrain the ability of British Transport police to take such action; nor would they want the MOD police to be constrained if an aircraft crashed outside their jurisdiction, and they were called upon to help. Those are the terms in which we describe what we seek to do in regard to the extension of powers. There will clearly be some restraint, and some reference to the jurisdiction of either the emergency or the local police force.

I feel that, in trying to ensure that people did not go too far, the House of Lords has gone much too far itself. Let me give another example relating to parts 10 and 11. Those who have investigated these issues have no doubt that credit fraud, for instance, is a favoured method of fundraising among the terrorists groups with which we are dealing: that is a simple, known fact. Under our proposals, someone who believed that fraud had been committed at a restaurant but had no reason to connect it with terrorism would be able to share information. The enforcement agencies and security services are familiar with such activities, and with the networks involved in them, and can immediately pick up what traditional forces cannot do without the passing on of such information.

John Burnett (Liberal Democrat, Torridge and West Devon)

I have the impression that the Home Secretary is digging a bigger hole for himself. The security services must liaise with the police. They must be able, in camera and in confidence, to give the police information. The police will then have a suspicion—a legitimate suspicion.

David Blunkett (Labour, Sheffield, Brightside)

If the amendments were passed, that would be the case if they believed there was a terrorist threat, but not if they had suspicions that led to an understanding of a terrorist threat. [Interruption.] It is no use the Liberal Democrats giggling—[Interruption.] Laughing, then. I mistook a gurgle for something else. [Interruption.]

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

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

Not for the moment.

It appears that the Liberal Democrats were not laughing, giggling or gurgling—in which case they were expressing amazement that it might actually be desirable to link one set of information with another in order to apprehend those whom we are discussing.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Home Secretary knows that we are trying to agree on the terms of reference. We understand that credit fraud, for example, may be linked with terrorism. Our proposition is that the suspicion has to be that there is a direct or indirect link and that, provided it comes within that ambit, the amendment passed in the Lords would be sufficient. Will he consider that? We would reasonably consider the point that he has made that the Bill should not further restrict organisations such as the MOD or the transport police, although that has never been the intention. If he thought about the one, we would certainly think about the other.

David Blunkett (Labour, Sheffield, Brightside)

I am continuing to think. I have already indicated to both the shadow Home Secretary and to the hon. Gentleman that I will continue listening and thinking for the next 24 hours until we can secure agreement on the Bill between the two Houses, but it is not possible for someone dealing with the apprehension of and therefore the passage of information on drugs to know that there is an indirect or a direct link until that is investigated by the enforcement agencies. That is the nub. How can they have a suspicion that that particular activity leads back to the al-Qaeda, to the GIA or to one of the other major international terrorist outfits? They cannot

Amendment No. 48 relates to part 13. We seek to include paragraphs (d) and (e). The convention on mutual assistance in criminal matters would be a third pillar measure under subsection (1). It is a simple facilitation of the sharing of video information, making that easier and increasing the speed with which it can be done, paragraph (e); relates to the Schengen acquis, which includes Norway and Iceland as well as the European Union. I hope that over the next 24 hours we will be able to persuade both colleagues in this House and those in the House of Lords that those two additions, together with the sunset clause at the end of June, all the provisos that we have built in and the ability to test that we are not sneaking something through, get the matter right.

Let no one misunderstand what we are doing. I have read articles and heard speeches that have linked issues that are not in the Bill with what we are debating tonight and have debated over recent weeks. I have heard people link the Bill with the European arrest warrant time and again. Even the shadow Home Secretary, for whom I have much time and who has been honest on these matters, did that in his article in The Guardian on Friday. The Daily Telegraph—God bless it; it does not normally pick things up from The Guardian—seemed to repeat the calumny, although not in his name, on Saturday. An enormous amount of suspicion has been generated about what the Government may or may not be seeking to do. What we are certainly not trying to do is delude anyone tonight.

Oliver Letwin (Conservative, West Dorset)

I unreservedly welcome the tone in which the Home Secretary has addressed the House. We started these debates with six big issues, shared between the Liberal Democrats and ourselves. On at least two and a half, arguably three, the Government have made sensible movement and we have arrived, I think, at an acceptable solution.

We have three to go. Those relate to seven of the 126 clauses of the Bill. It is important to remind ourselves that we are arguing only about seven of 126 clauses. If we continue the argument in the spirit that the Home Secretary exhibited this evening, we are likely to arrive at a resolution.

I want to dwell on the logic that the Home Secretary was exposing and to try to demonstrate why Conservative Members are still unconvinced, but before I do so I should say that his offer to move towards the application of a proportionality test is taken in the spirit in which it was clearly intended: as a serious and constructive move. We will need to study whatever amendment is tabled to that effect in the Lords. There are present in the Lords people of great legal learning who will no doubt be able to advise that House and us about whether it will indeed have sufficient protective effects to make it an acceptable variant. If it is, we will accept it. We do not wish to press the Government to the point of breaking if we can avoid doing so.

It will help materially in advancing that debate if I expose as clearly as I can—many speaking in interventions have already begun to do so—exactly why we are unconvinced by the Home Secretary's logic. We absolutely accept that there are links between terrorism and other forms of crime. The Home Secretary has rightly quoted my right hon. Friend the Leader of the Opposition's remarks about that. We also accept that when the security services, the police or both have a suspicion that someone is involved in terrorism. it may be extremely important to them to be able to trace through a daisy chain of minor circumstances patterns that will enable them to apprehend terrorist groups or particular individuals linked to terrorism.

Moreover, we accept—although this is not a point that the Home Secretary has made, it would be a legitimate one—that from time to time, the Al Capone strategy may be sensible. It may be sensible to apprehend a terrorist, a suspected terrorist or someone suspected of links to terrorism on the basis of some minor charge discovered by ferreting out some other aspect of that person's activities, even where it is not possible to prove that they are linked to terrorism. It may be possible to prove that they have engaged in some other minor felony. We accept a chain of logic that runs from the suspicion by the authorities that someone is in some way linked to terrorism to the disclosure of a wide range of information from 81 different agencies and quangos to the authorities about that person. Exceptional strains and risks demand exceptional measures.

The Lords amendments work on exactly that logic. As my right hon. Friend the Member for North-West Cambridgeshire (Sir B. Mawhinney) pointed out, the Lords amendments—I take the example of amendment No. 6 but many others are to the same purpose—say specifically that if the authorities believe or suspect that the disclosure may be of information that directly or indirectly relates to a risk to national security, the floodgates are open. They do not need to believe it. They need only to suspect it. They do not require the suspicion to be reasonable. They merely have to suspect it. They do not need to suspect that the person is a terrorist. They do not even need to suspect that the person is directly linked to terrorism. They merely need to suspect that the person is indirectly linked to terrorism. That is about as wide as their lordships could have cast the net.

I still fail to understand what must be genuine logic on the part of the Home Secretary's advisers, otherwise I cannot imagine why he would be going to an awful lot of fuss and bother to defend the proposition. I genuinely cannot understand how, if the trigger for opening the doors to such massive disclosure is merely the necessity that the authorities suspect an indirect link to terrorism, there can be any real restriction on their activities.

Denzil Davies (Labour, Llanelli)

I have some sympathy with what the hon. Gentleman is arguing, but in all fairness the Home Secretary asked a question towards the end of his speech, I think in relation to amendment No. 6 and the word "suspect". It may be difficult, or so the argument goes, for a public authority that is not involved in the murky world of pursuing terrorists and suspected terrorists. That public authority may not have any information at all on the basis of which to suspect anything. Is that not the problem that the Home Secretary was trying to point out?

Oliver Letwin (Conservative, West Dorset)

I am grateful to the right hon. Gentleman, with whom I have had many arguments about constitutional points; we have mainly been on the same side. He needs to look at the next passage of amendment No. 6. It does not require the authority that holds the information to engage in the disclosure voluntarily. It rightly permits relevant authorities—the security services and the police—if they have such a suspicion, to request the information; indeed, it gives them the right to demand that information in circumstances in which they have that suspicion. Whereas the Home Secretary would be right if only the first part of Lords amendment No. 6 existed, the argument does not run in the light of the second part.

I do not make that argument in an attempt to create a confrontation where one may no longer exist. If the Home Secretary, regardless of the validity or otherwise of his logic, can produce a proportionality test that fully convinces their lordships and ourselves that no individual will suffer a trawling exercise by the authorities when he or she is being pursued for a minor offence, possibly committed in another country, we may be willing to accept the clause—despite not understanding the logic. However, it would be helpful if between now and tomorrow the Government could for the first time explain why the logic that I have just exposed is not fallacious.

The Home Secretary made the argument that the amendments made by the Lords to part 10 would have the effect of restricting the powers of the Ministry of Defence and British Transport police more than was the case before the Bill was introduced. If that is so, it is unintentional and I accept that it is not something that we wish to legislate to do at present. I hope that over the next 24 or 36 hours we will find a solution to that problem.

The Home Secretary did not rehearse the history, which is well known to him, of how we came to this set of amendments on part 13. I shall briefly rehearse it, in order to explain our current position. We began with a proposition that any decision reached at intergovernmental level on criminal justice under the framework of the third pillar of the EU could be enacted in British law through an order subject to a 90-minute debate in Committee. The Home Secretary is right to say that I have argued in public that that could have meant that the European arrest warrant was adopted by those means. I have always tried to acknowledge that the Home Secretary gave us an assurance that the European arrest warrant would not suffer that fate, because it would be introduced in the extradition Bill. What concerned my colleagues and me was that the Home Secretary would have taken a reserve power under this Bill and, if we were to seek—as we will—to amend the extradition Bill to restrict greatly the scope of the European arrest warrant, he could have told us that we were being naive because he had that reserve power to enact it in a 90-minute debate and that, if necessary, he would use it. That position would have been intolerable. Luckily, the Attorney- General has now given an assurance from the Dispatch Box in the House of Lords—which is as binding and solemn an assurance as one can get from the Government—that that will not happen. As the Home Secretary said, clauses 110 and 111—as they appeared in the Lords—have been limited to June 2002 and our fears about the future are removed. That is a major step forward.

Since that time, the Government have introduced amendments to Lords amendment No. 48 that would have the odd effect of reintroducing, in paragraphs (d) and (e), the convention on mutual assistance and certain of the Schengen acquis provisions. I was not sure that I fully grasped the full implications of the Home Secretary's statement, although on the basis of intimations in the other place I hope that I have rightly discerned that when the Bill returns to the Lords we may see paragraph (e) removed and/or some firm assurance from the Dispatch Box that the Schengen acquis will also be brought in through the extradition Bill instead of by order and a 90-minute debate. If that assurance is given, we would not seek to overturn the amendment in the other place. If that assurance is given tonight, we would not seek to overturn it tonight—not that I suffer from any illusion that we could overturn any amendment in this House—so we would not seek to vote against it.

It is critical that we should have an equal assurance on the question of the Schengen acquis to the one we have had on the European arrest warrant and on all decisions that may be made under the third pillar beyond June 2002. If we can rest easy on that point, we will have achieved a major improvement in British law from the position we faced on Second Reading. I hope that we will also be able to achieve such improvement in relation to the disclosure provisions. I do not want to have been part of a Parliament that brought about a situation in which a British policeman had the capacity to obtain every record on an individual because of a traffic offence that could have been committed in Baltimore, Ohio. That would not be tolerable and we need to change it. If the Home Secretary finds a way to change that, we will accept it.

Norman Baker (Liberal Democrat, Lewes)

I, too, welcome the Home Secretary's constructive comments and the approach that the Government have taken to the Bill in the past 48 hours. It is welcome that he wishes to find common ground and we and, I believe, the Conservatives share that aspiration. The Home Secretary said that he has tried to be helpful and I hope that he will feel that we are also trying.

The Government are entitled to respond to the international situation and to introduce legislation to deal with unexpected and emergency threats from terrorism. That is common ground. If the Home Secretary can achieve a Bill that will do that, he will have the support of the House and the country. The dispute, as the hon. Member for West Dorset (Mr. Letwin) pointed out, is on a relatively small area of the Bill. The question is whether in the legitimate and correct pursuit of legislation to deal with terrorism it is appropriate to include provisions that would effectively give a green light to excessive state interference in the lives of ordinary citizens. Seeking to suspend some of them is an odd way in which to seek to protect our civil liberties. I ask the Home Secretary to reflect on that paradox. The drugs taken to cure an illness sometimes cause complications worse than the original illness. Reactions must be proportionate—and the Home Secretary used that word himself tonight.

I share with my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) and the hon. Member for West Dorset a failure to understand why the Home Secretary is determined to introduce measures that do not deal with terrorism or the threat to national security directly or indirectly—which is a wide target—but would address any criminal activity. For example, clause 102 states that the code of practice could contain provision

"for the purposes of the prevention or detection of crime".

It does not refer to terrorism or threats to national security, or even to serious crime, which might deal with people who smuggle cigarettes.

David Blunkett (Labour, Sheffield, Brightside)

I have two questions for the hon. Gentleman. Have we not now agreed to the code being made on an affirmative order so that it can be examined automatically by both Houses? Secondly, have we not tried to show that data cannot be held—held, rather than just exposed—on the presumption of the holders that they can distinguish whether it will be required for terrorism or for crime? The provision is as broad as it is because the data have to be accessed when there is a suspicion of terrorism. If the data were not held, access would not be possible.

Norman Baker (Liberal Democrat, Lewes)

We welcome the Home Secretary's approach with regard to the affirmative order, as I hope I made clear earlier. However, in respect of the right hon. Gentleman's second question, the Bill states that part of its purpose is the detection of crime. The use of the word "purpose" has wide connotations.

I thought that the Bill's purpose was to deal with the terrorist threat, not the threat of crime. That is the difference that divides Government and Opposition Members. The Government want to reverse amendments made in the Lords, but there are serious worries that the Bill would place us in contravention of article 8 of the European convention because of the range of offences covered and the lack of statutory criteria to guide decisions. Another problem is the lack of procedural safeguards.

The Home Secretary mentioned the proportionality test. It was a helpful suggestion, and shows that he recognises that proportionality has to apply in these matters. However, the human rights legislation already contains the necessary proportionality, so with the best will in the world, I cannot believe that the Home Secretary is adding much to the existing arrangements. At best, he is spelling them out.

It has already been said that the Lords amendments are quite wide ranging. Amendment No. 6 states that the information

"may relate directly or indirectly to any risk of national security or to a terrorist."

In an intervention, my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) asked what reason there might be for taking advantage of the measures that the Home Secretary wants in the Bill if there is no suspicion.

Michael Weir (Scottish National Party, Angus)

I am confused by the argument about disclosure. If there is no question of suspicion of terrorism, what is the trigger for disclosure of information? If organisations and people properly investigating terrorism act on the precautionary principle, might not they be unnecessarily swamped by disclosures if the trigger is not inserted in the Bill?

Norman Baker (Liberal Democrat, Lewes)

I absolutely agree. The Home Secretary should be seeking a rapier, but he appears to want a blunderbuss. That may lead to the intelligence services being swamped, and require them to undertake inquiries with police forces that will detract from their proper work of dealing with terrorism. The proposal may therefore be counterproductive and ineffective.

Last week, the Home Secretary challenged the police service to improve its performance and raise detection rates. The worry is that the police, in looking for every means to do that and ensure that criminals are brought to justice, will be tempted to fish for information from various authorities if they do not have enough evidence otherwise. No hon. Member would support such fishing expeditions. Moreover, there is a possibility that other authorities, including the security services, will be asked for data without much justification.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Last year, when we debated the Bill that became the Terrorism Act 2000, we agreed to give the authorities much wider powers than normal to deal with serious activity. Many people outside the House are worried that it would be unhelpful and invasive of citizens' liberty to equate serious crime that is terrorism- linked with the motoring offences referred to by the hon. Member for West Dorset (Mr. Letwin), or with sex offences or public drunkenness. All such matters are subsumed under one head, but does my hon. Friend not agree that they should be distinguished one from another and placed into categories such as "serious", "terrorist-related", and so on?

Norman Baker (Liberal Democrat, Lewes)

My hon. Friend is right. Everyone wants to deal with the threat of terrorism. People are prepared to accept that that may require measures whose impact on civil liberties is in excess of what we would normally condone, but they are not prepared to accept measures which go far further and which might impact on people with no connection with terrorism whatever.

The Home Secretary must find a way to ensure that people who need to be apprehended and prevented from carrying out acts of terrorism or from posing a threat to national security are dealt with effectively. However, he must do so without infringing those civil liberties that the House is seeking to defend by introducing the Bill in the first place. I do not think that the Home Secretary has got that balance right yet.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am very interested in my hon. Friend's argument, but the question of workability was raised earlier and it is important. Does my hon. Friend share the concerns about clause 102 that have been raised by communication service providers? They fear that the Government will end up with legislation that will be unworkable for the security forces, as it would require very close co-operation between technicians and Government in dealing with large amounts of data. Under the present proposals, that co-operative spirit does not exist.

Norman Baker (Liberal Democrat, Lewes)

The Government have proposed a code of practice and changed the terminology used in the Bill. It is sensible to produce a draft code of practice in advance, and I give the Home Secretary credit for that. However, it is worth noting the many objections expressed by the communications industry, and the Confederation of British Industry. The CBI is normally the Government's best friend, but it objects to some parts of the Bill. It is unusual to receive representations from the CBI in connection with a Home Office Bill, so it is clear that the matter is one for business as well as for the civil liberties groups that have contacted us at great length.

The worry is that, without any suggestion that national security or terrorism is involved, almost anyone suspected of any activity can trigger the type of investigations involving data sharing that more properly relate to national security and terrorism.

Beverley Hughes (Labour, Stretford and Urmston)

I am listening to the hon. Gentleman carefully, but will he confirm that he realises that we are talking not about the power to access information, but about clarifying the legal position of the communication service providers in retaining data? As for workability from the point of view of the communication service providers, will the hon. Gentleman explain how the link with national security will work to help those providers decide to retain certain data? How will they distinguish data that might be shown to be linked to a national security inquiry, and other data that might be shown not to be so linked?

Norman Baker (Liberal Democrat, Lewes)

Opposition Members do not draft legislation. We draft amendments and point out faults in the Government's proposals. It is for the Government to produce measures that are proportionate and meet the objectives that they have set out. Opposition Members' duty is to point out disproportionate measures that could have a huge impact on civil liberties. It is up to the Government to respond to the concerns expressed in this debate, among Labour Back-Benchers, in the other place and elsewhere that the Bill is disproportionate and could have deleterious effects.

Beverley Hughes (Labour, Stretford and Urmston)

I should like to press the hon. Gentleman a little further on the second question that I put to him. Representations received by the Home Office from communication service providers deal with the question of how they could make work measures that are limited only to national security. The Bill gives service providers a legal power to retain data, but their problem is how to distinguish data that might be shown to be linked to national security from data that are not. The providers say the amendment is not workable.

Norman Baker (Liberal Democrat, Lewes)

The Minister advances an odd proposition. The Government must produce a code, and they must consult to ensure that it meets the objections that the Minister has expressed. She proposes that, because one person may be caught in a particular net, we should catch all information relating to any person who happens to be near that net because that person may fall into the category that the she has set out. That is an odd suggestion. It confirms the unease felt by many hon. Members that the Government are less than focused when it comes to the question of who should be caught by the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Unlike my hon. Friend the Member for Sheffield, Hallam (Mr. Allan), I am a lay person on this issue. However, if I were a user and transferrer of data, I might one day send entirely innocent communications that were totally unrelated to crime and the next day send information that might be related to crime. How would the providers be able to distinguish between what I do today and what I do tomorrow? It is not a practical proposition to expect them to be able to do that. The burden on the Government is to show that their proposal is practical, but we have not been persuaded that it is.

Norman Baker (Liberal Democrat, Lewes)

My hon. Friend makes the point very well, and the Government have to respond to it over the next 24 hours or so if they are to convince us and others that theirs is the right way forward.

I do not wish to take much more of the House's time, because I know that other Members wish to speak. However, the House of Lords has done us a favour by considering the Bill in rather more detail than we have had the time for. If the House authorities had provided more time for Second Reading and the Committee stage in this House, we would not have had to consider the range of amendments that the Lords have made to the Bill. I hope that the Government will learn the lesson that they should give the Commons more time for Second Readings and Committee stages and should not rely on the House of Lords to do the work that should be done initially in this place.

I hope that the Government will also reflect on the fact that the new and modified House of Lords, which is the Prime Minister's own creation, has inflicted a huge number of defeats on the Government in relation to this Bill. Even though there was agreement on the principle as to where we want to get to, it inflicted those defeats by very large majorities. I hope that the Government are listening to that—I think they are—and will reflect on the specific, focused points that the House of Lords has made. We are not convinced that it is appropriate to have such a wide-ranging definition in the Bill. We therefore support the Lords amendments and we hope that the Government see their merit.

We welcome the movement that the Government made in the House of Lords on third-pillar matters and particularly on sunset provisions and on the improved and more specific wording. We, too, are at loss as to why the Government have tabled amendments to the Lords amendments and, in particular, want to insert paragraph (e) to Lords amendment No. 48. Such provisions are too far reaching and are not merited under the emergency provisions in the Bill. As the hon. Member for West Dorset said, I hope that the Government will consider withdrawing that provision.

We support the Lords amendments. We hope that the Government will take a few more steps towards making the Bill the one that we all want it to be—one that deals effectively with terrorism, but without taking away our civil liberties.

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

I join others in thanking the Home Secretary for his constructive and courteous attitude. It set a helpful tone for the debate and recognises that both sides of the House agree with his objective, which is to get at terrorists and ensure that they do not go undetected. That aim unites us all.

When the Minister responds to the debate, will she say something more about the relationship between suspicion and disclosure? Surely, for a variety of reasons, if suspicion is to be targeted on the objective that we all share, it has to be based on evidence. If it is not, it will be a loose and free-ranging suspicion that will lead to many of the unfortunate and ineffective consequences that other hon. Members have described.

Such an approach involves not only a good principle of legal practice but, as Opposition Members have said, makes good practical sense. Of course, the Home Secretary made the perfectly fair point that the relationship between crime—and sometimes even misdemeanour—and terrorism is complicated and that the one may lead to the other. We all agree that there is a link that may be helpful in detecting terrorism and in bringing terrorists to justice.

When the Home Secretary gave the example of credit card fraud, he appeared to encourage the idea that anyone who identified such fraud should bring it to the attention of the security forces. As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) pointed out, that would lead to the most absurd situation in which the police and the security forces would be deluged with unhelpful and unfocused information that would all have to be sifted just in case those committing fraud were involved in terrorism.

Surely, to provide practical help to the security forces and to the police, there must be a more evidential base to suspicion than simply the existence of a misdemeanour or crime. Unless we support the Lords amendment and focus more on the problem than the Bill's wording does, we will not assist the security forces and the police to focus their concerns on the things that matter and not on generalised suspicions.

I may have misunderstood the position. As the Home Secretary knows, I am not a lawyer. However, because of that real danger, I intend to support the Lords amendment unless he can reassure the House and those of us who still have reservations about, as the hon. Member for West Dorset (Mr. Letwin) said, relatively few aspects of the Bill. We need to be reassured that the provisions for suspicion focus on the main objectives and will not lead to a trawl through many types of crime in a way that will not help the security forces to achieve the aim that we all share of identifying terrorists and bringing them to justice.

John Burnett (Liberal Democrat, Torridge and West Devon)

Does the hon. Gentleman agree that we cannot live in a Stalinist world in which every Tom, Dick and Harry reports this, that or the other? Something must precipitate the inquiries. There must be suspicion and that suspicion will almost always be related by the security forces to the police, who will then be able to act according to the terms of the Lords amendment.

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

I concur entirely with the hon. Gentleman. However, as I have nothing more to add, I shall draw my remarks to a close.

Beverley Hughes (Labour, Stretford and Urmston)

I wish to reply to some of the points that hon. Members have raised. Clearly the common thread in these Lords amendments is the extent to which there is a link between terrorism and non-terrorist crime. However, the fettering of the proposed powers in the Bill to deal with only those crimes that relate to national security or terrorism would be a serious impediment to the police and the other law enforcement agencies getting at terrorists.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We just do not accept that the current terms of the Bill, with the width of the door through which people can go, can be fettered in the way that the Minister suggests. When we considered the Terrorism Act 2000, the Government never made the case that any crime could be linked to terrorism. It is a totally new argument that does not appear to be supported by the facts.

Beverley Hughes (Labour, Stretford and Urmston)

The Government disagree with the hon. Gentleman on that. The key issue is the point at which public authorities, communication service providers or the police have to make the decision about using the powers in the Bill. They will or will not be able to foresee a link between terrorism and crime. The point that the law enforcement agencies strongly stress is that, at that stage, faced with information or a body of evidence, an assessment is often extremely difficult, until pieces of information from different sources start to be put together and the picture of the jigsaw that might point to terrorism can emerge.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

indicated dissent

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman shakes his head, but the amendments would prevent the pieces of that jigsaw from being put together. They would prevent the accumulation of data that would allow the authorities to begin to see a link with terrorism.

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

Surely the Minister is simply describing good police detective practice—something that already happens in criminal law and in the detection of other terrorist acts. It happened throughout our attempts to prevent terrorism in Northern Ireland and elsewhere. It is good detective practice to bring together disparate pieces of information. From what the Government have said, they have not demonstrated that new powers are necessary.

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend is correct: that is the premise of good detective work. However, without access to the information—or if the information is not volunteered, as many of these provisions would allow—the piecing together of that information and the execution of that detective work cannot take place, or cannot do so within a time scale that would be beneficial in the investigation of terrorism.

In relation to the disclosure powers in part 3, I remind Members that the provision merely harmonises existing provisions in the Acts listed in schedule 4. Some of the provisions relating to three particular Acts already allow for disclosure for criminal investigations: the Utilities Act 2000, and two measures passed under Conservative Governments—the Water Resources Act 1991 and the Chemical Weapons Act 1996. Those measures already allow for disclosure at the investigative stage for criminal investigations.

The provision is not new; it merely provides that the measure will pertain throughout those gateways. Instead of having to wait for the start of proceedings—as is the case with some of the other provisions in the schedule—it will be possible for information to be passed throughout all the gateways. The matter will already have been debated by the House and agreed procedures will already have been laid down in statute for the passage of that information. There will be a process of harmonisation, enabling those Acts to be used to share information—not necessarily at the proceedings stage, but at the investigation stage.

Oliver Letwin (Conservative, West Dorset)

Will the Minister tell us whether the Government's proposed paragraph (e) to Lords amendment No. 48 on the Schengen acquis will be removed to the extradition Bill?

Beverley Hughes (Labour, Stretford and Urmston)

We have heard what the hon. Gentleman has said. We are considering it carefully, and we may be able to make some progress on that point that we can announce tomorrow.

In relation to parts 10 and 11, I refer again to some of the points I made to the hon. Member for Lewes (Norman Baker) and remind Members that we are not talking about access to communications data but the power of the providers to retain that data and—

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Will the hon. Lady give way?

Beverley Hughes (Labour, Stretford and Urmston)

I am sorry I cannot; I have only one minute to conclude my remarks.

Providers need the assurance that if they decide to retain data, the data will be legally retained, so the Lords amendment is not workable because it will create confusion, and communication service providers will not have the legal assurance that they need and that the clause is designed to give them.

In relation to part 10, we want the police to have the judgment of hindsight. It is not possible for them always to know where something will lead, so it is important that they have powers to investigate and identify criminals even when they cannot be absolutely certain that there is a terrorist link.

It being fifteen minutes past Eight o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Orders [19 November and this day].

Lords amendment disagreed to.

Mr. Deputy Speaker then put the Questions necessary for the disposal of the business to be concluded at that hour.

Lords amendment No. 48 and Government amendments (a) and (b) thereto agreed to.

Clause 21 — Suspected international terrorist: certification

David Blunkett (Labour, Sheffield, Brightside)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this, it will be convenient to take the following: Lords amendments Nos. 10 to 20, Lords amendments Nos. 21 and 22 and Government amendments (a) to (f) thereto.

David Blunkett (Labour, Sheffield, Brightside)

Part 4 rightly received a great deal of attention in Committee in this House and in the House of Lords. It has also been debated publicly at considerable length, and understandable concerns have been expressed by hon. Members on both sides of the House during the Bill's passage.

Considerable progress has already been made in clarifying the role of the Special Immigration Appeals Commission, and its relationship with other aspects of the judicial process and with the Home Secretary's role in certification. We seek tonight to find a way forward to complete the unification of the two sides of the House and secure the good will of those of all parties about the way in which the procedures should operate.

All parties have expressed the wish to see the threat of terrorism and those who pose a threat internationally and whom this country currently hosts dealt with decisively. We have disagreed about how far we should go in deratifying the European convention and on the removal of people to countries where their lives and well-being might be at risk. Concerns have been expressed that any kind of detention, as an alternative to removal, is a threat to human rights. We have sought together to try to find a process that gives sufficient guarantee of due process to enable people to feel that, in the difficult circumstances that we face, we have found a suitable avenue for achieving the proportionate balance that we have talked about over weeks and months.

George Osborne (Conservative, Tatton)

Part 4 rests on the derogation from article 5 of the European convention. Has the Home Secretary read the comments of David Pannick QC, one of the country's leading barristers, that the derogation from article 5 is unlawful because, first, the European Court of Human Rights is unlikely to accept that we face a public emergency threatening the life of the nation and, secondly, even if it did accept that, the Government will not be able to establish to the Court's satisfaction that detention without trial is strictly required by the exigencies of the situation? Can the Home Secretary assure us that David Pannick is wrong in his interpretation of the law, because if he is correct part 4 is at serious risk of collapsing?

David Blunkett (Labour, Sheffield, Brightside)

I have seen David Pannick's comments. I have a great deal of respect for his judgment and the Home Office has made use of it on several occasions, but we do not believe that he is correct, nor do any of the lawyers we have consulted. Subject to the passage of the Bill in the next 48 hours, we shall, as we said we would, deposit the derogation at Strasbourg. We believe that that step will complete the necessary process.

In two sets of discussions with United States Attorney-General John Ashcroft today, it was made wholly clear that the international threat remains. Although we have made enormous progress on Afghanistan and al-Qaeda, we have not undermined that network, the tentacles of which stretch across the world. John Ashcroft described the process as stretching from those who have a conception of an idea, through those who plan based on the idea, to those to execute it. All three steps can involve different groups, in different parts of the world, operating in different spheres and at different times. That is why we believe that the threat that became apparent immediately after 11 September has not diminished.

Jeremy Corbyn (Labour, Islington North)

No one in the House is in favour of terrorism or terrorist attacks, but many of us believe that the criminal law should be used to apprehend people who commit or who are planning to commit criminal acts. Will the Home Secretary explain why this country, almost alone in Europe, is proposing such draconian measures and derogation from human rights conventions when other countries believe that their criminal law is sufficient to deal with the threat?

David Blunkett (Labour, Sheffield, Brightside)

As I said on Second Reading and in Committee—I regret the need to repeat myself, but doing so is necessary because we must take a measured approach this evening—not only do we accept that there is an international threat and that we are in danger of hosting, as many have accused us of doing, those who engage in organising, funding or perpetrating international terrorism, but we believe that we are at greater risk than many other countries because of our declared and clear alliance with the United States, for which that country's people are deeply grateful, and because in the minds of those who have engaged in terror we are associated with the international action taken against the terrorists.

We need to update our preparedness, our legislation and our actions against terrorism—even in a way that has been denounced by other countries, including those to which my hon. Friend refers—and to reflect the nature and the response to the threat to the United States and elsewhere, albeit not to the extent that the United States has found necessary. On Second Reading, in Committee and on several other occasions the House has reflected on the fact that we have not suggested the sort of measures that the United States has felt it necessary to take in terms of detention or military tribunals in order to deal with the perceived threat.

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

Members on both sides of the House agree that we are under threat from terrorism—the whole world is under threat from terrorism, this country perhaps more than most others apart from the United States. We were under threat from terrorism before 11 September, and that threat may have increased since, but that is not the test for derogation. Mr. Pannick and others who support him say that the test is not whether we are under threat from terrorism, but whether the threat is so severe that it threatens the life of the nation. Nothing the Home Secretary has said on Second Reading, in Committee or tonight takes that necessary step to extend the threat of terrorism, which obviously exists, to a threat that threatens the life of this nation. That is a far more severe test, and not one that the Home Secretary will find it easy to demonstrate.

David Blunkett (Labour, Sheffield, Brightside)

I say with great sadness that I fear that I shall not be able to convince my hon. Friend. We know what happened on 11 September, and I think that most people are aware of the time that it takes to organise acts of terror, some of which have been detected. I have mentioned previously those in Jordan and the proposed attack on the American embassy in Paris. There are also the well-known Tanzanian and Kenyan US embassy attacks in 1998. Such attacks take a long time to prepare. They are organised and funded on the basis that they will disrupt, as we saw at the World Trade Centre, both the economic life and activity of a nation. There is not simply the act; there is also the knock-on or spin-on effect on the life of the nation.

If people do not believe that what happened on 11 September has not had a dramatic effect on the life of the United States, on its economy and on the economy of the world, they have been living in a different world from the one that the rest of us inhabit. It has had that effect, and everyone knows that. It has changed the perspective.

I cannot guarantee that there will not be an attack on the United Kingdom—nor can I say that there will be such an attack. We started the debate on the basis of whether we take decisive action of the sort that is proposed. It behoves us to consider whether we believe that we would find what we are proposing acceptable if a major attack took place.

Norman Baker (Liberal Democrat, Lewes)

The test that has to be satisfied to allow derogation to be justified is a high one, as the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) has said: the essence of the life of the country must be under threat. The right hon. Gentleman said on 15 October, more than a month after the terrorist attack on New York, that there was no immediate threat to the United Kingdom. Of course terrorism exists, but there is not an immediate threat to the essence of the country.

David Blunkett (Labour, Sheffield, Brightside)

I am in a cleft stick. In seeking to ensure reassurance, which I have done to the best of my ability over the weeks after 11 September, and to ensure that the life of the nation was not immediately disrupted by a change in people's behaviour, it should not be assumed that people did not believe that there is and remains a threat to the life of the nation.

I am posing the question whether people believed on the 12th, or believe it now, that there was or is a threat. I believe that the threat has not diminished. I take the same view now as I took the day after 11 September. The question that must be answered is whether people think that what we are seeking to do under part 4 is justified if a substantial attack took place now. I suggest that they would. Taking action to preclude that threat to the life of the nation has to be the right thing to do, rather than taking the action after the life of the nation has demonstrably been threatened.

David Winnick (Labour, Walsall North)

The only issue on which I voted against the Government in this context is judicial review. I shall listen with great interest to what my right hon. Friend has to say about that. Is he aware that in the previous Parliament I asked his predecessor a number of questions at meetings of the Select Committee on Home Affairs about those who are alleged to have been much involved in terrorism abroad, who were using Britain as a safe haven, but who for various reasons could not be tried? It would be naive of us not to accept—there is one such case in the United States—that there remain a number of people who, in my view, are certainly a danger to communities abroad and to Britain itself.

David Blunkett (Labour, Sheffield, Brightside)

I agree entirely; that is why we must take the action that we are proposing. In two seconds, I shall deal with the issue of judicial review, which has strongly exercised my hon. Friend and many others, including Members of the House of Lords.

First, however, we are endeavouring to answer the question of how to deal with the situation, either by withdrawing—temporarily or otherwise—from the European convention on human rights and taking action to remove people elsewhere in the world, or by removing the power to detain or remove people in circumstances in which the usual court proceedings, because of the risk posed to the security and intelligence services and those working for them, do not allow us to present that evidence. We are dealing with that tonight.

We have chosen the road of proportionality and the middle ground. People have accepted that the Special Immigration Appeals Commission, unanimously set up by both Houses, was an appropriate avenue for presenting such evidence in the circumstances that I have just described—it would not be appropriate to present such evidence in open court—on the certification of the Home Secretary, to remove someone, either on security grounds or because their presence was not conducive to the public good. Now we are having to decide whether, when we cannot remove someone without putting their life at risk, that mechanism is appropriate to detain them, albeit with constant reviews of the position and given the fact that that the individual can leave the country, should they find a safe place to go.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I wish to raise two matters with the Home Secretary. First, Government amendment (a) states that the Special Immigration Appeals Commission will be deemed

"a superior court of record".

What does that mean, other than that some proceedings will be subject to recording? Secondly and more substantially, the Home Secretary will know that, under the Special Immigration Appeals Commission Act 1997, there are special procedures that, for example, enable the tribunal to hold that some parts of the evidence should be withheld from the detained person and, indeed, that he or she may not necessarily be present during the proceedings. Is there anything in the Government amendments that changes the position under the 1997 Act? I am not aware of any such provision.

David Blunkett (Labour, Sheffield, Brightside)

I was about to deal with the issue of making SIAC an administrative court and superior court of record.

The right hon. and learned Gentleman described the situation correctly. Elements of presented evidence are withheld, but not from the advocate appointed on behalf of the individual.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

He is appointed, not chosen.

David Blunkett (Labour, Sheffield, Brightside)

He is appointed for that purpose, although the individual can choose legal representation. As I have said in previous debates, the individual can, if they wish, retain that advocate in the Court of Appeal and the House of Lords

I have it on good authority that those who have expressed the gravest concern about judicial review—Law Lords and ex-Law Lords in the House of Lords—believe that the designation of SIAC as a superior court of record and administrative court will meet their concerns because its procedures will provide the equivalent of judicial review.

Robert Marshall-Andrews (Labour, Medway)

May I assist? A court of record simply means that the proceedings are recorded with a view to them subsequently being subject to scrutiny on appeal or by way of precedent. As there is no appeal from SIAC except by way of law, and as it is not a court of precedent, what is the point of making it a court of record?

David Blunkett (Labour, Sheffield, Brightside)

It establishes—beyond peradventure, as Lord Heseltine would have said—the position, the status and the record, which can be carried forward. My hon. and learned Friend is always helpful to me. I know that he comes into the Chamber for that purpose alone. I look forward to his being helpful to me again and again, for many years to come.

The right of appeal on those aspects that would be appropriate to the Appeal Court of the House of Lords will be granted. I take the word of those who, over many generations, have been engaged in the law that that overcomes their concerns in respect of the issues that we have debated at length—for example, how we deal with a review of a review, where the evidence that must be adduced and presented must be in the same form, with the same complete security, as in the previous review.

That is why we argued the case in terms of whether the Special Immigration Appeals Commission needed a new SIAC to review it. If that means designating a superior court of record and confirming the level of the judiciary involved, as in a Crown court, so be it. In other words—just to show my hon. and learned Friend that I have some grasp of the law—the Crown court cannot be judicially reviewed as a Crown court.

Michael Weir (Scottish National Party, Angus)

In Scotland any decision by a Government Department can be subject to judicial review by the Court of Session. Under the new legislation, will the matter be decided only by SIAC, and will the Scottish court no longer be able to carry out a judicial review?

David Blunkett (Labour, Sheffield, Brightside)

On that very issue, I was pleased to help one of the hon. Gentleman's colleagues, who participated in the debate in Committee, having missed Second Reading because she was in her constituency. I hope that the hon. Gentleman was not otherwise engaged at the time, as it would be a shame to go over the explanation again. I explained at enormous length the operation of the Special Immigration Appeals Commission and its jurisdiction. I do not want to be unhelpful, but as any hon. Member who was present on Second Reading and in Committee will recall, we took every intervention. Whatever else hon. Members disagree about, they cannot deny that we have spelled out in words of one syllable how SIAC works.

In the present context, we are seeking to deal with the situation of people who would otherwise have been removed on the certification of the Home Secretary, who appeal through SIAC, and who are to be detained if they cannot be removed. We are trying to ensure that the process works.

Oliver Letwin (Conservative, West Dorset)

I hope that the Home Secretary will accept my question as genuinely helpful. Does he agree that when the noble Lord Donaldson accepted the amendment, the view that he took—he holds a special position in our judiciary—was that the effect of denominating SIAC as a superior court of record would be to turn it into a clear part of the High Court and give it all the powers of judicial review that would otherwise pertain to the High Court, but with the special procedures of SIAC in place, so that the information made available by the security services would not be compromised when it was given to the court?

David Blunkett (Labour, Sheffield, Brightside)

That is entirely correct. I am grateful for the succinct presentation, as ever, of the way in which Lord Donaldson and others who have examined the provision understand it to work. It is on that basis that we are resisting amendments Nos. 21 and 22 and seeking to gain agreement on the way forward on this specific issue. I know that some hon. Members on both sides of the House will remain convinced of the position that they held from the beginning, which is that this part of the Bill should not be proceeded with. We must continue to have a genuine disagreement on that point. However, we have done our utmost to secure the agreement of those who understood the reasons for the provisions, but were concerned about the nature of the process.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

With regard to court procedures, first, does the Home Secretary accept that it is possible at any level for courts to sit in secret and that the Government can at any stage issue a public interest immunity certificate, which means that some evidence or information may not be revealed? Secondly, one of his concerns may be that judicial review will often be used or often be successful, or that it will be abused and cause delay. The evidence is that it succeeds about one in 100 times, and it has never succeeded in relation to SIAC so far. If he has that concern, does he accept that one could time limit a period by which a judicial review could be made, in order to deal with any possibility that it might be used as a delaying tactic?

David Blunkett (Labour, Sheffield, Brightside)

Of course, the first part of the hon. Gentleman's question relates directly to the second part, as one would agree to the second only if one accepted the first, which involves the holding of proceedings in camera in a normal court and the evocation of public interest immunity to the point where not only the evidence that is presented would be protected, but those presenting it and those working on behalf of the security services. The security services made it absolutely clear to me—I do not think that I am breaching any confidence in saying this—that they would bring no cases forward if we used the normal court system and attempted to use public interest immunity.

Robert Marshall-Andrews (Labour, Medway)

Blackmail.

David Blunkett (Labour, Sheffield, Brightside)

It is not blackmail. If I am asked about why we are not using public interest immunity and the potential for part of the evidence to be considered in camera, there is no point in shouting from the Back Benches when I give the answer. The security services do not believe that it is possible to hold in camera a case in which those who have not been designated under security legislation to be able to hear and take evidence would inevitably have to do so. In the past, evidence on public interest immunity has led judges to rule that those who were prepared to give evidence—such people will often have been working on behalf of the security services at tremendous risk to their lives in circumstances that none of us would ever want to experience—had to present themselves and be exposed to the accused person. In such circumstances, those people can be committed to almost certain death.

Jeremy Corbyn (Labour, Islington North)

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

I shall do so, because I hear total disbelief from behind me. I do not hear that in front of me.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

I have provoked that question, but let me be provoked by my own side for a moment.

Jeremy Corbyn (Labour, Islington North)

There is some disbelief on the Benches behind the Home Secretary. I find it astonishing that he should tell the House that the security services are not prepared to bring forward evidence if there is any danger of it being heard in a court, even if it is in camera. It is extraordinary that the security services, which are largely unaccountable to anybody, should decide what the policies of this country should be. Apparently, they are now even deciding what its law should be.

David Blunkett (Labour, Sheffield, Brightside)

First, the security services did not determine the law. They indicated to me the circumstances in which they would be able to present particular types of evidence, which is precisely why we have been debating this whole issue. We have almost gone full circle. If somebody does not accept that there are circumstances in which evidence that has been adduced cannot be presented in a court, even if it is under a public interest immunity, and if they do not accept that view in respect of the level or threshold of evidence and the way in which it is presented, in relation to what was adduced in the Rehman case that we debated previously and affirmed by the House of Lords in the middle of October, they will not believe me. They will not be committed to following that process. Some hon. Members would like to undo the result of the vote on establishing SIAC. It was established on the basis that it could take evidence in the way in which I am describing—on appeal against certification by the Home Secretary, whoever he or she may be, in relation to removal on ground of security or because a person's presence is not conducive to the public good. The evidence, to be adduced and presented in precisely the way in which I am outlining, was acceptable for those purposes. That was demonstrated by the Mullah Rehman appeal and affirmed in the House of Lords. Those who believe that all that is wrong will believe that I am wrong.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

I shall, but I want to finish the point. Let us consider the difference between what has already been agreed and carried through and my proposals. We will use the same process but the outcome is not removal in cases where the person's life would be at risk, but detention with review. The process, with the sort of evidence and advocacy that has already been established, has only one different feature. We cannot remove people because, rightly, we will not breach article 3 of the European convention on human rights, and we must therefore detain them.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry, but I must revert to a point that genuinely troubles me. The amendment designates SIAC as a court of record. In answer to my hon. Friend the shadow Home Secretary, the Home Secretary said that that effectively gives SIAC the powers of judicial review. Clause 26 properly and fully sets out the commission's powers. They are not the same as the power of judicial review. It is therefore difficult to reconcile the statement that SIAC will have the powers of judicial review with the statutory powers for which the Bill explicitly provides. How does the Home Secretary reconcile those positions?

David Blunkett (Labour, Sheffield, Brightside)

The process is to review the certification signed by the Home Secretary. Those who seek judicial review of SIAC are trying to review the decision of a court. The decision to designate SIAC as a superior court of record affirms that. I shall rest my case so that other hon. Members can speak because we have only one fundamental disagreement. The process is already laid down, albeit that the outcome—detention rather than removal—is different from the original intention. Our disagreement is about the process. I understand why people do not believe that it is acceptable, but I disagree with them, because it is the only way in which to deal with the current circumstances.

John Burnett (Liberal Democrat, Torridge and West Devon)

Is the Home Secretary minded to extend the rights of appeal from SIAC to the Court of Appeal so that matters of fact and law can be appealed against? In such circumstances can the Court of Appeal sit in camera and use the special advocate procedure?

David Blunkett (Labour, Sheffield, Brightside)

I am confining the amendment to the designation of SIAC. The right of appeal on a point of law remains, as described earlier.

Ultimately, we are debating whether hon. Members believe, in the circumstances, that it is appropriate to detain people using the evidence, the threshold and the process of SIAC in the way that was intended for removal and will now be used for detention when we cannot remove.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

One of the terrible consequences of this procedure is that we have an hour in total for this debate. It is no criticism of the Home Secretary to say that 35 minutes of that hour has been taken up by his explaining the Government's view and answering questions. However, with the best will in the world, it is impossible in an hour for the House to do justice to the arguments about the fundamental issue of keeping judicial review, or to consider the alternative before us in the form of a Government amendment whose genesis lies in a proposal by a former Lord of Appeal and Master of the Rolls. One of our complaints is that, because of the speed of the process, this legislation has needed to come back so that this issue can be revisited—as the Government now accept—and many other interrelated issues as well.

This group of amendments covers three issues, the last of which is judicial review. Government amendments (a) to (f) offer an alternative to the Lords' removal of the original provisions stating that one could not go to judicial review in relation to detention without trial. In relation to amendments Nos. 9 and 13, we are grateful that the Government have accepted the amendment tabled by the Conservatives with the support of the Liberal Democrats and of Irish Members of Parliament, which defines terrorism in the same way, whether it is national or international. That concession is gratefully received. It would have been nonsense to define separately whether someone's motive was connected to activity within or outside the UK or part of it. We also welcome the improvements in the procedure relating to the timetable for review and other matters contained in amendments Nos. 14 to 20.

The nub of this issue, however, is judicial review. I want to tell the House why we should agree to accept the Lords' decision to remove the provisions that suggest that one cannot go to judicial review, and not to accept the alternative. I do so respectfully and carefully, conscious that the amendments come from Lord Donaldson, whom I respect. This is his attempt, supported by others, to find a way through the middle, but I do not accept—I believe that hon. Members on both sides of the House share my view—that it meets the test, or that the amendments satisfy the concerns that have been voiced abroad in the House and beyond.

We would be wrong to derogate from the European convention on human rights and from the Human Rights Act 1998. Nothing that the Home Secretary has said about the issues on which we agree—for example, that there remains an international threat, which I accept without qualification—persuades me that that takes us into the criteria for qualifying for derogation.

The two tests have been set out: there has to be a public emergency threatening the life of the nation, and the resultant action has to be action strictly required by the exigencies of the situation. Like David Pannick, whom we all respect as an authority, the Liberal Democrats' view is that those tests are not met. I honestly believe that, if the Government proceed, they would be at risk of being found to have breached their qualifications for derogation, if it were tested either in a domestic court or in the European Court of Human Rights.

The Home Secretary has been both courteous and conciliatory today, as he has on almost every other occasion that I can remember. I hope that he will accept that, just because my colleagues and I have a different view, it does not mean that we are not of good will on these issues. We shall, I anticipate, reach a different conclusion, but I hope that he accepts that we do so for the same reasons that the Labour party in opposition, on many occasions, perfectly honourably reached a different conclusion on emergency legislation from the Tory Government.

So that there is no doubt, I repeat that we do not accept that detention without trial for people who are not British is a necessary step when others have not been attempted. We should first try to charge and prosecute. Secondly, if the security services cannot proceed because of the rules of evidence, we could amend those rules. Thirdly, we might consider the procedures of the court. Only when we have tried and failed with those, and they have not been considered in the context of the Bill, should we contemplate the further step. We are not persuaded.

We do not go along with the Conservative view that it would be right to have a reservation in relation to the European convention on human rights—that is one of our few disagreements on the substance of the Bill—so we offer a different solution, which we think could be achieved by procedures in the domestic courts.

One reason for believing that our case is justified is that no signatory country to the ECHR, which goes wider than the EU, has yet seen fit to say that it must go down that road. I am not privy to whether those countries might do so, but it is significant that, three months after 11 September, not one other ECHR signatory—that includes all Council of Europe member countries—has changed its position on detention without trial. For me, that is not the persuasive argument, but it is additional strong evidence that we should take into account.

As I want to allow other colleagues to speak, I shall list my reasons for hoping that the House accepts that SIAC, even as amended by the alternative suggested in the Government amendment, will not work. If hon. Members have any doubts, I refer them to the first day of debate on Report in the House of Lords and the speeches of Lord Mayhew of Twysden, the former Secretary of State for Northern Ireland, my noble Friend Lord Goodhart and Lord Donaldson. I quote Lord Mayhew, but each speech includes such phrases:

"My submission is that in the Bill we should not be driven to surrender a precious safeguard against the abuse of power, especially when there is no need for it. If one did so, one could be sure that such a precedent would soon be followed because, in my experience, all departmental Ministers resent judicial review. That in itself is a good reason why it should be cherished."—[Official Report, House of Lords, 6 December 2001; Vol. 629, c. 997.]

That may apply in only one case in a hundred, which is Lord Donaldson's view, and Lord Mayhew may accept that the SIAC amendment route is the right way forward, but that does not pass the test of principle. We must not remove judicial review not only because that in itself is wrong, but because it would make for a better argument for removal in lots of other cases, at home and abroad.

Oliver Letwin (Conservative, West Dorset)

We agree on so much, but does the hon. Gentleman agree that Lords Donaldson and Mayhew are minded to accept the Government amendment because it does not preclude judicial review? Indeed, amendment (a)(4) specifically provides for a superior court to question the legal proceedings and makes it possible by denominating SIAC part of the High Court. That is precisely why, in the opinion of Lords Donaldson and Mayhew and of my party, the amendment no longer constitutes a devastating precedent of the kind that so many noble Lords rightly referred to in that debate.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I welcome the way in which the hon. Gentleman has approached the Bill and I understand the argument, but we have not reached the same conclusion for the following three reasons, which I shall describe.

First, it strikes us as illogical to try to exclude judicial review in this case, outside the new process that is being suggested, when it was not excluded in the earlier "concept in use" context of SIAC. Secondly, as was said by many speakers on the Cross Benches and on both sides of the House of Lords, one can never tell what procedural or other irregularity one might wish to question. It might be an executive decision by the Home Secretary to issue a certificate to detain someone, or—although I accept that this would be much less likely if the proposal were accepted—a procedure further up the chain. Certainly, however—my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) asked about this—it cannot be the case that a process that might preclude an appeal on the basis of fact and allow it only on the basis of law would not allow an adequate remedy.

Finally, we think that, for reasons of precedent and principle, if the measure adds nothing it will either never be used, or be used so rarely that it will exist merely as a reserve power to be employed in exceptional circumstances. It cannot be necessary to preclude an eventuality that we may or may not be able to anticipate.

Oliver Letwin (Conservative, West Dorset)

That is the nub of the issue. Does the hon. Gentleman acknowledge that in that same debate in the Lords, which I attended myself, Lord Donaldson agreed that a judicial review by the High Court—not SIAC—would necessitate the adoption of SIAC rules, because it would otherwise be impossible for the security forces to reveal to, for example, a barrister appointed by al-Qaeda, who might be an al-Qaeda adherent, information on which the reasonableness of the Home Secretary's decision could alone be judged? Did it not become clear at that point that the distinction between the High Court's adoption of SIAC rules and the redenomination of SIAC as the High Court was, in fact, no distinction?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If the amendment would make SIAC a court rather than an administrative tribunal—it appears that it might do so, but I put this neutrally—that is certainly an improvement. It is interesting that we are creating what is effectively a new administrative court, or at least a new administrative division of the High Court, at this stage rather than next year, when we shall look at the review of the court system—although the process is not entirely satisfactory.

Colleagues in the other place who are more eminent than me in terms of practice in these matters—including Lord Thomas of Gresford and Lord Lester of Herne Hill—have suggested to me that there may be circumstances that are not covered by the new, enhanced power of SIAC to review cases. It is also felt that the onus must be on the Government to show that there is a public interest against an ability to opt for the conventional occasional judicial review.

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

Will the hon. Gentleman help me to understand what Lord Donaldson proposes? Is he saying that, having been designated a court of record, SIAC will be able to constitute the location for judicial review of decisions that it has already reached? Is that not legally tautologous?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Courts can do that. If the hon. Gentleman, who is very assiduous, reads the speech made by Lord Donaldson on Report, he will see that the Court of Appeal has sometimes been called on in the middle of its hearings to perform a sub-exercise involving judicial review of an issue raised in another court. Bizarrely, that can happen.

There is a wider point, however—the point on which our analysis differs with that of Lord Donaldson. For reasons given by the hon. and learned Member for Medway (Mr. Marshall–Andrews), merely conferring a power to record proceedings, and conferring greater status, will not necessarily deal with every eventuality. Furthermore, it will not confer all the powers that may be needed to check the decisions of the Secretary of State in regard to detention, and the processes thereafter. It will not cover all the safeguards connected with human rights that a citizen might need—safeguards relating to time, language translation, legal aid and advice and, most important, the certainty of knowing the case against him or her at every stage. We believe that that can be dealt with adequately either by the court going into secret session—my hon. Friend the Member for Torridge and West Devon asked about that too—or by the issue of a public interest immunity certificate or the like.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

As the hon. Gentleman would accept, one of the problems is that SIAC has a power to withhold from the detained person pieces of evidence. As I understand the procedure contained in the Bill, no one will be in a position to review whether SIAC's decision to exclude bits of evidence from the detained person was good or bad. That seems to be fundamentally unjust.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The right hon. and learned Gentleman's point is strong. As the Home Secretary said, one court will not judicially review another court, so it cannot do that. An important evidential point about the defendant meeting the case against them may never be able to be looked at again. Those seem to be among the reasons why the procedure does not give assurance.

I am conscious of the fact that normally the reviewing court, whether it has examined local council decisions or other decisions, has accepted the view of the initial court, but just occasionally it intervenes and says that that court got it wrong: procedurally and evidentially, there was an unfairness. It is that overriding final judgment that is being limited, which seems unjustified, even in exceptional circumstances.

Oliver Letwin (Conservative, West Dorset)

Does the hon. Gentleman agree that it is at least the proposition of Lord Donaldson, who I repeat is in a privileged position in talking about this matter, that under subsection (4) of Government amendment (a) to Lords amendments Nos. 21 and 22, the court of appeal could question the proceedings of the commission in respect of the matter raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? That is critical.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Again, we are showing the weakness of the timetable. There is a limitation in subsection (4) of the amendment to the original Act setting up SIAC, which I shall read into the record:

"A decision of the Commission shall be questioned in legal proceedings only in accordance with"

the appeal provisions set out in the original Act, or as to whether derogation was acceptable or not. Those are the two cases.

The fact that we are arguing about whether the alternative gives the guarantees is in itself a final argument for asking the House to reject it. Is it worth risking being found in breach of European law, being out of step with all our other European colleagues and someone being treated unjustly to devise a new procedure? Existing procedure perfectly adequately answers the question. As I hinted earlier, we are willing to accept that judicial review could have a time limit, and that evidence can be protected so that secrecy can be maintained, but the Liberal Democrats are not persuaded that, for this occasion and in this way, either for precedent or principle, judicial review should be written out of this part of British legislation. In the most extreme cases, we need the greatest protection most.

Denzil Davies (Labour, Llanelli)

I shall be brief. My right hon. Friend the Home Secretary will be surprised to hear that someone who is sitting behind him and who is a lawyer supports him in the belief that he has gone as far as he possibly can in a very difficult situation. I promise him, and my hon. Friends around me, that I will never do it again.

Jeremy Corbyn (Labour, Islington North)

It is the last time.

Denzil Davies (Labour, Llanelli)

It is indeed.

I find myself in some difficulty in that I appear to be at least indirectly endorsing the views of Lord Donaldson. I was in the House a long time ago when he existed in a different incarnation. Perhaps he was not quite the civil libertarian in those days that he has become since, especially when he was made Master of the Rolls.

I shall not follow the hon. Member for Southwark, North and Bermondsey (Simon Hughes) down the by-ways of the European convention. If the matter goes to court and if Mr. Pannick represents those who take it to court, the matter will have to be considered. In any case, my right hon. Friend the Home Secretary has gone as far as he can. Judicial review is a splendid procedure and nobody can be against it, especially lawyers, but it is not perfect. It cannot consider the merits of a case, merely whether a decision is lawful or unlawful. It can also consider whether a decision is reasonable, in the sense of whether a reasonable person would have come to that decision.

The difficult immigration case of Chahal went eventually to the European Court of Human Rights, which trenchantly criticised the UK system of judicial review. However, I do not suggest that that case is on all fours with the present situation. Nobody likes special tribunals but SIAC was set up to try to deal with the real problems of the Chahal case. On balance, I am not sure about the court of record and from my law exams, I seem to remember a concept that lawyers called an error on the face of a record. If SIAC had experienced a procedural problem—for example, evidence had not been properly considered—but not a problem of substantive law, that would be an error on the face of the record and could be considered by the Court of Appeal, which may only consider appeals on points of law. That applies also to errors on the face of the record, which could mean a procedural or evidential error on the part of SIAC. I do not like that approach, and my right hon. Friend the Home Secretary probably does not like it either.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Is not the right hon. Gentleman conceding, broadly speaking, that even if there is a process of judicial review, that would not address the question that I raised with the hon. Member for Southwark, North and Bermondsey (Simon Hughes) of whether the decision of SIAC to exclude evidence from the detained person was a reasonable or unreasonable decision? That decision, which goes to the root of justice, could not be the subject of any justiciable appeal.

Denzil Davies (Labour, Llanelli)

One would have to consider each particular circumstance, but the exclusion of evidence could well be seen to be a considerable procedural defect and would constitute an error on the record.

The hon. Member for Southwark, North and Bermondsey cited Lord Donaldson's speech in the other place. One of the most interesting speeches in the other place was made by Lord Lester of Herne Hill, who has considerable experience in these matters. I read his speech carefully and he concluded that judicial review would "do no harm" and was of "symbolic value". Symbolism is important, as is doing no harm, but we are legislating in a difficult area and we should not put into legislation, even with the best will in the world, something of which the best that can be said of it is that it would do no harm. I apologise for saying so, especially as a lawyer, but on this occasion my right hon. Friend the Home Secretary has just about got it right.

Oliver Letwin (Conservative, West Dorset)

It is absurd that we are left with a minute to discuss this point further, but we are. I shall ask my hon. Friends to abstain in the Division on this matter. We shall see what the other place makes of the proposal. The debate there will be longer, and there are people in the Lords who know more about this subject than any others in the kingdom.

I hope that it will turn out to be true that this is an adequate form of judicial review. On that basis, we shall abstain.

It being half-past Nine o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Orders [19 November and this day.]

Lords amendment agreed to.

Mr. Deputy Speaker then put the Questions necessary for the disposal of the business to be concluded at that at that hour.

Lords amendments Nos. 10 to 22 agreed to.

Clause 39 — Religious hatred offences

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Martin (Speaker, Glasgow Springburn)

With this we may take Government amendment (a).

Beverley Hughes (Labour, Stretford and Urmston)

The provisions in part 5 of the original Bill would create an offence of incitement to religious hatred. I shall rehearse some of the arguments in favour of such a provision and consider some of the reasons advanced in both Houses against it.

In relation to the original reasoning behind part 5, I remind hon. Members that, contrary to some contentions, the clauses were included because they had a clear connection to the events of 11 September. Many hon. Members are now aware—perhaps more so, since they have read the appendix to the report of the Select Committee on Home Affairs—of some of the reactions that many Muslim people in this country and other parts of the world have had to endure since 11 September. There have been incidents of harassment, threats and incitement. Leaflets claiming that Islam is responsible for things such as intolerance, looting and molestation of women have been published. Websites that make similar claims are proliferating.

Those Members who have argued that the clause has no place in the Bill need to think about the behaviour that has been precipitated against Muslim people. It includes not only individual acts against Muslim people—there have certainly been crimes such as assault—but the growing emergence of propaganda inciting hatred against a religious group.

John Gummer (Conservative, Suffolk Coastal)

All hon. Members are interested in what the Minister is saying, but can she help the House by explaining how she would draw the line between proper discussion of the influence of Islam on the treatment of women in many countries and what she feels would be an offence under such a law? I understand where the extreme lies, but many of us ask where the line will be drawn. Given that religion cannot even be defined in the Bill, what hope is there of drawing that line in a way that will not lead to very considerable restrictions on perfectly proper discussion?

Beverley Hughes (Labour, Stretford and Urmston)

I shall certainly come to that more general point later, but I can tell the right hon. Gentleman now that one of the things that we have been trying to remind Members of during these debates is that the provision arises from the Public Order Act 1986. It will not inhibit rational discussion of any kind, including discussion of the premise or tenets of a religion but deals with the kind of threatening, insulting or abusive words and behaviour that will, or are likely to, incite public disorder. It deals with public order, not the limit of reasonable expression and discourse.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Building on the point made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and bringing the Minister directly to Government amendment (a), as I understand it, the Attorney-General will issue guidance on the circumstances in which he will bring proceedings. In reality, does not Government amendment (a) constitute a definition of the law? That guidance, which is not subject to debate or amendment in the House, will be issued by an Attorney-General—I make no personal criticism of him—who is not even a Member of this House. Is that a democratic way to proceed?

Beverley Hughes (Labour, Stretford and Urmston)

The right hon. and learned Gentleman is entirely wrong in his interpretation of what the Attorney-General is proposing. Neither we nor the Attorney-General propose that he take the power to decide the law. With this offence, as with offences involving incitement to racial hatred, the Attorney-General is required to give his consent before a prosecution can proceed, as the right hon. and learned Gentleman will know. The Attorney-General does not determine the ingredients of an offence and he cannot make something criminal that is not a crime under statute. There is a requirement for consent to filter out cases, and I shall expand on that point when I explain Government amendment (a) and the provision on the guidance that the Attorney-General will define.

Tam Dalyell (Labour, Linlithgow)

May I be forgiven for being very puzzled as a non-lawyer? Why is it necessary to include this measure—virtuous, or not—in this emergency Bill? I really do not understand.

Beverley Hughes (Labour, Stretford and Urmston)

I started to set out what I thought were the reasons why the provision has been included. One of the reasons is that, as I have just elaborated, it has a direct link with the events of 11 September in terms of not only the features of those events, but some of their consequences for people from some religious groups, particularly Muslims.

Gerald Howarth (Conservative, Aldershot)

Is the Minister not aware that other religious groups feel equally under attack? People from the Hindu community have told me how they feel that they have been threatened by the Muslim community. She suggests that the Government are simply reacting to one form of outrageous activity, but they do not accept that that activity takes other forms as well.

Beverley Hughes (Labour, Stretford and Urmston)

That is not what I am saying. I am explaining why there is an opportunity, precipitated by the events of 11 September, for including the provision in this Bill.

Diane Abbott (Labour, Hackney North and Stoke Newington)

My hon. Friend has been challenged about what the clause is doing in a Bill on terrorism, and up to now she has not given us a satisfactory response. May I suggest the motivation? The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in this Bill—wrong clause, wrong Bill. The Lords were right to strike it down.

Beverley Hughes (Labour, Stretford and Urmston)

Once again my hon. Friend is entirely wrong, and I shall come to the reasons why she is wrong in a moment.

The second reason for including the provision in this Bill is the current anomaly in the law, of which hon. Members will be aware. Legislation on incitement to racial hatred protects two religious groups: Jews and Sikhs. Taking the opportunity to expand the provisions on incitement to racial hatred to include religious hatred will extend that protection not only to Muslims but to other religious groups, including Christians. The clause therefore both corrects an anomaly and extends protection.

David Cameron (Conservative, Witney)

Government amendment (a) says:

"The Attorney-General may issue guidance".

Will we see the guidance before the Bill completes its passage through both Houses?

Beverley Hughes (Labour, Stretford and Urmston)

I understand that point entirely, and if the hon. Gentleman is patient, I will answer his question.

Tony Baldry (Conservative, Banbury)

Unlike the hon. Member for Hackney, North and Stoke Newington (Ms Abbott), I am four-square with the Minister in wanting to give protection to the Muslim community because I understand that this has been a great source of hurt to them for many years. However, like the hon. Member for Linlithgow (Mr. Dalyell), I cannot see why it is necessary to include the provision in this Bill.

Having studied all the case law, in which High Court judges have described race relations legislation as being, among other things, rubbery, I do not understand why the Government do not amend that legislation to make incitement to religious hatred an offence. Why are they introducing a wholly new offence in this Bill? The public mischief that Ministers and others want to deal with is a race relations issue, and the only reason why Sikhs and Jews are protected, and Muslims are not, is that judges have ruled in case law that the legislation does not protect Muslims. May I suggest to the Minister that the Home Office—

Michael Martin (Speaker, Glasgow Springburn)

Order. The hon. Gentleman is making a speech.

Beverley Hughes (Labour, Stretford and Urmston)

I do not know whether the hon. Gentleman was in the Chamber during the Committee proceedings when my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) made a powerful speech that addressed the nub of the argument, but he set out the opposing point of view, which the Government and I share, that the route suggested by the hon. Gentleman would not deal with the fact that people are attacked and discriminated against on the basis of religion. There was considerable debate about whether the cause of discrimination is ethnicity, culture or religion, and we came to the view that it is religion. I agree with my right hon. Friend in that regard, and I am sorry if the hon. Gentleman missed that speech.

John Gummer (Conservative, Suffolk Coastal)

The scientologists dignify a pyramid selling ramp with the word "religion", but when I say that, many scientologists will feel that I am stirring up hatred against them. Frankly, I am not trying to stir up hatred; I just do not want people to be led astray by that invention by Lafayette Ron Hubbard, who, as I understand it, made a lot of money out of it. If the Bill is passed in its present form, a lot of other people will call a lot of other ramps religion and protect themselves accordingly. I do not think that the Government know what they are doing. They are restricting people's right to point to sheer, outrageous, unbelievably wicked dishonesty.

Beverley Hughes (Labour, Stretford and Urmston)

I do not accept that. As the right hon. Gentleman knows, the provision contains operational safeguards, as do the provisions on incitement to racial hatred. The clause establishes a public order offence; it will require the Attorney-General's consent. I do not share the right hon. Gentleman's fears that cults such as scientology will be the subject of offences under the provision.

Beverley Hughes (Labour, Stretford and Urmston)

I shall further explain why the clause should be in this Bill before giving way again.

First, there is a connection between the events of 11 September and the consequences that have flowed from that. Secondly, there is an anomaly in law whereby two groups are protected and other religious groups are not. Thirdly, despite the dissent voiced here and in the other place, there is widespread support for the provision. The view of the Church of England was expressed by the Bishop of Southwark in the other place. The Muslim Council of Britain, the Law Society and the Joint Committee on Human Rights acknowledge the "pressing social need". The United Nations Human Rights Committee noted the increase in harassment after 11 September and pressed the need for reaction.

Since 11 September and subsequent events, we have seen the need to protect vulnerable religious communities. We can—

Diane Abbott (Labour, Hackney North and Stoke Newington)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

I am going to complete—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Your hon. Friend wants to intervene.

Michael Martin (Speaker, Glasgow Springburn)

Order. The right hon. and learned Gentleman is giving the Minister a hard time. I will not allow that.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Speaker. I was not trying to give the Minister a hard time. I was merely trying to bring to her attention the fact that her hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) wanted to intervene.

Michael Martin (Speaker, Glasgow Springburn)

Perhaps the right hon. and learned Gentleman should let me chair the proceedings while he sits quietly.

Beverley Hughes (Labour, Stretford and Urmston)

In the operation of the law on incitement to racial hatred offences, we saw a small but important deterrent effect on some of the worst excesses of extreme racist groups. I have no doubt that the provision on incitement to religious hatred would have a similarly significant deterrent effect on the groups that seek to extend their violent and distressing propaganda to Muslims and other religious groups. That is another important reason why it should be included in the Bill.

Kelvin Hopkins (Labour, Luton North)

Will my hon. Friend not concede that she is confusing ethnicity, which we cannot change, and belief, which we choose? I cannot escape from being a middle-aged white English person, but I choose my socialist beliefs and I want them to be challenged and open to discussion.

Beverley Hughes (Labour, Stretford and Urmston)

I acknowledge that view. It is not one that we share.

I refer again to the powerful speech made by my right hon. Friend the Member for Manchester, Gorton who used his own experience to illustrate the fact that people respond to him in terms of his religion, not his ethnicity. That is the view that we have taken.

Diane Abbott (Labour, Hackney North and Stoke Newington)

For the avoidance of doubt, I, too, stand four-square against discrimination against Muslims. One of the problems with the clause is that it does not provide protection against discrimination; it is about incitement to religious hatred. Furthermore, I believe that 99 per cent. of what it is now fashionable to describe as Islamophobia is either an offence under racial hatred legislation, or a straightforward public order offence.

Beverley Hughes (Labour, Stretford and Urmston)

There are gaps in the legislation. If Members think about why we need the incitement to racial hatred offence in addition to the other provisions in the Public Order Act 1986 and in addition to the racially aggravated offences provisions, perhaps they will apply that thinking to why we need the incitement to religious hatred offence. Current provisions do not cover every eventuality. They do not cover incitement as it is defined in the Bill: the use of threatening, abusive or insulting words or behaviour intended or likely to result in public disorder. That is the difference. It is not covered in other parts of the Public Order Act, nor is it covered in the other legislation to which my hon. Friend referred.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We on the Liberal Democrat Benches are extremely sympathetic to those in vulnerable communities who may be victims of incitement, which extends beyond Muslims and race to, for example, homophobic attacks. We support legislation covering a much wider range of people. Why did the Minister and her colleagues vote against an amendment in 1998 that would have included a much wider range? Why does she not introduce such a provision in a wider Bill that covers all vulnerable communities?

Beverley Hughes (Labour, Stretford and Urmston)

rose—

Michael Martin (Speaker, Glasgow Springburn)

Order. We are discussing the amendment that is before us and nothing else.

Beverley Hughes (Labour, Stretford and Urmston)

As I have said, the Bill follows the events of 11 September. The issue of homophobia does not readily spring to mind as something that follows on from that.

A number of arguments have been advanced to demonstrate why the provision should not be in the Bill. I understand that there are concerns about limits to freedom of expression that might result from having an offence of incitement to religious hatred. The Government do not underestimate the concerns that have been expressed by many Members of this place and of the other place that a person should not be prosecuted for expressing their legitimate religious beliefs and for having legitimate debate on and scrutiny of those beliefs.

My right hon. Friend the Home Secretary undertook to consider the amendment that was tabled by the right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney), who is in his place, to determine how best to ensure that that limitation on expression did not occur. I am grateful for the right hon. Gentleman's co-operation. We have closely examined the amendments tabled in Committee that sought to provide that protection. We have also closely examined the amendments that were moved in another place. After careful consideration and the involvement of the right hon. Gentleman, we have concluded that the amendments would not be effective in addressing the concerns that have been expressed—legitimate as those concerns are.

The difficulty is that creating an exclusion from prosecution, or creating a specific defence where, for example, a person cited a religious text, would create a loophole that could and would be exploited by those who deliberately seek to incite hatred. Those are the very people whom we need to catch by this legislation.

Groups have lifted quotes from the Bible out of context and used them as headlines on their literature in order to incite religious hatred. We therefore propose to reinstate an amended clause on incitement to religious hatred—a guidance provision that will provide reassurance on this specific point.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the hon. Lady give way?

Beverley Hughes (Labour, Stretford and Urmston)

I will finish my point.

The amended clause will provide guidance from the Attorney-General on the legitimate expression of religious belief that is not likely to amount to an offence of inciting religious hatred.

Brian Mawhinney (Conservative, North West Cambridgeshire)

I am grateful to the Minister for giving way. If I catch your eye later, Mr. Speaker, I shall make some comments in response to what she has said.

The amendment says that the Attorney-General "may" produce guidance. I would like to see that guidance before any commitment is made, but why does the amendment state that he "may" produce guidance, and not that he will produce guidance? Alternatively, when the Bill goes to another place, will the Minister change the wording so that the Attorney-General will produce guidance?

Beverley Hughes (Labour, Stretford and Urmston)

For reasons to do with legal advice that we received, the word "may" was included in the amendment, but we have made it clear, and the Attorney-General has made it clear on the record, that that guidance will be produced, so there is no difficulty in changing the word "may" to "will". I am happy to tell the right hon. Gentleman that we shall do that when the Bill goes to another place.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That brings us to the nub of the matter, which I have already put to the hon. Lady. The amendment requires the Attorney-General to

"issue guidance as to conduct in respect of which he will not institute proceedings".

In other words, his guidance will define conduct that may result in proceedings, as well as conduct that will not result in proceedings. That is a form of legislation, to be introduced by guidance from the Attorney-General—I am not criticising him—who is not a Member of Parliament. The guidance is not subject to amendment or even debate; that is not a proper way to operate in criminal law.

Beverley Hughes (Labour, Stretford and Urmston)

In tabling the amendment, the Attorney-General and the Government were responding to the legitimate concerns of Members that the provision should not limit legitimate expression or discussion of religious beliefs. We agree with that. I do not accept the right hon. and learned Gentleman's interpretation of the guidance. As he has outlined, the guidance will exclude legitimate expression and make it clear that such behaviour will not be regarded as criminal; it will not be regarded as inciting hatred or public order.

David Cameron (Conservative, Witney)

Is that not the point? Here we are, almost at the 11th hour of the 11th day, discussing the Bill. The Attorney-General may issue guidance; we do not have that guidance and do not know what it will include. This is a complicated area, as the Home Affairs Committee said in its report. Why is it being included in an emergency Bill and why is it being legislated for in this way?

Beverley Hughes (Labour, Stretford and Urmston)

I have gone through the reasons why we think that it is right to include it in the Bill; I am now trying to deal with Members' arguments against that.

Denzil Davies (Labour, Llanelli)

The amendment refers to conduct consisting of

"the legitimate expression of religious belief".

What is meant by a legitimate expression, and will that be defined when the guidance comes along?

Beverley Hughes (Labour, Stretford and Urmston)

To answer that question and that of the hon. Member for Witney (Mr. Cameron), the Attorney-General is trying his best to make sure that the guidance will be available tomorrow. I cannot commit him to that, but that is his intention. I am fairly confident that Members will be able to see a copy of the guidance tomorrow.

Gordon Prentice (Labour, Pendle)

Will my hon. Friend give way?

Beverley Hughes (Labour, Stretford and Urmston)

I must respond to the question that my right hon. Friend the Member for Llanelli (Denzil Davies) asked about the word "legitimate". We all know what we mean by that. [Hon. Members: "No we do not."] Members will have to wait and see the Attorney-General's guidance. However, the intention, as I have made clear in response to Members' concerns, is that debate and statements about beliefs that are scrutinising, discursive and do not incite hatred—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Speaker. Can you advise us whether such guidance is debatable or amendable?

Michael Martin (Speaker, Glasgow Springburn)

That is a matter for debate, and the Speaker cannot get involved in debate.

Beverley Hughes (Labour, Stretford and Urmston)

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) knows that the guidance is a matter for the Attorney-General, if the provision to enable him to issue guidance is enacted.

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

Does not the right hon. and learned Member for Sleaford and North Hykeham have a good point? The guidance will create offences. Should that not be written into the Bill? If the Attorney-General is producing guidance, why cannot it be included in the Bill? That is where offences ought to be created, not in guidance.

Beverley Hughes (Labour, Stretford and Urmston)

The intention is not to create offences, but to clarify the kind of behaviour in relation to freedom of expression that the Attorney-General, in consenting to prosecutions going ahead, will not regard as criminal and will regard as a legitimate expression of—

Jeremy Corbyn (Labour, Islington North)

On a point of order, Mr. Speaker. Can you help us? The Minister has just referred to the nature of the guidance to be given by the Attorney- General, which clearly has serious implications for the interpretation of the Bill. Is it in order to proceed with the debate about a part of the Bill, when we know that it will be interpreted by the Attorney-General in a way that we are not allowed to see?

Michael Martin (Speaker, Glasgow Springburn)

Of course it is in order. The hon. Lady is in order. If she was out of order, I would have made that known to her.

Beverley Hughes (Labour, Stretford and Urmston)

Thank you, Mr. Speaker.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the Minister accept that we are in a nonsensical position? I do not attribute blame to her personally. The House has decided, at the Government's behest, that we must complete the legislation tomorrow. That is the effect of the order that we were made to pass. We are a little more than 24 hours from that. We are discussing the definition of an offence that we have never had. Guidance may be issued, but it can never be debated subsequently and it may be seen by only one House, a couple of hours before the end of proceedings. Would it not be better for the Minister to take the measure away, consult widely and come back, as many of us suggested, when we will try to do what the hon. Lady wants—pass a law that works and in which people have confidence?

Beverley Hughes (Labour, Stretford and Urmston)

No, it would not be better. The guidance is a matter for the Attorney-General. If he is given the power in the Bill to produce the guidance, he will produce it. I cannot give a commitment on when it will be produced, as I am not writing the guidance—the Attorney-General is. I know that it is his intention to produce it as early as possible tomorrow.

Gerald Howarth (Conservative, Aldershot)

The right hon. Member for Llanelli (Denzil Davies) made a good point. What constitutes a legitimate expression of religious belief is highly subjective—it is capable of innumerable definitions. The hon. Lady is presenting us with a huge power to be conferred on the Attorney-General to define a legitimate expression of religious belief. That will make his life intolerable and give him unwarranted powers. The Bill is not the place for such a measure.

Beverley Hughes (Labour, Stretford and Urmston)

That is nonsense. The Attorney- General has the power. He must give his consent for any offence of incitement to racial hatred. That power of consent will be applied to the offence of incitement to religious hatred, if approved by both Houses. The Attorney- General will be applying the power that he already has. In response to hon. Members' concerns about any limitation on freedom of expression, the Government have offered in the amendment that the Attorney-General will clarify the circumstances that he will not regard as incitement—as public order offences. That is certainly within his power. The provision in the amendment goes a long way to answering the legitimate concern of hon. Members to ensure that we do not limit discussion or scrutiny.

Denzil Davies (Labour, Llanelli)

My hon. Friend has spoken about the power of the Attorney-General. As she knows, other measures provide for a discretion that he exercises in the public interest. I suggest to her, however, that the Government are fettering that discretion in respect of the guidelines. If that is the case, should not those guidelines come before the House so that we can debate them?

Beverley Hughes (Labour, Stretford and Urmston)

The provisions do not fetter the responsibility of the Attorney-General to take into account the public interest, which my right hon. Friend mentioned. In addition to that responsibility, the Government amendment clarifies the fact that the guidance will simply say what sort of words and behaviour the Attorney- General will regard as being outside the offence of incitement. That will include legitimate expression of opinion and scrutiny and discussion. In conjunction with existing safeguards, the amendment will reassure people who feared that those expressing their truly held beliefs could inadvertently find themselves being prosecuted for an offence.

Harry Barnes (Labour, North East Derbyshire)

The problem of the Attorney-General and his role in giving guidance is wider than has been suggested. The Bill states that religious hatred is

"defined by reference to religious belief or lack of religious belief."

What will be required, therefore, is guidance on what can be said in expressing religious or anti-religious views. The definition of what is legitimate in religious debate will be determined by the Attorney-General and not by us in this House.

Beverley Hughes (Labour, Stretford and Urmston)

In so far as the Attorney-General already has the power to consent to a prosecution, and to the extent that he uses that power, he is required to give his consent. The Government amendment adds nothing new in that respect. This is a matter for the Attorney- General. He is not defining offences, but setting out by way of clarification the behaviour that he will regard as outside the remit of an offence of incitement to religious hatred.

Chris Bryant (Labour, Rhondda)

Is not it fair to say that the specific reason why the amendment was tabled is the problem that was presented to us in Committee by the right hon. Member for North-West Cambridgeshire (Sir B Mawhinney)? It related specifically to the question of how he might accidentally, in stating his own Christian faith as a Catholic—[Interruption.] I should point out to hon. Members that there is no discourtesy in confusing one denomination of the Christian faith with another; none the less, I apologise to him. Would it not be fair to say that the amendment has been tabled precisely to meet a very specific objection and not to turn the provisions into some sort of pseudo-blasphemy law, as others seem to be suggesting?

Beverley Hughes (Labour, Stretford and Urmston)

I am very grateful to my hon. Friend, because he has taken the argument back to the point at which I started. I reminded hon. Members why the Government amendment was tabled and of the process that had occurred since the right hon. Member for North-West Cambridgeshire and others expressed their concerns about the limit on freedom of expression. The amendment is a response to those concerns.

Brian Mawhinney (Conservative, North West Cambridgeshire)

It is certainly right to say that it was my intervention that caused the Government to think again. I am grateful to them for having done so, although the House must understand that I am not responsible for the answer that they have provided. Given the disquiet on both sides of the House, does not the hon. Lady understand that, as it was peers from all parts of the other place who threw out clause 39, all that is happening now is that we are reinforcing their determination to throw out the clause again tomorrow? Perhaps she might provide them with some encouragement by giving an indication of the view the Government might take if they were to throw out the clause a second time.

Hilary Armstrong (Labour, North West Durham)

She is not that naive.

Beverley Hughes (Labour, Stretford and Urmston)

We believe, for the reasons that I have tried to outline, that the Bill should include the offence. We believe that it is important to protect vulnerable religious communities. The Bill affords an opportunity to put such a provision on the statute book, and we want it to be enacted so that those religious communities can be protected. We are committed to that.

Chris Bryant (Labour, Rhondda)

rose—

Lynne Jones (Labour, Birmingham, Selly Oak)

rose—

Beverley Hughes (Labour, Stretford and Urmston)

I want to make some progress because time is passing.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Mr. Speaker. More than half the debate has been spent on the Minister having to answer questions. As the Chief Whip is in her place, may I make an appeal through you for Government Front Benchers to consider introducing a proposal to extend the time for this debate and the remaining debates? The current position is nonsensical.

Michael Martin (Speaker, Glasgow Springburn)

The hon. Gentleman knows full well that the House has already decided on the matter.

The rest of the debate is in Hansard.