Orders of the Day — Prevention of Terrorism Bill

House of Commons, 28 February 2005.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Sir Alan. My hon. and learned Friend the Member for Harborough (Mr. Garnier) has pointed out that substantial amendments have been tabled to the initial clauses of the Bill. The problem is that there are so many amendments that if we debate the initial clauses at the start, we will be unable to debate the later ones, which may remain in the Bill. Can we invite the Home Secretary to tell us which clauses are going to be so substantially rewritten that we need spend only a relatively short period debating them? Otherwise, we are going to debate clauses that are not going to form part of the Bill. In those circumstances, the schedule that the right hon. Member for Berwick-upon-Tweed (Mr. Beith) wanted to debate, for example, may not be debated at all.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I have to tell the right hon. and learned Member that that is entirely a matter for the Home Secretary. If he seeks to catch my eye, he can deal with the matter. No doubt he will have heard what the right hon. and learned Member said.

Kenneth Clarke (Conservative, Rushcliffe)

Further to that point of order, Sir Alan. I, too, have read the letter mentioned by my hon. and learned Friend the Member for Harborough (Mr. Garnier). None of us was aware of it until the Division provided an opportunity to get it. As I read the Home Secretary's intentions, if the Bill is amended as he proposes, it will make the entire first group of amendments otiose and unnecessary, so we could be about to waste a considerable amount of time debating amendments that will fall by the way. Will you, Sir Alan, invite the Home Secretary to table in manuscript form as quickly as possible the amendments that he describes in the letter? We must know exactly what we are debating. As far as I am aware, the only reason for not debating the amendments that have been proposed so far is that the Government do not want the Committee to discuss them. They prefer to wait until the Bill goes to the other place, where there will be more time to deal with them.

Charles Clarke (Labour, Norwich South)

Further to that point of order, Sir Alan. I would be happy to clarify the position. To be candid, I thought that I was being helpful to the Committee in respect of its consideration of these matters by writing the letter that was mentioned. Since Second Reading last Thursday, I have been considering as fully as I can many of the issues raised on both sides of the House. The choice that I faced was whether to respond to the debate on the first group of amendments, summing up my conclusion at that point, or to seek to help the Committee by letting the position become clearer at an earlier stage of our proceedings. That is why I wrote the letter.

In response to the points of order, and if it is convenient to you, Sir Alan, I would be happy to set out clearly the conclusions that I summarised in the letter in order to help the Committee's consideration at this stage. If, on the other hand, you would prefer me to deal with that later, I would be happy to take that advice, too. I defer to you, Sir Alan, as to which of those two courses I should follow.

Eric Forth (Conservative, Bromley and Chislehurst)

Further to that point of order, Sir Alan. Is not the problem facing us, notwithstanding the Home Secretary's attempt to be helpful, that we cannot prejudge whether the Lords would accept any of the amendments that he said he would submit to their lordships rather than to this Committee? We must debate the Bill and the amendments as they are before us, because even if the Home Secretary has generously decided to tell us what he thinks he will do in another place, he cannot know whether the other place will accept the amendments.

Patrick Cormack (Conservative, South Staffordshire)

Further to that point of order—I am trying to be helpful, as you are, Sir Alan. In view of what the Home Secretary said in his letter and at the Dispatch Box, would it not be sensible for the Committee to have a brief suspension so that the Home Secretary can table some amendments that we could then debate? Otherwise, we shall debate amendments that are, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, otiose.

You have already said, Sir Alan, that you are willing, in principle, to consider manuscript amendments. The Home Secretary clearly knows the sort of manuscript amendments he would submit and if the Committee suspended, even for a quarter of an hour—certainly no more than half an hour—that could be done.

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

On a different and short point of order, Sir Alan. Having agreed the programme motion, what procedure is available to the Committee to take advantage of the Opposition's offer of an extra day's debate? Is it only the Government who can table an amendment to the programme motion that we have passed? There seems to be a general feeling in the Committee that we are short of time to discuss such an important Bill and that an extra day given by the Opposition would be approved.

Bill Cash (Conservative, Stone)

On a point of order, Sir Alan—

Bill Cash (Conservative, Stone)

Well, I have not had a point of order, Sir Alan, but my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) has had about five.

Clause 1 — Power to make control orders

Win Griffiths (Labour, Bridgend)

I beg to move amendment No. 4, in page 1, line 3, leave out 'make' and insert

'apply to the court for'.

Win Griffiths (Labour, Bridgend)

I rise with some trepidation to support the amendment, the 47 others in the group and new clause 1, which all relate to decisions made by a court through the judicial process rather than by the Secretary of State as the person in the Executive arm of Government responsible for such matters. I am keeping in mind both the letter that has been distributed to us, as it is bound to have some bearing on the debate, and the fact that when we discussed these issues during the passage of the Anti-terrorism, Crime and Security Act 2001, I voted for procedures that have since been declared illegal. I feel, therefore, that I need to explain—although not at length—why I have come to a different opinion.

In the appalling aftermath of the terrible twin towers incident in New York, there seemed a pressing and urgent need to do something significant to cope with what seemed an immediate danger. Some people may say that because nothing has happened in the United Kingdom over the past few years I am getting complacent, but that is not the case. I am moving the amendments in the context of the fact that it appears that our intelligence services are doing a good job in maintaining their monitoring of the potential terrorist threat. I wish them well and applaud all that they are doing in that regard. Obviously I do not want any form of terrorist activity in the UK to come to a terrible successful conclusion. However, I am also aware that the terrorist threat is no longer a one-off, but will be a significant experience for perhaps months or years. While the middle east remains a festering sore on the human political and social condition, there is a danger that the threat of terrorism will continue. In other words, it could be around for a long time. So issues relating to putting suspected terrorists under some form of house arrest imprisonment or other non-derogating actions to control the potential terrorist threat—

Anne Campbell (Labour, Cambridge)

Can my hon. Friend clarify whether his amendments would apply to non-derogating control orders as well as to derogating control orders?

Win Griffiths (Labour, Bridgend)

I do not know whether I was fortunate or unfortunate in being the first Member called to speak, but my amendments cover both derogating and non- derogating control orders. It is important that the whole process be subject to a legal decision when the Secretary of State makes an application for action to be taken.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

rose—

Simon Thomas (Plaid Cymru, Ceredigion)

rose—

Win Griffiths (Labour, Bridgend)

I give way to my colleague from Wales.

Simon Thomas (Plaid Cymru, Ceredigion)

Has the hon. Gentleman had the opportunity to read the letter from the Home Secretary on these matters? Does he feel that the letter answers the concerns set out in his amendment? My reading of the amendment is that it goes wider than the letter, which relates only to derogating orders. Will the amendment tackle the difficulty, admitted on Second Reading last week, that a combination of non-derogating control orders could amount to a deprivation of liberty and thereby become an issue that should go before the courts or invoke the need to derogate from the convention on human rights? Does he feel that the amendment overcomes the problems that I still have, as perhaps does he, with the letter from the Home Secretary?

Win Griffiths (Labour, Bridgend)

On the basis of what is in the Home Secretary's letter, I am still waiting for an explanation and a filling out of exactly what is meant in terms of the non-derogating orders. My own position is that there should be a proper legal process in both cases because that would cover the point about some of the non-derogating issues, perhaps when put together, really being derogating ones.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman has just made the point that there should be a proper legal process. Does he understand that he is only taking a small step by substituting the judge for the Home Secretary? The real problem is that even if the judge makes the decision, that is a not a proper legal process, because the detained person does not know the evidence, does not know the identity of the informer, is not properly represented, cannot see the evidence and cannot ask questions of counsel.

Win Griffiths (Labour, Bridgend)

If the right hon. and learned Gentleman has read new clause 1, which I tabled, he may see in that perhaps an imperfect attempt to try to deal with some of the issues that he raises. In new clause 1, I propose the setting up of a court of terrorism control, where between three and six judges could meet to consider what the Home Secretary has said and decide exactly how to proceed in handling the evidence. I admit that I am a layman, not a lawyer, but I believe that that would give the court the opportunity to decide how to handle the evidence and whether it needed the clarifications to which the right hon. and learned Gentleman refers. I will come back to that later on.

David Winnick (Labour, Walsall North)

As someone who broadly supports what the Government intend to do, does my hon. Friend agree that although the Home Secretary has undoubtedly made a move in view of the concern expressed last week so far as derogating orders are concerned—they will have to be initiated by a judge, which is certainly a step forward—it is unfortunate, however, that there has been no progress at all on non-derogating control orders, which relate to issues other than house arrest, as he knows, such as tagging and the rest of it? The Home Secretary's letter simply says that the person involved can apply very quickly to the courts. Surely a person should be subject to a control order only as a result of court action. That is a very important point. Does my hon. Friend not agree?

Win Griffiths (Labour, Bridgend)

My hon. Friend will be aware that I am speaking now because amendment No. 4 deals with that very point. I look forward to an expansion in what the Home Secretary has to say about the matter. Given that he has already conceded that on derogating orders the judge's role should be primary, perhaps there is room for the debate to develop on that point in a similar fashion.

Patrick Cormack (Conservative, South Staffordshire)

In view of the fact that the Home Secretary has indicated that he would be happy to speak at an early stage, and as we are in Committee and the hon. Gentleman can take part in the debate again, would it not be a good idea if we heard from the Home Secretary very soon?

Win Griffiths (Labour, Bridgend)

That is a very good idea, and I am bearing it in mind. Of course, hon. Members have made a couple of interventions on my speech, which has slowed me down, but in the light of the letter and the conversations that I have had this morning on some of these issues, I certainly do not intend to make the speech that I was planning last night—although I believe that it is necessary at least to refer to some of those matters before I sit down.

The first issue is the House of Lords judgment that, of course, precipitated the need for this debate and these changes in the law. The one simple point that I want to make about that judgment is that it has two significant parts, the first of which relates to the discrimination between nationals and non-nationals in the United Kingdom, and the second of which is that the Law Lords felt that the response was not proportionate to the threat that we face from terrorism. Of course, we could debate that at some length, but I feel that, all in all, the decision not to use the courts in the first place was wrong. Therefore, the Law Lords were right to say that the provision to set aside the courts as the first place to take such matters was disproportionate. That is why I tabled the amendment.

Since then, we had over the weekend the report from the Joint Committee on Human Rights. It makes some clear recommendations. Without mentioning each one in detail, I wish to refer to paragraphs 11, 12 and 13 that refer, in particular, to the

"lack of prior judicial involvement in orders depriving of liberty".

They make it absolutely clear and without any doubt whatever that the law as we have it and as it is proposed under the Bill contravene—

Bill Cash (Conservative, Stone)

Will the hon. Gentleman give way?

Win Griffiths (Labour, Bridgend)

I was just about to point out that the law both as it is and as it is proposed contravenes the European convention on human rights. I know that the hon. Gentleman is very keen to uphold that.

Bill Cash (Conservative, Stone)

The hon. Gentleman refers to the report of the Joint Committee on Human Rights that, understandably from its point of view, would enhance and entrench the role of the Human Rights Act 1998. However, does he know that Lord Hoffmann, in a postscript to the Rehman case, made the position clear only a couple of years ago? He said:

"It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process."

He then adds that those persons are those

"whom the people have elected and whom they can remove."

In other words, Lord Hoffmann clearly contradicts the basis upon which the Joint Committee is proceeding.

Win Griffiths (Labour, Bridgend)

The hon. Gentleman points to only one case in which there is a difference of opinion. I would have thought that the Law Lords and the Joint Committee—which, I believe, is a parliamentary Committee—have made judgments with which Lord Hoffmann could be happy. The Joint Committee has made it very clear that the derogating orders that would deprive people of their liberty disregard the convention and our own law. Therefore, they would be illegal.

On the limited judicial control of the non-derogating control orders, the Joint Committee has a less strident opinion. Nevertheless, it flags up a sufficient warning that it believes that, even under the non-derogating orders, there would be a case to be taken and the Government would be likely to be found to be acting illegally under our legislation with regard to the European convention on human rights. That is why I hope that later in the debate, it will become clear how the Secretary of State will handle the derogating and non-derogating orders. I hope that in both cases, there is sufficient clarity that primary decisions will lie with the courts.

Before I conclude, I want to refer briefly to new clause 1, which, in a sense, is a probing effort to try to consider how we can handle the issue of the sensitive material that has been gathered and has led the Secretary of State to believe that someone should be deprived of his liberty in an extreme case, or have some sort of control order placed upon him. There should be some way in which a suspect's case could be properly considered and he should have the opportunity to mount a defence.

One of the significant things that we must bear in mind was referred to by an article in The Guardian this morning—I hope that my right hon. Friend the Secretary of State will not see that as a weakness in my argument. The article was written by Clare Dyer, the newspaper's legal correspondent. She pointed out that the Tipton three, who were held at Guantanamo Bay and released without charge after two years, were detained because the Americans believed that they had a video showing them with Osama bin Laden in 2000. However, if the three men had known that at an early stage, they would have been able to prove that one of them was working in an electrical store in the United Kingdom at the time and the other two were in trouble with the police. The situation could thus have been cleared up quickly.

There must be a process by which evidence can be considered and suspects can have the opportunity to clear their names. I envisage a court of terrorism control with between three and six judges who could consider evidence and decide, on their own initiative, the procedures that would be needed to allow the suspects to defend themselves. They could then decide whether the application made by the Secretary of State was correct.

As the Bill stands, the Secretary of State will be the prosecutor, judge and jury in the first instance for both types of order. We already know that thanks to the pressure from the House of Commons, the Home Secretary is now minded to make it absolutely clear that a judge will make decisions in cases when people would be deprived of liberty, and that there will be a different and stronger procedure for non-derogating orders—although as a layman, I am not entirely clear about how that would work. When the Secretary of State speaks, it would be helpful if he would let me know that judges will have a primary role with regard to both types of order, because I would then be able to withdraw my amendment. I am currently waiting in hopeful expectation that he will be able to agree in principle with the points made in my amendments to clause 1 and in new clause 1.

Charles Clarke (Labour, Norwich South)

May I first apologise to hon. Members and you, Sir Michael, if I erred by writing to the party leaders and putting the letter in the Library of the House? I took that course of action for a simple reason: I felt that I had reached a set of preliminary conclusions following the views expressed in the House last week and subsequent conversations. I thought that it would help today's discussion if I tried to set out clearly where we were, rather than not revealing that until a later stage of the debate. If I have created confusion and caused a problem with the consideration of the Bill, I apologise to the Committee and you, Sir Michael.

Kenneth Clarke (Conservative, Rushcliffe)

I thank the Home Secretary for his apology. The letter seems to imply that he has decided clearly how he wishes to amend the Bill, but the obvious complaint is that he has decided not to put the relevant amendments before the Committee for discussion today. Of course they will need drafting, but I cannot imagine that that would take days and days with a little late-night work. Will he explain why he has not put the amendments before the Committee? Why could he not do so this evening, if we were prepared to continue after 10 pm? Why could we not consider them on Wednesday, because if the official Opposition were prepared to give up their Supply day, the Leader of the House could make the necessary business statement to allow us to do that. Given the complexity of the matter, it is unsatisfactory for the Home Secretary to outline what he has decided to do—the parliamentary draftsman have probably already drafted the measures—yet for us not to be able to read the amendments so that we can have a serious, sensible and detailed discussion about them of the kind that should take place in the Committee, if it is to have a scrutinising function.

Charles Clarke (Labour, Norwich South)

There are two reasons why I have taken the course of action that I have taken. The first is that I finally resolved this morning what to write in the letter, which is why it came over to the House at about half-past 12. It is a preliminary set of conclusions, which I thought I should make available before we discussed the situation further. The fact is that we do not have the detailed amendments in draft to put before the Committee today, and they will not be available today.

The second reason is that I want, and I think the Committee should want, to hear the debate that we are about to have so that we are clear about the place from which a wide range of Members argue their particular points of view. That is why I have taken this course of action. As I said, the alternative open to me was to say nothing other than at the end of the discussion on the various groups of amendments. I thought that that would not be the right way to proceed.

Charles Clarke (Labour, Norwich South)

I shall give way, but I want to deal with the substance of the comments made by my hon. Friend the Member for Bridgend (Mr. Griffiths).

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does the right hon. Gentleman understand the problem? If, as appears to be the case, he tables the amendments in the other place, the House will have barely any opportunity to consider the detail because they will come back for discussion under a tight timetable motion. The truth is that hon. Members will never have the opportunity properly to discuss the amendments that will lie at the heart of the new Bill.

Charles Clarke (Labour, Norwich South)

I understand that, but it is also the case, as the right hon. and learned Gentleman acknowledged, that the other place will have the chance to discuss those amendments in great detail and that this House will then have the opportunity to consider them.

Richard Shepherd (Conservative, Aldridge-Brownhills)

As I understand it, the other place will consider the Bill tomorrow. That means that the Home Secretary's proposed amendments must be in an advanced stage of drafting. He has had Wednesday offered for an extension of the debate. If he reflects on the primacy of this Chamber, surely he can accede to us the right to discuss that which will go before the Lords by utilising the Opposition time now made available. That really would be helpful and perhaps ease the Bill's passage.

Charles Clarke (Labour, Norwich South)

I am always an optimist, but the process set out—the timetable that has been agreed—is the right way to proceed.

Martin Salter (Labour, Reading West)

While much that is in the Home Secretary's letter to his opposite number is to be welcomed, especially his commitment to put the issue of effective house arrest before a judge, does he recognise that his failure to accept the amendments tabled by my right hon. Friend the Member for Livingston (Mr. Cook) and others puts many Labour Members in a difficult position, because we are extremely reluctant to vote for an unamended Bill?

Charles Clarke (Labour, Norwich South)

I shall address the points of substance raised by my hon. Friend the Member for Bridgend in a second, and I think that will address the concern expressed by my hon. Friend the Member for Reading, West (Mr. Salter).

Edward Garnier (Conservative, Harborough)

The procedure is important because it is the only instrument by which the Opposition can debate a Bill. By advancing in a letter an amendment that is not part of the marshalled amendments and was not taken into account when the six-hour limit was set, the Home Secretary places the Committee in a difficult position. I do not deny him the good motive that he wants the House of Commons to know what he is thinking, but what he is thinking and writing about is not before the Committee as part of the Bill or the amendments. It is just a piece of paper that contains his thoughts. We in the Opposition—what he does in the Government, only he can speak for—can only discuss what is in the Bill and what has been chosen to be discussed on the marshalled list of amendments.

We have six hours in which to discuss a page and a half of amendments on the selection list. The amendment set out in the letter is the latest addition, but it is unofficial. Of course, we listen to the Home Secretary with the greatest of care—he is a Secretary of State—but we are supposed to take it on good faith that he will give us adequate time when the Bill returns from the House of Lords. The history of the Government suggests that we will get one, two or three hours maximum to discuss Lords amendments. If he thinks that that is adequate and a proper way to discuss the Bill, I am afraid that he will lose our support.

Kevin McNamara (Labour, Kingston upon Hull North)

Will my right hon. Friend give way?

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

Order. The hon. Gentleman cannot intervene on an intervention. The Secretary of State must at least respond to the first intervention.

Charles Clarke (Labour, Norwich South)

I will give way and then respond to both interventions.

Kevin McNamara (Labour, Kingston upon Hull North)

Is not the nub of the matter what appears in the top paragraph of page 2 of the letter, which says:

"(with a special advocate representing the interests of the subject of the order in closed sessions)"?

In other words, the subject of the order will not know the evidence against them and will not have a proper opportunity to rebut it. Therefore, whatever tinkering there might be with the role of the judge, there is no real protection for the individual who is imprisoned.

Charles Clarke (Labour, Norwich South)

That intervention helps me to make progress on putting the substance of what I will suggest before the Committee for hon. Members to consider.

After my apology to hon. Members, I wanted to acknowledge the importance that my hon. Friend the Member for Bridgend gave to the 9/11 events and what we are dealing with, and he was right to do so. Only today we have had the case of Saajid Badat, who has admitted plotting to blow up a plane and who the intelligence services believe was in league with Richard Reid—both, by the way, British citizens. That proves two things.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

They were in court.

Charles Clarke (Labour, Norwich South)

Precisely; that is my point. First, there is a real threat with which we have to deal, and we must never forget that point in all our discussion. Secondly, the preferred route of this Government, as with previous Governments, is that of prosecution and the courts in precisely the way indicated. That is the route that we will choose. As I shall go on to say, we seek to strengthen in the legislation the commitment to go down the prosecution route, for the reason argued by Members throughout the House.

Crispin Blunt (Conservative, Reigate)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

No, I shall make a bit of progress before I give way again.

On Second Reading, I undertook to look carefully at the cases that had been made to achieve judicial involvement in the order-making process at the earliest possible stage, in line with the considerations put forward by many in the House. I stated that my first consideration would be the security of the nation, and I retain the view that the proposals in the Bill are the best ones. I am strengthened in that view by some senior judicial opinion. I cite, for example, Lord Donaldson—a former Master of the Rolls and one of the highest people in the country on the civil side of the law—who said on the radio this morning:

"I don't agree with the idea of involving the judges at the initial stage. It's never been the case. It would involve them forming a view and expressing a view as to the correctness of the order before they'd even heard the person who was affected by it. Furthermore, there would be a change in people's perception of what a judge was."

He concluded:

"A judge is the referee or umpire; he's not a player."

I state that to indicate that there are serious and senior judges in this country who are of the view that it would be better to remain as we are proposing in the Bill rather than to make the changes that I propose. I nevertheless take the view that it is right to make the changes that I suggest for reasons which I shall state.

Dominic Grieve (Conservative, Beaconsfield)

That is not the interpretation that I put on Lord Donaldson's words. On the contrary, the interpretation that I place on them is that, as we said on Second Reading, the judiciary would be most reluctant to be sullied with a process involving them that falls short of proper judicial procedure. The ball is in the Government's court to provide a process that comes as close to proper judicial procedure as possible. It is possible to do that if the Home Secretary allows for a proper procedure under which the judge can hear the other side before determining any order.

Charles Clarke (Labour, Norwich South)

I was not seeking to interpret Lord Donaldson; I was quoting him exactly—I used his precise words. The hon. Gentleman does not understand the critical point, which must be understood, that the Bill covers territory in which we cannot prosecute successfully, and that some people threaten the security of the country through terrorism. That is the territory, and I share the view, which is held on both sides of the House, that we should minimise the number of people who are in it.

That is why I say, let us strengthen the paths to prosecution, and that is also why I say, let us bring cases through the courts—earlier, I mentioned the case of Mr. Badat—where we can do so. However, I also assert that we are not in that position in a very small number of cases, where the issue is whether we simply allow such people to operate unchallenged or whether we challenge them. Lord Donaldson is saying that judges are not best involved in that small area, which is his argument, not mine.

Dominic Grieve (Conservative, Beaconsfield)

Is not the key issue, on which we touched on Second Reading, why the Home Secretary finds it necessary to take a power where he can be woken at 2 am to direct immediately that a person should be subject to a control order, when, as we have discussed before, if the police believe that a person poses an imminent threat, they already have 14-day detention powers under terrorism legislation, which is ample time in which to bring an inter partes hearing before a judge to determine whether an order should be made?

Charles Clarke (Labour, Norwich South)

I accept that point, which is why I have set out the proposals for change in my letter. I believe it desirable that we achieve a position in which legislation on the statute book is supported by as broad a range of opinion in this House as we can possibly achieve. I cited Lord Donaldson, who, I believe, is not the only senior judge to take that view, because we are making a change that the judges themselves may not believe to be the best course of action from their point of view.

Crispin Blunt (Conservative, Reigate)

The Home Secretary has just said that he needs to deal with very few people, which gives the game away on the need to push through the powers with such haste. In his letter to my right hon. Friend the Member for Haltemprice and Howden (David Davis), he said:

"There is a further area where I have been persuaded by the debates in the House that some amendment is needed",

and he has gone on at some length about his interpretation of Lord Donaldson's words. Given the huge controversy that surrounds the implications of what he is doing, he needs consensus and support, but the way in which he is handling the matter is ensuring that he gets as little consensus and support as possible. He should urgently review how he is dealing with the matter in the Committee.

Charles Clarke (Labour, Norwich South)

The hon. Gentleman has made it clear at every stage that he is against any form of control orders, which he does not believe to be right. In the small area that I described, he concludes that the best thing—I accept his integrity and honour in putting this view forward—would be to do nothing. He is entitled to that view, but I cannot accept it.

Peter Lilley (Conservative, Hitchin and Harpenden)

The Home Secretary has said that these measures, which we all find distasteful, will apply only to a small number of people, but earlier today the Prime Minister said that in the view of the security services there are "several hundred people" for whom these powers are necessary. Who should we believe?

Charles Clarke (Labour, Norwich South)

The Prime Minister was referring to the 700 cases, I think, where action has been taken which has already been reported. There are a large number of people who, we think, pose a threat to what we believe. However, a significant number of those can be dealt with through the prosecution route, which is the route that we prefer to follow.

John Bercow (Conservative, Buckingham)

Given the detailed contents of the right hon. Gentleman's letter to my right hon. Friend the Member for Haltemprice and Howden (David Davis), nothing that he has said this afternoon explains why he cannot table Government amendments for the Committee to consider this week. In view of the fact that the Home Secretary must have heard the expressions of grave concern in all parts of the House about the way in which he has handled the matter during the consideration of the programme motion, did he not think it a good idea to have a word with his right hon. Friend the Chief Whip or with the Leader of the House or both, with a view to saying to the Committee, "Yes, we accept the Opposition's suggestion. Let there be an additional day for debate. Let that day be Wednesday." What is so difficult about the Home Secretary swallowing a little bit of humble pie?

Charles Clarke (Labour, Norwich South)

We have dealt with all those points at some length. The whole point about the Conservative Opposition is that there is no Opposition proposal. There is no clarity whatever. We have a shifting position, sands moving the whole time, about control orders or not.

Robin Cook (Labour, Livingston)

As the Member who had the privilege this morning of taking part in the debate with Lord Donaldson, I am not sure that I find Lord Donaldson's views any more persuasive at 5 o'clock in the afternoon than they were at 9 o'clock in the morning. I particularly remain unpersuaded of his argument that the Attorney-General would be an adequate check and balance on the way in which the Government carried out the powers. I fully take my right hon. Friend's point that a number of judges will be very unhappy about the idea of the deprivation of liberty of the citizen without charge, without conviction and without trial. However, if that is the course that we are to take—it is in his Bill—to many of us a sticking point is that the decision on that should be taken by the courts, not by the Government.

Charles Clarke (Labour, Norwich South)

I agree with my right hon. Friend. That enables me to move on to the main point that I wished to make, and I am grateful to him for allowing me to do so.

Lynne Jones (Labour, Birmingham, Selly Oak)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

No, I shall go on to the point that I wished to make, which is that despite the view that I have just expressed of my concern about the position of judges, I have come to the view that there is great merit in seeking as wide a consensus as is possible across Parliament. That is why I have come to the conclusion that I should move in this area in precisely the direction suggested by my right hon. Friend the Member for Livingston (Mr. Cook) not only today but on Second Reading. I take the opportunity to pay tribute to the way in which the arguments on the matter have been made, both by him and by many of my hon. Friends, who have sought in a perfectly proper way to make the case that he summarised a moment ago—that decisions on deprivation of liberty are best taken by judges, not by other people.

However, when considering the balance of these matters—and it is a matter of balance—I came to the conclusion that I set out in the letter today. I propose to amend the Bill to provide for derogating control orders to be made by a judge in the High Court, rather than as now by the Secretary of State. That is a change of position and I have made it for the reasons that I have given.

Dominic Grieve (Conservative, Beaconsfield)

rose—

Charles Clarke (Labour, Norwich South)

I have sought to acknowledge the strength of opinion that exists in all parts of the House. I shall go on to say three other things that I have also concluded, but before doing that I give way to the hon. Member for Beaconsfield (Mr. Grieve).

Dominic Grieve (Conservative, Beaconsfield)

The Home Secretary suggests that the official Opposition have not indicated their position, so I repeat it. First, the orders must be made by the judiciary, not by the Executive—I shall come back to that in a moment. Secondly, the Home Secretary will have to justify before the House each and every aspect of the control orders that he seeks. If he can persuade us that each and every one of them is required, he will have our support, but the difficulty is that his past utterances have not suggested to us that some of the control orders are justified at all. Why, if the right hon. Gentleman accepts the principle of the judiciary dealing with orders where there is a derogation, should he not apply it also to those where he believes he does not have to derogate, given that many of them as they appear in the Bill are substantial infringements of the liberty of the individual?

Charles Clarke (Labour, Norwich South)

I will come to the hon. Gentleman's final important point, which has also been raised by others, when I set out the four points that I intend to deal with.

Chris Smith (Labour, Islington South and Finsbury)

Can my right hon. Friend give us a very clear assurance that as regards the prima facie consideration by the judge that he intends in relation to the derogating orders and the subsequent referral to the full court, the judge and the court will on both occasions be able to look at the facts of the case and to consider all the information that he has had at his disposal, and will not simply be looking at process?

Charles Clarke (Labour, Norwich South)

I can give that absolute assurance. That is very important. The meaning of the criticism that was made of me by several hon. Members during the Second Reading debate last Thursday was precisely that a court might be able only to look at the processes, not the substance—

Charles Clarke (Labour, Norwich South)

I will not give way until I have finished my sentence. It is not unreasonable for me to try to finish my sentence before giving way.

The point that I was seeking to make is that many Members criticised my proposal on the grounds that it did not give, as they originally thought, the basis for the court to consider the whole situation, as my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) suggested. I have accepted that criticism in the case of derogating cases, and that is the basis of what I have put forward. In a second, if I am given the time, I will deal with the points made by my right hon. Friend and set out the procedure that will be followed.

Michael Weir (Scottish National Party, Angus)

Will the Home Secretary please clarify something? In his letter he talks about an application to the High Court, which is not defined in the Bill, although a court is defined. Can he confirm that in Scotland the high court will be the Court of Sessions?

Charles Clarke (Labour, Norwich South)

I can confirm that.

David Winnick (Labour, Walsall North)

Since I happen to believe that there is an acute terrorist threat to this country, I am going to support control orders, as I did last week. I do not believe that the Government have some hidden agenda to undermine civil liberties. However, as my right hon. Friend has, rightly, gone as far as he has on house arrest, why does he not go further, as the hon. Member for Beaconsfield (Mr. Grieve) suggested, to get court intervention on control orders, not simply my right hon. Friend's intervention in the first instance? Surely he can go further than he already has.

Charles Clarke (Labour, Norwich South)

I will come to that argument in a second, if I may.

Jeremy Corbyn (Labour, Islington North)

In response to my right hon. Friend the Member for Islington, South and Finsbury (Chris Smith), the Home Secretary said that the judge and the court would have access to all the information under which the orders had been sought. What information would be made available to the defendant in that process?

Charles Clarke (Labour, Norwich South)

At the point of the full hearing, there would be what is known as an inter partes hearing, where all sides have access to the information via the special advocacy procedure that has been established to deal with the security issues.

Dominic Grieve (Conservative, Beaconsfield)

Further to that point, I read paragraph 4(3)(c) of the schedule as indicating that the Home Secretary can pick and choose what evidence he puts before the judge, not before the defendant, when the matter comes to an inter partes hearing. If so, that is not compatible with the answer that he gave a short time ago in response to the intervention on whether the judge would be able to consider all the evidence in the case. That point requires clarification.

Charles Clarke (Labour, Norwich South)

My hon. Friend the Minister for Crime Reduction, Policing and Community Safety will do that later on. However, I can say in summary that it is not our intention to allow the Secretary of State not to disclose exculpatory material to the controlled person or the special advocate. Our intention in the paragraph to which the hon. Gentleman refers is to replicate the substance of the SIAC procedure, so that the court directs the Secretary of State to serve closed material that is sensitive and where there could be vulnerability to the suspect. After the Secretary of State's objection has been heard in closed session, the Secretary of State is able to withdraw that evidence, and if he does so he is not required to disclose it. The Security Service already has the practice of disclosing any exculpatory material, and that will continue.

To be clear, we would be happy to reconsider the wording of paragraph 4(3)(c) with a view to improving it.

Mark Oaten (Liberal Democrat, Winchester)

rose—

Charles Clarke (Labour, Norwich South)

I will give way to the hon. Gentleman, then I shall try to explain the procedure before having too much discussion on it beforehand.

Mark Oaten (Liberal Democrat, Winchester)

In case people are confused, will the Home Secretary confirm that while the special advocate may be able to see the evidence, they are not allowed to show it to the defendant?

Charles Clarke (Labour, Norwich South)

If it is in the closed session, the hon. Gentleman is right, because of the national security issue involved. For some, that means that no such procedure can be acceptable and that, effectively therefore, according to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), no control regime can exist.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Absolutely.

Charles Clarke (Labour, Norwich South)

The right hon. and learned Gentleman says, "Absolutely", thus confirming that, whatever Opposition Front Benchers say, senior and respected Conservative Back Benchers believe that there should be no control order regime at all.

I shall set out precisely what the new procedure—

Lynne Jones (Labour, Birmingham, Selly Oak)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

Not at this stage—I will do so later.

Edward Garnier (Conservative, Harborough)

On a point of order, Sir Michael. I apologise to the Committee and to the Home Secretary for interrupting him while he is trying to explain something. However, the longer his speech goes on, the more unsatisfactory the process is revealed to be. We are trying to discuss a huge infringement of the liberty of the individual, on the back of a letter and without any of the amendments or rules of procedure that the Home Secretary seeks to explain. I congratulate him on wanting to explain, but what are the procedures of the House for? That is not just a boring lawyer's point. How can those procedures be properly protected when the Home Secretary can destroy the whole purpose of the Committee stage by coming to the Chamber with a letter to the shadow Home Secretary and making a speech that is wholly unconnected with the fabric of the Bill as presented by the Government? We are being expected to swallow that hook, line and sinker. Surely some control should be placed on a Secretary of State and Government who ride roughshod over the House's proper discussion procedures.

Edward Garnier (Conservative, Harborough)

rose—

Charles Clarke (Labour, Norwich South)

rose—

Lynne Jones (Labour, Birmingham, Selly Oak)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

I will give way and then say what I was going to say.

Lynne Jones (Labour, Birmingham, Selly Oak)

Why is my right hon. Friend not prepared to put the making of non-derogating control orders in the hands of the court or to allow the court to consider the facts of such cases rather than just the procedure?

Charles Clarke (Labour, Norwich South)

As I think I have said about four times already, I will come to that point when I am allowed to make some progress.

The new procedure for derogating control orders will be—I will propose this for consideration in the other place—that the Secretary of State would make an ex parte application to the High Court for an order and that the application would be heard by a judge as quickly as possible.

Richard Shepherd (Conservative, Aldridge-Brownhills)

On a point of order, Sir Michael. I raise this with the greatest reluctance. The Home Secretary is taking us into territories that none of us can read either in the Bill or in any amendment. How can he be in order when he is going off on that line of attack?

Charles Clarke (Labour, Norwich South)

I am grateful, Sir Michael. I am of course entirely happy not to try to describe the procedure that I will set out, but to be quite candid, it would be better if I did try to do so.

Andrew MacKinlay (Labour, Thurrock)

Well if you want my vote, you had better explain; otherwise—dream on.

Charles Clarke (Labour, Norwich South)

I thank my hon. Friend for that.

The new procedure for derogating control orders that I shall suggest is as follows. First, the Secretary of State would make an ex parte application to the High Court for an order. Secondly, the application would be heard by the judge as quickly as possible—say, within 24 to 48 hours. The judge would look at all the material on which the application was based and decide whether there was a prima facie case. If so, he or she would make the order. The order would be subject to automatic referral to the full court for an inter partes hearing, with a special advocate representing the interests of the subject of the order in closed sessions, as currently provided in the Bill. The order could be renewed on application by the Secretary of State following a further inter partes hearing. That is the procedure that would give effect to the assurance that I gave earlier on a process that would meet the need seen by the Committee for a judicial decision to be the first point of call on these matters.

In response to a point made on Second Reading by the hon. Member for Winchester (Mr. Oaten), I then set out the procedure necessary to deal with an emergency in which we need to prevent the subject of an application from disappearing in the period between the Secretary of State making the application and the order being served.

Robert Marshall-Andrews (Labour, Medway)

A prima facie case of what?

Charles Clarke (Labour, Norwich South)

A prima facie case that an order ought to be served on an individual on the basis of the terrorist threat that that individual posed. The point is that it would be for the judge to make that assessment on the basis of an application from the Home Secretary.

Malcolm Bruce (Liberal Democrat, Gordon)

Given the difficulties that the Home Secretary has had with special advocates under the present regime, and given that the Prime Minister says that these provisions could affect several hundred people, is the Home Secretary satisfied that there will be enough qualified lawyers willing to take on the role of special advocate in the circumstances that he is outlining?

Charles Clarke (Labour, Norwich South)

First, I am certain that that will be the case. Secondly, the Prime Minister did not make the assertion that the hon. Gentleman suggests.

Patrick Cormack (Conservative, South Staffordshire)

Will the Home Secretary not at least concede that this is an extremely unsatisfactory way in which to proceed with the Bill? Why can he not, even at this late stage, table amendments that this House, the elected House of Commons, could discuss on Wednesday? He could have had his Bill debated with good will and in good order, within the Government's own allotted time, if only he had given us a little more time and treated the House with a little more courtesy. I am sure that it is not his intention to be contemptuous of the House, but that is the effect of the way in which he is proceeding. Will he not concede that?

Charles Clarke (Labour, Norwich South)

As I have said on a number of occasions, it would have been more discourteous to the House not to have shared my intentions and thoughts with it at the earliest possible moment. To have had a discussion without sharing them would have resulted in a worse state of affairs.

The change that I have just outlined is the first, and most important, of the three changes that I intend to suggest. The second deals with the question—

Kenneth Clarke (Conservative, Rushcliffe)

I thank the Home Secretary for giving way. My question is relevant to the procedure. He has described the process in which a Home Secretary or his representatives would go before a judge and seek an order in relation to a prima facie case. Will he make it clear whether, in seeking such an order, it would be sufficient for the judge to be satisfied that there were reasonable grounds for suspicion that the person posed a threat to public safety, or would he have to be satisfied that there was an imminent threat to security that justified depriving that person of his liberty? Will a judge considering an application for such an order have as full a hearing as he is ever going to be allowed to have? Will he be able to see all the material on which the Home Secretary and the Security Service are basing their application, and will he have the opportunity to challenge it or to listen to an advocate challenging it? Will the Home Secretary give the Committee a fuller explanation of what is to happen at that preliminary stage of an application for a prima facie order? He might simply be introducing a rather routine procedure before going back to what he proposed in the first place.

Charles Clarke (Labour, Norwich South)

The first thing to emphasise is that my proposal will be that there be a full hearing at the stage after the prima facie stage. At that full hearing, which will be intra partes, it will be both possible and the reality that the judge will be able to look at all the evidence, either in closed session or open session, and that there will be a position in which the advocates of both sides will be able to make their points in court in that way.

Opposition Members have raised questions about the detained person. That point has been well covered before in this discussion. It remains my strong view that the special advocate process in these arrangements in front of the High Court is an appropriate procedure to follow in those circumstances.

Kenneth Clarke (Conservative, Rushcliffe)

Am I to understand that at the prima facie stage there will be no hearing? At that stage, will the judge have the material that is being relied on, and will the judge have to be satisfied that a threat exists, or merely satisfied that there are grounds for suspicion?

Charles Clarke (Labour, Norwich South)

First, all the papers will be available at the prima facie stage. Secondly, the hearing will be ex parte rather than intra partes: that is, not all sides will be able to be there. Thirdly, the judge will have to be satisfied on the balance of probabilities that the individual concerned is a threat to the country.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The right hon. Gentleman talks of inter partes hearings, but I think he also concedes that the detained person will not be told the names of his accusers, will not be shown the nature of the evidence, will not see the documents, and will not have an opportunity to question any of his accusers. What is more, the judge may not have an opportunity to put any relevant questions to the detained person. Have I understood the position correctly?

Charles Clarke (Labour, Norwich South)

The right hon. and learned Gentleman has understood correctly that the detained person will be represented by a special advocate in those circumstances, and it will be the special advocate who can interrogate on the issues before the court. I know that for the right hon. and learned Gentleman this is a disqualifying position. If the defendant himself cannot take instructions, from his point of view no control order should operate. He believes there should be no such legal process in such circumstances: his position is clear. Given the balance between security and liberty, he and I differ on how we should proceed.

There is an argument to be had, and the right hon. and learned Gentleman will vote accordingly. I believe, and I think the country generally believes, that when there is a reasonable belief that an individual will commit a terrorist act and that we can prevent that from happening, we should do so. That is not the right hon. and learned Gentleman's position, but it is mine.

Menzies Campbell (Liberal Democrat, North East Fife)

The Home Secretary can only have agreed to make what some of us regard as concessions in relation to derogating orders because he accepts the principle urged on him by Members on all sides that in matters of deprivation of liberty, a judge should be responsible for making the decision that has that effect. If he accepts that principle in relation to derogating orders, why should he not accept it in relation to non-derogating orders?

Charles Clarke (Labour, Norwich South)

I am coming to that. I find myself in some difficulty: I am trying to give way as much as possible while also making progress. I think I will act on that stimulus, and make my next three points about changes in the position before responding in detail to the question asked by the right hon. and learned Gentleman.

I set out in the letter, and now set out for the Committee's benefit, three respects in which we intend to change the procedures for non-derogating control orders in what I consider to be a significant and substantial way. First, we propose that when an appeal is made against a non-derogating order by an individual who wishes to do so, a limit should be set on the time before which it can go to a judge. The criticism has been made that if there were no time limit, no judicial review could take place effectively and definitely. I am saying that we should make the first concession in this context, and provide for a time limit. That is important from the point of view of those who fear that people under non-derogating orders may never have their case heard by a judge—and, incidentally, it refutes the view of those who say that there is no proper legal process in this regard.

John Denham (Labour, Southampton, Itchen)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

I will in a second—to my right hon. Friend in particular.

The second issue relates to prosecutions. Let me repeat that, as a matter of practice as well as of policy, prosecution should remain our first option, and the prospect of bringing such a prosecution should remain under review even when a control order has been imposed. I am exploring with the police and the Crown Prosecution Service how we might best include that in the Bill. I intend to place an obligation on the police—in consultation with the prosecution authorities when that is appropriate—to keep under review the prospect of a prosecution in respect of any individual who is made subject to a control order.

My officials are working on those points now, so that the necessary amendments can be made to the Bill at Committee stage in the Lords. In making this proposal, I am particularly conscious of the argument advanced by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and by my hon. and learned Friend the Member for Redcar (Vera Baird), who have argued strongly for the prosecution case to be there throughout

John Denham (Labour, Southampton, Itchen)

I hope that we will be able to explore the latter point if we ever get to that part of the Bill, but I wonder whether my right hon. Friend can pick up one small but important point. He talked about a time limit for referral to judicial review on the non-derogating orders. Whatever the other arguments, is he able to say what he has in mind for that time limit? Would it be, say, 14 days, for example?

Charles Clarke (Labour, Norwich South)

Fourteen days may well be a reasonable time scale. One is thinking about a 14 to 28-day period. It is of that order. It requires a little more discussion with the CPS authorities and so on, but it is that kind of time scale that we are describing.

Simon Thomas (Plaid Cymru, Ceredigion)

On a point of order, Sir Michael. We have just heard the Home Secretary say, I thought quite categorically, that there would be a time scale for the referrals for judicial review. In fact, following an intervention, he suggested that 14 days would be reasonable. However, in the letter that has been produced for the Committee this afternoon, he says that he will be

"looking closely at whether it would be possible to provide in the Rules which will govern the courts' proceedings in these cases for any such appeals to be heard within a set timescale. My conclusions will be reported to the Lords . . . and, if necessary, amendments laid at that stage."

That underlines how ridiculous it is trying to deal with this process. Is it in order that we have one thing written and another thing said and no amendments to debate?

Charles Clarke (Labour, Norwich South)

On the point that has been raised, the fact is that the best way of putting a time scale into this can be either through the rules of the court or through legislation. It is precisely that which we are considering. We will need to consider it in a little detail before finally tabling an amendment.

Dominic Grieve (Conservative, Beaconsfield)

May I take the Home Secretary back to the intervention of the right hon. Member for Southampton, Itchen (Mr. Denham)? One of the problems of prosecution is that, the moment the Government embark on the course of action of issuing a control order, it is likely to make the possibility of a fair trial of any person who has been subject to those procedures extremely difficult. What will the Government do about that?

Charles Clarke (Labour, Norwich South)

That is a real question. My right hon. Friend the Member for Southampton, Itchen has raised it on a number of occasions, which is why it is important that the avenues for prosecution are explored to their utmost before getting to the point where we have the control order as suggested, but at the end of the day—I come back to the point that I made earlier—we need to be able to deal with this small group of people in the way I have suggested.

Lynne Jones (Labour, Birmingham, Selly Oak)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

Not at this stage.

I have heard the arguments, which relate to the prosecution point, about whether, once legislation has been brought forward to give effect to any new offences—and I indicated those both in my statement last Tuesday and on Second Reading—there is still a need for control orders. Therefore, I will be asking the independent reviewer of the control orders legislation specifically to comment on the impact of any new legislation each year in his report on the operation of the new powers.

Andrew MacKinlay (Labour, Thurrock)

Will my right hon. Friend give way?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

Not at this moment.

I believe that, in putting forward these four changes, I am seeking very substantially to meet the views of the Committee.

Andrew MacKinlay (Labour, Thurrock)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

I will give way in a second. I need to clarify one point for the right hon. and learned Member for Rushcliffe (Mr. Clarke) in case I in any way misled him and the Committee. To be absolutely clear, at the first stage of the hearing the test is "prima facie", not

"satisfied on balance of probabilities",

but it is fuller than he suggested because it includes whether or not there are reasonable grounds for suspecting that the person is a terrorist and whether there are reasonable grounds for believing that the imposition of obligations is necessary. Of course, the full hearing will be heard very soon afterwards. I did not want to mislead him, so I wanted to clarify that point.

Kenneth Clarke (Conservative, Rushcliffe)

I am very grateful to the Home Secretary for that clarification, but I am also grateful for the concessions that he is plainly trying to make to get as wide a body of support as possible. Indeed, his final point goes to the root of his concession. He has been asked by Members in all parts of the Committee whether he will hand over the power that he is seeking as Home Secretary to deprive someone of their liberty to a judge who, upon application from him, can then deprive someone of their liberty. According to the Home Secretary, all that the judge will have to be satisfied of at this first stage is that there is a case to answer. That is not in fact a full transfer of the decision. What troubles many of us is that a British subject or a foreigner—we cannot discriminate—should not be deprived of his liberty by the order of the Home Secretary, unless the latter can satisfy a judge through what is an admittedly closed judicial process that there is at least, on the balance of probability, a need now to deprive that individual of his liberty. With great respect to the Home Secretary, all that he is doing is putting in a minor check before the process proceeds to an inter-parte hearing, which, he says, will provide the substantial protection at a later stage.

Charles Clarke (Labour, Norwich South)

I do not accept that this is a minor change. First, the judge is able to see all the material. Secondly, a full hearing will rapidly occur in the circumstances described. The change that I am proposing is therefore very much more than a minor one.

Andrew MacKinlay (Labour, Thurrock)

Will my right hon. Friend give way?

Charles Clarke (Labour, Norwich South)

In a second.

I have set out four changes that I believe go a significant way towards dealing with the concerns expressed not only about derogating, but non-derogating control orders. I have been asked by a number of Members in all parts of the Committee to explain why I differentiate between the two types of order. I intend to do just that, but before I do so I will give way to my hon. Friend the Member for Thurrock (Andrew Mackinlay).

Andrew MacKinlay (Labour, Thurrock)

That is the issue about which I wanted to ask my right hon. Friend. We do not understand why there should be a different threshold of test before a judge in respect of non-derogating orders, which can be just as offensive not just to the individuals suffering them, but to Members of Parliament who are concerned about jealously preserving rights and liberties. Why should there be a different procedure? Why can we not have full and thorough oversight by a judge in all circumstances, and in respect of all the evidence relating to non-derogating orders?

Charles Clarke (Labour, Norwich South)

That is precisely the issue that I am about to address.

Edward Garnier (Conservative, Harborough)

I do not want to press this point time and again, but will the Home Secretary ensure that the House has ample opportunity—by that I mean not just one or two hours—after the other place has considered the amendments to reconsider them in the light of the Lords discussion? We are delighted to hear from the Home Secretary, but this discussion has got precisely nothing to do with the tabled amendments. We must have an opportunity to look at them and to discuss his ideas once the amendments have been considered by the Lords.

Charles Clarke (Labour, Norwich South)

The hon. and learned Gentleman has made that point before and I have noted it.

Bill Cash (Conservative, Stone)

Does the Home Secretary accept that, as I mentioned on Second Reading, one of the biggest problems is the question of whether a person detained in such circumstances would have the right to habeas corpus? It is crystal clear that the decision taken by the House of Lords during the second world war in the case of Liversidge v. Anderson has since been completely overridden by subsequent decisions taken by the Lords and others. The Home Secretary knows about whom I am talking. Will he state unequivocally now that there will be no interference with the right of habeas corpus, bearing in mind that habeas corpus was still available during the second world war under emergency powers?

Charles Clarke (Labour, Norwich South)

I am advised that I can give the assurance that the hon. Gentleman is looking for: the proposals that I have established will not interfere with habeas corpus.

I come now to the question—which a number of Members have genuinely raised—of why I have sought to differentiate between cases involving a deprivation of liberty and those that do not. I begin by acknowledging that all control orders will impose greater or lesser restrictions on individuals' activities and movements. They could interfere with convention rights such as the right to respect for private and family life—article 8—freedom of expression—article 10—and freedom of assembly and association—article 11. There is no doubt about that whatsoever. It is also clear that interference with those rights is permissible under the convention, provided that it is justified by a legitimate aim and is proportionate. It does not involve a derogation from the ECHR and it is not the same as a "deprivation of liberty". Restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of "deprivation of liberty"—not as set out by me, but as set out in the European convention to which this country has rightly signed up.

What is necessary for deprivation of liberty to take place? It is about the extent to which a person's physical liberty is curtailed; it must be of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted. I put it to all Members with all the powers at my command that this distinction between a restriction of liberty and a deprivation of liberty is a real and important one—it is not simply trivial in regard to these issues.

Robert Marshall-Andrews (Labour, Medway)

We hear what the Home Secretary says, which is, indeed, enshrined in an unsigned and unattributed document that can be found in the Vote Office—"A Note on Non-Derogating Control Orders". It describes deprivation of liberty as "a technical term" from the outset and at the end draws a distinction between liberty being deprived and liberty being restricted. May I ask the Home Secretary where on earth that distinction can be found in the European convention on human rights, or, indeed, in any other legal authority known in this country?

Charles Clarke (Labour, Norwich South)

As I understand it, the distinction is drawn very clearly in the European convention on human rights and it has been carried through in the judgments of the European Court. That is the basis on which the argument is made. It is a critical point.

Charles Clarke (Labour, Norwich South)

I will give way later.

If we are saying that any restriction on liberty, of whatever kind, is equivalent to any other restriction of liberty, of whatever kind—the argument put by my hon. Friend the Member for Thurrock was that there is, indeed, equality of concern between any restriction of liberty that might arise—I am afraid that I simply cannot accept that. There is a distinction between a particular restriction and what amounts to a deprivation of liberty under the European convention. My point, which I make powerfully, is that it is legitimate under that convention to restrict liberty, provided it is justified by a legitimate aim and provided it is proportionate.

Rob Marris (Labour, Wolverhampton South West)

The document to which my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) referred, continues on page 2:

"It is the case that a combination of measures—not specifically provided for in the designated derogation order—could amount to a deprivation of liberty within the meaning of Article 5 ECHR. But if a control order contained such measures it would be unlawful and would be quashed by the court on appeal."

I can understand the distinction, but a package of measures could be susceptible to attack in court if we had not derogated. However, what would be the position down the road if we had derogated from the ECHR and in a non-derogated case a package of measures were, taken together, extremely restrictive? Could the individual still apply to the court, or would the court say that the UK had now derogated?

Charles Clarke (Labour, Norwich South)

It is a good question and the position that would arise is clear. It would be open to anyone who had an interest in that particular case to argue that the procedures under derogation applied to the package of non-derogated rights in those circumstances and it would move over. That is to say, the police, the security services or the Home Secretary would not be acting legally if they put forward a package of measures that added up to deprivation under the procedures set out for non-derogated rights. I believe that that makes it clear.

David Winnick (Labour, Walsall North)

The job of the Committee is to try to balance concern for civil liberties against the danger of terrorism. If we do not achieve a proper balance, we are not doing our job as Members of Parliament. I accept, of course, my right hon. Friend's integrity, but if there is a distinction between depriving someone of liberty and restricting it, and if we are going to restrict a person's liberty, why not allow the usual court procedures to apply to those circumstances? That would surely allow the Home Secretary to gain far more support for what he is trying to achieve. I simply cannot see any reason—I doubt whether the other place will either—to grant such a distinction.

Charles Clarke (Labour, Norwich South)

Perhaps I have not been clear enough in setting out my case. I appreciate what my hon. Friend said about my integrity in these matters. There is a range of circumstances surrounding restrictions of liberty, and the restrictions are exercised by various authorities. To provide an example, there are currently warrants authorised by the Home Secretary that allow people's telephone conversations to be listened to under a certain procedure that is clearly set out and approved by the House. Does that amount to a restriction of the liberty of the person whose phone is being listened to? I would say that it does. If a police officer locks someone up in a cell for a while for causing an affray, that is also clearly a restriction of liberty.

Charles Clarke (Labour, Norwich South)

In all cases under law, a proportionate series of levels of judicial involvement are justified according to the particular circumstances that pertain.

Dominic Grieve (Conservative, Beaconsfield)

Will the Secretary of State give way?

Charles Clarke (Labour, Norwich South)

No, I will not give way until I have finished what I am saying.

It was argued on Second Reading by my hon. Friends and others that it is unacceptable to deprive someone of liberty, in the context of house arrest or detention or other serious cases, without judicial authority. I have thought about it and answered the point. I have responded positively to that concern, although I cannot escape the fact that a wide range of restrictions of liberty apply.

Dominic Grieve (Conservative, Beaconsfield)

I have to say that I disagree entirely with the distinction that the Home Secretary has attempted to draw. Although listening into someone's telephone calls may interfere with their right to privacy, it does not interfere with their liberty. Liberty is about a person's ability to go about their lawful business without interference. One need reflect only on the powers that the Home Secretary is arrogating to himself in clause 1 to see that there are numerous powers that interfere with a person's ability to go about their lawful business—and some of them do so in a potentially very unpleasant fashion, which I would certainly equate with a clear deprivation or infringement of their liberty. I cannot understand the argument that these should be subject to a different category of test before the courts. The Home Secretary has so far produced no rational justification for doing so.

Charles Clarke (Labour, Norwich South)

So let me attempt to do just that. Although my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) wants to punish me for it, I am quoting from the note to which he referred earlier. I thought that it would be helpful to the Committee to produce a note to clarify the position. The fact is that control orders are preventative orders. They are designed to prevent future atrocities from happening—

Robert Marshall-Andrews (Labour, Medway)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

I will not give way until I have finished my sentence.

Robert Marshall-Andrews (Labour, Medway)

Before the point is left?

Charles Clarke (Labour, Norwich South)

Yes, I will give way before I leave the point. My hon. and learned Friend is always impatient. Some say that it is one of his more endearing characteristics, but I am not sure that I agree.

As I was saying, the control orders are designed to prevent future atrocities from happening, not to punish a person for past events. Those preventive orders require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures are necessary and appropriate to meet those risks. It must be carried out on the basis of a wide range of complex intelligence and other material, and it involves making inferences and evaluations about matters affecting national security. I maintain that the Secretary of State is in a better position to carry out those judgments than the courts.

Robert Marshall-Andrews (Labour, Medway)

I am most grateful to the Home Secretary for giving way, and in particular for the charm and affection with which he does so, which makes it slightly unfortunate that I have to ask this question. He has told the Committee that the European convention on human rights provides a distinction between deprivation and restriction of liberty and that it specifically allows for restriction of liberty, so will he please tell us in which particular article that appears?

Charles Clarke (Labour, Norwich South)

I do not have the article in front of me. I am advised that it is article 5, but I would be wary of putting that on the record.

The example that I gave earlier was of a number of articles in the European convention on human rights that allow a restriction of liberty in a number of different areas.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

May I ask the question in a more personal way? The Home Secretary used to be president of his university students union. Does he accept that his successor, as president of the Cambridge students union, should be deprived of his or her right to go to Scotland, to meet their family, to talk to people, or to read something without being able to argue their case in open court? That is the issue. I cannot believe that he would have accepted that when he was president of the students union and I cannot believe that, in his heart of hearts, he believes that it is acceptable now.

Charles Clarke (Labour, Norwich South)

I am trying to think who the hon. Gentleman is referring to. My successor was a man, not a woman.

In my heart of hearts, I believe strongly that the nation's security is important and that it is important to stand up for the nation's security. That is what I intend to do.

Vera Baird (Labour, Redcar)

Could I return to the sentence that my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) quoted? A combination of measures could amount to deprivation of liberty under article 5. That document refers to control orders, not derogating orders. My right hon. Friend accepts, therefore, that it is possible to take liberty away through a non-derogatory control order. If liberty is taken away under clause 2, he must go to a judge first. He can take liberty away under clause 1, but without going to a judge, except that there would be a right of appeal. In both cases, liberty is taken away, so how can a different procedure be justified?

Charles Clarke (Labour, Norwich South)

I think I can help my hon. and learned Friend. First, a Home Secretary who, on advice, including legal advice, sought improperly—that is the implication of the question—to deprive someone of liberty, whether by an individual derogating control order, or by a combination of non-derogating control orders, would be acting wrongly. Moreover, having acted wrongly, he would be overruled by a judge on appeal and the case would then have to be referred immediately, under the derogating procedure, to the higher level judicial authority set out in the proposal. That is a clear guarantee to meet the sort of concern that my hon. and learned Friend is raising.

Vera Baird (Labour, Redcar)

The difficulty is that the liberty of the subject will already have been taken away by Executive order and the victim could only appeal. The Home Secretary accepts that taking away someone's liberty under a clause 2 order should be done only by a judge. What is the difference?

Charles Clarke (Labour, Norwich South)

There is a major difference, which I tried to set out earlier. Let me be clear about whether non-derogating control orders deprive someone of liberty. Derogating obligations must be set out in designated derogation orders. There must be an order to allow the whole process to take place and it must be approved by the House and the other place. It will be clear from the designated derogation order what may be permitted in the derogating control order. The derogating control order before the House and the other place must set out what might be permitted in the derogating control order. If those measures were imposed, the derogated control order procedure would have to be followed and is set out in my proposals. If the other measures were not in the designated control order and amounted to deprivation of liberty, they would be unlawful and would be quashed.

Vera Baird (Labour, Redcar)

I accept that entirely, but a judge must be asked to consider an application to take someone's liberty away under clause 2 and, if it is unlawful, he will not grant it. Why does not the same apply under clause 1? It would be unlawful if my right hon. Friend made an order under clause 1 that deprived someone of liberty, but the subject would be locked up and could appeal. If the Home Secretary had to apply to a judge first, the judge would not grant the order if it was unlawful.

Charles Clarke (Labour, Norwich South)

The procedures that I set out meet the guarantee that my hon. and learned Friend is asking for. If she is asking why do I not propose an identical procedure for derogated control orders and non-derogated control orders, the answer is that the deprivation of liberty issue is of a key and different character from the restrictions of liberty that we are talking about elsewhere.

Nick Palmer (Labour, Broxtowe)

I am grateful to my right hon. Friend for giving way for the umpteenth time. He has been generous with his time.

The lawyers' festival that we are having today does not fully reflect the balance of views elsewhere. People are looking for a guarantee against arbitrary detention and reassurance that people who are reasonably suspected of being a threat are detained until their cases can be fairly heard within a reasonable time. I broadly sympathise with my right hon. Friend, but I am not sure that it would interfere with what he is trying to achieve if he also involved a judge in the weaker cases that we are now discussing.

Charles Clarke (Labour, Norwich South)

I have voluntarily imprisoned myself in a lawyers' festival and sought to eschew appeals to a wider public generally in this argument, although there is plenty of room to do so. I agree with my hon. Friend that it is reasonable for the elected House of Parliament to bear in mind what our constituents think about these matters. They want a Government that will protect national security and we are determined to do so.

John Denham (Labour, Southampton, Itchen)

I understand that my right hon. Friend's current difficulty stems in part from the concession that he made earlier today. As I said last week, none of our institutions, including the judiciary, is properly designed for the purposes that we face. We must evolve further in an investigatory direction in the years to come.

My right hon. Friend has just read from the note from the Vote Office. He said of non-derogating control orders that

"The assessment must be carried out on the basis of a wide range of complex intelligence material and involves inferences and evaluations being made in relation to matters affecting national security."

That is true, but it is equally true of derogating control orders. That is the process.

With all due respect to my right hon. Friend, having made the decision today to put that process in the hands of the judiciary for derogating control orders, the argument for doing the same for non-derogating control orders becomes irresistible. I entirely accept his argument that they are measures of a different order and that people are nit-picking around that issue, but it does not justify a separate process.

Charles Clarke (Labour, Norwich South)

I respect my right hon. Friend, but there is an important qualitative difference between deprivation of liberty as defined by the European convention on human rights—[Hon. Members: "We cannot hear."] I am sorry if hon. Members could not hear me. I believe that there is a qualitative difference between deprivation of liberty within the context of the European convention on human rights and something that is not a deprivation of liberty. I understand the concerns that hon. Members are raising about how far one goes down that course, whether a combination of restrictions can add up to a deprivation and how to ensure that that is properly dealt with by the procedures, but there is a qualitative difference, which is established in case law—the cases are given in the document—and in many other ways.

John Denham (Labour, Southampton, Itchen)

I entirely accept the first half of my right hon. Friend's argument that there is a qualitative difference, but where does that provide the justification for a difference of process? What is going on is this terribly difficult issue of assessing what the intelligence services are telling us, the national risk and the role to be played by an individual. We must either decide that we are to involve the judiciary at the outset, or that we are not. Having decided that we are, we must do that across the piece.

Charles Clarke (Labour, Norwich South)

I am grateful to my right hon. Friend for conceding the qualitative difference involved in the deprivation of liberty. The point—[Interruption.]

Patrick Cormack (Conservative, South Staffordshire)

On a point of order, Sir Michael—

Charles Clarke (Labour, Norwich South)

I apologise to members of the Committee who did not find my back as entrancing a prospect as my hon. Friends do.

I was saying that I was grateful to my right hon. Friend for accepting a key and important part of the argument—that there is a distinction between circumstances in which an individual is to be deprived of his liberty and those in which he is not deprived of his liberty. My right hon. Friend then argued—if I have correctly understood him—that, despite that distinction, the processes in both cases should be the same. I do not accept that point because the key argument that I heard for the involvement of a judge at the initial stage related to the deprivation of liberty. The argument was that, whether it involved house arrest or detention of some other kind, deprivation of liberty was such a serious matter that it could not be left in the hands of a Minister, but had to be put before a judge. I have, reluctantly, accepted that argument, which was made by my right hon. Friend and others, but I do not think that that argument applies to cases in which the subject will not be deprived of his liberty.

Menzies Campbell (Liberal Democrat, North East Fife)

I am most grateful to the Home Secretary for being so generous in giving way. A moment ago, he reminded us that the purpose of the legislation was to try to ensure, so far as we can, the protection of the people of the United Kingdom. How will they be better protected if he pronounces the order in cases of non-derogating orders, instead of a judge doing so?

Charles Clarke (Labour, Norwich South)

In either case, whether it is done by the Home Secretary or a judge, the people of the United Kingdom will be better protected if we have a regime of control orders that deals with the people in question. That is common ground between us. We then come to the issue of prevention, which is at the core of this discussion, and the range of considerations that have to be taken into account. The question that then arises is whether a Minister—the Home Secretary, in this case—is in a better position to make that assessment than a judge. I argue that the Minister would be in a better position to make the assessment—

Andrew MacKinlay (Labour, Thurrock)

Why?

Charles Clarke (Labour, Norwich South)

That is an important question. It is because, by definition, someone from the Executive would have access to all the information in a way that a judge would not. However, I also accept the argument that, in the case of deprivation of liberty, the penalty is so great that judicial involvement is required. That is the basis of the argument that I make.

Menzies Campbell (Liberal Democrat, North East Fife)

In the latter part of his answer, the Home Secretary seemed to say that it is a question of degree but, for most right hon. and hon. Members, it appears to be a question of principle.

Charles Clarke (Labour, Norwich South)

Let me take the context that is given in the note that I provided earlier. In the case of Rehman, Lord Hope set out the position clearly. He concluded:

"It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee."

That argument was made in the context of a deportation judgment, but those same considerations apply in the cases that we are discussing. That is a substantial difference, as I hope the Committee will acknowledge.

Dominic Grieve (Conservative, Beaconsfield)

I wonder whether the Home Secretary has fully understood the position. If he has not, it may explain some of his difficulty. It has always been accepted in English law that the Home Secretary has a residual Executive right to deport aliens. That is one of the reasons those deportation rights have remained, even if qualified by the Human Rights Act 1998. However, we are not now talking about deportation or dealing with aliens: we are talking about the rights of British subjects to live in peace and be subject to pains and penalties only by due process of law. We are moving into uncharted waters because the Home Secretary says that he wishes to introduce a completely new system of imposing pains and penalties on individuals without due process of law. The argument that he has just put forward about deportation is irrelevant, because we must consider how best—in the circumstances that the Home Secretary has put forward—we can protect the liberty of the individual. The Committee's overwhelming view is that that can be best done by having a judicial process.

Charles Clarke (Labour, Norwich South)

I am sorry if the hon. Gentleman feels that I have not understood the issues. I must say that I have spent decades of my life being patronised by lawyers, and I do not appreciate it.

I understand the issues clearly and well. I draw to the hon. Gentleman's attention the fact that both Badat and Reid, whom I mentioned earlier, are British citizens, and that is why the issue before us is not simply about immigration law. It is the issue of what we do about British citizens as well. That was the point made by the Law Lords. The regime that we are talking about will apply to British citizens, and it is a serious matter—I have not sought to hide that at any point in the debate—of the balance of judgments between security and liberty. However, the fact is that real and present dangers exist that we must address. We can legitimately have an argument about the right procedure, but the Committee should not try to suggest that there is no issue to be addressed. There is an issue that must be addressed.

Boris Johnson (Conservative, Henley)

I have no hesitation in admitting that I do not understand one particular point. In the Home Secretary's mind, what measures amount to a deprivation of liberty and what measures amount to a restriction of liberty? What combination of restrictions of liberty could amount to a deprivation of liberty? Could he give examples of each of those three categories?

Charles Clarke (Labour, Norwich South)

I shall give the Committee examples. An example of a restriction of liberty might be being forbidden to have a mobile telephone or to contact another named individual, who is known to be a terrorist organiser of some kind. A deprivation of liberty would be a matter of what is colloquially called house arrest or of actual detention. The question of whether a combination of restrictions adds up to deprivation depends on the particular combination. I dealt with that point when replying to my hon. and learned Friend the Member for Redcar.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The distinction that the Home Secretary draws between non-derogating and derogating orders is very difficult in many instances. For example, a person's ability to work could be restricted by orders relating to the use of the internet. Only a judge can determine whether what the Home Secretary calls non-derogating matters are proportionate. Therefore, ultimately, the orders should come before a judge who can decide that question under the terms of the convention and our human rights legislation. That is why the right hon. Member for Southampton, Itchen (Mr. Denham) and the hon. and learned Member for Redcar (Vera Baird) were right to say that no distinction should be made between the processes for determining those matters.

Charles Clarke (Labour, Norwich South)

I have sought, as best I can, to say why I think that there should be a difference. Fundamentally, the difference is that deprivation of liberty is a qualitatively different matter from restrictions on liberty.

Frank Dobson (Labour, Holborn and St Pancras)

I accept my right hon. Friend's point about the qualitative difference, but we must proceed on the assumption that any deprivation of rights should not be subject to the arbitrary decision of the Home Secretary. My right hon. Friend has sensibly conceded the change in relation to locking people up. It is reasonable to assume that the people who need to be locked up are the most dangerous of the categories being dealt with, so we find it difficult to understand why he is not prepared to use the same procedure for those who are less dangerous.

Charles Clarke (Labour, Norwich South)

I am grateful to my right hon. Friend, as his intervention allows me to set out clearly the reasons for the argument that the Home Secretary is not unlimited in what he or she can do on these measures. First, the Bill itself makes it clear that a control order can impose only obligations that the Secretary of State considers "necessary" for preventing or restricting further involvement of the individual in terrorism related activities. That is a substantial restriction. Secondly, the Secretary of State is required by section 6 of the Human Rights Act 1998 to act compatibly with the convention rights of the individual and his family. It would be unlawful for the Secretary of State to impose restrictions that breached their convention rights. Moreover, the courts would quash an order that did so. Interferences with private and family life, association and communication will have to be expressly justified in each case by a specific aim permitted by the convention—in this case, we are talking about national security—and will also have to be proportionate to that end. The Secretary of State will have to weigh up very carefully in each case whether measures can be imposed that are consistent with convention rights. Finally, the Secretary of State's decision may be appealed to judicial review in the ways that I have indicated. More generally, we are proposing a complicated set of procedures whereby the Secretary of State has to report to the House on the way in which the control order regime is operating.

Richard Burden (Labour, Birmingham, Northfield)

I am sure that my right hon. Friend will weigh up those things incredibly carefully, but may I return him to what my hon. and learned Friend the Member for Redcar (Vera Baird) said? By the time somebody who was put under a combination of control orders that individually were restrictions but collectively could amount to deprivation of liberty could question that, it would be a bit late. By that stage, they might be unable to talk to people or to move around. All they could do would be to appeal on judicial review. There is no automaticity in that. In my right hon. Friend's first proposal, he suggested that a court should automatically check what the Home Secretary was doing, so why in this proposal is there not even automaticity?

Charles Clarke (Labour, Norwich South)

To be candid, although I understand the argument that the identical process should extend to non-derogated orders as to derogated orders I do not accept it for the reasons that have been set out. My hon. Friend's concern that there would be some process of slide, whereby a combination of non-derogated deprivations that added up to a derogation would slip past the courts and procedures, is simply wrong.

Charles Clarke (Labour, Norwich South)

I have considered the best course of action to follow when so many Members want to intervene, and I shall now come to the end of my remarks at this stage, to enable proper speeches and contributions to be made by Members who wish to do so.

I have set out clearly a course of action that responds to many, many of the issues that were raised. It deals with the fact that we have to make a balance between security and liberty. I believe that we are making it correctly in these procedures, and that we are seeking appropriately and correctly to find the balance.

Crispin Blunt (Conservative, Reigate)

On a point of order, Sir Michael. I apologise to the Home Secretary for interrupting him, but this is an important matter of procedure. Will it be possible to reply to the substantial case that the Home Secretary has made against the abolition of the distinction between non-derogating and derogating control orders, which was actually selected for consideration in the second group under clause 2? Will it be in order to make speeches, following the Home Secretary's points, under the group that we are currently discussing?

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

On a point of order—

Greg Knight (Conservative, East Yorkshire)

On a point of order, Sir Michael. The Home Secretary has been generous in giving way and he has spoken at length, but almost exclusively to his letter, which has no legal standing at all. He has not spoken at all to this group of amendments and new clauses. Is it your understanding, Sir Michael, that he will seek to catch your eye later in the debate? Almost uniquely in such a situation, the Home Secretary has not addressed at all the items before the Committee for consideration.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Further to that point of order, Sir Michael. I hope that the Home Secretary can help us. May we ask him through you if he will indicate which of the amendments in the group are covered by his proposals? Those could easily be voted through and we should be halfway done.

Kenneth Clarke (Conservative, Rushcliffe)

Further to that point of order, Sir Michael. I think that we are dealing with a matter of order and not just of the content of the debate. For about an hour and a half, the Home Secretary has carried out something of a tour de force, discussing and debating with every member of the Committee the concessions that he is trying to make, but he has illustrated the dangers of not following the normal procedures by just making a speech at large about what the Bill will be like when it has been amended and the type of issue that will then be thrown up. Having listened for an hour and a half, I am partially persuaded on some points, although not on others. Like other Members, I can think of a whole raft of amendments that I should now like to table to clarify some of those points—although I would be helped if I could first see what the Government were proposing.

This is a chaotic way of proceeding. For most of the last two hours nothing has been said that bears any relation to the selection of amendments before us. With respect, Sir Michael, I repeat the request that we have a brief adjournment or suspension of the sitting to consider how best to proceed. Perhaps the Leader of the House might be tempted from 50 yd away, where he is no doubt watching these proceedings on screen, to come to the Chamber and suggest how we might proceed. If we now revert to the first selection of amendments, Sir Michael, and you call Members to make speeches and remotely try to keep to the rules of order, you will have to rule most of the speakers out of order as soon as they start dilating on half the things that the Home Secretary has just told us. That underlines why we have normal procedures—

Dominic Grieve (Conservative, Beaconsfield)

I hope that it will be in order, Sir Michael, if I treat amendment No. 4, tabled by the hon. Member for Bridgend (Mr. Griffiths), as a request to the Committee to include not only judicial oversight, but judicial participation in the making of control orders as proposed by the Government. I am obviously also aware that many other amendments follow on from that tabled by the hon. Gentleman— including some tabled by myself and my hon. Friends, and indeed, in some cases, signed up to by Members on both sides of the House—that provide different ways and mechanisms for doing that. Perhaps I can just say in passing, to avoid having to return to it, that new clause 6, which comes at the tail end of the group—I am very grateful to Justice for proposing it in such short order—provides a mechanism that would allow a possible way forward by providing such a system. I shall say no more about that at this stage.

Edward Garnier (Conservative, Harborough)

Before my hon. Friend moves on and says no more about that matter, may I ask him about new clause 6? As he correctly says, it comes at the end of the great list of amendments about which we have not been speaking for the past hour and a half, and as it is a new clause, any vote taken on it will presumably come towards the end of our proceedings. Will he ask us to divide the Committee on new clause 6? It is clearly not only a matter that needs to be spoken about, but a public expression of opinion received.

Dominic Grieve (Conservative, Beaconsfield)

I have some slight doubt about whether we will reach new clause 6 to put it to the vote, but it certainly struck me that it is the closest that we have come to finding a sensible mechanism if we are to pursue a line of discussion about setting up a sensible framework for judges to make decisions about whether control orders should be imposed.

Bill Cash (Conservative, Stone)

I do not in any way wish to enter a discordant note, but I suggest that my hon. Friend look at new clause 6(8), which says:

"The court shall not impose any obligation under subsection (7) unless it is satisfied",

among other conditions,

"that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998".

He will appreciate the fact that I have affirmed over and over again—this did not come out just now—that the problem is that the Government are in a jam precisely because the human rights legislation has created a lot of artificial distinctions that they are now trying to deal with. Does he accept that it would not be desirable for us to adopt provisions that have to be consistent with the Human Rights Act, and that new clause 5, which I tabled, would provide a way to deal with that?

Dominic Grieve (Conservative, Beaconsfield)

Given that the Human Rights Act is on the statute book, I think that it were well that the Committee should seek to comply with it. There may well be wider issues about whether the Human Rights Act is desirable, or whether we should simply rely on the European convention on human rights, but for the present purposes of today's debate, I am comfortable with new clause 6 in the form in which it was proposed.

John Denham (Labour, Southampton, Itchen)

The hon. Gentleman draws the Committee's attention to new clause 6, in the name of the shadow Home Secretary. It is a proposal for control orders for a person who

"is or has been involved in terrorism-related activity".

It goes on to say—I presume that this is the position of the official Opposition—that

"the court must apply the criminal standard of proof."

Surely if there is sufficient evidence to show to a criminal standard of proof that people are involved in terrorism-related activities, the thing to do would be to prosecute them for terrorist activities. Are not the Opposition ruling out the very problem that we are trying to tackle: individuals against whom there is not sufficient information to apply the criminal standard of proof, but against whom we still need to take action?

Dominic Grieve (Conservative, Beaconsfield)

The right hon. Gentleman is slightly jumping the gun. We are considering the Bill in Committee. In theory, we are supposed to be moving amendments for consideration by the Committee, so that it may consider them. There are some perfectly valid arguments and points to be made about using a different standard of proof from the criminal standard of proof, although for the purposes of debate, I certainly share Justice's view that the idea of starting with the criminal standard is a good one. I am also mindful of the right hon. Gentleman's point.

One of our problems is that the debate in Committee has been completely corrupted: instead of our having the opportunity for informed debate on individual points, which is what I should have liked, it has been hijacked and we must move on to the rather different problem of evaluating the comments made by the hon. Member for Bridgend against the proposals made by the Home Secretary in his lengthy speech. It is to that issue that I shall now turn, but before doing so, I reiterate for the benefit of the right hon. Member for Southampton, Itchen (Mr. Denham) that as we are starting with a model that is not necessarily word for word what we want, it struck me when I considered the various amendments that Justice's ideas merited careful scrutiny, and I flag that up in case we ever, which I rather doubt, have an opportunity to return to them.

I now turn to what the Home Secretary had to say. The nub of his argument is that although he has conceded, compared with his position last week, that there are arguments for the sort of mechanisms that the hon. Member for Bridgend wants for control orders that require derogation, he can see no reason or purpose for having them in cases that do not require derogation. As I hope was clear from my interventions, I find the Home Secretary's argument completely unsustainable, and I wish to take just a few minutes of the Committee's time to explain why.

First, I return to the comment that I made to the Home Secretary originally that elicited his remark that he was being patronised by lawyers. I certainly apologise to him; I had no intention of patronising him—rather, I thought that as Home Secretary, he would probably have access to a great deal of sound legal advice and opinion. However, I did not understand the point that he made. He had called in aid Lord Hope's comments in a case called Rehman in which he said that in deportation cases it was appropriate that the Home Secretary, rather than a judge, should make the decision when the wider national interest had to be considered. I suppose that, to an extent, the Home Secretary linked that to the comments that Lord Donaldson made earlier today, when he expressed some reservations about judges being the principal participants in the process of control orders that the Government wish to take up.

I wish to make two points about those comments. First, if Lord Hope was referring only to deportation—I have to tell the right hon. Gentleman that I think that he was—that is clearly different from a process whereby the Home Secretary decides to take powers not to deal with aliens by deporting them, which has long been accepted in this country as one of the very few Executive powers to deprive people of their liberty that the Home Secretary has, but to translate that into a completely new field, irrespective of whether it applies to foreigners or British citizens, where the Home Secretary, by Executive fiat, deprives individuals of liberty. I believe that the two things are entirely different in principle. The truth is that we are moving into completely uncharted waters.

Lynne Jones (Labour, Birmingham, Selly Oak)

Is not the difference also that with deportation orders, there is an appeal process before the action—the deportation—is carried out, whereas control orders will be implemented before any appeal process can take place?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady is right, and of course, I accept that the end result of the deportation process is not that people are permanently deprived of their liberty, but that they deported. So the two things do not have equivalence, but we in this country have always accepted—certainly, until the Human Rights Act began to bite—that the Home Secretary has powers to detain aliens, pending their deportation, subject to judicial scrutiny and safeguards. We are not talking about that; we are talking about, at worst, a system of Executive detention, and at best, a parallel system of justice with control orders based, most regrettably, on secrecy, on the inability of a defendant to be given the full facts that he must answer, and on a person being subject to a variety of constraints that would previously have been totally unknown in our law. That is the point.

The rest of the debate is in Hansard.