Prevention of Terrorism Bill

House of Commons, 10 March 2005.

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

I must inform the House that a message has been brought from the Lords as follows. The Lords insist on certain of their amendments to the Prevention of Terrorism Bill to which the Commons have disagreed, for which insistence they assign their reasons. They agree to certain Commons amendments to certain Lords amendments and disagree to certain other Commons amendments to Lords amendments, for which disagreement they assign their reasons. They do not insist on certain other amendments to which the Commons have disagreed but do propose amendments in lieu thereof, and they do not insist on their remaining amendments to which the Commons have disagreed. Copies of Lords reasons and amendments are available in the Vote Office, as are the Government's proposals relating to the message. All Government proposals will be debated together.

Lords reason: 1D

Charles Clarke (Labour, Norwich South)

I beg to move, That this House insists on its amendments 1A and 1B to Lords amendment No.1, insists on its disagreement to Lords amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and insists on its amendments 37A to 37O, disagrees to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8, and proposes amendments (a) to (f) to the words restored to the Bill by its insistence on its disagreement to Lords amendment No. 17.

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

With this it will be convenient to discuss Lords reasons 12A, 13A, 15A, 17G, 22A, 27B, 28A, 31B, Government motion to insist &c. and Government amendments (a) and (b), Lords reason 33D and Government motion to disagree &c., Lords reasons 37P to 37T, 38A, 39A, 40A, 42D, 42E and Government motion to insist &c.

Charles Clarke (Labour, Norwich South)

As you indicated, Mr. Deputy Speaker, we are debating all the amendments together, and I intend very briefly to go through the Government's position on each of the issues that has been addressed.

I turn first to Lords reasons 38A, 39A, 40A, etc. The effect of the Lords motion is that the Lords have insisted on their amendment to the schedule that provides for the Lord Chief Justice to make the rules and to require rules of court to be compatible with article 6 of the European convention on human rights and have proposed a different procedure for the making of first rules. We do not accept that that set of proposals is sensible. First, the Lord Chief Justice does not make rules of court. Secondly, the rules must be compatible with article 6 in any event. Thirdly, we have changed the procedure to allow affirmative resolutions to approve the rules. I therefore ask the House to insist on its disagreement to Lords amendments Nos. 38, 39 and 40, insist on its amendments Nos. 42A and 42B, agree to its amendment No. 42C, agree to Lords amendment No. 42D and disagree with Lords amendment No. 42E proposed in lieu.

Secondly, I address Lords reason 1D, which refers to the Secretary of State making non-derogating orders and to the standard of proof. The effect of the Lords' motion is that they have rejected our amendments in relation to the making and judicial supervision of non-derogating control orders and to standards of proof. They are insisting on their own amendments in relation to those matters. We had a very long debate on those issues last night. The will of the House was expressed very clearly indeed. I do not propose to accept the amendments proposed, since I believe that a reduction in the standard of proof would lead to the likelihood that certain dangerous individuals who otherwise would be brought under control through control orders would not be so controlled. That is the advice that I have had from the police and the security services. I therefore conclude that the Lords amendments are not an improvement.

My amendments indicated very considerable movement by the Government to address the concerns expressed in both Houses. For that reason, I ask the House to insist on its amendments Nos. 1A and 1B to Lords amendment No. 1, insist on its disagreement to Lords amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, and insist on its amendments Nos. 37A to 37O, to disagree to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8, and propose the additional amendments listed in my name on the marshalled list.

I believe that the hon. Member for Beaconsfield (Mr. Grieve), in responding to this discussion, should answer a key question when considering these amendments. Will he confirm that his policy neglects the advice of the police and security services and would mean that control orders would not be placed on certain individuals whom the police and security services consider a threat?

Mark Oaten (Liberal Democrat, Winchester)

Will the Home Secretary acknowledge that it is difficult for Opposition parties to answer that question unless we can be shown the evidence on which the assumption is based? Will he make available the evidence that is being given to him by intelligence sources?

Charles Clarke (Labour, Norwich South)

I will make available in general terms—[Hon. Members: "Oh"]—it is a very important distinction—the evidence for the basis of the case that we make. Indeed, I did that only last week in a general case to explain why we were concerned about the issues. I will not confirm that I will make available in particular terms the particular situation relating to particular individuals, because it is precisely in those particular circumstances that national security issues are at risk. However, I can say to the hon. Gentleman that I am ready to acknowledge, as he asks, that, on the procedures for which he has been pressing and that my noble Friend the Attorney-General has set out in relation to Committees of the House, it is important to be clear that they allow the special advocate to understand the case in the round. I shall comment on that in more detail later in my remarks.

Dominic Grieve (Conservative, Beaconsfield)

Both the Home Secretary and the Prime Minister have repeatedly said that the security services require the control orders. Without going into individual cases, it ought to be perfectly possible for the Government to place before the House, as they have done in the past, the views of the security services—both security services—so that the House can know whether that is correct. As the Home Secretary will appreciate, ever since the events surrounding the Iraq war it has been difficult to take anything that the Government say on trust.

Charles Clarke (Labour, Norwich South)

I am very sorry indeed that the hon. Gentleman should seek to cast doubt on the security services—[Hon. Members: "No, you did."] No, that is precisely what he sought to do. I have always acknowledged, from my statement on 26 January and throughout the various debates, that the issue of weapons of mass destruction in Iraq has caused concern and has led to issues of trust that need to be addressed—

Patrick Cormack (Conservative, South Staffordshire)

Will the Home Secretary give way?

Bill Cash (Conservative, Stone)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

No, I am not giving way.

There are issues of trust in relation to both the Government and security and intelligence information. That is a fair point to make in discussion. However, because the doubt has been raised in the way the hon. Member for Beaconsfield (Mr. Grieve) raised it, I argue—it is an important argument—that it cannot be asserted simply on the basis of that doubt that all evaluations by all the security services of any threat to come should be cast aside, because they should not be.

Dominic Grieve (Conservative, Beaconsfield)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

I shall give way once more and then I want to make progress.

Dominic Grieve (Conservative, Beaconsfield)

Let us bring the discussion to this particular topic. The Home Secretary knows that, last week, the Prime Minister claimed that there were hundreds of potential terrorists abroad in this country. Within 24 hours, there had been a leak from the security services saying that that was nonsense and that the figure was between 10 and 20. Clearly, we cannot verify whether that leak was accurate, but the Home Secretary might reflect that it casts some doubt on whether we should accept either his word or that of the Prime Minister on anything.

Charles Clarke (Labour, Norwich South)

First, the hon. Gentleman is not talking about leaks and all that side of things. The figures that he quotes are actually set out in the financial memorandum and the regulatory impact assessment that we put before the House when we published the measure. They are entirely public documents and one would think that a competent Opposition would have studied them carefully before considering the situation—[Interruption.]

Tam Dalyell (Labour, Linlithgow)

How come the Home Secretary has been unable to persuade Paul Condon of all this?

Charles Clarke (Labour, Norwich South)

The main reason for that is an important one, which relates to a discussion that we held earlier. The events of 9/11 and those that followed were particularly significant. Paul Condon resigned as Metropolitan Police Commissioner before that time—[Interruption.] Yes, he did. The House should consider equally the remarks of Sir John Stevens, Lord Stevens, on that question. He was commissioner at that time and had to deal with those issues. The House should also consider the position of the current commissioner. Today, at a briefing for the crime reporters association—

Patrick Cormack (Conservative, South Staffordshire)

Will the Home Secretary give way?

Bill Cash (Conservative, Stone)

Will the Home Secretary give way?

Charles Clarke (Labour, Norwich South)

I am not giving way, as I have already made clear.

The question to the Metropolitan Police Commissioner was:

"Do you have a feeling that the legislation"—

on the prevention of terrorism—

"is being prepared so rapidly by the Government because of concerns over the general election?"

That was putting the Opposition's allegations directly to the commissioner. He answered:

"I cannot say that, but I can say very clearly that the Government is in a position that on Monday if this legislation is not passed these men must be released from Belmarsh".

That was the commissioner speaking. He continued:

"I think that will be a grave threat to the national security, I can certainly say that."

The evidence from the former Metropolitan Police Commissioner, who had the job of dealing with the post-9/11 situation, and the current Metropolitan Police Commissioner, is absolutely clear on this question.

Charles Clarke (Labour, Norwich South)

No, I shall not give way. I am going to make progress.

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

Order. I think the Home Secretary is indicating that he is not giving way at this juncture.

Charles Clarke (Labour, Norwich South)

Thank you, Mr. Deputy Speaker.

I now turn to Lords reasons 27B, 31B and 32B, dealing with Privy Council review and annual reviewer, and Lords amendment No. 33D, dealing with the sunset clause. The Government's motion—

Charles Clarke (Labour, Norwich South)

I shall not give way.

The Government's motion states that the House insists on its disagreement with Lords amendments Nos. 27, 31 and 32 and proposes amendments in lieu in relation to the scope of the independent annual review. The effect of the two amendments tabled in my name is to extend the scope of the independent annual review of the Act so that the review covers the whole Act, rather than just sections 1 to 6 on operation of control orders, as now.

Under these amendments, the appeal provisions will come within the scope of the review, as will the arrangements for reviewing the Act once passed. I think this proposal goes towards dealing with some concerns that have been expressed on both sides of the House and also by my noble Friend Baroness Hayman in the other place, about the way in which these issues are to be considered when the legislation is taken forward.

As I said yesterday, the Bill already provides a number of provisions for substantial and considered review of this system of legislation. They are, first, the quarterly reports that I, as Secretary of State, make to Parliament on the use of the powers to make control orders and, secondly, an independent reviewer—now, I suggest, of the whole operation of the Act—making an annual report, which is laid before Parliament. I confirm what I have said before: I will ask the independent reviewer to look specifically at the continuing need for the provisions in this Bill in the light of any new counter-terrorist legislation.

I propose—I emphasise this new proposition now—to widen the remit to the whole Act, not simply the control order powers and the offence provisions.

My proposal of last night was for the annual renewal of the Act with a vote in both Houses of Parliament to look at that situation. The proposal in the Bill enables the House to vote annually on the need to continue the capacity to make derogating control orders, if at some future stage we decide to derogate. I gave a commitment to my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) yesterday to have discussion across all parties after the election about the best way of taking this legislation forward. Of course, the opportunity for new legislation in the next Session gives us another opportunity to review these provisions.

I can confirm—again responding to Baroness Hayman—that we will ensure that the proposed legislation both has proper pre-legislative scrutiny and will be introduced as early as possible in the next Session.

I believe it is important, coming back to the attitude of the Conservative party, that the hon. Member for Beaconsfield state whether, in any post-election discussion of the type that we have discussed in the House, the Conservatives will accept control orders as a means of giving the security services the powers they need to deal with these threats. I also think that it is incumbent on him, on behalf of the official Opposition, to confirm that his election manifesto will include the pledge to repeal control orders, if that is indeed his position. The House deserves an answer to that question.

On the basis of these proposals, we do not feel that we need a further Privy Council review or an additional review committee, and it is total nonsense to remove the annual review of the Act. To be quite frank, the amendment passed in the other place is an offence against the excellent current reviewer, Lord Carlile of Berriew, and the work he is doing in carrying that through. To suggest he is not doing good work in this matter was a serious mistake by the Lords, in my opinion. I am determined that we insist on our disagreement with the amendments so as to maintain the existence of the independent reviewer. [Interruption.] I suggest that colleagues look at what he said in the debate in the House of Lords. He did not agree with himself being abolished in the way suggested by this particular proposal—not surprisingly, because he has done a pretty good independent, non-politically partisan job, to which we should all pay respect and tribute. That is why I am determined that we insist on our disagreement with the Lords amendments and thus maintain the existence of the independent reviewer.

I hope that the House will insist on its disagreement to Lords amendments Nos. 27, 31 and 32 and that it will accept the Government amendments in lieu. I also hope that the House will disagree with Lords amendment No. 33D and agree to amendments Nos. 33A to 33C.

When the hon. Member for Beaconsfield responds, I hope that he will set out what leads him to believe that a magic solution will be found by the end of March next year that will allow agreement to be reached on all these things. Even more, I hope that we will hear whether he accepts that his proposal to end control orders in November—or even at the end of March 2006—would encourage terrorists to locate in Britain, because I believe that that would be the effect of his actions. That is why I commend both our amendments and the statement of the Commissioner of Police of the Metropolis to the House and hope that hon. Members will support our amendments this evening.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to hear the Home Secretary's tone this evening. It was characterised by his assertion a few moments ago that due to some activity of the House or the Opposition, individuals would be released from Belmarsh next week. Nothing could be further from the truth. The release will happen whether the Government get the Bill or not. It would not need to happen if the Government renewed their part 4 powers, but as it was said in court today, their response to the bail applications made under part 4 of the Anti-terrorism, Crime and Security Act 2001 has been shambolic, so they have got themselves into their present difficulties.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will my hon. Friend remind the House that the Home Secretary has already told us that he does not propose to use control orders to hold those people in custody?

Dominic Grieve (Conservative, Beaconsfield)

Indeed, and those people will not even be subject to home detention. The statement made by the Home Secretary started with a complete inaccuracy.

The first thing that shines through from the Lords amendments is that Members of the other place have tried to achieve a consensus in a conciliatory fashion. How else can one interpret the amendment tabled by Baroness Hayman proposing a sunset clause extending to 12 months? We were happy to accept that amendment as a gesture to the Government, even though, I might add, it is unnecessary if they are being sincere and wish to get on with further legislation.

Andrew MacKay (Conservative, Bracknell)

Did my hon. Friend note that the Home Secretary walked through the Division Lobby earlier today to vote for a sunset clause to help Sinn Fein-IRA Members? Is it not ironic that he rejects a reasonable sunset clause to help civil liberties, but supports a sunset clause that aids and abets terrorists?

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with my right hon. Friend.

Peter Luff (Conservative, Mid Worcestershire)

On the subject of sincerity, has my hon. Friend had the chance to study the words of the Home Secretary that I showed him during the suspension? They read:

"Our strategy should therefore be to insist that the bill does not diminish the liberty of the subject but amplifies it; that the true liberty of the subject consists in the freedom to walk the streets unmolested . . . and that far from circumscribing the liberty of the subject this will enlarge it . . . Paradox works well and mists up the windows, which is handy. 'The loss of liberty is the price we pay for freedom' type thing."

My hon. Friend will realise that they are the words of the fictitious Home Secretary in Alan Bennett's excellent play "The History Boys". They were intended as satire, but now sound eerily and worryingly prophetic.

Dominic Grieve (Conservative, Beaconsfield)

Indeed. Government Members yesterday suggested that the need for security was so great that any infringement of liberty might be tolerated. We disagree profoundly with the Government on that point.

The situation regarding the sunset clause is quite clear. The Government know from the comments of many of their Back Benchers, including those whom they persuaded to support them yesterday, that the Bill is without doubt a major infringement of civil liberties and is poorly drafted. The hon. and learned Member for Redcar (Vera Baird) made that comment, even though, in her loyalty, she came back to support the Government. The Home Secretary should therefore accept that the legislation should have a finite limit. Without such a limit, I have no confidence that the Government will ever review the measure properly. We will simply be asked to rubber-stamp its renewal, and there will be no creative thinking about how we resolve our present dilemma and maintain civil liberties while fighting terrorism adequately.

Huw Irranca-Davies (Labour, Ogmore)

Once again, the Opposition have made much of the opinions of people who have formerly held eminent positions. Does the hon. Gentleman accept that his proposals fly in face of the contemporary opinions of the security services and the police? If his measures are accepted, they will fly in the face of that advice and jeopardise the citizens of the United Kingdom.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman's generalised comments are not very helpful, as we need to look at specific points. Is he suggesting that the security services have said that a sunset clause defeats the object of the Bill? It plainly does not, and it is nonsense to make that assertion.

John Redwood (Conservative, Wokingham)

Is my hon. Friend, like me, worried not only about the attack on civil liberties but about the fact that the Bill does not guarantee the security of the British people? The Government know that there are hundreds of terrorists out there, but we now know that not a single one will be charged or locked up.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. Friend makes a good point. That is a serious problem, and it is one reason why we tabled a provision on the director of public prosecutions, as there should be proper consultation to ensure that wherever possible prosecution is pursued. That is another area that the Government have dismissed entirely.

Huw Irranca-Davies (Labour, Ogmore)

The hon. Gentleman is generous in giving way again. To pursue his point about the security services and the police, they are asking for control orders. What is the Opposition's policy on control orders? If they have no intention of using them, will they include such a statement in their manifesto?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is not listening to the debate. However much I dislike the prospect, it is within the Government's power to obtain control orders within a few hours. What is preventing them from doing so is the purest petulance. The Government have insisted that there should be a distinction between derogated and non-derogated orders.

Frank Field (Labour, Birkenhead)

Does the hon. Gentleman accept that there is a huge divide in the House on a number of issues, but that the crucial issue is the sunset clause? There may be only one Government Member who believes that the measures fall short of the threat but, having listened to the Home Secretary, I accept completely that the threat is of a nature that we have not faced before. I am therefore worried about whether the measures proposed by the hon. Gentleman are adequate to deal with the threat. Without a sunset clause, we can never go back to the drawing board to consider measures that are adequate to the challenge. I am worried that a review in 12 months' time will merely provide approval, not a basic analysis of what is required, given the challenge that the Home Secretary said we face.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the right hon. Gentleman's sensible comments. If the Government accepted the sunset clause in the spirit in which it is intended, the House could start to make real progress. The reluctance of the Home Secretary and the Prime Minister to accept a sunset clause on an issue of huge importance to civil liberties does them no credit whatsoever.

Frank Field (Labour, Birkenhead)

Is the hon. Gentleman saying that if the Government accepted the sunset clause, the official Opposition would drop all their objections to the remaining measures, knowing that we could return to the drawing board after the election?

Dominic Grieve (Conservative, Beaconsfield)

The Government should go further and I shall explain why. I simply do not understand why they chose to make an issue of the distinction between derogating and non-derogating orders. During the debate last week, the hon. and learned Member for Redcar made an exceptionally good speech in which she explained why the distinction between derogating and non-derogating orders should be removed. She also highlighted why judicial review proceedings are inadequate for non-derogating orders. Her comments then were absolutely correct and I accept that she accepted less than that yesterday out of loyalty. I have yet to understand the rationale behind the Home Secretary's insistence that the distinction must be maintained.

The answer to the question asked by the right hon. Member for Birkenhead (Mr. Field) is that we insist that the Government move on the issue.

Vera Baird (Labour, Redcar)

The hon. Gentleman knows very well that when I referred to judicial review I was addressing the question of an appeal on an unsatisfactory basis. I have been substantially reassured because the judge will now come first in non-derogating control orders. I hope that the hon. Gentleman will not misrepresent what I said a week ago.

The hon. Gentleman seems to be suggesting that a sunset clause is a precondition for conversations between parties about future legislation. That is utter rubbish and the public should understand that. Conversations have been offered here and now by the Home Secretary, irrespective of the sunset clause, and he has promised new legislation next year. The Opposition have every opportunity to contribute to better future legislation on this matter. The sunset clause is a silly, political tactic.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady is naive if she thinks that in the absence of a sunset clause we will get any joy from this Government on a proper review of this legislation with its draconian clauses and consequences.

I have here the comments made by the hon. and learned Lady on 28 February and they could not be more crystal clear in their condemnation of a review system as opposed to one where the judge makes the initial decision. I invite her to read her words.

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

As someone who was, in the words of the hon. and learned Member for Redcar (Vera Baird), given the opportunity to contribute to legislation in the Newton committee, I remind the House that the only sunset depended on the committee's report being debated. When the all-party committee produced a set of alternative proposals, the Home Office did not have to consider adopting them because the legislation continued. Only the sunsetting of the legislation by the House of Lords led to the Government taking up the committee's proposals.

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed. Baroness Hayman was a member of that committee, which may explain why she places so little faith in the Home Secretary's assurances. I am bound to say to the hon. and learned Member for Redcar that she should not place much faith in those assurances.

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

No. I want to bring my comments to a conclusion.

The Government have also objected to all the other proposals made in the other place to improve the Bill. I do not understand the Government's continuing insistence on reasonable suspicion rather than the balance of probabilities. There is no justification for that stance particularly as, again, it offers a different test from that in derogating orders.

Vera Baird (Labour, Redcar)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

No. I am sorry, but I must make progress.

There can be no logical reason for that distinction. The Government's refusal to have a full Privy Council review is extraordinary. If the Government want the Bill, they can have it. It can be on the statute book later tonight, but a little reasonableness would be helpful. We have been subjected over the past week to vitriol, bullying and, now, petulance. The petulance extends so far that No. 10 appears to be briefing that there will be a general election on this issue unless the Opposition give way.

This is an issue of conscience, and should be so for every Member of this House. Nothing will induce me to allow the Bill to pass in its present form and every hon. Member should consider carefully the duty they owe to their constituents in respect of ensuring that liberty is maintained in this country. In particular, the Government's refusal to accept the sunset clause highlights the fact that they are untrustworthy on this legislation, and the Home Secretary has done nothing to dispel that distrust this evening. I ask the House to support the Lords amendments and to enable this matter to come to a rapid conclusion.

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

I call Mr. Marshall-Andrews.

Chris Ruane (Labour, Vale of Clwyd)

Oh, good!

Robert Marshall-Andrews (Labour, Medway)

We have another half an hour, and I will not speak for very long, because other Members may wish to speak, including the hon. Member for Vale of Clwyd (Chris Ruane)—I am sure that he has a serious and interesting contribution to make.

My point concerns review by the judiciary of derogating and non-derogating clauses. I take the view that the House was seriously misled yesterday and when we debated the matter before. This is a central issue. The Government make a distinction between derogating and non-derogating issues; I do not accept that distinction, but the Government make it. In respect of derogating issues—house arrest—the Government provide that the court will have full powers to look at the facts and to come to its own conclusions. So far, so good. I would reluctantly accept that, if it were the case for all the orders.

Non-derogating orders are not mere chaff in the system. They will involve people's right to work, to associate and to move, and their being tagged and electronically monitored. They are as close to the pass laws in South Africa as it is possible to get, and they are a serious matter. The question that the House must ask is whether there will be proper judicial review of those proceedings. The House has been told on several occasions that there will be, because the court will be allowed to consider the orders, but it may do so only on the basis of judicial review. The basis of judicial review does not allow a court to reopen the case and look at the facts on which the order was made. It is worth repeating that point time and again. Assurances to the House, whether from Front or Back Benchers, and from people who should know better, are simply wrong. The House must take that on board.

Vera Baird (Labour, Redcar)

Will my hon. and learned Friend give way?

Robert Marshall-Andrews (Labour, Medway)

There is no distinction to be made—[Hon. Members: "Give way."] After my next few sentences, I shall give way.

There is no distinction to be made between whether such an order gets to a judge on appeal or as of right. The same process will be applied—namely, that the judge will apply the constrictions of judicial review. That is what my hon. and learned Friend the Member for Redcar (Vera Baird) objected to initially—realistically and properly—and I supported her. She now supports the change that has been made to the Bill, but it is precisely the same test, of judicial review. The House should understand that no judge will be able to look at the facts of the matter. It is essential to take that on board when hon. Members vote on whether the non-derogating orders should be accepted as they stand.

Vera Baird (Labour, Redcar)

Is my hon. and learned Friend giving way?

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

Order. Let us clarify the situation. Is the hon. and learned Gentleman giving way?

Robert Marshall-Andrews (Labour, Medway)

Yes, Mr. Deputy Speaker.

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

The hon. and learned Gentleman has not yet completed his remarks. I call Vera Baird.

Vera Baird (Labour, Redcar)

Thank you, Mr. Deputy Speaker.

My hon. and learned Friend knows well that if a judge is asked at the outset to consider whether there are reasonable grounds on which one can, as Home Secretary, suspect that a person is engaged in terrorism, the only possible way to reach a judgment is for the judge to look at the evidence and form a view. My hon. and learned Friend must not mislead the House about that.

Robert Marshall-Andrews (Labour, Medway)

That intervention would be valid were that the test, but it is not. As my hon. and learned Friend well knows, the test is whether the judge feels, not that the decision was wrong based on the facts, but that it was obviously flawed—not that the decision is wrong, or that the judge disagrees with it, but that it was obviously flawed. That is the test of judicial review.

I am not entirely sure what "obviously" means in the present circumstances. Can a judge say, "Well, I thought the decision wasn't obviously flawed. Having looked at the background, I think it was flawed, but initially it was not obviously flawed"? What is a judge to make of the provision? I have not the remotest idea. It is bad to pass a statute that affects the liberties of our citizens based on such an amount of doubt. I simply ask hon. Members to take that on board when making their decision on this particular issue.

Win Griffiths (Labour, Bridgend)

I have already admitted that I am not a lawyer, but I have looked at clause 7, which states:

"The function of the court on an appeal . . . is to determine whether any of the following decisions of the Secretary of State was flawed—

(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order".

Clause 1, which will become section 1, empowers the Secretary of State to make an order

"if he . . . has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".

It seems to me that the judge cannot decide whether the Secretary of State's decision was flawed without knowing the basis on which the Secretary of State made that decision.

Robert Marshall-Andrews (Labour, Medway)

Precisely. [Laughter.] I hope that hon. Members realise that this is not a flippant point but a serious one. Of course the judge must look at the reasons. Having done so, a judge may think that he would not have acted in the same way, or that what the Secretary of State did was wrong, or that his decision was wrong. Nevertheless, what he must conclude is that the decision was obviously flawed, and he must do so applying the principles of judicial review. Judicial review comes from the prerogative writs—ancient writs in this country—which were always and deliberately set out on the basis that judges should not question decisions taken by the Executive—quite right, too. Hear, hear; I agree—they should not. That is the basis of judicial review. That is its whole life and mainspring in the legal system.

Edward Garnier (Conservative, Harborough)

I congratulate the hon. and learned Gentleman on trying to explain to people who will not have read the Bill before they vote for it precisely what they will be doing. Judicial review involves looking at the process, not at the substance of a decision. What hon. Members will do blindly, if they do not listen to him, is pretend that the review is a proper form of appeal. It is not. Please, will he continue to say what he has to say with greater force and clarity?

Robert Marshall-Andrews (Labour, Medway)

I am not sure that I shall accept that invitation, generous though it was. I make no apologies for being a lawyer. There are charlatans in my profession, as there are in every profession. Equally, we can number in my profession some of the finest politicians, alive and dead. They have made their contribution in their time, and it has often been in the field of civil liberty—precisely the subject that we are discussing. It is in that spirit that I make this contribution.

I do not wish the House to be misled into passing legislation and believing that it is giving to judges a power that the Bill manifestly and obviously does not give to them, will never give to them and should not give to them, under judicial review, because to extend judicial review is, by definition, to diminish the power of the House and its Ministers. That is why judicial review exists, and why it is so heavily circumscribed. To suggest that we are giving judges the power to strike down Ministers by judicial review is—I am sorry—casuistry, and should be treated as such.

Vera Baird (Labour, Redcar)

rose—

Robert Marshall-Andrews (Labour, Medway)

No, I have already given way. [Hon. Members: "Go on!"] As I am encouraged by those surrounding me, of course I will give way.

Vera Baird (Labour, Redcar)

I am glad that my hon. and learned Friend accepted that he was outnumbered. There must be a real danger that the public watching us now think that we are two QCs arguing about how many angels one can get on the head of a pin. For the avoidance of doubt, and since my name has been used and, I think, been used slightly badly, may I make it plain that a test whereby a judge of the High Court will consider, on all the evidence, whether there is reasonable cause to suspect that a person is engaged in terrorism is a satisfactory test, as far as I am concerned.

Robert Marshall-Andrews (Labour, Medway)

So my hon. and learned Friend has said. Of course we are talking about law. The Bill makes law. It is impossible to avoid that. It is making immensely bad law, and that is why we must talk about it. I have said what I said, and shot my bolt on the issue, and I hope that some hon. Members, at least, will take on board what I say in the spirit in which I am saying it.

I come to the sunset clause; the time has now been extended to a year. What we are giving birth to here, if we give birth to it at all, is a very malformed animal indeed. In saying that, I enjoy the support not only of people who have fought the Bill throughout, but of people like my hon. and learned Friend the Member for Redcar and many commentators who believe that the Bill is seriously malformed. The Bill cannot be resuscitated and cured, by definition. What we need is a rebirth. We need a new Bill and we need it quickly. The period of a year, which has been proposed in another place by a noble Lord of my party, is worthy of support. One year is enough. We need to bring back in a year not this old malformed Bill, resurfaced and rehatched, but a new Bill to deal with the problems of terrorism, which are undoubtedly real.

David Heath (Liberal Democrat, Somerton and Frome)

It is a great misfortune that again we have such an abbreviated debate on this important Bill.

I should like to think that the Home Secretary and others in the Chamber recognise the high level of agreement between parties, between Benches and between Houses. We all agree that there is a serious threat of terrorism. We all agree that there is a need to take appropriate measures to combat it. Most of us agree that, regrettably, control orders are probably part of the apparatus that is required. We have been prepared to accept that there needs to be an emergency process that enables the Secretary of State to apply for those control orders, even on the grounds of reasonable suspicion. Those in another place who have considered the Bill have done an extremely good job of tabling amendments that work and make the Bill better.

The Home Secretary should have no doubts about whether he will have his Bill, because he has it already. The Bill is workable, and it is for him to take it. It is not good enough to suggest that either a recalcitrant upper House or an obstructive Opposition in this Chamber is stopping him having what he needs in order to combat terrorism effectively.

Which extraordinary suggestions from the other place does the Home Secretary propose to remove this evening? He proposes to remove the power of the Lord Chief Justice, rather than the Lord Chancellor, to make rules of court. A few weeks ago, we considered the abolition of the post of Lord Chancellor, and it is absurd to suggest that as a matter of principle the Lord Chancellor must make rules of court rather than the Lord Chief Justice.

The Home Secretary has asked us to reject the contention that article 6 of the European convention on human rights should be addressed on the face of the Bill. That is ridiculous, but he insists that he will not budge. He could help the House this evening by making it explicit that the process will not accept evidence gained by torture under other jurisdictions, but he has not made that expressly plain.

Charles Clarke (Labour, Norwich South)

I have given that exact assurance in this House, and to the Joint Committee on Human Rights and the Home Affairs Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Home Secretary.

I am also grateful to the Home Secretary for accepting Lords amendment No. 42D, which is extremely important because it sets out the rules by which possibly exculpatory evidence could be disclosed to defendants or their representatives. Although that mechanism would be imperfect in normal criminal proceedings, it is a great improvement.

Charles Clarke (Labour, Norwich South)

May I take the opportunity to confirm that that is the case, and that we are ready to examine further ways to improve the process involving special advocates?

David Heath (Liberal Democrat, Somerton and Frome)

We are making significant progress in that area, and more progress remains to be made.

It is extraordinary that the Home Secretary persists with the artificial distinction between derogating and non-derogating orders. Indeed, many Labour Members have said that there should no difference in legal process between those two types of order.

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way?

David Heath (Liberal Democrat, Somerton and Frome)

No, we do not have time. The hon. Gentleman voted for the timetable motion, which prevents debate. [Hon. Members: "Hear, hear."]

There is no logical reason for a separate judicial process between derogating and non-derogating orders, and I still hope that the Home Secretary will agree that matter with us.

On the standard of proof, we have a significant disagreement, and the Home Secretary has not yet established to my satisfaction why the balance of probabilities is an inappropriate test to decide whether someone should lose their liberty. I believe that that test is appropriate, but he has told me that the security services require that the test should be based on reasonable suspicion rather than the balance of probabilities. That simple assertion is not enough, and I invite him to provide us with evidence that will allow us to understand why he believes that the balance of probabilities is not the appropriate standard of proof.

The Home Secretary has asked us to remove the reference to the Director of Public Prosecutions—which, incidentally, is in the wrong part of the Bill—and argues that the matter should be put before a chief of police. However, we have argued for years that the prosecuting authorities rather than the police should decide whether to prosecute. Why is he taking that retrograde step, and why on earth should that be a sticking point?

The Home Secretary has asked us to remove the provisions for a Privy Council annual review. Notwithstanding the concerns about the future employment of my noble Friend Lord Carlile—I hope that Lord Carlile or someone else will have the opportunity to continue as an independent reviewer—the Privy Council is a useful mechanism for examining the performance of the legislation in action.

The position on the sunset clause is the biggest absurdity of all. We have a Labour peer—Baroness Hayman, previously a Member of this House—putting forward the eminently sensible suggestion of a sunset clause, to come into effect after a year, for this legislation, which is acknowledged on all sides to be temporary, emergency and not entirely well considered.

Chris Bryant (Labour, Rhondda)

That is not acceptable.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman says from a sedentary position—I am happy to read him into the record, as he is so desperate to get into it—that that is not acceptable. So what is not acceptable? We are told that it is unacceptable for the legislation to cease to have effect after a year, but acceptable for the House to reject it after a year as a renewal. We are told that it is not acceptable for the House to improve the Bill, but acceptable for it to reject the Bill. In any case, we are told by Baroness Scotland that by that time we will have new and better legislation, because, as she virtually admitted to the other House, this legislation is defective and we can do better—in other words, there is no need to worry about the renewal because something else would already be on the statute book. Yet if there is no need to worry about renewal, why is there any need to worry about a sunset clause? There is no logic in that position. It is unacceptable for the Government to hide behind it as a pretext that that is a bar to their having their legislation.

To say that to accept a sunset clause is to send a signal to the terrorist is the worst argument that I have ever heard. That is to say that al-Qaeda operatives all over the world are waiting to hear whether we are going to have a sunset clause or a renewal facility on 31 March next year, and if we make the right decision they will be satisfied and put their bombs away.

This is an absurdity. The Government have it within their power to have their legislation tonight—they will have it within an hour or two if they take the necessary steps. They have moved a very long way in several areas; we are grateful for that. They have a couple more steps to go, and then they will have their legislation. But if they do not take those steps—if they believe that the sunset clause is the sticking point that prevents them from having their legislation—not only will they look absurd, but we can only conclude that they did not actually want this Bill in the first place.

Vera Baird (Labour, Redcar)

So that nobody is misled by anybody on either side of this House, let me clearly set out my understanding of the position. The test in the Bill is very plain—are there reasonable grounds to suspect that the person is engaged in terrorism? The only way of assessing that is to look at the evidence and evaluate it. The judge must act as the gatekeeper for the Home Secretary in evaluating the evidence and concluding whether his proposal is within a range of reasonable responses to that evidence. If he finds that it is outside the range of reasonable responses, he will quash it and it will never get off the ground.

There is an additional element that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—and he is my friend—missed out. Since the prerogative writs of the 17th century, the element of proportionality has come in as another important test that is, again, based on the evidence. That came in with the Human Rights Act 1998. What changed my mind was the putting of the judge first and requiring him to be responsible for these decisions—to gate-keep. I am satisfied that the judges will develop an excellent jurisprudence because of that responsibility, which will ensure the maximum amount of fairness for the individuals involved.

Robert Marshall-Andrews (Labour, Medway)

rose—

Vera Baird (Labour, Redcar)

I want to move on because I have less time than my hon. and learned Friend took.

The Tories and the Liberal Democrats must not pretend that a sunset clause is the key to negotiations for new legislation because my right hon. Friend the Home Secretary has made it clear that he will introduce a new Bill.

Let me deal with the burden of proof, because it rears its head high.

Clare Short (Labour, Birmingham, Ladywood)

Will my hon. and learned Friend give way?

Vera Baird (Labour, Redcar)

I am sorry but I will not. [Hon. Members: "Give way."] I do not have time—[Interruption.]

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

Order. The hon. and learned Lady is not giving way.

Vera Baird (Labour, Redcar)

I, too, know when I am outnumbered.

Clare Short (Labour, Birmingham, Ladywood)

In a previous speech, my hon. and learned Friend said that the Bill was cobbled together, flawed and worrying. Surely the point of a sunset clause is that we have something, and also more time to consider the matter and reach greater consensus. Is that not a good idea?

Vera Baird (Labour, Redcar)

I do not think that I used the words that my right hon. Friend attributed to me, but I know what she means. No one is 100 per cent. satisfied that the measure is perfect, but my right hon. Friend the Home Secretary said that he will introduce a new Bill next year, in any event. Surely we ought to—[Interruption.]

May I deal with the burden of proof? All hon. Members appear to believe that that is important.

Robert Marshall-Andrews (Labour, Medway)

Will my hon. and learned Friend give way?

Vera Baird (Labour, Redcar)

I have only three minutes and my hon. and learned Friend has already taken up a good deal of time.

It is my clear view that hon. Members are misguided in concentrating on the burden of proof. The distinction between reasonable cause to suspect that someone is involved in terrorism and it's being more probable than not is not worth dying in a ditch for. Hon. Members should concentrate on firming up the admirable concessions that the Home Secretary made yesterday on giving defendants a better deal by reorganising the special advocacy system so that they are likely to get to know more about their case.

Differences in the burden of proof pale into insignificance next to the concessions that my right hon. Friend has made. If hon. Members are interested in justice for defendants, they should concentrate on those concessions so that they can be reduced to paper to ensure that the special advocate system will be examined and that defendants get a better deal. That is truly the right way forward. It was clear in yesterday's debate that, if Conservative Members take a realistic approach to justice for defendants, they will find my right hon. Friend helpful. He plainly suggested that yesterday. I therefore conclude that that is the obvious route to take. If Conservative Members do not take it, they must simply be playing politics because there is a clear way in which to improve the Bill now.

Kenneth Clarke (Conservative, Rushcliffe)

I spoke about judicial review yesterday and I agree with the speech that the hon. and learned Member for Medway (Mr. Marshall-Andrews) made earlier and with the speech that the hon. and learned Member for Redcar (Vera Baird) made on the same subject previously. Anyone who believes that a case has been made in which the merits of the issue are put in the hands of the judge has been misled.

With respect, I do not agree with the hon. and learned Member for Redcar that the difference between reasonable suspicion and the balance of probabilities is purely academic. No other part of the law is treated in that way. There will be cases in which there are plenty of grounds for suspicion but one feels that the man is probably innocent. If the Bill is allowed to proceed, someone in that position will be subject to all its rigours.

Let me consider briefly the advice of the Security Service—the new point on which the Home Secretary placed particular stress. Surely he could share a little more of the Security Service advice on the burden of proof and on the sunset clause. The only argument that I have heard advanced about the burden of proof is that the Security Service insists on it. I find that unlikely. If that is Security Service advice, it must have peculiar lawyers. I am sure that we shall revert to the point later and I should like the Home Secretary to let us know whether the Security Service says that we should have a balance of probabilities, not reasonable suspicion.

Vera Baird (Labour, Redcar)

Will the right hon. and learned Gentleman give way?

Kenneth Clarke (Conservative, Rushcliffe)

No—I apologise.

On the sunset clause, is the Security Service saying that it is not acceptable for us to give ourselves 12 months in which to produce a new Bill, and do the Government believe that they have to press on with it for that reason?

The Downing street spokesman on behalf of the Prime Minister gave the genuine reason this afternoon. He totally prejudged this evening's proceedings. Downing street has instructed the Home Office to come along with all those reasons. The spokesman said that to amend the Bill further would send the wrong message to the terrorists and the police and security services, and that that applied not just to the sunset clause but to the burden of proof. The hon. Member for Somerton and Frome (Mr. Heath) exposed to ridicule brilliantly, I think, the idea that this is a message to terrorists. Everybody in the House is prepared to accept that there will be a fairly draconian Bill to protect the public if—

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [9 March].

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Member for Hackney, North and Stoke Newington (Ms Abbott) should not be using a mobile phone in the House; she should really know that by now.

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

The sitting is suspended. Shortly before the sitting resumes, I shall cause the Division bell to be sounded.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I must inform the House that a message has been brought from the Lords as follows. The Lords insist on certain of their amendments to the Prevention of Terrorism Bill to which the Commons have insisted on their disagreement, for which insistence they assign their reasons. They insist on certain of their amendments to which the Commons have disagreed, for which insistence they assign their reasons. They disagree to the amendments proposed by the Commons in lieu of the Lords amendments, for which disagreement they assign their reasons. They do not insist on their remaining amendments to which the Commons have disagreed, and they agree to the remaining Commons amendments on which the Commons had insisted. Copies of the Lords reasons are available in the Vote Office, as are the Government's propositions relating to the message. All Government proposals will be debated together.

Lords reason: 1D

Hazel Blears (Labour, Salford)

I beg to move, That this House insists on its amendments 1A and 1B to Lords amendment No. 1, insists on its disagreement to Lords amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and insists on its amendments 37A to 37C and 37E to 37O, does not insist on its amendment 37D, insists on its disagreement to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8 and insists on its amendments 17H to 17M to the words restored to the Bill by its insistence on its disagreement to Lords amendment No. 17 and proposes amendment (a) in lieu.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this we will discuss Lords reasons 8A, 12B, 13B, 15B, 17N, 22B, 27E, 28B, 31C, 32C, Government motion to insist &c., Government amendment (a), Lords reason 33E, Government motion to insist &c., Government amendments (a) and (b) and Lords reason 37U.

Hazel Blears (Labour, Salford)

The first amendment relates to the making and judicial supervision of control orders, including the standard of proof. The effect of my amendment is to require an inter partes directions hearing to be held within seven days of the court granting the Secretary of State permission to issue—or, as the case may be, confirming—his non-derogating control order. The purpose of my amendment is to provide yet another safeguard in the procedure to ensure that the individual concerned will be involved fully in the proceedings at the earliest possible stage. So, there would now be three stages: an application for permission from the Secretary of State; a prima facie ex parte hearing followed by an inter partes directions hearing to see how the matter might be disposed of; and then a further inter partes full hearing. My amendment would therefore provide for an additional safeguard of further intervention into that process. That would give all parties an early opportunity to consider how best to deal with questions of evidence, disclosure and the appointment of a special advocate if required.

As well as that amendment, we want to insist on our previous position with regard to the standard of proof. There are a couple of additional points that I want to make to the House concerning standard of proof, because it is a very important matter. I want to make it clear that these are preventive orders, not punishment, which is important to the standard of proof issue; that we are talking about an assessment of intelligence rather than necessary evidence of proof of fact; and that we are talking about a risk assessment process. I want to draw to the House's attention the statement of Lord Justice Laws when he was considering the A case in the Special Immigration Appeals Commission. I do not think that this quote has been used before. He said:

"the nature of the subject matter is such that it will, as I have indicated very often, usually be impossible to prove past facts which make the case that X is a terrorist. Accordingly, a requirement of proof will frustrate the policy and objects of the powers . . . the target of the policy includes those who belong to loose, amorphous organised groups."

Dominic Grieve (Conservative, Beaconsfield)

rose—

Hazel Blears (Labour, Salford)

I just want to finish this point. Both SIAC and the Court of Appeal accepted reasonable suspicion as the right level of proof in those cases. It is very important to make that point.

Dominic Grieve (Conservative, Beaconsfield)

I have to say to the hon. Lady that far from not having heard that quote before, it has been bandied around almost ad nauseam. If that is her objection, she could argue that the derogating orders that she is making, which will be made on the balance of probabilities, should not in fact be made on the balance of probabilities at all. Why does she accept that derogating orders should be made on the balance of probabilities, yet persist in this frankly cussed refusal to have the balance of probabilities on non-derogating orders?

Hazel Blears (Labour, Salford)

Even at this early hour of the morning, I am attempting to be moderate and measured, and I hope that the debate will be conducted in that fashion. As we have made clear on several previous occasions, we have accepted the balance of probabilities for derogating orders because deprivation of liberty is a severe sanction. However, we do not accept it for non-derogating orders because there is a distinction between restrictions on liberty and deprivation of liberty. That is a clear position.

The orders, as well as being preventive, not punitive, are about anticipating and disrupting terrorism. They are an assessment of risk, and I genuinely believe that hon. Members are trying to constrain a preventive framework in a traditional criminal justice system, which is about proof of events after the fact, evidence and an adversarial mechanism. I believe that hon. Members have not taken seriously the fact that we are trying to anticipate and prevent rather than simply prove things after the event, which happens in the traditional criminal justice system.

Kenneth Clarke (Conservative, Rushcliffe)

Will the Minister answer the question that I asked the Home Secretary last time we debated the matter? He suggested that the decision was made on the advice of the Security Service. Is the Security Service advising that we have that burden of proof rather than the balance of probabilities in the case of non-derogating orders? Can she give us an insight into that aspect of Security Service advice that we are said to be ignoring?

Hazel Blears (Labour, Salford)

Yes. The Security Service is concerned—[Hon. Members: "No."] Let me answer—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. We are considering serious matters and our proceedings on them are best conducted without sound effects. We want to hear whoever has the Floor. I call Ms Blears.

Hazel Blears (Labour, Salford)

I am making it clear—

Peter Bottomley (Conservative, Worthing West)

On a point of order, Mr. Deputy Speaker. You rightly said that we must listen to the person who is speaking, but the person who should answer the question of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) is the Home Secretary. Will he please speak and give us the answer?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I must say to the hon. Gentleman that I have called the Minister and she has the Floor.

Hazel Blears (Labour, Salford)

I am happy to confirm that our advice from the Security Service is that, if we use balance of probabilities, we will not be able to secure orders on some of the people about whom it has significant concerns.

Edward Garnier (Conservative, Harborough)

The Minister tried to distinguish between a total deprivation of liberty—house detention—and a restriction on liberty, that is, a non-derogating order. Does she not understand that the Human Rights Act 1998, which the Government introduced, makes it clear that any such conduct could amount to a penalty under that legislation? [Interruption.] The Minister may snigger, but we are considering human rights and it makes no difference whether the Government are depriving a citizen of all his liberties or merely some. It still constitutes a penalty. Surely the higher not the lower standard of proof should apply.

Hazel Blears (Labour, Salford)

The hon. and learned Gentleman is experienced enough in the law to know that article 5 of the European convention on human rights makes a distinction between restrictions on and deprivation of liberty. We have proceeded on that basis.

Menzies Campbell (Liberal Democrat, North East Fife)

Will the Minister give way?

Hazel Blears (Labour, Salford)

I should like to move on to—[Hon. Members: "Give way."] I shall give way.

Menzies Campbell (Liberal Democrat, North East Fife)

I am most grateful to the Minister for giving way at this early hour, as she rightly described it.

I have listened on several occasions when she and the Home Secretary have tried to draw a distinction between derogating and non-derogating orders. Does she not agree that the consequences of derogating and non-derogating orders are penal? The only difference is a matter of degree. If it is a matter of principle that the standard of proof for derogating orders should be balance of probabilities, why is it not a similar matter of principle for non-derogating orders?

Hazel Blears (Labour, Salford)

No, I think that I have said on several occasions that these orders are not punishments, they are about prevention. I have also explained that there is a proper reason for the distinction between the two orders set out in article 5.

I now wish to move to the second area of concern of the Lords and my amendments in relation to having an independent reviewer rather than a committee of Privy Councillors. My further amendment shortens the period in which the first report of the independent reviewer must be submitted to nine months, and provides explicitly in the Bill for his report to include the implications for the operation of the Act of any proposal made by the Secretary of State for changing the law relating to terrorism. That has two effects. First, it would ensure that the renewal debates that we will hold in the House will be informed by the report on the operation of the whole Act by the independent reviewer. On that basis, our debates will be more informed. Secondly, it would include in the Bill the Home Secretary's commitment that the independent reviewer should consider specifically in his report the implications for the operation of this Act, once passed, of any new proposals or legislation on counter-terrorism.

We have already said that we will bring forward proposals and have pre-legislative scrutiny. We now want to make sure that the independent reviewer can consider that as part of his review by including that explicitly in the Bill. We want to ensure that his report is done within nine months, so that when we come to the annual renewal after 12 months we have a proper, informed debate in full knowledge of his review.

John Gummer (Conservative, Suffolk Coastal)

If, as the hon. Lady rightly says, it is necessary for us to have this detailed report and be absolutely sure that the legislation is working properly, why does she not feel at the same time that the House could be assured that it would have new legislation that took all that into account? Why does she not therefore give way by making sure that we have a sunset clause?

Hazel Blears (Labour, Salford)

I am afraid that the sunset clause would not ensure that.

My third amendment would ensure that in relation to our annual renewal, the Secretary of State would be required to consult the independent reviewer of the Act before making an order to renew the powers to make control orders for up to a further year. [Interruption.]

We believe that the provisions we are putting into the Bill to review the operation of the Act are right and appropriate, but my amendment requires the Secretary of State to consult the independent reviewer of the Act before making his order to renew the powers. We think that this—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sorry to interrupt the hon. Lady. The House must come to order. We need to hear this debate.

Hazel Blears (Labour, Salford)

We think that this is a sensible idea. At that point, we will have the benefit of the independent reviewer's report, and we will have any recommendations that he wants to make on the way in which the Act is operating when we consider whether we will renew those control order powers. I propose to reinforce that position by making it a specific requirement on the Secretary of State to consult him before making the renewal order.

Bill Cash (Conservative, Stone)

Will the hon. Lady give way?

Hazel Blears (Labour, Salford)

I am not giving way to the hon. Gentleman.

We now have a series of checks and balances in the Bill. We have a three-monthly report by the Home Secretary to Parliament about the measures taken. We have an annual renewal of the legislation. If we have derogated, we have an annual renewal of that derogation. We have an independent review, and as part of that the operation of the whole Act can be considered, including the appeal provisions. We have promised new legislation next Session, with pre-legislative scrutiny.

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

Before the hon. Lady completes this detail, will she confirm that when asked in the other place, the Lord Chancellor said that the Security Service had not advised the Government that it would be wrong to have a sunset clause in the Bill?

Hazel Blears (Labour, Salford)

Yes, I can confirm that. [Interruption.] I can also confirm that we think that the checks and balances in the Bill, with the independent reviewer, are sufficient and in fact better to achieve our purposes.

Bill Cash (Conservative, Stone)

Will the hon. Lady give way?

Hazel Blears (Labour, Salford)

I am not giving way.

We have said that we will produce further legislation to establish whether we can try to prosecute more people in the circumstances that we are discussing, but there are a small number of people whom we cannot prosecute through our traditional criminal justice system because of the danger to human sources, and the danger involved in revealing sensitive intelligence techniques. If there is a small number of people whom we cannot prosecute, we must have a system that enables us to control their activities so that we protect the safety of the country. I think that it is pretty clear now—

Bill Cash (Conservative, Stone)

On a point of order, Mr. Deputy Speaker. In our earlier proceedings, the Home Secretary gave me an explicit assurance that habeas corpus would apply in these circumstances. Is it not something which—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I think that the hon. Gentleman realises that that is not a point of order for the Chair, but an attempt to pursue the debate.

Hazel Blears (Labour, Salford)

I was trying to emphasise—although I do not think I need to do so—the importance and severity of the measures that we are considering. Let us suppose, for example, that we have intelligence about someone who is a real and serious threat, and that the information we hold might require us to reveal human agents or sensitive intelligence techniques. There is a real danger for us there. The question for us tonight is this: in those circumstances, what do we do? If we cannot prosecute, we must have a framework that enables us to control people.

We have a real choice: either we have control orders, or we allow people whom we cannot prosecute to walk free. Opposition Members have not come up with any suggestions. We need to know whether they support the idea of control orders. I think the answer is very clear: I think that the hon. Member for Beaconsfield (Mr. Grieve), in particular, opposes control orders in principle, and if we do not have control orders we face the very real prospect of—

Oliver Letwin (Conservative, West Dorset)

On a point of order, Mr. Deputy Speaker. I believe that I heard Ministers confirm that the security services had not given advice on the sunset clause. According to Wednesday's Hansard, the Prime Minister said:

"we are not prepared to accept . . . the sunset clause . . . it would be contrary to the strong advice given to us".—[Official Report, 9 March 2005; Vol. 431, c. 1510.]

Have you received any indication from the Prime Minister, Mr. Deputy Speaker, of an inclination on his part to come to the House and explain that statement?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I have had no such notice, and that continues to be a matter for debate.

Hazel Blears (Labour, Salford)

It is the advice of the security services that they want us to have control orders. Let me say this to Opposition Members. If there are people who are a real and serious threat to this country and we cannot prosecute them because that would mean revealing sensitive and dangerous intelligence, what do we do with them? At this stage, we have no indication that Opposition Members are prepared to support control orders that will protect our national security. I think that it is vital that we secure this legislation tonight and establish a framework enabling us to strike the right balance between national security and individual liberty.

These are real matters. This is not an academic debate—we are faced with real problems.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

The hon. Lady says that she wants the control orders. If she were willing to accept the amendments from the other place, she would have the control orders.

Hazel Blears (Labour, Salford)

I want to make sure that the system of control orders is practical, that it works, that it has the proper effect and that it has the support of the security services. On that basis, I ask the House to support our amendments and to reject the Lords reason.

Dominic Grieve (Conservative, Beaconsfield)

Once again, Mr. Deputy Speaker, we have an example of how the Government lack any frankness in their dealings with the House. The question that my right hon. Friend the Member for West Dorset (Mr. Letwin) asked about what the Prime Minister said classically illustrates how the Government gloss the truth to suit their convenience. Instead of coming to the House, asking frankly for measures deemed necessary and engaging in proper debate, the Government spend their entire time fast-tracking the process, putting out spin, deceiving the public and then asking us to rubber-stamp their activities.

Let us examine the three issues of contention that now appear to remain. First, the Minister for Crime Reduction, Policing and Community Safety has told the House that she cannot accept that the distinction between derogating and non-derogating measures should disappear and she proposes instead a most deliciously complicated further tier of bureaucracy in an attempt to avoid the issue. Let me tell the Minister that as a recipe for further legal challenges, it would take some beating. I ask myself why the Government are going to such absurd lengths to avoid doing the sensible thing that the other place has asked for—treating derogating and non-derogating orders identically.

If what the Minister says is right, the derogating orders that the Secretary of State is keeping as an "important reserve power" that he may have to use in extremis, are, on her own analysis, completely valueless. I simply do not understand why the Minister keeps on refusing to do the simple and straightforward thing—indeed, the very thing that the Government originally gave the impression to the other place that they were going to do, which is to treat derogating and non-derogating orders identically. There is no explanation for that other than the Government's absolute determination not to be seen to be amenable to reason. If that is an example of the Government's common sense that they want to convey to the public, it takes some beating. There is no justification for the distinction.

Let me remind the Minister what the hon. and learned Member for Redcar (Vera Baird) said about non-derogating orders:

"I do not wish to labour the point, but the penalties that can befall someone under clause 1 are extraordinarily intrusive and can transform a person's life. They include obvious interferences with freedom of movement, family life and freedom of association. Someone may be ordered not to speak to any member of his family and he may be told to move house, stop doing his business or job or to change his job. He has to agree in certain circumstances to tell people in advance what his movements will be".

She went on to say:

"That is a very serious interference with liberty."—[Official Report, 28 February 2005; Vol. 431, c. 744.]

She was correct and the Minister is wrong. I am sorry that the Minister has suborned the hon. and learned Lady. We stand on the basis—

Vera Baird (Labour, Redcar)

Do I look suborned, Mr. Deputy Speaker? The hon. Gentleman has to remember that if these powers, which can be intrusive exactly as I said, cross over into an intrusion on article 5, they will never be granted because the judge is now at the front. It would be an unlawful order and the judge would not grant it. Checkmate on that one, I think.

Dominic Grieve (Conservative, Beaconsfield)

That is a fascinating comment, but it is not what the hon. and learned Lady said last week. She cannot escape her own analysis, which was absolutely correct and which the Government would have done well to heed. If the Government would see sense and treat derogating and non-derogating orders identically, they would be doing justice to the people subject to the orders. They would also solve their current problem and go a long way to resolving all the issues before the House tonight.

I turn now to whether a review should be prepared by an independent reviewer or a group of Privy Councillors. It is obvious that a proper and full review by Privy Councillors would be better than one by a single, independent reviewer. The latter would merely be a document handed to the Government, while the former would be a major document handed to Parliament for consideration. Furthermore, under the regime proposed by the other place, the reviews would take place at regular intervals and enable the House to monitor events.

Charles Clarke (Labour, Norwich South)

indicated dissent.

Dominic Grieve (Conservative, Beaconsfield)

Does the Home Secretary wish to intervene?

Charles Clarke (Labour, Norwich South)

I should be happy to. The hon. Gentleman has completely failed to note that the independent reviewer will report to Parliament, not the Government, and that Parliament would debate his review. The amendment before the House means that when the renewal order is considered every year, it will be based on the independent review given to Parliament. That review will not be some Government thing on the side, as Parliament will examine it. As always, he simply does not understand what he is talking about.

Dominic Grieve (Conservative, Beaconsfield)

I understand that the last Privy Council report, chaired by Lord Newton, was ignored by the Government. I suspect that the Government do not want a Privy Councillors' report because they know that they will not be able to ignore it a second time. That is why I think that the House should demand it. There is no reason for not having such a report. The Government's insistence on their position is another example of them dancing on the head of a pin for no good reason. The House should reject that stand.

Finally, we come to the sunset clause, about which there is a fundamental difference between Opposition and Government. This Bill must be tolerated, but it is very badly drafted—and I might add that the hon. and learned Member for Redcar thinks that as well, as do many other Labour Members.

The Bill was passed in haste, without consultation or normal Committee and Report stages. This morning, we have had about nine minutes to consider important Government amendments. The Bill should die soon, and be replaced with something new that is passed in ordinary form. That is totally different from what the Minister proposes. The mechanisms that she proposes will mean that the legislation can be renewed again and again. It is not good enough to suggest that the two approaches are equivalent.

If the Government were honest, they would say, like the Prime Minister, that the Bill is for the medium term and that the country will have to bear it for the next 10 or 20 years, if this Government remain in office. Alternatively, the Government should accept the sunset clause. The sunset clause is a thoroughly sensible measure that would ensure that the House does its duty before 12 months are out. The Government should look at the alternatives to a measure that the Minister knows undermines civil liberties.

Charles Clarke (Labour, Norwich South)

indicated dissent.

Dominic Grieve (Conservative, Beaconsfield)

I give way to the Home Secretary, so that he can explain what he was mumbling.

Charles Clarke (Labour, Norwich South)

I am grateful for this opportunity, as I had not intended to intervene. I have a simple question for the hon. Gentleman, who is sitting next to the Leader of the Opposition. Given his view of this matter, will the right hon. and learned Gentleman commit his party to repealing this legislation in his election manifesto?

Dominic Grieve (Conservative, Beaconsfield)

The Home Secretary knows that we consider this legislation poorly drafted and bad, so the first thing that we will do when we get into office is to find a means of replacing it with something that allows the security—[Interruption.] Look, the Minister and his predecessor have spent the last 12 months with their heads buried in the sand in respect of the recommendations of Lord Newton. There are alternatives and they need to be considered, but the Government have not given the slightest indication of even engaging in that process. There is the question of prosecuting. There is the question of using intercept evidence. There is a question, if nothing else, if I may say to the Home Secretary, about putting in the things that at the moment he refuses to have in this legislation. The sooner we can get rid of control orders and this type of measure, the better. [Interruption.] Yes—the sooner we can get rid of measures such as control orders, the better for this country.

Tom Harris (Labour, Glasgow Cathcart)

rose—

Huw Irranca-Davies (Labour, Ogmore)

rose—

Dominic Grieve (Conservative, Beaconsfield)

But as I said to the Minister—I said it two weeks ago and I say it again—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sorry to interrupt the hon. Gentleman. The House must come to order. We must hear both sides of the argument clearly.

Dominic Grieve (Conservative, Beaconsfield)

As I have said before to the Home Secretary, we are prepared to accept that control orders may in the short term be necessary, but at the moment we do not have the input from the security services that the Minister has, which is why we have spent the last week trying to improve the orders to remove those aspects that we consider intolerable. The Minister has not been willing to engage in that process, and I greatly regret that. He is showing no signs of doing so tonight.

Huw Irranca-Davies (Labour, Ogmore)

On control orders specifically, the very fact that the security services and the police forces are asking for this measure seems to suggest that, however imperfect, we are trying to deliver a vehicle that is fit for purpose. What the hon. Gentleman is suggesting is that in nine months we scrap the vehicle entirely, as opposed to looking at it, revising it and renewing it. I suggest to him that the Government have at this stage of the morning bent over backwards to try and comply with some moderate way forward on this and he is now setting his face against it, and on Monday morning we may well have terrorists walking the streets of this country.

Dominic Grieve (Conservative, Beaconsfield)

The alleged terrorists are going to be walking the streets tomorrow morning, irrespective of whether this legislation is passed or not and that is a measure of the Government's failure to address this issue over the last 12 months.

It is a straightforward issue. If the Government believed that civil liberties were important in this country they would consent to a sunset clause, if only to come back in 12 months' time and explain why, reluctantly, they had to continue with these measures. The fact that they will not taints the entire way in which they have approached this matter. I am left with the unpleasant sensation that the Government—[Interruption.] It is unpleasant, because I would much rather have had the Government persuade me of the necessity of these measures. I am left with the unpleasant sensation that the Government have been playing the cheapest form of politics with this matter, and we on this side of the House will vote to uphold the Lords amendments.

David Heath (Liberal Democrat, Somerton and Frome)

In my experience it is very rare that we have a rational debate at this time in the morning, and I think that the experience of the last few minutes has proved that point. It is unfortunate that yet again we are having to face an abbreviated debate on a matter of huge importance, and that we seem to be making so little progress in what ought to be a substantial debate on how we can improve the Bill.

The Minister says that no one has come up with any other proposal to meet her requirements. May I invite her to read Lords amendments Nos. 1, 8 and 12—Lords amendments ad nauseam that do the job that she has asked Parliament to do, which is to provide an adequate response to the agreed threat of terrorism and an adequate response to the needs that the security services and the police have identified? They provide her with the control orders that she has asked for, and they provide a court procedure that is adequate to meet the needs and the balance that the Home Secretary has suggested is the essential part of balancing the threat with the commensurate judicial procedures. All those things are in place, and she and her right hon. Friend have rejected them, so we are left debating the same topics, time and again.

We have made some movement—I accept that, and the Minister knows that I have welcomed it—but we are left with these clear distinctions between our positions. Let us be absolutely clear what they are. First, we have the arbitrary distinction between derogating and non-derogating orders, which the Government perversely insist on, despite the advice of not only those in another place who have looked at this and who have a very clear view that there is no such arbitrary distinction, but Labour Members sitting behind her now who have indicated their complete dissatisfaction with that arbitrary distinction. So there is no distinction, yet we have a different judicial process.

Dave Watts (Labour, St Helens North)

Can the hon. Gentleman tell us whether any of the Lords or lawyers that we are talking about will be held accountable for any terrorist threat?

David Heath (Liberal Democrat, Somerton and Frome)

I can tell the hon. Gentleman that every Member of this House and every Member of the other House will be held responsible if we get this law wrong. If he believes that any Member of this House or any Member of the other House does not hold that as their prime responsibility, he is very mistaken, and I challenge him to find anyone who does not. The fact is that if we get it wrong, and if we produce bad law that creates resentment among many communities in this country, we are creating the circumstances in which terrorism breeds and increasing the dangers to the people of this country. That is what he needs to remember.

Kevin Brennan (Labour, Cardiff West)

On the sunset clause, Baroness Hayman, who moved the 12-month clause, has said in another place that, as the elected House has rejected it, the unelected House should now give way. Does the hon. Gentleman and his party agree with that?

David Heath (Liberal Democrat, Somerton and Frome)

I do not know whether the hon. Gentleman has understood the fact that we are elected. This is the elected House, and we reject the view of the Ministers.

Kevin Brennan (Labour, Cardiff West)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

We reject the view of the Government that there should be no end to the suspension of habeas corpus and the substantial departure from our traditional laws.

Kevin Brennan (Labour, Cardiff West)

Just to clarify this for the hon. Gentleman, Baroness Hayman, who moved the 12-month sunset clause, has said that the unelected House should give way at this point to the views of the elected House. [Interruption.] That is what she said. Does he agree that that should be the case and that the elected House should have its way—yes or no?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman should be very careful with this. He is quoting in aid a Labour Member of the other House who made a perfectly sensible proposition that was agreed by 250 peers and disagreed to by but 100 peers. That view has been reinforced by the most recent vote of the House of Lords, and she abstained. I believe she was right.

I say again to Ministers that I welcome the small amount of movement this evening. Let us get back to the serious content of the amendments. I welcome what the Minister said about the independent reviewer, who will have a crucial role to play in the process. As she knows, we would like a Privy Council Committee in addition to the independent reviewer, because we believe that that could do a better job of deriving the legislation we need to fight terrorism effectively. It has been admitted from the Dispatch Box in another place that this measure is not adequate, that we need new laws to fight terrorism properly, and that that will be the first responsibility of an incoming Government, of whatever persuasion, after the general election. It is an essential and urgent task. That makes it even more bizarre that the Government are prepared to accept this inadequate legislation—described clearly as inadequate from the Dispatch Box in another place and implied by Ministers in this place, as well—and that there is no proposal to make that legislation come to the end of its natural life next year so that it can be replaced by better legislation.

Let us look at amendment (a), which the Minister did not greatly amplify—[Interruption.] All those Members who jeer and say that they will always reject a sunset clause should note that 33A begins:

"Except so far as otherwise provided under this section, sections 1 to 6 expire at the end of the period of 12 months beginning with the day on which this Act is passed."

The House has gone quiet. That is a Government amendment saying that the Act will expire. The proposed new clause goes on to qualify that provision in ways that I find unacceptable, because they do not actually do the job. But let us not pretend that there is a great divide of principle between the Government and the Opposition on what happens to terrorism legislation. The Government have given the game away.

I close with this point. Earlier, my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) referred to the frank, and hardly surprising, comment made by the Lord Chancellor in another place. He was asked directly whether the security services had recommended that the Bill should have no sunset clause, and he said "No"—in frank contradistinction to what the Prime Minister said on Wednesday at the Dispatch Box in Prime Minister's questions. It was nonsense when the Prime Minister said it then. The Lord Chancellor has let the cat out of the bag. There is no argument that we should not have the clause. We should. That is why it is right that the amendments should go back to another place—[Interruption.] The Minister is shaking her head. Perhaps we should have an answer. Will she tell us? Have the security services recommended that or not?

Hazel Blears (Labour, Salford)

I have already made it clear—[Interruption.] Yes. The security services have told us that they want control orders. They have not said that they want a sunset clause—[Interruption.] I say to the House that the Government are proposing the legislation. We are trying to make sure that it does what the security services want us to do, which is to provide control orders that will protect the national security of this country. That is what the Government are trying to do. We are not saying that every clause we propose is demanded by the security services, but I am saying that the security services want us to have control orders. That is why I was asking the hon. Member for Beaconsfield (Mr. Grieve) whether the Conservatives support control orders.

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Mr. Deputy Speaker. As page 74 of "Erskine May" makes clear,

"it is of paramount importance that ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity".

In the light of what has occurred, when the Prime Minister gave a clear account that the security services had said that it was against the sunset clause, yet we now know from the Minister that that is not the case, clearly the Prime Minister must come here and apologise to the House. He must correct the information—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Gentleman will know that the Chair has no power to command the presence of any particular Minister at any particular time. I suggest to the House that these are matters of judgment, which will continue to be—[Interruption.] Order. They will continue to be at the centre of debate. These are matters for the House to decide.

David Heath (Liberal Democrat, Somerton and Frome)

The House can draw a very clear moral from this: never believe a thing that the Prime Minister says he is told by the security services. We have too much experience of this now.

The Government are entitled to have their legislation to fight terrorism, but they must have the right legislation. That is what all of us who are sensibly engaged in this debate are determined to achieve by the end of this evening or tomorrow. I believe that another place will have another go at this. Eventually, the Government will see sense and we will have that sensible legislation.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I want to make one point. The hon. Member for Somerton and Frome (Mr. Heath) seemed deliberately to misunderstand the points made in interventions by my hon. Friends. Earlier, the hon. Member for Beaconsfield (Mr. Grieve) spoke about a serious interference in liberty. I went through to hear the debate in the other place and the— [Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I say to the House that levity has its place, but probably not at six minutes past 2 in the morning.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

What we are seeing from Opposition Members is the effect of the grape, rather than anything else. I remind the House—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I do not think that the right hon. Gentleman's remark helped the situation. Let us get back to the central issue of the debate. I say to the House, let every right hon. and hon. Member be heard properly.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I am grateful to you, Mr. Deputy Speaker.

The hon. Member for Beaconsfield spoke about a serious interference in liberty. This is a serious matter. As I said, I went through to hear the Lord Chancellor, and I want to make just one point. The Lord Chancellor pointed out to the other place that it had asked the Government to make five changes in the Bill. The Government had accepted four of those five changes—80 per cent. of what the House of Lords asked us for. The Lord Chancellor went on to say, "Accept the primacy of the House of Commons." For a third time, the House of Lords rejected the primacy of the House of Commons. That is not a serious interference in liberty; it is a serious interference in democracy.

John Gummer (Conservative, Suffolk Coastal)

Earlier in our debates, the Home Secretary made a perfectly reasonable plea, which was that in these serious matters of counter-terrorism, the Government have a right to ask for the trust of the House of Commons in trying to come to their conclusions. That is why I say to the Home Secretary that it is with the heart of that trust that we are concerned tonight. The sunset clause is so important because we cannot trust the people who are asking for our trust.

I merely say to the Home Secretary that for him to pray in aid the security services, and for it then to be proved that the security services have not asked for one of the key things that he implied they had asked for, and that the Prime Minister said they had asked for, is to remove the trust of this House.

Charles Clarke (Labour, Norwich South)

I have in front of me the Hansard report of the references that are being discussed. The Prime Minister said:

"I am afraid that we"—

meaning the Government—

"are not prepared to accept either the amendment on the sunset clause or the other amendment voted for by the House of Lords, and which the Conservatives in the House of Lords backed, to change the burden of proof. That would not be wise; it would be contrary to the strong advice given to us by our security services and our police, and I am simply not prepared to do it."—[Official Report, 9 March 2005; Vol. 431, c. 1510.]

That is what he said. The security services and the police have advised us categorically and clearly, as they should do, on measures. They have advised us quite explicitly that we should not change the burden of proof for non-derogating control orders. The reason why they have given that advice is very simply because they know, as do we, that there are certain people who are dangerous to the country, but could not be controlled if such a situation existed.

Michael Howard (Conservative, Folkestone and Hythe)

On a point of order, Mr. Deputy Speaker. The House is this morning debating matters of the most fundamental importance to our country. They relate to the protection of our country from the threat of terrorism, and the fundamental liberties of the people of this country. It is essential for the future confidence in this House, and the political system as a whole, that these debates take place on the basis of the truth.

On Wednesday, in answer to a question from me, the Prime Minister said that it would not be wise to accept either the amendment on the sunset clause, or the other amendment to which the Home Secretary referred, because that would be

"contrary to the strong advice given to us by our security services and our police".—[Official Report, 9 March 2005; Vol. 431, c. 1510.]

It is now crystal clear that that is not the case. Is it not essential, in the interests of the body politic of this country, that the Prime Minister now come to the House to withdraw a statement that the Minister for Crime Reduction, Policing and Community Safety this morning, and the Lord Chancellor earlier, said was not an accurate statement of the position?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I have given the Leader of the Opposition some latitude to put that on the record. However, I must say to the right hon. and learned Gentleman that the Chair has no power to command a Minister to attend the House—[Interruption.] Order. I do not need the advice of hon. Gentlemen. The Chair cannot intervene to cause a Minister to appear. The right hon. and learned Gentleman has made his point, but there is nothing that the Chair can do to advance it.

Charles Clarke (Labour, Norwich South)

Further to that point of order, Mr. Speaker. Is it in order to ask the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) to read out verbatim the statement to which he referred, in every respect, and in particular to ask him to read out the Prime Minister's observation that the suggestion of a change to the burden of proof was not recommended by the security services in such a way? Let the right hon. and learned Gentleman read out the whole Hansard quotation.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

We are now clearly moving from a point of order on to a point of debate, but I am mindful that we are still attempting to listen to the contribution of the right hon. Member for Suffolk, Coastal (Mr. Gummer). I think that we would do better to return to the mainstream of the debate.

John Gummer (Conservative, Suffolk Coastal)

In column 1510, the word "either" refers to both those issues—that cannot be gainsaid. However, even if there were a slip of the tongue and that was not quite what the Prime Minister meant, if he respected the seriousness of the issue he would be here to listen to our debate and defend the way in which he had expressed himself. The problem is that on previous occasions the Prime Minister has appeared not to tell exactly the truth in certain circumstances.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I think that there is a more felicitous way in which the right hon. Gentleman could try to make his point.

John Gummer (Conservative, Suffolk Coastal)

I regret my infelicity and I withdraw any indication that the Prime Minister meant to say something that was untrue. I shall use more felicitous phrasing: there are many people both outside and inside the House who have misunderstood what the Prime Minister said, including the Home Secretary.

Charles Clarke (Labour, Norwich South)

On a point of order, Mr. Deputy Speaker. I am grateful to you both for clarification and for seeking a withdrawal of the comment by the right hon. Member for Suffolk, Coastal (Mr. Gummer). I hope you agree that it is important to the House that he withdraw unequivocally the suggestion that the Prime Minister made that interpretation.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

No one should accuse any right hon. or hon. Member of untruthfulness or deceit. The right hon. Member for Suffolk, Coastal (Mr. Gummer) has withdrawn any suggestion that he was making such an allegation. What is at issue is a matter of judgment—there is no question but that it is a matter of contention, and is not something on which the Chair can rule.

John Gummer (Conservative, Suffolk Coastal)

When a misunderstanding of such importance has occurred—indeed, it has clearly arisen on both sides of the House—it must be put right. That becomes more necessary the graver the issue. That is why I want to answer a comment made by the right hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes). Everybody in the House is trying to do a very difficult thing and protect the nation against terrorism while at the same time upholding human rights so that terrorism does not grow among individuals who have legitimate grounds for believing that their human rights may have been invaded.

It is legitimate for us to disagree about how to deal with these things, and it is therefore proper for the Government to make sure that if their judgments turn out to be wrong, we have a ready opportunity to put that right. That is why the sunset clause is so important. It gives the House an honourable opportunity: if what is done for all sorts of reasons in haste and with many misunderstandings—I am not making any allegations—turns out to be less than the best, we will assuredly and without peradventure have a chance to get it right. People who accuse Conservative Members of being anything other than staunchly opposed to terrorism are wrong. We are so strongly opposed to terrorism that we want the best legislation that we can get, we want to make it work and we want a Prime Minister who can be trusted not to be misunderstood by his own Home Secretary.

Edward Garnier (Conservative, Harborough)

This debate would have been better informed if we had had longer to debate the serious issues before us—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I can only say to the hon. and learned Gentleman that I am sorry that the debate had to end on a climactic note.

Michael Howard (Conservative, Folkestone and Hythe)

On a point of order, Mr. Deputy Speaker. The Home Secretary invited us to read the passage from Hansard that led to the previous exchanges. This is what the Prime Minister said—[Interruption.]

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

Order. [Interruption.] Order. I will hear this point of order.

Michael Howard (Conservative, Folkestone and Hythe)

The Prime Minister said:

"I am afraid that we are not prepared to accept either the amendment on the sunset clause or the other amendment voted for by the House of Lords, and which the Conservatives in the House of Lords backed, to change the burden of proof."

He said "either" and "or". He continued:

"That would not be wise; it would be contrary to the strong advice given to us by our security services and our police, and I am simply not prepared to do it."

That was clearly referring to both the amendments.

There is another quotation—[Interruption.]

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

Order. The right hon. and learned Gentleman must be very clear—[Interruption.] Order. This is a very serious matter. The right hon. and learned Gentleman must be very clear about making a point of order that the Chair can deal with.

Michael Howard (Conservative, Folkestone and Hythe)

I have to lay the foundations for it. There is another quotation from Hansard. At column 1511, the Prime Minister said:

"We have made concessions that we think are reasonable; we will not make those that are against the direct advice that we are receiving."—[Official Report, 9 March 2005; Vol. 431, c. 1510-11.]

The Prime Minister is in the precincts—he voted in the previous Division. Is there any precedent for a Prime Minister who is present in the precincts of this Palace, and against whom such accusations have been made, to fail to have the courage to come to the Dispatch Box—[Interruption.]

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

Order. I understand the right hon. and learned Gentleman's point of order but it only adds to a point of order that has already been made this evening. Everybody in the Chamber, and those outside, will have heard the point of order. The Chair has no responsibility for bringing Ministers or Prime Ministers—[Interruption.] Order. I repeat that the Chair has no responsibility for bringing Ministers or Prime Ministers to the House. The right hon. and learned Gentleman's point is on the record and the House must make its own judgment about it.

Charles Kennedy (Liberal Democrat, Ross, Skye and Inverness West)

On a point of order, Mr. Deputy Speaker. Given your ruling of a moment ago and the definite ambiguity, to say the least, that exists, would it be in order for you to request that the Prime Minister or the Government place the available evidence in the Library, so that an objective judgment can be formed since, clearly, the Prime Minister is not coming to the House to explain?

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

I can only repeat what I have already said. The Chair does not have responsibility for those matters and cannot insist on them. The Chamber will have heard the right hon. Gentleman's points, and those inside and outside it will have to make their judgment about what has happened this evening.

Hazel Blears (Labour, Salford)

On a point of order, Mr. Deputy Speaker. I want to make it clear to the House—[Interruption.] It is an important matter for the record of the House. The words that the Leader of the Opposition read out are followed by several statements by the Prime Minister. He said:

"The point of principle is on the control orders and the burden of proof."—[Official Report, 9 March 2005; Vol. 431, c. 1511.]

He goes on to say—[Interruption.]

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

Order. [Hon. Members: "Where is he?"] Order. I am reluctant to stop the Minister in mid-flow but all those matters—

Hazel Blears (Labour, Salford)

rose—

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

Order. All those matters are becoming a continuation—[Interruption.] Order. There are serious matters before the House and it behoves us to behave properly when we discuss issues of such gravity. All that is happening now is an extension of the previous debate. [Interruption.] Order. I do not intend to take any more points of order from either side of the House. I shall move to the next Division.

Mr. Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour, pursuant to Order [9 March].

Lords amendments: 27, 31 and 32.

Hazel Blears (Labour, Salford)

On a point of order, Mr. Deputy Speaker. I just want to make it clear that when the Prime Minister was responding—[Interruption.]

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

Order. I said earlier that we are debating a very serious matter. I have already heard two points of order from the Opposition side of the House—[Interruption.] Order. The Minister wishes to make a point of order and must be heard.

Hazel Blears (Labour, Salford)

Thank you, Mr. Deputy Speaker.

I simply want to make it clear that when the Prime Minister was responding to the issue about the sunset clause, he said:

"I do not agree with the sunset clause, for this simple"—

[Interruption.]

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

Order. I do not want to repeat myself—[Interruption.] Order. The House must listen to the Minister.

Hazel Blears (Labour, Salford)

The Prime Minister said:

"I do not agree with the sunset clause, for this simple reason: it is important that we send a clear signal now that this legislation is on the statute book and will remain on the statute book."—[Official Report, 9 March 2005; Vol. 431, c. 1511.]

He made no reference to the advice of the Security Service. [Interruption.]

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

Order. I think that the House—[Interruption.] No, I am not taking any more points of order. It would be a good idea if we moved on to the next Division.

Lords amendment: 33D

The rest of the debate is in Hansard.