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Mr. Tony McWalter (Hemel Hempstead): In that case, will the hon. Gentleman support my amendment to delete these clauses entirely—including clause 39—so that they can be given the careful attention that he has recommended?

Is the hon. Gentleman aware that when I raised the matter with the Home Secretary in the House a couple of weeks ago, he expressed complete incomprehension in regard to claims made by me at that time, and made today by, for instance, the right hon. Member for Suffolk, Coastal (Mr. Gummer) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)?

Mr. Letwin: Although we could argue about clause 39, on religiously aggravated offences, I go along with the rest of the hon. Gentleman's view. I think that it is extremely significant that the Home Affairs Select Committee has taken the view that

I hope that the Home Secretary will heed those remarks from a source that is not partisan and that he will see fit to withdraw those clauses.

Simon Hughes: It may be helpful for the hon. Gentleman to have confirmation that, having talked to the

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Christian and other faith communities, we believe that the strong preference of all faith communities is the one that has been expressed by him and by the hon. Member for Hemel Hempstead (Mr. McWalter). The faith communities believe that we should legislate carefully and separately on the issue and that we should not mix debates on terrorism with those on how we protect people's faith and their right to criticise faith. That view should be a support for the hon. Gentleman and his colleagues. It is also held by a very large coalition which I detect may find favour in a few days in the other place.

Mr. Letwin: I wholly agree with that, and our soundings among the same communities have produced the same results. I also think that the hon. Gentleman has, by allusion, made an enormously important point. To confuse protection of any minority, but particularly Muslim minorities, with counter-terrorism is itself to make an elision that is dangerous in the current circumstances. Muslims are not, as the Home Secretary and the Prime Minister have freely and frequently acknowledged, terrorists. Muslims are Muslims—they are from a religion—and terrorists are terrorists. We do not want to be discussing the one in the same breath as the other.

Part 4 contains the internment clauses which have caused most of the scintillating debate today. If these clauses are to remain in the Bill—in a moment I shall give the reasons why I believe that there is a much better route to use than that type of internment—they will need amendment. However, I think that the Home Secretary may have started to move in directions that are welcomed by Opposition Members.

Clause 21(1)(a) currently requires the Home Secretary merely to believe that the person in question who is to be interned is a risk to national security. In the context of that inevitably draconian power, there should surely be at least a requirement for substantial grounds for belief. I think that that chimes with the Home Secretary's welcome statement earlier today that there would be some form of reasonableness constraint. I should like a reasonableness constraint allied to substantial grounds.

Mr. Marshall-Andrews: Does the hon. Gentleman agree that desirable though such provision may very well be, and although such provision may well be included in the Bill, if judicial review remained—and there seems to be absolutely no reason why it should not remain— the divisional court would import a question of reasonableness into the test in any event?

Mr. Letwin: The hon. and learned Gentleman moves me on to my next point, on judicial review. Perhaps unlike him, I sympathise with the Home Secretary's desire to exclude from consideration by judicial review the decision made by the Home Secretary himself.

Mr. Hogg: On the merits.

Mr. Letwin: Yes. I believe that the Home Secretary fears that, if the merits of his decision are subject to

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judicial review, the merits will be subject to judicial opinion. He believes, and I have some sympathy with this line of thought, that it is the Home Secretary of the day—

Mr. Marshall-Andrews rose

Mr. Letwin: I promise the hon. and learned Gentleman that, if he can contain himself, I am about to make a point that will fully expose my view. Then I shall be happy to enter debate with him.

The Home Secretary believes that it is the Home Secretary of the day, in the democratically elected and accountable Government, who should decide, on the merits of the case, whether the individual concerned is a danger to our national security. I can sympathise with that view, although with the profoundest doubts and hesitations.

However, I cannot sympathise with the further leap that the current text takes, of entirely excluding judicial review. The Special Immigration Appeals Commission was set up not for the purpose of determining whether a person should be detained indefinitely, but for other and lesser purposes. Although, as the Home Secretary rightly says, that body was originally established with a view, de facto, to reviewing judicially decisions made by the Home Secretary, it is not constituted in a manner that gives sufficient assurance that by itself it will always act properly.

The Lord Chancellor sets out the rules for that body, and we want at least an amendment that makes it possible to test by judicial review whether the body followed its own rules. That must be the absolute bare minimum of procedural constraint. To take a ludicrous example—

Mr. Blunkett: I should hate the hon. Gentleman to embark on a ludicrous example before I was able to challenge him on a less ludicrous one. Surely the right of appeal to the Court of Appeal and, if given leave, to the House of Lords on a point of law is itself a point of law relating to whether the SIAC process has been observed properly by the High Court judge and those sitting with him.

Mr. Letwin: No. I have taken legal advice on the matter—as, obviously, has the Home Secretary—and we shall argue it out in Committee. As I understand it, an appeal on a point of law would not lie if there was a procedural irregularity in the conduct of SIAC. To take what I hope is a ludicrous example—although it has happened in English courts—if the person presiding over the commission on a given occasion were asleep during its proceedings, I understand that the Home Secretary would debar legal review of the decision to put someone into an English jail indefinitely, notwithstanding the fact that the person presiding was asleep. That needs reviewing.

Mr. Marshall-Andrews: May I say, slightly painfully, that in this respect I agree entirely with the Home Secretary? That would be a matter of law, and would clearly be covered. The real problem surely relates to an attack on the merits, on which a Minister decides, on the basis that someone will be incarcerated indefinitely. For that not to be reviewable is abhorrent. Does the hon.

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Gentleman not understand that in judicially reviewing a Minister's decision, the divisional court does not say whether it agrees or disagrees with the Minister? It must find that no reasonable Minister would have come to that conclusion. In my experience that has always been so: I cannot think of a single case in which the divisional court has not dutifully followed that principle.

Mr. Letwin: The hon. Gentleman makes a powerful case, to which we shall attend and, perhaps, return in Committee. The question is whether the judicial review might be restricted to a kind of reasonableness that genuinely does not seek to judge whether the Home Secretary was right. That elision increasingly worries Members on both sides of the House. If the definition could be genuinely restricted to the case of reasonableness as it was originally understood, Opposition Members would have considerable sympathy for such an amendment.

Mr. Hogg: I understand why my hon. Friend is reluctant to subject to judicial control the Home Secretary's decision about whether someone is likely to be a threat to national security. That is a qualitative judgment and is difficult to make, and therefore rather difficult to subject to appeal. The question whether someone is associated with a terrorist organisation, or whether reasonable grounds exist to suspect that he or she is, is ultimately a matter of fact. I put it to my hon. Friend that there is a strong case for that issue to be the subject of an appeal and review procedure.

Mr. Letwin: My right hon. and learned Friend makes another important point, and I am more than prepared to consider that, too, in the 24 hours that are available to us. We may return to it in Committee. Indeed, I have no doubt that he will want to return to it in Committee, by which time we may be willing to support him.

Mr. McNamara: Those are all very fine legal points and distinctions, but for many of us the important question is whether the person who is to be incarcerated should know the reasons and evidence on which that incarceration will rely. We are saying that we will have to depend on the good faith of my right hon. Friend the Home Secretary. I have great respect for my right hon. Friend, but there have been other Home Secretaries, in other circumstances, whose objectivity has been more coloured by the need to retain popular support than by the interests of justice and the individual. It is because we believe that a person should know the evidence that is being used to justify his incarceration that we object to this part of the Bill.

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