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11.25 pm

Norman Baker (Lewes): May I begin by congratulating the hon. Member for Nottingham, North (Mr. Allen) on his contribution? If he is truly one of the Government's supporters, I suggest that they are in some considerable difficulty with the order.

I find it deeply depressing that, so soon after the enactment of the Human Rights Act 1998, we are already being asked to approve a derogation from it. Furthermore, we were asked to give our approval when an order had already been introduced and before this debate. We must consider the order in only an hour and a half, late on a Monday evening, and before Royal Assent is given to the Anti-terrorism, Crime and Security Bill. The Minister confirmed in response to an intervention that derogation will still stand even if the Bill is refused Royal Assent.

The Government rightly won credit for introducing the Human Rights Act 1998. In those heady days, we were even assured that the Act was not a ceiling, but a floor. Tonight, it is not even a floor. The Home Secretary is proposing that the state should have the power to lock up individuals, in theory for up to five years, without charge, trial or even the right to see or hear the evidence, such as it is, against them. We are told by him that the law will be used only against a handful of people—maybe about 20 of them—as if that somehow makes it all right.

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The liberty and rights of one are the liberty and rights of us all. If we are to protect our historic rights, we must when we consider legislation have regard to its impact not on the majority, but on the minority and the irksome, unpopular and different, even if they are not British.

Hon. Members throughout the House are uncomfortable with the idea of effectively reintroducing internment. As the hon. Members for Hull, North (Mr. McNamara) and for South-West Devon (Mr. Streeter) mentioned earlier, it might have unforeseen and unwelcome consequences. Indeed, it might provide a recruiting ground for the very people whom the Home Secretary wishes to contain and neutralise. There must, therefore, be a very good reason to introduce the order. In law, the Home Secretary needs to demonstrate that we are in a time of war or that another public emergency is threatening the life of the nation. Where is this emergency? I do not see it. That point was made very well by the hon. Member for Stoke–on–Trent, Central (Mr. Fisher), whom I forgive if he means by normal life the fact that Stoke knocked Lewes out of the FA cup yesterday. Surely, an emergency is an invasion, a barrage of bombing, a mass poisoning of the water supply or something rather more tangible than what Ministers have so far described. Where is this emergency? Is not it the truth that the Home Secretary wanted to introduce the new power and had to argue that there was a public emergency as is defined in law, as that was the only way of introducing it in anything approaching a legal manner?

Now we are told that the Home Secretary cannot share with us the information that justifies his position. I accept that some information from our security services must remain secret. However, if he wants to convince the House that this drastic step is the only way forward, he will have to do better than simply to say, "Trust me." I will trust him if he asks to borrow a tenner from me. In fact, I will trust him a good deal, as he is a rather trustworthy fellow and a decent human being, but I will not trust him when he tells me that he has to lock up people without charge or trial, potentially for years, and that we in this House cannot be told why.

The Home Secretary has consistently failed to explain why this drastic legislation is needed in this country, when no other European country has announced an intention to introduce such measures. Many hon. Members have made that point today and no answer has been given by him or any Minister. The best that he could do was suggest to the Joint Committee on Human Rights that some other European countries might be thinking about introducing the measures—which countries, we are not sure. Again, we are asked to trust him.

I find it slightly surprising—I put it no higher than that—that after all the powers that successive Governments have taken unto themselves in recent years to deal with terrorism, we still apparently need yet more emergency legislation and yet more draconian legislation. Surely if an individual has committed or is plotting a terrorist offence, there are existing laws under which he can be charged through our normal legal procedures. I presume that as we are considering only a handful of individuals, they are subject to continuous surveillance by our security services. Cannot they find evidence that will stick in a court of law, with proceedings held in camera if necessary?

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If the inadmissibility of wire taps is a problem, as the hon. Member for Lagan Valley (Mr. Donaldson) suggested earlier, let us reconsider them if the alternative is to lock someone up without trial. We are being asked to lock up the people against whom there is insufficient evidence to secure a conviction in the courts. Do not the Home Secretary and the Minister find that worrying?

The Home Secretary seems keen to eliminate the courts—clause 29 of the Bill is entitled "Exclusion of legal proceedings". My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) referred to that earlier. Are we here to defend or attack civil liberties? Why is the Home Secretary so afraid of judicial review? Is it because he anticipates that the evidence against those whom he wishes to incarcerate for up to five years might be so flimsy that no judicial process would uphold it? To emphasise my hon. Friend's point, if clause 29 were omitted, would derogation be required? The Minister should deal with that point later if not today.

The Home Secretary's case for justifying his internment proposals is far from sufficient. He also falls short on the safeguards. The alleged terrorists—who remain "alleged" until we have proof that they have committed an offence—will not have the right to know the details of the evidence that has caused them to be accused, to choose their legal representation or to appeal, apart from on a point of law.

Furthermore, the vehicle that the Home Secretary chose to handle the cases was never meant for the specific road that we are considering. The Special Immigration Appeals Commission was set up to deal with appeals against deportation, not extended incarceration. Even the United States, the country directly attacked on 11 September, has limited itself to a much shorter detention period, as the hon. Member for Nottingham, North said.

Like other hon. Members, I refer the Home Secretary and the Minister to paragraph 30 of the report by the Joint Committee on Human Rights, on which I am proud to serve. It states:

Why is the Home Secretary prepared to ignore that? The Minister has said nothing to convince me that the measure is anything other than flawed.

The Home Secretary proposes a step too far and a dangerous erosion of fundamental liberties, which he and others say that they are trying to defend from terrorists. We may be at risk from terrorists, but the civil liberties of this country are more at risk from the Home Secretary. Liberal Democrat Members will vote against the order, and I urge other hon. Members to do the same.

11.33 pm

Vera Baird (Redcar): I want to raise at greater length a point that I made to my hon. Friend the Minister earlier to ascertain whether I can be helped out of my current

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state of confusion. As I understand it, the specific problem is that article 5.1(f) authorises the detention of a person against whom

or extradition. That is fine. The Home Secretary says that he will unlawfully detain somebody if, after taking him in and going through due process to deport him, he is unable to send him to his country for fear of torture and cannot find a third country. Surely the detention will only then become unlawful. That is common sense, and I know of no English or Strasbourg case against that.

While the Home Secretary is going through due process and searching for a third country, he is taking action

during which detention is permitted under article 5. When the Home Secretary is stumped, boxed in, has nowhere to go and can do no more, he cannot be described as "taking action" and the detention becomes unlawful.

Mr. Chahal, a Khalistani separatist, had been detained for six and a half years by the time the European Court of Human Rights said that if deportation proceedings were not prosecuted diligently, the courts could say that the detention may have been for too long.

That judgment seems to make it clear that, at the outset, the detention of a person such as Mr. Chahal—a suspected terrorist who could never have been sent to the Punjab, but who was none the less detained with a view to his ultimate deportation to somewhere—was lawful. It was lawful all the time that the problem of finding him somewhere to go was being worked on, and it remained lawful right up to the time when nowhere could be found. Does not that make it clear that foreign nationals suspected of terrorism can already be arrested and lawfully detained? That lawfulness will continue as long as real efforts are being maintained to go through due process, or to find such people a place to go.

Furthermore, that lawfulness may simply never run out. Times change; people might be able to go to countries in six months' time that they cannot go to now. A third country that is not available now might be available in six months' time. The political climate in the suspect's homeland might change, enabling him to return there. The lawfulness of the detention will not, in any event, run out on its own, at a particular point in time. It will run out only when a suspect brings an action to a court and asks for his detention to be declared unlawful. The Home Secretary could then be given more time to find a place for him to go, as happened in the Chahal case. It was six and a half years before that detention became unlawful.

On that basis, I wonder whether we need to derogate at all. The Bill's sunset clause will apply only to the next 18 months. There is certainly no need for dangerous foreign nationals to be on the streets, as I was shocked to discover that the man at the top of the Home Secretary's hit list is—if a report in The Observer is right—when he could be subject to detention now if he is so dangerous. I do not understand why that is not happening. It seems entirely consistent with what the courts have decided, and I seek assistance from the Minister and an answer to the question: if people are dangerous, why are they not being detained now?

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11.37 pm

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