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David Davis: I think that the right hon. Gentleman has restated my view. I made the point about 14 cases. Although this depends on something of which I am not certain—the level of evidence on which the Home Secretary's judgment is based—the Home Secretary said earlier that he set higher hurdles than would apply in a normal court case. If that is true, that should resolve the issue for all 14.

Mr. Hogg: Will my right hon. Friend remind himself, however, that at the end of the day what the Home Secretary is considering is information given to him by the intelligence services? The truth is that they are often wrong, and they were desperately wrong about Iraq. I am very uncomfortable about people being deprived of their liberty on the basis of intelligence information that will always be uncertain and will never be the subject of any certain verification.

David Davis: My right hon. and learned Friend is exactly right. He and I have both been recipients of such information with respect to Iraq in our previous

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incarnations, and I suspect that we both saw the errors along the way. That is why a judicial process—a process of justice—is a better process. That is why there should be a process of challenge. That is why the Newton committee's proposal of an examining magistrate, which allows the examining magistrate, as I understand it, to establish not just when there is incriminating evidence but when there is exculpatory evidence—the very reason lawyers are usually allowed to forage among the evidence—is an important addition. If that could be put in place, it would be an excellent replacement for part 4.

Mr. Blunkett: I merely seek clarification. Obviously the Butler committee will do its work in relation to Iraq. As for the intervention from the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the intelligence services, I want to make it entirely clear that we have absolute confidence in the Security Service. We also believe that following the establishment of the joint terrorism and analysis centre, which will be led by the Security Service, the pulling together of information from the Secret Intelligence Service, GCHQ and the Defence Intelligence Staff will be undertaken in a way that all of us will feel able to support.

David Davis: The Home Secretary knows full well that, like the other Members who have intervened so far, I am a great supporter of the Security Service, the Secret Intelligence Service and GCHQ. We also know, however, that owing to the difficulties involved in gathering intelligence it is sometimes unreliable, and may not be sufficient to persuade someone beyond reasonable doubt. That is part of the whole question of challenge that we are discussing.

This is not an attack on the integrity of any of the intelligence-gathering services. It is simply a recognition of what they know to be a practical problem, and indeed a reflection of advice that virtually all of them have given me in the past, during my time as a Minister.

Mr. Cash: My right hon. Friend raised the issue of what was in the Home Secretary's mind. The Civil Contingencies Bill simply states that what the Home Secretary thinks must be so, but in this context there is no doubt that in issuing a certificate he must have regard to the reasonableness of the judgment that he forms about whether a person's presence is a risk to national security, and to whether he reasonably suspects that the person is a terrorist. That is subject only to two qualifications in relation to sections 25 and 26 of the 2001 Act. The decision can be questioned in court, and the issue of reasonableness on the part of the Home Secretary is then taken into account. Does my right hon. Friend agree that, given the imposition of certain conditions, there is a means whereby there can be a proper challenge to what the Home Secretary does?

David Davis: I am sure that my hon. Friend's interpretation is correct, but it does not meet the requirements for a just process overall that we have been discussing today. That is the point that the committee was making.

Sir Brian Mawhinney: As I may owe my life to intelligence that was relevant when I was a Northern

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Ireland Minister, I start with a presupposition in favour of the intelligence services. Having declared that interest, let me say that my right hon. Friend has put his finger on one of the fundamental quandaries. It is a question of how to verify intelligence, and how to verify the claim that to reveal intelligence is to undermine the safety of the state. I hope that my right hon. Friend will use the consultation period to enable my party to come up with constructive suggestions of ways in which those two issues can be addressed that will meet the standards that we all want to apply. If it cannot do so, and the Government cannot do so, we shall remain in that quandary for years.

David Davis: That is true, and the difficulty is made much more acute by the consequences of error. When my right hon. Friend was dealing, in a highly effective way, with terrorism in Northern Ireland, even the worst of the events there did not compare with those of 11 September.

Let me repeat what I said earlier. When I first read the committee's proposal for an examining magistrate, I did not react very well. I do not like the continental procedures for most aspects of the judicial process. It struck me, however, that the committee had hit on something that would allow justice for the victim, verification and a firewall that would enable evidence that could not otherwise be used to be brought into play. That is a very good idea, which we will build on during this consultation process to meet the requirement that my right hon. Friend mentions.

Mr. Marshall-Andrews: Of course, the so-called evidence is factual assertion made by the security services, either to the Home Secretary or subsequently to the Special Immigration Appeals Commission. Does the right hon. Gentleman not agree that herein lies the root of the problem with SIAC? It is not a court, and the rules that govern it mean that documentation and evidence given to it by the Home Secretary or by the security services is, by definition, cherry-picked. SIAC's rules do not require that all the evidence be placed before it, so what it is getting is a selective version of that evidence. Is that not an intrinsic problem in itself, and an affront to the principle of justice? Unless SIAC can weigh all the evidence, it is impossible for it to see the whole picture.

David Davis: The hon. and learned Gentleman is exactly right, which is why part 4 of the 2001 Act would not be justified under any circumstances other than the asymmetric outcome of getting it wrong. On the one hand, getting it wrong means an injustice to one person, which is dreadful. Indeed, at one point, I intervened on the Home Secretary from a sedentary position to point out that one error is too many, but getting it wrong the other way could mean the loss of many thousands of lives, as we have seen in recent times.

Vera Baird: The right hon. Gentleman is in danger of forgetting—as is my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—that hearsay has been admissible in ordinary criminal trials since the introduction of the Criminal Justice Act 2003. Indeed, the Opposition supported that aspect of the legislation with reasonable enthusiasm. Hearsay is

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second-hand, third-hand or written material that can now be put into an ordinary criminal trial, but which previously had to be given by oral testimony. In talking about intelligence, are we really talking about matters that are so far away from that principle, which the right hon. Gentleman regards as an acceptable part of the criminal process? I do not think that we are.

David Davis: The hon. and learned Lady's point was, I think, answered by the intervention of my right hon. Friend the Member for North-West Cambridgeshire (Sir Brian Mawhinney), which dealt with the whole question of verification. We are talking, in effect, about sentencing people for life—or as close to a life sentence as one can ever have—so verification is vital. Unlike the hon. and learned Lady, I am not a lawyer, but the principles of the assumption of innocence, and of proof of guilt beyond reasonable doubt, are central to my belief in the law. That is why I consider part 4 of the 2001 Act to be an unacceptable infringement of civil liberties, under any circumstances other than those that currently apply.

Mr. Kevin McNamara (Hull, North) (Lab) rose—

David Davis: I have taken quite a lot of interventions, so if I may I shall move on to one other aspect of this controversial section. The Committee made other suggestions that could help to bring about more terrorist prosecutions. On terrorism as an aggravating factor, paragraph 218 of the report states that

The Home Secretary said:

Senior police officers have told us that there are gaps in the law that create problems for them in their pursuit of terrorism—lacunae in the conspiracy law, for example. When the Minister winds up, I should like her to say when we are likely to see proposals in this area.

On plea-bargaining, the document published this morning states that there might be

In their response, the Government say:

But plea-bargaining also relates to the defendant's giving evidence to convict other terrorists and to prevent other atrocities. Here, there would be clear problems over witness credibility, but it may nevertheless be a worthwhile tool. I would be grateful if the Minister expanded on the Government's view when she winds up.

I should like to raise a couple of matters that the Home Secretary has spoken about in recent weeks, but did not mention today. In his usual high-profile way, he has recently floated several ideas, including lowering the

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burden of proof, trying terrorist cases without juries, using security-vetted judges and counsel, and holding entire trials in secret. Frankly, it is an extraordinary raft of ideas, and although we will examine the fine details of the Home Secretary's proposals, he should be aware of the Opposition's reservations at this stage.

In our view, it is not only highly dangerous, but totally illogical to move towards lowering the burden of proof for the most serious offences. That would be a deviation too far from the ordinary criminal law. The Home Secretary has made it clear that that is not his intention, which we welcome, but we need to know more about what he means by applying civil orders to those associated with the fringes of terrorism before we make a considered response.

It would also be helpful if the Home Secretary clarified more about his motivation in bringing forward these ideas at this particular time. Is he saying that the Government have intelligence about large numbers of people who are planning terrorist activities but against whom it is impossible to act? We know from our experience in Northern Ireland about the frustration experienced when known terrorists walk free because of the inadmissibility of intelligence in court, but that should not plunge us into making bad law that overturns centuries of established legal process.

The same applies to secret trials. If public confidence in the criminal justice system is desirable, and if it is to be maintained, as much of a trial as possible should be held in open court. That has always been the case, even under Diplock in Northern Ireland, where parts of trials could be held in camera when necessary. On single judge courts, is the Home Secretary really saying that jury intimidation in al-Qaeda cases is on the same scale as resulted in Diplock operating for 30 years in Northern Ireland? I do not believe so, and we will need some thorough convincing before following the Home Secretary down that path.

The powers that the House is examining today are exceptional, as has been apparent from several discussions. Under normal circumstances, many of those powers would not even be contemplated, let alone approved by the House. Regrettably, the threat of terrorism dictates that some are necessary. I agree with the Home Secretary that, without the powers of the 2001 Act, our defences against international terrorism would be severely weakened. For that reason, despite our reservations about part 4, we support the continuance of the Act. However, we call on the Home Secretary to return to the questions raised about part 4 and to review very carefully whether changes in evidence could allow him to replace what is effectively internment with a proper process of justice.

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