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Mr. Clarke: First, I am not going to deal with individual cases. Secondly, I hope that I will not be criticised as craven for deferring to my right hon. Friend the Secretary of State for Northern Ireland on these matters. I can confirm, however, that the legislation creates a framework to deal with all forms of terrorism.
Tony Lloyd (Manchester, Central) (Lab): My right hon. Friend is right to emphasise that the nation faces a threat from terrorists and that these decisions are not easy, but the question of the balance between the roles of the judiciary and of the Executive is not trivial. The traditional checks and balances on the Executive have stemmed from the independence of the judiciary to make the primary decision. I hope that my right hon. Friend will look closely in the few hours that remain before Second Reading at whether he has got the balance right, as it is certainly a matter of concern for many Members on both sides of the House.
Mr. Clarke: My hon. Friend is entirely correct to identify the balance between the judiciary and the Executive and between security and liberty. I have sought to address that and, in my statement of 26 January, I alluded to it directly. Particularly at the higher level of deprivation of liberty and derogation in that area, I believe that I am providing a process for judicial confirmation that allows judicial and court judgment at the very highest level when deciding the appropriate action to take.
Sir Patrick Cormack (South Staffordshire) (Con): As the Home Secretary's purpose seems to be to underline the proposition that the supreme law is the safety of the state, how can he reconcile the introduction of such severe measures with the continuation of privileges to Members of the House who are associated with terrorist organisations?
Claire Ward (Watford) (Lab):
The nature of terrorism has changed and, within limits, our response must change too. Can my right hon. Friend explain the circumstances in which he would authorise an order for
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the detention of a suspect at home, subsequently endorsed by a judge? That would affect other members of the household. What opportunities would they have to challenge the restrictions that would ultimately be placed upon them?
Mr. Clarke: First, I am grateful for my hon. Friend's acknowledgment of the fact, which needs to be given a greater hearing, that the nature of terrorism changes and that we need to change to deal with it. We cannot simply say that the situation that existed in the past is fixed. Secondly, everybody who is affected in those circumstances has the ability to take legal action to protect themselves, including other members of the family. That would be the right way to deal with any particular issue that arose.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The implication of the debate so far is that there has been no change in the security situation over the past month or so. The right hon. Gentleman said in his statement that he does not intend to seek a derogation at this stage. Bearing it in mind that these are the most draconian, far-reaching and potentially dangerous provisions put before the House in the past half-century, why do we need to rush the Bill through between now and Monday?
Mr. Clarke: The short answer is the answer that I gave to the right hon. Member for Haltemprice and Howden (David Davis). In the view of the Law Lords, the existing powers are discriminatory and not proportionate. That means, in my opinion, that if we were to continue with renewal, we would be vulnerable both as regards the individuals concerned in that case and, more profoundly, in relation to the Law Lords generally and the European Court in Strasbourg.
Mr. Robert Marshall-Andrews (Medway) (Lab): Prior to the opinions of the Law Lords on 18 December, no one in Government had suggested that it was in the interests of the state or necessary to enact legislation enabling Executive detention of British subjects without trial. When did it become necessary to introduce such legislation? Was it amazingly coincidental with their lordships' opinions, or had it arisen before that? If so, why were we not told about it?
No, the situation is as follows. On 11 September 2001, the threat that arose was from overseas nationalsthe people who were involved in the attacks on that day. That is why the legislation was passed in 2001 to deal with it. Since that period, there has been a continuing involvement of UK nationals as well in that approach, and increasingly so. Before my time in my present office, the view was taken that, before considering how to deal with that situation, we should wait and see what the Law Lords judgment would berightly, I thinkbecause it would be ridiculous to put legislation before the House while a Law Lords judgment was outstanding. As that case was going through the courts and finally to the Law Lords, the view was takenin my opinion rightly, as I sayto await the Law Lords judgment. The Law Lords then gave their judgment, as my hon. and learned Friend knows. Their judgment was that the existing situation
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was discriminatory as between UK and non-UK citizens. That provoked the need to rectify the situation, as I seek to do today.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I absolutely accept that most of us who are in the Chamber today or who are Members of Parliament have no experience of intelligence matters or the assessments that inform them, but we can question the very fear that the Home Secretary exhibits, when no other common law country such as the United States has found it necessary to take the action that he is taking today. I ask him to reflect and tell us why he rejects the views of a former shadow Home Secretary, now the Prime Minister, who said that the liberty of the subject should be taken away not by the act of a politician, but by a court of law. That, he said, was a fundamental point about liberty, and it is what we are trying to weigh here today. It is the duty of the Home Secretary to demonstrate more openly why all this is necessary.
Mr. Clarke: I accept the duty. Both in my statement to the House on 26 January and today, I acknowledged that there is an issuean issue that the hon. Gentleman raisesof the right balance in these matters. I have not said that it is an open-and-shut situation. I have argued that there is a threat from international terrorism, with which we must deal. As I indicated in my statement, I shall publish later today a further set of documentation relating to the nature of that threat, how it operates and how we seek to prevent it. I say again, and it is a very important point, that the fact that we have not had a major terrorist outrage in this country since 9/11 is not a consequence of terrorist organisations not wishing to bring it about. In fact, they have sought to bring it about. However, our agencies have been able to prevent it, and for that we should pay tribute to their work. That guides our judgment as to what should be the legal regime to strengthen us in that regard.
Mr. Michael Meacher (Oldham, West and Royton) (Lab): First, we all understand the difficult situation the Home Secretary is in, but why is he so adamant that house arrest must be retained as an option when it is not used by any other Council of Europe country facing exactly the same terrorist threat as we do and when no other country has seen fit to derogate from the European convention on human rights for that reason or any other? Secondly, how can independent judicial scrutiny protect basic legal and fundamental human rights when the judge cannot reveal the secret intelligence to the suspect and therefore, crucially, cannot test the evidence that is alleged against the suspect?
On the latter point, my right hon. Friend's comments miss a key point: there are casesI assure him there arewhere there is not sufficient evidence to bring about a conviction in court, for a variety of reasons that I have listed to the House, but where the individuals concerned remain a threat to this country. It is possible to argue, as do those on the Opposition Front Bench, that we should do nothing in those cases, but it is not possible, in my view, to seek to defend the national security of the country without taking account of that. Finally, in terms of other
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comparisons, obviously there are entirely different judicial systems in the rest of the European Union. By the way, under those judicial systems, people are locked up in detentionnot house arrest or anything of that kind, but in detentionfor years and years. That is what those countries are doing.
Mr. Peter Lilley (Hitchin and Harpenden) (Con): Does the Home Secretary realise that this country is reluctant to entrust a Government who went to war on the basis of unfounded suspicion with a power to lock people up on the basis of mere suspicion? Can he confirm that he is under no legal obligation to change the law, since the Law Lords found his measures not unlawful, but simply incompatible with the European convention on human rights because they were disproportionate and discriminatory? Is it not barking mad to say that the remedy for disproportionate discrimination against a minority is to extend the same measures of harsh and disproportionate loss of freedom to the whole country? Does he realise that he is creating a precedent when there is no reason or justification for it?
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