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Mr. John Gummer (Suffolk, Coastal): I would like to respond to the hon. Member for Redcar (Vera Baird), who made an important point that shows that this is not a necessary or urgent matter to be agreed now. She also made the point that it might become one at some time in the future. However, if those people are on the streets now, the Home Secretary has all the necessary powers to detain them for what may be as long as the hon. Lady suggested.
I also want to respond to the hon. Member for Nottingham, North (Mr. Allen), who listed the problems that we face. We are debating this measure for an hour and a half, late at night. We shall vote on it later anda point that the hon. Gentleman did not makethe Minister has failed to answer any of the questions that have been raised. [Interruption.] The Minister can say, "Ooh!" from a sedentary position as much as she likes, but the questions have been asked and they are very clear.
Why has no other member state of the European Union or the Council of Europe found it necessary to make this decision? The Minister said that her right hon. Friend the Home Secretary had answered that question. I remind her that her right hon. Friend said that he had not had time to go through all the laws of those countries to show that they did not need to make this change, or to show why they had not done so. Frankly, if he has not had time to do that, it shows that he cannot answer the question. If he cannot show that there is something unique in this country that makes it necessary for us to do this in a way that is not necessary for any other country, he is failing in his duty to the House. We cannot take him on trust if he cannot give us that information.
It is peculiar for the Home Secretary not to be able to give us that information, because we have been going round the world making the point that our laws are better in this area. Hon. Members on both sides of the House have been making rather unattractive comments about the willingness of our neighbours in the European Union and beyond to take the same measures on terrorism that we have been taking. That has been the permanent and continuous refrain of Governments of both parties. It is not acceptable to say to the House, "We do not know why nobody else has done this and we do not know what their laws are on the subject." Why on earth say that their laws are inadequate? It does not make sense.
We must consider that in context. A year ago, the Government told the House that there was no conceivable circumstance in which our adhesion to the European convention on human rights would put us in such a position. I must tell the Minister that although I was one of those who thought it advantageous to be able to adhere to the convention, I had considerable concerns about the way in which judges were extending the operation of such conventions. It is a perfectly good convention, but all the experience is that judges appear, in an odd way, to extend such documents in a fashion that may give us considerable cause for concern.
Mr. Gummer: I shall give way in a moment. The difficulty was that Labour Members told us absolutely assuredlythere was no scintilla of doubtthat we were being xenophobic and that we should be ashamed of
If a country does not adhere to a convention because, for one reason or another, it is worried that the provisions extend beyond what it can reasonably support, that is understandable. However, if a country signs up to a convention and tries to get out of it the moment difficulties arise, what example does that set for the rest of the world? After all, the only genuine reason for joining the convention in the first place was not that we needed it or that we thought there was something nasty about Britain, but that we wanted to help those countries where there was something nasty or which had a nasty history.
We wanted to give those countries the opportunity to join. We did not want to give the opponents of joining in those countries the advantage of saying, "If Britain is not a member, why should we join?" However, within a year we have created the opposite effect by giving succour to those who are least attractive in the countries that have most difficulty in defending human rights.
Mr. O'Brien: I am most grateful to my right hon. Friend for giving way. In support of that point, he will have heard, as I did, my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) contest from the Front Bench the legal advice about the primacy of article 3. What is worrying is that the legal advice obviously exists. It would be helpful to have it placed in the Library at the very least. We are being forced to end the debate and are unable to vote on it for two days, so we cannot reach a conclusion on valid points such as those my right hon. Friend has made about context. Surely that is another example of why the deferred voting procedure is inadequate for such extremely important issues.
Every time we asked the Minister to answer a question, she used the phrase, "We have taken the view", which is most unusual and most unparliamentary. Of course the Government have "taken the view". It is their order, but saying, "Actually, we have taken this view" does not help to answer a question. It may be so, but it is not proof. The words "We have taken the view" are merely her opinion, so it is not surprising that she attracted many attacks from both sides of the House. She clearly cannot answer the questions, which is serious on such a matter.
I also remind the Minister that it is not good enough to say that there will be full judicial scrutiny. Those are her words, but that is not true. She told us that when she said that the Government have decided to assume that this wholly different procedure is equivalent to full judicial review, but that cannot be so if the person seeking the review does not know what he is accused of. What kind of review is that? What sort of legal system is that? She must apologise to the House for referring to full judicial
Lastly, we must return to a simple question. Had a Government of a different kind proposed to the House, when the Minister was on this side of it, thatdespite the advice of the Joint Committee on Human Rights, despite the advice of the Home Affairs Committee and despite the view of every other country in the European Community and the wider Europe beyondwe should proceed with what appeared to be a gross curtailment of human rights, what would Labour Members have said? They would have talked of the most dreadful infringement that we had seen since Magna Carta.
The truth is that the Government should not have produced the Bill. They know, and their members and supporters know, that they should not have produced it, and they would not have allowed any other party to produce it without the most outrageous attack possible. That is why the Minister is letting her side down by not answering the serious questions asked by the Opposition: as we know perfectly well, she would never have let anyone else get away with it.
I wanted to speak because of my concern about the precedents set by derogation from article 5 of the European convention, and the permittingeven in only a minuscule number of casesof detention without trial. Several respected QCs, including one employed by the Government to review SIAC cases, argue that there may be a way around derogation. I shall return to that later, but first let me specify where I think the Government are right. They are right to act against the tiny minorityperhaps fewer than 50 of our island's 60 million inhabitantswho plot violent terrorist acts and cannot be prosecuted or deported.
I think that the Government are mistaken in concluding that the only way in which they can act against a handful of fanatics is by derogating from article 5 of the convention and curtailing judicial reviewenshrined in our law, as we have heard, since the Habeas Corpus Act 1679. If this most reasonable Government can invoke an emergency whenagain, as we have heardpeople are rushing out to see the Harry Potter film and virtually no one has altered their daily routine, imagine what a less charitable Government might do in much less pressing circumstances.
Having said that, I do not want to be mistaken for someone who does not want to bang up suspected terrorists, or for someone who does not understand the difficulty of undertaking a successful prosecution of someone engaged in terrorist activity. Sometimes the obstacles faced by the police in securing a prosecution are insurmountable, and that should worry all of usespecially those of us who work in places such as this, a prime terrorist target. I feel, however, that we should revisit our options.
I hope the Minister is pleasedcertainly my Whip will beto learn that I fully support the Home Secretary's and the Government's choice. I do not want such people to be released into the community, and I do not want them to be deported and then tortured to death; I do want them to be detained. The million-dollar question is whether it is possible to detain someone without suspending habeas corpus when the state has clear but sensitive evidence that cannot be disclosed, and the person therefore cannot be brought to trial. We have heard that we can detain peoplethat we have detained people. In my view, and in that of several very distinguished QCs who know far more than me, the answer to the question is yes. I believe that we must explore that possibility, and avoid derogation.
Let us take an example. The authorities arrest an al-Qaeda suspect whom they wish to deport. The Home Secretary says that owing to the nature of the threat the suspect must be detained. He argues that the detention is not arbitrary in the sense implied by article 5, because it is connected to the deportation. The suspect then takes his case to Strasbourg. It is highly unlikely that Strasbourg would rule that he had to be released, as the British Government's only alternative would be derogation from the European convention on human rights. Either way, however, it would be a better outcome than the suspension in this country of the rule of law.
In theory, therefore, the order reduces civil liberties. In practice, however, in the short term, it will do no such thing. If it is approved we shall still live in one of the most democratic countries in the world, with one of the most progressive Governments in the world. However, my concern is not the short term but the long term, when the precedent that we set today comes home to roost. For that reason, I do not think that we should set the precedent.