Mr. Robert Marshall-Andrews (Medway) (Lab): My point concerns review by the judiciary of derogating and non-derogating clauses. I take the view that the House was seriously misled yesterday and when we debated the matter before. This is a central issue. The Government make a distinction between derogating and non-derogating issues; I do not accept that distinction, but the Government make it. In respect of derogating issues—house arrest—the Government provide that the court will have full powers to look at the facts and to come to its own conclusions. So far, so good. I would reluctantly accept that, if it were the case for all the orders.

Non-derogating orders are not mere chaff in the system. They will involve people's right to work, to associate and to move, and their being tagged and electronically monitored. They are as close to the pass laws in South Africa as it is possible to get, and they are a serious matter. The question that the House must ask is whether there will be proper judicial review of those proceedings. The House has been told on several occasions that there will be, because the court will be allowed to consider the orders, but it may do so only on the basis of judicial review. The basis of judicial review does not allow a court to reopen the case and look at the facts on which the order was made. It is worth repeating that point time and again. Assurances to the House, whether from Front or Back Benchers, and from people who should know better, are simply wrong. The House must take that on board.

There is no distinction to be made between whether such an order gets to a judge on appeal or as of right. The same process will be applied—namely, that the judge will apply the constrictions of judicial review. That is what my hon. and learned Friend the Member for Redcar (Vera Baird) objected to initially—realistically and properly—and I supported her. She now supports the change that has been made to the Bill, but it is precisely the same test, of judicial review. The House should understand that no judge will be able to look at the facts of the matter. It is essential to take that on board when hon. Members vote on whether the non-derogating orders should be accepted as they stand.

Vera Baird: The hon. and learned Gentleman knows well that if a judge is asked at the outset to consider whether there are reasonable grounds on which one can, as Home Secretary, suspect that a person is engaged in terrorism, the only possible way to reach a judgment is for the judge to look at the evidence and form a view. The hon. and learned Gentleman must not mislead the House about that.

Mr. Marshall-Andrews: That intervention would be valid were that the test, but it is not. As my hon. and learned Friend well knows, the test is whether the judge feels, not that the decision was wrong based on the facts, but that it was obviously flawed—not that the decision is wrong, or that the judge disagrees with it, but that it was obviously flawed. That is the test of judicial review.

I am not entirely sure what "obviously" means in the present circumstances. Can a judge say, "Well, I thought the decision wasn't obviously flawed. Having looked at the background, I think it was flawed, but initially it was not obviously flawed"? What is a judge to make of the provision? I have not the remotest idea. It is bad to pass a statute that affects the liberties of our citizens based on such an amount of doubt. I simply ask hon. Members to take that on board when making their decision on this particular issue.
Mr. Win Griffiths (Bridgend) (Lab): I have already admitted that I am not a lawyer, but I have looked at clause 7, which states:
"The function of the court on an appeal . . . is to determine whether any of the following decisions of the Secretary of State was flawed—
(a) his decision that the requirements of section 1(1)(a) and (b) were satisfied for the making of the order".
Clause 1, which will become section 1, empowers the Secretary of State to make an order
"if he . . . has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".
It seems to me that the judge cannot decide whether the Secretary of State's decision was flawed without knowing the basis on which the Secretary of State made that decision.

Mr. Marshall-Andrews: Precisely. Of course the judge must look at the reasons. Having done so, a judge may think that he would not have acted in the same way, or that what the Secretary of State did was wrong, or that his decision was wrong. Nevertheless, what he must conclude is that the decision was obviously flawed, and he must do so applying the principles of judicial review. Judicial review comes from the prerogative writs—ancient writs in this country—which were always and deliberately set out on the basis that judges should not question decisions taken by the Executive—quite right, too. Hear, hear; I agree—they should not. That is the basis of judicial review. That is its whole life and mainspring in the legal system.

Mr. Edward Garnier (Harborough) (Con): I congratulate the hon. and learned Gentleman on trying to explain to people who will not have read the Bill before they vote for it precisely what they will be doing. Judicial review involves looking at the process, not at the substance of a decision. What hon. Members will do blindly, if they do not listen to him, is pretend that the review is a proper form of appeal. It is not. Please, will he continue to say what he has to say with greater force and clarity?

Mr. Marshall-Andrews: I am not sure that I shall accept that invitation, generous though it was. I make no apologies for being a lawyer. There are charlatans in my profession, as there are in every profession. Equally, we can number in my profession some of the finest politicians, alive and dead. They have made their contribution in their time, and it has often been in the field of civil liberty—precisely the subject that we are discussing. It is in that spirit that I make this intervention.

I do not wish the House to be misled into passing legislation and believing that it is giving to judges a power that the Bill manifestly and obviously does not give to them, will never give to them and should not give to them, under judicial review, because to extend judicial review is, by definition, to diminish the power of the House and its Ministers. That is why judicial review exists, and why it is so heavily circumscribed. To suggest that we are giving judges the power to strike down Ministers by judicial review is—I am sorry—casuistry, and should be treated as such.

Vera Baird: I am glad that my hon. and learned Friend accepted that he was outnumbered. There must be a real danger that the public watching us now think that we are two QCs arguing about how many angels one can get on the head of a pin. For the avoidance of doubt, and since my name has been used and, I think, been used slightly badly, may I make it plain that a test whereby a judge of the High Court will consider, on all the evidence, whether there is reasonable cause to suspect that a person is engaged in terrorism is a satisfactory test, as far as I am concerned.

Mr. Marshall-Andrews: So my hon. and learned Friend has said. Of course we are talking about law. The Bill makes law. It is impossible to avoid that. It is making immensely bad law, and that is why we must talk about it. I have said what I said, and shot my bolt on the issue, and I hope that some hon. Members, at least, will take on board what I say in the spirit in which I am saying it.

I come to the sunset clause; the time has now been extended to a year. What we are giving birth to here, if we give birth to it at all, is a very malformed animal indeed. In saying that, I enjoy the support not only of people who have fought the Bill throughout, but of people like my hon. and learned Friend the Member for Redcar (Vera Baird) and many commentators who believe that the Bill is seriously malformed. The Bill cannot be resuscitated and cured, by definition. What we need is a rebirth. We need a new Bill and we need it quickly. The period of a year, which has been proposed in another place by a noble Lord of my party, is worthy of support. One year is enough. We need to bring back in a year not this old malformed Bill, resurfaced and rehatched, but a new Bill to deal with the problems of terrorism, which are undoubtedly real.