Mr. Robert Marshall-Andrews (Medway) (Lab): As with everything in life, this Bill has both form and substance, and I shall deal first with the form. The Bill is small but deeply imperfectly formed.
In part, the Bill is incomprehensible. I have been reviewing statutes—many of them criminal statutes—for 35 years, and this Bill is one of the worst, despite brevity. I spent one hour and 20 minutes attempting to understand clause 4 alone. That clause deals with the duration for which people can be detained under the control orders and is therefore not unimportant, but I completely failed to understand it, even though I was reading my own language. If it had been translated into Arabic, Hindi or Gujarati, the problem would be even worse. We in this Chamber will no doubt argue about the effect that the Bill will have on al-Qaeda, but one thing is certain—they will not understand it.
So much for the Bill's form; I now move to its substance. If its form is bad, its substance is truly dreadful. It is almost certainly one of the worst pieces of legislation that any Government have attempted to put through this House for 200 years. It offends against the cardinal and root principle of our democracy—the separation of powers and the independence of the judiciary.
That principle is not a tributary of democracy, or a bit or part of it. It is what democracy is, and it is fundamental to our system, as it is to all systems of democracy that ultimately derive from revolutions of the people. The constitutional liberties in the US, France and this country are all based on that principle, which was first enunciated by Montesquieu and subsequently taken up by Paine and Jefferson. Their names will resound through the annals of political democracy and liberty when the names of those who are trying to take democracy away from us will be no more than dusty footnotes in the unpleasant history of this era of Parliament.
The principle of judicial independence is under attack in this country, but it is interesting to note that there is an attempt to introduce it into the Russian constitution. I was recently in Russia to give a lecture on the principle and I have given four such lectures in the past year. The Russians approach the notion of judicial independence much as they would approach a yeti or an abominable snowman—they understand that some people have seen such a thing, but they do not really believe that it exists.
The Russians with whom I had dealings listened to me with respect and longing, but on my most recent visit I told them about this Bill. For some time afterwards, the wonderful people with whom I was sitting had their arms around me in commiseration—admittedly, after a few vodkas—for the loss of liberty and the mistakes being made in my country.
The weakness of the Bill is made even greater when a legislature is as supine and ineffectual as this one is. In the brief time that I have been in this House, Parliament has gradually given up any hope of carrying out its major role of acting as a control and check on the Executive. That inability was brilliantly set out earlier by my good and hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). That will be his last speech in this place, and he could not have made a greater one. This may be my last speech too and, if it is not, it will not be for want of trying. If it is, I echo what my hon. Friend said: one of the great sadnesses that I will take away from the Chamber is that I have watched it become a Lilliputian assembly. In my time here, it has manifestly failed to act as a check on an over-mighty and increasingly arrogant Executive. There is no greater example of that than what we have witnessed in the course of this debate. For the Home Secretary to say that it is his responsibility to put people in prison and that he will arrogate that responsibility, and then to say that he will take a judicial function that will be subject to a judicial overview is not simply constitutionally illiterate but parliamentary drivel, and it should be treated as such by everyone who had the misfortune to hear it.
May I say three things in the brief time available, provided that no one is decent enough to intervene? Much adulation has been heaped on the present Home Secretary, some of which is richly deserved. However, even if he were the most wonderful, beautiful, benign and wise judicial body, even if he had a reputation for Solomonic justice and Brechtian wisdom, it would not matter a fig. It would be a terrible mistake to hand judicial powers to the Administration, given that there are at least three examples of the dereliction of those powers.
The first, of course, is Belmarsh itself. We are told that, after three years, the 13 people who have been held in that ghastly prison, with its 30 ft walls and razor wire—I know, because I have been there on many occasions myself—are to be released, not into house arrest but on to the streets with tagging or non-derogated orders.
In the past three years, successive Home Secretaries—well, mainly one Home Secretary—have repeatedly told SIAC that those people are so dangerous that they cannot possibly be released from the misery and solitary confinement in which they have been interred. Now, they are all to be let out, because repentance is a wonderful and beautiful thing. Perhaps they have repented, but the idea that they have done so simultaneously would represent the greatest collective apostasy since St. Paul's letter to the Corinthians. It is clear that SIAC has been misled for the past three years about those people in Belmarsh. The new Home Secretary, however, has taken a different view, which demonstrates the arbitrary nature of the power that the Government are attempting to achieve.
Secondly, much adulation has been heaped on our security services and I am certain that some of it is deserved. However, the Iraq war is fresh in our minds, along with the duplicity, lies, twisting and distortion of the security services' manifesto. We all know what happened: the information that the security services gave the Government was manipulated before it was placed before the people. The second dossier created on the basis of that intelligence destroyed forever people's faith in this and probably any Government's purveying information accurately and using it in a judicial or any other capacity. That is why Home Office briefings have been received with such contempt both inside and outside Parliament. They are perceived as worthless documents because no one believes the construction placed upon them.
Thirdly, we have every reason to distrust the measure because British subjects will be placed under its aegis as a result of the rulings, speeches and opinions of the House of Lords. Is it coincidental that, when the Law Lords provide an opinion, there are suddenly risks from British subjects? Were there were no risks from them before that? If there were, why were we not told about them? If there were grave risks before that, why did someone not come to Parliament and say so? The Bill is a gross manipulation and distortion of the Law Lords ruling.
I struggled to find a harmless analogy for what the Government are doing. The best I could come up with is that of a boy who is viciously bullying some people at school, all of them girls. He is hauled up before nine school governors who tell him that he must stop it. He says, "Fine, I'll stop it. I'll cut out the vicious bit and bully everyone." That is precisely the way in which the Government have reacted to the House of Lords judgment. The analogy is harmless and I hope that the point is not lost, even on the Home Secretary.
The substance of the Bill is the supposed effect of judicial overview. I shall say slowly, clearly and distinctly, in case anyone on the Front Bench is listening to what is being said in this House, that there will be no judicial overview as to the fact of the vast majority of the control orders that are envisaged in this Bill. That should be repeated. There will be no factual judicial overview of any of the control orders that affect the right to work, the right to travel, the right to associate, the right to be seen in a specific place, the right to move, the right to have a passport, the right to be with specified people, the right not to be tagged, and the right not to be electronically monitored. For all those control orders, there will be no judicial overview as to fact. If people in this country realised that, their reaction would be very different from what we are told is the popular reaction at the moment.
There will be greater judicial overview of house arrest, but, as has repeatedly been said, those who seek to challenge it in the courts will be bereft of and denied by statute all the information, disclosure and discovery that they need to put before a judge, because the Government have decreed—I pointed the relevant clause out to the Home Secretary—that they do not have to disclose that material to anyone. What is more, even if someone achieved their aim and the court decided that the decision was flawed, they could be re-arrested on another control order the minute they walked out of the door. That process was refined in South Africa time and again under the 108-day rule.
While referring to South Africa, I pay tribute to the wonderful speech of my hon. Friend the Member for Stevenage (Barbara Follett). I shall remember it for a long time after I leave this place.
The procedures that the Government propose to put into effect can be found at the end of the Bill. The Government have arrogated to themselves the right to create rules covering evidence, the burden of proof, lack of evidence, and the amount of disclosure. Those completely new rules of court will be introduced by statutory instrument and without proper consultation or scrutiny in this House.
Under the present criminal justice system, it is implicit that the prosecution, if in possession of any factual, documentary or other material that might assist the defence, must disclose it to the defence.
It cannot be repeated often enough that we will never decrease the sum total of human wickedness by decreasing the sum total of human liberty. If we act in that way, we run the extreme risk of increasing the sum total of human wickedness by denying these very liberties to those who deserve them. Looking back over the past seven years, I am very sorry to reflect on the number of occasions when I have had boringly to repeat that phrase.
Click here for Hansard
