Prevention of Terrorism

– in the House of Lords at 2:30 pm on 22 February 2005.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 2:30, 22 February 2005

My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Home Secretary in another place. The Statement is as follows:

"With permission, Mr Speaker, I should like to make a Statement about the Prevention of Terrorism Bill, which is being introduced today.

"On 26 January, I told the House that I intended to bring forward a Bill as quickly as possible to repeal the powers in Part 4 of the Anti-Terrorism, Crime and Security Act 2001—the 2001 Act—and to replace them with a new scheme of control orders applicable to all suspected terrorists, irrespective or whether they are British or foreign nationals or, in relation to most controls, the type of terrorism with which they are involved. This Bill is designed to meet the Law Lords' criticism that the previous legislation was both disproportionate and discriminatory.

"The Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism. I have today published a series of discussion papers that sets out the Government's view of that threat and our strategy for reducing it. And I have laid before the House a copy of the report of the noble Lord, Lord Carlile of Berriew, on the operation of the Part 4 powers in the 2001 Act, in 2004. Let no one be in any doubt that there are terrorists here and abroad who want to attack the United Kingdom and its interests.

"Some believe that the absence in this country of a terrorist outrage like 9/11 or Madrid means that the terrorist threat has somehow passed us by or failed to materialise. That view is short-sighted, complacent, ignorant of the facts and potentially cavalier in its disregard of the safety of this country.

"I pay tribute today to the vigilance and professionalism of our security authorities including the police for all that they have done and are doing to keep this country safe. It is their efforts that have protected us from such an attack and not any reduction in ambition by terrorist organisations.

"My principal responsibility as Home Secretary is to protect this country and everyone in it. I am determined that we will take the steps that are necessary to ensure our safety.

"The Government's preferred approach—our first option—is to prosecute terrorists. We are considering the scope for new offences including that of 'being concerned in the commission, instigation or preparation of terrorist acts' and other measures, with a view to helping the police and the prosecuting authorities bring more cases to court. I intend to bring forward further counter-terrorist legislation on those issues as soon as parliamentary time allows.

"Some suggest that we could bring more prosecutions if only we would allow intercept to be used in criminal proceedings. I have thought about that very carefully. But for all the reasons that I set out in my Written Statement to the House on 26 January, I do not believe that that is true.

"The reality is that intercept is only a part—often a small part—of the intelligence picture in such cases. Its main value is usually in helping the intelligence and law enforcement agencies to direct their resources, such as surveillance, most effectively to disrupt terrorist activities and gather evidence to support arrests and prosecutions.

"The fact is that there will always be some, including some extremely dangerous people, whom we cannot prosecute either because the material that we have is inadmissible in criminal proceedings or because it cannot be used for fear of revealing, and so endangering, sources and techniques. Some say that we should do nothing about those people or that we should just monitor their activities through surveillance and so forth and hope to deflect them in that way. I do not accept this; the risk is too great. That is the reason for the Bill that I am publishing today.

"The Law Lords' judgment on 16 December found that the Part 4 powers in the 2001 Act were disproportionate and discriminatory in that they applied only to foreign nationals and we had apparently managed to contain the threat from British nationals without detention. As I told the House on 26 January, I accept that judgment and therefore believe that it is important to address those concerns. We should not simply renew the current legislation, which the Law Lords regard as flawed. We should replace it, and with strong measures that are fully compatible with the ECHR and applicable to both British and foreign nationals.

"The Bill that I propose empowers the Secretary of State to make control orders and to impose under them a range of controls on the individuals concerned which will be tailored to meet the threat that each poses. The purpose of the order is to prevent him or her continuing to carry out terrorist-related activities. The orders will be time limited. But they will be capable of being renewed or remade if the threat posed by the individual justifies it.

"The Bill makes provision for a range of controls to be imposed. That list will include prohibitions or restrictions on the possession of specified articles or specified services or facilities; on association and movement; on an individual's place of residence, place of work or occupation; and other restrictions on their ability to travel, including abroad.

"A breach of a control order without prior consent will be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment, a fine or both.

"At the top end, the obligations that could be imposed could include a requirement for the individual to remain in a particular place at all times or some similar measure which amounted to a deprivation of liberty. The place in question will vary with the threat posed by the individual. It could be the individual's own home, or his or her parents' home. It could even, in certain circumstances, be in accommodation owned and managed by the Government.

"Such severe forms of control orders would, however, require a derogation from Article 5 of the ECHR before they could be implemented. As honourable Members know, Article 15 of the ECHR allows member states to derogate from certain aspects of the convention where there is a,

"state of public emergency threatening the life of the nation", and the measures proposed are,

"strictly required by the exigencies of the situation".

The basis of any derogation is, therefore, these two conditions: the threat to the life of the nation and the necessity for the measures which would deprive of liberty.

"The Bill therefore provides that I can make orders that require a derogation if, and only if, there is a designated derogation in force from all or part of Article 5 in respect of a public emergency threatening the life of the nation; the obligation imposed is such as has been described in that derogation; and I am satisfied that, on the balance of probabilities, the person is or has been involved in terrorism and the imposition of that obligation on that person is strictly required for the purposes of protecting the public from risks arising out of, or associated with, that public emergency.

"In the event that a derogation is necessary, I should make the designated derogation order. It would come into force immediately. But it would need, under the Human Rights Act 1998, to be confirmed by a vote in each House of Parliament within 40 days of its having been made if it is to continue in force. So the conditions of any derogation—that is, the threat to the life of the nation and the necessity for the measures which would amount to a deprivation of liberty—would be considered, assessed and voted upon by every Member of Parliament if it was to remain in force. I believe that that framework is robust and enables the security of this country to be properly addressed in all foreseeable circumstances.

"These are rightly onerous conditions, which Parliament will have to consider at any time when a derogation is made. I have, of course, carefully considered the current situation and have to tell the House that it is not my intention to seek a derogation at this time.

"I am clear that a derogation is justified on the basis of the threat that we currently face. As I told the House on 26 January, there is a continuing public emergency as a result of the threat from Al'Qaeda, its agenda and its adherents, including the different groups and linkages that make up the Al'Qaeda movement in its broadest sense.

"However, on the second criterion for derogation—the necessity for the measures—I have been advised by the police and security authorities that they consider that the control orders that will be established by this legislation are currently sufficient to deal with the individuals concerned and that deprivation of liberty, though valuable, is not 'strictly required' in the language of the convention. They support the measures in the Bill that allow me to impose obligations up to but not including a,

"requirement to remain in a particular place at all times", and the flexibility that they give me to tailor the obligations imposed under any order to the threat posed by the particular individual. The security authorities tell me that at this stage they do not want to add anything to the range of controls that I am suggesting.

"Of course these circumstances can change in the future, and quickly. Were the current situation to worsen, we could find ourselves in a position where it is imperative that we are able to place a particular individual or individuals under,

"an obligation to remain in his/her home at all times", or some other measure which amounted in effect to a deprivation of their liberty within the meaning of Article 5 of the ECHR. This Bill would allow me to impose such an obligation on a particular individual, or individuals, as appropriate provided that a designated derogation order setting out such obligations is in force.

"In considering whether to derogate, my starting point will be—as now—the threat we face. I shall look at the security authorities to advise me on that and on the measures they think are strictly required to meet that threat. And I shall take advice on the legal and other issues that arise in relation to any proposal to derogate before making a final decision.

"If my decision is to derogate, I shall make the necessary designated derogation order and lay it before Parliament. As I have said earlier, the order will come into force immediately but it will continue in force only if it is confirmed by a vote in both Houses within 40 days of its being made.

"Any derogation from Article 5 of the ECHR raises very serious issues. Were we to derogate, we would need to keep the need for such a derogation under regular review. The Bill therefore provides for me to lay an order, subject to affirmative resolution procedure, before Parliament each year (after the first) to the effect that it continues to be necessary to have the power to impose derogating "obligations" by reference to the derogation, and that derogating control orders shall have effect (beyond the first year of the derogation) only while such an order is in force. There will therefore be an opportunity annually for Parliament again to have its say on whether the derogation continues to be necessary.

"The Bill gives certain responsibilities to the Secretary of State. I know that some would prefer it if they were allocated entirely to the judiciary. I have listened very carefully to all that has been said on this point both inside and out of this House and I have sought to address the concerns that have been expressed in the Bill. But as I have already indicated, it is the Government's, and my, prime responsibility to protect the nation's security. It is in many ways our paramount task. Decisions in this area are properly for the Executive who are fully accountable to this Parliament for their actions. But when an individual is deprived of liberty for any length of time that is of course also a matter for the courts. Everyone must recognise that in the interests of security and speed an order may need to be imposed immediately. But in those exceptional cases where there is a clear requirement to make an order depriving an individual of his liberty the courts must determine as soon as it is practicable whether the order should continue.

"It therefore follows that the judiciary do have a critical role to play in the process. In relation to control orders not requiring derogation, their role is to review and, where appropriate, to confirm decisions made by the Executive. For derogating control orders, their role is to decide on the merits whether to continue the order or to refuse to confirm it. The Bill makes full provision for this.

"The Bill provides for non-derogating control orders to be subject to challenge in the High Court by the person against whom the order has been made, and for the court to apply the principles of judicial review in hearing the case. The court would be able to consider the issues in both open and closed session with a special advocate representing the interests of the subject of the order in closed sessions.

"Derogating control orders will be subject, as befits the seriousness of the issues raised, to a different form of scrutiny by the High Court involving an automatic two-stage process. On being made, the order would have to be referred immediately to the court for consideration within seven days at a preliminary hearing to assess whether the Home Secretary had reasonable grounds prima facie for making the order. Both sides would be represented. There would be open and closed sessions and the interests of the subject of the order would be represented in closed session by a special advocate.

"If the court was so satisfied, the case would be automatically referred to the High Court for a full hearing at which the court would decide for itself, on an assessment of all the material, whether the order should have been made and what conditions should have been applied. Again there would be open and closed sessions and the interests of the subject of the order would be represented in closed session by a special advocate. It would be open to the court at both stages to strike down the Secretary of State's order or give him directions to modify it.

"I have published this Bill today in full confidence that it meets the situation we face in three important respects. First, I believe it meets the judgment of the Law Lords. Secondly, the Bill rightly confirms that the security of this country lies with the Government of the day, fully responsible to Parliament and the country. The Government are fully accountable to Parliament for the way they carry out their responsibilities and under the Bill that accountability will be manifest and demonstrable, and timely. At the same time the process of judicial scrutiny which I propose should meet the genuine concerns which have been raised. Thirdly, the Bill will ensure that the measures we put in place fully meet the threat we face from terrorism, both as we see it today and as it might, despite all our best efforts and those of other countries, develop and mutate over time.

"This is an important Bill. It raises serious and difficult issues. But we must have the capacity to protect our people now and to be able to do so in the future. It would be the gravest dereliction of duty to wait until we have suffered a terrorist outrage here and then respond only after the event. I am not prepared to take a risk of that kind and I hope the House will join me on this. On that basis I commend the Bill to the House".

My Lords, that concludes the Statement.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs, Spokespersons In the Lords, Home Affairs

My Lords, I thank the Minister for repeating the Statement made by the Home Secretary in another place a short while ago. I also thank the Home Secretary for his courteous offer of briefings to me and my colleagues over the last week.

I join the Minister in paying tribute to the police and intelligence officers who work so hard to try to keep the British public safe. They have an arduous and dangerous task. We do not underestimate the difficulty of the problem facing the Home Secretary. There is no difference between us on the determination to protect the public from terrorism. There are no easy answers.

We believe, however, that the Home Secretary has today settled on the wrong answers—ones that sacrifice essential and longstanding British principles of liberty and justice, in a way that is unlikely materially to enhance the security of our people. For the Home Secretary to say today in another place that any alternative solution to his own is a "do nothing option" is a complete misrepresentation of what he should know to be the case.

Tempting though it is to refute the Home Secretary's allegation now, this is not the time and place—that would lead me into a Second Reading speech which is for another day. Suffice to say that we believe that this House should have proper time to consider extremely carefully all his proposals. But at present the Government seem determined to prevent that happening, despite the fact they say that this is an important Bill that raises serious and difficult issues.

The Government have been forced to this point by the decision of the Appellate Committee of the House of Lords just two months ago. The speech by the noble and learned Lord, Lord Hoffmann, who was a member of the Appellate Committee that gave the judgment in the case, is particularly relevant. He said:

"I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution".

In effect, that is what the Home Secretary is doing in a major part of this Bill. I accept, of course, that he has applied some limited judicial back-stop safeguards, but under these proposals a politician will be able to make the controlling order to restrain the liberties of a British subject. He will do that on the basis either of a balance of probabilities or even of simple suspicion. He will do it for reasons and on evidence that may not even be known to the British subject who may lose his or her liberty.

Today, we are told that a state of emergency exists. When a Home Secretary tells us that, we must believe that it is true. We are told that that justifies the provisions of the whole Bill. Then we are also told that the Home Secretary has been advised by the security services that they do not need to use the full extent of the powers in the Bill at this point in time. So, the Home Secretary, we are told, will not yet seek to apply the powers that require derogation. He is leaving them to some later, unspecified date when he will, if still in government, introduce them by order.

There are a thousand questions that could be asked, but I will restrict myself to a meagre two. The rest will wait until Committee. First, do the Government believe that the only control orders listed in the Bill that require derogation are those that restrict residents to a specified location? Secondly, the Minister referred to the fact that the restriction on residence could specify living in special accommodation owned and managed by the Government: what is that intended to be? Will it be Army barracks or police cells? Will it be newly built? What is the plan?

The Home Secretary has said that he wants to achieve agreement, and I, for one, believe him. However, the reality is that he has chosen to put himself at the moment in a position in which it is not possible to secure agreement on all aspects of his proposals. He is right to say that we should not wait for a terrorist outrage before we take action. I venture to suggest that nobody in the House would advocate any such course. I fervently hope that we will all use our best energies in the forthcoming days—I suspect that it will be no more than days—to work constructively towards agreement. I give my full commitment that we on these Benches will do just that.

Photo of Lord Dholakia Lord Dholakia Shadow Minister, Home Affairs, Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I add my thanks to the Minister for repeating the Statement in your Lordships' House. I also ask the Minister to convey our thanks to the Secretary of State for the discussion that he has conducted with my party and the trouble that he has taken to explain the Government's position on the Part 4 powers, following the Law Lords' judgment. I also add my thanks to the police and the security services for the way in which they help us in protecting our citizens.

I have no doubt that the Home Secretary is genuine about finding a way forward. That is reflected in the Prevention of Terrorism Bill that is being published today. However, I also want him to know that the Liberal Democrats have been genuine in trying hard to find a solution. Following the meeting at 10 Downing Street, my right honourable friend Charles Kennedy said that we would not walk away but would give serious consideration to the control orders and to the process that the Minister was outlining.

Our position remains no different from the arguments that we advanced during the passage of Part 4 of the Anti-terrorism, Crime and Security Act 2001. We have a fundamental disagreement with the Government about the proposals in the present Bill. Put simply, we believe that the deprivation of liberty, in whichever form, must be done through a judicial process. The Home Secretary has moved, in strengthening judicial review, but the difference remains. He still sees the role of the judges as one of reviewing his decision. We believe that they should take the decision. I do not understand why, if the Home Secretary is prepared to let judges overrule his decision, he is not prepared to let them take the decision in the first place. Does he not recognise that, by applying to judges for control orders, he will still meet his responsibilities for national security as Home Secretary?

Will the Secretary of State think again about establishing a process that allows him to apply to a judge for a control order, rather than simply setting it himself? Will he also acknowledge that his current proposals are still based on reasonable proof? Should we not move towards a burden of proof beyond reasonable doubt, when it comes to removing someone's liberty?

I acknowledge that communications interception will not bring the current detainees to trial but could help in future cases. Previously, the Secretary of State said that he would leave the door open on that. I ask the Minister to go a stage further and ask the Newton committee to make specific proposals on how it could be done by the end of the year. That is a perfectly reasonable request.

The Secretary of State suggests that derogation is not needed for control orders that do not allow house arrest to be made. Is the Minister aware that the legal advice provided by Liberty indicates that derogation would be needed for any form of control order, including lesser restrictions, such as banning access to the Internet? What legal advice have the Government received?

Finally, I ask the Minister to outline the Government's plans if today's proposals fail to be approved by both Houses. Will the Minister seek a renewal of the Part 4 powers? If so, how long will it be for?

In essence, the judgments are all about the balance between the principles of justice and the maintenance of security. The proposals that the Secretary of State has outlined today get the balance wrong. That is why we shall work actively to amend the legislation.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I thank the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Dholakia, for their thanks for the efforts that we have made. I also thank them in particular for their tone. All of us recognise how difficult the situation is and that we need to strive energetically to find a solution that best meets the extreme nature of the circumstances in which we find ourselves. The Home Secretary has considered the matters carefully, as have all colleagues in government who are seized of the matter. I assure noble Lords that that seriousness of approach will continue.

The noble Baroness, Lady Anelay of St Johns, asked in particular about the sort of accommodation that might be provided by the Government. The noble Baroness will know that there are bail hostels and other accommodation provided by the probation service, particularly for those who have no fixed abode. That is, of course, government accommodation, and it is those sorts of accommodation that we are thinking about in principle, so that those matters may be dealt with.

The issue of intercept information was raised. I thank the noble Lord for his acknowledgement that, with regard to the current cases, intercept evidence would not assist us. I say with the utmost humility that, in cases that are likely to be similar to the current cases, it is likely that, in the same way, intercepts would not help us. Therefore I repeat that our preference in all circumstances is to prosecute wherever possible. The legislation that we hope to introduce as quickly as we can, when parliamentary time allows, may enable us to address some of the issues, but they do not relate to those very precise issues.

Why not review the Part 4 powers? We find ourselves in a somewhat uncomfortable position. Your Lordships will know that the House of Lords has, in effect, declared that the Part 4 powers were discriminatory and were not therefore capable of being pursued. There is an argument—I put it no more strongly—that any secondary legislation that came from that source could be fundamentally flawed. Therefore, we cannot rely on that situation.

The difficulty with the particular individuals is that we cannot prosecute them. In the ordinary way, one would not be able to take advantage, for example, of the anti-terrorism legislation that would allow you to arrest those whom you reasonably anticipate that you can prosecute. So we find ourselves in a very difficult situation. It is for that reason that we have come to the conclusion that the control order is the best way forward.

We have taken legal advice. Your Lordships will know that we have consulted both within and without government on the course on which we are now set. I can assure your Lordships that we are as confident as we can be that the powers that we seek to take on the non-derogating control orders would be consistent with the ECHR. I hope we made clear in the Statement the basis on which the derogating control orders would be contemplated.

Photo of Lord Hooson Lord Hooson Liberal Democrat

My Lords, does the Minister agree that the provision of safeguards against terrorism have a parallel in the past in the provision of safeguards against espionage? The threat is the same. Surely, there are precedents, for example, in espionage cases at all levels which were heard in camera. In the Cyprus spy trial, for example, the jury was positively vetted, and it was an impeccable jury. Would it not be possible to introduce a judicial element into the process at a much earlier stage? The public are really puzzled about that point. At the moment, I do not see why it is not possible for the Government to ensure that a judge and, if necessary, a positively vetted jury consider the evidence.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, of course in the past there have been cases on very difficult issues, such as espionage, and they have been dealt with. That is why I reiterated that, where possible, the Government's preferred course is to prosecute. The situation in which we find ourselves in relation to the small number of individuals who have been subject to Part 4 powers is simply that it has not been possible to prosecute them using any of the usual strategies that we have available to us. That is why we seek a separate and different situation.

On judicial scrutiny, I hope I made it plain that there will be a high degree of judicial scrutiny both for non-derogating orders and for derogating orders. Of course, non-derogating orders will be reviewed in accordance with the usual principles of judicial review. If we ever have a situation in which such powers need to be taken and an order needs to be made, there will be judicial scrutiny because, although the Home Secretary will make the decision, within seven days the matter will go before a judge for him or her to determine, on a prima facie basis, whether the order is sound. If a judge finds that the order is not sound on a prima facie basis, he or she can discharge it and if he or she thinks there is a prima facie case, it can then be given a full substantive hearing.

Some practical points have to be considered on the steps that one needs to take. The Home Secretary may receive information that will require very speedy action to secure the safety of this nation. I emphasise that the period before such a matter will automatically go before a court will be a mere seven days. We believe that that is the better course.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I should like to add my thanks to those already given to my noble friend for her normal extraordinary courtesy in consulting those of us with a longstanding interest in the matter. I fear it means that she had to endure my Second Reading speech a little while ago, so I shall not inflict it on her again.

I should like to raise two issues with her—one of principle and one of process. The issue of principle returns to the issue of judicial scrutiny or judicial involvement in the original decision making. I do not believe that what has been outlined in the Bill is so far away from allowing judicial involvement in the original decision that it would not be possible to change from an executive decision, which is then scrutinised on its rationality and reasonableness, to a judicial imprimatur, which is nearer to a prosecution and we would all wish to see.

I welcome the fact that the Government have said that they will bring forward legislation to allow prosecutions in more cases. I suggest to the Minister that that would involve different forms of prosecutions. Does she accept that one would be more comfortable if one could deal with these provisions in the context of provisions that also made available more opportunities for prosecution?

That leads me to the issue of process. After 11 September, we legislated in haste, which was understandable. To legislate in haste on issues that are this delicate and difficult in 2005 is less easy to justify. I understand what my noble friend says about the difficulty of the renewal of Part 4 and the preference for what has been outlined here compared with what exists at the moment in Part 4, but I have the gravest reservations about the timeframe that is being allowed. If this is the least worst option, will my noble friend look very carefully at making it a least worst option that has the shortest possible parliamentary life?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I thank my noble friend Lady Hayman for those comments. I understand the anxiety that she has expressed. I can see why she should suggest that it would be more comfortable if we could undertake the two parts together; namely, the legislation on changing the ability to prosecute that we hope to be able to bring forward when parliamentary time permits, and this matter. We are faced with a situation in which that simply is not possible. As the Part 4 powers need to be renewed by the 14th of next month and we are not in a position to introduce other legislation before then, we find ourselves in the unenviable and uncomfortable position of not being sure whether it would be lawful and proper for us, as has been suggested, to extend the Part 4 powers.

Noble Lords should know that the Joint Committee on Statutory Instruments has raised that issue with the Government and we have given a reply. We do not know the final view of the committee, but it would be right for us to be appropriately cautious that it may not be minded to agree with our view.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Minister, Home Affairs, Shadow Minister, Welsh Affairs, Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the noble Baroness has pointed to the flaw that cracks open this Bill. On the one hand, derogating orders are to be put before a High Court judge who will decide on the merits and may, if necessary, vary the conditions of the control order. Non-derogating orders, which are all that are proposed at the moment according to the Statement, are simply subject to judicial review and to all the limitations of judicial review, such as whether the Home Secretary has taken his decision properly or whether he has acted in a way that is so unreasonable that no sane Home Secretary could come to that decision. That is a very weak safeguard in relation to the liberty of the subject. Would it not be easy to relate the procedures for derogating orders that are proposed in the Bill to non-derogating orders, in which case many of the concerns expressed will be resolved?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, of course I hear what the noble Lord says. Perhaps I can help him and the House about why we disagree. All steps that we take have to be proportionate in relation to restrictions on liberty. The restriction on liberty in the non-derogating orders falls short of a denial of liberty in terms of free movement. Therefore, it is proportionate to say that judicial review—which has many teeth that this Government and previous governments have felt quite keenly—is an appropriate way of ensuring that such decisions are reviewed and kept within proper order. We therefore believe that the non-derogating orders are properly reviewed by judicial review.

In the case of derogating orders, the nature is changed. It is likely that we are talking about a denial of liberty. Where there is such a denial of liberty, one demands a higher degree of judicial scrutiny and intervention. In that case, instead of simply saying—as with the non-derogating orders—that the court is limited to asking whether a Home Secretary reasonably directing himself or herself to the circumstances of the case could properly have come to that decision, in the derogating control orders the court has the opportunity to substitute its own decision for that of the Home Secretary. The justification for the judicial substitution of the judge's decision for the Home Secretary's decision is the quality and extent of the deprivation of liberty which is contemplated. The proportionality issue is dealt with on that basis.

Photo of The Bishop of Worcester The Bishop of Worcester Bishop

My Lords, I too express thanks not just for the repetition of the Statement but for the coolness with which it was delivered and with which the Minister responded. That quality is extremely important if we are to discuss this situation carefully. It is clear from the tone of the Statement and the Minister's replies that the profound nature of the decisions that face us is in the Government's mind. I appreciate that.

However, I am puzzled. As well as the practical considerations which are adduced in favour of decisions being made by the Home Secretary and only afterwards scrutinised by a judge, there seems to be a theoretical view with which I am not familiar and which I am puzzled by. That view is that responsibility for the safety of the realm rests on the executive. My understanding of my position as a citizen—let alone my position as a Member of this House—and of the position of the judiciary is that we all share the responsibility. It is not the case that one branch—namely, the Executive—exists to protect the public.

While other people prevent those decisions being too draconian, surely all of us are charged in our different roles with that responsibility. Would it not therefore be much better if we adhered to our constitutional principle that decisions in the case of derogated orders to deprive a person of liberty should be taken by—and only by—by a judge and that those decisions and judicial procedures should be able to be accommodated with all possible speed? I remain puzzled why the Government have felt it necessary therefore to go down the road of executive decision in a matter that constitutionally belongs to the judiciary.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, of course the right reverend Prelate is right. At one level, we all share responsibility for the safety of the nation, both as individual citizens and as parliamentarians either in this House or another place.

However, a special responsibility is vested in the elected Members and the government of this country who are charged with exercising certain responsibilities on behalf of the citizens who have elected them to form that government and therefore to govern. The primary responsibility of the Home Secretary and the Prime Minister is to do that which keeps this nation safe. That is part of the responsibility of the government and the executive.

In a democracy such as ours, it is right that there is a separate, heavy responsibility placed on the judiciary who are upholders of the rule of law and who are there as a check and balance to make sure that the exercise of the executive's discretion is proper, balanced and in accordance with the rule of law. That is their function. That does not mean that the Home Secretary, the Prime Minister or the government can abrogate their responsibility for keeping this nation safe.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, is there not a great danger here to the constitutional standing of judges? As the Minister said, their role is to uphold our liberties. The Government propose to wheel in the judiciary again to draw the constitutional sting that is inherent in these proposals.

As the Minister said, in the case of derogated orders it will be their jurisdiction to substitute their own decision for that of the Minster if they wish. Surely that is deeply dangerous. It is not judicial review. It will be taking—or will be perceived as taking—a quasi-executive action and, worse than that, one that deprives somebody of his liberty. Does the Minister recognise the real danger to the constitutional standing and the perceived role of judges that is inherent in that?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we do. The noble and learned Lord, Lord Mayhew, puts his finger on one of the issues in terms of balance. That is why we say that it is important for the Home Secretary who is charged with that responsibility to make a decision. It is a decision that is then scrutinised by the judiciary exercising its proper judicial function about whether that decision was a right and proper one. When the House looks at the stumbling blocks that have been put in the way of the exercise of that decision, it will see the equivalent of four locks. That is why it is correct that the executive—in the form of the Home Secretary—should make the original decision, accept that responsibility that is the government's and his and then and only then should the court exercise its judicial function in checking whether the Home Secretary is right. That is the best way to do that, both constitutionally and practically.

We have listened to the two arguments pulling the other way. In this short debate it has already been strongly said that we should expunge the responsibility on the executive. I hear clearly what the noble and learned Lord says. There will be governments who would be content to hide behind the skirts of the judiciary and say, "It is not our fault. It is the members of the judicial committee of the House of Lords who have so determined that your security should be infringed upon in the way complained of. It is not our fault".

This Government do not shirk our responsibility. We accept that responsibility is ours and we say that the judiciary should have their proper role for scrutinising that which we have done and that which we have decided.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, having regard to the recent views of the appellate committee, are the Government satisfied that the powers sought are proportionate and fall within the tenor of their judgments?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, my noble and learned friend rightly asks that question; we are so satisfied. One of the most taxing and difficult tasks that we have undertaken in the past two months is to come to a resolution that does two things: first, it takes the necessary steps, which we have to take, to keep our country safe—that is our overriding criterion; and, secondly, it does that in a way that would enable us to comply with the judgment of the Judicial Committee of the House of Lords, which we accept, as is proper.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, the Minister has very fairly accepted that judicial review is not a process of appeal. It is a procedure to ensure that the Government have not exceeded their jurisdiction. It is a jurisdictional matter and a procedural matter.

When it comes to the derogation orders, the Minister says that the merits of the decision, which cannot be considered on judicial review—or very rarely—then can be scrutinised. If the merits of the decision can be scrutinised after the Minister has made his decision, why cannot they be considered before the Minister makes his decision? Why cannot the Minister go to the judge and say, "I propose to do this. Is this, on the merits, a right and valid decision"?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, first, for the reasons that I just gave in answer to the noble and learned Lord, Lord Mayhew, and, secondly, because of practicality. It may be that information comes before my right honourable friend the Home Secretary or his counterpart in any future government that clearly demands immediate action. In those circumstances, it would be simply practical and easier for that decision to be made and for it to be very quickly reviewed.

I cannot over-emphasise that we are talking about seven days. As the noble and learned Lord, Lord Ackner, will know, in the administrative court it can be possible for these matters to be brought before the court very quickly, in a period of fewer than seven days, which is the outer limit when the court will be obliged to deal with the matter. It involves automatic reference, not an application having to be made by any one party.