Prevention of Terrorism Bill

Part of the debate – in the House of Lords at 4:00 pm on 7 March 2005.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 4:00, 7 March 2005

This is an incredibly important debate. It follows on from the debate that we had on Thursday. The starting point of the debate and the first issue is whether noble Lords believe that something beyond surveillance and short of the criminal process is required. It is the view of the security services that it is, it is the view of the police that it is, it is the view of the committee of the noble Lord, Lord Newton, that it is. We think it is necessary in the face of the new threat that terrorism poses to this country.

I understand that the position of the Conservative Party and of the Liberal Democrat Party is that they too support the concept of something that is not a criminal process, some sort of court order that restricts the movement or activity of the subject and assists the fight against terrorism. We take the view strongly that that is required, but we do not take the view that that should be done by throwing civil liberties out the window. We think that it has to be done by balancing civil liberties against those requirements.

That is the starting point. If you accept that starting point, as the three Front Benches do, as the law-enforcement agencies do, as the independent bodies that have looked at it do, then I believe that the task for this House and another place is to seek to craft a solution that balances civil liberties against the need to protect the nation in a way, to pick up the words of the noble Lord, Lord Forsyth, that has common consent. That, I believe, is the work that we should be engaged upon.

This group of amendments raises four issues. First, should the court be involved first, before an order becomes effective, in relation to a non-derogating order? That is an order that does not deprive somebody of his liberty.

We say that is neither necessary nor appropriate for the following reasons. The judgment about whether security will be assisted by a non-derogating order is made by the Home Secretary in the first place; and then, in order to protect civil liberties, there must be proper judicial involvement. The Home Secretary will assess the risk to the nation and ask himself whether the intrusion on an individual's rights—and this is not about deprivation of liberty but about the individual's rights, for example, to associate with someone else or to be in contact with other people—is justified by that risk.

The Home Secretary makes the order in the first place and the arrangements then involve the matter coming before the court as quickly as possible. We need to consider whether the Bill should be amended to ensure that the matter comes before the court as quickly as possible. In applying a judicial review test, the court considers, on the basis of the evidence put before it, whether the risk that the Home Secretary has identified is such that it justifies the intrusion on to that individual's rights. In effect, it is asking whether the intrusion is justified by the risk identified by the Home Secretary.

That is a very sensible judicial way of looking at matters and is a perfectly possible task. It also makes absolutely clear the Home Secretary's role and the judge's role. There is clarity and protection. That is why we submit that, in relation to non-derogating orders, the Home Secretary should make the order in the first place and then, within a very short time indeed, the matter should come before the court. In relation to non-derogating orders, it should be clear that the Home Secretary makes the judgment, but subject to judicial control.