Prevention of Terrorism Bill

Part of the debate – in the House of Lords at 4:30 pm on 7 March 2005.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities 4:30, 7 March 2005

I intervene because I am now hopelessly bewildered by what I have just heard. I thought the noble and learned Lord the Lord Chancellor said a little while ago that the court would effectively be in the same position as the Strasbourg court; that is, it would look at the necessity and proportionality of a restriction on a fundamental right or freedom. That is what I thought he said, and he nods.

If that is so, will he agree with me that, because the order has an impact on a fundamental convention civil right, the burden is upon the state to justify the interference? That is standard. We know from Strasbourg that the exception must be strictly construed. The burden of proof is therefore on the Home Secretary, and the standard of proof—whether one calls it "probability" or otherwise—must provide sufficient cogent and convincing evidence to justify the interference. Quoting Sir John Laws on other matters is not central to the point here, which is that the burden is upon the Home Secretary to justify according to proportionality, and he must do so by cogent and convincing rebuttal evidence.