Clause 7 still has, for example, the test on what happens with a non-derogating order. Even with the amendments made earlier in the day, the order has to be made by the judge in the first instance, but there is still a test to be satisfied when it comes back on appeal. There are issues about whether you want to amend that, but without Clause 7 there are no principles to be applied.
I would respectfully submit, without in any way precluding people from coming back for further amendments on Report, the right thing is that Clause 7 should stand part of the Bill.
As I understand it, we now have a common procedure for considering both derogating and non-derogating orders—initiated by a judge and involving consideration of the issues thereafter on their merits. That cuts out the core of Clause 7, which is the procedure already initiated by the Secretary of State and that might then be considered by the system of judicial review. That, surely, has all gone.
May I make the following suggestion? The right thing for us to do is to look closely at the effect of the amendments voted by the Committee earlier in the day. We will then bring forward the appropriate amendments on Clause 7.
I am anxious about not agreeing to Clause 7 at this stage. We will loyally give effect to the decisions that the Committee made, without prejudice to our ability to seek different changes to the Bill in the other place.
I would be very anxious if Clause 7 did not form part of the Bill. In light of my undertaking to give effect to the votes, to tidy it up accordingly, I respectfully submit that the right course is that Clause 7 stand part of the Bill.
I share the view of the noble Lord, Lord Goodhart. It seems to me as well that it is very difficult to put one's finger on what survives from Clause 7.
However, the noble and learned Lord has undertaken to remove anything from Clause 7 that is inconsistent with previous votes. That is without prejudice to what might occur in another place. On that undertaking, I am prepared on behalf of my opposition team and of all members of the Opposition who sit behind me to allow Clause 7 to go through.
It may well be, from the point of view of belt and braces, that we should adopt the suggestion of the noble Lord, Lord Goodhart, to table an amendment excluding Clause 7 and see what the Government come up with tomorrow.
moved Amendment No. 144:
Page 10, line 28, leave out subsection (4).
On Question, amendment agreed to.
[Amendment No. 145 not moved.]
moved Amendment No. 146:
Page 10, line 34, leave out paragraphs (a) to (c) and insert—
"( ) proceedings on an application to the court by any person for the making, renewal, modification or revocation of a derogating control order;
( ) proceedings on an application to extend the detention of a person under section (Arrest and detention pending derogating control order);
( ) proceedings at or in connection with a hearing to determine whether to confirm a derogating control order (with or without modifications);
( ) proceedings on an appeal under section 7;"
On Question, amendment agreed to.
had given notice of his intention to move Amendment No. 147:
Page 10, line 34, leave out paragraphs (a) to (f) and insert "any proceedings in court for the making, renewing, modification, revocation or questioning of a control order"
The purpose of the amendment is to try to tidy matters up and make them understandable. Paragraphs (a) to (f) define control proceedings by references to various other clauses, some of which we have already removed—for example, Clause 2. It seems to me that the simplest thing to do is to tie it all up as,
"any proceedings in court for the making, renewing, modification, revocation or questioning of a control order".
I do not think I have left anything out of subsection (6) by the amendment.
moved Amendment No. 148:
Page 10, line 39, leave out "or derogation matter" and insert ", a derogation matter or the arrest or detention of a person under section (Arrest and detention pending derogating control order)";.
moved Amendment No. 154:
Page 11, line 14, after "order" insert "or of his arrest or detention under section (Arrest and detention pending derogating control order)";.
moved Amendments Nos. 155 and 156:
Page 12, line 8, leave out ", but does not require leave" and insert "for which leave has been granted"
Page 12, line 17, leave out "does not require leave under any provision of" and insert "is to be treated as an appeal for which leave has been granted under"
The amendments are consequential on amendments that have already been made. I beg to move.
moved Amendment No. 157:
Page 13, line 14, leave out "make, renew, modify and revoke" and insert "make application to the court for the making, renewing, modification and revoking of"
On Question, amendment agreed to.
moved Amendment No. 158:
Page 13, line 14, at end insert "and
(b) his powers to apply to the court for the making, renewal, revocation or modification of derogating control orders;"
moved Amendment No. 159:
Page 13, line 34, at end insert—
""control order" has the meaning given by section 1(1A)"
The amendment is consequential on the amendment made on Thursday redefining control orders. I beg to move.
moved Amendments Nos. 162 and 163:
Page 14, line 1, leave out "a derogating obligation" and insert "obligations that are or include derogating obligations"
Page 14, line 3, leave out from "obligation"" to end of line 4 and insert ", "designated derogation" and "designation order" have the meanings given by section 1(8A)"
The amendments are consequential on amendments made earlier. I beg to move.
I shall not move Amendment No. 165 as it is incompatible with amendments that have already been made.
I shall move that amendment as it is consequential.
I do not think that the amendment is consequential on anything that has come before. If the noble Lord could describe how it is consequential I have no doubt that we would easily be persuaded.
It is the court that is now going to make the control order, so it is a matter for the court to consider an application by a controlled person for revocation or modification.
I think we will have to change what we consented to.
If the parties agree, for example, that the control order would be discharged, would it be necessary to go back to court?
It appears to me that it is consequential because the failure by the Secretary of State to consider an application necessarily seems to imply a situation in which it is the duty of the Secretary of State to decide whether such an application should be allowed. I do not believe that it can reasonably be interpreted as referring to a case in which the subject of the order says, "I am applying for revocation of the order; are you going to agree with me or are you going to contest it?". That cannot possibly be a reasonable interpretation of subsection (3), therefore it is clearly consequential.
moved Amendment No. 169:
After Clause 13, insert the following new clause—
(1) The Secretary of State shall appoint a committee to conduct a review of the operation of this Act.
(2) A person may be a member of the committee only if he is a member of the Privy Council.
(3) There shall be five members of the Committee of whom one each will be nominated by—
(a) the Prime Minister;
(c) the Leader of the Liberal Democrats in the House of Commons;
(d) the Convenor of the Crossbench peers in the House of Lords;
(4) The Secretary of State may not refuse any nomination made under subsection (3).
(5) The committee shall complete a review and send a report to the Secretary of State—
(a) not later than the end of four months beginning with the day on which this Act is passed; and
(b) not later than the end of eight months beginning with the day on which this Act is passed.
(6) The Secretary of State shall lay a copy of the report before Parliament as soon as is reasonably practicable.
(7) The Secretary of State may make payments to persons appointed as members of the committee."
We on the Opposition Benches consider this to be an extremely important amendment. It proposes the establishment of a committee by the Secretary of State to review the operation of the Act after a certain period of time has elapsed. Quite properly for a matter dealing with national security, the members of the review committee should comprise only Privy Counsellors. We suggest that the ideal number would be five: one nominated by the Prime Minister, one by the Leader of the Opposition, one by the Leader of the Liberal Democrats, one by the Convenor of the Cross-Benchers in the House of Lords and one by the Lord Chief Justice of England and Wales.
In our submission, the Secretary of State should be prohibited from refusing any nomination made by those designated nominators. The committee should complete its review swiftly and send a report to the Secretary of State within a matter of a few months. A copy of the report should be laid before Parliament as soon as is reasonably practicable.
Two aspects of the Bill give us particular cause for concern. First, the speed with which it has been making its way through Parliament has meant that full and proper consideration has not been given to it. Secondly, it affects the most fundamental rights of our citizens. For the first time in our history, it questions the right of an individual, having been detained, to be tried by his peers. For those two reasons, it seems to us wholly appropriate that a mechanism of the nature we suggest should be established. It is a necessary security for the support and protection of fundamental liberties in the country. I beg to move.
We support the concept of a review. It is the drafting to which we on these Benches take exception, because, with an arrogance not unknown on the Benches near to us, the Government have assumed in subsection (3) that neither the Prime Minister nor the Leader of the Opposition will be the leader of the Liberal Democrats. It is our entire purpose to ensure that, in the coming general election which everyone seems to be talking about, the right honourable Charles Kennedy will occupy position (a) on that list. In those circumstances, we do not particularly care who is in position (b).
With a bit of drafting, I have no doubt that we will be able to come to an agreement with the Opposition.
The noble Lord is being a little optimistic.
The noble Lord, Lord Kingsland, has spoken of the speed with which this part of the Bill is being considered. I entirely agree with the notion of a review, but I am not convinced by subsection (3), which is also misconceived. For that reason, this sunset clause should be taken away and reconsidered.
The point made by the noble Lord, Lord Thomas of Gresford, is perfectly reasonable. He would be more likely to achieve his object if the leader of the Liberal Democrats had bothered to vote on this Bill in the Commons. As we are going round making little party political jokes, I could not resist that one.
We must have a review. I suggest that, especially with a sunset clause, a review of the Act should be put in as well. Then, when this Bill dies and goes to the crematorium, as I hope it will, a body of intelligent opinion will have seen some of the details and difficulties faced by the security authorities, and the Government—whoever they may be after
I wrongly referred to the provision as a "sunset clause". I apologise for that.
The Government have to think again about this. It is quite impossible that the provisions that have suddenly been thought of should appear in the Bill. For that reason, we ought to think again about the situation.
As the last reviewer of terrorist legislation, appointed by the then Secretary of State for Northern Ireland, the noble and learned Lord, Lord Mayhew, I entirely support the suggestion of a new review to replace mine of 10 years ago.
Clearly, the Bill should, and could, have been subject to pre-legislative scrutiny. As it was not, it should certainly be subject to post-legislative review. I support the amendment.
So far, I have not taken part in any of the debates on this Bill. I am prompted to do so because I believe this is of extreme importance.
I sat through a large part of our debate last Thursday. I hope the noble and learned Lord the Lord Chancellor will not take it amiss if I say he put up a brilliant batting performance on an extremely sticky wicket. Today, however, he was faced with the problem that his colleagues in another place had decided that there should be no more concessions, and he had to defend a position that became increasingly indefensible as the debate wore on. He found himself with no allies, and indeed some surprising opponents behind him, on his own Benches. He was forced to repeat the argument again and again in an increasingly uncomfortable position. We all know this is something that happens to government spokesmen in this House from time to time, when they are forced to defend the indefensible and have not got the scope to make the necessary adaptations that might convince the House.
Then the Government faced a massive defeat on the critical vote; a great chunk of the Bill was suddenly altered and the Government had to respond in a very short time to a fundamentally changed Bill. It seems extremely probable, given that situation, that we will end up with a flawed Bill. One lesson we have surely learnt on numerous occasions in recent years is that rushed legislation produces bad legislation and unexpected results. If ever there was a case of a rushed Bill, this is it.
Indeed, we have another example of a debate that revealed flaws. It was certainly fun to listen to, although whether it was quite so much fun for the noble and learned Lord the Lord Chancellor, I am not sure. The debate introduced by my noble friends on the Scottish question again revealed a number of extraordinary inconsistencies in the Bill.
It seems to me that there is an overwhelming case for a provision of this kind. To comfort the Liberal Democrat Benches, some consideration may need to be given to the wording of the new clause before we reach the next clause. I am not sure that I die on the particular representation on the committee to be appointed. That there needs to be a committee, I feel absolutely certain about; that there needs to be a time limit under which the Bill is effective, I am equally certain. Parliament must be given the opportunity to look again at the whole question in proper time so that we can have legislation that is likely to endure.
There was a notable speech from the Cross Benches on Thursday about the impossibility of withdrawing legislation once it was in force if only because of giving the wrong signal to terrorists. The example was given of withdrawing ships in the South Atlantic and the Falklands War. As one who was in the Cabinet at the time, I remember all too vividly that particular example.
There is a real problem here. We need the opportunity of thinking how we get permanent or semi-permanent legislation on to the statute book which will not cause huge problems and a huge attack on our civil liberties. Therefore, I strongly support my noble friend in this amendment.
I, too, support my noble friend Lord Kingsland in this amendment. I am sorry that the Liberal Democrats took offence at the drafting; I read it assuming that the Prime Minister might be in this House rather than the other place. Given that the other place has gone home for the evening and we are still here, considering legislation which it has not had a chance to see because of the amendments, this place seems to be taking on a role that is rather more advanced than that of the other place.
More seriously, I have one concern about the drafting. I think it is an excellent idea that the legislation should be subject to review and that that should be done by a committee of Privy Counsellors in the way that the amendment suggests. However, it is not clear to me what happens when the report is laid before Parliament by the committee. Our experience of the previous legislation was that the Joint Committee of my noble friend Lord Newton made excellent recommendations which the Government chose to ignore. Will my noble friend think about at least ensuring that there is a proper debate and a requirement to have some response from the Government? All too often people produce very learned advice which is subsequently ignored.
I am expecting to find that the Government have allowed this debate to develop as it has so that they may show their open-mindedness and flexibility by conceding the point. In what the prayer book calls the sure and certain hope of that, I shall address your Lordships for only a very short time.
A constant theme of these debates has been to point out the folly of approaching these delicate matters in unseemly haste. One would not wish the Government to add arrogance to obstinacy and folly by resisting the amendment, which calls for a review in a timely period. I confidently hope that the noble and learned Lord, who has shown such flexibility and good humour today, will fulfil my expectations.
I apologise for arriving a few minutes after the beginning of this debate but, as some noble Lords will know, I am somewhat hampered in moving rapidly around the Chamber at the moment. I wanted to make a very brief contribution because, although I fully support, as indeed our Benches do, Amendment No. 169, there should be added to it an understanding accepted by all sides of the House.
The proposal is that there should be a review and that that review should be undertaken by a group of Privy Counsellors appointed by the leaders of the respective parties and by the Prime Minister. My concern is not so much with the idea of a review, which I accept to be a good one; it is whether the Government would feel committed to taking that review very seriously. We are well aware that there has already been a review of Part 4 of the anti-terrorism Act 2001. That review, which I have read very carefully and regard as one of the most outstanding reports ever put before Parliament in recent years, was of course the report of the committee chaired by the noble Lord, Lord Newton of Braintree. It consisted of a group of distinguished Privy Counsellors, among whom, if I may pick out just one name, our noble colleague Lady Hayman, was a prominent contributor.
It was an excellent report. Those of you who have read it and re-read it recently will know that Part 4 of the anti-terrorism Act 2001 went into extremely detailed proposals that were carefully thought through. It covered a range of issues including different kinds of trial that could be conducted in camera or with a security-cleared judge and alternatives, which the committee clearly indicated would be regarded as second-best. Nevertheless, the report consistently and with a great sense of duty covered the whole of the area that it was asked to do.
The report made two striking observations. The first was that the picking out of foreign nationals was a great weakness in the anti-terrorism Act 2001. In other words, the committee showed the prescience to recognise that that would become a major bone of contention. Secondly, the report made a clear indication that there would be possible alternatives that would not require derogation from the European convention. It indicated that no other country in Europe had required that to deal with the threat of terrorism.
The tragedy is that that a carefully thought-through and very thoughtful report was dismissed in the course of a brief remark by the then Home Secretary Mr David Blunkett. He said in terms that he saw no necessity to consider any proposals to replace Part 4. He dismissed the issue of foreign nationals by saying that he had decided that these were the main targets that were required to deal with terrorism. He did not even consider the question of discrimination between British and foreign nationals which was at the heart of the Law Lords' decision of December 2004.
If one then looks at the debate that took place in the House of Commons on
In briefly addressing this amendment, I simply want to say that I sympathise fully with the position of its movers, the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay, and indeed believe that it is important that such a review should to take place. However, the Committee requires, were it to pass this amendment, a commitment from the Government Front Bench that such a review would not be treated with the disdain and virtual contempt with which the Newton report was treated despite the first-rate quality and excellence of its recommendations which were supported by Members of all parties who served on that committee.
I shall not delay the Committee by referring to an amendment that we shall discuss shortly which constitutes, if I may say so, the one guarantee—that is to say, it is the sunset amendment—that if there were to be a review it would have to be taken seriously. The House would not agree to continue with legislation if the carefully thought out recommendations of its Members were treated with the kind of disrespect with which the Newton committee was treated totally without any justification.
I am a non-lawyer and, as it were, a private person. I have not spoken so far in this Committee stage but I support as strongly as I can the case for a review at a very early stage so that the country can see how this Bill, when it becomes an Act, works out in practice. Privy counsellors are obviously the right people to undertake this kind of task. I am agnostic about how they should be found or selected but the principle is an essential one.
I have listened very carefully to what noble Lords have said. I, of course, acknowledge the strictures contained in the comments of the noble Baroness, Lady Williams, but I should say to her—I appreciate that she may not have been present during our earlier discussions—that we have already acknowledged that the Newton committee highlighted a number of these issues. I do not agree that that report was treated with disdain but I have accepted that some of the recommendations therein contained certainly merit careful scrutiny. I have also indicated that we are minded to bring forward legislation as soon as reasonably practicable which would take up a number of the Newton committee's suggestions. I have given due credit to the extremely high-quality work which was thereby undertaken.
I remind the Committee that the Newton committee recommended that we should look very carefully at the other offences that might be possible. I remind the Committee in particular of the recommendation made by Newton at paragraph 251 which dealt with the propriety of making less intrusive orders than Part 4. Paragraph 251 states:
"It would be less damaging to an individual's civil liberties to impose restrictions on a. the suspect's freedom of movement (e.g., curfews, tagging, daily reporting to a police station); b. the suspect's ability to use financial services, communicate or associate freely (e.g., requiring them to use only certain specified phones or bank or internet accounts, which might be monitored); subject to the proviso that if the terms of the order were broken, custodial detention would follow".
I remind the Committee that that is a scheme which the Newton committee advocated. It is one to which we have listened in seeking to put the provisions of this Bill together, as, indeed, we listened to the comments made by your Lordships' Judicial Committee when it used as an example the constrictions placed on the individual rights of the appellant G. I remind the Committee that we are precisely where the Newton committee advocated that we should be. I, of course, acknowledge that many would say that we should have got there a little sooner.
I accept that. However, the only reason that this provision was included is because it was found by the Judicial Committee of your Lordships' House that Part 4 was against the Human Rights Act. To be asked to believe that this would have been done without outside pressure is stretching my broad imagination too far.
I hear what the noble Earl, Lord Onslow, says in that regard and I appreciate that he may have limited imagination. However, I would not possibly suggest that that is the case. Having seen the noble Earl's performances in this House, I would say that the contrary is true.
The reason that I remind the Committee that that is our position is simply to bring us back to the realities of the situation with which we are dealing and to remind the Committee that these were seen as proportion and appropriate responses to the difficulties in which we now find ourselves. That is also the reason why, bearing in mind the experience that your Lordships' House has in scrutinising these issues, I take with due caution your Lordships' comments on our bringing forward another Bill on acts preparatory to. I do not for one moment say that your Lordships will be to blame.
Let us look at the review provisions in the Bill. The amendments proposed by the noble Lord, Lord Kingsland, are interdependent and relate to Amendment No. 171, which requires the legislation to cease to have effect at the end of November 2005. That is a very narrow compass. The amendments provide for review and reporting mechanisms during the operation of the legislation in the period up to that date. We are now in March so the period to November is very short indeed. The timing of proposed new clauses on reviewing and reporting on the operation of the Act is based on the assumption that there will be that sunset clause.
We believe, however, that the principle of the provisions is unnecessary. I shall explain why. The Bill provides that the Secretary of State must report to Parliament at quarterly intervals on the exercise of the control order powers. The Bill also provides for the Secretary of State to appoint a person to carry out reviews annually on the operation of the old Sections 1 to 6—on the making, operation and duration of the control orders. The Secretary of State would be obliged to lay the reports produced by those reviews before Parliament as soon as reasonably practicable.
In response to the request made by the noble Lord, Lord Forsyth, for a proper debate and response, if the report is laid before Parliament as we propose, then there a good opportunity for the debate advocated by the noble Lord to take place.
If only it were so. Noble Lords will know that time for debate is not within the Government's gift. They will also know that the usual channels, in their inimitable style, have the ability to find time for debates that appear to be supported and merited. If all three parties wished there to be a debate, I cannot conceive that the usual channels would not provide us with an opportunity. However, I do not seek to usurp their function from the Dispatch Box or to suggest that the Government can command the timetable in this place. I have learnt, to my great joy, that that is an impossibility.
I turn to the issues raised by the noble Lord, Lord Crickhowell. I, too, endorse the assessment of my noble and learned friend's performance—it was brilliant batting. However, I remind the noble Lord that this wicket has not yet gone.
These issues are difficult. However, I agree with my noble friend Lord Clinton-Davis. As currently drafted—and not simply because they reflect the current position of the Liberal Democrats—the proposals are misconceived and unnecessary. The noble Lord, Lord Crickhowell, will also know that the Government have indicated that the actions and arguments of this place always need to be considered further. On each occasion when my noble and learned friend and I have responded, we have made it clear that the Government's consideration of these matters continues.
The noble Baroness has almost invited me to comment again. All she has indicated so far is that we might have a debate at some unspecified time on reports laid by the Home Secretary. That is wholly inadequate. It has to be tied to a timetable which means that Parliament will have the opportunity to consider the legislation completely afresh. Anything less will not do.
I hear what the noble Lord, Lord Crickhowell, says on that matter, but the amendments before us this evening do not have that effect. Even if, as is not admitted, there was a need for an annual review, these provisions would not thereby provide it.
I am most grateful to the noble Baroness for her reply.
Both my noble friend Lord Forsyth and the noble Baroness, Lady Williams, rightly criticised Amendment No. 169 for lacking teeth. The noble Baroness, Lady Williams, adduced evidence to this effect with the sorry story of the fate of the Newton report. In responding to them both, I emphasise that I accept that without Amendment No.171, Amendment No. 169 would get us only a short distance down the road.
The amendments are interdependent. Without Amendment No. 171, a future report made under Amendment No. 169 would be likely to suffer the same fate as the Newton report. Equally, without Amendment No. 169, Amendment No. 171—and we come to the moment when the sunset clause bites—we would lack an in-depth, informed and authoritative report about where we should go from there. Although these are separate amendments and are grouped separately, they must be looked at together.
I cannot but disagree with the noble Baroness about the effect of Amendment No. 169. Although I am not going to move it this evening, she should be in no doubt that I shall be moving it on Report. I beg leave to withdraw the amendment.
The previous debate has foreshadowed the debate on Amendment No. 171. Its effect is obvious and I do not need to add a great deal.
The speed with which this legislation is going through your Lordships' House—and has already gone through another place—is evidence enough that we need Amendment No. 171 on the face of the Bill. The amendments that we succeed in passing tomorrow night will only reflect a portion of the deep disquiet we feel about this legislation. The fact that the Bill seeks to suspend habeas corpus—the hallmark of our constitutional life throughout the ages—surely justifies the inclusion of the amendment. I beg to move.
I think that the amendment has been moved in haste. Although I agree in principle with the noble Lord, I believe that the provision affecting limitation is misconceived as drafted.
The noble Lord is right to say that some notice should be taken of Amendment No. 169. Whether we have an undertaking from the Government to consider it or whether it is included in the Bill I do not really care, but that the Act should cease to have effect on
After all, we are likely to have a general election on
At the same time we should review how the Act has been operating. For that reason, I believe that we should consider the whole thing at once. It is very unsatisfactory to consider it in bits and pieces. I urge my colleagues to accept that there must be a review. We should be patient; I am not talking about more than a year. But I think that it is incumbent upon us as Members of Parliament to consider how the Act is operating. If we do not do that, we are not really coming to a sensible conclusion.
My noble friend, Lord Clinton-Davis, urges patience. I normally consider myself to be a patient woman. I have brought up four sons. That probably explains it.
On this occasion, however, I am afraid that I have lost patience. A year ago I voted for the renewal of Part 4, even though the committee of which I was a member, and which the noble Lord, Lord Newton, chaired, recommended that that should be replaced as a matter of urgency. I voted for renewal for a year because I believed that that was an appropriate and responsible thing to do in order to allow adequate time for the proper replacement provisions to be put in place. We have gone through the history many times. But that has not happened. What has happened is that we have ended up where we are in the Chamber this evening, legislating in haste.
I believe that we are not that far from agreement. I do not believe that there are many people who are absolutist in their dismissal of control orders.
My noble friend was absolutely right to say that the Newton committee—the noble Lord, Lord Newton, nods—recognised and envisaged the possibility of needing something between surveillance and criminal prosecution to deal with a small but important category of terrorist specialists. I believe that there is, not universal but majority, support for that proposition and for finding the right balance in introducing those measures with the protection of civil liberties and the challenge of not contravening the European Convention on Human Rights. I also believe that with a little more time, and outside the frenetic atmosphere before a general election, we could do this task.
On the issue of looking as if you are going soft by withdrawing such legislation, we will have a legislative vehicle because we have been promised such a vehicle in terms of the new offence of acts preparatory to terrorism early in the new Session. I am sure that my friends on the Front Bench would not have put it quite as crudely as that, but that is the import of all that we have understood.
That seems to give us the opportunity do what the Newton committee asked for; it said:
"The idea of a durable body of properly considered, principled counter-terrorist legislation—which is distinct from mainstream criminal law, addresses this particular threat to society and includes adequate safeguards of the rights of the individual—remains compelling".
I support that conclusion, as I did when we published the report. We may be wrong by about a month or two about the duration, but I feel as strongly on the issue of a sunset clause as I did on the issue earlier this evening that sent me into the Lobby with unaccustomed company. Delightful as many of those individuals are, I seriously do not wish to be in that situation again. I hope very much that the Government will see their way to accepting if not this amendment, one that is close to it.
My Lords, I understand that the Government are up against tight deadlines, but that is to a large extent their own fault. If we look back a few months, it was perhaps not wholly predictable that the Appellate Committee of your Lordships' House would come to the conclusion that it did on the Belmarsh detainees, but it was certainly foreseeable as a distinct possibility.
Apparently the Government had no plans on how to deal with that contingency. They had no legislation in draft to put before the House. If they had been able to do so immediately after we returned from the Christmas Recess, at least we would have had a fair amount of time. But it was not until the third week in February that the Government introduced the Bill. It went through the House of Commons in two days, which was wholly inadequate. It had its Second Reading in your Lordships' House on Tuesday of last week. On Wednesday morning, at about half past nine, very important and substantial government amendments were published. We had to table our amendments for discussion in Committee by five o'clock that afternoon.
We then had to debate the first day of the Committee stage starting at 11.30 the following morning. The groupings were published at two minutes past eleven, and turned out to be wholly unsatisfactory, resulting in a delay of half an hour before starting the debate. The gap between the end of Committee and the beginning of Report will be about 16 hours. Report will be followed by Third Reading after a gap of only four hours. This is a wholly unprecedented timetable. By comparison, the debate on the Anti-terrorism, Crime and Security Act 2001 moved at a positively glacial pace, with some nine days being allocated to Committee.
We have had a wholly inadequate time for considering the Bill, which is totally inconsistent with the role of your Lordships' House as a revising Chamber. We have been unable to do the work that we should do. There are all sorts of important issues, not perhaps the top four or five, but issues that still have considerable importance, which should have been discussed at length, but which have not been debated.
In those circumstances it seems absolutely essential that the Bill should be re-debated from scratch. That requires, not a review, which the Government can dismiss, but an irremovable sunset clause, which means that we will have to get down and give this Bill the proper consideration that it needs. This is a Bill of great practical importance and perhaps of even greater constitutional importance. We must have proper time to consider it.
Does the noble Lord consider that we ought to have an opportunity to look at the workings of this legislation? For the reasons that I have adduced, I think that the provision of three or four months is not adequate. I hope that the noble Lord will agree that it is better to have an informed debate than a rushed debate.
I appreciate what the noble Lord, Lord Clinton-Davis, is saying and I fully respect his views. I accept that it is entirely appropriate to have a reconsideration of the principles behind this Bill, but we need what I would describe as a fairly rapid form of pre-legislative scrutiny on the Bill to replace this one. I think that that can be dealt with in a matter of a few months. I do not think that it would be appropriate to wait for, let us say, the three years that might be necessary before one sees how the Bill has panned out in practice. It is too important for us to have a proper reconsideration of the issues behind the Bill. We should move on to it. The proposal for
I want to speak only briefly, in the light of what I said at Second Reading, when I expressed a number of regrets, some of which have been echoed in slightly different ways during this debate. I regretted that there did not appear to have been more active consideration of alternatives to Part 4 in the wake of our report; that for the second time we were—I echoed what the noble Baroness, Lady Hayman, had already said—considering in great haste legislation that required careful scrutiny; and that we were not looking at it as part of a balanced package, taking account of what has been promised for later in the year.
On that occasion the noble Baroness, Lady Hayman, was kind enough to say that she agreed with every word that I had said. I simply wish to reciprocate by saying that on this occasion I agree with every word that she has said. I would not want to die in a ditch about the timing. November may be a bit soon; the wording of the amendment related to a review committee of some kind probably needs addressing; but the basic concepts that we are debating are ones that the Committee and, dare I say, the Front Bench opposite would be wise to take very seriously.
I shall be very brief. I have listened carefully to the Committee stage of the Bill's passage through your Lordships' House, and with increasing concern. I think back to the words of the right reverend Prelate the Bishop of Worcester last Tuesday, which I read in Hansard, and those of my kinsman the right reverend Prelate the Bishop of Chester, earlier today. I believe both this amendment and the previous ones to express a humility about this legislation and to be commensurate with the undue haste with which we have to deal with it. I am very uncomfortable about the atmosphere of your Lordships' House at this present time.
At the end of Second Reading, being the last speaker, I said that I intended to oppose any sunset clause. The problem is very simple: if we accept this clause, we will go through another hasty piece of legislation. As my noble friend Lord Clinton-Davis said, think of the timetable: if you lose two and a half months between May and November there will not be enough time to legislate properly. It would be preferable if my noble and learned friend could give us an assurance from the Front Bench—as I think has already been given—that, as soon we can after the election, whichever party is in power should initiate legislation on the crime of acts of terrorism, or whatever it is called. We should, as I have said before, have a Joint Committee of both Houses to consider that immediately.
Given that we made haste with earlier legislation, which was judged to be discriminatory, and that this legislation has had to be introduced in a hurry, we should give ourselves lots of time. By the first anniversary of the passing of this Bill, we should be ready with something better. That is not a three-year gap—the noble Lord, Lord Goodhart, thought that my noble friend Lord Clinton-Davis was asking for that—but one year is a decent gap, after which I am sure we can have better legislation. In the meantime, if we get to November and have nothing else ready, there will be another almighty panic and another rush to get something through, so that the Government can have some legislation to deal with emergencies.
I hope that noble Lords see what I am saying. If they want a sunset clause, make it a bit later; but neither the amendment on the review nor this amendment addresses the real problem. That is: how do we have better legislation in place? We should concentrate on that rather than on a sunset clause.
Surely the sunset clause will make it a certainty that what the noble Lord, Lord Desai, has just asked for will happen. In other words, it will be looked at—because if nothing is done, the Act will fall. I am not necessarily tied to the date of
This Bill is so important—just as our liberties are, being so much part of everything around us in this building, which was built because of our liberties. We sit here talking and, as Sir Arthur Bryant said in his history of the Napoleonic Wars, the continental dictatorships could not understand that England made war by gentlemen making speeches at each other in the House of Commons. These liberties are so important—and the Bill goes against the grain of them all. With gritted teeth I am prepared to accept it for six months; with more tightly gritted teeth, for nine months—but not for a moment longer.
I would rather get no Bill at all, but if we are to have one then we must have a solid undertaking from both my noble friends on the Liberal Democrat Benches—I am using the term advisedly—and my special noble friends on the Conservative Benches.
At no time have I ever suggested that we should wait for three years. It is grotesque that the noble Lord, Lord Goodhart, should suggest that I have. I agree entirely with the view that we ought to consider this clause in a balanced way. It should not be for longer than one year.
This is an exceptionally important point that embraces two principles, one of democracy and one concerned with the campaign against terrorism. In my view, a Bill of this nature should always have a review clause and a sunset clause. Parliament should always review constraints on liberty as grave as this Bill introduces.
In doing so, two considerations arise, the first of which is democracy. The Bill went through the House of Commons in circumstances in which the other place had no opportunity fully to consider its ambit. It has come to this House and obviously will be the subject of major change. If it goes back to the Commons later this week, and if as I suspect there is a guillotine, the fact is that in our democracy a Bill as grave as this will go on to the statute book with the elected Chamber having given it no proper consideration.
I cannot imagine a more disturbing state of affairs, but I accept the reality of it because I accept the bona fides of the Government's intent. They should accept our bona fides in return. When we want a review and a limitation clause, it is not to undermine the Bill, it is to ensure that, upon review, it is in proper form. If we do not have a limitation and a review, the House of Commons will have lost its place and its function in this particular circumstance.
The second consideration is the campaign against terrorism. Just as we need to be urged on by the Government, they need to be urged on by us. A limitation clause would serve as a trigger for the Government to come back with a comprehensive and up-to-date anti-terrorism Bill setting out new offences and new procedures in a composite picture that satisfies the public that we are doing our best to beat terrorism.
So for the sake of democracy and for the sake of beating terrorism, when this comes back tomorrow I expect the House to favour review and limitation, and I hope that the Government will accept that what is intended is for the benefit of us all.
I entered the Chamber not intending to speak in this debate, but having listened to the noble Lord, Lord Brennan, perhaps I may say that, curiously enough, he and I, on different sides of this House, existed in the same chambers together for many years. That kind of compromise is what is needed at this moment. I believe that it is possible to achieve a Bill which is necessary for the short term, but it has many faults and we should be given the opportunity to look at it with greater leisure so that those faults can be removed. We will then have in place a law that is accepted by both parties and would meet the recognised need for having some means of dealing with terrorists who cannot be dealt with under our normal forms of judicial procedure.
The Government have rushed this Bill through unnecessarily and in a way that has provided no opportunity either in the Commons or in this place for a full debate. In fact one wonders what is going to happen when it returns to the Commons. Will the Government ask the Commons tomorrow or the day after to reject the amendments which they did not vote against in this House, and which have not been debated over there? Surely there is a case for a wider consideration of this Bill, and I share the view of the noble Lord, Lord Brennan, who I consider to be my friend, that we could achieve a compromise provided we then have the time to look seriously at the Bill to take its place.
I too had not intended to intervene on this amendment, but the thoughtful and considered remarks of my noble friends Lord Clinton-Davis and Lord Desai made me think that perhaps I should. I simply want to make the point that I do not believe that anyone in this House, including the Government Front Bench, is happy about the predicament in which we find ourselves. We are introducing measures that go against not just the grain but the foundations of the system of justice that we and our predecessors have worked for over many centuries.
I hope that we do not now slip into the attitude that the task is how we perfect the course we have taken. It may indeed be necessary to contemplate improved legislation. I certainly endorse that proposition. If we are prepared to introduce into our legal procedures measures that cannot be reconciled with some of the fundamental principles of our legal system, as we have come to understand them, it is imperative that year by year the justification for continuing to do so is re-established.
I say straight away that the Government understand the importance of review. That is why the provisions in Clause 11 outlined the review that the Government have in mind—the three-monthly reports, then the independent reviewer and the 12-month report.
Let me come to the issues raised so eloquently by my noble friend Lady Hayman. I understand her frustration. Although I cannot compete with her, being a mere mother of two sons, I understand the fortitude that that takes. Therefore, her patience must be renowned. The important thing for all of us is to get the right balance of protection and civil liberties. My noble friend is absolutely right. We all seek an appropriate legislative vehicle.
There are certain issues that we all also accepted. There is a cadre of persons, albeit very small, who are unlikely to be amenable to any legislation dependent on evidence that can be brought before a court. We have been through the reasons about the nature of the evidence that we may have to rely on, on just a few occasions.
We have to accept that within the portfolio of orders, it is likely that, no matter what else we construct, we will need something similar to control orders. Therefore, this Bill should not be seen as the shortest of short gaps, for all the reasons given by my noble friends Lord Desai and Lord Clinton-Davis. Although I can say nothing about the likely time at which any general election might take place, I can rely upon the published dates for the summer recess. The noble Lord is right that we are going to have a relatively truncated period to consider this.
Review is a matter of importance, but, respectfully, a sunset clause of this nature will not help us, because of the many reasons already outlined—the amount of time and the amount of detail. We hope that in a short compass we will be able to bring forward in the appropriate legislative vehicle further and other provisions that might better address the issues of a new offence.
It is very easy to forget the history of the past year and put on it a construct that it does not merit. Therefore, with great temerity, I should like gently to remind the Committee of the chronology of events.
There was, of course, the Newton report and the consideration given to it. That report was published, I think, on
Work of course continued, but it is important to accept that in recasting provisions one has to bear in mind the nature, extent and form that those new provisions may take. Unless and until we had the full judgment of the House of Lords in the case of Re A, it would have been impossible to set in place concrete provisions which did not reflect or could not have reflected the thinking behind that judgment. Now we have, as speedily as was reasonably practicable, brought forward these new provisions at the same time as continuing to work on the broader context of the other offences.
Although I of course accept and understand the frustration in regard to the timing, perhaps I might respectfully and gently suggest that it was not entirely of the Government's making.
I am grateful to the Minister for giving way. I am mesmerised by the charming way in which she is explaining the sequence of events and I am almost persuaded. But does she not recognise that we all read the newspapers and listen to the media? It is perfectly clear that the Government have briefed the media that there will be no further concessions made on the Bill.
The Minister has sat through the whole debate and Members on all sides of the House are putting forward very persuasive arguments, but that is in the context of a government who have already made up their mind that they are going to make no further concessions. Does the Minister understand why it is difficult to believe the script she is enunciating today when, outside, members of her own Government have been briefing the media that what we do will make no difference at all?
That of course makes it even more important that there is some kind of sunset provision. It seems to have become some kind of political test of virility whether the Bill reaches the statute book and some of us are concerned about the long-term consequences of it. That is where we are at.
I understand why the noble Lord would say that. Of course, no one on the Front Bench can be responsible for what is or is not said in the media. That is an aspiration that we all from time to time in our heady dreams have wanted to have, but it is not the reality. We have to confine ourselves to what is said from this Dispatch Box, and I can assure the Committee that we have continued to listen.
I agree with what was said by my noble friend Lady Hayman, endorsed by the noble Lord, Lord Carlisle, and echoed again by the noble Lord, Lord Newton, that no one wants to die in a ditch for provisions which will not deliver what we jointly seek. Therefore, throughout these debates, I have held on to a number of issues which appear from all the debates to be plain: notwithstanding the difference of view that might be expressed from the various Benches, we all wish the same thing.
No one on any side of the House has said anything to indicate that we do not value our civil liberties highly. We fully understand that balancing those things which we are driven to believe are necessary to protect the security and safety of the citizens of this country against those things which we trespass very carefully upon in regard to their civil liberties is a very delicate and difficult excercise. I say again that no one in this House—and, I believe, in the other place—wishes to be in the position in which we find ourselves, where that balance has to be struck.
I do not find in any of the contributions made from any side of the Committee any indication that any noble Lord is not absolutely serious about that issue. The issue for us all is where the line should be drawn: some of us fall on one side; some on the other.
I assure your Lordships that all the debates that we have entered into are being given appropriate and anxious consideration. My right honourable friend the Home Secretary has made it clear from the inception in the way that he has handled the matter that he would have preferred a consensus. However, we have also made it clear that the Government will do what we feel is necessary to protect.
We have a difficulty in relation to time. We do not believe that November would be an appropriate or convenient date. We have heard what noble Lords have said about the provisions currently contained in the Bill in relation to review, the three-monthly reports made by my right honourable friend the Home Secretary and the nature of the review after a 12-month period.
If we do not have a certain date, this House will express itself in no uncertain way. The Government have to take into account the overwhelming body of opinion expressed so far. I will not tie myself to
I thank my noble friend for that invitation but I regret that I cannot avail myself of it. We will consider the nature of the contributions that have been made. The general tenor of the debate indicates that November 2005 is not the appropriate date. I say clearly to your Lordships that the Government's view is that a sunset clause would not be appropriate. The Bill should not be seen as a short stop-gap.
We will have to give careful consideration to the other measures proposed to be brought forward in new legislation which will be contemplated. That will take a little time. It will be done as speedily as we can but it is unlikely to be anywhere near completion by November this year. We have listened carefully and I bear in mind the issues raised by my noble friends Lord Brennan and Lord Judd, because they endorse the points made by my noble friend Lady Hayman. I thank my noble friend Lord Desai for his suggestion of a Joint Committee on the Bill in both Houses.
Does the Minister feel constrained in making any promises about seriously considering the views expressed by many noble Lords, bearing in mind that without listening to any of these arguments last week the Prime Minister on a question from the Leader of the Opposition completely dismissed the idea of a sunset clause?
I am trying to say as clearly as I can that the Government do not believe that a sunset clause is correct. I also said that we have accepted the necessity for a review of the provisions. That is why review provisions are contained in Clause 11. Of course we hear what noble Lords say about the nature of the review that they would wish to have. The import of what has been said is that the review should be an annual review. Those are matters that will be considered. However, I say to your Lordships that we do not believe that a sunset clause on these provisions is appropriate. That is the current view of the Government.
In the light of all the speeches made by noble Lords, I simply cannot believe that the noble Baroness really believes what she is telling the Committee. The Bill is so contrary, so repellent to our constitutional traditions, that even if we had had ample time to consider it, we would still be asking for a sunset clause. As it happens, the Bill has been pushed through with enormous speed.
I shall give the Committee just one example of why it is crucial that we have a sunset clause as early as possible. The noble and learned Lord the Lord Chancellor has told us that he will be unable to place before your Lordships' House the draft of the rules of court before we cease considering these matters on Tuesday evening. We all believe that putting a judge in the front line of the control order system is only part of the answer. The other part is that the judge should operate within a judicial and not a political context. Until we see the substance of the rules, we shall not know whether the Government have delivered that or not.
For that reason alone, quite apart from my constitutional misgivings, the Government can be sure that we shall return to this matter at Report stage.
This is a very important amendment. It seeks to shift from the noble and learned Lord the Lord Chancellor to the noble and learned Lord the Lord Chief Justice the responsibility for drafting the relevant rules of court which will contain the substance of the due process framework within which the control order system will operate.
In a previous debate that took place before the dinner adjournment, by accident, many of the issues raised by this amendment were fully discussed by the Committee. So I want to re-emphasise only two issues. First, I believe that it is absolutely crucial that the rules that apply to England and Wales are the same as those that apply to Scotland and to Northern Ireland. There is a difference, as the noble and learned Lord the Lord Chancellor knows, in the way in which the rules will be made. In Scotland and in Northern Ireland, they will be made by the senior judge. At the moment, in England and Wales, they will be made by the noble and learned Lord. Our amendment would relieve the noble and learned Lord of that unnecessary responsibility. Of course, he would be consulted, but the last word would be with the Lord Chief Justice.
Secondly, despite the skilful exegesis of the noble and learned Lord of recent case law in the area of Article 6, I am in no doubt whatever that Article 6 of the European Convention on Human Rights not only ought to provide but does provide a floor of security for any rules that are made. In other parts of our debate this evening we shall raise some of the particular issues that we would like to see protected in the rules. I beg to move.
I hope to detain your Lordships briefly in support of my Amendment No. 172A. I agree with my noble friend Lord Kingsland that any rules of court regulating control order proceedings ought to be made by the Lord Chief Justice, and not by anyone else. I support the amendment to which he has just spoken, and not simply for the first occasion on which an order is made, as is provided for by the Bill at the moment.
I refer your Lordships to paragraph 10 of the twelfth report of the Delegated Powers and Regulatory Reform Committee, which deals with this. The report says,
"While we do not regard the provision in the Bill as inappropriate delegation, the House may wish to ask the Government for an explanation of the need for this change."
We have had that explanation already this evening. It goes on to say, at paragraph 12,
"The memorandum explains the negative procedure provided for these provisions by suggesting that 'As with other rules of court dealing with detailed procedural matters rather than substantive issues, the negative procedure provides an appropriate level of scrutiny'".
I will come back to that.
I ask your Lordships to take into account paragraph 3(2)(b) of the schedule, which my amendment seeks to remove:
"the Lord Chancellor is not required, before exercising the powers, to undertake any consultation that would be required in the case of rules made by" the person by whom they are otherwise exercisable. That person is normally the rules of court committee of what used to be called the Supreme Court. There is a mandatory requirement for it to consult such persons as it considers appropriate before making any civil procedure rules. Why should the Lord Chancellor not be required to consult such persons as he considers appropriate? The only compulsory duty to consult binding the Lord Chancellor is to consult the Lord Chief Justice.
If the Lord Chancellor is to be vested with this power, the less disparity between the obligations upon the rules committee and those upon the Lord Chancellor the better. Any disparity should be as slight as possible. That is not at the forefront of our problems in this Bill, but it is one that has its own significance.
I turn to my other amendment. The effect of Amendment No. 176A is that the rules must be subject to a requirement for affirmative procedure for approval. One glance at the hair-raising list of objectives that in some instances must be served by rules of court is surely enough to establish the case for that.
I propose, in the words on the Marshalled List, that
"An order made under sub-paragraph (5)" shall be subject to the affirmative resolution. I realise that sub-paragraph (5) relates only to Northern Ireland, and I ought to have made the amendment broader. I will come back to that, if appropriate, on Report. The point, however, is the same. If the Lord Chancellor is to have these powers, it ought to be a matter for affirmative resolution.
I refer again, briefly, and in conclusion, to the report of the Select Committee. Paragraph 14 says:
"In view of the extensive powers given by the bill to restrict an individual subject to a control order, control order proceedings assume a particular importance. It is apparent from paragraph 4 of the Schedule that the rules are likely to contain provisions which would not be applied in other proceedings and which may well attract a level of controversy".
It can say that again.
"There is also a case for suggesting that because Parliament is being asked to consider the grant of these powers in some haste, the higher level of scrutiny should be applied when the power comes to be exercised. So the negative procedure provides an inadequate level of scrutiny. We consider that an affirmative procedure should apply to the initial rules by the Lord Chancellor for England and Wales and Northern Ireland, and recommend accordingly".
That committee, on which I had the honour to serve for several years, is normally indulged by successive governments with the acceptance of its recommendations. I hope that when the noble and learned Lord replies, we shall find that that practice will not be departed from tonight.
We have a number of amendments in this group. Amendments Nos. 173, 174 and 175 were intended to produce a slightly different solution from that proposed in Amendment No. 172. The Lord Chancellor, while still involved in making the rules, should be required to obtain the consent of the Lord Chief Justice rather than merely to consult him. However, having considered this matter further, we have decided not to move our amendments but instead to support Amendment No. 172, moved by the noble Lord, Lord Kingsland.
Amendment No. 176 proposes that there should be the use of the affirmative resolution procedure which is strongly advocated by the Delegated Powers and Regulatory Reform Committee and which the noble and learned Lord, Lord Mayhew, has just supported. However, we have considered the need, which I can understand, for rules to be brought into operation very quickly indeed, which would conflict with the need to make use of the ordinary form of the affirmative procedure.
We therefore intend to put down an amendment on Report which will introduce an unusual, but not unprecedented, form of affirmative resolution procedure for use in emergency situations. That means that the noble and learned Lord the Lord Chancellor will be able to bring his rules into force immediately the legislation comes into effect, but those rules will cease to have effect unless they are approved by a resolution of both Houses within 40 days. That seems to strike an appropriate balance between allowing the noble and learned Lord to introduce the rules with all necessary speed while requiring the use of an affirmative resolution after the event by both Houses and not simply having to rely on praying against the negative resolution procedure.
I support my noble friend Lord Kingsland in this amendment. I am very much in favour of the rules being made by the Lord Chief Justice after consulting the Lord Chancellor. However, I rise with slight diffidence because I wish to raise another point.
Tonight's rather strange groupings have a certain creative element to them. My noble friend's Amendments Nos. 193 and 195 are consequential on this one. As it happens, I have two amendments in that group which are rather similar. Going by the experience of the noble and learned Lord the Lord Chancellor this evening, one could very easily find that if you blink more than twice, the Liberal Democrats will have moved an amendment which would remove the clause to which you wish to speak.
If and when my noble friend gets the chance to move Amendments Nos. 193 and 195 to replace "Lord Chancellor" with "Lord Chief Justice", I am hoping to move amendments proposing that in Scotland it should be the Lord President.
Beginning with the making of the first set of rules in relation to the control order procedures, the provisions made in the Bill involve the Lord Chancellor, after consulting with the Lord Chief Justice, making the rules for both England and Wales and for Northern Ireland. In Scotland, the Lord President makes the rules. That procedure is proposed because, in relation to each of the three jurisdictions, the rules are, in practice, required to be effective as soon as possible. The Part 4 powers lapse at midnight on
As for the proposal that if the Lord Chancellor makes the rules he should consult everyone that the Civil Procedure Rules Committee would consult in England and Wales and the Northern Ireland Civil Procedure Rules Committee would consult, that is not remotely practical. It is important that rules are in place. The critical question seems to be what is the best way to get there in a way that produces rules, as the noble Lord, Lord Kingsland, said, that are, in practice, judicial rules rather than in any way motivated by politics.
There are rules for the SIAC hearings at the moment which, although not identical, will be quite similar to the rules that will be applied in relation to this procedure. The best and most practical course in relation to getting rules that everyone consents to in England and Wales and in Northern Ireland, is for the Lord Chancellor to propose them, for the Lord Chief Justices in both those jurisdictions to consider them and then for all of us to reach agreement. I am sure that that is what will happen in practice. That will produce rules that are acceptable. But, as I said, these rules will need to be looked at very quickly thereafter because these are rules ultimately that we envisage being made by the Civil Procedure Rules Committee in both those countries.
How do we get to that point? The right course is for us to agree upon a procedure for the purposes of Parliament that the rules can come into effect straightaway but that they can, in some way or another subsequently, be reviewed by this House—the sort of procedure proposed by the noble Lord, Lord Goodhart. There could be an affirmative resolution procedure of an unusual sort, which the noble Lord suggested, or a negative procedure whereby this House could pray against the rules. I am not clear at the moment what the difference would be in practice, although I notice that the noble Lord, Lord Garden, is shaking his head, so he is aware of what the difference between the two is.
I cannot see at the moment what the difference is, but we would need to consider some process by which the rules come into effect straightaway but that both Houses have a chance to look at them.
While that process is going on, no doubt the normal procedures will be gone through for the Civil Procedure Rules Committees in Northern Ireland and in England and Wales to produce appropriate rules. That way, we have covered the short-term problem. We have allowed Parliament to have a look at the rules and we have a process in place whereby eventually we get more permanent rules that apply.
Scotland is in a separate category. That was made clear in the course of the debates before the dinner hour adjournment. The Lord President will make the rules there, not the Lord Chancellor, on the basis that the rules of procedure of the Court of Session are a reserved matter not a matter for the Westminster Parliament or the Westminster government. The Lord President is confident he can produce rules within the time required. If further amendments are required, it is a matter for the Lord President to determine how those are dealt with.
This is a practical problem. I have sought in my proposal to accommodate all ranges of opinion around the House. It is not perfect but it is a sensible and workable solution. In those circumstances, I invite noble Lords to withdraw their amendments.
I am most grateful for the amendment that has been tabled by the noble Lord, Lord Goodhart, with respect to parliamentary approval. It seems to me that it would work. I can foresee no circumstances in which we would not support it tomorrow. I shall reflect carefully on what the noble and learned Lord, Lord Mayhew, said about all these matters to see whether we should add or alter our draft in any way.
One thing that I have gleaned from what the noble and learned Lord the Lord Chancellor said tonight is that he is keenly aware of the importance of this matter and I think has expressed an intention to be as helpful as possible. However, the fact is that these rules will be decided judicially in Scotland and Northern Ireland, but essentially politically here. I accept that the Lord Chancellor does not have the intention of injecting a political ingredient.
I listened with my usual attention to the noble and learned Lord the Lord Chancellor. He dismissed as being fairly impracticable my suggestion that the Lord Chancellor when making these rules should be under the same obligation as is imposed upon the Civil Procedure Rules Committee. If it is impracticable, it is solely because of the absurd and grotesque speed with which this legislation is being pursued. That point has been adequately laboured tonight and I shall not repeat it. In the circumstances I shall not move this amendment or Amendment No. 176A.
Amendment No. 177 is the most radical in this group. It seeks to expunge the whole of paragraph 4 of the schedule to the Bill. This paragraph makes special rules of court. They are quite astonishingly different from the rules that one would normally find when engaging in litigation.
I am torn between two solutions on these matters. The first is simply to hand the whole thing over to the Lord Chief Justice and ask him to make a set of rules in the light of his experience and understanding of the matters which would have to be dealt with by control orders. On the other hand I am inclined to think that we need to do rather more than that on the face of the Bill. I am inclined to think that we need to put in some guarantees for the individual who is likely to be the subject matter of a control order. I have done that in two ways, partly by making some suggested excisions from paragraph 4 and partly by making some suggested additions to it. The excisions are contained in one line of the amendment and the additions are in the following line.
Paragraph 4(1)(a) deals with the burden of proof. I believe this matter is currently resolved because we have included in the Bill this afternoon the test of balance of probabilities. So paragraph 4(1)(a), at least at the moment, no longer belongs in the Bill. I must say I find—
The matter is dealt with even more extensively. The problem with using the phrase "burden of proof" in the rules was that it might be said to give the rules the power to overturn the provisions about burden. Therefore, I have tabled an amendment that deletes the words "burden of", which I think solves the problem completely.
I am most grateful to the noble and learned Lord.
Paragraph 4(1)(b) to the schedule enables or requires control order proceedings to be determined without a hearing. I find that rather alarming. In the extreme circumstances in which it might be inappropriate in some unforeseeable—at least by me at the moment—set of conditions not to have the defendant present, it would certainly be necessary to have the defendant's legal representative present at an oral hearing. I cannot understand how this paragraph can be justified when considered together with the imposition of a control order that is denying a citizen the rights that he has had since time immemorial.
I view paragraph 4(1)(c), which entitles the rules to make provisions about legal representation in such proceedings, with the gravest suspicion. It suggests to me that there might be some circumstances in which the defendant might not be legally represented. That suspicion is confirmed by the last line of paragraph 4(2)(a), which refers to:
"a relevant party to the proceedings or his legal representative (if he has one)".
I would have thought that if the potential subject of the control order is not entitled to have a hearing, a fortiori he ought to be entitled to have a legal representative.
By drawing your Lordships' attention to the last line of paragraph 4(2)(a), I have said most of what I wish to say about the paragraph. It states:
"Rules of court made in exercise of the relevant powers may also, in particular . . . make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative".
I find that quite unacceptable. It may well be that a sifting process would have to take place so that the reasons given effectively disguise the sources of evidence or the means by which that evidence has been gathered, but I can see no justification for the terms of the clause itself.
Finally, I come to paragraph 4(3)(c), which is perhaps the most alarming provision in this entire paragraph. It states:
"The Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
The noble and learned Lord the Lord Chancellor and I had an earlier exchange about this matter, but I remain unclear about what his intentions are with respect to it. It seems to me to be contrary to all the principles that have been developed in the criminal courts over recent years. To deny access by the defendant to information which is favourable to him seems to be grotesquely and inexplicably one-sided. Quite apart from anything else, it offends one's basic sporting instincts.
All that part of paragraph 4 should go. As the other matters to which I wish to refer in paragraph 4 come in amendments in the next group, I shall simply beg to move.
I find the provisions of paragraph 4 of the schedule the most shocking part of the Bill.
It is very important that there should be a judicial decision for control orders if the principle of control orders is to be accepted. But, as we have said on previous occasions, the other side of the coin is that there must be due process—something resembling a judicial hearing to enable a judge to take a judicial decision.
Almost everything seems to be excluded in this paragraph. There are provisions to be made about the mode of proof in control order proceedings—obviously hearsay is involved in that; intercept evidence gets a paragraph to itself; but it also permits evidence that has been obtained by torture. I find it shocking that the Court of Appeal could recently decide—as it is entitled to—that it is part of the law of England that the courts will receive evidence obtained by torture subject only to one condition: that we do not do the torturing ourselves. I cannot understand why it is more reliable if the torture is carried out in Chechnya, Azerbaijan or some other place.
We have seen an unbelievable decline in standards, both in the United States through the way it has behaved at Abu Ghraib and Guantanamo, and, I regret to say, in our own behaviour in Iraq, as has been found by recent hearings in the courts martial. This is another part of the decline of the judicial system being given statutory form. I find it absolutely shocking.
We will come on to sub-paragraph (3) of paragraph 4 in due course. But the one matter that really made me stand up and throw the Bill away was sub-paragraph (3)(c) which deals with disclosure. Under the terms of this, it would no longer be necessary for the Secretary of State to disclose matters that were exculpatory as far as the suspect was concerned. Part 4 of the present Act has been condemned by the Judicial Committee of this House: but in that Act there are proper provisions for disclosure—admittedly unsatisfactory in that it is disclosure to lawyers who have no opportunity of carrying out their fundamental duty of taking instructions from their clients. But here it is left to the Secretary of State to conceal from the claimant matters that are contrary to the Secretary of State's case or which might assist the claimant's case.
We wholeheartedly support the amendment moved by the noble Lord, Lord Kingsland. We emphasise and will continue to emphasise the role played by torture in obtaining evidence that is put before these tribunals. We will deal with that matter in due course. We shall look to see the complete rewriting of this paragraph along the lines of the proposed amendments.
The noble Lord has no monopoly on the litigation as far as concerns the Bill.
On the points raised by the noble Lord, Lord Kingsland, everybody is entitled to legal representation—indeed, it is vital in the proceedings which are being considered—unless the defendant or the person concerned refuses legal representation. That is an entirely different course of events.
I want to talk primarily in my short remarks about torture. I entirely agree with the noble Lord. Any evidence adduced by torture is both unacceptable and unreliable. It does not matter whether that torture occurs in another jurisdiction or in our own. For that reason and because I think that torture is odious and moreover unreliable we should reject the whole idea. I hope that my noble and learned friends will accept the idea that evidence adduced by torture is not to be relied on by our courts in any shape or form.
What we have just heard is right. I want to return briefly to paragraph 4(3)(c) to which the noble Lord, Lord Thomas of Gresford, recently referred. It states that,
"the Secretary of State is not required for the purposes of any control order proceedings . . . to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
That, as the noble Lord, Lord Thomas, said, includes material that exculpates the controlled person—the defendant, if one can call him that. Each of the Ministers, the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are distinguished members of the Bar. Would not each acknowledge that if prosecuting counsel were to be found in disciplinary proceedings to have withheld material that exculpates the defendant, that would lead unquestionably to his disbarring, as being in fundamental breach of a most important tenet of a member of the Bar, which is to serve the interests of justice?
If the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are prepared as Ministers to advocate this proceeding, I am bound to ask them in all friendship whether there is anything they would not be prepared to sit on the Front Bench and advocate.
I first say that I regret very much that long-standing and unbreakable commitments last week meant that I was unable to participate in earlier proceedings, but I have carefully read Hansard.
I rise on this amendment to speak on a different line from those raised heretofore. It is something that disturbed me a little when reading some Second Reading speeches and it is what disturbs me about taking out paragraph 4. The provision is repeated at different times. The noble Lord, Lord Kingsland, quoted paragraph 4(2)(a), which made,
"provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given".
Later on paragraph 4(3)(c) states,
"to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
That has a different connotation and meaning for me than it does for some other noble Lords. I am extremely worried and disturbed at how intelligence material in general and interception material in particular is being advocated by some noble Lords as suitable for disclosure in court proceedings. I am absolutely and implacably opposed to that for many reasons.
The whole area of interception is much more complex and sensitive than most people imagine. Happily that also includes the targets of those operations. It needs only a mention, a hint, let alone actual revealing, just once in any proceedings to lose that capacity. That would be an extremely serious blow to any intelligence or law enforcement service.
It is not often realised that when one takes action, it is a technical operation. In this country, it is completely controlled by the Interception of Communications Act, with a commissioner who is a judge. The noble and learned Lord, Lord Lloyd of Berwick, who unfortunately is not in his place, was the first such commissioner. Under that Act, operations are carried out by intelligence and security services, as well as police and other law enforcement agencies.
It is often said that other countries can use such evidence in court so why cannot it be done here? There are many good reasons for that. In some countries the evidence produced from a national police force in its own territory plugging into telephone lines is not a very sensitive operation. It does not give away anything much about techniques, and it usually does not endanger delicate sources. Technical operations often require agents to help with access. If it is cipher, there is usually a key to it from intermediaries who are recruited and who risk a lot to help.
To risk that in a court is quite wrong. The extent of the risk is not fully recognised. One cannot go into too many details, but one example in the public domain is the trial of the people who carried out the first attack on the World Trade Centre. The FBI put intercept material into court, and immediately Al'Qaeda changed from using the form of communication from which that material had come, thereby putting back the effort against it considerably. There are lots of other examples but that is one of the main ones.
We also have to consider our legal system. There are many noble Lords in the Chamber who know our legal system much better than I do, and I have heard a lot about it tonight. One thing that is different about our legal system, of which we are proud, is the adversarial roles of counsel—the defence, in particular. A defence counsel can range far and wide when he has evidence or someone is in the witness box. I am not saying that that is wrong, but we should not then have sensitive material so that a defence counsel can go well beyond the part that is being produced in court proceedings.
That is a strong argument that people do not always appreciate. In other countries where there is an investigating judge or magistrate, things are different. Sensitive material can be used without the risk involved in using it in a British court. In this country, we not only have various agencies, which have a sophisticated and efficient means of interception, we also have a very close relationship between our security and intelligence forces and law enforcement agencies. I am not saying that that is unique in the world, but it is very rare. If you start to bring in material from the services, which have to take more risks and to use more sophisticated techniques, and you expose them, you will endanger a lot more than most people realise.
I have huge, genuine respect for the noble Baroness's tremendous experience in the field of intelligence, and I think that everybody in this Committee respects her for that experience. But some of us lawyers have worked with intelligence material in court quite frequently—currently, in my case. I would be interested to know whether the noble Baroness has recently been in a court to see how these intelligence matters are handled today, or whether she is looking back to a time, let us say, 10 or 15 years ago, when these matters were dealt with quite differently.
I was not in court then, and I have not been in court recently, but I do not have to be to know what is happening. And, yes, I am aware of what is happening. Of course things have changed a great deal. None of that invalidates anything that I have just said about the sensitivity of interception techniques, which you would endanger if you started producing them in court and to a defendant.
I have very rarely met a lawyer who did not want intercept material in a court. In my experience, most lawyers are always completely confident that anything can be contained and dealt with well in court. I accept that; it is a professional feeling, and if it were my whole world, perhaps I would believe it too. My world was different, and I do not accept that position. I am extremely disturbed at the idea of very sensitive material going into court proceedings.
Like the noble Lord, Lord Thomas of Gresford, I have unlimited respect for my noble friend Lady Ramsay and her professional experience in these spheres. All of that means that we should listen to what she says with great care.
It is far too late in the evening to go over all the arguments, but I commend to the Committee the report of the Joint Committee on Human Rights, which looked at the issue very seriously. I ask my noble friend to accept that we took the kinds of points that she has made very seriously. However, looking at practice elsewhere in the world, and looking at what was possible here, we concluded that the situation was not as absolute as she has very forthrightly expressed it this evening, and that there would be ways in which to tackle this problem while maintaining the responsibility for the integrity of the operation and for the safety of those involved in terribly dangerous and vital work. I ask noble Lords on all sides of the Committee, if they can spare the time, to read the report and to see what the committee had to say on the matter.
I wish to respond to what the noble Lord, Lord Thomas of Gresford, said about torture. Again, the Joint Committee on Human Rights has been deeply exercised about that and has spent a good deal of time considering it. I remind Members of the Committee that the Joint Committee is made up of six Members of this House and six Members of the other place, about half of whom are lawyers and half non-lawyers. All the principal parties are represented on that committee.
Of course the committee took into account what the Court of Appeal had ruled. But I hope that the Committee will forgive me at this late hour if I do not go into an expansive discourse. I beg the indulgence of the Committee if I read just three paragraphs from the Joint Committee's report, because I suspect that, given all the pressures of time and the rest, not everybody has had time to see them. I would just like to read them; they will not take long:
"The UN Committee Against Torture, in its recent Concluding Observations, expressed its concern that UK law had been interpreted to exclude the use of evidence extracted by torture only where its officials were complicit, and recommended that the Government should give some formal effect to its expressed intention not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture.
We asked the Home Secretary"— when the Home Secretary was giving evidence—
"if he could confirm that none of the material which is relied upon in relation to the current detainees has been obtained from other sources abroad, including the United States, where there have been serious allegations of torture and prisoner abuse. The Home Secretary said that the Government did consider whether it believed that torture had been used in any particular case, and that it did not believe that torture had been used in the cases of the current detainees, but"— and I quote the Home Secretary—
"'we are in a serious difficulty here in that proving a negative in this case is a difficult thing to do.' When pressed on how precisely the Government establish that torture has not been used, the Home Secretary repeated that proving a negative is a difficult thing to do. When asked for an assurance that he will apply an absolute rule that if there is any question that evidence has been obtained by torture it must not be used, the Home Secretary said"— and again, I quote—
"I would need to be convinced that it had been used which . . . I am not in this case'".
Our report concluded with this paragraph:
"We remain concerned about the possible use of torture evidence by UK authorities. Our concerns have not been allayed by the evidence of the Home Secretary. Indeed, we now have concerns about whether the Government has any system in place for ascertaining whether intelligence which reaches it in relation to people allegedly involved in terrorism-related activity has been obtained by torture. The Bill is silent on this question, despite the obvious concern that the material relied on by the Government to obtain control orders may well include material which has been obtained by torture. We recommend that the Government takes the opportunity presented by this Bill to implement the UNCAT recommendation that it give some formal effect to its expressed intention not to rely on or present in any proceedings evidence which it knows or believes to have been obtained by torture".
I warmly endorse and support everything that the noble Baroness, Lady Ramsay, has said. I will, however, add two points. One is that we are also obliged to think about the rights of the agent who takes the risk, by working—probably for many years—in a highly dangerous environment, knowing that his life is at stake. That would be so in the kind of case we are discussing. Frankly, if such agents see this sort of thing happening in courts, and defence counsel—quite properly, given the interests of their client—revealing what should not be revealed, then we shall not have any agents. That would be a pretty serious situation.
It is also one of the more serious aspects of terrorism that it is extremely difficult to find people with access, courage, determination and lasting power. We should not overlook the fact that they too have rights. They need to be protected—and need that protection more, I fear, than the person who would be on trial.
I would surmise that the problem outlined by the noble Baroness, Lady Ramsay, and my noble friend Lady Park is not new. I assume that throughout the Irish Troubles we had agents deep within the IRA. We knew that we did not have to compromise them and we knew how not to compromise them.
On intercept evidence, I go back to the 1914 war. That may sound rather odd, but I refer to the famous Zimmermann telegram. Because we had broken the German diplomatic code, we could read all the German diplomatic exchanges within the United States. It was absolutely essential that we did not allow the Germans to know that we had broken their code—exactly the point made by the noble Baroness, Lady Ramsay.
Noble Lords will know that Zimmermann was the German Foreign Minister. He sent a telegram to the German ambassador in Mexico asking him to please stir up a war between the United States and Mexico. Mexico could then have Arizona, Texas and New Mexico back. That drove the United States up the wall. It was a really important piece of information. We had to convince the Americans that it was genuine—Woodrow Wilson was being difficult—and we had to convince the Germans that we had not broken their code.
The point is that there is nothing new in this problem and therefore we can deal with it in the old ways. We must be very careful not to compromise our sources of intelligence. Al'Qaeda knows perfectly well, because it has been all over the American newspapers, that when one of Osama bin Laden's people uses a satellite television in a cave in Afghanistan, almost immediately a drone aeroplane zaps in from on high, having picked up the signal. Those people know that we have very high quality interception. These problems can be overcome, as they have been in countless previous court cases, whether they concern the IRA or spies for the Soviet Union during the Cold War.
On the subject of torture, the noble Lord, Lord Judd, makes a good point in saying that the Home Secretary complains that he cannot prove a negative. If he gets a tip or information from the Uzbek intelligence community, it is almost a racing cert, because that is how those people function, that it has been obtained through torture. Equally, I suggest that the Egyptian anti-terrorist intelligence services are not exactly members of a Liberal Democrat parish council.
All these problems are knowable; there is nothing new in them and there is no reason why we cannot deal with them in complete conformity with a view to human rights and according to our own standards. That is what we are in this House to maintain.
I cannot refrain from saying, with the greatest respect to my noble friend, that he is talking absolute nonsense. This is a totally different situation, one that involves far more sophisticated people and much greater danger. Thank God we did have people within the IRA, but we would not have had them if they had been exposed in this way. That will happen again. We are not talking about the Zimmermann telegram, although that was an important issue; we are talking about human beings—and human beings we will be putting at risk. I submit that that is not the same as putting systems at risk, although they are very important.
These are important provisions about the rules of procedure and it is incumbent on the Committee to consider the material put before us by those who have engaged in the debate. I am extraordinarily impressed by what has been said by both my noble friend Lady Ramsay and the noble Baroness, Lady Park. Indeed, their words are wholly reflected by those with any experience of what has gone on within SIAC. I refer to three authorities in that respect. First, the committee chaired by the noble Lord, Lord Newton, made it absolutely clear that certain material could not be disclosed either to the suspect who was the subject of the orders or to his lawyers. Secondly, the noble Lord, Lord Carlile of Berriew, made exactly the same points as the noble Baroness, Lady Park, in his report. He referred specifically to the fact that free disclosure would put human intelligence sources at risk. Thirdly, the judges in SIAC supported the non-disclosure of material to the suspect for precisely the reasons that the noble Baronesses, Lady Ramsay and Lady Park, put to this Committee this evening.
With respect to the noble Earl, Lord Onslow, he delivered an entertaining speech, although I prefer the epithet of the noble Baroness, Lady Park. It sounded absolute nonsense. One should look to see what methods had been crafted in the context of the present situation and accept that the people who had been working it may know better than us. We should accept those provisions.
I also draw attention to the fact that, as far as lawyers are concerned—in a sense, lawyers should follow a problem, rather than think they can impose a template—the European Court of Human Rights adopted the approach whereby it was not disclosed to the suspect or his or her lawyer. Instead, they indicated that the use of a special advocate was the right procedure, which is SIAC. As I indicated during earlier submissions, the approach that SIAC has taken was explicitly approved on two separate occasions by the Court of Appeal as being a just process. The Court of Appeal looked at it and said that it is the right way to deal with it.
In the case of M, the noble and learned Lord, Lord Woolf, the Lord Chief Justice, explained:
"As this appeal illustrates, a special advocate"— which means that some material has not been disclosed to the suspect—
"can play an important role in protecting an appellant's interests before SIAC. He can seek further information. He can ensure that evidence before SIAC is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant".
"It is possible by using special advocates to ensure that those detained can achieve justice and it is wrong, therefore, to undervalue the SIAC appeals process".
That is somebody who has looked at it on a number of occasions. Everybody who has looked at it thinks that that is the right way to deal with it.
I shall go through the provisions about rules very quickly to satisfy the noble Lord, Lord Kingsland. Paragraph 4(1)(a) states:
"make provision about the mode and burden of proof".
We delete the words "and burden" to deal with his point. I cannot believe that he objects to rules being made which talk about the mode of proof,
"in control order proceedings and about evidence in such proceedings".
Paragraph 4(1)(b) states:
"enable or require such proceedings to be determined without a hearing".
I cannot believe that the noble Lord, Lord Kingsland, wants it to be necessary for there to be a hearing even where there is a consent order or for some minor matter. Of course not. Therefore, paragraph 4(1)(b) is not the horror that the noble Lord sought to suggest it was.
Paragraph 4(1)(c) states:
"make provision about legal representation in such proceedings".
That was put in so that the court can allow somebody who would otherwise not have rights of audience to have rights of audience. I do not know whether or not the noble Lord would wish that to be removed.
Paragraph 4(2)(a) states:
"make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
That is the problem in relation to not disclosing material to the suspect or his lawyer. If he has one is a matter for him to decide, because I made clear previously that he would be entitled to legal aid without a means test.
Paragraph 4(2)(b) states:
"make provision enabling the relevant court to conduct proceedings in the absence of any person, including the relevant party to the proceedings and his legal representative (if he has one)".
Again, that is exactly the same point.
Paragraph 4(2)(c) states:
"make provision about the functions in control order proceedings and relevant appeal proceedings of persons appointed under paragraph 7".
That is the special advocate procedure.
Paragraph 4(2)(d) states:
"make provision enabling the relevant court to give a relevant party to control order proceedings or relevant appeal proceedings a summary of evidence taken in his absence".
Again, this allows him to be told certain things, but not others.
The provisions in paragraph 4(2)(a) to (d) raise four square the balance between protecting human intelligence and intercept material, which is method, and the right to try to give as fair as possible a trial to the suspect. We put them in so that it is clear that we can adopt the SIAC rules. I am surprised that the noble Lord, Lord Kingsland, objects.
Paragraph 4(3)(c) has also been referred to. It states:
"the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
We make it clear that any exculpatory material has to be disclosed. The practice at the moment is that the Secretary of State gets his counsel to check through all of the material to see whether there is any exculpatory material. That is then disclosed to the court and to the special advocate acting in the context of the suspect, who does not see all of the material.
If there is any material that the Secretary of State objects to the suspect or his legal representative seeing, then, as long as the court agrees—and it has hitherto—it will not be shown to the suspect or his legal representative. So both the court and the special advocate definitely see the exculpatory material and, if there is no objection, then so does the suspect and his legal representative.
That is the way in which it works in practice. I do not think that the rule in paragraph 4(3)(c) would prevent that happening. That is the proposition that was being advanced. I shall certainly think carefully about what has been said in relation to it and, if I think that it does prevent that happening, or the rules reflect that happening, I shall come back to the House and seek to make an amendment to ensure that it does not happen.
Ultimately a point could be reached where, having disclosed the material to the court and to the special advocate, if the court took the view that the suspect should see that material and the Secretary of State took the view that that would be intensely damaging to national security, it would be for the Secretary of State to decide at that point whether he was going to proceed with relying on that material. But I make it clear that exculpatory material has got to be shown to the court and to the special advocate. I think that meets the point made by the noble and learned Lord, Lord Mayhew.
Perhaps the noble and learned Lord can help me on that topic. When the SIAC sees material that is not disclosed either to the applicant or to his representative, is it entitled to act upon it? Usually in a criminal trial the judge will look at material to decide whether it is relevant or whether it should be disclosed, but he does not act on it because there is a jury, and it is the jury who are the finders of fact. What happens with material disclosed to SIAC? Is it entitled to act upon that material?
Of course it is entitled to act on it. The decision is being made by SIAC and it must make its decision on the basis of all the material that is put before it. If there is material that is shown to the court and looked at by the special advocate but not seen by the applicant or his legal representative, SIAC is obliged to consider all of the material before it in reaching a decision. There is no exclusion of the material from its decision-making process. It might not attach much weight to it for evidential reasons or it might attach significant weight to it; it is for SIAC to decide.
The way in which the commission operates is that it has to try to be as fair as it can be to everyone. It has to make its decision based on all the material before it.
I am grateful for that clarification. Does it then follow that SIAC makes a decision and forms its reasons based upon material that is never shown to the applicant, but then does not tell him those reasons? So his liberty can be diminished without him ever knowing what SIAC has seen, what the allegations are and what the reasons are for his detention or whatever it may be. Is that how it works?
Again, I am disappointed that the noble Lord has not read the Newton report and the Carlile report, which went through all of this in great detail. The court seeks to give as much material as it possibly can to the suspect and his legal representatives. Some of the material, if disclosed to the suspect or his legal representative, could endanger method or source of information. So a balance has had to be struck, an approach that the European Court of Human Rights has upheld as a fair process because of the intervention of the special advocate. I refer not to SIAC but to the deportation tribunals in 1997, where that was upheld. We submit that there is no difference whether it is a control order or imprisonment pending deportation. We have adopted a procedure that the convention has suggested.
We think that each paragraph in the rules is not the sinister thing that the noble Lord suggests but a sensible and workable way of putting together the rules. We put in the specific provisions relating to the rules in part to ensure that there will be a proper debate about what will go into the rules on the first occasion. I am glad that we did so because it has enabled us to get rid of some misconceptions and face head on the issue of how the procedure will work.
Yes, I believe that it would. I believe that it is the fairest procedure that can be devised that ensures that the suspect sees as much as possible and we protect our sources. The consequence for the people in respect of whom the procedure has been held to be fair is that they have been put in prison and have been in prison for a considerable time. Control orders will not go that far. I have little hesitation in saying that I believe this to be the fairest procedure. The Lord Chief Justice described it as a procedure whereby justice could be done. That is the essential test of whether it is fair.
We have to face up to the need to strike that balance. The consequence of what the noble Baroness, Lady Falkner, is saying, is that if we cannot disclose everything then we cannot have control orders. That is not the approach that either we or, I believe, the Front Benches of either opposition party or the noble Lord, Lord Carlile, or the noble Lord, Lord Newton, or the courts take.
I turn to Amendment No. 179, the purpose of which is explicitly to prevent the court from using evidence obtained through use of torture. The Government unreservedly condemn the use of torture and have made it an important part of our foreign policy to pursue its eradication worldwide. There has been a great deal of speculation about the cases put before the Special Immigration Appeals Commission and whether they relied on material from other countries that may have been obtained using torture.
SIAC emphatically rejected any suggestion that any evidence relied on by the Home Secretary was or even may have been obtained by torture; or indeed by any inhuman or degrading treatment. The Court of Appeal confirmed SIAC's view. It is important to be clear that it is not the Home Secretary's intention to rely on or present to the court evidence where there is a knowledge or belief that torture has taken place. We do not believe that the amendment is appropriate because we do not need it.
I should make it clear that even though the Court of Appeal in A and Others—that is not the A and Others case that went to the House of Lords, but the other A—confirmed SIAC's view that there was no evidence that any material relied on by the Secretary of State had been obtained by torture, it decided by a majority the issue of whether such material could ever be admissible evidence.
On this issue the Court of Appeal held that,
"The Secretary of State could not rely on a statement which his agents had procured by torture, or with his agent's connivance at torture. He was not, however, precluded from relying, for the purposes of ss 21 and 15 ATCSA 2001, on evidence coming into his hands which had or might have been obtained through torture by agencies of other states over which he had no power or direction. If he had neither procured the torture nor connived at it, he had not offended the relevant constitutional principles. Provided that the Secretary of State was acting in good faith, a recognition of his responsibility for national security was required when assessing his approach to the material available to him. That conclusion was not altered by art 15 of the United Nations Convention Against Torture".
That matter is now going to the House of Lords.
Does my noble and learned friend agree that it is not just a matter of human rights and related issues, but that it is fundamentally central to our considerations that information gained by torture is notoriously unreliable? If the Home Secretary does not know for certain how the information has been acquired, how can he evaluate that information and its reliability? Does that not serve to underline still further that, right at the centre of the decisions that may be made by the Home Secretary, there is the possibility that he is acting on information about whose quality he cannot be certain.
I repeat our utter repudiation of torture. Governments will obtain material from other governments, but they may not know the precise details of how it was obtained and yet they may regard it as reliable; for example, the source has given reliable material in other circumstances. So reliability can be judged by testing what has been said elsewhere.
On the basis that the material is reliable, and there is no suggestion that it was acquired under torture, the Home Secretary would be justified in relying on it so that steps can be taken to prevent an atrocity in this country. As I say, I make it clear that we repudiate torture and that is an essential part of our foreign policy.
Before we leave the topic altogether, the noble and learned Lord has quoted from the judgment of the Court of Appeal. Was it not the argument of the Government before the Court of Appeal that evidence obtained by torture, so long as it was not obtained by people under the control of the Government, was admissible and acceptable? Is that not encouraging the use of torture in other countries?
The Government's argument was that no material relied on by the Home Secretary had been obtained by torture. That was the first submission. The second submission was that, if, contrary to that first submission, it was obtained by torture and it was reliable, in certain circumstances it would be necessary for the Home Secretary to rely on it if he were to prevent an atrocity. Both arguments were accepted by the court, provided that the Secretary of State was acting in good faith. A recognition of his responsibility for national security was required when assessing his approach to the material available to him. The House of Lords will have to decide whether that is right or wrong.
I shall be interested to know the view of the noble Lord, Lord Thomas, if the Home Secretary were confronted by material that was reliable, because it was confirmed in another place—for example, material relating to another country had been provided by that source and it turned out to be right—and that material suggested that an atrocity might be about to occur. To what extent would the forces of the state be entitled to rely on that? Perhaps that argument is for another day.
I appreciate that the noble and learned Lord's words are not addressed to me but to my noble friend Lord Thomas. I believe he goes to the heart of the matter. If the Home Secretary found that the evidence was reliable, perhaps the noble and learned Lord can tell the Committee how the Home Secretary would expect to know that the evidence is reliable when it might have been obtained by torture and he does not have any information on the veracity of the material. Will there be some definitional test whereby the Home Secretary will certify that the information on which he bases his decision is not obtained by torture? Ergo, essentially we do not know. Therefore, how can we take serious decisions, based on a serious perception of a threat when we simply do not know. We know empirically that evidence obtained by torture tends on the whole to be unreliable.
I would much prefer that the noble Baroness, Lady Park, or my noble friend Lady Ramsay, answer that question. My instinctive reaction is to say, "How is the Home Secretary supposed to know?". He has to make a judgment and he has to take advice. In relation to intelligence, it may be that one of the most indicative signs that something is to be relied upon is whether the source had produced material in the past that had turned out to be reliable. It might depend on what the source was, whether human intelligence or technological intelligence. One would put everything together and come to a judgment in relation to where, overall, the intelligence points. That involves making a judgment and it involves the Home Secretary taking sensible advice and being able to evaluate all the material before him.
I thank the noble and learned Lord for his response, and indeed all noble and noble and learned Lords who have spoken in this crucial debate.
Before I make my concluding remarks, I would like to press the noble and learned Lord on paragraph 4(3)(c), which deals with exculpatory evidence. The noble and learned Lord said he was not sure whether his undertakings about exculpatory evidence were consistent with that paragraph. It seems to me that they are not.
The paragraph states that,
"the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court"—
I pause there—
"or to any other person, where he does not propose to rely on it in those proceedings".
It would make a great deal of difference to me in this whole debate if the noble and learned Lord were prepared to make a clear distinction between revealing this evidence to the court and revealing it to any other person.
I accept the powerful speeches made by the noble Baroness, Lady Ramsay, and my noble friend Lady Park, saying that there will be circumstances where it would be fatal to the national interest to reveal either the source of intelligence information or the method by which that source succeeded in gleaning it. I accept that it follows that evidence about the source and the methodology should not be revealed to any other person except the special advocate.
Does the noble and learned Lord agree, however, that the court ought to have all the evidence made available? By that, I mean the judge, because he would be in a position to sift that evidence and ensure that "any other person", at the end of the day, was only aware of the consequences of what had been discovered, and not the manner in which it had been discovered or the person who discovered it. If the judge could render down the information they had to what he considered was essential for the prospective subject of the control order to know, in all fairness, I would derive a great deal of comfort from what the noble and learned Lord said.
To say that the Secretary of State can simply assert that evidence is reliable, however, and to have to do no more, would make these control orders an executive act, not the consequence of a judicial decision, even though they would be made by a judge.
The noble Lord, Lord Kingsland, exactly follows what I was saying. I am happy to go away and, if necessary, amend paragraph 4(3)(c) to make it clear that nothing must prevent—indeed, there must be rules that require—the disclosure of exculpatory material to the court and to the special advocate.
The firewall relates to material that could damage national security by going beyond the court or the special advocate to the suspect or his legal representative. I completely agree that exculpatory material has to go to the court and the special advocate. The question is where the line is drawn after that. I am not sure whether paragraph 4(3)(c) prevents that, but if it does, then we will amend it to ensure that the court and the special advocate, at least, see it. That is what I was saying and what I think the noble Lord, Lord Kingsland, is saying.
I am much obliged to the noble and learned Lord the Lord Chancellor for that helpful response. More generally, I share what I suspect was behind the remarks of the noble Baroness, Lady Falkner, that the Government will probably be wrong to assume that, as far as the European Convention on Human Rights is concerned, what is good for SIAC deportation proceedings is also good for proceedings against British citizens who cannot be deported.
I believe that if the noble and learned Lord the Lord Chancellor simply applies the jurisprudence about SIAC to devising his rules, he will fall well short of what the law of this country now requires. He does not have a very long time in which to come to that conclusion but I believe that he will be driven to it by the law.
Our approach to this part of the Bill will remain as I laid it down at the outset. We will seek to remove paragraph 4 as presently drafted and replace it with a different draft which we believe will meet the standards that Article 6 of the convention requires. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 178:
Page 17, line 12, leave out "and burden"
I have already spoken to this amendment. I beg to move.
moved Amendment No. 184:
Page 17, line 32, at end insert—
"( ) make provision for supplying to a relevant party to control order proceedings or his legal representative (if he has one) a summary of the nature of the allegations against him and (where the court so orders) of the evidence upon which such allegations are based."
I shall begin my introduction to this group of amendments by saying that since the time is now 11.40 p.m. and we have debated all these proposals already, I beg to move.
We have debated every one of these amendments at least once and, in many particularly privileged cases, more than once. For all the reasons I have already given, I oppose the amendment.
I shall return to these matters tomorrow. I beg leave to withdraw the amendment.
had given notice of his intention to move amendment No. 185.
Page 17, line 34, leave out paragraphs (a) and (b) and insert—
"( ) that all the reasons of the Secretary of State for decisions to which the proceedings relate and the evidence he adduces to support the decisions are given to or served on the relevant party at the same time or before they are given to the court; and"
had given notice of his intention to move Amendment No. 190:
Page 17, line 45, at end insert—
"( ) Rules of court made in exercise of the relevant powers must include provision that proceedings on an appeal under section 7 must begin no later than the end of such period after the bringing of the appeal as is specified in the rules." .
In the light of what happened earlier in the day we need to reconsider the position in relation to the non-derogating control orders and the circumstances in which the court gets involved, so I will not move Amendment No. 190.