My Lords, before I call Amendment No. 1, I should point out that if Amendment No. 1 is agreed to I cannot call Amendment No. 2 because of pre-emption.
My Lords, Amendments Nos. 1, 9 and 10 give effect to the changes that we made yesterday. They were debated on the first day of Committee, last Thursday, and I do not propose to go over the same ground again, since it is so fresh in all our memories.
Amendment No. 1 simply underlines that the making of a control order of whatever type is to be done by the court, not by the Secretary of State. Government Amendments Nos. 2, 3 and 4 do the same thing, but we believe that Amendment No. 1 is a simpler way of expressing it. I look forward to hearing from the Minister why it is necessary to use a rather more complicated form.
I move swiftly on to Amendment No. 9. It might be helpful if I do not go into its merits again, as we have debated them at length, but simply set out briefly the machinery contained in Amendments Nos. 9 and 10. The steps for obtaining an order under Amendment No. 9 are that the Secretary of State applies to the court and there is an immediate preliminary hearing. The court may hold a hearing ex parte—that is to say, without notice to the suspect—and will determine, first, whether to make the order and, secondly, whether to give directions for a full hearing to determine whether to confirm it. The purpose of the preliminary hearing is to look at the material that may be provided on an ex parte basis and to decide whether it is justified.
In making a control order at the preliminary hearing, the court will first have in mind whether the Director of Public Prosecutions has certified that there is no reasonable prospect of prosecution—that is because all sides are agreed that the preferable way of dealing with terrorist suspects is to prosecute.
Secondly, if that certificate is given and there is no reasonable prospect of prosecution, is the material, which, if not disproved, is capable of being relied on, that the individual is involved in terrorism-related activity? Thirdly, are there reasonable grounds for believing the imposition of obligations is necessary to protect the public? Fourthly, if the obligations appear at the preliminary hearing to infringe Article 5 of the European Convention, it is necessary to ensure that a designation order derogating from Article 5 is in place—that is, has been passed by both Houses of Parliament—and that that derogation order arises out of a public emergency. That is the first step that the Secretary of State takes to apply for an order when the court looks at it.
There is an interesting amendment later, arising from the speech of the noble Lord, Lord Carlile of Berriew, concerning whether the court in the preliminary hearing should be the district judge in England and Wales and his equivalents in Scotland and Northern Ireland. I am sure we will have an interesting debate on that in due course, because that is new material.
The next step in making the order is the full hearing in the High Court, which either confirms the order, with or without modification, or revokes it. The full hearing will be a hearing inter partes, at which the person subject to the control order is properly represented. The court has to be satisfied on the balance of probabilities that it is necessary for public safety for the control order made at the preliminary hearing to be confirmed.
My Lords, as I understand it, although I have not had the opportunity to consider it all, the amendment is explanatory. Am I right? If I am, it is incumbent on the Government to come forward at a later stage, after the Bill has been considered, with an explanatory note. However, I do not think the Bill has to be amended.
My Lords, there is no new material in the amendment. It follows the machinery the Government were proposing when they were simply talking about a derogating order. We are saying that, following the decisions we took yesterday, the preliminary hearing followed by the full hearing in court are to apply to control orders generally.
Amendment No. 10 deals with the duration and renewal of the order. A non-derogating order has a 12-month limit, and is renewable for a further 12 months by the court on application. A derogating order lasts for six months. Again, it is renewable by the court if the court deems it necessary, and if the overarching derogation order made by Parliament is still in place.
I have tried to give your Lordships a view of the framework of these amendments to give them some context. Amendment No. 11 is in this group. It is simply a hiccup in the text, and I say nothing about it. I beg to move.
My Lords, I have nothing further to add to what the noble Lord, Lord Thomas of Gresford, said, about the amendments in this group, except Amendment No. 12, with which I can deal telegraphically, as the substance of the matter was decided by your Lordships yesterday.
Your Lordships will see that, at line 44 of page 3 of the Bill, the following expression has been inserted in paragraph (c) of Clause 2(1):
"The court may make a control order against an individual if it . . . has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity".
Your Lordships will recall that we regarded the insertion of this subsection as crucial to the protection of the rights of the citizen. We must have exhausted all our efforts as to whether a proper prosecution can be brought in a criminal court before turning, as a matter of last resort, to a control order.
In the course of the speeches that were made, I, and a number of other Members of this House, took the view that this obligation on the DPP should continue during the period after the control order is made. That is what Amendment No. 12 seeks to achieve. If it is accepted by the Government, or put on the face of the Bill by some other means, it will be located at line 10 of page 9—the first line after the Clause 7 heading—
"Criminal investigations after making of control order".
The crucial import of the amendment is simply to say that, once the control order is made, the DPP will continue to have an obligation to see whether a successful prosecution can be brought. If he so decides, and so informs the court, the control order should then be terminated and the normal prosecutorial scheme should begin. That is the purpose of the amendment.
Could I explain to the noble Lord, Lord Clinton-Davis, that this material is already in the Bill, and is simply being rearranged? That is the point of Amendments Nos. 9 and 10—they simply shift some of the material that is currently in Clause 2 into Clause 3, and some from Clause 3 into Clause 2. That will create a logical structure in which Clause 2 deals with the making of control orders and Clause 3 ends up dealing with their duration. Every word of the material, with the exception of one minor consequential amendment, is already in the Bill.
I wonder if the noble Lord, Lord Clinton-Davis, would be reassured if I draw his attention to paragraph (b) of Clause 2(1), which is plain, and goes to the crux of the matter. It says that a court may make a control order against an individual,
"if it . . . considers that it is necessary, for purposes connected with protecting members of the public from a risk from a risk of terrorism, to make a control order imposing obligations on the individual".
That surely goes to the crux of the matter. It is what all of us are trying to achieve. Although it is altogether a very long clause, if he considers the various consequential subsections that go with it, he will realise that they are all in support of that main proposition.
I raise a point which has been brought to my attention by the Law Society of Scotland. Clause 2(1) sets out the criteria which the court must consider when making a control order. Clause 2(1)(c) refers to information being received by the Director of Public Prosecutions to the effect that,
"there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity".
There is currently no reference made to similar consultation in Scotland with the Lord Advocate. Does the Government envisage similar consultation in Scotland? This may be an oversight as the Bill is progressing very quickly, but I thought that it may be useful to highlight it.
My Lords, we have two groups of amendments to deal with. Perhaps I may explain what the government amendments seek to do. As a result of the Committee's decision to introduce provisions for non-derogating orders which are similar to those for derogating orders, the Bill had certain technical defects. The government amendments seek to rectify those technical defects so that the Bill reads more easily.
However, the government amendments do not address or seek to address the provisions in the amendments of the noble Lord, Lord Goodhart, and spoken to today by the Liberal Democrat Benches. They appeared at first blush, as has been said, to replicate the original government provisions, which were constrained and confined to the derogating orders. We do not accept that it is appropriate to conflate the two procedures. On the role of the DPP and the proper role of the judges, we maintain that the balance is not right. But of course we accept the decision made by your Lordships. Therefore, we can understand, although we do not agree with the way the provision is proposed.
Basically, the House has a choice. If one simply wishes to tidy the Bill so that it makes better sense and is more consistent, we should constrain ourselves to the government amendments. I do not suggest for a moment that we would want to test the opinion of the House, I am simply explaining the issue as we see it so that the House understands. If Members opposite would prefer to import that now so that when the Bill returns to the Commons it is in a form which they think better represents their view, the Government would not agree but they would not resist.
We do, however, think that it makes better sense to do the tidying which is necessary to make the construct that was passed by virtue of yesterday's vote plain on the face of the Bill, so that when the other place comes to consider the matter it can express a view. I very much take into account what was said in yesterday's debate—that the other place has not had an opportunity to express its view on the amendments considered by your Lordships and which were laid by the Government; neither will it yet have had an opportunity to consider this matter. So we would prefer it if the amendments laid in my name on behalf of the Government were allowed to pass, so that the other place has the perfected version of that construct, before we add procedures to it, which may or may not prove necessary in the other place.
Bearing in mind the nature and extent of the debate, we think that that would be the better course. It is a matter for your Lordships whether you do that.
My Lords, I know that the right reverend Prelate wants to get to his feet. Perhaps I may answer the comments of the noble Duke, the Duke of Montrose, about the Lord Advocate. Yesterday, the noble Duke will know, there was a debate on whether the appropriate person or entity identified should be the Lord Advocate or—as our Scottish colleagues suggested in relation to the government amendments—whether he should be the Procurator Fiscal.
The Government do not accept the premise that it is appropriate or proper for the DPP to be so exposed, in the way the current provisions provide for the DPP's role. On that basis, we will not be suggesting that there should be a similarly unacceptable position for the Lord Advocate. So the Government will not bring forward those amendments. But I absolutely understand what the noble Duke says. On the premise that it was appropriate and proper so to conflate the roles of the DPP in this regard there would be an argument. I do not think we have got there yet. I shall give way to the right relevant Prelate.
My Lords, that depends on the final construct of the nature of the judicial involvement. If the other place were to accept that there should be no difference between the derogating orders and the non-derogating orders, but that there should be a unity of procedure, then one can see the force of replicating the rules.
If, however, the other place reached a different view—that the construct advocated in this House by the Government and placed in the amendments which were debated in this House is the better course—then a different construct would prevail. It is of course open to a third and different construct, which is not currently considered to be before the other place. That is why we think it would be more prudent to restrict the amendments to those needed on the face of the Bill, so that when it returns to the other place—if I can speak colloquially—it makes sense, but without presuming that the consideration will necessarily go in the way that we have currently indicated.
As I have indicated, we are certainly not going to divide the House. I can only urge noble Lords to accept the government amendments, which are sound and make the necessary technical adjustments that make the vote undertaken by your Lordships make sense and be consistent.
My Lords, I have one simple question to ask. If it is in order I shall ask it, but not otherwise. My question is on the new Clause 2, which I entirely support. I supported it yesterday and still support it. At what stage will it be open to the suspect—I shall call him the suspect—to challenge the validity of the derogation order, whether on the grounds that there is not a state of emergency threatening the life of the nation or on the grounds that these measures are not proportional to that emergency? There must be some point at which that challenge can be made. Is it at the preliminary stage or at the full hearing?
My Lords, we believe that the clause as drafted would not leave it open to the court, at the preliminary stage, to make a final determination on the validity of a derogation order passed through Parliament. That would be a matter for the full hearing; but, as happened in the case of A—which eventually ended up in the Judicial Committee of the House—it would be open to the High Court to consider that very question. If I may reply—
My Lords, may I ask a perfectly simple question before the noble Lord replies? I wholly support the idea of the DPP looking at these cases, and, if possible, bringing a criminal prosecution. I am wholly in favour of Amendment No. 12, which provides for that. However, could there be a problem, in an exceptional case, with subsection (1)(c) of the new clause in Amendment No. 9? It requires that the DPP shall consider the matter and advise that no criminal prosecution is possible at the moment, before a control order is made. Could we not face an urgent case in which we could not afford the delay, and that it ought to be possible to make a control order at the ex parte stage, but no further, before the DPP has had time to answer?
My Lords, it would be entirely out of order for me to respond at this stage. We have discussed and voted on that particular point. Indeed, the particular subsection to which the noble and learned Lord, Lord Donaldson, referred is already in the Bill as originally drafted. It is not new material that we are putting in with this amendment.
My Lords, if I may respectfully say so, the noble and learned Lord, Lord Donaldson, makes a powerful point. If I have not made it plain, I should do so by saying we do not believe that Amendment No. 12 simply repeats what happened yesterday. It goes further, in suggesting that the Director of Public Prosecutions will continue to keep the matter under review. The DPP has no duty to keep cases under review in the way suggested.
My Lords, we are in the most unusual circumstances, as the noble Lord, Lord Kingsland, tells me. Paragraph 6.126 of the Companion says that:
We should keep that in mind, otherwise things may get out of hand.
My Lords, I do not propose to enter into a debate now on Amendment No. 12—which is, in any event, not my amendment. We take the view that the proper way to deal with the Bill as it stands is to send it to the other place in the "construct", to use the words of the noble Baroness, which the whole House—and not, as the noble Baroness put it, the Members opposite— has decided upon. For that reason, I propose to press Amendment No. 1.
had given notice of her intention to move Amendment No. 3:
Page 1, line 12, at end insert "under section 3"
My Lords, in view of Amendment No. 1, Admendment No. 3 is not moved.
The issue here is extremely simple and well established. If a statute is going to take away the liberties of a British citizen, the manner in which it takes those liberties away must be clearly set out on the face of the Bill. Each liberty from which it is intended to resile should expressly appear on the face of the Bill. Clause 1(3) does not accord with that approach; it sets out a range of possible restraints that might be imposed on the subject of a control order. However, it does not exclude the possibility—or, perhaps, the probability—that a whole range of other restraints that do not appear on the face of the Bill could also be imposed upon a potential controllee.
Therefore, what we are seeking to achieve by this amendment is simply consistent with our best constitutional traditions. If the Government want to restrain somebody in a certain way under a control order—where he has, in reality, no entitlement to a criminal trial—then each and every restraint that might be placed on this person must appear on the face of the Bill. That is the beginning and end of Amendment No. 5. I beg to move.
My Lords, we certainly support Amendment No. 5. It seems to us that it is wholly improper for there to be no restriction whatever on the kind of obligation that can be imposed on the person who is subject to the control order. It is not even suggested, for example, that any addition to the list should require the affirmative resolution by both Houses of Parliament, which might be an acceptable variation. Certainly, we think it improper to say that—subject, I accept, to the Human Rights Act—the kind of order that can be imposed here is entirely within the discretion of the Secretary of State.
My Lords, I made a speech at Second Reading in favour of that view. I still hold to that view, having listened to all the speeches since. I would certainly support the noble Lord, Lord Kingsland, in the view that he is taking. As I said yesterday, while I am in favour of control orders, they should be made as compliant as possible with both human rights legislation and, more broadly, common law assumptions about constitutionality, the rule of law, and so on. The argument, it seems to me, is that the control orders, which are currently both indefinite in their formulation and open-ended in their number, should be frozen in their present form.
My Lords, I see that in the next amendment we shall consider, Amendment No. 6, it is proposed that there should be a requirement to allow someone to be photographed. Can the Minister indicate why that is necessary? I believe it to be desirable, but why is it necessary if there is this inclusive definition, which we are seeking to delete? Surely it would be better to do as we suggest in this amendment.
My Lords, I shall deal with the point made by the noble Lord, Lord Lester, last.
It is absolutely clear that we have tried to make the list that we have provided as comprehensive as possible. But Amendment No. 6 demonstrates with acute clarity why it is difficult to make the list restrictive, without giving any flexibility. One of the reasons for Amendment No. 6, which relates to photographs, is that it is understood, particularly given the experience of previous cases, that it can be very important to have up-to-date photographs of individuals, because they have been known to change and/or adapt their appearance, making it more difficult to track what they are doing and where they are.
My Lords, that point has been made; I shall start to count how many times it is made. On every amendment, I have accepted that we are where we are and that this matter had to be looked at very quickly. If I may respectfully suggest, repetition does not enhance the value of a comment.
My Lords, I know that the Minister thinks that I am just being an irritant, but that amendment seems important. It makes me wonder whether fingerprints or other things should be included. It worries me that, if such provisions are being added at this stage, perhaps the matter has not been thought through. The difficulty with having a list is that you need to know that it is comprehensive. The speed with which this is being considered is a legitimate consideration and makes one wonder whether the Government have thought it through.
My Lords, I can assure the noble Lord that the Government have thought it through. That is why we have made plain that the list is not exhaustive. We have said that there must be a degree of flexibility. If the orders are to be altered at the behest or instigation of the court, it is right that there should be an element of discretion.
As we have said, orders may differ materially, therefore the conditions that you may have to impose on individual "A" may be significantly different from those imposed on individual "B". The facts of a case may give rise to particularly pertinent conditions. It is appropriate that, although the majority of issues are outlined in the list (a) to (o), it should be possible to add to it if it appears on the facts of the case that further or additional proportionate conditions are merited. We shall resist the amendment because it is important that an element of flexibility should be retained.
My Lords, I am grateful to the noble Baroness for her reply. No doubt we can deal with her arguments on photographic evidence in the next amendment. I found her response to this amendment wholly unsatisfactory. If the Government were concerned about providing themselves with a window of opportunity to add to the list, they could have introduced a delegated procedure in the same clause. They have not done so; in those circumstances, I wish to divide the House.
My Lords, I now find myself in a very interesting position. On the basis that I can still move this amendment, bearing in mind the last vote, I would obviously ask for this provision to be added to the obligations relating to the conditions for the control order. I outlined the reasons in the last group. I beg to move.
moved Amendment No. 7:
After Clause 1, insert the following new Clause—
:TITLE3:CONTROL ORDERS: SUPPLEMENTARY
(1) If, as a consequence of the obligations imposed by a control order, a person becomes unemployed, arrangements shall be made for that person to receive any social security benefits or unemployment benefits to which he may be entitled.
(2) If a control order is made in respect of a person already in receipt of social security benefits or unemployment benefits, arrangements shall be made to ensure that the person shall continue to receive those benefits.
(3) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made, and his household, shall have access to, or shall continue to have access to, supplies of food, household and personal necessities.
(4) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made shall have access to such health care as may be necessary."
The noble Lady said: My Lords, I was not satisfied with the answers that I got from the noble and learned Lord the Lord Chancellor when I raised this matter last Thursday in Committee.
There is no history of putting people under house arrest in this country, and so no mechanism for looking after them and managing the house arrest. Possibly the Government intend to remedy this. I imagine that they intend to do something, on account of their dear friend the European Convention on Human Rights, to which they made this country sign up and in which I have no faith at all. In fact, if I were to say what I thought of it, I should probably find myself using thoroughly unparliamentary language.
I want to be sure that these suspects, whether innocent or guilty—they have not been tried in a court of law and therefore cannot be said with any certainty to be guilty—are treated in a manner compatible with traditional British decency and not in the kind of way in which some countries, such as Burma and the United States, which have house arrest, may or may not choose to treat people. House arrest should not just be a cheap alternative to imprisonment.
It is very important not only that we treat suspects subject to derogating orders with humanity, but that we are seen to be doing so. We are not degraded by what is done to us; we are degraded by how we ourselves behave and how we ourselves treat others. That is why this provision should be on the face of the Bill. I beg to move.
My Lords, I promise your Lordships that this is the only time that I shall speak this afternoon. I have put my name to the amendment because the case made yesterday by the noble Lady, Lady Saltoun, was overwhelming and received no proper answer from the Government. As she said, to ask people to pay for their own imprisonment and starvation, which is a logical conclusion of the possibility, is totally wrong and completely abhorrent to our traditions. It is therefore with pleasure that I support the amendment of the noble Lady.
My Lords, I rise to support my noble friend Lady Saltoun and to add one or two other questions to the ones that she has asked.
As my noble friend said, we have no tradition of house of arrest in this country and we therefore have the right to know how it will operate. I assume that "house" includes a flat or apartment. What happens if someone has no house, flat or apartment? If the person has an apartment, how does he get exercise? If it belongs to the person and he is put out of work by not being able to go to work, and if no one is paying the mortgage, who will pay the mortgage? If the mortgage is not paid, what will happen when the person is turned out of the house?
There is the possibility that the person may be a parent—after all, some 27 per cent of the nation's children are now looked after by a single parent. It is not impossible that the person who is a suspect—possibly wrongly a suspect—may be a parent; what will happen to the children? There is provision for children when the parent is condemned by the courts, but there is no provision in this case, as I understand it. Can the Minister help the House?
My Lords, I hope I can satisfy the noble Lady that her concerns are unfounded. I understand the support for the sentiment of both the noble Earl, Lord Onslow, and the noble Lord, Lord Northbourne.
One of the main features of a control order is that it can be adapted in a flexible way to the circumstances of the individual subject to it. Clause 1(8) allows for an obligation to be varied with the consent of a specified person and the controlled person so that the order can reflect the changing circumstances of a particular case. For the conditions described in the amendment, available options include, of course, home delivery of goods and services direct from suppliers, and arrangements for the individual to leave his premises at specified times for specified purposes, subject to necessary restrictions, safeguards and monitoring.
Nothing in the Bill alters the opportunity for a person in this country to receive benefits to which they would otherwise be entitled. So control orders will not interfere with the receipt by a controlled person of state benefits as long as that person is so entitled. If a controlled person is entitled to such benefits he will continue to be entitled to them. If the controlled person becomes entitled to state benefits, we will make such arrangements as will enable him to receive them.
I hope I have made it clear in yesterday's debates and today that control orders are designed to prevent terrorist-related activity. They are not designed to prevent access to the assistance the state offers to those who have a legal right of entitlement.
If we go with the construct that the House has favoured, it is proposed that these conditions will be imposed by a judge, who will be seized of the circumstances in each individual case. The provisions in relation to the ECHR will still prevail and the conditions would have to be proportionate to the risk posed by the individual and would have to be predicated on an understanding that they were necessary to better control the threat the person may pose.
I hope that I have said enough to reassure the noble Lady, Lady Saltoun, and those who have spoken in support of the amendment.
My Lords, before the noble Baroness sits down, perhaps she will elucidate on what she said in one regard. If there are children of a single parent who are normally taken to school by that parent, what is the provision in the Bill, or outwith the Bill, to ensure that those children are still escorted by a reliable individual when the parent is housebound by an order?
My Lords, it is impossible to deal with a case-by-case situation, save to say that I am sure all those factors will be prayed in aid by those representing the individual. There will be a discussion about whether the conditions are necessary and proportionate. They are matters that the person who has to determine the nature of the conditions will take into account, whether it be in relation to the Government's position on non-derogating orders or in relation to a construct which requires that all such orders are to be made by the court.
There is no indication that that would cause us—or, indeed, the individual—difficulty because an explanation for the conditions will obviously have to be made.
My Lords, I have listened carefully to what the noble Baroness has said. I am very sorry, but I do not find it particularly satisfactory. I should like to have matters much more cut and dried. I am getting a strong impression of, "Don't worry, it will be all right on the night". Under these circumstances, I should like to have something on the face of the Bill. I beg leave to seek the opinion of the House.
moved Amendment No. 9:
Leave out Clause 2 and insert the following new Clause—
(1) The court may make a control order against an individual if it—
(a) is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity;
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual; and
(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.
(2) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—
(a) to hold an immediate preliminary hearing to determine whether to make a control order against that individual; and
(b) if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).
(3) The preliminary hearing under subsection (1)(a) may be held—
(a) in the absence of the individual in question;
(b) without his having had notice of the application for the order; and
(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court; but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.
(4) At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court—
(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;
(b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; and
(c) that if the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.
(5) The obligations that may be imposed by a control order in the period between—
(a) the time when the order is made, and
(b) the time when a final determination is made by the court whether to confirm it, include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(3).
(6) At the full hearing under subsection (1)(b), the court may—
(a) confirm the control order made by the court; or
(b) revoke the order; and where the court revokes the order, it may (if it thinks fit) direct that this Act is to have effect as if the order had been quashed.
(7) In confirming a control order, the court—
(a) may modify the obligations imposed by the order; and
(b) where a modification made by the court removes an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.
(8) At the full hearing, the court may confirm the control order (with or without modifications) only if—
(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;
(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; and
(c) if the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.
(9) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (4)(a) or (8)(a) were satisfied."
My Lords, this has already been spoken to. I beg to move.
moved Amendment No. 10:
Clause 3, leave out Clause 3 and insert the following new Clause—
(1) A non-derogating control order—
(a) has effect for a period of 12 months beginning with the day on which it is made; but
(b) may be renewed on one or more occasions in accordance with this section.
(2) A non-derogating control order must specify when the period for which it is to have effect will end.
(3) The court may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—
(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and
(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.
(4) Where the court renews a non-derogating control order, the 12 month period of the renewal begins to run from whichever is the earlier of—
(a) the time when the order would otherwise have ceased to have effect; or
(b) the beginning of the seventh day after the date of renewal.
(5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.
(6) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—
(a) it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);
(b) it ceases to have effect under section 5; or
(c) it is renewed.
(7) The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of 6 months from whichever is the earlier of—
(a) the time when the order would otherwise have ceased to have effect; and
(b) the beginning of the seventh day after the date of renewal.
(8) The power of the court to renew a derogating control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if—
(a) the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person;
(b) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention;
(c) the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and
(d) the court considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."
My Lords, this has already been spoken to. I beg to move.
moved Amendment No. 11:
Clause 6, page 9, line 5, leave out "or the court"
On Question, amendment agreed to.
Clause 7 [Criminal investigations after making of control order]:
[Amendment No. 12 not moved.]
Clause 9 [Appeals relating to non-derogating control orders]:
[Amendment No. 13 not moved.]
Clause 10 [Appeals relating to derogating control orders]:
[Amendment No. 14 not moved.]
Clause 11 [Jurisdiction and appeals in relation to control order decisions etc.]:
My Lords, this is a consequential amendment on new Clause 7 which covers criminal investigations after the making of a control order. It was intended to bring the Secretary of State's decision under the new criminal investigations clause within the rule in Clause 9(1) in order that such decisions cannot be questioned in any legal proceedings other than before the court or on appeal from such proceedings. I beg to move.
I knew this Bill would get to me sooner or later, my Lords.
It is useful to look at the role of the sunset clause in the context of Amendments Nos. 18 and 19 in the next group, which deal with the establishment of a committee of five Privy Counsellors. Last night, between the hours of 10 and roughly 11 o'clock, the Committee looked into both these groups of amendments in considerable detail. So I hope that this debate, which is of course important, will nevertheless take place in somewhat shorter order.
It is important to understand at the outset the interdependence between the sunset clause and the Privy Council clause. As your Lordships are well aware that there was, in relation to the 2001 terrorism legislation, an important Privy Council investigation chaired by my noble friend Lord Newton of Braintree. Your Lordships will recall that that report came to a number of conclusions which were subsequently—and, I suspect, rather embarrassingly for the Government—endorsed by the Appeal Committee of your Lordships' House.
The report of my noble friend Lord Newton of Braintree lay on the table, totally ignored by the Government, for a year. That must not happen with the report that will be made by the new committee of Privy Counsellors, set up, as I hope it will be, under this Act.
That is why the sunset clause has to be seen in relation to the Privy Council clause. Without the sunset clause, there is every chance that the report of the new committee of Privy Counsellors will be ignored in the same way as the report of my noble friend Lord Newton has been ignored. So the two are interdependent. Equally, when your Lordships come to consider the next Bill following the death of this Bill—which I hope will be next November—your Lordships will be informed by the report of the Privy Counsellors and will know better what changes to make.
On the substance of the sunset clause, I say simply this: the Bill suspends habeas corpus. For that reason alone, we need a sunset clause. It is unacceptable that this fundamental right should be cast aside for any longer than is necessary. Parliament has spent the past 700 years protecting our liberties. It seems outrageous that we should be asked to allow an open-ended right to remove the most fundamental of them from our statute book.
However, there is an added reason for having a sunset clause. Parliament is the great protector of liberty, yet Parliament has been given no real opportunity to scrutinise the Bill. The other place, moreover, was in an even worse state than we are. The elected House examined a text that everyone knew would be changed when it came to your Lordships' House.
We—and I think the Liberal Party, too—have been accused by the Government of undermining the security of the country by seeking to make changes to the Bill. I wholly reject that suggestion. We are just as keen as the Government to ensure that the security of every citizen is guaranteed, but our response must be proportionate, and that requires ensuring that the minimum necessary sacrifice of liberty is made. That the legislation has not been scrutinised is an additional reason for having a sunset clause. I beg to move.
My Lords, we on these Benches strongly support what the noble Lord, Lord Kingsland, has said, and I will briefly add a few arguments. We indicated last night that, in our view, the link between the review and the sunset clause is absolutely crucial. First, a review without a sunset clause can easily be tossed aside and disregarded, as was that of the committee of the noble Lord, Lord Newton of Braintree, despite its excellence. Secondly, there is another profound reason, which the noble Lord, Lord Kingsland, touched upon—that is, the issue of how seriously Parliament is to be taken. If the counter-terrorism Bill of 2001 was rushed through Parliament, this legislation is being stampeded through it, and there is no adequate consideration of the terms of the Bill.
It is sometimes felt that our Executive—even our Prime Minister, brilliant communicator though he is—increasingly does not treat either of the Houses of Parliament with any great seriousness. Parliament's role is as much at stake in this set of issues as counter-terrorism itself. It is crucial that we stand up for the role of Parliament, which means that we need the time to think, to set a balance, and to discuss proportionality in what may well be the most important issue of our generation: how we deal with the threat of terrorism. Dealing with it wrongly can be profoundly counter-productive, as a number of your Lordships have pointed out in our debates.
Finally, in this House, with the possible exception of the Government Front Bench, a clear consensus is already building up about what a new Bill ought to look like. It is not divided on party lines, nor on lines of the particular attitude one may have as regards ones previous interests or concerns. There is clearly very wide support for a different kind of Bill.
To conclude, it is of the greatest importance that legislation passed through this House about issues concerning terrorism and—as the noble Lord, Lord Kingsland, has said—any qualifications to our fundamental liberties, has the support of the great majority of parliamentarians. This Bill will not have that support; it will be deeply divisive. For the future, we need a solid base of consensus and agreement across parties and between the two Houses. I believe that that is in our reach, and that the sunset clause is crucial to our achieving it.
My Lords, I did not intervene at Committee stage on this point, but I would like to intervene now having heard a large number of arguments earlier. I will be brief.
The question of the sunset clause is a fundamental part of how we approach the Bill, and we need to take an early decision on it. There is obviously a large measure of agreement on some of the Government's objectives, but I have always stood for sunset clauses in other Bills. I have tried to introduce them on a number of occasions in EU legislation—I hope to do better on this Bill.
With her customary skill, the noble Baroness, Lady Scotland—who can argue the hind leg off a donkey with a certain amount of charm, I admit—sought yesterday to persuade us that a sunset clause was not correct. However, I do not think that the hind leg is going to come off this donkey. That is the situation we are in. She said that,
"we do not believe that a sunset clause on these provisions is appropriate. That is the current view of the Government".—[Hansard, 7/3/05; col. 591.]
Of course, what is current today may not be current tomorrow. I have kept that in mind, but it seems that, contrary to the Government's current view, a sunset clause is indeed appropriate. The word she used applies to the opposite side, a sunset clause is appropriate in the Bill. That is not, I repeat, an attack on the objectives of the Bill, which we all support. It is simply a recognition that we ought to make ourselves look at it again—a point made by the noble Baroness, Lady Hayman, in a much more eloquent manner. We need to make ourselves look at it again because we have a lot of problems with it, and we need to let the dust settle. I do not much care whether the date for the sunset clause is a year from now, or more, or less. I do not take that point at all, but I am resolutely for a sunset clause.
My Lords, I shall be brief, and bishops do not have hind legs, so cannot be argued with in that part of their anatomy. Hindsight can be convenient, and in an ideal world this Bill should have been given much more time. For various reasons, some of them understandable and some of them less so, it has not.
I strongly support these amendments, which have come to have a symbolic value far more powerful than what they seek to express and enact in law, for the very reason that they will help to allay the considerable concerns expressed both here and in another place, and in what little public comment has been able to come across in the media in recent days.
My Lords, earlier this afternoon, the noble Baroness, Lady Scotland, in answer I think to my noble friend Lord Forsyth, said that the comment that this Bill was being rushed did not benefit from being repeated any more. Of course I accept that, from time to time, Oppositions complain in both Houses that Bills are being rushed. What is important here is not that the Opposition may have claimed it, but that the Government have themselves, time after time, accepted it.
They have made it clear in almost every speech they make that these things have got to be done quickly, that they would like more time to debate them, and that they realise that they are vitally important issues—I see the noble Baroness nods—which affect the liberty of the people of this country. We have heard from the noble and learned Lord the Lord Chancellor that striking the balance is something he would like to achieve, given time. Surely the great hope of the sunset clause is that it gives us that time. I totally agree with every word said by the noble Baroness, Lady Williams, and, for all the reasons she expressed, I cannot understand why the Government are not prepared to accept this way out.
My Lords, I entirely agree with the point that has just been made except in one respect, on which I adopt the argument of the noble Lord, Lord Williamson. As I said on Second Reading and later, I am in favour of the sunset clause. However, I am unhappy about the date of
I also subscribe to the view that we should consider carefully how the Act is operating. That is the work of the committee of the noble Lord, Lord Newton. However, we cannot do that if we insist on
I shall not repeat what I said last night. I would prefer a later date, maybe in February, but I do not dissent in any way from the principle of a sunset clause.
Why is it imperative to insist on
As I said last night, for the most part this House will not be sitting as we have the Summer Recess. It is imperative that we insist on the view of this House—not of civil servants but of this House. If we have to consider
My Lords, in Committee I pointed out that the Bill went through the other place on a very tight timetable. Before it left the other place, the Government announced that they would introduce fundamental amendments in this place. A few days ago, I pointed out that the consequence of that would be that the Bill would never be considered properly in the House of Commons because when it returns to the House of Commons, all the deliberations will again take place under a grotesquely tight timetable.
It is ridiculous for Parliament to proceed in this way. Even if the Bill did not affect individual rights to the extent that it does, it is quite wrong that a Bill should last for more than a few minutes, let alone a few months or a few years, when it has not been properly considered by Parliament. The strongest argument for the sunset clause is that it is wrong for a Bill to last very long when it has not been considered properly by Parliament and we know that this Bill never will be considered properly by Parliament because the amendments carried in this place will not be considered at all in the other place.
My Lords, I agree with nearly all that has been said on the sunset clause. Nearly all the speakers in this debate have acknowledged the very serious dilemma that the Government have to resolve: how to deal with the threat of terrorism and, at the same time, preserve fundamental rights. We all recognise what a serious dilemma that is. However, the argument that this contradictory and flawed Bill, which addresses such serious issues, should have an end date surely has to be accepted.
The Bill has been exposed as contradictory in many areas. One of the weaknesses, which has not been fully addressed as yet, is the lack of a clear definition of "terrorism". The word is used constantly in many different contexts but there is no common understanding of its meaning, hence the saying, "One man's terrorist is another's freedom fighter". The definitional difficulty has allowed a vague discourse—vague enough to allow states to justify almost all actions in terms of national security and, by doing so, suddenly to justify human rights violations.
As we know, there have been many attempts to define "terrorism", including a UN ad hoc committee in 1996 which tried to draft a convention on terrorism that was ideologically neutral, but it incorporated the principle of legality. However, it failed precisely on the definitional issues. During the Reagan administration, the US definition of "terrorism" was dropped because it described almost perfectly counter-insurgency and counter-terrorism mechanisms set out in the US military manuals.
Clear definitions seem to be vital when entering the area of criminal law. Imprecise language makes for broad definitions that may encompass acts that few would regard as terrorism. The EU framework decision on terrorism, for example, includes,
"attacks on the physical integrity of a person", or,
"causing extensive damage to a government or public facility", which becomes a terrorist act if it is committed with specific aims. Legitimate dissent could very easily be interpreted as criminal within that framework, as could politically motivated and selective applications of it. I do not speak of this Government falling prey to such violations, but if a law of this kind were on the statute book, in the future it may well be used in circumstances over which we have no control.
I believe that all such dangers are mitigated to some extent by strong human rights safeguards. However, in this Bill we are considering derogation from those safeguards. A definition of "terrorism" cannot characterise as criminal offences those rights which are protected under international human rights law—
My Lords, if the noble Baroness has something to say about the amendment that we are discussing, we would be delighted to hear what she has to say. I believe that the general view is that what she is saying, however interesting it may be, is a long way from the amendment.
My Lords, noble Lords who, by their advocacy of a sunset clause for November of this year, have expressed concern about the speed with which this legislation is going through the House and through the other place, seem to be in danger of creating precisely that problem a few months down the road. The noble Lord, Lord Kingsland, talked of us considering the next Bill which could be dealt with by November. The reality is that we would be rushing through what we are told will be a much more complicated Bill, which will consider offences in relation to acts preparatory to terrorism and so on, in an equally unsatisfactory timetable.
If one believes that it is important that there is proper consideration and if one believes, as the noble Lord, Lord Kingsland, clearly does, that there should be a review process by a committee of Privy Counsellors—no doubt we shall consider that in a few minutes—clearly there has to be time for proper consideration of all that, which is why I wonder why the amendment proposes November this year.
I believe that most Members of your Lordships' House are trying their very best to achieve consensus on these matters but, when a date such as November is put forward, I wonder whether this is about building consensus or trying to create confusion and problems. As the Bill stands it already includes very substantial processes of review: three-monthly reports by the Secretary of State; someone to review the operations of Sections 1 to 8; and a consideration of all of that. I believe that those are very important and helpful clauses. I understand that any derogation from the convention will be considered by both Houses of Parliament annually. Therefore, review processes are built in.
I understand the arguments made by the noble Baroness, Lady Williams, about the symbolic importance and significance of putting an end date in the Bill, but to put an end date of November simply means that later this year we shall be considering another Bill, much too quickly, without the proper opportunities for consideration of the review processes that this Bill would put in place.
My Lords, I would have thought that the need for a sunset clause is absolutely obvious. The judicial process has been distorted by the rush on which the Government have insisted. Therefore, it is inevitable that there should be a sunset clause, focusing attention on how we should achieve cross-party agreement.
I do not understand the problem about the time. The long vacation is just the kind of period for the Privy Council to work, undisturbed, and decide on its views. The long vacation is very long indeed. Some people would like to be occupied during it, and I hope that the Privy Counsellors will be. I suggest to your Lordships that there cannot be any conceivable contest in regard to a sunset clause, and that what is proposed is thoroughly sensible.
My Lords, despite what the noble and learned Lord, Lord Ackner, has said about the long, long vacation, there are, as the noble Lord, Lord Clinton-Davis, emphasised, severe practical difficulties about that date of
Because of the important point which has been made about linking a sunset clause with Clause 18, and in particular because of the way in which the report of the noble Lord, Lord Newton, was disregarded, could the Government indicate, when we come to Clause 18—in particular, Clause 18(6)—whether they would support an amendment to the effect that not only should this report be laid before Parliament, but that it would be mandatory for Parliament to debate it?
My Lords, I shall not repeat everything I said last night, although it is terribly tempting, given how many more people are here to hear it this afternoon than were here at ten o'clock last night.
I fundamentally support a sunset clause on this legislation, because of the issues of principle regarding the content of the Bill, which have already been spoken about, and the process by which we have legislated in this instance. I believe that it is sensible also on the grounds of practicality to have a sunset clause in this Bill because, as my noble friend Lord Harris of Haringey said, we have been promised further legislation dealing with a new offence of acts preparatory to terrorism. I hope that that will allow us greater scope for prosecution—which is what everyone agrees is the first option. We ought, logically and coherently, to review these provisions as part of the hierarchy of weapons we have to deal with terrorism—from surveillance, to control orders, to prosecution.
I think that there will be that opportunity, and I hope very much that my noble friends on the Front Bench will be able to respond to this amendment in a constructive way, because I too share some of the reservations about timing that have been put forward.
It would be a supreme irony if we were, in the middle of pre-legislative scrutiny of an important piece of coherent terrorist legislation, to find ourselves with another false deadline like
My Lords, that is sage advice. I remind the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Harris of Haringey, that we are in confident expectation of a general election at the beginning of May. That leaves the parliamentary programme clear for June and July, as well as October and November. There is much more time available than people seem to think.
My Lords, I am very sympathetic to the position taken by my noble friend Lady Hayman. I have two reservations about the sunset clause. Given my voting record over the past couple of days, my noble friends on the Front Bench may be surprised that I have these reservations; but I do not think that my reasons will be greatly welcome.
The first reason follows up the point made by my noble friend Lady Hayman about practicality. If it is true, as was portrayed in the Guardian yesterday, that these orders will be monitored, dealt with, and imposed, as it were, by private sector companies, then presumably those companies will have to be commissioned, their staff will have to be trained, and so forth. It seems to me to be an extraordinary proposal. However, leaving that on one side for the moment, if the private sector is to be involved in enforcing the control orders, then I am not at all clear how contracts could be signed with private sector companies if the Bill died on
It may be—and I would be very reassured to hear it—that there is no such proposal. However, if there is, it seems to me that the Government will be put in a very difficult position in making those contracts if the Bill had such a short life.
The reason for my second reservation is a very Machiavellian one, which will be even more unwelcome to the Front Bench. It is that, as has been said, there is an election pending. In my view, this Bill will leave this House much better than it entered it, and it is a Bill that I could certainly live with—if it retains its current form after the other place has had a look at it.
However, it is obviously not the Bill that the Government wanted, and they may use the election manifesto to prefigure more draconian legislation on terrorism: not just the kinds of things that my noble friend Lady Hayman was talking about, but trying to restore some of the proposals that were in this Bill. It would then have the legitimacy of the election manifesto commitment, if the governing party won the election. In those circumstances, and if the Bill were to die on
My Lords, terrorism, as your Lordships know, means that government will rule by fear. In this, the Government have been extremely successful.
This Bill will do nothing to halt the fear of terrorism. It is particularly worrying, because I am opposed to the Bill and I am equally opposed to the sunset clause; but if one regards it as a safe way out, then so be it.
I once asked the noble and learned Lord the Lord Chancellor if he could define the difference between freedom fighting and terrorism, but he could not. The fear is this. It is the signal we send out to the non-democratic countries of the world, who are watching now as we change our Home Office to become the ministry of the interior, the Commissioner of Police to become the chief of police, then the Stasi and others begin to emerge, and people are locked up. That is very frightening. We must remember, too, that in this country we have, over many years, been accused of harbouring other people's terrorists: people who seek to overthrow governments.
It is a complete shambles. Almost 200 years ago today, the Earl of Abergavenny ran aground on the Shambles Bank and was wrecked. Yesterday, as your Lordships will know, was the nones of March, and the 15th is the ides of March. I turn to the noble and learned Lord the Lord Chancellor—the Nero of the Labour Benches—and say, "Beware!".
My Lords, I hesitate to suggest that one of the reasons for the need for a sunset clause has not yet been mentioned. The fight against terrorism is not just a fight against the bombers: it is also a fight for the hearts and minds of the community from which they come.
If one accepts that the present statistics in the policing world are that members of that community are stopped more often on the street, are harassed more often, and therefore already feel themselves to be under siege, the worst thing we could possibly do would be to bring in such draconian measures—as we know we may in some way have to—without our having an exit strategy or an improvement strategy at a given date. I am most certainly unconvinced that, if we do not have it, the Government will be forced into doing this within the foreseeable future.
On the hearts and minds side, we have to satisfy those communities that we are not just interning those people we wish to intern. When someone may be suspected of being a bomber or a member of such an organisation, his family will not know about it. We have had that experience in Northern Ireland. They will not know about it; they will not understand it. They will have no idea. Will there be a possibility of the children going to school and saying, "Daddy was doing this last night"? Let us be realistic. They are not unprofessional in the terrorism that they carry out.
We find that when you take an action on suspects that may be seen as being unjust, with no exit strategy, the family become totally united against you and each one of those suspects and their families, like you or me, has maybe 100 or 200 friends. They will all believe that the action is totally unjustified because they believe that the person that they know could in no way be the suspect that we perceive them to be.
That is very important. It is the other half of the fight against terrorism—it is the long-term fight against terrorism. We must show those people that we will try to prove what we are doing and limit it. Therefore, in their eyes, a sunset clause is not a big hope but it is a hope that we treat this legislation seriously and that we may amend it or totally renew it and not leave it sitting on the sidelines.
My Lords, the introduction of a sunset clause at some convenient and appropriate parliamentary time is necessary for Parliament to fulfil its essential duty to seek to make good law after reasonable consideration. I remind the House that, in December last year, the Judicial Committee of this House, in ringing tones, found that Part 4 of the anti-terrorism Act of 2001 was in fundamental breach of civil liberties and human rights. I regret to say that that constitutes a blemish on the parliamentary activity that we engaged in on that Bill. Do we want to repeat the same mistake? Another blemish of a greater kind would surely lead to us not having done our duty to seek to make good law. It is a duty after reasonable consideration.
If this Bill is passed by the Commons in due course under a guillotine and there is no sunset clause, the reality is that Parliament—in particular the House of Commons—will never have properly considered the content of this Bill. That is unacceptable. History will not readily forget nor easily forgive a failure of that kind by this Parliament. As regards this terrorism Bill and any additions to it, we in Parliament here and in the other place must at some stage have our day and have our say.
My Lords, we must have this clause because it will lend a sense of urgency to the Government in bringing forward legislation which we can properly consider and indeed agree with. However, like the noble Lord, Lord Brennan, who has just spoken, I am concerned about the parliamentary process. I understand that the Commons will have only three hours to consider all the major amendments that we have made to the Bill so far, including the particular amendment that we are discussing. If that is so, it is monstrous that the House of Commons should be expected to consider the very substantial amendments that have been made here in such a short time.
Far from being able to discuss these amendments, there will hardly be time for the Minister to explain what they are about. All that Members of the House of Commons will have before them is what the Ministers say is before them. The Members of Parliament will have little or no opportunity to discuss the amendments and then they will have to vote without having discussed them. That is a monstrous situation. Indeed, it is a situation that should not exist in any democratic country.
I make this plea—and I hope that all other noble Lords will also make it—to the noble and learned Lord the Lord Chancellor. Will he go to the Commons to meet the Minister and, if necessary Prime Minister, to see whether the House of Commons—the elected House, the representatives of the people—can be given proper time, even if they have to go through the night, to consider all these vital amendments that have properly been made to the Bill in this House?
My Lords, I should declare an interest as a former chair of Liberty and, indeed, as a present member of Liberty. By the way, I should warn the office of Liberty to expect a large number of applications from members of the Conservative Party to join—and they will be welcome.
To be serious, I support the idea of a sunset clause, but I cannot see that November is a realistic date. It is simply putting pressure on the workings of government to deliver new legislation in a timetable that is unrealistic. I cannot go along with that. If my noble friend on the Front Bench cares to think about it, maybe he could come back and offer a much later date for a sunset clause to give the Government time to develop the legislation and have pre-legislative scrutiny so that both Houses of Parliament could then consider it.
That would be a sensible way forward, but I cannot support the November deadline. Everyone in this House knows that it is an unrealistic date. It just does not make any sense at all and I do not think that we can support it. My noble friend on the Front Bench might consider offering a later date at Third Reading so that we can then have a sensible period of time to develop new legislation.
My Lords, the noble Lord, Lord Plant, made a penetrating observation when he said that one of the reasons for delaying the implementation beyond November is that private sector companies would have to be involved and that contracts would have to be drawn up and signed. That was a surprising piece of information. Will the noble Baroness give an assurance that private companies will not be involved?
My Lords, I think that the noble Earl is saying Belmarsh today and Securicor tomorrow. I wish to make it clear from these Benches that there is nothing that I can add to the eloquence of my noble friend Lady Williams of Crosby, but we support this amendment entirely as it is drafted—with the date that is drafted.
My Lords, I will deal first with the comments of the noble Earl, Lord Ferrers, and my noble friend Lord Plant about the contracting out provisions, as I will refer to them. When those comments were first made by my noble friend Lord Plant, many in the House will have noticed the alarm and disbelief written large on my face. The whole basis of this Bill is that we are dealing with information of the highest possible sensitivity and it is of the utmost importance that information should be entrusted only to those who can be guaranteed not to relay—whether advertently or inadvertently—that information to those who might put this country and our citizens at risk. That remains the case.
However, light dawned when I came to consider the provisions that must be put in place in relation to electronic monitoring or tagging. The tagging procedures in relation to those who are made subject to a tagging order are carried out by contractors outwith Her Majesty's service. However, I assure your Lordships that the advice upon which we rely is not contracted out: it remains the advice received from the security services and indeed the police.
I would first like to thank the noble Lord, Lord Williamson, for the kind words that he directed to what I had to say. However, I sup with a long spoon when it comes to those compliments because I know that the noble Lord intends by so saying to say, "Disregard what the noble Baroness says on the matter because like a siren she will lure you on to the rocks". If only I had that ability.
So I will stick to the position where we are and return to the issues on which we agree. We agree that the orders that we are contemplating can be contemplated only in relation to a situation that arises in extremis. Although there is a small cadre of notable exceptions who dissent—the noble and learned Lord, Lord Lloyd, and on my Benches my noble friend Lady Kennedy and others—the Opposition and Liberal Democrat Front Benches agree that we need control orders in some form. That idea appears to be accepted.
It is accepted too that this country is in danger and subject to a threat. All of us in looking at the provisions are bearing that in mind, even where we may disagree. I agree too with the comments made by my noble friend Lady Hayman that there is much about which we do and can—and I hope we will, in the long term—agree.
It is generally accepted that November—if we were to have a sunset clause—would at the least be a challenging if not impossibly impracticable date for all the reasons that many noble Lords, not least my noble friends Lord Clinton-Davis, Lord Harris and Lord Plant and others on opposite Benches have outlined.
It is also correct that the Government have accepted that a review of the provisions is merited; reviews are now contained in Clause 13. I accept that the House's view as currently expressed in the debate urges the Government to go further by way of review. The reviews we have outlined in those provisions are the three-monthly report, the yearly report and the work of the identified reviewer. The Government have heard the House say that that does not go far enough and we need further and deeper review.
I take too the comments made by the noble Lord, Lord Waddington, and others, that members of the other place have not had as much opportunity to have their say as your Lordships. I take into consideration that the timeframe for the other place will therefore be limited. However, I invite your Lordships to bear in mind that there has been proper interest in the debates that have taken place in your Lordships' House. Indeed, your Lordships could not have failed to have noticed a number of Members from the other place who have with due diligence come to listen in person to what your Lordships have said.
Your Lordships can be assured that the content of the debates that have taken place in this House has been given the most anxious scrutiny by all of those who have come to deal with them. It is anticipated today that after Third Reading we will send the Bill back to the other place for further consideration. That will not only be consideration for the amendments but an opportunity to consider further the comments made by noble Lords—not least those made so ably by my noble friend Lady Hayman—about a different way forward.
My noble friend talked about an annual review and other provisions. I am not in a position at this stage to say anything that would give your Lordships an assurance that the Government can proffer a sunset clause. However, the Government will continue to consider these debates, together with all the debates we had yesterday; and the other place will also come to consider those matters again.
My Lords, before my noble friend sits down, I am grateful to her for mentioning what I said but accuracy is important here. She talked about a review: I talked about renewal. My bottom line is not just the opportunity but the necessity for both Houses of Parliament to consider formally whether such legislation should continue to be in place. That is different from a review and a debate on the report on the review.
My Lords, I hear what my noble friend says on that matter and I accept as she indicates that there is a difference between the two. But there is also an issue with which we should seriously grapple. We have spoken at length in the past couple of days about the possibility—nay, the necessity—of looking more keenly at provisions that could be brought forward in another Bill in relation to acts preparatory to terrorism. That is likely to take time. I do not want to repeat all the things I said yesterday, but your Lordships will recall that we went through the chronology.
I am conscious that that which seems palatable when considering Part 4 becomes less palatable when we are considering control orders. When we come to consider acts preparatory I reasonably anticipate that that will appear slightly less palatable than it may now. Those are difficult issues with which we will have to deal.
I concur with those who say that we do not wish to be in a position similar to that in which we find ourselves now, being obliged to consider a sunset clause in relation to this Bill that will prematurely interrupt proper consideration in the long term.
My Lords, I accept and I hope that the House accepts that the Government are giving all these matters full consideration and will continue to do so. I am not in a position to say to my noble friend that the Government agree in relation to February or March, not least because we have come to the view that an arbitrary sunset clause would cause some difficulty because we do not know the precise timetable that would be necessary.
I hear keenly what my noble friend Lady Hayman says in relation to a renewal, which would enable a debate and a vote to take place. All I can say is that we hear that clearly. We do not believe that it is likely that the need for control orders will be extinguished in its entirety for all the reasons that we have debated. The majority of your Lordships have accepted that there will remain a small cadre of individuals who will not be able to go through the normal process of criminal prosecution because of the nature and quality of the evidence on which such a prosecution would have to rely. We heard some very powerful speeches last night from the noble Baronesses, Lady Park and Lady Ramsay, on the reasons why that is so.
I urge noble Lords not to provide in this Bill an arbitrary cut-off date—an arbitrary sunset clause—of
My Lords, this matter has been very fully debated for the second time in 24 hours; so I can be extremely terse in my response. There are two issues for your Lordships. The first is, should there be a sunset clause at all? The second is, if so, when should it bite? On the first issue, the noble Baroness has not been prepared to give an undertaking that in another place the Government will introduce a sunset clause. So it is absolutely clear that if we do not put on to the statute book the principle of a sunset clause today, it will be dead.
The merits of the principle have already been extremely well expressed by the noble Baroness, Lady Williams, and many others. It seems to me extraordinary that the Government are asking for an indefinite suspension of habeas corpus without regularly coming back to Parliament. That is all that needs to be said about the principle. I hope it is unimaginable that your Lordships would accept the Government's position in that respect.
As regards the question of timing, if we do pass a sunset clause it is always then open to the Government to alter the length of time in another place and then come back to us. So at the end of the day the noble Baroness, Lady Hayman, and the noble Lord, Clinton-Davis, may well both have their cake and eat it on this matter. It so happens, I believe, that the November date is absolutely the right one.
A long time ago the very great American songwriter, Richard Rodgers, wrote songs with the equally great librettist, Lorenz Hart. An admiring lady asked Richard Rodgers one day, "What is the source of your inspiration, Mr Rodgers? Is it your music or is it Mr Hart's wonderful lyrics?" He replied, "No, madam, it is the arrival of the monthly rent demand". Look at it this way. The November date is the monthly rent demand. It will concentrate the Government's mind like nothing else. I wish to test the opinion of the House.
moved Amendment No. 18:
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 earlier 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."
My Lords, we spoke about this in part in the last group. We have already indicated that we think these proposals are covered by provisions in the Bill. Amendment No. 18 creates a committee of Privy Counsellors to review the operation of the Act and report on it after four months and eight months. It would provide that the reports carried out by the committee created under Amendment No. 18 would consider the operational effectiveness of the legislation.
I have already set out that we believe in principle that the provisions in Clauses 18 and 19 are unnecessary for the reasons I have already given, because of the scheme already proposed by the Bill. In addition to that, there are already committees of the House with a remit in this area, including the Home Affairs Committee and the Joint Committee on Human Rights. Both have shown, and will undoubtedly continue to show, an active interest in the counter-terrorism legislation. There will therefore be review mechanisms in place, and an opportunity to consider the results. We believe these provisions provide an appropriate means of keeping the provisions under regular scrutiny.
I take account of the comments made by all noble Lords during the last debate, and I add those few comments in addition to explain why the Government feel this current position is sustainable.
moved Amendment No. 19:
Insert the following new Clause—
"EFFECT OF REPORT
(1) A report under section (Review of Act) must consider the operation and effectiveness of the Act as a whole and any issues arising from the operation of individual control orders, and may make such recommendations as the committee sees fit including recommendations for future legislation.
(2) Any recommendation made under subsection (1) shall not affect the operation of section (Limitation)."
On Question, amendment agreed to.
moved Amendment No. 21:
Clause 14, page 17, line 3, at end insert—
"(za) in relation to the preliminary hearing of proceedings relating to a control order means—
(i) in England and Wales, the senior district judge (chief magistrate) or another district judge (magistrates' courts) designated by him for the purposes of the Act;
(ii) in Scotland, the Sheriff of Lothian and Borders;
My Lords, I hesitate to say at this stage of our proceedings that the purpose of these amendments is to probe the Government. They are, however, to enable the House to have a brief debate on the proposal put forward by the noble Lord, Lord Carlile of Berriew, on Second Reading.
As the House is aware, the noble Lord was the reviewer of the Anti-terrorism, Crime and Security Act 2001. He accepts the need for control orders in a minimum number of cases, as I do myself. In his contribution on Second Reading he suggested a possible solution to the problem of how to bring in an element of judicial process to the initial making of the order before an appeal hearing. That could be appropriately addressed, he said, by putting that responsibility on the district judge.
The noble Lord pointed out that there is already a cadre of such judges who undertake responsibilities in extradition cases, for example, often in ex parte hearings, and certainly in hearings on renewal of detention for terrorist suspects being held on suspicion under Section 41 of the Terrorism Act 2000, where there are applications to extend the period of time for which they are held from the initial 48 hours to up to 14 days.
The attraction this proposal has for me is that we have heard from senior judges in this House, and elsewhere, that there is concern about the involvement of the High Court in two roles in this process; first, in the initial making of the order, and then in the review process. The proposal would restore the natural hierarchy of judicial decision-making, so that the initial decision was made by the judge at district level. We have now put into the framework of the Bill that, after the preliminary hearing, it will be normal procedure for the full review then to go to an appeal hearing at the High Court.
The proposal is put forward, as has been everything I have tried to put forward, in a way that seeks consensus. I am trying to explore with both the House and the Government whether this process, which would now include the non-derogating orders, would be appropriate for those non-derogating orders, or, as my amendment says, for all orders. At the moment, we are dealing with a regime that treats all orders in the same way. I hope that, although I have spoken briefly, the import of these amendments is clear to the House, and I would be interested to hear responses to them. I beg to move.
My Lords, I too have put my name to this amendment, and wish to speak briefly to it. In doing so, I declare membership of the Joint Committee on Human Rights, and add that I concur completely with the committee's report, which was produced in difficult circumstances in great haste last week.
We have listened to the arguments carefully. Many of us are concerned by the divergence from due process, albeit in circumstances where we are told that there is a serious and substantial threat to the life of the nation. My position, instinctively and intellectually, is, like many others, to seek to insert judicial process and oversight in every clause. However, we hear from the Benches opposite of the need, in rare circumstances, to act speedily. Many of us were here last Thursday when, as the noble Baroness, Lady Hayman, has already mentioned, my noble friend Lord Carlile of Berriew sought to assist us with a more workable and practical way to deal with the initial stages where speed is required.
The position set out in the amendment would not only satisfy the arguments of the noble Baroness, Lady Hayman, but would also to some extent satisfy the Joint Committee on Human Rights. The committee said in its report, which was published last Friday, that it was not persuaded that there was no way in the present legal framework to deal with these issues. It said:
"If the security services or police are in possession of information suggesting that a person is involved in an imminent terrorist attack, there is already a power to arrest him on suspicion of involvement in an offence under the Terrorism Act 2000, and he can then be detained for up to 14 days without charge, during which time investigations can be carried out, evidence can be gathered and the person can be brought to court to determine whether a control order should be made pending the outcome of the criminal investigation".
In the light of the Government's opposition to the clauses that draw in judicial oversight across the board, these amendments seek to draw on a process that is already in place in the Terrorism Act 2000, and that is at least tried and tested.
My Lords, I fully understand the feelings of the noble Baroness, Lady Hayman, but this is not the natural order of proceedings. That approach is never used in civil work. True, it is the natural progression in criminal work, but in civil work you go to the High Court—or the county court, come to that—and say, "Look, I want a preliminary order because of the urgency. It is purely tentative, and we are asking for it in the absence of the other party. Please give us the order to protect the situation, and then we, the same court, will hold a full hearing as soon as possible that the defendant can attend". I think I am right in saying that that is the universal procedure in civil proceedings. The amendment would considerably muddle the whole situation if it were passed, so I sincerely hope it will not be. I am in favour of judicial control all the way through, but not in a muddled way.
My Lords, I disagree with the noble and learned Lord, Lord Donaldson; I find the proposed amendment extremely attractive. If these were ordinary proceedings, of course the noble and learned Lord would be quite right, but they are not ordinary civil proceedings.
That being the case, it seems to me that much can be said for having the preliminary hearing before a judge at a lower level than the judge in the High Court who will hear the full hearing. There is a further advantage, certainly so far as concerns England, in that the senior district judge—the chief magistrate as he used to be called—has great experience in these matters. If there is going to be a large number of these applications, he will hear them all rather than some being heard by one High Court judge and some by another.
For those two separate reasons I think that a great deal can be said for the amendment.
My Lords, perhaps I may direct your Lordships' attention to the provision that affects Scotland. Preliminary hearing proceedings relating to a control order would take place before the Sheriff of Lothian and Borders.
New Clause 2 defines the court as being the appropriate place to go. The definition at the end of the Bill states that the court in Scotland is the Outer House of the Court of Session, which now has a cadre of 24 judges, each of whom also has knowledge of criminal proceedings by virtue of being a member of the High Court of Justiciary.
In addition, the Inner House is the place to which appeal proceedings are taken in terms of the schedule. That will be governed by the rules of the Court of Session which the Lord President will make in relation to what is proposed under the Bill. His writ runs over the Court of Session and has nothing to do with the Sheriff of Lothian and Borders, who has a completely different jurisdiction.
So we would be creating an enormous problem. We would in fact be suggesting that in Scotland an application must always be made to one judge; namely, a junior judge, one who is not a member of the Court of Session. With the greatest deference to the noble Baronesses who proposed the amendment, I suggest that the provision would create a complete nonsense for Scotland. I make no comment on what would arise in England and Wales and Northern Ireland.
My Lords, I am grateful to my noble friend Lady Hayman for putting forward the suggestion, which, as she rightly says, was proposed by the noble Lord, Lord Carlile of Berriew. It is put forward very much in the spirit of trying to find a sensible solution.
The amendments would apply to derogating orders, in respect of which we already accept that there should be judicial involvement before an order is made. They would also apply to non-derogating orders, in respect of which the House has made amendments to the effect that there should be judicial involvement from the start. We do not accept the second proposition, but I shall address the issue on the basis that what is sought by this House is judicial involvement prior to the making of an order and before it comes into effect. Remember that there is still the third way of the noble and learned Lord, Lord Donaldson, of the Home Secretary making the order with leave to enforce it coming only from the courts.
The attractions of the route of my noble friend, Lady Hayman, and of the noble Lord, Lord Carlile, is that you have a group of existing judges who currently deal with matters akin to what is being sought here; namely, search warrants and extensions of time for detention by the police. The downside of what my noble friend suggests is that she talks of what the district judge does as being subject to review or appeal by a higher judge; namely, a High Court judge.
The way I see the proposal in relation to derogating orders proposed by the Government in the Bill and what this House has inserted in relation to non-derogating orders, is precisely how the noble and learned Lord, Lord Donaldson, puts the issue, which is that you bring the matter before a judge. He takes a provisional view without having heard from the other side. Appeal is not the next stage; the next stage is a much more profound examination. That approach would strongly favour the first order being made by the same level of judge who makes the second order.
These orders are very significant in law terms. Ultimately, they should be made by a High Court judge and not by somebody below the level of a High Court judge. In those circumstances, I favour the approach being put forward by the noble and learned Lord, Lord Donaldson. It should be the High Court first, and then the High Court again, because of the significance of the orders and because it indicates that this is not about an appeal. This is about a provisional look, followed by a detailed look with both parties at the subsequent stage. I think that that provides the best protection, but I appreciate the spirit in which the amendment was put forward. I hope that what I have said has provided some assistance.
My Lords, my noble friend has undoubtedly provided some assistance. The reason I hesitate slightly is because it seemed to me that he was conceding the significance of the orders and the need for a High Court judge to be involved in the orders—that is, all the orders, not just the derogating orders. That is a significant acceptance by our Front Bench about judicial involvement as a matter of principle rather than as a matter of necessity because of the votes of the House.
Putting that to one side, I am grateful for the Minister's response. I was interested in the opinion of the House. I am grateful that if I went down two to one on the judicial view, at least one was willing to support me. I am more than happy to withdraw the amendment, not least because the last thing that I would want to do is to cause muddle in Scotland. I beg leave to withdraw the amendment.
My Lords, I rise in the context of a serious political setback!
Amendments Nos. 25 and 26 were debated in some detail last night. I shall not repeat all the arguments I advanced. The amendments arise in the following context. Your Lordships have already decided to give the decision on whether a control order should be made to a judge in place of a politician; but there is no point in making that change unless the judge is in charge of a process that is truly judicial.
It is not enough simply to put the judge in charge of what is otherwise a political process. The amendment seeks to ensure that the context in which the judges will be operating is properly judicial. That context will be established by the rules of procedure of the High Court. In the Bill the Lord Chancellor is given the responsibility of establishing those rules after consulting the Lord Chief Justice. In our view that formula should be reversed. The Lord Chief Justice should establish the rules of the court after consulting the Lord Chancellor.
As I understand it, that will be the case in Scotland. The rules in Scotland will be made not by the chief executive or by a member of the Scottish Executive but by the Lord President. This amendment would put us on all fours with the situation north of the Border. Indeed, I think it would be inappropriate if a different approach were to be taken in England and Wales in contrast to Scotland.
We submit that the amendment is a vital component of the earlier decision we took about replacing the Secretary of State by a judge. I have no hesitation in recommending it to your Lordships. I beg to move.
My Lords, we too support the amendment moved by the noble Lord, Lord Kingsland. We feel it is very important that the making of the rules should be in the hands of the judiciary, and not be merely a matter of consultation. We also feel that it should be subject to parliamentary approval; that will come with our Amendment No. 33, in a later group. However, on this point, we entirely support the amendment that has just been moved.
My Lords, we have talked about this before. I would strongly recommend that we do not vote on it at this stage. There are three reasons why the Lord Chancellor should make the rules on this particular occasion. First, the Bill is not talking about the Lord Chancellor making the rules in the long term. Only on the first occasion is he proposing that these rules be made.
Secondly, in the circumstances that currently exist—with the rules being put together quickly—there is much to be said for the Lord Chancellor taking responsibility for them at this stage. It is best that the Lord Chancellor commits himself, as I do, to ensuring that they are proper rules; rules to give a fair procedure, rules in respect of which he will consult with the Lord Chief Justice—as I am in the process of doing. It is most sensible that the Lord Chancellor should take that responsibility. If I cannot persuade noble Lords of that now, I hope I can persuade them that this is the best thing to do if I speak to them privately.
Thirdly, there is the matter raised by the noble Lord, Lord Goodhart. The noble Lord is right that these rules should be subject to parliamentary procedure. It is my intention—though I have not yet been able to transmit it to the noble Lord, Lord Goodhart, for which I apologise—to accept his later amendment in relation to parliamentary procedure. Because of the timing, because it is better that the Lord Chancellor takes the responsibility, and because there is to be a parliamentary procedure, I earnestly ask noble Lords not to press this matter to a vote. Under all the circumstances, it would not be appropriate.
My Lords, before the noble and learned Lord the Lord Chancellor sits down, could he deal with something? I am rather bewildered by that response, although I welcome the parliamentary scrutiny which he said he will concede. Could he explain why it is all right for the Scots to have a judge determining this and why it can be done within the timetable in Scotland, but the same cannot be done in England? That was the point which my noble friend made. The implication of what the noble and learned Lord the Lord Chancellor is saying is that something would go wrong—given the urgency—if it were left to a judge, rather than to the Lord Chancellor. Where does that leave Scotland?
My Lords, it is not a matter for this Parliament to determine what the provisions of the rules of the Court of Session can be in Scotland. Thanks to devolution—and this is a good thing—we do not have power in practice to intervene in a devolved area; that is, we do have power but we should not exercise it. I am quite satisfied, on the basis of what I have been told, that the rules of court that will be made in Scotland will be entirely satisfactory.
The pressure in timing is really here. All the initial orders are likely to be made in England and Wales. It is the timing which is so critical here.
My Lords, before the noble and learned Lord sits down, I gave notice to his office only this morning that I would ask whether there are draft rules that could be seen by the House. I was told that there were not. However, can the noble and learned Lord say whether there are draft rules in existence on which he is in the process of consulting the Lord Chief Justice? I think the noble and learned Lord just said that he was in the process of doing so. Is there some kind of draft which is being seen by the noble and learned Lord, Lord Woolf, at the moment?
My Lords, yes, there is. We are having to consult together on it. It is obvious to everybody in the House what the timing is, and obvious that England and Wales will be the focus of the initial orders. Everybody knows that the Part 4 powers come to an end on a particular date—which is next Sunday. The truth is that there are drafts which have been sent to the Lord Chief Justice. I do not want, at this stage, to show what the drafts are without there first being some consultation with the Lord Chief Justice, which I think is the appropriate way of dealing with it.
My Lords, just before the noble and learned Lord sits down, while I do not wish to detain the House, this is an important matter. I cannot get my mind around why it can be right to have one set of rules which apply in Scotland, and another set of rules which apply in England on a matter which concerns terrorism. I keep being told by the noble Baroness, Lady Scotland, that it is not a devolved matter. I understand, of course, that the rules of court are a devolved matter, arising because of what the Government did in respect of devolution.
Surely, if we have different rules north and south of the Border—and different treatment of people who represent a threat to the whole of the United Kingdom—that would be nonsense. Surely, the rules should be the same north and south of the Border, insofar as is practicable. If the principle is that north of the Border it will be done by a judge—and, with all due respect to the Lord Chancellor, not by a politician—why does that principle not apply south of the Border? I cannot understand it.
My Lords, the rules are made by different bodies in Scotland and England. The significance of what is happening in England and Wales at present is that the urgency is greater there than in Scotland, because it would be anticipated that orders would need to be made first in England and Wales. I have absolutely no desire to make the rules in Scotland—indeed, I have agreed with the noble and learned Lord, Lord Cullen of Whitekirk, that he, as the Lord President, will do so there. They might well differ in their precise format from those in England and Wales. However, the basis on which we operate is that there is a separate legal system in Scotland from that in England and Wales. We propose—and it has not been broadly challenged in this House—that the separate legal systems should deal with the questions that the Bill poses to them. I strongly support the proposition that the precise procedure that they adopt—subject to the terms of the Act—is a matter for each individual jurisdiction to adopt. That has always been the position between England and Wales, and Scotland. I believe it should continue for a long time to come.
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his response. On the question of equivalence between ourselves and Scotland, my noble friend Lord Forsyth has simply added great weight to the argument that I advanced when opening the debate on this amendment. The noble and learned Lord the Lord Chancellor says that this will be the first and only time that the rules will be made by the Lord Chancellor. That may be so; however, this is the Bill we are looking at now—and the first and only time is the way that the rules will be made in relation to the Bill. So, with great respect, I do not believe that that is an argument against our amendment.
On the contrary, the Bill is being put through with great speed. It is even more important that somebody standing outside the political process, such as the Lord Chief Justice, should be taking the lead as a check that the Government have got due process absolutely right. There is not a shred of evidence on the Bill that the Government have really paid any attention to due process. That is not really surprising, since the Bill was intended for a system under the Secretary of State, and not the judge. Yet now that the judge is there, it must follow—as night follows day—that we have a proper set of rules, made by our most senior judge. Despite what the noble and learned Lord the Lord Chancellor generously said about Amendment No. 33, I wish to test the opinion of the House.
On Question, whether the said amendment (No. 25) shall be agreed to?
My Lords, I must advise noble Lords that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 28A to 32, due to pre-emption.
moved Amendment No. 28:
Page 20, line 10, leave out paragraph 4 and insert—
(a) ensure that the relevant party and his legal representatives are given notice of all control order proceedings and relevant appeal proceedings and are able to attend for the duration of those proceedings, make representations, question witnesses and call evidence subject to the provisions in sub-paragraph (d) below;
(b) ensure that the Secretary of State supplies to the relevant party and his legal representatives at the commencement of control order proceedings, a summary of the allegations made against him;
(c) make provision for the exclusion of evidence in control proceedings which the Secretary of State knows or reasonably suspects has been obtained by torture in any jurisdiction;
(d) secure that the Secretary of State is required for the purposes of any control order proceedings or relevant appeal proceedings to disclose to the relevant court and, subject only to the court's discretion on an application ex parte by the Secretary of State for public interest immunity, to a relevant party any relevant material which may harm or assist the relevant party's case;
(e) ensure that the proceedings shall be determined with a hearing unless all the parties agree to it being determined without a hearing."
My Lords, the noble and learned Lord, Lord Ackner, said earlier today that the legal system had been distorted by this Bill. This amendment and Amendment No. 28A, in the name of the noble Lord, Lord Kingsland, attempt to put into the Bill the idea of due process. We have done half the job by ensuring that judges take the decisions and not the Secretary of State; the other half is to ensure that the rules of court reflect the need for a fair trial.
In Amendment No. 28 we have set out, first, that the rules,
We say that potentially it can be a breach of civil obligations and of a person's right to have a fair trial if the provisions in the Bill do not comply with that article.
The amendment is not intended to be exhaustive, but intended to set out some of the important aspects of due process. By looking at sub-paragraph (a), your Lordships will see that we consider it important that,
"the relevant party and his legal representative" should be
"given notice of all control order proceedings and relevant appeal proceedings", so that he can
"attend . . . make representations, question witnesses and call evidence subject to the provisions of sub-paragraph (d)"— which provisions are on disclosure. I will come to that in a moment.
The second sub-paragraph deals with the necessity for the Secretary of State to provide,
"to the relevant party and his legal representatives ... a summary of the allegations made against him".
It is clearly fundamental that a person knows the nature of the charge that he is facing before an order is made depriving him of his liberty.
The third sub-paragraph deals with an issue that we discussed late last night—torture. A recent decision of the Court of Appeal that part of the common law of England was that evidence obtained by torture in a foreign jurisdiction is admissible came as a great shock to lawyers who practise in this country. I believe that the matter is to be discussed in the Judicial Committee of the House of Lords. We seek to take advantage of these provisions to ensure that the evidence that goes before the court is not tainted by having been obtained by torture, whether in Uzbekistan, Guantanamo, Abu Ghraib or any other place appearing as a disgrace upon the traditions and history of the common law and, in particular, of the common law of this country.
Your Lordships will recall that in Abu Ghraib, for example, the defence advanced by those convicted of engaging, essentially, in torturing prisoners was that they had been instructed to "soften up" those prisoners for the purposes of interrogation. If you accept that a fundamental human prohibition, such as that against torture, can be broken once, then it is far easier to do so a second time, a third time, and so on. That atmosphere seems to have crept in for those engaged in interrogation as a result of the wars that we have had in Afghanistan and Iraq.
The breach of a taboo, of a fundamental human right, is easier the second time. For example, when the prevention of terrorism Bill 2001 was before this House, we spent not three days but nine days discussing every aspect. In particular we discussed the derogation from Article 5. Now we come to it again and everybody shrugs their shoulders: "Well, we have done it once, we can do it again".
So it is with Article 6. I had an assurance from the noble and learned Lord, the Lord Chancellor, last night that a derogation will not be sought. However, if such a derogation was sought at any time—that the provisions of a fair trial should not apply to these procedures—then, "Do it once, it is easier a second time", and the committee of public safety can take over. At the end of the day, the right to a fair trial is then severely diminished. So, sub-paragraph (c) makes an important point.
Sub-paragraph (d) deals with disclosure. Over many years the practice has developed that in a criminal case the prosecution freely disclose material coming into its possession that is exculpatory—if it assists the defence or harms the prosecution. The provision contained in the Bill in no way permits that. The noble and learned Lord the Lord Chancellor said last night that it is a fundamental matter that exculpatory material would be revealed to the court. Why then is it not in the Bill? Why do the words used in the Bill suggest otherwise? Therefore, sub-paragraph (d) is important.
As for sub-paragraph (e), why does the Bill suggest that there could be proceedings determined without a hearing? Certainly proceedings can be determined without a hearing if both parties agree, but surely not if one party—namely, the "relevant person" under the Bill—is not present or disagrees and wants a full hearing.
I do not pretend that this is an exhaustive list. One of our great problems—I hesitate to repeat the point—is that there is so little time to draft things that nothing is perfect. These are illustrations of the vital role that Article 6 should play in the proposed proceedings, both the preliminary and the full hearings. I beg to move.
My Lords, we should all be immensely grateful to the noble Lord, Lord Thomas of Gresford, for having returned to this issue at the Report stage. In our deliberations on the Bill, there has been a great deal of concentration on Article 5, of course, establishing what are the human rights that are there to be protected. But that is of no value unless the legal processes for ensuring that that happens are in place. Therefore the amendment is crucially important in principle and in practice.
I am particularly glad that the noble Lord has returned to the issue of torture. We cannot repeat at Report stage the lengthy debate we had at a very late hour last night, but perhaps I may make, very quickly, a couple of points. First, as we have been reminded already in the Report stage, if we are to win the war—if one may use that unfortunate analogy—against terrorism, hearts and minds are crucial. If there is any question that torture is in any way related to a decision to take action against an individual, that is to hand a propaganda weapon to the leaders of the more extreme elements. It is a recruiting agent for the extremists. We can argue about how we do things until the cows come home, but to do something as counter-productive as that would be disastrous when it is within our control not to do it. That is my first point.
My second point is that in relation to all the decency that we are trying to protect in our society, torture is unthinkable. Therefore, in principle, it can have no place.
My third point, which I wish to emphasise, is that it is well known that evidence secured under torture is likely to be highly unreliable. Therefore, if we were concerned about the validity of the decisions that were being made by the court, or the propositions that were being put to the court by the Home Secretary, it would be very foolish if evidence which was in any way, as the noble Lord, Lord Thomas of Gresford, put it, tainted by torture were to be central to the case. It would be an unreliable element right at the centre of the things that were being done.
For those reasons—and, of course, there are others— I am grateful personally to the noble Lord, Lord Thomas of Gresford, for having returned to this point. I hope the House will take it very seriously. If I am allowed to say so—I said so last night—the Joint Committee on Human Rights, of which I am a member, came to a very firm conclusion on these issues. It believed that it was very urgent that steps should be taken by the Government to bring us into line with what has been recommended by the United Nations Committee against Torture—which is that the Government should make it quite plain that nowhere, anywhere, will torture, directly or indirectly, be acceptable.
My Lords, I wish to make two points, one on torture and the other on due process. I was party to the recommendation of the Joint Committee on Human Rights, to which the noble Lord, Lord Judd, has just referred. Of course, that gives effect to the obligations already imposed on Parliament, the Government and the judiciary in international law by the torture convention. The only reason the Court of Appeal decided the torture convention could be put into the waste paper basket, effectively, was that it has not been incorporated into domestic law.
I am normally a bad prophet, but I prophesy that the Law Lords, if the Government do not accept the amendment, will decide that the Court of Appeal was wrong and that certainly the use of torture in evidence would breach the convention and would be contrary to the law of the country. The great virtue of the amendment is that it would put the matter beyond doubt and give effect to our treaty obligations under the torture convention. That is my first point.
As to my second point on due process, the noble Baroness, Lady Ashton of Upholland, will remember that during the Inquiries Bill the noble and learned Lord, Lord Howe of Aberavon, pressed the Government for due process in the rule making. The Government, commendably and very sensibly, agreed that there should be on the face of the Bill, in the rule-making power, a recognition that the rules had to give effect to the overriding necessity for fairness. In this Bill, for some reason, that has not been put into the rule-making power, and yet it is dealing with something much more serious than the Inquiries Bill—it is dealing with the determination of important civil rights and obligations once control orders have finality.
I should be grateful if the Government would think very carefully indeed about that point. I see no good reason why the need for fairness in the rule-making power should not be written into this Bill, whether spelt out in this amendment—which I would support—or in some other way. If not, it will be very strange indeed that the rule-making power can have regard to all kinds of things but not the overriding necessity for fairness. I would be grateful if thought could be given to that in the response to the amendment.
My Lords, I simply make the point that, when we hear the noble Lord, Lord Judd, and a number of others, it sounds more and more as if we practice torture, and we do not. That should be made very clear because the public—including the public about whom the noble Lord, Lord Judd, is worried—would be entitled to think that they have to fear that from this country, and they do not.
This is something that happens elsewhere and, when we are expressing these concerns, it has to be made very clear that we are not suggesting that it is a rational expectation or fear here.
My Lords, before the noble Baroness sits down, perhaps I may make the point that in no way was I suggesting that we use torture. I was suggesting that if in decisions we were making information which had become available because of torture elsewhere was being used, this would be to hand the extremists a propaganda weapon.
My Lords, not for the first time, I support the arguments adduced by my noble friend Lord Judd. I do so on several grounds. Evidence acquired by torture is totally unreliable and, for that reason, it ought to be no part of our law.
The argument adduced by the noble Baroness, Lady Park, is wholly irrelevant, in my respectful submission. Of course torture is excluded by our own practice, but if the Home Secretary were to come to the view that, however unlikely, torture may have been used, that should be excluded. In other words, if the Secretary of State knows, or ought to have known, that torture had taken place—it does not matter in what jurisdiction—it should be omitted from our considerations.
Although it was a minority occasion, I am afraid that I was not totally convinced by the noble and learned Lord, Lord Falconer, last night. It may be that he has had second thoughts. I hope so. I have so far referred exclusively to sub-paragraph (c) of the amendment and I hope that he will consider that, in any event, any question of torture ought to be excluded.
As to the other points that have been raised, I go along with what the noble Lord, Lord Thomas of Gresford, said. The provisions of the amendment would undoubtedly improve the situation that we are now considering.
My Lords, this is an important amendment because its purpose is to ensure that the subject in these novel proceedings should have a fair trial. It would, of course, be the duty of the court to ensure that the suspect had a fair trial in any event. That has always been the way in which we have conducted our judicial proceedings. It would also be obliged to apply Article 6 of the Human Rights Act, quite apart from this amendment. Perhaps the noble Lord, Lord Thomas of Gresford, could confirm whether these are civil proceedings, as they are supposed to be, or criminal proceedings, as they seem more nearly to be, when he comes to reply.
It is good that the main provisions of Article 6 of the convention should be set out in this clear way, including sub-paragraph (6), which, of course, is not strictly covered by Article 6. Setting them out like this will do much to reassure the public, who may not be intimately acquainted with the precise provisions of Article 6. I strongly support the amendment.
My Lords, while fully accepting, understanding and agreeing with the principle which the noble Lord, Lord Thomas of Gresford, is trying to achieve, I am concerned about some of the wording of this particular amendment, and whether it is obtainable as the noble Lord has expressed it.
As a general question, does the noble Lord consider that the preliminary hearing is a control order proceeding? I should have thought it must be, because it comes under these proceedings. If so, then, with the greatest respect, the Liberal Democrats' amendments are totally self-contradictory. In the rules which the noble Lord is saying must now be made, it specifically says that they must,
"ensure that the relevant party and his legal representatives are given notice of all control order proceedings and relevant appeal proceedings and are able to attend".
Yet if one goes to new Clause 2(2), which the Liberal Democrats introduced earlier today, they say it shall be the duty of the court,
"to hold an immediate preliminary hearing".
They go on to say:
"The preliminary hearing under subsection 1(a) may be held in the absence of the individual in question; without his having notice of the application for the order; and without his having been given an opportunity (if he was aware of the application) of making any representations".
Unless it is made clear that the control order proceedings only apply to a full hearing rather than the preliminary hearing, what they are trying to do on the face of this Bill is totally self-contradictory.
It is not realistic to believe that the sort of principles which the noble Lord, Lord Thomas of Gresford, is setting out could be achieved in a preliminary hearing which will, of its very nature, be immediate and quick, as has been accepted on all sides.
I query this amendment in one or two other respects. I share with the noble Lord, Lord Thomas of Gresford, the view that we should do everything, by regulation and rules, to make the hearing as near to a normal hearing of a criminal trial as possible. We have all agreed that, and the House has passed an amendment which provides that these proceedings should not come into being unless the Director of Public Prosecutions is satisfied that there is no possibility of a reasonable trial.
It is almost inevitable that there is going to be certain evidence which must be excluded from the defendant. Yet the wording and tone of these amendments is that an application being made to exclude certain evidence would somehow be the exception rather than the rule. Inevitably, once one gets to the situation where one is going for a control order—having decided an ordinary trial is not possible—it is likely that there will be evidence which is not available.
Furthermore, but along the same lines, if one looks at the matters which must be covered by the regulations, they allow representatives to question witnesses. The trouble is that, in many of these cases, the one thing one will not be able to do is disclose the name or identity of the witness giving evidence. That is why one is having these proceedings in the first place: to do so might put people at risk.
It is sadly unrealistic to suggest that one can have rules which must ensure that the relevant party—that is, the person against whom the application has been made—is entitled to question witnesses. Equally, I question whether it is realistic to say, as it does in sub-paragraph (d), that he is entitled to disclose any
"relevant material which may harm or assist the relevant party's case".
In this type of procedure there will be some areas that we will be unable to cover. Therefore, while I think we should do everything we can to get as close to the rules of a normal criminal trial as possible, we must think further to see what is achievable and what is not. That may be another argument for having more time on this Bill.
I notice something in this Bill that is not referred to elsewhere within it. If the evidence the Secretary of State has is exculpatory of the individual then, in that case, that evidence should clearly be provided to him. When it is said that the evidence should be of a kind that may harm the party's case, it is not realistic to require rules to be made which require that disclosure, or the right to question those witnesses.
My Lords, will somebody enlighten us as to the relationship between this amendment and Amendment No, 28A, which has so far not been mentioned at all and does not appear to be grouped?
Amendment No. 28A—with commendable brevity, instead of going into virtually three quarters of a page—says in two lines that the rules of court must comply with our obligations under Article 6. Either that comprehends all that the noble Lord, Lord Thomas of Gresford, has set out at length—and therefore what he has set out is unnecessary—or, as I suspect, quite a lot of what the noble Lord has set out in the amendment goes further than that required by Article 6. That has been demonstrated by the cogent point just made by the noble Lord, Lord Carlisle of Bucklow.
If we just have a provision that we must obey Article 6, then it may be—I do not know, because I am glad to say that I am no expert on the European Convention on Human Rights—that there are qualified circumstances under which we can derogate from these things. Either the noble Lord, Lord Thomas of Gresford, goes further than Article 6—in which case he should not be allowed to do so—or he is merely replicating parts of Article 6, in which case he is unnecessarily cluttering the statute book.
I was delighted to see the smile of pleasure on the face of the noble and learned Lord the Lord Chancellor when the noble Lord, Lord Thomas of Gresford, corrected the description of the noble and learned Lord from Chancellor to Lord Chancellor. I therefore look forward with a keen sense of anticipation to the vote that will take place in your Lordships' House on the fifteenth of this month, when we will be considering whether the Lord Chancellor should or should not remain a Member of your Lordships' House.
I can deal with this issue fairly briefly. We are deep into the detail of due process. The Government's solution is set out in paragraph 4 of the schedule to the Bill. It is, in our submission, wholly inadequate and certainly does not conform with the stipulations of Article 6.
I come now to the question posed by the noble Viscount, Lord Bledisloe. Our Amendment No. 28A would remove paragraph 4, sub-paragraphs (1) to (5) from the Bill. We agree with much of the detail set out in the amendment of the noble Lord, Lord Thomas of Gresford, in particular the provisions on torture. I pay tribute to the noble Lord, Lord Judd, who spoke most eloquently about that last night, in particular, and as effectively as ever today, although rather more succinctly. Nevertheless, the solution set out in the amendment of the noble Lord, Lord Thomas, is, to us, partial. We believe that the right approach is for the noble Lord, Lord Thomas, to withdraw his amendment in favour of our Amendment No. 28A. That would require the Lord Chief Justice to deliver a set of rules which, at the very minimum, conformed with Article 6 of the European convention.
We have added a set of braces to our belt. We know from the exchanges that took place between the noble and learned Lord the Lord Chancellor and the Liberal Democrat Benches that the noble and learned Lord now accepts Amendment No. 33. That being so, once the noble and learned Lord the Lord Chief Justice has drafted these rules, your Lordships will have an opportunity of looking at them in the context of Amendment No. 33, in the name of the noble Lord, Lord Goodhart, to ensure that the standard of protection given to the prospective control party is the right one.
My Lords, this very important group of amendments is concerned with the rules of court and with torture. The first part of the proposals of the noble Lord, Lord Thomas of Gresford, is intended to ensure that the rules of court made comply with Article 6 of the convention. We accept that they must, whether they are made by the Lord Chief Justice or the Lord Chancellor. If they do not, they can be struck down in accordance with the Human Rights Act 1998. So there is already legal protection in relation to the rules. We also submit that it is unnecessary in those circumstances to include the amendment of the noble Lord, Lord Thomas of Gresford.
A fundamental point which everybody recognises is the extent to which you can disclose to the suspect and his legal representative material which underlies or plays a part in the case against the suspect brought by the state. It is not without interest that with regard to every single one of the people in Belmarsh, evidence that was not revealed to the suspect or his legal adviser was involved. In every case, evidence that was kept secret from the suspect was involved.
It is worth setting out what the procedure in the SIAC cases involved because cases under this part of the Bill will be similar. Open evidence—that which is available to all—is disclosed to the appellant and to the special advocate at a relatively early stage in the process. So the applicant or the suspect, his legal adviser and the special advocate all see the material. It is worth emphasising that the applicant or the suspect does not just have a legal adviser; he or she also has the special advocate to look at the material.
The open evidence disclosed to the applicant, his legal adviser and the special advocate enables the special advocate to discuss the open evidence with the applicant before the special advocate sees the closed evidence. The proposition is that once the special advocate has seen the closed evidence, he or she cannot talk to the applicant or their legal representative because they may inadvertently give the information which, if the applicant or his or her legal representative finds it, might endanger national security in some way.
The closed evidence is then provided to the special advocate. Following that, the Rule 38 process, as it is described, begins. That procedure tests whether it is appropriate for all the closed evidence put forward by the Secretary of State to remain closed. The special advocate may ask for disclosure to the appellant of some of the closed evidence—that is, that some closed evidence should be made open. In all such cases, every piece of evidence is considered separately although decisions on some pieces of evidence can be made only in the context of the evidence as a whole.
There is a process of discussion between the special advocate and the Secretary of State. The Secretary of State's counsel takes instructions and advice from the relevant departments and agencies and tries to bottom out what the sensitivities are and whether the evidence could, in truth, be disclosed to the applicant and thereby made open. Usually agreement is reached between the special advocate and the Secretary of State on most issues concerning whether to make closed evidence open. Often this agreement is by way of a compromise. For example, it may be safe to put a redacted version of the particular piece of closed evidence into the open evidence or the gist of the closed evidence may be prepared for disclosure to the applicant even though the closed evidence remains closed. If agreement cannot be reached, then the court is asked to rule on it. So it is a probing process, designed to ensure that as much evidence as possible is made available to the suspect and his legal representative.
In parallel, machinery has developed for ensuring that any relevant unused material is not held back from SIAC. The balanced approach taken by the Secretary of State to assembling the evidence for cases should ensure that any relevant material which may be exculpatory is not concealed. But to ensure that that is the position, procedures have been put in place to check all the material to ensure that no exculpatory material has been overlooked. Because of the volume of the material, it has been impracticable for the special advocate to perform this task. Obviously, the suspect and his legal representatives could not do so. Consequently, the Secretary of State has put in place a mechanism whereby all other accessible material concerning the suspect is checked by the Secretary of State's counsel to see whether there was any exculpatory material. If so, this material would be provided to the special advocate.
Following the provision of such material to the special advocate, there is further consideration by the special advocate and SIAC—in this case it would be the High Court—regarding whether any of the material should be made open and disclosed to the suspect. This procedure ensures that even where additional unused material remains completely closed, the court is put fully in the picture and can ultimately decide on the fairness of the proceedings. It is worth emphasising, therefore, that all exculpatory material must be made available by the Secretary of State; he has processes involving counsel which means that an independent member of the Bar checks whether there is any exculpatory material. If there is, he or she alerts the Home Secretary who then makes it available to the special advocate who is there in practice to ensure a fair process.
This is a very detailed process which is designed to deal with the fundamental problem which everybody who has looked at the situation agrees exists of allowing a fair process but ensuring that there is no damage to national security.
If I can just finish this point, I shall come back to the noble Lord.
It is worth recalling the concerns expressed yesterday by the noble Baroness, Lady Park of Monmouth, and by my noble friend Lady Ramsay. They have much greater experience than anybody else in this Chamber. First, my noble friend the Lady Ramsay of Cartvale:
"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 ... That would be an extremely serious blow to any intelligence or law enforcement service".—[Hansard, 7/3/05; col. 601.]
The noble Baroness, Lady Park of Monmouth, said,
"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 ... 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".—[Hansard, 7/3/05; col. 604.]
The noble Lord, Lord Carlile of Berriew, looked at this matter from an objective standpoint, and he made precisely the same point as has been made by the noble Baroness, Lady Park of Monmouth, and by my noble friend. He said specifically that if the material was disclosed to the suspect and his legal representative, then there would be danger. It is worth pointing out that in every one of the Belmarsh cases, the judge agreed that there was some material that could not be disclosed to the suspect or his legal representative. However, in relation to all that material, that suspect would have the benefit of a special advocate.
That is the procedure, but is it fair or just? Can justice be done in relation to that? This is the view of the SIAC procedure on whether it is fair, in the case of A—which went to the House of Lords, but not on this point:
"The proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article".
He returned to the issue again in the case of M:
"Individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided or if it cannot be avoided minimised. However, the unfairness involved can be necessary because of the interests of national security. The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him.
We feel this case has additional importance because it clearly demonstrates that, while the procedures which SIAC have adopted are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice. It is wrong, therefore, to undervalue the SIAC appeal process".
Whoever makes the rules in relation to this process is going to make them similar to those which applied in relation to SIAC. They have to comply with Article 6. Noble Lords can if they wish believe, because it is deportation proceedings, that different rules of fairness would have applied. I think it extraordinarily unlikely that the courts would have taken that view in relation to a procedure that involved, by the time the Court of Appeal looked at it, somebody having been in prison for three years. It would be little comfort to be told that these are deportation proceedings and therefore different.
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving way. He has been at great pains to show how considerable the thinking of the Government has been behind this. If material is not disclosed to the suspect, is it then not possible for the special advocate to form a view about what the possible answers might be which would render the evidence much less persuasive, such as a complete alibi, or a mistaken identity of some evidence?
Secondly, is it not inconceivable that a court, if presented with the Government's statement that the disclosure of evidence would be contrary to national security, would not seek to substitute the judge's view about that? How could he, and what possible evidence could he bring to bear? These two points make it possible that the suspect could have fair treatment in some circumstances, but in others, just as possibly, he could not. It is for that reason that one has to look for remedies which protect the suspect's interests as well as national security.
My Lords, there are two stages that one needs to address. The noble Lord, Lord Maclennan, is right that if there is material which you cannot tell the suspect about because it endangers national security, there is plainly the possibility that you have not obtained from the suspect instructions that would deal with it. On the other hand, I do not think that people who have looked at it dispute the proposition that it would be dangerous to give that to the suspect, for national security reasons. I take one utterly obvious example: suppose there is an informant who is right at the heart of a terrorist cell, and that if you reveal a particular sequence of events, you almost inevitably reveal the name of the informant. That informant has proved reliable in the past, and you need the control order to prevent an atrocity. What do you do?
The solution that has been reached is that you give as much as you possibly can to the suspect and his lawyer, but in relation to the material that you cannot, because of the risk it poses, you allow a special advocate to question whether it should be given to the suspect. If the special advocate accepts that it cannot be given to the suspect, then he will test it. The courts say it is not perfect, but there is a balance to be struck in relation to the interests of the suspect and the needs of national security. It is not just that we, the Government, submit that it is the right balance to be struck, it is one that the courts have said is okay.
My Lords, I suggest that the noble Lord, Lord Lester of Herne Hill, who I unfairly cut off, comes first.
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. He referred to the independent special advocates. He is certainly right in saying that they are independent and, if I may say so, they are outstandingly able. I commend the Government on the way in which they have been appointed, but this body of men and women have special expertise in whether the SIAC procedures have worked fairly. Is he consulting, and has he consulted, the body of special advocates, on the basis of their practical experience, on whether improvements can be made to the SIAC procedures? If so, what representations have they made?
I am not talking about the special advocate who resigned, but about those who have remained in posts and seek to be as fair as possible. What representations has he received or will he be receiving? That is surely a body of people whose opinions really matter, in the sense that they have been trying to work the system, and I am sure they will have a contribution to make. Please tell us something about that.
My Lords, I agree entirely with what the noble Lord has said. Special advocates have made detailed representations to the Attorney-General—not to me, because the Attorney-General appoints them. However, I have seen the detailed representations and the special advocates have gone through a number of areas where they believe more support is needed. I shall not go through every single one that they have given because I went through them in detail in the Constitutional Affairs Select Committee. On behalf of the Government, we did not accept every single point that they made, but we accepted, in practice, the substance of the points.
At the heart of their legitimate concern was the fact that they were not given enough support, which resulted in three points: first, there was not an instructing solicitor in the Treasury Solicitor's Department who was cleared to see the closed material that they saw; secondly, there was no one from whom they could take advice in relation to the material that they were given; and, thirdly, they did not have access to the vast body of decisions that SIAC had made in relation to various legal and factual issues, which it would be helpful to see.
We need to remedy all of those points. I said to the Select Committee that we are minded to propose a number of remedies, for example, ensuring that they have a proper instructing solicitor, but before we do that, we want to consult the special advocates themselves.
My Lords, I am grateful to the noble and learned Lord. I wanted to ask exactly the same question as the noble Lord, Lord Lester. After that last exchange, I shall now put a residual point. The work of the special advocates has been described, quite rightly, by the noble Lord, Lord Lester, as remarkable. Taking account of the fact that, in such circumstances, there will be information that cannot be disclosed, surely, even in the light of the amendments to the procedures described by the noble and learned Lord, it would not be right to give the House the impression that, although special advocates who do not resign are happy with the situation, they are completely happy?
My Lords, I do not know whether they are completely happy. Those who are staying on have made specific points in writing to the Government and we have sought to address them. Having addressed those points, we want their views on our proposals.
This is a difficult situation, but we need to craft a solution to it. What should we do to the Bill? Paragraph 4(2) on page 20 sets out the provisions that give effect to and allow for the special advocates. I make it clear, as I have already done, that that is all subject to Article 6.
The amendment tabled by the noble Lord, Lord Thomas of Gresford—quite separately from the very powerful points that the noble Lord, Lord Carlisle of Bucklow, made that it was inconsistent with the new Clause 2 of the Bill—takes bits of Article 6, throws in some of the language of the Bill, and that is the provision. It seems to me that that would be unhelpful and misleading as a basis on which to say that the procedure applies.
I respectfully submit that the best way is, first, to accept that Article 6 applies, as the Government make clear today through me and as I made clear yesterday, and, secondly, to respect the process that has been put in place and allow rules to be made that will reflect that procedure, which is paragraph 4(2). There is one problem, which the noble Lord, Lord Kingsland, specifically raised yesterday, and that is the exculpatory material, which is the paragraph 4(3)(c) point. The noble Lord, Lord Kingsland, rightly said that could mean that a situation could be reached in which the Secretary of State was not obliged to produce exculpatory evidence. I accept that he must produce exculpatory evidence, but he must produce it to the court and the special advocate in the first instance. I hope that it can be given to the suspect and his legal representation, but if it cannot, then it has to be treated in the same way as the other material that comes before the process.
I hope that that satisfies the noble and learned Lord, Lord Mayhew of Twysden, who raised the matter yesterday, and the noble Lords, Lord Carlisle of Bucklow and Lord Kingsland. I have an amendment that makes it clear that that can happen.
My Lords, I am very grateful to the noble and learned Lord for giving way. He has reassuringly described the practice that obtains at the moment. Like last night, I ask why cannot that be explained in the Bill, in place of sub-paragraph (3)(c), so that it is plain on the face of the Bill. The words,
"that the Secretary of State is not required . . . to disclose anything to . . . any other person, where he does not propose to rely on it", do not extend to giving him permission to sit on exculpatory material, save, in the very rare case when it will be necessary to obtain the approval of the court for such a course. Why cannot that be set out on the face of the Bill? If that could be done, it would be very reassuring to those who read it.
My Lords, perhaps I can consider whether that needs to be done between now and Third Reading, which will take place in a few hours' time. It seems to me to be a perfectly sensible suggestion. It would make it clear that the Secretary of State has to disclose the material to the court and to the special advocate. The difficulty arises if the court then says, "You have to show it to the suspect", and then, no doubt, the Secretary of State will decide what to do about it.
At the moment, I cannot see a reason why I should not put it on the face of the Bill. No doubt I shall be told some good reason, but I shall take advice and come back to the matter at Third Reading.
I hope that I have reassured the noble Lord, Lord Thomas of Gresford. I earnestly hope that the noble Lord will recognise, in the light of what the Court of Appeal has said, that to press on with this amendment will simply lead to confusion and provide no added protection. The noble Lord, Lord Thomas of Gresford, has not yet indicated whether he accepts broadly that the process that I have described is the best and appropriate process.
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for everything that he has said. I shall turn to his questions to me in a moment.
The question of what is a fair trial is variable. It depends on the type of trial, on the issues to be considered, and on the way in which a judge or a tribunal approaches the task. However, there are certain basics to a fair trial. In the amendment I have endeavoured to set out what I believe should be the basics in these types of proceedings; namely, that there should be notice of the proceedings given to the person concerned; that he should have a summary of the allegations—not the evidence, but what he is charged with; that he should have the right to make representations; that he should have the right to cross-examine witnesses; and that he should have the right to call evidence. That is as far as the amendment goes.
I repeat that I have not attempted to put into the amendment, by reason of the very special nature of these proceedings, anything about evidence. I appreciate that this is a very difficult and sensitive area and, of course, I pay tribute to the speeches last night of the noble Baroness, Lady Ramsay—
My Lords, of course, everyone agrees that a summary should be provided. Am I right in saying that paragraph 4(d) of the amendment is the only circumstance in which the noble Lord believes that material can be kept from the suspect in the legal process; namely,
"on an application ex parte by the Secretary of State for public interest immunity"?
So you are saying, "Do not use the special advocate procedure; just use this particular procedure and none other". If that is right, what the noble Lord proposes is something that would not allow the existing procedures, which have been held to be fair, to be used.
My Lords, I very rarely accuse the noble and learned Lord the Lord Chancellor of being impatient, but I shall come to that point in a very short time, for obvious reasons. I started by saying that what is a fair trial varies between the different types of issues. Certainly in the case of deportation, the matter has been ruled on twice by the Court of Appeal—not by the Judicial Committee of the House of Lords—which has been satisfied in that type of proceedings with the special advocate system. The procedures before SIAC have also been approved at certain levels.
Let me remind your Lordships what SIAC means. It means the Special Immigration Appeal Court. We use the initials SIAC without really understanding to what area of law they refer. One of the peculiarities of the procedures which resulted in people being locked up in Belmarsh was that they were immigration procedures, and it was open at any time to an inmate of Belmarsh to leave this country, provided that he could find a country which would accept him.
The special advocates have been developed in that context—the Special Immigration Appeal Court. They have never been developed in the criminal courts. Yet there is, of course, sensitive material coming before the courts in terrorist cases all the time. Not just in terrorist cases but in drugs cases: wherever there is surveillance, wherever there are techniques and wherever there is danger to informers and to operatives in the field. Every day, in many criminal courts throughout the country, this type of evidence is produced.
How is it dealt with? The mechanism has been developed whereby sensitive material is disclosed to the judge, who rules first of all upon whether it may be disclosed in any form to the defence, if it is relevant. Secondly, he rules how it should be redacted—in other words, what should be cut out of it—in order for the defence to see it. That is the way in which sensitive material is dealt with in criminal courts. When we come to this type of procedure therefore—the making of control orders in the High Court, as it now is—I do not see why we are bound slavishly to follow the system that was developed for the Special Immigration Appeal Court.
My Lords, two points follow from that. First, the noble Lord does not want the special advocate procedure at all. Secondly, if the judge says that it has to be disclosed, then obviously the Secretary of State has to make his choice. However, if it cannot be disclosed on national security grounds, then it cannot be used.
The noble Lord is therefore saying that it cannot be used, even though in relation to every single one of the cases that material was critical in making a decision.
My Lords, the judge who is considering this material has the interests of the public at heart. That is why he is there. He is a public officer and he is clearly concerned to carry out a balance between the safety of the public and the rights of the defendant. Very often a judge will ensure that the material which is before him is not released. It is only when he says, "In my opinion, carrying out the balance between the public safety and the rights of the defendant, the rights of the defendant prevail", and the prosecution say, "In those circumstances we disagree with you, judge", that a prosecution is withdrawn. The judge does not sit there thinking to himself, "Forget about the public, forget about safety". That is his function in all these terrorist trials.
It is the noble and learned Lord the Lord Chancellor and the Government who say that the first way in which we should deal with terrorism is to bring them to court. If we bring them to court, we are not introducing special advocates in the criminal courts; we will be dealing with it along the lines of the system I have described. Sensitive material will be placed before the judge for a ruling.
If it can be done in a situation where there is enough evidence to say that a person really is a terrorist and you will prosecute him for that, and there is sensitive material which the judge will see, why can it not be done when the Home Secretary says, "We do not have enough material to make sure that he is a terrorist, but we have little bits and pieces. We have an intercept here; we have hearsay from over there; we have some very interesting evidence obtained by torture in Guantanamo. We can put all that together. We do not have a case, but this is so secret that we cannot disclose it to a High Court judge"? It is nonsense that that sort of differential should be brought forward from the Special Immigration Appeal Court—dealing with people who by definition are not citizens of this country—to deal with British citizens appearing in the High Court.
If there is enough evidence to prosecute them, therefore, the sensitive material is dealt with as it normally is—through public interest immunity applications. If there is not enough, we have to have special advocates brought in to deal with it. It is complete nonsense.
I do not like the special advocate procedure—and I am not alone. Two special advocates have resigned, saying that they could not do their job. They had to guess what their instructions would be when they saw some of the material that was secret. They could not go back to the client. They were not trusted, even obliquely, to ask, "Do you have anything to say about the fact that you were in..."—wherever it was—"on a particular day? Could you have been somewhere else?" or "Tell me where you were on that day". They cannot even do that.
The nine special advocates who reported and gave written evidence to the Constitutional Affairs Select Committee, which your Lordships will recall I read out at Second Reading, are not happy with it either. Nor is my noble friend Lord Carlile of Berriew, who made recommendations in a report a year ago and who said, in his current report which was published two weeks ago, that nothing had happened about the recommendations he made a year ago. He was calling then for more support for special advocates, and for the involvement of experienced criminal advocates instead of lawyers who are trained in administrative law. Nothing was done.
The noble and learned Lord the Lord Chancellor has not addressed at all the vital issue of torture, which was the central matter debated on this amendment. Nothing has been said about that. We heard what he said yesterday. It is totally unsatisfactory.
It is said that my amendment is unhelpful and misleading; that it would sow confusion and there would be no added value by having this amendment. I do not believe that is true. I believe that people should know that the rules which are to be formulated, and which would be subject to a resolution of both Houses of Parliament, should contain these principles. I do not suggest that it is the be-all and end-all and that everything is included in this amendment, but it gives the idea of precisely the sorts of areas that should be covered. It underlines the necessity for putting Article 6 on the face of the Bill and not for it to be said, "Of course these rules will comply with Article 6".
Why do I say that it is necessary to put it on the face of the Bill and for these particular provisions to be on the face of the Bill? Because the concept of a fair trial differs, depending upon the issue with which you are concerned.
My Lords, I am not happy with the reply that I have received and I propose to seek the opinion of the House.