(Lords Amendments Nos. 38, 39, 40)

– in the House of Lords at 11:14 pm on 10th March 2005.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor 11:14 pm, 10th March 2005

rose to move, That this House do not insist on Amendments Nos. 38, 39 and 40 in respect of which the Commons have insisted on their disagreement, do agree with the Commons in their Amendments Nos. 42A and 42B on which the Commons have insisted; and do not insist on their Amendment Nos. 42E to which the Commons have disagreed for their reason numbered 42F.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, this is about the rules and I do not believe that there is any dispute about it. I beg to move.

Moved, That this House do not insist on Amendments Nos. 38, 39 and 40 in respect of which the Commons have insisted on their disagreement, do agree with the Commons in their Amendments No. 42A and 42B on which the Commons have insisted; and do not insist on their Amendment No. 42E to which the Commons have disagreed for their reason numbered 42F.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords)

My Lords, we are all familiar by now with the short interregnum as we send these proceedings and our decisions back to the democratic House, to see what judgment they make on behalf of their constituents and the national interest. I assume that as soon as the business returns here, we shall put an announcement on the Annunciator in the normal way. It is unpredictable quite how long it will take, of course. I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 11.26 p.m. to 5 a.m.]

[For continuation of proceedings, see Part 2.] Part 2

Photo of Lord Brougham and Vaux Lord Brougham and Vaux Conservative 5:00 am, 10th March 2005

My Lords, I have to announce that in Divisions 1 to 3, and 6 and 7 earlier this evening, the number voting "Not Content" should in each case be increased by one.

:TITLE3:COMMONS AMENDMENTS AND REASONS

[The page and line refer to HL Bill 34 as first printed for the Lords.]

A message was brought from the Commons, That they do not insist on certain amendments to which the Lords have disagreed and propose amendments in lieu to which they desire the agreement of your Lordships; they insist on their amendments to the words to be restored to the Bill, to which they desire the agreement of your Lordships; they insist on their amendments in lieu, to which they desire the agreement of your Lordships; they insist on their disagreement to certain other Lords amendments; and they insist on the amendments in lieu thereof to which they desire the agreement of your Lordships; they insist on certain amendments to Lords amendments disagreed to by the Lords; they insist on their disagreement to certain amendments to Lords amendments; they insist on their disagreement to certain other Lords amendments and Lords amendments in lieu.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.

Moved, That the Commons reasons and amendments be considered forthwith.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

:TITLE3:MOTION A

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

rose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, Motion A covers Lords Amendments Nos. 1, 8, 12, 13, 15, 17, 22, 28 and 37. The Marshalled List reveals the position to be exactly as it was the previous time we considered these matters. The Liberal Democrats and the Conservatives propose nothing except what has been proposed by the House before. Therefore, if the House supports that approach, no progress whatever is being made on the issues.

We know that the three issues are in essence: burden of proof; whether there should be a committee of Privy Councillors or an independent reviewer; and whether there should be a sunrise clause

Noble Lords:

Sunset.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

Sunset clause, my Lords. It will soon be sunrise!

We all know that the purpose and role of the House is to scrutinise legislation; not to block it. On the three issues that I have identified the Liberal Democrats and the Conservatives in this House will not engage. On a significant number of major issues in relation to the Bill the Government have listened and proposed substantial changes in another place. I went through the examples on the previous occasion. Perhaps as many as 80 per cent of this House's requests have been met.

But now we are in a different situation. In the eight years that I have been in this House I have never seen a situation where a Bill of this importance was blocked by this House on the three issues that I have identified. What has happened is that the House believes, despite the clearest possible message from the Commons, that the view this House has expressed on the three issues must be complied with.

It goes further than that. Unless agreement is reached by the Commons to those three issues, this House is saying that we will block a piece of legislation, the urgency of which is apparent to everyone and has been accepted by the Commons; and the content of which significantly affects the national interest. This House may be right; it may be wrong, but there is absolutely no doubt that when there is such a disagreement this House will give way to the Commons. It is a view that has informed the Liberal Democrats always. It is a view that has informed the approach of the Conservatives always. I am quite unable to understand why there has suddenly been a change in the approach of this House to issues such as this.

The reason why we give way to the Commons is that the Commons are the democratically elected Chamber; unlike this place, every single Member of the Commons is accountable to their constituency for what they are doing about national security. However little we like it, ultimately we have to give way to the Commons. Something is happening that is unusual and different about this Bill. I respectfully ask the House that the time has come to give way and accept the view of the House of Commons. I beg to move.

Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.—(Lord Falconer of Thoroton.)

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do disagree with the Commons in their Amendment No. 37V in lieu.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the noble and learned Lord the Lord Chancellor has said that the Government have given us 80 per cent of what we asked for; the figure I would suggest would be more like 8 per cent. I have never in my experience now for some years in your Lordships' House found ourselves debating at five o'clock in the morning a ping-pong which has been thrown back at us at three o'clock in the morning by the House of Commons. This is taking place in front of full Benches at five o'clock in the morning. There is something quite extraordinary about that. I believe that it is because this is seen by those of us on these Benches and on the Conservative Benches as a constitutional issue of great importance.

The noble and learned Lord the Lord Chancellor said there were three issues involved here: the burden of proof, the committee of Privy Counsellors and the sunset clause. Let me remind him that there is another equally or perhaps even more important issue—that judges and not the Home Secretary should make control orders. We accept, as we have always said, that control orders are necessary at least for the time being and that we will assist as we can in achieving a control order system that is fair and just and effective. But it is surely a constitutional issue of the utmost importance that decisions which are restrictive of the liberty of the individual should be taken by the judiciary on the application of the Home Secretary and not by the Home Secretary. To allow executive decisions to lead to infringements of liberty is the beginning of a downward path which leads where we dare not think.

We believe that this is absolutely essential. That is why it is our duty as we see it to stand up for what we believe is an important constitutional issue. At the other end of this Palace we have a House where a party that received 40 per cent of the vote at the last general election has 60 per cent of the seats.

Noble Lords:

Oh!

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

That is true, my Lords. If you look at it now, it is the party membership in this House that more accurately represents the votes cast at the last general election than does the House of Commons.

It is, we believe, our duty to stand up for constitutional rights and civil liberties. If this Bill is to fall, it will be the Government who will be responsible. We are not seeking to block legislation. There is an acceptable compromise here, but the Government are refusing to accept it. So if at the end of the day—and we can see that there may be more of these ping-pongs to come—the Government refuse to do what they should to accept the amendments that we have put forward, we believe that it will be the Government who will be responsible and the Government who will pay the price. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments 1A and 1B to Lords Amendment 1; do insist on its Amendments 37Q to 37T in lieu of Lords Amendment 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 37O in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; and do disagree with the Commons in their Amendment 37V in lieu.—(Lord Goodhart.)

Photo of Lord Richard Lord Richard Labour

My Lords, I never thought that I would hear the party of Lloyd George get up in the House of Lords and claim that this House was more democratic and more representative than the one that is elected down there at regular intervals and which has been returned by the most enormous majority.

The noble Lord, Lord Goodhart, has turned this debate not into a discussion on the merits of the Bill, but into a major constitutional issue of whether this House should prevail or that House should prevail. With great respect, he arrogates to himself the most astonishing position in saying, "We are right, and because we are right we are entitled to insist. Despite the views that have been expressed down the Corridor, we are entitled to insist that our views should prevail". That is just wrong. There are people sitting on those Benches over there, many of whom have been in government and many of whom were Ministers. They know that when they were Ministers they would never have accepted the proposition coming from the Liberal Democrats. There is a distinction here between the Conservative Party and the Liberal Democrat Party. At least many on the Conservative Benches have been in government and know what government is like. They know what the relations between the two Houses must be. I see some on the Liberal Democrat Benches who know about it who ought to be ashamed of themselves, because they know far better about how government works than they are displaying this evening.

If we wish to have a major constitutional eruption, we should go on doing what we have been doing. It seems to me that the time has now come. We have asked the House of Commons to think again; it has thought again and it does not agree with us. We sent it back; and asked it to think again yet again. It did think yet again; but it did not agree with us. In those circumstances, how on earth can we in this House—which is unrepresentative, undemocratic, nominated, or in some cases hereditary—possibly maintain that it is us who are right and the House of Commons which must be wrong? The time has come for us to submit. People over there who have been in government know that it is the time. With respect to the Liberal Democrat Party, it should stop playing games.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson in the Lords, Foreign & Commonwealth Affairs, Spokesperson in the Lords, Scotland

My Lords, there are two constitutional issues, and the two speakers on the Government Benches have failed to deal with the first. It may be true that this House is not democratic, and few would deny it, but that it is representative is also true.

The issue that we face and which has kept us here, and which may keep us here for considerably longer, is that the people of this country have no desire to see absolute power entrusted to the Prime Minister by a quiescent Parliament. It is well known, and indeed it is obvious in everything that he has said, that the Prime Minister brooks no opposition. He has come to this point as a result of his overweening parliamentary majority.

It has been, as previous Conservative Ministers have said, a supreme example of the unwisdom and misfortune of such a huge parliamentary majority in the House of Commons. This House has a duty to speak for Parliament. It has no right to duck that because it is being browbeaten by Ministers of the Crown, or former Ministers of the Crown, in support. That way lies the disruption and the threat to our liberties. If this Government were to come forward and propose to us, and persuade their supporters in the House of Commons, that in the use of torture in our own gaols lay the safety of our people, would this House accept it? I suggest that it would not.

The measures before us tonight may not be so abasing of our standards, but they bear within them the threat of the corruption of our legal system and the fundamental protection of the freedoms of our people. That is why we shall persist as long as we are constitutionally capable of doing so.

Photo of Lord Cobbold Lord Cobbold Crossbench 5:15 am, 10th March 2005

My Lords, as a humble Back-Bencher from the Cross Benches who has listened to the debate in both this House and looking down from the Gallery in the other, I am amazed that there is still such a political battle on issues on which we all agree. The only issue that could solve the problem is the sunset clause. Whatever the faults, benefits or good qualities of the legislation, all the sunset clause asks is the chance to have a look at it again in a year's time. Surely we can agree among grown-up people at this time of night that that is sensible.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, on the substance of this matter, we are in complete harmony with the Liberal Democrats. Without a balance-of-probabilities test, many innocent people will be incarcerated. Without a role for the Director of Public Prosecutions, many people will go unprosecuted. Without a judicial process for non-derogating control orders, a politician can continue—as the noble Lord, Lord Goodhart, said—to make control orders on the basis of secret evidence, virtually unsupervised. On all those crucial issues, the Government have moved not an inch.

The noble and learned Lord the Lord Chancellor said that this House had no democratic authority to repudiate the amendments. That argument is a complete sham. The authority that your Lordships have under the Parliament Acts 1911 and 1949 is given to this House by the democratic House. Our powers are completely underpinned by the democratic process; and we would be derelict in our duty if we did not use them in a case where we felt that they ought to be used.

There is of course a principle of parliamentary sovereignty, but there is also in our constitution a matching principle of the rule of law. It is the rule of law that is under threat by this legislation. That is why we continue to protest. The noble and learned Lord the Lord Chancellor says that we have been inflexible, but the opposite is in fact the case. It is the noble and learned Lord who has been inflexible. On the crucial issue of the sunset clause, we have shifted our position from November to March the following year.

Noble Lords:

Oh!

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, that is a big change. I say to the Government, where is yours?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, at the request of this House, we introduced judicial scrutiny before almost all the orders were made. The Conservatives and the Liberal Democrats support the concept of control orders, yet they block the Bill.

The noble Lord, Lord Kingsland, is right—this House gets its authority from the Commons. What we do is scrutinise; we ask the Commons to think again. In the past, we have always accepted that once the Commons has considered and considered our proposals, we then bow to its will. I am sure that that is what Lloyd George would have had in mind.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 153; Not-Contents, 98.

Division number 9 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 151 Members of the House of Lords

No: 96 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Motion, as amended, agreed to.

:TITLE3:(MOTION B)5.31 a.m.

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

rose to move, that this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32D in lieu thereof.

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

My Lords, my noble and learned friend the Lord Chancellor has already addressed the constitutional issues that arise in relation to this amendment. I beg to move.

Moved, that this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32D in lieu thereof.—(Baroness Scotland of Asthal.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

rose to move, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments Nos. 27, 31 and 32; do insist on its disagreement with the Commons in their Amendments Nos. 27C and 27D in lieu thereof; and do disagree with the Commons in their Amendment No. 32D in lieu".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I have spoken to the substance of Amendments B1 and C1. I beg to move.

Moved, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments Nos. 27, 31 and 32; do insist on its disagreement with the Commons in their Amendments Nos. 27C and 27D in lieu and do disagree with the Commons in their Amendment 32D in lieu".—(Lord Kingsland.)

On Question, Whether the said amendment (B1) shall be agreed to?

Their Lordships divided: Contents, 155; Not-Contents, 97.

Division number 10 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 153 Members of the House of Lords

No: 95 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Motion, as amended, agreed to.

:TITLE3:MOTION C

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

My Lords, I beg to move Motion C on Lords Amendment No. 33. This amendment, too, has already been spoken to and I move on the same basis.

Moved, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof.—(Baroness Scotland of Asthal.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

rose to move, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I have already spoken to this amendment. I beg to move.

Moved, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof."—(Lord Kingsland.)

On Question, Whether the said amendment (C1) shall be agreed to?

Their Lordships divided: Contents, 164; Not-Contents, 96.

Division number 11 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 162 Members of the House of Lords

No: 94 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Motion, as amended, agreed to.

Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords) 5:55 am, 10th March 2005

My Lords, it may help the House if I repeat what I said a few hours ago. It takes a minimum of four hours to go through the next round, for the papers to be dealt with and sent to the other end. Those in the other place will then make their decision and the Bill will return to this House. We shall not resume before 10.30 a.m. It will not be sooner than 10.30, but if it is later, messages will be put on the annunciator.

I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 5.56 to 11.40 a.m.]

:TITLE3:COMMONS AMENDMENTS AND REASONS

[The page and line refer to HL Bill 34 as first printed for the Lords.]

A message was brought from the Commons, That they propose certain amendments in lieu to the Prevention of Terrorism Bill, to which they desire the agreement of your Lordships; they do not insist on certain amendments in lieu disagreed to by your Lordships; they insist on certain of their amendments in lieu; they insist on certain of their amendments to Lords amendments disagreed to by your Lordships; they insist on their disagreement to certain other Lords amendments and Lords amendments in lieu; they insist on certain other amendments to words to be restored to the Bill.

Moved accordingly, and, on Question, Motion agreed to.

:TITLE3:MOTION A

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

rose to move, Motion A, that this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O in lieu of those Lords amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37X in lieu.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, we meet again, over 24 hours after this sitting in this House started. Before I say anything else, may I join the whole House in thanking the staff and officers of this House for the fantastic service that we have received in what has been a very interesting but difficult 24 hours?

The debate on the issues that remain in play appears to have moved in two respects. The Conservatives have indicated that they are no longer holding out for a Privy Counsellor committee and are instead content with an independent reviewer. The Liberal Democrats are content with a reference to the chief officer of police rather than the DPP.

So, the burden of proof and the sunset clause remain in issue. That is after a series of concessions that have rightly been made to this House throughout the passage of the Bill. A judge has been put in at the beginning of the process. The case has to be considered in detail inter partes within seven days. A requirement has been put in to ensure that there is an independent reviewer's report and that it will be available in good time for an annual review. There is now a requirement on the face of the Bill to confirm that prosecution is not possible. There are arrangements for annual renewal. There is a new procedure to confirm the rules of court. There are steps to ensure an even wider role for the independent reviewer. Detail of the rules has been changed to ensure that exculpatory material must be made available in every case.

These are good, solid concessions, which improve the Bill. It has been a good result for this House. Our views are being respected and given effect to. But our ability to change legislation brings with it responsibility. That responsibility is from the unelected House to the other place. Whatever our views, ultimately we have to bow to the other place. We bow, believing this House to be right because that is what the majority voted for at an earlier stage in the process, but we bow nevertheless, because of the primacy of the Commons. Whatever we say, we cannot seek to arrogate to ourselves the final decision—for example, because we believe, as the noble Earl, Lord Onslow, says, that the Members in another place are simply "temporary politicians" or because, as the noble Lord, Lord Goodhart, said yesterday, the electoral system does not justify us giving the respect that we should to the other place.

There is no graver issue on which the responsibility of this House should be demonstrated than anti-terrorism. We have heard the arguments again and again about the sunset clause. I believe that the majority of both Houses of Parliament believe that control orders are necessary. Both Front Benches say so. Almost everybody who has intervened in the debate here takes that view. The security services believe that the threat will continue for the foreseeable future. We cannot afford to be without terrorist legislation. So we cannot accept the sunset clause; nor should we. That is the wrong thing to do. We have thought about this carefully and we have done so each time the Lords has sent the matter back to the Commons.

Let me read to the House the words of a former Home Secretary—not a Labour Home Secretary and not a Home Secretary long deceased but a Home Secretary who, I am happy to say, is here with us this very morning. In the Queen's Speech debate in November 1989, the noble Lord, Lord Waddington, said:

"There is one acid test of a commitment to rights and the responsibilities that go with them. That is the determination of a Government to protect the citizen's right to safety from a terrorist attack".

I shall go on with the quote—it is, I should say, a splendid quote—from the noble Lord, Lord Waddington. He continued:

"I know that those on the Opposition Front Bench share my revulsion for the terrorist and his works, but for so long as their determination to safeguard the citizens turns on mere words, their expressions of revulsion are valueless".—[Hansard, Commons, 23/11/89; col. 255.]

The time has come—

Photo of Lord Waddington Lord Waddington Conservative 11:45 am, 10th March 2005

My Lords, having paid me the compliment of drawing me into this debate, does the noble and learned Lord appreciate that one of the things that worries me is the constant harping on by members of the Government about the rights and privileges of the other place and the supremacy of the House of Commons? It sticks in our throats to hear such language when for eight years Mr Blair has dedicated most of his efforts to trying to neutralise—to neuter—the House of Commons.

Noble Lords:

Oh!

Photo of Lord Waddington Lord Waddington Conservative

My Lords, one has only to look at the guillotine on this Bill to see that what I am saying is correct. It really is a bit much to go on about the privileges of the other place when there is an extra burden put on us here simply because the Prime Minister has made sure that there has been inadequate debate on this measure in the other place.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the time has come for Parliament to make a decision about this Bill. So far as this House is concerned, it can heed the excellent words of the noble Lord, Lord Waddington, in the quote that I read, or it can continue to prevent there being an anti-terrorism Bill.

The time has come to respect the supremacy of the Commons, to put aside our disputes on the debate and join together to fight the terrorist threat that we revile.

Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37X in lieu.—(Lord Falconer of Thoroton.)

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

rose to move Amendment A1, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S and 37T in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords amendments; do insist on their disagreement with the Commons in their Amendments No. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; do disagree with the Commons in their Amendment No. 37X in lieu; do not insist on its Amendment No. 37R and do propose Amendment No. 37Y in lieu thereof:

After Clause 3

37Y Insert the following new Clause—

"Power of court to make control orders

(1) 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 imposing obligations 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).

(2) The preliminary hearing under subsection (1)(a) maybe 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.

(3) 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.

(4) 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(1C).

(5) 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.

(6) 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 removed an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.

(7) 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; and

(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.

(8) A control order ceases to have effect at the end of a 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 4; or

(c) it is renewed.

(9) The court, on an application by the Secretary of State, may renew a 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.

(10) The power of the court to renew a 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 the purposes connected with protecting members of the public from a risk of terrorism, for a control order to continue in force against the controlled person; and

(b) the court considers that the obligations to be imposed by the renewed order are necessary for the purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

(11) Where, on an application for the renewal of a control order, it appears to court—

(a) that the proceedings on the application are unlikely to be completed before the time when the order is due to cease to have effect if not renewed, and

(b) that that is not attributable to an unreasonable delay on the part of the Secretary of State in the making or conduct of the application, the court may (on one or more occasions) extend the period for which the order is to remain in force for the purpose of keeping it in force until the conclusion of the proceedings.

(12) Where the court exercises its power under subsection (11) and subsequently renews the control order in question, the period of any renewal still runs from the time when the order would have ceased to have effect apart from that subsection.

(13) 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 (3)(a) or (7)(a) were satisfied."

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, we have now got to the stage of daylight, having sat through the night. Perhaps in the light of day it is time to take a bit of the heat out of the debate which we had yesterday, particularly, perhaps, at our most recent meeting early this morning.

Amendment A1 has been returned by us with a significant omission to show our willingness to negotiate with the Government over this. That omission, as the noble and learned Lord the Lord Chancellor mentioned, is that we no longer insist on the direct involvement of the DPP or require him to give a certificate before a full control order can be made.

However, we are of course a revising Chamber. A revising Chamber does not and should not defeat a Bill on the grounds that we do not like it. It is plain beyond doubt that the amendments that we and the Conservatives have moved are in no sense wrecking amendments. We cannot be a revising Chamber unless we have some power to make the Government listen to our revisions. We cannot say in this case that the Government have not given an inch. They have given an inch, but no more than that.

The normal practice is that, when there is disagreement at this stage of a Bill's progress, there are serious negotiations. That happened, for example, in a somewhat similar circumstance—the Anti-terrorism, Crime and Security Act 2001—when the Government accepted that, to get that Bill through, they would have to make substantial amendments. There have been no such moves in this case, and none of the amendments that the Government have proposed as a move towards us can be described as substantial.

The citizen's right to safety does not justify doing anything whatever that the Government think it right to do. I shall take the extreme case: I believe that nobody here would say that the citizen's right to safety justifies legitimising the torture of suspected terrorists. That is something that we would totally reject. There is always a balance between protecting the citizen—that is, of course, the most important consideration, but it is not the only one—and preserving the liberties of the citizen.

Our amendments would do no damage to the protection of the safety of our people, but they would help considerably in protecting their civil liberties. That is why we move the amendment. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments 1A and 1B to Lords Amendment 1; do insist on its Amendments 37Q, 37S and 37T in lieu of Lords Amendment 8; do insist on its insistence on Lords Amendments 12,13, 15, 17,22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; do disagree with the Commons in their Amendment 37X in lieu; do not insist on its Amendment 37R and do propose Amendment 37Y in lieu thereof.—(Lord Goodhart.)

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I shall be brief. The House will know that I voted against the Government on their proposals for non-derogating orders. The Government have moved a long way since then, and I am satisfied on the principle of judicial involvement. It is a matter of vital importance. There have been other solid concessions since then.

I say in passing that, as Attorney-General for Northern Ireland, I appointed the first special counsel, after discussion with the Bar; likewise in England and Wales. The situation has developed since then, and it can and, I am sure, will be improved. However, on the burden of proof I say, with my limited experience, that it is not possible to import what is essentially a civil connotation into what is essentially an assessment of a threat, not an assessment of whether an offence has been committed. Indeed, the test in criminal law would be much higher. You cannot cobble together a civil concept of that kind with the assessment of a threat.

Since then, I have voted for the Government on all amendments, save one, although the Bill is far from perfect, and I doubt that I would have started from the position that the Government first took. I fear that there was a lack of realpolitik in the Government's proposals and a failure to understand what is constitutionally important.

I voted against the sunset clause specifying 30 November. The period was ridiculously short. I abstained from voting on the proposal for a period of one year made by my noble friend Lady Hayman. There was no magic in one year. I understand, as we all do now, the distinction between an annual review and a sunset clause.

I have only modest and limited experience of intelligence problems, as a Defence Minister in the 1960s, disappointed by intelligence sources, and as Attorney-General here, and in Northern Ireland, in the 1990s. I know a little from five departments of state the difficulties of drafting sound legislation. I believe in the primacy of the Commons. The comments made last night would make David Lloyd George, my boyhood hero, turn in his grave. He had some choice expressions. Certainly in his Poplar speech, which is too insulting to repeat, he talked about the then membership of the House of Lords. I suspect—and I say this to the Liberal Democrat Benches—that he would have had something to say tonight.

Honour has been talked about. I heard it on the airwaves today. More important, I would suggest, is a recognition of the importance of Parliament and the place of the Commons. Is it too late for common sense to prevail? If the date of 30 November is too short—ridiculously short—and one year is felt to be too short, why not in two years from now end the present Bill, which was cobbled together in its original unsatisfactory form in two months? If the date is not acceptable, surely a proper sound Bill could be prepared in two years, which the Government intend to do in any event. Is not saying two years a way forward and a way to save the reputation of both our Houses?

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

My Lords, the noble Lord, Lord Richard, yesterday and the noble and learned Lord, Lord Morris of Aberavon, referred—as I must confess all Welsh politicians do from time to time—to David Lloyd George, the great Welsh wizard and inspiring Liberal leader—too mercurial, it was said, to be a safe companion for tiger shooting.

Certainly, Lloyd George attacked the wide powers of this House of his day. It was rather different in composition. What he said about their Lordships, which the noble and learned Lord, Lord Morris, did not seem to be inclined to tell your Lordships today, was that they were 500 men, ordinary men, chosen accidentally from amongst the unemployed. There is no point in trying to engage the Liberal Democrats today by reminding us of the battles we fought and won more than 100 years ago over the aristocratic few—the owners of the soil who, as Lloyd George said, made our forefathers trespassers in the land of their birth.

This House today takes and maintains a form which was the precise choice and responsibility of this Prime Minister. This House may properly claim a particular constitutional responsibility to act as a check upon overweening executive power. That is particularly so when power is exercised in the manner of an elective dictatorship, bolstered by an electoral system which throws up an overwhelming and, save for some very courageous voices, mainly supine House of Commons.

On which side of today's argument would Lloyd George have been—the very question the noble and learned Lord, Lord Morris, posed? He said just over 100 years ago last November in Bristol:

"Britain stood practically alone in the world for constitutional freedom".

He said that for generations it stood,

"for freedom, for a free press, for free speech, for free conscience, and for a free Parliament".

Legislation fashioned by the secret services? LG would have led us singing through the "Content" Lobby on this Motion.

Photo of Lord Owen Lord Owen Crossbench

My Lords, I intervene to support the speech made by the noble and learned Lord, Lord Morris of Aberavon. I have been privileged to serve with the noble and learned Lord in a number of governments and have learnt to respect his judgment. I believe in the primacy of the House of Commons. But I also believe that this House has one right, which is the power of delay. In a democracy that is a very valuable power for a revising Chamber. It is one in my judgment on which we should not be expected, in the words of the noble and learned Lord the Lord Chancellor, to bow to the House of Commons.

For a variety of very good reasons it seems to me that there is a clear majority in this House who do not think that we should delay the legislation. The Law Lords' judgment and the nature of the new world of international terrorism in which we live make it wise and prudent for this legislation to come into being, even though many of us may have the deepest reservations about it.

And so you come to the sunset clause. It seems to me that the sunset clause is purely and simply a delaying mechanism in circumstances where we are ready not to exercise our delaying power on this legislation. It is a way of effectively retaining the power of delay. I do not feel very strongly about whether it is a nine months' delay, a year's delay, 18 months' delay or even, at the uppermost limit, two years' delay; however, I cannot understand the argument of the Lord Chancellor that we are in some way challenging the House of Commons in an unconstitutional way by voting for a sunset clause.

It seems to me that a sunset clause has everything to recommend it in these circumstances. I agree with the noble Lord, Lord Waddington, that we have to look at the way in which the House of Commons takes its decisions. It is not our responsibility but, when we weigh our judgment in exercising our power of delay through a sunset clause, it is wholly legitimate to take into account the procedures that have been followed.

Many of us have spent many of our years in the House of Commons. It is almost without precedent that legislation of this magnitude and this importance should have been handled in the way in which it has been in the House of Commons. It seems to me—and this is the only matter I have voted on and the only one I intend to vote on—that I have heard no argument against a sensibly constructed sunset clause. I hope that the usual channels will come to a compromise on the timing of that period.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 12:00 pm, 10th March 2005

My Lords, I have not intervened in any of the debates so far but I think the House may recognise that, by force of circumstance, I have had experience in some of these matters through the posts that I have held in Northern Ireland and the Ministry of Defence, and through my appointment by two successive Prime Ministers as chairman of the Intelligence and Security Committee. I presume to indulge on your Lordships' time to make a few comments.

Let me deal with one point right at the start. Noble Lords on both sides of the House may feel that the most regrettable aspect is the suggestion that this has become a political football about whether one side is or is not soft on terrorism. The Lord Chancellor, I know, would not wish to be associated with that. He knows that there are on these Benches, including myself, the survivors of serious terrorist attacks, whether in the Grand Hotel at Brighton or the mortar attack when what was then called the War Cabinet was meeting. I myself have been the personal subject of IRA interest at my own home. I do not underestimate the challenges and fears that are involved. There is no question that throughout the House there is a resolute determination to face up to terrorism.

But the reality is that in facing up to terrorism we have a responsibility to ensure that we approach it in the most constructive way. From my time in Northern Ireland—and I have heard the Prime Minister, the Lord Chancellor and Ministers say this—I know that it is often said that if the security services make proposals to you, then who are you to resist them. The noble Lord, Lord Richard, invited those of us on these Benches who have held ministerial office to bring our experience to bear on these matters.

Proposals, including a number of sensible ones, were made to me by the police, by the RUC, by the Army and by the security services; and some proposals, including some fairly foolish ones, were made by my colleagues. One or two of my colleagues may remember what they were. But it is the Minister's job—it is what he is there for—to decide which ones are sensible and helpful.

Anyone in Northern Ireland gets a fairly good training in recognising a recruiting sergeant for terrorism when he sees one coming down the road. I share the fears expressed by others about the way in which some of the implications of this legislation may affect the attitude of the Muslim community, as the nationalist republican community was affected when internment without trial was introduced in Northern Ireland. In the Maze prison we had a university of terror. Perhaps because of that, Chancellor Kohl was subsequently to describe the IRA as the most sophisticated and effective urban terrorist group in the world. How many deaths and scars and how much human tragedy flowed from the decision to impose that system of executive action in Northern Ireland?

Against that background, simply passing a law, sounding resolute and taking decisive action is not enough. It is the responsibility of us all, and most of all of those with previous experience of these issues, not simply to embark on it and hope that it comes out all right in the end.

Having listened to some of the arguments, there is no question that this has been an extraordinarily rushed parliamentary procedure. Of course guillotines have been imposed before by both sides, but I cannot recall there ever having been quite such a truncation of the House of Commons. Indeed, has not the Lord Chancellor conceded the point? When it reached this House, this was a very bad Bill. If it had not been for the House of Lords it would have been enacted in the exact form in which it was introduced in the House of Commons. The Lord Chancellor has now been gracious enough to admit that a significant number of improvements have been made. That would never have happened if we had simply said, "The House of Commons has primacy. Who are we to interfere if the Prime Minister has been given detailed advice by his security advisers?". The Bill would simply have been pushed through in that way.

Against all that, the Government must have their Bill. They must have in place the requirements necessary to deal with the immediate circumstances. But I join with the noble Lord, Lord Owen, and the noble and learned Lord, Lord Morris of Aberavon, in saying that there must be a way through.

A suggestion arose to appoint a committee of Privy Counsellors, although I know that the Government have not accepted it. In all modesty it is possible that I would have been one of those nominated to serve on such a committee. I would not have served on it if I thought that we were going to be treated like the committee chaired by my noble friend Lord Newton when it was asked to look at these matters. Its findings were totally ignored. And with great respect to any future reviewer, if a review is produced and laid with a government response, and with a whipped majority at its present scale in the House of Commons, the idea that we will get any kind of adequate assurance is nonsense.

I do not know if the Lord Chancellor has any other way of approaching this, but I have to say to him that we must have a bankable assurance. A sunset clause set at whatever length of time seems appropriate must be the reasonable way forward. With it, the Government and the whole House can be confident that there will be a chance of looking again at these matters.

I want to make a brief point. When I was Secretary of State for Northern Ireland, we could hold people in detention without charge for an initial period of seven days. Having just discussed it with my noble and learned friend Lord Mayhew, I recall that owing to a judgment in Europe, the detention period had to be reduced to either four or five days. At that point, on a certificate signed by myself or subsequent Secretaries of State for Northern Ireland, the period could be extended for a further two days. Otherwise, the detainee had to be released. In the circumstances we sought, as closely as we could to fight terrorism, under the law. Despite all the suggestions being made for toughening up our approach, we were determined that we were not going to let terrorists destroy the basic principles of justice in our country, principles that we were seeking to preserve.

Noble Lords may recall an incident when a large shipment of arms from Libya was intercepted by the French police. The ship was called the "Eksund". If that shipment had arrived successfully, it would have caused an absolute disaster in Northern Ireland. A vast quantity of Semtex was found on board, along with sniper rifles, high-calibre machine guns, and a load of Kalashnikovs. The French seized the ship and managed to bring it into territorial waters. Under the sensible French system of the examining magistrate—I plead guilty to not knowing the exact title—the French authorities were able to hold without charge the captain and the Irish crew members for some three or four years. The examining magistrate system required no derogation from the European law.

I do not recommend that, but this is not the only way to go. Time is needed to consider an approach that is much closer to our basic system of justice than the approach represented by the Bill. In the short term, the Government must have the Bill, but there must be time for a proper, guaranteed review and a guaranteed opportunity for the Bill to be replaced.

Photo of Lord Truscott Lord Truscott Labour

My Lords, on the anniversary of the Madrid bombing, I ask whether a Tory Home Secretary would repeal control orders that were introduced by this House and the Commons, in the unlikely event that the party that supported internment and exclusion orders won the forthcoming election.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, I do not know whether the noble Lord heard the report today that the Mayor of Madrid, on the anniversary of 191 people being killed and 1,200 other Spaniards being seriously wounded, has expressed his determination—he made it absolutely clear—that in fighting terrorism, he was not prepared to interfere with or seriously degrade the system of justice. He has faced just the sort of tragedy that the Government face, a threat that is, I acknowledge, in many significant ways much greater than those to which I had to respond in my time. The story is entirely anecdotal, but I understand that the Mayor of Madrid, when asked if he would like to move in the direction that the British Government propose with the Bill, was heard to say that he thought that it would be a very bad idea.

Photo of Lord Richard Lord Richard Labour

My Lords, I shall be brief. I have only two or three things to say, but I cannot help being provoked, yet again, by the noble Lord, Lord Thomas of Gresford, whose Lloyd George would not be recognised in Criccieth. There would be absolutely no chance of that. Perhaps I should not go on about David Lloyd George. It would take a long speech and would probably bore many people in this place. He was one of my boyhood political heroes, and I was surprised to hear him being dragged into the arguments coming from the other side of the House.

Over the past few days, the House has narrowed the area of disagreement considerably. From the speeches that have been made so far this morning, it now seems that there is only one major issue left between the parties: a sunset clause of some kind or another. I had assumed that the review that the Government have offered would be in a position, if it wished, to recommend that there should be changes in the legislation. That seems to me to be implied. I see heads nodding on the Government Front Bench. If that is so and there has to be a review, and if in the course of that review the reviewers can say, "We don't like the Bill very much. We would prefer it if it were cast in a different light, or if it were amended in a certain way", the difference between that and what is being argued for so passionately on the other side is very small.

I have not been in this House as long as some other noble Lords, merely about 16 years, but I have not come across a situation like this. I have never known ping-pong to be played with such intensity between the two Houses. In 15 years in this place, however, I have learnt that primacy between the two Houses must lie with the House of Commons. In all the arguments about reforming the composition of the House of Lords and looking at its powers, everyone agreed that the primary of power should lie down the Corridor and not with this House. Now, in effect, to eat into that principle by talking about "temporary politicians who happen to have been elected" is—

Photo of The Earl of Onslow The Earl of Onslow Conservative 12:15 pm, 10th March 2005

My Lords, that is the second time that quotation has been referred to. I will now say exactly what it was: I am here on my honour, as is everyone else. Temporary politicians should not be allowed permanently to remove the right of habeas corpus. That is the point; that is why I am here on my honour, and I will stand by it because I think that habeas corpus is extremely important. The noble Lord, Lord Tomlinson, yelled, "Shut up". If that is what the other side think about habeas corpus it shows exactly how intelligent their arguments are over it.

Photo of Lord Richard Lord Richard Labour

My Lords, the House will have heard what the noble Earl had to say, and will no doubt be in a position to judge what he said. There is no doubt that he used the words "temporary politicians", and there is no doubt about to whom he was referring: the people at the other end of the Corridor. The noble Earl is claiming for himself and for this House the right in certain areas to have primacy over what goes on at the other end. That is totally wrong.

Noble Lords:

Hear, hear!

Photo of Lord Richard Lord Richard Labour

My Lords, I do not see how the constitution of this country can run on any basis other than that the House of Commons is indeed superior to the House of Lords. Otherwise, there is chaos. Chaos is in front of us if on any given issue this House can decide, "We think that this is so important that we are going to stick. We are going to stand with our principles and we do not care what happens down the other end". That is just plain wrong. I therefore appeal to the House at this stage, having been through all these debates and had all these votes in both Houses, to accept that the time has now come for Parliament to decide that, in accordance with constitutional tradition, principle and the rules of both Houses, on this issue the House of Commons should prevail.

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat

My Lords, I have taken no part in these proceedings. I want just two minutes to express my support for the view put forward by the noble and learned Lord, Lord Morris, and the noble Lords, Lord Owen and Lord King. After the past 24 hours, there is a risk that, as we become more tired, tempers will begin to fray and sentiments will be expressed that are best not expressed.

Yesterday the noble and learned Lord the Lord Chancellor quite rightly upbraided a Member of this House—I do not know who it was—for suggesting that the Government were behaving as they were because if there were a terrorist outrage during the election they could blame the opposition. That was a very unworthy remark, and the noble and learned Lord the Lord Chancellor was right to condemn it.

I have with me the report of yesterday's proceedings in the House of Commons. I also object to the phrases used by the Leader of the House, Mr Hain, who talked about the,

"Conservative-controlled House of Lords", ignoring the fact that even if not a single Conservative Peer had voted, the amendment moved by my noble friend Lord Goodhart would still have been carried. That is an important point.

In any case, it was clear that the mood of this House was not being dictated by the Conservative Benches. Mr Hain said that the House of Lords was,

"playing politics with our constituents' safety and security".—[Hansard, Commons, 10/3/05; col. 1689.]

That sort of language is not helpful. I am very glad that he was taken to task by the Father of the House, Mr Dalyell, who said:

"My right hon. Friend should be a bit more careful. In whole sections of the country, the Bill is not seen as Commons versus Lords".—[Hansard, Commons, 10/3/05; cols. 1691.]

I agree. Mr Hain and I go back a very long way. In his young days, when he was falsely accused of a bank robbery, I appeared in the witness box at the Old Bailey as a character witness. I am not certain that I would be willing to do so again today.

To be serious, there are two clear, conflicting, important principles, on which we are probably all agreed. The first is that no legislation should arbitrarily remove the fundamental right of a citizen to liberty. The second is that exceptional legislation is needed to counter the very real threat of terrorism.

I believe very strongly that former party leaders should not tell current party leaders what to do. I am sure that I carry the noble Baroness, Lady Thatcher, with me when I say that. I know Mr Kennedy well enough to realise that if I attempted to do that he would tell me where to go. However, I think that it is perhaps time either for the usual channels or, indeed, for Mr Blair himself, to invite Mr Howard and Mr Kennedy to look at the possibility of a compromise. It would be wrong if he were to behave like a Chinese emperor and be worried about loss of face. The press have a responsibility not to portray the arguments in that way. The party leaders should get together and proceed on the basis that the noble and learned Lord, Lord Morris, and the noble Lord, Lord Owen, have talked about, and extend the proposed sunset clause.

I am surprised that the noble Lord, Lord Richard, with all his experience does not recognise the fundamental difference between a review conducted by a government with a majority and a sunset clause. They are light years apart.

I conclude by saying that the weakest argument, which the Government have advanced all along, is that the security forces and the police want these powers. There are many countries where what the security forces and the police say is the law; fortunately, this is not one of them. It is because we do not want it to be one of them that we cannot allow this Bill to be part of our permanent legislation.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the Government have accused the Opposition

Photo of Lord Joffe Lord Joffe Crossbench

My Lords, I am a relatively inexperienced Cross-Bencher who is bemused by what is happening in this House and wants to make the right decision on which way to vote. Is the noble and learned Lord the Lord Chancellor willing to summarise the precise reasons why the Government oppose the sunset clause?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the Government have accused us of intransigence in the course of the past 24 hours. Yet their concessions during this period have been derisory compared to our own. We have conceded on the rule-making powers of the Lord Chief Justice. We have conceded on placing Article 6 on the face of the Bill. We are conceding today on the insertion of a committee of Privy Counsellors to review the Bill. Yesterday we conceded on the time for the kicking in of the sunset clause.

This morning we hear that the Liberal Party has decided to table its amendment after removing the very important role of the DPP. We shall support the Liberal amendment when it is moved by the noble Lord, Lord Goodhart, although we are extremely sad about its dilution.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, the situation has changed in a certain material respect. We have had debates in this House in which disquiet has been repeatedly expressed. The situation that will be considered by the review committee is rather different from before. The Government would be very unwise to ignore what has happened in this House. Does the noble Lord concede therefore that when we consider the review committee we are considering something very different from what we were considering before?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I certainly do not make that concession. I was not actually talking about the review committee when the noble Lord intervened; but nevertheless since he asks whether I would make that concession I do not. It is wholly different from the sunset clause and entirely unacceptable to us. Quite apart from anything else, it would not give your Lordships' House the opportunity to amend the Bill before it was renewed; and there are many other reasons why we should oppose it.

If I may return to the DPP, this would have been a very important guarantee on the face of the Bill had we been able to sustain it as part of the amendment. This is because control orders should be kept to the absolute minimum. The most important way to deal with terrorism is through the prosecutorial process. It guarantees the individual the right to have a fair trial. Control orders do not. If the DPP is not obliged to investigate every case thoroughly, there is a danger that the control order system will be abused. So we regret the removal of the DPP although we will be supporting the Liberal Democrat Party in its amendment.

In his opening speech, the noble and learned Lord addressed everything except the merits of the Motion he moved. Now is not the time to go through the arguments that have been adduced on either side during these debates. I just say this about our amendment on the sunset clause. We have been flexible on the question of time. The noble and learned Lord has, on more than one occasion, suggested that our attempt to amend the Bill has in some way assisted the terrorist cause. We wholly repudiate that suggestion and, indeed, remind the noble and learned Lord that all the advice he has been getting, on his own admission, is that the insertion of the sunset clause would not in any way affect the effectiveness of the Bill in the fight against terrorism.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, the noble Lord said that the review would not enable this House to move amendments to the legislation. I suggest that neither would a sunset clause, which would bring the legislation to an end. The review can make recommendations about amendments to the Bill. Then it would be up to the Government and the two Houses, after the procedure had been renewed, to come forward with amendments to the Bill on the grounds of the reviewers' recommendation.

This is not a question of permanently withdrawing individual rights or habeas corpus. The legislation will not remain on the statute book for ever.

Noble Lords:

Oh!

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, the noble Lord, Lord King, himself, and several other Members referred to the Government's proposal that the whole question of the regulation of terrorism and the removal of the threat be looked at carefully so that we can all agree on the fundamentals of a new Bill—a comprehensive Bill—which will come to both Houses at a later date. So I think that we are exaggerating the importance of a sunset clause in comparison with the assurances and the amendments that have been made to the review process by the Government.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Baroness for her intervention and her question. I am afraid that I have, most respectfully, to disagree with her. The whole point of the sunset clause is that the Bill dies and you have a new Bill, so we can formulate it in any way we want. We cannot do that with the clause that the Government have inserted.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the noble Lord, Lord King, is right. There has been a time limit in practice on the Bill; it has come from the decision of the Law Lords, which we respect. One could have extended for a short time the Part 4 powers but, ultimately, because the Law Lords said that the earlier part was incompatible with human rights, we rightly took the view that we should introduce a new Bill.

I also accept the noble Lord's definition of what has happened. There has been a significant number of improvements made in this House. That is what this House is for, and I do not for one moment shirk from that. But there comes a point when a decision has to be made. The noble Lord, Lord Joffe, quite rightly asked us to summarise the arguments for not having a sunset clause. We accept the proposition that the Bill should be kept under review. That is why we have introduced, as the Bill has gone through, provisions for renewal, which mean that annually the Bill has to be debated by both Houses, and only if both Houses approve it does it continue. We have also introduced a review by an independent reviewer. In the ping-pong that has been going on over the past 24 hours we have introduced a provision that says, in effect, that that review must be available before each annual renewal, so that at the time when the Houses of Parliament debate the renewal they are informed by the criticisms, if there are any, or the recommendations, if there are any, made by the reviewer on it.

Should we go one step further and say that there is no law on terrorism if both Houses of Parliament cannot agree? That is the critical point why we do not go as far as a sunset clause. We have done what is done so often and so sensibly in this House: to introduce a review clause. I accept that the consequence of not having a sunset clause is that there is not hanging over the terrorist law the possibility that there will be no terrorist law. The reason why we do not think that that is the appropriate course is that we are advised by the security services that there is a threat and that it will continue.

The noble Lord, Lord King, is absolutely right: no government should accept what is said by the police or the security services on a proposal such as this without interrogating them as firmly and as effectively as one possibly can. But we have done that, and we have decided to take their advice. I anticipate that people with such records as those of the noble Lords, Lord King, Lord Waddington, Lord Baker or Lord Brittan, would equally have taken the same advice.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 12:30 pm, 10th March 2005

My Lords, the noble and learned Lord the Lord Chancellor has made the point that the reason against the sunset clause is that it runs the risk that there will be no law. At the very beginning of his response this time, he recognised that there was universal support in this House, in all parties, that there has to be law to deal with these issues. Therefore, whatever was the government, it is inconceivable that any government would not recognise the responsibility; use their majority to achieve it if necessary; and look to the responsible response of opposition parties to ensure that at all times in this country—because no one party has the monopoly of responsibility for the security of our citizens—there would be a law in place.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I quite agree that no one party has such a responsibility. We seek to agree on these issues. But the power to renew with the review ensures, if we are all agreed on what should be done, that the Bill—or the Act as it then would be—could be amended. We should not introduce a provision that says, "It is possible there could be no anti-terrorism law" at a time when we agree that the threat will continue.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, I thank the noble and learned Lord the Lord Chancellor for giving way. Perhaps I may ask him directly the following question. In a situation where the difference between a review and a sunset clause depends to a very great extent on the belief in this House that such a sunset clause would oblige a recasting of the legislation, and in the light of what happened in the Newton committee—some doubt about whether that would be equally the case with regard to an annual review—perhaps I may suggest to the noble and learned Lord the Lord Chancellor that he has in his hands the capacity to unite this House and another place in a united determination to overcome terrorism. You do not overcome terrorism if there are deep divisions between the parties, exacerbated by a general election, in a way that now confronts us all and that could present the greatest possible danger to this country.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the noble Baroness puts her finger on the problem: we do want to try to unite both Houses. That is why throughout this 24-hour period and before we have introduced sensible provisions, very similar to the provisions introduced where there are problems of this sort, which go as far as we believe we can—that is, the review and the renewal procedures—without going as far as leaving open the possibility of there being no anti-terrorism law. Does this House think it possible that it would not agree with the detail of a terrorist law that the Government produced? Look at the debates that have gone on in relation to this.

The other place does not want a sunset clause. They have expressed that opinion time and time and time again over the past 24 hours.

We have been striving, over the past 24 hours and before, to get to the point where there is that review but there is no uncovered period. I earnestly ask noble Lords to look and see what has been done about review and renewal through this process and to accept that it is a bona fide attempt to deal with the quite legitimate points made by noble Lords in this House.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. Is not the fatal inadequacy of the renewal procedure he is pressing on the House the fact that a statutory instrument effecting the renewal is unamendable?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, that is absolutely true but, in order for there to be a new terrorist Act, there needs to be agreement between both Houses.

I think the time has come, has it not, for our disputes to be put aside? We have listened very carefully to the sunset clause argument and we have made progress in relation to it. There will be informed debates as to the efficacy or otherwise of the Bill. The difference between us is that some Members of the House want a position where an axe can fall on this anti-terrorism legislation, and we cannot accept that. I invite noble Lords to accept the amendments put forward by the Commons.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, before the noble and learned Lord sits down, he said that in order for a new piece of legislation to flow from the review procedure there would have to be agreement between both Houses of Parliament, if I understood him correctly. But since the noble and learned Lord has expressed such a contemptuous view of your Lordships' House and its role in the legislative process today, how can that agreement mean anything?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I have certainly not expressed a contemptuous view about this House. Since I have been here for the past seven years, I have always understood the constitutional position to be, as someone said, that we have the power to delay and we have the power by that power to delay to make the other place think again. We have used that power. There are legitimate and bona fide reasons why the other place has taken the view that the sunset clause is not the appropriate way to deal with it.

I ask this House to accept the bona fides of the other place in that respect; I ask the House to accept the bona fides of the Government in taking this view; and I ask this House to stop blocking the Prevention of Terrorism Bill.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, shortly after the debate, which started at five o'clock this morning, I was walking along a corridor in your Lordships' House when I happened to pass the Home Secretary. He glared at me and said, "You made a terrible speech". I took that as something of a compliment. But that attitude shows why the ping-pong on this occasion has been so contentious. Indeed, it is by far the most contentious of any that I have seen in the past seven and a half years.

A sunset clause is, of course, an essential element in any deal that is to be done to ensure that this legislation goes through. As my noble friend Lady Williams of Crosby said, a review is simply not good enough. One only has to look at what happened to the report of the Newton committee, which reviewed the anti-terrorism Bill. That was simply thrown into the wastepaper basket—until it had to be dug out again following the decision of the Law Lords, when the Government suddenly began to realise that they ought to take notice of what it said.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I apologise for intervening. Is it the position of noble Lords on the Liberal Democrat Benches that if we do not agree to the sunset clause they will veto the Bill?

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, so far as we are concerned, the answer would be "Yes". I cannot, of course, speak for the Conservative Benches.

We of course welcome the support of the noble and learned Lord, Lord Morris of Aberavon, of the noble Lord, Lord Owen, and of my noble friend Lord Steel of Aikwood for the sunset clause. We will, of course, support—and continue to support—the Motion to be moved by the noble Lord, Lord Kingsland, for a sunset clause. If he intends to continue to divide the House on that, we shall continue to support him.

However, we believe that a sunset clause is not the only necessary element. We need to ensure that judges make—and do not just review—control orders, and all kinds of control order. We need to ensure that there is an adequate standard of proof. The noble and learned Lord, Lord Morris of Aberavon, said that the balance of probabilities was not a suitable test for analysing risk. The balance of probabilities test does not, in fact, apply to risk. It applies to the question of whether there is evidence that the defendant has been involved in terrorist activities. That issue is perfectly appropriate for test on the balance of probabilities.

In that context, I particularly welcome the very powerful speech by the noble Lord, Lord King of Bridgwater. He made a very strong case for a judicial and not an Executive process and pointed to the severe problems which an Executive process had caused in Northern Ireland. He spoke from his enormous experience of those matters.

Of course we on these Benches support the Government in their desire to introduce control orders. But the Government's proposals infringe civil liberties in a way which is wholly unnecessary to their purpose. I seek to test the opinion of the House.

On Question, Whether the said amendment (No. A1) shall be agreed to?

Their Lordships divided: Contents, 176; Not-Contents, 128.

Division number 12 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 174 Members of the House of Lords

No: 126 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative and amendment agreed to accordingly.

On Question, Motion, as amended, agreed to.

:TITLE3:MOTION B

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 12:53 pm, 10th March 2005

rose to move Motion B, That this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32F.

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

My Lords, for the reasons given by my noble and learned friend, I beg to move.

Moved, That this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32F.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:MOTION C

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

rose to move Motion C, That the House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.

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

My Lords, I pray in aid the reasons already expounded in relation to this amendment by my noble and learned friend the Lord Chancellor. I also invite noble Lords to note that a very serious statement was made during the first debate. That was that the Liberal Democrats would be willing to veto the Bill. We now ask—

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I must make it clear to the noble Baroness that this is not our amendment. We said that as long as the noble Lord, Lord Kingsland, chooses to move his amendment, we will support it, even if he intends, as the ultimate weapon, to block the Bill.

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

My Lords, the House heard what was said. I now ask Her Majesty's Loyal Opposition whether they share the view that was expressed and whether they, too, will veto this Bill.

Moved, That the House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.—(Baroness Scotland of Asthal.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, it is our earnest wish that this Bill finds its way on to the statute book.

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords

My Lords, the Question is that Motion C be agreed to.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

rose to move, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I have spoken to this amendment, and I beg to move.

Moved, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof".—(Lord Kingsland.)

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I think that I should give the House notice of my intentions. I and many other Back-Benchers have laboured long and hard and have listened to great arguments from the Front Benches and Members of the Back Benches. I think that it has been made clear what the feelings of this House are. I very much hope that the Front Benches here and in another place will be able to resolve their differences. But if we find ourselves at tea time sending back substantial disagreements again to another place, I shall after the votes move for the Adjournment of the House.

On Question, Whether the said amendment (No. C1) shall be agreed to?

Their Lordships divided: Contents, 194; Not-Contents, 123.

Division number 13 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 192 Members of the House of Lords

No: 121 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

On Question, Motion, as amended, agreed to.

Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords) 1:10 pm, 10th March 2005

My Lords, if it is helpful, as I believe it has been, to give indications of time, I shall do so. As the House knows, we will once again send the Bill back to the representatives of the British people to hear their judgment on our deliberations. That will take around five hours, so the House will resume not earlier than six o'clock. I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 1.11 to 6.30 p.m.]

A message was brought from the Commons, That they insist on certain of their amendments to a Lords amendment to the Prevention of Terrorism Bill; they insist on their disagreement to certain other Lords amendments and insist on their amendments in lieu thereof; they insist on their disagreement to Lords amendments proposed in lieu of a Lords amendment; they insist on their amendments to words so restored to the Bill by their insistence to a disagreement to a certain Lords amendment; they disagree with the Lords amendments in lieu for which they assign a reason; they insist on their disagreement with certain Lords amendments and insist on certain of their amendments in lieu; and they do not insist on an amendment in lieu to which the Lords have disagreed but do propose an amendment in lieu thereof.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.

Moved, That the Commons reasons and amendments be considered forthwith.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

:TITLE3:MOTION A

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

rose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, both Houses of Parliament have laboured hard to craft an effective Prevention of Terrorism Bill. This House has made a significant contribution to that process, and significant amendments have been made as a result of the work that we have done.

We reached a point earlier today—when I say "today", I mean Thursday, which has still not come to an end in this House—at which agreement was close. The problems related to the burden of proof and a sunset clause. For a variety of reasons, a sunset clause was not acceptable and nor was the burden of proof. Concern was also raised about the need for this House to be able to amend the Bill in the future, if research revealed that it was not performing its job appropriately.

After much work—I pay tribute to my right honourable friend the Home Secretary for the huge contribution that he made—an acceptable solution has, I believe, been found. As my noble friend Lady Scotland of Asthal made clear on 10 March—at cols. 897 and 898 of Hansard—an important method by which these matters could be dealt with was amendment of the Bill that we are about to pass through our forthcoming Bill on acts preparatory to terrorism. That depends on our ensuring that there is an effective timetable in which that process can take place, a timetable that would allow consideration in the future, after there had been a report by the reviewer who we agreed should be included in the Bill.

In another place, my right honourable friend the Home Secretary suggested a timetable along the following lines: Royal Assent to this Bill in March 2005; the appointment of an independent reviewer of this Bill in March 2005; the publication of the draft counter-terrorism Bill, which will deal with acts preparatory to terrorism, and the start of pre-legislative scrutiny in late autumn 2005; and the presentation to the Home Secretary of the first report of the independent reviewer and the laying of the report before Parliament by the Home Secretary early in 2006. The report will include the reviewer's report on the operation of the current Bill and the implications of the new offences for this Bill.

The new counter-terrorism Bill will be introduced into the Commons in spring 2006, and the renewal of this Bill's life will be in March 2006. Until approximately July 2006, we will have the passage of the new counter-terrorism Bill through Parliament, with Royal Assent—approximately—in July 2006. That will allow the process of reviewing this Bill and the passage of a vehicle in which any amendments can be made to go on at the same time. Although those amendments could, technically, include complete repeal, we believe that that will not arise. The effect of the review taking place will be that this could be looked at.

We believe that the proposal brings together all parties' concerns but allows them to preserve the positions that they have taken, and I invite all parties in the House to recognise the value of the proposal and to rally round the Commons amendments as a result. The proposal is made in a constructive spirit and I hope that the House will view it in that way.

Before I close, I want to thank the following people: the staff of Hansard, who will be here for several more hours; our Doorkeepers; our Clerks; the staff of the Printed Paper Office, who have performed remarkably; the Public Bill Office; the Refreshment Department, which even now remains inundated; and our security staff. This is the longest-ever recorded Sitting of the House. The previous record was 19 hours on the Gas Bill on 3 and 4 June 1986. We have overtaken that record. My only sorrow is that I was not able to go around to each of the former Conservative Home Secretaries and congratulate them on their previous speeches. I beg to move.

Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17".

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, before I speak to Motion A1, it may be helpful if I follow up on what the noble and learned Lord the Lord Chancellor has just said about the agreement reached between all three parties in your Lordships' House. We have achieved something which, while not technically speaking a sunset Bill, is pretty close to it. We have a sunset clause in all but name. We feel that it achieves the purpose we seek, which is to ensure that there is the possibility of re-debating the issues debated in this Bill and of the possible amendment—or, indeed, repeal—of its provisions. That would not have been possible if we were faced with the all-or-nothing choice that would have been presented merely by the possibility of a debate on an order for renewal.

We rely in particular on the undertakings made to a commitment to introduce a new counter-terrorism Bill in accordance with the timetable, which we trust will be followed in the spirit if not in the letter, but certainly with a view to its completion by the end of 2006. We also rely on an undertaking that the Long Title of the new Bill should be sufficient to permit the amendment or repeal of any provision of the Prevention of Terrorism Bill.

In order to put it on the record, I should say that, in the event of their re-election, if the Government renege on the undertakings or are guilty of an unacceptable degree of delay in implementing them, we would regard that as a justification for departing from the usual convention of your Lordships' House that we do not reject secondary legislation.

Noble Lords:

Oh!

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I hear certain expressions of dismay, but this is an important constitutional Bill and we have agreed to the most recent proposal on the basis of undertakings given by the Government. We trust those undertakings and I am sure that the Government have every intention of carrying them out. But I should warn Members of the party opposite that, in the circumstances, we reserve this right. We have no expectation that we will ever need to rely on it, but it could possibly arise.

I turn now to our amendment. I shall be brief because we have already debated it on a number of occasions. If it is agreed, this amendment will ensure that control orders at all levels will be made by judges and not by the Home Secretary, and that at all levels the standard of proof should be that of beyond reasonable doubt. We understand that the Conservative Party will not now support that. They regard the sunset clause or its equivalent—its replacement—as the key issue for them on this Bill. They are satisfied with what has been achieved on that and, as I understand it, do not wish to press for anything further.

We have always made it clear that the parts contained in Amendment No. 1 are at least as important to us. We therefore wish for a vote in order to put on the record the importance that we attribute to that amendment. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords Amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Goodhart.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I thank noble Lords for standing firm throughout the past 24 hours, in the face of unparalleled pressure, to support what I consider to be the highest principles in our constitution. The effect of that has been demonstrated by the government overtures this afternoon, which, we find, satisfy all our requirements for the sunset clause.

The noble and learned Lord the Lord Chancellor has set out a timetable that is entirely satisfactory and has given an unequivocal commitment that the scope of the counter-terrorism proposals will be wide enough to cover all aspects of the Bill that is about to go on to the statute book. The noble Lord, Lord Goodhart, asked the noble and learned Lord the Lord Chancellor whether he would confirm whether that was so. I do not think that I saw the noble and learned Lord blink but I took the fact that he said nothing as confirmation that his response to the question of the noble Lord, Lord Goodhart, was "Yes".

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I can confirm that I gave that assurance. Indeed, the right honourable Mr Michael Howard told the world at 5.15 p.m. that I had privately given such an assurance at 4.15 p.m. to the noble Lord, Lord Strathclyde—private being a rather short-lived assurance on this occasion.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, in some ways I think that the reply of the noble and learned Lord the Lord Chancellor is academic, because after the general election we will be in charge of these affairs. And I can give an undertaking to your Lordships' House that we will stick to the timetable and the scope of the Bill.

There are still many things that we do not like about this Bill, in particular those set out in the amendment tabled by the noble Lord, Lord Goodhart. However, in all the circumstances, we do not feel inclined to support his amendment. We feel that what I have described as the equivalent of the sunset clause will give us sufficient constitutional guarantees over the next year. I hope that the noble Lord will not mind if I invite those behind me to abstain.

I conclude by sharing entirely the sentiments expressed by the noble and learned Lord about Hansard, and all the splendid help that we have had from there, and all the other parts of your Lordships' House that have contributed to make these 24 hours much less painful than they would otherwise have been.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench

My Lords, there are one or perhaps two further undertakings that are relevant. One has been implicitly made. The noble and learned Lord the Lord Chancellor has committed his party to a certain course of action with respect to legislation, after an election, on counter-terrorism. I think that I heard the noble Lord, Lord Kingsland, make a comparable undertaking on behalf of his party, should it be in power. I hope that we may have a comparable undertaking from the Liberal Democrats.

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

My Lords, I give that undertaking on behalf of my party.

I wish to add the thanks of my party to those of the noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor to all those who have assisted us and who have been behind the scenes in what has been a very long and difficult period of time. I particularly thank my colleagues on the Liberal Democrat Benches, 85 to 90 per cent of whom have voted in every Division during the passage of the Bill.

I shall speak briefly to the amendment. It has received a quite inaccurate title "the burden of proof". It is not about the burden of proof at all. It is about two very important matters of principle. The first is that a non-derogating order should be granted by a judge and not by a Secretary of State, a Minister of the Crown. Secondly, in granting such an order, that person should apply the standard of proof of "on the balance of probabilities". As I have said so many times, and shall not repeat, they are principles that are deeply rooted in the law and constitution of this country. We stand our ground on these principles.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, if the groan goes up, the groan goes up. Oh why, oh why, oh why could they not have said this 24 hours ago? No, the noble Baroness did not. We have got a timetable and all the undertakings that we want. There is an expression: if it looks like a duck, quacks like a duck and swims like a duck, it is a duck. The only difference between this duck and the duck provided by the noble and learned Lord is that his duck is just efficient in one webbed foot.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, at the Hansard reference that I gave, the noble Baroness, Lady Scotland, specifically identified the Act of Parliament that we were going to propose in respect of which amendments could be made. That has been the position for some very considerable time during the passage of the Bill. It is not a sunset clause, but it deals with the problem—the need to amend—that everybody wishes. It is not to the credit of the noble Earl, Lord Onslow, that he made the remark he just made.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I think that at one point in my introductory speech I may have referred to "beyond reasonable doubt" when I meant "on the balance of probabilities". I am afraid that after the longest Thursday of my life, I am prone to one or two little slips of that nature.

This has been a remarkable occasion. The sight of your Lordships' House with more than 250 Members present at 5 a.m. was truly astonishing. I can only say that it is one that I hope never to have to see again. But it was at least interesting. Having said that, I wish to test the opinion of the House.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 117.

Division number 14 Private Parking: Ports and Trading Estates — (Lords Amendments Nos. 38, 39, 40)

Aye: 54 Members of the House of Lords

No: 115 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:MOTION B

{**3**}

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

My Lords, we have all spoken on this amendment on a number of occasions, and I do not intend to weary your Lordships by repeating it again, notwithstanding the grave temptation offered to me by the noble Lord, Lord Forsyth of Drumlean, from a sedentary position.

I take this opportunity to thank all noble Lords who have contributed so wonderfully to these debates. If your Lordships will allow me, I particularly thank those noble Lords who have found physical movement sometimes a little more difficult than others. I mention in particular the noble Baroness, Lady Park, the noble and learned Lord, Lord Ackner, and my dear noble friend Lord Merlyn-Rees.

Moved, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33J and 33L in lieu thereof.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7 to 7.30 p.m.]