Prevention of Terrorism Bill

– in the House of Lords at 11:31 am on 10th March 2005.

Alert me about debates like this

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

:TITLE3:COMMONS AMENDMENTS AND REASONS

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

:TITLE3:LORDS AMENDMENTS

1 Clause 1, page 1, line 3, leave out from beginning to end of line 16 and insert—

"(1A) In this Act "control order" means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.

(1B) The power to make a control order against an individual shall be exercisable by the court on an application by the Secretary of State.

(1C) The obligations that may be imposed by a control order made against an individual are any obligations that the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.

(1D) Those obligations are—"

The Commons agree to this amendment with the following amendments—

1A Line 6, after "exercisable" insert "—

(a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and

(b) in the case of an order imposing obligations that are or include derogating obligations,"

1B Line 8, after "that" insert "the Secretary of State or (as the case may be)"

1C Line 11, leave out "are" and insert "may include, in particular"

8 Leave out Clause 3 and insert the following new clause—

"Making of control orders

(1) The court may make a control order against an individual if it—

(a) is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity;

(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual; and

(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.

(2) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

(a) to hold an immediate preliminary hearing to determine whether to make a control order against that individual; and

(b) if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

(3) The preliminary hearing under subsection (1)(a) may be held—

(a) in the absence of the individual in question;

(b) without his having had notice of the application for the order; and

(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.

(4) At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court—

(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;

(b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(c) that if the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.

(5) The obligations that may be imposed by a control order in the period between—

(a) the time when the order is made, and

(b) the time when a final determination is made by the court whether to confirm it,

include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(3).

(6) At the full hearing under subsection (1)(b), the court may—

(a) confirm the control order made by the court; or

(b) revoke the order;

and where the court revokes the order, it may (if it thinks fit) direct that this Act is to have effect as if the order had been quashed.

(7) In confirming a control order, the court—

(a) may modify the obligations imposed by the order; and

(b) where a modification made by the court removes an obligation, may (if it thinks fit) direct that this Act is to have effect as if the removed obligation had been quashed.

(8) At the full hearing, the court may confirm the control order (with or without modifications) only if—

(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;

(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(c) if the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order, it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention.

(9) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (4)(a) or (8)(a) were satisfied."

9 After Clause 3, insert the following new clause—

"Duration and renewal of control orders

(1) A non-derogating control order—

(a) has effect for a period of 12 months beginning with the day on which it is made; but

(b) may be renewed on one or more occasions in accordance with this section.

(2) A non-derogating control order must specify when the period for which it is to have effect will end.

(3) The court may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—

(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

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

(4) Where the court renews a non-derogating control order, the 12 month period of the renewal begins to run from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; or

(b) the beginning of the seventh day after the date of renewal.

(5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.

(6) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—

(a) it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);

(b) it ceases to have effect under section 5; or

(c) it is renewed.

(7) The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of 6 months from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; and

(b) the beginning of the seventh day after the date of renewal.

(8) The power of the court to renew a derogating control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if—

(a) the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person;

(b) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention;

(c) the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and

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

12 Clause 5, page 6, line 14, leave out subsections (1) to (3)

15 Page 7, line 12, leave out "Secretary of State" and insert "court"

16 After Clause 5, insert the following new clause—

"Criminal investigations after making of control order

(1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—

(a) that the involvement in terrorism-related activity of which that individual is suspected may have involved the commission of an offence relating to terrorism; and

(b) that the commission of that offence would fall to be investigated by a police force.

(2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.

(3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.

(4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.

(5) In this section—

"chief officer"—

(a) in relation to a police force maintained for a police area in England and Wales, means the chief officer of police of that force;

(b) in relation to a police force maintained under the Police (Scotland) Act 1967 (c. 77), means the chief constable of that force;

(c) in relation to the Police Service of Northern Ireland, means the Chief Constable of that Service;

(d) in relation to the Serious Organised Crime Agency, means the Director General of that Agency; and

(e) in relation to the Scottish Drug Enforcement Agency, means the Director of that Agency;

"police force" means—

(a) a police force maintained for a police area in England and Wales;

(b) a police force maintained under the Police (Scotland) Act 1967 (c. 77);

(c) the Police Service of Northern Ireland;

(d) the Serious Organised Crime Agency; or

(e) the Scottish Drug Enforcement Agency;

"relevant prosecuting authority"—

(a) in relation to offences that would be likely to be prosecuted in England and Wales, means the Director of Public Prosecutions;

(b) in relation to offences that would be likely to be prosecuted in Scotland, means the appropriate procurator fiscal;

(c) in relation to offences that would be likely to be prosecuted in Northern Ireland, means the Director of Public Prosecutions for Northern Ireland.

(6) In relation to times before the Serious Organised Crime Agency begins to carry out its functions, this section is to have effect as if—

(a) the National Crime Squad were a police force; and

(b) references, in relation to that Squad, to its chief officer were references to its Director General.

(7) In subsection (5)—

(a) "the Scottish Drug Enforcement Agency" means the organisation known by that name and established under section 36(1)(a)(ii) of the Police (Scotland) Act 1967 (c. 77); and

(b) "the Director" of that Agency means the person engaged on central service (as defined by section 38(5) of that Act) and for the time being appointed by the Scottish Ministers to exercise control in relation to the activities carried out in the exercise of the Agency's functions."

The Commons agree to this amendment with the following amendments—

16A Line 3, leave out from "where" to "it" in line 4

16B Line 5, leave out second "that" and insert "an"

16C Line 8, after "offence" insert "is being or"

16D Line 9, at end insert—

"( ) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism."

16E Line 10, at beginning insert "If a control order is made against the individual"

16F Line 11, leave out "this section" and insert "subsection (3)"

16G Line 16, leave out subsection (4) and insert—

"(4A) In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (3), to the extent that he considers it appropriate to do so.

(4B) The requirements of subsection (4A) may be satisfied by consultation that took place wholly or partly before the passing of this Act."

17 Leave out Clause 7

The Commons disagree with the Lords in its amendment but propose the following amendments to the words so restored to the Bill—

17A Page 8, line 33, leave out "made or"

17B Page 8, line 36, leave out "making"

17C Page 9, line 3, leave out subsection (4)

17D Page 9, line 15, leave out second "the" and insert "a"

17E Page 9, line 34, leave out "(4) to" and insert "(5) and"

17F Page 9, line 38, leave out "the order or its renewal" and insert "the renewal of the order"

22 Clause 9, page 11, line 1, leave out "Secretary of State" and insert "court"

23 Page 11, line 1, leave out from "exercise" to end of line 3 and insert "or performance of any power or duty under any of sections (Criminal investigations after making of control order) or for the purposes of or in connection with the exercise or performance of any such power or duty;"

The Commons agree to this amendment with the following amendment—

23A Line 2, after "duty" insert "of his"

28 Page 13, line 14, leave out "make, renew, modify and revoke" and insert "make application to the court for the making, renewing, modification and revoking of"

37 Clause 12, page 14, line 37, leave out subsection (3)

The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but propose Amendments Nos. 37A to 37O in lieu.

37A Page 4, line 36, at beginning insert—

"(A1) The Secretary of State may make a control order against an individual if he—

(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

(A2) The Secretary of State may make a control order against an individual who is for the time being bound by a control order made by the court only if he does so—

(a) after the court has determined that its order should be revoked; but

(b) while the effect of the revocation has been postponed for the purpose of giving the Secretary of State an opportunity to decide whether to exercise his own powers to make a control order against the individual.

(A3) A control order made by the Secretary of State is called a non-derogating control order."

37B Page 5, line 2, leave out second "the" and insert "a"

37C Page 5, line 12, at end insert—

"( ) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."

37D Page 5, line 12, at end insert the following new Clause—

"Supervision by court of making of non-derogating control orders

(1) The Secretary of State must not make a non-derogating control order against an individual except where—

(a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;

(b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission; or

(c) the order is made before 14th March 2005 against an individual who, at the time it is made, is an individual in respect of whom a certificate under section 21(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) is in force.

(2) On an application for permission to make a non-derogating control order against an individual—

(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make the order in question against that individual is obviously flawed;

(b) the court may give that permission unless it determines that that decision is obviously flawed; and

(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.

(3) Where the Secretary of State makes a non-derogating control order against an individual without the permission of the court—

(a) he must immediately refer the order to the court; and

(b) the function of the court on the reference is to consider whether the decision of the Secretary of State to make the order he did was obviously flawed.

(4) The court's consideration on a reference under subsection (3)(a) must begin no more than 7 days after the day on which the control order in question was made.

(5) The court may consider an application for permission under subsection (1)(a) or a reference under subsection (3)(a)—

(a) in the absence of the individual in question;

(b) without his having been notified of the application or reference; and

(c) without his having been given an opportunity (if he was aware of the application or reference) 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 the consideration of such an application or reference.

(6) On a reference under subsection (3)(a), the court—

(a) if it determines that the decision of the Secretary of State to make a non-derogating control order against the controlled person was obviously flawed, must quash the order;

(b) if it determines that that decision was not obviously flawed but that a decision of the Secretary of State to impose a particular obligation by that order was obviously flawed, must quash that obligation and (subject to that) confirm the order and give directions for a hearing in relation to the confirmed order; and

(c) in any other case, must confirm the order and give directions for a hearing in relation to the confirmed order.

(7) On a reference under subsection (3)(a), the court may quash a certificate contained in the order for the purposes of subsection (1)(b) if it determines that the Secretary of State's decision that the certificate should be contained in the order was flawed.

(8) The court must ensure that the controlled person is notified of its decision on a reference under subsection (3)(a).

(9) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed—

(a) his decision that the requirements of section (A1)(a) and (b) were satisfied for the making of the order; and

(b) his decisions on the imposition of each of the obligations imposed by the order.

(10) In determining—

(a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (7), or

(b) the matters mentioned in subsection (9),

the court must apply the principles applicable on an application for judicial review.

(11) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are—

(a) power to quash the order;

(b) power to quash one or more obligations imposed by the order; and

(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(12) In every other case the court must decide that the control order is to continue in force.

(13) If requested to do so by the controlled person, the court must discontinue any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c)."

37E Page 5, line 12, at end insert the following new clause—

"Power of court to make derogating 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 that are or include derogating obligations (called a "derogating control order") against that individual; and

(b) if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

(2) The preliminary hearing under subsection (1)(a) may be held—

(a) in the absence of the individual in question;

(b) without his having had notice of the application for the order; and

(c) without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.

(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;

(c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d) that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

(4) The obligations that may be imposed by a derogating 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 (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 removes 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;

(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;

(c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.

(8) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—

(a) it is previously revoked (whether at the hearing under subsection (1)(b) or otherwise under this Act);

(b) it ceases to have effect under clause

(c) it is renewed.

(9) The court, on an application by the Secretary of State, may renew a derogating control order (with or without modifications) for a period of 6 months from whichever is the earlier of—

(a) the time when the order would otherwise have ceased to have effect; and

(b) the beginning of the seventh day after the date of renewal.

(10) The power of the court to renew a derogating control order is exercisable on as many occasions as the court thinks fit; but, on each occasion, it is exercisable only if—

(a) the court considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a derogating control order to continue in force against the controlled person;

(b) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention;

(c) the derogating obligations that the court considers should continue in force are of a description that continues to be set out for the purposes of the designated derogation in the designation order; and

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

(11) Where, on an application for the renewal of a derogating control order, it appears to the 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."

37F Page 6, line 14, after "a" insert "non-derogating"

37G Page 6, line 22, after "a" insert "non-derogating"

37H Page 6, line 30, leave out "by virtue of subsection (2)(d), make" and insert "make to the obligations imposed by a control order"

37I Page 6, line 32, leave out from "obligation" to end of line 40 and insert—

"(3A) An application may be made at any time to the court—

(a) by the Secretary of State, or

(b) by the controlled person,

for the revocation of a derogating control order or for the modification of obligations imposed by such an order.

(3B) On such an application, the court may modify the obligations imposed by the derogating control order only where—

(a) the modification consists in the removal or relaxation of an obligation imposed by the order;

(b) the modification has been agreed to by both the controlled person and the Secretary of State; or

(c) the modification is one which the court considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

(3C) The court may not, by any modification of the obligations imposed by a derogating control order, impose any derogating obligation unless—

(a) it considers that the modification is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(b) it appears to the court that the risk is one arising out of, or is associated with, the public emergency in respect of which the designated derogation in question has effect.

(3D) If the court at any time determines that a derogating control order needs to be modified so that it no longer imposes derogating obligations, it must revoke the order."

37J Page 6, line 44, after "(2)(d)" insert "or (3B)(c)"

37K Page 7, line 12, after "State" insert "or the court"

37L Page 10, line 27, at end insert—

"( ) No appeal by any person other than the Secretary of State shall lie from any determination—

(a) on an application for permission under (Supervision by court of making of non-derogating control orders)(1)(a); or

(b) on a reference under section (Supervision by court of making of non-derogating control orders)(3)(a)."

37M Page 10, line 33, at end insert—

"( ) proceedings on an application for permission under (Supervision by court of making of non-derogating control orders)(1)(a);

( ) proceedings on a reference under section (Supervision by court of making of non-derogating control orders)(3)(a);

( ) proceedings on a hearing in pursuance of directions under section (Supervision by court of making of non-derogating control orders)(2)(c) or (6)(b) or (c);"

37N Page 14, line 10, leave out from second "order" to end of line 11 and insert "made by the Secretary of State"

37O Page 14, line 36, at end insert—

"( ) Every power of the Secretary of State or of the court to revoke a control order or to modify the obligations imposed by such an order—

(a) includes power to provide for the revocation or modification to take effect from such time as the Secretary of State or (as the case may be) the court may determine; and

(b) in the case of a revocation by the court (including a revocation in pursuance of section (3D)) includes power to postpone the effect of the revocation either pending an appeal or for the purpose of giving the Secretary of State an opportunity to decide whether to exercise his own powers to make a control order against the individual in question."

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 usual channels have proposed that, for the convenience of the House, the amendments should be grouped by topic and that a single Motion should be moved on each group of amendments. Therefore, I beg to move Motion A, which will be found on page 15 of the Marshalled List and covers Lords Amendments Nos. 1, 8, 9, 12, 13, 15, 16, 17, 22, 23, 28 and 37. The Motion is that this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 37O in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.

I think it would be wearisome for the House to go through all the issues at the same length as we have debated them over the past few days. Perhaps I may make three preliminary points. First, we proposed this Bill on the advice of the security services and the police to provide protection for the nation against the threat of terrorism. I hope that everyone in the House will accept our good faith in doing that, and I would expect any other government in power, having received that advice, almost certainly to have acted on the same advice.

Secondly, I hope that we can debate calmly the issues relating to the steps that we have taken. I heard one noble Lord say on the radio this morning that this was being done by the Government only so that, if there were an atrocity during any election campaign, there would be someone else to blame. I deprecate such remarks. They are inappropriate and they bring this House into disrepute.

Thirdly, I very much hope that people will recognise that we have made significant changes to the Bill in relation to representations made both here and in another place.

I shall deal, first, with Motion A and identify the three significant changes or issues effected by this group of amendments. The first is judicial involvement in non-derogating orders. The Government listened very carefully to your Lordships on that matter. They very much understand the concerns expressed about ensuring that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate.

Therefore, amendments introduced by the Government provide that the Secretary of State must apply to the High Court for leave to make a non-derogating order, save only where urgent action is required or any person is covered by the Part 4 provisions of the current 2001 Act. I shall return to those two categories in a moment.

The procedure will therefore be that the Secretary of State will consider whether there are reasonable grounds for believing that a person is involved in terrorism-related activity on an assessment of all the intelligence material provided. If he considers that there are, he will apply to the High Court for leave to make the order. If the court refuses leave, the order will not be made. There is therefore an important judicial assessment of the Secretary of State's judgment in each case before any order is made, subject to the two exceptions—urgency and Part 4—to which I referred a moment ago.

If the court agrees that there is a case, it will give permission to the Secretary of State to make the order. Once made, the order will then be referred automatically to the court, which will arrange for a full hearing to take place as soon as possible thereafter. At the full hearing, the court will consider all the relevant material. It can decide what procedure it adopts. It will be able to hear the case in both open and closed sessions.

As with derogating control orders, the subject will have access to the open material and his interests will be represented both by the lawyer of his choice in open sessions and by a special advocate in closed sessions. Again, the subject of the order will have access to the open judgment.

The test to be exercised by the court in its full consideration will be one of judicial review. I make it clear again, as I did before, that that will include consideration of the proportionality issues and the legitimate aim issues in the European Convention on Human Rights.

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 am sorry to stop the noble Lord but perhaps I may describe what has happened and then take interventions. As the House will know, the Government's view remains that it is most appropriate for these orders to be made by the Secretary of State. But, to ensure that in the vast majority of cases there is judicial involvement before the order is made, we have in effect adopted the third way, or something very similar to it, proposed by the noble and learned Lord, Lord Donaldson of Lymington. In effect, it was that, while the Secretary of State makes the orders, he can do so only with the leave of the court. We think that that is the right approach.

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, does the noble and learned Lord the Lord Chancellor accept that what we are left with here is still a case of judicial review and not of the court making the order, and that therefore the statements that appear to have been made by the Government for publicity purposes—that they are extending judicial making of the order to non-derogating orders—is not in fact the case?

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 Government have said that in the vast majority of cases the judge will be involved before the order is made. That is the effect of the change. The noble Lord is right that the test for judicial scrutiny is judicial review, but that test for judicial scrutiny will involve considering whether or not the order being made is proportionate to the risk identified within the meaning of the Human Rights Act.

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, with respect to the noble and learned Lord, where would he find any commitment by the judges that proportionality is an issue in judicial review cases?

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, in relation to these cases and in the terms that we are putting the measure into the Bill, our view of the law is that proportionality and whether it is a legitimate aim is something that the courts could consider. But I make it clear that that is what the Government intend by this wording.

Moving on from the question of pre-judicial scrutiny before an order is made, I indicated that there are two exceptions. The first is urgency. There may be urgent cases where waiting for permission from the court is not an option. Those are cases where the Government need to take action immediately. In such circumstances, we submit that the Secretary of State should be able to make the order immediately. The Secretary of State will have to certify the urgency of the case in the order and, in that case, the order will take effect immediately. Where the urgent procedure is used, the Secretary of State must immediately refer the order to the court for confirmation within seven days and, if it is confirmed, the court will make arrangements for a full hearing.

We have carefully considered whether it is possible to define "urgency" on the face of the Bill. We do not think it is either appropriate or necessary to do so. "Urgency" is a word in ordinary usage. The Secretary of State can make a judgment on it. Urgent procedure is likely to be used only rarely. The most likely circumstances would be where the subject matter of the order looked likely to disappear quickly. In those circumstances you would need to make an order very quickly to make it effective.

The other exception is the Part 4 detainees under the terrorism legislation of 2000. The Government amendment also makes provision for the Secretary of State to make a non-derogating control order, without leave from the court, against the current Part 4 detainees, subject to a requirement that the cases must be referred to the courts immediately for confirmation of the order within seven days.

In these cases, the courts have already considered and determined that there are grounds for suspecting each of them of being involved in terrorism, and that they pose a real threat to national security. It is extremely important in terms of protecting national security that we take immediate action in respect of them, so that they can be immediately controlled on being released from detention under the Part 4 powers. Any orders made against the current Part 4 detainees must be immediately referred to the High Court for confirmation and, if confirmed, then, again, the court will make arrangements for a full hearing of their cases as quickly as possible thereafter.

For these reasons, in relation to the judicial involvement in non-derogating orders, the Government believe that they have listened, and have put a system in place which appropriately strikes a balance between the need for the Secretary of State to be able to reach judgments on national security issues, and the need to ensure that those decisions are subject to legal scrutiny in the vast majority of cases before being actioned. In that small minority of cases where that is not possible, it will be brought before the courts as quickly as possible.

The second issue raised in this group is a very important one, namely burden of proof. Control orders are preventive orders, not punishments. They are designed to prevent future terrorist acts being committed, not to punish what has been done in the past. That can only be done by the criminal process. What is required is an assessment of the overall security situation, of the risks posed by particular individuals, and of what measures are necessary and proportionate to meet those risks.

"Balance of probabilities" is a high test, and the Government do not believe that it is appropriate for a once-for-all control order. The making of such orders involves the assessment of threat posed through the individual's past conduct and the risk of further such conduct, based on intelligence material as opposed to evidence about what has happened in the past. It is then for the Secretary of State and the court to determine what controls are needed to meet the threat and mitigate the risk that has been identified. It is an assessment of what is best in order to reduce the risk to the public. It must take the interests of the suspect into account. A balance needs to be struck.

"Reasonable suspicion" is a better and more appropriate test when analysing intelligence material and drawing inferences from it. Both the Special Immigration Appeals Commission and the Court of Appeal have accepted this as being right not only in relation to the Part 4 target, but in relation to what Lord Justice Laws said in the A case. He said that if you imposed a balance of probabilities test at this stage it would frustrate the purpose of the policy, particularly when you are looking at disparate groups, where you are bringing together evidence from a wide range of sources and seeking, not to prove whether they did something in the past, but whether, looking at everything, the risk justifies the order that is made. On the basis of the advice that we have received, the effect of requiring a "balance of probabilities" test for this would frustrate the policy in precisely the way that Lord Justice Laws, sitting judicially, thought it would.

This matter has been back to the Commons. Whatever view this House takes on this policy, I cannot believe that its wish is to frustrate the effectiveness of the non-derogating control orders. My understanding of the view of the vast majority of Members of this House is that they accept that there should be something in place. I earnestly ask them to think carefully about the burden of proof issue. If you introduce a burden of proof that makes it impossible for the policy to be effective, that would, in effect, frustrate the policy that the other place has accepted and that the Government are putting before the House. The courts have already said that it would frustrate that policy.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 11:45 am, 10th March 2005

My Lords, the noble and learned Lord the Lord Chancellor relies on the judgment of Lord Justice Laws in the case of A (No. 2), as a ground for supporting reasonable suspicion in relation to non-derogating orders. How does that square with the Government's acceptance that balance of probability is the appropriate test for derogating orders? It does not make sense. Everybody accepts that derogating orders are more serious, but why should the same burden of proof not apply?

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 have dealt with this point on a number of occasions, and the noble and learned Lord, Lord Lloyd of Berwick, has asked the same question on a number of occasions. I shall give the answer again.

We accept that, in relation to an order that deprives somebody of his liberty, which requires a derogation from the European Convention on Human Rights, very high hurdles should be set. If we can get over those hurdles—which should be possible only in exceptional cases—then, and only then we should be allowed to have a derogating control order. With the non-derogating control orders, however, where the suspect is not deprived of his liberty and the security services are saying that this would make a significant difference in the fight against terrorism, we believe the that appropriate burden of proof is one that makes those orders effective.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I am listening to the noble and learned Lord the Lord Chancellor, but perhaps he could help me on the issue of safety and security. Given that the derogating orders are going to be used in respect of the most serious cases—the people who represent the greatest danger to the public—I do not understand the argument that says "We must have a lesser test for the non-derogating orders, because otherwise we would not be able to take action; but we are going to have a tougher test for the most serious people, because we are concerned about security". On both legal and practical grounds, like the noble and learned Lord, Lord Lloyd of Berwick, I do not understand the logic of this.

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 are doing this because we are seeking to strike a balance between the rights of the suspect and the danger to the public. If you deprive somebody of their liberty, which is the effect of a derogating control order, then we accept that there needs to be a high test. The advice we are currently receiving is that we do not need to do that in the case of anybody. In those circumstances, we are prepared to accept a high test, because that is the advice we are getting from the security services.

I keep coming back to this point: I hope that noble Lords would respect the fact that this is being done on a purely policy-driven basis, not remotely on a political basis at all.

I come to the third issue in this group of amendments: ensuring that prosecution is pursued. The stated policy has at all stages been that, if prosecution is an option, that route would be adopted in preference to the control orders. This House put a requirement in the Bill that the Director of Public Prosecutions express a view about the position in relation to prosecution. We have listened to what has been said. In Committee, we provided that where a control order has been made, that fact would be passed to the chief officer of police of the relevant area, so that he could investigate the individual's activities with a view to any criminal prosecution, consulting with the relevant prosecuting authorities as he or she felt necessary.

However, in the light of continuing concerns, we have decided to provide what we believe is sought: an assurance in the Bill that prosecution will always be considered before a control order is sought. Amendment No. 16D therefore requires the Secretary of State to consult the chief officer of the relevant force—before making or applying for a control order—on the prospect of the individual being prosecuted for a terrorist offence. In considering the matter, the chief police officer will consult the relevant prosecuting authority where he considers it necessary and right to do so.

That is the proper course. It is important to preserve the integrity and independence of the prosecuting system. We do not believe that the existence of a control order will preclude necessarily in every case successful prosecution at a later date. I remind the House that two of those certified under the Part 4 powers were subsequently charged and successfully prosecuted for terrorist-related offences.

Those are the three issues raised by Motion A on page 15. There are amendments that noble Lords may speak to and move. In relation to two out of the three—namely, pre-judicial involvement before a non-derogating order is made and certifying that prosecution is not possible—we have listened and have moved considerably in the light of what this House has said. In relation to the balance of probabilities issue—which, I respectfully submit, is the critical issue—we have not moved because, on the basis of the advice that we are receiving and of the way that the courts have looked at it in the past, the effect of this House insisting on the balance of probabilities test would be very seriously to undermine the effectiveness of non-derogating control orders.

In the light of the views expressed in the other place, I respectfully ask the House to respect the fact that we have moved in accordance with two out of three but on the third, a very important issue, the view of the other place should prevail.

Moved, That this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 37O in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)

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

moved, as an amendment to Motion A, Amendment A1:

Leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed; do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".

37Q Leave out Clause 3

37R 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;

(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(c) it has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.

(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 of—

(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;

(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; and

(c) the court has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity.

(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."

37S Page 6, line 32, and insert—

"(3A) An application may be made at any time to the court

(a) by the Secretary of State, or

(b) by the controlled person, for the revocation of a control order or for the modification of obligations imposed by such an order.

(3B) On such an application, the court may modify the obligations imposed by the control order only where -

(a) the modification consists in the removal or relaxation of an obligation imposed by the order;

(b) the modification has been agreed to by both the controlled person and the Secretary of State; or

(c) the modification is one which the court considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

(3C) The court may not, by any modification of the obligations imposed by a control order, impose any derogating obligations unless-

(a) it considers 'that the modification is necessary for purposes connected with protecting members of the public from a risk of terrorism; and

(b) it appears to the court that the risk is one arising out of, or is associated with, the public emergency in respect of which the designated derogation in question has effect.

(3D) If the court at any time determines that a derogating control order needs to be modified so that it no longer imposes derogating obligations, it must revoke the order."

37T Page 14, line 36, at end insert—

"( ) Every power of the court to revoke a control order or to modify the obligations imposed by such an order

(a) includes power to provide for the revocation or modification to take effect from such time as the court may determine; and

(b) includes power to postpone the effect of the revocation pending an appeal."

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, we agree that there is a serious terrorist threat. We agree that the principal means of reducing that threat is by criminal prosecutions brought against a suspect in the regular criminal courts. We agree that there will still be a small number of cases in which there may be insufficient evidence for a prosecution, yet a means of control, a control order, is appropriate, imposing stringent conditions.

We also agree that it is possible to envisage a national emergency of such enormous proportions that it would be necessary to bring before Parliament for approval an order derogating from the right to liberty and security of the person—Article 5 of the European convention. All parties, all around the House agree that such conditions do not arise at the moment. If they did and if such a derogating order was made to bring about a designated derogation, we agree that a control order could impose restrictions that would effectively deprive the controlled person of his liberty.

So the issue is largely one of process. The process here is very important, if not vital. We insist that the decision to impose a control order be a judicial decision, made in accordance with due process and with necessary safeguards and guarantees against injustice. We say that because it is the perception of injustice, orders based merely on reasonable suspicion, for example that may inflame communities and increase the danger of creating more terrorists than we can control either by imprisonment or the orders. There is another side to the coin.

The Government's concession on judicial involvement for the making of non-derogating control orders amounts, in our view, to nothing of great significance. The Bill as originally drafted provided that once the Secretary of State had made his decision to impose a control order, it was the controlled person himself who had to initiate an application to the court for judicial review of that decision and to inquire whether that decision was procedurally flawed. It is common sense that a person who was made subject to a control order by the Secretary of State would not simply shrug his shoulders and take it on the chin, but would immediately exercise his right to apply for judicial review under the Bill as originally drafted, especially as legal aid is automatic.

Judicial review means that the court can do no more than oversee the exercise by the Secretary of State of his powers. The latest case between the Judicial Committee of this House in 2003 emphasised that the court's task is not to substitute its own view for that of the decision-maker but to review the decision, although with an intensity appropriate to all the circumstances of the case. The Government's concession which, as my noble friend Lord Goodhart said earlier, has been portrayed as permitting the court to make the decision in non-derogating orders, is not that at all. It is simply this. Rather than placing the burden on the controlled person to apply for judicial review of the Secretary of State's decision, the concession is simply that the Secretary of State must himself automatically bring the control order decision before the court. Otherwise, nothing has changed.

Photo of Lord Richard Lord Richard Labour

My Lords, how can the noble Lord say that that is simply the concession? That is a massive concession. It means that all these cases will now go before a judge. In view of those circumstances, how can the noble Lord possibly maintain that this is, as I think I heard him say, smoke and mirrors?

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 say that because it is simply what was in the Bill before. The difference is that before it was the person who was the subject of the control order who had to go to the court for judicial review, now it is the Secretary of State who goes to the court for judicial review, but the procedure is the same.

Photo of Lord Richard Lord Richard Labour

He has to, my Lords.

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, certainly he has to. The point that I sought to make a moment ago is that it is inconceivable that a person against whom a control order had been made as proposed in the original Bill would not have sought to test it in the courts as soon as he possibly could.

Under the present proposal, the courts will still not be able to decide the case on its merits, nor to decide which obligations are appropriate and necessary. It will still be the Secretary of State who makes those decisions. He will make an executive order that may severely limit the liberty of the individual, whether he be a foreign national or a British citizen. It is that which is so objectionable, so contrary to the genius of the common law of this country, as I referred to it on Second Reading, referring, as your Lordships may recall, to a 1765 case.

Our amendments, therefore, bring together the procedures for both the derogating and non-derogating orders into a single procedure and ensure that it is the court which makes the orders, based on evidence placed before the court by the Secretary of State, and that it is also the court which decides on the particular obligations in the particular case. It will be for the court to judge whether the control order deals with the risk presented by that individual proportionately to the degree of restraint that is required of him.

Photo of Baroness Wall of New Barnet Baroness Wall of New Barnet Labour

My Lords, does the noble Lord appreciate the opening statement of my noble and learned friend the Lord Chancellor, when he described the whole of this process as about protecting the people of our nation? Like many of us in the Chamber, I have sat through three days of debate. I intervene early today on the basis that I am not a lawyer and will not make legal points, but I am someone who is in touch with people out there, who feel very threatened and nervous that the dilution of the Government's original policy will be such that they will not have protection. Surely the noble Lord should have that at the forefront of his mind.

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 12:00 pm, 10th March 2005

My Lords, I am grateful to the noble Baroness for her intervention. She may have missed what I said at the very beginning, which was that we accept the principle of control orders, and even, in a national emergency, of a derogating control order. The difference between us is whether the order should be made by the Secretary of State or whether it should go to the court for a judge to make the decision. The latter is the tradition of this country, and part of its liberties that we seek to defend. Why it should be a "watering down" for a judge to take that decision rather than the Secretary of State, I simply do not understand. It ensures that the decision is just, and arrived at on the evidence, not on prejudice or anything else.

Our amendment ensures that the standard of proof that the court will apply is the civil standard, proof on a balance of probabilities. I share with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth of Drumlean, an inability to comprehend why the more serious the risk that is envisaged of a terrorist outrage, the more difficult it should be to establish that a person is a terrorist, and why, when the risk is less, it should be easy to impose controls and limitations on liberty through a control order. I fail to see the logic in that. It makes no sense.

We reject the concept of diminution of liberty on the basis of hearsay or evidence that may be obtained by torture in a foreign jurisdiction, and which may come from tittle-tattle and cannot be tested or known by the individual concerned.

I do not wish to speak at length. There are some tidying-up and consequential amendments, whereby the words "the Secretary of State" are replaced by "the court". Disagreeing with certain of the Commons amendments means that we remove from the Bill the provisions that were specific to non-derogating orders. That is all part of the process of putting together the procedures that are separate, as the Government want them, but that we say should be single.

Government Amendment No. 37E is a clause headed "Power of court to make derogating control orders". While we accept most of its structure and wording, we have removed from that amendment all references that seek to draw a distinction between the procedures necessary for derogating and non-derogating orders so as to ensure a single, understandable and comprehensive system whereby the judge makes the decision, whatever type of order it is.

We have added a requirement that at the full hearing, not at the preliminary hearing, it will be necessary for the Director of Public Prosecutions to inform the court that there is no reasonable prospect of a successful prosecution of the individual for terrorist-related activity. I heard what the noble and learned Lord the Lord Chancellor said about the provisions that have been put in that there must be consultation with the chief of police. For perhaps the past 20 years, we have tried to ensure that decisions about prosecution are in the hands of the Director of Public Prosecutions and the Crown Prosecution Service, to the point where we have now placed—I entirely agree with it—members of the Crown Prosecution Service in police stations to assist the police in the way they conduct their business. Why, then, should the noble and learned Lord go only half-way and consult with the chief of police rather than those whose responsibility and duty it is to consider whether a prosecution should be brought?

As to matters of substance rather than consequential amendments, we insert a provision that, when modifying a derogating control order, if one is ever made, the court takes into account whether the risk of terrorism arises from the public emergency that has given rise to the designated derogation.

I come back to the basic principle: no diminution of liberty by the order of a Minister. It is for the courts to decide and determine these control orders. It should be done through proper and due process, so that the person whose liberty is affected does not suffer from a feeling of injustice that spreads through his community and creates a greater risk of terrorism. I beg to move.

Moved, as an amendment to Motion A, Amendment A1, leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed; do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".—(Lord Thomas of Gresford.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the noble and learned Lord the Lord Chancellor mentioned three points in support of his amendment from another place. The first was the balance of probabilities and the general question of the burden of proof test. The second was the role that the prosecutorial authorities ought to play in control orders. The third was the judicialisation of the non-derogating procedure. I should like to deal with each one of those.

First, regarding the burden of proof, our amendment makes a big move in the direction of the Commons. We now accept that, at the leave stage, the test should be reasonable suspicion, and not balance of payments—balance of probabilities, rather. My mind must have been on other things.

We listened carefully to what the noble and learned Lord said about that, and responded constructively. I am extremely surprised that he has not been prepared to do the same thing towards us. As to his arguments about the balance of probabilities, I can only refer the noble and learned Lord to the interventions made by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Forsyth. My noble friend made a telling intervention when he said that we would come to an absurd situation if the more serious the anticipated offence to be committed by the potential controllee, the more demanding the test that had to be applied before he was restrained. That is precisely the position the Government would get themselves in if they followed the logic of the noble and learned Lord the Lord Chancellor.

Secondly, although we accept that control orders will have a part to play in the new situation of international terrorism that we now face, prosecution must nevertheless be the first option. I am bewildered as to why the noble and learned Lord has not been prepared to accept our amendment on the DPP. As the noble Lord, Lord Thomas of Gresford, has said, the DPP is now the designated prosecutor. We have gone to a great deal of trouble to make the DPP completely independent of the political process; yet what does the noble and learned Lord do? He seeks to replace the DPP with the Secretary of State referring cases to the responsible police authority. That is a politicisation of the process. It removes the independence that we have inserted and reintroduces the role of a politician, which we deplore.

Finally, and perhaps most importantly, there is the question of the role of the judge. The noble and learned Lord contends that the amendment from the Commons on the non-derogating procedure is a judicialisation of what was previously a political process. It is not. Whether innocently, negligently, or even, dare I say it, intentionally, it is deeply misleading to say that this will become a judicial process just because of the amendment put in by another place.

First, the Secretary of State can still make an order if there is an emergency. He is perfectly entitled, if he wants, to say that every situation he deals with is an emergency. What is to prevent him doing that? There is nothing in the Bill to prevent him doing that. Even if it goes before the court, the test of "obviously flawed" that the court has to meet is well below even the test that applies in judicial review. It is almost inconceivable that a court would ever be able to find that an order of that nature was flawed.

It is incomprehensible that the Government are not prepared to accept our approach. The noble Baroness, Lady Hayman, spoke tellingly of the foolishness of trying to have two separate procedures for derogating and non-derogating orders, when no one knows which one it is going to be until the judge has made a pronouncement. We have produced an amendment which meets many of the points made by the Government and, at the same time, ensures the security of the country, but is fair to the citizen.

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, there were three points there. First, regarding the burden of proof, no one during the debate has addressed the point put by Lord Justice Laws. He made it absolutely clear that if you are seeking to assess risk, introducing "balance of probabilities" as the test would frustrate the policy. That is also the view of the security services. Yes, points can be made about the derogating orders, which it is said at the moment are not necessary. Yes—absolutely right—we are making it very difficult for ourselves to obtain a derogating order due to the intrusion on the freedom of the individual concerned. But we are acting on the basis of the advice of the security services that the protection at the moment will come in relation to non-derogating orders.

The noble Lord, Lord Kingsland says that he has solved the problem by saying that there should be reasonable suspicion until you have a full hearing. So you can have an order for a matter of weeks until the court considers it. At which point, when the balance of probabilities test is applied, as the noble Lord would have it, then the order would probably be discharged. It is a very difficult judgment to make. We have had the benefit of the court looking at the matter already in relation to the SIAC material and it has concluded that the approach that we have taken is right. That is a view with which the Government agree. It is a view with which the people who are involved in it agree.

In this group, this is almost certainly the most important issue. It is one where this House is, in effect, saying, "We know better than the courts. We know better than the other place and we know better than the advice that the Government are receiving in relation to it". It might be that noble Lords are right, but I would respectfully ask this House to think carefully before it takes that step.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, the noble and learned Lord the Lord Chancellor has pointed out a number of times that the other place has taken a view. The other place had three hours yesterday to consider every single amendment plus a Bill which it had not seen. Of the three hours, more than half the time was taken up by Front Bench speeches. It is ridiculous to suggest that the other place has discussed these matters in any detail—for it has not, because the Government have not given it the time to do so.

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, there are two points in relation to that. First, this issue was debated in some considerable detail in the other place on the previous occasion. Secondly, the way that our system works is that, while we in this place should appropriately ask the other place to consider issues, to think again, as we have done in relation to two out of three of the issues here, ultimately, if important points of principle remain after proper consideration—and I believe that there has been proper consideration—the way that we normally operate is that we give way to the other place.

In relation to the other two issues, which, I would respectfully submit, are not nearly as critical as the burden of proof, this House asked for pre-judicial scrutiny before an order was made. The noble and learned Lord, Lord Donaldson, conscious of the differing roles of the executive and the judiciary, suggested the use of some form of words that respected the different roles. We have done that.

With the greatest of respect to the noble Lord, Lord Thomas of Gresford, in terms of perception, the difference between the Home Secretary having power to make an order only with leave and the court making an order is a distinction that will not be widely understood outside this House. But it is an important constitutional distinction, which we are right to put in. The critical thing that we have done is to say that in the vast majority of cases for non-derogating orders, there will be a judge who makes the decision on whether it is appropriate to make an order. That is what this House asked for.

My final point relates to certification of prosecution. The right people to go to are the police, because it is the investigating body. It can seek advice in relation to the CPS. That is the way that matters are dealt with in this country. It is the appropriate way to deal with it.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 12:15 pm, 10th March 2005

My Lords, the noble and learned Lord has presented us with a package of three separate points. If we agree with him on some of them, but disagree with him on others, we have to decide which way to compromise. It would be an enormous help to us to know whether we were doing this in relation to a Bill which is going to become an Act of Parliament for an indefinite period or become an Act of Parliament which is going to come to an end and be totally reconsidered within a reasonable time. Could the noble and learned Lord enlighten us as to whether he is going accept Amendment No. 33D, in the name of the noble Baroness, Lady Hayman? If he is, for my part, I would find it much easier to accept a number of his other propositions, even if they produced a Bill which was not wholly satisfactory.

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, no, we are not going to accept the amendment in the name of the noble Baroness, Lady Hayman. No, we are not going to accept the sunset clause. We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it. We believe that it sends out the wrong signal to say that this is temporary legislation and we believe that, by putting in a sunset clause, the consequence would be that one would simply have these debates again in a very short period.

So, no, we are not going to support a sunset clause; we are going to put in an annual renewal clause, as the other place has done. We believe that that is the right approach.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, could I ask the noble and learned Lord—

Noble Lords:

Lord Ackner!

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, can the noble and learned Lord assist me on just two matters? Regarding non-derogation orders, it was generally accepted that it would be very easy for a combination of two or more to result in a loss of liberty. How will he deal with that? Will he ignore the consequence and treat non-derogation orders that result in a loss of liberty as being different from derogation orders? My second point relates to onus. He said that the question was: does the risk justify the order? Why should not the onus be: is it more likely than not that the risk justifies the order?

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, regarding the first question, I do not say that it easy for the mistake to be made that a non-derogator becomes a derogator. I accept that it is possible. The consequence of that under the current Bill would be that the non-derogator would be a nullity, because there would not be a derogation from the ECHR and I accept that that is the position.

The balance of probabilities test is not appropriate to risk assessment. Burden of proof is not the way that the courts consider whether to make an order to avoid a risk in the future. That is the view that the noble and learned Lord, Lord Hope, expressed in Rehman and we believe that that is the right approach.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, the noble and learned Lord, Lord Hope, did not sit in the Rehman case and my noble and learned friend has just repeated an appalling error which appeared in the document that came from the Secretary of State. The passage that was chosen, and to which my noble and learned friend presumably referred, was by the noble and learned Lord, Lord Hoffmann, whose reasoning the noble and learned Lord, Lord Steyn, has questioned, in that it was not central to the other judgments in the Rehman case. If a Government cannot put forward arguments when they do not know their Hopes from their Hoffmanns, they are very likely not to get their way.

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 Wedderburn, is absolutely right. It was the noble and learned Lord, Lord Hoffmann, not the noble and learned Lord, Lord Hope. I apologise to the House, to the noble Lord, Lord Wedderburn, but most of all to the noble and learned Lords, Lord Hope and Lord Hoffmann, in that respect. However, I respectfully submit that the noble and learned Lord, Lord Hoffmann, is saying that the courts traditionally would not approach a decision about what order to make on the basis of a burden of proof issue. The burden of proof issue is about determining facts. This matter is about where the risk lies and the appropriate course to be taken to deal with the risk.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I think that the noble Lord, Lord Thomas of Gresford, should allow some views from the rest of the House.

Noble Lords:

Hear, hear!

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, the noble Lord, Lord Thomas of Gresford, said that he was absolutely baffled and could not understand how people could accept reasonable suspicion as a ground for non-derogated orders and a higher burden of proof for the higher ones, and he quoted the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth, as saying that.

As a non-lawyer, having listened very carefully to all this, I just say that I cannot understand why they cannot understand the difference between those two matters. It seems to me perfectly logical that the most severe order, which will only be gone for in the most severe cases and therefore also presumably has the strongest and most solid evidence on which to take that decision, is the one where you have the evidence that you can produce, and that in the slightly less serious but still very worrying cases for which you would want a non-derogated order, you may not have exactly the same kind of solidity of evidence but you would in fact go ahead and have a reasonable suspicion case.

The second point that I would like to make is—

Noble Lords:

Order!

Photo of Lord Elton Lord Elton Conservative

My Lords, permit me to read paragraph 4.18 of the Companion:

"It is not in order for Members to continue the debate on a motion or an unstarred question after the government's reply has been given, save for questions to the minister before the minister sits down".

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, in that case, will the Minister agree? I will not go into the question of the Secretary of State and the judge now, because I have to tell the House right away that I would not have given way from the original positions. I do not think that a judge should make these decisions. I think that they should be made by a Secretary of State. Would he further agree that there is no reason why this could not be the same kind of parallel as in the Interception of Communications Act, where the Secretary of State signs and the judge then comes in on review? Would he not agree—

Noble Lords:

Order!

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, the Leader of the House is our servant and should ensure that the House functions properly. I know that the noble Baroness, Lady Ramsay, feels strongly about this matter, but please, dear Leader, as they say in certain other places, help us to maintain order.

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office)

My Lords, I totally agree with that. However, the House needs to adopt a degree of consistency in the way in which it treats Members who seek to make points on this matter. We do not want to curtail the debate on this issue, because there is very strong feeling in the House about it. However, I entirely agree with the point made by the noble Lord, Lord Elton, that Members are permitted to make only very brief interventions after the Minister has spoken and before the Minister sits down. That convention has been broken across the Chamber today in the time that I have been sitting here. If the House is to behave appropriately, I would suggest that we apply our conventions in a consistent way across the House.

Noble Lords:

Hear, hear!

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 feel that we should bring this debate to a close. I want to say only a brief word on the standard of proof. It seems to me that the Government risk real injustice when they seek to act on reasonable suspicion. It almost inevitably follows that people will have restrictions on their liberty when they are innocent. I ask your Lordships to recall the problems that we have had in Northern Ireland as a result of miscarriages of justice that have taken place on the mainland of England when the standard of proof was "beyond reasonable doubt" but nevertheless there were miscarriages of justice.

That is all I wish to say and I seek to test the opinion of the House on my amendment.

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

Their Lordships divided: Contents, 214; Not-Contents, 125.

Division number 1 Private Parking: Ports and Trading Estates — Prevention of Terrorism Bill

Aye: 212 Members of the House of Lords

No: 124 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:LORDS AMENDMENT

6 After Clause 1, insert the following new Clause—

"Control orders: supplementary

(1) If, as a consequence of the obligations imposed by a control order, a person becomes unemployed, arrangements shall be made for that person to receive any social security benefits or unemployment benefits to which he may be entitled.

(2) If a control order is made in respect of a person already in receipt of social security benefits or unemployment benefits, arrangements shall be made to ensure that the person shall continue to receive those benefits.

(3) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made, and his household, shall have access to, or shall continue to have access to, supplies of food, household and personal necessities.

(4) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made shall have access to such health care as may be necessary."

The Commons disagree to this amendment for the following reason—

6A Because the Lords amendment is unnecessary.

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 12:38 pm, 10th March 2005

My Lords, I beg to move Motion B, which will be found on page 19 of the Marshalled List, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. This amendment deals with the amendment tabled by the noble Lady, Lady Saltoun of Abernethy, on the previous occasion.

Control orders are designed to disrupt terrorist-related activity, except to the extent of those restrictions deemed necessary for the purposes of safeguarding the public. They are not designed to interfere with a person's ability to live a law-abiding life and to support or sustain himself.

Where an individual is or becomes eligible for benefits—whether unemployment, housing or other type of benefit—obligations imposed by a control order will not interfere with such entitlement. Nor would individuals be denied access to healthcare. It is accepted, of course, that in certain cases, special arrangements for precisely how normal services are accessed may need to be made because of particular obligations imposed on an individual; for example, restricting movement within a certain area at certain times.

However, control orders are flexible: hence, the provision in the Bill which provides that an individual is not in breach of an obligation if prior permission to undertake the specific activity in question has been obtained. Clearly, the Secretary of State or the court, as the case may be, will need to have regard to individual circumstances when determining the precise conditions to be applied and how they will operate in practice.

In addition, the individual concerned may apply for a variation of the obligations imposed should circumstances change. Nor is it true to say that there is no experience of working within this type of framework. One of the 2001 Act detainees—for example, G—is subject to stringent bail conditions which have been tailored to his particular circumstances. Restrictions which take account of personal circumstances often form part of bail and licence conditions in criminal cases.

The provisions which the noble Lady put forward, therefore, are not necessary. The point that she seeks to make will be covered by the ability both of the Secretary of State and the court to tailor the order to the circumstances. I hope, in those circumstances, that this House will not insist on its amendment.

Moved, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.—(Lord Falconer of Thoroton.)

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

moved, as an amendment to Motion B, Amendment B1:

Leave out from "House" to end and insert "do insist on its Amendment No. 6".

The noble Lady said: My Lords, before I speak about the amendment, I want to say how disgusted I was to hear the Home Secretary's misleading reference on the "Today" programme yesterday morning, to,

"the surreal example of Lady Thatcher going into the Division Lobby to vote for increased social security for people suspected of being terrorists".

There is not, and never has been, any question of increased social security payments in my amendment. There is only the matter of such social security payments to which such people are already entitled, or have become entitled due to government action. I reiterate that suspects are innocent until they are proved guilty in a court of law. I dislike intensely my amendment being made a vehicle for a cheap party-political jibe.

The noble and learned Lord has explained to me very carefully why my amendment is unnecessary. Having listened very carefully to what he said, I am reasonably satisfied. However, I hope, by some means or other, to keep a fairly sharp eye on how the whole system will operate. Therefore, I am minded to withdraw the amendment—

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, before the noble Lady sits down, I too heard the intervention by the Home Secretary on the radio and I heard him in the other place yesterday saying that the amendment was not necessary because the existing law provides for social security payments to be made. Therefore, both statements by the Home Secretary cannot be correct. He caricatured the noble Baroness, Lady Thatcher, as having voted for increased benefits. In reply, I hope that the Government will take the opportunity to apologise to those Members who voted for the amendment and for the misleading statements that were made to the country.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

My Lords, before I beg leave to withdraw the amendment, it is of course open—

Photo of Lord Strathclyde Lord Strathclyde Leader of the Opposition In the House of Lords, Parliament

My Lords, perhaps I may proffer some advice, which is often a dangerous thing to do. I sense that there is a desire for a small debate on the amendment, so it is entirely appropriate for the noble Lady to move it and, in due course, the noble and learned Lord can respond. If, after that, she is still satisfied, she can withdraw her amendment.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

My Lords, I beg to move.

Moved, as an amendment to Motion B, Amendment B1, leave out from "House" to end and insert "do insist on its Amendment No. 6".—(Lady Saltoun of Abernethy.)

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I originally put my name to the amendment because I thought that what the noble Lady, Lady Saltoun, had said was extremely valid. It is easy to see circumstances in which someone could be incapable of drawing social security benefits. Had the Minister, at the beginning, given the explanation that he has now given the House—the noble Baroness, from a deliciously sedentary position, says that the Minister did.

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 find the statement made by the noble Earl surprising. In responding, as I hope I did courteously, to the amendment of the noble Lady, Lady Saltoun, I made it very clear that there was provision for benefits and that they were in no way adversely affected by this legislation, a fact that my noble and learned friend the Lord Chancellor has just repeated. To suggest that that was not firmly before the House is not only, if I may respectfully say so, an inaccurate statement, but also suggests that I did not properly inform the House of the true position. If noble Lords consult Hansard, I am sure that they will see that I was at pains so to do.

Photo of The Earl of Onslow The Earl of Onslow Conservative 12:45 pm, 10th March 2005

My Lords, I am not accusing the noble Baroness of not telling the truth as she sees it, but it was not clear to us. I am very sorry that the noble Baroness puts on that face, but she did not make it clear to us. The noble and learned Lord, with his forensic ability, has now made it very clear to us. The fact that the Government have not known what they are doing, do not know how to present their case and change their case half-way through is the whole trouble with this Bill. I am pleased that the issue has been aired. I was disgusted when I heard what had been said about the noble Baroness, Lady Thatcher, but I am equally pleased that the noble Lady, Lady Saltoun, has indicated that she will withdraw her amendment.

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 could have an inquest about what has been said in the House in the build up to this point, and we could have an inquest about what has been said on the airwaves, but that would be extraordinarily unhelpful and extraordinarily divisive. Let us focus on the issues.

Noble Lords:

Say sorry!

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

My Lords, if a person in the position of the Home Secretary makes the kind of remarks that he made about the noble Baroness, Lady Thatcher, which have apparently no basis in fact at all, surely it is courteous for the government Front Bench to accept that and to apologise. I had the great privilege of being a junior Minister in the Home Office when Mr Maudling was Secretary of State and he said that the duty of the Home Secretary was to try to be above the political battle and to take an interest in the country as a whole. With respect, the remarks made by Mr Clarke yesterday morning on the eight o'clock programme were in very poor taste.

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 genuinely do not want to inflame the situation in any way. I cannot start apologising for every statement made. The situation would become a ridiculous to and fro. Perhaps noble Lords heard what some people said this morning about me on the radio. It was absolutely outrageous. I am bearing it with as much equanimity as I can muster. Keep on bashing me and let us get on with the detail of the Bill.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench

My Lords, before I withdraw the amendment, it is open to any noble Lord in any part of the House, when an amendment is withdrawn, to be Not-Content. I beg leave to withdraw Amendment B1.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

:TITLE3:LORDS AMENDMENTS

27 Clause 11, page 12, line 44, leave out subsections (2) to (6)

The Commons disagree to this amendment for the following reason—

27A Because adequate provision is already made for the review of the operation of the Act.

31 After Clause 11, insert the following new clause—

"Review of Act

(1) The Secretary of State shall appoint a committee to conduct a review of the operation of this Act.

(2) A person may be a member of the committee only if he is a member of the Privy Council.

(3) There shall be five members of the committee of whom one each will be nominated by—

(a) the Prime Minister;

(b) the Leader of the Opposition in the House of Commons;

(c) the Leader of the Liberal Democrats in the House of Commons;

(d) the Convenor of the Crossbench peers in the House of Lords;

(e) the Lord Chief Justice of England and Wales.

(4) The Secretary of State may not refuse any nomination made under subsection (3).

(5) The committee shall complete a review and send a report to the Secretary of State—

(a) not earlier than the end of four months beginning with the day on which this Act is passed; and

(b) not later than the end of eight months beginning with the day on which this Act is passed.

(6) The Secretary of State shall lay a copy of the report before Parliament as soon as is reasonably practicable.

(7) The Secretary of State may make payments to persons appointed as members of the committee."

The Commons disagree to this amendment for the following reason—

31A Because adequate provision is already made for the review of the operation of the Act.

32 Insert the following new Clause—

"Effect of report

(1) A report under section (Review of Act) must consider the operation and effectiveness of the Act as a whole and any issues arising from the operation of individual control orders, and may make such recommendations as the committee sees fit including recommendations for future legislation.

(2) Any recommendation made under subsection (1) shall not affect the operation of section (Limitation)."

The Commons disagree to this amendment for the following reason—

32A Because adequate provision is already made for the review of the operation of the Act.

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, that the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A. I shall speak also to Lords Amendment No. 33, which will be decided on under Motion D. I will endeavour to speak slowly and clearly, just in case my command of English is insufficient to enable your Lordships to understand what I say.

Since we last discussed this matter, matters have moved on. As I said, the Bill provides that the Secretary of State must report to Parliament at quarterly intervals on the exercise of the control order powers. That provides Parliament with an opportunity to review the way in which the provisions are working. The Bill also provides for the Secretary of State to appoint a person to carry out reviews of the operation of Clauses 1 to 6—on the making, operation and duration of control orders—on an annual basis.

The Secretary of State would be obliged to lay the reports produced by these reviews before Parliament as soon as reasonably practicable. The Secretary of State has further undertaken that he will ask the reviewer in carrying out his duties to take into account other counter-terrorism legislation and its relationship to control orders. The reason that is important is that we reasonably anticipate that there will be in a very short time further legislation that will come before both Houses so that we can better consider the whole issue of acts preparatory to terrorism. That is a matter which we have debated to some great extent in this House, particularly over the past few days. It will be important for the reviewer to assess and analyse the juxtaposition of this Act with any new legislation that falls within the same ambit of consideration.

In addition, we have now provided for an annual renewal of the powers so that both Houses will have an opportunity to reconsider and debate the legislation. Further, there will continue to be the existing committees—Home Affairs and Human Rights—with a locus in this area, which can review the legislation. Speaking practically for a moment, we will have our opportunity to consider at a little more leisure than we have now what we need to put into place in order to make sure that the full ambit of the new nature of terrorism is dealt with in a way that better addresses some of the issues raised by my noble friend Lady Hayman and the noble Lords opposite who were members of the committee. That is a very important opportunity.

In many cases where there is an annual review it is against a backdrop of there not being another legislative vehicle. One of the reasons that there is quite often a difficulty about annual reviews where both Houses have an opportunity to use the review forcefully is that there is nothing in place of that legislation. If you get rid of the Bill and there is nothing in its place the House may feel obliged to continue the legislation. In this instance we have a realistic opportunity for such another vehicle to come along. So if we have the annual review the House can consider whether the provisions in place are necessary, whether the new legislation is finished and whether the annual review is justified and can be renewed. It is important that we see the provision for the review in that light. We will talk more deeply about the way in which the annual review will work when I come to the next section.

I invite your Lordships to look carefully at the role that we have given the reviewer who will look at how this legislation interacts with any new legislation that we may have passed or be in the process of passing at the time he or she makes their report. There are ample review mechanisms in place and an opportunity for Parliament to consider the results. These provisions provide the appropriate means to keep the legislation under regular and proper scrutiny in the way that both Houses indicated is merited. I beg to move.

Moved, That the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A.—(Baroness Scotland of Asthal.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved, as an amendment to Motion C, Amendment C1:

Leave out from "House" to end and insert "do insist on its Amendments Nos. 27, 31 and 32".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, in speaking to this Motion I shall also speak to Motion D. As your Lordships are aware, we regard the substance of Motion C and Motion D as being intimately linked.

Motion C deals with the role that the Privy Council committee would play preparatory to the sunset clause biting. It is vital when we reconsider the Bill at the end of its life that proper preparation has been made for the new measure. Since the main purpose of the Bill is to deal with matters connected with security and evidence which derive from security sources, it is wholly appropriate that the committee charged with this responsibility should be composed of Privy Counsellors.

It is equally true that, without the sunset clause dealt with under Motion D, it would be extremely difficult for this committee of Privy Counsellors to be taken seriously. We have evidence about that from the experience of the committee presided over by the noble Lord, Lord Newton of Braintree. That committee spent a great deal of time investigating the issues that are currently before your Lordships' House under this Bill, yet its recommendations were wholly ignored. That would not be the case if there were a sunset clause.

As far as the Motion is concerned—the sunset clause—we have already had several long debates on this matter. There are two issues. First, should there be a sunset clause? Secondly, if there is, when should it bite?

Our view on the first issue is that this situation unquestionably requires a sunset clause provision. The Bill suspends the fundamental rights of the citizen of this country. It should be reconsidered by Parliament on a regular basis until we no longer need it. That complies with the most vital principles of our constitutional history. I hope that none of your Lordships would feel, in any way, that that principle ought to be questioned.

The second issue is when the sunset clause should come into operation. Our amendment gives the appropriate date as next November. I gave the reasons for this in the course of the Committee and Report debates. The Bill has been looked at at such speed, and scrutinised so inadequately, that as soon as it can be replaced by a better version the better. In our view, November gives adequate time for the Government to consider these matters.

There is a particular issue here to which I trust the Government will give special attention—that is, the issue of devising a new offence for those who are in the process of preparing to commit a terrorist offence. It is vital that we get such an offence on the statute book as quickly as possible so that in future those who would largely be covered by control orders over the next six months are thereafter dealt with by the criminal law under a proper prosecutorial process ending up with the final decision taken by the jury. We want that measure on the statute book, I repeat, as quickly as possible. I see no reason why that cannot be achieved by November.

The noble Baroness, Lady Hayman, has also tabled a sunset clause; and we are delighted that she has been prepared to accept the principle that we regard as so important. For the reasons that she gave at Report, the noble Baroness feels that the November deadline is too tight. She would prefer a deadline of 30 March 2006. The noble Baroness will no doubt have the opportunity to talk to her amendment in the course of this debate and I look forward with interest to hearing what the noble Baroness has to say. I beg to move.

Moved, as an amendment to Motion C, Amendment C1, leave out from "House" to end and insert "do not insist on its Amendments 27, 31 and 32".—(Lord Kingsland.)

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Chair, Draft Mental Health Bill (Joint Committee), Chair, Draft Mental Health Bill (Joint Committee) 1:00 pm, 10th March 2005

My Lords, it may assist the House if I say a few words about the process of review. As the person who has had the responsibility of conducting the reviews of the detentions under the 2001 Act, I do not wish to speak about the uncertain consequences of my reviews, which have been brought home to me in recent days. I have had the experience of hearing my reviews cited in support of entirely opposite arguments on the same issue within minutes of one another, even on the much referred to "Today" programme. I shall reflect on the consequences of reviews that bring about that result.

I want to say something that I regard as important about the process of the type of review that I have been conducting, which would be removed if the Lords amendments, rejected by the Commons, were reinstated. The effect of one of those amendments would be to remove the role of a reviewer from the procedures. It may therefore be of assistance to the House if I explain very briefly some of the things that the reviewer has to do, which I do not believe can be carried out effectively by a committee—even, dare I say, a committee of Privy Counsellors.

That is not to say that I am venturing a judgment on the issue of whether there should be a committee of Privy Counsellors. The last committee of Privy Counsellors chaired by the noble Lord, Lord Newton, who is sitting next to me, was very effective and it is not for me—indeed, it would be inappropriate for me—to give an opinion about whether there should be a committee of Privy Counsellors.

If control orders are to be introduced, even if they were only non-derogating control orders, they would have an effect on the lives of the controlees. There would be certain things that they would be able to do, certain things they would be completely unable to do and many things that they would be able to do only under the circumstances controlled by the court orders. In dealing with the detainees, I have done some of the following things that I do not believe could be done by a committee. I have sat with the detainees, having private conversations, at length, alone. I have taken steps to improve the dental care of detainees. I was involved in an interesting incident that arose from the description on a Belmarsh menu of one of the lunch options as "halal pork chop". I was told later in a letter from the Prison Service that that was a piece of inadvertence by a member of the staff—you can say that again.

I have been involved in looking at the prayer arrangements that are made, which could be a very significant issue for people who are the subject of control orders. I have been involved in issues concerning visits by families and the interpretation offered at those visits. I have been involved in issues concerning the visit of members of a detainee's family from abroad. I could cite a host of such issues which have been referred to only in the most general terms in my report.

What I really want to say is this: if there is to be no reviewer carrying out the kind of reviews that I have been conducting under this legislation, something potentially of significance and importance to the controlees will be lost. That would be detrimental. It would diminish the opportunity of people whose liberty is constrained to an extent by control orders, to enjoy to the maximum the civil rights that remain available to them. If there is to be any change in the draft legislation in relation to the reviews, it should not remove the position of the reviewer. In my view, the role that I have carried out—I am not making a personal point because I very much do not want to do that—on the 2001 Act and indeed the role that I and my predecessors have carried out—and there have been several much more distinguished predecessors than me—under the Terrorism Act 2000 and its predecessors have been of considerable value.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I voted with the Government in the previous Division in this House not because I was wholly tranquil or serene—in the words of the prayer—with the arrangements that we have finally come to about judicial control of control orders, burden of proof or any of those other matters. I did so because I believe that we are at the stage in our deliberations when we have to stand back and we have a responsibility seriously to focus on that with which we cannot hold. We must try to understand that other people have other issues about which they feel equally strongly.

In order to reconcile those points of view, I have come to the conclusion that we ought to stop arguing now about the specific details of parts of the Bill. There are two reasons for that. One is that we have improved the Bill considerably from its original drafting. The other is because I believe that it is better than Part 4 of the 2001 Act. That is fundamentally important to me.

I believe that control orders in some form are a necessary evil and that we are legislating to make them as palatable as possible. However, I do not believe that what we have done is incapable of improvement. The process by which we have done it has not been satisfactory in this House and, in another place, as we all recognise, it has been unacceptable in many ways. Therefore, my sticking-point is that we have the opportunity for a comprehensive reassessment of what we have done so far and to have proper legislation in a proper parliamentary process. That takes us to a sunset clause.

The reason that I tabled my amendment and do not wish to support the noble Lord, Lord Kingsland, is that frankly I do not believe that the timetable that he suggests is sensible or practical. I believe that my noble friend is right. Finding consensus on a new offence of "acts preparatory to terrorism" will be a complex and difficult issue that will require time and pre-legislative scrutiny. I believe that we will need a little experience of this legislation to be able sensibly to return to it and see in what areas it needs change, amendment and tweaking.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, would my noble friend also agree that, for much of the period until 30 November the House is in recess? This is not a job only for civil servants. It is a job for Members of Parliament; Members of this House. Am I right about that?

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, my noble friend is absolutely right. It is also a job for other people as well. We have had very little opportunity to hear what interests people outside this House in terms of this Bill. We have not had the normal process where those with interest and expertise consult their own memberships, look at their own views, and put those forward to us. I want to see that before we next look at the legislation.

For the reasons that my noble friend has adumbrated, among others, November is not a sensible date, and nor would much longer than a year be acceptable, given that we all know we are dealing with imperfect legislation. I want a comprehensive review within a year's time. My noble friend, in her introduction, said that we can have that, but that the Government are giving it to us by different means; by an annual renewal order after a review. She explained clearly why; because there would be another legislative vehicle, there would be more opportunity than normal in a renewal order to have a proper look at this.

I am not yet convinced that that is true, not because I question the goodwill at all, but for two reasons. First, we have experience of renewal orders on Part 4 of the 2001 Act, on the Prevention of Terrorism (Additional Powers) Act, and in all sorts of circumstances. It is easy for renewal to become a ritual rather than a proper review. Secondly, it is also very difficult. When you are simply looking at an order, you have no opportunity to amend, and you get to the situation where it is this legislation or nothing. We will have the same sorts of debate about how, if we do not have renewal, the security situation will be damaged. That is my fear of relying solely on renewal.

I understand that in another place yesterday and today my noble friends on the Front Bench are trying hard to make this "renewal plus"; to make it seem a better and more comprehensive procedure. Yet, for the very reason my noble friend put forward—that we will be having another legislative vehicle and these issues will inevitably be discussed as part of that—putting in the sunset clause seems less of a problem than it would normally be.

In recognising that we have not legislated perfectly—that we need to look at these provisions in more detail, not in the heat of a pre-general election campaign and not with a huge and artificial deadline before us—I hope that the Government will reconsider whether so much will in fact be lost from their proposal if they accept my amendment.

Photo of Lord Judd Lord Judd Labour

My Lords, I am deeply grateful to my noble friend for giving way. I am struck by her amendment and the way she is putting it forward. However, will she not agree that the issue is not as simple as she has put it? Is there not a danger that we are all drifting into a situation in which we are accepting the historical and long-lasting inevitability of removing certain principles in our justice system when that is necessary? Is it not therefore vital for us to emphasise that it is essential to review this legislation, in the sense that it is incumbent on this House and the Government annually to prove that this legislation is necessary, rather than to prove that it is not necessary?

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I do not think there is any incompatibility between what I am saying and what my noble friend says. I am being tougher than he is, and saying that we have only one review for this legislation because we only have one year of it. In the successor legislation, my noble friend may be exactly right. Because it will involve major issues of constitutional relevance, the House will want to consider what the review provisions are in that legislation. I am talking about this legislation now, and am afraid I believe it should be considered as a temporary measure.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 1:15 pm, 10th March 2005

My Lords, I am glad again to follow the noble Baroness as I did a day or so ago, and again find myself in complete agreement with everything she has said. This House has a limited constitutional right to delay non-money Bills. It is said that the Bill before us could not be delayed because of the 14 March deadline, but I have never accepted that there was the urgency in this matter that others seem to have accepted. There is, so far as I know, no evidence that the danger today is any greater than it was in 2001—if anything, it is slightly less—and, since then, this sort of legislation has not been applied to British citizens. The existing legislation has been adequate to protect us.

Let us suppose that there is the urgency which is suggested. If we cannot for that reason delay the Bill, surely we have a constitutional right to see that the Bill is considered again at the earliest opportunity. That is why, for all the reasons mentioned by the noble Baroness, I shall be voting for the sunset clause, whether for November, or for March as she suggests. It must be a sunset clause as a renewal of the Bill is not enough for all the reasons mentioned so often. It must come to an end at a defined date so that, before that date, we can have a chance to reconsider what the proper legislation is to put in its place.

On the question of what we could be doing until the sunset date, it seems apparent that the suggestion of a review by five Privy Counsellors is eminently sensible. However, I had not realised that the effect of the present situation, as the noble Lord, Lord Carlile of Berriew, has brought to our attention, is that if we have the five Privy Counsellors, we will not have him. I would be entirely against that. I had not realised that that was the effect, and am sure it is not the intended effect.

Clearly, the noble Lord must continue with the noble work he is already doing, but what he is doing is not enough for this purpose—that is no discredit to him because it is not what he is required to do. I am in favour of a review by the five Privy Counsellors, and do not see the difficulty—in entire agreement with my noble and learned friend Lord Ackner—in that being done between now and November. What actually is the difficulty?

My last question is on the proposed new offence of preparing to commit an act of terrorism, which I am delighted to hear the Government now favours. I actually recommended this offence 10 years ago. Five years ago, I tried to get it into the Terrorism Act 2000, but the Government resisted it. It is wonderful that even at this time they are at last converted to the idea, but again, why can we not have that before November, before the sunset date? It does not take that long to draft a new offence—we get one every three days anyway.

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 support the noble Lord, Lord Kingsland, in proposing to set up the review by Privy Counsellors. It is a useful procedure. We support even more strongly the proposal for a sunset clause. It is not only useful but absolutely essential, for all the reasons proposed by the noble Baroness, Lady Hayman.

We believe that if we do not have a sunset clause, Parliament as a whole and in particular your Lordships' House will have no opportunity to reconsider this matter. If it is done simply by an annual review, an order to extend will be put before each House, which will of course be passed by the House of Commons with a government majority of whatever government may be in power at that time. Your Lordships have a long-standing convention that we do not reject, save in the most extreme circumstances, secondary legislation. The result would be that all that we would be able to do would be to pass a meaningless, non-fatal amendment to the Motion proposing the order.

To achieve an effective reconsideration, which is necessary because of the wholly exceptional speed with which this important Bill has been passed through your Lordships' House, it is absolutely necessary to have a sunset clause which will bring the Bill—or the Act, as it will then be—to a full stop, so that we will have to start over again with a fresh debate, with adequate time to debate these important issues.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, the speech made a few moments ago by the noble Baroness, Lady Hayman, seemed to make eminent sense. Looking around your Lordships' House, I believe that there are few people—with the exception of those who are on the Government Front Bench and under instruction— who would disagree with the sense of that. I do not want to rehearse the arguments that the noble Baroness put, as she put them far more eloquently than I could. But there are a couple of other reasons why I believe that a sunset clause is important.

The atmosphere at Prime Minister's Questions yesterday was not good, and for the Prime Minister to characterise this as some sort of political test was not helpful. It is being suggested that the Conservatives and others should vote down this legislation and let the people decide. The sunset clause would put the legislation in place, the Government would get their Bill and the people could decide whom they wish to be the next government—but I am less concerned about that than about the parliamentary process itself.

One constitutional argument in favour of our supporting the sunset clause, on which my noble friend Lord Waddington touched at an earlier stage in our proceedings, is that the House of Commons has the right to consider the legislation properly. It has not had that opportunity. By having a sunset clause, there would be an opportunity after the election, when the atmosphere is less frenetic, for the House of Commons to consider it properly. If the elected House has a proper length of time to debate and consider all these matters and if people outside have a chance to make their representations, with a proper timetable between the various stages of considering the legislation, then I accept that the Government must have their legislation.

But for the Prime Minister to say that he is prepared to lose the Bill, rather than have a sunset clause, reminds me of a time when I was a Minister and my private secretary came in and said, "Now, Minister, you've got five minutes to throw your toys out of the pram, and then we'll focus on the reality of this issue". The Prime Minister is throwing his toys out of the pram at the moment. Any rational person would come to the conclusion that if he could have his Bill, provided that he made an opportunity for the House of Commons and the House of Lords to consider it properly at a later date—any Prime Minister who was concerned about the security of our country and the integrity of the House of Commons and the House of Lords—he would grab that with both hands.

I want to make one other point, which relates to what the noble Lord, Lord Clinton-Davis, has been saying repeatedly—I mean no criticism of making a point repeatedly if it is a good point. He has made the point repeatedly that perhaps 30 November may be too soon. Now, I am not wedded to the 30 November date; apart from anything else, it is St Andrew's Day, which does not seem to me an appropriate day on which to discuss such matters, as it is a day for celebration. So whether the date is 30 November or 31 March, as the noble Baroness, Lady Hayman, suggests, seems to me a side issue. The real issue is that there should be proper consideration of this matter.

I respectfully suggest to the noble and learned Lord the Lord Chancellor that he should lean on his colleagues and draw their attention to the proposal made by the noble Baroness, Lady Hayman, and the feeling in this House, and not seek to get us into a game of parliamentary chicken on an issue as important as the security of our country.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I had not considered the issue of St Andrew's Day at all until now, but I am persuaded that we should not adopt the idea that 30 November is sacrosanct. For all the reasons adduced by my noble friend Lady Hayman, it is appropriate that we consider 31 March. For that reason, we should have an adequate opportunity to consider the effect of the Bill. I am very chary about certain aspects of it, but I may be wrong. But it is absolutely vital that at least we have a report from the review committee before us and can consider the effect of the position taken by people outside the Houses of Parliament.

I was very disappointed when my noble and learned friend the Lord Chancellor said that the idea of the sunset clause was not acceptable to the Government. I beg of them to think again about the matter. It is not as though we are considering a perfect Bill; in many ways, it is imperfect. I am prepared to give the Government the benefit of the doubt, but there must be a provision that we consider the legislation again not on 30 November, which for reasons that I have already explained I believe is entirely appropriate, but on 31 March next year, which would be wholly appropriate.

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

My Lords, the Government are trying to have it both ways. I was in the other place yesterday, when I heard people on the government Front Bench repeat the argument that no sunset clause was needed at all and in the same breath say that if there were to be a sunset clause, the end of November would be too soon. As far as I can see, this Bill was put together in about two months. It is precisely because it was so hurried—although I understand the reasons for that—and precisely because it has such huge constitutional import, that we are saying that a total review is necessary and therefore a sunset clause is necessary.

The noble Baroness, Lady Hayman, made a good case for offering the Government an extended period for the sunset clause. That is a mark of good faith. But for the Government to go on saying that a sunset clause is not needed when this huge ramshackle Bill was put together in only two months seems to me a contradiction.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, not for the first time, I find myself in almost total agreement with the noble Baroness, Lady Hayman. Because she put her case so clearly and because my noble friend Lord Forsyth made many of the points that I wished to make about the Prime Minister's stance, I can be very brief.

I sat in another place yesterday to hear the debate and I heard my right honourable friend David Davis say that if the Government came back and said that there would be a review after 12 months, he would not object. I also heard my right honourable friend Kenneth Clarke remind the House that David Davis had been generous in saying that there had been eight days to debate this Bill, as in the House of Commons there were only three hours and the first hour and 10 minutes of those three hours was taken up by a speech from the Home Secretary. This was a completely new Bill for the Commons. It has been amended again, and when it leaves this House it will again be very different. So we can be certain that this is a deeply flawed piece of legislation.

Therefore, for all the reasons set out so eloquently by the noble Baroness, Lady Hayman, we clearly do need a sunset clause, and the procedures of a 12-monthly review are wholly inadequate. All we need from the Government is to say, "Okay, we accept a sunset clause", and all the other disagreements can be put aside and we can get on with the legislation and deal with terrorism. There is a consensus in the House on so many of the issues and I believe that we can find a consensus on the time needed.

There are clearly doubts among a number of noble Lords that the November deadline is adequate. In the light of the remarks made by my right honourable friend David Davis in another place and what has been said today I suggest to my noble friends on the Front Bench that we should seek a consensus on the issue, accept the case put by the noble Baroness, Lady Hayman, and go for a sunset clause that ends on 31 March.

Photo of The Earl of Onslow The Earl of Onslow Conservative 1:30 pm, 10th March 2005

My Lords, during the foot and mouth disease outbreak we used to say how sensible and well the noble Baroness, Lady Hayman, presented her case. After about the third time she got frightfully ratty at the Dispatch Box and said that she was fed up with compliments from Members on our side of the House.

On this occasion I risk inciting her ire yet again. I hope that my noble friends on the Front Bench will accept what she had to say. It is perfectly reasonable, although I dislike vast chunks of the Bill even as it stands, for it to be extended for another four months, which is not that much.

The noble Baroness, Lady Scotland, was so near to arguing for a sunset clause. She was saying that we are going to have something in place. That is why a sunset clause becomes possible. What happens if for some reason either this House or the other place decides not to renew the Bill under annual renewal? The Government would be in a worse position than they are now with Part 4 and Belmarsh. I strongly suggest that we support the noble Baroness, Lady Hayman, which shows that it is an all-party matter and not just a Conservative matter to score party political points.

We agree with the noble Baroness, Lady Scotland, about the necessity to have a proper Bill in place. By 31 March of next year it can be in place and the transition can be seamless.

Photo of Baroness Wall of New Barnet Baroness Wall of New Barnet Labour

My Lords, I am sure that noble Lords opposite who have any involvement in business will know that in a partnership relationship in any business wherever we have an agreement we have a review clause. We do not renegotiate the whole of the agreement but we look at the consequences of the agreement into which we have entered and we review the effects.

I find it bewildering. I am talking to people who have a great deal of experience, which is mostly judicial; people who, I am sure, when it comes to legal matters, are extremely important. But in reality we are dealing with an issue that can be reviewed. There is already built into the Bill the opportunity to look at the orders on a yearly basis. I do not understand why there is a distinction between that and any other part of our lives.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I want to say to my noble friend Lady Wall that we are talking about something much more substantial in our lives than making a business contract. We are talking about fundamental rights and liberty; the stuff that this House particularly can speak to in the interests of all the citizens of this country.

In supporting the propositions of my noble friend Lady Hayman I want to say that I have heard over the past 24 hours aggressive adversarial comment that the Bill is about party machinations. That has not been my experience in talking with people in this House—I cannot speak about elsewhere. I know that many people; particularly people who have spoken from the Labour Benches, are motivated by genuine concern about the quality of the Bill and the lack of time to discuss such important issues.

I would hate to see the issue being seen purely as to do with party positioning before an election. It is too important for that. In relation to my noble friend Lady Hayman's sensible propositions, because of the reservations about the Bill and because it is being presented as something to do with party politics, many people on the Labour Benches last night voted with the Government because they felt deeply uneasy about the fact that they were being accused of disloyalty. There was a sense that they were expected to vote for amendments coming from somewhere else that may have been motivated by party advantage.

On some issues we have to leave party aside. I strongly urge this House not to present these matters as opportunities for scoring points against the other side, but to discuss them in the interests of justice and liberty. Many people on these Benches feel alarmed about the Bill for good reason. The idea of a sunset clause weighs heavy on my heart because I think that the Bill should not be going through the House at all. I ask for a sunset clause only because it is a backstop so that we can reconsider such important issues at more leisure.

I say to all noble Lords: leave party aside for a moment and think about things that are about everyone's interest—the national interest—and about liberty and principles that we have fought for in this country for so many years. I know that some Members on our Benches have deep unease about the Bill but also feel a great sense of loyalty to party. They would feel relieved if some kind of veil would come down to enable us to think again and to start with a blank sheet so that we get the legislation right.

Photo of Lord Joffe Lord Joffe Crossbench

My Lords, having practised as a human rights lawyer in South Africa at a time when house arrest and a range of other oppressive laws had been passed allowing the authorities arbitrarily to deprive citizens of the protection of the courts, I would like to speak briefly. I will make only one significant point on the sunset clause.

Those laws in South Africa were used indiscriminately: both against individuals of whom the Government had good reason to be suspicious; and against those who in criticising the Government were simply exercising their democratic right to freedom of speech. They resulted in great hardship and harm both to innocent people and—perhaps even more importantly—to their spouses and children.

I do not for one moment compare the evil former South African Government with our own Government, many members of which in those days were ardent supporters of human rights in South Africa. However, sadly, in one respect our Government are using the same tactics as the South African Government used by insisting that the safety of the population is at risk unless the laws that they are seeking to rush through are urgently passed without proper consideration and deliberation.

In South Africa that unjustified urgency and implicit threat led to a spineless opposition—with the exception of one courageous Member of Parliament, Helen Suzman—that supported the appalling legislation, because they thought that they would be seen to be weak on terrorism. Fortunately, unlike the former South African opposition parties, the Opposition in this Parliament have behaved courageously and with integrity and a proper respect for the laws and traditions of this country despite the Government's efforts to portray them as weak on terrorism.

It makes no sense for the Government to suggest that a sunset clause would be an indication of weakness in the fight against terrorism. A sunset clause must surely be the rational response to the issues raised in the House. It gives the Government what they seek for enforcing the law until the clause becomes operative. It also gives the opportunity to those who oppose this legislation to ensure that proper and thoughtful legislation is crafted which will properly balance the requirement to defend the country against terrorism while ensuring that there is only the minimum diminution of the rights of individuals, through the protection of the courts.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, I think that I shall await the noble and learned Lord's answer to this debate with considerable interest. I shall be particularly interested to hear how he reacts to the speech that was made just now by the noble Baroness, Lady Kennedy. It was a superb speech. It was a sincere speech. It had nothing to do with parties. I say in passing that I have frequently wondered since I have been in your Lordships' House how useful political parties are or how full of menace they can be when their power is abused, as it very frequently is.

I wish to avoid overstatement, because I have been pursued for this before now. I shall therefore content myself with saying that this Bill has not been widely applauded. Perhaps I may refer briefly to the article in the Times of yesterday, which said:

"Labour is facing its sternest test of how to handle the whole issue of terrorism . . . The inept handling of this Bill"— this is surely something for which the noble and learned Lord has to take a little blame—

"has had the worst possible effect. It has politicised an issue that should command a consensus among all responsible MPs to safeguard Britain and its liberties".

I very much wonder what the Prime Minister's position is in the matter of a sunset clause. He is—I must not be too excessive about this—noted for the agility of his footwork. On 2 March, in answer to my right honourable friend Michael Howard, Leader of the Opposition, he said:

"I point out to the right hon. and learned Gentleman that that will effectively be subject to a sunset clause, because if we introduce it, and we will introduce it only if there is another vote of the House of Commons and the House of Lords, my understanding is that it becomes annually reviewable and renewable. In other words, that part of the Bill is already subject to a sunset clause".—[Hansard, Commons, 2/3/05; col. 953.]

If this debate means anything, it means that there is no sunset clause of any value at all.

It has been said that this is not a matter for party politics. I agree. But perhaps the noble and learned Lord will tell us, when he comes to reply, what it was that the Prime Minister meant yesterday when he said:

"We will have this debate here, and we will have this debate in the country, and we will see where the shame lies; but in my judgment the shame will lie with the Conservatives, who, faced with legislation to prevent terrorism—faced with legislation on which we were advised by our police and security services—are going to vote against it. If they want to vote against it, let them: we will be content ultimately to have the verdict of the country on it".—[Hansard, Commons, 9/3/05; col. 1512.]

Perhaps the Prime Minister will explain to the country, at some stage or other, why he has so flat-footedly refused to contemplate any sunset clause, which would give some effective chance for a review, instead of endowing what in most people's opinion is a rotten Bill. He is endowing it with, if not eternal life, a degree of survival which it does not merit.

I have been in Parliament for a very long time. I cannot recall any other occasion when I felt so deeply distressed and sick at what a government are doing. I say quite mildly to the noble and learned Lord, who appears to take so many of the serious points made against him with a light-hearted air and to think that the passage of this Bill and its effect in operation will not cast a long shadow over the future, that I think he is entirely wrong and will have something to be ashamed of for the rest of his days.

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) 1:45 pm, 10th March 2005

My Lords, first, may I just bring us back to the group with which we are currently dealing? I will reply, and reply fully, when we come to deal with the next group on a sunset clause. I see the noble Lord, Lord Kingsland, rising to his feet. I wonder whether I may ask him to remain seated for a brief moment.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Baroness for giving way. We have had a debate on both Motion C and Motion D. In my very humble submission, I think it is appropriate now for the noble Baroness to sum up that debate in relation to both Motions so that we do not have to return to the issue on Motion D after we have voted on 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 understand entirely what the noble Lord says. I propose first to respond to Motion C, so that we have some clarity about what the House will be asked to decide on in that regard. I anticipate that, unless I persuade noble Lords otherwise, that will be the first issue on which the House is likely to be divided. I propose then to move on to the next Motion, on the sunset clause. I appreciate that, in the general debate, we have conflated the arguments on both Motions.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, may I remind the noble Baroness that when she started this debate she said that both these matters would be dealt with in one vote? She expressly said so herself.

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)

No, my Lords, with the greatest respect, I said that the two issues were linked. I put the background so that we could understand how the first Motion we were going to debate related to the second. I did not say that I was going to answer both Motions together. I absolutely understand that the noble Lord, Lord Kingsland, said that he would speak to both Motions at that point. I did not rise to my feet to indicate that that was not something which we were perfectly happy should take place.

Perhaps I may therefore deal with the first Motion, to which I have spoken already. It brings us back to the import of the amendments that we have passed. The noble Lord, Lord Carlile, is absolutely right. If the House insists on the amendment that it has made to the Bill, the role of the noble Lord, or someone in his position as a reviewer, will go, and in its place will come the committee. So it is a very important matter for the House to consider in determining how to vote on that issue. That is what we are saying. The Government have twice now said that we need someone to play the role that has been played by the noble Lord, Lord Carlile, in relation to Part 4. For all the reasons that he has given, the level and the depth of the scrutiny that such a reviewer pays to the detailed needs of those detained or adversely affected by Part 4 or who would have their rights and liberties restricted as is now proposed by the conditions attached to the new proposed orders, are significant.

The Government strongly believe that, just as it was necessary for someone to review independently those matters in terms of the operation of the Bill and how it infringes on the liberties of the individual, those matters still need the acuity and attention that such a reviewer would give. If this House insists, it will be telling the other place for the second time that the role of the noble Lord is not needed on this Bill. I cannot believe that that is the intent of your Lordships. Therefore, I urge your Lordships not to insist on that matter.

I will now address the sunset clause. This House has always had to bow in the end to the other place, because the other place is the elected House. That remains a fundamental part of the democratic arrangements between the two Houses. It is right for noble Lords to remember that in the debates in the other place the biggest majority was on the sunset clause. The other place spoke very clearly indeed, and this House also needs to remember the mood of that debate in the other place. It was clear that the House wanted to send a clear message to those terrorists and others who will be listening to what we say and looking and watching with a great deal of attention, that there will not be a gap and that there is no wavering on those powers.

There is too an element of disagreement between those who seek a sunset clause, and I noted with great care the concept of a blank sheet of paper. People have said that they wish to start again. That is the position of those who say, with all integrity, that control orders of themselves are fundamentally wrong, and we should not have them. That view has been eloquently expressed by the noble and learned Lord, Lord Lloyd, and my noble friend Lady Kennedy of The Shaws and others. That is one view. The majority of this House does not accept that position. The majority of this House and the other place accepts with the utmost reluctance, and some with a degree of pain, that control orders, in the situation in which we find ourselves, are an unfortunate, unwanted, unlooked-for necessity.

It is unlikely, whether we are talking about November or another date, that we will be facing a position where we say that it is safe to expunge control orders. We are going to have them in some way or another in relation to that small cadre of people who will not be amenable to prosecution. That has been said in debates over and over again. We all agree that there is that small cadre who cannot be prosecuted, even if we are successful in bringing new legislation on to the statute book.

I will address the issue of timing. Right around this House, it has been said that the legislation has been rushed; that there has not been appropriate time for consideration; that we have had a gun put to our heads as a result of the 14 March legislation; and that legislation made in haste is bound to be poor legislation. That is what the House was saying. What is our answer? The answer, if one were to push with the sunset clause, is to say, "We would like to do the same thing again".

Noble Lords:

Oh!

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)

It is, my Lords, because I have noted carefully what has happened on each occasion. My noble friend Lady Hayman is right that the procedure that we have now adopted on control orders is much, much better than Part 4. It is likely that we will have new opportunities to look at the legislation as to what else we need to put in place. I cannot envisage a position—particularly if the noble and learned Lord, Lord Lloyd, and my noble friend Lady Kennedy of The Shaws, and others on the Liberal Democrat Benches stay in their place—where we will not have a really trenchant, difficult and testing debate on any such new provisions. The noble and learned Lord, Lord Lloyd, is right that there is not absolute parity and agreement that the new provisions are the right way either. We will have to get that right. We will not, and should not, rush that position.

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 wonder if I could finish. The noble Lord has been on his feet on a number of occasions, and this is the first time that I have been on mine for a significant time.

When it comes to timing, we must look at the reality of the position with which we will be faced. My noble friend was right in saying that this will need scrutiny, not just by those in this House but by individual agencies and others who will have a view. This House may think that acts preparatory is the best way forward. We do not know whether that will be universally accepted elsewhere; we need to have that debate. If we need to have pre-legislative scrutiny, which I can anticipate—the noble Lords on the Liberal Democrat Benches, if nobody else, will voice that intent—that will take time. It is likely that we will be running with a timetable even if we were to accept my noble friend's date of March.

If we have an annual renewal, it will be in a situation where this House will be seized and know of the work that has been undertaken in relation to the new legislation. It will know whether those matters have been completed, and when it comes to renew that legislation this House will have the ability to have its say. In so many cases where annual renewal has been—

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 will not give way. I wish to finish this. In so many cases when we have had annual renewals, there has not been another legislative vehicle that could conveniently be used to have this debate.

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 will give way once I have finished this.

That is an important difference. This legislation would be able to elapse if both Houses felt that was appropriate. There are big issues here, and the Government are clear that the review structure that we have put in place will enable the House to have its say.

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

My Lords, I thank the Minister for giving way. Perhaps she will take the opportunity at this point of her speech to reply to the point made by my noble friend Lord Goodhart that in the event of a review taking place of the kind that she described, it would be constitutionally unprecedented for this House to vote it down because it would be an order, which would have been approved by the other House. She seems completely to have overlooked that limitation on this House's ability to pass its view.

Photo of Lord Young of Norwood Green Lord Young of Norwood Green Labour

My Lords, before the noble Baroness—

Noble Lords:

No!

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) 2:00 pm, 10th March 2005

My Lords, the annual review is an effective means for both Houses to make that clear. Noble Lords on all Benches have said on a number of occasions that the other place has absolutely the same sort of concerns. The annual renewal—renewal is what we are talking about—will enable both Houses to look at whether it is necessary to continue the legislation, and whether it has been developed, dealt with and undertaken in a proper way. It is an appropriate vehicle. I hear what the noble Lord, Lord Goodhart, says about it, but it is possible. On renewal, the House can say yea or nay.

Photo of Lord Sheldon Lord Sheldon Labour

My Lords, the House may say yea or nay, but it may not be able to offer alternatives. It is amendments that are required, not only a decision for or against a renewal. I can see no way to overcome the problem other than by having a sunset clause.

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, there have been other ways. From this Dispatch Box, I do not need to remind noble Lords of the way in which annual renewals have been dealt with in other legislation. The contingencies Act also dealt with renewals. We have made the commitment for the new legislation. It is not beyond the wit of this House to put amendments in any such new legislation that will deal adequately with the matter. This House will have a vehicle that could be used effectively and creatively to meet the need. The most important thing is that we send no signal to those outside the House that this country is wavering at all in relation to its position.

Photo of Lord Young of Norwood Green Lord Young of Norwood Green Labour

My Lords, does the Minister agree that the Government responded to a request from the noble Baroness, Lady Hayman? In our previous debate, she said:

"I believe that it would be possible to provide perhaps for renewal, which would be more realistic, and then an absolute sunset clause, to allow the Bill to be enacted—as I think there is a universal feeling around the House that it should be—but not in such a straitjacket that it puts us back in exactly the situation we are in now. I earnestly hope that my noble friends will be able to respond to that".—[Hansard, 8/3/05; col. 656.]

She again asked the Minister whether she could respond to a request for renewal rather than only review. Since then, the matter has gone back to the House of Commons and it has responded.

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 friend is absolutely right. When we were debating the issue last Tuesday, I said that the Government would listen, would continue to look at the matter and would respond. We responded. Bearing in mind the nature of that response—the fact that there is now a renewal provision, which was asked for—this House should be content and not insistent.

I have not dealt with the difference between the November and March timetables. It seems to be accepted by the whole House that the November timetable is totally unrealistic. We would say that, similarly, the March timetable is far too tight. It does not deal with the major issues, and we feel that renewal would be the better way forward.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Baroness for her reply. We have had a debate about Motions C and D, and shall now vote, successively, on amendments to them. Motion C concerns the Privy Council amendment, and the first vote will be on it if we press our amendment from this Dispatch Box. I shall not attempt to summarise the debate on the issue; it would be impertinent of me to do so. The case for the amendment has been made devastatingly throughout your Lordships' House.

So far as our amendment to Motion D on the sunset clause is concerned, I believe that the arguments advanced by the noble Baroness, Lady Hayman, about the inadequacy of the review procedure were also devastating and have been accepted by almost all noble Lords who have spoken. The principle of the sunset clause has therefore been supported throughout the House.

However, there remains the question of when it should bite. We continue to believe that the principle that ought to be applied is that of "the earlier, the better". However, we have listened carefully to the arguments put for a later date—the end of March 2006—which have, again, come from all parts of the House. We would be prepared not to move our amendment, in favour of that tabled by the noble Baroness, Lady Hayman, so long as the noble Baroness can assure us that she will press her amendment when we come to it.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I shall give way to the noble Baroness so that she can indicate whether she will do so.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, it is difficult procedure; we are having to make it up a little as we go along. For reasons that I shall take a couple of minutes to explain, my view is that we need to vote on a sunset clause. I think that my noble friend is saying that she wills the same ends as the House—the opportunity to look at the Bill again—but that the means are those that the Government have put forward, rather than a sunset clause. Many around the House do not agree on that issue of means. They believe that the means best suited would be a sunset clause.

I take very seriously what my noble friend said about another place. I had the privilege of being a Member of it decades ago, and I understand that in some ways we in this House are B-movie politics. However, in constitutional issues, we have a responsibility. We have a right to ask again another place to think again on the issue. That is why it is important to keep the matter open.

A year is a much more sensible time frame than that proposed by the noble Lord, Lord Kingsland, so, if he were not to move his amendment, I would maintain my support for my amendment. If I did not move it, I am sure that someone else would, to give the House the opportunity to express its view on the issue.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, when the noble Baroness, Lady Hayman, moves her amendment on the sunset clause, I shall withdraw my amendment in favour of the noble Baroness's. I am delighted at the weight the noble Baroness's decision will give to the vote on the sunset clause, when we reach it. She is not only a distinguished former Front-Bencher from the government side but also, of course, a senior Privy Counsellor; and, in my submission, that adds, I repeat, great weight to her support for the principle of the sunset clause.

I now wish to press my amendment to Motion C, which concerns the Privy Council. After we have voted on that, the question of the sunset clause will arise.

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

Their Lordships divided: Contents, 225; Not-Contents, 126.

Division number 2 Private Parking: Ports and Trading Estates — Prevention of Terrorism Bill

Aye: 223 Members of the House of Lords

No: 125 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 Tordoff Lord Tordoff Liberal Democrat 2:21 pm, 10th March 2005

My Lords, I have to inform the House that if Amendment D1 is agreed to, I shall not be able to call Amendment D2.

:TITLE3:LORDS AMENDMENT

33 Insert the following new clause—

"Limitation

This Act and any order made under it shall by virtue of this section cease to have effect on 30th November 2005."

The Commons disagree with the Lords in its amendment but propose the following amendments in lieu—

33A Page 12, line 37, at end insert the following new Clause—

"Duration of ss. 1 to 6

(1) Except so far as otherwise provided under this section, sections of 12 months beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument—

(a) repeal sections

(b) at any time revive those sections for a period not exceeding one year; or

(c) provide that those sections—

(i) are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection; but

(ii) are to continue in force after that time for a period not exceeding one year.

(3) No order may be made by the Secretary of State under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.

(4) Subsection (3) does not apply to an order that contains a declaration by the Secretary of State that the order needs, by reason of urgency, to be made without the approval required by that subsection.

(5) An order under this section that contains such a declaration—

(a) must be laid before Parliament after being made; and

(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which the order was made, ceases to have effect at the end of that period.

(6) Where an order ceases to have effect in accordance with subsection (5), that does not—

(a) affect anything previously done in reliance on the order; or

(b) prevent the making of a new order to the same or similar effect.

(7) Where sections prevent or otherwise affect—

(a) the court's consideration of a reference made before that time under subsection (3)(a) of section (Supervision by court of making of non-derogating control orders);

(b) the holding or continuation after that time of any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c) of that section;

(c) the holding or continuation after that time of a hearing to determine whether to confirm a derogating control order (with or without modifications); or

(d) the bringing or continuation after that time of any appeal, or further appeal, relating to a decision in any proceedings mentioned in paragraphs (a) to (c) of this subsection;

but proceedings may be begun or continued by virtue of this subsection so far only as they are for the purpose of determining whether a certificate of the Secretary of State, a control order or an obligation imposed by such an order should be quashed or treated as quashed.

(8) Nothing in this Act about the period for which a control order is to have effect or is renewed enables such an order to continue in force after the provision under which it was made or last renewed has expired or been repealed by virtue of this section.

(9) In subsection (5) "40 days" means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36)."

33B Page 13, line 1, leave out "every relevant 12 month period" and insert—

"( ) the period of 12 months beginning with the day on which this Act is passed, or

( ) every period specified in an order under section (Duration of ss. ) as a period for which those sections are revived or continued in force,"

33C Page 13, leave out lines 16 to 18 and insert—

"( ) the period of 3 months beginning with the passing of this Act;

( ) a period of 3 months beginning with a time which—

(i) is the beginning of a period for which sections an order under section (Duration of ss. ); and

(ii) falls more than 3 months after the time when those sections were last in force before being revived;

( ) a 3 month period which begins with the end of a previous relevant 3 month period and is a period during the whole or a part of which those sections are in force."

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 D, that the House do not insist on its Amendment No. 33 but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof.

I am most grateful to the noble Lord, Lord Kingsland, for allowing me to move my Motion. Of course, I would be very happy if he just accepted my Motion and did not move his amendment. I do not know whether that is why he rose to his feet.

Motion D is found on page 24 of the Marshalled List. I spoke to it during debate on Motion C.

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

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

had given notice of his intention to move Amendment D1, as an amendment to the Motion that the House do not insist on its Amendment No. 33, but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, to leave out from "House" to end and insert "do insist on its Amendment No. 33 and do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, in the light of the statement made by the noble Baroness, Lady Hayman, in response to my question posed just before we took the previous vote, I shall not move Amendment D1.

[Amendment D1, as an amendment to Motion D, not moved.]

Photo of Baroness Hayman Baroness Hayman Labour

moved, as an amendment to Motion D, Amendment D2:

Leave out from "33," to end and insert "do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, and do propose Amendment No. 33D in lieu of Lords Amendment No. 33".

33D Insert the following new Clause

"Limitation

This Act and any order made under it shall by virtue of this section cease to have effect on 31st March 2006."

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I wish to move Amendment D2 standing in my name. In so doing, I make it perfectly clear that I wish no message of support for terrorists, or a lack of commitment to fighting terrorism.

One of the reasons I support control orders is that a year ago, in this House, I was saying how uncomfortable I was with Part 4 of the Act, because it did not deal with the threat from UK citizens who might be involved in terrorism. That is why I support control orders. They give a greater degree of protection to the citizens of this country.

I believe, however, that while we have improved the Bill—it is better than it was—it is not the best that Parliament can do. Parliament should be given the opportunity to do better in a reasonable period of time. The amendment in my name gives us that reasonable period of time, and I beg to test the opinion of the House.

Moved, As an amendment to Motion D, Amendment D2: Leave out from "33", to end and insert "do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, and do propose Amendment No. 33D in lieu of Lords Amendment No. 33.—(Baroness Hayman.)

On Question, Whether the said amendment (D2) shall be agreed to?

Their Lordships divided: Contents, 250; Not-Contents, 100.

Division number 3 Private Parking: Ports and Trading Estates — Prevention of Terrorism Bill

Aye: 248 Members of the House of Lords

No: 99 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:LORDS AMENDMENTS

38 Schedule , page 16, line 30, leave out sub-paragraphs (2) to (4) and insert—

"( ) The relevant rules of court shall be made by the Lord Chief Justice after consulting the Lord Chancellor."

39 Page 17, line 5, leave out "by the Lord Chancellor"

40 Page 17, line 11, leave out from beginning to end of line 3 on page 18 and insert—

"( ) The rules of court must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights."

42 Page 18, line 23, at end insert—

(8) "Rules of court under this paragraph in relation to proceedings in England and Wales—

(a) must be laid before Parliament after being made; and

(b) if not approved by a resolution of each House of Parliament before the end of 40 days beginning with the day on which the order was made, cease to have effect at the end of that period."

The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose the following amendments in lieu—

42A Page 17, line 5, leave out sub-paragraph (5) and insert—

"(5A) Rules of court made by the Lord Chancellor by virtue of this paragraph—

(a) must be laid before Parliament; and

(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.

(6) Where rules cease to have effect in accordance with sub-paragraph (5A)—

(a) that does not affect anything previously done in reliance on the rules;

(b) the Lord Chancellor is to have power again to exercise the relevant powers, in relation to the proceedings in question, instead of the person by whom they are otherwise exercisable;

(c) he may exercise them on that occasion without undertaking any consultation that would be required in the case of rules made by that person; and

(d) the rules made by the Lord Chancellor on that occasion may include rules to the same or similar effect.

(7) The following provisions do not apply to rules made by the Lord Chancellor by virtue of this paragraph—

(a) section 3(2) of the Civil Procedure Act 1997 (c. 12) (negative resolution procedure);

(b) section 56 of the Judicature (Northern Ireland) Act 1978 (c. 23) (statutory rules procedure).

(8) In sub-paragraph (5A) "40 days" means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36)."

42B Page 17, line 12, leave out "and burden"

42C Page 17, line 42, leave out from "required" to "in" in line 45 and insert "to comply with any provision of rules of court, or order of the relevant court, for the disclosure to a person other than the court or a person appointed under paragraph 7 of any matter in respect of which the Secretary of State has made such an application but on which he does not then rely"

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 2:36 pm, 10th March 2005

rose to move Motion E, that this House do not insist on its Amendments Nos. 38, 39, 40 and 42 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 42A and 42B in lieu thereof, and do disagree with the Commons in their Amendment No. 42C but propose Amendment No. 42D in lieu of Commons Amendment No. 42C:

42D Page 17, leave out lines 34 to end of line 1 on page 18 and insert—

"( ) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

"( ) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

"( ) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

"( ) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

"( ) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

"( ) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest;

"( ) that provision satisfying the requirements of sub-paragraph (3A) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.

"(3A) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court—

(a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and

(b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised.

"(3B) In this paragraph "relevant material", in relation to any proceedings, means—

(a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those"

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 E, which is found on page 27 of the Marshalled List, covers Lords Amendments Nos. 38 to 40 and 42.

Lords Amendment No. 38 removed Paragraphs 3(2) to (4) from the Schedule and inserted a new paragraph that provided for the Lord Chief Justice to make the rules of court, after consulting the Lord Chancellor. Amendment No. 39, which we debated yesterday, removed the clarification in Paragraph 3(5) that the Lord Chancellor makes the first set of rules for Northern Ireland. Paragraph 3 of the Schedule provides that on the first occasion after the passing of the Act, the relevant power to make rules in respect of proceedings in England and Wales and Northern Ireland should be exercised by the Lord Chancellor, instead of the usual Rules Committee.

That provision is necessary to ensure that we have rules in place shortly after Royal Assent in those jurisdictions. We have dealt with the urgency of the matter previously. Since we last addressed the issue, draft rules have been published, so there is an opportunity for everyone to see the rules. I fully agree with what the noble Lord, Lord Kingsland, said on a previous occasion, which is that the rules must be absolutely clearly appropriate for such a purpose. The Lord Chancellor sets them on the first occasion only for speed. In the current circumstances, it is appropriate that it should be the Lord Chancellor. I invite noble Lords and noble and learned Lords to consider whether that is the appropriate course.

Amendment No. 40 inserts Article 6. The reason we inserted paragraph 4 of the schedule is because it provides an important guide for the Lord Chancellor, and subsequently for the Civil Procedure Rules Committee, to the areas with which the rules of court must deal in regulating the procedures to be followed in control order proceedings. I do not believe it to be in accordance with the will of the House simply to leave the coverage of the rules at large, and it is right in a situation like this that some indication is given to the rules' makers of the areas to be covered.

In particular, it is right that we express our view on the right for the rules to exclude the controlled person's lawyer from certain proceedings in closed session, but allow for a special advocate to act in his interests instead. The rules will also allow for some proceedings, such as an application for anonymity, to be determined on the papers without a hearing. These special rule-making powers and obligations are intended to ensure that a fair and reasonable balance is struck between the need to ensure that control orders are properly reviewed and the need to protect sensitive information in the public interest.

The proposed amendment suggests that we should merely stipulate that the rules need to be compatible with Article 6 of the ECHR. I respectfully submit that this is unnecessary. I made it clear again on the previous occasion that we would comply with Article 6. We accept that obligation, and, indeed, there is a means of enforcing that: if the rules do not comply with Article 6, they can be struck down. It is not the same as a piece of primary legislation. That amendment is not necessary.

Noble Lords will know, because I referred to it last time, and I do not intend to refer to it again, that the rules in the SIAC process were considered by the Court of Appeal and were held both to be fair and to comply with Article 6. I do not intend to read again what the Lord Chief Justice said in relation to that.

Amendment No. 42 introduces a special affirmative resolution process for the rules: they must be laid before Parliament and approved by resolution of each House within 40 days, otherwise they will lapse. I cannot accept the amendment in the precise form in which it is drafted, but my Amendment No. 42A has a similar effect. We have got to the point we wanted to get to yesterday—the rules can be made, with immediate effect, and there is a process by which both Houses then have to affirm them. It is an affirmative process, not a negative one.

Amendment No. 42B alters sub-paragraph (1)(a) of paragraph 4 of the schedule to remove the power for the rules to make provision about the burden of proof in control order proceedings. We have reviewed the paragraph and redrafted it better to reflect the House's intention. The Bill clearly sets out the tests that must be applied by the Secretary of State and the court when considering the position in relation to control orders. We accept that the rules of court should not be capable of making changes to these tests. That is not the intention, and the amendment ensures that the rules of court cannot be used to do so.

Finally, regarding Amendment No. 42C, we had an important debate yesterday about how to balance national security against the need to be as fair as possible to the suspect in these proceedings. Our position is that we have to protect national security, but the special measures we take should go only as far as is necessary to achieve that aim. We accept the need for that. It was a view with which the noble Lord, Lord Carlile of Berriew, the noble Lord, Lord Newton of Braintree, and the courts have all agreed. We want the rules to reflect that approach.

In response to the various concerns of noble Lords, I gave a commitment in Committee on 8 March to clarify beyond doubt the Government's position on the treatment of exculpatory material, and to give effect to the approach that we should give as much as we can consistent with national security. That is what my Amendment No. 42C would do.

Putting aside all the issues that have gone before, the Government have responded in detail to what this House has said on this issue. I earnestly suggest that, whatever view the House takes on the other amendments, this is one to agree to. This is a case where, looking at the detail and consulting widely, we have improved the Bill immeasurably.

Moved, Motion E, that this House do not insist on its Amendments Nos. 38, 39, 40 and 42 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 42A and 42B in lieu thereof, and do disagree with the Commons in their Amendment No. 42C but propose Amendment No. 42D in lieu of Commons Amendment No. 42C.(Lord Falconer of Thoroton.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved, as an amendment to Motion E, Amendment E1:

Leave out from "House" to end and insert "do insist on its Amendments Nos. 38, 39 and 40 to which the Commons have disagreed, do not insist on its Amendment No. 42 and do disagree with the Commons in their Amendments Nos. 42A to 42C in lieu thereof, but do propose Amendments Nos. 42D and 42E in lieu of Lords Amendment No. 42:

42D Page 17, leave out lines 34 to end of line 1 on page 18 and insert—

"( ) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

"( ) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

"( ) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

"( ) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

"( ) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

"( ) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest;

"( ) that provision satisfying the requirements of sub-paragraph (3A) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.

"(3A) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court—

(a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and

(b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised.

"(3B) In this paragraph "relevant material", in relation to any proceedings, means—

(a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those"

42E Page 17, line 5, leave out sub-paragraph (5) and insert—

(5) Rules of court made by virtue of this paragraph—

(a) must be laid before Parliament; and

(b) if not approved by a resolution of each House before the end of 40 days, beginning with the day on which they were made, cease to have effect at the end of a further period of 20 days.

(6) Where rules cease to have effect in accordance with sub-paragraph (5), that does not affect anything previously done in reliance on the rules.

(7) The following provisions do not apply to rules made by the Lord Chancellor by virtue of this paragraph—

(a) section 3(2) of the Civil Procedure Act 1997 (c. 12) (negative resolution procedure);

(b) section 56 of the Judicature (Northern Ireland) Act 1978 (c. 23) (statutory rules procedure).

(8) In sub-paragraph (5) "40 days" and "20 days" mean 40 days and 20 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36)."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I shall deal first with the final point made by the noble and learned Lord the Lord Chancellor. I thank the noble and learned Lord for drafting this new amendment regarding exculpatory material. In my submission, the noble and learned Lord has moved significantly from the position that first featured in the Bill. I am content with what the noble and learned Lord has done, and we will not be opposing the amendment.

As far as the group of amendments in Motion E is concerned, the crucial role they play in the scheme of things is to provide a judicial process for the judges that we substituted for the Secretary of State in the early part of the Bill. In our view, it would be wholly counterproductive to put a judge in charge of deciding whether a control order ought to be made, yet then require him to follow an executive procedure. Without these amendments, a judge will not, in effect, be operating in a judicial context.

The arguments have been well tested, both in Committee and on Report. I need refer to them only briefly. I begin by saying that the Lord Chief Justice, and not the Lord Chancellor, should make the rules. There are two reasons for this. First, the situation in Scotland is that the Lord President makes the rules; and it is important that there is equivalence between ourselves and Scotland in the manner in which rules are made.

Secondly, as with this legislation generally, if these rules eventually find themselves on the statute book, they will have got there in an extremely rushed fashion, and will have been imperfectly scrutinised. The great value of having the Lord Chief Justice making the rules, therefore, is that he will be standing outside the process and will be able to take an objective view about which rules are appropriate to a situation where the interests of the country are being balanced against the interests of an individual. The Lord Chief Justice is in a better position to do that than the Lord Chancellor, who will nevertheless be consulted on the Lord Chief Justice's decisions.

The next point is that we think these rules should comply with Article 6 of the ECHR, the article which deals with due process. The noble and learned Lord the Lord Chancellor has said, "We have already agreed to that. Why do you need it on the face of the Bill?", to which I respectfully retort that, if the noble and learned Lord is content that Article 6 should apply, what is the harm of putting it on the face of the Bill? If he is not prepared to do so, it suggests that one ought to be somewhat concerned about the nature of his undertaking. In my submission, your Lordships ought to vote to put the Article 6 requirement on the face of the Bill.

The final component of this group is one that has been tabled by the noble Lord, Lord Goodhart, and would give your Lordships' House the right, once the rules had been drafted, to have them laid before your Lordships under an affirmative resolution procedure. Your Lordships would then not only have the guarantee of the rules being drafted by the Lord Chief Justice, but also the opportunity to look at them carefully and, at the end of the day, if necessary, reject them. That is what this group of amendments is about. I beg to move.

Moved, as an amendment to Motion E, Amendment E1, leave out from "House" to end and insert "do insist on its Amendments Nos. 38, 39 and 40 to which the Commons have disagreed, do not insist on its Amendment No. 42 and do disagree with the Commons in their Amendments Nos. 42A to 42C in lieu thereof, but do propose Amendments Nos. 42D and 42E in lieu of Lords Amendment No. 42.—(Lord Kingsland.)

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 are happy with the Government's new amendment, which, we accept, is a considerable step forward and deals with a problem that had been of some concern to us. We on these Benches are happy to support the noble Lord, Lord Kingsland, in his insistence on Amendments No. 38 to 40.

I shall spend a minute or two on our Amendment No. 42E. This arises from the matter mentioned by the noble Lord, Lord Kingsland, about the order, which I raised in an earlier amendment and was accepted by the Government, to apply an affirmative resolution procedure to the first set of rules made by the Lord Chancellor or the Lord Chief Justice, which would come into force immediately but would cease to have effect if both Houses did not approve them by a resolution within 40 days.

When it came back from the Commons, certain provisions had been added, which effectively gave the Lord Chancellor power to make exactly the same orders all over again, immediately after the end of the 40-day period—and without any consultation. It seemed to me that that defeated the purpose of the amendment. I could see at the same time that there was a problem: that if, at the end of the 40-day period there had been no approval by both Houses, the orders would immediately lapse and they would have to be remade, and that might take some time.

In Amendment No. 42E I have included a provision that removes the power of the Lord Chancellor to make the old rules again, but gives a 20-day breathing period, following the end of the original 40 days, which would allow time for new rules to be made and to be brought into effect before the original rules finally expired.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, perhaps I may comment on the subject of exculpatory material. I am glad to see Amendment No. 42D, tabled by the Government and I associate myself with what has been said by the Front Benches. I said some harsh words a couple of nights ago on the basis that the Bill looked as though it gave authority for the Secretary of State to withhold from the suspect material that was exculpatory of him and I am glad to see that Ministers, as I would have expected, have demonstrated their good faith in that regard.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I speak very briefly just to seek some reassurance from the noble and learned Lord the Lord Chancellor and/or the noble Lord, Lord Kingsland, regarding the same debate about which the noble and learned Lord, Lord Mayhew, was holding forth very strongly about exculpatory material and evidence. We were also talking about intercept evidence being put into court. The reassurance that I am seeking is that, as I read it now, intercept material would, of course, be seen by the Secretary of State, but that it would not be necessary for him to put that into the court. I seek this reassurance, especially because I heard the right honourable David Davis this morning on the radio, stating categorically a big list of things that his party would not go back on, including the inclusion of intercept evidence in court. Could I have some sort of answer?

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, as a non-lawyer, could I confess to some puzzlement about the amendment that says that:

"The rules of court must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights"?

I had thought that Article 6 was among the articles in the ECHR which had been incorporated into the Human Rights Act and, therefore, was part of British law. Surely, it is unnecessary to put on the face of a statute that the rules of court must comply with UK law?

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 add my personal thanks for the drafting of Amendment No. 42D. it was a matter about which your Lordships may recall I was concerned at Second Reading. I am grateful that the Government have dealt with that in such a satisfactory way.

Amendment No. 40A raises a matter which I raised in Committee and on Report, concerning,

"the exclusion of evidence in control proceedings, where there is reason to believe that such evidence has been obtained by torture in any jurisdiction".

We had a fruitful debate and concerns were expressed in various parts of the House about the Court of Appeal's judgment, which permitted evidence that had been obtained by torture to be used in court, provided that the torture was carried out by people who were not servants of this state. I have had quite a lot to say on that matter.

However, that amendment does not form part of the Motion, so it is not a matter that I shall press. I just hope that the Judicial Committee of the House of Lords will come to the conclusion which, with his usual foresight, my noble friend Lord Lester of Herne Hill said yesterday that they would come to. If that is not the case, I hope that we shall return to this topic at some later date.

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, three points are left. First, why should it be the Lord Chancellor and not the Lord Chief Justice? The reason for that is that the orders need to be made in a hurry. It is wrong that the Lord Chief Justice should be in the special position. It should be the Lord Chancellor. The merit of that can be tested by the fact that the draft rules have now been published, so that people can form their own views in relation to it.

Secondly, I have made it clear that Article 6 does apply. The noble Lord, Lord Kingsland, knows that it would be bad drafting to put Article 6 in here and not in other statutes, because the Human Rights Act applied to every act carried out by a public authority, and the Lord Chancellor, the Lord Chief Justice and the Civil Procedure Rules Committee are public authorities. The noble Lord sends the wrong legal signal. Despite the earlier decisions of the House, the one thing that it should be doing is approaching these issues with some sense that we are moving forward and have reached a responsible conclusion.

The noble Lord, Lord Goodhart, put his point accurately regarding the effect of our position. We have put it that way, not because we would intend to come back with identical rules, but because you need to deal with the question of what would happen if there were no rules. Of course, we would respect the conclusion of the House, or Parliament, if it had voted down the rules, but you need some provision which allows you to come back with something, if only for a temporary period. That is why we have done it and I hope that that will give the noble Lord pause for thought.

Finally, regarding the point made by the noble Baroness, Lady Ramsay, the material could go to the court—even material that might give rise to a national security problem. But if it did affect national security, it could not go to the suspect or his lawyers. That is where the firewall is. If it endangers national security, then it does not go to the suspect or his lawyers; it goes to the court.

I hope that, in the light of those explanations, the House would behave in the way that it normally does in relation to such issues by not pushing the amendments to a vote, as they are sensible responses.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his reply. I shall glance this afternoon at the draft rules, if I have an opportunity to do so, since he has drawn to my attention that they are now available.

Regarding Article 6 of the convention, it was plain, when the Bill first came before your Lordships, that the rules proposed did not conform with Article 6. This amendment was tabled for that reason; and it is wholly appropriate that it should remain on the statute book. No derogation has been sought by the Government to resile from Article 6. The Government have stated politically that they will support Article 6.

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, does the noble Lord dispute the proposition that the ECHR applies to the rules and that if they were in breach of Article 6, they would be struck down?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I have no doubt whatever that if they were in breach of Article 6 they would be struck down. My concern is that the noble and learned Lord accepts that a civil right is involved, but he does not accept that the later criminal provisions of Article 6 apply to the procedure. That is the difference between us and that is why we are keen that Article 6 remains on the face of the Bill.

Perhaps I may put it as I did in my opening remarks. Why is the noble and learned Lord so concerned about Article 6 being on the face of the Bill if he is confident that he will meet the obligation? I respectfully invite your Lordships also to accept the amendment to the noble and learned Lord's own amendment that has been tabled by the noble Lord, Lord Goodhart.

On Question, Whether the said amendment (E1) shall be agreed to?

Their Lordships divided: Contents, 200; Not-Contents, 129.

Division number 4 Private Parking: Ports and Trading Estates — Prevention of Terrorism Bill

Aye: 198 Members of the House of Lords

No: 127 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.