Lords Sitting of 3 March 2005

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Derby): The CHAIRMAN OF COMMITTEES on the Woolsack.

Chechnya
Lord Juddasked Her Majesty's Government:
When they last discussed the conflict in the Chechen Republic with the Russian Government and what was the outcome.
Baroness Crawley: My Lords, Her Majesty's Government most recently raised the issues facing Chechnya with the Russian Government during Bill Rammell's visit to Moscow on 21 and 22 February to announce the launch of the North Caucasus Education Initiative. As the incoming EU President, we also participated fully in the EU-Russia consultations which took place this week, at which human rights issues in Chechnya were discussed at length.
Lord Judd: My Lords, I thank my noble friend for that reply. Does she agree that at a time of great preoccupation about global terrorism, there is anxiety that the way in which the Russians are conducting the operation in Chechnya is driving young people and others into the arms of the extremists? The Russians' conduct is recruiting for the extremist cause. Is it not, therefore, crucial to make this a major issue at the most senior levels of government? Would it not be appropriate, as we take the presidency of the European Union and lead the G8 this summer, to ensure that this issue is high on the agenda with our allies and colleagues there so that they can join us in the pressure on the Russians?
Is my noble friend aware that Memorial, one of the most courageous and respected NGOs in Russia, has said that last year in Chechnya 397 people disappeared? They were abducted. In England, proportionately, that figure would be 14,000 to 15,000 people who disappeared in a year. Yet that is a country which claims to be a member of the Council of Europe and to share all its aspirations and objectives.
Baroness Crawley: My Lords, I very much agree with my noble friend's opening comments about the way in which ongoing problems in Chechnya to do with militants will have a knock-on effect when it comes to recruiting young people. However, the UK regularly underlines with our Russian partners our conviction that acknowledging and addressing the problem of human rights abuses is an important part of building confidence in a lasting settlement in Chechnya.
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My noble friend mentioned the human rights group Memorial. It has suggested that the number of abductions in Chechnya has fallen this year. However, despite that, we believe that the continuing problem of abductions in the region is totally unacceptable.
Lord Howell of Guildford: My Lords, did not the UN Commission on Human Rights, when it looked at this appallingly difficult problem, recognise that there were atrocities on both sides? Would not the balanced view be that while the Chechen people want greater local autonomy, the Russians see this as a hotbed area of A1'Qaeda activity and Islamic extremism, with some evidence to support that, and that if it broke away altogether it would trigger the unravelling of the entire Russian Federation? So is not the right approach to applaud what the noble Lord, Lord Judd, expresses in his concern for human rights but also to recognise the Russian dilemmas and encourage the round-table talks which are proposed to be held in either Moscow or Grozny and support the aim of all sides, including the Russians, to try to resolve this eternally difficult problem in a less violent way?
Baroness Crawley: My Lords, we strongly support the proposed round-table talks. There is evidence to link elements of the militants in Chechnya with parts of Al'Qaeda. The thrust of the noble Lord's contribution is absolutely right. We recognise Russia's genuine security concerns in the region. Terrible terrorist attacks have taken place across Russia and have claimed many lives.
Lord Russell-Johnston: My Lords, does the Minister agree that the round table discussions will not be effective unless they genuinely include representatives of Aslan Maskhadov? Is it still the Government's policy to offer asylum to supporters of Maskhadov who seek it in this country?
Baroness Crawley: My Lords, it is not for us to say to whom the Russians should talk. We believe that peace in Chechnya will be secured only through a successful political process that is truly representative of the Chechen people. That further underlines the need for early parliamentary elections in Chechnya.
The Deputy Prime Minister and Foreign Minister of the Chechen separatist government are currently claiming asylum in the UK.
Lord Truscott: My Lords, will my noble friend and Her Majesty's Government remind the Russian Government of their obligations as members of the Council of Europe? With particular regard to a recent case that was taken to the European Court of Human Rights which found against the Russian Government in six cases of human rights abuses, will Her Majesty's

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Government remind them that they should fulfil the terms of that court judgment and pay compensation to the Chechen families involved?
Baroness Crawley: Yes, my Lords, we hope that the Russian Government will take this judgment very seriously and act on its findings.
Lord Wallace of Saltaire: My Lords, will the Government also make representations to the Russian Government that they should not use this as another excuse for further intervention in Georgia? I understand that the Russian Government think that the OSCE border monitoring force over the Pankisi Gorge should be withdrawn but also that the Pankisi Gorge is being used by Chechen separatists and therefore wish to have joint patrols with the Georgian Government on Georgian territory.
Baroness Crawley: My Lords, we are continually concerned about the possibility of problems in Chechnya spilling over into the North Caucasus region. The noble Lord talked about Georgia, and, on the Caucasus region generally, it is important to have fair and transparent political processes as the ultimate goal because we do not believe that military intervention is the answer.
Lord Avebury: My Lords, is the Minister aware that a meeting of the All-Party Group on Human Rights under the chairmanship of Ms Ann Clwyd, MP, heard on Tuesday from a group of Russian lawyers and NGOs about the extreme difficulty that they have in raising human rights violations in Chechnya? Will the Government urge the Russians to sign up to the UN Commission on Human Rights' remit of inviting all the Special Procedures to visit Russia at their discretion, particularly the Working Group on Disappearances?
Baroness Crawley: My Lords, we continue to be committed to co-operating with the Russians to generate concrete solutions to the human rights and socio-economic issues facing Chechnya and the wider region.

Female Genital Mutilation Act: Prosecutions
11.8 a.m.
Baroness Rendell of Baberghasked Her Majesty's Government:
How many prosecutions there have been under the Female Genital Mutilation Act, which received Royal Assent on 3 March 2004.
The Attorney-General (Lord Goldsmith): My Lords, there have been no such prosecutions although there are some ongoing investigations. But the success of the Act is not necessarily to be measured solely in terms of
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the number of prosecutions. Prosecution after the fact does not relieve the victim of a lifetime of pain and discomfort. Ideally, we want to obviate the need for prosecution by preventing this practice occurring in the first place. To that end, the 2003 Act is intended to send a powerful message of deterrence.
Baroness Rendell of Babergh: My Lords, I thank my noble and learned friend for his Answer. Does he agree that part of the reason for there being no prosecutions may be the widespread ignorance among the public and some health professionals that female genital mutilation is against the law? Is he aware that, in research by the Development Support Agency, 50 per cent of those interviewed did not know that female genital mutilation was an illegal practice and 31 per cent of those questioned said that they did not care if it was and still intended to go on doing it? Is the Attorney-General aware also that of 50 midwives attending a recent midwifery conference, fewer than five knew that female genital mutilation was against the law?
Lord Goldsmith: My Lords, I absolutely agree with my noble friend that raising awareness, particularly among the practising communities, and educating them about the dangers and unacceptability of this brutal practice is essential. I had not been aware of the details that the noble Baroness has just mentioned until she kindly provided them in advance.
The Government are doing a lot to raise awareness. They are promoting work through FORWARD, which is the leading body actively working with communities to bring an end to the practice; the ACCM, the Agency for Culture and Change Management; and BWHAFS, Black Women's Health and Family Support, which is giving significant financial support. I agree with my noble friend that it is important that that work continues. To that end, I have invited those groups to meet me along with the FGM group of the Women's National Commission to discuss the issues further.
Lord Thomas of Gresford: My Lords, the noble and learned Lord the Attorney-General referred to the organisation, FORWARD. Is he aware that it estimates that 74,000 first-generation African women in this country have undergone mutilation of this type and that 7,000 girls under the age of 16 are at risk every year? In what way are health professionals encouraged to report this illegal, and therefore criminal, activity to the police?
Lord Goldsmith: My Lords, those are statistics that I have seen before. One has to be a little careful about the "at risk" figure because it is based to some extent on the number of girls of a certain age in communities that have practised the procedure. Each of the major professional bodies has issued guidance or position statements on FGM, particularly since the 2003 Act came into force. I can provide hereafter a list of those bodies if the noble Lord wants it. I agree with him though that it is important that we should continue that work and, particularly, bring home the message, which I know that police are doing at least in London, that it is important

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to report such events, that they will be taken seriously and that, where appropriate, prosecutions will take place.
Baroness Gardner of Parkes: My Lords, am I correct in thinking that there has never been a prosecution, even since the 1985 Act? Under the 2003 Act, it is a question of whether you have taken someone abroad to have the procedure carried out. It is difficult to know who has been abroad and for what purpose. Therefore, the only way to discover mutilation would be when a midwife or an obstetrician or some medical person subsequently examined someone. The professional would know according to the age of the woman, particularly if she was young, that it had been done somewhere. What is the actual procedure of reporting? If, as the noble Baroness, Lady Rendell, said, so few people are even aware that the practice is illegal, is there not a need to publicise more widely to the health profession the fact that it is?
Lord Goldsmith: My Lords, I think that the noble Baroness is right to say that no prosecutions have been made. At least I have not come across any examples. One of the reasons why the 2003 Act was passed was to deal with some of the difficulties involved in prosecution; that is, if it was suggested that the procedure had taken place abroad, it was difficult, if not impossible, to prosecute. I agree with the noble Baroness also about the importance of raising awareness, and that is going on. I take some small comfort from the fact that the research that I have seen in relation to other countries indicates that they too have difficulties in prosecuting.
Lord Acton: My Lords, in reply to the noble Baroness, Lady Rendell, my noble and learned friend mentioned that some investigations were ongoing under the 2003 Act. Is he able to indicate how many such investigations there are?
Lord Goldsmith: My Lords, I cannot. The noble Lord will understand why it would be undesirable to go into too many details. It is important that the message is given out strongly to health professionals and others that the matter will be taken seriously. It is a brutal practice; it causes lifelong damage to the girls and women to whom it is applied; and we really must do all we can to stamp it out.
Baroness Masham of Ilton: My Lords, is the noble and learned Lord the Attorney-General aware that most of these unfortunate children are taken abroad for the operations and, when they come back here, they can have horrific infections and terrible problems? Can he set up some form of reporting system for such conditions because the women concerned may visit GPs or hospitals?
Lord Goldsmith: My Lords, the noble Baroness is of course right to draw attention to the consequences of female genital mutilation, not just in the long term, but immediately in the aftermath of the procedure being carried out. Seven specialist clinics in the NHS provide healthcare for girls and women who have undergone
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FGM, including reversal surgery. So the Government are taking steps to deal with this in the ways that I have indicated.
Baroness Trumpington: My Lords—
Lord Davies of Oldham: My Lords, we must move on.

Bosnia-Herzegovina: War Criminals
11.16 a.m.
Lord Russell-Johnstonasked Her Majesty's Government:
What representations they have made to widen the mission of the European Union force, which has taken over from the NATO force in Bosnia, to include apprehension of war criminals as defined by the International Criminal Court.
Baroness Crawley: My Lords, the European Union-led force, EUFOR, in Bosnia and Herzegovina works in close co-operation with the NATO headquarters in Sarajevo to provide assistance to the International Criminal Tribunal for the former Yugoslavia. That includes action to detain fugitive persons indicted for war crimes. The Government do not see a need at this stage to widen further the mandate of EUFOR in that respect.
Lord Russell-Johnston: My Lords, does the Minister agree that the failure to apprehend either Karadzic or Mladic so many years after Srebrenica really shames us? At a meeting that I attended towards the end of last year, I understood from the French general who had taken over the EU force that had replaced NATO that their apprehension was not a priority mission of the EU force, nor was it of NATO. I do not understand why not, because I am sure that a determined effort to find those people would work.
Baroness Crawley: My Lords, I hope I can reassure the noble Lord on his first point. The British force commander for EUFOR, who took over at the beginning of this year—Major General Leakey—has underlined in his public statements that EUFOR would lead efforts to tackle networks that sheltered and financed war criminals. In the first month of its mission, EUFOR, under the British general, mounted an operation to secure bunker complexes that were believed to have been used to shelter the fugitive, Ratko Mladic.
The noble Lord was concerned about the mandate. I can reassure him that EUFOR has full authority to monitor the military aspects of the general framework agreement for peace in Bosnia and Herzegovina. Both EUFOR and NATO have the authority to apprehend persons indicted for war crimes. Their mandate explicitly states that.
Lord Howell of Guildford: My Lords, I associate myself entirely with the remarks of the noble Lord, Lord Russell-Johnston. As we are talking about the International Criminal Court, which is referred to in the

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Question, would it be stretching the issue too far to ask what the Government's view is about alleged war criminals in Sudan and in the western region of Darfur? Have they been referred to either the International Criminal Court or to a separate tribunal?
Baroness Crawley: My Lords, it is a bit of a stretch. I thought that I had tried to cover all the main aspects of the issue, but I am afraid that Sudan did not come into that. However, we believe that the international community should fully co-operate with the International Criminal Court.
Lord Dykes: My Lords, while returning the Question to order but nonetheless slightly widening its scope, will the Minister confirm that the encouraging aspect and broad background here is that in respect of both these particular issues and NPT adherence, WMD and the human rights aspects of the EU constitution when it has been ratified by all member states, along with the European Convention on Human Rights, those that are now putative new members of the European Union have to do all those things, not just some of them?
Baroness Crawley: My Lords, the noble Lord is absolutely right. Balkan watchers in the House know that conditionality is the key here. If countries in the Balkans want to integrate further with Europe or NATO, it is a prerequisite that they co-operate fully with the International Criminal Tribunal for the former Yugoslavia.

Asylum Seekers: Detention of Children
11.20 a.m.
Lord Aveburyasked Her Majesty's Government:
What is their response to the Save the Children report on the detention of children, No Place for a Child.
Lord Bassam of Brighton: My Lords, we welcome the report as a valuable contribution to the debate about family detention. This is a detailed report and we will need to consider the contents and recommendations extremely carefully before responding in full, which we will do in due course.
Lord Avebury: My Lords, why does the noble Lord need more time to consider the recommendations made in this report when it simply reinforces what has already been said by the Chief Inspector of Prisons, the United Nations Committee on the Rights of the Child, the United Nations Human Rights Committee and the UNHCR? All have criticised our policy of detaining 2,000 children a year, half of them for longer than the 28-day period which the noble Lord himself has said should be the upper limit. Does he not agree that, in the light of all the reports, there should be a root-and-branch review of the policy of detaining children with
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a view to complying with the Government's own enunciated policy of keeping as few as possible in custody for the minimum length of time?
Lord Bassam of Brighton: My Lords, the Government received the report on Monday. I ought to pay a compliment to Save the Children because this report is the fruit of a very good dialogue between Save the Children and the Home Office. We now look forward to continuing discussions with the charity so that we can consider its recommendations in a spirit of co-operation. We are at one with the noble Lord in wanting children to be detained for only the shortest possible period. We want also to ensure that such children are well looked after and cared for. It is clear that there are shared objectives here and we very much welcome the report in that light.
Lord Hylton: My Lords, are the Government taking seriously the very widespread concern, beyond even the question of children, about the privatised detention and removal of people from this country? Has the noble Lord himself looked into the allegations of racism, bullying and the use of excessive force in both detention centres and during the removal process?
Lord Bassam of Brighton: My Lords, we take allegations of racism and excessive force very seriously indeed. Those matters have to be properly investigated. It is in no one's interest if such allegations have any substance. If anything substantial is found, those responsible need to be rooted out of the service. However, it is true that the vast majority of those working in detention centres and who are part of the removals process are honest, hardworking people with decent values. However, where we do come across unacceptable behaviour or practice, we need to ensure that they are brought to an end.
Whether care is better conducted by private contractors or by direct labour organisations is a matter for conjecture. In general terms, however, we find that the services provided by the private sector are of an extremely high quality.
The Earl of Onslow: My Lords, I do not know whether the noble Lord was able to see the programme on television last night showing incidents of real abuse, racial intolerance and total indiscipline on the part of certain members of staff. I know that he has duties in this House, so perhaps it is a little unfair to hurl this at him. However, when Home Office representatives have had time to watch the programme and digest its implications, will he please arrange for a Statement in this House on the whole issue of poor discipline among Immigration Service guards?
Lord Bassam of Brighton: My Lords, regrettably I was not able to watch the programme shown last night. I wish that I had been able to because, like all other Members of Her Majesty's Government and particularly those with responsibilities for and interests in Home Office affairs, I take very seriously any allegations of racism and racist abuse. I like to think that I am part of a proud record of dealing with those issues.

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However, I can tell the noble Earl this morning that later today the Home Office will produce a Written Statement on the issues arising from the television programme. However, in fairness to all the other staff at Oakington who have not been implicated in any way—there are some 900 staff at the centre—I ought to place on the record our tribute to their hard work and determination to act in an entirely proper way when dealing with immigration detainees. I understand that the allegations relate to only a small number of people, many of whom have already had their licences to act as staff revoked. and quite rightly so.
Lord Lester of Herne Hill: My Lords, as my noble friend pointed out in his supplementary question, this issue has been raised not only in the Save the Children report, but also by both the UN Committee on the Rights of the Child and the UN Human Rights Committee under two international human rights treaties. Is the noble Lord aware that they have found the United Kingdom to be in breach of its international legal obligations? Given that, why on earth are the Government now procrastinating over a proper answer to the question posed by Save the Children in its report? Is it not time to end this abuse as soon as possible, in accordance with our international legal obligations?
Lord Bassam of Brighton: My Lords, I reject the allegation that this Government are procrastinating on these issues. I think that we have a very good human rights record and I would argue with the noble Lord that the treatment of failed asylum seekers who have to be detained before they are removed is fair and proportionate. Where there are abuses, we wish to know about them. Where there are abuses, we will tackle them. That is precisely why I replied as I did to the noble Earl, Lord Onslow, just a few moments ago.
Lord Judd: My Lords, does not my noble friend agree that the action being taken by the Government to bring home the fact that they will not tolerate racism in the Immigration Service and elsewhere makes it appropriate to argue strongly that the way immigration policy is administered is absolutely central to the battle for hearts and minds in the context of global security; that is, by winning friends and not driving people into the arms of extremist opposition?
Lord Bassam of Brighton: My Lords, my noble friend makes an extremely important point. We have to be seen to be acting fairly and properly by running a decent and humane Immigration Service. In large measure, I invite my noble friend and other noble Lords to agree that that is exactly the approach undertaken by this Government over the past few years.
Lord Dholakia: My Lords, I want to pursue slightly further the question put by my noble friend Lord Lester. Do the Government subscribe to international
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standards and guidelines which state that asylum-seeking children should not be detained? If that is the case, why is it necessary to put down a reservation on this matter with the UNCRC?
Lord Bassam of Brighton: My Lords, in appropriate circumstances, particularly where families are being removed because their application has failed. it is only decent and proper to ensure that those children are held together with their families before they return to their country of origin. The noble Lord will know also that it is our policy to place unaccompanied asylum-seeking children in the care of local authorities, not to hold them in detention centres. That, too, is right and proper.
The Earl of Sandwich: My Lords, has the noble Lord noticed among the findings set out in the Save the Children report that there is a severe lack of legal representation for many children being held in detention? Does that not undermine completely the principle of bail in detention?
Lord Bassam of Brighton: My Lords, this clearly is an important issue. It is part of the report and one of the 21 recommendations that we, as a government, need to digest carefully and consider further. I am sure the noble Earl will have heard at the outset of my responses that we desire to have a continued dialogue with Save the Children. We believe that the report is a very important contribution to that debate, which needs to continue. We will of course endeavour to respond in detail to all the recommendations in order that we can come to an agreed and acceptable way of ensuring that such children are well looked after and cared for.
The Earl of Listowel: My Lords, will the Minister take note of the concerns expressed in the report on the voluntary aided return programme? People working both in the Home Office and outside are concerned that the voluntary aided return programme is not being raised more clearly with asylum seekers, both at the initial stage of application and in detention centres. Indeed, it was a recommendation of the Home Affairs Committee of the other House in 2003 that more work should be done in this area. Will the Minister look carefully at this matter?
Lord Bassam of Brighton: My Lords, we take all of the recommendations seriously. This is clearly an important one to which we will give fair consideration. We of course wish to have a dialogue with the charities and NGOs involved in those discussions.

Parliamentary Commissioner (Amendment) Bill [H.L.]
Read a third time, arid passed, and sent to the Commons.

Business of the House: Prevention of Terrorism Bill
11.31 a.m.
Lord Grocott: My Lords, perhaps I may offer the House a short explanation of where we are in regard to the grouping of amendments for the Prevention of Terrorism Bill. We are extremely close—by "we" I mean the usual channels and everyone with an interest in the Bill—to getting agreement on a sensible grouping of amendments, but I am afraid that we are about 10 minutes short of the deadline, which is so often the case.
For the convenience of the House and everyone who wants to ensure—as we all do—that there is an orderly debate, it would be sensible to adjourn until quarter to twelve so that there can be absolute clarity about the first group. We can then do what we all want to do, which is to have a sensible debate on a sensible group.
Lord Cope of Berkeley: My Lords, we have done our best to accommodate the Government's perceived need to complete the Bill quickly but the House is being placed in a very difficult position today, not only in regard to the groupings but altogether. I remind your Lordships that the clauses of the Bill were never discussed at all in Committee in another place—they never reached that stage—because of a very tight timetable. So the clauses of the Bill have never been discussed at all.
Since then, I think 37 government amendments have been tabled this morning—they are all starred amendments—and they involve knocking out some clauses and inserting whole new ones. At the same time, as we have just heard, we have no groupings to go by. So it is not only difficult for the Front Benches to sort out where we are but also particularly difficult for individual Members who wish to take part in the various debates.
I am absolutely sure that we should adjourn for at least a quarter of an hour, but I am not sure whether we will be able to resolve matters satisfactorily in that time. I draw your Lordships' attention to the fact that the Constitution Select Committee of this House—an all-party committee, obviously, as all Select Committees are—has this morning reported that the proposals in the Bill are of major constitutional significance and that they and any possible amendments—it is referring to the Government's amendments as well as to others—should be given particularly careful consideration. The Select Committee is quite right, but the House will have a very difficult time doing that.
Lord Roper: My Lords, from these Benches I wish to associate myself with the remarks of the Opposition Chief Whip and to add that, for us to do our job properly and to consider the Bill carefully, it is extremely important on this occasion that we get the groupings right and that we separate the different issues so that we can consider them properly. I believe that the delay is in the interests of the whole House and therefore we support it.
Lord Forsyth of Drumlean: My Lords, I appreciate that these are usually matters for the usual channels but, as a humble Back-Bencher—perhaps not so humble—I would like to protest in the strongest possible terms. I have cleared my diary because of the importance of this matter. As far as I can see, there is not even a Minister on the Bench responsible for the Bill. People have had to work all night on these amendments and it really is outrageous if Ministers cannot get their act together when we are faced with the presentation of legislation on this kind of timetable.
I struggled this morning to understand the government amendments and those tabled by other Members of the House. It is impossible to follow matters because the Government are rewriting the whole Bill by amendments which have not been considered by the other place. If I were a Member of—the other place—which I was for a number of years; and I have never seen anything like this—I would feel grossly offended by the Government's treatment of the House of Commons. Given the Government's past treatment of the House of Lords, it is rather ironic that we should be here to save the Government's bacon in pursuing procedures which are unheard of and which are making it impossible for this place to do its job properly.
Lord Waddington: My Lords, following up on the point made by my noble friend, I hope the Government Chief Whip will help the House on this matter. We are about to embark on a most unusual procedure. The House of Commons has at no time discussed, even for a moment, the proposals now being put forward by the Government, and we are to be invited, I understand, to send back to the other place a very different Bill incorporating the radical amendments put forward by the Government.
We know from reading the papers and Hansard that the way in which the Government have conducted themselves over this matter did not find favour with the House of Commons the other day. We have some responsibility here not to stir up trouble between this House and the other place, and I wonder how the other place will feel we have conducted ourselves if we send back radical amendments with which it has to deal under a ridiculously tight timetable.
The Government Chief Whip at least owes us this: that we should not embark on any discussion of these amendments today without a clear statement from the Government on the amount of time that will be made available in the Commons to discuss these amendments, if and when they get there. If the answer is that they will all be discussed under a timetable which restricts debate to one hour, I cannot see that we would be right to deal with these amendments at all.
Lord Campbell-Savours: My Lords, perhaps I may put the counter view that this is Parliament working at its best. The Commons protested—indeed it rebelled; the Government listened and introduced amendments that are now to be debated in this House. This is Parliament working at its best.
Lord Peyton of Yeovil: My Lords, was not the Government Chief Whip slightly optimistic when he

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indicated just now that a postponement of a quarter of an hour would achieve as a result absolute clarity? It seems to me very unlikely that absolute clarity is ever going to be found in the pages of the Bill.
I agree entirely with what has been said about the way in which Parliament is being treated. The House of Commons is having no chance to discuss these matters and the House of Lords is being treated by the Government as their wash-pot.
Lord Renton: My Lords, I have been in Parliament for nearly 60 years, in both Houses, and never before have I witnessed the way in which the Government are conducting this Bill of some national importance.
The Earl of Onslow: My Lords, this is not a Bill to reorganise Scunthorpe Borough Council but a Bill which will allow—or which will attempt to allow—the Government to lock up a British subject founded on bizarre rumours and enhanced by evidence from overseas intelligence services which could well have been extracted by torture. That is what the Bill will allow.
It is completely disgraceful that this should be rushed through on a timetable Motion of the House of Commons. The amendments produced for your Lordships' House are not yet even ready in proper order. Suddenly, we have to overturn 800 years of British liberties as a result of what will politely be called a foul-up—though I could think of a lot of other terms. I totally agree with the noble Lord, Lord Campbell-Savours. Parliament, for once, is doing its duty.
Lord Brooke of Alverthorpe: My Lords, perhaps I can be helpful. It is vitally important that we have sufficient time in this House to deal with all the amendments. I suggest that, in those circumstances, as I am sure all noble Lords will agree, we would be willing to work this evening until ten o'clock and, if needs be, to come in tomorrow.
Lord Ackner: My Lords, may I make this short intervention? There is growing apprehension among the judiciary about exactly what they are being asked to do. There is great concern that they may be dragged into the political scene by being asked to rubberstamp a procedure quite alien to their function. During all these discussions, I hope that someone has had the good sense to raise this type of question with the senior Law Lord and the Lord Chief Justice. Unless that has been properly covered, we are really in the dark on the position.
Baroness Lockwood: My Lords, perhaps I too can help. Is it not a fact that we now have in front of us a proposal from the Chief Whip that we adjourn for a certain period of time—in other words, a business Motion? That should exclude some of the comments which have been made about the substance of the Bill. The issue before us currently is not the Bill's substance; it is the business Motion moved by my noble friend the Chief Whip.
Lord Carlisle of Bucklow: My Lords, surely the muddle is being caused by the unnecessary speed with
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which the Government are trying to get the Bill through both Houses of Parliament. The Government have said that, with a Bill of this importance, they wish to achieve a degree of unanimity. However, they tabled amendments only yesterday, and have rewritten the Bill in a major way. As my noble friend Lord Waddington very sensibly suggested, we should adjourn the debate not for half an hour but until the beginning of next week. We could then see whether there is a chance of getting the various amendments together and making sense of the Bill.
Lord Grocott: My Lords, this is a listening Government.
Noble Lords: Oh!
Lord Grocott: My Lords, I have listened to the discussion and will now suggest that we should adjourn until twelve o'clock. Given that the first grouping of amendments was agreed a short while ago, that should give us all enough time.
I am very tempted, although I shall resist the temptation, to respond to a number of former Ministers. Unless my memory has gone completely askew, they were not at all averse to supporting guillotine Motions in the House of Commons over—if my memory serves me correctly—18 years. I routinely remember the arguments used at those times, including those of the noble Lord, Lord Forsyth, who said that he was grossly offended by what had taken place. I can remember being grossly offended on numerous occasions in another place when the positions were reversed.
I will leave it there. However, I have to say to the noble Earl, Lord Onslow, that he has to be careful about what he says about the people of Scunthorpe. I think that that will travel back to the people of Scunthorpe and, if he is not careful, it might be interpreted as the Conservative view of them.
I simply repeat that I think that it would be sensible to adjourn until noon.
Lord Waddington: My Lords, before the noble Lord sits down, will he say whether he will get me an answer to my question by twelve o'clock? How much time will be allotted in the House of Commons to consider amendments put to them by this place?
Lord Grocott: My Lords, I can give the noble Lord, Lord Waddington, an answer to his question now. He would be grossly affronted, I think, if the House of Commons issued rules and edicts about how long we in the House of Lords should spend debating Bills. He would never have done that while he was in the House of Commons. I certainly cannot give him an answer to that question now. It would be quite improper for me to do so.
Earl Ferrers: My Lords, could the Government Chief Whip explain one thing? He suggested originally that we adjourn the House until 11.45 a.m. That caused so much steam that everyone discussed it, and now it is 11.45 a.m. I cannot see why we now have to adjourn until twelve

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o'clock. Presumably the point of adjourning until 11.45 a.m. was to allow the Government to get the facts straight so that we could proceed. Does the noble Lord really mean that the Government do not have the facts straight and that they therefore need another quarter of an hour?
Lord Grocott: No, my Lords; it simply means that I have been listening to the debate. I am just anxious to make everyone happy. Another quarter of an hour might do that. I beg to move that the House do now adjourn during pleasure until noon.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 11.45 to noon.]

Prevention of Terrorism Bill
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move on behalf of the noble Baroness, Lady Scotland of Asthal, that the House do now resolve itself into a Committee upon the Bill.
Moved, That the House do now resolve itself into a Committee upon the Bill.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
The Chairman of Committees (Lord Brabazon of Tara): Before calling Amendment No. 1, I should point out that if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 6 to 15 inclusive because of pre-emption.
The Earl of Onslow: Before the Minister moves Amendment No. 1, would it not be much better if she gave an undertaking not to insist on putting her amendment in the Bill at this stage, so that the amendments that would otherwise be excluded could be discussed properly and in the right place? Then, if the Committee proceeds along the lines of some form of agreement, her amendment could be moved on Report, and it in turn may have to be amended after the Government have listened to what Members of the Committee have had to say.
Lord Falconer of Thoroton: First, neither I nor the Government want in any way to preclude discussion on those other amendments. Secondly, we make it clear that if the amendment in the name of my noble friend goes into the Bill it would not preclude any amendments being made to those amendments on Report or at Third Reading. We do not wish to curtail debate in any way. It seems to us convenient to put the amendment into the Bill so that there is at least clarity about what the Government propose and everything is
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in one document. I make it clear to the noble Earl that we seek neither to curtail debate nor to preclude any attempts to amend the Bill.
Lord Carlisle of Bucklow: The Chairman of Committees has just said that if Amendment No. 1 is agreed, and the 16 lines are removed, all those amendments relating to Clause 1 as it stood previously would drop and could not be moved. It would not therefore be possible to debate them in this Committee. I accept that the noble and learned Lord the Lord Chancellor is not attempting to avoid debate on all those matters. However, could it not be agreed at least that the Minister should give notice that at the end of the debate on the amendment she will withdraw it, making it clear that she will bring it back at a later stage having heard the further arguments?
Lord Falconer of Thoroton: That seems a perfectly reasonable suggestion, if it helps noble Lords. That means that I will not move the amendment formally but may bring it back at a later stage. In that way there would not be a problem of pre-emption.
Lord Goodhart: I am sorry to take a different view on this, but I think that the government amendment should go in at this stage. We are in a chaotic position, partly because we are at the same time considering amendments to the Government's new amendments and amendments to the Government's original version. We do not want that to happen again on Report. Although I entirely take the point made by the noble Lord, Lord Carlisle, who has an important amendment to be debated, Amendment No. 10, that issue is raised by others that are not pre-empted and it can be raised again by a different amendment on Report. It is important that we have a coherent government Bill on Report. If the government amendments are withdrawn, we will not get that.
Lord Falconer of Thoroton: As Members of the Committee can see, I have sympathy with both points of view. The group that we are starting with is quite big; it allows debate of the issues that the noble Earl quite legitimately wants to raise. I suggest that we get going and then see whether Members of the Committee feel that there has been a satisfactory debate about the issues that they want to raise. I understand that the noble Earl feels strongly about the matter; I was going to say that, unless noble Lords feel strongly about it, my inclination is just to start.
The Earl of Onslow: I understand completely the position of the Liberal Democrat Front Bench. They have tabled their amendments to a government amendment, and if it is not moved, their points cannot be raised. It just shows what a total foul-up the whole procedure has been. I have great sympathy with that. Would it not be possible to discuss the amendments to the government clauses and the government amendment and perhaps not move any of them? If there were some form of agreement, all the amendments could be tabled again on Report, when most of the work will have been

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done. That will still enable us to discuss some of the other issues. I quite understand the situation; Scylla and Charybdis have moved into this Chamber.
Lord Peyton of Yeovil: I am really getting worried. The Government Chief Whip got to his feet at about half past eleven and said one of the most optimistic things that I have ever heard: that if the House were adjourned for a quarter of an hour we would achieve absolute clarity. The prospect of absolute clarity has since then receded considerably.
I do not want to make a long speech but I wish to refer to what has gone on over the past few years. We have been reminded again and again from government Benches that this House is inferior to, and subordinate to, the other place. Now, suddenly, we are being put in the driving seat and told to have no regard, or very little regard, for the other place. That seems a quite intolerable reversal of a fundamental position by the Government. It is an impertinence for them in these circumstances to ask us just to go ahead and see whether the muddle will not sort itself out. I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Peyton of Yeovil.)
Lord Falconer of Thoroton: My Lords, I think that the Committee should debate the individual amendments. I do not think for one moment that either the noble Earl, Lord Onslow, or the noble Lord, Lord Goodhart, want to prevent that. I do not think that the Committee would have any difficulty debating the issues raised both by the Government's amendments and those tabled by the noble Earl. We do that regularly, particularly when one amendment pre-empts a later one. We are perfectly capable of debating an amendment that might pre-empt another one because we are good at debating the issues. With respect, I suggest that we proceed and get on with debating the actual issues.
Lord Peyton of Yeovil: Is the noble and learned Lord really suggesting that we would have no difficulty in discussing 29 government amendments, all of which are starred? I do not agree; we have absolute difficulty. That is why I have formally moved that this House do now resume.
Lord Forsyth of Drumlean: My Lords, I have some sympathy with my noble friend, but I should quite like to get on with discussing the Bill and using the time available.
However, the Government are making it extremely difficult for us to do so. We were promised that there would be groupings—we have one set. The Government hold the ring. It is a matter for the Government, and I took grave exception to the comments made by the Chief Whip that when we were in government we behaved like this. We never had such a shambles. We used the guillotine, but we gave people a proper opportunity to discuss matters.
Serious issues are involved. The Chief Whip obviously has not grasped what is causing so much anger and concern not only on these Benches but also
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throughout both Houses. A sensible Government would get their act together and perhaps come back on Monday. I can see why my noble friend is moving the adjournment of the proceedings as it reflects our anger that we have been placed in such a position that we cannot do the job that we have been sent here to do.
Lord Kingsland: My Lords, I have great sympathy with the views expressed by my noble friends Lord Onslow and Lord Peyton, and I can perhaps suggest a way round the dilemma.
It is highly likely that our debate on the first line of amendments will take us to 1.30 p.m. We shall then have a period of repose during which I trust further groups of amendments can be produced. That will also give us time to reflect on the wider issue that was raised by my noble friend Lord Onslow about whether the government amendments should go on the face of the Bill in Committee, or whether we should wait for Report.
I am instinctively extremely sympathetic to the suggestion about asking the Government not to move their amendments today because we disagree with the substance of many of them. On the other hand, if we arrive at Report with the Bill in its present state, whose structure is a very long way from the structure that the Government intend, we shall face exactly the same dilemma to which the noble Lord, Lord Goodhart, drew our attention.
Let us debate the first line of amendments, including those that would be struck down if the government amendment were put to the vote. We can then go away at 1.30 p.m. and reflect on what has happened and decide whether the Government should put that first amendment to the vote.
We shall at least get through a very important issue and waste the minimum amount of parliamentary time. We do not like what the Government have done from first to last, but as the Opposition we have given an undertaking to do what the Government have asked us to do, which is to get the Bill through by Tuesday. We are committed to that and in that sense we want to be as helpful as possible.
Lord Thomas of Gresford: My Lords, we on these Benches agree with the noble Lord, Lord Kingsland, that we should make progress. We are here to debate an important and main issue, which is whether the decision on the imposition of a control order should he made by a judge or the Secretary of State. We all understand that that is the burden of the first grouping, however it may be expressed.
To answer the point made by the noble Earl, Lord Onslow, by the end of today we should at least try to have a version of the Bill that one side agrees with, rather than going to Report with the current version with which nobody agrees.
The Earl of Onslow: My Lords, before my noble friend on the Front Bench sits down, I believe he said that he has given a commitment to the Government that they will have the Bill by Tuesday. I hope that the

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Government do not get the Bill at all. It is a rotten, stinking Bill. I am normally an admirer, a friend and a loyal supporter of the noble Lord, Lord Kingsland, but on this one he is being ever so slightly wobbly.
12.15 p.m.
Lord Peyton of Yeovil: My Lords, there are not many of my noble friends on the Front Bench—most of them are absent, unless I have misunderstood.
My noble friend Lord Kingsland declared that this party is committed to getting the Bill through by Tuesday. At most I am an extremely reluctant passenger on the vehicle that my noble friend is driving for the moment. I am not greatly influenced, therefore, by his plea that we should go on as best we can.
I was, however, influenced by my noble friend Lord Forsyth who understood my disgust at the way in which this matter has been handled and the mess that we are now in. But I am persuaded that it would be foolish if I were now to insist on pressing the Motion to adjourn the proceedings. With great reluctance, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Clause 1 [Power to make control orders]:
Lord Falconer of Thoroton: moved Amendment No. 1:
Page 1, line 3, leave out from beginning to "include" in 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—

(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, 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 Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
(1D) Those obligations may"
The noble and learned Lord said: It would be helpful if I explained briefly the overall effect that the main government amendments will have on the structure of the Bill. There is a Marshalled List and Bill for those who want to look at the detail.
The government amendment will delete all of subsections (1) and (2) and the first line, together with the word "person" in subsection (3). Those words will be replaced by Amendment No. 1 on the Marshalled List.
Amendment No. 1 draws a distinction in relation to the making of an order between the non-derogating control order, which is made by the Secretary of State, and the derogating control order, which is made by the court on an application by the Secretary of State. The
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amendment raises four-square the issue of the role of the court in the making of both derogating and non-derogating orders.
To assist the Committee, I shall refer to the other main government amendments to give a clear view of the structure of the Bill. As I said, Clause 1(1), (2) and the first line of subsection (3) plus the word "person" on the second line will be replaced by Amendment No. 1 on the Marshalled List.
We have tabled Amendment No. 43 to the end of Clause 1, which transposes some definitions that are already in the Bill.
Clause 2 will be deleted. Amendment No. 55 on the Marshalled List will amend Clause 3, and sets out the circumstances, the test and burden of proof for a non-derogating control order. At the end of Clause 3, Amendment No. 80 will be inserted, which is a new clause dealing with the power of the court to make derogating control orders. They are orders that deprive a suspect of his liberty.
I draw the Committee's attention to the process by which that occurs. An application is made by the Secretary of State to the court, almost invariably on an ex parte basis. Proposed subsection (3) of Amendment No. 80—
Lord Carlisle of Bucklow: Amendment No. 80 is not in the grouping that we are discussing.
Lord Falconer of Thoroton: I agree but I believe that the appropriate course is to put the whole Bill in context before coming to the critical point.
Lord Carlisle of Bucklow: So we are taking the whole Bill now.
Lord Falconer of Thoroton: I am not precluding anybody from making points on the detail of the amendment when we come to it. But to help the Committee it is appropriate to explain the basic structure of the new amendments so that people can see where they fit into the Bill and understand the role of the court at each stage. As the noble Lord, Lord Goodhart, rightly said, the intention is to talk about the involvement of the court.
The Earl of Onslow: So, in effect the noble and learned Lord is reading Amendment No. 2A. Is that right?
Lord Falconer of Thoroton: I am explaining what the government amendments do, in order to put them in their context. I apologise for doing so at some length, but it seems to me that that is what the debate is about.
I ask noble Lords to return to Amendment No. 80, which deals with derogating control orders. The process involves an application being made by the Secretary of State to the court, which will almost invariably be on an ex parte basis.
"At the preliminary hearing—
the ex parte hearing—

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"the court may make a control order against the individual in question if it appears to the court 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; 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; that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation … and that the obligations that there are reasonable grounds for believing should be imposed … are or include derogating obligations".
That means those that, in effect, deprive a subject of his liberty. So there is an ex parte hearing at which the court, if satisfied of those conditions, may make an order. There is a discretion.
If the court makes the order, then, in effect, it gives directions for a full hearing. What is to be decided at the full hearing is set out in Amendment No. 80, subsection (7):
"At the full hearing, the court may confirm the control order (with or without modifications) only if 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; 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; 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 … derogation",
and the obligations are necessary to prevent the risk arising.
So in relation to a derogating order ex parte application, if satisfied that there is a prima facie case—those words are not in the Bill—the court may make the order. There is then a full hearing and the order is continued only if, having heard both sides of the argument, the court concludes that there is justification and is satisfied, on the balance of probabilities, that the controlled person is an individual who is, or has been, involved in terrorism.
Lord Campbell of Alloway: I have a very simple point. This derogation has been worrying me because there cannot be a derogation in escrow. The derogation operates under Article 15 only if the European Court of Human Rights grants it. How on earth can the Government move with a derogation that has no effect until it has been granted by the court? Perhaps I have got it wrong, but it is worrying me.
Lord Falconer of Thoroton: Sections 15 and 16 of the Human Rights Act 1998 allow the Secretary of State to lay an order. The derogation takes effect from the point that the order is laid. That order is subject to a resolution of both Houses of Parliament. If either House refuses to back the derogation, then it falls, but it takes effect immediately upon the laying of the order by the Secretary of State.
Amendment No. 80 sets out the position in relation to derogating orders. In relation to non-derogating orders, I take noble Lords back to Amendment No. 55:
"(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

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(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".

I do not think that I need to read any more. Subsection (A1) is the critical part. Unlike the derogating control order, the non-derogating control order is made by the Secretary of State.
Lord Wedderburn of Charlton: If we are going to set the scene for a semi-Second Reading, then all sorts of other amendments are material and relevant to the point the noble and learned Lord is making. I have Amendment No. 79 in mind especially. I have a list of others, but it is a good illustration of what, if we are going to have this sort of debate, noble Lords must have in their minds, not merely the amendment that the noble and learned Lord is citing.
Lord Falconer of Thoroton: I fully understand the point that my noble friend is making. It is very difficult to have the debate about court or non-court without first identifying the relevant provisions. If it is not helpful to the House, I shall not go on, but it seems to me to be helpful to identify the relevant provisions so that we can then have the critical debate on whether it should be the court.
I refer noble Lords to Clause 7 in the existing Bill. In practice, it provides that if a suspect wishes to appeal against a non-derogating order made by the Secretary of State, he must bring it to the court. The court will then approach the issue on a judicial review basis.
Those, broadly, are the effects of the amendments and the distinctions between the involvement of the court on derogating control orders and on non-derogating control orders.
Why have we drawn a distinction between the two? Because, in relation to the derogating control order, the effect on a suspect is that he is deprived of his liberty under the European Convention on Human Rights. After listening to representations, we believe that that should not be done except by a court. That is why we have involved a court. In relation to non-derogating control orders, while a wide range of orders can be made, stretching from things such as reporting to a police station once a month to an overnight curfew being imposed, we think that it is appropriate for the Home Secretary, subject to judicial supervision, to make them as he thinks appropriate.
The protection of the citizen comes from the fact that he can apply to the court to challenge the order and see whether the process is flawed. We rely on the distinction between deprivation of liberty and the lesser impositions of non-derogating control orders. I hope that I have adequately explained where this fits into the new structure of the Bill and I invite noble Lords to agree to

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Amendment No. 1, subject, of course, to the point made by the noble Lord, Lord Kingsland, about discussing at lunch the precise procedure to be followed.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord. Can he sort out some confusion in my mind? If the police want to search my premises or my papers—nothing to do with liberty—they have to get a warrant from a magistrate. I do not understand why a similar safeguard does not apply to control orders that affect basic rights and freedoms, but not the right to liberty. Why should there not be at least the initial safeguard of having to go to a judicial officer at that stage?
Lord Falconer of Thoroton: A judgment has to be made. For example, the noble Lord will know that the police can impose bail conditions that are very similar to the conditions to which we refer in the Bill. An individual is entitled to go to the magistrates' court and complain about bail conditions, if he wishes, but the police have those limited powers. It is a question of judgment about how intrusive the powers should be before the court has to make them in the first place. I believe that that is the issue raised by determining whether there should be judicial intervention beforehand, in relation to the deprivation of liberty cases, or not, although there is judicial supervision—which is the position related to in the later part. It is a question of drawing a line. Our debate should be whether we have drawn the line in the right place.
12.30 p.m.
Viscount Bledisloe: Before the noble and learned Lord sits down, having sorted out the confusions in the mind of the noble Lord, Lord Lester, could he attempt to do the same for me? Under subsection (1B)(b) of his new clause, the court comes into operation only if the Government have made a derogation order and are seeking to impose an obligation which is expressed to be within the scope of that order. On the other hand, the Secretary of State's power, under subsection (1A), applies only to an obligation which is not incompatible with the right to liberty. Therefore, if the Secretary of State makes an order which is found to be incompatible with the right to liberty, then that order is a nullity. If there is a situation in which no derogation order has been made, he cannot go to court; but, if he thinks that the order goes too far and imposes obligations that are incompatible with Article 5, he cannot make an order either. At that stage, nobody can make an order. Is that right?
Lord Falconer of Thoroton: Correct. If the position was that the Secretary of State thought the appropriate order was one which deprived the suspect of his liberty, he could not make that order without a derogation. He would have to derogate before he made the order. If he concludes that the right way to protect the state is by a derogating order, he can apply for such an order only once he has derogated. If, on the other hand, the order does not deprive the subject of his liberty, he does not
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need a derogation. The implication of what the noble Viscount is saying is also right; if he has not got a derogation, but he makes an order which inadvertently deprives the person of his liberty, such an order is either quashable or a nullity. It is unlawful because he can make such an order that deprives the suspect of his liberty under Article 5 only if there is a derogation in existence before he makes the order for derogation.
Lord Lloyd of Berwick: For clarification, the clause as it stands, and as it is proposed to be amended, refers to obligations imposed on the individual. The impression given in the other place was that these obligations are civil obligations, such as obligations imposed under non-molestation orders in domestic cases, or the most recent anti-social behaviour orders. First, is that the area we are in?
Secondly, if that is the area we are in, would the defendant be entitled to a fair trial under Article 6 of the convention, before such an order could be imposed? Does the noble and learned Lord the Lord Chancellor accept that in order to have a fair trial he would be entitled to know the case against him? In other words, does he accept that we are concerned not just with Article 5 but also with Article 6?
Lord Falconer of Thoroton: I accept that we are concerned with Article 6, but there is a balance to be struck as to what the process involves. We submit in relation to Article 6 that under these procedures, in certain circumstances it will be appropriate not to tell the suspect of all of the information relied against him—as has already happened in relation to the SIAC process. That is not inconsistent under the current circumstances with Article 6; it is based on the decisions of the European Court. I beg to move.
Lord Thomas of Gresfordmoved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 7, leave out from beginning to "by" in line 11.
The noble Lord said: The noble and learned Lord the Lord Chancellor has set out his stall to a degree. I will say briefly and in broad terms where we are going in relation to the amendments that we have to set down. We believe there should be a single procedure for these control orders, the principle of which we have accepted for some time as your Lordships know. That single procedure should be that an application is made by the Secretary of State to a court and that a judge should decide the matter on the merits.
It is not enough that the matter should be placed in the hands of the court, as the noble and learned Lord, Lord Ackner, pointed out today. It is important that the judge has a proper hearing and, in addition to the matter being put before a judge in a court, there should be due process. For example, the defendant or suspect should know the nature of the case against him and the nature of the evidence, and he and his counsel should have the opportunity to reply to that case. If that does not happen, a judge becomes—as the noble and learned Lord, Lord Ackner, put it—simply a rubber stamp of a decision that has been taken by a member of the executive. We hope as a House—I adopt the

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comments at Second Reading of the noble Lord, Lord Brennan, that this is not just a matter for us on these Benches—that when the Bill goes back at the end of the day, the basic principle will be underlined that it is a court that deprives people of liberty—or restricts it—and that it does so with a judicial hearing where there is due process.
I hope your Lordships will forgive me, but to illustrate this a little, last Sunday I was sitting in a restaurant on the Île de la Cité in Paris, celebrating the greatest victory of the Welsh over the French since the battle of Agincourt. I was reminded of the Terror in the French revolutionary times. Your Lordships may recall that in a period of about nine months in 1793–94, some 20,000 people were taken before a judge. They were not allowed to say anything in their defence; they were declared to be enemies of the state. The judge pronounced that they be executed, and they duly were the following day. The prosecuting authority was called the Committee of Public Safety, and that has a ring about it today when we consider that everything is being done in the name of public safety and public security. It is not just enough to have a judge sitting in a court; he has to be able to make a decision.
Amendment No. 2, grouped with Amendment No. 4, is to bring together the different types of control orders—we shall be saying in due course that we do not accept the principle of a derogating control order anyway—with a single procedure that enables the court to make the decision, and not the Secretary of State. Of course we shall later address your Lordships on due process and on the matters that are required to be amended in the schedule to the Bill. I hope that all of us—I include the whole Committee apart from the Front Benches, who are sitting in their trenches with no man's land in between—will see that due process is not contained in the schedule. I beg to move.
Lord Kingsland: Before others of your Lordships intervene in this most important stage of the debate, perhaps I can also set in context our approach to these amendments.
We start off from the position that it is vital that every effort is made to engage the criminal process when someone is detained. We believe, in particular, that the DPP should be brought in at an earlier stage to consider actively and urgently whether the criminal courts are the most appropriate forum to deal with the matter for which the potential controlled person was restrained. It is only after that exercise has been completed, and it is found that it is not possible to bring criminal proceedings, that we believe the control order system should bite—so the orders are at the end of the process, not the beginning.
As far as the control orders themselves are concerned, we agree with the noble Lord, Lord Thomas of Gresford, that there should be a single procedure for both derogating and non-derogating orders. That is not only the most obviously logical approach, but also the most practical. Often the Secretary of State will not know in advance whether the order he has imposed will be
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derogating. There is a range of permutations of restraints that might be in place. Some of them will amount to a derogation requirement, others will not.
If the Secretary of State has misjudged the situation, and believes the controls he wants to impose are non-derogating, the matter will be reviewed in due course by a judge who might decide differently. In those circumstances the procedures will have to start all over again, this time under the derogation procedure.
In my submission, for practical as well as logical reasons, it is desirable to have a single procedure under which the Secretary of State applies to the court. Plainly, the first thing the court will have to do is decide whether the cocktail of measures that are proposed to restrain the party amounts to a derogating situation.
Baroness Hayman: I am grateful to the noble Lord for giving way. Could he clarify whether the logic of that position is that there would have to be an immediate application for a derogation? If he is suggesting that the same process has to be gone through for both, because some combination of what are considered non-derogating orders might in fact be derogating, it would be impossible within his terms of practicality to deal with the situation unless we immediately had a derogation. That is a situation that many of us would like to avoid.
Lord Kingsland: The noble Baroness makes an important point. At the time the Secretary of State either, under the Government's plan, makes the order, or, under our and the Liberal Democrats' plan, makes an application to the court, he cannot know for certain whether the order for which he is applying will he derogating or non-derogating, because, in the last resort, that is a matter for the courts. Only the courts can decide whether Article 5 is breached. Thus, there is a built-in situation of uncertainty in both the Government's solution and ours, unless it is accepted right at the beginning that any order is potentially capable of being a derogating order.
The third and final part of our approach to the Bill is the importance of due process. In terms of the fundamental liberties in our country, simply exchanging a judge for the Secretary of State will get us nowhere at all. If the draconian measures on due process in the Bill are not radically changed, the judge will merely become the creature of the Executive. The judge and the due process rules go together.
I was relieved to hear the noble and learned Lord say he accepted that Article 6 applied. In his exchange with the noble and learned Lord, Lord Lloyd, there was a suggestion that it was only the civil rights portion of Article 6 he thought would hold sway in these circumstances. Does he not agree with me, however, that certain permutations of the penalties set out at the moment in Clause 1 could, under the jurisprudence of the European Court of Human Rights, in fact amount to criminal, and not civil, penalties? If I am right about that, the full text of Article 6 will come into play in all its glory. The Government will then be faced with the kind of issues raised by the amendments of my noble friend Lord Carlisle of Bucklow about the appropriate burden of proof.

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I have set out my stall on behalf of the Opposition. I hope that will help simplify matters as we go through the amendments.
12.45 p.m.
Lord Carlile of Berriew: I declare my interest as the current independent reviewer of the detention provisions under Part 4 of the 2001 Act. From that viewpoint, I thought it wrong to intervene at Second Reading of the Bill. However, it may be of assistance to the Committee if, without expressing any opinion on the merits of the amendments, I make a few comments in the form of questions.
My starting point is that there is undoubtedly a serious and immediate threat of widespread harm to the public arising from the actions of Al'Qaeda-connected terrorists. Perhaps I could add a sentence to that. Al'Qaeda-connected terrorists are different from anything we have ever experienced, and every step they take is more different. They do not have a command structure. They are a disparate co-fraternity rather than any kind of formal confederation, which makes the threat all the greater.
Something has to be done. Some effective measure has to be found to replace the detention provisions, following the decision of the Law Lords on 16 December. My role as independent reviewer is not to review the merits of the provisions, but their working. The comments I will now make relate to that working. I have five points to make, if the Committee will bear with me.
First, I invite the noble and learned Lord the Lord Chancellor to comment on the standard of proof required before any form of control order is made. I dealt with this, perhaps slightly elliptically, in a report published last week, which I produced as independent reviewer of the detention provisions. One of the issues that has caused difficulty on all sides of the Committee, and elsewhere, is the provision for merely reasonable grounds for suspecting as the basis for control orders, and indeed for detentions.
In my report I drew an analogy between the situation we are considering now and the position faced by the managing director of a company researching into pharmaceuticals using animal experimentation. Such a person would be able to obtain a civil injunction from the courts if he was able to show, on the balance of probabilities, that a person or group of persons was posing a serious threat to his safety, or that of those associated with him. Such a civil injunction could have a number of conditions attached to it, including a penal sanction, if those who were enjoined failed to obey that injunction.
I wonder what harm would be done, and what disadvantage there would be, if a balance of probabilities test were applied to all control orders. From the workability point of view, which is my viewpoint, it is arguable that if the Secretary of State made a control order against an individual because, on the balance of probabilities, he was satisfied that the individual was or had been involved in terrorism-related activity—and here I am looking at what is now Amendment No. 55,
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mentioned earlier by the noble and learned Lord the Lord Chancellor—there would be no disadvantage to the Government, the control authorities or the protection of the public. My first point concerns a better working standard of proof.
My second point concerns the involvement of the judiciary. I listened with great care to the remarks made during the Second Reading debate on Tuesday by the noble and learned Lord, Lord Donaldson of Lymington, which may have been reflected, to some extent, in what was said by the noble and learned Lord, Lord Ackner, earlier today. Although I have carried out no formal consultation, I have a sense that senior judges are anxious about being placed in what is, in reality, the role of a Minister. I understood that to be the burden of what was said by the noble and learned Lord, Lord Donaldson, on Tuesday. I sense that to be a real concern with which I have some sympathy.
The Supreme Court is now to be called the Senior Court, which is perhaps an ugly but more accurate expression of what it is. Of course, the Supreme Court or the Senior Court is a court of record. I believe that there is a distinction to be drawn intellectually and accurately between a superior court of record and a court that is not a court of record.
If control orders are to exist, one must recognise that there may be emergencies that could not be brought before a court immediately as it simply would not be practical so to do. I hope one can accept that there is a necessity to deal with emergencies, but I shall leave those out of the equation for the moment.
Would it be workable for a court which is not a court of record to be involved at a very early stage? I refer to those district judges at Bow Street magistrates' court who, on an everyday basis, if necessary, and at 24 hours-a-day availability, already deal with extensions under the Terrorism Act 2000. If someone is arrested under that Act and taken, say, to Paddington Green Police Station, and if the police, advised by the CPS, believe that 48 hours is an insufficient period of detention, they can apply for an extension and now if they believe that seven days is an insufficient amount of time, they can apply for an extension to 14 days. That matter was debated in this House some time ago.
Such applications go before district judges, led by the chief magistrate at Bow Street. They are a small cadre of district judges who are very experienced in such matters and who understand the whole terrorism penumbra. Would it not be practicable and would it not make these provisions work better if applications for all forms of control order were brought before a district judge at Bow Street, or other suitably ticketed district judges, at the earliest possible stage—possibly before the order is made if there is time—so that they could be considered by an examining magistrate—a term I use advisedly?
I believe that that would link well with one of the recommendations made by the Newton committee which expressed a desire to have something more like the continental system in this country. I do not favour that because I believe that we would be throwing out the baby

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with the bathwater. But there is an element of what the Newton committee said in this, as the suggestion I have just made would result in a workable system.
Lord Lloyd of Berwick: I am very grateful to the noble Lord for giving way. Is there not all the difference in the world between an extension of time granted by a magistrate or district judge and indefinite detention as proposed in this Bill?
Lord Carlile of Berriew: Yes, I understand and I anticipated that that point might be made, which brings me to my next point. If the application were made to the district judge in what is not a court of record, would providing an immediate right of appeal to a superior court of record be workable? It seems to me that a High Court judge would exercise a normal, legitimate judicial function, and not the function of a Minister. For that to be successful, I would very respectfully suggest to the Lord Chancellor and to the Government that one might consider removing this perhaps slightly illusory distinction between judicial review and a review on the merits.
When I was first called to the Bar and possibly even when the noble and learned Lord, who is a little younger than me, was called to the Bar, judicial review was granted only on Wednesbury unreasonableness principles—one was looking for perversity—but things have changed an enormous amount. Nowadays one looks at proportionality, which inevitably involves an examination of the facts.
Therefore, I pose the question: what would be lost by allowing the superior court of record, exercising its proper non-executive function, to consider the merits as part of an automatic right of appeal? Rules of court, I hope supervised by the court itself, could be set out with the effect that cases would be brought before the court very quickly.
The Earl of Onslow: Perhaps the noble Lord would give way and help me to understand this point. Am I to understand that, in effect, he proposes that a Bow Street magistrate signs a warrant to detain a gentleman who then goes before a judge in a superior court of record who carries out the trial? For those of us who do not like the present provisions, that is much nearer to what we would like.
Lord Carlile of Berriew: I am suggesting something that is possibly better than the noble Earl has suggested: that the examining magistrate should hear the application—it may be ex parte—which would involve some examination of what one might call either information or evidence. I believe that we all recognise that in such cases it might have to be a hybrid. There are difficulties with the way in which evidence is presented in terrorism cases. But, yes, there would be an examination on the merits, with an automatic right of appeal in which, as I have said, a High Court judge would perform the usual function for which he is appointed, without his independence being undermined in the way feared by the noble and learned Lord, Lord Donaldson of Lymington.
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I do not want to speak repeatedly in the debates on this Bill, so I hope I shall be forgiven for raising this point now. In relation to the special advocates, who are dealt with in the schedule to the Bill, I hope that the Government will accept that currently there are some deficiencies, with which I have dealt in my most recent report, that have made it difficult for special advocates to function to full effect. Having examined a lot of material, including closed material, I am unequivocally of the view that some of the special advocates have been extremely effective. They have been able to carry out their jobs properly, as some cases show beyond any doubt.
However, the atmosphere in which the special advocates work, particularly their difficulty in obtaining full instructions and in being able to have appropriate contact with the people whose interests they represent, is in need of reform. I also suggest to the Government that perhaps a rather larger number of people should be on the list of potential special advocates and that they should now include, with great deference to those brilliant administrative lawyers who have been very good special advocates up to now, a substantial body of people experienced in analysing criminal evidence who may, on a daily and professional basis, be better suited to the function.
I hope that those are useful suggestions to the Committee. If the concerns that I have expressed could be met, I believe that whoever is the reviewer of these new provisions would be looking at something more workable than what is at present set out in the Bill.
Lord Ackner: I have one simple question. Reference has been made to the anxiety of senior judges and to the need for due process. Has there been any form of consultation or communication between the Lord Chief Justice and/or the senior Law Lord on this subject? If there has been communication, what was the substance of the interchange? If there has been no communication, why is that and can thought be given to instituting that now?
1 p.m.
The Earl of Onslow: The point made by the noble Baroness, Lady Hayman, during the speech of my noble friend Lord Kingsland strikes me as extremely important. From what I have heard, the moment a non-derogating order goes in front of my learned friends, they will find that they are in breach the European Convention on Human Rights. So the Government will be back slap in the middle of the same difficulty in which they now find themselves, if they do not accept something along the lines of the Liberal Democrat proposal.
I hope the noble and learned Lord the Lord Chancellor can convince us otherwise. I sincerely hope that this is all produced under one heading, that the person has a proper trial and that the amount of time for which they are incarcerated is defined.
I also suggest to your Lordships that being told that one cannot use one's mobile telephone, or go to work, or that one has to stay at home overnight or cannot travel outside a radius of three miles, or whatever the

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border may be, are deprivations of liberty. Everybody else can do that—unless they have not paid their telephone bill, which is different.
We, however, can use a telephone. We can travel where we like. The passport says "without let or hindrance". People should be allowed to travel without let or hindrance unless they have done something wrong and been convicted by a court. That is the fundamental core of what we are talking about.
If the Liberal Democrat proposal is accepted, the corollary is that a lot more has to be derogated, and we go even further down what I would genuinely and realistically call the tyrannical road. That is why we have got to improve this Bill even more than has it has been. Unless we have a proper trial system involved, the Government are going to find themselves in exactly the same muddle that they are in at the moment.
Lord Desai: I raise a point of procedure. As far as I am aware, the noble and learned Lord, Lord Donaldson of Lymington, has not yet moved his amendment, and every other group has been moved. Should we not proceed on to substantial discussions after that amendment has been moved?
Lord Carlisle of Bucklow: I must confess that I am equally confused about the situation, and what we are actually debating. I am reminded of the judge—whose name escapes me, but the noble and learned Lord the Lord Chancellor will remember it—who once said to F E Smith, having heard his argument, "Mr Smith, I am none the wiser". To which F E Smith replied, "Your Lordship is none the wiser, but at least you are better informed". I feel I am better informed as a result of the speech of the noble and learned Lord the Lord Chancellor, but I am none the wiser as to where we really are.
If I understand it correctly, we are all having a Second Reading heart-bearing session, where we say where we stand personally on the basis of amendments we have tabled. I was grateful to hear that my noble friend Lord Kingsland had been kind enough to add his name to an amendment I tabled, which starts the procedure at an earlier stage. Rather than leaving it to the Secretary of State on his own volition to choose to make an order, it must be on an application by, I suggested, the Director of Public Prosecutions. The Director of Public Prosecutions can make that application only if he is satisfied that it is not possible for the person to be tried in the normal way. I think we all agree that, where possible, people should be tried in the normal way in the courts of this country. The powers that we are giving in this Bill should be used only in exceptional cases.
The purpose of my Amendments Nos. 8 and 11 is to say that the Director of Public Prosecutions should be required to satisfy himself that the man is not able to face a fair trail before he makes an application for such an order to the Secretary of State.
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The other matter, which is covered in amendments that I have tabled to Clause 2, is that it is surely right that the control orders, whether derogating or non-derogating orders, should be treated in the same way by the courts. I was surprised to hear the noble and learned Lord the Lord Chancellor imply that an order that merely consisted of a curfew would be a non-derogating order. Surely any form of curfew, any form of order which required a person to live in a particular place or not to do a particular kind of work and all the various matters set out in the first clause of this Bill, are interferences with that individual's liberty. The noble and learned Lord the Lord Chancellor may therefore find that Article 5 goes far wider than the impression that has been given, that you need a derogating order only in a case in which a person is being locked up for ever.
There is therefore an argument to be advanced that derogating and non-derogating cases—if they are to be included—should go before the courts in the same way.
My final point, which has not yet been mentioned, is about the burden of proof. Currently, the Secretary of State merely has to have,
"reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".
That seems to be far too weak.
With great respect, the Bill should make it clear on the face of it that the burden of proof rests upon the Secretary of State to make out his case for an order. I have suggested that it should be as high as the criminal burden of proof, although I appreciate that an alternative has been put down that it should be on the balance of probabilities. Having "reasonable grounds for suspecting" are not adequate grounds for the Home Secretary to act in a way which would lead to the person losing his liberty. The phrase should be either "satisfied beyond a reasonable doubt", as I have suggested, or, at the very least, "on the balance of probability". That also applies to the later clause, which deals with the derogation orders made by the Home Secretary.
Listening to my namesake, the noble Lord, Lord Carlile of Berriew, I believe there is a real possibility that we could get a good deal more agreement in this Committee on these matters than appeared possible some time ago. It requires reflection, thought and the Government to give on various issues of principle which still remain.
Lord Donaldson of Lymington: I speak to Amendment No. 6, which is included in the group. The Government have put forward a whole range of amendments, as the noble Baroness, Lady Scotland of Asthal, said in a letter which we have all received. Fourteen of the amendments stem from the Government's decision that these orders shall be made by the judge. If something could be produced which achieves the Government's objective but does not involve the court in that way, surely that would be better.
Amendment No. 6 is designed to bring a third way before your Lordships for our consideration. It is currently suggested that the Secretary of State should

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have complete freedom, so far as the courts are concerned, in making a non-derogating order in whatever terms he likes. On the derogating orders the provision suggests that he shall not make the order at all, that the judge should make it. The various reasons why that was necessary were expressed in the other place—you did not want a politically-minded Home Secretary to do this, that, or the other. I say nothing about that; that is not my role.
I do say that there is a third way. You can provide that the Secretary of State cannot make any order unless he has the leave of the court. The traditional function of a court is to protect the individual from wrong action by the Executive. That would meet entirely the result which the Government seek.
That is the conventional way. This provision under which a court will make an executive order is, as far as I know, totally unique in the annals of the courts. There are plenty of examples—no doubt we shall hear them—where people make ex parte applications for restraining orders in one form or another. The classic example is where a party to a litigation fears that if he wins there will not be any money to satisfy the court's judgment. So he goes to the court on an interlocutory application—ex parte because once defendants know what is up the money might vanish—and says, "I want this order".
The judge makes that order, but it is an umpire's order. It is making certain that the ultimate order—the judgment—can have some meaning. But that is not a player's order, it is a judgment. You will find that every one of those cases—I do not know whether they are ex parte—with applications for interlocutory orders, in the sense that they have not reached the end of the case, is designed to maintain a level playing field; to make sure that the court's ultimate judgment is successful; or to point to the order in which matters are to be dealt with—a summons for directions in effect.
I most earnestly suggest to the Committee that this is a better way, which meets the Government's objectives, does not do violence to the position of judges and is the conventional way of doing it. I do not understand at the moment why you cannot do it in that way. It would apparently save an enormous number of government amendments—but I do not put it forward on that ground alone, although it is a good idea. I hope the Government will explain why we cannot do it in that way. They probably will want a little time to think about it, but at some stage I hope that we will hear from them on that point.
Lord Wedderburn of Charlton: As noble Lords have pointed out, many of the proposals are based on the fact that you would know whether you are in Article 5 territory and that the necessary derogation may not be made in time for it to work. But, surely, the matter does not concern just Article 5. The noble Lord, Lord Carlile of Berriew, on the Liberal Democrat Benches, gave us a report a long time ago, which pointed out that some obligations imposed by the Home Secretary from the list on page 2 of the Bill may
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also amount to the termination of a civil right. Article 6 surely demands a fair trial on the deprivation of a civil right.
I have had conversations with noble Lords who seem to think that it is a weird idea that the liquorice allsorts list on page 2 could have a selection for an application for a control order, of whatever kind, restricting the liberty of the controlled person and not depriving him of it.
Even if one found that very difficult line with certainty, the list of controls that can be imposed from the liquorice allsorts list is so extensive that some civil rights are bound to be in jeopardy. If so, Article 6 demands a fair trial with all the jurisprudence that that entails in the European Court at Strasbourg.
Although the Government refer to Article 5 in their papers, including those from the Secretary of State by way of a copy of his letter to Mr Davis and the odd note that came with it, which is unsigned but which I take to be his as well, and in their list, I do not understand why they refer only to Articles 8, 10 and 11, which provide for exceptions in cases determined by law.
1.15 p.m.
Why did the Government not address Article 6? Why did my noble and learned friend the Lord Chancellor not refer the Committee to Article 6? And why is there not a huge risk in virtually any effective order being made up of bits taken from Clause 1(3)? With respect to the noble Lord, Lord Carlisle of Bucklow, on the other Benches, who knows much more about the matter than I, this involves questions of burden of proof.
The Government used to think that it involved questions of burden of proof because they have had three goes at dealing with the point. First, the Secretary of State was to make the order on a very slender basis as far as concerns burden of proof; secondly, they quoted, in the note that came with the Secretary of State's letter, a dictum—or they thought more than a dictum—to the effect that burden of proof was not really the way to look at it with all risk assessment. They said that that was in the speech of the noble and learned Lord, Lord Hope, in the Rehman case. I was puzzled. I thought I must have missed it because the noble and learned Lord, Lord Hope, did not sit in the Rehman case. So I had to read it all again.
This is an official government document with many weeks of preparation. The passage is from the speech of the noble and learned Lord, Lord Hoffmann. That is very significant. It is not a technicality, because not every member who sat in the Rehman case agreed with the approach of the noble and learned Lord, Lord Hoffmann. Indeed, the Government have sometimes had difficulty with the approach of the noble and learned Lord, Lord Hoffmann, to these matters.
One might have thought the Government would be careful about that, especially because the noble and learned Lord, Lord Steyn, was sitting on the Rehman case. He deliberately and carefully set out in a lecture in

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Belfast last November the reasons why he disagreed with the whole approach of the noble and learned Lord, Lord Hoffmann. Indeed, towards the end of that lecture to the Judicial Studies Board, he observed that some people found it strange that both he and the noble and learned Lord, Lord Hoffmann, came to the same result in Rehman, so different are their approaches.
So, the Government quoted a dictum from the noble and learned Lord, Lord Hope, who did not sit on the case. They then omitted to notice that the dictum made by the noble and learned Lord, Lord Hoffmann, had been subjected not merely to academic commentary—I know that does not help much in some quarters—but had been put in doubt by the noble and learned Lord, Lord Steyn. Why was that not disclosed to people who do not regularly read the relevant law journals and law reports?
That was the second tack that the Government had. They now seem to have gone off the burden of proof, although they are moving a later amendment to remove the word "burden", which makes the clauses they are trying to amend very strange indeed. However, we can deal with that later. It comes down to reasonable grounds for the application. It seems to me from the speeches made that we are getting very near to an agreement that the civil burden of proof is going to dominate in this process. At least that is an advance. But it certainly does not solve all the problems which I especially mentioned of knowing whether you are in Article 5 territory; and, whether or not you are, whether Article 6 is brought into play. What is the answer to those moving amendments on that?
Lord Lloyd of Berwick: I have very great difficulty in knowing whether to oppose or support the main government amendment, for the simple reason that I am against control orders altogether. I am against the Bill as it stands, as I do not find it acceptable that the Secretary of State should deprive a British citizen—or indeed anyone within the jurisdiction—of his liberty without a trial, as proposed in Clause 2. I find it equally unacceptable that he should be able to restrict the liberty of a British citizen without a trial as proposed in Clause 1.
On that basic point I find myself substantially in agreement with the views expressed from the government Back Benches in the other place. I read those speeches with admiration and I entirely agreed with them. But someone seems to have had the bright idea—it might have come from the Liberal Democrat Benches in the other place—that it might improve things to substitute a judge for a Secretary of State. The Secretary of State himself jumped at the idea, although he said that it was against his better judgment, in the hope—one imagines—that it might have enabled the Government to get the Bill through this House.
One has to balance those two alternatives. I have come to the conclusion, odd though it may seem, that the Secretary of State's first thoughts were best—or perhaps I should say better. I accept of course that it looks better for a judge to make that sort of order, but that is a purely
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cosmetic point. It has been taken up widely in the press but what it would mean has not been fully understood. It would place judges in an awkward and exposed position for all the reasons mentioned first by the noble and learned Lord, Lord Mayhew of Twysden, and since by many others including my noble and learned friend Lord Donaldson.
That is something we should not do; indeed, it is our duty in this House to ensure that judges are not exposed to a political backlash, as they would be if the orders were made by judges in the first place. They have never been asked to do such a thing before: judges have never deprived anyone of their liberty without the prior verdict of a jury. They have certainly never done so, as is now proposed, in civil proceedings on a balance of probabilities and without a fair trial in accordance with article 6 of the convention. That is my difficulty. On the whole, I come down in favour of the Government's original thoughts rather than this alternative put forward at the last moment.
Lord Mayhew of Twysden: The noble and learned Lord, Lord Lloyd, was kind enough to mention that when the Statement was made on 22 February I drew attention to the danger that I saw in the constitutional standing of the judges if the Bill was to proceed, conferring on the judges the jurisdiction to make an order in the case of derogating orders. From everything that I have heard and considered since, the danger seems substantial.
It is extremely important that we pay attention to the issue, although it may seem ancillary. It has attracted far more influential and respectable support than mine. I simply wish to add that because today judges in the exercise of the jurisdiction of judicial review are drawn into matters of political sensitivity without in the slightest degree being required to make political judgments, it is all the more important that their standing in the public eye should be preserved as impartial and non-partisan in political or any other terms.
That is why I support Amendment No. 6 in the name of the noble and learned Lord, Lord Donaldson. It has the clever and elegant virtue of preserving the judge's proper function; namely, to consider whether the procedural matters that Parliament has laid down have been complied with, so that leave may be given to the Secretary of State to make the order, thus preserving the judge from being seen to make an executive order, especially one that leads to detention.
Baroness Kennedy of The Shaws: I want to reiterate something I said at Second Reading. I agree with the noble and learned Lord, Lord Lloyd. Some members of opposition parties in seeking to be conciliatory and not to look as though they were being soft on the issue came up with the idea of having the judges replace the Secretary of State. It has the serious risk of tainting our judiciary. I strongly urge that the Committee does not go down that route.
The independence of the judiciary is something to be protected; it is precious to us. I foresee that this is a form of co-option. With the best will, judges will end

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up being undermined in the public eye if they end up playing that role. We find it unacceptable if performed by a politician and it will become unacceptable if it is performed also by a judge.
We must go back to the argument that somehow something incredibly different is taking place here. Intelligence has always been a starting point in terrorist cases. In many of the Irish Troubles cases in which I was involved, the starting point would be intelligence that said someone was involved in an active service unit, they had disappeared from their home, it looked as though they were going to Britain and would be likely to be involved in a bombing campaign.
At that point the police would go into overdrive with the security services as back-up. There would be intensive surveillance of the person, looking at who they were meeting and greeting and who they were with. That would be followed up ultimately with arrest and interrogation but also the forensic work carried out to gather evidence.
Noble Lords on these Benches have said that this issue is about globalisation and that it is on a different level: so too is our policing and intelligence. The very things used by terrorists internationally—mobile phones, computers, e-mail and so on—are an invaluable resource to the police in obtaining evidence against those people. If we were told, based on the information of an informant, that someone was involved with Al'Qaeda and might be planning activity in Britain that would endanger people's lives, we would immediately arrest that person.
But if we found that we could not come up with any other evidence to support that intelligence, it could be that that intelligence was duff; that it was not good intelligence. I have heard it said by former Cabinet Ministers, from the noble and learned Lord, Lord Howe, through to many others, that intelligence is straws in the wind, and that is how we approach it.
The problem is that I can sympathise with those who are policing: you keep someone in custody for up to 14 days during which time you seek to gather evidence and contact police in other countries. If after 14 days of carrying out all that intensive work with the great resources we have in our policing you come up with nothing else, under the current legislation— the Terrorism Act 2000—you are unable to detain suspects beyond that period. I can understand the frustration at that point and that you might want some other order to come into place then, but it has to be time limited.
What should come into place at that point is surveillance: you neutralise the person if you still suspect that they might be involved in something, but you do not by official sanctioning invade that person's liberty. Those problems are being faced by countries around the world. Some of them are undemocratic and lock people up—we see it happening in places that we would not respect or admire—but other places with decent systems do precisely that.
I sat on an international task force on terrorism set up by the International Bar Association which had a number of leading judges from around the world. It was headed by Justice Goldstone from the Constitutional
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Court of South Africa. At the end the acceptance of the idea that when we take away people's liberty it becomes punishment was clear. Unless it is for a limited period of time, it turns into punishment. The only people who should punish should be the judges after a trial process.
That is what the noble and learned Lord, Lord Lloyd, is saying. We hold dear the fact that we cannot punish people unless we have a due process and the high standard of proof that has been part of our tradition. That is for good reason, because otherwise we surrender liberties that are really important.
People suggested at Second Reading that we are being supine and are expected to do nothing apart from put people on trial. No—you can neutralise people by the use of very good surveillance and by other means but you should not be taking people's liberty away without a clue process. That is why this whole process is wrong and what the Secretary of State is seeking is unacceptable.
Lord Judd: Before my noble friend sits down. will she respond to one point? I find her argument extremely persuasive. But does she agree that we are in danger in our deliberations of looking at this from a very legalistic point of view? As the noble Lord, Lord Carlile of Berriew, has reminded us, we are dealing with a very sinister and dangerous threat. To be able to deal with that effectively, the battle for hearts and minds is crucial. What has always been central to the layman in our legal system—and I speak as a layman—is that justice is seen to be done. That is why due process and the balance of probabilities are so important.
We cannot simply look at this from the perspective of noble Lords in this House. We have to look at it from the perspective of a young member of the Islamic community in Bradford. subject to a lot of pressure and manipulation, who needs to be able to turn to a clear, convincing illustration that justice is being pursued as we have always understood it to be pursued in this country. Does my noble friend agree that that relates to her argument?
Noble Lords: Order!
Baroness Kennedy of The Shaws: I think that we would all agree on that. I chaired a meeting only recently of the Islamic Human Rights Commission, which was packed with young members of the Muslim community who feel that they are being targeted. Whatever good words are said on Front Benches about this not being a direct assault upon certain communities, that is how it is being perceived and felt. It is perceptions of injustice that lead to terrorism and support for terrorism.
I accept entirely that there are problems with an organisation such as Al'Qaeda, as the noble Lord, Lord Carlile, said, which is not like other organisations with a command structure. Conspiracy charges can be difficult because an isolated young man in Slough could decide that he will take part in a suicide bombing without reference to any other leadership but simply because he agrees with bin Laden. However, the way to deal with

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that is to introduce the charge of acts preparatory, as the noble and learned Lord, Lord Lloyd, suggested. There are other methods for dealing with this within the structure that we know and respect and which are tried and true. That is where, I am afraid, the Government are getting this wrong. They are not sticking to the principles that we know work.
Lord Bassam of Brighton: My Lords, I beg to move that debate on Amendment No. 2 be adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House be resumed. In moving the Motion, I suggest that the Committee stage begin again not before 2.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Child Benefit Bill
1.34 p.m.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I beg to move that this Bill be now read a second time.
I am very pleased to have the opportunity today to introduce the Child Benefit Bill to the House. It is very short, but it paves the way for significant improvements in the financial support available for young people who continue in education and training beyond the age of 16.
Before I explain the detail of the Bill, I think it would be useful if I began by setting it in the context of the Government's commitment to ensure that all young people reach the age of 19 ready for higher education or skilled employment, regardless of their background.
Reaching the age of 16 is, of course, a major milestone in the transition from childhood to adult life, not least because it marks the end of compulsory education. At this point, young people, for the first time in their lives, have the freedom to choose what to do with their days. The choices they make are of great importance in shaping their future life chances and opportunities. Opting to continue in learning to develop further skills and qualifications brings many benefits to the individual. All the evidence shows that the level of educational achievement is linked to future success in the labour market, and that basic skills and level 2 qualifications in particular are key to preventing social exclusion.
What young people do matters a great deal to the country as a whole because it directly determines the level of skills flowing into the labour market. Raising the participation of young people in education and training is essential to meet the demand for skills in a dynamic, modern economy such as the United Kingdom. By 2010, it is forecast that 80 per cent of new
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jobs will require high and intermediate levels of qualifications and that 95 per cent will require at least a level 2 qualification.
The Government are committed to supporting post-16 choices, ensuring that all young people reach the age of 19 ready for higher education or skilled employment. We have much more to do to reach this objective. We have increased the number of young people participating in education and training after the age of 16 but a quarter of 15 to 19 year-olds are still not in formal learning. The UK compares badly internationally in this respect: we currently lie 25th out of 30 OECD countries for participation in education at age 17. That goes a long way to explaining the skills gap in this country. More than 30 per cent of UK workers—about 7.8 million people—have low skills, compared with less than 20 per cent in Germany and 15 per cent in the United States.
The Government are determined to reverse the historic failures in the education system which have caused this skills shortage. We have made much progress since 1997, with pupils now getting the best ever results from primary through to GCSE and A-levels. But some historic weaknesses still remain, particularly in the post-16 phase. Over the next 10 years, we want to raise our post-16 participation to match the best in the OECD, increasing it from 75 per cent to at least 90 per cent at age 17.
Our strategy to achieve this has three strands. First, as set out in the 14 to 19 education and skills White Paper published last week, the Government are reforming the curriculum structure in Britain to make it more flexible, rewarding and engaging. However, I shall not repeat the arguments which have already been put forward on that issue.
Our second strand, designed to underpin these curriculum and training reforms, is to strengthen the advice, guidance and support we offer young people to ensure they are able to make informed choices about the range of learning options and opportunities.
The third and final element of the Government's strategy is to remove the financial barriers to learning. The Chancellor announced in Budget 2003 that the Government would review financial support for 16 to 19 year-olds, with the aim of delivering a more accessible system which provides every young person with the support and incentive they need to participate in education or training. The review sought to build on the success of the educational maintenance allowance pilots which have demonstrated the important role of financial support in delivering higher rates of post-16 participation. It was rolled out nationally for 16 year-olds in September last year, with a framework of rights and responsibilities for young people who decide to stay on at school and college.
The review of financial support for 16 to 19 year-olds sought to find ways in which the principle could be extended to other groups of young people to ensure that all individuals are supported and encouraged to make the most of their potential. The initial findings and proposals of the review were set out in the report, Supporting Young People To Achieve, which was

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published alongside last year's Budget. The evidence collected during the review indicated that the complexity and anomalies in the current system of financial support create major barriers to learning for some young people, particularly the most vulnerable. To remove those obstacles, the review proposed a long-term vision of a single, coherent system of financial support, designed to engage young people and support their post-16 choices and transitions. The consultation with young people, parents, voluntary sector organisations and employers has demonstrated strong support for that approach. The Government will respond to that consultation and setting out the next steps in the Budget on 16 March.
In addition to these radical, long-term proposals, the review identified two specific, short-term measures to tackle some of the worst distortions in the current system. The first aims to support young people's choices between classroom-based and work-based learning by creating a level playing field in the financial support available for both.
About three-quarters of young people at 16 choose to continue in full-time education at school or college, and a further 10 per cent enter waged apprenticeships with an employer. But some young people, particularly the most disadvantaged, may not be ready or willing to enter structured learning. They may need basic skills training such as the Entry to Employment programme in England provides. At the moment, what activity an individual decides to pursue at 16 determines the financial support to which they are entitled. If they continue in education at school or college, a very generous package of child benefit and child tax credit is paid to their parents, and educational maintenance allowance is paid directly to them. That can total around £75 a week for a low-income family, depending on household circumstances.
Some young people prefer to continue learning in the workplace; for example, through an apprenticeship programme. Most apprentices do not need financial support from the Government because they are based—
Lord Higgins: My Lords, I did not quite catch what the Minister said was "paid directly to them". I presume he means the "child".
Lord McIntosh of Haringey: My Lords, the educational maintenance allowance is paid directly to them, in addition to the child benefit and child tax credit paid to the parents.
Most apprentices do not need financial support because they are based with an employer who pays their wage. The review recommended that all employer-based apprentices should be paid a weekly wage of at least £70 to £80.
Some young people in some occupations may need preparatory training before they are ready to proceed to a waged apprenticeship. For example, they may need to acquire basic skills or develop personal and social competencies, particularly if they have been disengaged from mainstream education. The Learning and Skills Council for England and the devolved
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administrations therefore fund and manage unwaged training places for such young people. An example of this is the Entry to Employment programme in England, which is delivered on behalf of the Learning and Skills Council by local training providers such as voluntary organisations.
This is why I call the Bill the Padraig Harrington Bill. My wife is the chair of a charity in north London called the Harington Scheme. It provides horticultural training for young people with learning disabilities. They are exactly the kind of people for whom this programme is designed, because they are simply not able to stay in school or college and they are not able to get paid jobs. The charity, with the support of the Learning and Skills Council, provides horticultural training. Fifty per cent of the trainees land up in jobs at the end, and the others are able to join a scheme where assisted work is available for them. The problem which that scheme addresses is that those who are aged 16 to 19 simply do not have the support that they would enjoy if they had stayed in school or college. That is what this Bill is designed to correct.
At the moment, young people who want to pursue an unwaged training programme such as the Harington Scheme are entitled only to a minimum training allowance of £40 a week. The difference between the financial support available for that form of learning and the generous package available for those who stay at school or college distorts the choices of young people. Together, child benefit and child tax credit make up an important stream of income for a young person's family. The loss of that money may mean that some low-income parents are no longer able to support their child. The young person may be forced into a course at college— if he can get in—that may be inappropriate for him, rather than join a course with a training provider because of the additional financial support available. He may end up dropping out of learning altogether if the course does not suit him.
We believe that young people should be able to choose their learning route, rather than making a decision based on the amount of financial support available to them. That is why the Bill is important. It is the first step in removing the distinction between education and unwaged training in the financial support system. The changes will strengthen young people's choices between learning in the classroom and the workplace. They will bring about additional investment in financial support for unwaged trainees of around £100 million a year, delivering more money for tens of thousands of young learners, especially those from low-income families who are unable to live in the family home.
The second damaging anomaly that the Child Benefit Bill will enable us to remove is the automatic cut-off in financial support at the age of 19. The current rules are based on the assumption that post-16 participation consists of two years of A-level study at school or college, completed before the 19th birthday. That model of post-16 education does not match the pathways and experiences of many young people who continue in learning today. Each year, thousands of young people reach the age of 19 while still studying

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for non-advanced qualifications. Many will be in that situation because their education has been disrupted. Vulnerable groups such as care leavers, young offenders and homeless young people often face challenges that prevent them from completing their non-advanced education before the age of 19.
Under the current rules, child benefit and child tax credit cease on the young person's 19th birthday, irrespective of whether they are studying. Young people from low-income households may be forced to leave their course before achieving their qualification because of the pressures on family finance. The situation is even worse for young people who cannot live in the family home. Their entitlement to income support may cease, and they must instead claim jobseeker's allowance, which requires them to be available for work rather than studying full-time. The loss of income support triggers the loss of housing benefit, making it impossible for those young people to continue on their course without losing their home or running up rent arrears. The personal testimonies which the Government received during the review revealed the distress and frustration caused by those rules. It is a wasted investment for government and young people if they drop out. That is why we are proposing to reform the rules on child benefit, child tax credit and income support so that young people who reach 19 while still studying for non-advanced qualifications are supported until they complete their course, up to an age limit of 20. About 80,000 young people a year will benefit from the measure.
The Child Benefit Bill is the essential first step in implementing these two important reforms. The Bill restructures the existing definition of a "child" in child benefit rules by introducing a separate definition of a "qualifying young person". A "child" will be defined as a person who has not reached the age of 16, so there is absolutely no impact on the universal payment of child benefit for under-16s. The Bill enables the Treasury to lay regulations prescribing the circumstances in which someone aged 16 and over is defined as a "qualifying young person". That replicates the approach that is already used in the legislation for child tax credit, ensuring greater consistency in the criteria for the two streams of support.
The Treasury published draft regulations on 10 January to indicate how it intends to use the powers in the Bill setting out the proposed new entitlement for unwaged trainees and 19 year-olds completing a course. The Government intend to implement these reforms in April 2006, along with the corresponding changes to child tax credit and income support which will be made via separate amending regulations.
It is essential that we equip all our young people with the skills and qualifications they need to face the challenges and opportunities of global economic change over the next few decades. Choices made at 16 matter a great deal. The Bill will help to support those choices by removing some of the worst financial barriers to learning. I have great pleasure in commending the Bill to the House.
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Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
1.50 p.m.
Baroness Gale: My Lords, I am pleased to speak in this debate and to express my support for the Bill. I know that it will be welcomed by many organisations. It deserves praise because it will put young people and families in a much better financial position, especially those on low incomes and young people who are unable to live at home and are already independent of their families.
The Bill is long overdue and puts right a wrong which has existed for a long time. I refer to the loophole which, in certain circumstances outlined by the Minister, prevents many 19 year-olds obtaining any money or benefit. I have some knowledge of this, which is why I am particularly interested in the Bill.
I became aware of the anomaly under which young people studying a full-time course at a further education college no longer qualify for child benefit when they reach their 19th birthday. That affected a member of my own family. The young man concerned was aged 18 years and 11 months when he enrolled on a course due to start in the September. By the next month, with approximately one year and 11 months left to complete the course, he reached the age of 19, the cut-off age for child benefit. His single parent mother could no longer claim child benefit for him. This meant that either she had to keep him financially or he would have to give up his course and find a job. Giving up the course would mean that he would not have any qualifications. Fortunately, he was able to continue with it, although it was quite a struggle financially.
I had not previously been aware of this and I did not believe it was correct, so I asked the Library to check the facts for me. The information I received showed that it was correct and that the Government, aware of the loophole, were carrying out consultation on it. I am pleased that the Government have responded to that consultation in such a positive manner.
Although my initial concern was for the over-19s, I am pleased about the other measures in the Bill, such as removing the distinction between education and unwaged training in the financial support system. This is a good Bill which will help low-income families to provide support at a time when their children need to obtain qualifications. We badly need to help our young people in this regard as our record is not that good, a point already outlined by my noble friend.
I appreciate that there are other schemes to help young people, such as the education maintenance allowance which has been available since September 2004. That weekly payment has been a great help in supporting and encouraging young people to stay on in education. I understand that it has to be a means-tested allowance based on parental income, so not all young people receive it. But anything which helps young people to obtain qualifications, especially those who are not academically minded, is to be welcomed. We need plumbers in this country as much as we need professors.

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Dawn Primarolo MP, the Paymaster General, said at Second Reading in another place that:
"We all know that skills matter, but we also know that the United Kingdom education system has unfortunately suffered from historical underachievement. Although we perform strongly in higher education and have a large number of highly skilled workers compared with other countries, the historic failure to invest in training and education until recently has led to major shortfalls in terms of the intermediate skills that we need to secure sustainable employment and opportunities for all. As a result, far too many young people and adults are prevented by their lack of skills from getting secure, well paid jobs and all the social and personal benefits that go with them".—[Official Report, Commons, 12/1/05: cols. 316–317.]
I believe that this Bill will go a long way to improving our skills shortfall because the financial support will encourage more young people to stay on in education and training. However, I hope that the Minister can clear up one point. The Bill states that support for 19 year-olds will continue either until they reach the age of 20 or until the end of their course, whichever comes first. Someone like the young man I mentioned earlier will be over the age of 20 before his course ends. I do not know if I have this right, but it would mean that their entitlement to benefit would end at 20, even though the course may have six or more months to run. That would put them in a difficult position. Would it not be better for the Bill to provide for whichever date comes later?
Despite that, this is a really great Bill and I am sure that it will meet with the agreement of your Lordships' House. It is much to be welcomed.
1.56 p.m.
Lord Haskel: My Lords, I, too, thank my noble friend for introducing this Bill, and I want to join my noble friend Lady Gale in saying a few words in support. In various incarnations, both in government and in opposition, I have spoken up in support of skills training in the DTI. But do not just listen to me. Listen to what Steve Stewart has to say about the Bill.
Mr Steve Stewart is the Deputy Chief Executive of Wakefield District Council in Yorkshire. He is facing the difficult problem of young people coming into the labour market without basic skills—and I mean basic numeracy and literacy. He is busy developing a public service agreement with local partners to tackle worklessness and skills development, because in the district of Wakefield 24 per cent of boys and 13 per cent of girls enter the labour market at 16. That is significantly higher than the national average for both sexes.
Mr Stewart has said that the proposals in this Bill will help clear some of the hurdles identified by Wakefield council in terms of supporting skills development. It will assist the council in encouraging students to stay on at 16 to develop skills in sectors such as the construction industry, which are vital to the regeneration of the district.
He also pointed out that the proposals will contribute to beating the poverty trap that encourages young people in Wakefield to enter low-paid jobs with low prospects at the age of 16 rather than remain in learning. He thinks that the Bill will help to send a clear message to the
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traditionally hard-to-reach communities about the advantages of remaining in learning and training. These are communities where the lack of educational achievement and basic skills goes back generations. Noble Lords have long recognised the need to break that chain. It is hoped that the Bill will be one more small way of doing that.
The point I want to make is that this is not a politician speaking. This is a public official at the sharp end, trying to deal with the social and economic effects of a lack of skills. Mr Stewart is reluctant to put youngsters into dead-end jobs, and, frankly, very few unskilled jobs now exist, either dead end or otherwise. He needs the flexibility and freedom to provide some benefit or allowances while the public service agreement is in operation. That is precisely what this Bill addresses.
Wakefield is not alone: 25 per cent of our youngsters reach the age of 19 without a level 2 or equivalent qualification. We compare very badly with other countries.
As the Minister explained, one of the purposes of the Bill is to introduce the educational training allowance. I agree with him that the minimum training allowance distorted choice and made the transition from school to work more difficult. Parents of young people aged 16 and over and under 19 in non-advanced education receive child benefit and child tax credit, but the parents of young people of the same age group in unwaged training do not. It is this which distorts the choice and sometimes pressures young people into a course at college who might otherwise have benefited from training at work. The move to an education maintenance allowance is to be welcomed as it helps to remove this distortion.
I understand that there are around 80,000 unwaged trainees across the UK and that the Bill will provide the same financial support for either education or work-based learning. The choice will be theirs.
The more suspicious-minded of us will perhaps ask, "Ah, does this mean that businesses can stop paying their trainees by encouraging them or their parents to take advantage of these allowances?". Perhaps the Minister can tell the House how the Government are going to safeguard against that. There are safeguards with education maintenance allowances. The EMAs are strictly monitored; there is a learning agreement and FE colleges are set up to track a student's progress to make sure that the money is not wasted. Will there be similar requirements where young people receive unwaged training at businesses or at charities? There is a great deal of administration involved in this which small firms or voluntary organisations may not be able to provide.
In addition, the Minister told us that replacing the minimum training allowance with EMAs will move money away from the young person to the family. Are the Government satisfied that this will not be exploited by the adults to the detriment of the youngsters?
Some may say that with employment at record levels in Britain, who needs this? The answer is that the skill gaps in Britain remain stubbornly persistent. Those

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who attend business meetings—and I see in their places one or two noble Lords who do attend such meetings, particularly business breakfasts—will agree that the most common complaint is a shortage of skilled staff. Obviously the Government must and are taking action to tackle this, of which the Bill is a small part.
I hope that noble Lords on all sides of the House will join me in supporting the Bill so that tomorrow I can send a copy of the Hansard containing the record of this debate to Wakefield council, with a note saying, "Keep up the good work. Help is on its way".
2.3 p.m.
Lord Oakeshott of Seagrove Bay: My Lords, it is a pleasure to follow the constructive and thoughtful speeches of the noble Baroness, Lady Gale, and the noble Lord, Lord Haskel. I am happy to make it clear from these Benches that, like them, we support this modest but sensible Bill. I am not sure whether I should be here at all. Many of the issues we have been discussing are educational and this feels as much an education Bill as a Treasury one. But we have an all-encompassing Treasury these days and so I shall do my best.
As I read through the record of the debates in Committee in the other House, I felt that there had probably been a certain amount of manufactured controversy. It did not seem to me that many serious issues were raised, and I was not quite sure why it took as long as it did. I am sure that, in this House, we will not go down that route.
The main question that arises on the Bill concerns the 80,000, or however many it is, unwaged trainees and unpaid youngsters on job experience. Given the question of whether the Bill is intended to cover assistance only for trainees on government-supported training schemes, how many families of unwaged trainees, in total, will receive child benefit and child tax credit? The debates in the other place seemed to turn on that issue.
Will the Government expand the eligibility criteria for those in unwaged training or unpaid work experience? Barnardo's, in particular, has made a very good case for the need to expand the criteria to cover the large group of young people who are often disaffected and do not necessarily fit easily into the benefit and educational assumptions made by governments, which tend to suit the majority of young people who pass through the educational and training systems. It is very important to ensure that benefit and training systems are sufficiently flexible to allow groups of young people who do not fit into those simple categories to be properly provided for.
The noble Lord, Lord Haskel, pointed out the risk of not very well qualified young people falling through the net, as it were. It is very important that we try to be as inclusive as we can to these people and reduce the risk of them being alienated from society and possibly even falling into crime.
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We have received other representations, making a similar point, from the Prince's Trust. It stated:
"If it is only approved 'Government supported schemes' that are eligible, then young people may not feel that they have the financial support to participate in",
more informal training activities. It asks for clarification of,
"what is meant by 'Government supported schemes' and whether voluntary work, work experience and other more informal forms of training are going to be eligible for Child Benefit".
Skill shortages clearly are a major problem in our economy. The statistics quoted by the noble Lord, Lord Haskel, about our relatively low position in the skills and training league internationally are a serious problem. It is a major problem for the British economy and, particularly in London and the south-east, it is quite clear that we are suffering from very strong skills shortages. At its most obvious, where would the London building trade be without Polish workers, to name just one group, let alone those from other countries? So anything that will help in the medium term to ease our skills shortages is obviously essential.
We also face ever increasing competition in many areas of our economy and industry, from China and India in particular, and the levels of educational achievement among some of our young people clearly leave a great deal to be desired. We will not be competitive internationally unless we can raise our game.
The other matter arising from the debates in the Commons which I should like to pursue here is the substantial question raised by both major opposition parties about the Government's reluctance to make any estimate of likely behavioural changes arising out of the Bill and the consequent cost effects. Now that the Government have had a month since the debate on 3 February in the other place, will they have a first stab at estimating the behavioural changes, which I think it fair to say are likely to be quite significant?
Perhaps I may make a general point about unpaid work experience and how it is developing into almost a pre-condition for getting a job in some sectors, certainly in the media and parts of the financial services. The way in which this is developing is very unfair. I have a 19 year-old son and I am very lucky that I am able to afford to support him if he needs to do extended work experience. The current arrangements really discriminate against children from poorer families.
I am to some extent sympathetic to Ministers when they ask why they are not given more credit for the good things they have done. We are happy to recognise that, particularly in areas such as the tackling of child poverty. However, as Vince Cable, my colleague in the other place, pointed out, the problem is that many people simply do not understand the complex system of benefits with which they have to grapple. The situation is the same with pensions. People have to wander through such a quagmire of complication that they do not realise how the system works.
The Bill deals with only part of that problem. Nevertheless, it is useful legislation. We are happy to support it and speed it on its way through the currently very crowded legislative seas in order to get it on to the statute book.
2.10 p.m.
Lord Higgins: My Lords, the purpose of this Bill is clear and we support the objectives. We have had a short and interesting debate about a short and interesting Bill. There is no doubt that the case made by the Minister and other speakers for more action in this area is overwhelming. The regulatory impact assessment spells it out in considerable detail, so I do not need to stress its importance. However, one or two points must be made.
This Bill is unusual, in present circumstances, because it reaches your Lordships' House in quite good shape. That has not been the case of many other Bills. Your Lordships will no doubt have noted that, before Third Reading in another place, complaint was made that the programming of Bills there is applied across the board regardless of the extent to which any programming may be necessary. A complaint was made that only half an hour was allocated in the original programming Motion for debate in the House of Commons at Third Reading. This is a matter for great concern.
The reason this Bill is in good shape is that the Minister responsible showed flexibility. However, the way in which programming is used means that normally your Lordships have a heavy task, as we experienced on the Pensions Bill. We must hope that that does not continue because the other place is not fulfilling its legislative function.
I have some specific points which need to be considered. The Bill is to be administered by the Treasury; so, rather strangely, this is a Treasury Bill. The reason for that is the way in which the Chancellor of the Exchequer has tended to take everything in relation to work and pensions away from that department and put it under the aegis of the Treasury. This is done not only with regard to actual policy but also the way in which it is operated. Thus we suddenly find that because child tax credit is something that the Chancellor has taken over, this should apply also to child benefit.
I will not go over the same ground that we covered last Monday in our debate on various tax credit orders, but the degree of complexity now is extraordinary. We pointed out then that the Inland Revenue is better at collecting money than dispersing it. Allegedly, it has wrongly dispersed a number of payments to people who are affected by this Bill. Against the background of this Bill, the Revenue would be seeking to claw back alleged overpayments on the child tax credit. This will create even greater confusion.
One can understand the Treasury getting involved up to a point if it is a means-tested benefit or depends on means. My understanding is that the provision in this Bill will not be so. The noble Baroness, Lady Gale, said it was means-tested. Perhaps the Minister can confirm whether that is so, because that is not my understanding.
Baroness Gale: My Lords, I was making the point on the education maintenance allowance, which is means-tested based on parental income, but that does not apply to the child benefit element.
Lord Higgins: My Lords, I may have misunderstood what the noble Baroness said, but it does mean we have
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a hotchpotch of proposals for helping children. Some are means tested—the child tax credit, for example—while this one is not. That brings me to my next question. Who pays out the various allowances and who is receiving them? We seem to be in a slightly strange situation where the child tax credit and child benefit are paid to the parents; but, if I understood it correctly, the education maintenance allowance will be paid to the child.
As the noble Lord, Lord Haskel, observed: is it all going in the right direction? If it is paid to the parents, will it be used by the children or go towards some other expenditure? This is a matter of some concern. We are also raising the age limit further and further. I entirely understand the case for raising it beyond 19, because, as has been rightly pointed out—the Bill provides for this—there may be people who have not yet completed a course. Indeed, the allowance may continue for some considerable time after the so-called "child" has reached the age of 19. However, as the education maintenance allowance is paid direct, is there not also a case for this benefit to be paid direct? We need to look at the actual age limit.
The other point that has been regularly raised is the question of the cost estimates. No doubt the Minister can help us, but we are not clear about the costs or the scope of provision made for paying child benefit. The noble Lord, Lord Oakeshott, pointed out that, apparently, it is so if it is clearly a state scheme; it is so if it is a state-supported scheme; but it is not so if it is something that may increase the skills of the working population outside the public sector. The Minister speaks with passion because of his interest in the Harington Scheme, which I gather this Bill will assist. However, other trusts with educational aims would, apparently, not benefit from these provisions.
Noble Lords on this side of the House welcome the Bill's proposals. Some further points may need to be discussed following representations from outside bodies but, overall, this is a sensible measure and one which we will need to ensure reaches the statute book quickly.
This morning a report was given to me by an organisation called Sodexho, which has carried out a study on how the money provided by this Bill will be paid. The study shows an enormous percentage increase in expenditure for children going to and from school. A large amount of money is spent on what they call the "four Cs"—confectionary, chocolate, crisps and canned drinks. Indeed, the money provided by this Bill may do little to solve the problem of obesity. None the less, this is a Bill which we ought to support and which no doubt will find its way on to the statute book far faster than some of those that the Government sought to accelerate by imposing an unfair restriction on the amount of time available for debate.
2.20 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to all noble Lords who have spoken in support of the Bill. I am particularly encouraged to hear the noble Lord, Lord Oakeshott, say that it should proceed with all due

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speed and to hear the noble Lord, Lord Higgins, say that the Bill is in good shape. I hope that that means that no amendments will be tabled for Grand Committee, or if anyone has probing amendments, perhaps we could talk about them beforehand, as that would certainly help.
It is not that I am anxious to inhibit discussion. I do not agree with the noble Lord, Lord Higgins, about the time of Third Reading. The time allotted was 45 minutes, and the Opposition spokesman who opened the debate said that they would not really need 45 minutes. I think they did in the end, but there was no particular complaint about that.
Lord Higgins: My Lords, in fact it was half an hour, not 45 minutes. The system is vastly different from the one that we used to have. If it was necessary to curtail debate because of filibustering or some urgency, at least half a day's debate was allocated to justify it. Now everything is programmed, which was unheard of 10 years ago. The way in which debate has been curtailed in the other place is deplorable.
Lord McIntosh of Haringey: My Lords, I am reluctant to have a debate on the procedures of the House of Commons, although I appreciate the noble Lord's motive if it were to affect the quality of the legislation that comes to us. But as he said, it has not. It has come to us in good shape. I shall not pursue that matter further.
Lord Oakeshott of Seagrove Bay: My Lords, I am just responding to the Minister's request. Subject to his summing up and answering the points that I have raised, I have no plans to table amendments.
Lord McIntosh of Haringey: My Lords, that is helpful.
My only other introductory remark—if I can get to it—is to comment on what the noble Baroness, Lady Gale, said about plumbers and professors. Some people would say that there is a greater need for plumbers than professors. I rather think that if you called out a professor you would get one in 10 minutes in many parts of the country.
The noble Baroness made a valuable contribution because it was from personal experience involving a member of her family. She is right to say that one of the virtues of the Bill is that it removes the distinction—the discrimination—between education in a college and unwaged training. To that extent, I very much agree with her.
I find it more difficult to respond to her question about what happens after the 20th birthday. The member of her family started unwaged training at the age of 18 years 11 months. The benefit of the Bill will expire on the 20th birthday, which is well before the programme of unwaged training is complete. The reason for not making it a later date was because we thought it undesirable from a young person's point of view unnecessarily to delay entering an unwaged
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training programme. The Paymaster General heard that point in the House of Commons and undertook to have a review.
The noble Lord, Lord Haskel, made a valuable contribution. It referred to experience in Wakefield where, as he said, there is a significant lack of basic skills. That reminds me that I forgot to say when mentioning the Harington Scheme that it is for people with learning disabilities—those who would not get into further education or training in FE or sixth form colleges. I confirm to the noble Lord, Lord Higgins, that they are on entry to apprenticeship schemes funded by the Learning and Skills Council. Local LSCs are able to fund skills, although they have their own policies. But in most of the country funding is available to voluntary organisations.
The noble Lord, Lord Haskel, asked whether there was a risk that businesses would stop paying trainees. They pay trainees when it is to their advantage to do so, and do not when it is not. Programmes are funded by the Learning and Skills Council and frequently include an element of college attendance. If there were a risk of businesses stopping paying trainees, they would not do it by this method. The number of apprenticeships has increased significantly under this Government. I do not have the figures in front of me, but the TUC has indicated support for these measures, which it would not do if employers were capable of exploiting them.
The noble Lord also questioned whether young people could be exploited by their own families. If that were the case, it would apply much more widely to those in further education. I do not think that there is any evidence that they do. The benefits provide some money for the young person and some for the family, which is generally agreed to be the right way round.
The noble Lord, Lord Oakeshott, asked how many of the 80,000 in the cohort would benefit. The answer is all of them. We have provided in draft regulations a full list of all the government-arranged training programmes, including entry to employment and comparable schemes in Scotland, Wales and Northern Ireland. None of the 80,000 will not benefit. It is a coincidence that there are 80,000 unwaged traineeships and also 80,000 between their 19th and 20th birthdays. No one should be led to think that there is anything other than coincidence in that figure.
The noble Lord asked me a proper question from the Prince's Trust about why there are only government-supported training schemes and not work experience and more informal training schemes. That question was asked of the Paymaster General in another place who recognised that it is a significant issue. She said that there would be a response in the Statement accompanying the Budget in two weeks' time.
The noble Lord also asked about likely behavioural training changes and their cost effect. The answer to the latter question can be answered very easily. It is a zero sum game between further education or sixth form colleges and unwaged training. Both will now get the same financial support. The movement between those in colleges and those in unwaged training will not

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cost the Exchequer any more. We have given figures of £105 million, but the continuing costs will not be significant.
As to whether it will bring in behavioural changes in the sense of new entrants, that is a valid point to which we do not yet know the answer. We have been unable to do a pilot as we did for educational maintenance allowances. It provides a better choice that is not distorted by financial considerations at the age of 16 or later. If the choice is between education and unwaged training, neither affects the Exchequer.
I shall not go back to the little discussion with the noble Lord, Lord Higgins, about proceedings in the House of Commons but, as so often, he queried why the Treasury is responsible for this legislation. It is because Parliament passed it in the Tax Credits Act, the purpose of which was to integrate the tax system with family support. Since we now have 6 million families on tax credit, I do not think that there can be any serious doubt that it has not been advantageous. If there are queries about the administration of tax credits, I would only say that the Office of Government Commerce stated:
"This is an exemplar of good programme management".
Lord Higgins: My Lords, a situation in which child tax credit has been wrongly paid by the Inland Revenue, which then claims it back from the poor families concerned, who have spent the money, cannot possibly be described in that way.
Lord McIntosh of Haringey: My Lords, we have debated this in this Chamber within the past week, as the noble Lord, Lord Higgins, knows. There is a trade off. Either a system is simple and is assessed only once a year—which leads to overpayment that has to be recovered—or the payment is continually reassessed. There can be different views about which is the better option, but no one can deny that they are legitimate options and that there is a trade off between them.
The noble Lord asked whether this means means-testing child benefit. We are talking about over-16s and there is already a test for child benefit: the independence of the young person and whether he is working 24 hours a week or more. He acknowledged that the Harington scheme would benefit from this legislation and asked whether there were other schemes that would not. As I think I indicated before, the programme of schemes set out in the draft regulations is pretty comprehensive. The noble Lord accused the Treasury of liking to take over social policy, but I think I am allowed to refrain from commenting on the views of Sodexho about obesity. That is one thing for which the Treasury is not responsible.
I hope that I have answered the questions raised in debate.
On Question, Bill read a second time, and committed to a Grand Committee.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure until 2.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
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[The Sitting was suspended from 2.32 to 2.35 p.m.]

Prevention of Terrorism Bill
House again in Committee on Clause 1, Amendment No. 2.
Lord Stoddart of Swindon: I have been listening with interest to the debate on the Government's amendment and on the amendment moved by the noble Lord, Lord Thomas of Gresford, and to noble Lords who seem to be extremely concerned that they may be required under the Bill, and in some of the amendments, to do the Government's work for them. I agree that that should not be the case.
We have not examined some of the impositions in Clause 1 in suitable detail. It may very well be that the Government are relying on the ignorance of the electorate about what could befall them under this clause and are hanging on the opinion poll that appeared in the Daily Telegraph a few days ago and showed that the electorate are all in favour of this obnoxious Bill and the powers contained in it.
Let us look at one of the powers on the top of page 2 of the Bill. Clause 1(3)(c) refers to,
"a restriction in respect of his work or other occupation, or in respect of his business".
As it reads here, that could mean that a person's livelihood is taken away from him, that his business could be ruined. People in this country subject to such an order could find themselves unable to make a living, to pay their rent or mortgage or even to eat.
Then in Clause 1(3)(d) there is a restriction on,
"his association or communications with specified persons or with other persons generally".
That means that he could be required not to talk to anyone at all, on the telephone, at his door or wherever else. Would it apply to anybody he would talk to when he went out on the street, because that is included in "other persons generally"?
Then in Clause 1(3)(e), which has already been referred to, there is:
"a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence".
They could presumably put a restriction on the milkman, the meter reader or anybody else. These are very severe restrictions indeed.
If we look at Clause 1(3)(m), there is:
"a requirement on him to co-operate".
How are they going to do it? Are we going to have a Gulag, or a few Gulags, in this country? Clause 1(3)(n) provides for,
"a requirement on him to comply with a demand made in the specified manner to provide information".
That is not a request but a requirement.

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Those really are very onerous restrictions. People may, of course, believe that they apply only to Muslims. Indeed, the Home Office Minister, Mrs Hazel Blears, warned the Muslim community that they would be at great risk from these provisions. Yet it does not stop at Muslims. There is nothing in the Bill to say that only Muslims are going to be put under such control orders. It could be, for example, those who want to continue hunting. They could be construed as being a threat to law and order, and as committing terrorism against foxes or something like that. What would these orders have done to the miners during the miners' strike? Some people might have construed that they were putting the nation at risk.
We must get it across to the electorate generally—to the ordinary decent people in the country—that it is not only terrorists or Al'Qaeda who are at risk, it is not only Muslims or dark-skinned people, it is them. Every single one of us is at risk from the provisions in Clause 1. That is why it is essential that the amendment moved by the noble Lord, Lord Thomas of Gresford—and, later, other amendments—should be incorporated into the Bill. I do not know whether we will vote on the amendment now, but at some stage it must be incorporated. I hope that noble Lords will support it.
Lord Forsyth of Drumlean: I hesitate to intrude in the proceedings, surrounded by so many eminent lawyers, but I think that I may be uniquely advantaged—or disadvantaged—by not being a lawyer.
Listening to the speech made by the noble Lord, Lord Thomas of Gresford, and to those of other noble Lords, I believe that there is some consensus on the central issue, which is that there should be due process and people should have an opportunity to know of what they are accused and be able to answer that in some way. I have much sympathy with the point made by the noble and learned Lord, Lord Lloyd of Berwick, about the dangers of putting the judiciary into a position where they act as a kind of cipher for Ministers. It was not clear to me whether he was ruling out what was being proposed by the noble Lord, Lord Thomas, and others—that there should be some due process. I think he was saying that there should not be judicial involvement in place of the role being carried out by the Secretary of State.
I do not wish to repeat arguments that have already been made. However, I have one specific question to which I should very much like an answer. I have read the amendments, the Bill and all the material that has been made available, but I am still slightly puzzled. I apologise for raising a question that may not seem central to the larger issues in the amendments, but, in order to understand the Government's position on their amendments, I need to know how this is going to work north of the Border.
As I understand it—and again, I am not a lawyer—under the devolution settlement, the Scottish Parliament is not allowed to do anything that is in breach of the
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European convention. So, how will the provision work in respect of Scottish individuals? I understand that "Secretary of State" means any Secretary of State, but if we are talking about somebody living in Scotland, who is the Secretary of State? It is clearly not the First Minister, so is it the Lord Advocate?
2.45 p.m.
Furthermore, which police interest will be involved in making an arrest? I hope that the noble and learned Lord the Lord Chancellor can reassure me that there is no suggestion that a Secretary of State in the Home Office or for another English department would ask a police officer from England to go up to Scotland to arrest somebody there. But that is how I read the Bill. I cannot see any provision in the Bill or in any of the amendments for Scottish law and the Scottish judicial process to be carried out. The point was raised on Second Reading by my noble friend the Duke of Montrose, so it is a point of which the Minister has had notice and on which I am sure he will be able to answer fully. The very last thing one would want to see is further confusion in the media north of the Border about the precise role as it affects people in Scotland and the devolved Administrations.
Lord Desai: As another non-lawyer I have been trying to make sense of the debate so far. I will tell the House how I understand it and perhaps someone can correct me if I am wrong.
The government amendment obviously concedes that a judge has to be involved immediately when a derogating order is sought. I believe that the noble Lords, Lord Goodhart and Lord Thomas, want non-derogating orders to be treated in the same way. The noble Lord, Lord Carlisle of Bucklow, says that the Secretary of State should have to go to the DPP before all that, when there is a suspicion, and the process will be triggered only if the DPP says that he cannot proceed. Even if we accepted the amendment of the noble Lords, Lord Goodhart and Lord Thomas, there is a feeling that judges are not happy being administrators.
The amendment of the noble and learned Lord, Lord Donaldson of Lymington, would then kick in. After having gone through the Carlisle amendment process and got out of that, you could then take the route proposed in the amendment of the noble and learned Lord, Lord Donaldson. If the person cannot be tried, one might say, "You cannot let the judges do the job of the Secretary of State; therefore, let us go to the Donaldson amendment". I could be wrong, but if we went through all that process, would we not arrive at where the Government want to be, with their various little problems, if not taken care of, at least faced up to? If all of that is correct, I hope that we may be arriving at some kind of consensus, as the noble Lord, Lord Forsyth of Drumlean, said.

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Whatever reservations we have about the Bill, we have to get some sort of legislation out of this place in sufficient time to allow the Commons to debate it and to meet the deadline. It certainly helps me to think about it that way. I hope that it helps the Committee.
Lord Falconer of Thoroton: This has been a constructive and interesting debate on very important issues. I shall go through it in stages.
The first question raised was whether we need something other than the normal criminal process in order to assist in fighting the terrorist threat that we currently face. There are those among your Lordships—among whom I include, I hope not exclusively, the noble and learned Lord, Lord Lloyd of Berwick, the noble Baroness, Lady Kennedy of The Shaws, and, I think, the noble Earl, Lord Onslow—who take the view that we should not have any sort of control orders at all, but that we should just stick to the normal criminal process.
That is a view with which the Government disagree, on the advice of the security services; it is a view, I think, with which the Newton committee disagreed; it is a view, I think, with which the Conservative Party disagrees; and I think it is a view with which the Liberal Democrats also disagree. So the three main political parties are in a consensus, supported by the view of the Newton committee, that something other than the ordinary criminal process is required in order to fight against the current threat of terrorism.
If that argument is accepted, then it is necessary to work out what that process should be, seeking to balance as much as possible the rights of the individual against the need effectively to fight terrorism. I respectfully suggest that the debate we are having in Committee concerns how we bring that about. I understood the words of the noble Lord, Lord Forsyth of Drumlean—I expressed my gratitude to him at the beginning of the day—to be that he accepts that as well, but the issue is how we get to a point where we have a suitable process.
The second issue that arises, once one accepts the need for some type of process, is what that process should be. We submit that the right process is a control order process rather than, as the Newton committee suggested we look at, some type of investigating judge process. One fears that the investigating judge process would lead precisely to what the noble and learned Lord, Lord Donaldson of Lymington, warned us against, which is making the judge even more of a player than he otherwise would be. The idea suggested by the Newton committee that the judge should sift through the evidence and put the case to another judge is quite inimical to the way that our judges operate and I do not think that that would be appropriate.
In effect, that is the only real alternative that has been advanced, apart from control orders. Therefore, we are the only body—namely, the Government—who are actually proposing what that process, which is not the criminal process and which we say is necessary, should be.
The difficulty with control orders, which everyone has eloquently identified, is this: the decision about security is normally a decision that would be made by
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the Executive—in practice, the Home Secretary. But, plainly, you cannot just leave it to the Home Secretary. There must be some judicial oversight to protect the citizen in relation to it and that judicial oversight must be as fair as it possibly can be to the citizen.
Where is the balance to be struck? Our initial proposal was that, in relation both to those orders that deprive a citizen of his liberty under Article 5 and one that did not, the Home Secretary should make the order, which should then be subject to easily accessible and stringent judicial oversight—I use the word neutrally. Strong representations were made, both in another place and outside, that depriving someone of his or her liberty under Article 5 should not be done on the say-so of the Executive; it should be done only by a judge.
Despite the concerns that have been eloquently expressed by the noble and learned Lord, Lord Donaldson, that this would put a judge in a different position from that which is normal, in striking the balance, we have decided that the orders in relation to those deprivation of liberty cases should in the first instance be made by the judge, because you are depriving someone of his liberty.
The suggestion made by the noble and learned Lord, Lord Donaldson, addressed constructively the dilemma that we face. It should normally be the Executive, but—and I do not know whether he accepts it or not—if you are going to involve a judge, the noble and learned Lord is saying, "Still respect the fact that it is the Secretary of State's decision". His proposal is that although you cannot enforce it without a judge, the Home Secretary can be allowed to enforce it only "with the leave" of the judge. The noble and learned Lord accepts the principled starting point that it should normally be the Executive, but pre-order effectiveness scrutiny by the judge is provided. That is consistent with the position that we have reached and seeks to respect the fact that the judges do not normally make these types of evaluations. We need to take away that suggestion and consider it.
The impact on someone of depriving them of their liberty is why we have taken the very unusual step of saying that there should be pre-judicial intervention before the order is made. But the same arguments do not apply when you are not depriving someone of their liberty. In that case, Article 5 of the convention is not engaged, but other rights are. Articles 8, 9, 10 and 11 are all engaged. The points made by the noble Lord, Lord Stoddart of Swindon, are absolutely right; we have to be very anxious in relation to the examples of the orders contained in the Bill, such as preventing people from associating with other people or generally restricting the businesses in which they can be involved. There needs to be substantial oversight in relation to that.
When an order is made which involves an interference with, for example, your rights of association, your right to free speech or your right to privacy, it can be made without offending the European Convention on Human Rights, but only if there is a legitimate aim, such as national security, and it is proportionate. So if the Executive went too far, the courts could strike it down.

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You would not reach the circumstance posited by the noble Lord, Lord Stoddart of Swindon, because the court would strike it down, unless there was a proper basis for it. You could stop someone engaging in a particular business under these provisions only if it was necessary due to national security and the precise terms of the order were proportionate to your aim.
Lord Clinton-Davis: If there was no difference between derogatory and non-derogatory orders, that complexity would not arise. As far as the law is concerned, complexity, in my view, is the enemy of freedom and I do not believe that we should go down that route.
Lord Falconer of Thoroton: I do not think that there is any complexity in relation to the matter. There is a legal template which ensures that the rule of law is preserved against which all of these orders have to be judged. Ultimately, you have to look at individual cases on a case-by-case basis and have a standard against which you measure the proportionality or otherwise of the order. That is what the European Convention on Human Rights does and the way that we have constructed the Bill seeks to respect both the fact that the Executive are making judgments on national security and that the courts must look at each individual case and ensure that a proper balance has been struck.
Lord Stoddart of Swindon: I am listening to what the Lord Chancellor is saying, which is that there would be a judicial process in relation to Part 1—non-derogation orders. But surely I am correct in believing that it would not go to a normal court, as in the normal course of events, but would go to judicial review. Is that right? That really is not the same as going to an ordinary court. As I understand it, you have first to have consent to go to judicial review and that is also a costly process. When we are told that there is a judicial process, it is in fact highly complicated and not one which is generally understood by ordinary people like myself as being a judicial process.
Lord Falconer of Thoroton: It is the High Court of England and Wales, or Northern Ireland, and it is the Court of Session in Scotland. They are the superior courts of record in all three jurisdictions. I can think of no more "normal" and no more admired courts than those three. Judicial review is a perfectly normal and proper judicial process. As far as access to the courts is concerned, in terms of expense, we have made it clear that legal aid would be available for those cases that had to be taken without means-testing. In those circumstances, the position would be that those who are the subject of a control order would have legitimate access to the courts.
3 p.m.
The Earl of Onslow: Not surprisingly, I am still in the most terrible muddle. Taking up what the noble Lord, Lord Stoddart of Swindon, said, if someone is told he
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cannot do something under paragraphs (d), (h), (k) and (m), the Government say that is non-derogation. If the court finds out that it is derogation, the Government will say "We have to drop this lot, because it's derogation, so we actually have to do something worse to him". Otherwise, they would be landed with the fact that all the non-derogation orders are derogation orders, and they will be in the same muddle as they are at the moment.
The Government were told before that banging people up in Belmarsh was against the ECHR, but they said it was not. Now they are saying "no" on this issue, but later on they will be told "yes", and they will face exactly the same problem again. Surely they will have to bang someone up under something more serious, because they have to do so under the derogation system rather than under non-derogation.
Lord Falconer of Thoroton: With the greatest respect, no. Derogation is required if we deprive someone of their liberty. If we say they have to stay in their house for 24 hours, or for 12 hours, and can only go out between two o'clock and four o'clock, that would probably be deprivation of liberty. However, if we say they have to report to the police station, or they cannot meet Mr X, that unquestionably would not be deprivation of liberty. Of course, in all of these areas there might be a grey area, where a combination of orders equals deprivation of liberty under Article 5. If the Home Secretary stepped over the line in relation to that, the order would be unlawful and would be set aside.
Lord Dholakia: Would the individual against whom a non-derogatory order had been made, and to whom one part of this cocktail of conditions applied, be entitled to know what the evidence was against him or her?
Lord Falconer of Thoroton: It would be subject to the special advocates procedure, under which material that it is judged would damage an informant, for example, would not be made available to the suspect. Again, the committee chaired by the noble Lord, Lord Newton, and the noble Lord, Lord Carlile of Berriew, have both looked at how that system has operated. Is it just? So has the Court of Appeal in the case between M and the Secretary of State for the Home Department. Noble Lords will be aware that the Lord Chief Justice said about that procedure:
"We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC"—
which would adopt the same procedure—
"have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process".
Again, if we accept the need for something other than the criminal process, and we also accept the proposition—which the Government and the security services do, as does the Court of Appeal in this judgment—that there are certain things that, if we let the suspect have them, could damage informants or national security, we have to seek to construct an arrangement that does justice to everyone while

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protecting national security. Using the special advocates procedure, which the European Court of Justice held was an appropriate procedure, is the way we have done so.
Lord Judd: I am grateful to my noble and learned friend for giving way. I have a certain amount of sympathy with the noble Earl in his anxiety that the difference between restriction of liberty and deprivation of liberty is a bit hypothetical. For the person concerned, it must sometimes be difficult to distinguish between the two. It is easier to do so on a legal basis.
Does my noble and learned friend agree that we want a secure situation for our people, as far as we can achieve it? Can my noble and learned friend think of a better rallying point for discontent and exploitation of anxiety than someone having to function every day under regulations that restrict his freedom without everything possible having been done, through due legal processes, to demonstrate to people that this has not been easily done, and has only been done after due consideration?
Lord Falconer of Thoroton: These judgments have to be made carefully. We have to balance the effect of making an order on the fight against terrorism with the need, in certain circumstances, to restrict people's movements. The security services are saying that the judgment they make now requires control orders of a non-derogating sort. We all have to take into account whether, as my noble friend Lord Judd says, making such orders would make the position better or worse. It is an incredibly difficult judgment to make. We have to bear in mind that ultimately the advice we are receiving is that it provides greater, rather than lesser, protection for the state.
Baroness Kennedy of The Shaws: I ask this question respectfully. Help us. Under ordinary terrorism legislation, a man is arrested, his computer is disembowelled, there is swabbing for forensics to see if there were explosives in his house or if he has biological components for explosives, and he can be detained for up to 14 days. What kind of information would not put those processes in train? Why is my noble and learned friend the Lord Chancellor not saying that we may need a control order after the man has to be released, as a kind of bail condition, with a limit on it?
My noble and learned friend suggested that I was not making any positive suggestion to him, but I am. We should carry on through those processes if there is an emergency and our information that the man is going to do something terrible—but suppose that the information is only that this man is sympathetic to Al'Qaeda, and he was heard down at the mosque saying he thinks Osama bin Laden is a great man, and he would like to collect money to send to him. Are we going to do these things based on that kind of information?
Lord Falconer of Thoroton: There would be a whole range of information that the intelligence services would have to evaluate to determine whether a control order was necessary. The situation posited by the
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noble Baroness, Lady Kennedy of The Shaws, is a continuing investigation, where presumably bail conditions could be imposed for a short period, but not, for example, 12 months, which is the period for which a non-derogating control order can be made.
I speak hypothetically, but the two particular sources of information that are extraordinarily unlikely to be usable in court are foreign intelligence and informants. It might be perfectly obvious in relation to the circumstances that we would not be able to bring a charge, coupled with other material. The question of bail, therefore, would never arise. The advice of the security services is that, in order to provide the necessary protection, we would need to impose some restrictions, although as little as possible, to provide the protection of the state.
Baroness Falkner of Margravine: Can the noble and learned Lord the Lord Chancellor tell us, regarding the information that would be used in court. whether information obtained under torture from foreign sources can be used?
Lord Falconer of Thoroton: We have always made it clear that we would not wish under any circumstances to use any information obtained under torture. The position regarding the SIAC cases was, as far as the courts were concerned, that no material came from torture. In making their decision, the courts would have to evaluate what material was available to the security services, and consider that in relation to this issue. These are difficult questions, but ultimately we are talking about the protection of the state.
The Earl of Onslow: Just now the noble and learned Lord said that the intelligence services need these powers. Can he explain why, up until the Law Lords' judgment, they banged up 14 people in Belmarsh and the powers were considered to be quite enough, but suddenly, after the Law Lords' decision, there are lots of British subjects wandering about the place who they think might blow up a mosque or three or an aeroplane? Can the noble and learned Lord explain why suddenly the situation has become so much more dangerous than it was a month ago?
Lord Falconer of Thoroton: The original powers were sought in the immediate aftermath of 9/11. At that time we believed that foreign nationals provided the major Al'Qaeda risk in this country. As time has gone on by we have learnt more. It is not possible, nor sensible, to return to Parliament constantly to change the powers. In the light of the Law Lords' decision that the powers were unlawful, which we respect and accept, we now need to consider what are the appropriate powers in the context of the current situation and what we know. Having been advised by the security services, we take the view that those powers should extend not just to foreign nationals but also to UK nationals.
Lord Forsyth of Drumlean: I am grateful to the noble and learned Lord the Lord Chancellor for giving way. I put this point to him at Second Reading. I hear what

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he says, but if the Government suddenly have new information that large numbers of British citizens are involved—I believe that the other day on "Woman's Hour" the Prime Minister suggested that there were several hundred—is it not remarkable that they waited until the Law Lords' judgment? I find it puzzling that in the other place the Government tabled a statutory instrument to extend the existing powers for nine months if they felt, as a result of this new information, that the existing powers would not provide protection.
Lord Falconer of Thoroton: Again, we come back to the point that the existing powers have been deemed to be incompatible with the European convention. In order to be consistent, we need something different. Why did we not do it before and how did we survive before? We did not review the powers and the detail in the way that we are now reviewing them. In effect, the Law Lords' judgment provides the context in which to review the powers altogether.
Lord Forsyth of Drumlean: Forgive me, I do not know the exact date, but I believe that the Government tabled the statutory instrument to extend the existing powers under the Act that was passed post 9/11. Four weeks ago, they also published an explanatory memorandum. Is the Lord Chancellor saying that the Government did that in the knowledge that there was a serious threat from British citizens and that they would have to do something about it? I find that puzzling. If the Government had been told by the security services that there was a threat, what on earth were they doing extending the existing powers that the Lord Chancellor tells us are not adequate to meet that threat?
Lord Falconer of Thoroton: It is my fault for not understanding the point. The noble Lord is absolutely right. We laid an order proposing to extend the Part 4 powers. We did that as a contingency measure against not being able to put forward a Bill with more detailed proposals. Now, we have a Bill with more detailed proposals and one is absolutely right to draw attention to the different approach that we took in the autumn of 2001.
We sought to protect ourselves against not having any powers on 14 March, when the powers come to an end. Having looked at the matter fully and having taken the advice of the security services, we believe that the right level of powers that we need are those set out in the Bill. That is why we put forward the order in the first place; that is why we have now withdrawn it and why we are now proceeding with this Bill. That is our judgment of the right position.
Lord Lloyd of Berwick: The problem with that analysis is that, as recently as March 2004, the Government took a different view that it would not be justifiable to extend these powers to British subjects. The powers were taken in 2001 because it was thought to be easy to do so under the immigration procedures.
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Less than a year ago the Government thought that these were powers that they could not justifiably take, so what has changed since then?
Lord Falconer of Thoroton: Since December we have had to consider what powers we think we need. The noble and learned Lord is absolutely right to draw attention to the statements that have been made as the process has developed. I see in the Chamber noble Lords who have been Home Secretary. I am not inviting them to intervene—at which point they all perk up and appear to be about to intervene. I see another one over there. This is the biggest collection of Home Secretaries in one place that I have seen. From time to time they have seen security situations change. Advice is given and, ultimately, whatever has been the position in the past, the Government, and in particular the Home Secretary, have to make a judgment about the necessary powers on the basis of the advice that he or she receives at that time. It is absolutely right that one will see assessments change from time to time; people have different views about the threat and one can only work on the basis of the threat as perceived by the government at the time.
3.15 p.m.
Lord Forsyth of Drumlean: I apologise for interrupting but I would like to follow up a point made by the noble and learned Lord, Lord Lloyd of Berwick. He pointed out that a year ago the Government took the view that it was not necessary to extend these powers. I cannot provide the quote from Hansard, but I believe I am right in saying that the present Home Secretary has said that the threat is not significantly greater than it was a year ago. That closes the timetable. If the Home Secretary is saying that the threat is no greater than it was a year ago, and a year ago the Government were saying that it was not necessary to extend the powers, I find it very difficult to understand when this suddenly became necessary.
Lord Falconer of Thoroton: As a government, all that they can do is assess the situation as it presents itself at a particular time. The noble Lord, Lord Forsyth, is absolutely right on both basic propositions that he makes: namely, what was said in March 2004 and that the Home Secretary—I would have to check this—had said words to the effect, "The risk has not become any greater". But that does not mean, looking at the matter overall, and listening to what the security services are saying at a particular time, that one does not come to the conclusion that these are the right powers at this time. The powers in relation to foreign nationals were more extreme than the particular powers with which we are currently dealing.
The Earl of Onslow: The noble and learned Lord has just said, "I agree that the Home Secretary said a year ago that we did not need the powers, I agree that the Home Secretary said last week that the situation is exactly the same, but I now say we need new powers".

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That is not the reasoning of someone from Fountain Court Chambers; that is the reasoning of someone from form 4B kindergarten.
Lord Falconer of Thoroton: I am horrified that the noble Earl—
Lord Stoddart of Swindon: I am obliged to the noble and learned Lord the Lord Chancellor. To save him jumping up and down perhaps I can follow up with a further question that needs to be cleared up on this issue. The Prime Minister said on "Woman's Hour", as the noble Lord, Lord Forsyth, said, that there were hundreds of British citizens who were a threat. That statement was apparently challenged by a senior member of the security services who said that the number of people involved was 20 to 30. During the debate in the House of Commons in Committee, the Home Secretary said that there were only a handful. We really need to know who is right and what the figures are. Are the figures in the hundreds, is it 20 or 30, or is it a handful? When proposing such legislation we need to know exactly the extent of the problem.
Lord Campbell-Savours: My noble and learned friend responded very constructively to the suggestions made by the noble and learned Lord, Lord Donaldson, and conceded that there might be a need to consider further what he had to say. I wonder whether my noble and learned friend might care to comment on the intervention of the noble Lord, Lord Carlile of Berriew. He made us think about another way of dealing with these matters that did not require immense compromise, but which tweaked the system in a way that might satisfy many Members of the Committee.
Lord Falconer of Thoroton: I have a number of stacked-up interventions to deal with. First, as far as the noble Earl, Lord Onslow, is concerned, I hope we have moved from class 5B. Whether it is to class 6 or class 7, I do not know. We will have to make a judgment.
I do not want to speculate about the numbers of people in respect of whom orders are made. It would be wrong to do so. The critical point is that independent observers, as well as the Government and the security services, believe that these additional powers—beyond the criminal justice system—are required. I should emphasise that these powers do not go as far as imprisonment—those are the powers that were struck down by the Law Lords. We need alternatives to that, which is what we are producing.
I say to my noble friend Lord Campbell-Savours that we remain of the view that it would not be appropriate for there to be court intervention before non-derogating orders were made. As I have made clear, there should be court intervention subsequently and, where necessary, as quickly as possible. That is because they do not involve deprivation of liberty, and because, in some respects, one should have the judges making the orders in advance in only the most serious cases—a point that has been made on a number of occasions in Committee. Again, it is subject to the
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suggestion made by the noble and learned Lord, Lord Donaldson of Lymington, which constructs the order as not being made by the judge but, in effect, enforced with the leave of the judge.
That is my comment on the very constructive suggestion of the noble Lord, Lord Carlile of Berriew. We shall need to think about it. However, it does not detract, I am afraid, from our proposition that there should not be judicial intervention before non-derogating orders.
Lord Plant of Highfield: I am sorry to disagree with my noble and learned friend on that issue. Assuming for the moment that the Government's proposal goes forward, I wonder whether he would clear up a couple of points, one of which was slightly in dispute at Second Reading. It is a straightforward thing, and it would be good to hear his view.
When it comes to the judicial review of a non-derogating order, the noble Lord, Lord Thomas of Gresford, said that this was a rather weak sort of power, because it was largely to do with procedures; whereas I thought, following the passage of the Human Rights Act, that judicial review could bite a good deal more than that because it would have to involve proportionality. How could a judge make a judgment on the issue of proportionality in a way that was independent of the merits of the case? If that is so, then it would slightly strengthen—not sufficiently to overcome my objections—the Government's view about the power of judicial review. Of course, my interpretation of that may not be correct, and it would be good to hear the view of my noble and learned friend on that point.
Secondly, I am very keen that this system of control orders, to which I am not opposed, should be made as compliant as possible with convention rights. The issue I have is that the list of obligations in respect of which control orders can be made is only illustrative. It is not a complete enumeration of all the possible obligations that might be imposed on people. Yet, as I understood it—and, again, I may be wrong about this—convention rights other than Article 5 could be infringed if it was in a way prescribed by law. Does the fact that the list of obligations is not exhaustive satisfy the principle that these obligations would be sufficiently prescribed by law if the Bill became an Act more or less as it currently is?
Lord Falconer of Thoroton: Article 5 would be infringed if somebody was deprived of his liberty.
Lord Plant of Highfield: I was talking about non-derogating orders and the way those orders would infringe articles other than Article 5. That can be justified under the convention if it is through a procedure prescribed by law. I wonder whether the non-exhaustive nature of the obligations set out in the Bill would satisfy the principle that it is prescribed by law. It does not cover every obligation that might be imposed.
Lord Falconer of Thoroton: We believe that it would satisfy the requirements. If the order made does not

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deprive somebody of his liberty, but engages other convention rights such as the right to association or the right to privacy, that is permissible as long as it is for a legitimate aim and proportionate. The fact that the particular order is not one of the examples given in the Bill does not prevent that principle applying. The Bill says you can make an order similar to those particular provisions. That would not prevent proportionality and a legitimate aim applying when one is looking at infringements or engagements of rights other than Article 5.
My noble friend's first point was on judicial review. He asked whether the court would consider whether a non-derogating order was proportionate and pursuant to a legitimate aim within the meaning of the ECHR. The answer is yes. The judicial review in those circumstances would have a lot more teeth than the sort of judicial review that the noble Lord, Lord Thomas of Gresford, so dramatically described yesterday.
Lord Plant of Highfield: So, in the vernacular, is it reasonable to say that the judge would be looking at the merits of the case?
Lord Falconer of Thoroton: The judge will look at the facts sufficient to determine whether or not there was a legitimate aim of national security and, having regard to all of the facts, whether the response made by the Home Secretary was proportionate in that particular case.
Lord Thomas of Gresford: Does the noble and learned Lord agree that the power of the judge would be to quash the order that had been made? He could not prevent the Secretary of State from immediately making another order on the same evidence. That is what is contained in the Bill.
Lord Falconer of Thoroton: It would presumably be quashed because it was disproportionate or not pursuant to a legitimate aim under the convention. If it was not pursuant to a legitimate aim, then he could not make any such order. If it was disproportionate, then the Home Secretary could come back only with an order that was proportionate.
Lord Judd: I apologise for interrupting yet again, but while we are on the point raised by my noble friend Lord Plant of Highfield, there are anxieties—I am sure that my noble friend will agree—about the real strength of the judicial review. We know the Human Rights Act 1998 has toughened this up a bit, but there are still doubts about how much muscle there really is in judicial review. If we are trying to ensure that justice is being seen to be done, would we not be in a stronger position if it was the balance of probabilities on non-derogating orders, rather than just a reasonable suspicion?
Lord Falconer of Thoroton: No, I do not think that is right. The courts have considered the question of the burden of proof in relation to these cases. In a recent
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case, Lord Justice Laws specifically addressed whether one should have a standard such as balance of probabilities. He concluded that that would frustrate the purpose of the making of the orders in many cases, because one is looking at a whole range of material and determining whether a reasonable degree of suspicion is satisfied to justify the need for an order.
We are following a course that the courts have accepted as legitimate. Having said that, because we recognise the seriousness of depriving somebody of his or her liberty, we take the view that, even though it makes it very difficult, which is what Lord Justice Laws says in this case, we nevertheless think the burden of proof—proving that somebody is or was a terrorist—should be the balance of probability in the case of derogating orders. When you are not depriving somebody of their liberty then, following the approach taken by Lord Justice Laws and in order not to frustrate the whole process, we say the right test is reasonable suspicion.
Lord Ackner: I posed a question before the adjournment regarding consultation with the Lord Chief Justice and the senior Law Lord. Much attention has been paid to the function that the judge is to perform. We have had arguments about whether it must be due process, and the extent to which the matter can be rubberstamped. Will the noble and learned Lord reply on whether there has been any discussion? If not, why not, and when will it take place?
3.30 p.m.
Lord Falconer of Thoroton: Yes, there has been discussion on that between the Lord Chief Justice and myself. We both take the view that it is appropriate that Parliament should decide what should happen regarding the matter.
Lord Garden: Does the noble and learned Lord the Lord Chancellor agree that it is the perception of whether the procedures are just that matters so much? As I said on Second Reading, every terrorist organisation wants to provoke governments into repressive measures or apparently repressive measures. I have listened to the debate. I am not a lawyer, and most of this goes way above my head, as I imagine it does those of people in the Muslim communities who are going to be affected by it, but I know that if these procedures are not clear and obviously just, though there may be some short-term advantages in banging up the odd person now and again, the long-term damage in recruiting more people to terrorist causes is likely to be much increased.
Lord Falconer of Thoroton: We are extraordinarily conscious of that. We have to make it as clear as possible that the procedures we are adopting strike the right balance. That is why, for example, SIAC is not involved in any of this. The High Court of England and Wales, the Court of Session and the High Court of Northern Ireland will determine the procedures.
Our judiciary is second to none in its independence. It will make the decisions on the basis of material that is available. I hope that orders will need to be made in

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only a very few cases. However, as the noble Lord, Lord Garden, says, we need to strike a balance between providing appropriate protection and having a procedure that is as fair as possible and that people perceive as fair.
Lord Wedderburn of Charlton: Perhaps I may take my noble and learned friend back to his answers to my noble friend Lord Plant. As this debate is a record that will be scoured by many people, I think that points of uncertainty should be covered.
As I understood him, my noble friend Lord Plant suggested that Article 5 was particular in not containing the proviso, as I shall call it, regarding measures that are necessary in a democratic society and prescribed by law, and so on, in Articles 8 and 9. However, if my noble friend accepted that only Article 5 was in issue, perhaps he was suggesting that Article 6 has such a proviso. But of course it does not. I am thinking now of the civil rights protection of Article 6. I am thinking of a cocktail under what, this morning, I called the "liquorice allsorts page 2" of the Bill. It is very difficult to think of any effective cocktail of control which would not almost certainly, or at any rate very likely, infringe some right by the commission of a tort.
Those rights are protected by Article 6 as requiring,
"a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
It may be that Article 6 is not a favourite of anyone but me, but I suggest that it should be covered and that my noble and learned friend should tell us what he thinks about that article.
Lord Falconer of Thoroton: That is an entirely legitimate point. There needs to be a fair procedure in determining people's rights, whether under judicial review or under the process in relation to derogating orders. At the heart of the issue of whether there is a fair procedure is the question of whether it can be a fair procedure when the suspect does not see all the allegations against himself or herself. The courts in this country—in relation to the SIAC process, where precisely that happens—have held that that is a fair procedure under Article 6.
So we are conscious of, as my noble friend says, the need to satisfy Article 6. In the light of the fact that the courts in this country have upheld the SIAC procedure, we think that we will satisfy it in relation to these matters.
Lord Waddington: I am very grateful to the noble and learned Lord the Lord Chancellor for much that he has said. He has clarified a number of matters. But there is one matter which he certainly has not clarified. Is it not wholly artificial to give the judges a different role in the case of derogating control orders from their role in the case of non-derogating control orders, when the noble and learned Lord the Lord Chancellor himself cannot say which of the requirements in Clause 2 will offend against Article 5 and which will not?
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The Bill has had to be drafted as it has because one looks at all the different requirements that can be made of a person under Clause 2, but one cannot say with any certainty whether a derogation is necessary. If that is so, surely there is the very strongest case for simplifying the Bill by having the same judicial intervention in the case of derogating control orders as in the case of non-derogating control orders. If the noble and learned Lord would concede that, we really would have got somewhere today.
Lord Falconer of Thoroton: With respect to the noble Lord, it is not the case that it is possible that any order made under Clause 1 would offend against Article 5. It is very unlikely that if the Home Secretary intends it to be a non-derogating order, it would be anything other than that. For example, if you restrict someone from associating with one person, there would be no argument but that that was a non-derogating order. If there were any legitimate doubt about it, I have absolutely no doubt that the Home Secretary would not do it unless he derogated. In the vast majority of situations that one can think of, it would be utterly clear whether it was a derogating order or a non-derogating order.
So, with the greatest respect to the noble Lord, I do not think the difficulty arises in the way that he says. But he has raised a fundamental question which has been asked time and again in the course of the debate. What is the reason for the distinction between the non-derogating order and the derogating order? The reason for the distinction is that we think that, in principle, these are matters that the Executive should decide, but subject to judicial oversight. Because of the representations that have been made and because in a derogating order you are depriving someone of his liberty, we have accepted that a special measure should be put in; namely, a judge deciding in advance of the order being made that either it should be made or leave should be given to enforce it.
So we think that the starting point should be that the Executive should make the decision, but subject to judicial control. Because of the understandable concerns raised, in the exceptional case of deprivation of liberty, the judge comes first.
Lord Mayhew of Twysden: I am grateful to the noble and learned Lord the Lord Chancellor. Would it be clear in the vast majority of cases? The Government are saying under their scheme that it is all right not to have a judge involved in a non-derogating case, but in a derogating case he will be involved.
Quite some time ago—before the adjournment, I think, but it may have been afterwards—I was perturbed to hear the noble and learned Lord the Lord Chancellor say in relation to paragraph (o), in this long list of 15, that,
"a requirement on him to report to a specified person at specified times and places",
would not be an infringement of his rights guaranteed by Article 5. But if that is imposed upon me, it is an imposition upon my liberty not to be at that specified place and at that specified time. As the noble and learned Lord said a minute or two ago that Parliament was to

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decide these things, I wonder whether we are being offered anything like a sufficiently clear watershed between one category of case and the other.
Lord Falconer of Thoroton: I do not think that anybody would suggest that making the noble and learned Lord, Lord Mayhew, report to the police station, say, once a week would constitute a deprivation of his liberty under Article 5. It may well engage other of the noble and learned Lord's rights. It is wrong that he should be asked to report to a police station once a week unless there is a good reason—for example, connected with national security—and it is a proportionate response to the threat which he posed. It would never be an infringement of his liberty, therefore it would never be a derogating order, but other rights would be engaged under the European Convention on Human Rights. If the response was disproportionate or not pursuant to a legitimate aim such as national security, judicial review would strike it down, which is a perfectly sensible framework.
Lord Carlisle of Bucklow: The Minister has not answered my specific question. In his opening speech he suggested that a curfew order would not be a deprivation of liberty. I find that extraordinary. Surely if someone is to be required to stay in a building, let us say from 7 p.m. to 7 a.m., that must be a deprivation of his liberty.
Lord Falconer of Thoroton: It is not a deprivation of his liberty under the jurisprudence of the European Convention on Human Rights. It would be legitimate only as a non-derogating order if it were pursuant and proportionate to a legitimate aim. Our courts, under judicial review in this scheme of things, could judge that matter and it would reach the courts quickly.
Imagine such an overnight curfew being imposed. The effect would be that someone would have to stay in his premises overnight. He could get to court, he would obtain legal aid and he could say to the courts within a matter of days, "This is disproportionate; this is not right". The court then might say, "We've looked at the material, we've heard what you've got to say, but we think that it is in order to protect national security and this is a proportionate response", because for example there was material suggesting that if the curfew was not put in place there would be a material risk of some atrocity being committed.
In the first instance the Home Secretary would have to make the balance, but the court would be able to weigh whether it was a proportionate response and pursuant to a legitimate aim. That is the scheme that we are putting in place. The judgment for this Committee, in the light of the threat and the advice that we have received from the security services, and in the light of the judgment that we and also the other political parties have made, is whether this is a sensible way of dealing with the matter.
Lord Wedderburn of Charlton: Suppose I was put under a curfew, and I did not comply with it, and when the constable manhandled me back through the front
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door I said to my legal advisers, "I think the first thing we'll do is go ex parte for an injunction and then we'll follow that up in the normal course: damages and costs will come one day". Where is my noble and learned friend's defence in the articles of the convention for an action based perhaps on trespass to the person?
Lord Falconer of Thoroton: I think that the question is directed to where is the defence for the agent of the state on the basis of the proposition advanced by my noble friend Lord Wedderburn. If the position were that it was an unlawful order because it was either disproportionate or because it was not pursuant to a legitimate aim that justified it there would not be a defence for it. That is the law because we are setting up a legal framework in respect of which those matters can be judged.
Lord Wedderburn of Charlton: I hesitate to interrupt my noble and learned friend, with his great experience of these matters, but on what authority does he base the defence of trespass to the person on the proportionality of the trespass?
Lord Falconer of Thoroton: I may have misunderstood my noble friend's proposition, but, as I understand it, an unlawful order is made, someone seeks to enforce the order and the order is then set aside. I imagine that in those circumstances a remedy would be available to the person against whom the wrongful order had been made.
Lord Cameron of Lochbroom: I was interested in what the noble and learned Lord said about proportionality. Amendment No. 55, which deals with non-derogating orders, starts with the power to make a control order against an individual if the Secretary of State,
"has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".
Amendment No. 79, which seeks to add a new paragraph at the end of Clause 3, says that,
"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".
I am not entirely clear how the issue of proportionality arises in relation to a new paragraph that says that the Secretary of State can make an order and it does not have to be connected with his suspicions, although those are the grounds on which he chooses the person to be subject to the non-derogatory order. Will the noble and learned Lord satisfy my concern?
3.45 p.m.
Lord Falconer of Thoroton: In order to make a non-derogating order one must first have reasonable suspicion that the person is, or was, a terrorist; and, secondly, the circumstances must justify the making of the order. One might come back on a second occasion, having established by material on the first occasion, that there was reasonable suspicion that that person is, or was, a terrorist.

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One could then put before the court, if the issue arose in relation to court, "Here is material"—perhaps from an informant—"that suggests that this person is about to do something of great danger". That material could be entirely different from the material on which we rely to show that he is a terrorist. That is the only reason why the provision is there.
Lord Lloyd of Berwick: I promise not to interrupt again.
Noble Lords: No!
Lord Lloyd of Berwick: The problem is that there is no offence of being a terrorist. When the person is arrested it is basic English law that he must be told for what offence or offences he is being arrested. For what offence is this man being arrested? The answer might come, "Being concerned in the preparation and instigation of an act of terrorism", but that is not an offence.
Lord Falconer of Thoroton: The essence of the procedure is not about arrest. It is the Home Secretary concluding that the person is, or was, a terrorist—let us put aside the question of burden of proof for a moment—and the circumstances are such that we need a control order to protect the nation against what that person may do.
Those are in essence the two elements, whether it is a derogating or non-derogating order. That is the issue raised by the making of such an order. The committee of the noble Lord, Lord Newton, and the noble Lord, Lord Carlile, acknowledged that the difficulty is that there is some material that supports those two contentions that we cannot disclose to the suspect. Everyone agrees that if we were to do such a thing we might put the method of our surveillance or our informants at risk.
However, we know, and the court knows, what has to be satisfied before an order can be made. It can judge whether the two issues to which I have referred have been made out. In the course of that series of interventions over the past hour and 12 minutes I think that I have dealt with almost every point.
Lord Elton: A point raised by the noble Lord, Lord Stoddart, has not been dealt with. It goes back to the reasons why the provision is necessary. He asked how many suspects there were. There was a range of figures from 100 to a handful, and the noble and learned Lord replied that it was not a good thing to speculate. He is not being asked to speculate: he is being asked to say which of his colleagues was right. What is the answer?
Lord Falconer of Thoroton: I am not prepared to say how many people are currently liable to be the subject of control orders. It would not be appropriate to say that and I am not going to comment on the question.
The Earl of Onslow: Will the noble and learned Lord, during the little break, either pick up the telephone or ask one of his assistants to do so and call No. 10 Downing Street? The Prime Minister said that there were several
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hundred and a year ago the Government said that there were none. Will he get from the Prime Minister an authoritative answer to the question that goes to the core of the Bill? If there is only one spare Muslim wandering about in a slightly doolally way saying, "I think I'm going to blow up a telephone box", we do not need to undermine the whole law of England for that. If, however, there really are hundreds of people wandering about with serious intent against whom the authorities have not found evidence but think that they might, then even my objections to this thing might be slightly chipped at the edges. But so far I have found no evidence from anybody on what the threat really is.
Lord Stoddart of Swindon: Before the noble and learned Lord answers, may I elaborate a little on the noble Earl's point? It is an important one. The difference between several hundred, 20 or 30 or a handful is very important in the context of the Bill because we have to be proportionate in everything we do. The important point is this: the Prime Minister said that there were several hundred British citizens who could be engaged in, or were preparing to engage in, acts of terrorism. He said it on "Woman's Hour", which goes out to about 6 million people. That was then reported on other news broadcasts and in the newspapers, so that millions of people have got it into their heads that the Bill is about controlling several hundred potential or actual terrorists. If the message had gone out that there were 20 or 30 terrorists, then people's attitude towards the Government's actions could be entirely different. That is why it is important to know exactly what we are talking about. Is the figure several hundred? If so, what evidence is there of that? Is the figure 20 or 30, as the security services believe? Or will a handful of people be affected by this measure, as the Commons were told? It is a crucial point, which I believe has to be answered before the Committee allows the Bill to go forward in any form.
Lord Falconer of Thoroton: It would be wrong to say how many it is envisaged would be covered by the Bill.
Lord Stoddart of Swindon: The Prime Minister has said it.
Lord Campbell-Savours: Will my noble and learned friend remind the Committee that it was one bomber who blew up the Grand Hotel in Brighton, another one who flattened the centre of Manchester and another one who blew up Canary Wharf? That is only three.
Lord Falconer of Thoroton: What my right honourable friend the Prime Minister said on "Woman's Hour"— probably a more challenging forum than this—was words to the effect that some hundreds were under surveillance. I am not quoting directly. That is a very different issue from how many control orders would be needed. I shall not speculate on how many control orders would be needed, save to say two things. For foreign nationals, the number of Part 4 orders made was under 20—I think that it was 17 at most. In relation to what was anticipated, my right honourable friend the Home Secretary said in another place that he would expect these powers to be used very, very sparingly.

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There is no inconsistency between what the Prime Minister or the Home Secretary have said. The issue is whether it is right to take these powers. I keep coming back to the proposition that the people who have looked at this, including the security services and the noble Lord, Lord Newton—I do not say for a moment that he says it should be these powers—accept the need for something other than the normal criminal process. What we are trying to do, and we are doing it constructively, is craft the fairest, least intrusive process that provides the necessary protection that all those wise people have said is required. It is not without significance that both the Conservative and Liberal Democrat Front Benches agree that we need something. The question is what it should be.
As I was saying rather optimistically, I thought that I had dealt with almost every point that had been made. However, the noble Lord, Lord Forsyth of Drumlean, is shouting with enthusiasm the words, "Scotland, Scotland", and I understand what he means. The Bill extends to the whole of the United Kingdom. There is a specific difference in relation to Scotland in this respect. Whereas the Lord Chancellor—myself—will make the rules that apply to Northern Ireland, England and Wales, in Scotland the Lord President of the Court of Session will make the rules that determine how these processes are dealt with.
The specific question of the noble Lord, Lord Forsyth of Drumlean, was whether the Home Secretary, as opposed to the Secretary of State for Scotland, would make these orders when they apply to somebody in Scotland. The answer is we would expect that the Home Secretary would make an order in relation to somebody covered by the provisions who was in Scotland.
Lord Forsyth of Drumlean: I am most grateful to the noble and learned Lord. That is quite a departure; in the past it would have been the Secretary of State for Scotland. Detention and arrest have a different meaning north of the Border, as the noble and learned Lord knows. If the Home Secretary made an order to arrest someone living in Scotland, he has no operational interest in respect of the Scottish police. Does that mean that an English policeman would be sent to Scotland to make the arrest?
Lord Falconer of Thoroton: Save in relation to the effect of Amendment No. 91, we must remember that these orders are made either by the Home Secretary or by a court and that they impose particular restrictions. If there is a breach of those orders, it will be necessary to use the local police force to enforce the offence. But this is not abnormal; arrangements have traditionally been that the Secretary of State for Northern Ireland deals with terrorism and orders under provisions relating to Northern Ireland, while the Home Secretary deals with terrorism issues in the rest of the United Kingdom.
I hope—
Lord Forsyth of Drumlean: I am sorry to press the noble and learned Lord on this matter, but it is
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important. I can think of no precedent where the Home Secretary has exercised power in Scotland involving officers from any force. If there was a requirement in the past, the Home Secretary would have taken action in consultation with the Secretary of State who had responsibility for the Scottish police, and arrangements were made for that.
I live in Scotland so I would like to know the answer to this question. Under these proposals, if the Home Secretary had reasons to exercise the powers which are set out in Amendment No. 91 providing that a constable may arrest and detain an individual and if that person lives in Scotland, will the Home Secretary send a policeman from London or from England to do that? If not, how would he be able to direct the police who are subject to the devolved Administration? I suspect that that is the position, but I think we are entitled to know.
Lord Falconer of Thoroton: As the noble Lord, who is a distinguished former Secretary of State, will know, no Secretary of State can direct the police to do anything. If an arrest is required under Amendment No. 91 and the person was in Scotland, that would almost certainly be dealt with by the arrest warrant being handed to the Scottish police who would then decide how to execute it. If it happened in Strathclyde, it would be dealt with by the Strathclyde police, not by a constable coming across the border. There would be no need for that.
Lord Forsyth of Drumlean: So the noble and learned Lord is saying that the Home Secretary would give a direction to a chief constable in Scotland.
Lord Falconer of Thoroton: The constitutional position is that no Minister can give a direction to a police officer. If an arrest is required because of a court order, the arrest warrant can be given to the police and it will be for them to decide what they do about it. There is no question of direction in that respect.
I have not dealt with the point made by the noble Lord, Lord Carlile of Berriew, about special advocates. He said that special advocates needed more support than they were getting at the moment; that more of them were needed; and that special advocates were needed who had experience in, for example, criminal law and cross-examination. I agree entirely with what the noble Lord said. I gave evidence two or three days ago to the Constitution Committee, which was as concerned as the noble Lord about that point. I indicated that we would address the points that he made. At the heart of the problem for special advocates is the fact that, until now, they have been, as it were, on their own. They do not have an instructing solicitor; they do not have somebody who is development-cleared to see the material that that they have seen. We need to solve that problem.
There are certain issues that we may not be able adequately to resolve; for example, the process by which the special advocate takes instructions for, or is accountable to, the suspect after he has seen the closed material. The difficult question is whether one then

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gives to the suspect information that endangers informants. But, in broad principle, I accept what the noble Lord, Lord Carlile of Berriew, has said about the problems of special advocates, and we have already made proposals which I hope will deal with the points that I have made.
I hope in the light of what I have said that I have cleared up any misunderstandings about what we are proposing and that noble Lords will feel able to support Amendment No. 1. Subject to the views of the Committee and after discussions through the usual channels, we have agreed that the appropriate course, which does not in any way prevent noble Lords tabling amendments later, is that we should put the Government's amendments in the Bill, without prejudice to what may happen to them subsequently, simply with a view to ensuring that there is absolutely no doubt in people's minds about the detail of the Government's proposal. I think that that would be the most convenient way for Members of the Committee to continue the debate.
4 p.m.
Lord Stoddart of Swindon: Before the noble and learned Lord sits down, will he clear up one more misunderstanding? He said that the Prime Minister referred on "Woman's Hour" to several hundred people being under surveillance. I had been led to believe that he said on "Woman's Hour" that,
"there were several hundred people in this country plotting to, or trying to, commit terrorist acts".
That is quite different from saying that there were hundreds under surveillance. Can he clear that up? What exactly did the Prime Minister say? Is he right or am I right?
Lord Falconer of Thoroton: As I hope I made clear, I do not have a record of the precise words that my right honourable friend the Prime Minister said on "Woman's Hour". I would need to look at it. The essential point that I am making is that the numbers to which the Prime Minister referred on "Woman's Hour" are not the same as the numbers in respect of whom control orders would be made.
There is no real inconsistency between what my right honourable friend said on "Woman's Hour" and the fact that my right honourable friend the Home Secretary said in another place that he expected the powers to be used sparingly and that there would not be that many cases in respect of which an order would be made. I am not prepared to speculate on what the precise number would be. The Committee should remember that the powers have been in existence for some time.
Lord Carlisle of Bucklow: Assuming that this amendment is passed and, therefore, the other amendments cannot be taken, will the noble and learned Lord deal with one of the questions that I asked; namely, whether the Director of Public Prosecutions should assure himself that the conditions exist in which a fair trial would not be possible before an application is made?
Lord Falconer of Thoroton: I did not deal with that question because that issue will be dealt with
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separately when we come to Amendment No. 126. I think that it is covered also by Amendment No. 8. Amendment No. 8 is in a separate grouping so we will come to it. Enjoyable though it is to discuss it, I ask that we postpone discussion of the role of the DPP until we come to the appropriate amendment, which is Amendment No. 8.
Lord Carlisle of Bucklow: I do not think that Amendment No. 8 is movable. It relates to the first 16 lines of the Bill, which are to be deleted.
Lord Falconer of Thoroton: The Marshalled List before me shows Amendment Nos. 2 to 5 as being amendments to Amendment No. 1. If Amendment No. 8 is pre-empted, our response to the noble Lord's question is Amendment No. 126, which sets out the involvement of the prosecuting authorities in the process. That deals sufficiently with the point that has been made by my right honourable friend the Home Secretary' and by my noble friend Lady Scotland of Asthal; that is, that we always regard prosecution as the preferred option, but that we recognise that, in certain cases, prosecution will not be possible. Amendment No. 126 would require the issue of prosecution to be kept under constant review while a control order is in force.
Lord Goodhart: I think that the grouping comprises Amendments Nos. 8, 13 and 126. While Amendment No. 8 will be pre-empted, Amendment No. 13 will not. It is also in the name of the noble Lord, Lord Carlisle of Bucklow.
Lord Kingsland: The noble and learned Lord referred to the usual channels. It was understood between the usual channels that a discussion on Amendment No. 8 would take place. If your Lordships were to glance at the latest list of amendments. your Lordships would see that the first amendment in the fourth group is Amendment No. 8. While we understand that, in order to be absolutely clear about the Government's case on Report, it is desirable to have all the Government's amendments included in the Bill when it reaches Report, that should not be used as a means of constraining the logical process of debate in your Lordships' House. If we are going to debate at a later stage where the DPP comes in, it would be wholly unfair to exclude the possibility of discussing Amendment No. 8.
Lord Falconer of Thoroton: I make it absolutely clear that that is not intended. There will be no preclusion of the matter coming back on Report. I put that on the record.
Lord Donaldson of Lymington: I thought that the noble and learned Lord had indicated that he was not going to accept my alternative but would give serious consideration to it over the weekend. If the usual channels have agreed that Amendment No. 1 should be voted on today, surely that precludes me saying on

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Report, "Well, let's get rid of Amendment No. 1. Let's go back to the Bill as it is at the moment, and let me amend that".
Lord Falconer of Thoroton: I can give the noble and learned Lord the assurance—the Clerks are nodding vigorously in my direction—that, assuming that there is no vote on my Amendment No. 1, the amendment tabled by the noble and learned Lord, Lord Donaldson of Lymington, would not be prevented from coming back later. I hasten to reassure all Members of the Committee that I am putting Amendment No. 1 in the Bill without in any way precluding any change that may be made subsequently. I am inserting the amendment only to ensure that there is absolute clarity about what we are debating. We all know that if we start having three or four different lists it becomes impossible.
Lord Thomas of Gresford: I am grateful to all noble Lords who have participated in this interesting and very important debate. I am particularly grateful to the noble and learned Lord the Lord Chancellor, who for well over an hour has endured an expert cross-examination by noble Lords. At times I thought that under Magna Carta he would have been facing trial by his peers, the charge being that the reason why the distinction between foreign nationals and British citizens has been dropped is that the Law Lords have said that there can be no discrimination under the European convention. His defence has been to say no, an unnamed number of terrorists who are British citizens have suddenly come out of the woodwork over the past few months.
If we were to pass judgment, we might not do so in the Lord Chancellor's favour. I was reminded of a short debate held in this House several years ago when capital punishment was finally abolished. We considered whether Life Peers should be hanged with a silken rope or by a hemp rope like everyone else. Lord Williams of Mostyn determined that a hemp rope would do very well.
Do we need control orders at all? That matter was raised by the noble and learned Lords, Lord Lloyd of Berwick and Lord Donaldson of Lymington, and by the noble Baroness, Lady Kennedy of The Shaws. I understand their position to be that the judiciary might be tainted by appearing to rubber stamp an administrative decision. I do not see it that way because, when the Government are in litigation with an individual, a judge will frequently find in favour of the Government in judicial review proceedings. No one would suggest that the judge is tainted by the fact that he has found for the Government in a case involving judicial review. Provided that there is a proper case, I respectfully suggest that no one could suspect a judge of being tainted by his conclusion.
It is more a question of trust. Do we trust the Government to reflect properly the information they receive from the security services in relation to terrorism? Members of my party have come to the conclusion that we must trust the Government in this. We are strengthened by the fact that the view that there
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is a very considerable terrorist threat has been expressed on previous occasions and again today by my noble friend Lord Carlile of Berriew. So we concede that control orders are required.
However, once we come to that conclusion, we are no longer dealing with immigration law. I am grateful to the noble Lord, Lord Stoddart, who stressed the point that everyone in this country is now involved and at risk. When in 2001 we were dealing with the legislation brought forward in the aftermath of 9/11, someone in the Home Office used the wheeze: "We cannot just intern people. We will use immigration control"; the let-out being that the people arrested and put in Belmarsh could walk out any time they wanted, provided they went abroad to a country that would receive them. My noble friends and I said at the time that that would not satisfy the European convention, and three years later we were proved right.
As for SIAC, to which reference has been made, at the time that Bill was introduced it was a rather lowly tribunal dealing with immigration appeals. When we pointed out that the provisions would be subject to judicial review, the Government's answer was to make SIAC a special court of record and therefore immune to judicial review at the time. We seem to be going in the same direction here.
The longer I listened to the debate, the more strongly I came to the conclusion that we must have a common procedure for obtaining control orders and that the Secretary of State must apply to the court. The court should follow the procedures set out in government Amendment No. 80 which, while broadly speaking they are right, we will seek to amend. At a very early stage, an application will be made to a judge, who will make an interim order.
Turning now to the point made so valiantly by the noble Baroness, Lady Hayman, if counsel for the Secretary of State applies to the judge for an interim order within a short time and asks for four or five restrictions out of the list—the liquorice allsorts set out in Clause 1—the judge could respond by saying, "If you get all you are asking for you will be in derogation of Article 5, but you can have two or three". The judge can decide the interim order under this procedure without involving a breach of Article 5.
4.15 p.m.
The next stage for the Government—except, of course, that they are limited to derogating control orders as drafted—is that there is then a full hearing when the court may confirm the control order or revoke it, but essentially make a decision on its merits. We say that this procedure can apply to all control orders, and that is what we will be seeking.
As I said initially, this is only a part of the position. Having a judge decide matters is useless unless there is proper due process. We shall debate that issue either later today or on Monday, so I hope that the Committee does not think that we are finished at this stage. This is only a part of the proposals we are putting forward.

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The noble Lord, Lord Forsyth, has pursued the point about which policemen will be involved. I have often thought of what would be the situation under the Government's proposals, where the Secretary of State makes the order and you, the suspect, are at home when the knock comes on the door in the middle of the night and you open the door. Who is there? Is it a policeman? There is no provision for that in the Bill. Is it a messenger of the Secretary of State? The Committee will remember my reference at Second Reading to Entick and Carrington and what happened in the 18th century. Is it the tipstaff from the court? Or could it be that we should have recourse to a resource which has not been used for many years—the High Sheriff?
The Committee will recall that a great deal was said about "men in tights" when there was an invasion of the House of Commons. We have a nationwide matrix of men in tights carrying swords who, since the abolition of hanging, which they used to organise, have been looking for a role. Perhaps this is it. When the knock comes on the door and the terrorists go to the door, there is the man in tights, not dressed as Black Rod would be dressed but in a velvet suit in addition.
I shall not detain the Committee much longer. We shall return to this matter on Report. For the moment, I beg leave to withdraw my amendment to the amendment.
Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.
Lord Kingsland: I may not have been following the proceedings as intimately as I should have, but have we passed Amendment No. 1?
The Deputy Chairman of Committees (Baroness Lockwood): No. The next amendment is an amendment to Amendment No. 1.
Lord Thomas of Gresfordmoved, as an amendment to Amendment No. 1, Amendment No. 3:
In line 14, after "obligations" insert "specified in subsection (3)"
The noble Lord said: The purpose of these amendments is to confine the obligations that are set out in Clause 1. Subsection (3) states, "the obligations may"; we believe that the word "may" should be omitted and that the obligations should be confined to those listed.
The Bill as drafted permits the Secretary of State to make any obligation; he is not restricted to the ones set out in the Bill. The purpose of the amendment is to say, "Well, if you are going to have a list of this length, that is as far as those obligations should go", I beg to move.
Lord Kingsland: I rise to speak to this amendment and to a number of our amendments that are grouped with it, in particular Amendments Nos. 14, 16, 19, 21, 22, 24 and 26 to 29.
I respectfully agree with the noble Lord, Lord Thomas of Gresford. The measures that are set out on the face of the Bill, and in particular certain combinations of them,
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are punitive measures if imposed by the court. In our submission, therefore, it would be quite wrong to set them out purely as examples of what can be done. If somebody is going to be on the wrong end of one of these orders, they ought to know in advance exactly what the wrong end will look like.
I share the noble Lord's view that this list ought to be conclusive and that no other kind of order can be advanced unless there is an amendment of the legislation. I agree that a cocktail of what is on the face of the Bill could be asked for by the Secretary of State.
I move on now to the particular list. Most of these amendments, save one, would fall after Clause 1(3)(o); in other words, after page 2, line 39 of the Bill. Amendment No. 20 states:
"A control order may not prevent or restrict the controlled person from meeting with or contacting by telephone his legal representatives in connection with the control order or any other matter".
We believe that ought to be on the face of the Bill because it is not clear that that would be the case, bearing in mind the earlier orders that the court could make.
Amendment No. 26 states:
"A control order may not prevent or restrict the controlled person from voting in person in any election".
The noble and learned Lord the Lord Chancellor has made it clear that these are not orders that result from criminal convictions. Therefore it is wholly inappropriate that someone subject to a control order should be prevented from voting.
Amendment No. 27 states:
"A control order may not prevent or restrict the controlled person from standing as a candidate in any election, including attending his election count".
Once again, it seems to me to be wholly inappropriate to prevent a controlled person from standing as a candidate or attending his own election count. I accept that certain stipulations under Clause 1 (3), if approved by the court, would limit the powers of the controlled person to campaign in the three weeks running up to the election.
Amendment No. 28 states:
"A control order may not prevent or restrict the controlled person from displaying a poster in support of or opposition to any candidate or political party at an election".
The logic of that amendment flows from the two previous amendments.
I should like to draw your Lordships' attention to Clause 1(3)(n) on page 2, line 35 of the Bill. It states with reference to the potential controlled person:
"a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand".
The order requires somebody to answer questions. In particular, the implication of Clause 1(3)(n) could require that person to answer questions from a foreign agent. If he refused to do so, it would result in a lengthy gaol sentence. The penalty for not complying with orders is a conviction with a sentence up to five years.

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Amendments Nos. 19, 21, 22, 29 and 24 seek to provide some protection against that situation. Amendment No. 19 would delete paragraph (n). Amendment No. 21 would provide that:
"A control order may not require a person to provide information or to answer questions".
Amendment No. 22 states:
"Where a controlled person is required to meet with or report to a specified person he shall be entitled to have his legal representative present".
Amendment No. 24 states:
"A control order may not require the controlled person to talk to a specified person or any other person who is not a British citizen or is in the employment of or under contract to any foreign government".
The logic of that amendment flows from my concerns, which I have already expressed, about Clause 1(3)(n). Amendment No. 29 states:
"A control order may not require the controlled person to leave the United Kingdom".
Again, the logic of that does not require any further explanation from me.
A matter touched on a number of times in the course of the exchanges between the noble and learned Lord and other Members of the Committee during the noble and learned Lord's winding-up speech on Amendment No. 1 is the role of Article 6 of the European Convention Human Rights in relation to this farrago of measures. The noble and learned Lord has already accepted that Article 6 of the European Convention on Human Rights bites in so far as a civil right is affected. But let us suppose that the European Court of Human Rights found that the list of constraints and restraints set out in Clause 1(3) amounted, not to civil penalties, but to the equivalent of criminal penalties. Would not the noble and learned Lord then agree that the more demanding requirements of the criminal dimension of Article 6 would bind the state? If that is so, it would have profound implications for what the Bill subsequently says on due process.
The Duke of Montrose: In the truncated way in which we are addressing the Bill, two amendments to which my name is attached are in this group. I wish to speak to Amendments Nos. 37 and 38 now. So far as I can see, the main reason that they are in this group is that they relate to Clause 1 and we have simply lumped together as many amendments relating to Clause 1 as can conveniently be grouped.
Amendment No. 37 provides that nothing in the Bill,
"shall authorise the disclosure of information subject to legal privilege".
That issue has been put to me by the Law Society of Scotland. The reason for it is that Clause 1(3)(n) makes provision to require an individual to comply with a demand to provide information. Article 8 of the European Convention on Human Rights enshrines the right to privacy. Scots law has traditionally protected the relationship between a solicitor and his or her client, and has made provision for the doctrine of legal
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privilege. To ensure that such communications remain protected, provision should be made in the Bill to the effect that Clause 1 will not extend to the disclosure of such information. This amendment seeks to achieve that.
Amendment No. 38 would ensure that reference is made in the Bill to the protection against self-incrimination when an individual is providing information pursuant to a requirement of the Act. The reason that the Law Society of Scotland believes that protection against self-incrimination should be referred to in the Bill is to ensure that an individual's rights are preserved.
The European Court of Human Rights found a violation of Article 6(1) of the European Convention on Human Rights in the case of Funke v Funke [1993], in which the applicant complained about the imposition of a fine for his refusal to produce bank statements and legal papers that Customs authorities believed to exist but could not find during a legal search of the applicant's premises.
Similarly, in the case of Saunders v UK [1996] the court found a breach of Article 6(1) in circumstances where a company executive was compelled to provide information about the business activities of the company to one government authority which turned the information over to prosecuting authorities for use in subsequent criminal proceedings against him. By referring to the protection on the face of the Bill, an individual responding to a request made under this Bill will be aware of the extent of his or her rights and responsibilities.
4.30 p.m.
The Earl of Onslow: The Americans have something known as "Taking the fifth", which says that you need not answer any question that may incriminate you. Subsection (3)(n) says that unless you do answer a question that may incriminate you, you can go down for five years. It says, as my noble friend on the Front Bench said, that you have to answer questions from foreign police forces if they are asked over here, that you must answer questions from our own police force, and that you may not avoid them.
That subsection would fit very happily in the rule book of the NKVD or the Sicherheistdienst of Mr Hitler. These are the instruments of tyrants—I use the word deliberately. To force people to answer questions under threat of punishment to incriminate themselves is the instrument of a tyrant. If that is not against the European Convention on Human Rights, this building is a funfair.
Lord Plant of Highfield: I support the amendments, especially the one in the name of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The list of obligations set out in the Bill is long, onerous, open-ended and somewhat indefinite. A good case was made by the noble Lord, Lord Thomas of Gresford, to freeze the set of obligations at this and not to have others that could be brought in using the enabling part of the legislation, rather than putting them through by extra legislation.

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I have not really thought about this, but I am also rather in favour of the point made in the amendments tabled by the noble Lord, Lord Kingsland, about being involved in elections. That relates back to something said by the noble Lord, Lord Garden, about hearts and minds. Someone who has not been convicted of a criminal offence should not be prevented by the Bill from being engaged one way or another in the democratic process. It might be regarded as an advantage for that to happen. I may be nä̵ve about that, and I have not had a chance to think about it very much, but it is, on the face of it, an attractive idea. I would be prepared to back such amendments.
The next point relates back to a discussion that we had on the first group of amendments. I am pretty convinced by what the noble Lord, Lord Kingsland, said about Article 6. 1 believe that that needs careful consideration. I hope that we shall get a detailed answer to that.
I have been bothered by the point made by the noble Earl, Lord Onslow, no the obligation in subsection (3)(n), in the sense that there will be punishment for not answering self-incriminating questions. That is quite a departure and we would need very strong reasons for going down that road, rather than just approving all the obligations en bloc, even if they were frozen as they stand and not extended.
Lord Goodhart: I shall deal briefly with Amendment No. 30 which stands in my name and that of my noble friend. As the noble Lord, Lord Plant, said, we feel that it is important to spell out on the face of the Bill that no person subject to a control order can be ordered to answer a potentially self-incriminating question.
It is possible that the noble and learned Lord the Lord Chancellor may say in reply that that is already the case under the Human Rights Act. But this is a more limited form of Amendments Nos. 19 and 21, tabled by the noble Lord, Lord Kingsland, which delete Clause 1(3)(n) altogether and provide that:
"A control order may not require a person to provide information or to answer questions".
I have serious concerns about an order to answer questions, even if the answers are incriminating to someone else rather than being self-incriminating. In English law, a person cannot, as a rule, be compelled by the government to answer questions. Of course, someone can be called as a witness in a court and can be compelled by the judge to answer questions, but nobody is obliged to give evidence to the police. There are a few statutory exceptions to that, under the Companies Act, for example, but we need to consider very seriously whether it is appropriate for someone subject to a control order to be required to answer questions that may incriminate, if not him, other people, and to be subject to a penalty of up to five years in prison if he fails to do so.
Lord Judd: Like my noble friend Lord Plant, I support the amendment tabled by the noble Lord, Lord Thomas, because I find the provisions in Clause
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1(3) extraordinarily wide. The clause gives almost unlimited powers to the authorities. We have all expressed our concern about accountability and ultimate control of the situation. It seems to me that Clause 1(3) is in danger of throwing that all away and I hope that that is inadvertent.
We have all picked examples of how general the rules are, and to say that the list is only illustrative compounds the difficulty. I shall pick one paragraph that concerns me and which I know concerns other noble Lords. It states:
"A restriction on his association or communications with specified persons or with other persons generally".
There is no specified limit. Therefore, while 1 support the noble Lord, Lord Thomas, I hope that he will agree that even his amendment has certain weaknesses in this respect because this is a situation with no limits or parameters. It takes us back to our anxieties on the previous group of amendments when the noble Earl, Lord Onslow, made extremely clearly the point that for many ordinary people the distinction between "deprivation" and "restriction" of liberty is pretty theoretical.
Lady Saltoun of Abernethy: I have been in two minds about whether to speak to Amendment No. 17, which I tabled, in this group or to speak to it separately next Monday, but I think that it would be best if I get it over with now.
Clauses 1(3)(e), (f) and (g) permit the placing under house arrest of persons suspected of terrorism. I have read all the speeches made on Tuesday at Second Reading that I did not hear, and no reference was made to the logistics of this form of incarceration, which is not one that has been customarily used in this country.
If someone is placed under house arrest, he cannot go to work, so he will probably lose his job and, with it, his income. That means he will not be able to pay his rent, council tax, insurance premiums, pension contributions, interest on loans, and 101 other normal expenses. He will have no money to buy food and necessities. What plans, if any, do the Government have to meet these expenses? In any case, how is someone shut up in their house or flat, and not allowed out, to buy food and the necessities of life? One bright chap—I am afraid it was a fellow Peer—suggested to me that he could send his wife. There are plenty of people in this world who do not have wives and who live alone. Are they to be left to starve? What if they need to visit the doctor or the dentist? Those people do not make many home visits nowadays. Or the prisoner might be a woman with children who have to be fed and got to and from school … What thought haw the Government given to these matters, which are just as important as judicial process and all the rest which have been discussed at length?
It is time it was pointed out that these detainees have not been convicted of any crime and that they are merely suspects, and therefore they are innocent until they are proved guilty. That is a concept which people who are frightened or seeking revenge are inclined to forget. I am frightened of people who are frightened. If a person is imprisoned, he or she is at least lodged

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and fed, and receives medical attention at the taxpayers' expense. I hope the Government are not proposing to treat these suspects worse than Her Majesty's prisoners. I hope the Minister can set my mind at rest about that.
Lord Campbell of Alloway: I had intended to support these amendments, but got lost in the arrangements that were being made. I apologise for not being here when I should have been, when the noble Lord, Lord Thomas of Gresford, opened. I was minded to support his amendment, and in particular I support the amendments of my noble friend Lord Kingsland.
I was determined to deal with this because I have had a bit of this myself, although I was not a terrorist. Why is a special interrogation regime going to be justified? Of course you are a suspected terrorist. In the case of the last war, the interrogation regimes that I was submitted to were well beyond anything allowed by the Geneva Convention. I am interested in this, though I do not fix the Government with the evil intent that my noble friend Lord Onslow did. This could have been done, and overdone, by inadvertence, but it has to be thought out. To what degree are you going to derogate from ordinary entitlements in order to interrogate a suspected terrorist?
Baroness Hayman: Provoked by the contribution of the noble Lord, Lord Campbell of Alloway, could my noble friend, when he winds up this debate, give some more clarity on the issue of evidence that would be admissible either in a judicial review or in any sort of appeal proceedings generally? I think my noble and learned friend the Lord Chancellor said clearly that evidence provided under conditions that amounted to torture would not be admissible, and were not admissible by SIAC. My recollection is obviously incorrect because I thought that the SIAC judgment said that, in evidence that was tainted, that factor would go to the weight that they gave that evidence, but not to the point of exclusion of it. I would be grateful for some clarification on that.
4.45 p.m.
Lord Falconer of Thoroton: The noble Baroness's recollection is absolutely correct. By a majority, the Court of Appeal said exactly that. The Court of Appeal concluded that there was no evidence that in fact had been obtained by conditions that we would regard as torture, but the legal conclusion to which the noble Baroness referred is exactly the legal conclusion that the court came to, having concluded that it was obiter dictum, because there was no evidence of torture before it at the time.
Lord Desai: In his answer, will my noble friend clarify two issues? Would each person have only one control order from paragraphs (a) to (o) placed on him, or more than one? If the latter is the case—and he alluded to this question earlier—is there a threshold, beyond which, if a person is subject to more than one control order, it violates Article 5, as opposed to being
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non-derogatory? Has he formed an opinion whether there is a uniform threshold, or whether it depends upon which combination of orders are used?
Lord Stoddart of Swindon: Surely, we must agree to Amendment No. 3, moved by the noble Lord, Lord Thomas of Gresford. If not, the Home Secretary can do anything. He can impose any obligation on the individual—not just the obligations listed in Clause 1(3), but anything at all. At least the amendment limits his actions to what is set out in the Bill. If we do not have that limitation, he can do virtually anything he likes.
In the normal course of events we trust Ministers to act reasonably. But the very appearance of the Bill and the time that Parliament is being given to consider it, persuades many of us that Ministers and the Government are being completely and utterly unrealistic and unreliable—and simply cannot be trusted. Therefore we need this limiting amendment in the Bill.
There is another group of amendments, which have been spoken to by the noble Lord, Lord Kingsland. and the noble Duke, the Duke of Montrose, which expose the exact problems which will arise from the restrictions set out in Clause 1(3). They have had only a couple of days to think about those—but how many have they not thought about? How many more would they think about if they had proper time between the stages of the Bill? My guess is that people will go home over the weekend and will think about more restrictions which should be placed on the list of obligations that appear in Clause 1(3).
I must reiterate my view and that of virtually every other Member of the House holds—at least, those who are non-Labour—that this is a rushed job and is too important a matter for it to be a rushed job. It is regrettable that the Prime Minister, because it seems to be his fault, will not allow proper consultation between the parties to see if some arrangement can be made to deal with the present emergency caused by the Law Lords' ruling and then for a cross-party approach be taken to tackle the whole problem of terrorism so that an acceptable piece of legislation can be brought forward. I reiterate what I said at the beginning. We must have Amendment No. 3, otherwise the Government can go gaily on and do virtually anything they like to anyone they like.
The Earl of Onslow: A paper was circulated to us saying that Members with Amendments Nos. 6 to 15 could speak, and I think that is a reasonably satisfactory arrangement.
I will move Amendment No. 7, along with Amendments Nos. 63 and 93. As your Lordships can see, they are drafted by a complete non-lawyer, so they probably make no legislative sense whatever. The aim behind them, however, is clear. A system of locking people up because the Home Secretary thinks they ought to be is not satisfactory. I hope that the Home Secretary, with the help of the amendment in the name of my noble friend Lord Carlisle of Bucklow regarding the DPP, would go to a judge and say to him, "We have this evidence against so-and-so. Some of it is extremely good but we dare not use it, but it is of the standard of

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proof we require. Please lock him up". At least there would be a form of trial. Or he might say, "Please can you stop him cycling to the mosque on Thursdays", or whatever they wanted to do to him.
Equally, that should be done by a judge, who should set a term on it. In other words, the man may only not cycle to the mosque on Thursdays for the next three or five weeks, or however long it may be. That way, the judge sets a sentence of some sort and it becomes a judicial process, with a sentence and subject to proof.
I accept that there are terrorist implications, although I am confused by the numbers. I am still not clear whether they are the still small hand of the noble Lord, Lord Stoddart, or the Prime Minister's hordes of Midian. I am arguing for a due process of law, where someone goes to a judge, shows him there is a definite case to answer, with a high standard of proof, and, consequent upon that, the chap can be stopped going to the mosque on Thursdays. Or, I suppose, in this instance, that he might be taken out to the bicycle sheds and beaten up.
Lord Carlisle of Bucklow: I am not sure whether the noble and learned Lord the Lord Chancellor wishes to reply individually to the mini-debates, or whether he would rather hear various people moving their amendments and then reply at the end.
Lord Falconer of Thoroton: As the note mentioned by the noble Earl, Lord Onslow, says, if the amendment the noble Lord, Lord Carlisle, is referring to is between Amendments Nos. 6 and 15, the most appropriate course is for the noble Lord to speak to it now.
Lord Carlisle of Bucklow: I wish to speak to Amendments Nos. 8 and 10. Although I said earlier that I was totally confused, the situation has been made considerably clearer by the last, very long intervention of the noble and learned Lord the Lord Chancellor. I am now a little wiser, as well as being better informed.
I am still concerned that there is no method in the Bill that starts the whole process. I accept that there are cases involving terrorists that cannot possibly be tried in the normal courts of this country. We have, therefore, to find some means by which those people who would otherwise be a danger can be dealt with, in a way as near as possible to that which would provide for a reasonable trial. It follows that both sides of the House should desire control orders to be limited in numbers. Such an order, whether or not it deprives an individual of their liberty, could still be of a draconian nature. That being so, one should be sparing in its use and be absolutely sure that before the procedure starts, someone has satisfied himself that it is not a case that can be dealt with by the normal courts.
The purpose of my Amendments Nos. 8 and 13 is to achieve that end. As it stands at the moment, whether one looks at the Bill or the amendments that we are about to pass, it says that the control order shall he made by the Secretary of State.
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I believe that the Secretary of State should have that power only on application being made to him. I suggest that that application should be made by the Director of Public Prosecutions or on his behalf, and before making that application he should have done all that he can to satisfy himself that it is not a case that can be tried in the normal way.
With respect to the Lord Chancellor, it seems that such a provision provides a greater safeguard than leaving it, as it does at the moment, to the idiosyncrasies of the Home Secretary of the day. I hope that the Lord Chancellor will say that some means must be found—whether I have the right one or not—whereby, before a control order is applied for, someone satisfies himself that no other method of trying the case is possible.
While on my feet, I turn to the next group of amendments, as Amendment No. 10 happens to be in my name. The group deals with the burden of proof. At the moment the Bill, as originally drafted, says that,
"The Secretary of State may make an order … against an individual if he … has reasonable grounds for suspecting that the individual is or has been involved in terrorism".
I do not believe, with respect, that "reasonable grounds for suspecting" is adequate. It is important that on the face of the Bill there should be words that make it clear that the burden of proof rests on the Secretary of State when he makes the application and that there should be a standard of proof before he makes that application.
Lord Clinton-Davis: Is the noble Lord prepared to accept "balance of probabilities", rather than "beyond reasonable doubt" as the filter?
Lord Carlisle of Bucklow: I was just coming to that. I have put it as high as the criminal burden of proof because I was equating it with those criminal cases where people end up in prison and, on this occasion, may end up under house arrest. I realise that I am in a minority on that issue and I realise that my—I was going to say "elders" but I had better say—"youngers" and betters on both sides believe it should be "balance of probabilities" rather than "beyond reasonable doubt". Therefore, although I still believe that there is a strong argument in favour of the criminal standard of proof, at least the insertion of the words "he must be satisfied on the balance of probabilities"—the test taken by the civil courts—would improve the Bill as it is at the moment.
I commend these amendments to the Lord Chancellor. I do not ask him to say that Amendment No. 13 is drafted in a way that is appropriate—there are probably much better words that could be used—but I hope that he will agree to the principle of these amendments and that the Bill must make it clear that there is a burden of proof on those who are making an application for an order.
Lord Kingsland: Amendments Nos. 8 and 13 also appear in my name. I agree wholly with the remarks made by my noble friend Lord Carlisle of Bucklow. I

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would like to underline again that this issue is of central importance to the Opposition. I am talking about the DPP.
5 p.m.
Lord Falconer of Thoroton: My attention flickered for a moment, and when the noble Lord, Lord Kingsland, said it was central to the Opposition, I wanted to work out whether it was the burden of proof or the DPP. I apologise for interrupting.
Lord Kingsland: I am much obliged for the generosity of the noble and learned Lord the Lord Chancellor in his admission.
I say again, this is a central issue for the Opposition, not only because anyone restrained has a right to be tried by his peers—a fundamental principle of our constitution throughout the ages—but also because, if consideration about the feasibility of prosecution is not a precondition, then there will, inevitably, be a temptation for any Government to take the easier course, and go for a control order rather than a prosecution. So there must be stringent requirements on the face of the Bill for the prosecutorial route to be considered and either accepted or rejected at the beginning of the process.
This point was made at Second Reading. I am grateful to the Government for clearly having given it consideration. We find their response in Amendment No. 126. That amendment will be debated later in the day; but it has the same subject matter as Amendments Nos. 8 and 15. I suspect that the difference between us is not over whether or not there should be active consideration about whether to prosecute, but at what stage that obligation should kick in.
We believe that nothing further than an interim control order should be made before the DPP has considered the matter fully, and informed the court as to whether, in his opinion, it would be possible to prosecute the potential subject of a control order. By contrast, it appears that the Government simply want the possibility of prosecution to be kept under continual review once a control order has been made. That is the issue between us. The Government have given ground but, in our submission, insufficient ground. There is nothing in Amendment No. 126 to require the Government to reach a clear conclusion, stated to the court, that prosecution is not possible.
Lord Goodhart: We on these Benches have tabled Amendment No. 59, which is technically in a different group but is on the same subject. It is phrased slightly differently, but the purpose is entirely the same as that of the amendment noble Lord, Lord Kingsland. We make it clear that our position is the same as his, and we too feel that Amendment No. 126 does not make sufficiently clear the essential nature of ensuring that, where a prosecution is possible, it happens, and that a control order is a last resort and not the first.
Lord Judd: I do not often find myself differing with my very good personal friend the noble Lord,
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Lord Clinton-Davis. I always genuinely admire his desire to find a balance and a constructive compromise. However, I say to the noble Lord, Lord Carlisle of Bucklow, that I am sorry if he feels tempted to back off from his stated position. He compared somebody who faces legal proceedings which may end up with his being in prison with somebody who faces being under house arrest indefinitely. That is a very strong comparison.
From the standpoint of our concern, in the midst of all our anxieties about the dangers that confront us to protect the principles which are worth protecting in our society, it would be better in this situation to stick by the terms of the amendment of the noble Lord. Lord Carlisle of Bucklow. Perhaps he was not backing off, but—
Lord Carlisle of Bucklow: I was not backing off. still believe that it would be better to have the criminal burden of proof. I was facing reality. Faced with amendments by both Front Benches that chose balance of probabilities, I said that at least if we got something on the face of the Bill about the burden of proof that would be an advantage. Of course I would like people to go the whole way, but I am being realistic.
Lord Judd: I thank the noble Lord for that clarification. That is a very reasonable and rational way to approach the matter. It is a serious compromise to make because there is a fundamental principle here which he was right to spell out. I would settle for the balance of probability as the baseline for non-derogated control orders. It seems to me that when it comes, as I said earlier in our proceedings, to a judicial review, it puts those conducting the judicial review in a stronger position than they would otherwise be.
I should like to underline that, if in the name of making progress and getting something on the face of the Bill, it would be unfortunate if we modify the language from that originally put forward by the noble Lord, Lord Carlisle of Bucklow.
Lord Clinton-Davis: I agree entirely with the line taken by the noble Lord, Lord Carlisle of Bucklow. We may prefer, ideally, the solution which is before us, but we have to be realistic. When two Front Benches have agreed on the way we should proceed, we must be realistic about it.
Although 1 have great regard for my noble friend Lord Judd, I think that he is, as always, being idealistic about the matter. I am afraid that we cannot afford to be. But we have to get something on the statute book. The provision "on the balance of probabilities" is better than nothing.
Lord Plant of Highfield: I rise to say that I strongly agree with the points made about the role of the DPP in the amendments of the Liberal Democrats and the noble Lord, Lord Kingsland. At Second Reading I said that I thought the role of the Director of Public Prosecutions was going to be fairly central to this and that it should not be either the Government or the security services who determine whether an individual

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was capable of being prosecuted in the ordinary courts. That is a very important principle that we should not abandon. I am quite happy to accept that there are people who cannot be prosecuted in the ordinary courts, but I believe that that decision should be informed by the judgment of the Director of Public Prosecutions.
On the issue of the burden of proof, I suppose I start slightly at the other end. I very much agree with what my noble friend Lord Judd said. I am not very much in favour of the idea of the burden of proof for non-derogation orders being reasonable suspicion. That threshold seems to me to be much too low. As the noble Lady, Lady Saltoun of Abernethy, said, the effect of those orders can he draconian. To have them imposed on an individual on the basis of reasonable suspicion seems to be much too low a threshold.
I am not unsympathetic to the view that there is a distinction to be drawn on the idea of deprivation of liberty and restriction of liberty. So if in my view the balance of probabilities threshold is appropriate for those orders that do not in the Government's view deprive people of liberty, the way to distinguish between them in terms of the burden of proof would be the balance of probabilities in terms of non-derogation orders and the criminal standard of proof in relation to derogation orders.
I agree with my noble friend Lord Judd that the effect of a derogation order leading to house arrest, which can be indefinite although reviewable, is such a draconian imposition that it should meet the criminal standard of proof, albeit in a judicial proceeding that is different from that in the normal criminal courts.
The Minister of State, Home Office (Baroness Scotland of Asthal): I may be able to help in relation to one matter. It may be helpful to noble Lords to know the process that is gone through before my right honourable friend the Home Secretary or someone in his position decides whether a control order would be appropriate. It might help the noble Lord, Lord Carlisle of Bucklow, and my noble friend Lord Plant in relation to the first part to know why it might not be necessary or appropriate to have the Director of Public Prosecutions engaged at that time.
Before my right honourable friend the Home Secretary could make a decision that a non-derogating control order was necessary, information would have to be brought before him by both the security services and the police. One of the matters that they would have to consider is whether prosecution was possible. As your Lordships may know, we have changed the charging rules so that before the police can charge they have to receive advice and support from the Crown Prosecution Service to say whether a charge on the basis of the matters complained of is possible. So when they bring before my right honourable friend the Home Secretary information about those cases they will already have made an assessment that prosecution in this case is not possible and will have to provide my right honourable friend with reasons why they came to that view.
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My right honourable friend will also have had the advantage of special counsel who will have looked at the papers and will be able to assist in deciding whether the position is sound and will have advised him in relation to it. He will therefore have available to him the broadest spectrum of information and advice in relation to those matters and will, as a result, be able to come to an informed view.
The role of the Director of Public Prosecutions, as noble Lords are only too well aware, is to make decisions on whether to prosecute. It is not his role to apply for control orders and he is not responsible for preventive orders. It is important that we feel that he maintains his independence from the Home Secretary or anyone else fulfilling that role.
Noble Lords will know that the usual conduit between the Director of Public Prosecutions and the Home Secretary will be the Attorney-General, a position with which the noble and learned Lord, Lord Mayhew, among others, has great familiarity, having discharged his duty with great distinction. I hope that that intervention has been helpful and that I have described the process that will have taken place before my right honourable friend comes to his decision.
Lord Carlisle of Bucklow: I am very grateful to the Minister, doing her best as ever to be helpful. On the substance of what she said she was extremely helpful in setting out the steps that are taken. But none of that is written in the Bill. I cannot see, particularly from the fact that those steps are taken, why there should not be a clear recognition in the Bill that before such an application shall he made, whoever it may be—I may be wrong in saying that it is the DPP—shall be satisfied that a normal trial is not possible. It has been said in this House today that it is important not only that justice is done but that it is seen to be done. If this amendment is on the face of the Bill, people will know that somebody has taken those actions. At the moment, there is no reference to it. So while I am very grateful to the Minister on the substance of what she said, she should think about taking this amendment away and turning it into statutory form by Report.
5.15 p.m.
Baroness Scotland of Asthal: I hear what the noble Lord says. It is incumbent on anyone fulfilling the role of Home Secretary of this country to act reasonably in the discharge of their duty and in taking the decisions under these provisions. My noble and learned friend the Lord Chancellor will, I am sure, amplify those answers in relation to the main thrust of the debate. I shall not trespass on his territory in that regard.
Lord Campbell of Alloway: The Government are introducing a special interrogation regime for suspected terrorists. That is why my noble friend is quite right to say that in this circumstance—never mind what happens usually—this amendment ought to be on the face of the Bill.
Lord Kingsland: May I add to what I am sure are not the noble Baroness's words? In her extremely helpful

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response, I entirely understand that before he or she decides to act, the Home Secretary will have taken soundings from the DPP or other prosecutorial authorities about the merits of prosecution. But surely it is the judge who makes the order who has to be satisfied that prosecution is not possible, not the Home Secretary. It is not up to the Home Secretary to decide, it is up to the judge. Therefore, my noble friend Lord Carlisle of Bucklow is absolutely right in saying that this has to be on the face of the Bill, the obligation has to be clear, and ultimately the judge cannot issue a final control order until he is satisfied that a prosecution cannot in all the circumstances take place.
Lord Cameron of Lochbroom: Before the Minister speaks again, perhaps I could raise a point in regard to what she has said. The noble Lord, Lord Forsyth, raised this matter earlier à propos the Home Secretary and the Secretary of State for Scotland. In Clause 12, the definition of "the court" clearly makes a distinction between a controlled person whose principal place of residence is in Scotland, in which case the Scottish courts have jurisdiction, and those elsewhere. The High Court has jurisdiction in Northern Ireland and in any other case it is the High Court in England and Wales.
In her statement, the Minister referred to the Director of Public Prosecutions. His responsibility and that of the Attorney-General is concerned with England and Wales, and, in the case of the Attorney-General, with Northern Ireland as well. It does not run north of the border. With regard to issues such as where a prosecution were to take place, if there were to be discussion beforehand involving the prosecuting authorities, it should be clear that in the case of a person whose principal place of residence is in Scotland and whose suspected offence may involve activities carried out only in Scotland, the proper prosecution authority from whom advice is sought is the Lord Advocate. I should be grateful if the noble Baroness could confirm that, in those circumstances, that would be a source from which the Home Secretary would receive advice. Alternatively, since the amendments proposed make reference only to the Director of Public Prosecutions, some reference should be made to Scotland.
Baroness Hayman: I have considerable sympathy with the case that was put forward by the noble Lord, Lord Carlisle of Bucklow, because it is essential to limit to an irreducible minimum the number of control orders that are issued. That is not to take an absolutist view; I believe that there will be an irreducible minimum of cases where control orders are the only way forward. I welcome the Government's amendment, because there is a danger, once a control order has been made, of the impetus for prosecution being lost. Amendment No. 126 is therefore very valuable.
However, there is a problem in taking an absolute view about it being essential to look at the possibility of prosecution in advance in the state of the law as it is at the moment without the offence, to which the noble and learned Lord, Lord Lloyd of Berwick, has drawn our attention on many occasions, and to which the Government are committed.
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One issue that we discussed in the Newton committee was the dilemma faced by a Home Secretary who had compelling, but non-evidential, information about a person being involved in terrorism, but firm evidence of a low-level criminal offence such as credit card fraud.
The Earl of Onslow: I have wanted to know the answer to this question for a long time. If somebody is going around committing credit card fraud, talking to somebody else and thinking of blowing up something, surely he is conspiring to blow up something. Therefore, he is committing an offence. Why does the law of conspiracy not apply?
Baroness Hayman: I finished my legal education in 1969 so I am not the right person to answer that question, although one of the recommendations of the Newton committee was that attention should be given to the possibility of an aggravating factor of association with terrorism being available, as it is in some jurisdictions such as France, for consideration alongside lower-level crimes so that an additional penalty could be imposed. That might satisfy the circumstances of some of those cases. But I think that the evidence for conspiracy would be difficult to bring forward.
I return to my point about the proportionality and the appropriateness of the response. A fine for a low-level offence such as credit card fraud might not be appropriate and proportionate to the protection that was needed, in light of the information that was available. That protection would be given by a control order. The issue is slightly more complicated even than we might have thought, but it leads me to restate the advantages of prosecution and the need for a general offence which pulls more people into the prosecutory net.
Baroness Scotland of Asthal: I take up my noble friend's last point about the benefits of prosecution wherever possible. That remains so. I reassure her yet again that those issues will be looked at, but with the structure of our laws being as it is, with acts preparatory not being included, we cannot prosecute in those cases.
Of course, if there are substantive offences, whether cheque fraud or otherwise, for which individuals can be prosecuted, prosecution takes place. Indeed, substantive offences, which are not the offences that we are currently dealing with, have been prosecuted in relation to others wherever possible. That remains the same.
On the position of the advice taken from the security services and the police, as I said earlier, the police will have consulted the Crown Prosecution Service on whether prosecution is possible before coming to the Home Secretary. I assume that the CPS is the correct prosecution authority for the police to consult and therefore those matters are already dealt with.
Lord Lloyd of Berwick: The noble Baroness knows that I am keen to see the new offence put on the statute book. What is the time-frame for introducing it? How

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soon could it be brought forward? I believe that it would make a lot of difference to the number of cases which could be prosecuted.
Baroness Scotland of Asthal: I have indicated that we will bring forward these provisions as soon as the parliamentary timetable allows. I have said on a number of occasions that the Government very much appreciate the urgency of the situation. We hear what is being said about the advantages of bringing forward the offence at the same time as this legislation. That has not been possible, but I assure noble Lords that as soon as the provisions can be brought forward, they will be. This is not a case where we feel that a timeline benefits anyone.
I shall reiterate what was said by my noble and learned friend the Lord Chancellor. We expect these powers to be used as a last resort, not a first resort, and where no other provisions will suffice. I hope that noble Lords are able to take comfort from the fact that the powers under the trenchant Part 4 provisions have been used by my right honourable friends the former Home Secretary and the present Home Secretary very sparingly indeed. It was felt necessary and proper to use those powers only in 17 cases, each of which was thoroughly scrutinised. Noble Lords will recall that in all but two of those cases, the judgment of the Home Secretary was found to be absolutely sound. I hope that reassures noble Lords that we do not intend to use these provisions any more liberally than the Part 4 provisions. They represent an absolute last-ditch attempt to keep our country safe. I can assure noble Lords that they will be resorted to very reluctantly and only when no other course can reasonably be undertaken.
Lord Kingsland: I am most grateful to the noble Baroness. Given what she has just said, I see no reason why the Government cannot accept an amendment which would put the DPP on the face of the Bill, requiring the DPP to say to the court that he is satisfied, in all the circumstances, that a prosecution cannot be brought.
For the sake of economy I want also to make an observation about another aspect of what the noble Baroness has said. I share her enthusiasm for bringing forward this new offence. Over the past few months the Government have expended a great deal of intellectual energy in thinking about how to define it. Would not this Bill be the ideal place to introduce it, or perhaps the Serious Organised Crime and Police Bill which we shall consider in a week or two? What is holding the Government up?
Baroness Scotland of Asthal: We have all agreed that this is a complex area. If I have been enjoined once, I have been enjoined a thousand times in various debates to get the new set of offences right. They will be difficult; they will have to be carefully considered; and they will have to be closely scrutinised and debated. We have made it clear that we are bringing forward provisions in this Bill which are absolutely necessary right now and need to be put in place speedily—by 14 March. We must consider with
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greater care and in more depth the other provisions in order to make sure that the structure we put in place is right.
Moreover, while I hear the enthusiasm that has greeted the provisions in this debate, as I have come to know and love this House very much, I am confident that noble Lords are likely to be less enthusiastic about them when they are brought forward. They will want to scrutinise them fully and with great care. That is the reality of the position.
5.30 p.m.
I have said already that the role of the DPP and his decision whether to prosecute does not apply in relation to control orders; he is not responsible for preventive orders. It is important that he maintains his independence from the Home Secretary.
We intend to bring forward an amendment which will place a duty on the relevant chief officer to keep under review the investigation of individuals who are subject to control orders during the duration of the order, with a view to their possible prosecution for any terrorist related offence. The chief officer must consult the relevant prosecution authorities where appropriate. These provisions will ensure that there continues to be an active review of the scope for prosecuting an individual throughout the life of any control order.
The amendment that we are bringing forward reflects existing practice. It is already the case that there is a regular assessment of whether there is any prospect of prosecution. This assessment is carried out by the law enforcement agencies in consultation with the prosecuting authorities as appropriate. I emphasise that decisions as to prosecution are for the relevant prosecuting authorities; they are not for the Home Secretary. We should keep a clear divide between the two and ensure the independence of the prosecuting authorities to make those decisions without any improper interference by the executive, in the form of the Home Secretary or otherwise. It is to be hoped that the provisions we are putting forward will achieve that balance.
I understand the concern of the noble Lords, Lord Carlisle of Bucklow and Lord Kingsland, and of the noble and learned Lord, Lord Lloyd, and others in relation to the whole issue of prosecution being the first port of call. I hope that I have been able to reassure noble Lords that we take these issues seriously and that we will, through the amendment we propose, seek to address that very knotty issue. I think that I have now interfered in the debate enough.
Lord Kingsland: I shall have one more quick try on this issue. The solution that the noble Baroness is offering the Committee contravenes the principle that the noble Baroness has just adumbrated. She said that the Director of Public Prosecutions must remain completely independent of the Home Secretary. We entirely agree with that principle. That is why we want the Director of Public Prosecutions to report directly to the court in public. If the Director of Public Prosecutions reports to

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the Home Secretary in private, there will be a suspicion—no doubt wholly unfounded—that there is the possibility of some arrangement being made.
So, in order to avoid the perception that that might be so, would it not be much better to stipulate in the Bill that the Director of Public Prosecutions plays an independent role reporting to the court?
Baroness Scotland of Asthal: Let me make it clear that the Director of Public Prosecutions does not report, as the noble Lord said, to the Home Secretary. When the security services and the police come to make representations, the police will have already consulted the Crown Prosecution Service as to whether prosecutions are possible.
We do not think it is proper for the Director of Public Prosecutions to be involved in the way suggested by the noble Lord. Indeed, the Committee will recall that there is a conduit through which the Director of Public Prosecutions may have contact; that is, through the office of the Attorney-General.
The Earl of Onslow: There must be something in the Bill that says how the Home Secretary arrives at his conclusion—the mechanism that must be on the face of the Bill. If it is not via the DPP, perhaps the noble Baroness and the noble and learned Lord the Lord Chancellor, who have tonnes of brains between them, can think up a way in which this could be set out on the face of the Bill. That is absolutely essential.
Baroness Scotland of Asthal: As your Lordships will know, we feel that we have set out the ways in which my right honourable friend the Home Secretary or someone in his position would address this matter. Our first amendment to Clause 1 addresses the way in which these matters will operate and how the procedure will be undertaken. It has never been the case that the minute detail of practice to which I referred earlier has ever been put on the face of any Bill.
It will be a matter of record that this is the way in which we propose that matters should be dealt with. We feel that that is the most appropriate way forward. After the conclusion of this debate, we shall look at everything that has been said and see whether further or other things may be done. However, the amendment we currently have in mind, which places the duty on the relevant chief officer to keep under review the investigation of individuals, very much speaks to the concern that noble Lords have.
Lord Blackwell: Before the noble and learned Lord responds to this debate, perhaps I may raise just one question which I hope he will address. As a non-lawyer, I hesitate to trespass in this tricky territory. However, having read the Bill and listened to this debate, I believe that the one thing that is missing is clarity about what opportunity individuals subject to a control order will have to understand and respond to the cases against them. I can find only one mention of it, in Amendment No. 12, tabled by my noble friend Lord Kingsland. Perhaps I have missed it or it is
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implicit in the procedure. However, it is important that we are clear on this. There are obviously difficulties in laying out evidence, but we need to make clear what opportunity the individual will have to understand the case and respond to it.
Lord Falconer of Thoroton: I shall try to reply to all of the amendments that we are dealing with. I shall deal first with the entirely legitimate point raised by the noble Lord, Lord Blackwell. We discussed it before lunch and after lunch, but there is no harm in going back to it again.
The Home Secretary has to lay out as fully as he can the case which the suspect has to meet. We all acknowledge that there is certain material that the suspect cannot see because of the damage it might do to national security. That would be dealt with by the process of special advocates. That process has already been adopted in the SIAC courts, and the Court of Appeal has held that that process is a just process and one that complies with Article 6, which sets out basic procedures that must be followed to ensure that people have a fair trial. I hope that that adequately answers the questions from the noble Lord, Lord Blackwell.
I should like to go back now to Amendments Nos. 3,5 and 6. They all raised the issue of whether the list of obligations that could be imposed are exhaustive. I respectfully submit that they do not have to be exhaustive. Indeed, it would be a bad idea if they were. They lay out the sorts of obligations that can be imposed. We should remember, however, that these obligations are subject to a number of conditions.
First, they must be obligations placed upon the individual for purposes connected with protecting members of the public from a risk of terrorism. Secondly, they can only be obligations which are proportionate to the risk the individual poses. Thirdly, they can only be obligations imposed with a legitimate aim that justifies an interference with Articles 8 to 11. So there are all those restrictions on the obligations that can be made.
It would be wrong, when each case would have to be looked at on a case-by-case basis, to restrict the sorts of orders that can be made. Noble Lords who have been involved in the courts over a long period know how good the courts are at identifying precisely the form of a particular order to meet the particular need. It would be wrong, in my respectful submission, to restrict it to the ones set out in Clause 1(3). It is a sensible way of dealing with it. It is the limits on the obligation that are critical, not the precise formulation of them.
Lord Phillips of Sudbury: I am most grateful to the noble and learned Lord for giving way. Does he really think that the proportionality protection is practical in the circumstances that we are talking about? And how could a court assess proportionality in the absence of all the information about the background?
Lord Falconer of Thoroton: I have absolutely no doubt that proportionality is an appropriate test and that it is enforceable. I am satisfied that it is because there has been considerable jurisprudence on proportionality in

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the European Court of Human Rights. Equally, I have no doubt that our courts, in addressing those issues, could ask themselves the questions: what does the applicant say is the need for this order, and on the basis of what the applicant says is the need for this order is this the minimum means by which protection could be given against the risks to national security? That is a task that the Home Secretary is capable of doing and that the courts are prepared and able to do. Therefore, I have considerable confidence that those sorts of issues can be addressed. They have been addressed in other countries, by the ECHR and in the decisions of the European Court of Human Rights.
Lord Phillips of Sudbury: Would the court be entitled, then, to all the information upon which the Home Secretary reached his decision? If not, how can it make an assessment?
Lord Falconer of Thoroton: The court can do what it does in all cases: make such orders as it thinks appropriate to ensure that all the available material is before it before it comes to a decision. The noble Lord, who is a distinguished lawyer himself, will know that the courts can make orders to require discovery and disclosure to assist in reaching its conclusions. So the court has more than enough powers to ensure that it has all the right orders. But the matter is to be determined in accordance with the rules of procedure of the High Court of England and Wales, and Northern Ireland, and the Court of Session. They have myriad powers that will allow them to get to the right answer.
Amendments Nos. 17, 31, 33 and 34 would limit the Secretary of State's ability to restrict a controlled person's movements. We submit that that would undermine the ability of the control order properly to address the risk that certain individuals may pose. The control order scheme already requires any restrictions on movement to be necessary to prevent or restrict terrorism-related activity. As I have already indicated in my exchange with the noble Lord, Lord Phillips of Sudbury, general ECHR requirements will add a proportionality test. That being the case, the removal altogether of the ability to restrict movement to any degree is inappropriate. You can craft the order to meet the facts of the individual case.
Amendments Nos. 18, 19 and 21 place limitations on the information that the controlled person is required to supply under a control order. There will be a number of circumstances where the provision of information by the controlled person will be essential to the operation of the control order; for instance, to monitor financial activities or movements. Important points have been raised about self-incrimination, which I shall come to in a moment. The noble Earl, Lord Onslow, was about to rise to speak, but he subsides in the hope of some answer later, for which I am grateful to him.
Amendments Nos. 20 and 22 both deal with the controlled person's access to legal representation. Again, issues regarding access to legal representation must ensure that the person has the right to fair
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process. But the issues regarding how SIAC operates—namely, that there is certain closed material that cannot be given to the suspect—must be complied with in relation to this.
Amendments Nos. 23 and 24 would prevent a control order requiring a controlled person to talk to, meet or allow entry to any specified person or any other person who is not a British citizen or who is working for a foreign government. That would mean that Commonwealth or EEA citizens legitimately working with the police or Immigration Service, including translators, could not be engaged in a control order's process. Furthermore, the second aspect of that provision would prevent, for example, a representative from the relevant foreign embassy receiving the surrendered foreign passport from a controlled foreign national.
Amendment No. 25 would give controlled persons unfettered access to family members regardless of other obligations, which would allow the suspect to pass on messages via family members. Furthermore, it would prevent an order restricting contact with a family member known to be part of the terrorism-related activity which gave rise to the order in the first place.
Amendments Nos. 26, 27 and 28 deal with voting and other electoral issues. Control orders would not interfere with the controlled person's political rights, and in the majority of cases, therefore, the activities that are the subject matter of the amendments should not be affected. However, it might be that in rare cases to vote in person or to stand as a candidate would be inconsistent with the other necessary and proportionate restrictions on the controlled person's movements. When that is the case, such restrictions should not be prevented.
Amendment No. 29 proposes that a controlled person may not be required to leave the United Kingdom. It is not envisaged that a control order would ever require such a thing in any event, as that would effectively be an immigration measure. When appropriate, necessary deportation action will be taken. The main purpose of the control orders is to control the activities of the person within the UK. Furthermore, international obligations may prevent the effective expulsion of a British citizen from the United Kingdom. We see no need to include an express prohibition of this nature.
Going back to the point raised by the noble Earl, Lord Onslow, about the right not to incriminate oneself, that right, stemming from Article 6, does not prevent the requirement of information to prevent or restrict terrorism-related activity, which is the objective of a lawfully imposed preventive order such as the control orders.
It is perfectly proper 10 require such information as is needed to address the risk, such as bank statements and telephone records. The fact that the information may result in criminal breach proceedings does not of itself breach Article 6. Indeed, if such requirements were prohibited it would totally undermine any preventive regime. A control order imposed on an individual suspected of being involved in bank fraud to fund terrorism could continue with such activity by hiding behind the right not to self-incriminate.

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For all those reasons we cannot accept Amendment No. 30. However, while any information provided under a control order obligation could be used in a criminal prosecution for breach of a control order, we accept that the right not to incriminate oneself would operate to prevent a prosecution for the underlying offence.
In the example that I gave it would mean that the information obtained pursuant to the control order regime could not be used in a prosecution for banking fraud offences. However, Amendment No. 38 is unnecessary as the control order requirement to provide information does not affect the admissibility status of information in respect to other criminal proceedings—other than that of breach.
The Earl of Onslow: I want to go back to this. Clause 1(3)(n) refers to,
"a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand".
If the order says that you will answer a question from PC Plod about where you were going and you refuse, you will be slammed up. That is the offence.
Lord Falconer of Thoroton: The point that I am answering in a lumbering way is that you can ask questions to prevent a terrorist outrage, but you cannot ask questions to convict the person of a criminal offence. It is perfectly legitimate that if, for example, you have information that suggests somebody has planted a bomb on the Tube, you are entitled to ask, "Where is that bomb?". If the person says, "No. I won't answer", breach of proceedings could be brought.
You are able to ask that question because you are trying to avoid an atrocity. What you cannot do is simply ask questions with a view to convicting that person of another criminal offence. That is the distinction I was making—rather slowly, I accept—in my answer. With respect, that seems to me to be perfectly reasonable.
Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. Is this not a distinction without a difference? If one refuses to answer questions under Clause 1(3)(n) one can be prosecuted, convicted and sent to prison for five years for not answering. Either way, one is going to go to prison.
Lord Falconer of Thoroton: The question is what is the legitimate question. The illegitimate question is, "Did you commit this bank raid last year?". That is not trying to prevent terrorism; it is investigating a crime. As to the legitimate question, I take the hypothesis of there being reliable information that suggests that there is an explosive device in a place where many people gather. Would it then be legitimate to ask that person, with the power of an offence being committed if he or she did not answer, "Could you please say where that bomb is?"? I shall be interested if noble Lords think that that is a wrong question to ask. As the noble Lord, Lord Kingsland, implies, it would almost
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certainly lead to self-incrimination in relation to the offence of planting the bomb, but because the purpose is to avoid the atrocity, it is legitimate.
The Earl of Onslow: If the question is, "Did you commit a bank raid last year?", and the answer is, "No", then the suspect does not go inside because he does not have to answer. If it is, "Did you plant a bomb a week ago?", the chap is still being asked whether he committed a crime because placing a bomb is not a legal thing to do. So asking, "Have you placed a bomb?"—
Baroness Hayman: I shall enter the debate, but it probably will not help at all. Asking where a bomb is is a completely legitimate question but there are two possible answers. If the answer is, "I know, but I'm not going to tell you", that is a breach and I could find that being a criminal offence acceptable. The problem comes when the suspect says, "I don't know. You've got the wrong person here". If that is not answering the question, and is therefore a criminal offence punishable by five years' imprisonment, it is very difficult. How do you decide which of the two it is?
Lord Falconer of Thoroton: I am very grateful to the noble Baroness, Lady Hayman, who gave such straightforward and clear support for the proposition. The noble Earl, Lord Onslow, should think of joining Fountain Court Chambers: the distinctions he drew were so lawyerly and beyond reality.
The point made by the noble Baroness, Lady Hayman, is exactly right. If one thinks that there is a bomb somewhere, it is perfectly legitimate to ask the suspect where it is. If the answer is, "I know, but I'm not telling you", plainly there is a breach. If the answer is, "I don't know", the only way in which a criminal offence is committed and somebody could be convicted of it is if the prosecution were able to show, beyond a reasonable doubt, that the person did know and yet refused to tell. The circumstances in which I could envisage that happening would be where the suspect says, "I don't know", when he is asked; the atrocity then occurs and he subsequently says, "I knew all along where it was, but I wasn't telling you because I wanted the atrocity to occur". Speaking entirely for myself, I have no difficulty, in those circumstances, with the person being subject to prosecution and, if the jury is satisfied beyond a reasonable doubt that he had failed to tell and the atrocity had occurred. I do not see any—
Baroness Hayman: It could have been averted.
Lord Falconer of Thoroton: Exactly. So that is the position relating to discrimination—
Lord Kingsland: This has been a useful exchange of views about Clause 1(3)(1). I suggest to the noble and learned Lord that the answer is that, between now and Report, he goes back and tries to refine this clause because there are a large number of circumstances in which it could operate extremely oppressively. The exchanges between the noble and learned Lord, the

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noble Earl, Lord Onslow, and the noble Baroness, Lady Hayman, will help the noble and learned Lord the Lord Chancellor, with the enormous intellectual resources he has at his disposal, to come up with a much more specific and sophisticated description of what he is targeting under this clause. Then, I think, he might find a more sympathetic response.
Lord Falconer of Thoroton: I am grateful for the help that the noble Lord, Lord Kingsland, has given me in that respect. I hope, by the example I have given, that I am identifying the sorts of question that it is legitimate to ask the person who you believe is a terrorist and who might have information that might stop an atrocity. It will not be limited to the sort of information I have given; it could also be, for example, to give the names and numbers of bank accounts where there is money that is being used to fund terrorism. It could be to identify other people who are in league with you in relation to this particular proposition. That seems to be particularly legitimate.
There is an additional answer which I have not yet given; that sort of question is legitimate if, as the noble Earl, Lord Onslow, rightly identifies, it inevitably involves you in identifying the fact that you have committed a crime. By saying where the bomb is, you might necessarily indicate that you are involved. That could not be used against you in the subsequent prosecution, but it is a perfectly legitimate question to ask.
The Duke of Montrose: I think this covers the point raised in my Amendment No. 38 and I back up my noble friend Lord Kingsland in saying that we hope that the Government can think of some more sophisticated way of defining this issue.
Lord Falconer of Thoroton: It is not defined at the moment because it is about what the current law is in relation to self-incrimination. I am trying to explain—very inadequately—what the effect of the current jurisprudence is in relation to it under Article 6. I have no intention of putting anything on the face of the Bill. However, in the light of what was said by the noble Lord, Lord Kingsland, and the noble Duke, the Duke of Montrose, the right thing for me to do is to think about whether there are situations with which one is concerned, and whether there would be any value in putting forward an amendment. At the moment, I cannot think that there would be, but in the light of the points that have been so eloquently raised, I will certainly consider what the right course in relation to that is.
With regard to Amendment No. 36, standing in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay of St Johns, Clause 1(4)(b) is a clarifying provision included for the avoidance of doubt. To remove it, we believe, would be unhelpful.
With regard to Amendment No. 37, standing in the name of the noble Duke, the Duke of Montrose, legal professional privilege is a fundamental human right that can be overridden by statute, but only by express
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words or necessary implication. The Bill does not seek to do that, so I hope that satisfies the noble Duke in relation to that.
On the basis of the many editions of the groupings, the next group contains Amendments Nos. 7, 63, and 93, which have been tabled by the noble Earl, Lord Onslow, and which I think we have debated already as they all concern the role of the court.
The effect of Amendment No. 17, tabled by the noble Lady, Lady Saltoun of Abernethy, would be to limit the Secretary of State's ability to restrict the controlled person's movements. Again, I referred to that earlier when discussing other amendments. The noble Lady made various points about what could be done, but again I refer to the restrictions on the making of any non-derogating control order—it has to be necessary to prevent the consequences of terrorism, it has to be pursuant to a legitimate aim under the convention, and it also has to be proportionate. So, again, the balance would have to be struck between the rights of the individual and ensuring protection. I hope that will satisfy the noble Lady.
Lady Saltoun of Abernethy: No, it does not satisfy me. I put down that amendment not in order to delete the clauses, but to find out what the arrangements and logistics were for house arrest. I am not satisfied that we should have house arrest unless these matters are taken into consideration. What thought has been given to it, and what arrangements are going to be made? Otherwise, I might want to table another amendment for Report stage.
Lord Falconer of Thoroton: Again, one comes back to the fundamental question: is the order necessary to prevent the consequences of terrorism? The human rights protections are there. One is striking a balance between intruding on a person's rights and preventing a terrorist event occurring. Precisely what that involves requires the facts to be considered on a case-by-case basis.
6 p.m.
The Earl of Onslow: I agree with the noble Lady, Lady Saltoun. House arrest is, in effect, imprisonment and asking the prisoner to pay for his own gaoler.
Lady Saltoun of Abernethy: Exactly.
The Earl of Onslow: Who is going to feed him? Who is going to water him? Who is going to look after him if he is locked up, is not allowed out and he cannot go to the social security office to pick up his cheque, because he has lost his job? If that is not seen as unfair, at least in the nick there is a thumping great warder from the Prison Officers Union who will probably beat him up behind the bike sheds, but who will at least shovel some filthy food down his throat.
Lord Falconer of Thoroton: Every one of those questions is legitimate but can only be answered on the basis of an individual case. Plainly, it would be

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disproportionate to impose orders that prevented someone being fed and seeing people unnecessarily. In each individual case you look at all the facts and then ask yourself, where is the balance to be struck? Of course the noble Earl and the noble Lady, Lady Saltoun, are right. If the consequence was that the person would starve, no such order could possibly be made.
There is no template that fits all, because we recognise and accept that simply to say that you can imprison people—which was Part 4—is no longer an adequate answer. The facts have to be looked at in each individual case. The consequences to the individual must be considered and the need to take that action, due to the consequences for national security, must be considered. Ultimately, a proportionate response must be reached.
We covered the role of the prosecution during the interventions with my noble friend Lady Scotland of Asthal. In terms of principle, I do not think that there is much between us. As the noble Baroness made clear, prosecution would be our preferred route, but if that is not possible, we then need to use the control orders.
I hope that that has dealt with every point that has been raised, but if anyone would like me to deal with a particular point, I would be happy to do so.
Lord Plant of Highfield: I have one point which may be out of order, as I am a little mixed-up, procedurally. The noble Lords, Lord Carlisle and Lord Judd, and I referred to the burden of proof. It may be best to deal with that at some other stage, but it was an issue that was ventilated.
Lord Falconer of Thoroton: The burden of proof, as provided for in the Bill for a non-derogated order, is reasonable suspicion that he is or was a terrorist and, for a derogated order, satisfying the balance of probabilities that he is or was a terrorist. There is no burden of proof specified in relation to whether an order is necessary to prevent terrorism—those are not the exact words, but give the broad thrust. Regarding a non-derogating order we use the words "reasonable suspicion" because it will involve analysing a large amount of material and reaching a conclusion that there is a sufficient degree of suspicion to justify the making of a non-derogating control order.
As I said earlier, Lord Justice Laws in one case considered whether or not that was an appropriate level of proof. He said, not just that it would be, he also said that "a requirement of proof" of the type being argued for, which was, I think, the balance of probabilities, would,
"frustrate the policy and the objects of the Act … the target of the Act's policy includes those who belong to loose, amorphous, unorganised groups".
In effect, he said that there needs to be a sufficient degree of suspicion. If you set a burden of proof in a conventional way, you will end up not being able to target the people at whom the policy is aimed.
Having said that, we accept the "balance of probability" standard of proof for the derogating order, because deprivation of liberty involves such an
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intrusion on people's rights, despite the difficulty that it imposes. The noble Lord, Lord Carlisle of Bucklow, suggested "beyond a reasonable doubt". We think that is wholly inappropriate. Unlike criminal proceedings, the orders are being made to prevent something happening in the future. We are trying to stop terrorist activity later. That is why the concepts of criminal burden of proof are not appropriate.
Lord Tebbit: Can the noble and learned Lord the Lord Chancellor tell me if the suspected acts relating to terrorism have to be within British jurisdiction, or can they be acts that it is believed are being planned in another jurisdiction?
Lord Falconer of Thoroton: The material relied on to justify the making of the order can come from anywhere.
Lord Tebbit: I was not asking about where the information comes from, but where the act that is feared is planned to be carried out. For example, it might be a suspicion that someone connected with ETA was planning an outrage in Spain. Would that be covered by these provisions?
Lord Falconer of Thoroton: Yes, it would be. The only jurisdictional requirement is that the "terrorist" is actually in the United Kingdom.
Lord Stoddart of Swindon: Will my noble and learned friend the Lord Chancellor remind me of his answer to Amendment No. 27, which states:
"A control order may not prevent or restrict the controlled person from standing as a candidate in any election, including attending his election count"?
I must have missed the answer to that.
Lord Falconer of Thoroton: Amendment No. 27 is one of the three amendments that deals with voting and other electoral issues. We do not seek to interfere with the controlled person's political rights. In the majority of cases, therefore, the activities that are the subject of this amendment, as well as by Amendments Nos. 26 and 28, would not be affected. In rare cases, it might be that to vote in person or stand as a candidate would be inconsistent with the other necessary and proportionate restrictions on the controlled person's movements, but I regard that as extremely unlikely.
Lord Stoddart of Swindon: That is what I was afraid of. I recall that many people who have been suspected or convicted of terrorist activities have in fact been allowed to stand in elections. They do not have to electioneer only by going outside their prison cell or their house. If they stood in a parliamentary election, they would be allowed at least one free post. Do I understand from my noble and learned friend's reply that there are certain circumstances in which a terrorist subject can be prevented from standing as a candidate in any election in the United Kingdom?
Lord Falconer of Thoroton: The words I used were
"In rare cases, it might be that to vote in person or stand as a candidate".
That is an important thought from my noble friend Lord Stoddart, which 1 need to consider. All my noble friend's thoughts are important, but that one is particularly so.
Lord Phillips of Sudbury: Is the noble and learned Lord the Lord Chancellor satisfied that, when he said a minute ago that this is not a criminal process, the reality is not that it actually fundamentally is? The sanctions are as severe as many criminal sanctions. The issue to which the whole business relates is the most serious form of violence. Has he been advised whether there is likely to be a finding in the European Court at Strasbourg, if it gets that far, that, on what is called autonomous meaning, this is going to be viewed as a criminal procedure, therefore breaching criminal safeguards in terms of standards of proof?
Lord Falconer of Thoroton: The reason I describe the process as not being criminal proceedings is that it is about not convicting someone of a criminal offence but taking action to prevent a person, or a group of people, doing something. I fully accept that the consequence of making an order is intrusive as far as the individual is concerned. Both because of the European Convention on Human Rights and because we, as a country, would always accept this, there has to be a process that ensures fairness. That is the process measured by Article 6. I believe that we satisfy Article 6.
Lady Saltoun of Abernethy: Amendment No. 17 stands in my name, but I shall not press it—at least certainly not today. However, I am not happy. It would be far more honest to put a suspect in prison, whatever the Law Lords may say, so that everyone knows where they are. That would be far more honest.
Lord Falconer of Thoroton: The Law Lords have said that that is unlawful.
Lord Carlisle of Bucklow: Perhaps I may ask a question about the amendment on the burden of proof. At the moment, it is right that, in the Bill as it stands, the Secretary of State has to be satisfied that there are reasonable grounds for suspecting someone. Later the Bill says that under a derogating order, he may make a control order imposing an obligation that is incompatible if he is satisfied on the balance of probabilities that that person is involved. In other words, he has brought in the standard of proof. Is the noble and learned Lord satisfied that he has done so in the amendments?
Notice has been tabled of noble Lords' intention to oppose the Question that Clause 2 stand part of the Bill. I hope that we shall debate it on Monday rather than today. However, at the moment that clause contains the standard of proof and there is nothing
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equivalent to the words "reasonable grounds to suspect" in Clause 1. We would then have a situation where, under the amendments that we have debated, a control order "shall be made" by the Secretary of State but the provisions would not say on what grounds.
Lord Falconer of ThorotonAmendment No. 55 brings hack the burden of proof. It states:
"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".
If I have understood the noble Lord, Lord Carlisle of Bucklow, correctly, that is where it comes back in. In relation to the burden of proof for a derogating order, the relevant provision is subsection (7) of Amendment No. 80, on page 12 of the Marshalled List.
Lord Carlisle of Bucklow: It would have been helpful if we had had a little longer to study the amendments rather than receiving them all yesterday.
Lord Plant of Highfield: On the burden of proof point, although we shall return to it later, when my right honourable friend the Home Secretary gave evidence to the Joint Committee on Human Rights—it was an open session with the public present, so I do not believe that I am breaching any convention of the House by mentioning this—he was asked about the burden of proof for non-derogating orders and whether it should be the "balance of probabilities" as opposed to "reasonable suspicion". I cannot quote his answer verbatim, but it was more or less that there was no reason of principle why it could not be the "balance of probabilities"; it was just a matter of practicality. Are we to assume that the issue of practicality to which he was alluding, on which he did not elaborate, was the same kind of consideration in aid of which my noble and learned friend the Lord Chancellor has cited Lord Justice Laws?
Lord Thomas of Gresford: It appears to be my responsibility to reply to what has again been a very lengthy and interesting debate. All I sought was to insert the words "specified in subsection (3)" into Clause 1. One hour and 57 minutes later, I am on my feet again.
Some very important issues have been raised. We have gone over them in a rather roller-coaster way. One of the most important was that raised by my noble friend Lord Phillips a short time ago: the applicability of Article 6, the fair trial provisions to the procedures proposed in this Bill. As I said earlier, in 2001, we said that the provisions then being introduced in the Antiterrorism, Crime and Security Act would not pass the European convention test. Three years later, we were proved right. We say today that the provisions of process suggested in this Bill will not pass the European convention test.
The noble Lord, Lord Blackwell, referred to the question of allegations being shown to the suspect. A suspect may be made subject to a control order without any knowledge of the allegations or evidence—that is

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what the Bill says—nor even the reasons for it. More than that—we have not got to it yet, but I am sure that we will tomorrow—
Noble Lords: Oh!
Lord Thomas of Gresford: Time stands still in this place. I meant to say, on Monday.
In Amendment No. 79—which I think was referred to this morning—the noble Baroness, Lady Scotland, is proposing that the obligations may be imposed by a control order whether or not the,
"activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate".
So he does not know the allegations, he does not know the evidence, he does not know the reasons, and the obligations may have nothing to do with what is suggested against him. So he cannot even infer why these obligations are imposed upon him.
I think that we will return to the question of the standard of proof that has been exercising the noble Lords, Lord Carlisle of Bucklow, Lord Plant and Lord Judd. We will no doubt come back to that word "practicality". The standard of proof proposed in these proceedings, particularly for non-derogating orders, cannot possibly satisfy Article 6 when the determination of the civil obligations—never mind the criminal aspects of it—is in question.
Other matters of evidence have been discussed in the course of this debate. My noble friend Lord Goodhart drew attention to Clause 1(3)(n) and (o) about interrogation. A person can be interrogated by anybody and forced to answer questions. That raises questions of privilege—which the noble Duke, the Duke of Montrose, referred to—self-incrimination and admissibility.
At the back of this Bill, we see in the schedule that the Lord Chancellor is to have power to determine the nature of the evidence that can be produced in control order proceedings. Normally, where evidence is produced from a suspect by reason of a threat—which in this case would be up to five years' imprisonment if he did not answer the question—it would not be admissible in a criminal court. That has been determined quite recently in Strasbourg in relation to evidence produced in board of trade inquiries.
What about the rules that the Lord Chancellor is going to propose here? Will the necessity, the state of security and so on, demand that evidence obtained forcibly under interrogation and with the threat of five years' imprisonment be admissible before any court considering the orders?
The noble Lord, Lord Kingsland, has referred to matters which should appear on the face of the Bill, such as the requirement that the Director of Public Prosecutions should be consulted and give his view on whether a prosecution is possible before any order is made. What is wrong with that? We are told that this control order is at the end of the line. Why should the person who makes the order, whether he is the
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Secretary of State or a judge in court, not be assured by an independent person that the evidence is insufficient for prosecution? What can happen—this is really what I am afraid of—is a lazy imposition of a control order without proper investigation which would produce the necessary evidence: "Surveillance is too expensive in this case"; "Slap on a control order"; "We do not require a high standard of proof"; or, "We are not required to tell him whether we have any proof".
The noble Lord, Lord Kingsland, also referred to the offence of committing an act which might lead to terrorist activity, or which is connected with terrorist activity. I imagine it might take about an hour to draft something that would be suitable and would pass muster, as opposed to this Bill. This Bill, with all the wording and verbiage in it, was put together in a matter of a day or two. But, no, the noble Baroness, Lady Scotland, said that the Government cannot do that because it has to be "carefully prepared, carefully scrutinised and debated at length"—one offence.
Here we are having thrust down our throats all these provisions—the breach of 800 years of legal history and so on. I will not get rhetorical about it—or emotional about it, if it comes to that. But when they say, "Well, we cannot put an offence on the face of the Bill because it has got to be carefully prepared", it makes me smile.
My amendment is simply specified in subsection (3). All we were trying to do was to confine the making of an order to the grounds that are set out; grounds that we have discussed and debated.
The noble Lady, Lady Saltoun, pointed out how draconian and limiting, for example, paragraphs (c) to (g) were. But the Government will not have it. So, what is there on the face of the Bill? There is an absolute and unfettered power for the Secretary of State to impose any obligation whatever upon any person without limit of time. All he has to do is, after that, to go for judicial review to see whether he has followed the procedures properly. The Bill really is a disgrace. We will come back to the matter, but for the moment I beg leave to withdraw my amendment.
Amendment No. 3, as an amendment to Amendment No. 1, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
On Question, Amendment No. 1 agreed to
The Deputy Chairman of Committees (Viscount Simon): Amendments Nos. 6 to 15 have been preempted by the agreement to Amendment No. 1.
[Amendments Nos. 6 to 31 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 32:
Page 2, line 40, leave out "Every"

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The noble Lord said: The noble Lord, Lord Thomas of Gresford, rightly points out that the amendment has not been debated. As a drafting matter parliamentary counsel thinks that the word "Every" should be deleted, and subsection (4) should read:
"Power by or under a control order to prohibit or restrict the controlled person's movements … includes, in particular".
Although the noble Lord is absolutely right that it had not been debated, I would hope that the noble Lord—
Lord Thomas of Gresford: The amendment is grouped with Amendment No. 35, which is a matter of some substance and where we want some explanations. As the two are together, I think that we should hear them together. So that is where we are.
Lord Falconer of Thoroton: I am behind by about 14 editions of the groupings list. I apologise for that.
Lord Thomas of Gresford: We are on the mauve version.
Lord Falconer of Thoroton: I apologise. Amendment No. 35 deletes the words,
"and (b) is subject (where they are applicable) to the provisions of section 2".
Section 2 is about to be deleted by a subsequent amendment. That is why it is necessary to make that second amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 33 and 34 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 35:
Page 2, line 44, leave out from "generally)" to end of line 45.
On Question, amendment agreed to.
[Amendments Nos. 36 to 39 not moved.]
The Duke of Montrosemoved Amendment No. 40:
Page 3, line 13, after "which" insert "knowingly"
The noble Duke said: The amendment seeks to clarify the type of conduct that will fall within the definition of terrorism-related activity. The reason is that Clause 1(8) provides the definition of terrorism-related activity for the Bill's purposes. Subsection (8)(b) currently lists as part of that definition,
"conduct which facilitates the commission, preparation or instigation of",
acts of terrorism. The amendment seeks to clarify that the innocent actions of a person who unwittingly facilitates terrorist activities will not be caught by that definition and that such a person would not therefore be subject to a control order.
To give an illustration, when the Stone of Scone was removed from Westminster Abbey my grandfather received a call to see whether he had anything to do with the nationalist sentiments involved. In fact he had not, but he was a little supportive of the idea. The question could occur with some member of the family—wee Jimmy, or whoever it was—quite innocently helping to weave a bit of cloth that might
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do for the fuse for a bomb, or something like that: was it knowingly done; or was it simply being friendly and nice to the person who was the perpetrator? It is important that we consider the question. I beg to move.
Lord Phillips of Sudbury: I hope that the noble Lord, Lord Kingsland, is going to move his Amendment No. 39.
Lord Kingsland: I cannot move my Amendment No. 39 because I negligently misread the text. I think that I can manage to work it in in the context of Amendment No. 41. All these amendments refer to Clause 1(8). Paragraphs (a) to (d) seek to constrain somewhat the definition of terrorism-related activity. It is an essential tightening of that definition to insert the word "intended" into paragraphs (b),(c) and (d).
One only has to ask oneself whether it would make sense to subject to a control order someone who innocently or negligently contributed to those matters to realise that it is only those who intend,
"conduct which facilitates the commission, preparation or instigation of such acts",
or intend,
"conduct which gives encouragement to the commission, preparation or instigation of such acts",
or intend,
"conduct which gives support or assistance to individuals who are known or believed",
who should be in the Government's sights.
Lord Phillips of Sudbury: I strongly support Amendment No. 39, which was so insidiously moved by the noble Lord, Lord Kingsland, and Amendments Nos. 41 and 40. Clause 1(8) is crucial. The definition of terrorism-related activity runs throughout the Bill and ensuring that it is appropriate is of the first magnitude.
Vis-à-vis Amendments Nos. 39 and 41, I would prefer the wording in paragraphs (a), (b) and (d) to be left intact, but with the word "or" replaced by "and", because we should require that the conduct is not only intentional as regards facilitating the commission of terrorism but facilitates it in fact. Both elements are needed. As matter of fact, the conduct should facilitate, encourage or support terrorism and intend so to do.
I return to the example that I gave at Second Reading of another government and another Home Secretary, because it is never safe when discussing measures such as this to work on the assumption of the current people remaining in power. A thoroughly vindictive government and a thoroughly panicky Home Secretary could use the power, without amendments such as this, to bridle a journalist, be it a television or print journalist, who was running a series of passionate articles attacking the policy of the government of the day. It might be the invasion of Iraq, for example. That journalist's work would be brought within the definition of terrorism-related activity unless amendments such as this were allowed.

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I am bound to say that although the noble and learned Lord the Lord Chancellor earlier assured us that the protections for somebody caught up in the non-derogation orders were sufficient in terms of judicial review—the necessity of proving proportionality, for example—as an old solicitor who has seen this protection work or not work, I am not as sanguine as he is about the availability of that defence in the reality that will be created by the Bill.
As I started by saying, the amendments are of the very first importance, and I hope that the Government will agree with them.
6.30 p.m.
Lord Thomas of Gresford: I note that Amendment No. 168 is grouped with these amendments. I propose to break the fixture. I have been sitting on this Bench all day and have had no opportunity to consider groupings.
The purpose of Amendment No. 168 is to try to find out who carries out the arrest of the suspect. There is provision in the amendments tabled by the Government for a derogating order for arrest; there is nothing if it is a non-derogating order. I wonder who is supposed to act on behalf of the Secretary of State in apprehending a suspect. serving an order on him and so on.
It is the issue that I raised earlier today: when there is a knock on the door, who will be on the other side? I will raise it in its appropriate place, which is probably in connection with the arrest powers in derogating orders covered later in the Bill.
Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Thomas of Gresford, for breaking the fixture on that provision.
Amendment No. 39, which we swept past but have swept straight back to, and Amendments Nos. 40 and 41 would amend the definition of "terrorism-related activity" by importing the need for intent into Clause 1(8)(a) to (c). As noble Lords have rightly pointed out, paragraphs (a) to (c) also catch conduct that facilitates, gives encouragement, gives support and so on to acts of terrorism or terrorism-related activities, whether or not so intended. The premise on which the amendments are based is correct.
We should, however, remember that the Bill is intended to provide the power to prevent terrorist acts in the future. It is extraordinarily unlikely that the Bill is intended to or would catch people who were not in fact terrorists, but were inadvertently caught up in terrorism in some way.
However, material has to be put before the court which indicates that the individual,
"is or has been involved in terrorism-related activity",
and that the order is necessary to protect the public from a terrorist-related activity. I submit that those two tests, taken together, provide adequate protection. If an additional element has to be proved—namely,
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intent or knowledge—that would add an element that would be inappropriate, particularly having regard to the sort of material that would be relied on.
I shall deal specifically and head on with the example cited by the noble Lord, Lord Phillips of Sudbury. I think he put it this way: could a journalist at some future date writing aggressively anti-government articles be said to be doing something,
"which facilitates the commission, preparation or instigation",
of terrorist acts by inflaming people against the government? We most certainly say that it would not. Equally, we emphasise that it would not be something that would justify the making of an order, because it would not be necessary in order to protect the public from terrorism. It could not possibly be done as a legitimate aim under the Convention and it could not possibly be proportionate.
I have identified three separate legal hurdles that would have to be overcome before such a proposition could come to pass. So while I fully understand the noble Lord's concern, and he is right to be as anxious as possible to determine the extent of the provision, I respectfully suggest that there are enough safeguards in the Bill to make sure that that sort of thing would never happen.
Lord Phillips of Sudbury: I am most grateful to the noble and learned Lord for addressing my point head on. Perhaps I may make life a little more difficult for him by citing a journalist working for a minority paper—I shall not say which one—that felt vulnerable under the prevailing circumstances. Would it not then be possible for a vindictive Home Secretary—we do not have one, but we have to look at circumstances that we do not want to contemplate—to act under the definitions set out in subsection (8)?
Lord Falconer of Thoroton: I would say no, but I accept that we have to test this Bill to destruction—not against the current Government but against a government who sought lawfully to use this Bill in order to achieve the kind of malign result the noble Lord envisages. However, for the three separate reasons I have given, I suggest that adequate protections are in place. One brings forward a law, sets out what it prescribes, and ensures that the court enforces that law. If the law would not allow the result which the noble Lord poses as a bad possibility, I think we can be secure.
Lord Mayhew of Twysden: Even if he has said so already, would the noble and learned Lord the Lord Chancellor be kind enough to repeat the reason why it is inappropriate to insert the word "intentionally" in the instance put by the noble Duke a few minutes ago; that of someone who produced the textile covering for a fuse that was intended to be used in a terrorist activity? I simply cannot see why it would be inappropriate to require an act to be intentional before the sanctions provided by this Bill comes into operation.

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I must say that when I first looked at it, I thought that this was one of the provisions put in the Bill so that the Government could concede it and thereby gain some good will.
Lord Falconer of Thoroton: The circumstances would have to be such that the making of the order was necessary to stop a terrorist act occurring or to protect the public from terrorism. If the person who produced the fuse covering was working in Boots or another chain store, of course no court would make such an order. The court will look at all of the circumstances and come to a sensible conclusion, just as the Home Secretary would when he first looks at it. If he did not, his order will be struck down by judicial review.
Noble Lords are seeking to incorporate a new requirement in the Bill before an order can be made. With the greatest respect, I think that the protections already provided are adequate.
The Earl of Onslow: In subsection (8)(a) there is a reference to,
"the commission, preparation or instigation of acts of terrorism".
Presumably that is a criminal offence already, is it not, as is the conduct referred to in paragraphs (b) and (c)?
Lord Phillips of Sudbury: No, they are not.
The Earl of Onslow: Are they not? Is conduct which encourages someone to prepare or instigate a criminal act not a criminal act?
Lord Phillips of Sudbury: Without intent, no.
The Earl of Onslow: But an encouragement implies intent anyway. I accept that it would be better to put it in the Bill, but are not most of the matters in the subsection criminal offences already?
Lord Falconer of Thoroton: Not in every single case. However, I should address the substance of the noble Earl's point. It is hard to imagine that the commission of an act of terrorism is not a criminal offence in some shape or form. But, to deal with the basic point that I think the noble Earl is making, the fact that it is a criminal offence is not the same as saying it can be prosecuted.
Let me give an example. Let us say that you have information from foreign intelligence which you regard as reliable because it has proved reliable in relation to a terrorist offence committed in another country, and you have good reason to believe that a terrorist offence has been committed here by X, you know that, on that basis alone, you could not possibly prosecute because the material from the foreign intelligence could not be turned into admissible evidence in court. The informant abroad would not leave abroad and you would not wish to reveal his name. So you will very frequently have material suggesting the commission of a criminal offence but you cannot prosecute. That is the dilemma with which we are always wrestling in relation to the Bill. But the noble Earl
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is absolutely right that many of the actions covered by Clause 1(8) would be criminal offences. But that does not solve the problem.
Baroness Falkner of Margravine: My noble friend Lord Phillips was very delicate, but I shall be rather more direct. Could an imam who was preaching in a sermon at a mosque and referred to the need for, let us say,jihad—which has several different meanings in that context—be covered by subsection (8)(c)?
Lord Falconer of Thoroton: I do not want to deal with examples of that specificity. But if someone was sitting in a room saying, "I would urge you three to do the following: go out and get the materials to commit a terrorist act in the United Kingdom. Here are the things that you should do and I strongly urge you to do them", that could definitely constitute conduct which gives encouragement to the commission of a terrorist act. In those circumstances, on the basis of that material, it may well be that you would take the view that a control order was required.
Lord Clinton-Davis: Although Amendment No. 42 has not been formally moved, will my noble and learned friend attempt to deal with its purport? I am particularly concerned about Section 40 of the Terrorism Act 2000.
Lord Falconer of Thoroton: I prefer not to deal with it now. We will deal with it when we get to the amendment referred to by the noble Lord, Lord Thomas of Gresford—namely, Amendment No. 168. I apologise for not dealing with it now but, if we are going to cover the same point on Amendment No. 168, it might be convenient to deal with it then.
The Earl of Onslow: Will the noble and learned Lord answer the very valid point made by the noble Baroness, Lady Falkner, about the imam in the mosque encouraging jihad? Is he or is he not committing an offence? Does this apply to fundamentalist Christians?
Lord Falconer of Thoroton: I am not going to be drawn into saying whether or not a person is committing a criminal offence without specific facts. It would be extraordinarily unwise of me to do so. I have given an example which is more specific than the one given by the noble Baroness, Lady Falkner, to indicate that of course it is possible to envisage circumstances where urging someone to carry out a specific act—and I emphasise "specific" in these circumstances—could constitute both a criminal offence and justify the making of a control order. But I will not be drawn on condemning or saying that a particular kind of speech by a imam constitutes a criminal offence. That would be both unwise and irresponsible on my part.
Baroness Falkner of Margravine: Is the noble and learned Lord planning to have Islamic theologians to assist the courts in these matters?
Lord Falconer of Thoroton: I do not think that will be necessary.
Baroness D'Souza: Does the noble and learned Lord agree that there is already a law against incitement?

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Incitement is a crime in this country. The noble and learned Lord gave an example of a particular person inciting three people in a room to do something. But provided those people had the wherewithal to commit that crime and provided they committed it within a certain time after those words were uttered, that would already be a crime accounted for in our law. One wonders why it has to be repeated here in this particular form.
Lord Falconer of Thoroton: It is here is because we are defining what constitutes terrorist-related activity. The person against whom a control order is made has to be someone involved in terrorist-related activity. These are not being defined as crimes. They are defining what terrorist-related activity is.
As the noble Earl, Lord Onslow, pointed out, that will very frequently constitute material that is criminal. But for the reasons already given, and bearing in mind the sorts of examples that I referred to, if you cannot prosecute where there happens to be a crime, then you need some other protection. That is the dilemma—something is being done which threatens the public by terrorism. You cannot prosecute, for example, because your source is an informant you do not wish to put at risk; or your source is foreign intelligence which you cannot use in court. There may not be enough to get to the criminal burden of proof but the threat is real. In those circumstances, in order to protect the public, you need a control order. We always come back to this central dilemma: if you cannot use the criminal prosecution process, are you powerless to act? That is why we are introducing these provisions.
Lord Kingsland: I am most grateful to the noble and learned Lord for the scope of his replies on what I thought was a fairly simple issue. Surely the way to test the amendments that I and my noble friends have tabled is to ask ourselves whether conduct falling within the scope of paragraphs (b), (c) and (d), if committed either innocently or negligently, could possibly pose a threat of the sort that would require the measures contained in the Bill? Surely the answer must be no. In those circumstances how can the noble and learned Lord possibly reject these amendments on a rational basis?
Lord Falconer of Thoroton: I have gone through the matter again and again and again. I could do so again but I do not think I would strengthen my arguments by repeating them unless the noble Lord would like to hear them again.
Lord Kingsland: I was only asking the noble and learned Lord. I am most grateful to all your Lordships who have spoken in this debate. Tempted though I am to put this to the test, my sense of personal survival is sufficiently strong that on this occasion, I shall not.
The Duke of Montrose: I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
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[Amendments Nos. 41 and 42 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 43.
Page 3, line 21, at end insert—
"(8A) In this Act—
"derogating obligation" means an obligation on an individual which—

(a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but

(b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order;

"designated derogation" has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act);
"designation order", in relation to a designated derogation, means the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated."
The noble and learned Lord said: This is a drafting amendment. If your Lordships look at the current Bill, in Clause 2 which is to be omitted, there is a definition of a derogating obligation and a designated derogation. Amendment No. 43 takes that definition and puts it at the end of Clause 1. It does not effect any substantive change to the Bill. It is simply a drafting amendment. I am told that the amendment was discussed as part of the first group of amendments—not very actively is all I can say.
On Question, amendment agreed to.
[Amendment No. 44 not moved.]
Clause 1, as amended, agreed to.
The Deputy Chairman of Committees (Viscount Simon): There is a mistake in the Marshalled List. The italicised notice on Clause 2 stand part shall be taken after Amendment No. 54.
Clause 2 [Derogations from the right to liberty]:
[Amendments Nos. 45 and 46 not moved.]
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2005
6.51 p.m.
Lord Triesmanrose to move, That the draft order laid before the House on 26 January be approved [8th Report from the Joint Committee].
The noble Lord said: My Lords, I hope not to detain the House for very long.

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The Children and Family Court Advisory and Support Service (CAFCASS) has requested an amendment to the Data Protection (Subject Access Modification) (Social Work) Order 2000. The purpose of the amendment is to ensure that CAFCASS officers, in all their roles, are exempted from having to disclose personal data to the data subject where they consider that it would be likely to cause serious physical or mental harm to either the data subject or any third party. We agree that the amendment requested is both necessary and—just as importantly—proportionate.
The Data Protection Act 1998 gave individuals a number of rights; one of those is the right of subject access. It is the right of individuals to be told by a data controller—in this case, a CAFCASS officer—whether he or she is processing information about them and, if so, to be given a copy of that information. The individual must also be told about the process, the purposes for which the data are being processed and those to whom the data may be disclosed.
The data controller—again, in this case, a CAFCASS officer—can refuse to disclose personal data that it holds on a data subject only if an order—in this case, a social work one—exempts them from having to do so. The basis for the exemption is that, if the personal data were given to the individual in question, it would be likely to prejudice the carrying out of social work by causing serious physical or mental harm either to the data subject or to a third party.
The Act has allowed for a number of orders which provide exemptions from the subject access obligation; for example, the health order. The Data Protection (Subject Access Modification) (Social Work) Order 2000 is one of those.
Noble Lords will probably know exactly what CAFCASS is. Its sponsoring department is the DfES, and it looks after the interests of children involved in family proceedings. It works with children and their families and then advises the courts on what it considers to be in the children's best interests. Matters in which CAFCASS may become involved include: when parents are separating or divorcing and cannot agree on the arrangements for their children; in the case of an adoption application; or when children are subject to an application for care or supervision proceedings by social services. The functions of CAFCASS officers are: to safeguard and promote the welfare of the child; to give advice to the court about any application made to it in such proceedings; to make provisions for children to be represented in such proceedings; and to provide information, advice and support for children and their families.
The existing social work order currently excludes some of the roles that CAFCASS plays from the requirement to disclose personal data. Specifically, there are two roles that are not covered at present. The first is that of children and family reporters, who become involved when parents who are divorcing and separating are not able to reach agreement about arrangements for their children in private law cases. They will write a report to the court with a recommendation.
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The second case involves guardians ad litem when the court will appoint a guardian if it considers it in the best interests of the child to be made party to the proceedings in private law cases. The purpose of the guardian is to provide separate representation for the rights and interests of the child.
The order also extends to cover the general functions of CAFCASS under the Criminal Justice and Court Services Act 2000, the key sections being Sections 12(1) and (2) and 13(1), (2) and (4), where there are court proceedings in which the welfare of children is or may be in question. The general functions include safeguarding and promoting the children's welfare, giving advice to a court about the application made to it in such proceedings, making provision for children to be represented in such proceedings and providing advice, information and other support for the children and their families.
All CAFCASS officers are involved in carrying out broadly the same type of activities as the other bodies set out in Schedule 1 of the 2000 order, such as the probation hoard and social services. For example, CAFCASS officers have to make assessments about attachment issues and the ability of parents to meet the needs of their children.
They are also involved in risk assessment in relation to the welfare of children. However, not all of the roles played by CAFCASS officers were included in the original order. CAFCASS practitioners broadly share the same social work qualifications. Therefore, extending the exemption to cover all the roles played by CAFCASS officers is a sensible reflection of the policy intention that was held at the time of the drafting of the social work order 2000.
The amendment is necessary to enable CAFCASS officers to refuse individuals access to their personal data if they consider the release of that data would be likely to cause serious physical or mental harm to either the data subject or a third party. Serious physical harm includes harm to a child, harm to self and harm to a CAFCASS officer.
It is essential that that exemption is used only when necessary. CAFCASS estimates that the exemption would not be relied on in more than 10 private cases of law a year. Even when the exemption has been relied on, it may often mean that only certain sensitive paragraphs of documents need to be read out, rather than the whole document being withheld. CAFCASS is committed to transparency whenever possible.
I am briefed to give examples of the kinds of cases when that might happen because they are unusual and extreme, but I doubt whether that is necessary for your Lordships.
The terms of the order make it clear that personal data will be withheld from the data subject only in very specific circumstances, as described by the order. If those circumstances do not arise, CAFCASS will comply wholly with the data protection laws. I beg to move.

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Moved, That the draft order laid before the House on 26 January be approved [8th Report from the Joint Committee].—(Lord Triesman.)
Earl Howe: My Lords, the House is grateful to the Minister for his clear explanation of the order. I am sure that like me, he believes in the principle of open access to information, as laid down in the Data Protection Act. and that all his instincts are to react against such an order, which restricts access to such information. None of us believes that we should be living in the world of "big brother".
That is not to say that I oppose the order. I do not. I appreciate its logic, but if we are to define circumstances in which information held by the public authorities may be deliberately withheld from a data subject, those circumstances should be both rare and tightly drawn.
I have some questions for the Minister. Do I understand correctly that if a CAFCASS officer had concerns about causing harm to the data subject or to a third party if he were to comply with a request to disclose certain data, those concerns would not be a reason to withhold other data which might not be so sensitive? In that event, to what extent would the data subject be informed that he was receiving only an edited version of his file?
Am I correct that the fact of a CAFCASS officer having processed data about a person, and the factual background information as to who is entitled to see such data should remain unrestricted, even when the data themselves are being withheld? In other words, is the effect of this order simply to permit the nondisclosure of certain data, or to permit, in addition, the non-disclosure of the fact that the data are held on file? If someone were to apply to see data relating to him and the request is declined on the grounds that the Minister spoke of, should he be told that this is what is happening?
The Explanatory Notes speak of circumstances in which the exercise of Data Protection Act rights of access:
"would be likely to prejudice the carrying out of social work by … [causing] serious harm to the physical or mental health or condition of the data subject or any other person".
I understand the terms "physical or mental health" but I wonder whether the Minister could say what meaning the word "condition" has in this context. It is unclear to me.
In my parliamentary work, I deal with many letters from individuals who maintain that they have been falsely accused of harming their children. Very often, the nature of the alleged abuse is not physical, but emotional or mental. A social worker or teacher may have observed a child behaving oddly, disruptively or with a lack of normal concentration or self-control. Before anyone knows what has happened, those observations translate themselves into allegations of abusive parenting, and other more probable explanations, such as Asperger's syndrome or autism, are not even considered.
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There is a range of hard-to-diagnose conditions in children—autism, ADHD, ME and others—which, to the untrained eye, are open to misinterpretation that can be highly damaging. The parents may well be completely innocent of any fault or wrongdoing, yet they have the finger pointed at them. I have seen and dealt with many such cases. Indeed, there are some local education authorities that will strain every sinew and muscle to avoid the expense of making special educational provision for SEN children, even in the face of irrefutable professional diagnoses, and sometimes despite formal statementing. Instead, what do they do? They put the child on the "at risk" register and accuse the parents of neglecting or harming the children. Of course. the family are then on the back foot.
It is a sinister and deeply unpleasant ploy, but it is by no means a rare one. Not infrequently, the parents who appeal to me have experienced the trauma of child protection proceedings in the family court and sometimes have seen their children taken into care. Because of the confidential nature of the family courts, they are unable to discuss the details of their case with third parties; I always have to tell them that they are acting illegally by speaking to me. There is often, in any case, very little that I can do, but one of the things I tell people that they can do is to seek access to the data that are held about them or their children by a local authority. The secrecy of the family courts is serious enough—and I believe that it is high time that we review the whole family court system—but if, following this order, data held on the files of accused parents becomes secret as well, we are potentially moving from the world of CAFCASS into the world of Kafka, unless there are very strict safeguards as to the circumstances when non-disclosure is permissible.
If the provisions of the order are invoked in a particular case, who decides whether the circumstances are sufficiently serious to warrant non-disclosure? Will such a decision hang upon the opinion of one individual, or will it require more than one person to sanction it? What evidence is likely to be seen as sufficient to warrant the view that the carrying out of social work is likely to be prejudiced if the information is disclosed? What requirement is there to record such a decision, and the reasons for it, on the file, and how are such decisions audited? What right of appeal does someone have to the non-disclosure of data, if he becomes aware of it? Could the local government ombudsman, for example, look freely into the matter?
The family court makes its determination on the balance of probabilities, and not uncommonly its decisions turn on the subjective opinion of one or two witnesses—perhaps a social worker or CAFCASS officer. The Minister will see where my remarks are leading: I do not want to see justice being denied to families under a cloak of legally-sanctioned secrecy. The statements of a CAFCASS officer cannot be challenged if the factual basis of such statements is not disclosed to the individual or to the court. Flimsy suspicion and subjective apprehensions are no basis on which to inhibit openness and rights of access. I hope that the Minister can reassure me that the perfectly right and proper wish

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of CAFCASS to protect individuals in hard cases and in special circumstances will not be allowed to spill over into a generalised drift towards greater secrecy and diminished accountability in the absence of compelling reasons.
Lord Goodhart: My Lords, there is nothing I could usefully add to the searching comments and questions of the noble Earl, Lord Howe. Like him, we do not object to this order.
Lord Triesman: My Lords, I am grateful for the questions that the noble Earl, Lord Howe, has asked, and I fully respect that they have been repeated briefly by the noble Lord, Lord Goodhart. They go to the heart of the philosophy of the matter, and I had best start there.
I wholly share the view that we are aiming at the most transparent system possible. We would certainly want to ensure that everybody who was concerned for the well-being of children, or for the well-being of their own good name, should have the greatest possible access to the greatest possible amount of information. There would not be, in any sense, a desire to weaken the rights that I have just described and that I think are philosophically shared between all three of us who have taken part in this very brief debate.
I will say a little about the key issues that the noble Earl has raised. First, as I said in my introduction, we anticipate that approximately 6 per cent of all of the cases—about 10 cases per year—might have an element that falls into this category. It is a small number, and so the possibility of a wide-reaching use of any provision to hide information would not occur. It would be a small number of cases. Secondly, whether rare or not, it should be subject to stern tests.
That point is well taken, and I want to deal with it in the following way. First, non-sensitive data, which will be the bulk of the data, will be shared. Secondly, the data subject would be made aware that certain information had been withheld. There would be no question of them not knowing that information had been withheld. Thirdly, it is entirely conceivable that someone would take exception to even that fact, and not necessarily accept the view that it is being withheld for a good reason—namely the mental or physical harm potential of it being disclosed. For those reasons, there is a special appeal system, and for the record I would like to set out what it involves.
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If the data subject wishes to appeal the decision of the data controller, in this case a CAFCASS officer, then they are able to do so under Section (7)(9) of the Data Protection Act, by making an application to a court. Ahead of this occurring, an individual going to court, for example, is first likely to appeal to CAFCASS. CAFCASS has indicated that it has reached an agreement with the board to put in place an independent review procedure to deal with such appeals. The individual also has the option of appealing to the Information Commissioner, who is the "ombudsman" of key resort in such cases. At present there are two and, as CAFCASS develops its procedures, three lines of appeal. Individuals will know that they are entitled to take any of those courses of action.
The noble Earl, Lord Howe, also asked about the meaning of "condition". Its inclusion means that there does not have to be prejudice within the meaning of recognised mental health illnesses. Severe distress would be enough in this case.
My final and, I think, fourth point is that it is right that within CAFCASS there is some means of judging whether it is proceeding sensibly and consistently, so that we know at the end of the day how many cases have gone through any particular route and with what consequences. Otherwise we would be acting without sufficient information. CAFCASS is aware and has generally said that it needs to improve the quality and reliability of its statistics. But in this case, as it will be as transparent as possible about disclosure except in these cases, its policy will lead to the collection and tabulation of robust and reliable data so that we all know that the first three processes I mentioned have come through in the way that they should.
I hope that I have been able to address the burden of the questions that have very correctly been asked of us, precisely because we want to protect transparency. When I looked at the kinds of extreme case—which I shall not list although I have offered to—where this may be a useful provision, I was satisfied that these would be cases where the risks justified taking this step. Otherwise I would not have dreamt of making this submission.
I believe that the original intention of the order was to afford protection to all bodies that perform social work. In that light and having given answers which I hope will satisfy noble Lords, I commend the order to the House.
On Question, Motion agreed to.
House adjourned at thirteen minutes after seven o'clock.