HL Deb 03 March 2005 vol 670 cc359-83
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 (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 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 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 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 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—

  1. (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
  2. (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 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— 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—

  1. (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
  2. 366
  3. (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—
  1. (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 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 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 Gresford

moved, 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 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 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. 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, 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 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.

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 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.

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 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 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 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 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 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 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


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 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.