Prevention of Terrorism Bill (Hansard, 3 March 2005)

§ 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.
399 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 400 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. 401 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 402 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. 403 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.

§ 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 404 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 405 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 406 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 407 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. 408 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.

§ 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". 409 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 410 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 411 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 412 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?

§ 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 413 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?
414 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 415 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 416 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?

§ 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. 417 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 418 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. 419 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 420 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 421 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.

§ 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 422 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 423 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 424 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. 425 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 Gresford
moved, 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, 426 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.
427 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 428 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.

§ 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. 429 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 430 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 431 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.

§ 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 432 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 433 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.
434 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 435 would like to underline again that this issue is of central importance to the Opposition. I am talking about the DPP.

§ 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, 436 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 437 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.
438 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.

§ 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 439 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.
440 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 441 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 442 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 443 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 444 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 445 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 446 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. 447 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 448 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 449 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 450 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.

§ 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 451 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 452 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 454 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 Thoroton
Amendment 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 455 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 456 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 Thoroton
moved Amendment No. 32: Page 2, line 40, leave out "Every
457 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 Thoroton
moved 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 Montrose
moved 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 458 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. 459 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.

§ 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, 460 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. 461 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 462 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? 463 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.
464 [Amendments Nos. 41 and 42 not moved.]

§ Lord Falconer of Thoroton
moved 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.