Lords Sitting of 7 March 2005

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

EU Constitutional Treaty: Explanatory Documents
Lord Blackwell Lord Blackwell asked Her Majesty's Government:
How they will ensure that factual information on the European Union, distributed to the public from public funds in advance of the referendum on the European constitution, is unbiased.
Lord Triesman: My Lords, there are existing guidelines and procedures which civil servants must follow in communicating with the public which ensure that information provided is objective, explanatory and not biased. The same guidelines also apply to all work that external agencies undertake under contract with government departments. Civil servants will, of course, adhere to any future guidance that is produced in advance of the referendum on the EU Constitutional Treaty.
Lord Blackwell: My Lords, I thank the noble Lord for his response but confess that I am not fully satisfied. Does he accept that, even given the trust we have in our civil servants, this is an area where it is very difficult for people to produce a purely factual explanation of the European Constitution without portraying some of their views in the document? Given that, will the noble Lord consider that while the Government are entitled to publish White Papers, for public information—for leaflets and pamphlets distributed at large—it might be sensible to set up a committee of senior Cross-Bench Members to ensure that the content is fair and properly represents both sides of the argument?
Lord Triesman: My Lords, knowing that this Question would be asked today, I reread the document, and the shorter document. Aside from my fear of dropping them on my foot, in general I think it would be hard to fault their factual quality. They provide solid background information and, I think on the most objective reading, could cause no one to take exception.
Lord Lea of Crondall: My Lords, does my noble friend agree—
Lord Barnett: My Lords—
Noble Lords: Order!
Lord Lea of Crondall: My Lords, does my noble friend agree that an exercise such as this, relating to the
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rules of any organisation, whether it is the MCC or the TUC, requires some reasons to be given for the exercise being carried out? That must be part of what any reasonable person would call factual information. If the noble Lord, Lord Blackwell, does not see that as factual information, it means that he does not really want factual information. He would rather that the information was given only by the Rothermere press, the Murdoch press and the Telegraph group while the rest of the people were left in ignorance.
Lord Triesman: My Lords, it is vital that the information provided is widely disseminated, objective and has solid reasoning behind it. Otherwise, why would we be engaged in this exercise at all? It is extremely important that nobody should feel, in trying to achieve balance, that they were being driven into silence. I hope that our broadcast media, let alone our print media, feel that.
The Foreign and Commonwealth Office has gone to great lengths at all levels, with legal advisers to HM Treasury and the Cabinet Office, to meet the criteria that are set for the civil servants. I believe that they have done so.
Lord Hannay of Chiswick: My Lords—
Lord Maclennan of Rogart: My Lords—
Lord Howell of Guildford: My Lords, does the noble Lord recall Ministers saying the other day that not a penny would be spent on pro-constitution propaganda in this country by the European Commission? The European Commission is, of course, using taxpayers' money—that is where it eventually comes from—yet it seems that it is continuing to spend money in this country, directly and indirectly. How will this be stopped? How will the Ministers' undertaking be fulfilled? Will all the institutions that receive these very large sums have to pay them back?
Lord Triesman: My Lords, in advance of the referendum process, I have no doubt that all sorts of bodies will campaign for what they believe is right. Noble Lords on the opposition Benches a re at the forefront of doing so. The Government have no wish to see any money spent inappropriately. The full list of legitimate expenditures during the course of the referendum campaign—the purposes for which money can be spent during the campaign—have been set out very clearly in the definition of referendum expenses. That will have to be the template with which the independent organisations that argue for a "Yes" or a "No" vote will have to proceed.
Lord Hannay of Chiswick: My Lords—
Lord Maclennan of Rogart: My Lords—
Noble Lords: Cross Bench!
The Lord President of the Council (Baroness Amos): My Lords, there really will be enough time for both questions. I suggest that we hear from the Liberal Democrat Bencthes and then the Cross Benches.
Lord Maclennan of Rogart: My Lords, will the noble Lord acknowledge that the facts of the European Union,

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like all facts, are, by definition, true, and that the defensive Question of the noble Lord, Lord Blackwell, reveals fear of those truths? The big truths about the Union are that its members, whether new or long standing, enjoy prosperity and more security, and are more capable of exercising beneficent influence when they act together than when they stand alone.
Lord Triesman: My Lords, I agree with the noble Lord. Not only have we managed to achieve those benefits but I believe we have achieved them while remaining independent nation states. The Government's position throughout the process will be to ensure that we are a successful nation state. That is our great strength in Europe, and the combination of European nation states is the great and additional strength that we enjoy.
Lord Hannay of Chiswick: My Lords, does the Minister not agree that all the evidence is that the people of this country are very far from having enough information yet to make an informed choice? Does he therefore agree that it is the duty of the Government to fill that gap? Will he reject the suggestion of the noble Lord, Lord Blackwell. that civil servants are incapable of writing objective prose?
Lord Triesman: My Lords. I hope that I have said that I believe that the civil servants have written extremely objective documents. It is important that they should do so because it is plain from most of the polling evidence that people remain. unfortunately, without a lot of key information, and we have to fill that gap in information and knowledge. The brief guide to the European Union—the smaller document—produces a rather straightforward account of the European Union and of the benefits that we have received from membership, all of which I fully accept are key facts in people's decisions.
Lord Barnett: My Lords—
Lord Stoddart of Swindon: My Lords—
Baroness Amos: My Lords, the noble Lord, Lord Barnett, should speak next.
Lord Barnett: My Lords, would my noble friend join with me in welcoming all unbiased reports on the European Union constitution in due course? Does he think it would be helpful if everyone issuing statements and reports should indicate that they have read all 511 pages of the treaty and 493 pages of the Foreign and Commonwealth Office Explanatory Notes?
Lord Triesman: My Lords, if anybody made such a declaration I would probably be the first to disbelieve them. Having said that, it is important that there is good, strong, factual information and I genuinely believe that, if you look at the documents, that is what you find. The Civil Service has done us proud in the work that it has done. Of course, after that there will be strongly held views: people will engage in the most
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vigorous debate, and make the most preposterous and inciteful allegations. That is the nature of a political debate of this kind and we will enjoy it all.

Treason
2.44 p.m.
Lord Tebbit Lord Tebbit asked Her Majesty's Government:
Why they have been unable to inform members of the public who have inquired the reason for the repeal of the Treason Act 1795 during the passage of the Crime and Disorder Act 1998.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, neither the records of the relevant debates in Hansard during the passage of the Crime and Disorder Bill nor Bill papers held in the Home Office explain fully why the 1795 Act was repealed in its entirety. It is, however, evident from the Hansard records that the repeal was considered to be a necessary consequence of the decision to repeal the death penalty for treason.
The substantive offences that were contained in the 1795 Act are covered by other parts of the criminal law including the Treason Act 1351 relating to conspiracy and incitement.
Lord Tebbit: My Lords, what on earth has been going on ill the Home Office? Does the Minister recollect that on 16 November last, she told me in a Written Answer that the 1795 Act was still in force and subsequently had to correct that? Now her officials have written to members of the public saying that they have no idea why the 1795 Act was repealed. It seems that they are incapable of going to the Library, finding the Official Report for 19 March 1998 and reading in it the speeches made by the noble and learned Lord. Lord Archer, and Lord Williams of Mostyn, who seemed to have some idea why he was advocating the Act's repeal.
Baroness Scotland of Asthal: My Lords, of course, I apologise for the fact that the 1795 Act was incorrectly referred to. I remind noble Lords that it is not every day that the 1300 Act, the 1870 Act or those other Acts are looked at. There was a mistake. I humbly ask the House's pardon for this terrible mistake that was made by me through that dreadful, inaccurate Answer.
Lord Maclennan of Rogart: My Lords, does the Minister recognise that the 1795 Act was the terrorism Act of its day? It took rather a long time to repeal something that was inspired by public hysteria about the threat of the French and introduced by a repressive Conservative administration under William Pitt the Younger.
Baroness Scotland of Asthal: My Lords, some might so describe it, but I could not possibly comment. However, the Treason Act 1795 was looked at again in

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the Treason Act 1817, which was repealed in part by the Treason and Felony Act 1848, so it was dealt with relatively swiftly.
Lord Mackay of Clashfern: My Lords, was the 1351 Act one that applied to the United Kingdom? If not, I wonder why it should be an important part of the law of the United Kingdom today.
Baroness Scotland of Asthal: My Lords, we are grateful that that Act was followed by a number of other Acts that sought to bring it into force. To help your Lordships, there was the Treason Act 1351, the Treason Act 1702, the Treason Act 1842 and the Treason and Felony Act 1848, which all amplified our splendid common law offence, so Scotland is safe.
Lord Stoddart of Swindon: My Lords, I suppose that this could not possibly have anything to do with the fact that European Union Commissioners affirm an oath of allegiance to the European Union. If they do so, they swear allegiance to somebody other than Her Majesty the Queen, which I understand would in itself be treasonable.
Baroness Scotland of Asthal: My Lords, I hesitate as always to give any disappointment to the noble Lord, but I have to tell him that the EU constitution is, unfortunately, not a treasonable document.

Adult Social Care
2.48 p.m.
Baroness Greengross Baroness Greengross asked Her Majesty's Government:
Whether the New Vision for Adult Social Care will include a commitment to increase access to low-level social care, such as help with shopping and simple household tasks.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, my ministerial colleague, Stephen Ladyman, announced last August that we would be developing a Green Paper on the future of adult social care. I expect the Green Paper to be published shortly. The Government announced on 3 March an extra £60 million for partnerships for older people projects. They will provide a range of schemes that maintain and enhance the independence of older people.
Baroness Greengross: My Lords, I thank the Minister very much for that reply and I look forward with interest to the Green Paper. I hope that it will cover all the various things that he mentioned. In particular. I would like to draw his attention to the importance of highlighting the need for people to have low-level social care. To retain independence it is often the small tasks—shopping or, in health terms, nail cutting, tasks involving household gadgets or changing lightbulbs, which involve
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safety—that can make all the difference between someone remaining independent or having to go far too early into expensive long-term care.
Lord Warner: My Lords, we want to ensure that there is a proper balance between prevention and other activities in the area of intensive care support. What services a person needs to allow him or her to live happily and sakly in their own home rather than end up in hospital or a care home are specific to each individual, as I think the noble Baroness is saying. I accept that tasks such as shopping and cleaning can enhance a person's well-being, improve their quality of life and avoid social exclusion. Through the Green Paper we want to try to encourage councils to give due balance to those issues.
Baroness Gardner of Parkes: My Lords, is it not a fact that local authorities have usually supplied these services for people and that that has worked well, and that a great many voluntary bodies have been involved? By using volunteers, particularly older volunteers, one is giving them an occupation which in itself can be beneficial. Perhaps the most useful social service of all has been our freedom passes to get us around because that keeps people mobile longer than anything.
Lord Warner: My Lords, I am sure that everyone in the House pays tribute to the Mayor of London and his freedom passes, which I am sure have benefited a number of Members of this House. I also pay tribute to the work done by voluntary organisations. The private sector, as well as the public sector, has also provided some of the support services that are needed by older people.
Baroness Howe of Idlicote: My Lords, will the Green Paper include among those who might be eligible for reimbursement members of an individual's own family if they are able to provide lower-level social care? I hope that he can answer that.
Lord Warner: My Lords, I am afraid that the noble Baroness will have to wait for the Green Paper to be published. I am not at liberty to anticipate that. Eligibility criteria for adult social care are a matter to be determined by local councils.
The Lord Bishop of Portsmouth: My Lords, the noble Baroness's Question would have been dear to the heart of the late Lord Sheppard, who was a former Member of these Benches. Do the Government agree that the New Vision for Adult Social Care should lead us to think in terms not just of that rather cliched expression "person-centred care" but of person, family and community-centred care'? I return to the recent supplementary on the voluntary sector, which is under-resourced and having difficulty in recruiting. However, I would like to instance a successful example of the voluntary sector; namely, the church-sponsored initiative, the voluntary care group advisory service in Hampshire.
Lord Warner: My Lords, I am sure the whole House will want to pay tribute to the contribution that

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Lord Sheppard made to our public life. As someone who saw him as a young man opening the batting for England. I remember that period with great fondness.
As regards the right reverent Prelate's points about the voluntary sector, the Government accept that that sector plays a large role in the area that we are discussing and will continue to support those services. I pay tribute to the service to which the right reverend Prelate drew attention. However, there are many other areas in which the Government have taken initiatives such as direct payments where elderly people themselves can make the decisions about the kind of support that they wish to acquire.
Lord Hunt of Kings Heath: My Lords, my noble friend referred to the importance of integration of services across various agencies and the voluntary sector. While not seeking to anticipate the announcement by the Government, does he agree that there may be a case for a stronger role being given to the health service in taking leadership to ensure that there is consistency of approach across all these agency boundaries?
Lord Warner: My Lords, we will, of course, have to wait for the Green Paper but I am sure that my noble friend has read the report by Professor Ian Philp, Better health in old age, which draws attention to huge improvements in hip replacements, knee replacements, cataract operations and so on from which older people have benefited through the improved services that this Government have introduced under the NHS.
The Countess of Mar: My Lords—
Lord Taylor of Blackburn: My Lords—
Baroness Amos: My Lords, it is the turn of the Liberal Democrats.
Baroness Neuberger: My Lords, will the Minister acknowledge that the engagement of older people in social activity reduces the likelihood of their institutionalisation by almost 50 per cent? Will he therefore ensure that the New Vision jar Adult Social care emphasises help with social engagement and encourages funding both for the statutory and voluntary sectors, as the right reverend Prelate has already mentioned, rather than what we have seen thus far, which emphasises help largely for those who are already very dependent?
Lord Warner: My Lords, as I said in my initial reply, I am sure that the Green Paper will tackle the wide range of services that older people need to live fulfilling and independent lives. I have four pages of examples of good local practice, with which I shall not detain the House. However, one that stands out is the Asian Elders Project in Barnet which helps to support independent living, and a number of others which help people to maintain their independence through physical exercise.
The Countess of Mar: My Lords, is it not a sad reflection on society that we are having to depend on government and organisations to provide services such as shopping and replacing light bulbs which should be provided either by relatives or by good neighbours? What is the noble Lord doing to foster genuine good neighbourliness and to encourage relations to look after their own people?
Lord Warner: My Lords, that is a little unfair to the many people up and down the country in all kinds of families who give a huge amount of support to their families and older relatives. Carers are a good example of that. I pay tribute to the work that they do in looking after older people and providing support in that regard. The Government have given support through direct payments, the £325 million for the Carers Grant and in other areas to support families as they look after members of an increasingly ageing population.
Lord Taylor of Blackburn: My Lords, regardless of any Green Paper that the Government might publish and of any help given to voluntary organisations, I am sure that the House and the Minister will agree that there is nothing better than a neighbour looking after a neighbour.
Lord Warner: My Lords, I absolutely agree. I am old enough to remember the good neighbour scheme introduced by a Labour government in the mid-1970s.

Afghanistan: NATO Support
2.57 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What response they have received to their representations to NATO allies on members' contributions of personnel and material to allied forces in Afghanistan.
Baroness Crawley: My Lords, following the informal meeting of NATO defence Ministers on 9 and 10 February, NATO announced that the package of resources needed for stage 2 of the planned expansion of the International Security Assistance Force in Afghanistan has been completed. Italy, Spain, Lithuania and the US are providing the core resources.
Lord Astor of Hever: My Lords, I welcome that reply although much remains to be done, not least providing security ahead of the parliamentary elections. Given the UN's declaration that Afghanistan is in danger of becoming a narcotic state, should NATO, and specifically Britain, with responsibility to sort this out not now be more aggressive in the vital task of eliminating poppy crops?
Baroness Crawley: My Lords, we are very aware of the danger of the development of a narco-state. NATO

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is acting within ISAF's mandate to take very resolute action against the production and the trafficking of narcotics. The noble Lord, Lord Astor, asked what the UK specifically was doing. The UK is providing advice and funding to the Afghans on eradication. For instance, we have helped them set up a central planning cell which will decide what poppy fields to target, taking into account the density of the cultivation, the access to alternative livelihoods for farmers and the need to undermine local warlords who control cultivation in particular areas.
Lord Tomlinson: My Lords, would my noble friend agree with me if I suggested that we are long since past the time when we should be worried about the development of a narco-economy? It is there; the report we received last week indicated that 50 per cent of the gross national product of Afghanistan is now coming from narcotic crops. Does she further agree that that is now a matter of great urgency for this country, because we are at the end of the supply route and much of that narcotic comes into this country illegally, and that we must now take urgent action in this area?
Baroness Crawley: My Lords, I agree with my noble friend that urgent action is required. That is why the UK fully supports the 2005 Afghan counter-narcotics implementation plan. My noble friend will know that that means building up institutions, having a proper information campaign, assisting the development of alternative livelihoods—it is no use talking about eradication unless we give people an alternative Livelihood—strengthening interdiction and law enforcement, supporting the criminal justice system and taking action on eradication.
Lord Redesdale: My Lords, how do the Government plan to carry that out? What percentage of Afghanistan is controlled by ISAF and the central government and what percentage is patrolled and controlled not by them but by warlords who are pushing the production of opium?
Baroness Crawley: My Lords, as the noble Lord will know, ISAF's control was mainly in Kabul for the first year or so after the conflict. It has now spread to the north and west of the country, which was stage 1. Stage 2, to which I referred in my Answer to the noble Lord, Lord Astor, involves our setting up the west as an ISAF area where forces under ISAF will be able to assist the provincial reconstruction teams, NGOs and non-military personnel that are trying to ensure that the country is reconstructed. Stage 3 will concern the far more worrying areas in the south and east.
Lord Marlesford: My Lords, do the Government recognise the case for decriminalising all drugs on the basis that the number of extra people who would die from drug abuse might well be smaller than the number of those who die from drug-related crime? It would also cut the cash flow of organised crime, and
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much street crime—probably by about 90 per cent at a stroke. It would also provide a legal basis for poppy growers in Afghanistan.
Baroness Crawley: My Lords, that is wide of the Question about provincial reconstruction teams and military operations in Afghanistan. I am sure that, if he wishes, the noble Lord can table a Question on our domestic policy, which has been made clear many times from this Dispatch Box.
The Earl of Sandwich: My Lords, does the Minister remember that there was some ambiguity about the objectives of the provincial reconstruction teams and whether they were military or humanitarian forces? Can she confirm that this has been clarified and standardised under the NATO mandate?
Baroness Crawley: My Lords, I remember those early discussions about whether provincial reconstruction teams were civilian or military. I particularly remember the discussions we had in this House about the relationship between the military within the reconstruction teams and NGOs. I hope that that has now been clarified. I understand that there is a good relationship between the UK-led teams and NGOs and construction teams.
Lord Garden: My Lords, does the Minister think that the UK should be doing more? Seven of our allies are providing bigger contributions to ISAF, including Belgium, Italy and Spain. Will she convey the thanks of the UK Government to France and Germany, which continue to provide more than a quarter of the total assets for ISAF?
Baroness Crawley: My Lords, we contribute a military force of more than 600 people to ISAF. We also have six GR 7 Harrier aircraft based at Kandahar airport that assist ISAF and the coalition forces in Afghanistan. We are committed to helping the Afghan Government to provide their own security because building up Afghanistan's national army and police force is the most important part of security.

Consumer Credit Bill
3.5 p.m.
Brought from the Commons; read a first time, and ordered to be printed.

Business of the House: Standing Orders 47 and 49
Baroness Amos: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That, in the event that the Prevention of Terrorism Bill has been reported to the House, Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with tomorrow, to allow the Bill to be taken

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through its remaining stages that day; and that Standing Order 49 (Amendments on Third Reading) be dispensed with to allow amendments for Third Reading of the Bill to be tabled tomorrow.—(Baroness Amos.)
On Question, Motion agreed to.

Companies Act 1985 (Operating and Financial Review and Directors' Report etc.) Regulations 2005
Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the order of 10 February referring the draft regulations to a Grand Committee be discharged.—(Baroness Amos.)
On Question, Motion agreed to.

Budget (Northern Ireland) Order 2005
Baroness Amos: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Higher Education (Northern Ireland) Order 2005
Baroness Amos: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Public Processions (Amendment) (Northern Ireland) Order 2005
Baroness Amos: My Lords, I beg to move the fifth Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Electoral Law Act (Northern Ireland) 1962 (Amendment No. 2) Order 2005
Baroness Amos: My Lords, I beg to move the sixth Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Prevention of Terrorism Bill
3.7 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 2 [Derogations from the rights to liberty]:
Lord Carlisle of Bucklow Lord Carlisle of Bucklow moved Amendment No. 47:
Page 3, line 26, leave out "on the balance of probabilities" and insert "beyond reasonable doubt"
The noble Lord said: As the Minister will remember, this issue was debated last Thursday. However, as this amendment is tabled for today, and a number of other amendments are grouped with it. I shall move the amendment and speak to it briefly, but I shall withdraw it at the appropriate stage.
We are dealing with the power of the Secretary of State to make orders that derogate from the liberty of the individual. The noble and learned Lord the Lord Chancellor has said that they are the gravest orders and that they involve, at least, house arrest.
The Bill as it now stands allows the Secretary of State to make such an order, imposing an obligation that is incompatible with Article 5 of the European Convention on Human Rights, if he is satisfied on a balance of probabilities that an individual is or has been involved in terrorism-related activities. I believe, as I said on Thursday, that that standard of proof is too low. Where the Secretary of State is minded to make an order which, it is accepted, is intended to deprive the individual of his liberty in the circumstances we discussed, he should at least be required to be satisfied beyond reasonable doubt—namely, on the criminal standard of proof—prior to making that order.
As I say, there is no purpose in repeating everything that was said on the last occasion, but it is important to remind the Committee that we are dealing with the most serious orders which it is intended that the Secretary of State should be able to make. On that occasion I realised that the majority of those on both Front Benches, while accepting that there should be a clause which puts the burden of proof on the Home Secretary, nevertheless said that the standard of proof should be on the basis of the balance of probabilities. Therefore, it would be pointless to pursue an amendment which was bound to fail if that was the view of other Members of the Committee.
At least two noble Lords on the government Benches begged me not to withdraw the amendment at that stage because they felt, like myself, that the criminal burden of proof is the appropriate burden of

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proof for such an order. All I need say at this moment is that we debated the matter last Thursday. I beg to move.
The Earl of Onslow: My name is also on the amendment. Before we came into the Chamber I was nobbled by a Whip who said to me, "You are not to talk for too long". When I saw my name on the amendment I just thought to myself that you should not have to talk for too long in order to say that it is completely wrong to take away the liberty of a subject and lock him up on the balance of probabilities. I shall now sit down.
Lord Lloyd of Berwick: I support as strongly as I can the amendment proposed by the noble Lord, Lord Carlisle. The difficulty is that we are concerned with what are supposed to be civil proceedings. I do not think that that is how they will seem to the suspect who is made subject to these proceedings. The only analogy in the civil law that I can think of—I have mentioned this already—is the non-molestation order in domestic proceedings and the anti-social behaviour order. One only has to mention those orders to see how many million miles they are away from what is proposed under Clause 2.
If those were in truth and in reality civil proceedings, of course the balance of probabilities would be the right burden of proof. But here the consequences, as is accepted, are the deprivation of liberty, which is a criminal and not a civil sanction. It follows to my mind that the correct burden of proof, whether it be applied to the Secretary of State or the judge, is the criminal burden of proof: he should be satisfied beyond reasonable doubt before he makes an order with these consequences. That is why I support the amendment.
The Lord Bishop of Chester: It is difficult for those of us who are not legally qualified sometimes to follow all the details of these matters, but the comparison between the civil and the criminal standard arose recently in the Church of England when a new clergy discipline measure went through the Synod and was approved by Parliament.
Members on the Ecclesiastical Committee will know that there was much discussion about the Church moving from the criminal standard to the civil standard in the application of the discipline measure, particularly because for clergy their livelihood and the place where they live would be at stake. There was a strong mood, both in the Synod and to some extent on the Ecclesiastical Committee, to retain the criminal standard for that reason.
The Synod was persuaded to move to the civil standard because it was told that when more serious offences were under consideration the civil standard had a certain flexibility in it so that it would be more difficult to apply the more drastic, as it were, the outcome. That was recognised in the report of the Ecclesiastical Committee when it declared that the measure was "expedient". The Ecclesiastical Committee, as I recall, said that if a cleric's livelihood and home were at stake the civil standard approximates to the criminal standard.
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Is there flexibility in the application of the term "balance of probabilities", to recognise the point which the noble and learned Lord, Lord Lloyd, has just made that if someone's liberty is at stake, even if the standard is technically a civil standard, in practical purposes it needs at least to approximate to the "beyond reasonable doubt" standard?
We all agree that it would be much better for these cases to be prosecuted in the criminal courts. The noble and learned Lord, Lord Lloyd, has often and rightly made that point. But there is a danger of a temptation slipping in. If the standard of proof for a derogating control order is significantly lower than the criminal standard, will there not be a danger over the years for the authorities to default to it too quickly?
One also has to think—this point was slightly raised at Second Reading, but perhaps not enough—what the actual social impact will be of these orders. Somebody under house arrest will become a cause célèbre very easily. If that cause célèbre is seen to he under-girded by anything other than a fairly thorough standard of proof—however we express it legally—there is a real danger of that cause célèbre being socially disruptive in ways we have not anticipated. So, what does the term "balance of probabilities" mean to a layman like me in relation to the sense of natural justice which has just been referred to?
3.15 p.m.
Lord Rees-Mogg: I should like to support the amendment on these grounds. I think that the Committee would be very anxious to avoid miscarriages of justice arising out of this Bill if it becomes an Act. We know that miscarriages of justice tend to arise when there is a fear of terrorism or in terrorist cases. Regrettably, there are many examples of that in our fairly recent history, even when the criminal standard of proof was being applied. It must logically be the case that there will be more miscarriages of justice if the standard of proof is probability rather than reasonable certainty. Reasonable certainty is therefore preferable. The consequences in terms of the confidence of any community which may be affected by this Bill will depend on miscarriages of justice, which will happen, being kept to a minimum.
Viscount Bledisloe: I have great sympathy with the amendment, which seems at first sight to be right. Perhaps the proponents of the group of amendments could explain to me how they resolve the following problem. As I understand it, the Government have resort to control orders only where they cannot bring a prosecution. They cannot bring a prosecution because they dare not reveal to the defendant the evidence that is before them because it is secret or will imperil their sources. If the defendant—as I shall continue to call him—cannot be told the evidence against him, how on earth can any court or any person ever be satisfied beyond reasonable doubt as, by definition, they cannot hear what the explanation of the accused persons is because he cannot behold the evidence?
So if you can make a control order only when you are satisfied beyond reasonable doubt, are you not in fact saying that you can never make a control order?

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The defendant cannot be given the evidence against him. Therefore the court cannot know. There is a lingering doubt that it has the wrong bod and that if only he could be given all the information about him, he would be able to explain it away. I do not see the way out of that dilemma. Does not this apparently very sensible amendment defeat the whole purpose of the Bill?
Lord Kingsland: This group of amendments essentially covers three issues. First, it covers the issue that has already been much debated about whether the burden of proof should be on a balance of probabilities or beyond reasonable doubt. Secondly, it covers the question of whether the appropriate test should be a judicial review test or a test on the merits, with the court looking at the Government's assertion that reasonable suspicion is justified. Thirdly, it covers the stage at which the Director of Public Prosecutions ought to intervene to give a view on whether a prosecution should be brought, perhaps making the control order procedure otiose.
I shall start with the last point, which we have already debated. It is crucial that every effort is made to ensure that the prospective subject of the control order can be prosecuted before the reluctant conclusion is reached that, despite the fact that prosecution is not possible, nevertheless the person must be subject to one or other of the restraints in Clause 1.
We believe that it is crucial that the Director of Public Prosecutions is brought in at the beginning, and that only when the director certifies that a prosecution is not possible can the control order procedure kick in.
There might be two reasons why the Director of Public Prosecutions reaches that conclusion. The first is when the alleged danger is not capable of falling within any definition of any crime on the statute book. The second is when, as the noble Viscount, Lord Bledisloe, said, it would be counter-productive to the national interest to reveal to the prospective subject of the control order either the source of the intelligence or the manner in which it had been garnered. In those circumstances, one must then reluctantly move to the control order procedure.
I am always extremely nervous about disagreeing with my noble friend Lord Carlisle of Bucklow and, perhaps even more so, with the noble Earl, Lord Onslow. Nevertheless, on this occasion the Opposition reached the conclusion that the balance of probabilities test is more appropriate than the beyond reasonable doubt test.
I can truncate my submissions by simply asking the Committee to recall the speech that has just been made by the noble Viscount, Lord Bledisloe. It is precisely for those reasons that it will be almost impossible to impose a control order if the judge is required to find that the case is established beyond reasonable doubt.
As the noble and learned Lord the Lord Chancellor said last Thursday, control orders are all about prevention. They prevent anticipated adverse action. In those circumstances the authorities are always in the
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business of trying to assess risk. The people involved will already have been under surveillance for a long time, and there will come a point when imminent danger is perceived. At that moment the state will intervene.
The balance of probabilities test is a much more appropriate way to assess risk than a test of beyond reasonable doubt. I thought long and hard before reaching that conclusion. I do not like that conclusion, but if it is impossible to prosecute somebody who is about to do something very dangerous, we have to accept that the balance of probabilities test is the more appropriate.
I turn to the subject of my Amendment No. 52, which I shall not move in favour of the Liberal Democrat amendments which deal with the same matter. The Government do not have a case for asserting that non-derogating orders ought to be dealt with by judicial review, whereas derogating orders should be dealt with by a merits test. Both sets of orders ought to have the same test, and the judge should be entitled to go beyond the principles of judicial review, and look at the facts on which the Government base their allegation that somebody should be restrained.
I have another reason for saying that. How can the authorities know at the time they first seek an order whether it will contravene Article 5 of the convention? There is a range of possibilities in Clause 1(3). We do not know what combination of those forms of restraint the Government will go for, and the Government do not know what conclusion the judge will reach about the relationship with Article 5. Therefore, it is common sense that the procedure should be the same. To decide otherwise would not only be an inappropriate way of confronting the Article 5 issue, but would waste an enormous amount of everybody's time.
Lord Campbell of Alloway: I agree with my noble friend. I shall be brief.
We are dealing with intelligaence, much of which comes from abroad by telephone and other means. When dealing with a mass of intelligence it is unlikely that you can be certain beyond all reasonable doubt whether there is a reason to make a prevention order.
Therefore, I, too, with regret, have to accept the logic of my noble friend Lord Kingsland. I think he is right. I do not see how the measure will work in practice if it is otherwise.
Lord Goodhart: This is a large and extremely important group, which contains some very important amendments in our names, so it is necessary for me to speak to them now.
Our amendments in the group are Amendments Nos. 56 to 62, 73, 81 to 90 and 113 to 115. Except for Amendment No. 73, which deals with a minor point, all are amendments to government Amendments Nos. 55, 80 and 112. We hope to amend those government amendments, which we would then support, as amended by us.

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The amendments have four purposes. The first, and perhaps the most important, is to ensure that all control orders are made by judges and not by the Home Secretary. The lead amendment on that is Amendment No. 56. That issue was originally raised in the debate on Thursday but not voted on then because we decided to concentrate votes today and tomorrow. If we succeed today, we shall have to sort out government Amendment No. 1 on Report. We had a full debate on the principle behind this issue on Thursday.
The Bill imposes serious restrictions on liberty which may amount to the actual deprivation of liberty in some cases. It is an essential principle that the Government make the laws about the restriction or deprivation of liberty but it is the courts that apply those laws to individual cases, unless there is a crisis so extreme that the Civil Contingencies Act has to be invoked. The Government have accepted the principle that the decision should he taken in individual cases by judges, not the Home Secretary, for derogating control orders, but not for non-derogating control orders.
We see no logical distinction between the two kinds of order for this purpose. The Government offer only judicial review for the non-derogating control orders. That is inadequate because the court is not making the order; the court can quash the order only if the procedure is defective or if the Home Secretary's decision is unreasonable. Indeed, judicial review would probably not meet the test of a fair trial under Article 6 of the European Convention on Human Rights which, we believe, will apply to control orders. That was a brief coverage, but in view of the full debate that we had on Thursday I propose to add nothing further.
3.30 p.m.
The second purpose of the amendments is to have a single procedure for all control orders. The lead amendment on that is Amendment No. 81. The Government's new clause, introduced by Amendment No. 80, introduces a new procedure, which we regard as broadly satisfactory, that applies only to the making of derogating control orders. We want to extend the new clause to non-derogating control orders as well.
Amendments Nos. 82 to 85 and 88 to 90 are consequential on that. They are not strictly consequential on the decision that all control orders should be made by a judge, because it would still be possible to have two different procedures, but pretty close to it. If all control orders are to be made by a judge, it is surely right that the same procedures should be followed for both derogating and non-derogating control orders. In particular, there must be an immediate preliminary hearing, as provided for by the new clause, with a temporary order made by a judge, followed by a full hearing and confirmation, or modification, or revocation, of the temporary order as may be appropriate. That is an essential supplement to the decision that all orders should be made by judges.
The third purpose of these amendments, and the one that I have found the most difficult of all, is to raise the standard of proof to the balance of probabilities.
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The lead amendment on that is Amendment No. 58. I cannot see how anything less than the standard of balance of probabilities could justify the making of a control order. If someone, on the balance of probabilities, is involved in terrorist activities, it is reasonable to allow the courts to impose proportionate restrictions, falling short, at any rate, of deprivation of liberty.
As used in the Bill, "reasonable grounds for suspicion" is a weaker test than that of balance of probabilities. It seems plain that we cannot impose a control order on someone who may possibly be involved in terrorist activities but more likely than not is not involved in such activities. That would result in restrictions on the liberty of innocent people, and that is surely the quickest way to alienate the communities from which those people come. We should therefore have the standard of balance of probabilities as the minimum requirement before any control order can be made, not just derogating control orders.
We have very seriously considered the question whether there ought to be a higher standard, at any rate, for derogating control orders, and whether that standard should be basically equivalent to the criminal standard. If we had had more time to debate the matter, I would very much have wished to put it forward for debate; indeed, there is an amendment tabled in our name that would achieve that result. But one must look at where we are now. The Government have put us into a situation where we must move very quickly indeed. We recognise that there are arguments—those, for instance, put by the noble Viscount, Lord Bledisloe—for saying that the balance of probabilities should apply throughout.
The noble Lord, Lord Kingsland, has made it clear that the Conservative Front Bench does not support a proposal for a higher standard of proof on derogating orders or a standard of proof higher than that of the balance of probabilities. That being so—and I regret that it is the case—I believe that the appropriate course for us to take is not, on this occasion, to press for a higher standard than the balance of probabilities. I regret it, and I am sure that it will cause regret to many members of my own party, but the situation in which we have been placed by the Government—the extreme shortage of time—makes it inappropriate to press amendments on which it is unlikely that we will succeed. I hope that we will in due course have a further debate on a successor to this Bill, following a sunset clause, in which this issue can be redebated.
The fourth and final purpose of our amendments is to make it a requirement on the face of the Bill that no control order can be made where there is a realistic prospect of a successful prosecution. The arguments on that point were put very firmly by the noble Lord, Lord Kingsland, and I do not intend to add to them. It is plain that control orders should be orders of last resort and not of first resort. There are other very important issues in the Bill, which appear later in it and not in this group, such as due process, rule-making, and reviews and sunset clauses. Those will he reached in due course. Al the issues in this group were debated to a significant extent on Thursday. I hope that we will

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be able to speak and vote on those issues relatively quickly and move on to the other important issues later in the Bill.
Lord Judd: I do not want to be tedious on this matter. However, I hope that the noble Lord will forgive me for saying that what he has just said could be interpreted—it would be very ungenerous, I am sure—as possible equivocation. Could he make it absolutely, categorically clear that, speaking from the Liberal Democrat Front Bench, he believes that "beyond reasonable doubt" would be the appropriate terminology, and that it is simply because of time pressures and expediency that he is settling for the alternative?
Lord Goodhart: As our amendments make clear, we believe that, in the circumstances that we now face, the balance of probabilities is the appropriate standard of proof for non-derogating control orders. We would have proposed and supported the higher standard of proof—in effect, the criminal standard of proof—for orders that amount, not to a restriction, but to a deprivation of liberty under Article 5. For the reasons that I have put forward, we do not intend to move such an amendment now, but my belief and that of my party is that that would be the appropriate standard of proof. If we get a chance to debate the Bill again, we will debate that issue separately and, no doubt, move to a separate vote.
Lord Phillips of Sudbury: I support my noble friend and wish to make a single point. On the role of the court, under Amendment No. 56, which would replace that of the Home Secretary, I believe that the intensity of pressure on a Home Secretary in exercising the very wide powers under Clause 1, is almost unreasonable for him to have to bear unaided. I think that the public will take the view that the wider the powers given to the Home Secretary under Clause 1 the more he would be expected to exercise them in a way that relieved the public of risk from terrorist activities. That may be unfair but it is a reasonable supposition. Surely, that in turn will put the Home Secretary of the day under enormous strain to be cautious in exercising those powers—cautious, that is, in exercising them rather than in refraining from exercising them. He or she will say, "I have been given by Parliament these unprecedented, enormously wide powers, in the expectation that I will use them to prevent a terrorist attack". If, therefore, there was such an attack, he or she may well come under an unfair, yet very intense, public outrage that those powers had not been used.
To give the judges the responsibility of exercising those powers under the non-derogating control orders is not only to give more objectivity to the process—as, plainly, it will do—but also to lend a degree of protection to the Home Secretary of the day in relation to this extraordinary measure. For that reason alone, there must be the best sense in having the court replace the Home Secretary in the exercise of non-derogating control orders.
Lord Clinton-Davis: I have great sympathy with the point which the noble Lord has just made. As the
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Committee will know, I have expressed intense reservations before about this Bill. I speak as one who cares about civil liberties issues.
I beg my noble friends to take into account the report on the Bill which has just been issued by the Joint Committee on Human Rights. In every material particular, the committee has concluded that we ought to be very careful indeed about abandoning the principles which we cherish regarding human rights. The onus of proof weighs very heavily on my noble and learned friend in concluding that we ought to interfere with that provision in any way. I sympathise with those who express the view that there ought to be a provision that abandons, in all material particulars, the standard of proof which we require in criminal cases. I do so with some hesitation, but—for the reasons already adduced—we have no alternative to that conclusion.
It is not my natural bent to differ with my noble friends. I do so now only because I feel very strongly about the provisions we are considering. We have another occasion—tomorrow, and, I think, on Wednesday—on which to come to a different conclusion. I plead with my noble and learned friend to do precisely that. As I have said, I can see no difference between derogatory orders—I am sorry; I meant to say derogating orders—and non-derogating orders. I cannot see where common sense implies a difference between the two. My noble and learned friend will have to persuade me and many others that the course that he is apparently approving should be favoured by this House. I do not think that he will succeed.
3.45 p.m.
Lord Waddington: There are the strongest reasons for the role of the judge being the same in the case of non-derogating control orders as in the case of derogating control orders. I touched on this matter in an intervention last Thursday. I mention it again because the Committee is owed a fuller explanation of the objections to the point that I made.
Looking at the list in Clause 1(3), I submit that it is impossible to say with anything like complete certainty which orders or combination of orders will he found by the courts to involve an infringement of Article 5. If it had been possible to make that distinction with any certainty, I suspect that Clause 1(3) would have been drafted in an entirely different manner. One would have found a list in Clause 1 of the powers which would involve derogating control orders, while the exercise of other powers would involve only non-derogating control orders. It is wholly unrealistic, and storing up trouble for the Government, to say that the judges should have one role in the case of derogating control orders, but an entirely different role in the case of non-derogating control orders.
Lord Monson: As a non-lawyer, perhaps I may ask the noble Lord, Lord Goodhart, whether it is not the case that, under recent legislation, if the police have reasonable grounds to believe that an individual may be planning to get involved in football-related disorder, that individual may have his passport removed, albeit on a

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temporary basis, and be ordered to report to the police at specified times. There does not appear to be any need for proof that there is a balance of probabilities that the individual may get involved in football-related violence.
Baroness Kennedy of The Shaws: Your Lordships know my position on the Bill. I think that it is wholly misconceived. I would not want to see orders being made on anything less than the criminal burden of proof. However, I shall support the amendments that have been tabled by the opposition parties, simply because they have to be better than the awfulness in the Bill. I would therefore urge Members of the Committee who are concerned about liberty to take the same course. When my noble and learned friend Lord Clinton-Davis—he is a learned friend, but I meant to say noble friend—accidentally referred to these as "derogatory" powers, he was perhaps using the right word.
As we come to a whole series of votes on such important issues, I should like to remind the House of a quote from Martin Luther King which I am sure is familiar to many on these Benches. He said:
"On some positions, cowardice asks the question 'Is it safe?'. Expediency asks the question: 'Is it politic?'. And Vanity asks the question: 'Is it popular?'. But conscience asks the question 'Is it right?'. And there comes a time when one must take a position that is neither safe, nor politic, nor popular. But one must take it because it is right".
That is what the Committee is being asked to do today. I hope that we will remember it as we are asked to go to the Lobbies.
Lord Elton: I rise to remind noble Lords that the principal amendment is Amendment No. 56, which substitutes a court for the Secretary of State. I also remind noble Lords that it is not just the current Secretary of State, but all the Secretaries of State down the perspective of years for the duration of the Bill, if we do not add a sunset clause. With closer and closer co-operation between the police and Government, the idea of a politician being able to put people that they do not like in prison reminds one of the motto of the National Lottery: "It could be you".
Lord Plant of Highfield: Like many other noble Lords I had a chance to speak on Thursday, so I shall be brief. However, since I am going to support the opposition amendment before us, I want to say a few words about my position. I am not opposed to control orders, but they have to be made as compliant as possible with our human rights legislation and with common law ideas of natural justice. These amendments go some way towards achieving that.
It is perfectly legitimate to restrict liberty for the sake of liberty, as the American philosopher John Rawls argued, or as Isaiah Berlin put it more poetically: freedom for the pike is death for the minnow. Sometimes we have to restrict liberty for the sake of liberty, but we should do so in a principled way that is consistent, so far as it possibly can be, with our existing human rights legislation.
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Given that, the decision being made by a judge on an application from the Home Secretary is the right way around. I also agree with the argument put by the noble Lord, Lord Kingsland, about the Director of Public Prosecutions. I am very pleased that the Home Secretary has committed himself to the view set out in his evidence to the Joint Committee on Human Rights that,
"prosecution followed by conviction is far and away by a long way the best … way of achieving what we want to do".
However, once this Bill becomes an Act and is institutionalised, there is a danger of non-prosecution at a lower standard of proof becoming the default position. That would be a very had thing. So I am in favour of the argument about the role of the DPP.
On the burden of proof, as I explained to the noble Lord, Lord Carlisle of Bucklow, in the Cloakroom the other evening, I am as anxious about the standard of proof for derogation orders as for non-derogation ones because the test of "reasonable suspicion" seems far too low. Moreover, the point made by the right reverend Prelate that a much lower standard of proof in the form of reasonable suspicion might actually encourage the default position is one that I had not thought of.
For those reasons, I am keen on the idea of raising the standard of proof for non-derogating orders to the balance of probability and, as other noble Lords have pointed out, I see both types of order as similar in their effect on liberty. After all, my liberty is restricted when I am required to do what I would not otherwise do or required not to do what I otherwise would do. Non-derogating orders restrict my liberty in those respects in just the same way as derogating orders. So if the two kinds of orders are symmetrical, there ought to be the same standard of proof for both.
Although I am not unsympathetic to the view that the standard should be higher than the criminal standard, I thought that the point made by the noble Viscount, Lord Bledisloe, was very telling. Rather regretfully, therefore, I will support the idea of the balance of probabilities, but for both types of order.
Lord Lester of Herne Hill: Since I was not able to be present for the Second Reading debate, I should like to make one or two brief points. First, I am no longer a member of the Joint Committee on Human Rights and therefore I am in a good position to say how pleased the House ought to be with the speed with which the committee has been able to produce not one, but two reports under great pressure of time. I am only sorry that that pressure of time has prevented the committee dealing with all the issues. It is plain that it had to concentrate on addressing only the most important, and I agree entirely with what has been reported.
Secondly, on the standard of proof, the great advantage of a standard based on probability is that the courts have made it quite clear that that is a flexible standard and that the more serious the interference with basic rights and freedoms, the higher the standard will be within the spectrum of probability. Therefore the great advantage of the standard of probability, if it

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is adopted by the House, is that it will give the courts the necessary flexibility so that, for example, where a fairly serious control order is sought, they will no doubt require a higher standard of probability than they would for an order seeking minimal interference.
I continue to be puzzled by the Government's approach to judicial involvement. I cannot understand why, if a warrant is needed from a magistrate merely to search premises or papers—that is often a ritual, but it is an important safeguard—the Government have resisted the notion of a similar form of judicial control from the outset.
Last but not least, I have enormous respect for Sir John Stevens, the retiring Commissioner of the Metropolitan Police, but I very much regret the headline in yesterday's News of the World over an article:
"Forget human rights … kick out the fanatics".
Indeed, one or two passages in the piece surprised me, given my respect for Sir John. He suggested, for example, that the Law Lords had instructed that the Belmarsh detainees should be released immediately. That is just wrong because it was not within their remit. More importantly, however, he suggested that there is a human rights lobby that is somehow acting against the interests of the people of this country. I am sure that that is not the view of the Government.
Lord Donaldson of Lymington: I strongly support the substitution of "court" for "Secretary of State". Earlier my noble and learned friend Lord Lloyd said that the only two equivalent quia timet preventative orders he had been able to find in civil proceedings were non-molestation orders and ASBOs. While I agree with him that they are many miles away from this, they are in fact a million miles away when we note that those two types of order are imposed by the courts. It is unique in civil proceedings for a Secretary of State to be able to proceed on his own and without hearing the views of the person to be subject to these control orders. All that is left to the person is the right to appeal. That is wholly unique.
I would add one cautionary word about using the courts to make the order. It ought to be a preliminary order, a temporary one subject always to the requirement to look at the merits of the case put by the person subject to it. By all means have a preliminary ruling without that requirement, but it must be followed almost immediately by a substantive investigation by the court.
Lastly, as has just been pointed out, it is absolutely right that the civil burden of proof is immensely flexible. The greater the seriousness of the allegation, and of course of the possible consequences, the greater care the court will take before it is satisfied on the balance of probabilities. Other considerations will enter into the balance.
Subject to those caveats, I am in complete support of the position.
Lord Forsyth of Drumlean: I rise to make one brief point. I do not know if the Lord Chancellor had an opportunity to watch the BBC "Question Time"
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programme last Thursday night. I ask that because the audience—admittedly a BBC audience—expressed pretty much universal astonishment at the provisions in this Bill. There is no time to go over all the arguments, but I wish to put one point to him in respect of the arguments that have now been put all around the House for treating derogating and non-derogating orders in the same way and subjecting them to the same tests and procedures.
No doubt the Government will get their Bill in the end, but laws need to carry consent. Just listening to the arguments being put forward in this House by experienced and knowledgeable lawyers, or by former Home Secretaries such as my noble friend Lord Waddington, or by noble Lords such as myself who cannot understand the distinction if you have a combination of non-derogating restrictions, how do we expect this to carry the consent of the country? If someone is told that they cannot go to their place of work, that they cannot go on holiday and that they cannot see their friends, and they are told, "You do not have these rights that would apply if it were a denial of liberty because all these restrictions are not a denial of liberty", that flies in the face of common sense. It will not be understood, it will not carry consent and it will be used by the very people whom Ministers are trying to undermine to whip up support for their cause.
So I say this to the noble and learned Lord the Lord Chancellor: think about this proposal in practical terms. Consider what Rory Bremner would make of the provisions set out in Clause 3(2) and the argument that this is not a restriction on liberty, and how that would be interpreted in the country.
4 p.m.
Lord Lloyd of Berwick: Perhaps I may add just one or two sentences, in the light of an observation made by the noble Lord, Lord Phillips. He took me a bit by surprise when he said that he was supporting Amendment No. 56 because it would mean that the judge would be there "to protect", I think he said, the Secretary of State. That was the ground on which he was going to support the amendment. Exactly the opposite is true. Judges are not there to protect Secretaries of State. They are there to stand between Secretaries of State and the individuals, in case individuals happen to be innocent. That is not a ground on which we should support the amendment.
As Members of the Committee know, I am against control orders altogether. If there are to be control orders, whether made by judges or by Secretaries of State, I can see no answer to the argument that the same procedure ought to apply to both. On that I am entirely in agreement with the amendment, which is now supported on all sides.
Lord Phillips of Sudbury: Perhaps I may briefly clarify my point in response to the noble and learned Lord. I was not seeking to protect the Home Secretary,

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but to relieve the Home Secretary of a burden that is much more objectively undertaken by a judge. Forgive my inappropriate use of "protect".
Lord Ackner: I would like to make it clear that I think that the House and the country have been rushed into a wholly unsatisfactory position. I appreciate that compromise has become essential, but that compromise is the product of a wholly unnecessary, rushed approach to a significant piece of legislation. I would therefore like to voice my unhappiness. Undue emphasis on speed has brought about the obligation to compromise some of our most serious and lasting values.
Lord Judd: I declare an interest as a member of the Joint Committee on Human Rights.
In view of what has just been said, it would be proper to say that we have found ourselves in an immensely difficult situation. We, too, have felt that we are dealing with one of the most profound issues—absolutely central to our responsibilities—with which we have ever been asked to deal. We have found that the time constraints have made that task very difficult indeed. That is why we had no option in the end but to prioritise our discussion.
I should like to make three points. First, we would all agree, whatever our position, that there is not a perfect solution. We are going for the best possible available solution. I respect the argument, and certainly the quarters from which it comes, that the judge should not be put in the position of taking over political responsibility. However, when I look at statements by the Government, not least by the Prime Minister and Home Secretary, I think that they are to be commended for their candour. Both, it seems, have been at pains to say that they would not want to be accused by the public of not having done everything possible to protect the public.
That seems a very responsible political position, but that is precisely why they are not in the best position to judge what should he done with someone who has been apprehended and arrested. That is exactly why—because they have that responsibility. Arguably, that responsibility undermines their objectivity in this situation.
My second point is related to what the noble Lord, Lord Forsyth, said. I do not live my life in legal circles. I have been involved in community work. I am accustomed to community dynamics. What has always seemed crucial to me in the credibility of the administration of the law in our country, is that we take seriously the issue not only of justice being done, but of it being seen to be done. The difficulty is that in the present security situation it is not possible for it to be transparent all the time. That is why we should do everything possible, push as far as we responsibly can, to demonstrate that the proper processes have been followed and that cases have been carefully and objectively considered.
My last point is simply that I happen to believe that we are facing not only one of the greatest human rights issues with which we have ever been faced, but also one
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of the most dangerous situations we have ever faced. I believe that history will never forgive us, in the pressure and acute nature of the danger we face, for doing things that prove counter-productive, historically, in winning the battle for hearts and minds.
We shall never be able to eliminate the possibility of terrorism. The best way, the only effective way, in which we shall be able to contain those dangers is to win the battle for hearts and minds. That is why objectivity, due legal processes and the rest are so important.
Lord Desai: As a non-lawyer, I have been following this debate carefully. On Thursday I was persuaded that it was not good enough for a judge to replace the Secretary of State in giving orders. The noble and learned Lord, Lord Ackner, and many others said that judges were unhappy at being made to do the job of the Secretary of State. Then I thought that the noble and learned Lord, Lord Donaldson, had proposed a third way. I am now lost about what happened to the third way. The third way was a good way.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): This is an incredibly important debate. It follows on from the debate that we had on Thursday. The starting point of the debate and the first issue is whether noble Lords believe that something beyond surveillance and short of the criminal process is required. It is the view of the security services that it is, it is the view of the police that it is, it is the view of the committee of the noble Lord, Lord Newton, that it is. We think it is necessary in the face of the new threat that terrorism poses to this country.
I understand that the position of the Conservative Party and of the Liberal Democrat Party is that they too support the concept of something that is not a criminal process, some sort of court order that restricts the movement or activity of the subject and assists the fight against terrorism. We take the view strongly that that is required, but we do not take the view that that should be done by throwing civil liberties out the window. We think that it has to be done by balancing civil liberties against those requirements.
That is the starting point. If you accept that starting point, as the three Front Benches do, as the law-enforcement agencies do, as the independent bodies that have looked at it do, then I believe that the task for this House and another place is to seek to craft a solution that balances civil liberties against the need to protect the nation in a way, to pick up the words of the noble Lord, Lord Forsyth, that has common consent. That, I believe, is the work that we should be engaged upon.
This group of amendments raises four issues. First, should the court be involved first, before an order becomes effective, in relation to a non-derogating order? That is an order that does not deprive somebody of his liberty.

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We say that is neither necessary nor appropriate for the following reasons. The judgment about whether security will be assisted by a non-derogating order is made by the Home Secretary in the first place; and then, in order to protect civil liberties, there must be proper judicial involvement. The Home Secretary will assess the risk to the nation and ask himself whether the intrusion on an individual's rights—and this is not about deprivation of liberty but about the individual's rights, for example, to associate with someone else or to be in contact with other people—is justified by that risk.
The Home Secretary makes the order in the first place and the arrangements then involve the matter coming before the court as quickly as possible. We need to consider whether the Bill should be amended to ensure that the matter comes before the court as quickly as possible. In applying a judicial review test, the court considers, on the basis of the evidence put before it, whether the risk that the Home Secretary has identified is such that it justifies the intrusion on to that individual's rights. In effect, it is asking whether the intrusion is justified by the risk identified by the Home Secretary.
That is a very sensible judicial way of looking at matters and is a perfectly possible task. It also makes absolutely clear the Home Secretary's role and the judge's role. There is clarity and protection. That is why we submit that, in relation to non-derogating orders, the Home Secretary should make the order in the first place and then, within a very short time indeed, the matter should come before the court. In relation to non-derogating orders, it should be clear that the Home Secretary makes the judgment, but subject to judicial control.
Lord Forsyth of Drumlean: The point has been made many times—perhaps I am being thick—but I do not understand, and the Lord Chancellor has not really explained, how it is, for example, that, as he said at an earlier stage in the debate on this legislation, a curfew restriction would not be a deprivation of liberty.
If you are an ordinary mortal and not a lawyer, and you are told that you have to stay in a certain place and are not allowed to leave it, you think that is a deprivation of liberty. I understand that the Lord Chancellor is making a distinction between the provisions in the European convention, but ordinary mortals do not understand the distinction. It seems to be a deprivation of liberty if you are told that you cannot go to your place of work, that you cannot have certain people in your home and that you have to stay in your home at a certain time. People do not make a distinction between that and house arrest.
Does the Lord Chancellor see the point? Can he help me to understand why he says there is clarity in respect of derogation and non-derogation orders? For me, it is as clear as mud.
Lord Falconer of Thoroton: We draw the line between the two because the European Convention on Human
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Rights draws the line between the two. There needs to be a lawful basis—one selected not by the Government but by an accepted body of jurisprudence—as to why the distinction is drawn. It would not be enough for us to say, "We draw the line here but not there". Let us draw the line based on the European Convention on Human Rights, to which this country has signed up.
Of course it is possible to say that the connection between the lower end of the derogating order and the upper end of the non-derogating order might be close, but in practice there will be a very significant difference.
Baroness Hayman: I thank my noble and learned friend for giving way. Is it not true that it is really difficult to find that distinction when my noble and learned friend has accepted that a combination of non-derogating orders might, even within the technical framework of the European convention, amount together to a deprivation of liberty? I recognise what he says about needing a legal basis, but we are in the process of creating that legal basis in UK law.
Lord Falconer of Thoroton: If you said, "You cannot go out and see this person and you cannot go out and see that person; you have got to be in your house from six in the evening until midday the next morning", any sensible person would say that constitutes a deprivation of liberty even though it is taken from the Clause 1(3)(c) list identified by the noble Lord, Lord Forsyth. There will not be a great deal of difficulty in identifying what is or is not a deprivation of liberty.
The non-derogating orders intend to focus on matters such as reporting to the police a particular number of times a week and not seeing individual people. It is very important that we take an approach based in law rather than distinctions drawn simply for the purpose of the Bill.
4.15 p.m.
Lord Carlisle of Bucklow: To my mind, the Lord Chancellor has not answered the question raised by the noble Lord, Lord Forsyth. The noble and learned Lord said that we have to make a distinction because the distinction is clear in the convention itself. But Article 5 states that everyone has the right to liberty. On what basis is the Lord Chancellor saying that a curfew, or a refusal to allow someone to work somewhere or to go to different people's houses, is not a restriction of liberty?
Lord Falconer of Thoroton: Under the jurisprudence of the European Convention on Human Rights it is not a deprivation of liberty. It might well constitute infringements of Articles 7 to 11 but, as I said during the debate on Thursday, that matter does not require a derogation and can be dealt with by the courts. We see as fundamentally different the deprivation of liberty that derogating orders could involve.
The Earl of Onslow: When we passed the Terrorism Bill, the Lord Chancellor's colleagues were making

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exactly the same noises about Part 4, saying that it was not against the Human Rights Act. Almost as night follows day, someone will go to the court and prove the Lord Chancellor wrong. What will happen then? Everyone else will have an enormous amount of pleasure in saying, "I told him so".
Lord Falconer of Thoroton: The Bill provides that you can make a derogating order only if you have derogated from the convention. We are not derogating at the moment. If any order constitutes a deprivation of liberty, it will be struck down by the courts. So we are providing judicial protection against any deprivation of liberty.
I think the noble Lord, Lord Lester, should intervene first; then the noble Lord, Lord Brittan, and then my noble friend Lord Clinton-Davis.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Lord Chancellor. I hope he will bear with me and my question because I do not understand the way in which he is reading the Bill on the key issue of judicial control.
Clause 1 (1) states that the Home Secretary—not a judge—will make the initial decision and that he will need to have reasonable grounds and consider it to be necessary. Under Clause 7, which deals with appeals, the role of the court is not in deciding whether the order was necessary but, under Clause 7(4), in whether the decision was flawed. Clause 7(7) states that, in doing so, the court has to apply the principles applied in a judicial review.
My understanding—I am interested to know whether the Lord Chancellor agrees with me—is that if you apply judicial review proceedings, the decision is not that of the court, as it would be with a "Spycatcher" injunction to restrain the distribution of government information in breach of a duty of loyalty by a disloyal agent, but of the Home Secretary. The power of what is called an "appeal" court is to be exercised, as I read it, only to see whether the Home Secretary's decision was flawed on the basis of legality, rationality and procedural propriety. That is not the same as the independent principle of proportionality, which the courts have not yet said is an independent principle.
Therefore, when the Lord Chancellor says, as he has done today and previously, that the court will decide whether the order was necessary, with respect, that is not right. The court will decide whether the Home Secretary's decision was flawed on the basis of judicial review principles. There is all the difference in the world between that and a police officer who believes there are reasonable grounds for suspicion and applies for a search warrant, or a government who, through the Attorney-General, apply for a "Spycatcher" injunction. In such cases, they will have reasonable grounds and go to a judge, and the judge will decide whether it is necessary. Am I right or wrong about that?
Lord Falconer of Thoroton: I understand the question. The noble Lord is absolutely right that I said on Thursday in considering the "judicial review" basis that we propose in the Bill that it is our intention that the
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court should be able to ask and answer whether there is a legitimate aim under the convention pursuant to which the non-derogating order is made and whether the obligations in the order are proportionate. I believe that we have got there already, but if we have not we will make amendments to achieve that end.
Lord Brittan of Spennithorne: I hope that the noble and learned Lord the Lord Chancellor will accept that there is no greater supporter of the European convention than I; nor any greater admirer of the jurisprudence deriving from it. I hope that he will also accept that underlying my noble friend Lord Forsyth's argument is the belief that it is fundamentally misconceived to found a distinction on the question of compliance or otherwise with the convention between cases where we have to go under the more onerous—if we may call it that—procedure and cases where we go under the simpler procedure subject to judicial review.
If we are to have the public's consent, what matters between one procedure and the other is the gravity of the matter and not whether it is a breach of the convention. In the cases where the derogating orders apply we are talking about the deprivation of liberty; but on any view the kind of orders that can be made under the non-derogating category involve so substantial a curtailment of liberty that to the ordinary public there seems to be little difference between one and the other.
If that is the case, there is no reason why there should be a difference in procedure in applying the two orders and why what seems in ordinary legal principles—nothing to do with the convention—the more normal procedure of going to a court, presenting the evidence to the extent that it is possible to present it and asking for a view should not apply both to the deprivation of liberty and the substantial curtailment of liberty.
Lord Falconer of Thoroton: I entirely accept that there is no wanner admirer of the jurisprudence of the ECHR than the noble Lord, Lord Brittan. I also agree entirely with what he says about the need for an understandable basis for which one can draw a distinction that can be popularly understood.
Any Article 5 infringing order will deprive someone of his liberty. It will mean that he is in practice restricted to his house for 24 hours or something akin to that. I believe that the public would be able to identify that the mainstream order—a non-derogating order—involves, for example, reporting to the police and not communicating with particular named individuals but does not involve deprivation of a person's liberty.
The noble Lord gave the example of a curfew. If he will think back to his days in the magistrates' court—which I am sure were a long time ago—he will remember that bail was often obtained by agreeing to a curfew. Did the subject of such an order think that he was being deprived of his liberty? I think that he was regarded as not being placed inside.
Lord Clinton-Davis: If eventually the Committee comes to the conclusion that there is no difference between derogating and non-derogating orders, will the

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Government still insist on occupying the stance recommended by my noble and learned friend? Will they go to the wall on the issue?
Lord Falconer of Thoroton: I have put my arguments in relation to the distinction between derogating and non-derogating orders. For reasons that I am almost completely unable to understand I find no support for my arguments in the Committee. It is for the Committee to decide whether it agrees or disagrees with my arguments.
Lord Neill of Bladen: On Second Reading I gave the example of an order that deprived someone of their right to work: he had only one place where he could work; he was ordered not to go to work; and his passport was removed by another part of the order. In ordinary parlance the ordinary man would say that he had been deprived of his liberty substantially: he cannot carry out his work and he is really a captive.
What is the point in running the risk of starting that—as we would—by a procedure where the Minister makes an order instead of saying that all orders should be made by a judge? We would thereby eliminate the risk of making orders that turn out to be derogating orders. It does not make any sense.
Lord Falconer of Thoroton: I am interested in the noble Lord's example. There are people who come to this country legitimately who are legitimately prevented from working. I wonder whether they would regard themselves—as the noble Lord says they would in common parlance—as deprived of their liberty. I do not think that they would. Other rights under Articles 7 to 11 of the European Convention on Human Rights would be infringed, but under our proposals the court is able to weigh up the risk that they pose against intrusion in relation to their rights.
Lord Donaldson of Lymington: May I take the noble and learned Lord the Lord Chancellor back to the point of judicial control by means of judicial review? I am not boasting, but I have probably presided over a divisional court for longer than anyone in the Committee, because I did it for nine months. It was concerned mostly not with Home Secretaries or central government, but with local government: with problems such as whether proper priority was being given to particular classes of people seeking housing.
It was by no means unusual for my colleagues and me in the court to conclude that we would never have done something but that it was within the scope of the local authority. That is a weak form of control.
Lord Falconer of Thoroton: There is probably no one in the Committee who has presided more often over divisional courts than the noble and learned Lord, Lord Donaldson. The question of how the ECHR is played into this is a matter for the legislation. As I made it clear on Thursday, the courts would be able to
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consider both proportionality and whether there was a legitimate aim that justified the order. They are always able to make that balance.
Lord Maclennan of Rogart: Before the noble and learned Lord the Lord Chancellor sits down, does he understand the difficulty that some of us face in following the distinction he makes between derogating and non-derogating orders? Although some of the proposed orders may not appear to affect freedoms guaranteed under Article 5 they appear to affect other freedoms protected by the convention: Article 10 on freedom of speech and Article 11 on freedom of association and the property freedoms, which would be interfered with most severely. How can that distinction seriously be drawn?
Lord Falconer of Thoroton: I accept completely that they could engage the other articles and infringe prima facie those other articles; but those are qualified rights. No derogation is required to engage or infringe them so long as there is a legitimate aim pursuant to which they are infringed and proportionate steps are taken.
What am saying is that the courts have to judge that, not this House. As a result, setting up a judicial arrangement whereby the court can consider the matter provides the protection that the citizen requires.
4.30 p.m.
Lord Maclennan of Rogart: I am most grateful to the noble and learned Lord the Lord Chancellor for attempting to answer my difficulties. However, is not Article 5 also a qualified right, so there is no distinction to be drawn in that way?
On a wider question on the whole approach, how will it be possible for the courts to he provided with the means to make the judgment that the noble and learned Lord proposes that they should be permitted to make? As the courts are to he deprived of the evidence that might be advanced by those against whom the orders are directed—if they themselves know the substance of the evidence that they have to rebut—is it not more likely that they will be faced with the task of rubber stamping?
Lord Falconer of Thoroton: No, the courts would have access to all the evidence. The issue in such cases is not whether the court has access to the evidence, but whether the citizen who makes the application sees all the material. That is the reason for the special advocate procedure. So the court would have sufficient material to judge whether there was a legitimate aim against which the order had been made, whether the steps were proportionate and what was the level of risk.
Baroness Kennedy of The Shaws: Has the noble and learned Lord the Lord Chancellor—a Labour Lord Chancellor—noticed that among the critics of this Bill are a former Home Secretary on the Opposition Benches and members of the judiciary, such as the noble and learned Lord, Lord Donaldson, none of whom could be considered lily-livered liberals? Has he

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noticed that they are critics of what he is proposing to the House and that they are concerned by the illiberality of the legislation?
Lord Falconer of Thoroton: We have to do what we think is right. We think that it is right to seek to strike a balance between protecting people from terrorism and, at the same time, preserving people's civil liberties. I have noticed the widespread expression of views. As someone said to me the other day, "It is a pretty pass when the headline in the Morning Star reads 'Back the Law Lords'". That is an odd grouping.
Baroness Ludford: I was not present at Second Reading as I was fulfilling other duties. However, have I understood correctly that the noble and learned Lord the Lord Chancellor is to table another amendment to institute what he said about the scope of appeal and bringing in proportionality? As I understand it, there is only the judicial review standard on the face of the Bill. Secondly, the importance of what is happening here this week will echo around Europe. We are talking about the European Convention on Human Rights and what we enact into UK law will be watched very closely in the rest of Europe.
Lord Falconer of Thoroton: I believe that that is entirely right. On the point made by the noble Lord, Lord Lester, I believe that that is already in the Bill. However, I want to make it clear that, in relation to a non-derogating order, the court can consider that proportionality is a legitimate aim in relation to the convention, as I said on Thursday. If that is not in the Bill, the Bill will be amended to achieve that aim.
I turn to the involvement of the DPP, which we discussed on Thursday. The position of the Government is that a control order should be sought only where a prosecution is not possible. We submit that it is not appropriate to put the DPP on the face of the Bill, as proposed, but we give a clear undertaking that, before any application is sought, the Home Secretary will have satisfied himself that prosecution is not a possible alternative.
Lord Elton: The noble and learned Lord can take that position only for the present Government. I return to my earlier point: we are legislating for the future, unless we have a sunset clause.
Lord Falconer of Thoroton: I respectfully submit that that position is one that any sensible government would take in relation to these orders. When considering whether a matter is proportionate, the court would be able to say that it would not be proportionate if prosecution were possible. So in practice the court would have to see material and ask, "Why don't you prosecute?", and if there were no satisfactory answer, it would not be a proportionate order.
I turn to the most important issue, which is burden of proof. Control orders, as the noble Lord, Lord Kingsland, said, are preventive orders. They are designed to prevent atrocities happening in future. They are not designed to punish a person for past
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events. They require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures, from a potentially wide range, are necessary and appropriate to meet those risks. The assessment must be carried out on the basis of a wide range of complex intelligence material and would involve inferences and evaluations being made in relation to matters affecting national security.
For those reasons it is not an area where the Secretary of State or the court will deal with proof of issues of fact. Essentially it is an exercise in risk assessment and evaluation of intelligence material.
The Earl of Onslow: If the Home Secretary thinks that Mohammed al-Smith wants to do, or is planning to do, something, and he has talked to others about doing something nasty, can the noble and learned Lord explain why that is not conspiracy? If it is only one man dreaming, the Home Secretary cannot possibly get inside his mind. If there is evidence that someone wants to do something very nasty, I do not understand how he has not, by the very nature of the situation, committed a criminal offence or a common law offence of conspiracy.
Lord Falconer of Thoroton: There are two problems with that. On the previous occasion I gave the following example: if a foreign intelligence organisation has arrested someone, interrogated him and acquired information, that information will almost certainly not be available to an English court, but it might be regarded by sensible people as reliable. Secondly, there may be information that does not constitute the high standard of proof that is required in a criminal court, but, quite legitimately, it may give rise to a particular risk. Thirdly, someone could be preparing for a terrorist act which does not constitute a criminal offence at the moment but, legitimately, it gives rise to a possible risk. Those are three areas where control orders could provide practical assistance but where prosecution would not be possible.
On the burden of proof, I shall deal first with non-derogating orders as opposed to derogating orders. In relation to non-derogating orders, having reasonable grounds to suspect that an individual is or has been involved in terrorism-related activities is just one part of the overall assessment of the risk posed by the individual and the measures necessary to meet that risk. That is the first part of a two-pronged test in relation to a non-derogating order.
The courts have recognised in very similar contexts that that is an appropriate test to apply. In the case of Rehman, which concerned a deportation order on the ground that it would be conducive to the public good in the interests of national security, the noble and learned Lord, Lord Hope, said:
"the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant's conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to

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justify the appellant's deportation cannot he answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee".
The noble and learned Lord, Lord Hope, is saying that conventional burdens of proof issues are not appropriate in considering this matter. The reasonable suspicion test is the appropriate one.
I shall give way to the noble Lord, Lord Lester of Herne Hill, in two minutes, but perhaps I can complete my line of argument.
In effect, Lord Justice Laws, in a subsequent case in the Court of Appeal, thoroughly endorsed the Rehman approach and said what, in effect, I am saying, which is that this is about evaluating risk and identifying preventive orders that are consistent with people's human rights, but provide appropriate protection for the rest of the public in relation to it. In both those cases, the judges said, rejecting arguments made by counsel, that there should be some conventional standard of proof, and that reasonable suspicion was an appropriate level of proof. We accept that reasoning in relation to non-derogating orders. However, because a derogating order deprives someone of their liberty, we impose a higher standard—namely, balance of probabilities—which we recognise would make the granting of orders in those circumstances very difficult indeed. As people are deprived of their liberty by derogating orders, we take a different stance on them.
Finally, I shall quote what Lord Justice Laws said about the argument that a burden of proof like balance of probabilities should be inserted. He said:
"Accordingly a requirement of proof will frustrate the policy and objects of the Act … the target of the Act's policy includes those who belong to loose, amorphous, unorganised groups … the choice is apt to strike the target. Proof would not be".
That is the distinction that has been drawn.
Noble Lords have a choice as to whether, in the light of what Lord Justice Laws has said, and having heard all the arguments, that balance of probabilities is the right course. If your Lordships conclude that it is, as Lord Justice Laws said, you will go a long way to frustrating the purpose of the control orders. We come back to where we started from. Do noble Lords think that we need something apart from the criminal process and surveillance? We believe—and we are told as much by the security services and the police—that we do.
Lord Lester of Herne Hill: I intervene because I am now hopelessly bewildered by what I have just heard. I thought the noble and learned Lord the Lord Chancellor said a little while ago that the court would effectively be in the same position as the Strasbourg court; that is, it would look at the necessity and proportionality of a restriction on a fundamental right or freedom. That is what I thought he said, and he nods.
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If that is so, will he agree with me that, because the order has an impact on a fundamental convention civil right, the burden is upon the state to justify the interference? That is standard. We know from Strasbourg that the exception must be strictly construed. The burden of proof is therefore on the Home Secretary, and the standard of proof—whether one calls it "probability" or otherwise—must provide sufficient cogent and convincing evidence to justify the interference. Quoting Sir John Laws on other matters is not central to the point here, which is that the burden is upon the Home Secretary to justify according to proportionality, and he must do so by cogent and convincing rebuttal evidence.
Lord Falconer of Thoroton: No, that is completely wrong. The test is, "What is the risk?". We are talking about—convention rights are engaged here—the level of risk for the future, which cannot be proved by conventional burdens. If the degree of risk is sufficient, the steps that can be taken can be justified. There is no difficulty in asking oneself, "Is the risk shown by the Secretary of State"—and he has to show that risk—"such that the steps he has taken are proportionate and justified'?".
Lord Brittan of Spennithorne: The noble and learned Lord the Lord Chancellor has cited judicial authorities and general arguments in favour of the proposition that, when risk is being considered, the burden of proof is an irrelevant and improper consideration. If that is so, on what grounds of principle—as opposed to political expediency. which may be convenient for us—does he then introduce the concept of the balance of probabilities in the most serious cases, where he wishes to take the most draconian measures?
Lord Falconer of Thoroton: Because they are the most serious cases, and because depriving someone of their liberty, which requires a derogation from the European convention—of which the noble Lord has said that he is second to none in his admiration—requires a special step to be taken. That is the view we take, which is why we have introduced this additional measure.
Lord Brittan of Spennithorne: It is not just a question of a "special step". A moment ago, the noble and learned Lord was arguing that the whole question of risk was completely divorced from the question of the balance of probabilities. Whether or not it is a special consideration, it is an illogical step to be producing, even though it may be politically convenient. Surely the right step is to accept the argument of the balance of probabilities for both types of order.
Lord Falconer of Thoroton: No. I respectfully submit to the Committee that we must recognise that the further up the spectrum we go, the more both the judicial protections, and therefore the protections of the citizen, need to be. That is the argument why we must insert a very high hurdle before we deprive someone of their liberty, and that is entirely appropriate.

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I have dealt with the four critical points. I would only weary the Committee by going on and on. I submit, in those circumstances, that noble Lords agree to the Government's amendments that I described before, and not move their own amendments.
4.45 p.m.
The Lord Bishop of Chester: I do not wish to extend things unnecessarily, but can I press the noble and learned Lord the Lord Chancellor to say a little more about what the test of balance of probabilities actually means? He has just told us that it will be "very difficult" to get an order on the balance of probabilities. To a lay person like myself, that balance could be 51 per cent one way and 49 per cent the other, which sounds different from being "very difficult".
The noble Lord, Lord Lester of Herne Hill, picked up on something I said in my earlier contribution, saying that the civil courts were used to a flexible application of the balance of probabilities, so that if you intend to make a control order to deprive someone of their liberty, you am not that far from the criminal standard—bearing in mind the technical difficulties with that, as we heard earlier. Can my noble and learned friend confirm to us that his understanding is the same as that of the noble Lord, Lord Lester of Herne Hill?
Lord Falconer of Thoroton: Regarding the balance of probabilities, the test is defined as whether it is more likely than not that the suspect is or has been a terrorist. The courts have said in other contexts that the more serious the allegation you make against someone, the more you have to prove it is more likely than not that they are a terrorist. A very serious allegation is being made, and it is for the court to determine how they would construe it. The flexibility means that the standard of proof can go not down but, rather, goes up. If the right reverend Prelate was wondering whether, in these circumstances, the balance of probabilities is closer to "beyond reasonable doubt" than it would be in other cases. I cannot say so for certain, but that would be the trend.
Lord Forsyth of Drumlean: Before the noble and learned Lord the Lord Chancellor sits down, and while he is in the mode of helping laymen, I will just return to the point about the curfew, where someone is prevented from going out at certain times.
I do not want to repeat that point, but if the test is not to be balance of probabilities, and if that balance means that it is more likely than not, surely that cannot mean that the Home Secretary, faced with a situation where he was not certain that it was more likely than not—perhaps it was more unlikely than likely—would still be able to proceed with these serious restrictions on people's movements and ability to do their job. Someone could lose their job and their right to move freely about on the basis of a test where the Home Secretary could not hold that it was more likely than not. That seems strange to a layman.
Lord Falconer of Thoroton: It is for the Committee to decide whether it is "strange" that, if the Home
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Secretary thinks there are reasonable grounds to suspect that someone is a terrorist, preventing him associating with X or working in a particular place is necessary to protect the public from terrorism. Those are the two tests in the Bill, and that seems to be a perfectly proportionate approach to take.
Lord Carlisle of Bucklow: When I rose to my feet an hour and forty minutes ago to move a modest amendment of a few words, changing the burden of proof in one area of the Bill, I did not realise it was going to lead to such a wide-ranging debate. Much of that debate has not even referred to the burden of proof on which my amendment was based, but has gone on instead to the whole issue of whether those orders that require derogation and those that do not should nevertheless be dealt with in the same way. I had thought that that would be the effect of the first amendment in the next group, which I tabled, but as we have obviously had the debate on both of them, I will merely say on that issue that the noble and learned Lord the Lord Chancellor's explanations are wholly unimpressive.
My noble friend Lord Forsyth is right. The idea that the man in the street will look upon an order that prevents him working, or that requires a curfew to be imposed on him, as in some way not being an interference with his liberty that justifies derogation, is nonsense. The overwhelming argument has been that we should deal with all these matters in the same way judicially.
I have accepted, as I have done every time I have spoken during these debates, that there is a group of terrorist cases where one knows that people are a danger to this country but it is impossible for them to have a fair trial as the evidence and its sources cannot be disclosed without damage to the state as a whole. I was delighted to hear my noble friend Lord Kingsland say that the Opposition were proposing to stand by the principle that before any of these orders come into force, there should be some system by which the director or some other body should be satisfied, having looked at the case, that no normal trial can take place. All I was saying in the amendment was, that having been done, if the Secretary of State is satisfied that a person is or has been involved in terrorism, that is a matter on which he should have been satisfied beyond reasonable doubt rather than on the balance of probabilities. With great respect, I do not accept the argument of the noble Viscount, Lord Bledisloe, and those who have said that merely because you cannot provide a defendant with the sources of the case against him or, indeed, give him the evidence against him, it does not prevent you being able to be satisfied beyond reasonable doubt whether he is or is not involved in terrorist activity.
These issues have been debated several times. I stick to my view that the criminal standard of proof is right. I hear what others say; I hear the many views expressed by other people; and I do not propose to press the amendment to a Division at this stage, as my noble friend Lord Kingsland will be glad to know. I indicated last week that I would not do so, and I do not propose

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to. However, I propose to see what has been said during this debate, and I do not promise that we will not come back to it on Report. But for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 54 not moved.]
Clause 2 negatived.
Clause 3 [Duration and renewal of non-derogating control orders]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 55:
Page 4, line 36, at beginning insert—
(A1) The Secretary of State may make a control order against an individual if he

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

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

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

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

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

(A3) A control order made by the Secretary of State is called a non-derogating control order."
The noble Baroness said: I beg to move.
Lord Goodhart Lord Goodhart moved, as an amendment to Amendment No. 55, Amendment No. 56:
Line 2, leave out "Secretary of State" and insert "court"
The noble Lord said: This amendment has already been debated. 1 beg to move.
On Question, Whether Amendment No. 56, as an amendment to Amendment No. 55, shall be agreed to?
Their Lordships divided: Contents, 249; Not-Contents. 119.

Division No. 1

CONTENTS

Ackner, L.

Boothroyd, B.

Acton, L.

Borne, L.

Addington, L.

Bowness, L.

Ahmed, L.

Bradshaw, L.

Alderdice, L.

Bridgeman. V.

Allenby of Megiddo, V.

Bridges, L.

Ampthill, L.

Brittan of Spennithome, L.

Anelay of St Johns, B.

Broers, L.

Astor of Hever, L.

Brookeborough, V.

Avebury, L.

Brougham and Vaux, L.

Baker of Dorking, L.

Burns, L.

Barker, B.

Buscombe, B.

Beaumont of Whitley, L.

Caithness, E.

Bell, L.

Cameron of Dillington, L.

Blackwell, L.

Cameron of Lochbroom, L.

Blaker, L.

Campbell of Alloway, L.

Bonham-Carter of Yambury, B.

Carlisle of Bucklow, L.

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Chadlington, L.

Judd, L.

Chester, Bp.

Kalms, L.

Chorley, L.

Kennedy of The Shaws, B.

Clement-Jones. L.

Kimball, L.

Clinton-Davis, L.

Kingsland, L.

Colwyn, L.

Laing of Dunphail, L.

Condon, L.

Lamont of Lerwick. L.

Cope of Berkeley, L.

Lawson of Blaby. L.

Courtown, E.

Lester of Herne Hill, L.

Crathorne, L.

Linklater of Butterstone, B.

Crickhowell, L.

Listowel, E.

Cuckney, L.

Liverpool, E.

Cumberlege, B.

Livsey of Talgarth, L.

Darcy de Knayth, B.

Lloyd of Berwick, L.

David, B.

Ludford. B.

Dearing, L.

Luke, L.

Denham, L.

McColl of Dulwich, L.

Dholakia, L.

Macfarlane of Bearsden. L.

Dixon-Smith, L.

MacGregor of Pulham Market, L.

Donaldson of Lymington. L.

Mackay of Clashfern, L.

D'Souza, B.

Mackie of Benshie, L.

Dundee, E.

MacLaurin of Knebworth, L.

Dykes, L.

Maclennan of Rogart. L.

Eccles of Moulton. B.

McNally, L.

Eden of Winton, L.

Maddock, B.

Elis-Thomas, L.

Mallalieu, B.

Elles, B.

Mancroft, L.

Elliott of Morpeth, L.

Mar, C.

Elton, L.

Mar and Kellie, E.

Erroll, E.

Marlesford, L.

Falkland, V.

Mayhew of Twysden, L.

Falkner of Margravine, B.

Methuen, L.

Fearn, L.

Michie of Gallanach. B.

Feldman, L.

Miller of Chilthorne Domer, B.

Ferrers, E.

Finlay of Llandaff, B.

Miller of Hendon, B.

Fookes, B.

Mitchell. L.

Forsyth of Drumlean, L.

Monson, L.

Fowler. L.

Montrose, D.

Fraser of Carmyllie, L.

Moran, L.

Freeman, L.

Morgan, L.

Garden, L.

Morris of Aberavon. L.

Gardner of Parkes, B.

Morris of Bolton, B.

Garel-Jones, L.

Mowbray and Stourton. L.

Geddes, L.

Moynihan. L.

Gilmour of Craigmillar, L.

Murphy, B.

Glasgow. E.

Murton of Lindisfarne, L.

Glenarthur, L.

Naseby. L.

Goodhart, L.

Neill of Bladen. L.

Grantchester, L.

Neuberger, B.

Greaves, L.

Newby, L.

Greengross, B.

Newton of Braintree, L.

Greenway, L.

Northbourne. L.

Hamwee, B.

Northesk, E.

Hanningfield, L.

Northover, B.

Harris of Peckham, L.

Oakeshott of Seagrove Bay, L.

Harris of Richmond, B.

Hayhoe, L.

O'Cathain, B.

Hayman, B.

O'Neill of Bengarve, B.

Henley, L.

Onslow, E.

Higgins, L.

Oppenheim-Barnes, B.

Hodgson of Astley Abbotts, L.

Park of Monmouth, B.

Hogg, B.

Patten, L.

Hooper, B.

Peel, E.

Hooson, L.

Phillips of Sudbury, L.

Howard of Rising, L.

Plant of Highfield, L.

Howe, E.

Plumb. L.

Howe of Aberavon, L.

Plummer of St. Marylehone, L.

Howe of Idlicote, B.

Howell of Guildford, L.

Portsmouth, Bp.

Hunt of Wirral, L.

Prys-Davies. L.

Hurd of Westwell, L.

Quinton, L.

Hylton, L.

Quirk, L.

Inglewood, L.

Rawlings, B.

Irvine of Lairg, L.

Razzall, L.

James of Holland Park, B.

Redesdale, L.

511

Rees, L.

Swinfen, L.

Rees-Mogg, L.

Taverne, L.

Rendell of Babergh, B.

Tebbit, L.

Rennard, L.

Thatcher, B.

Renton, L.

Thomas of Gresford, L.

Roberts of Conwy, L.

Thomas of Swynnerton, L.

Roberts of Llandudno, L.

Thomas of Walliswood, B.

Rodgers of Quarry Bank, L.

Tombs, L.

Rogers of Riverside, L.

Tope, L.

Roper, L. [Teller]

Tordoff, L.

Rotherwick, L.

Trefgarne, L.

Russell-Johnston, L.

Trumpington, B.

Ryder of Wensum, L.

Tugendhat, L.

St. John of Bletso, L.

Turner of Camden, B.

St John of Fawsley, L.

Ullswater, V.

Saltoun of Abernethy, Ly.

Vallance of Tummel, L.

Sandberg, L.

Waddington, L.

Sanderson of Bowden, L.

Wade of Chorlton, L.

Sandwich, E.

Wakeham, L.

Scott of Needham Market, B.

Walker of Worcester, L.

Seccombe, B. [Teller]

Wallace of Saltaire, L.

Selborne, E.

Walmsley, B.

Selsdon, L.

Walpole, L.

Sharman, L.

Walton of Detchant, L.

Sharp of Guildford, B.

Warnock, B.

Sharples, B.

Watson of Richmond, L.

Shaw of Northstead, L.

Weatherill, L.

Sheldon, L.

Williams of Crosby, B.

Shutt of Greetland, L.

Williamson of Horton, L.

Slim, V.

Wilson of Dinton, L.

Soulsby of Swaffham Prior, L.

Windlesham, L.

Stoddart of Swindon, L.

Wright of Richmond, L.

Strathclyde, L.

Young of Hornsey, B.

NOT-CONTENTS

Amos, B. (Lord President of the Council)

Gibson of Market Rasen, B.

Giddens, L.

Andrews, B.

Golding, B.

Ashton of Upholland, B.

Goldsmith, L.

Bach, L.

Gordon of Strathblane, L.

Bassam of Brighton, L.

Goudie, B.

Bernstein of Craigweil, L.

Gould of Brookwood, L.

Bhattacharyya, L.

Gould of Potternewton, B.

Billingham, B.

Graham of Edmonton, L.

Bledisloe, V.

Gregson, L.

Brett, L.

Grocott, L. [Teller]

Brooke of Alverthorpe, L.

Hennay of Chiswick, L.

Brookman, L.

Harris of Haringey, L.

Brooks of Tremorfa, L.

Harrison, L.

Burlison, L.

Hart of Chilton, L.

Butler of Brockwell, L.

Haskel, L.

Campbell-Savours, L.

Haworth, L.

Carter, L.

Henigh, B.

Carter of Coles, L.

Hilton of Eggardon, B.

Christopher, L.

Hogg of Cumbernauld, L.

Clark of Windermere, L.

Hollis of Heigham, B.

Clarke of Hampstead, L.

Howells of St. Davids, B.

Corbett of Castle Vale, L.

Howie of Troon, L.

Crawley, B.

Hoyle, L.

Davies of Coity, L.

Hughes of Woodside, L.

Davies of Oldham, L. [Teller]

Hunt of Chesterton, L.

Dean of Thornton-le-Fylde, B.

Hunt of Kings Heath, L.

Desai, L.

Janner of Braunstone, L.

Dixon, L.

Jay of Paddington, B.

Donoughue, L.

Jones, L.

Drayson, L.

Jordan, L.

Eatwell, L.

Kilclooney, L.

Elder, L.

Layard, L.

Evans of Temple Guiting, L.

Lea of Crondall, L.

Falconer of Thoroton, L. (Lord Chancellor)

Leitch, L.

Lipsey, L.

Farrington of Ribbleton, B.

Lofthouse of Pontefract, L.

Faulkner of Worcester, L.

McDonagh, B.

Filkin, L.

Macdonald of Tradeston, L.

Gale, B.

McIntosh of Haringey, L.

512

McIntosh of Hudnall, B.

Royall of Blaisdon, B.

MacKenzie of Culkein, L.

Sawyer, L.

Mackenzie of Framwellgate, L.

Scotland of Asthal, B.

McKenzie of Luton, L.

Simon, V.

Marsh, L.

Snape, L.

Mason of Barnsley, L.

Strabolgi, L.

Maxton, L.

Taylor of Blackburn, L.

Merlyn-Rees, L.

Thornton, B.

Morgan of Drefelin, B.

Triesman, L.

Morgan of Huyton, B.

Truscott, L.

Morris of Manchester, L.

Tunnicliffe, L.

Paul, L.

Turnberg, L.

Pendry, L.

Vincent of Coleshill, L.

Peston, L.

Wall of New Barnet, B.

Prosser, B.

Warner, L.

Ramsay of Cartvale, B.

Warwick of Undercliffe, B.

Randall of St. Budeaux, L.

Whitty, L.

Richard, L.

Wilkins, B.

Rosser, L.

Williams of Elvel, L.

Rowlands, L.

Woolmer of Leeds, L.

Young of Norwood Green, L.

Resolved in the affirmative, and Amendment No. 56, as an amendment to Amendment No.55, agreed to accordingly.
5.8 p.m.
Lord Goodhart Lord Goodhart moved, as an amendment to Amendment No.55, Amendment No. 57:
Line 3, leave out "he" and insert "it"
he noble Lord said: This is minor and consequential amendment to which I have already spoken. I beg to move.
On Question, amendment agreed to.
Lord Goodhartmoved, as amendment to Amendment No. 55, Amendment Nos. 58 and 59:
Line 4, leave out "has reasonable grounds for suspecting" and insert "is satisfield on the balance of probilities"
Line 8, at end insert"; and
(c) has been informed by the Director of Public Prosecutions that there is no reasonable prospect of a successful prosecution of the individual for the terrorism-related activity."
On Question, amendments agreed to.
[Amendment No. 60 not moved.]
Lord Goodhartmoved, as an amendment to Amendment No. 55, Amendment No. 61:
Line 9, leave out subsection (A2)
The noble Lord said: This is a consequential amendment on the removal of the Secretary of State's powers to make control orders. I beg to move.
On Question, amendment agreed to.
[Amendment No. 62 not moved.]
Amendment No. 55, as amended, agreed to.
The Deputy Chairman of Committees (Lord Carter): If Amendment No. 63 is agreed to, I cannot call Amendments Nos. 64 to 79 on the ground of pre-emption.
The Earl of Onslow The Earl of Onslow moved Amendment No. 63:
Page 4, line 36, leave out subsections (1) to (5) and insert—
"( ) The High Court will set the limit of all non-derogating control orders."
The noble Earl said: The only point that I make about this amendment is a very simple one; namely, that when the Home Secretary thinks that someone has done something wrong—the mythical Mahommed al-Smith—the judge has to say how long he will stay inside or how long the order not to visit his friends will apply. In other words, a term is set upon his punishment. Noble Lords will probably say that it is not punishment, but to him it will be punishment. It surely must go against all principles of justice, freedom and reason that someone can simply be locked up or deprived of or restricted of his liberty for an indefinite period. To me that is completely unsatisfactory. I beg to move.
Lord Kingsland: I should like to say very briefly in support of my noble friend Lord Onslow that, listed with Amendment No. 63, is Amendment No. 93, which goes even further than Amendment No. 63. It would require the High Court to set the limit on all derogating control orders. When we come to Amendment No. 93, if the Committee is inclined to vote, it seems to me that that amendment of my noble friend Lord Onslow is perhaps preferable to the one that the noble Lord has just moved.
The Earl of Onslow: I am totally at the convenience of the Committee. I do not know whether the Committee would like to discuss Amendments Nos. 63 and 93 together as a principle. I accept that Amendment No. 93 goes further than Amendment No. 63 but the principle is in effect the same, which is that the amount of time that an order applies to someone should be set by a judge and for a defined period. I do not know whether the Committee would like to discuss Amendment No. 93 now or when we reach it. I am completely at the disposal of the Committee.
5.15 p.m.
Baroness Scotland of Asthal: Amendments Nos. 63 and 93 are grouped. Therefore, I respectfully suggest that it makes sense for me to respond to the amendment moved by the noble Earl, Lord Onslow, bearing in mind that no other Member of the Committee has risen in that regard.
Noble Lords: Oh!
Baroness Scotland of Asthal: How could I have not noticed the noble Lord, Lord Kingsland? I humbly beg his pardon. I meant no other Member of the Committee than a Front Bench Member. I tend to be dismissive of both our Front Benches as not really being the true contributors to a debate until a Member of the Back Benches rises.
The time frame which was given for both these orders accepts the reality that it is likely that they would have to be in being for some time. Bearing in mind the nature of the behaviour which is contemplated, it would be reasonable to suppose that a period of six months or 12 months would not be an unreasonable period,
514
particularly bearing in mind that it would be open to the person against whom such an order was made to make application on the basis of any change in circumstance. We accepted that if these control orders were made, they should not be open-ended. The time limits that we have set out of six months and 12 months would appear to be the most reasonable in all the circumstances.
The Earl of Onslow: But still it is open to the Minister to allow the person to whom the control order is applied not to know the overall length of how long he is being either deprived of or having his liberty limited. That cannot be right. It is what double jeopardy was put into place to stop—allowing people to go on playing what I believe used to be called "cat and mouse" orders in Ireland; that is, locking people up, then releasing them, then locking them up again, then releasing them and then locking them up. It is quite unsatisfactory. However, there is so much which is unsatisfactory about this Bill that I suppose it is asking too much to try to get one small part put right. I note that not many other Members of the Committee wanted to speak to this amendment. However, I see that someone now wishes to do so and therefore I shall sit down.
Lord Tebbit: I am grateful to my noble friend. I have every sympathy with what he is aiming at but I wonder about the practicalities of the matter. What circumstances would change to make it safe—if it had been unsafe—to let such an individual who had an order made against him out on to the streets again? For example, according to the Irish justice Minister, who is a significant figure, Mr Adams and Mr McGuinness are members of the Army Council of the IRA. I should have thought that would give rise to reasonable grounds for suspicion that they were associated with terrorist activities. If the Irish Minister is right, that has been the case for many years. Presumably, one would not want just to take them in for a few months and then let them back out on to the streets again, where, according to the Irish justice Minister—we do not know about these things—they might be involved in plotting anything from a murder to a bank robbery. Therefore, my noble friend might wonder whether he is absolutely right on this occasion.
The Earl of Onslow: I shall have a very small bet with my noble friend Lord Tebbit that the one thing that the Government will not do is put a derogation order or a non-derogation order on anyone who they think might have the slightest connection whatever with the Irish situation. That is another reason why this Bill seems to me a bad Bill in that it will be used extremely selectively against people who are considered weak enough to have these draconian rules applied to them. However, having said what I have said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose The Duke of Montrose moved Amendment No. 64:
Page 4, line 37, after "a" insert "maximum"
The noble Duke said: In moving Amendment No. 64, I wish to speak also to Amendments Nos. 70, 77 and 94.
This amendment is similar to the one just moved by my noble friend Lord Onslow but seeks to ensure that a non-derogating control order has effect for a maximum period of 12 months.
The Explanatory Notes accompanying the Bill make it clear that the intention is that the control orders will be tailored to the particular risk posed by the individual concerned. The risk in some cases will be greater than in others and presumably last for different periods of time. To ensure that the orders are proportionate, the Law Society of Scotland suggests that consideration should be given to the length of time it is considered necessary to have an order in existence to meet the risk posed by the individual. It may not be necessary to have all orders lasting for the full period of 12 months. This amendment allows for this degree of flexibility.
Amendment No. 96 probes the relationship between Clause 4(2) and Clause 4(1)(c) of the Bill. These concern the duration of derogating control orders. Clause 4(1)(c) states that a derogating control order cannot be renewed. However, Clause 4(2) then provides that the Secretary of State can make a new control order to the same effect for a further period of six months on the basis of the same information upon which the original order was founded. This would appear to have the same effect as a renewal order. This amendment therefore probes the relationship between these two provisions. I beg to move.
Baroness Scotland of Asthal: In relation to these amendments I would like to reiterate the comments I made in relation to the previous group of amendments and add to them. The Secretary of State can revoke, or apply to the court to revoke, a control order at any time if it ceases to be necessary, or he may modify, or seek modification of, any of the obligations imposed. It is open to the subject of the order to apply at any time to the Secretary of State, or to court, as the case may be, for a revocation of the order or for conditions to be varied, if he believes that circumstances have changed. Given the ongoing, active monitoring that will be involved in control orders, we do not believe that a modification to the drafting in the way suggested by the amendment is necessary. Furthermore, it would be likely to hinder optimal operational effectiveness.
I understand that Amendment No. 96 is a probing amendment. It prevents the making of a new derogating control order after the period specified for the first order expires. It also prevents the Home Secretary making a new derogating control order once the period of the first order has expired. In my earlier remarks, I made clear that we think that it is important for each control order to be for an identifiable, limited period, notwithstanding the fact that we will be reviewing the situation on a continuous basis. It would significantly undermine the effectiveness of the control order scheme if it were not possible for derogating control orders to continue. in appropriate cases, after the initial periods for which they are imposed.
516
By definition, the derogating control orders would be imposed on those thought to pose the gravest threats to public safety. It is right that such severe measures should be kept under close review and the need for them should be reassessed carefully every six months. It is possible—as has been the case with some of the current detainees—that the risk an individual poses can diminish over time. In that event, when looking at an order for which derogation has been needed, it might be appropriate to contemplate restrictions falling short of a deprivation of liberty. If nothing had changed over a six month period and yet the risk posed by the individual was the same as when the Home Secretary, or, as the case may now be, the court, had deemed it appropriate to impose such stringent controls, it would be irresponsible not to have the means to continue to assure the public that it was still safe.
This is about ensuring certainty of time span, making sure that orders are reviewed properly and giving the relevant parties an opportunity to raise additional matters for revocation in relation to those orders. The two fit together.
Baroness Williams of Crosby: In a situation where evidence emerges well before the six-month review that throws doubt on the evidence on which the control order was made, do the Government have in mind any provision that would enable a rapid review of that case to take place? Clearly, there could be indications that the original evidence was unsound.
Baroness Scotland of Asthal: That is why I said that there would be a review of the situation and that the Home Secretary could revoke the order before it expired, or application could be made to the court, now that we have passed Amendment No. 56, indicating that there had been a change of circumstances that merited such a revocation or the amendment of certain of the conditions. It may be that conditions change and indicate that some of the limitations, or restrictions imposed by way of conditions, are no longer merited. The idea is to have the certainty of an initial period of six or 12 months and then allowing flexibility for revocation because of change of circumstances.
The Duke of Montrose: I thank the Minister for that explanation. As I understand it, the provision in Clause 4(1)(c)—that the derogating control order may not be renewed—means that the order may not be rolled forward, but that a new order must be brought in. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 and 66 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 67:
Page 4, line 43, leave out "Secretary of State" and insert "court"
On Question, amendment agreed to.
[Amendments Nos. 68 to 71 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 72:
Page 4, line 44, leave out "he" and insert "it"
On Question, amendment agreed to.
[Amendment No. 73 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 74:
Page 5, line 2, leave out second "the" and insert "a"
On Question, amendment agreed to.
Lord Kingsland Lord Kingsland moved Amendment No. 75:
Page 5, line 7, leave out "Secretary of State" and insert "court"
On Question, amendment agreed to.
[Amendments Nos. 76 to 78 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 79:
Page 5, line 12, at end insert—
"( ) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."
Baroness Scotland of Asthal: I beg to move.
The Deputy Chairman of Committees: The Question is that Amendment No. 79 shall be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". Clear the Bar.
Division called.
Tellers for the Contents have not been appointed pursuant to Standing Order 54. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.
Amendment negatived.
Clause 3 agreed to.
5.30 p.m.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 80:
After Clause 3, insert the following new clause—
"POWER OF COURT TO MAKE DEROGATING CONTROL ORDERS
(1) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

(a) to hold an immediate preliminary hearing to determine whether to make a control order imposing obligations that are or include derogating obligations (called a "derogating control order") against that individual; and

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

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

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

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

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

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.
(3) At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court—

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

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

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

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

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

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

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

include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(1C).
(5) At the full hearing under subsection (1)(b), the court may—

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

(b) revoke the order;

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

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

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

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

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

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

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

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

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

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

(b) it ceases to have effect tinder clause 4; or

(c) it is renewed.

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

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

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

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

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

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

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

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

(11) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3)(a) or (7)(a) were satisfied."
The noble Baroness said: I beg to move.
Lord Goodhart Lord Goodhart moved, as an amendment to Amendment No. 80, Amendment No. 81:
Line 6, leave out from "order" to "against" in line 7.
The noble Lord said: This amendment has already been debated. It imposes the same procedure for both kinds of control order. I beg to move.
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved, as an amendment to Amendment No. 80, Amendments Nos. 82, 83, 84 and 85:
Line 28, leave out paragraph (c).
Line 31, after first "that" insert "if"
Line 34, at end insert "the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention"
Line 35, leave out "derogating"
On Question, amendments agreed to.
[Amendments Nos. 86 and 87 not moved.]
Lord Goodhart Lord Goodhart moved, as amendments to Amendment No. 80, Amendments Nos. 88, 89 and 90:
Line 60, leave out paragraph (c).
Line 64, at beginning insert "if"
520
Line 67, at end insert "that it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention"
On Question, amendments agreed to.
On Question, Amendment No. 80, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 91:
After Clause 3, insert the following new clause—
"ARREST AND DETENTION PENDING DEROGATING CONTROL ORDER
(1) A constable may arrest and detain an individual if—

(a) the Secretary of State has made an application to the court for a derogating control order to be made against that individual; and

(b) the constable considers that the individual's arrest and detention is necessary to ensure that he is available to be given notice of the order if it is made.

(2) A constable who has arrested an individual under this section must take him to the designated place that the constable considers most appropriate as soon as practicable after the arrest.
(3) An individual taken to a designated place under this section may be detained there until the end of 48 hours from the rime of his arrest.
(4) If the court considers that it is necessary to do so to ensure that the individual in question is available to be given notice of any derogating control order that is made against him, it may, during the 48 hours following his arrest, extend the period for which the individual may be detained under this section by a period of no more than 48 hours.
(5) An individual may not be detained under this section at any time after—

(a) he has become bound by a derogating control order made against him on the Secretary of State's application; or

(b) the court has dismissed the application.

(6) A person who has the powers of a constable in one part of the United Kingdom may exercise the power of arrest under this section in that part of the United Kingdom or in any other part of the United Kingdom.
(7) An individual detained under this section—

(a) shall be deemed to be in legal custody throughout the period of his detention; and

(b) after having been taken to a designated place shall be deemed—

(i) in England and Wales, to be in police detention for the purposes of the Police and Criminal Evidence Act 1984 (c. 60); and

(ii) in Northern Ireland, to be in police detention for the purposes of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12));

but paragraph (b) has effect subject to subsection (8).
(8) Paragraphs 1(6), 2, 6 to 9 and 16 to 19 of Schedule 8 to the Terrorism Act 2000 (c. 11) (powers and safeguards in the case of persons detained under section 41 of that Act) apply to an individual detained under this section as they apply to a person detained under section 41 of that Act, but with the following modifications—

(a) the omission of paragraph 2(2)(b) to (d) (which confers powers on persons specified by the Secretary of State, prison officers and examining officers):

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(b) the omission of paragraph 8(2), (5) and (5A) (which relates to the postponement of a person's rights in England and Wales or Northern Ireland); and

(c) the omission of paragraphs 16(9) and 17(4) and (4A) (which make similar provision for Scotland).

(9) The power to detain an individual under this section includes power to detain him in a manner that is incompatible with his right to liberty under Article 5 of the Human Rights Convention if, and only if—

(a) there is a designated derogation in respect of the detention of individuals under this section in connection with the making of applications for derogating control orders; and

(b) that derogation and the designated derogation relating to the power to make the orders applied for are designated in respect of the same public emergency.

(10) In this section "designated place" means any place which the Secretary of State has designated under paragraph 1(1) of Schedule 8 to the Terrorism Act 2000 (c. 11) as a place at which persons may be detained under section 41 of that Act."
The noble Baroness said: The preliminary hearing of a derogating control order will take place within a few days, if not hours, of the application by the Secretary of State. Because of this—and because the initial hearing will be on an ex parte basis—there will normally be no need for any additional provision.
However, in some cases it may be believed that an individual who is the subject of the control order application may disappear before such time as the order, if made, can be served on him. In derogating control order cases we need to be satisfied that the imposition of the most stringent condition is necessary to protect the public. An inability to act to prevent such an occurrence would leave a significant gap in the derogating control order system.
We have therefore provided that there should be a new power of police arrest and detention pending the preliminary hearing before the court for the necessary order. The new clause provides that the period of detention should be for a maximum of 48 hours in the first instance and the power arises only after the Secretary of State has made the application and provided that it is necessary to ensure that the suspect is available for service of the order if made. This may be extended under subsection (4) for a further 48 hours by the judge considering the ex parte application.
The remaining provisions relate to the status of the individual while detained under this provision, including applying many of the powers as safeguards provided in respect of Section 41 of the Terrorism Act detention provisions such as access to lawyers, the ability to notify someone of his arrest and similar matters. Such powers of arrest will in themselves require a derogation for Article 5 of the ECHR. Subsection (5) therefore provides for this.
Amendments Nos. 148 and 154 may also be included in this group. I shall therefore speak to those.
Amendment No. 148 ensures that any proceedings questioning the arrest and detention of a person under the new powers fall within the definition of proceedings that may be considered by the court.
Amendment No. 154 includes the new power of arrest within the definition of derogation matter, since the specific derogation respect of this power would also be needed. I beg to move.
Lord Lloyd of Berwick: I oppose the amendment. It is a very good example of how liberties can be eroded without anybody noticing. It is a basic rule of English law that when a man is arrested he is entitled to be told what he has wrong—that is, the offence that he has committed. That has always been the English law. It was put in statutory form in the Police and Criminal Evidence Act. Not surprisingly, it is also law under the European convention as enshrined in the Human Rights Act.
When the constable arrests a person who is suspected by the Home Secretary, what offence will he be told he has committed? Unless he can be told that he has committed an offence, he has been wrongfully arrested. The constable cannot tell him that he has been arrested and will be taken in however short a time before a court because he is involved in terrorism-related activities or something similar. That is not an offence in English law and it is not proposed to be in effect under the Bill. Until there is an offence of that kind, the arrest cannot be lawful.
The Duke of Montrose: This clause on arrest and detention pending a derogating control order has caused some worries north of the Border. The clause appears to allow a constable to arrest and detain an individual if the Secretary of State has made an application to the court for a derogating control order in respect of that individual and the constable considers that the arrest and detention is necessary to ensure that he or she is available to be given notice of the order if it is made. They will have to wait until a letter is delivered or until something similar occurs.
I appreciate that the Government may wish to make provision to ensure that those suspected of involvement in terrorism-related activity are held in custody pending determination of the derogating order, but is the mechanism set out in the Bill the appropriate way to achieve this? I would also welcome clarification of how this will interact with Scottish criminal procedure.
There is in Scots law a clear distinction between detention and arrest. The intention behind the traditional concept of detention is to allow time for further enquiry by the police where there is reasonable cause to suspect the involvement of an individual in the commission of a crime punishable by imprisonment but where there is insufficient evidence to press charges.
The purpose of detention is to assist in the investigation of the matter. As soon as it is clear that sufficient evidence exists to arrest a suspect, detention should be terminated and at that point the person may be arrested.
A person may be arrested when there is sufficient evidence to point to the involvement of that individual in the commission of a crime. The crime must be one which is capable of being punished by imprisonment. In this

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subsection, there is no clear reference to the constable suspecting that the individual has been involved in a crime. The basis of the arrest appears to focus on the fact that an application has been made and the ability to serve notice of the derogating control order on the controlled person. It might be more appropriate for the subsection to refer to a belief on the constable's part that the individual is or has been involved in terrorism-related activities and therefore that detention—rather than arrest—is appropriate while further enquiry is going on. If there is sufficient evidence to proceed to arrest, why are criminal proceedings not raised and pre-trial detention considered?
Alternatively, if the purpose of the provision is to ensure that the individual's movements are restricted pending determination of the derogating order, rather than introducing an artificial concept of arrest, a combination of conditions could be imposed on the individual in terms of a non-derogating order which would allow for supervision or monitoring over the period concerned.
I question whether the clause currently takes full account of the devolution settlement. Will the Secretary of State consult Scottish Ministers before police officers in Scotland become involved in the process? If there is sufficient evidence on which to arrest an individual, will the Lord Advocate become involved in the direction of the investigation?
Clarification would therefore be welcomed on the terminology which is used in relation to detention and arrest, especially in the Scottish context; the appropriate basis for detention or arrest—that is, based on suspicion of criminal activity; and, the role of Scottish Ministers and in particular the Lord Advocate in this process. Subsection (4) refers to the power of the courts to extend the custodial period of 48 hours by a further period of 48 hours. It is unclear whether the court will make this assessment ex proprio motu or on the application of the police officer involved.
Viscount Bledisloe: Will the Minister explain how the amendment relates to Amendment No. 80? Under Amendment No. 80 when the Secretary of State applies to the court there is an immediate hearing. If the court thinks fit, it can make an immediate control order. So, if the person is thought to be likely to blow up the Houses of Parliament that evening, the court can make a control order to put him under house arrest. That will detain him and render him available to have the notice served on him.
In what circumstances do you not obtain an immediate control order but you none the less need to arrest the person so that he is available to be given notice? That is my first question. Secondly, as it has now been decided that the court will make control orders of a non-derogating nature, is it intended to extend this new clause in Amendment No. 91 to include non-derogating orders?
Lord Morris of Aberavon: I voted against the Government on the previous issue; I rise to support the Government on this amendment. There is a hole
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to be filled by reason of the previous concession of the Home Secretary and the decision taken by the Committee today.
The analysis of the noble and learned Lord, Lord Lloyd, is absolutely right about what has to prevail on all the circumstances that we normally know about. These are unusual circumstances. There is a hole to be filled. There is a need to ensure that a person for whom the Home Secretary wishes to issue an order must be available when that order is made. Therefore, as a matter of common sense, the amendment should be carried.
Lord Carlisle of Bucklow: I find myself slightly concerned with the amendment. I understand entirely and agree with what the noble and learned Lord, Lord Morris, said. Clearly, there must be a power to arrest someone where in the end there will be no ability to try him. I realise therefore that he cannot be told on his arrest the evidence on which he has been arrested or the sources from which that evidence comes.
If I correctly understood the noble and learned Lord, Lord Lloyd, he was saying that the person will not even be told that he is arrested on the basis that there are reasonable grounds for suspecting he is involved in terrorist-related activity. Is that really so? What is the objection to saying to a person, "You have been arrested. The basis for your arrest is that we believe you to be involved in terrorist-related activity"? The man may say, "Tell me what". The constable may say, "I am sorry, I am not prepared to do so", but at least he has been told the general basis on which he is arrested.
The noble and learned Lord was saying that the reason this cannot be done is because there is no suitable offence of being involved in a terrorist offence. If so, is not the answer to make an offence which covers the point, so that he can be arrested in pursuance of that offence, rather than to leave it with him saying, "What have you picked me up for—urinating in the street, being a nuisance at a football match, or what? Or am I said to be a terrorist?". He must surely have the limited right to know that.
5.45 p.m.
Lord Phillips of Sudbury: Perhaps the noble Baroness could afford some elucidation on subsection (1)(b) of the new clause. I apologise for not having given her notice of my inquiry, which may mean that she has to write to me. Subsection (1)(b) says that a constable may arrest and detain an individual if—and this is the point—
"the constable considers that the individual's arrest and detention is necessary to ensure that he is available",
and so on. I am slightly foxed about how a constable will be in the position to form an independent view on the necessity of the arrest in the kind of circumstances that are likely to prevail, which may be that the word goes out to all police cars in a district to arrest the person driving a particular car. I cannot see how that

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is compatible with the requirement in the subsection. I should be grateful for any elucidation the noble Baroness may be able to give.
Lord Tebbit: The noble Lord, Lord Carlisle, asked the question which I was almost too shy to ask. What does the constable say to the person whom he has been told to arrest? After all, if a constable came to me and said, "I am sorry, Lord Tebbit, you are under arrest", naturally I would say, "What for?". What does he then say—"I'm afraid I cannot tell you"? What exactly does he say? What are the appropriate words? It would be very interesting to know. I have to assure the Committee, and particularly those Members who are both noble and learned, that the average man in the street thinks that under these circumstances the constable would say to him, "I'm arresting you on suspicion of being involved in a conspiracy to cause explosions", or something of that kind, and take him down to the station. By the time the procedure had gone on for a few hours, days and so on, the order would either be made or not.
So one could drop the charge and then move into the second phase of the order; or if the order was not made, the constable could say to him, "Look, I am terribly sorry, but it was all a ghastly mistake and you are free to go now". What would happen? I shall be fascinated if the noble Baroness will tell us what words the constable would use; why is the approach which the man in the street would expect to be used impossible; or is it that it is a very naughty approach and so we would not like to own up to it ever having been done?
Baroness Scotland of Asthal: I shall deal with the mischief first. It is likely that in the majority of cases an application would be made before the court and the court would make an order in relation to a person who has been identified as subject to a control order.
That deals with the situation where information may have reached the security or other services that someone is, for example, about to get on an aeroplane. The fear may be that the person has a bomb or other device. Before it is possible to go before the court it is necessary to stop him getting on the plane. Therefore, in those circumstances that person would have to be stopped and detained in some way.
It is anticipated that that person would be notified that they are being arrested and detained pursuant to—if it were to become—the new section of the Prevention of Terrorism Act, which permits the Home Secretary to apply to make orders and to detain people where there is a reasonable suspicion and/or—whatever the amendment now says—whether the Secretary or the judge is satisfied on the balance of probabilities about the person. It is perfectly possible to tell the person under which section he is being detained.
We are dealing with the practical situation, as my noble and learned friend Lord Morris points out. It may not be possible to go before the 24-hour duty judge. A
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telephone application may be made just as the man or woman is about to step on to the aeroplane, when it is essential that the person does not do so.
Lord Tebbit: I am grateful to the noble Baroness. I understand exactly the circumstances that she is describing. The chap is going up the steps of the aeroplane and you believe that he has a bomb that will blow up the aeroplane, so why on earth not arrest him on suspicion of being about to blow up an aeroplane? That surely is an offence for which someone could be arrested. I imagine that it is. There must be something somewhere in the law. Having arrested him, you could then investigate him for a while. Surely it does not need this Bill to arrest somebody who is on the way up the steps of an aeroplane with a bomb in his pocket.
Baroness Scotland of Asthal: That may not be the best example, but there are all sorts of other examples, such as people having information. The important point that I wished to make is that it may be necessary to stop and/or detain that person to enable due process to take place and come before the court. We are contemplating the situation of the new procedure when the Home Secretary will not of his own motion he able to so confine or restrain a person, but it will be incumbent on him to apply to a judge so to do. Therefore, certain logistical realities may arise in those circumstances, and it is for that lacuna that we seek to provide.
In relation to the issue raised by the noble Duke, the Duke of Montrose, I shall say what I said earlier in relation to this type of activity. It is not a devolved matter. It is a free-standing power to arrest and detain, which would arise in the context of a reserved matter. such as terrorism. It is not related to a criminal investigation and it is analogous to the powers of arrest and detention in the context of immigration law, which is another reserved matter. Therefore, it is not a case when the devolution issue comes into play.
I can reassure the noble Duke that we have already been in consultation with our colleagues north of the Border. On this occasion the Procurator Fiscal, as opposed to the Lord Advocate, will be involved, but we are very much alive to the difference in structure that applies in relation to matters that take place north of the Border. Such matters are being taken into account.
Viscount Bledisloe: Before the noble Baroness sits down, surely in the example that she gave, the constable is arresting the person not so that he is available to give notice, but to prevent him committing the crime. I can understand that.
Let us suppose that the person is flying to somewhere within the jurisdiction with his bomb to blow up the plane. He is not being stopped so that he will be available to be given notice; he is being stopped to prevent the crime. That is what ought to be in the Bill.

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Will the noble Baroness answer my second question? Is it intended to extend the power to apply to all control orders now that they all have to be made by the court?
Baroness Scotland of Asthal: I am bound at this stage by the expression of the Committee' view. The Government do not propose to so extend the power, but we shall have to reflect on the consequences of the vote this afternoon and consider the position further. But we do not at the moment propose to so extend the provisions.
The provisions were limited to deal with the derogating orders only. However, I have to accept that the Committee has decided to conflate the two procedures into one. That is not a view with which the Government agreed—as evidenced by the vote—or may not continue to disagree. We now have to consider that matter.
Perhaps my example was not the best, as we could use Section 41 provisions if the person actually had a bomb. Let us suppose that a person who was identified as being involved in terrorist activity was about to disappear. It would be important to detain him if the court thought it appropriate. He would become subject to a control order so that we could better control his activity, thereby keeping our citizens safe. It would be nonsensical to have no method by which that person could be so contained, permitting him to disappear and thereby enhance the nature, quality and extent of the threat that he may pose.
Of course, the period is limited to 48 hours. It is reasonably anticipated that within that time the matter could be swiftly brought before a judge who would be able to consider whether such detention by way of a control order is appropriate, to consider the extent to any condition that may apply and either to release or deal with the individual in a way that was proportionate and in accordance with the outline of the powers herein contained.
That is the practical situation facing us. We think that it would be better to enable the person to be so detained and the matter thereafter speedily dealt with—evidenced by the 48 hours—by the court which would be seized of the matter as soon as reasonably practicable.
The Committee should remember that before derogation the Home Secretary would have to have done a number of things. First, an order has to be laid, which identifies the group or persons against whom the derogation is needed or merited. Secondly, the nature of the conditions that amount to a derogation must be outlined in the order. The Secretary of State then has 40 days in which to bring the matter back to your Lordships' House and the other place. Immediately, and only after he has so laid that order can the Secretary of State apply for an order before the court. Logistically it may take more than a couple of hours to do that. In that time, the person involved may have disappeared. The whole purpose of the provisions is to ensure that that does not happen.
Lord Lloyd of Berwick: The noble Baroness has not quite dealt with my point. I see the need, but equally
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there is a need to inform someone who is arrested of what offence he is thought to be guilty. It has never happened before that someone could be arrested and the policeman has to say, "I'm afraid I don't know what offence you have committed, but I'm told you should be arrested". That is not how it has been done.
Baroness Gibson of Market Rasen: Before my noble friend sits down, I want to say that I am not a lawyer, but I have listened carefully to the debate. If a policeman arrested me, as the noble Lord, Lord Tebbit, said, my first question would be, "What am I being arrested for?".
As I understood the reply earlier, the policeman would say that I was being arrested under the Prevention of Terrorism Act. That would seem to indicate that I was regarded as a terrorist. It is common sense in these difficult circumstances. We are facing something that we have never had before in this country. If we were to say that the arrest was made under the Prevention of Terrorism Act, would the noble and learned Lord, Lord Lloyd, still ask for more? I think that that would be enough to indicate to me why I had been arrested.
6 p.m.
Lord Tebbit: I am most grateful to the noble Baroness. She should have no fear that I differ with her on the need for a provision to ensure that a terrorist or suspected terrorist does not disappear. Of course we all agree with that. But it is a mark of the confusion, the rush and the haste with which this legislation is being brought forward not only that this amendment could have been tabled at this late stage—after all, it should have been discussed in the Commons last week—but also that the noble Baroness, who is normally so absolutely in command of her brief, should have brought forward such an absurdly inappropriate example as that of the man going up the aeroplane steps with a bomb. We all know about him, and about what has happened in the past.
Fifty years ago, when I was a young second officer on an aeroplane, I was instructed by the captain to go back and sort out a passenger who appeared to be a threat to the safety of the aeroplane. I took the fire axe with me, I demonstrated to him that it was available, and his behaviour then seemed not to constitute an offence any longer. So I am certainly with the Government in how they approach some of these matters, but it is being done in an unpardonable rush, and 50 years on I might have second thoughts about whether my behaviour was perhaps over the top.
Baroness Scotland of Asthal: I cannot imagine that anyone would ever suggest that the noble Lord could in any circumstance go over the top. That would be outwith his character, I am sure.
The powers are analogous to the powers of arrest and detention in immigration law, which is another reserved matter. They arise in a very similar way. It is not a criminal matter. My noble friend Lady Gibson is absolutely right in how she describes it; she has not misunderstood. As I have tried to make plain, detainees would be told that Section 91A of the

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Prevention of Terrorism Act was being used, and that my right honourable friend the Home Secretary had made an application for an order in their respect, so they would know precisely why they were being detained. It is right that they would not know all the evidence, but there would be no difficulty in their understanding fully that they were not being detained for their health.
Lord Phillips of Sudbury: I wonder whether the noble Baroness is right in saying that. The definition of "terrorism-related activity" in Clause 1(8) covers somebody who is acting without any intention to encourage terrorism. I do not think that someone whose conduct gives encouragement but who does so unintentionally would have any such knowledge.
Baroness Scotland of Asthal: They would be told, "You are being detained because the Home Secretary is at this very moment applying for an order in relation to the control orders pursuant to the Prevention of Terrorism Act". People so detained would know that they had been arrested under those terms. As I said earlier, in all these cases the usual provisions regarding facilities for lawyers and such matters will be made, and obviously there will be an opportunity for them to make representations when the matter comes before the court in due course.
To take the point made by the noble Lord, Lord Tebbit, the whole point of this provision is that we listened very seriously to the comments of Members on our Benches in the other place, and others, who wanted a judge element to be introduced in the case of derogating orders. Having taken that practical issue into account, it became apparent that there would be a possibility of a time lag between the time in which the court could make the order and the time in which the person might disappear. For that reason, having accepted the rationale that a judge-made order will take a little more time—a judge will act more slowly than the Home Secretary could act—it was necessary to insert this provision for the odd case where it may not be possible to get an order from the court first.
Lord Elton: Does that continuous availability of the Home Secretary mean that in practice there will be some administrative means by which permission will be given in his name by somebody else? If not, why is he more readily available than members of the judiciary on a rota?
Baroness Scotland of Asthal: There are two factors. My right honourable friend the Home Secretary remains responsible for those issues throughout the whole period in which he remains in that role. As noble Lords would expect, and a number of noble Lords who have been in this position will know, the Home Secretary will get regular briefings on the state of security matters as they pertain to our country. Therefore, it is likely that he will be in a better position to take immediate action, the security services and the
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police having identified a particular activity. He will be able to act quickly to ensure that that is brought under control.
It will then be necessary for the Home Secretary to put before the court the evidence upon which he seeks to rely to verify and justify the act that he has so taken, and the court will be able to carry out merit-based scrutiny of derogating orders and decide whether the judgment exercised by the Home Secretary was correct. I will talk about derogating orders, as they are the parts on which we are all agreed, notwithstanding the vote that has just taken place.
Lord Elton: Does that mean that the order can be signed only by the Secretary of State in person?
Baroness Scotland of Asthal: It will work in the ordinary way. My right honourable friend the Home Secretary will make the decision, and that decision will be communicated. If the noble Lord is asking whether that can be done only in writing, all of us know of situations where we are contacted over the telephone and decisions are made that are subsequently reduced into writing. But it will be the decision of my right honourable friend the Home Secretary. The Bill provides that, if the Home Secretary should be indisposed for some reason which would make it physically impossible for him so to do, the Secretary of State can act on his behalf.
Lord Tebbit: I recollect an occasion while I was, I think, the Secretary of State for Trade and Industry, when I signed an order under the Prevention of Terrorism Act in relation to Northern Ireland, on the basis of the evidence that was presented to me, because the Secretary of State was not available. I understood that that was the normal rule, and that in this sense "the Home Secretary" means the Secretary of State, and that any Secretary of State may exercise those powers. Is that correct?
Baroness Scotland of Asthal: The position remains the same. Obviously if the Home Secretary is available he or she will make that decision. In extremis, the most important thing is that a Secretary of State, properly vested with that authority on behalf of our country, makes the decision.
On Question, amendment agreed to.
Clause 4 [Duration of derogating control orders]:
The Deputy Chairman of Committees (Baroness Fookes): If Amendment No. 92 is agreed to I cannot call Amendments Nos. 94 to 98 inclusive, by reason of pre-emption.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 92:
Page 5, line 14, leave out subsections (1) and (2).
The noble Baroness said: This amendment has already been spoken to.
On Question, amendment agreed to.
[Amendments Nos. 93 to 100 not moved.]
Clause 4. as amended, agreed to.
Clause 5 [Modification, notification and proof of orders etc.]:
Lord Goodhart Lord Goodhart moved Amendment No. 101:
Page 6, line 14, leave out subsections (1) to (3).
The noble Lord said: This amendment is consequential and has already been debated. It certainly appears to be consequential. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: In these circumstances, I cannot now call Amendments Nos. 102 to 115, by reason of pre-emption. I think that is correct, but I can see a slight problem.
Lord Goodhart: I was certainly expecting Amendment No. 112 to be moved. It does not seem to be pre-empted. The government amendment seems, in fact, to be necessary.
The Deputy Chairman of Committees: My understanding is that if Amendment No. 101 were agreed to, Amendments Nos. 102 to 115 could not be moved, because of pre-emption. I understand the difficulty. because there are government amendments.
Lord Elton: Amendment No. 101 removes the part of the Bill to which the amendments, which are now being discussed, relate. There is nothing there for the amendments to amend.
Lord Falconer of Thoroton: Can we deal with the situation in this way? The noble Lord, Lord Goodhart, has moved his amendment which, in effect, deletes provisions allowing the controlled person to apply to the Secretary of State to have a control order modified. That is, I think, the effect of the amendment that the noble Lord moved. It is in an earlier group; we have never actually discussed this particular provision. The noble Lord moved it with such conspicuous speed that—and this is entirely my fault—I failed to pick up that it was not consequential on anything we had done before. It involves a wholly new point.
Lord Kingsland: Inconspicuous speed.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland says, in order to accentuate my humiliation, that it was moved with inconspicuous speed. I agree with that completely. I suggest the following procedure: that the noble Lord, Lord Goodhart, should outline a little why we should remove the power to modify, then we will reply, and that way we will know where we are.
Lord Goodhart: The modification in subsections (1), (2) and (3) provides for a power of the Secretary of State to revoke or modify an order. In view of what has happened earlier—since the Secretary of State will not
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have power to make an order—it is, therefore, effectively consequential that he cannot revoke or modify it. However, there does need to be a provision for revocation or modification. That did seem to be effectively provided, subject to a couple of minor consequential amendments, by Amendment No. 112. If it were simply inserted—as, in a sense, that is consequential on the removal of subsections (1), (2) and (3)—then it provides a system which we think is necessary.
Lord Falconer of Thoroton: I am happy to go along with the approach that the noble Lord, Lord Goodhart, is proposing. However, I am being told by the Clerk at the Table that we cannot do that, as it has been pre-empted. I do not know if we can vote. It would be most inappropriate of us to suggest that we over-ride the Table, but we broadly agree on how we want to proceed on this amendment. If we are not going to be allowed to vote on Amendment No. 112, then I would oppose the amendments of the noble Lord, Lord Goodhart. I would have thought the right course is for us is to have voted on Amendment No. 101 and, having allowed that, then vote on Amendment No. 112 in as well.
Lord Desai: Would it be helpful to adjourn for about 15 minutes, while the Front Benches sort this matter out? They are talking to each other, but we at the back cannot hear what is going on. It is in such a muddle, I think it would be helpful if the usual channels would agree to an adjournment for 15 minutes.
Lord Davies of Oldham: I beg to move that the Committee do now adjourn until 6.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.17 to 6.25 p.m.]
Lord Falconer of Thorotonhad given notice of his intention to move Amendment No. 116:
Page 6, line 44, after "(2)(d)" insert "or (3B)(c)"
The noble and learned Lord said: I am very grateful for the time given to the Front Benches. So that we all know where we are, Amendment No. 101 was passed by the Committee and we accept that several subsequent amendments have been pre-empted. However, we are all agreed that a provision similar in substance to government Amendment No. 112 should be put in the Bill. We will bring forward on Report an amendment to that effect. We accept entirely the instruction from the Deputy Chairman of Committees that government Amendment No. 112 has been preempted. Given that, the sensible course is the one we have adopted.
I think that that brings us to Amendment No. 116, which was tabled in the first grouping under Amendment No. 47. I could say that the amendment has already been spoken to, but our conversation on it was exiguous, to say the least. It provides that the controlled person will be bound by modifications to derogating control orders imposed by the court as well

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as all other modifications made by the Secretary of State or the court as appropriate. In effect, it is a drafting amendment.
Lord Elton: So that I and other noble Lords understand what is going on, Amendment No. 116 is an amendment to Amendment No. 112, which was not moved. What are we amending?
Lord Falconer of Thoroton: I think that the noble Lord is correct. We should wait to move Amendment No. 116 until we are able to move Amendment No. 112. I shall not move the amendment. I thank the noble Lord.
[Amendment No. 116 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 117:
Page 6, line 45, after "modification" insert "and the reasons for the making of the order, renewal or modification"
The noble Lord said: I advance this amendment with a degree of trepidation. I shall probably find that, by the time I am half way through the second sentence. I shall be informed by a noble Lord that it is also attached to a subsection which has disappeared from the Bill.
I readily accept, that in the light of our earlier vote, the other amendment to which I shall be speaking in this group, Amendment No. 199, now makes no sense because it places obligations on the Secretary of State in circumstances in which he is no longer in a position to act. The provisions set out in Amendment No. 117 are therefore relevant not to anything done by the Secretary of State, because he is no longer going to make the control order, but to what is done by the court.
However, the principle is just as important with respect to the court as it is to the Secretary of State. When the control order is issued, the reasons for the making of the order, its renewal or its modification, must be plain to the person who is subject to the order. I do not need to go as far as the European Convention on Human Rights to derive authority for that proposition. I need simply to look at the first chapter of a novel by Mr Kafka, The Trial, for noble Lords to understand exactly why my amendment should be in the statute.
It goes wholly against all the principles to which we subscribe, as a society based on the rule of law that. if someone is to be restrained in any way, they are not given the reasons. In the context of control orders, for example, if someone is about to be imprisoned as a consequence of surveillance, we may not be in a position to say that that surveillance was conducted by Mr Smith employed by M15 or M16 or it may not be appropriate to say that the equipment used in the surveillance was of a certain type produced by a well known telecommunications company.
Nevertheless, the fact that he was surveilled, and the results of that surveillance, ought to be clear to the person before a control order can be legally issued.
We shall be returning to these matters in more detail when we come to Schedule 4 and look at the rules of the court. There must be limits on laying those employed to conduct surveillance open to exposure to the wrong people and we must protect the advanced techniques that play a part in our surveillance systems. Within those constraints, however, I suspect that it is the controls that we in your Lordships' House impose by amendment on the rules of the court that will ensure that we reflect the fundamental traditions of our society. We ought to be able to devise such a set of rules. I beg to move.
6.30 p.m.
Lord Thomas of Gresford: I wholly support Amendments Nos. 117 and 119, for the reasons given by the noble Lord, Lord Kingsland. Since it is a subject to which we will be returning when we come to the schedule, as he said—it is all a question of due process—I do not propose to say anything further at this stage.
I will just draw the attention of Members of the Committee to Amendment No. 118, in my name and that of my noble friend Lord Goodhart, which ensures that if a control order. or its renewal or modification, is served upon an individual it should be in a language that he understands, whether it be Welsh or Urdu. Certainly it should be in a language that he understands, so that he can obey the control order. The importance of this is that the breach of the order is a criminal offence, punishable with up to five years' imprisonment. He must know why he is going to prison—for breaking the order—as well as knowing the contents of the order itself.
Baroness Scotland of Asthal: First, these orders would not differ from ordinary orders in as much as, if there is to be breach, the order would have to state clearly what those acts and/or omissions that the individual would have breached were.
My second point is about the notice containing a statement explaining why the control order was being imposed, renewed or modified. One of the difficulties in such cases is that the reason for the modification or the control order might be within the ambit of information that cannot be given precisely to the individual. We have already spoken about the procedures and the matters that may be closed information or open. For these reasons, we say that Amendments Nos. 117 and 119 are flawed, because they do not seek to acknowledge closed information, which may be the basis on which the modification is made and, therefore, which may not be able to be disclosed to the individual.
On Amendment No. 119, which requires the Secretary of State to serve a summary of the case upon which he has relied to the controlled person, there is the same issue as for Amendment No. 118. It will be of the utmost importance for there to be a great degree of clarity on the precise nature of the restrictions and the conditions. That individual should know precisely what he is or is not permitted to do by way of the

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control order and the consequences of breach. Those matters could easily he provided in a way that would provide clarity.
The noble Lord, Lord Thomas of Gresford, talked of notes "intelligible to him". Those words would apply to each and every order that is made to these or other proceedings. We would say, with the greatest respect, that they are unnecessary.
Lord Kingsland: I am most grateful to the noble Baroness for her reply.
We accept that, as I think I said in proposing the amendment, that there would be many occasions upon which it would be inappropriate to name the source of the information and the techniques that were used to garner that information. That does not prevent telling the proposed controllee that the reason for the order being issued is because he has been seen to be doing X at a certain place. It seems to be perfectly consistent with protecting our sources to say that.
These are matters that we will be returning to in more detail when we consider Schedule 4, but a lot of our problems on these Benches in relation to all the evidential issues to which control orders give rise would be solved if the Government were prepared to accept that the rules of court would be made by the Lord Chief Justice, on consultation with the Lord Chancellor. This is the reverse of a familiar refrain that we have been listening to during the course of the Constitutional Reform Bill, where it has been the Lord Chancellor making rules after consulting the Lord Chief Justice. The best possible protection that one can give to due process in this Bill is to reverse that situation. It should be the Lord Chief Justice who determines the rules, after consulting the Lord Chancellor, who has this twin role of sitting in the Cabinet, representing both the views of the judiciary to the Cabinet and the views of our political masters to the judiciary. That is an amendment that will come later. If we succeed in getting it, it will wrap up a lot of these issues in an elegant way, and in a way that best protects our fundamental freedoms.
Baroness Scotland of Asthal: We strongly believe that the ordinary constructs should apply for the rules. The noble Lord knows that my noble and learned friend the Lord Chancellor has debated these issues long and hard during the constitutional debate. If I could foreshadow what is coming, and say to the noble Lord that we think that that tried and tested method, namely the Lord Chancellor acting in consultation with the Lord Chief Justice, would probably be the best way. I do not want to pre-empt the delight awaiting the House when the schedule is debated.
Lord Kingsland: I have deliberately sought only to foreshadow that debate telegraphically. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 and 119 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 120:
Page 7, line 7, leave out "Secretary of State" and insert "court"
On Question, amendment agreed to.
Lord Kingsland Lord Kingsland moved Amendment No. 121:
Page 7, line 7, after "State" insert "or the court"
On Question, amendment agreed to.
[Amendment No. 122 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 123:
Page 7, line 9, at end insert "and
(b) the notice must set out the time from which the revocation or modification takes effect."
On Question, amendment agreed to.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 124:
Page 7, line 12, leave out "Secretary of State" and insert "court"
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 125:
Page 7, line 12, after "State" insert "or the court"
On Question, amendment agreed to.
Clause 5, as amended, agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 126:
After Clause 5. insert the following new clause—
"CRIMINAL INVESTIGATIONS AFTER MAKING OF CONTROL ORDER
(1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—

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

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

(2) The Secretary of State must inform the chief officer of the police force that the control order has been made and that this section applies.
(3) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.
(4) Where he considers it appropriate to do so in performing his duty under subsection (3), the chief officer must consult the relevant prosecuting authority.
(5) In this section—
"chief officer"—

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

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

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

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

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

"police force" means—

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

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

(c) the Police Service of Northern Ireland;

(d) the Serious Organised Crime Agency; or

(e) the Scottish Drug Enforcement Agency;

"relevant prosecuting authority"—

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

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

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

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

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

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

(7) In subsection (5)—

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

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

The noble Baroness said: The amendment relates to criminal investigations after the making of a control order. Earlier today we had a shortened debate on the appropriate involvement of the DPP. We accept that that provision has been passed, although I should make it plain that we do not necessarily accept that that is the best or proper way forward.
The amendment deals with what happens after the making of a control order. As the Government have repeatedly made clear, our preferred option will remain always to prosecute suspected terrorists wherever possible. However, for the reasons that we explained earlier, it is often difficult to mount a case in court in such circumstances because of the sensitivity and inadmissibility of the evidence.
The Government recognise that after an order is made there will still be a need to review the situation. Amendment No. 126 seeks to allay the concerns that have been expressed that the issue of prosecution will still be reviewed even after a control order has been made. The amendment places 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
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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 active review of the scope for prosecuting an individual throughout the life of any control order. The amendment reflects existing practice. There is already 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 prosecution authorities as appropriate. I should emphasise that decisions on prosecution are for the relevant prosecution authorities.
Anticipating questions that may be raised by the noble Duke, the Duke of Montrose, in relation to Scotland, I should make it plain that we have consulted the Scottish authorities. For Scotland, the relevant prosecution authority is currently defined as the Lord Advocate. However, we have been advised by the authorities in Scotland that the correct person is the procurator fiscal who has operational responsibility for investigating and prosecuting crimes occurring in his or her jurisdiction.
The relationship between the police and the prosecutor in Scotland is well established. It is an appropriate and common practice for the police to consult the relevant procurator fiscal in such cases, and particularly in cases of serious crime. Thus the operational position in Scotland is more accurately and appropriately reflected in legislation by a reference to the procurator fiscal.
I hope that I have pre-empted the question that the noble Duke might have asked. I beg to move.
Lord Kingsland: I am most grateful to the noble Baroness for introducing the amendment. As she rightly says, we have, as a result of an earlier vote, given the Director of Public Prosecutions a responsibility which precedes rather than follows the imposition of the control order. Therefore. we believe that Amendment No. 126 should be placed on the face of the Bill but be slightly redrawn to make it consistent with the wording of our successful amendment.
We believe, in particular, that if the DPP informs the court at the outset that a prosecution is not possible, nevertheless, following the imposition of the control order, the possibility of prosecution should remain under review. I sense that that is fundamentally what Amendment No. 126 is intended to achieve.
I would prefer to see the responsibility in Amendment No. 126 to continue to be that of the DPP. I am uneasy about any deciding responsibility being on the shoulders of the chief officer of the particular policing area in which the alleged threats to security took place. But I accept, of course, that the police may well play an important role in furnishing the DPP with the additional evidence that he may need to change his mind.
While not opposing the amendment today, I should like to think that, between now and the Report stage, the Government will look at the Committee's earlier amendment and seek to re-craft Amendment No. 126 so that it conforms with the intention that has already been expressed by the Committee.
6.45 p.m.
Baroness Scotland of Asthal: The role of the DPP is one of making decisions whether to prosecute; he is not responsible for preventative orders. We feel very strongly indeed that it will be important for the DPP to maintain his independence from the Home Secretary. That was our view before the vote. Of course we shall consider the issue but I need to make it clear that, by virtue of the vote today, the Government do not assent to the change in that division of responsibility.
Lord Kingsland: We are entirely in agreement on the matter of principle which the noble Baroness has just expressed. We do not want to see anything on the face of the Bill that compromises the independence of the DPP. But, with great respect to the noble Baroness, that is not the intention that we on these Benches seek. The DPP looks at the evidence and, independently of the Secretary of State, decides in the first instance to advise the court whether or not a prosecution is possible.
We wish the DPP to go on making these investigations after the control order has been imposed, entirely independently of the Secretary of State, to see whether a prosecution might be initiated in two, three or four weeks, or in two, three or four months, after the control order has been imposed.
This has absolutely nothing to do with the Secretary of State. It is something that the DPP does entirely independently of the Secretary of State. Indeed, those are the only circumstances in which we would be prepared to accept the control order system. Once incarcerated or restrained in any way, the primary right of every British citizen is to be able to fight his or her case out in the criminal courts. Just because a control order has been made. that does not in any way entitle the DPP, under the Bill, to resile from his obligations to go on looking for an opportunity to bring the person under the control order to trial in the normal way.
Lord Forsyth of Drumlean: I agree with everything my noble friend Lord Kingsland said. In moving the amendment, the Minister seemed to have matters the wrong way round. This happens after a control order, whereas the involvement of the prosecuting authority should he before it. The control order should be the last resort.
I wish to pursue the questions that I put to the Lord Chancellor last week in respect of Scotland. I am still not clear about this and perhaps the Minister can tell me the result of the consultations that have obviously gone on since then within Scotland.
I notice that my noble friend Lord Lang, who was also Secretary of State for Scotland, is here. My recollection is that in the good old days before devolution—before we had a Scottish Parliament—when we had administrative devolution, if a procedure of this nature was being carried out in Scotland the Secretary of State for Scotland would be involved.
Looking at the amendment as drafted there does not seem to be any involvement by any of the people who are democratically accountable in Scotland. The Minister
540
said that the law officers would not be involved and that it would be a matter for the procurators fiscal. I find it extraordinary that where draconian powers are being taken we have a proposal—from a Government who say that they want decisions affecting Scotland to be made in Scotland—that marginalises the law officers of Scotland and the First Minister and the Ministers in the Scottish Parliament, who do not seem to be at all involved in the process.
Am I misunderstanding the situation? Will the Minister make it clear whether the proposal has been discussed with the First Minister and the law officers in Scotland and whether they have given their agreement to the procedure? If they have, it is extremely odd.
Baroness Scotland of Asthal: I should make it absolutely clear that terrorism is not a devolved matter and it never has been. Terrorism remains with Westminster. As a result there will be consultations on how orders will be implemented but they do not need the consent of the devolved administration in Scotland, because these matters have not been devolved but are reserved.
I have already made it plain that the Secretary of State who acts on these matters in the normal way on behalf of the United Kingdom will be the Home Secretary. Of course it is possible for any Secretary of State to be substituted for the Home Secretary if the need arises. I can reassure the noble Lord, Lord Forsyth, that colleagues have been consulted about the measures and there is no dissent from Scotland.
Lord Forsyth of Drumlean: I am sure that there is no dissent—this Government brook no dissent—and what the Minister says about terrorism not being a devolved matter is correct. My point was that prior to devolution if such an action was being taken the Secretary of State for Scotland would have been consulted and involved. I am simply asking the Minister to confirm that the position now is that no Scottish Minister or law officer will be involved in any way; and that those Ministers have been consulted and have given their agreement to the procedure.
The Minister is looking irritated but this is an important matter. We have a separate legal system in Scotland and separate Scottish law. The Government chose to change the rules by bringing in the Scottish Parliament. Up to now the operation of these security measures has involved the Secretary of State for Scotland and officials in what was then called the Scottish Office; that appears to have disappeared completely. We need to know that because it is important that people understand where accountability lies.
Lord Cameron of Lochbroom: Before the noble Baroness replies, having held the position of Lord Advocate I express a degree of surprise that the relevant prosecuting authority defined in the clause in relation to offences likely to be prosecuted in Scotland means the appropriate procurator fiscal.
How does the Secretary of State know who is the appropriate procurator fiscal? The procurator fiscal acts under direction of the Lord Advocate. who is

541
responsible for prosecution of offences in Scotland. If there is to be some analogy he is the responsible person for the whole of prosecutions in Scotland; just as the Director of Public Prosecutions is in England and the Director of Public Prosecutions for Northern Ireland is for Northern Ireland.
Perhaps the Government might like to reconsider this point because I regard as inappropriate the idea of the Home Secretary referring to some office in Scotland where there was a procurator fiscal with responsibilities directly related to the prosecution of a serious offence that would normally be prosecuted by the Lord Advocate through his Crown counsel. Will the noble Baroness reconsider the matter? I was deeply worried to see in various parts of the Bill reference to the appropriate procurator fiscal or the procurator fiscal in relation to Scotland by comparison with the Director of Public Prosecutions in other parts of Great Britain and Northern Ireland where different jurisdictions are involved.
Lord Lang of Monkton: Before the noble Baroness replies, I would like to endorse the remarks of my noble friend Lord Forsyth and the noble and learned Lord, Lord Cameron of Lochbroom, the former Lord Advocate. It is surprising that at the same time as bringing in devolution in Scotland the Government have now brought in some form of reverse upward devolution; whereas extensive consultation and involvement did take place in that respect, even though those matters are not now devolved.
It is all the more surprising since the present Lord Chancellor is the third Scottish holder of that post. One would therefore expect a higher Scottish profile in consideration of these matters. These matters are important not only in Scotland but in the context of the United Kingdom. I hope that the noble Baroness will give a careful and considered reply.
The Duke of Montrose: I am glad that we have had a chance to go into the Scottish issue. I am grateful for the clarifications brought out by the noble and learned Lord, Lord Cameron. I was interested that in a reply to an earlier question the Minister seemed a little unsure about approaching the procurator fiscal, but she tried to make a rather more robust argument than in this reply.
In following up the questions raised by my noble friend Lord Forsyth, it interests me as a curiosity that we have nominally a Secretary of State for Scotland in the Government. I do not know what role he would have. While looking at the provision earlier when our impression was that the Home Secretary might be trying to give directions to a chief constable, the Law Society of Scotland raised with me that at the same time he would have given information to the Lord Advocate. We are now saying in a stronger way that the Lord Advocate is the more senior law officer and that is perhaps where the process should begin.
Baroness Scotland of Asthal: First I will clear up the concern over consultation of the noble Lord,
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Lord Forsyth. We accept and rejoice at the fact that devolution has taken place and that Scotland has so nobly discharged her responsibilities in that regard. The reality means that those matters that are properly devolved have been devolved. The Secretary of State for Scotland remains a full member of Her Majesty's Cabinet. The decisions as to the full nature of the legislation are government decisions, which would include the Secretary of State for Scotland in consideration as a full member of that Cabinet.
Secondly, your Lordships will see that the first draft of these provisions included the Lord Advocate. That was at the instigation of our Scottish colleagues following consultation. We were subsequently told by them that the Lord Advocate was not the appropriate person and in his stead should be substituted procurators fiscal for the following reasons. The chief officer of the relevant force—not the Secretary of State—will consult the procurators fiscal in each area. Of course, the duty is placed on the relevant authorities to keep the matter of prosecution under review. That link between the chief officer and the individual procurators fiscal, who will be responsible for the prosecution, means that it is structured in that way.
How such matters should best be expressed to meet the Scottish construct has been considered in full consultation with our Scottish colleagues, so that the provisions best reflect what they believe is most appropriate for Scotland. I can certainly say to the noble Lord, Lord Forsyth, that these consultations continue, as is proper, but perhaps Scotland is enhanced in her ability to act in a way that she deems appropriate on those matters that are devolved. In no way do they undermine the nature of consultation that takes place before we put in place UK-wide provisions.
7 p.m.
Lord Forsyth of Drumlean: I do not want to prolong the matter—we may return to it at a later stage. I believe that that is a deeply unsatisfactory response. We are not talking about an administrative matter. We are talking about the Home Secretary being able to contact a procurator fiscal in Scotland—
Baroness Scotland of Asthal: No, the Secretary of State will not contact procurators fiscal. It would be quite improper for him to do so. The chief officer, whose proper duty it is to consider such matters, will be the person responsible for contacting the procurators fiscal. One may fundamentally misunderstand the necessary separation but it has to take place for the democratic situation that we now have to continue, with independent separation of prosecution away from the Secretary of State.
Lord Forsyth of Drumlean: I stand corrected. The Minister is quite right. I was taking a short cut. However, I cannot help pointing out that, in other legislation before the House, the Government seek to take more controls over chief police officers than has previously been the case, both north and south of the Border. Indeed, an amendment giving the First

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Minister powers to give directions to chief constables has been moved and that is certainly a constitutional innovation.
Returning to my point, the Minister is quite correct to say that the Home Secretary contacts a Scottish police officer who then contacts the procurator fiscal. That is the procedure that has been put in place. That means that the First Minister of Scotland, who is democratically accountable for the Justice Department and for the police service in Scotland, is not involved in the process at all and will know nothing about it, whereas in the past the Secretary of State for Scotland was involved.
The Minister is raising her eyes as though this is a minor matter. These are very important considerations. In the past the Secretary of State for Scotland had responsibility for police forces in Scotland. There are great sensitivities about this matter. It seems to me that these provisions bring in a very novel procedure, which effectively leaves out of the equation the law officers, who, as has been pointed out, are the prosecuting authority. These days the title "Secretary of State for Scotland" seems to be more a ceremonial title than anything else; it is as relevant as "Keeper of the Great Seal" was as part of the previous title of the Secretary of State for Scotland. The Secretary of State has no interaction with the Justice Department or the police because those are devolved matters.
Here we have all the ingredients for mistakes to be made and for offence to be created within Scotland by pursuing these procedures, which appear to be a great departure from what we have had in the past, when we have had some local, democratic control of those kinds of activities which, by their nature, are not perhaps always in the public domain.
The Earl of Onslow: Perhaps I may introduce a totally different issue. By this amendment the prosecuting authorities are to continue to look for evidence. That is perhaps how it can be best précised. If they come up with evidence to show that a man has had nothing to do with a situation, and he is not really called Abdul al-Smith, but he is actually an elder of the kirk in Ullapool or somewhere, I hope that evidence will be reported back as soon as possible, the chap released as soon as possible and the mistake admitted. The evidence has to be evidence of either conviction or innocence. Both are equally important matters of evidence.
It is not the slightest bit surprising that Scottish devolution is returning to haunt Ministers by such little matters coming out of the woodwork and making the whole situation look odd and difficult. If I am allowed to mix metaphors, that particular egg in the cuckoo's nest was waiting to hatch.
Baroness Scotland of Asthal: I can tell the noble Earl, Lord Onslow, that the review is a total review. Of course, we shall look at all the evidence that comes before the authorities to consider how best to act. I have already said that if the conditions imposed appeared. on reflection, no longer to be necessary, they
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could be revoked. If there were a fresh investigation that demonstrated that the orders were no longer necessary, of course, we would do that.
We do not see devolution for Scotland as anything like an egg in a cuckoo's nest. Many people rejoice at it and consider it a thing of beauty and a wonder to behold.
On Question, amendment agreed to.
Clause 6 [Offences]:
[Amendment No. 127 not moved.]
Clause 6 agreed to.
Clause 7 [Appeals relating to non-derogating control orders]:
[Amendment No. 128 not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 129:
Page 8, line 37, at end insert—
"(1A) Where—

(a) a non-derogating order has not been confirmed or renewed, or

(b) an obligation imposed by a non-derogating order has not been modified on the application of the Secretary of State,

the Secretary of State may appeal to the appeal court against the refusal to confirm, renew or modify the order."
The noble Duke said: Amendment No. 129 will add a couple of small paragraphs to the clause. The effect of the amendment creates a right of appeal for the Secretary of State in respect of various decisions of the court relating to the order. The reason for the amendment is that if the court is to make a determination in relation to confirmation, renewal and modification of the original order, it is appropriate that the Secretary of State is given the right to appeal refusal of an application to an appeal court. The definition of "appeal court" is provided in a subsequent amendment. I beg to move.
Baroness Scotland of Asthal: Of course, I understand that Amendments Nos. 129 and 139 provide the Secretary of State with the right to appeal against the court if it decides not to modify the control orders. Amendment No. 129 refers to non-derogating control orders and I believe it is based on the assumption that all control orders will be made by the court. Amendment No. 139 refers to derogating control orders. I do not believe I need to repeat the arguments in favour of the Secretary of State making the non-derogating control orders because we have to bear in mind the effect of the matters that have already been dealt with. In the ordinary way, we would be suggesting on behalf of the Government that these amendments should be rejected because they are outwith the construct that we have.
We say that Amendment No. 139 could also be rejected because it seeks to give the right of appeal from the first-instance court decision—for example, to the Court of Appeal in England, Wales and Northern Ireland and the Inner House of the Court of Sessions in Scotland—but we say that that is unnecessary as, in any event, there would be a right of appeal to the Court of

545
Appeal from an initial decision by the court. That does not need to be provided for expressly. For that reason I urge the noble Duke not to press Amendments Nos. 129 and 139.
Government Amendment No. 132 seeks to amend a reference in Clause 7 to appeals against non-derogating control orders to the test that the Secretary of State will have to apply to impose a non-derogating control order. It amends that reference in the light of government Amendment No. 55, which preserves the same test as currently in the Bill, but in the proposed amended structure. I therefore commend Amendment No. 132, but I also take into account the fact that, in view of our earlier amendments, these amendments would fall.
The Duke of Montrose: I thank the Minister for her explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 130 and 131 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 132:
Page 9, line 6, leave out "1(1)(a) and (b)" and insert "3(A1)(a) and (b)"
On Question, amendment agreed to.
[Amendment No. 133 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 134:
Page 9, line 15, leave out second "the" and insert "a"
On Question, amendment agreed to.
[Amendments Nos. 135 to 137 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 138:
Page 9, line 42, at end insert—
"( ) The Secretary of State shall compensate a controlled person for any loss or damage unreasonably caused by an order or its renewal which is quashed, or by an obligation which is quashed."
The noble Lord said: I will say something about this, because it is dealt with in both Clause 7 and Clause 8. Since we are now moving towards a single procedure, the principle that lies behind the amendment is important, and I want to speak to it briefly.
The amendment is aimed at a set of circumstances in which a control order is issued and then subsequently quashed, and, while it is in place, damage is unreasonably caused as a consequence of its imposition. Many of the consequences of the restraints that are sought to be imposed in Clause 1(3) will imply serious financial costs for the person who is the target of the control order. If that person incurs those costs unreasonably, it seems only right to us that he or she ought to be appropriately compensated. I beg to move.
Lord Thomas of Gresford: I wholly support this amendment, although the whole of Clause 7 will fall shortly. It is important that compensation should be paid, when one of the controls suggested for a control order is a prohibition on a person carrying out his business or trade. It is not compensation for the loss of
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liberty but for actual financial loss, which should be recompensed to the person who has suffered it. I hope the Government will accept the amendment when it comes in the next clause.
Lord Falconer of Thoroton: This is an important point. We will, however, not accept the amendments. The High Court already has power to award costs in court proceedings, and the rules relating to costs will apply in future to parties to control order proceedings. However, this is a more profound issue than simply costs. I do not think costs are a difficulty.
The High Court also has the power to award damages, either under the Human Rights Act 1998 with regard to breaches of convention rights, or at common law—for example, with the remedy for trespass to land or to the person, or false imprisonment. The circumstances in which they could award that would depend upon the circumstances of the application for the order and the making of that order. We do not think it would be right in those circumstances to establish a statutory right to compensation for loss or damage resulting from the imposition of control orders. If such an order is unlawfully made and subsequently quashed, that individual may, depending on the facts, bring a separate action for damages for any breaches of his convention rights, and so on. In those circumstances, we do not think it is either right or necessary to make provision in the Bill.
7.15 p.m.
Lord Neill of Bladen: The language in the proposed amendment is "unreasonably caused", which I think would involve a scrutiny into the basis on which the order was originally sought and made. I wonder whether there are any considerations to which the noble and learned Lord would like to refer that might make it difficult to investigate the unreasonableness of the initial order? We are not talking about whether loss has been suffered. That is demonstrated by my example of a man being ordered not to work. He proves his loss. The issue, I think, is whether that loss was unreasonably caused by the seeking of the order in the first place, which may take us into the heartland of extreme sensitivity. Does he have any observations to make about that?
Lord Falconer of Thoroton: Of course, it might take us into the heartland of extreme sensitivity. However, the hypothesis on which the noble Lord's amendment is made is that an order has been made, subsequently investigated by the courts and then discharged. I am saying, in effect, "Don't create a special statutory regime. Leave the common law of the Human Rights Act to deal with it". I say that that would be sufficient.
The noble Lord, Lord Neill of Bladen, is plainly right. Whether it be under the regime of the noble Lord, Lord Kingsland, or under these existing regimes, we are into a pretty sensitive area anyway.
The Earl of Onslow: The noble and learned Lord says that we should not make a special statutory excuse under

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this amendment, but this whole Bill is a special statutory operation anyway. Therefore, special protection is exactly what is needed.
Lord Falconer of Thoroton: With respect to the noble Earl, that is not the right approach.
The Earl of Onslow: The whole Bill is not the right approach.
Lord Falconer of Thoroton: I appreciate that the noble Earl approaches this with that freshness of mind that one has come to expect from him.
Our approach is that certain changes need to be made to the law, but that we should leave the normal procedures of the law to deal with a situation, for example, where an order is wrongfully made. We should leave it to the High Court to make as many of the rules of procedure as possible, because we think the normal rules should apply as much as they can. However, we recognise that some changes are required.
Lord Kingsland: The noble and learned Lord says that we should leave this issue to the High Court and its rules. If the system for making High Court rules was the system recognised under the normal procedure, I would feel entirely comfortable. However, the problem is that, in the schedule to the Bill, the normal way in which the High Court rules are made for all cases is displaced.
Lord Falconer of Thoroton: The rules are displaced for the first occasion only. The rules that apply to the ordinary England and Wales High Court need to be amended to deal with this situation, and they will need to be ready by the end of the week. That is why, in the schedule, the Lord Chancellor can make changes for the first time. Thereafter, the changes can be made in the ordinary way, which is entirely consistent with what the noble Lord, Lord Kingsland, urges, and I support him on that. However, I recognise the difficulty of that first set of rules.
Lord Kingsland: The noble and learned Lord has given the Committee an important piece of information. It goes right to the heart of all the issues connected with due process. What is in that first draft will determine whether your Lordships will be prepared to pass this Bill. However, we will not find out what is in that draft until after the Bill leaves this House. That is why the position of the Opposition is that we want a guarantee on the face of the Bill that the rules of court for these matters will not be politically determined.
I have enormous, almost boundless, respect for the noble and learned Lord the Lord Chancellor in the fair way that he goes about exercising his duties. Nevertheless, this Bill has a strong political flavour—far too strong for us. Your Lordships need a guarantee that those initial rules, which will be produced by the end of the week, conform to the principles of due process that we seek. For that reason, despite the noble and learned Lord's intervention, I still want Schedule
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4 amended so that those rules are initially made by the Lord Chief Justice after, of course, consulting with the noble and learned Lord the Lord Chancellor. If that is so, I shall be confident that this amendment will be respected.
Lord Falconer of Thoroton: Let me deal with that series of very important points. First, I am glad that I have been able to make it clear that the rules we are talking about being made by the Lord Chancellor involve only,
"the first occasion after the passing of this Act",
as provided for in paragraph 3(1)(a) of the schedule. Secondly, I unreservedly give an undertaking that those rules will not be political in nature but will be determined entirely by the requirements of the process.
However, I recognise that the noble Lord is looking for more assurance. As he knows, I am obliged to consult the Lord Chief Justice about the rules. That seems to be the practical way to deal with it. I need to consult the Lord Chief Justice about the best way to reassure the noble Lord. If there is any disagreement between myself and the Lord Chief Justice—although I would have to consult with the noble and learned Lord about this—the best way to reassure the noble Lord might be for that disagreement to he made public, but I cannot give that assurance until I have spoken to the Lord Chief Justice.
Lord Kingsland: I was going to ask whether I could probe these matters further, but I think the noble and learned Lord has given me the answer to what would have been my question in the second half of his last sentence.
The noble and learned Lord has plainly not yet consulted the noble and learned Lord the Lord Chief Justice about the rules. We are now moving towards the middle of Monday evening; this Bill is due to leave your Lordships' House by about the same time tomorrow. It is absolutely crucial that we know much more about what is likely to appear in that first set of rules. I urge the noble and learned Lord the Lord Chancellor to make an early telephone call to the noble and learned Lord the Lord Chief Justice to try and throw some clearer light on many dark corners that have emerged as a result of the contents of the schedule.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland, will know that the rules for SIAC address a very similar area, so he will know the broad shape of the rules. But I am as keen as I possibly could be to give the noble Lord the assurance he seeks.
Lord Kingsland: Unlike the operation of SIAC, Article 6 applies to the control order system. Well, the noble and learned Lord says that only Article 6(1) applies, but, with great respect, I believe that he is wrong. I believe that the other sub-paragraphs of Article 6 also apply, for reasons which I would have had a chance to explain to your Lordships' House if we had not been somewhat short of time this afternoon.

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It is clear that the SIAC rules will not do. The European Court of Human Rights has decided that Article 6 does not apply at all to immigration tribunals and the law that is based on immigration tribunals. The reason for that is that no civil rights in those proceedings are in issue. But civil rights are in issue here and, what is more, we cannot escape the jurisprudence of the European Court of Human Rights that says if a criminal penalty is dressed up as a civil penalty, nevertheless those proceedings are criminal and bring with them all the protections that Article 6 contains.
The rules that the noble and learned Lord will agree with the noble and learned Lord the Lord Chief Justice will have to respect the principles set out in Article 6. That is quite a different situation from SIAC.
Lord Falconer of Thoroton: At the heart of the noble Lord's point is the question, "Can we see a copy of the rules?". We are working as hard as we can on this. I can give no assurances about when they will be produced, but they are in a moderately advanced state of preparation.
Lord Thomas of Gresford: I hope that Article 6 principles are applied to the rules. It is quite clear to me that the proposed proceedings have the colour of a criminal hearing and that Article 6 will therefore apply in full. It is not just a question of civil obligations when you are depriving people of their liberty, whether to a large or a small degree.
This debate is going further and further away from the amendment, which I should like to focus on again. The noble Lord, Lord Neill of Bladen, made a very important point about the way in which the court will be looking at possibly secret material. In fact, in the new clause that we passed in Amendment No. 80, if it revokes an order, the court may,
"direct that the Act is to have effect as if the order had been quashed".
It seems only sensible that where compensation is to be paid, it should be paid within the system. A person who succeeds in quashing a control order should have his claim for compensation determined at the same time so that if there is material that cannot be disclosed to him, the same procedures are applied. The noble and learned Lord suggested that instead of doing that, the person who has the order quashed should start fresh proceedings in the High Court. That would be a complete waste of time and would give rise to all the problems to which the noble Lord, Lord Neill, pointed.
Lord Forsyth of Drumlean: I should like to press the noble and learned Lord the Lord Chancellor and go back to the discussion in which, in response to my noble friend Lord Kingsland, he very kindly said that he would endeavour to make the rules of court available. Can he give the same undertaking in respect of the rules which will apply in the Court of Session, which presumably will be a matter for the Lord President? How would that work?
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The noble Baroness, Lady Scotland, described devolution as a wonderful thing to behold. One of the things that one can behold in devolution is that the devolved administration are not allowed to do anything that falls outwith the European Convention on Human Rights. I am not a lawyer, but I think that producing the rules of court in the Court of Session to meet the requirements of this legislation will be an interesting task.
Lord Fraser of Carmyllie: My noble friend Lord Forsyth must be right about that. If the noble and learned Lord the Lord Chancellor is prepared to give the concession that any rules this side of the Border are to be considered by the Lord Chief Justice, it must follow as a matter of law that a similar consultation is undertaken with the Lord President of the Court of Session.
Lord Falconer of Thoroton: I am so glad to see the noble and learned Lord, Lord Fraser of Carmyllie, in this debate. He is of course right—indeed, I can go further on that issue. Rules and procedure of the Court of Session are a devolved matter. I could not make the rules for the Court of Session. It has been agreed, and it is reflected in the Bill, that the Lord President of the Court of Session should make the rules. Unlike the position of the Lord Chief Justice and the Lord Chief Justice in Northern Ireland, the normal ways of making the rules would not permit the rules to be ready in time. The Lord President will make the rules in Scotland because this is a devolved matter, unlike—and I hardly dare stray back into this area—terrorism, which is not a devolved matter.
Lord Mayhew of Twysden: What position is the noble and learned Lord taking in relation to consulting the Lord Chief Justice of Northern Ireland?
Lord Falconer of Thoroton: The Lord Chief Justice of Northern Ireland must also be consulted on the first occasion. That is expressed in the schedule.
Lord Desai: In order to reassure the noble Lord, Lord Kingsland, will my noble and learned friend take cognisance of the recommendation of the Delegated Powers and Regulatory Reform Committee that such rules as are made should be subject to an affirmative procedure? If that is done, we will have sight of the rules before they go into operation.
7.30 p.m.
Lord Falconer of Thoroton: The problem that we have is with timing. We need these rules extraordinarily quickly. The first set of rules, which the Lord Chancellor will make in England and the Lord President will make in Scotland, can be made within the time by applying the usual processes in Scotland, but not in England. As I indicated in answer to questions asked by the noble Lord, Lord Kingsland, the rules are in a moderately advanced state of preparation. I will try to make them available as quickly as I possibly can.
The Earl of Onslow: I am a beacon of clarity compared with the Government on this matter. With

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five O-levels—which is all I have—and no university training, that shows what a serious muddle the Government are in. This provision would have the Chief Justice of Scotland and the Chief Justice of Northern Ireland making the rules judicially. In England, they would be made politically. That is a muddle. If the noble and learned Lord the Lord Chancellor cannot see that perhaps he did not deserve to pass his O-levels let alone go to university. This is exactly what I mean by a muddle.
Lord Falconer of Thoroton: The noble Earl puts his point with extreme clarity as ever. Surely, the fact that we have not reserved terrorism but have reserved the rules of the Court of Session is what the devolution settlement is. In dealing with the Bill before us, we must respect the devolution settlement. That is what we are doing.
Lord Forsyth of Drumlean: I am grateful to the noble and learned Lord the Lord Chancellor. I am endeavouring to be helpful. This may be a false point and. as he knows, I am not a lawyer. I understand that this is a devolved measure. Indeed, that was my question. But as I understand it, in respect of all devolved functions by the Scottish Parliament, it must act in accordance with the European Convention on Human Rights. How can it provide for a set of rules of procedure unless the rules are totally consistent with the European convention? That is what is making my brain hurt.
Lord Falconer of Thoroton: I agree with that and so must our rules.
Lord Goodhart: Since the rules are going to be extremely important and will depart from traditional practices in a number of important ways, is it not important that Parliament should have some control over them? I quite understand the importance of getting them very quickly indeed, but would this not be an appropriate occasion on which it would be proper to use the procedure which is used from time to time in which the rules could come into effect immediately but would cease to have effect unless they were approved by both Houses within 40 days?
Lord Falconer of Thoroton: May I give that proposal some thought? Our problem with it would be getting them in force in time. If there is a means by which they can be properly looked at, we will certainly consider it, so I will certainly take that suggestion away.
I will return to the human rights issue, because although the noble Lord, Lord Forsyth of Drumlean, is not a lawyer, behind him is the former Lord Advocate, the noble and learned Lord, Lord Fraser of Carmyllie, who was looking quizzical about the point that I made. I was asserting that the rules of court would have to be, in Scotland, in England and Wales and also in Northern Ireland, consistent with convention rights. I suspect that the noble and learned Lord's concern was that that was an unusual procedure. How could it be consistent with
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the ECHR, particularly when the position would be that some of the material would not have been made available to the person who was the subject of the control order?
The noble and learned Lord will know that, in the Chahal case in 1997, the ECHR stated that, when we were dealing with deportation—as in that case—and certain stuff might harm national security, using the special advocate procedure would make it consistent with the human rights convention subject to other factors. On two occasions, the courts in this country have looked at the SIAC procedure with reference to Article 6. On two separate occasions the courts have said that it is consistent with the convention in essence. What they are saying is that, as long as the procedure allows the court to look at it, and there is a special advocate on behalf of the suspect, it is okay.
Lord Lloyd of Berwick: Is the Lord Chancellor is referring to the Rehman case, which is the leading case on the subject and was a deportation case? There is an essential difference between such a case and other cases. So far as I know, no court has yet decided that the SIAC procedure would be good under the European convention if applied by a court.
Lord Falconer of Thoroton: I will read from the case of "A" in the Court of Appeal which then went to the House of Lords on the other point but not on this particular point. The following quotation is from paragraph 57 of the judgment of the noble and learned Lord, Lord Woolf. I appreciate that people should look at the whole case rather than reading only a paragraph. I will not give the citation but people can look it up. The noble and learned Lord stated:
"As to this, I agree with the commission that the proceedings are not criminal".
It should be remembered that these are proceedings that lead to someone being put in prison. He continued:
"I would, however, accept the fact that proceedings are civil proceedings within Article 6",
so Article 6 applies. He went on to say:
"However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of cross-examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6, it is necessary to look at the proceedings as a whole including the appeal before this court. When this is done and the exception in relation to national security referred to in Article 6 given due weight, I am satisfied there is no contravention".
Lord Lloyd of Berwick: That was reversed in the House of Lords.
Lord Falconer of Thoroton: It was on the point about proportionality and in relation to discrimination, but not in relation to this point. There is another case called "M" in which the Court of Appeal, in a unanimous judgment, stated that it could not leave the case without saying that it accepts that the SIAC

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procedure is just within the meaning of the convention. There are two decisions of the Court of Appeal in this country that say that it is a just procedure.
Lord Thomas of Gresford: The noble and learned Lord the Lord Chancellor must know that that the Judicial Committee of the House of Lords reserved the position in relation to Article 6. The committee found it unnecessary to come to any conclusion on it and reserves the position entirely. The committee did not support what had been said in the Court of Appeal in the way that the Lord Chancellor is implying by his reply—I know that he does not mean to, but that is the implication of what he says.
Lord Falconer of Thoroton: I am saying specifically that the Court of Appeal has looked at this matter on two separate occasions and said that it complied with the ECHR. That is the point that the noble Lord has to deal with. I should also make it clear, before the noble Lord deals with it, that the Court of Appeal was aware that the two cases were deportation cases.
Lord Thomas of Gresford: In the light of the Lord Chancellor's reply, will he give us an unqualified undertaking that he will not seek a derogation in relation to Article 6?
Lord Falconer of Thoroton: We are not suggesting for one moment that we would seek a derogation from Article 6, and I give that assurance.
Lord Kingsland: There are two matters on which the noble and learned Lord touched. The first is in relation to the question asked by my noble friend Lord Forsyth. In my submission to the noble and learned Lord. there are at least two distinctions between the Scottish situation and our own. The first is that the rules in Scotland will be decided judicially and here they will derive from the noble and learned Lord—he might say quasi-judicially, but certainly not wholly judicially. Secondly, in Scotland, if those rules do not conform with Article 6, they will be struck down by the courts. In this country, the courts can only go as far as making a declaration of incompatibility.
The noble and learned Lord is whispering across a not very crowded Chamber.
Lord Falconer of Thoroton: Again, I would not regard the rules of court as being primary legislation. Therefore, it is not like Part 4 of the Act.
Lord Kingsland: Whichever way the noble and learned Lord looks at it, a court in this country will not strike down a procedure that is held to be contrary to Article 6. The furthest that it can go is to make a declaration of incompatibility.
On the long line of jurisprudence that the noble and learned Lord cited about Article 6 one thing is clear. In so far as the SIAC procedure has dealt with the deportation of aliens, or the incarceration of aliens because to deport them would breach Article 3 of the
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European Convention on Human Rights, it is clear that Article 6 rights do not apply to them because under the court system, civil rights are not in issue. In my submission, if our own courts looked at the application of Article 6 rights to British citizens— whatever else you can do with British citizens, you cannot deport them—I believe the answer would be wholly different.
Lord Fraser of Carmyllie: Is not my noble friend Lord Kingsland absolutely right about this? As I am sure the noble and learned Lord will recollect, when the Scotland Act 1998 was brought into force, one of the provisions in that statute was that the European Convention on Human Rights should be brought into force with immediate effect. The fact of the matter was that it was brought into effect in Scotland a year before it was brought into effect in the rest of the United Kingdom. In such circumstances, if my noble and learned friend Lord Cullen was dumb enough to introduce rules into the Court of Session which were in some respects not compliant with the European convention, other members of that court would strike them down. That must be the case. It is not a matter, as my noble friend Lord Kingsland says, that it might be compliant, or there could be some judgment of noncompliance; it has to comply under the law.
What I am struggling to understand is the noble and learned Lord the Lord Chancellor saying, "We can sort of do it in England and we shall try to ensure that it complies with the European convention". What we in Scotland are trying to be clear about concerns the absolute requirement in law that what is introduced in Scotland is compliant with the European Convention. There can be no doubt or grey area about that which the courts might sort out sooner or later.
I am surprised that the noble and learned Lord did not listen to what the noble and learned Lord, Lord Cullen, said in a most interesting intervention during the Constitutional Reform Bill when he pointed out, absolutely correctly, that there is no such thing as a decision of the House of Lords in its judicial capacity; there is a decision of the House of Lords in a Scottish case, or a decision of the House of Lords in an English or some other case. Lawyers are not that dumb. If there is a decision by the court in England in an English appeal by the House of Lords. it is to be expected. if they are going to be consistent, that they will come to much the same or exactly the same conclusion in Scotland. Nevertheless, there are two separate sets of appeals.
What is fascinating about this debate is that it underlines and highlights for the first time that we have a statute passed by this Parliament in 1998 which said. "You must secure compliance with the European Convention on Human Rights in Scotland". However, it does not say the same thing for England and the rest of the United Kingdom. That is what we are trying to tease from the noble and learned Lord, to understand exactly what the situation is.
Lord Falconer of Thoroton: I am grateful for the opportunity to clarify the matter. First, I accept

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entirely that rules promulgated by the Lord President must comply with the European convention and, if they do not, they can be struck down by the Court of Session or, indeed. by any other court that looked at them. Secondly, the rules promulgated by the Lord Chancellor, having consulted with the Lord Chief Justice, also have to comply with the European Convention because they are not primary legislation. It is not a question of whether or not a declaration of incompatibility is given. Short of primary legislation, a public authority in England and Wales cannot act incompatibly with the European convention.
I am sorry that I did not make it clear before—this is entirely my fault—that I agreed entirely with proposition number one and proposition number two. The third proposition that the noble and learned Lord, Lord Fraser of Carmyllie, made was that I should have listened to what the Lord President, the noble and learned Lord, Lord Cullen, said about there being no such thing as a decision of the House of Lords sitting in a judicial capacity. I say with great humility that I did listen to what the noble and learned Lord, Lord Cullen, said, and I agreed with him an amendment to the Constitutional Reform Bill that I then put before this House. This House agreed with it because it also listened to what the noble and learned Lord, Lord Cullen, said. I always listen to what the noble and learned Lord, Lord Cullen, says.
Lord Phillips of Sudbury: Has not the Committee slightly lost the track of this debate? Surely we should be talking about the merits of the rules that are ultimately put forward. All sorts of rules could be compliant with the European convention without commending themselves to this House or to any other House. I must confess that non-lawyers listening to this debate must wonder where we are getting to. Surely merit is what we are talking about, not the European convention.
7.45 p.m.
Lord Kingsland: I wholly agree with the noble Lord, Lord Phillips. That debate will take place later tonight. I promise that this will be the last time that I rise to my feet in the course of discussing this amendment. Will the noble and learned Lord the Lord Chancellor guarantee that out of all this we will find a set of rules which are the same in England, in Scotland and in Northern Ireland? It would be quite intolerable if the rights given to, or obligations imposed on, potential controllees differed from one part of the United Kingdom to another. Quite apart from whatever these rules are going to be, can I have the noble and learned Lord's assurance that they will all say the same thing?
Lord Falconer of Thoroton: Of course I cannot give that guarantee. Any noble Lord will know perfectly well that I cannot give that guarantee. Noble Lords will know that in Scotland there are procedures to deal with contempt which may lead to imprisonment, as is the case in England and Wales, and they have different
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rules. However, I do not suggest for one moment that either of those sets of different rules is unfair. Therefore, the answer is no.
Lord Kingsland: With great respect the noble and learned Lord knows exactly what I mean. It is true that each jurisdiction has its own special way of dealing with certain things procedurally. I was plainly referring to the substance of the rules and the substance of the protections that lie behind them. That is the guarantee that I seek. However, I think that the noble and learned Lord needs time for repose and reconsideration. Therefore, I shall not press him further. I shall simply beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I suggest that the Committee stage begins again not before 8.45 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Social Security Benefits Up-rating Order 2005
7.47 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)rose to move, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move that the draft Social Security Benefits Up-rating Order 2005 and the draft Guaranteed Minimum Pensions Increase Order 2005, which were laid before this House on 1 February, be approved. I am satisfied that both these instruments are compatible with the European Convention on Human Rights.
As your Lordships are aware, these draft orders are a routine annual event but nevertheless they are an important part of DWP business. The uprating order will, as usual, increase most benefits from April in line with the retail prices index for national insurance benefits and the Rossi index for income-related benefits.
For the 12 months ending in September the retail prices index rose by 3.1 per cent and, in the same period, the Rossi index rose by 1 per cent. The Guaranteed Minimum Pensions Increase Order sets out the amount by which contracted-out occupational pension schemes must increase members' guaranteed minimum pensions which accrued between 1988 and 1997.
Where the annual increase in the retail prices index exceeds 3 per cent, the guaranteed minimum pensions indexation requirement is capped at that level under the primary legislation. This year's order therefore

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provides for an increase of 3 per cent. The estimated cost of uprating benefits for 2005–06 is £2.92 billion. Of that, £2.1 billion goes to pensioners. Some £440 million is for disabled people and their carers, around £300 million is for working age people and £80 million is for children, of which £60 million is above inflation.
I shall first spend a moment on the subject of pensions. We continue to show our commitment to tackling pensioner poverty. In this order, we are again doing more for older people. We have kept to our guarantee to uprate the basic state pension by the higher of 2.5 per cent or the increase in RPI. Uprating this year is in line with the RPI at 3.1 per cent. This will give an increase of £2.45 to £82.05 per week for a single pensioner, and of £3.95 to £131.20 per week for a pensioner couple. Pensioners have seen a 7 per cent real terms increase in their state pensions as a result of previous above-inflation increases.
We continue to target our resources toward the poorest and the guarantee element of pension credit will increase by 3.8 per cent, in line with earnings. In April, the guarantee will rise from £105.45 to £109.45 a week for a single person, and will increase to £167.05 for a couple. This approach means that by 2008 there will be half a million fewer pensioners in poverty than there would have been if the guarantee had been uprated in line with prices.
The pension credit savings element threshold will increase in line with the basic state pension to £82.05 for a single person and £131.20 for a couple. This savings element ensures that people aged 65 and over who have been able to make modest provision for their income in retirement are rewarded. From April 2005, single people with an income up to £151, and couples with an income of up to £221, may qualify. There are now 2.65 million households—some 3.22 million individuals—receiving pension credit. Over 1.99 million pensioner households are receiving more money as a result of pension credit, gaining on average £17.46 a week. Pension credit is helping over 2.14 million older women, who form around two thirds of the total beneficiaries.
To help older pensioners with living expenses, including council tax bills, there will be an age-related payment of £50 made with winter fuel payments for 2005–06 to households with someone aged 70 or over. Between 1996–97 and 2002–03, the poorest pensioners have seen their incomes grow at similar rates to the richest pensioners. The incomes of the poorest fifth of pensioner couples have grown by 14 per cent, while the richest fifth saw their incomes grow by 11 per cent.
We will be spending £10 billion extra on pensioners in 2005–06 compared to the 1997 system. Around half of this—£5 billion—will go to the poorest third of pensioners. In 2005–06, pensioner households will be an average of £1,350 per year—about £26 a week—better off as a result of our tax and benefit policies than they would have been under the old 1997 system. The poorest third of pensioners will be £1,900 per year better off on average.
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Let me now turn to children and families. To support parents, standard rate statutory maternity pay and maternity allowance will increase from £102.80 to £106.00. By 2007, the maximum maternity pay and child benefits for mothers at home with their first baby will have risen by £5,000 in real terms since 1997. Non-dependant deductions in income-related benefits have again been frozen. This illustrates our constructive response to criticism that they were too high, and will benefit around 190,000 claimants.
Our fight against child poverty continues. Families receiving income support and jobseeker's allowance will continue to benefit from the increased generosity in child tax credits. The child element of the child tax credit will increase to £1,690 a year in April 2005. This is an increase of £245 since its introduction in 2003, and is £65 above this year's rate. It will benefit over 7 million children in almost 4 million families.
Child allowance will increase from £42.27 to £43.88 and the disabled child premium, which is in addition, will also increase from £42.49 to £43.89. The enhanced disability premium for a child will increase from £17.08 to £17.71.
By 2005–06, total spending on financial support for children will have gone up by over £10 billion in real terms since 1997. Families with children will be, on average, £1,300 a year better off as a result of Government reforms in the tax and benefit systems since 1997. The poorest fifth will be £3,000 a year better off. I am sure that noble Lords will agree that that is significant progress.
In speaking to this uprating order, I have concentrated on the financial situations of pensioners and children. I have not spoken about disabled people because we have only recently completed the Disability Discrimination Bill and I thought that it was more useful to refer to the other groups in our society who have not recently had your Lordships' attention. I hope that your Lordships will welcome the good news in the uprating order and will accept it tonight. I commend the orders to the House.
Moved, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].—(Baroness Hollis. of Heigham.)
Lord Higgins: My Lords, the pattern of debates in this House in the past few days has become fairly consistent. The noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor discuss crucial matters of terrorism, life and death. imprisonment without trial, the Human Rights Act and so on but every so often there is a break—at lunchtime or dinnertime—when the Minister, the noble Lord, Lord Oakeshott, and I come into our own. Indeed, on occasion it has been rather useful because they have managed to work out what on earth is happening about the other Bill. I find the way in which the Government are proceeding in that matter, and the shambles that the procedure has become from time to time, to be of the gravest concern.
Having said that, one must recognise that the orders that we are debating this evening will have an immediate effect on millions of people, whereas the

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other measure, about which I express grave concern, deals with a comparatively small number of people. Clearly, they are both of great importance but one needs to keep what we are debating tonight in perspective, though I regard the implications of the other matter as fundamental to our way of life.
As the Minister has pointed out, this is an annual festival. It is normal for this matter to debated in a wide context, although this evening the Minister has constrained herself within the narrow limits of the orders. Traditionally, the debate has been very broad.
I thought I ought to look up what the Minister said when I first engaged in these annual debates. I think this is the seventh or eighth debate we have had on this matter. But, inadvertently, I found the debate when the Minister was still in opposition. Interestingly, she said:
"As a way of capping budget, the Government have tried to target benefit on those financially most in need. And because the Minister and his department did not get their heads around the problem, the Government targeted that budget in the simpleminded way of extending means testing at the expense of insurance-based budget benefits".—[Official Report, 20/2/1997; col. 848.]
Well, I suppose one can change one's mind. Certainly, events since then have not been out of line with the approach that that government were taking.
Given that this is a broad-ranging debate, the Minister rather surprisingly did not refer to the Turner report. One of the many interesting comments made by Turner is:
"The UK pension system appeared in the past to work well because one of the least generous state pension systems in the developed world was complemented by the most developed system of voluntary private funded pensions".
But, tragically, that balance has been wrecked. I think that that is the right way of putting it. In significant measure, that was done by the action taken by pension funds following the Chancellor's action on ACT, in conjunction with the concerns that finance directors then had with regard to FRS17. The result is that membership of final salary schemes has halved since 2000. That balance has been wrecked.
Alongside that, we have had the take-over of matters by the Chancellor and the Treasury, who are obsessed with tax credits, although, as we well know, the take-up of tax credits has been very disappointing. This has taken place against a background of three Secretaries of State who might reasonably be regarded as compliant. I therefore take heart from the fact that the present Secretary of State seems to be adopting a rather more independent line on those matters. One might almost say that the Chancellor of the Exchequer and the Treasury are heretical in these matters. A collection should be made of the various statements made by Mr Alan Johnson in the pensions debate on 13 October.
The noble Baroness held forth about the virtues of pension credit. But on 13 October the present Secretary of State said that there were no such plans to continue it indefinitely. At the ABI conference he said that he would be crazy to say pensions credit does not act as some disincentive to savings to some people. On
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13 October he also said that we should not be talking in euphemisms—it is a means test. The hallmark of the Government's policy has been to move more and more towards means testing.
The noble Baroness quoted some figures for pensions credit. They may be more up to date than the ones I had but no doubt she can correct me if I am out of date. Some 3.75 million people are entitled to pensions credit and 2.65 million appear to have taken it up. So it looks as though 1.63 million of those entitled to it have not taken it up. That is a pretty appalling level of take-up for what is intended to be a comprehensive measure.
The noble Baroness has rightly pointed out that uprating is in line with prices and not earnings. This year we have not had an increase of 75p on the pension as a result of the uprating as we had on a previous occasion. I suspect that that is still in the back of pensioners' minds. The extent of the increase seems to have depended considerably on whether an election was thought to be in the offing or not.
I would like to raise one point on the specific notification to individuals. The notification that is going out to pensioners does not say what the increase is—either as a percentage or a quantity. That is rather strange in a pre-election period.
I have in front of me one such notification which has come my way. It does not say that there is an increase of so much or that this will mean your benefits will increase by so much. Clearly the Government have missed out on an electoral opportunity in doing this. It would be helpful in future if people were told what their benefit is currently and what it will be in the future—assuming that the department computer can cope with this which, given our experience of it, may not be the case.
It would be hard for pensioners to work out whether the statements that are being put through their letterboxes are right or not. For example, at the end of a long list of items it suddenly states, "age addition nil". Most pensioners—particularly elderly ones over 70—would find that hard. The noble Baroness will be able to say that that is the same form which came out under the previous Conservative government and probably the Labour government before that. I was struck by this matter the other day.
I am going on much longer than I intended. The noble Baroness said nothing at all about GMP uprating.
Baroness Hollis of Heigham: I gave the noble Lord four sentences on this matter. But I agree that was a modest amount.
Lord Higgins: We appreciate the four sentences.
I am puzzled about GMP. It only affects accrued rights up to 1997 and not thereafter. Is anybody affected by this GMP uprating? Ahead of 1997, I suspect that most firms who were giving pensions did not give the GMP at that time, they were probably giving significantly above it. Can the noble Baroness tell us whether anyone is affected by this order? Were

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the ones pre-1997 all uprated more than GMP and since 1997—when we do not have a GMP—a number of companies have totally failed to make a guaranteed minimum pension because they have gone bust. It is proposed that we should go towards a more scheme-related system of solvency assessment. But this order may have no impact on anyone in the real world.
I am conscious of the time so I will make only one other point. The Government are sending out letters about the financial assistance scheme. To my surprise, they are still saying that they will provide £400 million with the possibility of further contributions from industry. That £400 million is over 20 years. We discussed the issue of contributions from industry when we debated the Pensions Bill. Can the noble Baroness tell us whether any part of industry has decided to make any further contributions? I suspect that they have not.
The letter which is sent out gives hope to people who anticipate getting some of their pension made up by the financial assistance scheme in cases where their company has gone bust. I have received a number of letters pointing that out. A pensioner who was with the Albert Fisher Group says that the situation constantly blows hot and cold. They hope they are going to get something but it will not be for a long while. There is £400 million available but they have no idea if they are eligible—and what does that figure mean given the large number of people who are expected to be covered by what we have always said is clearly an inadequate amount? I hope that the noble Baroness will give us up to date news on the financial assistance scheme.
Instead of putting forward specific proposals on reform, the Government are waiting for the Turner report. Interestingly, it has always been clear that the second report of the Turner commission—which would recommend what might be done—is not going to happen until after the election.
So the Government appear to have no strategic view. Yet, with the exception of the Chancellor of the Exchequer, a clear consensus is emerging that it is important to raise the basic state pension and reduce the number of people on means-tested benefits. We propose to do that. We think it is the right way to tackle the problem. There is an almost universal view outside this House that that should happen, but it is not implemented by the proposals before us this evening.
Lord Oakeshott of Seagrove Bay: My Lords, I feel at some disadvantage in the debate compared with the noble Lord, Lord Higgins, who has received his pension up-rating, very properly looked at it and seen what he has seen. I do not yet receive a pension, but I am sympathetic to the point. It irritates me greatly when I get my car or house insurance renewal and it does not give the previous year's figure and one has to look in one's records. So, in principle, that sounds like a good idea and a good request.
I have two or three separate points and questions tonight. I shall deal first with indexation and the points which we discussed in Grand Committee a few days
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ago on the indexation of FAS and the PPF. The noble Baroness was kind enough to respond to the questions I raised and in particular to my surprise at the Secretary of State's remark that many financial assistance schemes are not index linked. I am bound to say that the reply confirms my surprise at his original remark. It shows that 77 per cent of active members in DB schemes in 1995 were accruing rights with some pre–1997 indexation.
I shall summarise the reply and hope that the noble Baroness will confirm that I am right. Effectively, it says that it would cost too much to look in and check up on indexation rights accrued since 1997 and pay them. That is not at all the same. I hope that the Minister will accept that and correct the Secretary of State's statement that any scheme would not have been index-linked at all.
On the FAS specifically, does the Minister agree with the assessment by that doughty campaigner for the dispossessed, Dr Ros Altmann, that the effect of this permanent non-indexation of pensions to be paid under the FAS would for some mean a cut of up to half of the total money they receive over their retirement?
I turn now to the question of the citizen's pension, a matter which the noble Lord has already raised. I am struck by the growing consensus regarding the words used by Dr Lynne Jones in the Commons debate on these orders. She said that she had just been to a Pensions Policy Institute meeting and would prefer it if we had a citizen's pension entitlement for all pensioners at £105 per week, which obviously would now be £109.45 per week. It seems to me that this is an idea whose time has come. There is a rapidly growing tide of support for it in the pensions and the political world, but that means nothing until it actually sweeps away the bolted and barred doors of the Treasury.
I say to the noble Lord, Lord Higgins, and Members on his Benches that ill principle we welcome the move towards support of this scheme. Again, it really does not mean very much if pension credit is going to be linked to earnings under the proposal and if the basic state pension at more or less this level is going to be linked to earnings as well. That means that it will be a very long time before the effect of the rises enables pensioners to be taken off pension credit. While we support the principle, we hope the money will be found to move forward faster on that.
Lord Higgins: My Lords, I am most grateful to the noble Lord. On his proposal for a citizen's pension, would that effectively mean the end of the contribution principle? If so, does he think that after the change those who have contributed should get more than those who have not?
Lord Oakeshott of Seagrove Bay: My Lords, I am happy quickly to clarify that. Yes, it does mean the end of the contribution principle. However, people will all receive the same regardless of whether they have contributed.
I shall summarise the other issue, on which I shall end. Putting the matter in a slightly wider context, I should like to remind the House and indeed the

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Government of the power of pensioners today. They are the fastest growing and keenest voting age group. As recently as 1992, a quarter of votes were cast by pensioners. Their turnout was similar to that of other groups.
Last time 35 per cent of votes were cast by pensioners because 70 per cent of them voted compared with 55 per cent for the rest of the population. If you add in the over-55 year-olds—the pension generation, if you like—half the votes in the coming election will be cast by pensioners. Women, who will be in the majority, will be effectively moved in giving their verdict by the muddle and mess of the Government's pensions policy.
To end on a positive note, as I look at the Box and the Front Bench, it is refreshing to see the entire government and official position represented by women.
8.15 p.m.
Baroness Hollis of Heigham: My Lords, that was an unexpectedly generous tribute from the noble Lord, Lord Oakeshott, which was very nice indeed.
Your Lordships have been brief, so I shall try to be, too. I shall take the points as they were raised. The noble Lord, Lord Higgins, asked about waiting for Turner and he gave his usual critique on the failure of the Government, given ACT—of course. it had nothing to do with ACT—and what he would regard as the £5 million, which actually cost us £3.5 billion, withdrawal of dividend tax credit from pension schemes as responsible, along with FRS 17, for the collapse of DB schemes. The noble Lord knows that that is nonsense.
I do not doubt that pension companies would be financially better off were they to continue to have that £3.5 billion, which represents that they got double payments on top of reclaims on tax paid. The reason why DB schemes failed to continue as expected was to do with the stock market collapse. As a result, the yawning deficits that opened up were compounded by the fact that even as late as 2001–02 many companies were still continuing to take contribution holidays. That is the core of it—that, and the failure of actuaries properly to predict what we now know are more robust longevity figures.
The combination of under-funding, stock market collapse and underestimated longevity produced a structural problem for DB schemes that will take time to remedy, but which may, as the stock market recovers, help to float some of those companies into a better situation. Certainly, the latest figures suggest that there is no longer the flight from DB schemes, but that is not to say that many of them will not continue to struggle until, if, or when the stock market possibly floats them off.
To blame it on a government policy that sought to rectify a tax distortion, while at the same time reduce corporation tax to about the lowest in Europe—about 30p in the pound—is a political point that does not gain in relevance or acuteness the more it is repeated. It is simply daft. We know what collapsed DB schemes, and that was not a significant element.
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On the more substantive points, the first being basically a debating point, such as pension credit, means testing, and so on, the noble Lord was right to press me about the number of people claiming. As suspected, his figures are a little out of date but not by much. The latest figures I have are that 3.2 million pensioners are claiming pension credit. We cannot he absolutely sure how many people are entitled but not claiming, but our best estimate is that possibly 1.7 million may be in that position. Many of those 1.7 million will be failing to claim very small sums of money. They were part of the wave of people who were brought in when pension credit was made more generous, and are at that end of the wave on the beach.
The significant point is that 3.2 million people are claiming, and it has transformed their living standards. As for the dig about what has been happening to means testing, I am sure that the noble Lord would like to know that in 1994–95, 38 per cent of pensioner households were on income-related benefits, and in 2002–03, the latest figure is 32 per cent. Under this Administration the percentage of pensioner households on income-related benefits, including pension credit, has fallen, even though we have made pension credit more generous, thus bringing in more people. That should be acknowledged.
Some of the earlier claims of pensioners to income-related benefits were in terms of their dire poverty, but we are now seeing that with pension credit—in particular, the pension-savings credit—there is an increase in comfort. People no longer see a pound for pound withdrawal of their savings because they are no better off than were they on income support.
On the point about forms, I shall review that matter. The noble Lord is right that it does not say that. The noble Lord, Lord Oakeshott, also confirmed that. It is a fair point and I shall see whether there is anything that we can or should do about that, so that people know what the old figure was. People who kept last year's paper will know, but I agree with the noble Lord.
Lord Higgins: My Lords, can the noble Baroness remind us what the qualification is for the age addition?
Baroness Hollis of Heigham: My Lords, it is over 80. It is the measly sum of 25p a week. In my view, it should have been rolled in with other payments long ago.
On the GMP figure, I do not know any better than the noble Lord, Lord Oakeshott, how many companies were affected. It ensures that companies that produced contracted-out schemes before 1997 could contract out only if a portion of that scheme—we will call it GMP—matched the level of benefit that someone would have got in SERPS. The core aim was to ensure that, by contracting out, people did not find themselves inadvertently in a misselling situation in which they would have been better off remaining contracted in. That was the point of it, hence the increase. I cannot give the noble Lord the figures for

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how many people would have been covered by that. I shall see whether they are available; if so, I shall write to both noble Lords.
Lord Higgins: My Lords, how many are covered by it? This order actually increases the amount.
Baroness Hollis of Heigham: Yes, my Lords, but the noble Lord asked how many people this would apply to. Obviously it is a matter for companies. I shall see whether I can find him that information.
The noble Lord, Lord Higgins, is right that FAS involves £400 million over 20 years. As he suspected, there have been no contributions from industry. I hope that that will change, but my understanding is that so far it has not.
As for giving false hopes, we are already, through a Statement to the House—I did my best to ensure that the noble Lords, Lord Higgins and Lord Oakeshott, had a copy—beginning to establish the contours of FAS, such as de minimus, a cap and so on. We have made clear that, as a result, we expect to be able to protect pensioners and those within three years of their scheme retirement age with a figure from FAS that will ensure that their pensions are 80 per cent of the full amount. Obviously it is less generous than under the PPF but it is none the less a substantial form of protection assistance given that the Government have no legal obligation—but, in my view, possibly a moral obligation—to help. We expect in three years' time to review the appropriateness and adequacy of funding and the reach of FAS.
Lord Higgins: My Lords, a lot of concern is expressed by people affected by something that the noble Baroness has not mentioned: the fact that the amount is to be capped, even for those in the period immediately up to retirement.
Baroness Hollis of Heigham: My Lords, money is tight. It seems not unreasonable that FAS is capped at £12,500, which represents a 50 per cent pension before things such as entitlement to S2P, SERPS or the basic state pension are included. That represents a 50 per cent replacement income on average earnings. If money is tight, as it is, it does not seem necessarily appropriate, as the Secretary of State put it, that we should increase the money for those much better off—first, for those who are possibly in a position to make savings for themselves, and, secondly, for the particularly well off, who frankly may have contributed to the failure of their scheme. If money is tight, as it clearly is under FAS, it is reasonable, first, not to have indexation, because if you index you reduce the amount of money available now, and secondly, to cap it at what would be effectively a replacement income of around 50 per cent of average earnings and 80 per cent of what your pension would have been at that point.
On top of that there is the basic state pension and in some cases SERPS or S2P moneys. That should produce on average, up to average or possibly slightly above that, replacement rates of 60 per cent or so—50 to 60 per cent when you take into account the
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80 per cent cap. I do not think that that is ungenerous. I wish that it could be more but we are dealing with a situation of tight finances.
We have two considerations on indexation. First, some schemes that we are covering have indexation and others do not, and there is a question about whether we should treat schemes even-handedly. Secondly, there is a cost constraint. The noble Lord, Lord Oakeshott, picked up the point from Dr Ros Altmann about inflation cutting the value of pensions in half over members' lifetime. That depends on what you assume the level of inflation to be. It is certainly true that, during the previous administration under the Tories, had inflation been running at something like 15 per cent, then it would have halved the value of that pension in nine years. If inflation was running at about 10 per cent, it would have halved the value of that pension within about 14 years. If inflation was running at about 2 to 3 per cent, it would have halved in value over about 29 to 30 years.
There are obviously implications for the reduction in its real value if it is not indexed. Yet, as I am sure the noble Lord is well aware, what happens in DC schemes—when people take annuities, up to age 75—is that not only do three-quarters of them go for single life, nearly all of them go for flat rate. They do so, understandably, because they prefer the money up front. In that sense, FAS is making that same decision. Had we gone for indexation, there would have been less up front in order to have produced an inflation-proofed increase later on. FAS is thus operating in exactly the same culture and climate as nearly all of those who have to turn their DC money pots into an annuity. They choose a level scheme.
Lord Oakeshott of Seagrove Bay: My Lords, I agree with the noble Baroness that the principle of capping benefits is right, in a situation where money is clearly tight. However, there was no need to make a cheap political point, at the Conservatives' expense, as to what she might think the rates of inflation would be. The noble Baroness and I will both remember well that under a Labour government, in the 1970s, inflation actually reached nearly 30 per cent. It would be better not to be political with such a long-term thing.
If someone is on a modest pension—of £6,000, or £8,000, or £10,000—being paid by the FAS, over 20 or 30 years it is a serious cut in that pension. The argument for not indexing at all is not nearly as strong as the argument for a cap.
Baroness Hollis of Heigham: My Lords, I accept the point and I have not tried to challenge in any way the contention that if you fail to index, depending on the rate of inflation, the value over time will diminish in real terms. While I do not want to make a cheap point about open purses, the point is that if you were to index within the same financial envelope at around 2.5 per cent instead of going for 80 per cent, you would almost certainly have to opt for a substantially lower figure. I cannot do the sums in my head, but it could be as low as 60 per cent. I do not know, but it would be of that order.

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When people who are annuitising their money purchase pots make the decision, they choose to go for level rather than an inflation increase. All I am saying is that they make such choices and it is the choice the Government have made. It is not wrong. Basically, you are taking a punt on both inflation and longevity. It means that if we had produced a lower level of FAS in order to provide indexation protection, those who do not enjoy relative longevity and die before they reach the age of 80 would be much worse off. I suspect that the crossover point would not be reached until the age of about 85. As I have said, this is not the choice that other people make.
We are dealing with a financial envelope and, given the financial constraints, this seems to be the right decision. As a result the poorest in our society with the shortest life expectancy receive more money than they would have done if they had taken a punt on longevity and therefore the need to protect against it through inflation proofing. We may disagree about it and I can see the arguments on both sides. It is an honourable dilemma. On balance, however, I think that the Government have it right.
The noble Lord. Lord Oakeshott, went on to talk about the citizen's pension of £109. He was absolutely right to criticise the Tory policy of having an earnings-linked basic state pension while pension credit would be largely linked to RPI. It would mean that the poorest among us, mostly women, would see their standard of living fall back relative to earnings while men qualifying for the full basic state pension would see their incomes increase. I cannot think that such a whammy on women is something that the noble Lord, Lord Higgins, in his more contemplative moments, would wish to support. Perhaps I may say that I think it is a profound mistake on the part of the Conservative Front Benches.
The problem with the proposition set out by the noble Lord, Lord Oakeshott, for a citizen's pension of £109 per week is that in order to keep it within reasonable cost constraints, it presumes the rolling into the basic state pension of S2P. That would be the only way you could afford to fund a basic state pension of £109 per week across the board.
Lord Oakeshott of Seagrove Bay: My Lords, that is not the position. We have made it quite clear that we would finance the citizen's pension by making savings in government expenditure elsewhere. We would not find the money from the state second pension.
Baroness Hollis of Heigham: My Lords, I shall not develop the argument any further, but while I am sure that the noble Lord is no party to it, I think that this is Alice in Wonderland finance. Certainly, outside of this House, the usual suggestion made by organisations considering the financing of the £109 basic citizen's pension is to roll S2P into it. The result of that would be the effective end of contracting out for DB schemes, which in turn would destabilise them. So there are real problems about how to pay for such a pension without ending S2P, offsetting that with the end of contracting out for DB schemes and thus further destabilising final salary pensions.
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The noble Lord has reminded us, as if anyone needed reminding of it, that the pensioner vote is 35 per cent, of which around 70 per cent are women. That is right, but that did not lie behind government policies. Over the past few years this Government have introduced pension credit, of whom three-quarters of the recipients are women; they have introduced stakeholders, a very considerable number of whom are women; and have introduced the state second pension which ensures that even if you earn only £5,000 or £6,000 a year, you receive a state second pension as though you were earning £11,600 a year. Again, the bulk of those beneficiaries are women.
Throughout our policies we have sought to address the problems of poverty among women pensioners today. I hope that we can achieve consensus on trying to ensure that the poverty currently faced by so many women pensioners is now being successfully overcome for the first time. The Institute for Fiscal Studies has said that if two people are considered at random, one of whom is a pensioner and the other not, the pensioner is no more likely to be poor than the other person. We have made huge strides, but we have to ensure that the problems of poverty faced by women pensioners over the past 10, 20, 30 and 40 years will not recur in the future. Part of that is ensuring that women can enter the labour market and build up a pension. Another part is to encourage the building up of a good second pension. A further part is to ensure that the basic pension is reviewed to ensure that it works fairly for women as well. I hope that, with those remarks, noble Lords will feel able to accept the orders before us.
On Question, Motion agreed to.

Guaranteed Minimum Pensions Increase Order 2005
Baroness Hollis of Heighamrose to move, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].
Moved, That the draft order laid before the House on 1 February be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
On Question, Motion agreed to.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure until 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended. from 8.33 to 8.45 p.m.]

Prevention of Terrorism Bill
House again in Committee on Clause 7.
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Falconer of Thoroton: Clause 7 still has, for example, the test on what happens with a non-derogating order. Even with the amendments made

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earlier in the day, the order has to be made by the judge in the first instance, but there is still a test to be satisfied when it comes back on appeal. There are issues about whether you want to amend that, but without Clause 7 there are no principles to be applied.
I would respectfully submit, without in any way precluding people from coming back for further amendments on Report, the right thing is that Clause 7 should stand part of the Bill.
Lord Kingsland: As I understand it, we now have a common procedure for considering both derogating and non-derogating orders—initiated by a judge and involving consideration of the issues thereafter on their merits. That cuts out the core of Clause 7, which is the procedure already initiated by the Secretary of State and that might then be considered by the system of judicial review. That, surely, has all gone.
Lord Falconer of Thoroton: May I make the following suggestion? The right thing for us to do is to look closely at the effect of the amendments voted by the Committee earlier in the day. We will then bring forward the appropriate amendments on Clause 7.
I am anxious about not agreeing to Clause 7 at this stage. We will loyally give effect to the decisions that the Committee made, without prejudice to our ability to seek different changes to the Bill in the other place.
I would be very anxious if Clause 7 did not form part of the Bill. In light of my undertaking to give effect to the votes, to tidy it up accordingly, I respectfully submit that the right course is that Clause 7 stand part of the Bill.
Lord Goodhart: I think that we may well put down an amendment to leave out Clause 7, on that basis. Perhaps we could leave it in for the moment. I find it very difficult to see, because it is all about flawed decisions by the Secretary of State. They would be gone.
Lord Kingsland: I share the view of the noble Lord, Lord Goodhart. It seems to me as well that it is very difficult to put one's finger on what survives from Clause 7.
However, the noble and learned Lord has undertaken to remove anything from Clause 7 that is inconsistent with previous votes. That is without prejudice to what might occur in another place. On that undertaking, I am prepared on behalf of my opposition team and of all members of the Opposition who sit behind me to allow Clause 7 to go through.
It may well be, from the point of view of belt and braces, that we should adopt the suggestion of the noble Lord, Lord Goodhart, to table an amendment excluding Clause 7 and see what the Government come up with tomorrow.
Lord Clinton-Davis: Before the noble Lord gives way, will he speak up, please?
Clause 7, as amended, agreed to.
Clause 8 [Appeals relating to derogating control orders]:
[Amendments Nos. 139 and 140 not moved.]
Clause 8 agreed to.
Clause 9 [Jurisdiction and appeals in relation to control order decisions etc.]:
[Amendments Nos. 141 to 143 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 144:
Page 10, line 28, leave out subsection (4).
On Question, amendment agreed to.
[Amendment No. 145 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 146:
Page 10, line 34, leave out paragraphs (a) to (c) and insert—
"( ) proceedings on an application to the court by any person for the making, renewal, modification or revocation of a derogating control order;
( ) proceedings on an application to extend the detention of a person under section (Arrest and detention pending derogating control order);
( ) proceedings at or in connection with a hearing to determine whether to confirm a derogating control order (with or without modifications);
( ) proceedings on an appeal under section 7;"
On Question, amendment agreed to.
The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before calling Amendment No. 147, I should inform the Committee that I shall not be able to call Amendment No. 148 if that were to be carried for reason of pre-emption.
Lord Thomas of Gresfordhad given notice of his intention to move Amendment No. 147:
Page 10, line 34, leave out paragraphs (a) to (f) and insert "any proceedings in court for the making, renewing, modification, revocation or questioning of a control order"
The noble Lord said: The purpose of the amendment is to try to tidy matters up and make them understandable. Paragraphs (a) to (f) define control proceedings by references to various other clauses, some of which we have already removed—for example, Clause 2. It seems to me that the simplest thing to do is to tie it all up as,
"any proceedings in court for the making. renewing, modification, revocation or questioning of a control order".
I do not think I have left anything out of subsection (6) by the amendment.
The Deputy Chairman of Committees: I apologise. Amendments Nos. 147 and 147A were pre-empted by the acceptance of Amendment No. 146.
[Amendments Nos. 147 and 147A not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 148:
Page 10. line 39, leave out "or derogation matter" and insert ", a derogation matter or the arrest or detention of a person under section (Arrest and detention pending derogating control order)";.
The noble and learned Lord said: Amendment No. 148 is a consequence of inserting the arrest power by Amendment No. 91, to which my noble friend Lady Scotland has already spoken. I beg to move.
On Question, amendment agreed to.
[Amendment No. 148A not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 149:
Page 11, line 1, leave out "Secretary of State" and insert "court"
On Question, amendment agreed to.
[Amendments No.s. 150 to 153 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 154:
Page 11, line 14, after "order" insert "or of his arrest or detention under section (Arrest and detention pending derogating control order)";.
The noble and learned Lord said: Amendment No. 154 is consequential on the arrest and detention clause put in by Amendment No. 91. I beg to move.
On Question, amendment agreed to.
Clause 9, as amended, agreed to.
Clause 10 [Effect of court's decisions on convictions]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 155 and 156:
Page 12, line 8, leave out ", but does not require leave" and insert "for which leave has been granted"
Page 12, line 17, leave out "does not require leave under any provision of" and insert "is to be treated as an appeal for which leave has been granted under"
The noble and learned Lord said: The amendments are consequential on amendments that have already been made. I beg to move.
On Question, amendments, agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Reporting and review]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 157:
Page 13, line 14, leave out "make, renew, modify and revoke" and insert "make application to the court for the making, renewing, modification and revoking of"
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 158:
Page 13, line 14, at end insert "and
(b) his powers to apply to the court for the making, renewal, revocation or modification of derogating control orders;"
The noble and learned Lord said: The amendment is consequential. I beg to move.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [General interpretation]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 159:
Page 13, line 34, at end insert—
""control order" has the meaning given by section 1(1A)"
The noble and learned Lord said: The amendment is consequential on the amendment made on Thursday redefining control orders. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 160 and 161 not moved]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 162 and 163:
Page 14, line 1, leave out "a derogating obligation" and insert "obligations that are or include derogating obligations"
Page 14, line 3, leave out from "obligation"" to end of line 4 and insert ", "designated derogation" and "designation order" have the meanings given by section 1(8A)"
The noble and learned Lord said: The amendments are consequential on amendments made earlier. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 164 not moved.]
Lord Falconer of Thorotonhad given notice of his intention to move Amendment No. 165:
Page 14, line 10, leave out from second "order" to end of line 11 and insert "made by the Secretary of State"
The noble and learned Lord said: I shall not move Amendment No. 165 as it is incompatible with amendments that have already been made.
[Amendment No. 165 not moved.]
The Deputy Chairman of Committees: I call Amendment No. 166.
Lord Falconer of Thoroton: I shall move that amendment as it is consequential.
Lord Goodhart: Amendment No. 166 contains provisions which are incompatible with what has now been decided because the Secretary of State no longer has a power to revoke a control order or modify the obligations.
Lord Falconer of Thoroton: In that case I shall not move the amendment.
[Amendment No. 166 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 167:
Page 14, line 37, leave out subsection (3).
The noble Lord said: The amendment is consequential. I beg to move.
Lord Falconer of Thoroton: I do not think that the amendment is consequential on anything that has

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come before. If the noble Lord could describe how it is consequential I have no doubt that we would easily be persuaded.
Lord Kingsland: It is the court that is now going to make the control order, so it is a matter for the court to consider an application by a controlled person for revocation or modification.
Lord Falconer of Thoroton: I think we will have to change what we consented to.
Lord Kingsland: Perhaps the noble and learned Lord could explain what he means.
Lord Falconer of Thoroton: If the parties agree, for example, that the control order would be discharged, would it be necessary to go back to court?
9 P.m.
Lord Kingsland: It is true that it would not be necessary to go back to court, but this is a much more limited interpretation of the paragraph than was intended by the draftsman of the Bill.
Lord Clinton-Davis: Would it help if the noble and learned Lord the Lord Chancellor were to consider this matter in the light of what has already happened?
Lord Goodhart: It appears to me that it is consequential because the failure by the Secretary of State to consider an application necessarily seems to imply a situation in which it is the duty of the Secretary of State to decide whether such an application should be allowed. I do not believe that it can reasonably be interpreted as referring to a case in which the subject of the order says, "I am applying for revocation of the order; are you going to agree with me or are you going to contest it?". That cannot possibly be a reasonable interpretation of subsection (3), therefore it is clearly consequential.
Lord Falconer of Thoroton: I agree. Having listened to what the noble Lords, Lord Goodhart, Lord Kingsland and Lord Clinton-Davis, have said, I am persuaded that they are plainly right and I am plainly wrong. Therefore, I agree that it is consequential. I apologise for taking up three minutes of the Committee's time.
On Question, amendment agreed to.
Clause 12, as amended, agreed to.
[Amendment No. 168 not moved.]
Clause 13 agreed to.
Lord Kingsland Lord Kingsland moved Amendment No. 169:
After Clause 13, insert the following new clause—
"REVIEW OF ACT

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

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

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

(a) the Prime Minister;

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

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

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

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

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

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

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

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

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

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

The noble Lord said: We on the Opposition Benches consider this to be an extremely important amendment. It proposes the establishment of a committee by the Secretary of State to review the operation of the Act after a certain period of time has elapsed. Quite properly for a matter dealing with national security, the members of the review committee should comprise only Privy Counsellors. We suggest that the ideal number would be five: one nominated by the Prime Minister, one by the Leader of the Opposition, one by the Leader of the Liberal Democrats, one by the Convenor of the CrossBenchers in the House of Lords and one by the Lord Chief Justice of England and Wales.
In our submission, the Secretary of State should be prohibited from refusing any nomination made by those designated nominators. The committee should complete its review swiftly and send a report to the Secretary of State within a matter of a few months. A copy of the report should be laid before Parliament as soon as is reasonably practicable.
Two aspects of the Bill give us particular cause for concern. First, the speed with which it has been making its way through Parliament has meant that full and proper consideration has not been given to it. Secondly, it affects the most fundamental rights of our citizens. For the first time in our history, it questions the right of an individual, having been detained, to be tried by his peers. For those two reasons, it seems to us wholly appropriate that a mechanism of the nature we suggest should he established. It is a necessary security for the support and protection of fundamental liberties in the country. I beg to move.
Lord Thomas of Gresford: We support the concept of a review. It is the drafting to which we on these Benches take exception, because, with an arrogance not unknown on the Benches near to us, the Government have assumed in subsection (3) that neither the Prime Minister nor the Leader of the Opposition will be the leader of the Liberal Democrats. It is our entire purpose to ensure that, in the coming general election which everyone

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seems to be talking about, the right honourable Charles Kennedy will occupy position (a) on that list. In those circumstances, we do not particularly care who is in position (b).
With a bit of drafting, I have no doubt that we will be able to come to an agreement with the Opposition.
Lord Clinton-Davis: The noble Lord is being a little optimistic.
The noble Lord, Lord Kingsland, has spoken of the speed with which this part of the Bill is being considered. I entirely agree with the notion of a review, but I am not convinced by subsection (3), which is also misconceived. For that reason, this sunset clause should be taken away and reconsidered.
The Earl of Onslow: The point made by the noble Lord, Lord Thomas of Gresford, is perfectly reasonable. He would be more likely to achieve his object if the leader of the Liberal Democrats had bothered to vote on this Bill in the Commons. As we are going round making little party political jokes, I could not resist that one.
We must have a review. I suggest that, especially with a sunset clause, a review of the Act should be put in as well. Then, when this Bill dies and goes to the crematorium, as I hope it will, a body of intelligent opinion will have seen some of the details and difficulties faced by the security authorities, and the Government—whoever they may be after 5 May—will be in a better position to produce a proper, well thought-out Bill to deal with the problems we appear to face.
Lord Clinton-Davis: I wrongly referred to the provision as a "sunset clause". I apologise for that.
The Government have to think again about this. It is quite impossible that the provisions that have suddenly been thought of should appear in the Bill. For that reason, we ought to think again about the situation.
Lord Lloyd of Berwick: As the last reviewer of terrorist legislation, appointed by the then Secretary of State for Northern Ireland, the noble and learned Lord, Lord Mayhew, I entirely support the suggestion of a new review to replace mine of 10 years ago.
Clearly, the Bill should, and could, have been subject to pre-legislative scrutiny. As it was not, it should certainly be subject to post-legislative review. I support the amendment.
Lord Crickhowell: So far, I have not taken part in any of the debates on this Bill. I am prompted to do so because I believe this is of extreme importance.
I sat through a large part of our debate last Thursday. I hope the noble and learned Lord the Lord Chancellor will not take it amiss if I say he put up a brilliant batting performance on an extremely sticky wicket. Today, however, he was faced with the problem that his colleagues in another place had decided that there should be no more concessions, and
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he had to defend a position that became increasingly indefensible as the debate wore on. He found himself with no allies, and indeed some surprising opponents behind him, on his own Benches. He was forced to repeat the argument again and again in an increasingly uncomfortable position. We all know this is something that happens to government spokesmen in this House from time to time, when they are forced to defend the indefensible and have not got the scope to make the necessary adaptations that might convince the House.
Then the Government faced a massive defeat on the critical vote; a great chunk of the Bill was suddenly altered and the Government had to respond in a very short time to a fundamentally changed Bill. It seems extremely probable, given that situation, that we will end up with a flawed Bill. One lesson we have surely learnt on numerous occasions in recent years is that rushed legislation produces had legislation and unexpected results. If ever there was a case of a rushed Bill, this is it.
Indeed, we have another example of a debate that revealed flaws. It was certainly fun to listen to, although whether it was quite so much fun for the noble and learned Lord the Lord Chancellor, I am not sure. The debate introduced by my noble friends on the Scottish question again revealed a number of extraordinary inconsistencies in the Bill.
It seems to me that there is an overwhelming case for a provision of this kind. To comfort the Liberal Democrat Benches, some consideration may need to be given to the wording of the new clause before we reach the next clause. I am not sure that I die on the particular representation on the committee to be appointed. That there needs to be a committee, I feel absolutely certain about: that there needs to be a time limit under which the Bill is effective, I am equally certain. Parliament must be given the opportunity to look again at the whole question in proper time so that we can have legislation that is likely to endure.
There was a notable speech from the Cross Benches on Thursday about the impossibility of withdrawing legislation once it was in force if only because of giving the wrong signal to terrorists. The example was given of withdrawing ships in the South Atlantic and the Falklands War. As one who was in the Cabinet at the time, I remember all too vividly that particular example.
There is a real problem here. We need the opportunity of thinking how we get permanent or semi-permanent legislation on to the statute book which will not cause huge problems and a huge attack on our civil liberties. Therefore, I strongly support my noble friend in this amendment.
Lord Forsyth of Drumlean: I, too, support my noble friend Lord Kingsland in this amendment. I am sorry that the Liberal Democrats took offence at the drafting; I read it assuming that the Prime Minister might be in this House rather than the other place. Given that the other place has gone home for the evening and we are still here, considering legislation which it has not had a chance to see because of the

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amendments, this place seems to be taking on a role that is rather more advanced than that of the other place.
More seriously, I have one concern about the drafting. I think it is an excellent idea that the legislation should be subject to review and that that should be done by a committee of Privy Counsellors in the way that the amendment suggests. However, it is not clear to me what happens when the report is laid before Parliament by the committee. Our experience of the previous legislation was that the Joint Committee of my noble friend Lord Newton made excellent recommendations which the Government chose to ignore. Will my noble friend think about at least ensuring that there is a proper debate and a requirement to have some response from the Government? All too often people produce very learned advice which is subsequently ignored.
Lord Mayhew of Twysden: I am expecting to find that the Government have allowed this debate to develop as it has so that they may show their open-mindedness and flexibility by conceding the point. In what the prayer book calls the sure and certain hope of that, I shall address your Lordships for only a very short time.
A constant theme of these debates has been to point out the folly of approaching these delicate matters in unseemly haste. One would not wish the Government to add arrogance to obstinacy and folly by resisting the amendment, which calls for a review in a timely period. I confidently hope that the noble and learned Lord, who has shown such flexibility and good humour today, will fulfil my expectations.
Baroness Williams of Crosby: I apologise for arriving a few minutes after the beginning of this debate but, as some noble Lords will know, I am somewhat hampered in moving rapidly around the Chamber at the moment. I wanted to make a very brief contribution because, although I fully support, as indeed our Benches do, Amendment No. 169, there should be added to it an understanding accepted by all sides of the House.
The proposal is that there should be a review and that that review should be undertaken by a group of Privy Counsellors appointed by the leaders of the respective parties and by the Prime Minister. My concern is not so much with the idea of a review, which I accept to be a good one; it is whether the Government would feel committed to taking that review very seriously. We are well aware that there has already been a review of Part 4 of the anti-terrorism Act 2001. That review, which I have read very carefully and regard as one of the most outstanding reports ever put before Parliament in recent years, was of course the report of the committee chaired by the noble Lord, Lord Newton of Braintree. It consisted of a group of distinguished Privy Counsellors, among whom, if I may pick out just one name, our noble colleague Lady Hayman, was a prominent contributor.
It was an excellent report. Those of you who have read it and re-read it recently will know that Part 4 of the anti-terrorism Act 2001 went into extremely detailed
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proposals that were carefully thought through. It covered a range of issues including different kinds of trial that could be conducted in camera or with a security-cleared judge and alternatives, which the committee clearly indicated would be regarded as second-best. Nevertheless, the report consistently and with a great sense of duty covered the whole of the area that it was asked to do.
The report made two striking observations. The first was that the picking out of foreign nationals was a great weakness in the anti-terrorism Act 2001. In other words, the committee showed the prescience to recognise that that would become a major bone of contention. Secondly, the report made a clear indication that there would be possible alternatives that would not require derogation from the European convention. It indicated that no other country in Europe had required that to deal with the threat of terrorism.
The tragedy is that that a carefully thought-through and very thoughtful report was dismissed in the course of a brief remark by the then Home Secretary Mr David Blunkett. He said in terms that he saw no necessity to consider any proposals to replace Part 4. He dismissed the issue of foreign nationals by saying that he had decided that these were the main targets that were required to deal with terrorism. He did not even consider the question of discrimination between British and foreign nationals which was at the heart of the Law Lords' decision of December 2004.
If one then looks at the debate that took place in the House of Commons on 25 February last year, what one sees over and again is the simple dismissal of repeated pleas by Members of Parliament from all parties—Conservative, Liberal Democrat and almost certainly Labour—to ask that much greater consideration be given to the issues that have not been properly dealt with. One of the most striking of those contributions came from Mr Alan Beith, the deputy leader of my own party in another place. when he specifically said that the issues of terrorism that now confronted us were so serious that we needed the time. meditation and care to consider thoroughly built and constructed legislation that would enable us to deal with the terrorist threat without sacrificing our own liberties.
In briefly addressing this amendment, I simply want to say that I sympathise fully with the position of its movers, the noble Lord. Lord Kingsland, and the noble Baroness, Lady Anelay, and indeed believe that it is important that such a review should to take place. However, the Committee requires, were it to pass this amendment, a commitment from the Government Front Bench that such a review would not be treated with the disdain and virtual contempt with which the Newton report was treated despite the first-rate quality and excellence of its recommendations which were supported by Members of all parties who served on that committee.
I shall not delay the Committee by referring to an amendment that we shall discuss shortly which constitutes, if I may say so, the one guarantee—that is to say, it is the sunset amendment—that if there were

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to be a review it would have to be taken seriously. The House would not agree to continue with legislation if the carefully thought out recommendations of its Members were treated with the kind of disrespect with which the Newton committee was treated totally without any justification.
Lord Hylton: I am a non-lawyer and, as it were, a private person. I have not spoken so far in this Committee stage but I support as strongly as I can the case for a review at a very early stage so that the country can see how this Bill, when it becomes an Act, works out in practice. Privy counsellors are obviously the right people to undertake this kind of task. I am agnostic about how they should be found or selected but the principle is an essential one.
Baroness Scotland of Asthal: I have listened very carefully to what noble Lords have said. I, of course, acknowledge the strictures contained in the comments of the noble Baroness, Lady Williams, but I should say to her—I appreciate that she may not have been present during our earlier discussions—that we have already acknowledged that the Newton committee highlighted a number of these issues. I do not agree that that report was treated with disdain but I have accepted that some of the recommendations therein contained certainly merit careful scrutiny. I have also indicated that we are minded to bring forward legislation as soon as reasonably practicable which would take up a number of the Newton committee's suggestions. I have given due credit to the extremely high-quality work which was thereby undertaken.
I remind the Committee that the Newton committee recommended that we should look very carefully at the other offences that might be possible. I remind the Committee in particular of the recommendation made by Newton at paragraph 251 which dealt with the propriety of making less intrusive orders than Part 4. Paragraph 251 states:
"It would be less damaging to an individual's civil liberties to impose restrictions on

a. the suspect's freedom of movement (e.g curfews, tagging, daily reporting to a police station);

b. the suspect's ability to use financial services, communicate or associate freely (e.g., requiring them to use only certain specified phones or bank or internet accounts, which might be monitored);

subject to the proviso that if the terms of the order were broken, custodial detention would follow".
I remind the Committee that that is a scheme which the Newton committee advocated. It is one to which we have listened in seeking to put the provisions of this Bill together, as, indeed, we listened to the comments made by your Lordships' Judicial Committee when it used as an example the constrictions placed on the individual rights of the appellant G. I remind the Committee that we are precisely where the Newton committee advocated that we should be. I, of course, acknowledge that many would say that we should have got there a little sooner.
The Earl of Onslow: I accept that. However, the only reason that this provision was included is because it
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was found by the Judicial Committee of your Lordships' House that Part 4 was against the Human Rights Act. To be asked to believe that this would have been done without outside pressure is stretching my broad imagination too far.
Baroness Scotland of Asthal: I hear what the noble Earl, Lord Onslow, says in that regard and I appreciate that he may have limited imagination. However, I would not possibly suggest that that is the case. Having seen the noble Earl's performances in this House, I would say that the contrary is true.
The reason that I remind the Committee that that is our position is simply to bring us back to the realities of the situation with which we are dealing and to remind the Committee that these were seen as proportion and appropriate responses to the difficulties in which we now find ourselves. That is also the reason why, bearing in mind the experience that your Lordships' House has in scrutinising these issues, I take with due caution your Lordships' comments on our bringing forward another Bill on acts preparatory to. I do not for one moment say that your Lordships will be to blame.
Let us look at the review provisions in the Bill. The amendments proposed by the noble Lord, Lord Kingsland, are interdependent and relate to Amendment No. 171, which requires the legislation to cease to have effect at the end of November 2005. That is a very narrow compass. The amendments provide for review and reporting mechanisms during the operation of the legislation in the period up to that date. We are now in March so the period to November is very short indeed. The timing of proposed new clauses on reviewing and reporting on the operation of the Act is based on the assumption that there will be that sunset clause.
We believe, however, that the principle of the provisions is unnecessary. I shall explain why. The Bill provides that the Secretary of State must report to Parliament at quarterly intervals on the exercise of the control order powers. The Bill also provides for the Secretary of State to appoint a person to carry out reviews annually on the operation of the old Sections 1 to 6—on the making, operation and duration of the control orders. The Secretary of State would be obliged to lay the reports produced by those reviews before Parliament as soon as reasonably practicable.
In response to the request made by the noble Lord, Lord Forsyth, for a proper debate and response, if the report is laid before Parliament as we propose, then there a good opportunity for the debate advocated by the noble Lord to take place.
Lord Forsyth of Drumtlean: Is that an undertaking that the Government will definitely provide time for such a debate?
Baroness Scotland of Asthal: If only it were so. Noble Lords will know that time for debate is not within the Government's gift. They will also know that the usual channels, in their inimitable style, have the ability to find time for debates that appear to be supported and merited. If all three parties wished there to be a debate, I cannot conceive that the usual

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channels would not provide us with an opportunity. However, I do not seek to usurp their function from the Dispatch Box or to suggest that the Government can command the timetable in this place. I have learnt, to my great joy, that that is an impossibility.
I turn to the issues raised by the noble Lord, Lord Crickhowell. I, too, endorse the assessment of my noble and learned friend's performance—it was brilliant batting. However, I remind the noble Lord that this wicket has not yet gone.
These issues are difficult. However, I agree with my noble friend Lord Clinton-Davis. As currently drafted—and not simply because they reflect the current position of the Liberal Democrats—the proposals are misconceived and unnecessary. The noble Lord, Lord Crickhowell, will also know that the Government have indicated that the actions and arguments of this place always need to be considered further. On each occasion when my noble and learned friend and I have responded, we have made it clear that the Government's consideration of these matters continues.
9.30 p.m.
Lord Crickhowell: The noble Baroness has almost invited me to comment again. All she has indicated so far is that we might have a debate at some unspecified time on reports laid by the Home Secretary. That is wholly inadequate. It has to be tied to a timetable which means that Parliament will have the opportunity to consider the legislation completely afresh. Anything less will not do.
Baroness Scotland of Asthal: I hear what the noble Lord, Lord Crickhowell, says on that matter, but the amendments before us this evening do not have that effect. Even if, as is not admitted, there was a need for an annual review, these provisions would not thereby provide it.
Lord Kingsland: I am most grateful to the noble Baroness for her reply.
Both my noble friend Lord Forsyth and the noble Baroness, Lady Williams, rightly criticised Amendment No. 169 for lacking teeth. The noble Baroness, Lady Williams, adduced evidence to this effect with the sorry story of the fate of the Newton report. In responding to them both, I emphasise that I accept that without Amendment No.171, Amendment No. 169 would get us only a short distance down the road.
The amendments are interdependent. Without Amendment No. 171, a future report made under Amendment No. 169 would be likely to suffer the same fate as the Newton report. Equally, without Amendment No. 169, Amendment No. 171—and we come to the moment when the sunset clause bites—we would lack an in-depth, informed and authoritative report about where we should go from there. Although these are separate amendments and are grouped separately, they must be looked at together.
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I cannot but disagree with the noble Baroness about the effect of Amendment No. 169. Although I am not going to move it this evening, she should be in no doubt that I shall be moving it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 170 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 171:
After Clause 13, insert the following new clause—
"LIMITATION
This Act and any order made under it shall by virtue of this section cease to have effect on 30th November 2005."
The noble Lord said: The previous debate has foreshadowed the debate on Amendment No. 171. Its effect is obvious and I do not need to add a great deal.
The speed with which this legislation is going through your Lordships' House—and has already gone through another place—is evidence enough that we need Amendment No. 171 on the face of the Bill. The amendments that we succeed in passing tomorrow night will only reflect a portion of the deep disquiet we feel about this legislation. The fact that the Bill seeks to suspend habeas corpus—the hallmark of our constitutional life throughout the ages—surely justifies the inclusion of the amendment. I beg to move.
Lord Clinton-Davis: I think that the amendment has been moved in haste. Although I agree in principle with the noble Lord, I believe that the provision affecting limitation is misconceived as drafted.
The noble Lord is right to say that some notice should be taken of Amendment No. 169. Whether we have an undertaking from the Government to consider it or whether it is included in the Bill I do not really care, but that the Act should cease to have effect on 30 November is misconceived.
After all, we are likely to have a general election on 5 May and Parliament will not sit for two or three weeks afterwards. Then we are likely to have a Recess lasting a little more than two months in August until October. So, effectively, Parliament will not be sitting for about four months during that period.
At the same time we should review how the Act has been operating. For that reason, I believe that we should consider the whole thing at once. It is very unsatisfactory to consider it in bits and pieces. I urge my colleagues to accept that there must be a review. We should be patient; I am not talking about more than a year. But I think that it is incumbent upon us as Members of Parliament to consider how the Act is operating. If we do not do that, we are not really coming to a sensible conclusion.
Baroness Hayman: My noble friend, Lord Clinton-Davis, urges patience. I normally consider myself to be a patient woman. I have brought up four sons. That probably explains it.
On this occasion, however, I am afraid that I have lost patience. A year ago I voted for the renewal of Part 4, even though the committee of which I was a

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member, and which the noble Lord, Lord Newton, chaired, recommended that that should be replaced as a matter of urgency. I voted for renewal for a year because I believed that that was an appropriate and responsible thing to do in order to allow adequate time for the proper replacement provisions to be put in place. We have gone through the history many times. But that has not happened. What has happened is that we have ended up where we are in the Chamber this evening, legislating in haste.
I believe that we are not that far from agreement. I do not believe that there are many people who are absolutist in their dismissal of control orders.
My noble friend was absolutely right to say that the Newton committee—the noble Lord, Lord Newton, nods—recognised and envisaged the possibility of needing something between surveillance and criminal prosecution to deal with a small but important category of terrorist specialists. I believe that there is, not universal but majority, support for that proposition and for finding the right balance in introducing those measures with the protection of civil liberties and the challenge of not contravening the European Convention on Human Rights. I also believe that with a little more time, and outside the frenetic atmosphere before a general election, we could do this task.
On the issue of looking as if you are going soft by withdrawing such legislation, we will have a legislative vehicle because we have been promised such a vehicle in terms of the new offence of acts preparatory to terrorism early in the new Session. I am sure that my friends on the Front Bench would not have put it quite as crudely as that, but that is the import of all that we have understood.
That seems to give us the opportunity do what the Newton committee asked for; it said:
"The idea of a durable body of properly considered, principled counter-terrorist legislation—which is distinct from mainstream criminal law, addresses this particular threat to society and includes adequate safeguards of the rights of the individual—remains compelling".
I support that conclusion, as I did when we published the report. We may be wrong by about a month or two about the duration, but I feel as strongly on the issue of a sunset clause as I did on the issue earlier this evening that sent me into the Lobby with unaccustomed company. Delightful as many of those individuals are, I seriously do not wish to be in that situation again. I hope very much that the Government will see their way to accepting if not this amendment, one that is close to it.
Lord Goodhart: My Lords, I understand that the Government are up against tight deadlines, but that is to a large extent their own fault. If we look back a few months, it was perhaps not wholly predictable that the Appellate Committee of your Lordships' House would come to the conclusion that it did on the Belmarsh detainees. but it was certainly foreseeable as a distinct possibility.
Apparently the Government had no plans on how to deal with that contingency. They had no legislation in draft to put before the House. If they had been able to
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do so immediately after we returned from the Christmas Recess, at least we would have had a fair amount of time. But it was not until the third week in February that the Government introduced the Bill. It went through the House of Commons in two days, which was wholly inadequate. It had its Second Reading in your Lordships' House on Tuesday of last week. On Wednesday morning, at about half past nine, very important and substantial government amendments were published. We had to table our amendments for discussion in Committee by five o'clock that afternoon.
We then had to debate the first day of the Committee stage starting at 11.30 the following morning. The groupings were published at two minutes past eleven, and turned out to be wholly unsatisfactory, resulting in a delay of half an hour before starting the debate. The gap between the end of Committee and the beginning of Report will be about 16 hours. Report will be followed by Third Reading after a gap of only four hours. This is a wholly unprecedented timetable. By comparison, the debate on the Anti-terrorism, Crime and Security Act 2001 moved at a positively glacial pace, with some nine days being allocated to Committee.
We have had a wholly inadequate time for considering the Bill, which is totally inconsistent with the role of your Lordships' House as a revising Chamber. We have been unable to do the work that we should do. There are all sorts of important issues, not perhaps the top four or five, but issues that still have considerable importance, which should have been discussed at length, but which have not been debated.
9.45 p.m.
In those circumstances it seems absolutely essential that the Bill should be re-debated from scratch. That requires, not a review, which the Government can dismiss, but an irremovable sunset clause, which means that we will have to get down and give this Bill the proper consideration that it needs. This is a Bill of great practical importance and perhaps of even greater constitutional importance. We must have proper time to consider it.
Lord Clinton-Davis: Does the noble Lord consider that we ought to have an opportunity to look at the workings of this legislation? For the reasons that I have adduced, I think that the provision of three or four months is not adequate. I hope that the noble Lord will agree that it is better to have an inforrned debate than a rushed debate.
Lord Goodhart: I appreciate what the noble Lord, Lord Clinton-Davis, is saying and I fully respect his views. I accept that it is entirely appropriate to have a reconsideration of the principles behind this Bill, but we need what I would describe as a fairly rapid form of pre-legislative scrutiny on the Bill to replace this one. I think that that can be dealt with in a matter of a few months. I do not think that it would be appropriate to wait for, let us say, the three years that might be necessary before one sees how the Bill has panned out in practice. It is too important for us to have a proper reconsideration of the issues behind the Bill. We

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should move on to it. The proposal for 30 November may not be written in stone but it seems a wholly appropriate timetable with which I am entirely happy.
Lord Newton of Braintree: I want to speak only briefly, in the light of what I said at Second Reading, when I expressed a number of regrets, some of which have been echoed in slightly different ways during this debate. I regretted that there did not appear to have been more active consideration of alternatives to Part 4 in the wake of our report; that for the second time we were—I echoed what the noble Baroness, Lady Hayman, had already said—considering in great haste legislation that required careful scrutiny; and that we were not looking at it as part of a balanced package, taking account of what has been promised for later in the year.
On that occasion the noble Baroness, Lady Hayman, was kind enough to say that she agreed with every word that I had said. I simply wish to reciprocate by saying that on this occasion I agree with every word that she has said. I would not want to die in a ditch about the timing. November may be a bit soon; the wording of the amendment related to a review committee of some kind probably needs addressing; but the basic concepts that we are debating are ones that the Committee and, dare I say, the Front Bench opposite would be wise to take very seriously.
The Lord Bishop of Portsmouth: I shall be very brief. I have listened carefully to the Committee stage of the Bill's passage through your Lordships' House, and with increasing concern. I think back to the words of the right reverend Prelate the Bishop of Worcester last Tuesday, which I read in Hansard, and those of my kinsman the right reverend Prelate the Bishop of Chester, earlier today. I believe both this amendment and the previous ones to express a humility about this legislation and to be commensurate with the undue haste with which we have to deal with it. I am very uncomfortable about the atmosphere of your Lordships' House at this present time.
Lord Desai: At the end of Second Reading, being the last speaker, I said that I intended to oppose any sunset clause. The problem is very simple: if we accept this clause, we will go through another hasty piece of legislation. As my noble friend Lord Clinton-Davis said, think of the timetable: if you lose two and a half months between May and November there will not be enough time to legilate properly. It would be preferable if my noble and learned friend could give us an assurance from the Front Bench—as I think has already been given—that, as soon we can after the election, whichever party is in power should initiate legislation on the crime of acts of terrorism, or whatever it is called. We should, as I have said before, have a Joint Committee of both Houses to consider that immediately.
Given that we made haste with earlier legislation, which was judged to be discriminatory, and that this legislation has had to be introduced in a hurry, we
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should give ourselves lots of time. By the first anniversary of the passing of this Bill, we should be ready with something better. That is not a three-year gap—the noble Lord, Lord Goodhart, thought that my noble friend Lord Clinton-Davis was asking for that—but one year is a decent gap, after which I am sure we can have better legislation. In the meantime, if we get to November and have nothing else ready, there will be another almighty panic and another rush to get something through, so that the Government can have some legislation to deal with emergencies.
I hope that noble Lords see what I am saying. If they want a sunset clause, make it a bit later; but neither the amendment on the review nor this amendment addresses the real problem. That is: how do we have better legislation in place? We should concentrate on that rather than on a sunset clause.
The Earl of Onslow: Surely the sunset clause will make it a certainty that what the noble Lord, Lord Desai, has just asked for will happen. In other words, it will be looked at—because if nothing is done, the Act will fall. I am not necessarily tied to the date of 30 November. However, I hope I will get an undertaking—from my Front Bench and the Liberal Democrat Front Bench—that if we pass the sunset clause and the Government chuck it back at us from the Commons, with their majority there, then we insist on that clause. Then, if the Government still insist on chucking it out, they will not get their Bill at all. I sincerely hope that such an undertaking can be given by my noble friend Lord Kingsland and by the Liberal Democrat Front Bench. Otherwise, we will, in effect, have been posturing.
This Bill is so important—just as our liberties are, being so much part of everything around us in this building, which was built because of our liberties. We sit here talking and, as Sir Arthur Bryant said in his history of the Napoleonic Wars, the continental dictatorships could not understand that England made war by gentlemen making speeches at each other in the House of Commons. These liberties are so important—and the Bill goes against the grain of them all. With gritted teeth I am prepared to accept it for six months; with more tightly gritted teeth, for nine months—but not for a moment longer.
I would rather get no Bill at all, but if we are to have one then we must have a solid undertaking from both my noble friends on the Liberal Democrat Benches—I am using the term advisedly—and my special noble friends on the Conservative Benches.
Lord Clinton-Davis: At no time have I ever suggested that we should wait for three years. It is grotesque that the noble Lord, Lord Goodhart, should suggest that I have. I agree entirely with the view that we ought to consider this clause in a balanced way. It should not be for longer than one year.
Lord Brennan: This is an exceptionally important point that embraces two principles, one of democracy and one concerned with the campaign against terrorism. In my view, a Bill of this nature should always have a

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review clause and a sunset clause. Parliament should always review constraints on liberty as grave as this Bill introduces.
In doing so, two considerations arise, the first of which is democracy. The Bill went through the House of Commons in circumstances in which the other place had no opportunity fully to consider its ambit. It has come to this House and obviously will be the subject of major change. If it goes back to the Commons later this week, and if as I suspect there is a guillotine, the fact is that in our democracy a Bill as grave as this will go on to the statute book with the elected Chamber having given it no proper consideration.
I cannot imagine a more disturbing state of affairs, but I accept the reality of it because I accept the bona fides of the Government's intent. They should accept our bona fides in return. When we want a review and a limitation clause, it is not to undermine the Bill, it is to ensure that, upon review, it is in proper form. If we do not have a limitation and a review, the House of Commons will have lost its place and its function in this particular circumstance.
The second consideration is the campaign against terrorism. Just as we need to be urged on by the Government, they need to be urged on by us. A limitation clause would serve as a trigger for the Government to come back with a comprehensive and up-to-date anti-terrorism Bill setting out new offences and new procedures in a composite picture that satisfies the public that we are doing our best to beat terrorism.
So for the sake of democracy and for the sake of beating terrorism, when this comes back tomorrow I expect the House to favour review and limitation, and I hope that the Government will accept that what is intended is for the benefit of us all.
Lord Carlisle of Bucklow: I entered the Chamber not intending to speak in this debate, but having listened to the noble Lord, Lord Brennan, perhaps I may say that, curiously enough, he and I, on different sides of this House, existed in the same chambers together for many years. That kind of compromise is what is needed at this moment. I believe that it is possible to achieve a Bill which is necessary for the short term, but it has many faults and we should be given the opportunity to look at it with greater leisure so that those faults can be removed. We will then have in place a law that is accepted by both parties and would meet the recognised need for having some means of dealing with terrorists who cannot be dealt with under our normal forms of judicial procedure.
The Government have rushed this Bill through unnecessarily and in a way that has provided no opportunity either in the Commons or in this place for a full debate. In fact one wonders what is going to happen when it returns to the Commons. Will the Government ask the Commons tomorrow or the day after to reject the amendments which they did not vote against in this House, and which have not been debated over there? Surely there is a case for a wider consideration of this Bill, and I share the view of the noble Lord, Lord Brennan, who I consider to be my
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friend, that we could achieve a compromise provided we then have the time to look seriously at the Bill to take its place.
10 p.m.
Lord Judd: I too had not intended to intervene on this amendment, but the thoughtful and considered remarks of my noble friends Lord Clinton-Davis and Lord Desai made me think that perhaps I should. I simply want to make the point that I do not believe that anyone in this House, including the Government Front Bench, is happy about the predicament in which we find ourselves. We are introducing measures that go against not just the grain but the foundations of the system of justice that we and our predecessors have worked for over many centuries.
I hope that we do not now slip into the attitude that the task is how we perfect the course we have taken. It may indeed be necessary to contemplate improved legislation. I certainly endorse that proposition. If we are prepared to introduce into our legal procedures measures that cannot be reconciled with some of the fundamental principles of our legal system, as we have come to understand them, it is imperative that year by year the justification for continuing to do so is re-established.
Baroness Scotland of Asthal: I say straight away that the Government understand the importance of review. That is why the provisions in Clause 11 outlined the review that the Government have in mind—the three-monthly reports, then the independent reviewer and the 12-month report.
Let me come to the issues raised so eloquently by my noble friend Lady Hayman. I understand her frustration. Although I cannot compete with her, being a mere mother of two sons, I understand the fortitude that that takes. Therefore, her patience must be renowned. The important thing for all of us is to get the right balance of protection and civil liberties. My noble friend is absolutely right. We all seek an appropriate legislative vehicle.
There are certain issues that we all also accepted. There is a cadre of persons, albeit very small, who are unlikely to be amenable to any legislation dependent on evidence that can be brought before a court. We have been through the reasons about the nature of the evidence that we may have to rely on, on just a few occasions.
We have to accept that within the portfolio of orders, it is likely that, no matter what else we construct, we will need something similar to control orders. Therefore, this Bill should not be seen as the shortest of short gaps, for all the reasons given by my noble friends Lord Desai and Lord Clinton-Davis. Although I can say nothing about the likely time at which any general election might take place, I can rely upon the published dates for the summer recess. The noble Lord is right that we are going to have a relatively truncated period to consider this.
Review is a matter of importance, but, respectfully, a sunset clause of this nature will not help us, because of the many reasons already outlined—the amount of

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time and the amount of detail. We hope that in a short compass we will be able to bring forward in the appropriate legislative vehicle further and other provisions that might better address the issues of a new offence.
It is very easy to forget the history of the past year and put on it a construct that it does not merit. Therefore, with great temerity, I should like gently to remind the Committee of the chronology of events.
There was, of course, the Newton report and the consideration given to it. That report was published, I think, on 18 December 2003. The Committee will know that the case of Re A moved through the courts in 2004 and, in July, I believe, we had the unanimous decision of the Court of Appeal, led by the noble and learned Lord the Lord Chief Justice, which endorsed the provisions of Part 4 as having been sound.
Work of course continued, but it is important to accept that in recasting provisions one has to bear in mind the nature, extent and form that those new provisions may take. Unless and until we had the full judgment of the House of Lords in the case of Re A, it would have been impossible to set in place concrete provisions which did not reflect or could not have reflected the thinking behind that judgment. Now we have, as speedily as was reasonably practicable, brought forward these new provisions at the same time as continuing to work on the broader context of the other offences.
Although I of course accept and understand the frustration in regard to the timing, perhaps I might respectfully and gently suggest that it was not entirely of the Government's making.
Lord Forsyth of Drumlean: I am grateful to the Minister for giving way. I am mesmerised by the charming way in which she is explaining the sequence of events and I am almost persuaded. But does she not recognise that we all read the newspapers and listen to the media? It is perfectly clear that the Government have briefed the media that there will be no further concessions made on the Bill.
The Minister has sat through the whole debate and Members on all sides of the House are putting forward very persuasive arguments, but that is in the context of a government who have already made up their mind that they are going to make no further concessions. Does the Minister understand why it is difficult to believe the script she is enunciating today when, outside, members of her own Government have been briefing the media that what we do will make no difference at all?
That of course makes it even more important that there is some kind of sunset provision. It seems to have become some kind of political test of virility whether the Bill reaches the statute book and some of us are concerned about the long-term consequences of it. That is where we are at.
Baroness Scotland of Asthal: I understand why the noble Lord would say that. Of course, no one on the
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Front Bench can be responsible for what is or is not said in the media. That is an aspiration that we all from time to time in our heady dreams have wanted to have, but it is not the reality. We have to confine ourselves to what is said from this Dispatch Box, and I can assure the Committee that we have continued to listen.
I agree with what was said by my noble friend Lady Hayman, endorsed by the noble Lord, Lord Carlisle, and echoed again by the noble Lord. Lord Newton, that no one wants to die in a ditch for provisions which will not deliver what we jointly seek. Therefore, throughout these debates, I have held on to a number of issues which appear from all the debates to be plain: notwithstanding the difference of view that might be expressed from the various Benches, we all wish the same thing.
No one on any side of the House has said anything to indicate that we do not value our civil liberties highly. We fully understand that balancing those things which we are driven to believe are necessary to protect the security and safety of the citizens of this country against those things which we trespass very carefully upon in regard to their civil liberties is a very delicate and difficult excercise. I say again that no one in this House—and, I believe, in the other place—wishes to be in the position in which we find ourselves, where that balance has to be struck.
I do not find in any of the contributions made from any side of the Committee any indication that any noble Lord is not absolutely serious about that issue. The issue for us all is where the line should be drawn: some of us fall on one side; some on the other.
I assure your Lordships that all the debates that we have entered into are being given appropriate and anxious consideration. My right honourable friend the Home Secretary has made it clear from the inception in the way that he has handled the matter that he would have preferred a consensus. However, we have also made it clear that the Government will do what we feel is necessary to protect.
We have a difficulty in relation to time. We do not believe that November would be an appropriate or convenient date. We have heard what noble Lords have said about the provisions currently contained in the Bill in relation to review, the three-monthly reports made by my right honourable friend the Home Secretary and the nature of the review after a 12-month period.
Lord Clinton-Davis: If we do not have a certain date, this House will express itself in no uncertain way. The Government have to take into account the overwhelming body of opinion expressed so far. I will not tie myself to 30 November, but there should be a sunset clause. That is the view of many noble Lords who have spoken in the debate. I invite my noble friend to suggest a date, because we are obliged to reconsider the whole legislation.
Baroness Scotland of Asthal: I thank my noble friend for that invitation but I regret that I cannot avail myself of it. We will consider the nature of the contributions that have been made. The general tenor

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of the debate indicates that November 2005 is not the appropriate date. I say clearly to your Lordships that the Government's view is that a sunset clause would not be appropriate. The Bill should not be seen as a short stop-gap.
We will have to give careful consideration to the other measures proposed to be brought forward in new legislation which will be contemplated. That will take a little time. It will be done as speedily as we can but it is unlikely to be anywhere near completion by November this year. We have listened carefully and I bear in mind the issues raised by my noble friends Lord Brennan and Lord Judd, because they endorse the points made by my noble friend Lady Hayman. I thank my noble friend Lord Desai for his suggestion of a Joint Committee on the Bill in both Houses.
Lord Dholakia: Does the Minister feel constrained in making any promises about seriously considering the views expressed by many noble Lords, bearing in mind that without listening to any of these arguments last week the Prime Minister on a question from the Leader of the Opposition completely dismissed the idea of a sunset clause?
Baroness Scotland of Asthal: I am trying to say as clearly as I can that the Government do not believe that a sunset clause is correct. I also said that we have accepted the necessity for a review of the provisions. That is why review provisions are contained in Clause 11. Of course we hear what noble Lords say about the nature of the review that they would wish to have. The import of what has been said is that the review should be an annual review. Those are matters that will be considered. However, I say to your Lordships that we do not believe that a sunset clause on these provisions is appropriate. That is the current view of the Government.
10.15 p.m.
Lord Kingsland: In the light of all the speeches made by noble Lords, I simply cannot believe that the noble Baroness really believes what she is telling the Committee. The Bill is so contrary, so repellent to our constitutional traditions, that even if we had had ample time to consider it, we would still be asking for a sunset clause. As it happens, the Bill has been pushed through with enormous speed.
I shall give the Committee just one example of why it is crucial that we have a sunset clause as early as possible. The noble and learned Lord the Lord Chancellor has told us that he will be unable to place before your Lordships' House the draft of the rules of court before we cease considering these matters on Tuesday evening. We all believe that putting a judge in the front line of the control order system is only part of the answer. The other part is that the judge should operate within a judicial and not a political context. Until we see the substance of the rules, we shall not know whether the Government have delivered that or not.
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For that reason alone, quite apart from my constitutional misgivings, the Government can be sure that we shall return to this matter at Report stage.
The Earl of Onslow: Before the noble Lord concludes, perhaps he would answer my question about the attitude of our Front Bench on this matter.
Lord Kingsland: We shall stand absolutely firm on the issue of the sunset clause if the Government have the temerity to bring it back to us. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule [Control order proceedings etc.]:
The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 172, I must advise the Committee that if it is agreed to, I cannot call Amendments Nos. 172A, 173 or 174, due to pre-emption.
Lord Kingslandmoved Amendment No. 172:
Page 16, line 30, leave out sub-paragraphs (2) to (4) and insert—
"( ) The relevant rules of court shall be made by the Lord Chief Justice after consulting the Lord Chancellor."
The noble Lord said: This is a very important amendment. It seeks to shift from the noble and learned Lord the Lord Chancellor to the noble and learned Lord the Lord Chief Justice the responsibility for drafting the relevant rules of court which will contain the substance of the due process framework within which the control order system will operate.
In a previous debate that took place before the dinner adjournment, by accident, many of the issues raised by this amendment were fully discussed by the Committee. So I want to re-emphasise only two issues. First, I believe that it is absolutely crucial that the rules that apply to England and Wales are the same as those that apply to Scotland and to Northern Ireland. There is a difference, as the noble and learned Lord the Lord Chancellor knows, in the way in which the rules will be made. In Scotland and in Northern Ireland, they will be made by the senior judge. At the moment, in England and Wales, they will be made by the noble and learned Lord. Our amendment would relieve the noble and learned Lord of that unnecessary responsibility. Of course, he would be consulted, but the last word would be with the Lord Chief Justice.
Secondly, despite the skilful exegesis of the noble and learned Lord of recent case law in the area of Article 6, I am in no doubt whatever that Article 6 of the European Convention on Human Rights not only ought to provide but does provide a floor of security for any rules that are made. In other parts of our debate this evening we shall raise some of the particular issues that we would like to see protected in the rules. I beg to move.
Lord Mayhew of Twysden: I hope to detain your Lordships briefly in support of my Amendment No. 172A. I agree with my noble friend Lord Kingsland that any rules of court regulating control order proceedings ought to be made by the Lord Chief

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Justice, and not by anyone else. I support the amendment to which he has just spoken, and not simply for the first occasion on which an order is made, as is provided for by the Bill at the moment.
I refer your Lordships to paragraph 10 of the twelfth report of the Delegated Powers and Regulatory Reform Committee, which deals with this. The report says,
"While we do not regard the provision in the Bill as inappropriate delegation, the House may wish to ask the Government for an explanation of the need for this change."
We have had that explanation already this evening. It goes on to say, at paragraph 12,
"The memorandum explains the negative procedure provided for these provisions by suggesting that 'As with other rules of court dealing with detailed procedural matters rather than substantive issues, the negative procedure provides an appropriate level of scrutiny'".
I will come back to that.
I ask your Lordships to take into account paragraph 3(2)(b) of the schedule, which my amendment seeks to remove:
"the Lord Chancellor is not required, before exercising the powers, to undertake any consultation that would be required in the case of rules made by"
the person by whom they are otherwise exercisable. That person is normally the rules of court committee of what used to be called the Supreme Court. There is a mandatory requirement for it to consult such persons as it considers appropriate before making any civil procedure rules. Why should the Lord Chancellor not be required to consult such persons as he considers appropriate? The only compulsory duty to consult binding the Lord Chancellor is to consult the Lord Chief Justice.
If the Lord Chancellor is to be vested with this power, the less disparity between the obligations upon the rules committee and those upon the Lord Chancellor the better. Any disparity should be as slight as possible. That is not at the forefront of our problems in this Bill, but it is one that has its own significance.
I turn to my other amendment. The effect of Amendment No. 176A is that the rules must be subject to a requirement for affirmative procedure for approval. One glance at the hair-raising list of objectives that in some instances must be served by rules of court is surely enough to establish the case for that.
I propose, in the words on the Marshalled List, that
"An order made under sub-paragraph (5)"
shall be subject to the affirmative resolution. I realise that sub-paragraph (5) relates only to Northern Ireland, and I ought to have made the amendment broader. I will come back to that, if appropriate, on Report. The point, however, is the same. If the Lord Chancellor is to have these powers, it ought to be a matter for affirmative resolution.
I refer again, briefly, and in conclusion, to the report of the Select Committee. Paragraph 14 says:
"In view of the extensive powers given by the bill to restrict an individual subject to a control order, control order proceedings assume a particular importance. It is apparent from paragraph 4
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of the Schedule that the rules are likely to contain provisions which would not be applied in other proceedings and which may well attract a level of controversy".
It can say that again.
"There is also a case for suggesting that because Parliament is being asked to consider the grant of these powers in some haste, the higher level of scrutiny should be applied when the power conies to be exercised. So the negative procedure provides an inadequate level of scrutiny. We consider that an affirmative procedure should apply to the initial rules by the Lord Chancellor for England and Wales and Northern Ireland, and recommend accordingly".
That committee, on which I had the honour to serve for several years, is normally indulged by successive governments with the acceptance of its recommendations. I hope that when the noble and learned Lord replies, we shall find that that practice will not be departed from tonight.
Lord Goodhart: We have a number of amendments in this group. Amendments Nos. 173, 174 and 175 were intended to produce a slightly different solution from that proposed in Amendment No. 172. The Lord Chancellor, while still involved in making the rules, should be required to obtain the consent of the Lord Chief Justice rather than merely to consult him. However, having considered this matter further, we have decided not to move our amendments but instead to support Amendment No. 172, moved by the noble Lord, Lord Kingsland.
Amendment No. 176 proposes that there should be the use of the affirmative resolution procedure which is strongly advocated by the Delegated Powers and Regulatory Reform Committee and which the noble and learned Lord, Lord Mayhew, has just supported. However, we have considered the need, which I can understand, for rules to be brought into operation very quickly indeed, which would conflict with the need to make use of the ordinary form of the affirmative procedure.
We therefore intend to put down an amendment on Report which will introduce an unusual, but not unprecedented, form of affirmative resolution procedure for use in emergency situations. That means that the noble and learned Lord the Lord Chancellor will be able to bring his rules into force immediately the legislation conies into effect, but those rules will cease to have effect unless they are approved by a resolution of both Houses within 40 days. That seems to strike an appropriate balance between allowing the noble and learned Lord to introduce the rules with all necessary speed while requiring the use of an affirmative resolution after the event by both Houses and not simply having to rely on praying against the negative resolution procedure.
The Duke of Montrose: I support my noble friend Lord Kingsland in this amendment. I am very much in favour of the rules being made by the Lord Chief Justice after consulting the Lord Chancellor. However, I rise with slight diffidence because I wish to raise another point.
Tonight's rather strange groupings have a certain creative element to them. My noble friend's Amendments Nos. 193 and 195 are consequential on this one. As it

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happens, I have two amendments in that group which are rather similar. Going by the experience of the noble and learned Lord the Lord Chancellor this evening, one could very easily find that if you blink more than twice, the Liberal Democrats will have moved an amendment which would remove the clause to which you wish to speak.
If and when my noble friend gets the chance to move Amendments Nos. 193 and 195 to replace "Lord Chancellor" with "Lord Chief Justice", I am hoping to move amendments proposing that in Scotland it should be the Lord President.
10.30 p.m.
Lord Falconer of Thoroton: Beginning with the making of the first set of rules in relation to the control order procedures, the provisions made in the Bill involve the Lord Chancellor, after consulting with the Lord Chief Justice, making the rules for both England and Wales and for Northern Ireland. In Scotland, the Lord President makes the rules. That procedure is proposed because, in relation to each of the three jurisdictions, the rules are, in practice, required to be effective as soon as possible. The Part 4 powers lapse at midnight on 13 March, which is Sunday evening.
As for the proposal that if the Lord Chancellor makes the rules he should consult everyone that the Civil Procedure Rules Committee would consult in England and Wales and the Northern Ireland Civil Procedure Rules Committee would consult, that is not remotely practical. It is important that rules are in place. The critical question seems to be what is the best way to get there in a way that produces rules, as the noble Lord, Lord Kingsland, said, that are, in practice, judicial rules rather than in any way motivated by politics.
There are rules for the SIAC hearings at the moment which, although not identical, will be quite similar to the rules that will be applied in relation to this procedure. The best and most practical course in relation to getting rules that everyone consents to in England and Wales and in Northern Ireland, is for the Lord Chancellor to propose them, for the Lord Chief Justices in both those jurisdictions to consider them and then for all of us to reach agreement. I am sure that that is what will happen in practice. That will produce rules that are acceptable. But, as I said, these rules will need to be looked at very quickly thereafter because these are rules ultimately that we envisage being made by the Civil Procedure Rules Committee in both those countries.
How do we get to that point? The right course is for us to agree upon a procedure for the purposes of Parliament that the rules can come into effect straightaway but that they can, in some way or another subsequently, be reviewed by this House—the sort of procedure proposed by the noble Lord, Lord Goodhart. There could be an affirmative resolution procedure of an unusual sort, which the noble Lord suggested, or a negative procedure whereby this House could pray against the rules. I am not clear at the moment what the difference would be in
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practice, although I notice that the noble Lord, Lord Garden, is shaking his head, so he is aware of what the difference between the two is.
I cannot see at the moment what the difference is, but we would need to consider some process by which the rules come into effect straightaway but that both Houses have a chance to look at them.
While that process is going on, no doubt the normal procedures will be gone through for the Civil Procedure Rules Committees in Northern Ireland and in England and Wales to produce appropriate rules. That way, we have covered the short-term problem. We have allowed Parliament to have a look at the rules and we have a process in place whereby eventually we get more permanent rules that apply.
Scotland is in a separate category. That was made clear in the course of the debates before the dinner hour adjournment. The Lord President will make the rules there, not the Lord Chancellor. on the basis that the rules of procedure of the Court of Session are a reserved matter not a matter for the Westminster Parliament or the Westminster government. The Lord President is confident he can produce rules within the time required. If further amendments are required, it is a matter for the Lord President to determine how those are dealt with.
This is a practical problem. I have sought in my proposal to accommodate all ranges of opinion around the House. It is not perfect but it is a sensible and workable solution. In those circumstances. I invite noble Lords to withdraw their amendments.
Lord Kingsland: I am most grateful to the noble and learned Lord the Lord Chancellor for what he has said. I will withdraw my amendment tonight but I do not undertake not to bring it back tomorrow.
I am most grateful for the amendment that has been tabled by the noble Lord, Lord Goodhart, with respect to parliamentary approval. It seems to me that it would work. I can foresee no circumstances in which we would not support it tomorrow. I shall reflect carefully on what the noble and learned Lord, Lord Mayhew, said about all these matters to see whether we should add or alter our draft in any way.
One thing that I have gleaned from what the noble and learned Lord the Lord Chancellor said tonight is that he is keenly aware of the importance of this matter and I think has expressed an intention to be as helpful as possible. However, the fact is that these rules will he decided judicially in Scotland and Northern Ireland, but essentially politically here. I accept that the Lord Chancellor does not have the intention of injecting a political ingredient.
Lord Falconer of Thoroton: I did not even seek to assume that the noble Lord was not abusing me in some way. I simply said that Northern Ireland is in the same category as England and Wales. Northern

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Ireland and England and Wales are being dealt with by the Lord Chancellor; the Lord President is dealing with Scotland.
Lord Kingsland: I misunderstood what the noble and learned Lord said earlier. But despite all that we still believe that these rules must be seen to be judicially made. In those circumstances we find our solution inescapable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mayhew of Twysdenhad given notice of his intention to move Amendment No. 172A:
Page 16, line 34, leave out paragraph (b).
The noble and learned Lord said: I listened with my usual attention to the noble and learned Lord the Lord Chancellor. He dismissed as being fairly impracticable my suggestion that the Lord Chancellor when making these rules should be under the same obligation as is imposed upon the Civil Procedure Rules Committee. If it is impracticable, it is solely because of the absurd and grotesque speed with which this legislation is being pursued. That point has been adequately laboured tonight and I shall not repeat it. In the circumstances I shall not move this amendment or Amendment No. 176A.
[Amendment No. 172A not moved.]
[Amendments Nos. 173 to 176A not moved.]
The Deputy Chairman of Committees (Baroness Gould of Potternewton): If Amendment No. 177 is carried, I cannot call Amendments Nos. 178 to 191 for reasons of pre-emption.
Lord Kingsland Lord Kingsland moved Amendment No. 177:
Page 17, line 11, leave out paragraph 4.
The noble Lord said: Amendment No. 177 is the most radical in this group. It seeks to expunge the whole of paragraph 4 of the schedule to the Bill. This paragraph makes special rules of court. They are quite astonishingly different from the rules that one would normally find when engaging in litigation.
I am torn between two solutions on these matters. The first is simply to hand the whole thing over to the Lord Chief Justice and ask him to make a set of rules in the light of his experience and understanding of the matters which would have to be dealt with by control orders. On the other hand I am inclined to think that we need to do rather more than that on the face of the Bill. I am inclined to think that we need to put in some guarantees for the individual who is likely to be the subject matter of a control order. I have done that in two ways, partly by making some suggested excisions from paragraph 4 and partly by making some suggested additions to it. The excisions are contained in one line of the amendment and the additions are in the following line.
Paragraph 4(1)(a) deals with the burden of proof. 1 believe this matter is currently resolved because we have included in the Bill this afternoon the test of
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balance of probabilities. So paragraph 4(1)(a), at least at the moment, no longer belongs in the Bill. I must say I find—
Lord Falconer of Thoroton: The matter is dealt with even more extensively. The problem with using the phrase "burden of proof"' in the rules was that it might be said to give the rules the power to overturn the provisions about burden. Therefore, I have tabled an amendment that deletes the words "burden of, which I think solves the problem completely.
Lord Kingsland: I am most grateful to the noble and learned Lord.
Paragraph 4(1)(b) to the schedule enables or requires control order proceedings to be determined without a hearing. I find that rather alarming. In the extreme circumstances in which it might be inappropriate in some unforeseeable—at least by me at the moment—set of conditions not to have the defendant present, it would certainly be necessary to have the defendant's legal representative present at an oral hearing. I cannot understand how this paragraph can be justified when considered together with the imposition of a control order that is denying a citizen the rights that he has had since time immemorial.
I view paragraph 4(1)(c), which entitles the rules to make provisions about legal representation in such proceedings, with the gravest suspicion. It suggests to me that there might be some circumstances in which the defendant might not be legally represented. That suspicion is confirmed by the last line of paragraph 4(2)(a), which refers to:
"a relevant party to the proceedings or his legal representative (if he has one)".
I would have thought that if the potential subject of the control order is not entitled to have a hearing, a fortiori he ought to be entitled to have a legal representative.
By drawing your Lordships' attention to the last line of paragraph 4(2)(a), I have said most of what I wish to say about the paragraph. It states:
"Rules of court made in exercise of the relevant powers may also, in particular … make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative".
I find that quite unacceptable. It may well be that a sifting process would have to take place so that the reasons given effectively disguise the sources of evidence or the means by which that evidence has been gathered, but I can see no justification for the terms of the clause itself.
Finally, I come to paragraph 4(3)(c), which is perhaps the most alarming provision in this entire paragraph. It states:
"The Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
The noble and learned Lord the Lord Chancellor and I had an earlier exchange about this matter, but I remain unclear about what his intentions are with respect to it.

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It seems to me to be contrary to all the principles that have been developed in the criminal courts over recent years. To deny access by the defendant to information which is favourable to him seems to be grotesquely and inexplicably one-sided. Quite apart from anything else, it offends one's basic sporting instincts.
All that part of paragraph 4 should go. As the other matters to which I wish to refer in paragraph 4 come in amendments in the next group, I shall simply beg to move.
10.45 p.m.
Lord Thomas of Gresford: I find the provisions of paragraph 4 of the schedule the most shocking part of the Bill.
It is very important that there should be a judicial decision for control orders if the principle of control orders is to be accepted. But, as we have said on previous occasions, the other side of the coin is that there must be due process—something resembling a judicial hearing to enable a judge to take a judicial decision.
Almost everything seems to be excluded in this paragraph. There are provisions to be made about the mode of proof in control order proceedings—obviously hearsay is involved in that; intercept evidence gets a paragraph to itself; but it also permits evidence that has been obtained by torture. I find it shocking that the Court of Appeal could recently decide—as it is entitled to—that it is part of the law of England that the courts will receive evidence obtained by torture subject only to one condition: that we do not do the torturing ourselves. I cannot understand why it is more reliable if the torture is carried out in Chechnya, Azerbaijan or some other place.
We have seen an unbelievable decline in standards, both in the United States through the way it has behaved at Abu Ghraib and Guantanamo, and, I regret to say, in our own behaviour in Iraq, as has been found by recent hearings in the courts martial. This is another part of the decline of the judicial system being given statutory form. I find it absolutely shocking.
We will come on to sub-paragraph (3) of paragraph 4 in due course. But the one matter that really made me stand up and throw the Bill away was sub-paragraph (3)(c) which deals with disclosure. Under the terms of this, it would no longer be necessary for the Secretary of State to disclose matters that were exculpatory as far as the suspect was concerned. Part 4 of the present Act has been condemned by the Judicial Committee of this House: but in that Act there are proper provisions for disclosure—admittedly unsatisfactory in that it is disclosure to lawyers who have no opportunity of carrying out their fundamental duty of taking instructions from their clients. But here it is left to the Secretary of State to conceal from the claimant matters that are contrary to the Secretary of State's case or which might assist the claimant's case.
We wholeheartedly support the amendment moved by the noble Lord, Lord Kingsland. We emphasise and will continue to emphasise the role played by torture in obtaining evidence that is put before these tribunals.
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We will deal with that matter in due course. We shall look to see the complete rewriting of this paragraph along the lines of the proposed amendments.
Lord Clinton-Davis: The noble Lord has no monopoly on the litigation as far as concerns the Bill.
On the points raised by the noble Lord, Lord Kingsland, everybody is entitled to legal representation—indeed, it is vital in the proceedings which are being considered—unless the defendant or the person concerned refuses legal representation. That is an entirely different course of events.
I want to talk primarily in my short remarks about torture. I entirely agree with the noble Lord. Any evidence adduced by torture is both unacceptable and unreliable. It does not matter whether that torture occurs in another jurisdiction or in our own. For that reason and because I think that torture is odious and moreover unreliable we should reject the whole idea. I hope that my noble and learned friends will accept the idea that evidence adduced by torture is not to be relied on by our courts in any shape or form.
Lord Mayhew of Twysden: What we have just heard is right. I want to return briefly to paragraph 4(3)(c) to which the noble Lord, Lord Thomas of Gresford, recently referred. It states that,
"the Secretary of State is not required for the purposes of any control order proceedings … to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
That, as the noble Lord, Lord Thomas, said, includes material that exculpates the controlled person—the defendant, if one can call him that. Each of the Ministers, the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are distinguished members of the Bar. Would not each acknowledge that if prosecuting counsel were to be found in disciplinary proceedings to have withheld material that exculpates the defendant, that would lead unquestionably to his disbarring, as being in fundamental breach of a most important tenet of a member of the Bar, which is to serve the interests of justice?
If the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Scotland, are prepared as Ministers to advocate this proceeding, I am bound to ask them in all friendship whether there is anything they would not be prepared to sit on the Front Bench and advocate.
Baroness Ramsay of Cartvale: I first say that. I regret very much that long-standing and unbreakable commitments last week meant that I was unable to participate in earlier proceedings, but I have carefully read Hansard.
I rise on this amendment to speak on a different line from those raised heretofore. It is something that disturbed me a little when reading some Second Reading speeches and it is what disturbs me about

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taking out paragraph 4. The provision is repeated at different times. The noble Lord, Lord Kingsland, quoted paragraph 4(2)(a), which made,
"provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given".
Later on paragraph 4(3)(c) states,
"to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
That has a different connotation and meaning for me than it does for some other noble Lords. I am extremely worried and disturbed at how intelligence material in general and interception material in particular is being advocated by some noble Lords as suitable for disclosure in court proceedings. I am absolutely and implacably opposed to that for many reasons.
The whole area of interception is much more complex and sensitive than most people imagine. Happily that also includes the targets of those operations. It needs only a mention, a hint, let alone actual revealing, just once in any proceedings to lose that capacity. That would be an extremely serious blow to any intelligence or law enforcement service.
It is not often realised that when one takes action, it is a technical operation. In this country, it is completely controlled by the Interception of Communications Act, with a commissioner who is a judge. The noble and learned Lord, Lord Lloyd of Berwick, who unfortunately is not in his place, was the first such commissioner. Under that Act, operations are carried out by intelligence and security services, as well as police and other law enforcement agencies.
It is often said that other countries can use such evidence in court so why cannot it be done here? There are many good reasons for that. In some countries the evidence produced from a national police force in its own territory plugging into telephone lines is not a very sensitive operation. It does not give away anything much about techniques, and it usually does not endanger delicate sources. Technical operations often require agents to help with access. If it is cipher, there is usually a key to it from intermediaries who are recruited and who risk a lot to help.
To risk that in a court is quite wrong. The extent of the risk is not fully recognised. One cannot go into too many details, but one example in the public domain is the trial of the people who carried out the first attack on the World Trade Centre. The FBI put intercept material into court, and immediately A1'Qaeda changed from using the form of communication from which that material had come, thereby putting back the effort against it considerably. There are lots of other examples but that is one of the main ones.
We also have to consider our legal system. There are many noble Lords in the Chamber who know our legal system much better than I do, and I have heard a lot about it tonight. One thing that is different about our legal system, of which we are proud, is the adversarial roles of counsel—the defence, in particular. A defence counsel can range far and wide when he has evidence
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or someone is in the witness box. I am not saying that that is wrong, but we should not then have sensitive material so that a defence counsel can go well beyond the part that is being produced in court proceedings.
That is a strong argument that people do not always appreciate. In other countries where there is an investigating judge or magistrate, things are different. Sensitive material can be used without the risk involved in using it in a British court. In this country, we not only have various agencies, which have a sophisticated and efficient means of interception, we also have a very close relationship between our security and intelligence forces and law enforcement agencies. I am not saying that that is unique in the world, but it is very rare. If you start to bring in material from the services, which have to take more risks and to use more sophisticated techniques, and you expose them, you will endanger a lot more than most people realise.
11 p.m.
Lord Thomas of Gresford: I have huge, genuine respect for the noble Baroness's tremendous experience in the field of intelligence, and I think that everybody in this Committee respects her for that experience. But some of us lawyers have worked with intelligence material in court quite frequently—currently, in my case. I would be interested to know whether the noble Baroness has recently been in a court to see how these intelligence matters are handled today, or whether she is looking back to a time, let us say, 10 or 15 years ago, when these matters were dealt with quite differently.
Baroness Ramsay of Cartvale: I was not in court then, and I have not been in court recently, but I do not have to be to know what is happening. And, yes, I am aware of what is happening. Of course things have changed a great deal. None of that invalidates anything that I have just said about the sensitivity of interception techniques, which you would endanger if you started producing them in court and to a defendant.
I have very rarely met a lawyer who did not want intercept material in a court. In my experience, most lawyers are always completely confident that anything can be contained and dealt with well in court. I accept that; it is a professional feeling, and if it were my whole world, perhaps I would believe it too. My world was different, and I do not accept that position. I am extremely disturbed at the idea of very sensitive material going into court proceedings.
Lord Judd: Like the noble Lord, Lord Thomas of Gresford, I have unlimited respect for my noble friend Lady Ramsay and her professional experience in these spheres. All of that means that we should listen to what she says with great care.
It is far too late in the evening to go over all the arguments, but I commend to the Committee the report of the Joint Committee on Human Rights, which looked at the issue very seriously. I ask my noble friend to accept that we took the kinds of points that

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she has made very seriously. However, looking at practice elsewhere in the world, and looking at what was possible here, we concluded that the situation was not as absolute as she has very forthrightly expressed it this evening, and that there would be ways in which to tackle this problem while maintaining the responsibility for the integrity of the operation and for the safety of those involved in terribly dangerous and vital work. I ask noble Lords on all sides of the Committee, if they can spare the time, to read the report and to see what the committee had to say on the matter.
I wish to respond to what the noble Lord, Lord Thomas of Gresford, said about torture. Again, the Joint Committee on Human Rights has been deeply exercised about that and has spent a good deal of time considering it. I remind Members of the Committee that the Joint Committee is made up of six Members of this House and six Members of the other place, about half of whom are lawyers and half non-lawyers. All the principal parties are represented on that committee.
Of course the committee took into account what the Court of Appeal had ruled. But I hope that the Committee will forgive me at this late hour if I do not go into an expansive discourse. I beg the indulgence of the Committee if I read just three paragraphs from the Joint Committee's report, because I suspect that, given all the pressures of time and the rest, not everybody has had time to see them. I would just like to read them; they will not take long:
"The UN Committee Against Torture, in its recent Concluding Observations, expressed its concern that UK law had been interpreted to exclude the use of evidence extracted by torture only where its officials were complicit, and recommended that the Government should give some formal effect to its expressed intention not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture.
We asked the Home Secretary"—
when the Home Secretary was giving evidence—
"if he could confirm that none of the material which is relied upon in relation to the current detainees has been obtained from other sources abroad, including the United States, where there have been serious allegations of torture and prisoner abuse. The Home Secretary said that the Government did consider whether it believed that torture had been used in any particular case, and that it did not believe that torture had been used in the cases of the current detainees, but"
and I quote the Home Secretary—
"'we are in a serious difficulty here in that proving a negative in this case is a difficult thing to do.' When pressed on how precisely the Government establish that torture has not been used, the Home Secretary repeated that proving a negative is a difficult thing to do. When asked for an assurance that he will apply an absolute rule that if there is any question that evidence has been obtained by torture it must not be used, the Home Secretary said"—
and again, I quote—
"I would need to be convinced that it had been used which … I am not in this case'".
Our report concluded with this paragraph:
"We remain concerned about the possible use of torture evidence by UK authorities. Our concerns have not been allayed by the evidence of the Home Secretary. Indeed, we now have concerns about whether the Government has any system in place
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for ascertaining whether intelligence which reaches it in relation to people allegedly involved in terrorism-related activity has been obtained by torture. The Bill is silent on this question, despite the obvious concern that the material relied on by the Government to obtain control orders may well include material which has been obtained by torture. We recommend that the Government takes the opportunity presented by this Bill to implement the UNCAT recommendation that it give some formal effect to its expressed intention not to rely on or present in any proceedings evidence which it knows or believes to have been obtained by torture".
Baroness Park of Monmouth: I warmly endorse and support everything that the noble Baroness, Lady Ramsay, has said. I will, however, add two points. One is that we are also obliged to think about the rights of the agent who takes the risk, by working—probably for many years—in a highly dangerous environment, knowing that his life is at stake. That would be so in the kind of case we are discussing. Frankly, if such agents see this sort of thing happening in courts, and defence counsel—quite properly, given the interests of their client—revealing what should not be revealed, then we shall not have any agents. That would be a pretty serious situation.
It is also one of the more serious aspects of terrorism that it is extremely difficult to find people with access, courage, determination and lasting power. We should not overlook the fact that they too have rights. They need to be protected—and need that protection more, I fear, than the person who would be on trial.
The Earl of Onslow: I would surmise that the problem outlined by the noble Baroness, Lady Ramsay, and my noble friend Lady Park is not new. I assume that throughout the Irish Troubles we had agents deep within the IRA. We knew that we did not have to compromise them and we knew how not to compromise them.
On intercept evidence, I go back to the 1914 war. That may sound rather odd, but I refer to the famous Zimmermann telegram. Because we had broken the German diplomatic code, we could read all the German diplomatic exchanges within the United States. It was absolutely essential that we did not allow the Germans to know that we had broken their code—exactly the point made by the noble Baroness, Lady Ramsay.
Noble Lords will know that Zimmermann was the German Foreign Minister. He sent a telegram to the German ambassador in Mexico asking him to please stir up a war between the United States and Mexico. Mexico could then have Arizona, Texas and New Mexico back. That drove the United States up the wall. It was a really important piece of information. We had to convince the Americans that it was genuine—Woodrow Wilson was being difficult—and we had to convince the Germans that we had not broken their code.
The point is that there is nothing new in this problem and therefore we can deal with it in the old ways. We must be very careful not to compromise our sources of intelligence. A1'Qaeda knows perfectly well, because it has been all over the American newspapers, that when one of Osama bin Laden's people uses a satellite television in a cave in Afghanistan, almost immediately a drone aeroplane zaps in from on high, having picked up the signal. Those people know that we have very high

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quality interception. These problems can be overcome, as they have been in countless previous court cases, whether they concern the IRA or spies for the Soviet Union during the Cold War.
On the subject of torture, the noble Lord, Lord Judd, makes a good point in saying that the Home Secretary complains that he cannot prove a negative. If he gets a tip or information from the Uzbek intelligence community, it is almost a racing cert, because that is how those people function, that it has been obtained through torture. Equally, I suggest that the Egyptian anti-terrorist intelligence services are not exactly members of a Liberal Democrat parish council.
All these problems are knowable; there is nothing new in them and there is no reason why we cannot deal with them in complete conformity with a view to human rights and according to our own standards. That is what we are in this House to maintain.
Baroness Park of Monmouth: I cannot refrain from saying, with the greatest respect to my noble friend, that he is talking absolute nonsense. This is a totally different situation, one that involves far more sophisticated people and much greater danger. Thank God we did have people within the IRA, but we would not have had them if they had been exposed in this way. That will happen again. We are not talking about the Zimmermann telegram, although that was an important issue; we are talking about human beings—and human beings we will be putting at risk. I submit that that is not the same as putting systems at risk, although they are very important.
Lord Falconer of Thoroton: These are important provisions about the rules of procedure and it is incumbent on the Committee to consider the material put before us by those who have engaged in the debate. I am extraordinarily impressed by what has been said by both my noble friend Lady Ramsay and the noble Baroness, Lady Park. Indeed, their words are wholly reflected by those with any experience of what has gone on within SIAC. I refer to three authorities in that respect. First, the committee chaired by the noble Lord, Lord Newton, made it absolutely clear that certain material could not be disclosed either to the suspect who was the subject of the orders or to his lawyers. Secondly, the noble Lord, Lord Carlile of Berriew, made exactly the same points as the noble Baroness, Lady Park, in his report. He referred specifically to the fact that free disclosure would put human intelligence sources at risk. Thirdly, the judges in SIAC supported the non-disclosure of material to the suspect for precisely the reasons that the noble Baronesses, Lady Ramsay and Lady Park, put to this Committee this evening.
With respect to the noble Earl, Lord Onslow, he delivered an entertaining speech, although I prefer the epithet of the noble Baroness, Lady Park. It sounded absolute nonsense. One should look to see what methods had been crafted in the context of the present
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situation and accept that the people who had been working it may know better than us. We should accept those provisions.
I also draw attention to the fact that, as far as lawyers are concerned—in a sense, lawyers should follow a problem, rather than think they can impose a template—the European Court of Human Rights adopted the approach whereby it was not disclosed to the suspect or his or her lawyer. Instead, they indicated that the use of a special advocate was the right procedure, which is SIAC. As I indicated during earlier submissions, the approach that SIAC has taken was explicitly approved on two separate occasions by the Court of Appeal as being a just process. The Court of Appeal looked at it and said that it is the right way to deal with it.
In the case of M, the noble and learned Lord, Lord Woolf, the Lord Chief Justice, explained:
"As this appeal illustrates, a special advocate"—
which means that some material has not been disclosed to the suspect—
"can play an important role in protecting an appellant's interests before SIAC. He can seek further information. He can ensure that evidence before SIAC is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant".
He concluded:
"It is possible by using special advocates to ensure that those detained can achieve justice and it is wrong, therefore, to undervalue the SIAC appeals process".
That is somebody who has looked at it on a number of occasions. Everybody who has looked at it thinks that that is the right way to deal with it.
I shall go through the provisions about rules very quickly to satisfy the noble Lord, Lord Kingsland. Paragraph 4(1)(a) states:
"make provision about the mode and burden of proof".
We delete the words "and burden" to deal with his point. I cannot believe that he objects to rules being made which talk about the mode of proof,
"in control order proceedings and about evidence in such proceedings".
Paragraph 4(1)(b) states:
"enable or require such proceedings to be determined without a hearing".
I cannot believe that the noble Lord, Lord Kingsland, wants it to be necessary for there to be a hearing even where there is a consent order or for some minor matter. Of course not. Therefore, paragraph 4(1)(b) is not the horror that the noble Lord sought to suggest it was.
Paragraph 4(1)(c) states:
"make provision about legal representation in such proceedings".
That was put in so that the court can allow somebody who would otherwise not have rights of audience to have rights of audience. I do not know whether or not the noble Lord would wish that to be removed.

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Paragraph 4(2)(a) states:
"make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
That is the problem in relation to not disclosing material to the suspect or his lawyer. If he has one is a matter for him to decide, because I made clear previously that he would be entitled to legal aid without a means test.
Paragraph 4(2)(b) states:
"make provision enabling the relevant court to conduct proceedings in the absence of any person, including the relevant party to the proceedings and his legal representative (if he has one)".
Again, that is exactly the same point.
Paragraph 4(2)(c) states:
"make provision about the functions in control order proceedings and relevant appeal proceedings of persons appointed under paragraph 7".
That is the special advocate procedure.
Paragraph 4(2)(d) states:
"make provision enabling the relevant court to give a relevant party to control order proceedings or relevant appeal proceedings a summary of evidence taken in his absence".
Again, this allows him to be told certain things, but not others.
The provisions in paragraph 4(2)(a) to (d) raise four square the balance between protecting human intelligence and intercept material, which is method, and the right to try to give as fair as possible a trial to the suspect. We put them in so that it is clear that we can adopt the SIAC rules. I am surprised that the noble Lord, Lord Kingsland, objects.
Paragraph 4(3)(c) has also been referred to. It states:
"the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
We make it clear that any exculpatory material has to be disclosed. The practice at the moment is that the Secretary of State gets his counsel to check through all of the material to see whether there is any exculpatory material. That is then disclosed to the court and to the special advocate acting in the context of the suspect, who does not see all of the material.
If there is any material that the Secretary of State objects to the suspect or his legal representative seeing, then, as long as the court agrees—and it has hitherto—it will not be shown to the suspect or his legal representative. So both the court and the special advocate definitely see the exculpatory material and, if there is no objection, then so does the suspect and his legal representative.
Lord Mayhew of Twysden: I am grateful for that description of practice, which is very welcome. Why can it not be included specifically in the Bill, in the rule?
Lord Falconer of Thoroton: That is the way in which it works in practice. I do not think that the rule in
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paragraph 4(3)(c) would prevent that happening. That is the proposition that was being advanced. I shall certainly think carefully about what has been said in relation to it and, if 1 think that it does prevent that happening, or the rules reflect that happening, I shall come back to the House and seek to make an amendment to ensure that it does not happen.
Ultimately a point could be reached where, having disclosed the material to the court and to the special advocate, if the court took the view that the suspect should see that material and the Secretary of State took the view that that would be intensely damaging to national security, it would be for the Secretary or State to decide at that point whether he was going to proceed with relying on that material. But I make it clear that exculpatory material has got to be shown to the court and to the special advocate. I think that meets the point made by the noble and learned Lord, Lord Mayhew.
Lord Thomas of Gresford: Perhaps the noble and learned Lord can help me on that topic. When the SIAC sees material that is not disclosed either to the applicant or to his representative, is it entitled to act upon it? Usually in a criminal trial the judge will look at material to decide whether it is relevant or whether it should be disclosed, but he does not act on it because there is a jury, and it is the jury who are the finders of fact. What happens with material disclosed to SIAC? Is it entitled to act upon that material?
Lord Falconer of Thoroton: Of course it is entitled to act on it. The decision is being made by SIAC and it must make its decision on the basis of all the material that is put before it. If there is material that is shown to the court and looked at by the special advocate but not seen by the applicant or his legal representative, SIAC is obliged to consider all of the material before it in reaching a decision. There is no exclusion of the material from its decision-making process. It might not attach much weight to it for evidential reasons or it might attach significant weight to it; it is for SIAC to decide.
The way in which the commission operates is that it has to try to be as fair as it can be to everyone. It has to make its decision based on all the material before it.
Lord Thomas of Gresford: I am grateful for that clarification. Does it then follow that SIAC makes a decision and forms its reasons based upon material that is never shown to the applicant, but then does not tell him those reasons? So his liberty can be diminished without him ever knowing what SIAC has seen, what the allegations are and what the reasons are for his detention or whatever it may be. Is that how it works?
Lord Falconer of Thoroton: Again, I am disappointed that the noble Lord has not read the Newton report and the Carlile report, which went through all of this in great detail. The court seeks to give as much material as it possibly can to the suspect and his legal representatives. Some of the material, if disclosed to the suspect or his legal representative, could endanger method or source of information. So a balance has had to be struck, an

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approach that the European Court of Human Rights has upheld as a fair process because of the intervention of the special advocate. I refer not to SIAC but to the deportation tribunals in 1997, where that was upheld. We submit that there is no difference whether it is a control order or imprisonment pending deportation. We have adopted a procedure that the convention has suggested.
We think that each paragraph in the rules is not the sinister thing that the noble Lord suggests but a sensible and workable way of putting together the rules. We put in the specific provisions relating to the rules in part to ensure that there will be a proper debate about what will go into the rules on the first occasion. I am glad that we did so because it has enabled us to get rid of some misconceptions and face head on the issue of how the procedure will work.
Baroness Falkner of Margravine: I wish to readdress the question of my noble friend Lord Thomas. Does the noble and learned Lord, the Lord Chancellor, accept or agree that a procedure used for immigration tribunals would stand the test were it to come forward in this context of restrictions on liberty and so forth?
Lord Falconer of Thoroton: Yes, I believe that it would. I believe that it is the fairest procedure that can be devised that ensures that the suspect sees as much as possible and we protect our sources. The consequence for the people in respect of whom the procedure has been held to be fair is that they have been put in prison and have been in prison for a considerable time. Control orders will not go that far. I have little hesitation in saying that I believe this to be the fairest procedure. The Lord Chief Justice described it as a procedure whereby justice could be done. That is the essential test of whether it is fair.
We have to face up to the need to strike that balance. The consequence of what the noble Baroness, Lady Falkner, is saying, is that if we cannot disclose everything then we cannot have control orders. That is not the approach that either we or, I believe, the Front Benches of either opposition party or the noble Lord, Lord Carlile, or the noble Lord, Lord Newton, or the courts take.
I turn to Amendment No. 179, the purpose of which is explicitly to prevent the court from using evidence obtained through use of torture. The Government unreservedly condemn the use of torture and have made it an important part of our foreign policy to pursue its eradication worldwide. There has been a great deal of speculation about the cases put before the Special Immigration Appeals Commission and whether they relied on material from other countries that may have been obtained using torture.
SIAC emphatically rejected any suggestion that any evidence relied on by the Home Secretary was or even may have been obtained by torture; or indeed by any inhuman or degrading treatment. The Court of Appeal confirmed SIAC's view. It is important to be clear that it is not the Home Secretary's intention to rely on or present to the court evidence where there is a
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knowledge or belief that torture has taken place. We do not believe that the amendment is appropriate because we do not need it.
I should make it clear that even though the Court of Appeal in A and Others—that is not the A and Others case that went to the House of Lords, but the other A—confirmed SIAC's view that there was no evidence that any material relied on by the Secretary of State had been obtained by torture, it decided by a majority the issue of whether such material could ever be admissible evidence.
On this issue the Court of Appeal held that,
"The Secretary of State could not rely on a statement which his agents had procured by torture, or with his agent's connivance at torture. He was not, however, precluded from relying, for the purposes of ss 21 and 15 ATCSA 2001, on evidence coming into his hands which had or might have been obtained through torture by agencies of other states over which he had no power or direction. If he had neither procured the torture nor connived at it, he had not offended the relevant constitutional principles. Provided that the Secretary of State was acting in good faith, a recognition of his responsibility for national security was required when assessing his approach to the material available to him. That conclusion was not altered by art 15 of the United Nations Convention Against Torture".
That matter is now going to the House of Lords.
Lord Judd: Does my noble and learned friend agree that it is not just a matter of human rights and related issues, but that it is fundamentally central to our considerations that information gained by torture is notoriously unreliable? If the Home Secretary does not know for certain how the information has been acquired, how can he evaluate that information and its reliability? Does that not serve to underline still further that, right at the centre of the decisions that may be made by the Home Secretary, there is the possibility that he is acting on information about whose quality he cannot be certain.
11.30 p.m.
Lord Falconer of Thoroton: I repeat our utter repudiation of torture. Governments will obtain material from other governments, but they may not know the precise details of how it was obtained and yet they may regard it as reliable; for example, the source has given reliable material in other circumstances. So reliability can be judged by testing what has been said elsewhere.
On the basis that the material is reliable, and there is no suggestion that it was acquired under torture, the Home Secretary would be justified in relying on it so that steps can be taken to prevent an atrocity in this country. As I say, I make it clear that we repudiate torture and that is an essential part of our foreign policy.
Lord Thomas of Gresford: Before we leave the topic altogether, the noble and learned Lord has quoted from the judgment of the Court of Appeal. Was it not the argument of the Government before the Court of Appeal that evidence obtained by torture, so long as it

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was not obtained by people under the control of the Government, was admissible and acceptable? Is that not encouraging the use of torture in other countries?
Lord Falconer of Thoroton: The Government's argument was that no material relied on by the Home Secretary had been obtained by torture. That was the first submission. The second submission was that, if, contrary to that first submission, it was obtained by torture and it was reliable, in certain circumstances it would be necessary for the Home Secretary to rely on it if he were to prevent an atrocity. Both arguments were accepted by the court, provided that the Secretary of State was acting in good faith. A recognition of his responsibility for national security was required when assessing his approach to the material available to him. The House of Lords will have to decide whether that is right or wrong.
I shall be interested to know the view of the noble Lord, Lord Thomas, if the Home Secretary were confronted by material that was reliable, because it was confirmed in another place—for example, material relating to another country had been provided by that source and it turned out to be right—and that material suggested that an atrocity might be about to occur. To what extent would the forces of the state be entitled to rely on that? Perhaps that argument is for another day.
Baroness Falkner of Margravine: I appreciate that the noble and learned Lord's words are not addressed to me but to my noble friend Lord Thomas. I believe he goes to the heart of the matter. If the Home Secretary found that the evidence was reliable, perhaps the noble and learned Lord can tell the Committee how the Home Secretary would expect to know that the evidence is reliable when it might have been obtained by torture and he does not have any information on the veracity of the material. Will there be some definitional test whereby the Home Secretary will certify that the information on which he bases his decision is not obtained by torture? Ergo, essentially we do not know. Therefore, how can we take serious decisions, based on a serious perception of a threat when we simply do not know. We know empirically that evidence obtained by torture tends on the whole to be unreliable.
Lord Falconer of Thoroton: I would much prefer that the noble Baroness, Lady Park, or my noble friend Lady Ramsay, answer that question. My instinctive reaction is to say, "How is the Home Secretary supposed to know?". He has to make a judgment and he has to take advice. In relation to intelligence, it may be that one of the most indicative signs that something is to be relied upon is whether the source had produced material in the past that had turned out to be reliable. It might depend on what the source was, whether human intelligence or technological intelligence. One would put everything together and come to a judgment in relation to where, overall, the intelligence points.
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That involves making a judgment and it involves the Home Secretary taking sensible advice and being able to evaluate all the material before him.
Lord Kingsland: I thank the noble and learned Lord for his response, and indeed all noble and noble and learned Lords who have spoken in this crucial debate.
Before I make my concluding remarks, I would like to press the noble and learned Lord on paragraph 4(3)(c), which deals with exculpatory evidence. The noble and learned Lord said he was not sure whether his undertakings about exculpatory evidence were consistent with that paragraph. It seems to me that they are not.
The paragraph states that,
"the Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court"—
I pause there—
"or to any other person, where he does not propose to rely on it in those proceedings".
It would make a great deal of difference to me in this whole debate if the noble and learned Lord were prepared to make a clear distinction between revealing this evidence to the court and revealing it to any other person.
I accept the powerful speeches made by the noble Baroness, Lady Ramsay, and my noble friend Lady Park, saying that there will be circumstances where it would be fatal to the national interest to reveal either the source of intelligence information or the method by which that source succeeded in gleaning it. I accept that it follows that evidence about the source and the methodology should not be revealed to any other person except the special advocate.
Does the noble and learned Lord agree, however, that the court ought to have all the evidence made available? By that, I mean the judge, because he would be in a position to sift that evidence and ensure that "any other person", at the end of the day, was only aware of the consequences of what had been discovered, and not the manner in which it had been discovered or the person who discovered it. If the judge could render down the information they had to what he considered was essential for the prospective subject of the control order to know, in all fairness, I would derive a great deal of comfort from what the noble and learned Lord said.
To say that the Secretary of State can simply assert that evidence is reliable, however, and to have to do no more, would make these control orders an executive act, not the consequence of a judicial decision, even though they would be made by a judge.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland, exactly follows what I was saying. I am happy to go away and, if necessary, amend paragraph 4(3)(c) to make it clear that nothing must prevent—indeed, there must be rules that require—the disclosure of exculpatory material to the court and to the special advocate.

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The firewall relates to material that could damage national security by going beyond the court or the special advocate to the suspect or his legal representative. I completely agree that exculpatory material has to go to the court and the special advocate. The question is where the line is drawn after that. I am not sure whether paragraph 4(3)(c) prevents that, but if it does, then we will amend it to ensure that the court and the special advocate, at least, see it. That is what I was saying and what I think the noble Lord, Lord Kingsland, is saying.
Lord Kingsland: I am much obliged to the noble and learned Lord the Lord Chancellor for that helpful response. More generally, I share what I suspect was behind the remarks of the noble Baroness, Lady Falkner, that the Government will probably be wrong to assume that, as far as the European Convention on Human Rights is concerned, what is good for SIAC deportation proceedings is also good for proceedings against British citizens who cannot be deported.
I believe that if the noble and learned Lord the Lord Chancellor simply applies the jurisprudence about SIAC to devising his rules, he will fall well short of what the law of this country now requires. He does not have a very long time in which to come to that conclusion but I believe that he will be driven to it by the law.
Our approach to this part of the Bill will remain as I laid it down at the outset. We will seek to remove paragraph 4 as presently drafted and replace it with a different draft which we believe will meet the standards that Article 6 of the convention requires. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thorotonmoved Amendment No. 178:
Page 17, line 12, leave out "and burden"
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 179 to 181 not moved.]
The Deputy Chairman of Committees: I must advise the Committee that if Amendment No. 182 is agreed to, I cannot call Amendment No. 183 due to pre-emption.
[Amendment No. 182 not moved.]
[Amendment No. 183 not moved.]
Lord Thomas of Gresfordmoved Amendment No. 184:
Page 17, line 32, at end insert—
"( ) make provision for supplying to a relevant party to control order proceedings or his legal representative (if he has one) a summary of the nature of the allegations against him and (where the court so orders) of the evidence upon which such allegations are based."
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The noble Lord said: I shall begin my introduction to this group of amendments by saying that since the time is now 11.40 p.m. and we have debated all these proposals already, I beg to move.
Lord Falconer of Thoroton: We have debated every one of these amendments at least once and, in many particularly privileged cases, more than once. For all the reasons I have already given, I oppose the amendment.
Lord Thomas of Gresford: I shall return to these matters tomorrow. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingslandhad given notice of his intention to move amendment No. 185.
Page 17, line 34, leave out paragraphs (a) and (b) and insert—
"( ) that all the reasons of the Secretary of State for decisions to which the proceedings relate and the evidence he adduces to support the decisions are given to or served on the relevant party at the same time or before they are given to the court: and"
The noble Lord said: For the reasons given by the noble Lord, Lord Thomas of Gresford, I shall not move Amendment No. 185 or any other of the amendments in my name in this group.
[Amendment No. 185 not moved.]
[Amendments Nos. 186 to 189 not moved.]
Lord Falconer of Thorotonhad given notice of his intention to move Amendment No. 190:
Page 17, line 45, at end insert—
"( ) Rules of court made in exercise of the relevant powers must include provision that proceedings on an appeal under section 7 must begin no later than the end of such period after the bringing of the appeal as is specified in the rules.".
The noble and learned Lord said: In the light of what happened earlier in the day we need to reconsider the position in relation to the non-derogating control orders and the circumstances in which the court gets involved, so I will not move Amendment No. 190.
[Amendment No. 190 not moved.]
[Amendment No. 191 not moved.]
The Deputy Chairman of Committees: Before calling Amendment No. 192, I must remind the Committee that if it is agreed to I cannot call Amendments Nos. 193 to 196 inclusive due to pre-emption.
[Amendment No. 192 not moved.]
[Amendment No. 193 not moved.]
The Duke of Montrosehad given notice of his intention to move Amendment No. 194:
Page 18, line 27, after "Chancellor" insert "or in Scotland, the Lord President"

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The noble Duke said: Given the assurance from the noble and learned Lord the Lord Chancellor about his view on the Lord President, I will not move Amendment No. 194.
[Amendment No. 194 not moved]
[Amendments Nos. 195 to 201 not moved.]
Schedule, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at fourteen minutes before midnight.