Lords Sitting of 10 March 2005

Preamble
(Part 1 of 2)
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwell): The CHAIRMAN OF COMMITTEES on the Woolsack.

Housing Demolition: Liverpool
Baroness Hooperasked Her Majesty's Government:
How they plan to replace the Victorian terraced houses in Liverpool, due to be demolished as a result of their strategy document Moving Forward: the Northern Way.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, where terraced homes are demolished, they will be replaced with good quality housing of mixed tenure and mixed price, in full consultation with residents to keep communities together. Building work on one location in Liverpool will start in a few weeks. Moving Forward: The Northern Way is a document produced by an independently chaired regional development agency-led group. It does not propose a particular level of demolition; it simply quoted a report by the Centre for Urban and Regional Studies that talked about the need for possible demolition.
Baroness Hooper: My Lords, I thank the Minister for his helpful reply which gives more clarity to the situation. Given that Liverpool is due to be the European Capital of Culture in 2008 and that the motto for that year—"Liverpool, The World in One City"—is epitomised by the Granby Street district, one of the oldest multi-racial communities which goes back well over 100 years. does the Minister agree that the desire of many homeowner residents in the remaining Victorian houses in that part of Liverpool to remain in their homes and preserve the value of their homes rather than see them demolished should be considered?
Since English Heritage and indeed the noble Lord, Lord Rogers, an architect of world repute, advocate that the refurbishment of these buildings is the better, cheaper and more environmentally friendly option, cannot the Government at least do something about the absurd VAT rule which zero-rates new build but imposes the full rate for the maintenance and refurbishment of traditional city dwellings such as these?
Lord Rooker: My Lords, I certainly take the noble Baroness's latter point on VAT. There is a paradox and it looks like a contradiction in policy. We are constrained by the VAT directive, of course, so unless a specific derogation is in place, we would have to apply the minimum rate of 5 per cent. But it is true that the policy is to build on brownfield rather than greenfield and yet the tax treatment is the same. In
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some areas of the north-west where projects are under way to convert two terraced houses into one, the VAT rules have actually required a bit more demolition than would otherwise have been the case.
The noble Baroness cited Liverpool as an example. I invite her and, indeed, my noble friend Lord Rogers and others, to visit Mary, in Powis Street in Toxteth— as I did on Monday, on my fourth visit to the Pathfinder. She has lived in that street for 66 years and in her current home for 45. The house is 124 years old. It was given a 30-year lease of life in the 1960s when there were large slum-clearance programmes. That 30-year lease is up. One has to think about sending good money after bad. In the past three years, she, with her neighbours, has worked very hard on consultation for new dwellings five minutes' walk away in order to keep the community together. I should add that those are on land that was occupied by 1960s maisonettes which were not built or constructed in a sustainable way.
Lord Greaves: My Lords, I welcome the Minister's confirmation that the Northern Way documents do not refer to a specific number of houses which may be demolished in the north of England. However, last year, the Deputy Prime Minister announced that he wanted to see 400,000 such houses demolished. Can the Minister confirm that that figure no longer applies but has been superseded by the documents and that there is no specific target of terraced houses in the north of England that the Government want to knock down?
Lord Rooker: No, my Lords, there is no specific target, which is why the Deputy Prime Minister said no such thing.
Baroness Trumpington: My Lords, having lived in a terraced Victorian house in Cambridge for several years—it was kind of updated with a bathroom, which it did not previously ha ve—I wonder whether the Minister agrees that variety of architecture is what makes the beauty of a city, rather than having uniform rows and rows of characterless houses.
Lord Rooker: Yes, my Lords. But I do not understand the problem. We have a programme not for clearing terraced houses but for redeveloping communities. That requires a mixture of refurbishment of houses, clearance and new build. Indeed, in the Pathfinder areas of the north-east and north-west over the next few years, there will be far more refurbishment than demolition. It is planned that 20,000 houses will be refurbished as opposed to some 10,000 removed, and those will be removed only where it does not make sense to send good money after bad. As I say, homes that were built sometimes without foundations in the century before last cannot, with the best will in the world, provide modern living for people. Therefore, they have served their useful purpose.
Baroness Hanham: My Lords, is the Minister aware of the previous housing policies for general improvement areas, where all across the country there have been endless examples of terraced houses such as these being put back into good order, in exactly the

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same position as that which the Government are aware of? Can the Minister say whether these houses could be preserved in something like the general improvement areas, rather than being knocked down and making people homeless as a result?
Lord Rooker: My Lords, I reject that outright. There is not a shred of evidence in the housing market Pathfinder areas of people being made homeless. Again I say to the noble Baroness that there is no presumption of demolition. I could take noble Lords to terraced housing which has been gutted and rebuilt internally to modern eco-standards—far better standards than those for modern houses. That was done for experimental purposes for lighting and heating. So there is not a programme for the demolition of these houses. Where they can be remodelled, we will do so, including knocking two into one by joining one to the back and one to the front, so that we can get decent quality housing.
One of the problems with some of this monotone housing is that it was all built the same—the same size housing in street after street. When young couples living in these very tiny houses start having children, they move out. We do not get sustainable communities in those areas. In the general improvement areas and under the plans of the 1960s and 1970s, many houses that were saved from demolition were given a 30-year makeover. Thirty years have passed. You have to ask about dwellings which are that old and cannot be made sustainable: would it be throwing good money after bad, or should we work with the community to provide more modern community areas in which they are involved? But there is no large-scale programme of demolition of terraced housing.
Lord Campbell-Savours: My Lords, is not house price inflation the biggest spur to house restoration and rehabilitation?
Lord Rooker: My Lords, a quite specific policy objective of the housing market Pathfinders—it has never occurred in any other programme, whether the general improvement areas, the housing action areas or the urban renewal areas—is to raise property values. In the past that has happened almost as a by-product of other work. We need to raise the values of these properties. It is unusual in the south-east to talk about falling house prices, but that is still the case in parts of the north-east and north-west where house values have not got back to what they were 10 years ago.

Olympic Games 2012: London Bid and Airport Capacity
11.8 a.m.
Lord Lloyd-Webberasked Her Majesty's Government:
What action they are taking to avoid the conditions at Heathrow Airport, particularly of Terminals 1, 2 and 3, affecting London's bid for the Olympic Games.
Lord Davies of Oldham: My Lords, Heathrow Airport is one of the many positive selling points in London's bid to host the 2012 Olympic Games. The bid document makes it clear that Heathrow is the best connected airport in the world and that it has ample capacity to cope with the arrival of the Olympic family. It will be further enhanced with the opening of the new state-of-the-art Terminal 5 in 2008.
Lord Lloyd-Webber: My Lords, I thank the Minister for that reply. I am not going to bore the House with a whole litany of broken down jetties and bus trips enforced. I would just like to ask the Minister whether any pressure could be put on the British Airports Authority at least to maintain better the buildings that it has.
Lord Davies of Oldham: My Lords, that is an important consideration, but the British Airports Authority has extensive plans for Heathrow. In addition to the construction of Terminal 5, to which I just referred, there is massive investment in Terminal 3 to enable it to take the new large aircraft, the A380, and substantial improvements to Terminals 1 and 2. Some £8 billion will be spent over the next decade. There is a great deal of investment in Heathrow. I agree with the noble Lord that of course it could do with improvement, but certainly by the time of the Olympic Games Heathrow will be well equipped to cope with the traffic.
Lady Saltoun of Abernethy: My Lords, I was slightly surprised to hear the Minister say that Heathrow is one of the best airports in the world. How often does he have occasion to use it?
Lord Davies of Oldham: My Lords, I am rather too busy with my obligations in the House to go to Heathrow very often. The House should recognise that Heathrow is the busiest airport in the world, and it will maintain that position over the next decade. Of course it is important that the modernisation should take place, although there are one or two modern airports that have had significant difficulties with their construction. Heathrow is an important link in British travel plans. Reverting again to the original Question, as far as concerns the Olympic Games, Heathrow will be a leading airport in 2012.
Lord Forsyth of Drumlean: My Lords, it is worth pointing out that today, despite its shortcomings, Heathrow is working thanks not least to the labour reforms brought in by the previous Conservative government; whereas Paris is not working and is afflicted by a lightning general strike on the day when the Olympic Committee is visiting Paris. Should not the committee take into account the stable economic conditions that we enjoy in Britain when deciding between London and Paris?
Lord Davies of Oldham: My Lords, I am surprised that the noble Lord is not aware of the rule of the International Olympic Committee that one bid city does not comment on a rival bid while the process is going on. So I do not intend to do that.
Lord Peston: My Lords, will my noble friend reflect, without remotely criticising the Parisian Olympic bid, that at Heathrow bits do not tend to fall off the buildings, whereas I gather that it is quite dangerous to go to Charles de Gaulle these days? That might well affect the performance of various countries in the Olympics.
Lord Davies of Oldham: My Lords, it may be thought that I can resist temptation on only one occasion. I can do it twice—I am not going to comment.
Baroness Hamwee: My Lords, I can at least say that I wholeheartedly support the London bid. To support that bid, can the Minister give the House any more hope that Crossrail may be completed in time for the Olympic Games to take place in 2012?
Lord Davies of Oldham: My Lords, the House knows that the timetable for Crossrail is 2014, so it is not related to the Olympic bid. Other improvements to transport are destined to be in play by 2012, of which the most significant is being able to transport passengers from King's Cross St Pancras to the Olympic site in seven minutes through the "javelin" route, which will be using the developed Channel Tunnel rail link.
Viscount Waverley: My Lords, having waited 25 minutes this morning for a tow into the cul-de-sac at Terminal 4 on a flight from Dubai, may I ask whether consideration should be given to lifting the early-morning noise restrictions for just before and during the Games, if London is successful in the bid?
Lord Davies of Oldham: My Lords, for every passenger in the air, there are many hundreds on the ground with different interests as far as concerns noise.
Lord Dixon-Smith: My Lords, for those who find Heathrow too much of a strain, I point out that the runway at Stansted Airport is operating at about only half its capacity at present. The British Airports Authority has a planning application in preparation to develop the buildings along Stansted airport to the point where they can handle that runway at full capacity, which will increase capacity there by 20 million passengers per annum, with far superior access to east London than Heathrow. Does the Minister agree that Stansted might make a useful additional facility, which ought to help the Olympic bid forward if access is considered to be a problem?
Lord Davies of Oldham: My Lords, certainly Stansted plays a part in the bid as regards the transport arrangements because it is well connected with east
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London, and improvements to that line are being planned. We should not exaggerate the extent to which there will be pressure on airports from the Olympic Games. I merely cite that at present Heathrow accommodates 50,000 passengers an hour. Only 55,000 in the Olympic family would come here, including all those associated with the Games and the athletes, so our airport capacity can well cope. When our bid is successful, the Olympic Games will be going on at a time when others who are not interested in the Games will be taking holidays elsewhere.

Teacher Training
11.15 a.m.
Lord Pearson of Rannochasked Her Majesty's Government:
Whether they are satisfied with the academic qualifications of those entering undergraduate courses for teacher training.
Lord Triesman: My Lords, the Government are concerned that children should be taught by teachers with the right qualities and skills. We require initial teacher training providers to satisfy themselves that trainees entering undergraduate courses for teacher training have a capability to meet the standards required for the award of qualified teacher status. Higher education providers set and monitor their own academic requirements for entry to undergraduate teacher training courses, as they do for all other degree courses.
Lord Pearson of Rannoch: My Lords, I thank the Minister for that Answer. If one considers that teacher training is the soil in which the roots of our education system feed, the situation appears to be very worrying. Does the Minister agree that the Written Answer given to me by his noble friend Lord Filkin on 18 January, when referred to the DfES website, reveals that the average attainment of those entering undergraduate teacher training courses is well below one E at A-level, or 20 points on the UCAS scale? If that is so, how is this lack of subject knowledge rectified by the courses in question? If it is not, how can the teachers concerned impart knowledge which they do not possess?
Lord Triesman: My Lords, the first thing to do is to put this into context. Teaching is a fully professionally qualified occupation. Approximately 15 per cent of teachers start their career as undergraduates, whereas the remainder go through postgraduate qualification systems. I have the data for 2002–03, the most recent year for which figures are fully available, and it is true that those entering undergraduate teacher training courses had lower average attainment in pre-HE qualifications than those who were entering other degree courses. It is equally significant that by the time they graduated, their pattern of graduation qualifications, 2:1s and 2:2s and so on, were absolutely comparable with people graduating from other

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courses. I have no reason to believe that the additional attainment that they had achieved during their period at university is not something to celebrate.
Baroness Sharp of Guildford: My Lords, does the Minister agree that over the course of time the number of students taking undergraduate courses in education has been falling, and the number entering the profession through postgraduate courses has been increasing? Do the Government have any plans over the longer run to phase out undergraduate courses in education completely?
Lord Triesman: My Lords, I am not aware of any plan to phase them out, although the statistics show that the postgraduate certificate is the major route. As I have said, 85 per cent, and increasing, enter that way. That means that people coming in already have a first degree in a specialist subject. The noble Lord, Lord Pearson, addressed that point. Even so, those teaching in primary schools, where they will on average be teaching around nine subjects, cannot have A-levels or a specialist degree in nine subjects. Yet, we also want people with excellent ability in primary education.
Baroness Morris of Bolton: My Lords, is the Minister aware of the Ofsted report of last November which found that one-third of trainee sixth-form and FE college teachers did not have the equivalent of a GCSE grade C in English or maths? Is he content with that? If not, will he give the House some indication of what action the Government intend to take?
Lord Triesman: My Lords, the Ofsted reports have shown a steady improvement in the attainment of children, particularly in primary school, who are taught by the very teachers to whom the noble Baroness refers. It is really important to look attentively to the data. Let me look at them in relation to maths, one of the subjects mentioned. Although 24 per cent of teachers who taught some maths did not have a post-A-level qualification in maths in 2002, 88 per cent of all maths courses were taught by teachers who had such a qualification. Simply reading the raw data does not provide the picture that we need to study.
Lord Pearson of Rannoch: My Lords, may I press the noble Lord on his reply to me? Does he agree that the average attainment of those entering undergraduate courses for teacher training is well below one E at A-level? Does he further agree that, 10 years ago, it was two Es at A-level, so the situation is deteriorating and should be addressed?
Lord Triesman: My Lords, we want people with the best attainment levels entering teaching, because it is so vital. Any slippage in one sense would be a cause of concern. However, I ask the House to reflect a little on the history of how people have entered teaching. Directly after the war, a very large number of people entered teaching without any formal qualification, but
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went through a heavily accelerated process in the emergency teaching scheme. It could be said that they were not qualified in the ways that we would like to see today, but they were the people who made sure that education in this country was of an exceptionally high standard in the period which followed the war.

Alzheimer's Disease: NICE Guidance
11.22 a.m.
Baroness Greengrossasked Her Majesty's Government:
Why the National Institute for Clinical Excellence has reversed its January 2001 guidance and recommended withdrawal of access to medicines for Alzheimer's disease from the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the draft technology appraisal issued by NICE on 1 March is a consultation document setting out its proposed guidance on drugs for the treatment of Alzheimer's disease. I understand that NICE's draft recommendations differ from those in its original 2001 appraisal because it has taken account of more recent evidence on the effectiveness of the drugs. NICE will carefully consider all consultation responses before issuing its final guidance. Until that is issued, the NHS should adhere to the recommendation of NICE's 2001 appraisal, which means that existing patients should continue with their present treatment.
Baroness Greengross: My Lords, I thank the Minister for that reply, which gives me some hope. I am sure that he will agree that the true cost of withdrawing the drugs, if they were to be withdrawn, would be much greater than the direct cost to the NHS. In considering it, did NICE look at the cost to the economy of people leaving work to become carers, for example, or the cost to health and social care providers as well as families of the need for greater hospital nursing and community care services? Will the Government's response to the NICE recommendation, when it has been considered, take account of the cost in human suffering of the growing number of people for whom the drugs could give six months or even a year of prolonged independence, as well as the impact on their loved ones of a disease that we all acknowledge is absolutely dreadful?
Lord Warner: My Lords, I am sure that the whole House will sympathise with all people who have Alzheimer's and their families. The noble Baroness is right—it is important that full and proper account is taken of the wider impact of the drugs, particularly on the carers of people with Alzheimer's disease, who are often elderly themselves. The full costs and benefits need to be taken into account. I am sure that the issue will be considered very carefully by NICE in the

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consultation process that is taking place, and that full information on the issues will be totally explored in that process.
Lord McColl of Dulwich: My Lords, does the Minister accept that we have seven years of very good evidence that the drugs improve the quality of life of the patients and their carers, and that the only way to determine whether the drugs will benefit a patient is to try them out?
Lord Warner: My Lords, I accept that we need evidence. That is why, in the whole area of technology appraisals, the Government established the National Institute for Clinical Excellence so that the effectiveness evidence could be fully explored and documented in the public arena, and that the data could be related to the cost in terms of quality-of-life years. In this case, I am sure that NICE will consider all the evidence, as it has done in other parts of its work.
Lord Hunt of Kings Heath: My Lords, does my noble friend accept that, over the years that NICE has been in existence, a considerable number of new drugs that have proved very effective have been made available to NHS patients as a result of the work that it has undertaken? Does that not suggest that we should have some trust in its judgment and await the final results of its work in the area?
Lord Warner: My Lords, my noble friend is right; I am not surprised about that given his experience. NICE has an international reputation for its work on clinical effectiveness and cost-effectiveness. Many of its pieces of guidance—there have been 88 technology appraisals, of which this is one, and 25 clinical guidelines—have produced results that have benefited thousands of patients. On record, I want to correct what has been said in the media. The recommendation is not a matter of cost. NICE has recommended many drugs with far higher costs than the Alzheimer's drugs in this study.
Baroness Gardner of Parkes: My Lords, what is the cost on average of treating a patient with the drugs that it is proposed be discontinued? I am clear that NICE has to assess things on the basis of value for money; on the whole, we are impressed by its efficiency. However, as my noble friend said, the trial research period of seven years is a long time to establish the effectiveness.
Lord Warner: My Lords, we are generalising a bit in the area, but a typical annual cost per patient for this class of drugs would be about £1,000, which is relatively low compared with some other drugs. For example, the annual cost of some drugs for treatment of rheumatoid arthritis is between £8,500 and £10,500. I emphasise that the recommendation is not a matter of cost. NICE is looking at the clinical effectiveness as well. We must have some trust in its capacity to evaluate the evidence available in the area.
Baroness Neuberger: My Lords, how will individual patients be involved in making decisions about the use
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of the drugs? NICE has a patients' panel. To what extent will it be involved, especially through patients who have already found the drugs helpful and those who believe that they might?
Lord Warner: My Lords, NICE has a tremendous record in taking account of patients' views when preparing guidance. It makes particular effort to include patients and the public in the development of all its guidance. It also operates a citizens' council, a 30-member advisory body established to consult and advise on social, moral and ethical issues relating to its work. On this health technology appraisal, NICE consulted a number of patient care groups, such as the Alzheimer's Society, Counsel and Care for the elderly, Age Concern, the Dementia Care Trust and the Mental Health Foundation. It will continue to listen to advice from all those sources during the process of consultation.

Hereditary Peers' By-election
11.29 a.m.
The Clerk of the Parliaments: My Lords, with the leave of the House, I am now able to announce the result of a by-election to elect a Conservative hereditary Peer, in accordance with Standing Order 10.
Forty-two Lords completed valid ballot papers. A paper setting out the results is being made available in the Printed Paper Office and the Library. That paper gives the number of votes cast for each candidate.
The successful candidate was Lord De Mauley.

Business of the House: Unstarred Question
Lord Grocott: My Lords, now that the excitement of that result has subsided, I beg to move the first Motion standing on the Order Paper in the name of the Leader of the House.
Moved, That the following Unstarred Question be referred to a Grand Committee—
The Baroness Walmsley—To ask Her Majesty's Government what progress has been made on the recommendations of the United Nations Committee on the Rights of the Child Report 2002.—(Lord Grocott.)
On Question, Motion agreed to.

Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005
Lord Grocott: My Lords, I beg to move the second Motion standing on the Order Paper in the name of the Leader of the House.
Moved, That the draft regulations be referred to a Grand Committee.—(Lord Grocott.)
On Question, Motion agreed to.

Child Benefit Bill
Lord Grocott: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord McIntosh of Haringey.
Moved, That the order of commitment of 3 March last be discharged, and that the Bill be committed to a Committee of the Whole House.—(Lord Grocott.)
On Question, Motion agreed to.

Higher Education (Northern Ireland) Order 2005
Baroness Farrington of Ribbleton: My Lords, on behalf of the Lord President, I beg to move the third Motion standing in her name on the Order Paper.
Moved, That the order of 7 March referring the draft order to a Grand Committee be discharged.—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Mental Capacity Bill
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, notwithstanding the Motion agreed to by the House on 22 February 2005, the amendments for the Report stage be marshalled and considered in the following order:

Clause 58,

Clauses 1 to 9,

Schedule 1,

Clauses 10 to 18,

Schedule 2,

Clauses 19 to 57,

Clause 59,

Schedule 3,

Clauses 60 to 62,

Schedules 4 and 5,

Clause 63,

Schedules 6 and 7,

Clauses 64 and 65.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.

Prevention of Terrorism Bill
11.31 a.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved accordingly, and, on Question, Motion agreed to.

Prevention of Terrorism Bill
  COMMONS AMENDMENTS AND REASONS
  [The page and line refer to HL Bill 34 as first printed for the Lords.]

  LORDS AMENDMENTS
  1 Clause 1, page 1, line 3, leave out from beginning to end of line 16 and insert—
  "(1A) In this Act "control order" means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.
  (1B) The power to make a control order against an individual shall be exercisable by the court on an application by the Secretary of State.
  (1C) The obligations that may be imposed by a control order made against an individual are any obligations that the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
  (1D) Those obligations are—"
  The Commons agree to this amendment with the following amendments—
  lA Line 6, after "exercisable" insert"—

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

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

  1B Line 8, after "that" insert "the Secretary of State or (as the case may be)"
  1C Line 11, leave out "are" and insert "may include, in particular"
  8 Leave out Clause 3 and insert the following new clause—
  "Making of control orders
  (1) The court may make a control order against an individual if it—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  include any obligations which the court has reasonable grounds for considering are necessary as mentioned in section 1(3).
  (6) At the full hearing under subsection (1)(b), the court may—

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

  (b) revoke the order;

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

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

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

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

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

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

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

  (9) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (4)(a) or (8)(a) were satisfied.
  9 After Clause 3, insert the following new clause—
  "Duration and renewal of control orders
  (1) A non-derogating control order—

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

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

  (2) A non-derogating control order must specify when the period for which it is to have effect will end.
  (3) The court may renew a non-derogating control order (with or without modifications) for a period of 12 months if it—

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

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

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

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

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

  (5) The instrument renewing a non-derogating control order must specify when the period for which it is renewed will end.
  (6) A derogating control order ceases to have effect at the end of the period of 6 months beginning with the day on which it is made unless—

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

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

  (c) it is renewed.

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

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

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

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

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

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

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

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

  12 Clause 5, page 6, line 14, leave out subsections (1) to (3)
  15 Page 7, line 12, leave out "Secretary of State" and insert "court"
  16 After Clause 5, insert the following new clause—
  "Criminal investigations after making of control order
  (1) This section applies where a control order has been made against an individual if it appears to the Secretary of State—

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

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

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

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

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

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

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

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

  "police force" means—

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

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

  (c) the Police Service of Northern Ireland;

  (d) the Serious Organised Crime Agency; or

  (e) the Scottish Drug Enforcement Agency;

  "relevant prosecuting authority"—

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

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

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

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

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

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

  (7) In subsection (5)—

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

  850

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

  The Commons agree to this amendment with the following amendments—
  16A Line 3, leave out from "where" to "it" in line 4
  16B Line 5, leave out second "that" and insert "an"
  16C Line 8, after "offence" insert "is being or"
  16D Line 9, at end insert—
  "() Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism."
  16E Line 10, at beginning insert "If a control order is made against the individual"
  16F Line 11, leave out "this section" and insert "subsection (3)"
  16G Line 16, leave out subsection (4) and insert—
  "(4A) In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (3), to the extent that he considers it appropriate to do so.
  (4B) The requirements of subsection (4A) may be satisfied by consultation that took place wholly or partly before the passing of this Act."
  17 Leave out Clause 7
  The Commons disagree with the Lords in its amendment but propose the following amendments to the words so restored to the Bill—
  17A Page 8, line 33, leave out "made or"
  17B Page 8, line 36, leave out "making"
  17C Page 9, line 3, leave out subsection (4)
  17D Page 9, line 15, leave out second "the" and insert "a"
  17E Page 9, line 34, leave out "(4) to" and insert "(5) and"
  17F Page 9, line 38, leave out "the order or its renewal" and insert "the renewal of the order"
  22 Clause 9, page 11, line 1, leave out "Secretary of State" and insert "court"
  23 Page 11, line 1, leave out from "exercise" to end of line 3 and insert "or performance of any power or duty under any of sections (Criminal investigations after making of control order) or for the purposes of or in connection with the exercise or performance of any such power or duty;"
  The Commons agree to this amendment with the following amendment—
  23A Line 2, after "duty" insert "of his"
  28 Page 13, line 14, leave out "make, renew, modify and revoke" and insert "make application to the court for the making, renewing, modification and revoking of"
  37 Clause 12, page 14, line 37, leave out subsection (3)
  The Commons disagree to Lords Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37, but propose Amendments Nos. 37A to 37O in lieu.
  37A Page 4, line 36, at beginning insert—
  "(A1) The Secretary of State may make a control order against an individual if he—

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

  851

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

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

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

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

  (A3) A control order made by the Secretary of State is called a non-derogating control order."
  37B Page 5, line 2, leave out second "the" and insert "a"
  37C Page 5, line 12, at end insert—
  "() It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to he prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."
  37D Page 5, line 12, at end insert the following new Clause—
  "Supervision by court of making of non-derogating control orders
  (1) The Secretary of State must not make a non-derogating control order against an individual except where—

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

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

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

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

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

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

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

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

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

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

  (4) The court's consideration on a reference under subsection (3)(a) must begin no more than 7 days after the day on which the control order in question was made.
  (5) The court may consider an application for permission under subsection (1)(a) or a reference under subsection (3)(a)—

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

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

  852

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

  but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.
  (6) On a reference under subsection (3)(a), the court—

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

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

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

  (7) On a reference under subsection (3)(a), the court may quash a certificate contained in the order for the purposes of subsection (1)(b) if it determines that the Secretary of State's decision that the certificate should be contained in the order was flawed.
  (8) The court must ensure that the controlled person is notified of its decision on a reference under subsection (3)(a).
  (9) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed—

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

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

  (10) In determining—

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

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

  the court must apply the principles applicable on an application for judicial review.
  (11) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are—

  (a) power to quash the order;

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

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

  (12) In every other case the court must decide that the control order is to continue in force.
  (13) If requested to do so by the controlled person, the court must discontinue any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c)."
  37E Page 5, line 12, at end insert the following new clause—
  "Power of court to make derogating control orders
  (1) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  (b) revoke the order;

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

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

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

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

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

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

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

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

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

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

  (b) it ceases to have effect under clause

  (c) it is renewed.

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

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

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

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

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

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

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

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

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

  (a) that the proceedings on the application are unlikely to be completed before the time when the order is due to cease to have effect if not renewed, and

  (b) that that is not attributable to an unreasonable delay on the part of the Secretary of State in the making or conduct of the application,

  the court may (on one or more occasions) extend the period for which the order is to remain in force for the purpose of keeping it in force until the conclusion of the proceedings.
  (12) Where the court exercises its power under subsection (11) and subsequently renews the control order in question, the period of any renewal still runs from the time when the order would have ceased to have effect apart from that subsection.
  (13) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3)(a) or (7)(a) were satisfied."
  37F Page 6, line 14, after "a" insert "non-derogating"
  37G Page 6, line 22, after "a" insert "non-derogating"
  37H Page 6, line 30, leave out "by virtue of subsection (2)(d), make" and insert "make to the obligations imposed by a control order"
  371 Page 6, line 32, leave out from "obligation" to end of line 40 and insert—
  "(3A) An application may be made at any time to the court—

  (a) by the Secretary of State, or

  (b) by the controlled person.

  for the revocation of a derogating control order or for the modification of obligations imposed by such an order.
  (3B) On such an application, the court may modify the obligations imposed by the derogating control order only where—

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

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

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

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

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

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

  (3D) If the court at any time determines that a derogating control order needs to be modified so that it no longer imposes derogating obligations, it must revoke the order."
  37J Page 6, line 44, after "(2)(d)" insert "or (3B)(c)"
  37K Page 7, line 12, after "State" insert "or the court"
  37L Page 10, line 27, at end insert—
  "() No appeal by any person other than the Secretary of State shall lie from any determination—

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

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

  37M Page 10, line 33, at end insert—
  "() proceedings on an application for permission under (Supervision by court of making of non-derogating control orders)(1)(a);
  () proceedings on a reference under section (Supervision by court of making of non-derogating control orders)(3)(a);
  () proceedings on a hearing in pursuance of directions under section (Supervision by court of making of non-derogating control orders)(2)(c) or (6)(b) or (c);"
  37N Page 14, line 10, leave out from second "order" to end of line 11 and insert "made by the Secretary of State"
  37O Page 14, line 36, at end insert—
  "() Every power of the Secretary of State or of the court to revoke a control order or to modify the obligations imposed by such an order—

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

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

  The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, the usual channels have proposed that, for the convenience of the House, the amendments should be grouped by topic and that a single Motion should be moved on each group of amendments. Therefore, I beg
  856
  to move Motion A, which will be found on page 15 of the Marshalled List and covers Lords Amendments Nos. 1, 8, 9, 12, 13, 15, 16, 17, 22, 23, 28 and 37. The Motion is that this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.
  I think it would be wearisome for the House to go through all the issues at the same length as we have debated them over the past few days. Perhaps I may make three preliminary points. First, we proposed this Bill on the advice of the security services and the police to provide protection for the nation against the threat of terrorism. I hope that everyone in the House will accept our good faith in doing that, and I would expect any other government in power, having received that advice, almost certainly to have acted on the same advice.
  Secondly, I hope that we can debate calmly the issues relating to the steps that we have taken. I heard one noble Lord say on the radio this morning that this was being done by the Government only so that, if there were an atrocity during any election campaign, there would be someone else to blame. I deprecate such remarks. They are inappropriate and they bring this House into disrepute.
  Thirdly, I very much hope that people will recognise that we have made significant changes to the Bill in relation to representations made both here and in another place.
  I shall deal, first, with Motion A and identify the three significant changes or issues effected by this group of amendments. The first is judicial involvement in non-derogating orders. The Government listened very carefully to your Lordships on that matter. They very much understand the concerns expressed about ensuring that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate.
  Therefore, amendments introduced by the Government provide that the Secretary of State must apply to the High Court for leave to make a non-derogating order, save only where urgent action is required or any person is covered by the Part 4 provisions of the current 2001 Act. I shall return to those two categories in a moment.
  The procedure will therefore be that the Secretary of State will consider whether there are reasonable grounds for believing that a person is involved in terrorism-related activity on an assessment of all the intelligence material provided. If he considers that there are, he will apply to the High Court for leave to make the order. If the court refuses leave, the order will

  857
  not be made. There is therefore an important judicial assessment of the Secretary of State's judgment in each case before any order is made, subject to the two exceptions—urgency and Part 4—to which I referred a moment ago.
  If the court agrees that there is a case, it will give permission to the Secretary of State to make the order. Once made, the order will then be referred automatically to the court, which will arrange for a full hearing to take place as soon as possible thereafter. At the full hearing, the court will consider all the relevant material. It can decide what procedure it adopts. It will be able to hear the case in both open and closed sessions.
  As with derogating control orders, the subject will have access to the open material and his interests will be represented both by the lawyer of his choice in open sessions and by a special advocate in closed sessions. Again, the subject of the order will have access to the open judgment.
  The test to be exercised by the court in its full consideration will be one of judicial review. I make it clear again, as I did before, that that will include consideration of the proportionality issues and the legitimate aim issues in the European Convention on Human Rights.
  Lord Goodhart: My Lords—
  Lord Falconer of Thoroton: My Lords, I am sorry to stop the noble Lord but perhaps I may describe what has happened and then take interventions. As the House will know, the Government's view remains that it is most appropriate for these orders to be made by the Secretary of State. But, to ensure that in the vast majority of cases there is judicial involvement before the order is made, we have in effect adopted the third way, or something very similar to it, proposed by the noble and learned Lord, Lord Donaldson of Lymington. In effect, it was that, while the Secretary of State makes the orders, he can do so only with the leave of the court. We think that that is the right approach.
  Lord Goodhart: My Lords, does the noble and learned Lord the Lord Chancellor accept that what we are left with here is still a case of judicial review and not of the court making the order, and that therefore the statements that appear to have been made by the Government for publicity purposes—that they are extending judicial making of the order to non-derogating orders—is not in fact the case?
  Lord Falconer of Thoroton: My Lords, the Government have said that in the vast majority of cases the judge will be involved before the order is made. That is the effect of the change. The noble Lord is right that the test for judicial scrutiny is judicial review, but that test for judicial scrutiny will involve
  858
  considering whether or not the order being made is proportionate to the risk identified within the meaning of the Human Rights Act.
  Lord Goodhart: My Lords, with respect to the noble and learned Lord, where would he find any commitment by the judges that proportionality is an issue in judicial review cases?
  Lord Falconer of Thoroton: My Lords, in relation to these cases and in the terms that we are putting the measure into the Bill, our view of the law is that proportionality and whether it is a legitimate aim is something that the courts could consider. But I make it clear that that is what the Government intend by this wording.
  Moving on from the question of pre-judicial scrutiny before an order is made, I indicated that there are two exceptions. The first is urgency. There may be urgent cases where waiting for permission from the court is not an option. Those are cases where the Government need to take action immediately. In such circumstances, we submit that the Secretary of State should be able to make the order immediately. The Secretary of State will have to certify the urgency of the case in the order and, in that case, the order will take effect immediately. Where the urgent procedure is used, the Secretary of State must immediately refer the order to the court for confirmation within seven days and, if it is confirmed, the court will make arrangements for a full hearing.
  We have carefully considered whether it is possible to define "urgency" on the face of the Bill. We do not think it is either appropriate or necessary to do so. "Urgency" is a word in ordinary usage. The Secretary of State can make a judgment on it. Urgent procedure is likely to be used only rarely. The most likely circumstances would be where the subject matter of the order looked likely to disappear quickly. In those circumstances you would need to make an order very quickly to make it effective.
  The other exception is the Part 4 detainees under the terrorism legislation of 2000. The Government amendment also makes provision for the Secretary of State to make a non-derogating control order, without leave from the court, against the current Part 4 detainees, subject to a requirement that the cases must be referred to the courts immediately for confirmation of the order within seven days.
  In these cases, the courts have already considered and determined that there are grounds for suspecting each of them of being involved in terrorism, and that they pose a real threat to national security. It is extremely important in terms of protecting national security that we take immediate action in respect of them, so that they can be immediately controlled on being released from detention under the Part 4 powers. Any orders made against the current Part 4 detainees must be immediately referred to the High Court for confirmation and, if confirmed, then, again, the court will make arrangements for a full hearing of their cases as quickly as possible thereafter.

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  For these reasons, in relation to the judicial involvement in non-derogating orders, the Government believe that they have listened, and have put a system in place which appropriately strikes a balance between the need for the Secretary of State to be able to reach judgments on national security issues, and the need to ensure that those decisions are subject to legal scrutiny in the vast majority of cases before being actioned. In that small minority of cases where that is not possible, it will be brought before the courts as quickly as possible.
  The second issue raised in this group is a very important one, namely burden of proof. Control orders are preventive orders, not punishments. They are designed to prevent future terrorist acts being committed, not to punish what has been done in the past. That can only be done by the criminal process. What is required is an assessment of the overall security situation, of the risks posed by particular individuals, and of what measures are necessary and proportionate to meet those risks.
  "Balance of probabilities" is a high test, and the Government do not believe that it is appropriate for a once-for-all control order. The making of such orders involves the assessment of threat posed through the individual's past conduct and the risk of further such conduct, based on intelligence material as opposed to evidence about what has happened in the past. It is then for the Secretary of State and the court to determine what controls are needed to meet the threat and mitigate the risk that has been identified. It is an assessment of what is best in order to reduce the risk to the public. It must take the interests of the suspect into account. A balance needs to be struck.
  "Reasonable suspicion" is a better and more appropriate test when analysing intelligence material and drawing inferences from it. Both the Special Immigration Appeals Commission and the Court of Appeal have accepted this as being right not only in relation to the Part 4 target, but in relation to what Lord Justice Laws said in the A case. He said that if you imposed a balance of probabilities test at this stage it would frustrate the purpose of the policy, particularly when you are looking at disparate groups, where you are bringing together evidence from a wide range of sources and seeking, not to prove whether they did something in the past, but whether, looking at everything, the risk justifies the order that is made. On the basis of the advice that we have received, the effect of requiring a "balance of probabilities" test for this would frustrate the policy in precisely the way that Lord Justice Laws, sitting judicially, thought it would.
  This matter has been back to the Commons. Whatever view this House takes on this policy, I cannot believe that its wish is to frustrate the effectiveness of the non-derogating control orders. My understanding of the view of the vast majority of Members of this House is that they accept that there should be something in place. I earnestly ask them to think carefully about the burden of proof issue. If you introduce a burden of proof that makes it impossible for the policy to be effective, that would, in effect, frustrate the policy that the other place has accepted
  860
  and that the Government are putting before the House. The courts have already said that it would frustrate that policy.
  11.45 a.m.
  Lord Lloyd of Berwick: My Lords, the noble and learned Lord the Lord Chancellor relies on the judgment of Lord Justice Laws in the case of A (No. 2), as a ground for supporting reasonable suspicion in relation to non-derogating orders. How does that square with the Government's acceptance that balance of probability is the appropriate test for derogating orders? It does not make sense. Everybody accepts that derogating orders are more serious, but why should the same burden of proof not apply?
  Lord Falconer of Thoroton: My Lords, we have dealt with this point on a number of occasions, arid the noble and learned Lord, Lord Lloyd of Berwick, has asked the same question on a number of occasions. I shall give the answer again.
  We accept that, in relation to an order that deprives somebody of his liberty, which requires a derogation from the European Convention on Human Rights, very high hurdles should be set. If we can get over those hurdles—which should be possible only in exceptional cases—then, and only then we should be allowed to have a derogating control order. With the non-derogating control orders, however, where the suspect is not deprived of his liberty and the security services are saying that this would make a significant difference in the fight against terrorism, we believe the that appropriate burden of proof is one that makes those orders effective.
  Lord Forsyth of Drumlean: My Lords, I am listening to the noble and learned Lord the Lord Chancellor, but perhaps he could help me on the issue of safety and security. Given that the derogating orders are going to be used in respect of the most serious cases— the people who represent the greatest danger to the public—I do not understand the argument that says "We must have a lesser test for the non-derogating orders, because otherwise we would not be able to take action; but we are going to have a tougher test for the most serious people, because we are concerned about security". On both legal and practical grounds, like the noble and learned Lord, Lord Lloyd of Berwick, I do not understand the logic of this.
  Lord Falconer of Thoroton: My Lords, we are doing this because we are seeking to strike a balance between the rights of the suspect and the danger to the public. If you deprive somebody of their liberty, which is the effect of a derogating control order, then we accept that there needs to be a high test. The advice we are currently receiving is that we do not need to do that in the case of anybody. In those circumstances, we are prepared to accept a high test, because that is the advice we are getting from the security services.
  I keep coming back to this point: I hope that noble Lords would respect the fact that this is being done on a purely policy-driven basis, not remotely on a political basis at all.

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  I come to the third issue in this group of amendments: ensuring that prosecution is pursued. The stated policy has at all stages been that, if prosecution is an option, that route would be adopted in preference to the control orders. This House put a requirement in the Bill that the Director of Public Prosecutions express a view about the position in relation to prosecution. We have listened to what has been said. In Committee, we provided that where a control order has been made, that fact would be passed to the chief officer of police of the relevant area, so that he could investigate the individual's activities with a view to any criminal prosecution, consulting with the relevant prosecuting authorities as he or she felt necessary.
  However, in the light of continuing concerns, we have decided to provide what we believe is sought: an assurance in the Bill that prosecution will always be considered before a control order is sought. Amendment No. 16D therefore requires the Secretary of State to consult the chief officer of the relevant force—before making or applying for a control order—on the prospect of the individual being prosecuted for a terrorist offence. In considering the matter, the chief police officer will consult the relevant prosecuting authority where he considers it necessary and right to do so.
  That is the proper course. It is important to preserve the integrity and independence of the prosecuting system. We do not believe that the existence of a control order will preclude necessarily in every case successful prosecution at a later date. I remind the House that two of those certified under the Part 4 powers were subsequently charged and successfully prosecuted for terrorist-related offences.
  Those are the three issues raised by Motion A on page 15. There are amendments that noble Lords may speak to and move. In relation to two out of the three—namely, pre-judicial involvement before a non-derogating order is made and certifying that prosecution is not possible—we have listened and have moved considerably in the light of what this House has said. In relation to the balance of probabilities issue—which, I respectfully submit, is the critical issue—we have not moved because, on the basis of the advice that we are receiving and of the way that the courts have looked at it in the past, the effect of this House insisting on the balance of probabilities test would be very seriously to undermine the effectiveness of non-derogating control orders.
  In the light of the views expressed in the other place, I respectfully ask the House to respect the fact that we have moved in accordance with two out of three but on the third, a very important issue, the view of the other place should prevail.
  Moved, That this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15,
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  17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)
  Lord Thomas of Gresfordmoved, as an amendment to Motion A, Amendment Al:
  Leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. lA and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed; do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".
  37Q Leave out Clause 3
  37R Insert the following new Clause—
  "Power of court to make control orders
  (1) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

  (a) to hold an immediate preliminary hearing to determine whether to

  make a control order imposing obligations against that individual; and

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

  (2) The preliminary hearing under subsection (1)(a) maybe held

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

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

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

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

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

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

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

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

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

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

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

  (b) revoke the order;

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

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

  (b) where a modification made by the court removed an obligation,

  may (if it thinks tit) direct that this Act is to have effect as if the removed obligation had been quashed.
  (7) At the full hearing, the court may confirm the control order (with or without modifications) only if

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

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

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

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

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

  (b) it ceases to have effect under section 4; or

  (c) it is renewed.

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

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

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

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

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

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

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

  (11) Where, on an application for the renewal of a control order, it appears to court-

  (a) that the proceedings on the application are unlikely to be completed before the time when the order is due to cease to have effect if not renewed, and

  (b) that that is not attributable to an unreasonable delay on the part of the Secretary of State in the making or conduct of the application,

  the court may (on one or more occasions) extend the period for which the order i3 to remain in force for the purpose of keeping it in force until the conclusion of the proceedings.
  (12) Where the court exercises its power under subsection (11) and subsequently renews the control order in question, the period of any renewal still runs from ihe time when the order would have ceased to have effect apart from that subsection.
  (13) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3)(a) or (7)(a) were satisfied."
  37S Page 6, line 32, and insert—
  "(3A) An application may be made at any time to the court

  (a) by the Secretary of State, or

  (b) by the controlled person,

  for the revocation of a control order or for the modification of obligations imposed by such an order.
  (3B) On such an application, the court may modify the obligations imposed by the control order only where -

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

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

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

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

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

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

  (3D) If the court at any time determines that a derogating control order needs to be modified so that it no longer imposes derogating obligations, it must revoke the order."
  37T Page 14, line 36, at end insert—
  "() Every power of the court to revoke a control order or to modify the obligations imposed by such an order

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

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

  The noble Lord said: My Lords, we agree that there is a serious terrorist threat. We agree that the principal means of reducing that threat is by criminal prosecutions brought against a suspect in the regular criminal courts. We agree that there will still be a small number of cases in which there may be insufficient evidence for a prosecution, yet a means of control, a control order, is appropriate, imposing stringent conditions.
  We also agree that it is possible to envisage a national emergency of such enormous proportions that it would be necessary to bring before Parliament for approval an order derogating from the right to liberty and security of the person—Article 5 of the European convention. All parties, all around the House agree that such conditions do not arise at the

  865
  moment. If they did and if such a derogating order was made to bring about a designated derogation, we agree that a control order could impose restrictions that would effectively deprive the controlled person of his liberty.
  So the issue is largely one of process. The process here is very important, if not vital. We insist that the decision to impose a control order be a judicial decision, made in accordance with due process and with necessary safeguards and guarantees against injustice. We say that because it is the perception of injustice, orders based merely on reasonable suspicion, for example that may inflame communities and increase the danger of creating more terrorists than we can control either by imprisonment or the orders. There is another side to the coin.
  The Government's concession on judicial involvement for the making of non-derogating control orders amounts, in our view, to nothing of great significance. The Bill as originally drafted provided that once the Secretary of State had made his decision to impose a control order, it was the controlled person himself who had to initiate an application to the court for judicial review of that decision and to inquire whether that decision was procedurally flawed. It is common sense that a person who was made subject to a control order by the Secretary of State would not simply shrug his shoulders and take it on the chin, but would immediately exercise his right to apply for judicial review under the Bill as originally drafted, especially as legal aid is automatic.
  Judicial review means that the court can do no more than oversee the exercise by the Secretary of State of his powers. The latest case between the Judicial Committee of this House in 2003 emphasised that the court's task is not to substitute its own view for that of the decision-maker but to review the decision, although with an intensity appropriate to all the circumstances of the case. The Government's concession which, as my noble friend Lord Goodhart said earlier, has been portrayed as permitting the court to make the decision in non-derogating orders, is not that at all. It is simply this. Rather than placing the burden on the controlled person to apply for judicial review of the Secretary of State's decision, the concession is simply that the Secretary of State must himself automatically bring the control order decision before the court. Otherwise, nothing has changed.
  Lord Richard: My Lords, how can the noble Lord say that that is simply the concession? That is a massive concession. It means that all these cases will now go before a judge. In view of those circumstances, how can the noble Lord possibly maintain that this is, as I think I heard him say, smoke and mirrors?
  Lord Thomas of Gresford: My Lords, I say that because it is simply what was in the Bill before. The difference is that before it was the person who was the subject of the control order who had to go to the court
  866
  for judicial review, now it is the Secretary of State who goes to the court for judicial review, but the procedure is the same.
  Lord Richard: He has to, my Lords.
  Lord Thomas of Gresford: My Lords, certainly he has to. The point that I sought to make a moment ago is that it is inconceivable that a person against whom a control order had been made as proposed in the original Bill would not have sought to test it in the courts as soon as he possibly could.
  Under the present proposal, the courts will still not be able to decide the case on its merits, nor to decide which obligations are appropriate and necessary. It will still be the Secretary of State who makes those decisions. He will make an executive order that may severely limit the liberty of the individual, whether he be a foreign national or a British citizen. It is that which is so objectionable, so contrary to the genius of the common law of this country, as I referred to it on Second Reading, referring, as your Lordships may recall, to a 1765 case.
  Our amendments, therefore, bring together the procedures for both the derogating and non-derogating orders into a single procedure and ensure that it is the court which makes the orders, based on evidence placed before the court by the Secretary of State, and that it is also the court which decides on the particular obligations in the particular case. It will be for the court to judge whether the control order deals with the risk presented by that individual proportionately to the degree of restraint that is required of him.
  Baroness Wall of New Barnet: My Lords, does the noble Lord appreciate the opening statement of my noble and learned friend the Lord Chancellor, when he described the whole of this process as about protecting the people of our nation? Like many of us in the Chamber, I have sat through three days of debate. I intervene early today on the basis that I am not a lawyer and will not make legal points, but I am someone who is in touch with people out there, who feel very threatened and nervous that the dilution of the Government's original policy will be such that they will not have protection. Surely the noble Lord should have that at the forefront of his mind.
  Noon
  Lord Thomas of Gresford: My Lords, I am grateful to the noble Baroness for her intervention. She may have missed what I said at the very beginning, which was that we accept the principle of control orders, and even, in a national emergency, of a derogating control order. The difference between us is whether the order should be made by the Secretary of State or whether it should go to the court for a judge to make the decision. The latter is the tradition of this country, and part of its liberties that we seek to defend. Why it should be a "watering down" for a judge to take that decision rather than the Secretary of State, I simply do not

  867
  understand. It ensures that the decision is just, and arrived at on the evidence, not on prejudice or anything else.
  Our amendment ensures that the standard of proof that the court will apply is the civil standard, proof on a balance of probabilities. I share with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth of Drumlean, an inability to comprehend why the more serious the risk that is envisaged of a terrorist outrage, the more difficult it should be to establish that a person is a terrorist, and why, when the risk is less, it should be easy to impose controls and limitations on liberty through a control order. I fail to see the logic in that. It makes no sense.
  We reject the concept of diminution of liberty on the basis of hearsay or evidence that may be obtained by torture in a foreign jurisdiction, and which may come from tittle-tattle and cannot be tested or known by the individual concerned.
  I do not wish to speak at length. There are some tidying-up and consequential amendments, whereby the words "the Secretary of State" are replaced by "the court". Disagreeing with certain of the Commons amendments means that we remove from the Bill the provisions that were specific to non-derogating orders. That is all part of the process of putting together the procedures that are separate, as the Government want them, but that we say should be single.
  Government Amendment No. 37E is a clause headed "Power of court to make derogating control orders". While we accept most of its structure and wording, we have removed from that amendment all references that seek to draw a distinction between the procedures necessary for derogating and non-derogating orders so as to ensure a single, understandable and comprehensive system whereby the judge makes the decision, whatever type of order it is.
  We have added a requirement that at the full hearing, not at the preliminary hearing, it will be necessary for the Director of Public Prosecutions to inform the court that there is no reasonable prospect of a successful prosecution of the individual for terrorist-related activity. I heard what the noble and learned Lord the Lord Chancellor said about the provisions that have been put in that there must be consultation with the chief of police. For perhaps the past 20 years, we have tried to ensure that decisions about prosecution are in the hands of the Director of Public Prosecutions and the Crown Prosecution Service, to the point where we have now placed—I entirely agree with it—members of the Crown Prosecution Service in police stations to assist the police in the way they conduct their business. Why, then, should the noble and learned Lord go only half-way and consult with the chief of police rather than those whose responsibility and duty it is to consider whether a prosecution should be brought?
  As to matters of substance rather than consequential amendments, we insert a provision that, when modifying a derogating control order, if one is
  868
  ever made, the court takes into account whether the risk of terrorism arises from the public emergency that has given rise to the designated derogation.
  I come back to the basic principle: no diminution of liberty by the order of a Minister. It is for the courts to decide and determine these control orders. It should be done through proper and due process, so that the person whose liberty is affected does not suffer from a feeling of injustice that spreads through his community and creates a greater risk of terrorism. I beg to move.
  Moved, as an amendment to Motion A, Amendment A1, leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed: do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A o 16G to Lords Amendrnent No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".—(Lord Thomas of Gresford.)
  Lord Kingsland: My Lords, the noble and learned Lord the Lord Chancellor mentioned three points in support of his amendment from another place. The first was the balance of probabilities and the general question of the burden of proof test. The second was the role that the prosecutorial authorities ought to play in control orders. The third was the judicialisatiton of the non-derogating procedure. I should like to deal with each one of those.
  First, regarding the burden of proof, our amendment makes a big move in the direction of the Commons. We now accept that, at the leave stage, the test should be reasonable suspicion, and not balance of payments—balance of probabilities, rather. My mind must have been on other things.
  We listened carefully to what the noble and learned Lord said about that, and responded constructively. I am extremely surprised that he has not been prepared to do the same thing towards us. As to his arguments about the balance of probabilities, I can only refer the noble and learned Lord to the interventions made by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Forsyth. My noble friend made a telling intervention when he said that we would come to an absurd situation if the more serious the anticipated offence to be committed by the potential controllee, the more demanding the test that had to be applied before he was restrained. That is precisely the

  869
  position the Government would get themselves in if they followed the logic of the noble and learned Lord the Lord Chancellor.
  Secondly, although we accept that control orders will have a part to play in the new situation of international terrorism that we now face, prosecution must nevertheless be the first option. I am bewildered as to why the noble and learned Lord has not been prepared to accept our amendment on the DPP. As the noble Lord, Lord Thomas of Gresford, has said, the DPP is now the designated prosecutor. We have gone to a great deal of trouble to make the DPP completely independent of the political process; yet what does the noble and learned Lord do? He seeks to replace the DPP with the Secretary of State referring cases to the responsible police authority. That is a politicisation of the process. It removes the independence that we have inserted and reintroduces the role of a politician, which we deplore.
  Finally, and perhaps most importantly, there is the question of the role of the judge. The noble and learned Lord contends that the amendment from the Commons on the non-derogating procedure is a judicialisation of what was previously a political process. It is not. Whether innocently, negligently, or even, dare I say it, intentionally, it is deeply misleading to say that this will become a judicial process just because of the amendment put in by another place.
  First, the Secretary of State can still make an order if there is an emergency. He is perfectly entitled, if he wants, to say that every situation he deals with is an emergency. What is to prevent him doing that? There is nothing in the Bill to prevent him doing that. Even if it goes before the court, the test of "obviously flawed" that the court has to meet is well below even the test that applies in judicial review. It is almost inconceivable that a court would ever be able to find that an order of that nature was flawed.
  It is incomprehensible that the Government are not prepared to accept our approach. The noble Baroness, Lady Hayman, spoke tellingly of the foolishness of trying to have two separate procedures for derogating and non-derogating orders, when no one knows which one it is going to be until the judge has made a pronouncement. We have produced an amendment which meets many of the points made by the Government and, at the same time, ensures the security of the country, but is fair to the citizen.
  Lord Falconer of Thoroton: My Lords, there were three points there. First, regarding the burden of proof, no one during the debate has addressed the point put by Lord Justice Laws. He made it absolutely clear that if you are seeking to assess risk, introducing "balance of probabilities" as the test would frustrate the policy. That is also the view of the security services. Yes, points can be made about the derogating orders, which it is said at the moment are not necessary. Yes—absolutely right—we are making it very difficult for ourselves to obtain a derogating order due to the intrusion on the freedom of the individual concerned.
  870
  But we are acting on the basis of the advice of the security services that the protection at the moment will come in relation to non-derogating orders.
  The noble Lord, Lord Kingsland says that he has solved the problem by saying that there should be reasonable suspicion until you have a full hearing. So you can have an order for a matter of weeks until the court considers it. At which point, when the balance of probabilities test is applied, as the noble Lord would have it, then the order would probably be discharged. It is a very difficult judgment to make. We have had the benefit of the court looking at the matter already in relation to the SIAC material and it has concluded that the approach that we have taken is right. That is a view with which the Government agree. It is a view with which the people who are involved in it agree.
  In this group, this is almost certainly the most important issue. It is one where this House is, in effect, saying, "We know better than the courts. We know better than the other place and we know better than the advice that the Government are receiving in relation to it". It might be that noble Lords are right, but I would respectfully ask this House to think carefully before it takes that step.
  Lord Forsyth of Drumlean: My Lords, the noble and learned Lord the Lord Chancellor has pointed out a number of times that the other place has taken a view. The other place had three hours yesterday to consider every single amendment plus a Bill which it had not seen. Of the three hours, more than half the time was taken up by Front Bench speeches. It is ridiculous to suggest that the other place has discussed these matters in any detail—for it has not, because the Government have not given it the time to do so.
  Lord Falconer of Thoroton: My Lords, there are two points in relation to that. First, this issue was debated in some considerable detail in the other place on the previous occasion. Secondly, the way that our system works is that, while we in this place should appropriately ask the other place to consider issues, to think again, as we have done in relation to two out of three of the issues here, ultimately, if important points of principle remain after proper consideration—and I believe that there has been proper consideration—the way that we normally operate is that we give way to the other place.
  In relation to the other two issues, which, I would respectfully submit, are not nearly as critical as the burden of proof, this House asked for pre-judicial scrutiny before an order was made. The noble and learned Lord, Lord Donaldson, conscious of the differing roles of the executive and the judiciary, suggested the use of some form of words that respected the different roles. We have done that.
  12.15 p.m.
  With the greatest of respect to the noble Lord, Lord Thomas of Gresford, in terms of perception, the difference between the Home Secretary having power to make an order only with leave and the court making

  871
  an order is a distinction that will not be widely understood outside this House. But it is an important constitutional distinction, which we are right to put in. The critical thing that we have done is to say that in the vast majority of cases for non-derogating orders, there will be a judge who makes the decision on whether it is appropriate to make an order. That is what this House asked for.
  My final point relates to certification of prosecution. The right people to go to are the police, because it is the investigating body. It can seek advice in relation to the CPS. That is the way that matters are dealt with in this country. It is the appropriate way to deal with it.
  Viscount Bledisloe: My Lords, the noble and learned Lord has presented us with a package of three separate points. If we agree with him on some of them, but disagree with him on others, we have to decide which way to compromise. It would be an enormous help to us to know whether we were doing this in relation to a Bill which is going to become an Act of Parliament for an indefinite period or become an Act of Parliament which is going to come to an end and be totally reconsidered within a reasonable time. Could the noble and learned Lord enlighten us as to whether he is going accept Amendment No. 33D, in the name of the noble Baroness, Lady Hayman? If he is, for my part, I would find it much easier to accept a number of his other propositions, even if they produced a Bill which was not wholly satisfactory.
  Lord Falconer of Thoroton: My Lords, no, we are not going to accept the amendment in the name of the noble Baroness, Lady Hayman. No, we are not going to accept the sunset clause. We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it. We believe that it sends out the wrong signal to say that this is temporary legislation and we believe that, by putting in a sunset clause, the consequence would be that one would simply have these debates again in a very short period.
  So, no, we are not going to support a sunset clause; we are going to put in an annual renewal clause, as the other place has done. We believe that that is the right approach.
  Lord Ackner: My Lords—
  Lord Campbell of Alloway: My Lords, could I ask the noble and learned Lord—
  Noble Lords: Lord Ackner!
  Lord Ackner: My Lords, can the noble and learned Lord assist me on just two matters? Regarding non-derogation orders, it was generally accepted that it would be very easy for a combination of two or more to result in a loss of liberty. How will he deal with that?
  872
  Will he ignore the consequence and treat non-derogation orders that result in a loss of liberty as being different from derogation orders? My second point relates to onus. He said that the question was: does the risk justify the order? Why should not the onus be: is it more likely than not that the risk justifies the order?
  Lord Falconer of Thoroton: My Lords, regarding the first question, I do not say that it easy for the mistake to be made that a non-derogator becomes a derogator. I accept that it is possible. The consequence of that under the current Bill would be that the non-derogator would be a nullity, because there would not be a derogation from the ECHR and I accept that that is the position.
  The balance of probabilities test is not appropriate to risk assessment. Burden of proof is not the way that the courts consider whether to make an order to avoid a risk in the future. That is the view that the noble and learned Lord, Lord Hope, expressed in Rehman and we believe that that is the right approach.
  Lord Wedderburn of Charlton: My Lords, the noble and learned Lord, Lord Hope, did not sit in the Rehman case and my noble and learned friend has just repeated an appalling error which appeared in the document that came from the Secretary of State. The passage that was chosen, and to which my noble and learned friend presumably referred, was by the noble and learned Lord, Lord Hoffmann, whose reasoning the noble and learned Lord, Lord Steyn, has questioned, in that it was not central to the other judgments in the Rehman case. If a Government cannot put forward arguments when they do not know their Hopes from their Hoffmanns, they are very likely not to get their way.
  Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Wedderburn, is absolutely right. It was the noble and learned Lord, Lord Hoffmann, not the noble and learned Lord, Lord Hope. I apologise to the House, to the noble Lord, Lord Wedderburn, but most of all to the noble and learned Lords, Lord Hope and Lord Hoffmann, in that respect. However, I respectfully submit that the noble and learned Lord, Lord Hoffmann, is saying that the courts traditionally would not approach a decision about what order to make on the basis of a burden of proof issue. The burden of proof issue is about determining facts. This matter is about where the risk lies and the appropriate course to be taken to deal with the risk.
  Lord Thomas of Gresford: My Lords, it may be that we have come to the moment when we should make a decision on this matter.
  Baroness Ramsay of Cartvale: My Lords, I think that the noble Lord, Lord Thomas of Gresford, should allow some views from the rest of the House.
  Noble Lords: Hear, hear!
  Baroness Ramsay of Cartvale: My Lords, the noble Lord, Lord Thomas of Gresford, said that he was absolutely baffled and could not understand how people could accept reasonable suspicion as a ground for non-derogated orders and a higher burden of proof for the higher ones, and he quoted the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth, as saying that.
  As a non-lawyer, having listened very carefully to all this, I just say that I cannot understand why they cannot understand the difference between those two matters. It seems to me perfectly logical that the most severe order, which will only be gone for in the most severe cases and therefore also presumably has the strongest and most solid evidence on which to take that decision, is the one where you have the evidence that you can produce, and that in the slightly less serious but still very worrying cases for which you would want a non-derogated order, you may not have exactly the same kind of solidity of evidence but you would in fact go ahead and have a reasonable suspicion case.
  The second point that I would like to make is—
  Noble Lords: Order!
  Baroness Ramsay of Cartvale: My Lords, this is on the amendment.
  Lord Elton: My Lords, permit me to read paragraph 4.18 of the Companion:
  "It is not in order for Members to continue the debate on a motion or an unstarred question after the government's reply has been given, save for questions to the minister before the minister sits down".
  Baroness Ramsay of Cartvale: My Lords, in that case, will the Minister agree? I will not go into the question of the Secretary of State and the judge now, because I have to tell the House right away that I would not have given way from the original positions. I do not think that a judge should make these decisions. I think that they should be made by a Secretary of State. Would he further agree that there is no reason why this could not be the same kind of parallel as in the Interception of Communications Act, where the Secretary of State signs and the judge then comes in on review? Would he not agree—
  Noble Lords: Order!
  The Earl of Onslow: My Lords, the Leader of the House is our servant and should ensure that the House functions properly. I know that the noble Baroness, Lady Ramsay, feels strongly about this matter, but please, dear Leader, as they say in certain other places, help us to maintain order.
  The Lord President of the Council (Baroness Amos): My Lords, I totally agree with that. However, the House needs to adopt a degree of consistency in the
  874
  way in which it treats Members who seek to make points on this matter. We do not want to curtail the debate on this issue, because there is very strong feeling in the House about it. However, I entirely agree with the point made by the noble Lord, Lord Elton. that Members are permitted to make only very brief interventions after the Minister has spoken and before the Minister sits down. That convention has been broken across the Chamber today in the time that I have been sitting here. If the House is to behave appropriately, I would suggest that we apply our conventions in a consistent way across the House.
  Noble Lords: Hear, hear!
  Lord Thomas of Gresford: My Lords, I feel that we should bring this debate to a close. I want to say only a brief word on the standard of proof. It seems to me that the Government risk real injustice when they seek to act on reasonable suspicion. It almost inevitably follows that people will have restrictions on their liberty when they are innocent. I ask your Lordships to recall the problems that we have had in Northern Ireland as a result of miscarriages of justice that have taken place on the mainland of England when the standard of proof was "beyond reasonable doubt" but nevertheless there were miscarriages of justice.
  That is all I wish to say and I seek to test the opinion of the House on my amendment.
  12.26 p.m.
  On Question, Whether the said amendment (No. A1) shall be agreed to?
  Their Lordships divided: Contents, 214; Not-Contents, 125.

  Division No. 1

  CONTENTS

  Ackner, L.

  Carlisle of Bucklow, L.

  Addington, L.

  Carrington, L.

  Ahmed, L.

  Chalker of Wallasey, B.

  Alderdice, L.

  Chorley, L.

  Allenby of Megiddo, V.

  Clement-Jones, L.

  Ampthill, L.

  Cobbold, L.

  Anelay of St Johns, B.

  Cohen of Pimlico, B.

  Ashcroft, L.

  Colwyn, L.

  Astor of Hever, L.

  Cope of Berkeley, L.

  Avebury, L.

  Courtown, E.

  Baker of Dorking, L.

  Craigavon, V.

  Ballyedmond, L.

  Crathorne, L.

  Bell, L.

  Crickhowell, L.

  Bledisloe, V.

  Cuckney, L.

  Bonham-Carter of Yarnbury, B.

  Dahrendorf, L.

  Bradshaw, L.

  Dean of Harptree, L.

  Bridgeman, V.

  Denham, L.

  Bridges, L.

  Dholakia, L.

  Brittan of Spennithorne, L.

  Dixon-Smith, L.

  Brooke of Sutton Mandeville, L.

  Donaldson of Lymington, L.

  Brougham and Vaux, L.

  Dykes, L.

  Buscombe, B.

  Eccles of Moulton, B.

  Byford, B.

  Eden of Winton, L.

  Caithness, E.

  Elliott of Morpeth, L.

  Cameron of Lochbroom, L.

  Elton, L.

  Campbell of Alloway, L.

  Emerton, B.

  875

  Falkland, V.

  Moore of Wolvercote, L.

  Falkner of Margravine, B.

  Moran, L.

  Fearn, L.

  Morris of Bolton, B.

  Feldman, L.

  Mowbray and Stourton, L.

  Ferrers, E.

  Murton of Lindisfarne, L.

  Finlay of Llandaff, B.

  Neuberger, B.

  Fookes, B.

  Newby, L.

  Forsyth of Drumlean, L.

  Newton of Braintree, L.

  Fowler, L.

  Northesk, E.

  Fraser of Carmyllie, L.

  Northover, B.

  Freeman, L.

  Norton of Louth, L.

  Garden, L.

  Oakeshott of Seagrove Bay, L.

  Gardner of Parkes, B.

  O'Cathain, B.

  Garel-Jones, L.

  O'Neill of Bengarve, B.

  Geddes, L.

  Onslow, E.

  Glasgow, E.

  Oppenheim-Barnes, B.

  Glentoran, L.

  Park of Monmouth, B.

  Goodhart, L.

  Pearson of Rannoch, L.

  Goschen, V.

  Perry of Southwark, B.

  Greaves, L.

  Peyton of Yeovil, L.

  Greengross, B.

  Phillips of Sudbury, L.

  Greenway, L.

  Pilkington of Oxenford, L.

  Griffiths of Fforestfach, L.

  Platt of Writtle, B.

  Hamwee, B.

  Plumb, L.

  Hanham, B.

  Plummer of St. Marylebone, L.

  Hanningfield, L.

  Quinton, L.

  Harris of Richmond, B.

  Rawlings, B.

  Hayhoe, L.

  Razzall, L.

  Henley, L.

  Redesdale, L.

  Higgins, L.

  Rennard, L.

  Hodgson of Astley Abbotts, L.

  Renton, L.

  Hogg, B.

  Roberts of Conway, L.

  Home, E.

  Roberts of Llandudno, L.

  Hooper, B.

  Roper, L. [Teller]

  Hooson, L.

  Rotherwick, L.

  Howard of Rising. L.

  Russell-Johnston, L.

  Howe, E.

  Ryder of Wensum, L.

  Howe of Aberavon, L.

  Saatchi, L.

  Howe of Idlicote, B.

  St John of Fawsley, L.

  Hurd of Westwell, L.

  Saltoun of Abernethy, Ly.

  James of Holland Park, B.

  Sandwich, E.

  Jenkin of Roding. L.

  Scott of Needham Market, B.

  Joffe, L.

  Seccombe, B. [Teller]

  Judd, L.

  Selborne, E.

  Kalms, L.

  Selkirk of Douglas, L.

  Kennedy of The Shaws, B.

  Selsdon, L.

  Kimball, L.

  Sharp of Guildford, B.

  Kingsland, L.

  Sharples, B.

  Knight of Collingtree, B.

  Shaw of Northstead, L.

  Laing of Dunphail, L.

  Sheldon, L.

  Lang of Monkton, L.

  Shutt of Greetland, L.

  Lawson of Blaby, L.

  Smith of Clifton, L.

  Linklater of Butterstone, B.

  Soulsby of Swaffham Prior, L.

  Liverpool, E.

  Souhtwell, Bp.

  Livsey of Talgarth, L.

  Stern, B.

  Lloyd of Berwick, L.

  Stewartby, L.

  Ludford, B.

  Stoddart of Swindon, L.

  Luke, L.

  Strathclyde, L.

  Lyell, L.

  Swinfen, L.

  McColl of Dulwich, L.

  Taverne, L.

  Mackie of Benshie, L.

  Tenby, V

  MacLaurin of Knebworth, L.

  Thatcher, B.

  Maclennan of Rogart, L.

  Thomas of Gresford, L.

  McNally, L.

  Thomas of Walliswood, B.

  Maddock, B.

  Thomson of Monifieth, L.

  Mallalieu, B.

  Tope, L.

  Mancroft, L.

  Tordoff, L.

  Mar and Kellie, E.

  Trefgame, L.

  Marlesford, L.

  Trumpington, B.

  Mayhew of Twysden, L.

  Tugendhat, L.

  Michie of Gallanach, B.

  Ullswater, V.

  Miller of Chilthorne Domer, B.

  Vallance of Tummel, L.

  Miller of Hendon, B.

  Waddington, L.

  Monro of Langholm, L.

  Wade of Chorlton, L.

  Montrose, D.

  Wakeham, L.

  Moore of Lower Marsh, L.

  Walker of Worcester, L.

  876

  Wallace of Saltaire, L.

  Wilcox, B.

  Walmsley, B.

  Williamson of Horton, L.

  Walpole, L.

  Windlesham, L.

  Watson of Richmond, L.

  Wolfson, L.

  Wedderburn of Charlton, L.

  Wright of Richmond, L.

  NOT-CONTENTS

  Acton, L.

  Hunt of Chesterton, L.

  Amos, B. (Lord President of the

  Hunt of Kings Heath, L.

  Council)

  Janner of Braunstone, L.

  Andrews, B.

  Jones, L.

  Armstrong of Ilminster, L.

  Jordan, L.

  Ashton of Upholland, B.

  Kerr of Kinlochard, L.

  Bach, L.

  Kilclooney, L.

  Bassam of Brighton, L.

  King of West Bromwich, L.

  Bernstein of Craigweil, L.

  Layard, L.

  Bhattacharyya, L.

  Leitch, L.

  Billingham, B.

  Lipsey, L.

  Blood, B.

  Lockwood, B.

  Borrie, L.

  Lofthouse of Pontefract, L.

  Brett, L.

  Macdonald of Tradeston, L.

  Brooke of Alverthorpe, L.

  McIntosh of Haringey, L

  Brookman, L.

  McIntosh of Hudnall, B.

  Campbell-Savours, L.

  MacKenzie of Culkein, L.

  Carter, L.

  Mackenzie of Framwellgate, L.

  Christopher, L.

  McKenzie of Luton, L.

  Clarke of Hampstead, L.

  Massey of Darwen, B.

  Clinton-Davis, L.

  Maxton, L.

  Corbett of Castle Vale, L.

  Merlyn-Rees, L.

  Crawley, B.

  Mitchell, L.

  David, B.

  Morgan of Drefelin, B.

  Davies of Oldham, L. [Teller]

  Morgan of Huyton, B.

  Dean of Thornton-le-Fylde, B.

  Morris of Aberavon, L.

  Dearing, L.

  Morris of Manchester, L.

  Desai, L.

  Nicol, B.

  Dixon, L.

  Northbourne, L.

  Drayson, L.

  Palmer, L.

  Dubs, L.

  Patel, L.

  Evans of Parkside, L.

  Pendry, L.

  Evans of Temple Guiting, L.

  Ponsonby of Shulbrede, L.

  Farrington of Ribbleton, B.

  Radice, L.

  Falconer of Thoroton, L. (Lord

  Ramsay of Cartvale, B.

  Chancellor)

  Randall of St. Budeaux, L.

  Faulkner of Worcester, L.

  Rendell of Babergh, B.

  Filkin, L.

  Richard, L.

  Fyfe of Fairfield, L.

  Richardson of Calow, B.

  Gale, B.

  Rooker, L.

  Gavron, L.

  Rosser, L.

  Gibson of Market Rasen, B.

  Rowlands, L.

  Giddens, L.

  Royall of Blaisdon, B.

  Golding, B.

  Sainsbury of Turville, L.

  Goldsmith, L.

  Sawyer, L.

  Gordon of Strathblane, L.

  Scotland of Asthal, B.

  Goudie, B.

  Sewel, L.

  Gould of Brookwood, L.

  Simon, V.

  Gould of Potternewton, B.

  Stone of Blackheath, L.

  Graham of Edmonton, L.

  Strabolgi, L.

  Grocott, L. [Teller]

  Symons of Vernham Dean, B.

  Hannay of Chiswick, L.

  Thorton, B.

  Harris of Haringey, L.

  Triesman, L.

  Harrison, L.

  Truscott, L.

  Hart of Chilton, L.

  Tunnicliffe, L.

  Haskel, L.

  Turnberg, L.

  Haworth, L.

  Vincent of Coleshill, L.

  Hayman, B.

  Wall of New Barnet, B.

  Hilton of Eggardon, B.

  Warner, L.

  Hogg of Cumbernauld, L.

  Waverley, V.

  Hollis of Heigham, B.

  Whitty, L.

  Howells of St. Davids, B.

  Williams of Elvel, L.

  Hoyle, L.

  Winston, L.

  Hughes of Woodside, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  On Question, Motion, as amended, agreed to.
  12.38 p.m.

  LORDS AMENDMENT
  6 After Clause 1, insert the following new Clause—
  "Control orders: supplementary
  (1) If, as a consequence of the obligations imposed by a control order, a person becomes unemployed, arrangements shall be made for that person to receive any social security benefits or unemployment benefits to which he may be entitled.
  (2) If a control order is made in respect of a person already in receipt of social security benefits or unemployment benefits, arrangements shall be made to ensure that the person shall continue to receive those benefits.
  (3) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made, and his household, shall have access to, or shall continue to have access to, supplies of food, household and personal necessities.
  (4) In any case where a control order is made, appropriate arrangements shall be made to ensure that the person in respect of whom the order is made shall have access to such health care as may be necessary."
  The Commons disagree to this amendment for the following reason—
  6A Because the Lords amendment is unnecessary.
  Lord Falconer of Thoroton: My Lords, I beg to move Motion B, which will be found on page 19 of the Marshalled List, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. This amendment deals with the amendment tabled by the noble Lady, Lady Saltoun of Abernethy, on the previous occasion.
  Control orders are designed to disrupt terrorist-related activity, except to the extent of those restrictions deemed necessary for the purposes of safeguarding the public. They are not designed to interfere with a person's ability to live a law-abiding life and to support or sustain himself.
  Where an individual is or becomes eligible for benefits—whether unemployment, housing or other type of benefit—obligations imposed by a control order will not interfere with such entitlement. Nor would individuals be denied access to healthcare. It is accepted, of course, that in certain cases, special arrangements for precisely how normal services are accessed may need to be made because of particular obligations imposed on an individual; for example, restricting movement within a certain area at certain times.
  However, control orders are flexible: hence, the provision in the Bill which provides that an individual is not in breach of an obligation if prior permission to undertake the specific activity in question has been obtained. Clearly, the Secretary of State or the court, as the case may be, will need to have regard to individual circumstances when determining the precise conditions to be applied and how they will operate in practice.
  In addition, the individual concerned may apply for a variation of the obligations imposed should circumstances change. Nor is it true to say that there is
  878
  no experience of working within this type of framework. One of the 2001 Act detainees—for example, G—is subject to stringent bail conditions which have been tailored to his particular circumstances. Restrictions which take account of personal circumstances often form part of bail and licence conditions in criminal cases.
  The provisions which the noble Lady put forward, therefore, are not necessary. The point that she seeks to make will be covered by the ability both of the Secretary of State and the court to tailor the order to the circumstances. I hope, in those circumstances, that this House will not insist on its amendment.
  Moved, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.—(Lord Falconer of Thoroton.)
  Lady Saltoun of Abernethymoved, as an amendment to Motion B, Amendment B1:
  Leave out from "House" to end and insert "do insist on its Amendment No. 6".
  The noble Lady said: My Lords, before I speak about the amendment, I want to say how disgusted I was to hear the Home Secretary's misleading reference on the "Today" programme yesterday morning, to,
  "the surreal example of Lady Thatcher going into the Division Lobby to vote for increased social security for people suspected of being terrorists".
  There is not, and never has been, any question of increased social security payments in my amendment. There is only the matter of such social security payments to which such people are already entitled, or have become entitled due to government action. I reiterate that suspects are innocent until they are proved guilty in a court of law. I dislike intensely my amendment being made a vehicle for a cheap party-political jibe.
  The noble and learned Lord has explained to me very carefully why my amendment is unnecessary. Having listened very carefully to what he said, I am reasonably satisfied. However, I hope, by some means or other, to keep a fairly sharp eye on how the whole system will operate. Therefore, I am minded to withdraw the amendment—
  Lord Forsyth of Drumlean: My Lords, before the noble Lady sits down, I too heard the intervention by the Home Secretary on the radio and I heard him in the other place yesterday saying that the amendment was not necessary because the existing law provides for social security payments to be made. Therefore, both statements by the Home Secretary cannot be correct. He caricatured the noble Baroness, Lady Thatcher, as having voted for increased benefits. In reply, I hope that the Government will take the opportunity to

  879
  apologise to those Members who voted for the amendment and for the misleading statements that were made to the country.
  Lady Saltoun of Abernethy: My Lords, before I beg leave to withdraw the amendment, it is of course open—
  Lord Strathclyde: My Lords, perhaps I may proffer some advice, which is often a dangerous thing to do. I sense that there is a desire for a small debate on the amendment, so it is entirely appropriate for the noble Lady to move it and, in due course, the noble and learned Lord can respond. If, after that, she is still satisfied, she can withdraw her amendment.
  Lady Saltoun of Abernethy: My Lords, I beg to move.
  Moved, as an amendment to Motion B, Amendment B1, leave out from "House" to end and insert "do insist on its Amendment No. 6".—(Lady Saltoun of Abernethy.)
  The Earl of Onslow: My Lords, I originally put my name to the amendment because I thought that what the noble Lady, Lady Saltoun, had said was extremely valid. It is easy to see circumstances in which someone could be incapable of drawing social security benefits. Had the Minister, at the beginning, given the explanation that he has now given the House—the noble Baroness, from a deliciously sedentary position, says that the Minister did.
  Baroness Scotland of Asthal: My Lords, I find the statement made by the noble Earl surprising. In responding, as I hope I did courteously, to the amendment of the noble Lady, Lady Saltoun, I made it very clear that there was provision for benefits and that they were in no way adversely affected by this legislation. a fact that my noble and learned friend the Lord Chancellor has just repeated. To suggest that that was not firmly before the House is not only, if I may respectfully say so, an inaccurate statement, but also suggests that I did not properly inform the House of the true position. If noble Lords consult Hansard, I am sure that they will see that I was at pains so to do.
  12.45 p.m.
  The Earl of Onslow: My Lords, I am not accusing the noble Baroness of not telling the truth as she sees it, but it was not clear to us. I am very sorry that the noble Baroness puts on that face, but she did not make it clear to us. The noble and learned Lord, with his forensic ability, has now made it very clear to us. The fact that the Government have not known what they are doing, do not know how to present their case and change their case half-way through is the whole trouble with this Bill. I am pleased that the issue has been aired. I was disgusted when I heard what had been said about the noble Baroness, Lady Thatcher, but I am equally pleased that the noble Lady, Lady Saltoun, has indicated that she will withdraw her amendment.
  Lord Falconer of Thoroton: My Lords, we could have an inquest about what has been said in the House
  880
  in the build up to this point, and we could have an inquest about what has been said on the airwaves, but that would be extraordinarily unhelpful and extraordinarily divisive. Let us focus on the issues.
  Noble Lords: Say sorry!
  Lord Carlisle of Bucklow: My Lords, if a person in the position of the Home Secretary makes the kind of remarks that he made about the noble Baroness, Lady Thatcher, which have apparently no basis in fact at all, surely it is courteous for i he government Front Bench to accept that and to apologise. I had the great privilege of being a junior Minister in the Home Office when Mr Maudling was Secretary of State and he said that the duty of the Home Secretary was to try to be above the political battle and to take an interest in the country as a whole. With respect, the remarks made by Mr Clarke yesterday morning on the eight o'clock programme were in very poor taste.
  Lord Falconer of Thoroton: My Lords, I genuinely do not want to inflame the situation in any way. I cannot start apologising for every statement made. The situation would become a ridiculous to and fro. Perhaps noble Lords heard what some people said this morning about me on the radio. It was absolutely outrageous. I am bearing it with as much equanimity as I can muster. Keep on bashing me and let us get on with the detail of the Bill.
  Lady Saltoun of Abernethy: My Lords, before I withdraw the amendment, it is open to any noble Lord in any part of the House, when an amendment is withdrawn, to be Not-Content. I beg leave to withdraw Amendment B1.
  Amendment, by leave, withdrawn.
  On Question, Motion agreed to.

  LORDS AMENDMENTS
  27 Clause 1 1, page 12, line 44, leave out subsections (2) to (6)
  The Commons disagree to this amendment for the following reason—
  27A Because adequate provision is already made for the review of the operation of the Act.
  31 After Clause 11, insert the following new clause—
  "Review of Act

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

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

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

  (a) the Prime Minister;

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

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

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

  (e) the Lord Chief Justice of England and Wales

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

  881

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

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

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

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

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

  The Commons disagree to this amendment for the following reason—
  31A Because adequate provision is already made for the review of the operation of the Act.
  32 Insert the following new Clause—
  "Effect of report

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

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

  The Commons disagree to this amendment for the following reason—
  32A Because adequate provision is already made for the review of the operation of the Act.
  Baroness Scotland of Asthal: My Lords, I beg to move Motion C, that the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A. I shall speak also to Lords Amendment No. 33, which will be decided on under Motion D. I will endeavour to speak slowly and clearly, just in case my command of English is insufficient to enable your Lordships to understand what I say.
  Since we last discussed this matter, matters have moved on. As I said, the Bill provides that the Secretary of State must report to Parliament at quarterly intervals on the exercise of the control order powers. That provides Parliament with an opportunity to review the way in which the provisions are working. The Bill also provides for the Secretary of State to appoint a person to carry out reviews of the operation of Clauses 1 to 6—on the making, operation and duration of control orders—on an annual basis.
  The Secretary of State would be obliged to lay the reports produced by these reviews before Parliament as soon as reasonably practicable. The Secretary of State has further undertaken that he will ask the reviewer in carrying out his duties to take into account other counter-terrorism legislation and its relationship to control orders. The reason that is important is that we reasonably anticipate that there will be in a very short time further legislation that will come before both Houses so that we can better consider the whole issue of acts preparatory to terrorism. That is a matter which we have debated to some great extent in this House, particularly over the past few days. It will be
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  important for the reviewer to assess and analyse the juxtaposition of this Act with any new legislation that falls within the same ambit of consideration.
  In addition, we have now provided for an annual renewal of the powers so that both Houses will have an opportunity to reconsider and debate the legislation. Further, there will continue to be the existing committees—Home Affairs and Human Rights—with a locus in this area, which can review the legislation. Speaking practically for a moment, we will have our opportunity to consider at a little more leisure than we have now what we need to put into place in order to make sure that the full ambit of the new nature of terrorism is dealt with in a way that better addresses some of the issues raised by my noble friend Lady Hayman and the noble Lords opposite who were members of the committee. That is a very important opportunity.
  In many cases where there is an annual review it is against a backdrop of there not being another legislative vehicle. One of the reasons that there is quite often a difficulty about annual reviews where both Houses have an opportunity to use the review forcefully is that there is nothing in place of that legislation. If you get rid of the Bill and there is nothing in its place the House may feel obliged to continue the legislation. In this instance we have a realistic opportunity for such another vehicle to come along. So if we have the annual review the House can consider whether the provisions in place are necessary, whether the new legislation is finished and whether the annual review is justified and can be renewed. It is important that we see the provision for the review in that light. We will talk more deeply about the way in which the annual review will work when I come to the next section.
  I invite your Lordships to look carefully at the role that we have given the reviewer who will look at how this legislation interacts with any new legislation that we may have passed or be in the process of passing at the time he or she makes their report. There are ample review mechanisms in place and an opportunity for Parliament to consider the results. These provisions provide the appropriate means to keep the legislation under regular and proper scrutiny in the way that both Houses indicated is merited. I beg to move.
  Moved, That the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A.—(Baroness Scotland of Asthal.)
  Lord Kingsland: moved, as an amendment to Motion C, Amendment Cl:
  Leave out from "House" to end and insert "do insist on its Amendments Nos. 27, 31 and 32".
  The noble Lord said: My Lords, in speaking to this Motion I shall also speak to Motion D. As your Lordships are aware, we regard the substance of Motion C and Motion D as being intimately linked.
  Motion C deals with the role that the Privy Council committee would play preparatory to the sunset clause biting. It is vital when we reconsider the Bill at the end

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  of its life that proper preparation has been made for the new measure. Since the main purpose of the Bill is to deal with matters connected with security and evidence which derive from security sources, it is wholly appropriate that the committee charged with this responsibility should be composed of Privy Counsellors.
  It is equally true that, without the sunset clause dealt with under Motion D, it would be extremely difficult for this committee of Privy Counsellors to be taken seriously. We have evidence about that from the experience of the committee presided over by the noble Lord, Lord Newton of Braintree. That committee spent a great deal of time investigating the issues that are currently before your Lordships' House under this Bill, yet its recommendations were wholly ignored. That would not be the case if there were a sunset clause.
  As far as the Motion is concerned—the sunset clause—we have already had several long debates on this matter. There are two issues. First, should there be a sunset clause? Secondly, if there is, when should it bite?
  Our view on the first issue is that this situation unquestionably requires a sunset clause provision. The Bill suspends the fundamental rights of the citizen of this country. It should he reconsidered by Parliament on a regular basis until we no longer need it. That complies with the most vital principles of our constitutional history. I hope that none of your Lordships would feel, in any way, that that principle ought to be questioned.
  The second issue is when the sunset clause should come into operation. Our amendment gives the appropriate date as next. November. I gave the reasons for this in the course of the Committee and Report debates. The Bill has been looked at at such speed, and scrutinised so inadequately, that as soon as it can be replaced by a better version the better. In our view, November gives adequate time for the Government to consider these matters.
  There is a particular issue here to which I trust the Government will give special attention—that is, the issue of devising a new offence for those who are in the process of preparing to commit a terrorist offence. It is vital that we get such an offence on the statute book as quickly as possible so that in future those who would largely be covered by control orders over the next six months are thereafter dealt with by the criminal law under a proper prosecutorial process ending up with the final decision taken by the jury. We want that measure on the statute book, I repeat, as quickly as possible. I see no reason why that cannot be achieved by November.
  The noble Baroness, Lady Hayman, has also tabled a sunset clause; and we are delighted that she has been prepared to accept the principle that we regard as so important. For the reasons that she gave at Report, the noble Baroness feels that the November deadline is too tight. She would prefer a deadline of 30 March 2006. The noble Baroness will no doubt have the
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  opportunity to talk to her amendment in the course of this debate and I look forward with interest to hearing what the noble Baroness has to say. I beg to move.
  Moved, as an amendment to Motion C, Amendment Cl, leave out from "House" to end and insert "do not insist on its Amendments 27, 31 and 32".—(Lord Kingsland.)
  1 p.m.
  Lord Carlile of Berriew: My Lords, it may assist the House if I say a few words about the process of review. As the person who has had the responsibility of conducting the reviews of the detentions under the 2001 Act, I do not wish to speak about the uncertain consequences of my reviews, which have been brought home to me in recent days. I have had the experience of hearing my reviews cited in support of entirely opposite arguments on the same issue within minutes of one another, even on the much referred to "Today" programme. I shall reflect on the consequences of reviews that bring about that result.
  I want to say something that I regard as important about the process of the type of review that I have been conducting, which would be removed if the Lords amendments, rejected by the Commons, were reinstated. The effect of one of those amendments would be to remove the role of a reviewer from the procedures. It may therefore be of assistance to the House if I explain very briefly some of the things that the reviewer has to do, which I do not believe can be carried out effectively by a committee—even, dare I say, a committee of Privy Counsellors.
  That is not to say that I am venturing a judgment on the issue of whether there should be a committee of Privy Counsellors. The last committee of Privy Counsellors chaired by the noble Lord, Lord Newton, who is sitting next to me, was very effective and it is not for me—indeed, it would be inappropriate for me—to give an opinion about whether there should be a committee of Privy Counsellors.
  If control orders are to be introduced, even if they were only non-derogating control orders, they would have an effect on the lives of the controlees. There would be certain things that they would be able to do, certain things they would be completely unable to do and many things that they would be able to do only under the circumstances controlled by the court orders. In dealing with the detainees, I have done some of the following things that I do not believe could be done by a committee. I have sat with the detainees, having private conversations, at length, alone. I have taken steps to improve the dental care of detainees. I was involved in an interesting incident that arose from the description on a Belmarsh menu of one of the lunch options as "halal pork chop". I was told later in a letter from the Prison Service that that was a piece of inadvertence by a member of the staff—you can say that again.
  I have been involved in looking at the prayer arrangements that are made, which could be a very significant issue for people who are the subject of control orders. I have been involved in issues

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  concerning visits by families and the interpretation offered at those visits. I have been involved in issues concerning the visit of members of a detainee's family from abroad. I could cite a host of such issues which have been referred to only in the most general terms in my report.
  What I really want to say is this: if there is to be no reviewer carrying out the kind of reviews that I have been conducting under this legislation, something potentially of significance and importance to the controlees will be lost. That would be detrimental. It would diminish the opportunity of people whose liberty is constrained to an extent by control orders, to enjoy to the maximum the civil rights that remain available to them. If there is to be any change in the draft legislation in relation to the reviews, it should not remove the position of the reviewer. In my view, the role that I have carried out—I am not making a personal point because I very much do not want to do that—on the 2001 Act and indeed the role that I and my predecessors have carried out—and there have been several much more distinguished predecessors than me—under the Terrorism Act 2000 and its predecessors have been of considerable value.
  Baroness Hayman: My Lords, I voted with the Government in the previous Division in this House not because I was wholly tranquil or serene—in the words of the prayer—with the arrangements that we have finally come to about judicial control of control orders, burden of proof or any of those other matters. I did so because I believe that we are at the stage in our deliberations when we have to stand back and we have a responsibility seriously to focus on that with which we cannot hold. We must try to understand that other people have other issues about which they feel equally strongly.
  In order to reconcile those points of view, I have come to the conclusion that we ought to stop arguing now about the specific details of parts of the Bill. There are two reasons for that. One is that we have improved the Bill considerably from its original drafting. The other is because I believe that it is better than Part 4 of the 2001 Act. That is fundamentally important to me.
  I believe that control orders in some form are a necessary evil and that we are legislating to make them as palatable as possible. However, I do not believe that what we have done is incapable of improvement. The process by which we have done it has not been satisfactory in this House and, in another place, as we all recognise, it has been unacceptable in many ways. Therefore, my sticking-point is that we have the opportunity for a comprehensive reassessment of what we have done so far and to have proper legislation in a proper parliamentary process. That takes us to a sunset clause.
  The reason that I tabled my amendment and do not wish to support the noble Lord, Lord Kingsland, is that frankly I do not believe that the timetable that he suggests is sensible or practical. I believe that my noble friend is right. Finding consensus on a new offence of "acts preparatory to terrorism" will be a complex and
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  difficult issue that will require time and pre-legislative scrutiny. I believe that we will need a little experience of this legislation to be able sensibly to return to it and see in what areas it needs change, amendment and tweaking.
  Lord Clinton-Davis: My Lords, would my noble friend also agree that, for much of the period until 30 November the House is in recess? This is not a job only for civil servants. It is a job for Members of Parliament; Members of this House. Am I right about that?
  Baroness Hayman: My Lords, my noble friend is absolutely right. It is also a job for other people as well. We have had very little opportunity to hear what interests people outside this House in terms of this Bill. We have not had the normal process where those with interest and expertise consult their own memberships, look at their own views, and put those forward to us. I want to see that before we next look at the legislation.
  For the reasons that my noble friend has adumbrated, among others, November is not a sensible date, and nor would much longer than a year be acceptable, given that we all know we are dealing with imperfect legislation. I want a comprehensive review within a year's time. My noble friend, in her introduction, said that we can have that, but that the Government are giving it to us by different means; by an annual renewal order after a review. She explained clearly why; because there would be another legislative vehicle, there would be more opportunity than normal in a renewal order to have a proper look at this.
  I am not yet convinced that that is true, not because I question the goodwill at all, but for two reasons. First, we have experience of renewal orders on Part 4 of the 2001 Act, on the Prevention of Terrorism (Additional Powers) Act, and in all sorts of circumstances. It is easy for renewal to become a ritual rather than a proper review. Secondly, it is also very difficult. When you are simply looking at an order, you have no opportunity to amend, and you get to the situation where it is this legislation or nothing. We will have the same sorts of debate about how, if we do not have renewal, the security situation will be damaged. That is my fear of relying solely on renewal.
  I understand that in another place yesterday and today my noble friends on the Front Bench are trying hard to make this "renewal plus"; to make it seem a better and more comprehensive procedure. Yet, for the very reason my noble friend put forward—that we will be having another legislative vehicle and these issues will inevitably be discussed as part of that—putting in the sunset clause seems less of a problem than it would normally be.
  In recognising that we have not legislated perfectly—that we need to look at these provisions in more detail, not in the heat of a pre-general election campaign and not with a huge and artificial deadline

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  before us—I hope that the Government will reconsider whether so much will in fact be lost from their proposal if they accept my amendment.
  Lord Judd: My Lords, I am deeply grateful to my noble friend for giving way. I am struck by her amendment and the way she is putting it forward. However, will she not agree that the issue is not as simple as she has put it? Is there not a danger that we are all drifting into a situation in which we are accepting the historical and long-lasting inevitability of removing certain principles in our justice system when that is necessary? Is it not therefore vital for us to emphasise that it is essential to review this legislation, in the sense that it is incumbent on this House and the Government annually to prove that this legislation is necessary, rather than to prove that it is not necessary?
  Baroness Hayman: My Lords, I do not think there is any incompatibility between what I am saying and what my noble friend says. I am being tougher than he is, and saying that we have only one review for this legislation because we only have one year of it. In the successor legislation, my noble friend may be exactly right. Because it will involve major issues of constitutional relevance, the House will want to consider what the review provisions are in that legislation. I am talking about this legislation now, and am afraid I believe it should be considered as a temporary measure.
  1.15 p.m.
  Lord Lloyd of Berwick: My Lords, I am glad again to follow the noble Baroness as I did a day or so ago, and again find myself in complete agreement with everything she has said. This House has a limited constitutional right to delay non-money Bills. It is said that the Bill before us could not be delayed because of the 14 March deadline, but I have never accepted that there was the urgency in this matter that others seem to have accepted. There is, so far as I know, no evidence that the danger today is any greater than it was in 2001—if anything, it is slightly less and, since then, this sort of legislation has not been applied to British citizens. The existing legislation has been adequate to protect us.
  Let us suppose that there is the urgency which is suggested. If we cannot for that reason delay the Bill, surely we have a constitutional right to see that the Bill is considered again at the earliest opportunity. That is why, for all the reasons mentioned by the noble Baroness, I shall be voting for the sunset clause, whether for November, or for March as she suggests. It must be a sunset clause as a renewal of the Bill is not enough for all the reasons mentioned so often. It must come to an end at a defined date so that, before that date, we can have a chance to reconsider what the proper legislation is to put in its place.
  On the question of what we could be doing until the sunset date, it seems apparent that the suggestion of a review by five Privy Counsellors is eminently sensible. However, I had not realised that the effect of the
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  present situation, as the noble Lord, Lord Carlile of Berriew, has brought to our attention, is that if we have the five Privy Counsellors, we will not have him. I would be entirely against that. I had not realised that that was the effect, and am sure it is not the intended effect.
  Clearly, the noble Lord must continue with the noble work he is already doing, but what he is doing is not enough for this purpose—that is no discredit to him because it is not what he is required to do. I am in favour of a review by the five Privy Counsellors, and do not see the difficulty—in entire agreement with my noble and learned friend Lord Ackner—in that being done between now and November. What actually is the difficulty?
  My last question is on the proposed new offence of preparing to commit an act of terrorism, which I am delighted to hear the Government now favours. I actually recommended this offence 10 years ago. Five years ago, I tried to get it into the Terrorism Act. 2000, but the Government resisted it. It is wonderful that even at this time they are at last converted to the idea, but again, why can we not have that before November, before the sunset date? It does not take that long to draft a new offence—we get one every three days anyway.
  Lord Goodhart: My Lords, we support the noble Lord, Lord Kingsland, in proposing to set up the review by Privy Counsellors. It is a useful procedure. We support even more strongly the proposal for a sunset clause. It is not only useful but absolutely essential, for all the reasons proposed by the noble Baroness, Lady Hayman.
  We believe that if we do not have a sunset clause, Parliament as a whole and in particular your Lordships' House will have no opportunity to reconsider this matter. If it is done simply by an annual review, an order to extend will be put before each House, which will of course be passed by the House of Commons with a government majority of whatever government may be in power at that time. Your Lordships have a long-standing convention that we do not reject, save in the most extreme circumstances, secondary legislation. The result would be that all that we would be able to do would be to pass a meaningless, non-fatal amendment to the Motion proposing the order.
  To achieve an effective reconsideration, which is necessary because of the wholly exceptional speed with which this important Bill has been passed through your Lordships' House, it is absolutely necessary to have a sunset clause which will bring the Bill—or the Act, as it will then be—to a full stop, so that we will have to start over again with a fresh debate, with adequate time to debate these important issues.
  Lord Forsyth of Drumlean: My Lords, the speech made a few moments ago by the noble Baroness. Lady Hayman, seemed to make eminent sense. Looking around your Lordships' House, I believe that there are few people—with the exception of those who are on the Government Front Bench and under instruction—

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  who would disagree with the sense of that. I do not want to rehearse the arguments that the noble Baroness put, as she put them far more eloquently than I could. But there are a couple of other reasons why I believe that a sunset clause is important.
  The atmosphere at Prime Minister's Questions yesterday was not good, and for the Prime Minister to characterise this as some sort of political test was not helpful. It is being suggested that the Conservatives and others should vote down this legislation and let the people decide. The sunset clause would put the legislation in place, the Government would get their Bill and the people could decide whom they wish to be the next government—but I am less concerned about that than about the parliamentary process itself.
  One constitutional argument in favour of our supporting the sunset clause, on which my noble friend Lord Waddington touched at an earlier stage in our proceedings, is that the House of Commons has the right to consider the legislation properly. It has not had that opportunity. By having a sunset clause, there would be an opportunity after the election, when the atmosphere is less frenetic, for the House of Commons to consider it properly. If the elected House has a proper length of time to debate and consider all these matters and if people outside have a chance to make their representations, with a proper timetable between the various stages of considering the legislation, then I accept that the Government must have their legislation.
  But for the Prime Minister to say that he is prepared to lose the Bill, rather than have a sunset clause, reminds me of a time when I was a Minister and my private secretary came in and said, "Now, Minister, you've got five minutes to throw your toys out of the pram, and then we'll focus on the reality of this issue". The Prime Minister is throwing his toys out of the pram at the moment. Any rational person would come to the conclusion that if he could have his Bill, provided that he made an opportunity for the House of Commons and the House of Lords to consider it properly at a later date—any Prime Minister who was concerned about the security of our country and the integrity of the House of Commons and the House of Lords—he would grab that with both hands.
  I want to make one other point, which relates to what the noble Lord, Lord Clinton-Davis, has been saying repeatedly—I mean no criticism of making a point repeatedly if it is a good point. He has made the point repeatedly that perhaps 30 November may be too soon. Now, I am not wedded to the 30 November date; apart from anything else, it is St Andrew's Day, which does not seem to me an appropriate day on which to discuss such matters, as it is a day for celebration. So whether the date is 30 November or 31 March, as the noble Baroness, Lady Hayman, suggests, seems to me a side issue. The real issue is that there should be proper consideration of this matter.
  I respectfully suggest to the noble and learned Lord the Lord Chancellor that he should lean on his colleagues and draw their attention to the proposal made by the noble Baroness, Lady Hayman, and the
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  feeling in this House, and not seek to get us into a game of parliamentary chicken on an issue as important as the security of our country.
  Lord Clinton-Davis: My Lords, I had not considered the issue of St Andrew's Day at all until now, but I am persuaded that we should not adopt the idea that 30 November is sacrosanct. For all the reasons adduced by my noble friend Lady Hayman, it is appropriate that we consider 31 March. For that reason, we should have an adequate opportunity to consider the effect of the Bill. I am very chary about certain aspects of it, but I may be wrong. But it is absolutely vital that at least we have a report from the review committee before us and can consider the effect of the position taken by people outside the Houses of Parliament.
  I was very disappointed when my noble and learned friend the Lord Chancellor said that the idea of the sunset clause was not acceptable to the Government. I beg of them to think again about the matter. It is not as though we are considering a perfect Bill; in many ways, it is imperfect. I am prepared to give the Government the benefit of the doubt, but there must be a provision that we consider the legislation again not on 30 November, which for reasons that I have already explained I believe is entirely appropriate, but on 31 March next year, which would be wholly appropriate.
  Lord Phillips of Sudbury: My Lords, the Government are trying to have it both ways. I was in the other place yesterday, when I heard people on the government Front Bench repeat the argument that no sunset clause was needed at all and in the same breath say that if there were to be a sunset clause, the end of November would be too soon. As far as I can see, this Bill was put together in about two months. It is precisely because it was so hurried— although I understand the reasons for that—and precisely because it has such huge constitutional import, that we are saying that a total review is necessary and therefore a sunset clause is necessary.
  The noble Baroness, Lady Hayman, made a good case for offering the Government an extended period for the sunset clause. That is a mark of good faith. But for the Government to go on saying that a sunset clause is not needed when this huge ramshackle Bill was put together in only two months seems to me a contradiction.
  Lord Crickhowell: My Lords, not for the first time, I find myself in almost total agreement with the noble Baroness, Lady Hayman. Because she put her case so clearly and because my noble friend Lord Forsyth made many of the points that I wished to make about the Prime Minister's stance, I can be very brief.
  I sat in another place yesterday to hear the debate and I heard my right honourable friend David Davis say that if the Government came back and said that there would be a review after 12 months, he would not object. I also heard my right honourable friend Kenneth Clarke remind the House that David Davis had been generous in saying that there had been eight

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  days to debate this Bill, as in the House of Commons there were only three hours and the first hour and 10 minutes of those three hours was taken up by a speech from the Home Secretary. This was a completely new Bill for the Commons. It has been amended again, and when it leaves this House it will again be very different. So we can be certain that this is a deeply flawed piece of legislation.
  Therefore, for all the reasons set out so eloquently by the noble Baroness, Lady Hayman, we clearly do need a sunset clause, and the procedures of a 12-monthly review are wholly inadequate. All we need from the Government is to say, "Okay, we accept a sunset clause", and all the other disagreements can be put aside and we can get on with the legislation and deal with terrorism. There is a consensus in the House on so many of the issues and I believe that we can find a consensus on the time needed.
  1.30 p.m.
  There are clearly doubts among a number of noble Lords that the November deadline is adequate. In the light of the remarks made by my right honourable friend David Davis in another place and what has been said today I suggest to my noble friends on the Front Bench that we should seek a consensus on the issue, accept the case put by the noble Baroness, Lady Hayman, and go for a sunset clause that ends on 31 March.
  The Earl of Onslow: My Lords, during the foot and mouth disease outbreak we used to say how sensible and well the noble Baroness, Lady Hayman, presented her case. After about the third time she got frightfully ratty at the Dispatch Box and said that she was fed up with compliments from Members on our side of the House.
  On this occasion I risk inciting her ire yet again. I hope that my noble friends on the Front Bench will accept what she had to say. It is perfectly reasonable, although I dislike vast chunks of the Bill even as it stands, for it to he extended for another four months, which is not that much.
  The noble Baroness, Lady Scotland, was so near to arguing for a sunset clause. She was saying that we are going to have something in place. That is why a sunset clause becomes possible. What happens if for some reason either this House or the other place decides not to renew the Bill under annual renewal? The Government would be in a worse position than they are now with Part 4 and Belmarsh. I strongly suggest that we support the noble Baroness, Lady Hayman, which shows that it is an all-party matter and not just a Conservative matter to score party political points.
  We agree with the noble Baroness, Lady Scotland, about the necessity to have a proper Bill in place. By 31 March of next year it can be in place and the transition can be seamless.
  Baroness Wall of New Barnet: My Lords, I am sure that noble Lords opposite who have any involvement in business will know that in a partnership relationship
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  in any business wherever we have an agreement we have a review clause. We do not renegotiate the whole of the agreement but we look at the consequences of the agreement into which we have entered and we review the effects.
  I find it bewildering. I am talking to people who have a great deal of experience, which is mostly judicial; people who, I am sure, when it comes to legal matters, are extremely important. But in reality we are dealing with an issue that can he reviewed. There is already built into the Bill the opportunity to look at the orders on a yearly basis. I do not understand why there is a distinction between that and any other part of our lives.
  Baroness Kennedy of The Shaws: My Lords, I want to say to my noble friend Lady Wall that we are talking about something much more substantial in our lives than making a business contract. We are talking about fundamental rights and liberty; the stuff that this House particularly can speak to in the interests of all the citizens of this country.
  In supporting the propositions of my noble friend Lady Hayman I want to say that I have heard over the past 24 hours aggressive adversarial comment that the Bill is about party machinations. That has not been my experience in talking with people in this House—I cannot speak about elsewhere. I know that many people; particularly people who have spoken from the Labour Benches, are motivated by genuine concern about the quality of the Bill and the lack of time to discuss such important issues.
  I would hate to see the issue being seen purely as to do with party positioning before an election. It is too important for that. In relation to my noble friend Lady Hayman's sensible propositions, because of the reservations about the Bill and because it is being presented as something to do with party politics, many people on the Labour Benches last night voted with the Government because they felt deeply uneasy about the fact that they were being accused of disloyalty. There was a sense that they were expected to vote for amendments coming from somewhere else that may have been motivated by party advantage.
  On some issues we have to leave party aside. I strongly urge this House not to present these matters as opportunities for scoring points against the other side, but to discuss them in the interests of justice and liberty. Many people on these Benches feel alarmed about the Bill for good reason. The idea of a sunset clause weighs heavy on my heart because I think that the Bill should not be going through the House at all. I ask for a sunset clause only because it is a backstop so that we can reconsider such important issues at more leisure.
  I say to all noble Lords: leave party aside for a moment and think about things that are about everyone's interest—the national interest—and about liberty and principles that we have fought for in this country for so many years. I know that some Members on our Benches have deep unease about the Bill but also feel a great sense of loyalty to party. They would

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  feel relieved if some kind of veil would come down to enable us to think again and to start with a blank sheet so that we get the legislation right.
  Lord Joffe: My Lords, having practised as a human rights lawyer in South Africa at a time when house arrest and a range of other oppressive laws had been passed allowing the authorities arbitrarily to deprive citizens of the protection of the courts, I would like to speak briefly. I will make only one significant point on the sunset clause.
  Those laws in South Africa were used indiscriminately: both against individuals of whom the Government had good reason to be suspicious; and against those who in criticising the Government were simply exercising their democratic right to freedom of speech. They resulted in great hardship and harm both to innocent people and—perhaps even more importantly—to their spouses and children.
  I do not for one moment compare the evil former South African Government with our own Government, many members of which in those days were ardent supporters of human rights in South Africa. However, sadly, in one respect our Government are using the same tactics as the South African Government used by insisting that the safety of the population is at risk unless the laws that they are seeking to rush through are urgently passed without proper consideration and deliberation.
  In South Africa that unjustified urgency and implicit threat led to a spineless opposition—with the exception of one courageous Member of Parliament, Helen Suzman—that supported the appalling legislation, because they thought that they would be seen to be weak on terrorism. Fortunately, unlike the former South African opposition parties, the Opposition in this Parliament have behaved courageously and with integrity and a proper respect for the laws and traditions of this country despite the Government's efforts to portray them as weak on terrorism.
  It makes no sense for the Government to suggest that a sunset clause would be an indication of weakness in the fight against terrorism. A sunset clause must surely be the rational response to the issues raised in the House. It gives the Government what they seek for enforcing the law until the clause becomes operative. It also gives the opportunity to those who oppose this legislation to ensure that proper and thoughtful legislation is crafted which will properly balance the requirement to defend the country against terrorism while ensuring that there is only the minimum diminution of the rights of individuals, through the protection of the courts.
  Lord Peyton of Yeovil: My Lords, I think that I shall await the noble and learned Lord's answer to this debate with considerable interest. I shall be particularly interested to hear how he reacts to the speech that was made just now by the noble Baroness, Lady Kennedy. It was a superb speech. It was a sincere speech. It had nothing to do with parties. I say in
  894
  passing that I have frequently wondered since I have been in your Lordships' House how useful political parties are or how full of menace they can he when their power is abused, as it very frequently is.
  I wish to avoid overstatement, because I have been pursued for this before now. I shall therefore content myself with saying that this Bill has not been widely applauded. Perhaps I may refer briefly to the article in the Times of yesterday, which said:
  "Labour is facing its sternest test of how to handle the whole issue of terrorism … The inept handling of this Bill"—
  this is surely something for which the noble and learned Lord has to take a little blame—
  "has had the worst possible effect. It has politicised an issue that should command a consensus among all responsible MPs to safeguard Britain and its liberties".
  I very much wonder what the Prime Minister's position is in the matter of a sunset clause. He is—I must not be too excessive about this—noted for the agility of his footwork. On 2 March, in answer to my right honourable friend Michael Howard, Leader of the Opposition, he said:
  "I point out to the right hon. and learned Gentleman that that will effectively be subject to a sunset clause, because if we introduce it, and we will introduce it only if there is another vote of the House of Commons and the House of Lords, my understanding is that it becomes annually reviewable and renewable. In other words, that part of the Bill is already subject to a sunset clause".—[Official Report, Commons, 2/3/05; col. 953.]
  If this debate means anything, it means that there is no sunset clause of any value at all.
  It has been said that this is not a matter for party politics. I agree. But perhaps the noble and learned Lord will tell us, when he comes to reply, what it was that the Prime Minister meant yesterday when he said:
  "We will have this debate here, and we will have this debate in the country, and we will see where the shame lies; but in my judgment the shame will lie with the Conservatives, who, faced with legislation to prevent terrorism—faced with legislation on which we were advised by our police and security services—are going to vote against it. If they want to vote against it, let them: we will be content ultimately to have the verdict of the country on it".—[Official Report, Commons, 9/3/05; col. 1512.]
  Perhaps the Prime Minister will explain to the country, at some stage or other, why he has so flat-footedly refused to contemplate any sunset clause, which would give some effective chance for a review, instead of endowing what in most people's opinion is a rotten Bill. He is endowing it with, if not eternal life, a degree of survival which it does not merit.
  I have been in Parliament for a very long time. I cannot recall any other occasion when I felt so deeply distressed and sick at what a government are doing. I say quite mildly to the noble and learned Lord, who appears to take so many of the serious points made against him with a light-hearted air and to think that the passage of this Bill and its effect in operation will not cast a long shadow over the future, that I think he is entirely wrong and will have something to be ashamed of for the rest of his days.
  1.45 p.m.
  Baroness Scotland of Asthal: My Lords, first, may I just bring us back to the group with which we are

  895
  currently dealing? I will reply, and reply fully, when we come to deal with the next group on a sunset clause. I see the noble Lord, Lord Kingsland, rising to his feet. I wonder whether I may ask him to remain seated for a brief moment.
  Lord Kingsland: My Lords, I am most grateful to the noble Baroness for giving way. We have had a debate on both Motion C and Motion D. In my very humble submission, I think it is appropriate now for the noble Baroness to sum up that debate in relation to both Motions so that we do not have to return to the issue on Motion D after we have voted on Motion C.
  Baroness Scotland of Asthal: My Lords, I understand entirely what the noble Lord says. I propose first to respond to Motion C, so that we have some clarity about what the House will be asked to decide on in that regard. I anticipate that, unless I persuade noble Lords otherwise, that will be the first issue on which the House is likely to be divided. I propose then to move on to the next Motion, on the sunset clause. I appreciate that, in the general debate, we have conflated the arguments on both Motions.
  Viscount Bledisloe: My Lords, may I remind the noble Baroness that when she started this debate she said that both these matters would be dealt with in one vote? She expressly said so herself.
  Baroness Scotland of Asthal: No, my Lords, with the greatest respect, I said that the two issues were linked. I put the background so that we could understand how the first Motion we were going to debate related to the second. I did not say that I was going to answer both Motions together. I absolutely understand that the noble Lord, Lord Kingsland, said that he would speak to both Motions at that point. I did not rise to my feet to indicate that that was not something which we were perfectly happy should take place.
  Perhaps I may therefore deal with the first Motion, to which I have spoken already. It brings us back to the import of the amendments that we have passed. The noble Lord, Lord Carlile, is absolutely right. If the House insists on the amendment that it has made to the Bill, the role of the noble Lord, or someone in his position as a reviewer, will go, and in its place will come the committee. So it is a very important matter for the House to consider in determining how to vote on that issue. That is what we are saying. The Government have twice now said that we need someone to play the role that has been played by the noble Lord, Lord Carlile, in relation to Part 4. For all the reasons that he has given, the level and the depth of the scrutiny that such a reviewer pays to the detailed needs of those detained or adversely affected by Part 4 or who would have their rights and liberties restricted as is now proposed by the conditions attached to the new proposed orders, are significant.
  The Government strongly believe that, just as it was necessary for someone to review independently those matters in terms of the operation of the Bill and how it infringes on the liberties of the individual, those
  896
  matters still need the acuity and attention that such a reviewer would give. If this House insists, it will be telling the other place for the second time that the role of the noble Lord is not needed on this Bill. I cannot believe that that is the intent of your Lordships. Therefore, I urge your Lordships not to insist on that matter.
  I will now address the sunset clause. This House has always had to bow in the end to the other place, because the other place is the elected House. That remains a fundamental part of the democratic arrangements between the two Houses. It is right for noble Lords to remember that in the debates in the other place the biggest majority was on the sunset clause. The other place spoke very clearly indeed, and this House also needs to remember the mood of that debate in the other place. It was clear that the House wanted to send a clear message to those terrorists and others who will be listening to what we say and looking and watching with a great deal of attention, that there will not be a gap and that there is no wavering on those powers.
  There is too an element of disagreement between those who seek a sunset clause, and I noted with great care the concept of a blank sheet of paper. People have said that they wish to start again. That is the position of those who say, with all integrity, that control orders of themselves are fundamentally wrong, and we should not have them. That view has been eloquently expressed by the noble and learned Lord, Lord Lloyd, and my noble friend Lady Kennedy of The Shaws and others. That is one view. The majority of this House does not accept that position. The majority of this House and the other place accepts with the utmost reluctance, and some with a degree of pain, that control orders, in the situation in which we find ourselves, are an unfortunate, unwanted, unlooked-for necessity.
  It is unlikely, whether we are talking about November or another date, that we will be facing a position where we say that it is safe to expunge control orders. We are going to have them in some way or another in relation to that small cadre of people who will not be amenable to prosecution. That has been said in debates over and over again. We all agree that there is that small cadre who cannot be prosecuted, even if we are successful in bringing new legislation on to the statute book.
  I will address the issue of timing. Right around this House, it has been said that the legislation has been rushed; that there has not been appropriate time for consideration; that we have had a gun put to our heads as a result of the 14 March legislation; and that legislation made in haste is bound to be poor legislation. That is what the House was saying. What is our answer? The answer, if one were to push with the sunset clause, is to say, "We would like to do the same thing again".
  Noble Lords: Oh!
  Baroness Scotland of Asthal: It is, my Lords, because I have noted carefully what has happened on each occasion. My noble friend Lady Hayman is right that the procedure that we have now adopted on control orders is much, much better than Part 4. It is likely that we will have new opportunities to look at the legislation as to what else we need to put in place. I cannot envisage a position—particularly if the noble and learned Lord, Lord Lloyd, and my noble friend Lady Kennedy of The Shaws, and others on the Liberal Democrat Benches stay in their place—where we will not have a really trenchant, difficult and testing debate on any such new provisions. The noble and learned Lord, Lord Lloyd, is right that there is not absolute parity and agreement that the new provisions are the right way either. We will have to get that right. We will not, and should not, rush that position.
  Lord Forsyth of Drumlean: My Lords—
  Baroness Scotland of Asthal: My Lords, I wonder if I could finish. The noble Lord has been on his feet on a number of occasions, and this is the first time that I have been on mine for a significant time.
  When it comes to timing, we must look at the reality of the position with which we will be faced. My noble friend was right in saying that this will need scrutiny, not just by those in this House but by individual agencies and others who will have a view. This House may think that acts preparatory is the best way forward. We do not know whether that will be universally accepted elsewhere; we need to have that debate. If we need to have pre-legislative scrutiny, which I can anticipate—the noble Lords on the Liberal Democrat Benches, if nobody else, will voice that intent—that will take time. It is likely that we will be running with a timetable even if we were to accept my noble friend's date of March.
  If we have an annual renewal, it will be in a situation where this House will be seized and know of the work that has been undertaken in relation to the new legislation. It will know whether those matters have been completed, and when it comes to renew that legislation this House will have the ability to have its say. In so many cases where annual renewal has been—
  Lord Maclennan of Rogart: My Lords—
  Baroness Scotland of Asthal: My Lords, I will not give way. I wish to finish this. In so many cases when we have had annual renewals, there has not been another legislative vehicle that could conveniently be used to have this debate.
  Lord Maclennan of Rogart: My Lords—
  Baroness Scotland of Asthal: My Lords, I will give way once I have finished this.
  898
  That is an important difference. This legislation would be able to elapse if both Houses felt that was appropriate. There are big issues here, and the Government are clear that the review structure that we have put in place will enable the House to have its say.
  Lord Maclennan of Rogart: My Lords, I thank the Minister for giving way. Perhaps she will take the opportunity at this point of her speech to reply to the point made by my noble friend Lord Goodhart that in the event of a review taking place of the kind that she described, it would be constitutionally unprecedented for this House to vote it down because it would be an order, which would have been approved by the other House. She seems completely to have overlooked that limitation on this House's ability to pass its view.
  Lord Young of Norwood Green: My Lords, before the noble Baroness—
  Noble Lords: No!
  2 p.m.
  Baroness Scotland of Asthal: My Lords, the annual review is an effective means for both Houses to make that clear. Noble Lords on all Benches have said on a number of occasions that the other place has absolutely the same sort of concerns. The annual renewal—renewal is what we are talking about—will enable both Houses to look at whether it is necessary to continue the legislation, and whether it has been developed, dealt with and undertaken in a proper way. It is an appropriate vehicle. I hear what the noble Lord, Lord Goodhart, says about it, but it is possible. On renewal, the House can say yea or nay.
  Lord Sheldon: My Lords, the House may say yea or nay, but it may not be able to offer alternatives. It is amendments that are required, not only a decision for or against a renewal. I can see no way to overcome the problem other than by having a sunset clause.
  Baroness Scotland of Asthal: My Lords, there have been other ways. From this Dispatch Box, I do not need to remind noble Lords of the way in which annual renewals have been dealt with in other legislation. The contingencies Act also dealt with renewals. We have made the commitment for the new legislation. It is not beyond the wit of this House to put amendments in any such new legislation that will deal adequately with the matter. This House will have a vehicle that could be used effectively and creatively to meet the need. The most important thing is that we send no signal to those outside the House that this country is wavering at all in relation to its position.
  Lord Young of Norwood Green: My Lords, does the Minister agree that the Government responded to a request from the noble Baroness, Lady Hayman? In our previous debate, she said:
  "I believe that it would be possible to provide perhaps for renewal, which would be more realistic, and then an absolute sunset clause, to allow the Bill to be enacted—as I think there is a

  899
  universal feeling around the House that it should be—but not in such a straitjacket that it puts us back in exactly the situation we are in now. I earnestly hope that my noble friends will be able to respond to that".—[Official Report, 8/3/05; col. 656.]
  She again asked the Minister whether she could respond to a request for renewal rather than only review. Since then, the matter has gone back to the House of Commons and it has responded.
  Baroness Scotland of Asthal: My Lords, my noble friend is absolutely right. When we were debating the issue last Tuesday, I said that the Government would listen, would continue to look at the matter and would respond. We responded. Bearing in mind the nature of that response—the fact that there is now a renewal provision, which was asked for— this House should be content and not insistent.
  I have not dealt with the difference between the November and March timetables. It seems to be accepted by the whole House that the November timetable is totally unrealistic. We would say that, similarly, the March timetable is far too tight. It does not deal with the major issues, and we feel that renewal would be the better way forward.
  Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her reply. We have had a debate about Motions C and D, and shall now vote, successively, on amendments to them. Motion C concerns the Privy Council amendment, and the first vote will be on it if we press our amendment from this Dispatch Box. I shall not attempt to summarise the debate on the issue; it would be impertinent of me to do so. The case for the amendment has been made devastatingly throughout your Lordships' House.
  So far as our amendment to Motion D on the sunset clause is concerned, I believe that the arguments advanced by the noble Baroness, Lady Hayman, about the inadequacy of the review procedure were also devastating and have been accepted by almost all noble Lords who have spoken. The principle of the sunset clause has therefore been supported throughout the House.
  However, there remains the question of when it should bite. We continue to believe that the principle that ought to be applied is that of "the earlier, the better". However, we have listened carefully to the arguments put for a later date—the end of March 2006—which have, again, come from all parts of the House. We would be prepared not to move our amendment, in favour of that tabled by the noble Baroness, Lady Hayman, so long as the noble Baroness can assure us that she will press her amendment when we come to it.
  Baroness Hayman: My Lords—
  Lord Kingsland: My Lords, I shall give way to the noble Baroness so that she can indicate whether she will do so.
  Baroness Hayman: My Lords, it is difficult procedure; we are having to make it up a little as we go
  900
  along. For reasons that I shall take a couple of minutes to explain, my view is that we need to vote on a sunset clause. I think that my noble friend is saying that she wills the same ends as the House—the opportunity to look at the Bill again—but that the means are those that the Government have put forward, rather than a sunset clause. Many around the House do not agree on that issue of means. They believe that the means best suited would be a sunset clause.
  I take very seriously what my noble friend said about another place. I had the privilege of being a Member of it decades ago, and I understand that in some ways we in this House are B-movie politics. However, in constitutional issues, we have a responsibility. We have a right to ask again another place to think again on the issue. That is why it is important to keep the matter open.
  A year is a much more sensible time frame than that proposed by the noble Lord, Lord Kingsland, so, if he were not to move his amendment, I would maintain my support for my amendment. If I did not move it, I am sure that someone else would, to give the House the opportunity to express its view on the issue.
  Lord Kingsland: My Lords, when the noble Baroness, Lady Hayman, moves her amendment on the sunset clause, I shall withdraw my amendment in favour of the noble Baroness's. I am delighted at the weight the noble Baroness's decision will give to the vote on the sunset clause, when we reach it. She is not only a distinguished former Front-Bencher from the government side but also, of course, a senior Privy Counsellor; and, in my submission, that adds. I repeat, great weight to her support for the principle of the sunset clause.
  I now wish to press my amendment to Motion C, which concerns the Privy Council. After we have voted on that, the question of the sunset clause will arise.
  2.9 p.m.
  On Question, Whether the said amendment (C1) shall be agreed to?
  Their Lordships divided: Contents, 225; Not-Contents, 126.

  Division No. 2

  CONTENTS

  Ackner, L.

  Bledisloe, V.

  Addington, L.

  Bonham-Carter of Yarnbury, B.

  Ahmed, L.

  Boothroyd, B.

  Alderdice, L.

  Bowness, L.

  Allenby of Megiddo, V.

  Bradshaw, L.

  Ampthill, L.

  Bramall, L.

  Anelay of St Johns, B.

  Bridggeman, V.

  Arran, E.

  Bridges, L.

  Ashcroft, L.

  Brittan of Spennithorne, L.

  Astor of Hever, L.

  Brooke of Sutton Mandeville, L.

  Avebury, L.

  Brougham and Vaux, L.

  Baker of Dorking, L.

  Buscombe, B.

  Ballyedmond, L.

  Byford, B.

  Barker, B.

  Cameron of Lochbroom, L.

  Beaumont of Whitley, L.

  Campbell Of Alloway, L.

  Bell, L.

  Carlisle of Bucklow, L.

  901

  Carrington, L.

  Knight of Collingtree, B.

  Chalker of Wallasey, B.

  Laing of Dunphail, L.

  Chorley, L.

  Laird, L.

  Clement-Jones, L.

  Lang of Monkton, L.

  Cobbold, L.

  Lewis of Newnham, L.

  Colwyn, L.

  Linklater of Butterstone, B.

  Cope of Berkeley, L.

  Liverpool, E.

  Courtown, E.

  Livsey of Talgarth, L.

  Craigavon, V.

  Lloyd of Berwick, L.

  Crathorne, L.

  Ludford, B.

  Crickhowell, L.

  Luke, L.

  Cuckney, L.

  Lyell, L.

  Dahrendorf, L.

  McColl of Dulwich, L.

  Darcy de Knayth, B.

  Mackie of Benshie, L.

  Dean of Harptree, L.

  Maclennan of Rogart, L.

  Denham, L.

  McNally, L.

  Dholakia, L.

  Maddock, B.

  Dixon-Smith, L.

  Maginnis of Drumglass, L.

  Donaldson of Lymington, L.

  Mallalieu, B.

  D'Sonza, B.

  Mancroft, L.

  Dykes, L.

  Mar and Kellie, E.

  Eccles of Moulton, B.

  Marlesford, L.

  Eden of Winton, L.

  Mayhew of Twysden, L.

  Elis-Thomas, L.

  Michie of Gallanach, B.

  Elliott of Morpeth, L.

  Miller of Chilthorne Domer, B.

  Elton, L.

  Miller of Hendon, B.

  Emerton, B.

  Monro of Langholm, L.

  Falkland, V.

  Monson, L.

  Falkner of Margravine, B.

  Montrose, D.

  Fearn, L.

  Moore of Lower Marsh, L.

  Feldman, L.

  Moran, L.

  Ferrers, E.

  Morris of Bolton, B.

  Finlay of Llandaff, B.

  Moser, L.

  Fookes, B.

  Mowbray and Stourton. L.

  Forsyth of Drumlean, L.

  Murton of Lindisfarne, L.

  Fowler, L.

  Naseby, L.

  Freeman, L.

  Neuberger, B.

  Garden, L.

  Newby, L.

  Gardner of Parkes, B.

  Newton of Braintree, L.

  Garel-Jones, L.

  Northbourne, L.

  Geddes, L.

  Northesk, E.

  Glasgow, E.

  Northover, B.

  Glenarthur, L.

  Norton of Louth, L.

  Glentoran, L.

  Oakeshott of Seagrove Bay, L.

  Goodhart, L. [Teller]

  O'Cathain, B.

  Goschen, V.

  Onslow, E.

  Greaves, L.

  Oppenheim-Barnes, B.

  Greengross, B.

  Park of Monmouth, B.

  Greenway, L.

  Perry of Southwark, B.

  Griffiths of Fforestfach, L.

  Peyton of Yeovil, L.

  Hamwee, B.

  Phillips of Sudbury, L.

  Hanham, B.

  Platt of Writtle, B.

  Hanningfield, L.

  Plumb, L.

  Harris of Richmond, B.

  Plummer of St. Marylebone, L.

  Haskins, L.

  Quirk, L.

  Hayhoe, L.

  Rawlings, B.

  Henley, L.

  Razzall, L.

  Higgins, L.

  Redesdale, L.

  Hodgson of Astley Abbotts, L.

  Rennard, L.

  Hogg, B.

  Renton, L.

  Home, E.

  Richardson of Calow, B.

  Hooper, B.

  Roberts of Conwy, L.

  Hooson, L.

  Roberts of Llandudno, L.

  Howard of Rising, L.

  Rodgers of Quarry Bank, L.

  Howe, E.

  Roper, L.

  Howe of Aberavon, L.

  Rotherwick, L.

  Howe of Idlicote, B.

  Russell-Johnston, L.

  Hurd of Westwell, L.

  Ryder of Wensum, L.

  Hylton, L.

  St John of Fawsley, L.

  James of Holland Park, B.

  Saltoun of Abernethy, Ly.

  Jenkin of Roding, L.

  Sandberg, L.

  Joffe, L.

  Sandwich, E.

  Kalms, L.

  Scott of Needham Market, B.

  Kennedy of The Shaws, B.

  Seccombe, B. [Teller]

  Kimball, L.

  Selborne, E.

  Kingsland, L.

  Selkirk of Douglas, L.

  902

  Selsdon, L.

  Thomas of Walliswood, B.

  Sharp of Guildford, B.

  Thomson of Monifieth, L.

  Sharples, B.

  Tombs, L.

  Shaw of Northstead, L.

  Tope, L.

  Sheldon, L.

  Tordoff, L.

  Shutt of Greetland, L.

  Trefgarne, L.

  Slim, V.

  Trumpington, B.

  Smith of Clifton, L.

  Ullswater, V.

  Soulsby of Swaffham Prior, L.

  Vallance of Tummel, L.

  Southwell, Bp.

  Wade of Chorlton, L.

  Stern, B.

  Wakeham, L.

  Stewartby, L.

  Walker of Worcester, L.

  Stoddart of Swindon, L.

  Wallace of Saltaire, L.

  Strathclyde, L.

  Walmsley, B.

  Sutherland of Houndwood, L.

  Walpole, L.

  Swinfen, L.

  Watson of Richmond, L.

  Taveme, L.

  Wilcox, B.

  Tenby, V.

  Williamson of Horton, L.

  Thatcher, B.

  Windlesham, L.

  Thomas of Gresford, L.

  Wolfson, L.

  Wright of Richmond, L.

  NOT-CONTENTS

  Acton, L.

  Grocott, L. [Teller]

  Amos, B. (Lord President of the

  Harris of Haringey, L.

  Council)

  Harrison, L.

  Andrews, B.

  Hart of Chilton, L.

  Ashton of Upholland, B.

  Haskel, L.

  Bach, L.

  Haworth, L.

  Bassam of Brighton, L.

  Hayman, B.

  Bernstein of Craigweil, L.

  Henig, B.

  Bhattacharyya, L.

  Hilton of Eggardon, B.

  Billingham, B.

  Hogg of Cumbernauld, L.

  Blood, B.

  Hollis of Heigham, B.

  Borne, L.

  Howells of St. Davids, B.

  Bragg, L.

  Hoyle, L.

  Brett, L.

  Hughes of Woodside, L.

  Brooke of Alverthorpe, L.

  Hunt of Kings Heath, L.

  Brookman, L.

  Janner of Braunstone, L.

  Campbell-Savours, L.

  Jones, L.

  Carter, L.

  Jordan, L.

  Christopher, L.

  Judd, L.

  Clarke of Hampstead, L.

  Kilclooney, L.

  Clinton-Davis, L.

  King of West Bromwich, L.

  Corbett of Castle Vale, L.

  Layard, L.

  Crawley, B.

  Lipsey, L.

  David, B.

  Lockwood, B.

  Davies of Coity, L.

  Lofthouse of Pontefract, L.

  Davies of Oldham, L. [Teller]

  Macdonald of Tradeston, L.

  Dean of Thornton-le-Fylde, B.

  McIntosh of Haringey, L.

  Dearing, L.

  McIntosh of Hudnall, B.

  Desai, L.

  MacKenzie of Culkein, L.

  Dixon, L.

  McKenzie of Luton, L.

  Donoughue, L.

  Marsh, L.

  Drayson. L.

  Massey of Darwen, B.

  Dubs, L.

  Maxton, L.

  Evans of Parkside, L.

  May of Oxford, L.

  Evans of Temple Guiting, L.

  Merlyn-Rees, L.

  Farrington of Ribbleton, B.

  Mitchell, L.

  Falconer of Thoroton, L. (Lord

  Moore of Wolvercote, L.

  Chancellor)

  Morgan, L.

  Faulkner of Worcester, L.

  Morgan of Drefelin, B.

  Filkin, L.

  Morgan of Huyton, B.

  Fyfe of Fairfield, L.

  Morris of Aberavon, L.

  Gale, B.

  Morris of Manchester, L.

  Gavron, L.

  Nicol, B.

  Gibson of Market Rasen, B.

  Paul, L.

  Giddens, L.

  Pendry, L.

  Golding, B.

  Plant of Highfield, L.

  Goldsmith, L.

  Ponsonby of Shulbrede, L.

  Gordon of Strathblane, L.

  Ramsay of Cartvale, B.

  Goudie, B.

  Randall of St. Budeaux, L.

  Gould of Brookwood, L.

  Rendell of Babergh, B.

  Gould of Potternewton, B.

  Rooker, L.

  Graham of Edmonton, L.

  Rosser, L.

  903

  Rowlands, L.

  Truscott, L.

  Royall of Blaisdon, B.

  Tunnicliffe, L.

  Sawyer, L.

  Turnberg, L.

  Scotland of Asthal, B.

  Turner of Camden, B.

  Sewel, L.

  Wall of New Barnet, B.

  Simon, V.

  Warner, L.

  Skidelsky, L.

  Weatherill, L.

  Stone of Blackheath, L.

  Whitaker B.

  Strabolgi, L.

  Whitty, L.

  Symons of Vernham Dean, B.

  Williams of Elvel, L.

  Thornton. B.

  Young of Hornsey, B.

  Triesman, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  2.21 p.m.
  The Deputy Speaker (Lord Tordoff): My Lords, I have to inform the House that if Amendment D1 is agreed to, I shall not be able to call Amendment D2.
  Lord Kingsland: My Lords—

  LORDS AMENDMENT
  33 Insert the following new clause—
  "Limitation
  This Act and any order made under it shall by virtue of this section cease to have effect on 30th November 2005."
  The Commons disagree with the Lords in its amendment bat propose the following amendments in lieu—
  33A Page 12, line 37, at end insert the following new Clause—
  "Duration of ss. 1 to 6

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

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

  (a) repeal sections

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

  (c) provide that those sections—

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

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

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

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

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

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

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

  904

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

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

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

  (7) Where sections prevent or otherwise affect—

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

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

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

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

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

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

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

  33B Page 13, line 1, leave out "every relevant 12 month period" and insert—
  "() the period of 12 months beginning with the day on which this Act is passed, or
  () every period specified in an order under section (Duration of ss.) as a period for which those sections are revived or continued in force,"
  33C Page 13, leave out lines 16 to 18 and insert—
  "() the period of 3 months beginning with the passing of this Act;
  () a period of 3 months beginning with a time which—

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

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

  () a 3 month period which begins with the end of a previous relevant 3 month period and is a period during the whole or a part of which those sections are in force."
  Baroness Scotland of Asthal: My Lords, I beg to move Motion D, that the House do not insist on its Amendment No. 33 but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof.
  I am most grateful to the noble Lord, Lord Kingsland, for allowing me to move my Motion. Of course, I would be very happy if he just accepted my Motion and did not move his amendment. I do not know whether that is why he rose to his feet.
  Motion D is found on page 24 of the Marshalled List. I spoke to it during debate on Motion C.

  905
  Moved, That the House do not insist on its Amendment No. 33 but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof.—(Baroness Scotland of Asthal.)
  Lord Kingslandhad given notice of his intention to move Amendment D1, as an amendment to the Motion that the House do not insist on its Amendment No. 33, but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, to leave out from "House" to end and insert "do insist on its Amendment No. 33 and do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof".
  The noble Lord said: My Lords, in the light of the statement made by the noble Baroness, Lady Hayman, in response to my question posed just before we took the previous vote, I shall not move Amendment D1.
  [Amendment D1, as an amendment to Motion D, not moved.]
  Baroness Haymanmoved, as an amendment to Motion D, Amendment D2:
  Leave out from "33," to end and insert "do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, and do propose Amendment No. 33D in lieu of Lords Amendment No. 33".
  33D Insert the following new Clause—
  "Limitation
  This Act and any order made under it shall by virtue of this section cease to have effect on 31st March 2006."
  The noble Baroness said: My Lords, I wish to move Amendment D2 standing in my name. In so doing, I make it perfectly clear that I wish no message of support for terrorists, or a lack of commitment to fighting terrorism.
  One of the reasons I support control orders is that a year ago, in this House, I was saying how uncomfortable I was with Part 4 of the Act, because it did not deal with the threat from UK citizens who might be involved in terrorism. That is why I support control orders. They give a greater degree of protection to the citizens of this country.
  I believe, however, that while we have improved the Bill—it is better than it was—it is not the best that Parliament can do. Parliament should be given the opportunity to do better in a reasonable period of time. The amendment in my name gives us that reasonable period of time, and I beg to test the opinion of the House.
  Moved, As an amendment to Motion D, Amendment D2: Leave out from "33", to end and insert "do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof, and do propose Amendment No. 33D in lieu of Lords Amendment No. 33.—(Baroness Hayman.)
  2.24 p.m.
  On Question, Whether the said amendment (D2) shall be agreed to?
  Their Lordships divided: Contents, 250; Not-Contents, 100.

  Division No. 3

  CONTENTS

  Ackner, L.

  Fookes, B.

  Addington, L.

  Forsyth of Drumlean, L.

  Alderdice, L.

  Fowler, L.

  Allenby of Megiddo, V.

  Freeman, L.

  Ampthill, L.

  Garden, L.

  Anelay of St Johns, B.

  Gardner of Parkes, B.

  Arran, E.

  Garel-Jones, L.

  Ashcroft, L.

  Gavron, L.

  Astor, V.

  Geddes, L.

  Astor of Hever, L.

  Gibson of Market Rasen, B.

  Avebury, L.

  Glasgow, E.

  Baker of Dorking, L.

  Glenarthur, L.

  Ballyedmond, L.

  Glentoran, L.

  Barker, B.

  Goodhart, L.

  Beaumont of Whitley, L.

  Gordon of Strathblane, L.

  Bell, L.

  Goschen, V.

  Best, L.

  Greaves, L.

  Bledisloe, V.

  Greengross, B.

  Bonham-Carter of Yarnbury, B.

  Greenway, L.

  Boothroyd, B.

  Griffiths of Fforestfach, L.

  Bowness, L.

  Hamwee, B.

  Bradshaw, L.

  Hanham, B.

  Bramall, L.

  Hanningfield, L.

  Bridgeman, V.

  Harris of Richmond, B.

  Bridges, L.

  Haskins, L.

  Brittan of Spennithorne, L.

  Hayhoe, L.

  Brooke of Sutton Mandeville, L.

  Hayman, B. [Teller]

  Brougham and Vaux, L.

  Henley, L.

  Buscombe, B.

  Higgins, L.

  Byford, B.

  Hilton of Eggardon, B.

  Cameron of Lochbroom, L.

  Hodgson of Astley Abbotts, L.

  Campbell of Alloway, L.

  Hogg, B.

  Carlisle of Bucklow, L.

  Home, E.

  Carrington, L.

  Hooper, B.

  Chalker of Wallasey, B.

  Hooson, L.

  Chorley, L.

  Howard of Rising, L.

  Clement-Jones, L.

  Howe, E.

  Clinton-Davis, L.

  Howe of Aberavon, L.

  Cobbold, L.

  Howe of Idlicote, B.

  Cohen of Pimlico, B.

  Hurd of Westwell, L.

  Colwyn, L.

  Hylton, L.

  Cope of Berkeley, L.

  James of Holland Park, B.

  Courtown, E.

  Jenkin of Roding, L.

  Craigavon, V.

  Joffe, L.

  Crathorne, L.

  Judd, L.

  Crickhowell, L.

  Kalms, L.

  Cuckney, L.

  Kennedy of The Shaws, B.

  Dahrendorf, L.

  Kerr of Kinlochard, L.

  Darcy de Knayth, B.

  Kimball, L.

  Dean of Harptree, L.

  Kingsland, L.

  Dearing, L.

  Knight of Collingtree, B.

  Denham, L.

  Laing of Dunphail, L.

  Dholakia, L.

  Laird, L.

  Dixon-Smith, L.

  Lamont of Lerwick, L.

  Donaldson of Lymington, L.

  Lang of Monkton. L.

  D'Souza, B.

  Lewis of Newnham, L.

  Dykes, L.

  Linklater of Butterstone, B.

  Eccles of Moulton, B.

  Listowel, E.

  Eden of Winton, L.

  Liverpool, E.

  Elis-Thomas, L.

  Livsey of Talgarth, L.

  Elles, B.

  Lloyd of Berwick, L.

  Elliott of Morpeth, L.

  Ludford, B.

  Falkland, V.

  Luke, L.

  Falkner of Margravine, B.

  Lyell, L.

  Fearn, L.

  McColl of Dulwich, L.

  Feldman, L.

  McIntosh of Hudnall, B.

  Ferrers, E.

  Mackie of Benshie, L.

  Finlay of Llandaff, B.

  Maclennan of Rogart, L. [Teller]

  907

  McNally, L.

  Ryder of Wensum, L.

  Maddock, B.

  St John of Fawsley, L.

  Maginnis of Drumglass, L.

  Saltoun of Abernethy, Ly.

  Mallalieu, B.

  Sandberg, L.

  Mancroft, L.

  Sandwich, E.

  Mar and Kellie, E.

  Scott of Needham Market, B.

  Marlesford, L.

  Seccombe, B.

  Mayhew of Twysden, L.

  Selborne, E.

  Michie of Grallanach, B.

  Selkirk of Douglas, L.

  Miller of Chilthorne Domer, B.

  Selsdon, L.

  Miller of Hendon, B.

  Sharp of Guildford, B.

  Monro of Langholm, L.

  Sharples, B.

  Monson, L.

  Shaw of Northstead, L.

  Montrose, D.

  Sheldon, L.

  Moore of Lower Marsh, L.

  Shutt of Guildford, B.

  Moore of Wolvercote, L.

  Slim, V.

  Moran, L.

  Smith of Clifton, L.

  Morgan, L.

  Soulsby of Swaffham Prior, L.

  Morris of Bolton, B.

  Southwell, Bp.

  Morris of Manchester, L.

  Stern, B.

  Moser, L.

  Stewartby, L.

  Mowbray and Stourton, L.

  Stoddart of Swindon, L.

  urton of Lindisfarne, L.

  Stone of Blackheath, L.

  Naseby, L.

  Strathclyde, L.

  Neuberger, B.

  Sutherland of Houndwood, L.

  Newby, L.

  Swinfen, L.

  Newton of Braintree, L.

  Taverne, L.

  North bourne, L.

  Tenby, V.

  Northesk, E.

  Thatcher, B.

  Northover, B.

  Thomas of Gresford, L.

  Norton of Louth, L.

  Thomas of Walliswood, B.

  Oakeshott of Seagrove Bay, L.

  Thomson of Monifieth, L.

  O'Cathain, B.

  Tombs, L.

  Onslow, E.

  Tope, L.

  Oppenheim-Barnes, B.

  Tordoff, L.

  Park of Monmouth, B.

  Trefgarne, L.

  Perry of Southwark, B.

  Trumpington, B.

  Peyton of Yeovil, L.

  Turnberg, L.

  Phillips of Sudbury, L.

  Turner of Camden, B.

  Plant of Hightield, L.

  Ullswater, V.

  Plumb, L.

  Vallance of Tummel, L.

  Plummer of St. Marylebone, L.

  Waddington, L.

  Prys-Davies, L.

  Wade of Chorlton, L.

  Quirk, L.

  Wakeham, L.

  Rawlings, B.

  Walker of Worcester, L.

  Razzall, L.

  Wallace of Saltaire, L.

  Redesdale, L.

  Walmsley, B.

  Rennard, L.

  Walpole, L.

  Renton, L.

  watson of Richmond, L.

  Richardson of Calow, B.

  Weatherill, L.

  Rix, L.

  Whitaker, B.

  Roberts of Conwy, L.

  Wilcox, B.

  Roberts of Llandudno, L.

  Williamson of Horton, L.

  Rodgers of Quarry Bank, L.

  Windlesham, L.

  Roper, L.

  Winston, L.

  Rotherwick, L.

  Wright of Richmond, L.

  Russell-Johnston, L.

  Young of Hornsey, B.

  NOT-CONTENTS

  Amos, B. (Lord President of the

  Carter, L.

  Council)

  Christopher, L.

  Andrews, B.

  Clarke of Hampstead, L.

  Ashton of Upholland, B.

  Crawley, B.

  Bach, L.

  David, B.

  Bassam of Brighton, L.

  Davies of Coity, L.

  Bernstein of Craigweil, L.

  Davies of Oldham, L. [Teller]

  Bhattacharyya, L.

  Dean of Thornton-le-Fylde, B.

  Billingham, B.

  Desai, L.

  Blood, B.

  Dixon, L.

  Borrie, L.

  Drayson, L.

  Bragg, L.

  Dubs, L.

  Brett, L.

  Evans of Parkside, L.

  Brooke of Alverthorpe, L.

  Evans of Temple Guiting, L.

  Brookman, L.

  Farrington of Ribbleton, B.

  Campbell-Savours, L.

  908

  Falconer of Thoroton, L. (Lord

  McDonagh, B.

  Chancellor)

  Macdonald of Tradeston, L.

  Faulkner of Worcester, L.

  McIntosh of Haringey, L.

  Filkin, L.

  MacKenzie of Culkein, L.

  Fyfe of Fairfield, L.

  McKenzie of Luton, L.

  Gale, B.

  Marsh, L.

  Giddens, L.

  Massey of Darwen, B.

  Gilbert, L.

  Maxton, L.

  Golding, B.

  May of Oxford, L.

  Goldsmith, L.

  Merlyn-Rees, L.

  Goudie, B.

  Mitchell, L.

  Gould of Brookwood, L.

  Morgan of Drefelin, B.

  Gould of Potternewton, B.

  Morgan of Huyton, B.

  Graham of Edmonton, L.

  Nicol, B.

  Grocott, L. [Teller]

  Pendry, L.

  Harris of Haringey, L.

  Ponsonby of Shulbrede, L.

  Harrison, L.

  Ramsay of Cartvale, B.

  Hart of Chilton, L.

  Randall of St. Budeaux, L.

  Haworth, L.

  Rooker, L.

  Henig, B.

  Rosser, L.

  Hogg of Cumbernauld, L.

  Royall of Blaisdon, B.

  Hollis of Heigham, B.

  Sawyer, L.

  Howells of St. Davids, B.

  Scotland of Asthal, B.

  Hoyle, L.

  Simon, V.

  Hughes of Woodside, L.

  Symons of Vernham Dean, B.

  Hunt of Kings Heath, L.

  Thornton, B.

  Janner of Braunstone, L.

  Triesman, L.

  Jones, L.

  Truscott, L.

  Jordan, L.

  Tunnicliffe, L.

  Kilclooney, L.

  Wall of New Barnet, B.

  King of West Bromwich, L.

  Warner, L.

  Layard, L.

  Weidenfeld, L.

  Leitch, L.

  Whitty, L.

  Lipsey, L.

  Williams of Elvel, L.

  Lockwood, B.

  Young of Norwood Green, L.

  Lofthouse of Pontefract, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  2.36 p.m.

  LORDS AMENDMENTS
  38 Schedule, page 16, line 30, leave out sub-paragraphs (2) to (4) and insert—
  "() The relevant rules of court shall be made by the Lord Chief Justice after consulting the Lord Chancellor."
  39 Page 17, line 5, leave out "by the Lord Chancellor"
  40 Page 17, line 11, leave out from beginning to end of line 3 on page 18 and insert—
  "() The rules of court must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights."
  42 Page 18, line 23, at end insert—
  (8) "Rules of court under this paragraph in relation to proceedings in England and Wales—

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

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

  The Commons disagree to Lords Amendments Nos. 38, 39, 40 and 42, but propose the following amendments in lieu—
  42A Page 17, line 5, leave out sub-paragraph (5) and insert—
  "(5A) Rules of court made by the Lord Chancellor by virtue of this paragraph—

  (a) must be laid before Parliament; and

  909

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

  (6) Where rules cease to have effect in accordance with subparagraph (5A)—

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

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

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

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

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

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

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

  (8) In sub-paragraph (5A) "40 days" means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36)."
  42B Page 17, line 12, leave out "and burden"
  42C Page 17, line 42, leave out from "required" to "in" in line 45 and insert "to comply with any provision of rules of court, or order of the relevant court, for the disclosure to a person other than the court or a person appointed under paragraph 7 of any matter in respect of which the Secretary of State has made such an application but on which he does not then rely"
  Lord Falconer of Thoroton Lord Falconer of Thoroton rose to move Motion E, that this House do not insist on its Amendments Nos. 38, 39, 40 and 42 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 42A and 42B in lieu thereof, and do disagree with the Commons in their Amendment No. 42C but propose Amendment No. 42D in lieu of Commons Amendment No. 42C:
  42D Page 17, leave out lines 34 to end of line 1 on page 18 and insert—
  "() that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;
  "() that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;
  "() that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);
  "() that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;
  "() that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;
  "() that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest:
  "() that provision satisfying the requirements of subparagraph (3A) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.
  "(3A) The provision that satisfies the requirements of this subparagraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court—
  (a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and
  (b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised.
  "(3B) In this paragraph "relevant material", in relation to any proceedings, means—
  (a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those"
  The noble and learned Lord said: My Lords, Motion E, which is found on page 27 of the Marshalled List, covers Lords Amendments Nos. 38 to 40 and 42.
  Lords Amendment No. 38 removed Paragraphs 3(2) to (4) from the Schedule and inserted a new paragraph that provided for the Lord Chief Justice to make the rules of court, after consulting the Lord Chancellor. Amendment No. 39, which we debated yesterday, removed the clarification in Paragraph 3(5) that the Lord Chancellor makes the first set of rules for Northern Ireland. Paragraph 3 of the Schedule provides that on the first occasion after the passing of the Act, the relevant power to make rules in respect of proceedings in England and Wales and Northern Ireland should be exercised by the Lord Chancellor, instead of the usual Rules Committee.
  That provision is necessary to ensure that we have rules in place shortly after Royal Assent in those jurisdictions. We have dealt with the urgency of the matter previously. Since we last addressed the issue, draft rules have been published, so there is an opportunity for everyone to see the rules. I fully agree with what the noble Lord, Lord Kingsland, said on a previous occasion, which is that the rules must be absolutely clearly appropriate for such a purpose. The Lord Chancellor sets them on the first occasion only for speed. In the current circumstances, it is appropriate that it should be the Lord Chancellor. I invite noble Lords and noble and learned Lords to consider whether that is the appropriate course.
  Amendment No. 40 inserts Article 6. The reason we inserted paragraph 4 of the schedule is because it provides an important guide for the Lord Chancellor, and subsequently for the Civil Procedure Rules Committee, to the areas with which the rules of court must deal in regulating the procedures to be followed in control order proceedings. I do not believe it to be in accordance with the will of the House simply to leave the coverage of the rules at large, and it is right in a situation like this that some indication is given to the rules' makers of the areas to be covered.
  In particular, it is right that we express our view on the right for the rules to exclude the controlled person's lawyer from certain proceedings in closed session, but allow for a special advocate to act in his interests instead. The rules will also allow for some proceedings, such as an application for anonymity, to be determined on the papers without a hearing. These special rule-making powers and obligations are intended to ensure that a fair and reasonable balance is struck between the need to ensure that control orders are properly reviewed and the need to protect sensitive information in the public interest.
  The proposed amendment suggests that we should merely stipulate that the rules need to be compatible with Article 6 of the ECHR. I respectfully submit that this is unnecessary. I made it clear again on the previous occasion that we would comply with Article 6. We accept that obligation, and, indeed, there is a means of enforcing that: if the rules do not comply with Article 6, they can be struck down. It is not the same as a piece of primary legislation. That amendment is not necessary.
  Noble Lords will know, because I referred to it last time, and I do not intend to refer to it again, that the rules in the SIAC process were considered by the Court of Appeal and were held both to be fair and to comply with Article 6. I do not intend to read again what the Lord Chief Justice said in relation to that.
  Amendment No. 42 introduces a special affirmative resolution process for the rules: they must be laid before Parliament and approved by resolution of each House within 40 days, otherwise they will lapse. I cannot accept the amendment in the precise form in which it is drafted, but my Amendment No. 42A has a similar effect. We have got to the point we wanted to get to yesterday—the rules can be made, with immediate effect, and there is a process by which both Houses then have to affirm them. It is an affirmative process, not a negative one.
  Amendment No. 42B alters sub-paragraph (1)(a) of paragraph 4 of the schedule to remove the power for the rules to make provision about the burden of proof in control order proceedings. We have reviewed the paragraph and redrafted it better to reflect the House's intention. The Bill clearly sets out the tests that must be applied by the Secretary of State and the court when considering the position in relation to control orders. We accept that the rules of court should not be capable of making changes to these tests. That is not the intention, and the amendment ensures that the rules of court cannot be used to do so.
  Finally, regarding Amendment No. 42C, we had an important debate yesterday about how to balance national security against the need to be as fair as possible to the suspect in these proceedings. Our position is that we have to protect national security, but the special measures we take should go only as far as is necessary to achieve that aim. We accept the need for that. It was a view with which the noble Lord, Lord Carlile of Berriew, the noble Lord, Lord Newton of Braintree, and the courts have all agreed. We want the rules to reflect that approach.
  In response to the various concerns of noble Lords, I gave a commitment in Committee on 8 March to clarify beyond doubt the Government's position on the treatment of exculpatory material, and to give effect to the approach that we should give as much as we can consistent with national security. That is what my Amendment No. 42C would do.
  Putting aside all the issues that have gone before, the Government have responded in detail to what this House has said on this issue. I earnestly suggest that. whatever view the House takes on the other amendments, this is one to agree to. This is a case where, looking at the detail and consulting widely, we have improved the Bill immeasurably.
  Moved, Motion E, that this House do not insist on its Amendments Nos. 38, 39, 40 and 42 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 42A and 42B in lieu thereof, and do disagree with the Commons in their Amendment No. 42C but propose Amendment No. 42D in lieu of Commons Amendment No. 42C.—(Lord Falconer of Thoroton.)
  Lord Kingsland Lord Kingsland moved, as an amendment to Motion E, Amendment El:
  Leave out from "House" to end and insert "do insist on its Amendments Nos. 38, 39 and 40 to which the Commons have disagreed, do not insist on its Amendment No. 42 and do disagree with the Commons in their Amendments Nos. 42A to 42C in lieu thereof, but do propose Amendments Nos. 42D and 42E in lieu of Lords Amendment No. 42:
  42D Page 17, leave out lines 34 to end of line 1 on page 18 and insert—
  "() that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material:
  "() that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;
  "() that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);
  "() that the relevant court is required to give permission for material not to he disclosed where it considers that the disclosure of the material would be contrary to the public interest;
  "() that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;
  "() that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest;
  "() that provision satisfying the requirements of subparagraph (3A) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.
  "(3A) The provision that satisfies the requirements of this subparagraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court—

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

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

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

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

  42E Page 17, line 5, leave out sub-paragraph (5) and insert—
  (5) Rules of court made by virtue of this paragraph—

  (a) must be laid before Parliament; and

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

  (6) Where rules cease to have effect in accordance with subparagraph (5), that does not affect anything previously done in reliance on the rules.
  (7) The following provisions do not apply to rules made by the Lord Chancellor by virtue of this paragraph—

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

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

  (8) In sub-paragraph (5) "40 days" and "20 days" mean 40 days and 20 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36)."
  The noble Lord said: My Lords, I shall deal first with the final point made by the noble and learned Lord the Lord Chancellor. I thank the noble and learned Lord for drafting this new amendment regarding exculpatory material. In my submission, the noble and learned Lord has moved significantly from the position that first featured in the Bill. I am content with what the noble and learned Lord has done, and we will not be opposing the amendment.
  As far as the group of amendments in Motion E is concerned, the crucial role they play in the scheme of things is to provide a judicial process for the judges that we substituted for the Secretary of State in the early part of the Bill. In our view, it would be wholly counterproductive to put a judge in charge of deciding whether a control order ought to be made, yet then require him to follow an executive procedure. Without these amendments, a judge will not, in effect, be operating in a judicial context.
  The arguments have been well tested, both in Committee and on Report. I need refer to them only briefly. I begin by saying that the Lord Chief Justice, and not the Lord Chancellor, should make the rules. There are two reasons for this. First, the situation in Scotland is that the Lord President makes the rules;
  914
  and it is important that there is equivalence between ourselves and Scotland in the manner in which rules are made.
  Secondly, as with this legislation generally, if these rules eventually find themselves on the statute book, they will have got there in an extremely rushed fashion, and will have been imperfectly scrutinised. The great value of having the Lord Chief Justice making the rules, therefore, is that he will be standing outside the process and will be able to take an objective view about which rules are appropriate to a situation where the interests of the country are being balanced against the interests of an individual. The Lord Chief Justice is in a better position to do that than the Lord Chancellor, who will nevertheless be consulted on the Lord Chief Justice's decisions.
  The next point is that we think these rules should comply with Article 6 of the ECHR, the article which deals with due process. The noble and learned Lord the Lord Chancellor has said, "We have already agreed to that. Why do you need it on the face of the Bill?", to which I respectfully retort that, if the noble and learned Lord is content that Article 6 should apply, what is the harm of putting it on the face of the Bill? If he is not prepared to do so, it suggests that one ought to be somewhat concerned about the nature of his undertaking. In my submission, your Lordships ought to vote to put the Article 6 requirement on the face of the Bill.
  The final component of this group is one that has been tabled by the noble Lord, Lord Goodhart, and would give your Lordships' House the right, once the rules had been drafted, to have them laid before your Lordships under an affirmative resolution procedure. Your Lordships would then not only have the guarantee of the rules being drafted by the Lord Chief Justice, but also the opportunity to look at them carefully and, at the end of the day, if necessary, reject them. That is what this group of amendments is about. I beg to move.
  Moved, as an amendment to Motion E, Amendment E1, leave out from "House" to end and insert "do insist on its Amendments Nos. 38, 39 and 40 to which the Commons have disagreed, do not insist on its Amendment No. 42 and do disagree with the Commons in their Amendments Nos. 42A to 42C in lieu thereof, but do propose Amendments Nos. 42D and 42E in lieu of Lords Amendment No. 42.—(Lord Kingsland.)
  Lord Goodhart: My Lords, we are happy with the Government's new amendment, which, we accept, is a considerable step forward and deals with a problem that had been of some concern to us. We on these Benches are happy to support the noble Lord, Lord Kingsland, in his insistence on Amendments No. 38 to 40.
  I shall spend a minute or two on our Amendment No. 42E. This arises from the matter mentioned by the noble Lord, Lord Kingsland, about the order, which I raised in an earlier amendment and was accepted by the Government, to apply an affirmative resolution

  915
  procedure to the first set of rules made by the Lord Chancellor or the Lord Chief Justice, which would come into force immediately but would cease to have effect if both Houses did not approve them by a resolution within 40 days.
  When it came back from the Commons, certain provisions had been added, which effectively gave the Lord Chancellor power to make exactly the same orders all over again, immediately after the end of the 40-day period—and without any consultation. It seemed to me that that defeated the purpose of the amendment. I could see at the same time that there was a problem: that if, at the end of the 40-day period there had been no approval by both Houses, the orders would immediately lapse and they would have to be remade, and that might take some time.
  In Amendment No. 42E I have included a provision that removes the power of the Lord Chancellor to make the old rules again, but gives a 20-day breathing period, following the end of the original 40 days, which would allow time for new rules to be made and to be brought into effect before the original rules finally expired.
  Lord Mayhew of Twysden: My Lords, perhaps I may comment on the subject of exculpatory material. I am glad to see Amendment No. 42D, tabled by the Government and I associate myself with what has been said by the Front Benches. I said some harsh words a couple of nights ago on the basis that the Bill looked as though it gave authority for the Secretary of State to withhold from the suspect material that was exculpatory of him and I am glad to see that Ministers, as I would have expected, have demonstrated their good faith in that regard.
  Baroness Ramsay of Cartvale: My Lords, I speak very briefly just to seek some reassurance from the noble and learned Lord the Lord Chancellor and/or the noble Lord, Lord Kingsland, regarding the same debate about which the noble and learned Lord, Lord Mayhew, was holding forth very strongly about exculpatory material and evidence. We were also talking about intercept evidence being put into court. The reassurance that I am seeking is that, as I read it now, intercept material would, of course, be seen by the Secretary of State, but that it would not be necessary for him to put that into the court. I seek this reassurance, especially because I heard the right honourable David Davis this morning on the radio, stating categorically a big list of things that his party would not go back on, including the inclusion of intercept evidence in court. Could I have some sort of answer?
  Baroness Whitaker: My Lords, as a non-lawyer, could I confess to some puzzlement about the amendment that says that:
  "The rules of court must comply with the United Kingdom's obligations under Article 6 of the European Convention on Human Rights"?
  I had thought that Article 6 was among the articles in the ECHR which had been incorporated into the Human Rights Act and, therefore, was part of British
  916
  law. Surely, it is unnecessary to put on the face of a statute that the rules of court must comply with UK law?
  Lord Thomas of Gresford: My Lords, I add my personal thanks for the drafting of Amendment No. 42D. it was a matter about which your Lordships may recall I was concerned at Second Reading. I am grateful that the Government have dealt with that in such a satisfactory way.
  Amendment No. 40A raises a matter which I raised in Committee and on Report, concerning,
  "the exclusion of evidence in control proceedings, where there is reason to believe that such evidence has been obtained by torture in any jurisdiction".
  We had a fruitful debate and concerns were expressed in various parts of the House about the Court of Appeal's judgment, which permitted evidence that had been obtained by torture to be used in court, provided that the torture was carried out by people who were not servants of this state. I have had quite a lot to say on that matter.
  However, that amendment does not form part of the Motion, so it is not a matter that I shall press. I just hope that the Judicial Committee of the House of Lords will come to the conclusion which, with his usual foresight, my noble friend Lord Lester of Herne Hill said yesterday that they would come to. If that is not the case, I hope that we shall return to this topic at some later date.
  Lord Falconer of Thoroton: My Lords, three points are left. First, why should it be the Lord Chancellor and not the Lord Chief Justice? The reason for that is that the orders need to be made in a hurry. It is wrong that the Lord Chief Justice should be in the special position. It should be the Lord Chancellor. The merit of that can be tested by the fact that the draft rules have now been published, so that people can form their own views in relation to it.
  Secondly, I have made it clear that Article 6 does apply. The noble Lord, Lord Kingsland, knows that it would be bad drafting to put Article 6 in here and not in other statutes, because the Human Rights Act applied to every act carried out by a public authority, and the Lord Chancellor, the Lord Chief Justice and the Civil Procedure Rules Committee are public authorities. The noble Lord sends the wrong legal signal. Despite the earlier decisions of the House, the one thing that it should be doing is approaching these issues with some sense that we are moving forward and have reached a responsible conclusion.
  The noble Lord, Lord Goodhart, put. his point accurately regarding the effect of our position. We have put it that way, not because we would intend to come back with identical rules, but because you need to deal with the question of what would happen if there

  917
  were no rules. Of course, we would respect the conclusion of the House, or Parliament, if it had voted down the rules, but you need some provision which allows you to come back with something, if only for a temporary period. That is why we have done it and I hope that that will give the noble Lord pause for thought.
  Finally, regarding the point made by the noble Baroness, Lady Ramsay, the material could go to the court—even material that might give rise to a national security problem. But if it did affect national security, it could not go to the suspect or his lawyers. That is where the firewall is. If it endangers national security, then it does not go to the suspect or his lawyers; it goes to the court.
  I hope that, in the light of those explanations, the House would behave in the way that it normally does in relation to such issues by not pushing the amendments to a vote, as they are sensible responses.
  Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his reply. I shall glance this afternoon at the draft rules, if I have an opportunity to do so, since he has drawn to my attention that they are now available.
  Regarding Article 6 of the convention, it was plain, when the Bill first came before your Lordships, that the rules proposed did not conform with Article 6. This amendment was tabled for that reason; and it is wholly appropriate that it should remain on the statute book. No derogation has been sought by the Government to resile from Article 6. The Government have stated politically that they will support Article 6.
  Lord Falconer of Thoroton: My Lords, does the noble Lord dispute the proposition that the ECHR applies to the rules and that if they were in breach of Article 6, they would be struck down?
  Lord Kingsland: My Lords, I have no doubt whatever that if they were in breach of Article 6 they would be struck down. My concern is that the noble and learned Lord accepts that a civil right is involved, but he does not accept that the later criminal provisions of Article 6 apply to the procedure. That is the difference between us and that is why we are keen that Article 6 remains on the face of the Bill.
  Perhaps I may put it as I did in my opening remarks. Why is the noble and learned Lord so concerned about Article 6 being on the face of the Bill if he is confident that he will meet the obligation? I respectfully invite your Lordships also to accept the amendment to the noble and learned Lord's own amendment that has been tabled by the noble Lord, Lord Goodhart.
  3 p.m.
  On Question, Whether the said amendment (El) shall be agreed to?
  Their Lordships divided: Contents, 200; Not-Contents, 129.

  Division No. 4

  CONTENTS

  Ackner, L.

  Harris of Richmond, B.

  Addington, L.

  Haskins, L.

  Ahmed, L.

  Hayhoe, L.

  Alderdice, L.

  Henley, L.

  Allenby of Megiddo, V.

  Higgins, L.

  Alliance, L.

  Hodgson of Astley Abbotts, L.

  Ampthill, L.

  Hogg, B.

  Anelay of St Johns, B.

  Home, E

  Ashcroft, L.

  Howard of Rising, L.

  Astor, V.

  Howe, E.

  Astor of Hever, L.

  Howe of Aberavon, L.

  Avebury, L.

  Hurd of Westwell, L.

  Baker of Dorking, L.

  Hylton, L.

  Ballyedmond, L.

  James of Holland Park, B.

  Beaumont of Whitley, L.

  Jenkin of Roding, L.

  Bell, L.

  Judd, L.

  Berkeley. L.

  Kalms

  Bonham-Carter of Yarnbury, B.

  Kennedy of The Shaws, B.

  Bradshaw, L.

  Kimball, L.

  Bridgeman, V.

  Kingsland, L.

  Brittan of Spennithorne, L.

  Knight of Collingtree B.

  Brooke of Sutton Mandeville, L.

  Laing of Dunphail, L.

  Brougham and Vaux, L.

  Laird, L.

  Buscombe. B.

  Lamont of Lerwick, L.

  Byford, B.

  Lang of Monkton, L.

  Campbell of Alloway, L.

  Lawson of Blaby, L.

  Carlisle of Bucklow, L.

  Linklater of Butterstone, B.

  Chalker of Wallasey, B.

  Liverpool, E.

  Chorley, L.

  Livsey of Talgarth, L.

  Clement-Jones, L.

  Lloyd of Berwick, L.

  Cope of Berkeley, L. [Teller]

  Lucas, L.

  Courtown, E.

  Ludford, B.

  Crathorne, L.

  Luke, L.

  Crickhowell, L.

  Lyell, L

  Cuckney, L.

  McColl of Dulwich, L.

  Darcy de Knayth, B.

  Maclennan of Rogart, L.

  Dean of Harptree. L.

  McNally, L.

  Denham, L.

  Maddock, B.

  Dholakia, L.

  Maginnis of Drumglass, L.

  Dixon-Smith, L.

  Mancroft, L.

  Donaldson of Lymington, L.

  Mar and Kellie, E.

  Dykes, L.

  Marlesford, L.

  Eccles of Moulton, B.

  Mayhew of Twysden, L.

  Eden of Winton, L.

  Mishie of Gallanach, B.

  Elis-Thomas. L.

  Miller of Chilthorne Domer, B.

  Elles, B.

  Miller of Hendon, B.

  Elliott of Morpeth, L.

  Monro of Langholm, L.

  Elton, L.

  Monson, L.

  Falkland, V.

  Montrose, D.

  Falkner of Margravine, B.

  Moore of Lower Marsh, L.

  Fearn, L.

  Morris of Bolton, B.

  Feldman, L.

  Moser, L.

  Ferrers, E.

  Mowbray and Stourton, L.

  Fookes, B.

  Murphy, B.

  Forsyth of Drumlean, L.

  Murton of Lindisfarne, L.

  Fowler, L.

  Naseby, L.

  Freeman, L.

  Neuberger, B.

  Garden, L.

  Newby, L.

  Gardner of Parkes, B.

  Northbourne, L.

  Garel-Jones, L.

  Northesk, E.

  Geddes, L.

  Northover, B.

  Glasgow, E.

  Norton of Louth, L.

  Glenarthur, L.

  Oakeshott of Seagrove Bay, L.

  Glentoran, L.

  O'Cathain, B.

  Goodhart, L.

  Onslow, E.

  Goschen, V.

  Oppenheim-Barnes, B.

  Greaves, L.

  Park of Monmouth, B.

  Greengross, B.

  Pearson of Rannoch, L.

  Greenway, L.

  Perry of Southwark, B.

  Hamwee, B.

  Peyton of Yeovil, L.

  Hanham, B.

  Phillips of Sudbury, L.

  Hanningfield, L.

  Platt of Writtle, B.

  919

  Plumb, L.

  Soulsby of Swaffham Prior, L.

  Plummer of St. Marylebone, L.

  Southwell, Bp.

  Quirk, L.

  Steel of Aikwood, L.

  Rawlings, B.

  Stern, B.

  Razzall, L.

  Stoddart of Swindon, L.

  Redesdale, L.

  Strathclyde, L.

  Renton, L.

  Taverne, L.

  Roberts of Conwy, L.

  Tenby, V.

  Roberts of Llandudno, L.

  Thatcher, B.

  Rodgers of Quarry Bank, L.

  Thomas of Gresford, L. [Teller]

  Roper. L.

  Thomas of Walliswood, B.

  Rotherwick, L.

  Tombs, L.

  Russell-Johnston, L.

  Tope, L.

  Saltoun of Abernethy, Ly.

  Tordoff, L.

  Sandberg, L.

  Trumpington, B.

  Sandwich, E.

  Ullswater, V.

  Scott of Needham Market, B.

  Vallance of Tummel, L.

  Seccombe, B.

  Waddington, L.

  Selborne, E.

  Wade of Chorlton, L.

  Selkirk of Douglas, L.

  Waldegrave of North Hill, L.

  Selsdon, L.

  Wallace of Saltaire, L.

  Sharp of Guildford. B.

  Walmsley, B.

  Sharples, B.

  Watson of Richmond, L.

  Shaw of Northstead, L.

  Wilcox, B.

  Sheldon, L.

  Williamson of Horton, L.

  Shutt of Greetland, L.

  Windlesham, L.

  Slim, V.

  Wright of Richmond, L.

  Smith of Clifton, L.

  Young of Hornsey, B.

  NOT-CONTENTS

  Acton, L.

  Giddens, L.

  Amos, B. (Lord President of the

  Gilbert, L.

  Council)

  Golding, B.

  Andrews, B.

  Goldsmith, L.

  Ashton of Upholland, B.

  Gordon of Strathblane, L.

  Bach, L.

  Goudie, B.

  Bassam of Brighton, L.

  Gould of Brookwood, L.

  Bernstein of Craigweil, L.

  Gould of Potternewton, B.

  Bhattacharyya, L.

  Graham of Edmonton, L.

  Billingham, B.

  Griffiths of Burry Port, L.

  Bledisloe, V.

  Grocott, L. [Teller]

  Blood, B.

  Harris of Haringey, L.

  Borrie, L.

  Harrison, L.

  Bragg, L.

  Hart of Chilton, L.

  Brett, L.

  Haworth, L.

  Brooke of Alverthorpe, L.

  Hayman, B.

  Brookman. L.

  Henig, B.

  Campbell-Savours. L.

  Hilton of Eggardon, B.

  Carter, L.

  Hogg of Cumbernauld, L.

  Carter of Coles, L.

  Hollis of Heigham, B

  Clarke of Hampstead, L.

  Howells of St. Davids, B.

  Clinton-Davis, L.

  Hoyle, L.

  Corbett of Castle Vale, L.

  Hughes of Woodside, L.

  Crawley, B.

  Hunt of Kings Heath, L.

  Davies of Coity, L.

  Janner of Braunstone, L.

  Davies of Oldham, L. [Teller]

  Jones, L.

  Dean of Thornton-le-Fylde, B.

  Jordan, L.

  Desai, L.

  Kerr of Kinlochard, L.

  Dixon, L.

  Kilclooney, L.

  Donoughue, L.

  King of West Bromwich, L.

  Drayson, L.

  Layard, L.

  D'Souza, B.

  Leitch, L.

  Dubs, L.

  Lipsey, L.

  Elder, L.

  Lockwood, B.

  Evans of Parkside, L.

  Lofthouse of Pontefract, L.

  Evans of Temple Guiting, L.

  McDonagh, B.

  Falconer of Thoroton, L. (Lord

  Macdonald of Tradeston, L.

  Chancellor)

  McIntosh of Haringey, L.

  Farrington of Ribbleton, B.

  McIntosh of Hudnall, B.

  Faulkner of Worcester, L.

  MacKenzie of Culkein, L.

  Filkin, L.

  Mackenzie of Framwellgate, L.

  Fyfe of Fairfield, L.

  McKenzie of Luton, L.

  Gale, B.

  Marsh, L.

  Gavron, L.

  Massey of Darwen, B.

  Gibson of Market Rasen, B.

  Maxton, L.

  920

  May of Oxford, L.

  Sawyer, L.

  Merlyn-Rees, L.

  Scotland of Asthal, B.

  Mitchell, L.

  Sewel, L.

  Morgan, L.

  Simon, V.

  Morgan of Drefelin, B.

  Snape, L.

  Morgan of Huyton, B.

  Stone of Blackheath, L.

  Morris of Aberavon, L.

  Strabolgi, L.

  Morris of Manchester, L.

  Symons of Vernham Dean, B.

  Pendry, L.

  Thornton, B.

  Plant of Highfield, L.

  Triesman, L.

  Ponsonby of Shulbrede, L.

  Truscott, L.

  Radice, L.

  Tunnicliffe, L.

  Ramsay of Cartvale, B.

  Turnberg, L.

  Randall of St. Budeaux, L.

  Turner of Camden, B.

  Rendell of Babergh, B.

  Wall of New Barnet, B.

  Richard, L.

  Warner, L.

  Roll of Ipsden, L.

  Weatherill, L.

  Rooker, L.

  Williams of Elve, L.

  Rosser, L.

  Winston, L.

  Rowlands, L.

  Young of Norwood Green,

  Royall of Blaisdon, B.

  L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  On Question, Motion, as amended, agreed to.
  3.11 p.m.

Consolidated Fund (Appropriation) Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

Gambling Bill
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Lord Clement-Jonesmoved Amendment No. 1:
Before Clause 1, insert the following new clause—
"CONVERSION OF CURRENT ENTITLEMENTS

(1) The Secretary of State shall by order make provision for the conversion of all entitlements to the operation and citing of gaming pursuant to the Gaming Act 1968 (c. 65) and related legislation into premises licences under this Act.

(2) Such an order, as set out in subsection (1), shall provide that these pre-existing rights may not be in any way limited by the Secretary of State, the Commission or any licensing authority."

The noble Lord said: It is a great pleasure to start this Bill. I hope that colleagues will be gainfully occupied for most of the rest of today with the Gambling Bill, which is very appropriate, although I would not want to place a bet on the outcome of today's business.
The Minister is well aware of the concern in the gaming industry about "grandfather" rights; that is, the retention of machine numbers on premises or the ability to offer particular games to customers in accordance with existing entitlements. The uncertainty is created because the Bill leaves to secondary legislation the detail of how effect will be given to that intention. It is therefore impossible, because that secondary legislation is not available in draft, for the industry to identify all the circumstances where current entitlements would stay or would be removed.
The Government have accepted that certain matters are fundamental to the principles of the Bill. Indeed, they are enshrined in Clause 1. They are not left to the discretion either of local authorities or to the Secretary of State. The Government argue that Schedule 18 deals with grandfather rights, but it does so only in the sense that it gives the Secretary of State powers to make orders to deal with transitional arrangements to cover existing licences or permits without specifying the detail of how that will be applied.
It is particularly important to the gaming industry that the principle of grandfather rights is spelt out, given that the new licensing powers that are being given under the Bill to local authorities increase their ability to curtail or remove existing entitlements. Without greater certainty, industry does not have the stable environment in which to plan and invest.
The devil is in the detail as regards grandfather rights in particular. A specific example of how the Government's general assurances about grandfather rights do not provide any comfort at a detailed level can be seen in relation to their application to family entertainment centres.
The Secretary of State wrote to Mr Tony Wright MP on 12 November 2004, giving the impression that all amusement arcades will benefit from those grandfather rights. She wrote:
"I know the issue of 'grandfather rights' is also of concern for some amusement arcade operators. Amusement arcades with the lowest stake and prize machines currently operate under permit from local authorities, and this will be the case under the Bill (they will become unlicensed family entertainment centres). Such arcades will not be regulated directly by the Gambling Commission, although the Gambling Commission will be required to issue guidance to local authorities about a whole range of matters, including arcades that local authorities will have to take into account. When the Bill comes fully into force, probably some time in 2007, then at this point all arcades will be entitled to new grandfathered permits, entitling them to the same number of machines as under the current arrangements".
In reality, only about 5 per cent of arcades would be covered by the terms of that assurance because it covers only those arcades that have only category D machines and are therefore not licensed by the local authority. While the bulk of their machines are category D machines, 95 per cent of arcades also have segregated over-18 only areas, which have entitlement
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to offer category C machines. So there are issues there about which the arcade industry, in particular, is concerned. I beg to move.
Baroness Buscombe: In speaking to support the amendment tabled by the noble Lord, Lord Clement-Jones, I speak also to my Amendment No. 9, which is on similar points. The noble Lord's amendment raises significant, important issues regarding the support and maintenance of existing rights to games and machines by the current industry—be it pubs, bingo halls or small casinos.
The industry, as we will discuss, believes that this Bill proposes an unequal playing field. It wishes to ensure that not only is there no reduction in the number of machines on premises, but also that there is no reduction in the ability to offer particular games to customers.
As the noble Lord has explained, the Bill only appears to give parts of the industry these grandfather rights, which some have argued as undue bias. The new clause in my name after Clause 6 aims to look at the detail of a particular concern about Sections 16 and 21 machines, alluded to by the noble Lord, Lord Clement-Jones, while speaking to Amendment No. 1.
The adult gaming centres are arguably faced with a double whammy. As currently drafted, a number of gaming areas do not fit neatly into the Bill. They include Sections 16 and 21 machines, which have been in operation since 1976 and 1968 respectively. Sections 16 and 21 machines currently operate under a voluntary code of conduct that is approved by the Gaming Board. Those machines are well regulated and controlled. On that basis, I ask the Minister why the use of those machines cannot be permitted to continue with the current level of stakes and prizes under a separate machine category—for example, a B5.
I question whether Part 10 of the Bill gives adequate safeguards to secure current entitlements to existing games operating under Sections 16 and 21 licences, which the Government will no doubt argue in a moment. Moreover, a recent DCMS memorandum and the RIA suggest that those machines will not be able to operate as they do under existing legislation. I would appreciate details from the Minister on the position of those machines in this legislation and their operation under it.
Lord Greaves: Can the Minister provide me with some information that I cannot find elsewhere on existing casinos? According to different sources, there are between 131 and 137 existing casinos in operation. Perhaps the Minister knows exactly how many. If those casinos were new casinos, under the Bill would they be classified as small or large casinos?
Lord McIntosh of Haringey: I am very sympathetic to the motivation behind the amendment tabled by the noble Lord, Lord Clement-Jones. I want to give him the reassurance that he seeks about the clarity of grandfather rights. I know where these amendments come from and I well appreciate that the grandfather rights available in the Bill are scattered throughout it.

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Many of the assurances that have been given on them have been in the form of letters to Members of Parliament or in other ways. It is important that the grandfather rights, which are enshrined in the Bill and which I believe to be comprehensive, should be read into the record, as I propose to do now.
The Government published a position paper on grandfather rights in February 2004, which might not have been brought to the attention of the noble Lord, Lord Clement-Jones. It made clear that the Government would use the powers in the Bill to convert, automatically, a number of existing permissions into permissions under this legislation. I shall give the Committee the detail.
Those promoting lotteries, subject to the registration requirements in Sections 5 or 6 of the Lotteries and Amusements Act, will be deemed, where necessary, to have a lottery operating licence under the Bill. Licences for betting offices, betting tracks and approved horse racecourses under the Betting, Gaming and Lotteries Act 1963 will become betting premises licences under Part 8 of the Bill. A machine permit under Schedule 9 to the Gaming Act 1968 for all cash amusement-with-prizes machines will become either an adult gaming centre premises licence or a family entertainment centre premises licence.
Gaming or bingo licences under Part II of the 1968 Act will become premises licences too. Permits for miners' welfare institutes and other clubs will convert automatically into club gaming permits under the Bill. Machine permits for coin or token amusement-with-prizes machines will be converted automatically into new style category D machine permits, although new permits will not be available for premises such as fish and chip shops, and so on. Lastly, premises licensed for the sale of alcohol that have a gaming machine entitlement now will, where necessary, be granted a permit under the Bill to carry on with exactly the same number of gaming machines as they have now.
The House will know that it is quite normal for detailed transitional arrangements under legislation to be dealt with through secondary legislation, such as that in Schedule 18 to the Bill to which the noble Lord, Lord Clement-Jones, referred. The Delegated Powers and Regulatory Reform Committee, in its 11th report, passed no comment at all on the Bill's powers in that respect. So I hope I have been able to answer the first question posed by the noble Lord, Lord Clement-Jones.
The noble Baroness, Lady Buscombe, asked me about Sections 16 and 21 machines and why the current level of stakes and prizes will not be the same under the Bill as it is now. We shall debate that on subsequent amendments and perhaps I can go into more detail then. Fundamentally, the principle is that the number and power, in terms of stakes, prizes and speed of play, of machines is proportionate to the nature of the premises; in other words, whether children are allowed in and the degree of hard gambling that takes place. I am very willing to defend our proposals for Sections 16 and 21 machine stakes and prizes on the grounds that that will be the theme of everything that I say on the precautionary principle in this Committee.
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The noble Lord, Lord Greaves, asked how many existing casinos are small or large. We do not have exact figures because we do not measure the table gaming areas in casinos. We have no authority to do that and I do not believe that he would wish us to do so. Our understanding is that only a minority of the existing casinos meet the minimum size requirements of the new casinos.
While I am totally sympathetic to the purpose of the amendments, I believe that they are unnecessary. All the powers necessary to deliver fair grandfather rights are already in the Bill. A more substantial point on the amendments is that if they were accepted they would prevent the Government or the Gambling Commission or a licensing authority using their powers in future to control entitlements to gaming and gambling machines. I submit that that would undermine the central purpose of the Bill.
The main reason for introducing the Bill now is because the present law is being outpaced by technology. That is more than just a debating point. As the law is out of date, operators have tried to exploit loopholes to introduce new products that were never intended to be authorised under the law. 1 am sure that the noble Baroness, Lady Buscombe, will agree that Sections 16 and 21 machines were never envisaged when the 1968 Act was passed, any more than fixed-odds betting terminals in betting shops were envisaged at that time. The reason we have roulette gaming machines in betting offices and family arcades is because the law is inadequate and in doubt and that is why we need the Bill.
Section 16 of the 1976 Act and Section 21 of the 1968 Act were never intended to authorise the provision of gaming machines. So, the fact that these machines are being provided, in reliance on parts of the law never intended to authorise machine gaming, is part of the problem we are trying to solve. Our policy in the Bill, which I hope I have spelt out by the list that I have given, is to apply a single, coherent and comprehensive regulatory framework for gaming machines. We want to move away from the position where, because of supposed loopholes, it has been possible to provide gaming machines outside the regulatory framework of Part 3 of the Gaming Act 1968.
It is absolutely essential that all of the regulatory authorities can use their powers to change licence conditions or entitlements if there is evidence that a particular product, or the way in which a product is being offered, is driving problem gambling or is causing a risk to the licensing objectives of the Gambling Commission. I will not compromise on that point. I know it has not been suggested, but I want to make it clear for the future that I shall not compromise on that point because our concern is to protect the public.
We accept, of course, that the trade associations have agreed a code of practice with the Gaming Board that governs the provision of such machines. But that does not at all change our view on whether they should have been provided under these provisions in the first

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place. Given what I have said, and taking into account the use of the transitional powers under the Bill, I ask for these amendments to be withdrawn.
Lord Clement-Jones: I thank the Minister for the extremely clear nature of his reply, which was very helpful as he went through the different categories. Likewise, I have considerable sympathy with the second half of his remarks in terms of the purposes of the Bill and I have no quarrel with the intention to update gambling law to ensure that we have a properly ordered industry. The arcade industry will take comfort from what he has said. I shall have to consider the detail of what the Minister has said, but it seems to me that some comfort is given in terms of existing entitlements and their continuation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [The licensing objectives]:
Baroness Buscombemoved Amendment No. 2:
Page 1, line 6, at end insert—
"() preventing an overall increase in the incidence of gambling in the United Kingdom,"
The noble Baroness said: With the leave of the House I would like to speak not only to Amendments Nos. 2 and 3, but also to Amendment No. 4, given the time constraints placed upon us today. I understand that the noble Lord, Lord Northbourne, with the leave of the House, would also like Amendment No. 52A to be included in this group.
3.30 p.m.
Amendments Nos. 2 and 3 are contrasting amendments designed to discuss the Government's intention behind the Bill, something that is vitally important—particularly considering the constraints placed upon us—to the context of all the Committee amendments but I fear will otherwise be lost in the debate on the detail. These amendments flush out the thinking by adding an additional purpose to the licensing objectives in Clause 1.
The amendments are self-explanatory. I would like to know from the Minister whether it is the Government's policy to prevent an overall increase in the incidence of gambling in the UK, or to enable it.
In a statement on national policy made in December last year the Government stated that the Bill was based on three main objectives—to protect children and other vulnerable people from harm, to prevent gambling being a source of crime or disorder, and to ensure that gambling is conducted in a fair and open manner. Should we take these objectives within the context of my Amendment No. 2 or No. 3?
The statement also said that Britain has a low level of problem gambling compared to other countries—less than 1 per cent of the population—and that the Government are committed to maintaining this record. How is the Minister committed to maintaining this record as the Bill currently introduces a range of regional and large casino facilities that are open to bids
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from companies over and above the existing estate? Or does he envisage a 50/50 increase by the existing estate versus newcomers?
Does the Minister agree with many commentators that if you increase the access to gambling, no matter how well controlled, the numbers of those affected by addiction or problem gambling will rise? Or does the Minister hope that despite an increase in numbers the problem will remain within 1 per cent of those gambling overall, or that it will be the same 1 per cent just developing into increasing debt? GamCare's recent report shows—from what information it can obtain from clients—that debt has increased by £1,000 per individual: from £19,000 to £20,000 in the past year alone.
Meanwhile the Government have also been criticised by academics who say that problems such as child gambling are far greater than the 5 per cent mentioned in the Department for Culture, Media and Sport's recent report.
One of the reasons given for including the casino proposals in the Bill was so that this country could reap the increasing rewards of tourism and leisure industries contributing to our GDP. Yet a recent poll by YouGov and the Gambling Consultancy stated:
"Half the public are not persuaded that making it easier for people to gamble and for casinos to attract customers will boost UK tourism".
Therefore I ask the Minister what estimated figures for foreign tourists who would come simply to gamble, as well as those who would happen to gamble while they are here, have Her Majesty's Government been basing the growth benefits on? Can he make them available to the House for consideration?
It is against this background of concern that I am led to ask the Minister to state to the Committee now whether it is his intention to fulfil the broad objectives of the Bill with a view to prevent an overall increase in the incidence of gambling in the United Kingdom, or to enable it.
Amendment No. 4 is suitably connected with earlier amendments. It is concerned with the need to protect low-income groups, along with children and the vulnerable. I would like to tease a little more detail from the Minister as to how gambling addictions affect different echelons of society. Of the 1 per cent who suffer this affliction in the United Kingdom, can he give me the breakdown by income groups and by those at different stages in their life cycle and place a copy in the Library? Would he not agree with me that when we refer to the vulnerable we are often referring to low-income families to which the activity of gambling can be regressive, not regenerative?
It is essential that there are precautions in place to protect those low-income family members who cannot afford to lose at any cost. Does increasing access to gambling, despite safeguards, really offer the protection that such individuals need?
Amendment No. 52A, tabled by the noble Lord, Lord Northbourne, sets out proposals with regard to codes of practice which the Gambling Commission may introduce. The noble Lord is proposing an

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entirely sensible and wise condition, which is that before issuing or revising a code under this clause, the commission shall consult,
"one or more persons who have specialist knowledge of the welfare of children and their families".
I would go further than that. I would like to see such a person sitting as a full member on the commission itself. I would also hope that such a person would be consulted by the advisory panel. I beg to move.
Lord Northbourne: I should like to speak to Amendments Nos. 2, 3, 4 and 5 and to Amendment No. 52A in my name. I very much welcome the fact that the Government have included as a priority in the licensing objectives the protection of children and vulnerable persons. However. I do not entirely see this admirable policy unfolding in the body of the Bill. 1 hope that the Minister will help me on that.
There are two major ways in which children can suffer from gambling. The first is by getting in the habit of gambling and becoming addicted gamblers. The second is by having parents who gamble and thereby impoverish the family, possibly causing family breakdown. Your Lordships may say, does this really matter? The answer is yes. There is now a mass of quality research which shows that children growing up in families in poverty and, a separate category, children growing up in single-parent families and families that are dysfunctional are more likely to have poorer health, poorer outcomes in school, and poorer outcomes in later life in terms of employment, crime and so forth, and in family formation later.
In this country today we have 4 million children living in poverty, which means below the poverty line. Of those, about 2 million children are living in families which do not have enough money to provide some of the basic necessities of those children's lives. We have about 3 million children living in broken families. That is already a dangerously high level. I do not think we want through this Bill to increase the number of families in either of those categories.
I am concerned by the picture I see emerging from the Bill of glitzy, glamorous new casinos and category A and B gambling machines advertised and promoted by personalities, film stars and football stars, and stories in the newspapers encouraging people to believe that gambling is an important lifestyle choice, in which if people do not participate they are deprived and disadvantaged. Probably the strongest danger is that people will attempt to go into the gambling arena because they feel that their status demands it or because they feel that they would be deprived if they do not. There will undoubtedly be large numbers of people who are disadvantaged in the sense that they do not have surplus money to spend on gambling, yet they will spend their money on gambling—it will come out of the housekeeping and it will leave more children in poverty. It will lead to more family discord, family breakdown and probably domestic violence as well.
I hope that the Minister can show me how children and vulnerable families can be fully protected. If he cannot, I urge your Lordships to vote against what
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appears to be not only an unnecessary development of the gambling industry in this country, but also one for which there is little or no demand.
As the noble Baroness suggested, Amendment No. 52A suggests that the commission should consult someone with expertise about families with children. The noble Baroness is right; such a person ought also to be a member of the commission. The impact of gambling on children and families is very complex. Just because we have had children and families does not mean that we necessarily know the answers. This is a subject on which professional advice would be extremely important to the commission. Therefore, I intend to move that amendment in due course unless the Minister can convince me that it is wholly unnecessary to do so.
Viscount Falkland: I find the amendments in this group curious. They invite Second Reading speeches. One can find plenty of faults with the Bill as a whole, but surely nobody can fault the objectives of the Bill, which are well conceived and well drafted. Of course, there will be an increase in gambling in this country—that is what the Bill intends. Furthermore, the Bill intends to ensure that the damage that comes from that increase in gambling is as limited as it can be. Whether there is any demand for this increase in gambling in the first place is another matter, but we dealt with that at Second Reading.
The amendment of the noble Lord, Lord Northbourne, would include children and low-income groups. Children are well covered by Clause 1 (c) in the licensing objectives. Is it not rather condescending to refer to low-income groups? It became quite clear when those of us on the committee talked to members of GamCare and other bodies that not only low-income groups are vulnerable in these matters. but other people are, too. We actually saw somebody who had been a multi-millionaire in the City and lost all his money gambling.
Lord Northbourne: I fear that my expertise is not in gambling. My expertise, such as it is, is in low-income families and deprived and disadvantaged families. I have seen some of the problems that are caused by poverty. Indeed, all of us know, and I think that the noble Viscount will probably accept, that debt is one of the most important factors in making a misery of the lives of many families. That is my concern.
Viscount Falkland: I see where the noble Lord is going and from whence he is coming. I agree that there is a danger to children, particularly in technology gambling such as slot-machines—not so much in traditional forms of gambling such as horseracing, which was mentioned in the evidence that we had in the committee from those who worked at Gordon House. Slot-machines were the main cause of concern in relation to the evidence that they collected from the people whom they treated.
Low-income groups are always going to be vulnerable to fantasy attractions of different kinds. However, all that is very well covered by the objectives.

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I am concerned, as is the noble Lord, by the fact that the Bill increases the amount of gambling. Even though it does that responsibly, I am not aware that there is any demand for it. To that extent I agree with him.
Baroness Howe of Idlicote: As these amendments are very much about children and the protection of children as well as low-income groups, I would like to speak to my amendments, which come somewhat later—Amendments Nos. 96, 97 and 99. The intention of these amendments is to bring the UK into line with the rest of the developed world and to stop children playing on fruit machines.
As the Gambling Bill has passed through its various stages, it has become clear that there is confusion about category D machines. Although category D includes machines such as teddy bear grabbers and penny falls, it also includes certain types of fruit machines. These machines are identical to the varieties found in categories A to C except for their stake and prize. The amendment tabled to Clause 45 of the Bill would stop children playing on fruit machines but not on these other machines.
There was confusion about this in the other place; one wonders whether some of it was deliberately designed to obfuscate a serious issue. However, I will be clear at the outset—our amendment would not stop children and young people playing on teddy bear grabber machines and penny falls. Contrary to the briefing sent to Peers by BACTA, this amendment would not prohibit children from playing on penny falls and other such games. The second part of our amendment clearly enables the Secretary of State to make those forms of games available to children and young people.
Fruit machines constitute some of the most addictive forms of gambling. Many adults struggle to control their gambling on them, as the GamCare helpline statistics show. They are structurally more dangerous than lots of other forms of gambling. They are fast, aurally and visually stimulating and rewarding, they require a low initial stake, provide frequent wins and may be played alone. Players can experience frequent "near misses" which encourage them to chase their losses with the hope of doing better next time. All of those characteristics make them particularly attractive, and dangerous, to children.
The only difference between a category D fruit machine and categories A to C is the stake and prize. In effect, children as young as five and six are being exposed to every other kind of addictive trait that they would be if they were playing a category A machine. For many children, £5 is not a small prize—it may be twice their weekly pocket money.
3.45 p.m.
By now, many Committee Members will be aware that there is growing public unease about the status quo in the Bill. That is one reason why I wanted to speak to these amendments today. In less than a week,
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nearly 40,000 people have signed a petition organised by the Salvation Army, the Methodist Church and the National Children's Home—to which I am extremely grateful for a range of briefing—demanding that children be stopped from gambling on fruit machines. That is an impressive number in such a short space of time and shows the strength of public feeling on the issue. Perhaps one should not be surprised; in an NOP opinion poll, 82 per cent of people said that children and young people should not be allowed to gamble on fruit machines.
BACTA makes much of the fact that in a YouGov poll 75 per cent of people said that they did not want to stop children playing on category D machines. Well, nor do I want to stop them playing on teddy bear grabbers or penny falls. But I do want to stop them playing on fruit machines. I have heard people say, even in this House, that "there is no evidence" that playing on fruit machines is dangerous to young people. I have to say to Committee Members that there is a significant body of evidence which all points towards fruit machines being unsuitable for children and young people.
The Joint Scrutiny Committee on the draft Gambling Bill heard from the Royal College of Psychiatrists which said:
"It has been firmly established that all gaming machines, regardless of the size of the stake or the amount of prize money, are unsuitable for children and young people".
The Royal College of Psychiatrists also recommends that these machines should cease to be made legally available to them. The committee also heard evidence from other academic experts to the same effect. In fact, I believe that not one academic at that time gave evidence which contradicted this view. The DCMS commissioned a report from Lancaster University on this issue, but it has been roundly criticised by experts in the field for its many omissions and inaccuracies. However, even that report found that on average the rate of problem gambling among children and adolescents in the UK is around 5 per cent. That may sound a small figure, but it is one in 20 young people.
Problem gambling among young people can cause huge difficulties—we have heard some of them mentioned—during the key phases of their development. It can involve truancy, as children spend more and more time at the machines and away from school; it can lead to fractured family relationships; it can even lead to a criminal record as young people turn to crime to fund their addiction. By the age of 18, young people can find themselves without much of an education, saddled with debt and carrying a criminal record. That is not a good way to be starting adult lives, and the activity that has contributed to this has be done perfectly legally. We really need to change that.
Over the past few years it has been encouraging to see child protection issues march up the political agenda. I believe that we have a chance with this Bill to ensure that another piece of protective legislation is put in place. The Government have done much in the Bill to try to protect children and vulnerable people. By allowing them to carry on playing fruit machines,

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however, it has left a gaping loophole. The case is clear: gambling is and should be only an adult activity. Fruit machines, regardless of their size, can be addictive.
The answer is that children should be prohibited from playing category D fruit machines, and the UK should now put itself on the same footing as the rest of the developed world. On the issue of children and gambling, the Government have come close to implementing a robust framework. The problem now is that they are failing to follow through on their own logic. If, as the Secretary of State says, "children and gambling don't mix", why are children still to be allowed to gamble on one of the most addictive games in the gambling industry? It is time to match up the rhetoric of child protection with the reality. It is the duty of society and, I believe, of this Government to try and protect these children from harm. By supporting the amendment when we come to it, we will have a wonderful opportunity to separate children from a potentially damaging activity. Frankly, without it, the UK will remain alone in the world in allowing children to do something that can ruin their lives.
The Lord Bishop of Southwell: I ask the guidance of the Minister, as I had hoped to comment at this stage, under the cover of the amendment of the noble Baroness, Lady Buscombe, and in support along the lines of the noble Baroness, Lady Howe, regarding Amendments Nos. 96, 97 and 99, to which my right reverend brother the Bishop of Coventry has added his name. If he would rather that I did not make that speech at this time, perhaps he would tell me. It is a brief one, but I will be guided by the noble Lord.
Lord McIntosh of Haringey: I am in a difficulty here. I am perfectly happy for any Member of the Committee to abbreviate the proceedings by debating more amendments together. I certainly agreed with the noble Baroness, Lady Buscombe, and the noble Lord, Lord Northbourne, about the way in which we should debate the amendments which she announced. The noble Baroness, Lady Howe, was entirely entitled to make her speech. I listened to it with great interest and a good deal of sympathy. But I hope she will not make it again when we come to Amendment No. 96. If the right reverend Prelate wants to make his speech now, that is fine, as long as he does not make it again.
The Lord Bishop of Southwell: I thank the noble Lord. It is either now or later, I suppose. Like the overwhelming majority of people in this country, I believe strongly that gambling should be an adult-only activity. Indeed, I find it difficult to think otherwise. Gambling requires, we are led to believe, advanced mental processes which children simply do not have. The Secretary of State herself has said that children and gambling do not mix. Allowing children to gamble on fruit machines flies in the face of everyone's stated position, and it is a glaring anomaly.
We have heard of the dangers of fruit machines, as mentioned by the noble Baroness, Lady Howe, just a moment ago. We already know that some of the most
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potentially addictive forms of gambling arise and stem from fruit machines, even in adults, let alone children. It is completely unacceptable that the United Kingdom is the only country in the developed world that allows children to gamble on these machines. It is a national distinction that we should be ashamed of, rather than proud.
I know that many noble Lords will have had a briefing from the Salvation Army and the Methodist Church which outlines messages they have received from the public about children and gambling. Some of them make depressing and poignant reading. They all testify to a significant element of concern about this whole issue in the country at large. One lady wrote:
"I emigrated to the UK from Australia in 2000, and now live in a rural town on the east coast of Scotland. Coming from a country where gambling is legally permitted only for adults, I was shocked to find that my son (then age 9) could gamble on slot machines with his friends at the local amusement arcade. He was thoroughly smitten with this for a while, spent most of his pocket money on the machines, and I suspect he stole money from my purse on more than once occasion to fund his gambling. Although that stage seems to have passed, thankfully, I am very concerned that he was and still is at risk through gambling being available to him so easily".
Another person wrote in:
"I have personal experiences in how gambling can damage people and their family. Both my husband and I have been problem gamblers and it has caused many financial and emotional problems. Growing up in a seaside town I had easy access to arcades along with many other children. The ease in which somebody of any age can gamble on a fruit machine worries me so much".
These are not just sad, isolated incidents. A convincing body of academic literature—some of it carried out at Nottingham Trent University in my own diocese—estimates that 5 per cent of adolescents display signs of gambling problems. To ignore that evidence is to turn a blind eye to significant amounts of damage being done to young people. As legislators, we have a clear duty to protect those in our society who are most vulnerable. This House has often shown great courage in putting the interests of children and young people first. This is another opportunity for your Lordships to extend that record.
Experts who have spent time studying this issue are at one: gambling on fruit machines is dangerous for children. It is not just an academic issue. This is about children's lives. How would your Lordships like to see one of your seven-year-old grandchildren feeding a slot machine? I have two grandchildren. Felix is nine this year, Elliot is seven. They live in France and are not allowed to gamble there. Yet, if they come here and go to Minehead with my wife and me, they can gamble at leisure. They can do so perfectly legally. Eighty-two per cent of the population think we should stop that. So do I, and I encourage your Lordships to think again.
Lord Clement-Jones: I was, uncharacteristically, going to remain silent during the debate on the amendments put forward by the noble Baroness, Lady Buscombe. Yet, since the noble Baroness, Lady Howe, has fired the gun on her amendment rather earlier than expected, I think it worth making a few comments.

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Like other noble Lords, I have received a huge amount of correspondence on this issue. The Methodist Church and the Salvation Army have mounted a significant campaign. Virtually every letter is identical, which causes anger in some quarters because one hopes for a little more creativity in some of the letters. However, in almost every case the letters are, in my view, based on a misapprehension. Looking at the effect of the amendment—I shall be guided by the Minister here—it seems to go much further than wanted by the noble Baroness, Lady Howe, who I respect enormously for her campaigning in a number of areas. It sweeps up into the net machines which are described as penny falls, derby races and so on, which children have been playing in seaside arcades for years. Indeed, all these machines have been played in seaside arcades for many years.
Then we have the battle of the academics. I have read the summary of the report by the University of Lancaster. It is a very good review of the research. To call it flawed seems really to be one set of academics from Nottingham Trent University saying that their research was not taken into account as much as it should have been. Frankly, that is sour grapes.
I have a seven year-old child—not just a grandson or a granddaughter; I am as concerned about children as any Member of the Committee, but the facts are not clear. Prevalence studies across the world are difficult to compare, because of varying age groups, definitions of gambling and problem gambling and research design. The studies with the most rigorous design, using large national random samples and recent coverage, find the lowest rates. "There is no evidence of pools competitions causing problematic behaviours"—that is the headline.
4 p.m.
Baroness Thornton: I should like to ask the noble Lord two things. First, what is the source of the last figures that he gave? Secondly, I have worked for several years in this Chamber with the noble Lord's colleagues on child safety issues, and I am shocked that he, speaking from his Front Benches, is not looking at this from a child safety point of view. I am sure that many or at least some of his colleagues might take a different view from a child safety perspective, in looking at children's safety first.
Lord Clement-Jones: The noble Baroness will not shame me into supporting the amendment. I wish to see an evidence-based approach to these matters and, at the moment, the evidence is absolutely not there. There is a perfectly good mechanism within the Bill. The objective set out in Clause 1, which was endorsed by the scrutiny committee to which my noble friend referred and by the Budd report, which is in many respects an excellent report, gives the framework for future action. The ability of the Secretary of State to enable regulations to be passed by affirmative resolution which ban children from using the category D machines if the evidence becomes available is an
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excellent mechanism in the Bill. It is one of the Bill's better features, and I did not argue at Second Reading for the Secretary of State to be deprived of that power.
There are many other inaccuracies, I am afraid. We are not the only country in the world that permits children to use these machines. One can trade any number of opinion polls, but it is not particularly constructive. The gaming industry did a series of polls that demonstrated a 75 per cent rejection of a ban, so to trade samples of opinion is unconstructive. I urge Members of the Committee, in dealing with a Bill of this sensitivity, to consider the evidence. That is extremely important. I feel rather sad that this campaign has been whipped up in this way before the Committee stage.
Baroness Howe of Idlicote: The noble Lord seems quite happy with the fact that 5 per cent of children are already in a worrying situation with regard to addiction. We have all accepted that if there is an extra number of casinos, if the provisions go ahead, there will be more opportunities and a higher likelihood of children becoming addicted. Is the noble Lord really saying that he is not concerned at the numbers that we know exist already?
Lord Clement-Jones: If that was the evidence, I would be concerned, but that is the view of Professor Mark Griffiths. It seems to me that people have simply ramped up a whole campaign on the back of one academic from Nottingham Trent University. That is not an adequate basis for changing the provisions in the Bill.
Lord Lipsey: The noble Lord, Lord Clement-Jones, rightly used the words "flawed research". In my experience, flawed research is research that does not support the conclusion that one has come to independently and from prejudice before—and now we are seeing a swapping of such flawed research. The Nottingham Trent University figure of 5 per cent seems extraordinarily dubious and based on a very strange view of what constitutes addictive behaviour. Nevertheless, those who support that point of view will no doubt accept it.
In all these matters we must have the evidence, yes, but we should also apply a little common sense, because these are all judgments as to where to draw the lines. I do not believe that anyone would deny that the whole thrust of the Bill is to make gambling less easy for children, not easier, and there are mechanisms built in to prevent it spreading among them.
My other point is that it is not de facto obvious that any gambling by children is necessarily a bad thing. We heard about other countries in that regard. The French of course introduce their children to wine by giving them very small quantities of watered-down wine at their meals early on. I do not notice the French as being the country with a binge-drinking problem—that is the problem of a country that has a law that says that people can drink as much as they want when they are 18. I am not saying that gambling is absolutely analogous to that, but it is an argument that

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introducing children in a responsible way to gambling—and we can argue about where that line should fall—is the right thing to do.
I have been gambling, although I like to call it investing, since the age of 11, when I won £4 13s 8d on a horse called Starclif at Newton Abbot, with the bookmakers McLauglans of Edinburgh, which obviously did not have very good age checks at the time. I am pleased to say that I now make fewer bets, for a stake that is certainly much smaller in real terms, let alone relative to my salary, than I did then. That is partly because 46 years of experience has convinced me utterly that it is a mug's game and that I will always end up losing.
Everybody has their ways of getting to a situation in which they are not excessive gamblers. I happen to believe that the balance in the Bill is about right, though it is also right that the concerns of those who feel otherwise should be fully heard, if only so that they can be rejected.
Lord Phillips of Sudbury: With regard to what the noble Lord said about the protections in the Bill for children, I believe that he commended those protections that limit gambling by children aged eight and under. Is the logic of that commendation that it would be better for there to be none at all? I ask that with a genuinely open mind.
Lord Lipsey: I am sorry that I have not made myself at all clear to the noble Lord, because my whole argument was that no, it would not be better—that a system in which children cannot have anything at all to do with gambling until they are 18 and then are suddenly free to invest their entire fortunes any way they want may be a less effective way in which to prevent problem gambling than allowing them relatively harmless forms. Most people would probably think that "penny falls" fell into that category, while we can ban the sort of hard gambling on big prize machines, which cause the harm. So no, I do not believe that it would be right to prevent all gambling by all children up to the age of 18.
Lord Brooke of Sutton Mandeville: I should preface my brief speech by saying that I will follow the old-fashioned principle of confining my remarks to the amendments in this group. By not speaking at Second Reading, because I had a long-standing engagement to host a dinner elsewhere, I have spared myself the mass correspondence that other noble Lords have provoked for themselves. I realise that in my old-fashioned behaviour I am in a category of my own.
When Arthur Balfour was Prime Minister, a senior civil servant put to him a memorandum that said, "Prime Minister, there are two things that we can do: (a) and (b)"—and he identified what (a) and (b) were. Arthur Balfour simply wrote at the bottom of the memorandum. "Yes. AJB". The civil servant said, "But Prime Minister, I wanted you to choose between the two". Arthur Balfour said, "No you didn't: you told me that there were two things that we could do and I was agreeing with you".
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Although Amendments Nos. 2 and 3 are obviously paradoxical, my noble friend Lady Buscombe has done the Committee a service in tabling them. From the narrative that led to the Bill that we are now debating, which bore some relation in terms of its route march to that enjoyed by the Licensing Act 2003, it seems reasonable to ask the Minister for his view on which of the amendments is more relevant to the Bill's purposes; although I suspect that he may end up giving the opposite answer to AJ Balfour and saying that neither is relevant on the grounds that neither have objectives.
Because I am working from the orange third issue of the groupings list and I realise that there may by now be a fourth, I am speaking solely to Amendments Nos. 2 and 3. I appreciate that the paucity of time that we appear to have for discussing the Bill may have tempted certain Members of the Committee to speak to amendments grouped 300 or 400 amendments ahead, simply because we may never reach them under any other circumstances.
Lord Greaves: The noble Lord, Lord Lipsey, told us how at the age of 11 he placed a bet on a horse and won—I think—£4 11s 8d Knowing some of the jokes that the noble Lord has told against himself in the House, all I can say is that perhaps when he was 11 he was big for his age—well, he has made jokes about that before.
Like the noble Lord, Lord Brooke, I speak to Amendments Nos. 2 and 3. I have been slightly intrigued by the way in which noble Lords have been speaking to about half the amendments on the Marshalled List during the discussion and I thought that I had better join in, but I hope that I shall do so helpfully. It occurs to me that I should speak to my Amendment No. 5 in this debate and then not move it, otherwise it might lead to yet another Second Reading debate when we reach it, which would not be a good idea. I shall do that in a minute.
Like the previous speaker I believe that the noble Baroness has done the Committee a service. It means that the Government can be asked to come clean about their estimate of the Bill's effects in its present state on the number of people who gamble and the amount of gambling that takes place in this country, however it is measured. Do the Government have an estimate of the percentage increase in gambling, whether as the amount staked or the number of people gambling, or whatever it may be, as a result of the Bill? If they do not, they have not carried out their research properly.
The Bill is extremely important and there is a great deal of good in it, but it will clearly have considerable consequences, particularly the proposed new large casinos. The question posed by the noble Baroness is which consequence of their policies they believe will come about. First, if they believe that the Bill will result in an increase in gambling, what is that proportion in relation to current gambling?
Secondly, what is their view of the increase in problem gambling that will occur as a result of the Bill; and specifically as a result of the provisions for new

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casinos; or do they believe that it will reduce gambling? What is their view, not of their policy on problem gambling—clearly everyone is against it—but of the consequences of their policies in that respect?
The research of Professor Mark Griffiths at Nottingham Trent University has been mentioned several times. His estimates of the number of problem gamblers in this country: 275,000 to 325,000 were mentioned in Second Reading.
Do the Government accept that? What is the Government's view of the current level of problem gambling in this country? How do they think that will change as a result of the Bill? I think that the Government have to answer those very important questions which are directly derived from the noble Baroness's amendment.
4.15 p.m.
Amendment No. 5, to which I shall speak briefly and then not move when we come to it, is an attempt to specify within the licensing objectives the question of outcomes in the scale and distribution of gambling in this country. It relates particularly but not exclusively to casinos.
The licensing objectives set out in Clause 1 are excellent:
"preventing gambling from being a source of crime and disorder…ensuring that gambling is conducted in a fair and open way … protecting children and other vulnerable persons".
No one can argue with those. However, none of the objectives relates to the effect that the Bill will have on the communities and economies of the different parts of the country.
In the amendment, I am asking the Government whether they believe that, in some towns, perhaps, or places, gambling may become such a dominant part of the economy that they could be described as "gambling towns" in the way in which Las Vegas, Atlantic City and others are the obvious examples? Do they envisage that as a possible or likely outcome of the Bill? It is a very important question.
We all know what we are talking about when we talk about a predominant economy: we have had coalmining towns and villages, steel villages and tourist towns. Is it the Government's view that, even where one of the very large new regional casinos is being proposed, gambling should never become so dominant that the general feel of the place is that it is about gambling rather than other things, such as tourism and entertainment of which gambling might be just a part, or serving as a regional centre of which gambling might be just a part? I would like the Minister to apply his mind also to that important question.
Lord Pendry: The Committee will be pleased to know that I have thrown away most of my speech. Considering that there is a game of ping-pong going on in the other place and in this, I have had my own game of ping-pong trying to get in before now. I had hoped to make a contribution later, but that is not possible.
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As the noble Lord, Lord Clement-Jones, rightly said, this amendment covers not only fruit machines but also low-stake and prize category D machines, such as Derby races and other novelty games as well. I think that it has to be seen in that context.
Having, as I said, thrown away most of my speech, the only point that I wish to make is to argue the point that the Government commissioned Lancaster University—not Trent University—to review the available research on the very question of gambling for youngsters. It concluded that,
"the current evidence is insufficient to make definitive judgments"
about the prevalence of patterns of problem gambling among young people.
I think that the Committee would be irresponsible if it did not respond to definitive facts on this rather than to the kind of letters we have had from various groups which have not been very well informed. All the academic evidence so far which I have been able to glean has not been conclusive either.
So I think that we would be very foolish to deny young people the opportunity to have the kind of fun they have had when there is no evidence to say that gambling is doing any great harm to them.
Viscount Ullswater: I was not going to be drawn into this debate. However, when I listened to the speech of the noble Baroness, Lady Howe of Idlicote, I felt that I ought to put in just a little plug for the sort of family-run traditional seaside amusement centres that provide harmless entertainment for many thousands of visitors of all ages.
In a previous existence, I was Minister for Tourism and I used to visit many seaside reports that were rather faded—that is probably the right way of putting it—showing a little run-down in investment. One of the reasons for that, of course, is that Spain has more sunshine and low-cost air fares attract a lot of people there for their summer holidays. However, even that may be out of the reach of the low-income families about whom the noble Lord, Lord Northbourne, was talking.
On a rainy day in Hunstanton, in Norfolk, the beach is not a very attractive place, but there is a very nice family-run entertainment centre where young people can go and while away what I suspect they would describe as a dreary afternoon playing with these category D machines. We have not mentioned the stake. The stake on a category D machine is, I believe, 10p. For a very small sum, not much more than they would need to go round the corner to buy a burger, chips and a soft drink, they can spend a relatively extended period having an extremely interesting afternoon which otherwise would be denied to them. I think we ought to get it into proportion; I understand the problems that may occur at a later stage, but I felt that I ought to add that tuppenny coloured.
Lord McIntosh of Haringey: I am now responding to five different groups, which is perfectly satisfactory to me. I will start by rebutting what the noble Viscount, Lord Falkland, said. He said that the Bill is intended

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to increase gambling. Gambling is increasing in ways that are out of control at the moment. The particular increase is in online or Internet gambling, and we will come to that in later amendments. We ought to start from the point that nothing that the Government are or have been doing is causing an increase in gambling. Our job is to control any increase and ensure that it minimises any risks and optimises any opportunities.
Lord Phillips of Sudbury: I am sorry to interrupt the Minister so soon, but how can he seriously say that, with the introduction via this Bill of the super-casinos with their 1,250 category A machines?
Lord McIntosh of Haringey: I will not go into a sixth or seventh group, which is what I would be doing if I responded to that now. I like to try to deal with the amendments before us, even though I am flexible about which amendments are before us. I would rather stick to them at the moment.
Lord Phillips of Sudbury: I was asking the Minister a question that is directly related to his twice-repeated assertion that this Bill is not about increasing gambling. My question was directly germane to that.
Lord McIntosh of Haringey: The Bill allows some opportunities for increased gambling, and it reduces some opportunities for gambling. It controls some gambling that in part was not controlled. You cannot make a single judgment about it; you must look at the Bill as a whole to make judgments. If you want to change parts of the Bill, you put down amendments to change those parts of the Bill. That is the way in which we operate in this House.
I am not going to make fun of the noble Baroness, Lady Buscombe, for having two mutually contradictory amendments. The noble Lord, Lord Brooke, has got her off the hook on that one. That is fine. I understand perfectly well what she is doing, which is what in the gunners we call bracketing. In other words, she is seeking to find out where we are in a range of possibilities. That is entirely legitimate, and that is how she introduced it.
In practice, her Amendment No. 2 would make the Gambling Commission and others with regulatory functions responsible for controlling the amount of gambling that takes place in this country. Amendment No. 3 would apparently have the effect of asking us to increase the amount of gambling, which I have already referred to in response to the noble Viscount, Lord Falkland. There are two problems with this; everyone recognises that gambling is now a part of mainstream leisure, although it is a part with special regulatory risks that need appropriate safeguards. The Bill provides those safeguards. Whether adults gamble and how much they gamble are matters for their own choice. We may disapprove of their choices morally or aesthetically, or whatever way we like, but that is another matter. Whether the amount of gambling that takes place is disproportionately great surely is a matter of opinion and for moral debate, rather than for statute.
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In any case, Clause 22 states that the responsibility of the Gambling Commission is to "promote the licensing objectives" in everything that it does in exercising its functions. Those objectives pervade everything else in the responsibilities of the Gambling Commission in the Bill. Clause 22(b) states:
"To permit gambling, in so far as the Commission thinks it reasonably consistent with pursuit of the licensing objectives".
That is the middle position between trying actually to limit or trying actually to encourage the level of gambling which is already increasing in this country.
Amendment No. 4 seeks to ensure additional protection for people on low incomes. Again, I sympathise with that purpose. One aspect of problem gambling—apart from pathological gambling, perhaps—is that people are spending money that they cannot afford to spend. Equally, those who have less money can afford to lose less; that is a matter of mathematics. However, it is demeaning to people on low incomes to imply that they are more at risk of gambling excessively than anyone else. No evidence suggests that they are.
Lord Northbourne: The intervention that I made was not a moral one. I made it because the behaviour of adults can deeply affect children and other vulnerable people. It is there that we may have a responsibility, as a nation and a parliament.
Lord McIntosh of Haringey: I entirely agree. I was going to refer to that when I came on to the noble Lord's amendment and those in the group with Amendment No. 96. As I said by quoting Clause 22, the point is that the Gambling Commission is already charged to protect vulnerable persons from being harmed by gambling, whatever their income. In any case, surely there are practical problems about requiring gambling operators to check on people's income before taking them on as customers. I do not see how that could be carried out.
Amendment No. 3 appears to encourage and increase the amount of gambling that takes place. I say on both Amendments Nos. 2 and 3 that we are doing neither. We accept that people want to gamble and that it is a legitimate thing for them to do. We say throughout that, subject to the overriding principles laid down in the licensing objectives, it is not the job of government to dictate to people how they spend their leisure time. However, it is the job of government to ensure that, so far as possible in everything that we do, we have regard to the precautionary principle.
I am more than happy to agree with the sentiment behind what the noble Lord, Lord Northbourne, says with Amendment No. 52A. The commission will certainly want to take into account the protection of children and families in the preparation of its codes of practice. As he rightly said, it will take account of the problems of children both being addicted themselves and growing up in families with adults who are addicted. It is helpful that he made those two relevant points. The Bill also makes extensive provision for the control of advertising, credit and inducement, which is entirely relevant to the points that the noble Lord

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makes on the protection of vulnerable consumers and their children. I shall come to evidence in a moment when I deal with the points made by the noble Baroness, Lady Howe.
The noble Baroness has been misrepresented to some extent. Her amendment is less wide-ranging than some people have said. Under it, children would be permitted to play category D machines with non-monetary prizes, or monetary prizes if the machines conform with regulations made by the Secretary of State. I presume that she wants the Secretary of State to exempt from any ban cash prizes such as "penny falls", which are usually accepted as being risk-free, but to outlaw children playing unsuitable types of gaming machine. If I have her right, some of the comments about her amendments were wide of the mark.
I respect the intentions and the sincerely held convictions about that. We have looked carefully at the case for prohibiting young people from playing category D gaming machines. We accept that there is some evidence that low-prize gaming machines are no less harmful than higher prize gaming machines. The characteristics of certain gaming machines—traditional fruit machines, in particular—may be inherently addictive, and children may be more prone than adults to becoming addicted. But we do not believe that the existing evidence is sufficient to justify a ban at this stage, and I think that the debate that we have had this afternoon very much confirms that point.
4.30 p.m.
The amendments seek a ban on children playing fruit machines. I accept that these machines probably involve most risk of harm but I cannot accept that, even with those machines, the research evidence that we have is yet proven. The evidence suggests that only a small minority of children encounter problems with low-prize gaming machines. The figure that we have been given is that 5 per cent of children have problems. The difficulty with that evidence is that that 5 per cent of children with problems are also to be found in countries where gambling by children is not legal. The implication of that must be that most of the problems encountered by children are not due to commercial gaming at all but to games of poker behind the bike sheds or in the sixth-form room or wherever it may be.
So I really do not think that it can be asserted that the kind of very mild gambling that takes place in seaside arcades or family entertainment centres can be responsible for a significant part of that 5 per cent of children with problems—if, indeed, we accept that research, and I think that that matter is still to be debated. The dispute between Lancaster and Nottingham Trent Universities gives force to that point. We do not know, but we accept that there is a debate to be had. We want to be in a position to react properly if a more compelling range of evidence emerges about substantial levels of enduring harm.
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We are taking action on this matter. My noble friend Lord Lipsey is right: we are taking away fruit machines from something like 6,000 locations—fish and chip shops and so on. That is a positive restriction on children gambling in premises which cannot be licensed or regulated.
But the more important point is that we are keen for the evidence to be improved. We are keen to know the answer, and that is why we have a reserve power in Clause 58 to introduce a minimum age limit. I am surprised that the noble Baroness, Lady Buscombe, has indicated her intention to oppose the Question that Clause 58 stand part of the Bill because, to my mind. it is an essential part of this argument.
I can assure the House that, if firm evidence emerges that playing any type of category D machine can lead to problems for children, after we have consulted the interested parties we shall not hesitate to ask Parliament to use that power in relation to those machines. I believe that Clause 58 provides the necessary assurances and safeguards which the noble Baroness, Lady Howe, is seeking, and I think it is right that we should postpone a judgment on something about which we simply do not know enough.
I now turn to Amendment No. 5 in the name of the noble Lord, Lord Greaves. Again, I sympathise fully with the spirit of what he says. I would hate the idea of having in this country what he calls "gambling towns". I did not particularly like Las Vegas when I went there, and I can give him an unqualified assurance that the proposals in the Bill for eight large and eight small regional casinos will not result in anything like the vision that he conjures up of towns dominated by gambling. I think that that is true nationally, regionally and locally. This will not become an economy dominated by gambling—unless we make mistakes, which I do not believe the Bill does.
If there is to be any change following the pilot phase, when there will be a limited number of casinos, then Parliament will have to give its approval and it will have to do so after very serious consideration by the Gambling Commission, local authorities, government and everyone else concerned. So I think that I can give the noble Lord the assurance that Amendment No. 5 is not necessary.
I was asked a number of questions, some of which I cannot quite fit into a debate on the amendments before us. Nevertheless, I shall try. In particular, the noble Lord, Lord Greaves, asked me about the levels of gambling and problem gambling. The difficulty is that this is a moving target. As I said, gambling is now increasing. The issue is whether the people who gamble are to be protected effectively or not. This Bill provides levels of protection for people who gamble which are simply not available under existing legislation.
The best numerical answer I can give to his question is that the level of problem gambling was estimated in the year 2000 to be at around 0.6 to 0.8 per cent of the adult population. Everything in the Bill is designed to keep that down. I cannot tell this Committee that there will be no increase in gambling or problem gambling. That would be to stop the world turning round the sun.

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I cannot do that: gambling is increasing. There would, however, be more of an increase in problem gambling if we did not have the protections in this Bill—that is why it is necessary.
I have a lot of sympathy with all of the amendments in this inflated group, but I do not think any of them ought to go into the Bill.
Lord Greaves: The Minister said the level of problem gambling in 2000 was 0.6 to 0.8 per cent of the adult population. Is that the same as 275,000 to 325,000?
Lord McIntosh of Haringey: I think, without my calculator, the noble Lord, Lord Greaves, can do the sum as easily as I. Those figures—275,000 to 325,000—sound very suspicious to me. As a cookbook statistician, I would run a mile from anybody who was as precise as that.
Baroness Buscombe: I am grateful to the Minister for allowing us to have a really important and good debate, not only on the amendments that were originally put down in this grouping, but on others that have been included.
I noticed straightaway that the Minister quickly disagreed with the noble Viscount, Lord Falkland, who had said that the Bill is intended to increase gambling. Of course, the noble Viscount, Lord Falkland, was a member of the draft scrutiny committee. It is interesting that he felt so certain that the Bill is intended to increase gambling. As the Minister said, gambling is increasing. The Bill, he will accept, facilitates that, albeit within—as he has argued—a controlled framework, and with safeguards. I can entirely accept why noble Lords have questioned whether the safeguards are sufficient.
I thank my noble friend Lord Brooke of Sutton Mandeville for assisting me in articulating why I have proposed Amendments Nos. 2 and 3. The noble Lord, Lord Greaves, said that it was time to come clean about what the percentage increase in gambling is, and research needs to be done into this. What research is there that has, perhaps, driven this Bill and the policy behind it? What about the consequences? I agree with the Minister that it is a matter for moral debate. However, we also have a responsibility to ensure that we all do what we can to protect the interests of children and the vulnerable in particular.
Lord McIntosh of Haringey: Before the noble Baroness, Lady Buscombe, leaves the point of research, I would like to say something that I may not have the opportunity to say again.
I feel passionately about the issue of research. It is true that the last prevalence study we did was carried out in 1999–2000. It is accepted worldwide as being one of the best research projects into gambling prevalence and problem gambling that there has ever been, because it is based on a very large random sample, of which the minority who have to be examined in more detail were given psychological screening tests for problem gambling. It is good stuff, and we are going to
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do it again. We are going to start very soon after Royal Assent, and it will be available before any of the provisions of the Bill come into force. I can assure the noble Baroness that we take these research issues very seriously indeed.
Baroness Buscombe: I thank the Minister, as I am sure that all Members of the Committee will, because I recognise that noble Lords who spoke on Second Reading felt that this area was hugely important. As we have all accepted this evening, time may he of the essence so wherever possible it is important for us to give such assurances for the future, both in seeing the Bill on to the statute book and thereafter. I hope and infer from that response that research will be ongoing.
On my Amendment No. 4, yes, we referred to those on low incomes. I would certainly not want to be accused of being patronising in any way. I refer to the assistance given by the noble Lord. Lord Northbourne, who explained that we want to protect those who can ill afford to cope with an effect that will be more powerful on those who have less to lose, if I may put it that way. I do not believe that people on low incomes are at more risk of more gambling, but the effect on people on low incomes may be more powerful.
In that sense, I am grateful, as I am sure is the noble Lord, Lord Northbourne, for the Minister's response to Amendment No. 52A, when he accepted that it will be important for the commission to take into account children and families when assessing or reviewing codes of practice for gambling and gaming in future.
I am concerned about the amendment of the noble Baroness, Lady Howe. We are considering a similar issue of evidence. It is tremendously important, if such a big decision is to be taken to remove the right of children to play category D machines, that that is based on serious evidence. In that event, we are talking about destroying an industry—yes, it is an industry—that has existed for many years and, as my noble friend Lord Ullswater said, provided a huge amount of enjoyment for young people—including me, when I was a child. In fact, I must say that I was quickly put off gambling for ever, rather like the noble Lord, Lord Lipsey, although I thought that he said that he bet on a dog—
Lord Lipsey: It was an investment.
Baroness Buscombe: I did not see it; quite quickly, when I had lost my entire pocket money, which was half a crown—perhaps it is rather ageing to say that—I realised that that was a pretty lousy way of spending one's money and that sweets were rather more enjoyable and long term. I do not mean to make light of what is a terribly important issue. I recognise that the Government have said that they will continue to review it.
There needs to be more research. I agree with the noble Lord, Lord Clement-Jones: all of a sudden there has been an awakening of deep concern about children using such machines expressed in an awful lot of identical letters, as though it is a new issue. Children

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have been playing those machines for many years. To deprive them of that enjoyment—because it is fun—must require a huge amount of serious research and further thought. That said, much of what the noble Baroness, Lady Howe, said, I entirely respect and have sympathy with.
The noble Lord, Lord Greaves, also helpfully referred to his amendment, Amendment No. 5. Again, that provided more opportunities for the Minister to explain where the Government are coming from in proposing the Bill. I am grateful to the noble Lord for his full reply. There are many important issues. As someone has said, this is a truly important Bill, and I am glad we have the opportunity to raise some of the issues so early on in our debates. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 5 not moved.]
Clause 1 agreed to.
Clauses 2 to 4 agreed to.
4.45 p.m.
Clause 5 [Facilities for gambling]:
The Deputy Chairman of Committees (Baroness Ramsay of Cartvale): I remind the Committee that if Amendment No. 6 is agreed to I cannot call Amendments Nos. 7 or 8 because of pre-emption.
Lord Clement-Jonesmoved Amendment No. 6:
Page 3, line 3, leave out subsection (3).
The noble Lord said: I will be brief in moving this amendment, because, as it happens, the Minister has fulfilled the expectations of him in putting forward his own amendments under this group, Amendments Nos. 7 and 8.
The Explanatory Notes to the Bill state that mobile telephone operators,
"who do nothing more than act as a carrier of information for persons providing facilities for gambling or for consumers partaking in gambling"
will not require regulation under the Bill. My motive in putting down Amendment No. 6 was simply that subsection (3) appeared to be one of the areas in the Bill that did not reflect this principle, and there was a risk that mobile operators could be required to be licensed merely for providing third-party gambling services. The Minister has now cured that with his amendments. I beg to move.
Lord Brooke of Sutton Mandeville: I do not specifically have anything to say on Amendment No. 6, but it is the first opportunity I have had to speak since Amendments Nos. 2 and 3. I did not speak on Amendment No. 4 in my first speech, because I thought I would have the chance to speak on it later.
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If we are going to move way beyond amendments, and they are not going to be moved when we reach them, it would be helpful to have advice in advance that that will be so, so that one can bring one's speech into the original group.
Lord McIntosh of Haringey: I specifically said that. The noble Baroness, Lady Buscombe, said so when she introduced Amendment No. 2. I said it when I responded to her, and in an intervention before the right reverend Prelate spoke.
Lord Brooke of Sutton Mandeville: I apologise to the Minister. I did not hear the first remarks of the noble Baroness, Lady Buscombe, so all his subsequent remarks were academic, in a sense, because they were hung on the noble Baroness's original comment. I do not begrudge my loss.
Baroness Buscombe: I will be brief. Forgive me if I repeat some of what the noble Lord, Lord Clement-Jones, has already said. I welcome the Government's concession to the concerns raised by the mobile phone operators to Clause 5. They welcome the explanation on page 10 of the Explanatory Notes to the Bill, which clarifies subsection (2)(c) of Clause 5, stating that mobile telephone operators,
"who do nothing more than act as a carrier of information for persons providing facilities for gambling or consumers partaking in gambling"
will not require regulation under the Bill. However, several areas remain in the Bill that do not appear to reflect this principle, and there was a clear risk that mobile operators could be required to be licensed, as the noble Lord, Lord Clement-Jones, has said, merely for providing third-party gambling services.
There are still issues with Schedules 1 and 2, which we will discuss later. In particular, Clause 5(3)(b) explained that the exemptions in subsections in subsection (2)(c) are disapplied if,
"the facilities are adapted or presented in such a way as to facilitate, or draw attention to the possibility of. their use for gambling".
Mobile operators currently provide access to a number of third-party betting intermediary services that are available from their WAP portals. This provides a direct link to the gambling operators' own branded websites. In this situation, the mobile operator is merely providing a link between the third party and customers, yet would seem to be caught by the definition in the unamended Bill.
It was argued that it is too simplistic to say that merely pointing to a gambling site is providing facilities for gambling and will unnecessarily bring within gambling regulation platform providers for whom it would simply not be relevant to acquire a gambling licence.
Can the Minister indicate the type of criteria that may be used in subsection (4)(c) and (f) of the government amendment?
Lord McIntosh of Haringey: I am grateful for the manner in which the amendment has been moved and

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I am glad to respond by speaking to Amendments Nos. 7 and 8, because they are intended to clarify the circumstances in which providing facilities for remote communication will fall within the definition of providing facilities for gambling in the Bill. I shall be honest and say that when I first read Clause 5 I did not understand it and when I first read my amendments I did not understand them. I can best answer the noble Baroness, Lady Buscombe, by giving examples, rather than by talking about the type of criteria, because I do not think that I would understand that, either.
Generally, Clause 5 exempts from regulation those who act as mere carriers of electronic information by providing facilities for remote communication. However, we want to ensure that this exemption does not mean that people escape regulation where they make facilities for electronic communication available, such as computers or mobile phones, with the express intention that the facilities should be used for gambling. For example, it would be wrong if a person could use an Internet café to offer dedicated and exclusive Internet access to gambling and avoid the regulation of the Bill.
On the other hand, if you switch on the Sky TV interactive menu, Sky should not be treated as providing facilities for gambling. So the Internet café in my example would be in and Sky interactive would be out. That is the explanation of the amendments that I understand and I hope that it will be acceptable to the Committee.
Lord Clement-Jones: I thank the Minister for that response. That is what is understood in the industry and is entirely acceptable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 7 and 8:
Page 3, line 4, leave out "and"
Page 3, line 6, at end insert ", and
(c) the nature, adaptation or presentation of the facilities is such that—

(i) they cannot reasonably be expected to be used for purposes other than gambling, or

(ii) they are intended to be used wholly or mainly for gambling.

(4) The Secretary of State may by order, for the purposes of subsection (3)(c)—

(a ) provide that facilities of a specified nature, or adapted or presented in a specified way, cannot reasonably be expected to be used for purposes other than gambling;

(b) provide that facilities of a specified nature, or adapted or presented in a specified way, can reasonably be expected to be used for purposes other than gambling;

(c) specify criteria by which it is to be determined whether facilities can reasonably be expected to be used for purposes other than gambling;

(d) provide that facilities of a specified nature, or adapted or presented in a specified way, shall be taken as being intended to be used wholly or mainly for gambling;

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(e) provide that facilities of a specified nature, or adapted or presented in a specified way, shall be taken as not being intended to be used wholly or mainly for gambling;

(f) specify criteria by which it is to be determined whether facilities are intended to be used wholly or mainly for gambling."

On Question, amendments agreed to.
Clause 5, as amended, agreed to.
Clause 6 agreed to.
[Amendment No. 9 not moved.]
Clause 7 [Casino]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 10:
Page 3, line 42, at end insert—
"() In this Act "casino premises" means premises in respect of which a casino premises licence has been granted under section 148(1 )(a)."
The noble Baroness said: In moving the amendment, 1 shall speak also to Amendments Nos. 12, 180, 221 and 363.
This group of amendments addresses the important issues of identity and money laundering. The three licensing objectives that underpin the Bill are: first, preventing gambling being a source of crime or being associated with crime; secondly, ensuring that gambling is conducted in a fair and open manner; and thirdly, protecting children and other vulnerable persons from being harmed or exploited by gambling.
However, it remains unclear how the Bill can achieve those objectives in respect of casinos, when it will also remove the current requirement to check the identity of every customer before they enter a casino. Currently, every customer entering a casino must either be a registered member, having registered with the casino at least 24 hours earlier—as stated in the membership rule—or a member's guest who can provide satisfactory evidence of their identity.
I wish to take a little time to outline the detail of the amendments. The first is essential and all the other amendments in my name consequentially flow from it. Amendments Nos. 10 and 363 deal with the definition of a casino. It is currently defined in the Bill under this clause as "an arrangement" and, therefore, includes online casinos. The amendment is necessary to include a definition of "casino premises" to identify the physical building where the public may enter and where ID will be required.
Amendment No. 12 ensures that an offence under Part 4, with regard to allowing a child or young person to gamble, will be treated as an offence against the mandatory conditions of a licence as prescribed by my Amendment No. 221 to Clause 165.
Amendment No. 180 to Clause 149 is particularly important in this debate on identity. It ensures that the gaming floor is a "designated gaming area", separate from other entertainment facilities that may be available within the casino premises. Having been to Las Vegas with my family, that point is especially close to my heart. Such segregation is not only essential to help protect the young and vulnerable but also provides space inside, out of the rain, as often happens in the UK, whereby identity can be checked before

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gambling. However, that process will not detract from the entertainment of the evening as a whole or access to other non-gambling facilities.
My amendment to Clause 165 inserts mandatory conditions on a casino premises licence; namely, that no gaming tables or machines can be operated off a designated gaming area, as I have already described; that no individuals can be admitted to that gaming area unless there is satisfactory evidence of identity; and that door supervision to the gaming area is maintained at all times when it is open. I believe that satisfactory evidence of identity should be a means of establishing the name, address and a photographic likeness of the person producing the evidence. That could easily be produced by tourists in the form of a passport, which would not rule out this important trade for casinos. It would simply require a little advertising regarding the need to bring it along.
Once identified for the first time, it is possible that their records will be kept on a system maintained by the casino for such purposes, as many loyalty member details already are. Such ID checks would eliminate any doubt about the age of customers and enable the effective operation of self-barring schemes for problem gamblers. Most importantly, mandatory ID checks would allow for any suspicious or criminal activity, such as money laundering, to be more easily monitored and eliminated, as the details of every person on the premises would be recorded and readily available.
At this point I make it absolutely clear that with regard to proposed regional casinos I am not asking the Government to impose an identity requirement at the entry point to the casino building itself, or buildings if it is a large complex, that is, the overall leisure facility. I am asking simply for ID to be mandatory at the point of entry to the gaming areas. In that respect, I would appreciate the Minister making it absolutely clear in his reply that there will be no merging of gambling with other leisure facilities.
I know from personal experience that in many existing casinos across the world you will find slot machines at the point of entry to the casino building. I remember that when I visited Las Vegas for the first time, we had a difficult time checking in because we could not find anything even approaching a conventional reception desk—only machines. That must not happen in this country. We must send a clear message to the Gambling Commission that that was not Parliament's intention. The Joint Committee also made that point very clear in its Recommendations 5 to 8. In particular, Recommendation 5 states:
"We support the Government's proposals to allow children into the non-gambling area of regional destination casinos, provided that there are appropriate barriers and a suitable distance between the gambling and the non-gambling areas".
In spite of that, the Government have so far resisted calls to make ID on entry to the designated gaming areas of casinos a legal requirement, which would appear to be inherently inconsistent with their determination to introduce a national identity card scheme to protect us all from illegal, criminal and
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terrorist activity. The Government have argued that in the fight against crime and money laundering, money laundering regulations themselves will he sufficient. However, I believe that that is not as clear cut as the Minister would like us to believe.
5 p.m.
It is vital that the principle of requiring ID on entry to all gaming areas within casinos is enshrined in the Bill, so that the casino industry can remain free from money laundering and associated crimes. The appeal to criminals of a casino with no ID requirements is well illustrated in the National Money Laundering Strategy report of 26 October 2004, provided by the National Criminal Intelligence Service to Her Majesty's Treasury. It states:
"Money launderers can take advantage of the facilities offered by casinos to disguise the origins of their funds. Launderers can take 'dirty cash' into a casino, exchange it for chips, spend a few hours gambling, and then exchange the chips (with a gain or loss according to their play) for a casino cheque which can be subsequently presented as the apparently legitimate source of funds".
If every customer has to provide ID on entry to a gaming area, as is currently the case, it will counter any suspicious or criminal activity, such as money laundering, and allow it to be more easily and effectively monitored and eliminated.
Currently, the EU second money laundering directive requires ID only when buying or selling a minimum of 1,000 worth of chips. However, the UK Money Laundering Regulations 2003, which implement the directive in the UK, tightened the requirements so that ID is required on entry to a UK casino. Clause 8 of the directive states:
"A person who operates a casino by way of business in the United Kingdom must obtain satisfactory evidence of identity of any person before allowing that person to use the casino's gaming facilities".
That tightening obviously ensures consistency with the Gaming Act 1968 24-hour rule on membership.
The danger though is that if there is no requirement in the Gambling Bill for ID on entry to a casino, as there is in the 1968 Act, the Government are very unlikely to tighten the third EU money laundering directive currently under discussion, which, as I understand it, follows the same principle as the second directive and merely requires ID on buying or selling 1,000 worth of chips. If ID is requested only when a purchase of 1,000 or more chips is made, many customers will simply slip through the net unrecorded, which is unacceptable. I beg to move.
Lord Clement-Jones: I support the amendment put forward by the noble Baroness—to which we on these Benches have added our names—which she admirably and comprehensively introduced. I shall speak also to Amendments Nos. 19 and 139 standing in my name and that of my noble friend Lord Addington.
It is worth saying the provenance of all those amendments. It is a very interesting mixture. which demonstrates the range of support across the board. Both UK casino trade associations and the

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Evangelical Alliance demonstrate the spread of concern—strongly shared on these Benches—that the 24-hour rule is going out of the window in this Bill. Currently, it is not being replaced by anything. We strongly believe that this Bill should have a sine qua non, an ID requirement, for entry into the casino areas.
I support what the noble Baroness said. When we are referring to resort casinos, we are not talking about entry into the total facility, we are talking about entry into the gaming areas. The fact is that nowadays, particularly with the continental driving licence, producing ID and having it processed quickly should not be an issue.
Immediately after putting down these amendments, we obviously received representations from some of the larger overseas operators about the problems associated with—
Baroness Golding: I thank the noble Lord for giving way. Will the proof of identity be just a proof of age or does it have to have a photograph? Do you have to have a driving licence? Do you have to have a passport? If you have nothing with a photo, will it be acceptable? How will it work?
Lord Clement-Jones: It should be quite clear that it should be photographic proof of ID, along the lines of a driving licence. Nowadays, old driving licences, even for people like me who have held a driving licence for a long time, are, increasingly, being replaced by that kind of photo ID. The argument made by those larger operators is that it takes three minutes per person to process ID in this way. Frankly, on this form of ID there is a photograph, a date of birth and a name which should be very easy to process when entering a casino.
Baroness Golding: I am sorry to persist, but suppose you do not have a driving licence or a passport or anything with a photograph of yourself on it. Are you then prohibited from entering a casino?
Lord Clement-Jones: It is quite clear that such a person should be prohibited; he should have proof of identity. Changing from a system under which one had to sign up 24 hours before entry to this system, one cannot simply allow a free-for-all with the new casinos. It seems to me that that is a bridge too far and is precisely why these amendments have been tabled.
Baroness Golding: Let us be clear. Is the noble Lord saying that if you do not drive a car—if you do not have enough money to drive a car—and if you do not go abroad so do not have a passport, there is no way you should enter a casino? Surely, that is discriminatory. Will we not get into trouble for that?
Lord Clement-Jones: All the major casinos have plans to issue identity cards of their own to those who have their identity vetted. They would do that through a utility bill or whatever. Those who do not have on-the-spot ID can obtain ID generated by the casinos. It seems to me that that is an extremely sensible check. If someone were to exchange chips of a certain denomination in a casino he would require such an ID.
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Are we really saying that ID is not needed simply to stroll around a casino, particularly if under-age? I do not believe that that argument is sustainable.
Baroness Golding: I am sorry to persist; please forgive me. If you have no method of saying. "This is me", should you take an electricity bill or a gas bill to a casino to prove who you are? You could be anyone.
Lord Clement-Jones: I do not believe that it is beyond the wit of most people to prove that they are who they are and people should be required to do that once they enter such areas. I do not believe that that places too high a burden on people. Currently, if people wish to enter a casino, they need to have membership. This is a relaxing of that rule. We are not trying to reintroduce membership; we are saying that ID should be required.
Money laundering may well be dealt with adequately under the third directive. At Second Reading the Minister made it clear that it was advisable not to confuse the issue of ID on entry with the issue of money laundering. The exchange of chips will be dealt with by the third directive and no doubt we can discuss that when the regulations are debated by the House.
It seems to us on these Benches that moving straight from a situation where we change from a 24-hour requirement to a nil requirement will fuel some of the issues about which we have already spoken today. First, there is the issue of problem gambling. Currently, as I have said, we have a very low rate of problem gambling. Voluntary self-barring schemes to deal with addiction are in operation in many UK casinos. They enable problem gamblers to request that their casino membership is suspended and entry denied to them. If there is no requirement for I D on entry to a casino, such schemes can no longer operate. That is not acceptable to us.
There is also the ability to prevent under-age gambling, about which we have already spoken today. Without IDs, casinos will have to rely on the vigilance of their staff. We have received representations saying that when anyone appears to be under the age of 25, the casinos will try to ensure that they ask him or her to produce ID. It is difficult to see how a Bill with the stated aim of protecting children and the vulnerable can disregard the requirement to check the age of all customers at the most efficient place, the point of entry to the casino.
I know that the Government have the best of intentions as they have included Part 4 of the Bill entitled "Protection of children and young persons", but we do not believe that that is sufficient to prevent under-age gambling. That part of the Bill does not require that the age of every customer is checked on entry and, moreover, age control alone is not sufficient to counter the potential for crime, money laundering and so on.
The arguments of the larger operators have not been met. Football grounds and concert arenas have successfully proven that thousands of people can be admitted in a short space of time following a ticket

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check and often a bag search. Therefore there is not a valid reason for excluding ID entry requirements from this legislation.
Lord Wade of Chorlton: What I know about this issue is what I learned when I was on the scrutiny committee for the Bill. As my noble friend Lady Buscombe said, we recommended that the space between the leisure complexes within the large casinos and the actual casino part should be well protected. But the evidence that we took from those who are likely to invest in the casinos persuaded us that they have extremely efficient systems for dealing with this transfer of people. Only adults would be allowed to transfer. We were satisfied with that.
The important point is that it is the responsibility of the casino operators—all of whom are licensed in some form or other within that area—to make sure that they comply with all the rules within the Bill. In that sense they have a responsibility to ensure that that system of movement from the leisure part to the casino part is well policed. The evidence persuaded me that they were very well aware of that and from their experience knew how to deal with it.
Over the issue of money laundering I was impressed by the evidence from my noble friend Lord Steinberg who said that from his experience there had been no incidents of money laundering in casinos. More to the point, from what I know in the finance industry, all the cards and hills you might have of what you pay does not stop money laundering. What stops money laundering most of all is not being prepared to take cash.
The fact that you have a card to get into the casino does not mean you will not have your pockets stuffed with cash and that you put one lot of cash down and get another lot of cash back. That is the key to the money laundering system. I do not think that a card will deal with that issue. If there is a determined person who has masses of cash that he wants to launder, he will find a way of laundering it.
I am not all that sympathetic to the amendments. We are adding an extra cost and a problem for people who want to transfer easily from one part of the casino to the other. I am not satisfied that identification cards will solve the problems that are being suggested might arise. I have considerable confidence that the casino operators are by far the best to decide. The Bill does not prevent casino operators issuing cards if they so wish. If they find from their experience that is the best way to deal with that issue, then by all means they can do it. But I am not satisfied that it is necessary to put in the Bill that everybody has to do it.
Baroness Howe of Idlicote: I support these amendments and the intention behind them. I admit that I would still prefer to have in place a 24-hour cooling period when people can decide whether they wish to go into the casino part of the grand establishments that we are told are being proposed as super-casinos. But if we cannot have that the ID is an essential requirement. I would not be satisfied with
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leaving it entirely in the hands of the casinos, however much they protest that they are quite capable of doing it and would take responsibility for anybody who transgresses.
Having a photo is the easiest possible way and would not take much time. I can give your Lordships an example because it happened to me the other day. When I was delighted to be chosen to represent your Lordships in a bridge match against the other place it took place at Crockfords—a very hallowed institution which I had not entered before. They knew I was coming, but as I entered I was firmly made to have my photograph taken and it did not take three minutes—it took about two seconds. It would also be a check on the age aspect because photographs tend to make people look younger than they are. Almost certainly, a photograph of oneself will be a fairly true representation and someone who is underage is unlikely to get in.
I hope that the Minister will give proper consideration to this point. As I said, I would prefer a 24-hour rule, but this measure is essential if we are going to do without that.
5.15 p.m.
Lord Mancroft: I also support the intention behind this amendment. I have listened very carefully to the speech of the noble Lord, Lord Clement-Jones, and the intervention of the noble Baroness, Lady Golding, and to the debate, which is what I hope we all try to do. I understand the concept of identifying people and we can argue about whether cards should have photographs. We know why they should have photographs: so that we can compare the card to the person who is holding it. That is fair enough. However, I cannot understand why anyone thinks that knowing who the person in front of you is will have any effect on that person's behaviour.
If I was on the turnstiles of a casino or even in your Lordships' House and someone who I have never seen before in my life appears and produces a bit of plastic with their photograph and maybe their thumbprint on it, I can see the photograph and thumb print and write their name down. If someone then says, "Who is that chap'?", I can say that he is John Smith or Joe Bloggs. But that has absolutely no effect on that person's behaviour when they have gone through that door, whether in your Lordships' House or in a casino. It will have absolutely no effect on problem gambling that I can see—if that is the intention and desire behind this measure. I cannot see the logic of it.
I can of course see that there is some logic in having a card with a photograph that will identify someone's age—that is helpful—but I do not think that it would require a card with a photograph on it to persuade one of the Doorkeepers of your Lordships' House that we are all over 18. I regret to say that there are other methods that they can use to tell that we are all over 18. For most people going into these casinos or anywhere else, it is completely pointless because it is obvious that they are over 18.

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There will clearly be a group of young people—although obviously not very small people in short trousers, who are clearly under 18—over whom there will be a question mark. I do not know what percentage that will be. If it is a licence condition of these establishments that they do not admit people under 18, and if letting them in will cost them their licences and wreck a massive investment in those businesses, I suspect that they will focus very carefully on making sure that people under the age of 18 do not get in. The few pence or pounds that those under-18 year-olds may spend will be nothing compared with the damage that would be sustained to that business if it had its licence taken away. That is the great incentive. It is well within the powers of the commission in the Bill to keep looking at this particular issue, to identify, improve and resolve it.
Although I totally understand the intention behind this measure and have great sympathy with it, in practice it will not work and cannot be made to work. I do not see that there are any major advantages in inflicting it on casino operators.
Lord McIntosh of Haringey: I also have a great deal of sympathy with the thinking behind these amendments. I have listened to this debate carefully and with some appreciation to the debate that has taken place. The issue is to look at the arguments that are put forward in debate, to look at the amendments themselves and to see how far the Bill as drafted satisfies the objectives that have been expressed. I am pleased that the debate has concentrated on two issues—on keeping out under-18s from casinos and on money laundering. I was pleased to have the explicit assurance of the noble Lord, Lord Clement-Jones, that the objective of these amendments is not to slow down entry to casinos as such.
I will take each of the amendments in turn, go on to the arguments in debate and then return to the amendments. Frankly, I do not see what Amendments Nos. 10 and 363 add, because casinos are defined in Clause 7 and the issue of casino premises' licences later on in the Bill applies to those casinos as defined in Clause 7. So I do not think there is any particular affect to those two amendments.
Amendments Nos. 19 and 139 would introduce a requirement that persons may only enter the designated area on producing proof of age and identity. Amendment No. 110 says that, where anyone involved in running a casino commits one of the children and young person's offences under the Bill, the casino breaches its premises licence as well as committing an offence under Part 4. Amendment No. 180 would introduce a new requirement that each casino premises licence identifies the gaming area for the casino, and the noble Baroness, Lady Buscombe, referred to that in her speech as being sure that we are not merging the gaming and non-gaming areas. Amendment No. 221 makes it a mandatory condition that gaming tables and gaming machines are only operated in designated gaming areas, that no person
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may enter the designated gaming areas without producing satisfactory evidence of identity, and that there is door supervision.
The purpose of these amendments is, I understand, twofold: keeping out under-18s and money-laundering. We have to look at entry rules in the light of those two purposes. Of course the Gaming Board has many years of experience already and great success in co-operating with the industry in making sure that only adults use casinos and other gambling premises where children are excluded. Casinos in other parts of the world have extensive experience of keeping children out. The Bill does not take away from any of that, it builds on it. It contains tough and comprehensive powers to ensure that children will be kept out. In British casinos there will be rigorous barrier checks—I think that is the question I am being asked—enforced by trained and licensed staff. I am grateful to the noble Baroness, Lady Buscombe, for the assurance that she is not talking about checks on entering into the non-gaming area, but I can certainly confirm to her that there is no merging of gambling and other facilities, and that there will be rigorous barrier checks on entering into the gaming area. I can also confirm, referring back to Amendment No. 221, that there will not be any gaming tables or gaming machines outside the designated gaming area.
There will be a separate gaming area, entry to which will be controlled by staff members. Where staff monitoring entry have any reason to doubt the age of any person entering the adult-only area, they will be required to challenge them to produce identification that proves their age. All this is in the Bill now, and it will be reinforced by premises licence conditions. I am grateful to the noble Lord, Lord Wade, for the arguments that he made on this point.
Of course there will be substantial penalties. If casinos allow children or any person under 18 into the gaming area, they will commit a specific criminal offence in Clause 45, of causing or permitting a child or young person to gamble. If they allow a person under 18 into their casino and did not take all reasonable steps to confirm the age of the person, they will not be able to avail themselves of the defence in Clause 62 which provides a defence on reasonable belief about a person's age. The onus of responsibility, of law and of regulation, is on the operators of casinos. They must keep gambling and non-gambling areas physically separate, they must be able to prove that they took every reasonable step to confirm the age of persons entering the gambling area, and if they fail to meet those standards, they risk losing their licences and they can face unlimited financial penalties.
We are also giving the Gambling Commission the power to enforce this, to police it properly. For the first time, the Gambling Commission will be able to use mystery shoppers, under the age of 18, to test the effectiveness of these controls. If any of those children get through, casinos certainly run the risk of prosecution. Those are tough protections which reflect the Government's absolute commitment for the protection of children.

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With those measures in place and with what I have said about the separation of gaming and non-gaming areas, I believe that the measures suggested by the amendments are not necessary. They would require every casino customer to carry photographic identification on each visit to the casino which also proves their name and address. The noble Baroness, Lady Golding, made the point that we have driving licences with photographs and our address on them, but an awful lot of people do not.
Baroness Buscombe: Would the Minister not agree that at the moment, if somebody wants to gamble in a casino, they accept quite readily that they must provide some sort of ID and must go through some sort of membership process in order to do so? Why, then, is it right suddenly to lift that sensible barrier to allow people to go into those gaming areas, when it is entirely a game of chance whether they will be checked?
Lord McIntosh of Haringey: I think I should turn that argument around. This Bill abolishes membership requirements for casinos, and nobody has suggested that they should not be abolished. Once you abolished those requirements, you have to look at the purpose of identification. If the purpose is two-fold—first, proof of age, and, secondly, money-laundering—it is not rational to require photographic identification for everybody. Not a single one of us here would pass for being under 18. No. I am sorry—the noble Lord, Lord Addington, would.
Lord Addington: Even before I was 18, I never looked under 18.
Lord McIntosh of Haringey: Perhaps that is true.
We must look at what these provisions are for. They are not to slow things down or reintroduce membership by the back door but to protect young people from getting into casinos, prevent casinos admitting young people and to protect us against money-laundering. If the amendments are taken too literally they will amount to a reimposition of membership criteria. Nobody, throughout the whole process that we have gone through—whether the Greenway committee or anyone else—has suggested that.
Lord Clement-Jones: And nobody has suggested in the course of the debate that that was the intention. The noble Baroness, Lady Howe, may have regretted that the 24-hour rule did not apply, but there was no intention on the part of any of the speakers in favour of the amendment that that should be the case.
Lord McIntosh of Haringey: I am glad to hear it. With regard to proof of age, there are perfectly good analogies in other areas in which under-18s would not be allowed, and those should be applied to casinos as well. The penalties for failing to observe proof of age are very powerful.
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I turn to the issue of money-laundering and shall return later to any other issues that the Committee may have. Under the second directive, money-laundering checks are imposed on entry to the casino and require identification checks. With other member states, we are considering a third directive on money-laundering. I cannot predict what form that directive will take; it is before the European Parliament at the moment. The first option is that the checks of identification, which will be far more thorough than simple photographic identification, will take place on cashing in or out of the casino. Identification on entry is an acceptable alternative—and that is what we have in the second directive. I do not know what the result of that process will be and, as the noble Lord, Lord Clement-Jones, said, we shall debate it when it arrives.
The existing requirement on entry is not in the 1968 Act but in the money-laundering regulations. That will continue until any new directive comes into force, when it is transposed into UK law. I will make another point on a remark by the noble Baroness, Lady Buscombe. The Joint Committee did not recommend that there should be identification at the point of entry but that there should be effective barriers, which is what the Bill provides.
5.30 p.m.
As the noble Lord, Lord Wade, rightly said, we can have membership cards. Casinos in other parts of the world have membership cards: they call them loyalty cards. They are enormously valuable to them for marketing; they identify people and enable the casinos to make them offers and encourage them in ordinary marketing ways. I imagine that any casino in this country would take advantage of that obvious marketing tool. However, that is different from making them compulsory.
When we look back at the objects of the exercise, I hope that the Committee will accept that the Government are entirely committed to taking whatever action is necessary to protect children. We agree with the movers of the amendments on that principle. We drafted the Bill with that objective clearly in mind, and we have everything in place to achieve our shared goal. With that in mind, I ask for the Committee's support that the amendment should be withdrawn.
Lord Northbourne: I do not want to delay the Minister, but I do not understand why knowing someone's name and address is going to help stop money-laundering. Will he explain?
Lord McIntosh of Haringey: I specifically said that for money-laundering purposes a photo-identification is not necessarily the only requirement. The identification rules under the money-laundering directive are complicated and it would be inappropriate for me to set them out in detail, even if I had them before me. I can assure the Committee that there is no intention to derogate in any way from anything in the money-laundering directives. We have

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sometimes even gold-plated them, but we have certainly adopted them in full in this country and we will continue to do so.
Lord Wade of Chorlton: Noble Lords will agree—if I may say so to the Minister—that those in the money-laundering business make sure that they have very good methods of identification.
Lord McIntosh of Haringey: That was rather what the noble Lord, Lord Steinberg, said on Second Reading.
Baroness Buscombe: I thank the Minister for his fulsome reply. I will begin by responding to the good parts. I am grateful to him for making it clear that it is the Government's intention that there should be no merging of the gaming experience with other leisure facilities. That is something about which I and other noble Lords have been deeply concerned.
The Scrutiny Committee, which took such great care to consider the draft Bill, felt strongly that it should be made clear in the Bill that there will not be what many of us referred to as the Las Vegas experience of being able to be immersed in the gambling experience on arriving at one of these amazing facilities.
Lord McIntosh of Haringey: To walk in off the sidewalk straight into a machine.
Baroness Buscombe: Absolutely. I was there not so long ago with my children. We were able to play bingo over breakfast if we so wished. That will not be the case in these areas.
I accept a lot of what the Minister said about money laundering. My concern lies with responding to what a number of noble Lords have said about ID. I hear what they have said—that there will always be people determined to beat the system—but surely that is not a good reason for us not to send a clear message to the Gambling Commission that on principle it is hugely important that we impose minimum safeguards in the Bill.
We are talking about the possibility of creating a shift in our culture through the introduction of these regional casinos. Noble Lords will accept that at no stage in our proceedings to date have I said that that is a bad thing. But I feel genuinely passionate about the need to impose minimum safeguards over and above those rigorous practices which I understand the operators themselves will impose and do with regard to their current operations.
What I do not understand is why having minimum safeguards in the form of ID should in some way destroy their profits, and therefore—as I have been told—will destroy regeneration, which is one of the key reasons why most noble Lords would accept the introduction of these casinos at all. I simply do not accept that having some form of ID will destroy that. It certainly does not destroy it when 44,000 people are trying to get into a football match of an evening.
Lord McIntosh of Haringey: I appreciate that the noble Baroness, Lady Buscombe, is considering what
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she wants to do with these amendments. May I make a suggestion to her? She has talked about a simple form of ID. I am not clear what a simple form of ID is, other than photographic identification such as a House of Lords pass, a driving licence or a passport. I have not really heard the answers to the questions of the noble Baroness, Lady Golding. Can we talk about this? I think what she wants can be achieved in Gambling Commission directions. But, if necessary, once we have talked about it and established exactly what is meant by simple identification, I would be prepared to table an amendment to the Bill in order to achieve that.
Baroness Buscombe: I very much appreciate the Minister's willingness to discuss this, as we have already had some discussions on other aspects of the Bill. However, I want to make it very clear that, in my view, this is crucially important to seeing the Bill go on to the statute book.
I hear what noble Lords have said—that the operators will impose rigorous safeguards. However, I have a note here from an extremely successful and well known operator. I shall not name it, but I have the note here. It says:
"Given our experience in the US, we believe the most effective way to ensure that underage gambling does not occur is for the new Gambling Commission to require operators to check the ID of any individual who appears to be under the age of 25".
That is something that that operator itself does in the United States. Not only does it require ID; it requires ID at the entrance to the actual building or casino leisure centre, the destination area.
I am asking for much less than that. I am asking for much less than the noble Baroness, Lady Howe, has suggested—that we should retain the membership. I have had discussions with some of the operators who have sought very strongly to encourage me to desist from this minimum safeguard. Apart from anything else, I believe that it sends out a clear signal to people that these operators care, as I know they do in practice, very much that only people who are of the right age and who are not what we might call particularly vulnerable or subject to problem gambling actually reach the gaming tables and the machines.
Baroness Golding: The noble Baroness may be under the impression that I did not want a proof of age if there was a challenge to the person's age, but I was not saying that. I chair CitizenCard, a proof of age scheme, and we have issued many hundreds of thousands of cards for proof of age. They are to protect people such as bookmakers, by preventing young children going into a bookmaker's. If there is a challenge to a person's age in a bookmaker's such as Ladbrokes, they have to produce proof of age. Otherwise they are not allowed to gamble. The same applies to many other organisations such as Camelot, which also is part of the proof of age scheme. Why should you have to have proof of age—identification—other than when you are challenged when going into a casino if you do not have to have it to go into a bookmaker's?
Baroness Buscombe: That poses the question of whether perhaps we are being too lenient on

961
bookmakers. We are creating something entirely different from the bookmaker experience here. Through the new casinos, we are encouraging a whole-family experience. I welcome the opportunities that I hope the leisure facilities will provide in terms of family entertainment and family fun. I also see that they are destination areas far removed from the bookmaker experience, whereby families and individuals groups of young people will be encouraged to spend time in all sorts of ways, but in particular in gambling, in which case we are—
Baroness Golding: I am so sorry to interrupt again, but there will be provision for bookmaking areas within some of the destination areas. Is the noble Baroness saying that because casinos should have proof of age, or identification, the bookmakers that are in those destination leisure facilities should also have them, when they are all linked in together?
Baroness Buscombe: I hear what the noble Baroness has said. I am asking for the gambling experience to be separate from the other leisure areas. The Minister has agreed that is exactly what the Government also intend. What flows from that is that, yes, the bookmakers will be separate from other leisure entertainment, and they will be in those cordoned-off gambling areas. If you are cordoning off, if you have rigorous checks, what is wrong with putting some sort of low-level safeguard in the Bill, which many companies ask for already in terms of having a form of ID? I am also thinking to the future in terms of technology. This will be a process, whereby the Gambling Commission will be able to watch. As technology improves, people will be able to walk into those areas and have photo-recognition sorted within seconds. We are not asking for something that will create a burden for the operators.
Lord McIntosh of Haringey: Let me try again. I have looked carefully at all the amendments, and apart from wording or drafting issues, we differ on only one issue. Parliamentary counsel would never allow me to accept an amendment as drafted; it would have to be rewritten. In terms of policy, we differ in only one place. That is on Amendment No. 221. Subsection (6) of the amendment states that there must be,
"evidence which is reasonably capable of establishing (and does in fact establish … ) the name, address and a photographic likeness of the person producing the evidence".
I have problems with photographic evidence, as does the noble Baroness, Lady Golding. The amendment goes on to state,
"and that such person is over the age of 18 years on each occasion that satisfactory evidence of identity is required to be produced under this Act (including the proffering on a second or subsequent occasion of entry of a card or token issued to them by the licensee of the casino premises) for the purpose of verifying the identity of such person by reference to a photographic image stored visually or electronically upon the card or token".
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If I say that I will accept the thrust of every other part of the amendment, but I want to talk about that bit of it, can we not talk about it rather than press the amendments to a vote?
Lord Clement-Jones: Let me ask a question, because the Minister delivered that at fairly high speed.
Lord McIntosh of Haringey: I was reading.
Lord Clement-Jones: Is the Minister saying that he wants to discuss the photographic element? Is that the one point at issue as far as he is concerned? ID is no problem but photographic ID is what he is talking about. One of the issues here for decision—I am sure that the noble Baroness will need to take this decision—is about demonstrating to the Minister the strength of opinion on this matter on the Opposition Benches. The issue is whether to go for a vote and conclusively demonstrate that beyond peradventure, or whether the Minister's assurance is strong enough in those circumstances. Therefore, the more strongly the Minister can give us that assurance, the more possible it is that a vote can be avoided.
5.45 p.m.
Lord McIntosh of Haringey: My assurance is unequivocal. I did not finish quoting. Proposed new subsection (6) in Amendment No. 221 states,
"upon the card or token, or upon a system maintained by the licensee of the casino premises for such purpose".
If that happens, it means that the casino actually has to keep a photographic record of everyone who comes into a gaming area. I have serious difficulty with that. I have no difficulty with the thrust of any of the other amendments. Subject to agreement with parliamentary counsel about the wording and whether the matter is not covered elsewhere in the Bill, I give an unqualified undertaking to go along with them. I want to talk only about photographic identification.
Lord Wade of Chorlton: I hope that my noble friends on the Front Bench will listen very carefully to what the Minister said; it seems a sensible way forward.
Baroness Buscombe: I thank the Minister for his reply, which is extremely welcome and tempting. However, given the strength of feeling expressed to me by so many beyond the House with regard to the matter, it is difficult for me to decide where we go. I am deeply concerned. I have been addressed by a number of different operators that have sought so clearly to persuade me that no ID at all is necessary—that somehow we will destroy their attempts at regeneration—that I am concerned that, if I withdraw the amendments, they will have their way.
Lord McIntosh of Haringey: They will not. I shall demonstrate to the noble Baroness that the provisions are in the Bill. I am willing to examine all the other parts of the amendments, because I believe that they are in line with government policy. If by any chance anything is there that is not in the Bill. I undertake

963
categorically that it will be put into the Bill. However, we need to talk about photographic identification, because there are unresolved issues in the way in which the matter has been presented.
The Committee has had a good debate; its Members have had an opportunity to consider the issue in great detail. I am enormously grateful for that, but it does not require the proper consideration of the amendments to be concluded for the present—until we have had the relevant discussions—with a vote.
Lord Clement-Jones: Is not photographic evidence one of the issues on which the Minister needs persuasion? As he said, we probably have only one day in Committee. Many of us would prefer not to vote in Committee, but he made it clear from the outset—when business was discussed—that he wanted demonstrations of the House's sentiment in certain areas. We accepted that from the start. The photographic aspect is of considerable concern and interest to those of us on these and other Benches.
Lord McIntosh of Haringey: We have a second day of Committee on the list of forthcoming business. All right; there is reasonable scepticism about that. However, I assure the Committee that the concerns have been heard. I would not have said what I did unless I had fully taken account of what has been said.
Lord Northbourne: Can the Minister confirm that we shall also have a Report stage?
Lord McIntosh of Haringey: The intention of the Government is to pursue this Bill through both Houses of Parliament.
Lord Northbourne: Then I cannot see what the Opposition's problem is. Why cannot we proceed in the normal manner, having the discussions between now and Report and, if necessary, bringing back the issue to a vote at Report stage?
Lord Clement-Jones: I am not sure whether I am entitled to intervene at this point. The fact is that we are in one of those peculiar situations called "wash up" where we shall not have a conventional Report stage. We shall have a formal Report stage and Third Reading, but it is highly unlikely that we shall have a two-day period when we can debate these issues.
Baroness Buscombe: A decision must be made. I am hugely grateful for the assurances given by the Minister this evening. However, given the extraordinary position in which we find ourselves, we are unlikely to have other opportunities to show and confirm the strength of feeling among your Lordships on such issues. Therefore, I should like to test the opinion of the House.
5.51 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 123; Not-Contents, 105.

Division No. 5

CONTENTS

Addington, L.

Liverpool, E.

Alderdice, L.

Livsey of Talgarth, L.

Ampthill, L.

Lucas, L.

Anelay of St Johns, B.

Luke, L.

Ashcroft, L.

Lyell, L.

Astor of Hever, L.

McColl of Dulwich, L.

Avebury, L.

Maclennan of Rogart, L.

Barker, B.

Maddock, B.

Beaumont of Whitley, L.

Marlesford, L.

Bonham-Carter of Yarnbury, B

Mayhew of Twysden, L.

Bowness, L.

Michie of Gallanach, B.

Bradshaw, L.

Miller of Chilthorne Domer, B.

Brougham and Vaux, L.

Monro of Langholm, L.

Buscombe, B.

Monson, L.

Byford, B.

Montrose, D.

Carlisle of Bucklow, L.

Morris of Bolton, B.

Clement-Jones, L.

Murton of Lindisfarne, L.

Colwyn, L.

Naseby, L.

Cope of Berkeley, L. [Teller]

Newby, L.

Courtown, E.

Newton of Braintree, L.

Crickhowell, L.

Northbrook, L.

Denham, L.

Norton of Louth, L.

Dholakia, L.

Oakeshott of Seagrove Bay, L.

Dixon-Smith, L.

O'Cathain, B.

D'Souza, B.

O'Neill of Bengarve, B.

Dykes, L.

Park of Monmouth, B.

Eden of Winton, L.

Pearson of Rannoch, L.

Elles, B.

Peyton of Yeovil, L.

Elton, L.

Phillips of Sudbury, L.

Falkland, V.

Rawlings, B.

Falkner of Margravine, B.

Redesdale, L.

Fearn, L.

Renton, L.

Ferrers, E.

Roberts of Llandudno, L.

Fookes, B.

Rodgers of Quarry Bank, L.

Fowler, L.

Rogan, L.

Freeman, L.

Roper, L.

Garden, L.

Rotherwick, L.

Garel-Jones, L.

Russell-Johnston, L.

Geddes, L.

Ryder of Wensum, L.

Glentoran, L.

St John of Fawsley, L.

Goodhart, L.

Saltoun of Abernethy, Ly.

Greaves, L.

Secccombe, B. [Teller]

Hamwee, B.

Selkirk of Douglas, L.

Hanham, B.

Sharp of Guildford, B.

Hanningfield, L.

Shaw of Northstead, L.

Harris of Richmond, B.

Shutt of Greetland, L.

Higgins, L.

Smith of Clifton, L.

Hodgson of Astley Abbotts, L.

Soulsby of Swaffham Prior, L.

Hooper, B.

Steel of Aikwood, L.

Hooson, L.

Stewartby, L.

Howe, E.

Thomas of Swynnerton, L.

Howe of Idlicote, B.

Thomas of Walliswood, B.

Hurd of Westwell, L.

Tope, L.

Hylton, L.

Tordoff, L.

Jenkin of Roding, L.

Trumpington, B.

Kilclooney, L.

Vallance of Tummel, L.

Kimball, L.

Waddington, L.

Kingsland, L.

Wakeham, L.

Knight of Collingtree, B.

Wallace of Saltaire, L.

Layard, L.

Walmsley, B.

Linklater of Butterstone, B.

Wilcox, B.

Windlesham, L.

NOT-CONTENTS

Amos, B. (Lord President of the

Bach, L.

Council)

Bassam of Brighton, L.

Andrews, B.

Bernstein of Craigweil, L.

Ashton of Upholland, B.

Billingham, B.

965

Blackstone, B.

Jones, L.

Bragg, L.

Jordan, L.

Brooke of Alverthorpe, L.

Kennedy of The Shaws, B.

Brookman, L.

King of West Bromwich, L.

Campbell-Savours, L.

Leitch, L.

Carter, L.

Lipsey, L.

Carter of Coles, L.

Lockwood, B.

Christopher, L.

Macdonald of Tradeston, L.

Clarke of Hampstead, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

McIntosh of Hudnall, B.

Colville of Culross, V.

MacKenzie of Culkein, L.

Corbett of Castle Vale, L.

Mackenzie of Framwellgate, L.

Crawley, B.

McKenzie of Luton, L.

Davies of Oldham, L. [Teller]

Maxton, L.

Dean of Thornton-le-Fylde, B.

Mitchell, L.

Desai, L.

Morgan of Drefelin, B.

Donoughue, L.

Pendry, L.

Drayson, L.

Plant of Highfield, L.

Elder, L.

Prosser, B.

Erroll, E.

Ramsay of Cartvale, B.

Evans of Parkside, L.

Randall of St. Budeaux, L.

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Falconer of Thoroton, L. (Lord Chancellor)

Rosser, L.

Farrington of Ribbleton, B.

Sainsbury of Turville, L.

Faulkner of Worcester, L.

Sawyer, L.

Filkin, L.

Scotland of Asthal, B.

Gale, B.

Sewel, L.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Snape, L.

Gilbert, L.

Stone of Blackheath, L.

Golding, B.

Symons of Vernham Dean, B.

Goldsmith, L.

Tenby, V.

Goudie, B.

Thomas of Macclesfield, L.

Gould of Potternewton, B.

Tomlinson, L.

Graham of Edmonton, L.

Triesman, L.

Grocott, L. [Teller]

Truscott, L.

Hart of Chilton, L.

Tunnicliffe, L.

Hayman, B.

Turnberg, L.

Henig, B.

Turner of Camden, B.

Hilton of Eggardon, B.

Wade of Chorlton, L.

Hogg of Cumbernauld, L.

Wall of New Barnet, B.

Hollis of Heigham, B.

Warner, L.

Hoyle, L.

Weatherill, L.

Hughes of Woodside, L.

Wedderburn of Charlton, L.

Hunt of Chesterton, L.

Whitaker, B.

Hunt of Kings Heath, L.

Whitty, L.

Janner of Braunstone, L.

Williams of Elvel, L.

Jay of Paddington, B.

Williamson of Horton, L.

Winston, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.2 p.m.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I remind the Committee that if Amendment No. 11 is agreed to, I cannot call Amendment No.12 because of pre-emption.
Baroness Buscombemoved Amendment No. 11:
Page 4, line 5, leave out subsection (4) and insert—
"(4) The Secretary of State and the Gambling Commission shall consult with HM Customs and Excise to ensure that gaming duty is levied as a percentage of gross gaming yield for all casinos and that profits bandings are set on a progressive basis through regulations."
The noble Baroness said: In moving Amendment No. 11, I shall also speak to Amendment No. 284. These are probing amendments on the gaming duty and amusement machine licence duty grouped under the guise of taxation.
966
Scrutinising the casino element of the Gambling Bill, with no indication from the Government as to the future tax regime for casinos, is highly questionable. In the greater scheme of things, all amendments to this Bill are irrelevant compared to the tax and duties that casinos will have to pay in the future. The rates at which gaming duty and machine licence duty are to be set will have a huge impact on the profits or losses of large and small operators from the UK and overseas alike. Being in the dark on this issue means it is impossible for existing and future operators to plan with certainty, and an inappropriate tax regime could undermine the deliberations and intentions of Parliament.
I appreciate that this is not a money Bill. No doubt the Minister will inform us that tax issues are for Her Majesty's Treasury, and not for the DCMS or this Bill. However, it is crucial that the Government make some firm assurances on future duties and taxes, as that will have a major impact on operators. Indications on tax levels will also influence the debate currently raging in Parliament about the number and location of new casinos, as operators will have no appetite for new casinos if tax levels are set too high. Equally, the delicately balanced existing industry could be driven out of business by too high a level.
The current taxation system for casinos has been developed over many years to accommodate fairly the large range of operating factors that characterise the British casino industry, from mass-market provincial casinos offering low stakes and prizes to local customers right up to internationally recognised casinos offering the highest stakes and prizes to a world-wide clientele. It is for these reasons that we advocate tiered percentage rates of tax based on profits for both gaming duty and amusement machine licence duty akin to the current gaming duty system.
Will the Minister please inform the Committee whether the current system, where casinos pay a duty based on the "gross gaming yield" for premises where table gaming takes place—that is, stakes minus players' winnings—will continue? I understand the duty is calculated on a sliding scale according to the yield. The lowest rate is 2.5 per cent for the first £258,250. The highest rate of 40 per cent is for all yields over £2,408,500. Operators need to be sure that they will all be subject to fair and equal treatment under the forthcoming tax regime.
At the moment, an amusement machine licence duty is a set sum that is levied annually for a machine, be it in an arcade, casino or bingo hall, according to its category. Confusingly, the current categorisation of machines, as I understand it, makes category A the lowest stakes and prizes machines, found, say, in a seaside arcade, and category E, as can be found in casinos, the highest rate stakes and prizes machines. That is the opposite to the categorisation in the draft legislation.
Existing casinos may currently have up to 10 category E jackpot, high-rate gaming machines and operators pay a duty of £1,915 a year for each machine. In 2003, a consultation on the modernisation

967
of gambling taxes indicated that there was support in the gambling industry for a gross profits tax on gambling and amusement machines, either at a flat or tiered percentage rate. That would make the system fairer in terms of profits and also simpler to administer, particularly in the case of category A machines, as discussed in the Bill.
Despite those discussions, there has been no change, as yet, to the current system. Can the Minister reveal the outcomes of discussions that he and his department have had on this issue, especially with the Treasury, and propose any change that we can expect, if any? I beg to move.
Lord McIntosh of Haringey: I must congratulate the noble Baroness, Lady Buscombe, on managing to get the amendment on the Marshalled List. The device of saying that the Secretary of State and the Gambling Commission shall,
"consult with HM Customs and Excise",
is brilliant. I wish that I had thought of that when I was in Opposition. She knows perfectly well that I cannot respond on taxation matters in the Bill and that if the amendment were carried, it would be rejected by the Commons on grounds of privilege. Still, it was a good try.
I shall try to be helpful, because I have always recognised that there are three elements in gambling policy: one is regulation, with which we are dealing now; another is planning, which is the responsibility of the Office of the Deputy Prime Minister; and the third is, of course, taxation. I referred to that in my evidence to the Greenway committee—the pre-legislative scrutiny committee—as a "three-legged stool". The noble Baroness is absolutely right to say that you cannot see the whole picture unless you have all three.
We have made remarkable progress on the planning side. For example, there is the achievement of ensuring that you will need planning permission to convert other leisure facilities into gambling premises. That will be widely welcomed. But, even if we were able to speak for the Treasury, I am sure that the noble Baroness will understand that the Chancellor will not determine or publish taxation policy until he sees the regulatory and planning system that will be in place. In other words, he can consider the taxation position only after he has seen the outcome of the Bill. Any government would say the same. I can see only two former Conservative Ministers on the Benches at the moment—I am not trying to provoke them onto their feet—but I am sure that they would say the same thing. I cannot speak for the Chancellor, but these matters will be considered in due course by HM Treasury.
Baroness Buscombe: I thank the Minister for his response. I hear what he says and I also accept with alacrity his congratulations on my ability somehow to talk money in your Lordships' House, which is important, because, in the Bill, we will be encouraging people to invest huge sums of money in this country.
I understand that the regional casinos may require up front spending of some £300 million. Therefore it is enormously important that those investing in this
968
industry have some comfort that it will be worth their while from a commercial standpoint. Notwithstanding, I accept entirely that the Chancellor of the Exchequer will not consider the taxation position until after he has seen the outcome of the Bill. At the same time, I hope that the Minister will encourage the Chancellor of the Exchequer to consider carefully the points that I have raised, in the sense that this represents an enormously delicate balance in commercial terms. I hope that the Minister will accept that and, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombemoved Amendment No. 12:
Page 4, line 6, after "of" insert "casino"
On Question, amendment agreed to.
The Deputy Chairman of Committees: The next amendment is Amendment No. 13. I must advise the Committee that if Amendment No. 13 were to be agreed to, I would not be able to call Amendment No. 14.
The Earl of Northeskmoved Amendment No. 13:
Page 4, line 12, leave out paragraph (a).
The noble Earl said: In moving Amendment No. 13, I shall speak also to Amendment No. 177.
At the outset, I reassure the Minister that this is a probing amendment. Notwithstanding that the amendment would remove the reference to regional casinos from the face of the Bill, at this stage I am, on balance, ambivalent towards them. I acknowledge, too, that the Government have sought to respond to the considerable anxiety that has been expressed about them throughout the scrutiny of the Bill. I commend the Government for that. Nevertheless, for many of us a number of concerns remain. Accordingly, my purpose is to articulate some of those concerns in the hope that we shall be afforded greater insight of the thinking underpinning the Government's policy.
I willingly concede that the Government acknowledge that regional casinos represent a significant shift in the culture of the gaming industry in the UK. Moreover, as the Minister for Sport and Tourism commented on Report in another place, they also,
"will bring risks that are untested in Great Britain".—[Official Report, Commons, 24/1/05, co1.72.]
In that context, the Committee will be aware of the existence in Nassau, Bahamas, of the Atlantis resort complex. At its heart is a super casino, the largest in the Caribbean, comprising 78 gaming tables and 980 slot machines. Indeed, although neither as a residential guest nor a gambler, I was there over Christmas. The place was full of individuals, obsessed and oblivious of anything else going on around them, hunched over their category A machines of choice. It seems to me that that sort of pitiful sight is the kind of risk that has been untested so far in this country.

969
Against that background, I wonder from where the policy initiative for regional casinos was derived. As the Government admit, they are alien to our existing gaming industry. I think I am right in saying that a single regional casino will have more machines than the existing estate. Moreover, the proposals envisage a single regional casino potentially having 1,250 category A machines, although I recognise the Government's expectation—it is no more than that—that they will constitute only about 10 per cent of the total. Viewed logically, as pointed out earlier by the noble Lord, Lord Greaves, it is well nigh impossible to imagine anything other than that the consequence of that will be an increased incidence of problem gambling or addiction—a contention supported by numerous academics, Church groups and charities.
I note in passing that the introduction of fair odds betting terminals in betting shops, arguably the closest approximation to category A machines of which there has been some recent experience, led to an increase in calls to GamCare of 27 per cent. Moreover, GamCare continues to maintain that FOBTs are the leading individual cause of problem gambling in the UK. It begs the question how much worse this will become when the huge number of category A machines that the Bill envisages are up and running.
6.15 p.m.
I repeat that I commend the Government for having sought to address this by limiting in the first place to eight the number of regional casinos. Nevertheless, I remain very much puzzled by their apparent equanimity over the issue, which is something that we have already touched on in our debate on Amendment No. 2.
With that in mind, perhaps the Minister would be prepared to share with the Committee any qualitative and quantitative analysis that the DCMS may have conducted in that area. In particular, there remains a fair degree of controversy over the initial limit of eight. What criteria were applied to settle on that figure?
Perhaps, more importantly, what will be the Government's response in the event that the Gambling Commission's review reveals that the introduction of regional casinos has exacerbated the risk of problem gambling? Given the insistence of the Secretary of State that,
"If this legislation gave rise to an increase in problem gambling then it would have failed and it would be bad legislation",
surely, the logic of the Government's position is that in such circumstances they would be obliged to close down any regional casinos for which permission had been granted. How else could the Government's key principle of social responsibility in the gambling industry be satisfied?
It also occurs to me that it is hard to credit that any self-respecting commercial organisation would be likely to make the anticipated inward investment of £150 million to £300 million for a period of operation that may last no longer than three years.
970
I am equally puzzled by the Government's arguments about the regeneration benefits implicit in the proposal for regional casinos. I do not dispute that their development will give rise to employment opportunities, but there are vexed questions relating to how precisely the Government are defining regeneration in that context. Where, to whom and in what ways do they suppose that those putative benefits will accrue? Over what time period are they expected to run? Has any cost-benefit analysis been conducted, particularly in respect of regenerative gains measured against the potential social costs arising from any increase in problem gambling? Notwithstanding that UK firms can apply for the licences, what bankable guarantees are there that moneys earned by the companies involved will not leave the country, thereby undermining the aspirations for regeneration?
In that context, I note that the statement of national policy on casinos in December last year states:
"The planning permission [for any regional casino] is likely to be subject to a planning obligation".
I fully understand the practice. Indeed, in circumstances where, in order to succeed commercially, each regional casino would have to attract an average of 5,000 people per day, with peaks of up to 20,000, there may be good grounds for supposing that operators should be subject to appropriate obligations. After all, the strains that that sort of throughput will place on local infrastructure will be immense, as well as potentially having a detrimental effect on regeneration.
But, equally, there is a problem—not least that the process currently envisaged presents local authorities with an inherent conflict of interest. As I understand it, rumours have been circulating that some casino operators have been expressing a willingness to make "contributions" to local authorities. Given that they are the bodies which award the appropriate planning permissions and the licences, that is, to my mind, inappropriate. Indeed, given the sums of money involved, it may well be that requirements for planning obligations may be just as inappropriate. Here I suspect that I echo concerns expressed earlier by the noble Lord, Lord Greaves, and articulated in Amendment No. 202, in the name of the noble Lord, Lord Clement-Jones.
There is perhaps a current example of the problems that this can create. The Minister will recall his response to Written Questions from my noble friend Lady Hanham about the North Greenwich Peninsula. He stated:
"We understand Kerzner has entered into an agreement with Anschutz Entertainment Group to build and operate a hotel on land adjacent to the Dome site and to provide a regional casino at the Dome site if the Gambling Bill is enacted".—[Official Report, 3/3/05; col. WA 43.]
I recognise of course that the noble Lord cannot anticipate any of the various decisions associated with that, and I realise that there is the added protection, in due course, of the advice from the independent expert panel. Nevertheless, I am sure that he can appreciate that this new chapter in the saga of the Dome runs the risk of creating an impression—false, I am sure—of

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too cosy an arrangement between the various players, which is precisely the sort of inherent conflict of interest that we should seek to avoid.
Therefore, I would be grateful if the Minister can tell the Committee whether any discussions have taken place on the policy proposals of the Bill between Kerzner International, himself, the Minister for Sport and officials. Additionally, has Kerzner International made any representations or offered any advice on the potential significance of a regional casino to the financial viability of plans to regenerate the Millennium Dome complex and the north Greenwich peninsula?
I need not detain the Committee further. I merely hope, that given all these issues, the Minister will be in a position to make a better and rather more robust case for regional casinos than has been achieved thus far.
Viscount Falkland: The noble Earl has made some interesting points and asked some searching questions. I understood him to say that his intention, at this stage, was simply to obtain answers from the Minister. The change of description for the largest category of casino from a resort casino to a regional casino surprised many of us. The Minister may say that that term seemed more appropriate. A regional casino may, ultimately, mean a resort casino. However, I was surprised. Perhaps he will explain the matter further to the Committee.
The idea of a resort casino sprang from the Budd report, which interested us a great deal and which was discussed in your Lordships' House. It was a novel idea to regenerate seaside resorts and to move along the lines used by other countries; namely, the United States and South Africa. I understood that, to avoid a proliferation of gambling, one of the Government's aims was to introduce casinos in whatever way they chose. They chose not to produce a strategy, but to leave it to the market. That was the reason they changed from resort casinos to regional casinos and they thought it was more appropriate to call them regional casinos.
It seems to me, as it may to others who think about such matters and who have been abroad and seen public policies on gambling, that resort casinos are places where gambling takes place in locations to which one has to travel, when one has made a decision to gamble. One may go for a weekend or for longer periods of time, such as during a holiday period, and have a particular budget to use in a casino. The name "regional casino" suggests that it is in a conurbation, where there are residential areas, and large concentrations of population who may be encouraged to gamble because the casino is around the corner or on the next street. That is a matter of concern to many people. Perhaps the Minister will feel inclined to explain that.
Lord Greaves: Amendment No. 14 is in this group with the agreement of the noble Earl. In a probing discussion on regional casinos, it is sensible to discuss my amendment as well. Like the noble Earl, I tabled this probing amendment for discussion, although it
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raises some important issues. I agree with a great deal of what the noble Earl said and what my noble friend Lord Falkland has said, as he trespassed on the area covered by my amendment, which I welcome.
Words have meanings and they matter. Changing the name of something is significant. It is not just a matter of presentation or what people might feel is appropriate. For example, these very large casinos might be called "regional casinos" rather than "resort casinos" or "destination casinos"—which is a much touted way of describing them—or, as I suggest, "very large casinos". The press calls them "mega casinos" and "super casinos". I understand why the Government might not want to use those particular words which is why I have used fairly basic value-free words, such as "very large", which are simply descriptive. Perceptions matter. What they are called may have as much impact on where and what they are and how people see them as a mass of detailed legislation.
At Second Reading the Minister talked about limiting the number of casinos. He said:
"of what we call regional casinos and what one could call destination casinos or resort casinos".
I think he is suggesting that there is no real difference between these words.
"There is no difference in the names"—
which is clearly not entirely true at one level—
"what matters is how they are defined. I believe it is recognised that we are taking that extremely gingerly".—[Official Report, 22/2/05; col. 1201.]
I am not sure whether that is how they are defined. The Minister seems to be suggesting that these words do not matter, but they do.
The whole concept of destination casinos—which, as my noble friend said, originally came from the Budd report—is that they are places to which people make a deliberate effort to travel a reasonable distance, and perhaps a great distance, to gamble there. They are not casinos to which people will walk from their houses, down a few streets and through the door, or catch the bus or, in Blackpool, a tram. There is a real concept that they are places to which people make a determined effort to go.
There has been a lot of debate about whether these casinos should be in resorts such as Blackpool or Great Yarmouth, or whether some of them, at least, could be in big cities. One hears places mentioned such as Olympia in London, or even putting a casino in the Dome and finding a use for it at last, or places such as Manchester, Birmingham or Glasgow—some of the cities which appear to be willing to consider having casinos, unlike more sensible cities such as Liverpool which has said that it is doing quite well and does not want one.
Can a regional casino be in a city centre? It is the obvious place. If you have a regional casino the first place you think of is the big cities. Could they be in areas which suffer deprivation—run-down inner city areas? Could we have one round the corner from Coronation Street? Could Coronation Street become a casino? That would change the plot a bit.

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There is a great difference between putting one of these casinos in a resort such as Blackpool, or in a big city centre, or in a run-down urban area. We want to know from the Minister in what sort of areas the Government think the casinos are going to be. It is no good saying that they can leave it to the advisory panel, which will come up with ideas. These are major, fundamental issues that the Government must have a policy on and tell us what they think and want.
How do the Government define regions? If they are regional casinos, is there an assumption that there is one casino per region? Or could there be three or four in one region and none in other regions? The assumption is that if you have things on a regional basis then you share them out among the regions, and perhaps one in Scotland and one in Wales. What are the locational implications of calling them regional casinos rather than having simply a neutral description referring to their size?
What is the difference in locational terms, given that there will be eight of the three categories, between calling the biggest ones regional casinos and describing the others by their size? Will it mean that, in locational terms, the Government will have a different policy and different way of deciding where they should be? What will the criteria be for deciding where the casinos will be? Those are important issues and I look forward to hearing the Government's response.
6.30 p.m.
Viscount Ullswater: I am sorry that I cannot support my noble friend Lord Northesk on this occasion because I disagree with the logic that he is putting forward in his amendment. I believe that the Government are right in their pilot of establishing regional casinos—whether they are regional, resort or destination means not a bit of difference because the size of these casinos is just an offering.
My noble friend talked about a large investment—somewhere between £150 million and £300 million per casino. Much of that may be inward investment. who is to know? It depends on whether the market in this country can come up with that sort of cash because of the size of the investment. In the briefing that I have received, I understand that something in the region of 7,000 new jobs may be created and there will be regeneration on top of that in the areas where the casinos are located.
We have already heard that the gambling bit will be really quite a small percentage of the whole offering that is made—maybe only 10 to 15 per cent. On top of that there will be conference centres, convention centres, hotels, theatres, cinemas and so forth. This is the only area where category A machines will be available, so part of the pilot is to see how category A machines fit into the whole offering of gambling. There will be a limited number and they are very distinct. There is a great deal of difference between regional casinos and the current offering of casinos.
If my noble friend had picked not on regional casinos but on large casinos, I would have had some sympathy and would have wanted to support the
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amendment, but I fail to see where the concept of large casinos fits. I readily see where that of the regional casinos fits, but I am much more doubtful about the large casinos. Unfortunately, I cannot support my noble friend on this occasion.
Lord Brooke of Sutton Mandeville: I will be extremely brief. I recall how the definition of casinos by names as against by numbers developed at a certain point in our deliberations on the Joint Committee on Pre-Legislative Scrutiny. We had to choose names and I cannot for the life of me remember what name we chose: the important thing was that it should have a degree of logic.
I am applying exactly the same argument at this juncture. I have no difficulty at all in living with "regional casino" as the name, particularly as the regional planning strategy will play so large a part in the preparations for the decision about whether a casino should be allowed in a particular place.
The one area of difference that I recall from the Joint Committee was on the issue of where such casinos should be. The Government—perfectly reasonably—took the view that there was no point in changing their basic strategy, which was that, ideally, new developments should occur in cities rather than on their edges, in line with the whole policy about supermarkets and so forth. We took a different view because we believe that putting a regional casino with category A machines into the centre of a city would make it more accessible to people who might have an addiction. Frankly, however, that would be decided by the planning authorities on the strength of the cases put to them. I myself would be perfectly happy with the logic of regional casinos as the largest kind.
Lord McIntosh of Haringey: I am grateful for what has been said because it has been thoughtful and I was really interested in some of the arguments. Of course. regional casinos have attracted attention and the Joint Committee that scrutinised the draft Bill, with a number of people here taking part in it, looked very carefully at the place of regional casinos. We have always believed that the development of the regional casinos should be done cautiously, and with appropriate safeguards. Regional casinos are a fundamental part of the casino package. We listened to what was said and came up with revised proposals with a cap on regional casinos to make sure that these new leisure destinations are carefully tested.
The noble Earl, Lord Northesk, asked me what the magic is about eight. There is not any, although that is not an invitation to replace it by six, 10, four, two or 20. It seems to be a reasonably acceptable compromise number, and it is large enough to allow us to look at the possibility of the effect of casinos in a range of areas, which could include seaside resorts, towns away from the coast, or suburban areas in towns. The noble Earl says that it is not good enough for me to say that the advisory panel will make its judgments on that, but there is no point having an advisory panel unless you give it an area over which to make a judgment. Given the objective—if I may finish the sentence—which is to

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see what the effect is in terms of economic regeneration, benefit for the local community and social outcomes in a variety of different reasons, that is a good remit for the advisory panel.
The Earl of Northesk: I will have to make sure when I read Hansard, but I was commending the Government for the independent panel of experts, rather than the reverse of that, as the noble and learned Lord just implied.
Lord McIntosh of Haringey: I am sorry if I have misunderstood, but I thought the noble Earl was asking me to prejudge what they said.
He asked me a number of questions which are really quite difficult to answer because they depend on events which will take place in the future, and will depend on market actions as well as the actions of government. I do not know whether there will in fact be eight successful applications for regional casinos. I think there probably will be because there was interest expressed in more than that, but I cannot guarantee to the Committee nor put it in legislation that that is going to happen. He asked me to define regeneration. I admit that the regulatory impact assessment is out of date in the sense that it was produced before the 16 December policy statement, but I think it does make a serious attempt to look at the regeneration and local benefit effects of regional casinos.
I was a bit surprised that he said it was no good if the earnings left the country. If we did not accept the principles of inward and outward investment, I do not think anybody would ever do anything. They are still of benefit to the country if the earnings are made here, people have jobs, and facilities are provided which people want to use. He asked me about rumours of contributions by local authorities, and my only advice on that is not to pay attention to rumours. He asked me specifically about the Dome and Kerzner's, and as he indicated I have already replied to a number of Written Questions about meetings with Kerzner's and other companies. There has been no substantive discussion about any proposal to build a regional casino at the Dome.
The noble Viscount, Lord Falkland, and the noble Lord, Lord Greaves, both seem much concerned about the significance of the name. They are dragging me unwillingly into semiotics, a place I really do not want to go. The noble Lord, Lord Greaves, says that words mean things. Of course they do, but words used in this sense are not the words which will actually be used in public. The Mickey Mouse Casino will not be called a Mickey Mouse Resort Destination Casino, or the Al Cap Casino, or the Asterix Casino, or whatever it may be, choosing deliberately neutral names. They will not be called "resort destination casino" or "regional casino" or "resort casino"—they will just be called casinos. We have called them by a name for the purpose of the legislation; we could have called them A, B, C or D—and perhaps it would have got rid of a lot of trouble if we had. The real point is that the actual content of the legislation relating to casinos has not
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changed as a result of the change of name. That is the limitation on the undoubted truth of the noble Lord's remark that words mean things.
The noble Lord also asked me whether the word "regional" means that there will be one casino per region. No, it does not. It is just a convenient way in which to say that they will all be in regions; there will not necessarily be one per region, but they will be in a variety of places, and to call them "resort", as was the original intention, would be misleading. There is no other significance or sinister purpose behind the change in name.
Regional casinos, or casinos of this kind, have been a part of thinking on the reform of gambling regulation since the time of Budd, who did not recommend resort casinos but simply said that casinos should have a minimum size for gaming of 2,000 square feet. Unless we are to go back on four years of work and follow what the amendment would do, which is to take out regional casinos altogether, the names do not matter.
Lord Greaves: I want to press the Minister on two issues. First, on the contribution by local authorities, is it not the case that any planning application of any significant size, from 10 houses upwards and perhaps some smaller than that, involves planning obligations under Section 106 of the Town and Country Planning Act or in other ways, by which developers pay money to the local authority for certain defined purposes? There is no doubt whatever that authorities which want to have big casinos in their areas are thinking on those terms. There is no point in pretending that is not the case; it is how the planning system now works. If you are giving planning permission for an entertainment, industrial or residential purpose, or for anything else, you expect contributions from the developers towards other local facilities, road improvements, contributions to bus services or whatever else. That is just a fact of life, and it will certainly be a fact of life on planning applications for casinos.
Lord McIntosh of Haringey: My knowledge of these things is very out of date, as I have not been a chairman of a planning committee for nearly 40 years. But yes, Section 106, as I understand it, does exactly what the noble Lord, Lord Greaves, described—and yes, if there is an area in which there is a premises licence available, as identified by the advisory panel, and if there is more than one applicant with a casino operator's licence as granted by the Gambling Commission, the local authority will choose between those applicants. It will choose on the basis of whoever offers the best benefits to the local area. That seems to me exactly as it should be.
Lord Greaves: The local authority will be giving a premises licence and may well be choosing; between two or three or 25 people bidding. After that, there will have to be an application for planning permission. The inter-relationship between the two is not very clear at all and will be very muddled.
Lord McIntosh of Haringey: They will happen at the same time and whichever applicant wins must get both a premises licence and planning permission. But they are different in the sense that the premises licence in these circumstances is competitive. However good a lot of applications are, only one person can get one premises licence. Planning permission, on the other hand, is granted on the merits of the case and is not competitive. In educational terms, I believe, one would say that it is norm referenced rather than criterion referenced.
6.45 p.m.
The Earl of Northesk: I thank the Minister for his characteristically clear and eloquent response. I recognise that some of my questions had a chicken-and-egg character. Nevertheless, I thank him for the answers that he has been able to give. I am grateful, too, for the kind words of the noble Viscount, Lord Falkland, and the noble Lord, Lord Greaves.
I am not in the least offended by the strictures from my noble friend Lord Ullswater. As I said in my introduction, my purpose was entirely probing. I was using the amendment as the means of eliciting further information. I had no intention of striking regional casinos from the Bill, and still do not. I entirely take my noble friend's point that the Committee might benefit from further information about large casinos as opposed to regional casinos and maybe I should table an amendment about that as well.
I am content that the debate has at least given other noble Lords the opportunity to articulate some of their ongoing concerns and to ask additional questions. Those concerns have not been done away with entirely. In the unlikely event that we end up with a further stage, I may need to return to the issue, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Baroness Buscombemoved Amendment No. 15:
Page 4, line 13, leave out paragraph (b).
The noble Baroness said: In moving the amendment I shall speak also to Amendments Nos. 16, 178, 226, 230, 235, 245 and 364. It brings us to an important issue that created a great deal of concern among your Lordships on Second Reading with regard to the existing estate—or as I call it, UK plc.
I wish to speak to the variety of grouped amendments, all of which deal with a possible solution for the existing gambling estate with regard to casinos as dictated by the Bill. There is a range of suggestions. I make no apology for that because it is important that we use the opportunity of Committee to try to eke out some sensible solutions to create a fair playing field for all involved in the industry.
As such, I ask once more for your Lordships' patience while I explain the options carefully to avoid confusion. There can be no doubt that this remains a serious sticking point in the Bill. Despite the numerous government amendments—although noticeably not
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on this issue—it remains an issue that is yet to be resolved satisfactorily. I assume that this upset has caused the noble Lord, Lord Greaves, to table a clause stand part debate to the casino sections of the Bill.
I would first like to expand on Amendment No. 239, which is what the industry initially proposed and would ideally like. The amendment would give the existing British casinos and their customers the same rights and opportunities that would apply to the new small and large casinos under the Bill. In essence, it would allow existing casinos the same machine-to-table ratio—namely, 2:1, up to a maximum of 80—as small casinos; or, in the case of those that match minimum size criteria for a large casino, five machines to one table up to a maximum of 150, as well as the right to offer customers sport betting facilities.
Contrary to claims made by Ministers in another place, the amendment would result in an overall increase in the number of machines of less than 5,000 over a period of five years from the issuing of new licences, as the existing casinos have on average between 12 to 15 tables per casino. The machines would be the same limited stake and prize machines currently available in existing casinos, not the much-discussed category A machines to which the Secretary of State has been referring in the press. In our view, the debate with regard to the existing estate has moved on.
This amendment would allow the existing estate to compete fairly with new entrants in line with the Government's policy position of June 2004. New Clause 173A, Amendment No. 245, is another option and to me the better one given that this removes the large category of casinos completely from the Bill. I was interested to hear the comments of my noble friends Lord Northesk and Lord Ullswater on the category of large casino. Amendment No. 245 results in a paving amendment, Amendment No. 15, which leads this group and removes the reference to the category in Clause 7. Amendments Nos. 16, 178, 226, 230, 235 and 364 are all consequential on this option.
In the removal of the large category, this amendment ensures that all existing casinos, whatever their size, will be deemed as a new small category, allowing two machines per table up to a maximum of 80 and the ability to offer betting, while the minimum floor space requirement for the new small casinos will be retained as currently outlined in the Bill. However, the amendment will not allow existing permitted areas under the 1968 Act automatically to become new permitted areas and offer new licences without further application and examination by the advisory panel.
What that does is to ensure that the advisory panel becomes a permanent element of the licensing process rather than for an experimental period only. In that regard, I thought about whether this role should rest with the Gambling Commission. However, there is a concern that that could create some conflict. Therefore, it is better to have an advisory panel that is at arm's length from the regulator, the Gambling Commission.
The advisory panel and the power of the Secretary of State can thus be used to control proliferation on a continuing basis by defining new permitted areas and

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the number of licences that each may grant. That would in effect increase the number of permitted areas in a controlled way as defined by the Secretary of State. So there is a strong safeguard.
As I understand it, local authorities wishing to grant a new small casino licence would apply to the Secretary of State. The advisory panel would advise, and the Secretary of State would issue permission for a local authority to grant one or more licences as he or she sees fit on that advice. The local authority is then obliged to grant its licence or licences in a manner directed by the Secretary of State.
The main advantages of these proposals are as follows. The definition of the experiment becomes much clearer in that it refers only to the new regional casinos which are obviously and genuinely different from any other casino in the United Kingdom, particularly given that they are the only casinos that will have category A machines—the machines the software of which is capable of unlimited stakes and payouts, though in fact that will not be the case in all category A machines; the software as is normal is flexible.
There are just two categories of casino—regional and small—giving clarity of offer to the public. The machine definitions remain intact. By removing the large category, 1,200 category B machines are also removed. The control on proliferation of location and numbers of machines is continuing and could be flexed or tightened by a Secretary of State in response to advice from the commission and the advisory panel. This combination of local democracy and a centrally driven strategy provides a strong social policy.
The process is initiated by the local authority, passes through the strategy and control exercised by the advisory panel in conjunction with the Secretary of State, and returns to the local authority for both planning and licensing. The designation of existing casinos as small casinos removes the need to reclassify automatic versions of table games. The existing industry has a much fairer opportunity of competing with new entrants in seeking a small licence. It gives regulatory simplicity. In addition, there are no competition issues, as an even playing field exists for the new small licences with this amendment.
The retention of the advisory panel as a key element of the process, and the designation of new permitted areas, means that there is a further triple-lock—local authority desire, advisory panel recommendation and the Secretary of State's approval—before a local authority can consider planning and then licensing. In effect, this is, including the commission's role, a six-lever lock. Those are strong hurdles that need to be overcome for there to be a new licence. This regime genuinely delivers the kind of gaming regime that the industry, inward investors, and commentators would find safe, workable and regenerative, without asking the Government to confront any presentationally significant issues.
There are many aspects of this proposal that can be properly claimed as a further tightening, particularly given that we are talking about removing altogether
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the category of large casinos and the number of machines that they would contain. If adopted, the changes would ensure the unequivocal support of the British industry and significantly help the Bill's passage.
I understand that the Minister may be concerned about applications currently being considered by either the Gaming Board or justices. Growth in casino numbers over the past five years has been in single figures. The existing licensing process is effective and controlled by the Government's own regulator, the Gaming Board. I am conscious of time, but I wanted to outline the amendments clearly. I beg to move.
Lord Clement-Jones: I briefly wanted to register interest in, if not total support for, what are ingenious proposals. It is unfortunate that we have only a day in Committee, and we probably do not have many further stages of the Bill, to tease out Amendment No. 245, which is extremely interesting. It has merit in the way that it simplifies the structure of the Bill.
When I first came to the Gambling Bill, there was the rationale behind new small, old small, large, and so on, to consider, and then reading through the deliberations of the scrutiny committee and the previous Budd report and so on, the logic of where we have got to and why escapes all but the most careful analysis. This proposal has the merit of great simplicity. As the noble Baroness said, it makes clear what the experiment is. The experiment is the regional casinos that we have heard noble Lords speak about on previous amendments. The mechanisms for the piloting and for the approvals need to be particularly strong, whereas in a sense we are talking here about a much more conventional size of casino; we are talking small.
When one analyses the actual number of machines which are not category A machines, as the noble Baroness has made clear, probably the net effect is to increase the numbers by about 1,500, given that there are no casinos in the pipeline. Obviously one would need to examine that situation to give an absolute statement, but it seems that something like the maximum number of machines currently permitted is 1,370; the proposals would produce a further 2,740, and then one deducts the machines that could be in the large casinos, which are abolished under the proposals. That leaves a net 1,500. I know that the Minister, with his statistical background, is well able to do mental arithmetic on this.
That is an interesting approach. My one worry about it is the proliferation aspect. That is why I say it is interesting rather than saying it is to be supported. Certainly, in terms of understanding what these casinos are and the nature of the proposal, it is a great deal more transparent. Frankly, both licensing authorities and the general public would find this much simpler.
7 p.m.
Viscount Ullswater: This is a very important series of amendments. My noble friend Lady Buscombe has

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explained exactly what is meant by them, so I shall not repeat that. However, I invite the Minister to explain the unequal treatment between the new, small casinos and the current casinos, which is unfair to the current estate. There must be a reason; perhaps I have not gathered it.
In my remarks on a previous amendment, I hinted at my support for the removal of large casinos. We are talking about the machine definition remaining exactly the same for the new, small casinos and the existing ones; we are not talking about introducing category A machines into any part of that. I very much support the amendments.
Lord Mancroft: One thing that everyone from all parts of the Committee has had in common is a desire to get the Bill through if we can, for the reasons that we all know and that do not need repeating now. I have absolutely no interest in the casino industry, but it seems to me that the chances of getting the Bill on to the statute book without what you might call an agreement with the existing British casino industry are very remote. We are all aware that up to date—from 16 December until now—it has been extremely unhappy, and that unhappiness has pervaded the past few weeks on the Bill.
I do not know whether we should advise that large casinos should go, but the amendments —although they seem to be a change from what the Government had proposed—seem an interesting way forward. They might be a new way forward as well, which is difficult at this late stage. I am clear that we must find a way forward on what appears to be deadlock at the moment, and the amendment or a variation on the theme may be it. As my noble friend Lord Ullswater said, it appears rather easier to explain as a policy than the one that we have had until now.
Like the noble Lord, Lord Clement-Jones, I am concerned about proliferation. Fear of proliferation was one of the bases of the policy at the start. There might be concern that the Government wanted to avoid having a small casino as a gambling den on every high street, but there is no danger of that; that is tabloid stuff and is not realistic. However, my natural inclination would be not to remove large casinos. As I said, this is not an area of great expertise for me, but I hope that the Government will look at the amendment carefully to see if it cannot be a way of reaching agreement on all sides so that we can move the Bill forward and get it on to the statute book.
Lord McIntosh of Haringey: I must start with a comment on what the noble Lord, Lord Mancroft, said. I have huge respect for the British casino industry and the four major firms that dominate it. They have run for many years honest and crime-free casinos that have not had any particular record of causing problem gambling. They have substantial financial security. I yield to no one in my respect for them. However, it should not be said that we need their agreement to get legislation through Parliament, which is rather what he implied.
Lord Mancroft: I obviously did not choose my words carefully, but this is a large and complex Bill. Apart from anything else, it is about reforming and modernising an industry. If you are doing that, it is usually a good idea to try to carry that industry with you. The past few months of the passage of the Bill have been somewhat sour. Even before the Bill arrived, the discussion had been going on for five years. It is a pity that we have that situation; it would be nice to get back on to a set of rails. Not everyone will agree with everything, of course—that will never be the case—but the level of disagreement that there was following 16 December undoubtedly ruined the atmosphere.
Lord McIntosh of Haringey: I have to be concerned with policy rather than atmosphere. Having said that, of course we have taken very seriously the concerns expressed by the British casino industry. We have seen members of the industry on every occasion that they have asked to see us; we have read their advertisements with great interest and increasing incredulity; and we have heard them say, as has been said today, that the Bill treats them unfairly and puts existing casinos at a competitive disadvantage. We think that those concerns have been, at the very least, overstated, but we recognise that there is an issue here which these amendments are intended to address. However, I have to say that I am unable to support them. I want to explain why and I shall go on to explain to the Committee what we see as a better approach to the issue.
In bringing the Bill before Parliament, we have made clear from the outset our view that public protection must be a priority. In the Bill before the House, we have adopted a precautionary approach, holding back on the liberalisation of regulation until we can be sure, on the basis of practical experience, that we are not going too far too fast and that we are not letting problem gambling run out of control.
It was on the basis of that precautionary principle, and recognising the concerns expressed very forcefully in another place at Second Reading, that we introduced an initial limit of eight as the number of casinos in each category allowed under the Bill. Whether and when those limits can be eased will depend in due course on an assessment of their impact by the Gambling Commission and on the agreement of both Houses of Parliament.
Those limits will not affect the entitlements of existing casinos. They will continue to be able to trade as now. They will be able to enjoy some important benefits from the new system of regulation, including, for the first time, the freedom to advertise. I expect the casinos to take full advantage of this opportunity.
But it is the case that those 137 casinos will not immediately be entitled to all the entitlements of new-style casinos. In particular, they will be limited to 10 gaming machines rather than up to 80, as proposed in the amendments, and they will not be allowed to offer betting in combination with casino gaming. We think that the impact of casinos with the additional entitlements needs to be tested and carefully evaluated before the door is opened more widely.

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On the other hand, the impact of a small number of new-style casinos on the existing industry —that is, eight plus eight plus eight—should not be exaggerated. New-style large and small casinos will not be able to offer different or better kinds of machine. People who want to play a category B machine in an existing casino will be able to do so just as readily as in a new-style casino. I think it is now accepted that category A machines, which are new, should not be introduced outside regional casinos at present.
Nor must the pudding be over-egged in terms of betting. Existing casinos already have to compete with more than 8,000 betting shops—some of them literally next door. The addition of eight or 16 new-style casinos will not change that comparison much.
We also need to bear in mind that we are not proposing to freeze the position of existing casinos for all time. Some have suggested that the Bill is putting them in aspic. But it seems to me that aspic dissolves; I think they really mean "concrete". But that is not the case. If the initial eight/eight/eight stage is satisfactory, it will certainly be possible to extend the entitlements more widely, including to existing casinos.
I turn to the amendments themselves. It seems to the Government that, in straining so hard to protect existing casinos, the amendments give rise to problems far worse than those they seek to address. The first and most important point to make is that they would substantially dilute the precautionary principle. I think that if we were to return to the House of Commons a Bill which was significantly less precautionary than the one which left the House of Commons, we would receive very powerful resistance—I do not know about Front-Benchers but certainly from Back-Benchers of all parties.
Instead of testing, as we are doing, in a number of locations the impact of casinos which have a significantly increased number of machines, we would be rushing straight into allowing every casino in the country to do so, together with additional new casinos. The machines may be familiar, but the effects of concentrating them and allowing proliferation of venues are not familiar. We would, almost at a stroke, be looking at 10,000 new category B machines and potentially far more than that—I shall explain my figures in a minute—without any kind of prior test or assessment. The number of casinos allowed to have 80 category B machines each could easily double.
The point is that between Royal Assent and the commencement of this part of the Bill the existing 1968 Act will still apply. That means that new casinos can open up in permitted areas. If we have the attraction of the benefits offered to these casinos by these amendments, then there is—I am not good at betting analogies—a high probability that a significant number, possibly double the number of existing casinos, would open between now and the time the Act comes into force. The noble Baroness, Lady Buscombe, says 5,000. I think it could be significantly more than 10,000 before we get to the end of this process.
Baroness Buscombe: I apologise to the Minister for interrupting. He is giving a full and helpful reply. Can he confirm, for the assistance of all your Lordships, when he sees the Bill coming into force? That is important in relation to this point.
Lord McIntosh of Haringey: We have a number of preparatory steps to make and there will be different commencement times for different parts of the Bill. It will certainly not be less than 18 months from now.
As I have said, there is a clear prospect under the Bill as drafted that existing casinos will become small or large casinos depending on their size. By the way, they have 10 or 15 machines at the moment, as the noble Baroness, Lady Buscombe says; but there is nothing to stop them under grandfather rights from buying the shop next door or opening up another floor, and having more space for more machines within the 2:1 ratio. It would be dangerous and wrong, however, to prejudge the outcome of the testing period of the impact of the new casinos in a limited number of areas.
The second point is that the arrangements proposed in the amendments for deciding where the new casinos might be established, and how many there would be, might be arbitrary. There are huge difficulties which the amendments do not address. Supposing Hammersmith and Fulham or the City of London were to be designated as new permitted areas, what criteria should determine the number of casino licenses available there? It is one thing to look to an independent advisory panel to identify the right areas to test out new-style casinos—the task we are setting the advisory panel on a once-and-for-all basis—but another thing to expect the panel to undertake a permanent system of rationing. That is what these amendments do. It would be impossible to codify and police. We would be keeping exactly the elements of the present law—permitted areas and demand tests—which have proved the most unsatisfactory.
The third point is related to that: that the amendments maintain barriers to entry. British casinos have been talking about a level playing field. This is not a level playing field. These amendments would tilt the playing field permanently to the advantage of the existing casinos. They would have all the entitlements of the new-style casinos immediately, whereas potential newcomers would have to compete against each other for a rationed number of new licences, and to meet the costs of winning those competitions. That is not a sustainable position.
We do not want to freeze the number of casinos opening under the present law. It must be right to allow some natural growth in the market between now and the implementation of the Bill. We are proposing, subject to consultation, to make changes in planning use classes to guard against uncontrolled proliferation during the transitional period. In other words, we will need planning permission to open new casinos.
The amendments, however, would make the grandfather rights enjoyed by existing casinos far more valuable. There could be a huge surge in applications in order to get in under the wire. That would be

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thoroughly undesirable. It could risk creating exactly the proliferation of casino gambling which we want to avoid. The number of casinos, as I have said, could quickly double.
The fourth point is that the amendments propose the removal from the Bill of the category of large casinos. I find it strange that we have been criticised for departing in relatively modest ways from the advice of the scrutiny committee, but the Opposition are now proposing a much more radical departure.
I must say that I started by thinking that the removal of large casinos was a precautionary measure, because we are getting rid of the potential for 1,200 machines, but, if we look at it realistically, what it would achieve is not so much the removal of 1,200 machines but protection for the new, small casinos, which are the existing casinos plus some others. I do not find that an attractive prospect.
7.15 p.m.
So I fear that, taken together, the amendments will not facilitate the development of a fair and open gambling market. They will place more emphasis on the protection of a small number of companies—basically, four companies—than on the protection of the public as a whole.
The Committee will think that I have been rather aggressive about that, I am sure, and I probably have, because I am really concerned about the protection of the public and avoiding proliferation and increases in problem gambling. But we have looked again at what can properly be done to recognise the legitimate interests of the established industry, and I have always, as I have today, praised it for having a good track record of responsibility and integrity.
In the first place, we have prepared Amendment No. 233, which is in the next group, which takes automated casino gaming tables of the kind now on offer in many casinos here, out of the definition of gaming machines. We think that that is right because there is a reasonable basis for distinguishing the equipment from gaming machines. That will also mean that casinos do not have to count those machines against their allowance of gaming machines. In other words, casinos will not be penalised for innovation.
Secondly, we think that it would now be reasonable, without weakening the overriding precautionary principle, to increase the entitlement to category B machines in existing casinos from 10 to 20. That is in addition to the reclassification of automated tables. By the way, that does not involve any change in the Bill.
If there is any requirement for it, we would be prepared to discuss some increase in the prizes—the maximum limit—for category B gaming machines. We could very well discuss that with the casino industry. Of course, any change of that sort would have to be very carefully monitored.
So I am not resisting without any possibility of change, discussion or negotiation, but I hope that the Committee will agree that the changes that I am
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talking about, together with the arguments against the amendments, go as far as it is reasonable and prudent to go in the direction of helping the casino industry but not gambling with the protection of the public. We are simply not willing to do that.
Lord Wade of Chorlton: Will the Minister confirm that there is no restriction on who applies for the eight, eight and eight, so that all UK companies, existing companies and new companies from around the world can apply?
Lord McIntosh of Haringey: Yes, of course, we have said that all along. We said it twice in the Statement on 16 December, although the British Casino Association advertisements claim that it was excluded. We said it twice in that Statement. That has always been the case, and I have made it clear, that those casinos have a very strong case for doing well, because they know the markets; they have the experience; they have the staff; and they certainly have the ability to raise the money for casinos of that kind. I think that they will have a very good business opportunity and they would be very unwise to throw that away by endangering the passage of the Bill.
Viscount Ullswater: Just for clarification, can an existing casino apply to become a new casino?
Lord McIntosh of Haringey: Yes. If there is an existing casino in an area identified by the advisory panel as, let us say, the location for a small casino, an existing casino could apply to become a small casino under the new legislation.
Lord Clement-Jones: I will read Hansard with considerable interest tomorrow. What the Minister had to say was welcome, in terms of the movement being made. I hope that degree of movement will be sufficient to reassure the established industry that it is not all doom and gloom where they are concerned.
Lord Brooke of Sutton Mandeville: The first three pages of Clause 346 contain a long list of definitions. The Minister was searching for a phrase that could convey a high degree of probability with language taken from the betting field. I offer him "a racing certainty", but, more colourfully, I offer him the great words of Damon Runyon:
"It may be that the race is not always to the swift, nor the battle to the strong—but that is the way to bet".
If he uses "Damon Runyon" as shorthand in future, we will all know what he means.
Lord McIntosh of Haringey: I will seek to avoid gambling analogies as fiercely as I do sporting analogies, because I do not understand them.
Baroness Buscombe: I made clear on Second Reading my understanding that the existing casino industry will be able to apply for the new licences. It is

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important to stress that. Notwithstanding that, I urge the Minister to think again about some of the issues we have debated this evening.
I agree with the noble Lord. Lord Clement-Jones, that these proposals require careful thought, particularly the latest proposed solution that gets rid of the large casinos. Neither the noble Lord, I suspect, nor I would wish to allow, albeit inadvertently, proliferation without care. We are simply looking for, as I put it carefully in my speech on Second Reading, a more equitable arrangement.
The noble Viscount, Lord Ullswater, referred to the removal of large casinos, and said we would not be piloting small ones. We do not need to pilot them, as we already have them. and I do not understand why we are doing so. Small casinos already exist.
These proposals involve significant hurdles. It is important to stress that we are talking about a different gambling experience when we talk about small casinos versus regional. I accept that this Bill means the membership rule will be dropped, there will be some freedoms to advertise, and the existing estate will be able to continue to trade as now. That continuation, however, will be limited to 10 machines. The Minister wants to test and evaluate carefully the effects of the eight, eight and eight pilots. We all accept that these new regional casinos will have some significant impact upon our culture. However, those in the existing estate, which have proved, over the last 40 years, that they are responsible businesses, are now saying that, as it stands, the Bill will freeze their position in time—or, as the Minister suggested, in concrete. I have sympathy with their view.
Lord McIntosh of Haringey: That cannot be the case. Between Royal Assent and the commencement of this part of the Bill, they will have the opportunity to open new casinos under the 1968 Act. When the Bill comes into force, they will have the advantage of the abolition of 24-hour membership requirements and the advertising ban. I cannot see how they are being "frozen".
Baroness Buscombe: They will have the opportunity of opening casinos between now and the enactment of this Bill. But the Minister confirmed to me that that may be 18 months from now. There is a limited ability for most clubs to grow in current premises, and moving the entire British estate to new premises would take years. It takes time to process the introduction of new premises. I cannot see that there would be a mass proliferation under the wire between now and the introduction of the new legislation.
There is also genuine concern that if others are awarded licences to open casinos within close proximity to the current estate, they will be allowed to have many more machines and a much more exciting venue as a result. Also, large size means the possibility for more payouts. We are considering what we believe to be an anti-competitive situation. I heard the noble Lord say that he believed that the proposal put to him this evening would create an anti-competitive position with regard to the new entrants. I cannot see that.
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Under this proposal, new entrants would be allowed to apply on an equal basis with enormously strong safeguards. We are not talking about a triple-lock, but a six-lock approach.
The Government are talking about a precautionary principle. But I do not believe that we are seeking would remove the precautionary principle if at the same time we would remove the category of large casinos altogether—that would remove 1,200 machines from the Government's proposed landscape. The Minister has suggested that the proposal would lead to an additional 10,000 machines. I do not accept that.
There will be a test period, during which the Government propose that the existing estate will not be able to increase the number of machines. However, there is a real concern that during that period the new entrants will be given opportunities of which the existing estate will be deprived. I take on board the example that the Minister gave regarding Hammersmith and Fulham having to decide the criteria that should determine whether or not a new casino should be opened. Maybe we should look again at the amendment and, instead of relying entirely on a permanent advisory panel to police this, consider how we could more carefully link in the regulatory role of the Gambling Commission to this proposal.
I do not wish to press this issue tonight. However, there are opportunities between now and Royal Assent for noble Lords to think with care and to urge the Minister to take these proposals on board. I accept, and welcome, that the Minister wants to assure the current estate that its future is not as bleak as it has suggested—that the future is, indeed, rosy—but I still need to be persuaded of that. I believe that between now and Royal Assent it might be possible to find a solution that might be more equitable than that proposed by the Government. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Baroness Buscombemoved Amendment No. 17:
Page 4, line 15, leave out paragraph (d) and insert—
"(d) sub-small casinos previously licensed under the Gaming Act 1968 (c. 65)"
The noble Baroness said: In moving Amendment No. 17, I shall also speak to Amendments Nos. 179, 227, 229, 231, 232, 233 and 367.
Lord McIntosh of Haringey: Amendment No. 233 is mine.
Baroness Buscombe: I am so sorry. I need a drink. I hope that will not appear in Hansard. As I am sure the Committee is aware, the existing casino industry is concerned that the legislation does not fully integrate it with proposed new casinos. As such, the amendments in this group aim to create a fairer arrangement for the United Kingdom plc and the existing industry.

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7.30 p.m.
Clause 7(5) lists the categorisation of casinos as either a regional casino, a large casino, a small casino or one below the minimum size for a licensed casino. According to the Government's size criteria for new casinos, the vast majority of the existing casino estate would fall below the minimum threshold for a small casino. The inference from the wording of Clause 7(5)(d), however, is that existing casinos should not really be licensed and therefore should not exist. I have been led to understand that the legal implications of that wording may well be dubious. Therefore, it is tremendously important that we should consider them today.
As it stands, the Bill also proposes to restrict existing casinos to their current entitlement of 10 gaming machines per casino up to category B and ban bingo and betting on real or virtual events. Those proposals are seen by the current industry as unfair and uncompetitive and will give a huge competitive advantage to regional casinos and new casinos at the expense of the existing estate—not the right basis, we suggest, for a free market. Many have questioned why a Labour government have come up with such legislation on casinos. Why should current casinos be restricted to 10 machines, although proposed regional casinos will be allowed 1,250 machines in total?
My amendments are designed to ensure that new and existing casinos are categorised by size, with a new definition of a "sub-small casino" covering those existing casinos that fall far below the size requirements for a small casino. I envisage that the sub-small category of casino would have entitlements equal to those of the small casinos.
I would also like the Minister to explain why the Government feel that casinos should not have equal entitlements to bingo, betting and gaming machines as determined by their size category. I believe that the opposite is a more logical and competitive manner of operation. That is why I have tabled these amendments. I beg to move.
Lord McIntosh of Haringey: The Committee will forgive me if I do not repeat my encomiums to the British casino industry. I think they are well understood. Why Members of the Committee should laugh, I do not know.
I believe that these amendments would take matters too far and too quickly. They would allow every one of the existing 137 casinos to become new-style casinos. Instead of the 24 new-style casinos that the Government propose, there would be at least 160 new-style casinos in every part of the country. Even if all the existing casinos were limited to the entitlements of a new small casino—we know that some of them are big enough to qualify for large entitlements—I am sure that the noble Baroness, Lady Buscombe, cannot deny that there could easily be 10,000 extra gaming machines.
The result of the amendment would be nearly to double the number of casino gaming machines in the country, and to multiply by more than four the
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number of locations in which significant concentrations of gaming machines could be found. That would take matters too far and too quickly, particularly because while the old regime continued, any existing operator would be free to expand its floor space and new entrants would rush to obtain permissions for new casinos, even those equivalent in size to regional casinos under the existing law. That would therefore signal a proliferation of larger casinos, which is exactly what the House of Commons rejected and why we said that we needed the restrictions that we introduced in December. If the new-style casinos presented problems that required us to be tougher than we envisage, we would be faced with 160 or more premises that needed tighter controls, rather than the limited number that we envisage.
We have a clear choice. The Government offer a gradual and controlled evolution of the casino industry where Parliament and the public know how many casinos there will be and can decide at each stage whether to go further. These amendments would destroy the certainty and control that we have guaranteed. They would put the industry in the driving seat at the expense of public protection.
I have listened very carefully to all of the representations that the department has received. The message that comes out loud and clear from all that I have heard is that the public expect the Government to keep firm controls over the industry. They accept that adults should be treated like adults. They want to be sure that change will be gradual and that at all times commercial interests will not get the better of public interest. The Government have delivered precisely that, and I cannot allow our controls to he undermined by amendments such as these.
Perhaps I may move on to government Amendment No. 233, to which I referred in the previous group. At Second Reading, I said that the Government were considering how auto-roulette terminals could be controlled most effectively under the Bill. Those terminals are offered in casinos now. They operate just like traditional casino table games, except that the wheel is spun and the ball is propelled by mechanical means rather than by a croupier.
In the Bill, as drafted, the equipment is designed as a gaming machine. We have discussed the treatment of those terminals with the British Casino Association and others and we have come to the view that auto-roulette can be controlled effectively outside the gaming machine regime. We believe that in the special environment of a casino these terminals, which are similar to table games, can be offered subject to controls on the way they operate and the maximum number of player positions.
The Government propose to use the powers under these amendments to allow casinos to provide automated casino games in addition to their gaming machine entitlement. The Gambling Commission will control the specification and the number of player permissions by licence condition. We hope that the

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casino industry will welcome this proposal as a sensible solution to a genuine concern that it raised with the Government.
Lord Wade of Chorlton: Perhaps I may make a general point. On the evidence that we took in the Scrutiny Committee, it is clear that the eight regional casinos will not really be casinos. They will be very large hotels with a very wide range of leisure facilities within them. A relatively small part of those very large facilities will be a casino.
They will attract people who will travel some distance with their families for entertainment over perhaps a weekend, three days, or whatever. The general view that came across to the committee was that people would lose, on average, about £50, which they see as the sort of money that they may pay for a dinner or for taking their family to Chester Zoo—although that would cost more than £50. It is part of what they enjoy doing.
However, the really big players will go to the very smart, smaller casinos that will be in the large casino category where the facilities will be nothing but casinos. That is probably where the Government have not quite got it right. In a way, we have restricted the facilities where the biggest amount of money will be gambled. There will be a much greater variety of facilities in those places where people will not be gambling that amount of money, which is where they see gambling as part of a leisure activity.
I understand what my noble friend Lady Buscombe said. The arrangement in the Bill does not represent what the market wants, which is to offer opportunities for high gamblers in the large casinos, and even small casinos, where the facilities are ripe for the big players. Yet, we have ended up with the reverse, where the biggest opportunities to gamble will be where the big gamblers do not go or are less likely to go.
I understand why the noble Baroness is bringing these ideas forward in order to redress that balance. I understand exactly the points made by the noble Lord that the amendments probably take things wider than he would want and, probably, even wider than the industry needs.
On these issues, I ask the Minister to consider my point that something needs to be done to ensure that the balance is right. Although, by and large, I understand all the issues—I do not believe that the Bill has found the right balance—I still believe that there is further to go in the direction that I have identified. If they can be given some consideration, that may address the issues raised by my noble friend and the issues that concern the casino industry.
Lord McIntosh of Haringey: I am grateful for that. I wish that we had had time to reconvene the Pre-legislative Scrutiny Committee to consider these matters. Noble Lords are happy with that idea; they must have really enjoyed themselves. I do not believe
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that the noble Lord, Lord Wade, is right. Nothing in the Bill restricts large and small casinos, as defined, from having non-gaming attractions.
Lord Wade of Chorlton: I probably have not made myself clear. It is not the non-gaming facilities that I want to see in the smaller casinos but the ability to cope with the very high rollers. The high rollers will not go to the big regional casinos, where there are category A machines and opportunities for much higher levels of gambling; they will be more likely to go to the smaller-sized casinos.
Lord McIntosh of Haringey: That is way beyond my level of expertise. I would have thought they would be more likely to stay at the existing casinos in Mayfair.
Lord Clement-Jones: I think the high rollers will play baccarat and blackjack and other games and not the machines.
Baroness Buscombe: I entirely agree with the noble Lord, Lord Wade, on the proposed regional casinos. I visited Las Vegas and I do not remember taking part in any betting. I was there for the leisure facilities and to see the amazing spectacle. When I have, on rare occasions, visited smaller casinos where the high rollers play, I have seen that the focus is on gambling. It seems extraordinary that we are putting category A machines in the huge regional casinos and minimising the different gambling opportunities within the smaller casinos.
This has been an interesting debate. I take on board what the Minister has said. I shall consider it with care and read what he has said in Hansard, particularly in relation to his Amendment No. 233 and to auto roulette. Those are all important issues. In some sense, we are all conscious that time is not on our side. Unfortunately, notwithstanding the fact that the Bill has received pre-legislative scrutiny, noble Lords are quite rightly used to debating all the important, and sometimes not so important, issues on the Floor of your Lordships' House at leisure, but tonight we are very much constrained. I am grateful to the Minister for what he has said and, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombehad given notice of her intention to move Amendment No. 18:
Page 4, line 16, leave out "may" and insert "shall"
The noble Baroness said: I am grateful to the Minister for confirming to the Committee, when debating the Amendment No. 10 group of amendments, that the gambling experience will be separate from other leisure facilities within regional casinos. That was the purpose of tabling Amendment No. 18. I am grateful to the Minister for his clear assurances on that issue.
[Amendment No. 18 not moved.]
[Amendment No. 19 not moved.]
7.45 p.m.
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Greaves: I rise to oppose the Question that Clause 7 stand part of the Bill. That heads a long group of amendments in my name including Amendments Nos. 102 and 107, whether Clauses 149 and 164 stand part, Amendments Nos. 224 and 234, and whether Schedule 9 stands part. It should also include Amendments Nos. 176A and 176B, which I apologise got delayed a day in their circulation in the supplementary list because for some reason the clause and line numbers that I submitted had gone through some sort of random number generator before they got to the Public Bill Office and they were therefore gibberish. They can be taken as discussed.
I have made a fairly rough and ready attempt to remove those parts of the Bill that refer to the new casinos—regional, large and small. I do not claim that I have done a proper filleting job on the Bill. I will attempt to do a much better, more efficient and more comprehensive job and bring it back at Report for further discussion. I look forward to that exciting occasion. In the event, I am clearly putting this forward as a probing set of amendments to allow the matter to be discussed.
There are two possibilities. One is that we all meet again on 7 April and then the Bill goes through to Report. The second is that it all ends up in the wash-up. I believe that there is a large body of opinion that large and complex Bills like this going through the wash-up is not satisfactory. The Bill, by and large, is regarded as a good, worthwhile measure and one that has had a great deal of discussion and consideration.
The sections referring to the new casinos, on the other hand, are far more controversial from a number of different points of view. I had an interesting communication this morning from the Casino Operators' Association of the UK—the COA—which wrote to me as follows:
"There is somewhat of an impasse in negotiations with DCMS. Unless the Government makes concessions in line with our substantial recommendations, we feel that the most prudent next course of action would be to remove the casino sections from the legislation altogether. The Government and the casino industry needs more time to consider the best way forward and it has become increasingly apparent that this will not be possible until after the General Election".
The COA sets out a number of reasons for that, which have essentially been covered and discussed in Committee today, only one of which has been satisfactorily dealt with perhaps—the question of ID on entry. I will not read them all out because they are well known and have been raised from various parts of the House during the debate.
I tend to come from a rather different direction from that of the COA, in believing that, nevertheless, the best course of action would be to take the casino provisions out of the Bill—particularly if there is to be a wash-up procedure—and for the Government to bring back a new Bill after the election in which these matters can be further discussed.
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As my noble friend said, there are many things in the Bill that we ought to discuss in detail, for which we are not now going to get time. I do not intend to discuss them in detail now, not least because the time for dinner is rapidly approaching. But on the matter of the three new categories of casinos, there is a great deal that needs to be discussed, scrutinised and looked at hard. The Government have not got the system properly sorted out yet. We had a long discussion about regional casinos earlier, but I did not get satisfactory answers from the Minister—I am sorry to tell him that.
The question of advertising is highly controversial, though that is not so much advertising for people to travel in the destination or resort sense to gambling casinos. If people are travelling from London to Edinburgh to visit a big new casino, that is one thing, but whether local advertising is desirable to attract local people in—whether in a big city or a relatively medium-sized place such as a seaside resort, where they may be 60,000, 100,000, 150,000 or 200,000 people living nearby—needs to be thrashed out properly.
On inducements, there is a lot of evidence from places such as Detroit that providing free food, hotel rooms and transport—buses or trams to visit the casinos if it is Blackpool—can contribute greatly to addiction and problem gambling. I do not believe that the question of problem gambling as a public health concern in the surrounding areas of the casinos has yet been discussed properly.
I listened with a certain amount of bewilderment to the previous discussion about the interaction between the different permissions that will be needed for casinos. The relationship between the national decision-making process dealing with which places will be allowed to have casinos, which involves the Secretary of State and members of his advisory committee—whoever they turn out to be—and the operators licences is fairly straightforward. However, the premises licences and the planning permission for some of the big, controversial proposals have not been sorted out properly. Inevitably, there will be a sense in which national decisions are made, a list of places is drawn up and effectively that will be a fait accompli. The rollercoaster will start and the local planning and premises licence processes will be a matter of bidding—how it will be done, where it will be and what it will be like rather than, "Is this something that we want, yes or no?" That will lead to a huge amount of local public anger and confusion. The process has not been thought out at all.
I do not think that competition with existing local businesses and the local economy has been thought out properly. I do not know whether the Government have produced estimates—they do not seem to have produced estimates for many things that will be consequences of this Bill.
Lord Faulkner of Worcester: I hesitate to interrupt the noble Lord, but did he find nothing in the report of the Joint Scrutiny Committee of any use at all in answering some of the questions that he says have not even been looked at? The Joint Scrutiny Committee,

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which contained a number of his distinguished noble friends, came to unanimous recommendations that covered all these matters. The committee looked at all the opportunities for regeneration and the difficulties and so forth. I beg him to read it if he has not had time to do so.
Lord Greaves: If I said that I had read every word of that report, I would not be telling the truth, but I have read a great deal of it. I have certainly gone through it all. At Second Reading, I complimented the committee on its work because the Bill as a whole is now very much better than it would have been had that process not taken place. I made that absolutely clear. I believe that the Bill as a whole, apart from the casino provisions, is actually a good Bill that deserves to be passed by this House. My answer to the noble Lord is that the questions that I am raising have not been answered.
The question of job displacement has not been satisfactorily sorted out. Evidence was given to that committee but the committee does not appear to have taken satisfactory note of it. I do not believe that the Government have come to a view about how many of the new jobs that are created in the big new casinos—whether regional, large or whatever—will simply be displacing other jobs either because of competition within the gambling industry or competition generally. Apart from people travelling long distances, there will not be any extra money. The people who go locally may visit in large numbers but they will not have extra money. They will simply be spending it in different places.
Finally, we ought to have a serious argument about whether eight is the right number. The Minister said there is nothing special about eight, it is just an adequate number. If the Government really want trials and pilots, then eight seems too many. They could have their trials and pilots by having two at seaside locations and two at major urban centres, as an excellent report from NERA— I have forgotten its full title—points out. That would provide all the evidence needed to—
Lord Lipsey: The noble Lord has referred to the NERA report. Is he able to tell the Committee, because NERA cannot or refuse to, who commissioned that report? Then we would be able to judge the evidence it put before this Committee more fairly than we can when it suppresses that fact.
Lord Greaves: No, I cannot tell the noble Lord, Lord Lipsey, that. It is a question I asked myself as I read the report, but it was just one of the large number of items in piles of stuff that came through the computer and through the post which I read with interest. I have a right to consider arguments from people whoever commissions them and whoever produces them, and that particular argument seems a very sensible one.
The Government, and we, should ask what is the minimum number that is necessary, in order to carry out a satisfactory pilot. The only reason I can think of for it being eight is that there will be people in all the
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different regions wanting one each, but the Minister has already told us that that is not the case. They are not going to be divvied out one per region; it is simply going to be the best places. Two different seaside resorts and two different major urban centres are surely enough, unless there are other areas—perhaps a freestanding casino in the middle of the countryside. The Minister was evasive about that and just said that everywhere can be considered—suburbs, small towns, big towns, cities, the seaside anywhere. I do not think that is satisfactory.
There is a huge amount still to be discussed about this Bill, and rushing it through without proper further scrutiny of these matters will lead to considerable dismay and will not do our House any good in the forum of public opinion, if that is something we are interested in.
I do not know if I have to move that it stand part, but I do not think that I do, I am just opposing the Motion.
Lord Clement-Jones: The noble Lord, Lord Greaves, has made a series of thoughtful and interesting speeches in the course of our Committee today, and the speech he has just made is no less thoughtful and interesting. I ought to put on record from the Front Benches that we do not agree with his view about the continuation of Clause 7, as I made clear on Second Reading.
Of course no one part of the industry is deliriously happy about Clause 7. It is a series of compromises, and I take some comfort from the fact that no one part of the industry is entirely happy because I suspect that therefore the balance is roughly right. Like the noble Lord, Lord Greaves, I do not know why the eight, eight and eight formula should have been arrived at at the end of last year. Whether it is a Chinese lucky number or some other theory, I do not know. The issue about piloting is precisely in order to see whether there is going to be demand for this type of leisure centre cum casino. One has to give it a shot, and I do not believe that going much lower in terms of numbers is a particularly sensible way forward.
Although there are some ingenious amendments, and Amendment No. 245 that we have already debated today can be counted among that number, I do not believe, before wash up, that we are going to find some great new solution to all of this. Strangely enough, although the noble Lord, Lord Wade, when he talked about the current structure, was trying to demonstrate how illogical it was, to me he actually made quite a lot of sense. He made a distinction between the great leisure centre/casino, which was a regional destination casino, and the rather more esoteric, private club where high rollers go to play the tables. They do not go to play the machines—they go to play Black Jack, Baccarat and other games that people play who put down chips worth £1,000. They are not going to put coins in machines, by and large; perhaps people who accompanied them would, but they themselves would not. So those places are very different, as the noble Lord said, and we do not currently have that form of regional casino.

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We have received a very interesting series of letters from places that would be regarded as destinations, such as Blackpool. It is very interesting how they have set out their stall. Of course, there is a huge amount of optimism, and I very much hope that they are not disappointed by the outcome of the process. On balance, now that we have the ID requirement that we secured today—and obviously we shall have to discuss with the Minister how that will take effect in the Bill—on our Front Benches we believe that we are getting close to a solution that can take us forward, subject to further clarification in some areas. On those grounds, I would not support my noble friend.
Viscount Ullswater: I am glad that the noble Lord, Lord Greaves, said that this was a probing amendment, because I certainly cannot agree with it. The idea that you can suddenly remove the casino portion from this important Bill at this moment and expect suddenly to be able to resurrect it as a single item after the election is—well, the noble Lord has his own views about it, but I certainly would not propose that it should be done.
For anyone who has any experience of visitors coming to London, the one thing that this Bill will do is to remove the membership rules. There must be thousands of people who come to London and who want on occasions to go to a casino to have an interesting evening and are frustrated by the fact that they have to apply in person for a membership card and wait 24 hours before they go to gamble. Nowhere else in Europe are you expected to do such a thing, and I believe that the way forward that the Government have come up with is the right way to go.
Lord Wade of Chorlton: If there is one thing that came across to me when meeting the various casino owners over the past few months is that they are very smart businessmen. To build a big leisure casino, you have to commit something like $0.5 billion if not more—say £300,000 or £400,000 minimum—to create it. That decision is not going to be taken by anybody unless they are very confident that it is going to work and that they are going to have the infrastructure around it necessary to make it a success. For such an investment, something like 2.5 or 3 million people will need to visit the premises to make it pay; most of them will pay for the leisure facilities rather than the gambling, and the gambling will put the cream on the cake and make the whole thing possible.
I have no doubt in my mind that those casinos that are built will be a credit to wherever they are built; they will add many benefits and create more employment than they disturb. I assure the noble Lord, Lord Greaves, that the committee considered very seriously the alternative businesses that might suffer in moving employees from one type of business to another. We took evidence on that and came to the conclusion that, with everything taken into account, there would still be considerable economic benefits wherever such a construction was built.
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We considered the matter very seriously, and I have no doubt that whatever regions end up with some of these larger casinos, all parts of the community will benefit as a result.
Lord McIntosh of Haringey: I listened very carefully to the noble Lord, Lord Greaves, and well understand the point that he is making, which is a principled case against having casinos in the Bill at all. I assume that what he means is that there should he no change in the casino law. It does not really matter what the amendments say; clearly they could be sorted out afterwards if there were general support for them. But I take it that he means to leave casino law as it is at the moment rather than to abolish casinos altogether; he is nodding, so I believe that must be right.
My position is that the Government's policy is a cautious and sensible approach to a part of our national life that the majority of people regard as a safe and normal activity. Therefore, I do not think that the noble Lord's position truly represents what most people think about casinos. Most people look on casinos and gambling in general as a leisure choice for informed adults. They know that it has risks like many activities in life and they accept that with careful regulation it can be a normal part of a good night out.
I am glad that the noble Lord raised the core point of whether the Bill should deal with casinos because I want to set out what we would lose if we took out the casino part of the Bill. We would lose the potential for regeneration. Many local authorities want the inward investment, the new jobs and the visitors that casinos will bring with them. New casinos provide not only a range of gambling facilities but hotel accommodation, conference facilities, restaurants, areas for live entertainment and so on. If there is an issue of job displacement, the membership of the committee of the noble Lord, Lord Wade, shows that it has been carefully considered.
Lots of local authorities have written to us saying that they would welcome such developments. We think it is right that we give a limited number of local authorities the opportunity. That is why the powers for local authorities in Schedule 9 to secure benefits for their area are so important. At the same time, there is provision in the Bill for any local authority that wishes to opt out altogether from new casinos. So there is no forcing casinos down the throats of communities that do not want them.
If we did not have this part we would abandon choice for consumers. Many people enjoy gambling. We want to ensure that protections are in place for the small minority of people for whom gambling becomes a problem, but we think that it is right to extend choice for adult gamblers. We would set back the development of the British casino industry, which has proved its integrity and probity over the past 40 years. With new technology, new games and changes in society it is different from the industry regulated by the Gaming Act 1968, which would have to continue in force. The industry has earned the right to be allowed to develop, cautiously.

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Without this provision, we would keep unnecessary and burdensome regulation. We think that it is right to remove outdated regulations that do not contribute to the delivery of the three regulatory objectives. The industry and the customers would be left with a regulatory regime that was created for a different industry at a different time. Casino developments would be permitted in a relatively small number of urban areas. The membership requirement—the 24-hour rule—will remain. We will heavily restrict the ability of casinos to advertise and there will be strict limits on the number and type of machine that they have.
Without this provision, a great opportunity to achieve a modern and responsible regulatory framework would be lost and an important and successful part of the leisure industry would be stopped in its tracks. We think that every part of the Bill contributes to the well-being of the country.
Clause 7 agreed to.
Clauses 8 to 11 agreed to.
Lord Davies of Oldham: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure. In moving the Motion, I indicate to the House that we will continue the consideration on the Prevention of Terrorism Bill at about 10 o'clock. We do not know the precise time: it will be displayed on the indicator.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.9 to 10.15 p.m.]

Prevention of Terrorism Bill
10.15 p.m.
A message was brought from the Commons, That they agree to certain Lords amendment to the Prevention of Terrorism Bill without amendment; they do not insist on a certain other amendment to which the Lords have disagreed; they insist on their disagreement to certain other Lords amendments but have made amendments to the words so restored to the Bill to which they desire the agreement of the Lords; they insist on their disagreement to certain other Lords amendments but have made amendments in lieu thereof to which they desire the agreement of the Lords; and they insist on certain other amendments to which the Lords have disagreed and disagree to the remaining Lords amendments for which they assign a reason.
Baroness Scotland of Asthal: My Lords, I beg to move that the Commons amendments and reasons be considered forthwith.
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Moved, That the Commons amendments and reasons be considered forthwith.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.

Prevention of Terrorism Bill

  MOTION A
  Lord Falconer of Thorotonrose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1 A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu of those Lords Amendments; and do agree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.
  The noble and learned Lord said: My Lords, the provisions are back; we have to consider them again. The Government have taken the view that we should take the advice of the security services on what the right approach should be. We have considered the advice that we have received and we have accepted it.
  The continuing disagreement between the Commons and the Lords is against the following background. Very significant changes have been made to the Bill as a result of the provisions of this House. I draw attention to the following changes that have been made: pre-judicial scrutiny before orders are made; much clearer rules provisions; explicit provisions for certification that prosecution is not possible; and a review clause. We have moved as a Government and we have moved significantly. But we as a Government believe that our prime job is to protect our people against terrorism.
  We have put this to both Houses of Parliament. T he Commons have take their decision. The safety of the nation has been at the forefront of all of our concerns about the Bill. We have listened and we have made concessions. But now we have arrived at a time when a decision has to be made.
  Our approach, as I have said, has been guided by the advice we have received from the security services and from the police. We need the Bill to protect us now. We do so in the context of the Law Lords' judgment. The principle on which the majority of this House is agreed is the need for control orders.
  Of course it is right that Parliament should have scrutiny of this legislation through annual review, but not through a clause that has the effect of destroying the Bill after a period of time in the face of an immediate threat. Of course the protection of civil liberties is the responsibility of any government, and we accept that responsibility.
  Lord Goodhart: My Lords, as the noble and learned Lord the Lord Chancellor has got on to the subject

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  here of the sunset clause, can he explain why on earth it should not be possible for the Government, if they are re-elected, to come back in due time, before 30 March next year, with a new Bill that would be effective to impose control orders and would have been properly debated?
  Lord Falconer of Thoroton: My Lords, it would not be impossible for the Government to do that. But the critical point is that we have made a whole range of very significant concessions on the basis of the detail of this. The idea that an artificial deadline imposed by this House is the right way to deal with the fight against terrorism is—with the greatest respect to every Member of the House, who I have absolutely no doubt has at heart the safety of the nation—wrong. The right way to deal with it is to put before both Houses of Parliament our proposal on fighting terrorism, to listen to what is said about how it may best be amended and then to amend it, which is what we have done. Ultimately, we do need to make decisions as a government about what is the best way to fight terrorism. Of course, each House must put before us its individual views about the best way to do it, but ultimately we must put a proposal, we must address the Commons about it, and it must make a decision on it.
  A time has come when our approach to terrorism requires clear leadership. The Government are providing it; and the Commons have backed the approach that the Government are taking. We cannot go on in this state of indecision. This House may disagree, and it disagrees plainly, in good faith, and on the basis of its judgment. Ultimately, our system requires a decision. There is no issue more important on which a decision is required than the fight against terrorism. Our constitution requires that that decision is left to those in the Commons. They have listened to what we have said; we have made amendments on the basis of it, but ultimately, the decision is theirs; and if we do not accept that the decision is theirs, there is no leadership. As a constitution, we accept the primacy of those in the Commons. Yes, you can disagree with them, and yes, you can ask them to listen again, but you must ultimately accept that the Commons is the prime House in our Parliament. It is difficult, but that is what is required. I beg to move.
  Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu of those Lords Amendments; and do agree with the Commons in their Amendments Nos. 17H to 17M to the words restored
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  to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)
  Lord Thomas of Gresfordrose to move, as an amendment to Motion A, leave out from "House" to end and insert "Do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No.1; do insist on its Amendments Nos.37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do disagree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.
  The noble Lord said: My Lords, the noble and learned Lord the Lord Chancellor talks to us about leadership. His is the Government that led us into war in Iraq.
  Noble Lords: Cheap!
  Lord Thomas of Gresford: My Lords, was it cheap? It is not cheap in British lives. They led us into war in Iraq on information from the security services that turned out to be wrong.
  A Noble Lord: It turned out to be wrong, it was not wrong at the time.
  Noble Lords: Order!
  Lord Thomas of Gresford: My Lords, I will say no more about that; we have had all the arguments that we need.
  Listening to the noble and learned Lord the Lord Chancellor, I thought of a little trip that I took last week into the hills in Wales. Spring is coming; the hedges are quick and the daffodils are growing. The sheep are on the hillside producing life. It is as though this Government are bleating that the sheepdogs are telling them that there are wolves abroad. We have heard that before. I suppose the sheep are all supposed to huddle into a corner of the field and quiver there.
  Lord Harris of Haringey: My Lords—
  Lord Thomas of Gresford: My Lords, I am sorry, I am not taking an intervention at this time.
  Noble Lords: Order!
  Lord Thomas of Gresford: My Lords, all I can say is that the people of this country are not sheep. The people of this country have stood their ground. They have stood their ground when there were bombs from the IRA, from terrorists, going on about us in Manchester, Birmingham and London. The people of

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  this country have stood their ground during the war, when bombs were raining down on this city. I am old enough to remember that standing alongside us on the ground were people from Muslim communities and people from Hindu communities who came to our assistance. They stood with us and they did not flinch. This is not an occasion to flinch from terrorism, as the Government appear to do by building up a climate of fear to get their legislation through. I beg to move.
  Moved, as an amendment to Motion A, leave out from "House" to end and insert "Do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do insist on their insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords Amendments; and do disagree with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17. —(Lord Thomas of Gresford.)
  Lord Kingsland: My Lords, the substance of the Motion concerns three matters, none of which was mentioned by the noble and learned Lord the Lord Chancellor in his opening remarks— these are the judicialisation of non-derogating orders, the balance of probabilities and the role of the DPP. On none of them have the Government given any ground at all, despite the plain fact that the judicial role is totally excluded from most of the manner in which non-derogating control orders are made.
  Instead, the noble and learned Lord the Lord Chancellor chose to deliver to your Lordships' House an ultimatum about the relative power of another place. I recall earlier today the noble Baroness, Lady Scotland, saying that your Lordships would have to bow to the other place. But we have our constitutional duty in this House, which has been given to us by, among other institutions, another place. It would be wholly wrong for us to shirk it tonight.
  There have been many suggestions from the Government Benches here and in another place that, in supporting amendments to the Bill, we on these Benches are in some way encouraging terrorism. We totally repudiate that. What could give greater succour to the terrorists than the permanent suspension of habeas corpus? That is what the Government seek. By refusing to grant us a sunset clause, they are giving themselves an open-ended right never to bring back trial by jury again in a certain class of case. That would be the first great victory of terrorism over our free society.
  The position of the Government is incomprehensible. It is either breathtakingly naive or deeply duplicitous; and we must oppose it tonight.
  Lord Falconer of Thoroton: My Lords, the points made by the noble Lord—
  Noble Lords: Order!
  Lord Lloyd of Berwick: My Lords, I hope that if I say something now it may at least serve to reduce the temperature a little. For my part, I hope that we shall stand firm on the sunset clause. The only argument that I have heard against it is that it would send out the so-called wrong message. That is an argument in which I have never believed. It has absolutely no strength in this context.
  Listening to the noble and learned Lord the Lord Chancellor earlier and on previous occasions. to the noble Baroness, Lady Scotland, and earlier today to the extraordinarily eloquent and persuasive speech by the noble Baroness, Lady Hayman—I should have thought that it was enough to persuade us all, and would have persuaded the Commons could they have heard it—I was reminded of something that I have had the chance to look up in the interval. In his commentaries, Blackstone said,:
  "Mankind will not be reasoned out of the feelings of humanity".
  That is what I think underlay the speech of the noble Baroness, Lady Hayman, and it certainly underlies my attitude to the Bill. It is, for me, the crucial test. It is inhuman to detain people without trial because of something that the Security Service has told the Prime Minister.
  Of course, there is a danger but I believe that it is not as bad as has been made out. I have no recent access to information but I have some experience of the way that the Security Service dealt with matters in the past. I particularly remember the time of the first Iraq war, when dozens or perhaps hundreds of Iraqis were rounded up and put in Pentonville Prison. It was my job then, as chairman of the three wise men, to advise the Home Secretary whether or not they could be let out. In most cases, I am happy to say that they were. There must be better ways of dealing with this problem than this Bill, and that is why, if I can, I shall vote for the sunset clause.
  10.30 p.m.
  Lord Selsdon: My Lords, I had intended to rise to thank the noble Baroness, Lady Hayman, and to remind her that sunset on 31 March next year will be at 18.32 Greenwich Mean Time. However, I realise that I, probably as much as many of your Lordships, have had experience of dealing with countries such as this, and I have no confidence at all in the statement made by the Government that they are moved solely by information from the security services. I lack that confidence and I have a fear that what the Government are doing now is for political reasons based on Chinese whispers and second-hand information. If they have another motive, that is fair by me, but my own knowledge and experience tells me that the Government are wrong.
  Lord Desai: My Lords, the problem concerning the risk of a future terrorist attack is that the past is no guide. The fact that we got the WMD issue or various other issues wrong cannot be used as a sure guide in saying that the security services are always wrong. Without trying to raise the temperature any further. since Second Reading I have been asking myself the following question. Many of us do not like the idea of incarcerating an innocent person, and that is right. There is that risk to the person and his family and so on. On the other hand, there is a risk that one terrorist could escape and cause multiple deaths. How many deaths would noble Lords balance against the incarceration of one or two innocent people before they changed their minds? I do not know. I am saying that I have struck my balance in such a way—
  Lord Goodhart: My Lords—
  Lord Desai: My Lords, perhaps I may finish this argument; it is important and the noble Lord has spoken quite a lot. I am not saying that I know the answer to that question but I am saying that the two things have to be balanced. Some of us think that the loss from death or injury is incalculable compared with the incarceration of an innocent person.
  Of course, people talk about 1,000 years of civil liberties. I do not want to go into the history of that tonight but that is a load of hooey. A lot of peasants at the time of the enclosure movement and a lot of working-class people did not have civil liberties. Those liberties were a recent arrival following the franchise, and it was our movement that fought for the franchise.
  So I do not think that there is a right answer to this matter, but the way in which we answer on this issue will decide which way our calculus goes. I respect those who say, "I would lose x amount of lives for the protection of one person's liberty". On our side, we doubt whether such certainty can be right.
  Lord Goodhart: My Lords, before the noble Lord sits down, does he not agree that the restriction or deprivation of liberty of innocent people is the fastest way to alienate the communities from which they come and that alienating those communities will increase the number of terrorists and the risk of terrorism?
  Lord Desai: My Lords, I do not. Since we are talking about Muslims, the noble Lord's argument suggests that all Muslims are a single, homogeneous whole and that they do not realise what the Government are doing. They can see, however, that some of their own people are going against the tenets of their own religion. They want to isolate them. not go with them. Obviously, it is a sensitive issue for them. I recognise that.
  All of us, however, are citizens of this country. We have to think of our fellow citizens —Muslims, Hindus, Jews and Christians; white, black, yellow or whatever. We must all strike our own balance. I am not saying that I have the right balance. All I am saying is that we on this side take the view that a balance has to be struck on the side of caution in not letting a terrorist
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  escape. Other noble Lords want to go the other way. Well, that is fine. I am not criticising, I am just laying the problem open. It is not going to go away.
  Baroness Hayman: My Lords, when I spoke this morning in support of the sunset clause amendment that I moved, I did so in the belief that the best accommodation of the difficulties before us was to stop arguing about the detailed provisions of the Bill, to accept where we had got to in terms of judicial involvement and balance of probabilities or reasonable suspicion. It was to stop that argument, to recognise that we had to come to a decision and to say that we would leave the Bill as it was, but that it was crucially important to be able to revisit what we had done in a reasonable period of time. I did not believe, and do not believe now, that we have had sufficient time in both Houses to get the best legislation that we should have on this topic. Not that we should not have any legislation on it, because I do not believe that.
  I heard what my noble friends said about how far they had moved in the Bill, and I recognise that they have—both on issues of substance about judicial involvement and on issues of review. I hoped that they would move further. That was the purpose of my amendment. I believed that the amendment that had been put forward before, and that we had asked another place to consider, was an unrealistic timeframe. I sought, if not consensus, some reconciliation between the views of the two Houses. I hoped that the Government would feel able to move on that. They have not. It is a matter of regret to me.
  I said that I felt we were entitled to ask the Commons to think again because this was a constitutional issue. It was not about the detail of the Bill, but the process by which we had legislated. and how we could make amends for that. I still feel that.
  However, I am now faced with another constitutional principle, to which I firmly adhere: the primacy of another place. I have been a Member of another place. I have been a Member of your Lordships' House for longer. It is right and proper. and our responsibility, to ask another place to think again. We did that once on a sunset clause. We have done it twice. I am afraid that I cannot bring myself to support my noble friends in the Lobby in their view that there is no way we can move forward. Neither, however, can I support the Benches opposite. The time has come, even if we believe a wrong decision has been made, to accept it. It is with a heavy heart that I do so.
  I get the sense that those who thought I was wonderful this morning do not think I am so wonderful now. I have to live with that. In politics, we spend a lot of time justifying our inconsistencies. I am trying to justify my inconsistencies in the Lobby today. Things have changed—not because I think that the issues are different. but things have changed because we have fulfilled our constitutional duty of asking another place to think again. It has replied and, for me, that means that I must end my opposition.
  Lord Falconer of Thoroton: My Lords, when people come to this place, they take different views. I cannot

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  help but notice the noble Lord, Lord Baker, a former Home Secretary, who locked up 12 people without any judicial review of any sort during the first Iraq war, now standing out for civil liberties. There are disagreements between us and a lot of disagreements between the House of Commons and the House of Lords. It is splendid of the noble Lord, Lord Baker, suddenly to become the friend of civil liberties.
  Lord Baker of Dorking: My Lords, perhaps I may say to the noble and learned Lord the Lord Chancellor that we were at that time in a state of war. We are not in a state of war tonight. Secondly, the powers that I used, as the noble learned Lord, Lord Lloyd of Berwick, said, were subject to review by his committee and some of the people that I recommended should be interned were released by his committee.
  That is quite separate from the position today. We are not in a state of war and the action that the Government are taking is a suspension of habeas corpus. There is no getting away from that. In certain circumstances, the Government may be entitled to do that. I accept that entirely, but what we have seen during the debates of the past weeks is the erosion of basic liberties of our country. The Government have connived at that and have welcomed that. The Government, through the Prime Minister, are bullying the country and the noble and learned Lord the Lord Chancellor is saying that we have no alternative. There is an alternative, which we have set out very clearly, as has the noble Baroness.
  Lord Falconer of Thoroton: My Lords, I am not saying that there is no alternative, I am saying that your view has changed.
  Noble Lords: Oh!
  Lord Falconer of Thoroton: No, no, no, my Lords. At the time that the noble Lord, Lord Baker, locked up 12 people there was no process that could remotely be described as fair. Indeed, the process was then struck down by the European Court. So it is absolutely ridiculous to describe that process as being fair.
  My point is this. There are disagreements between us—legitimate disagreements. I respect the noble Lord, Lord Baker, for changing his view but, ultimately, there are 650-odd people in the Commons who are accountable to their constituents and who must make the decision about it. They must listen to us, and they have. We have made very significant changes to the Bill as regards civil liberties and the way that it operates. You could not possibly say that the Commons has not listened. Ultimately, do we know best?
  Noble Lords: Yes!
  Lord Falconer of Thoroton: My Lords, I hear "yeses". Is that not the issue with which we are confronted? Ultimately, a decision must be made and I respectfully suggest to the House that we must bow to the view of the Commons, because it is the prime
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  House. Especially in an issue such as national security, it is impossible to take the view that we know best, especially remembering that the Government have had the benefit of advice from the security services and the police.
  With diffidence, I raise this question. Would a Conservative or Liberal Democrat government have rejected the advice that they had received from the security services?
  The Earl of Onslow: My Lords, have the security services told the Government that the security of the country will be at risk if we have a sunset clause?
  Lord Falconer of Thoroton: No, my Lords, they have not. However, they have said that they believe the control orders we are proposing are necessary to protect national security. In the light of that, we take the view that the right course is to put the orders on the statute book, but not do so with a self-destruct mechanism after 12 months. There is the choice.
  We have put our views. They have been listened to by the Commons. They have accepted some of them. but not all. Ultimately, there needs to be clarity about what is being done about national security. I earnestly ask Members of this House to accept what the Commons have said and to accept that they have listened. But ultimately a decision has to be made, and the decision is theirs, not ours. They have a clear view about what is required for national security.
  Earl Ferrers: My Lords, will the noble and learned Lord the Lord Chancellor help me a little? We all accept the primacy of another place, and the fact that your Lordships usually have to agree to its views. What worries me is that, if the Government could have moved and accepted the sunset clause, that would have enabled them to get their Bill. What also worries me is that the Bill the Commons have had to consider is totally different from what it was when it left another place, and they have only had about three hours to consider it. That is bad. If the noble and learned Lord were able to go thus far and say "All right, we will agree a sunset clause", another place would be able to consider the Bill in the fullness of time and with its proper jurisdiction, as opposed simply to agreeing to what has been passed down from your Lordships' House to the Commons.
  Lord Falconer of Thoroton: My Lords, this House suggested pre-judicial scrutiny before a non-derogating order was made, and the House of Commons accepted that. This House suggested certification to ensure that prosecution was properly considered before an order was made, and the other House accepted it. This House suggested different provisions in relation to the rules. The Commons accepted that as well. The noble Earl, Lord Ferrers, is saying "There is one more thing we want, namely a sunset clause". The House of Commons has considered that on two separate occasions, and has said no.

  1009
  We cannot say that the House of Commons has not listened to what has been said. We must accept that we cannot have everything we ask for. Although the House of Commons has given 80 per cent of what the noble Earl has asked for, it is neither realistic nor sensible to say that 100 per cent is required in every case. There must be a decision, and, until this moment, the noble Earl, Lord Ferrers, has always accepted that the decision is with the Commons.
  Lord Thomas of Gresford: My Lords, the noble Lord, Lord Desai, said that "history is hooey". What does that say for the people who have fought and died for freedom, liberty and the rule of law in this country?
  We accept the need for control orders, as I said at length this morning. We say that those orders should be granted by a judge in a proper judicial process, with all the safeguards of a fair trial that the common law of this country has built into its proceedings? The Government are seeking to turn back history here—a proud history—and to introduce something that the country has not seen since the middle of the 18th century. That is not acceptable, and I beg to seek the opinion of the House.
  10.54 p.m.
  On Question, Whether the said amendment (Al) shall be agreed to?
  Their Lordships divided: Contents, 182; Not-Contents, 111.

  Division No. 6

  CONTENTS

  Ackner, L.

  Cumberlege, B.

  Addington, L.

  Denham, L.

  Ahmed, L.

  Dholakia, L.

  Alliance, L.

  Dixon-Smith, L.

  Ampthill, L.

  Donaldson of Lymington, L.

  Anelay of St Johns, B.

  Dykes, L.

  Arran, E.

  Eccles of Moulton, B.

  Ashcroft, L.

  Eden of Winton, L.

  Astor, V.

  Elles, B.

  Astor of Hever. L.

  Elton, L.

  Avebury, L.

  Erroll, E.

  Baker of Dorking, L.

  Falkland, V.

  Barker, B.

  Falkner of Margravine, B.

  Beaumont of Whitley, L.

  Fearn, L.

  Bell, L.

  Ferrers. E.

  Blackwell, L.

  Finlay of Llandaff, B.

  Bonham-Carter of Yarnbury, B.

  Fookes, B.

  Bowness, L.

  Forsyth of Drumlean, L.

  Bradshaw, L.

  Fowler, L.

  Bridgeman, V.

  Freeman, L.

  Brittan of Spennithorne, L.

  Freyberg, L.

  Brooke of Sutton Mandeville, L.

  Garden, L.

  Brougham and Vaux, L.

  Gardner of Parkes, B.

  Buscombe, B.

  Garel-Jones, L.

  Byford, B.

  Geddes, L.

  Carlisle of Bucklow, L.

  Glenarthur, L.

  Chalker of Wallasey, B.

  Glentoran, L.

  Clement-Jones, L.

  Goodhart, L.

  Cope of Berkeley, L.

  Goschen, V.

  Courtown, E.

  Greaves, L.

  Craigavon, V.

  Griffiths of Fforestfach, L.

  Crickhowell, L.

  Hamwee, B.

  1010

  Hanham, B.

  O'Cathain, B.

  Hanningfield, L.

  Oakeshott of Seagrove Bay, L.

  Harris of Richmond, B.

  Onslow, E.

  Hayhoe, L.

  Park of Monmouth, B.

  Henley, L.

  Pearson of Rannoch, L.

  Higgins, L.

  Peyton of Yeovil, L.

  Hodgson of Astley Abbotts, L.

  Phillips of Sudbury, L.

  Hogg, B.

  Rawlings, B.

  Home, E.

  Razzall, L.

  Hooper, B.

  Redesdale, L.

  Howard of Rising, L.

  Rennard, L.

  Howe, E.

  Renton, L.

  Howe of Aberavon, L.

  Roberts of Conwy, L.

  Howe of Idlicote, B.

  Roberts of Llandudno, L.

  James of Holland Park, B.

  Rodgers of Quarry Bank, L.

  Jenkin of Boding, L.

  Rogan, L.

  Kalms, L.

  Roper, L. [Teller]

  Kennedy of The Shaws. B.

  Rotherwick, L.

  Kimball, L.

  Russell-Johnston, L.

  King of Bridgwater, L.

  Ryder of Wensum, L.

  Kingsland, L.

  Saatchi, L.

  Knight of Collingtree, B.

  St John of Fawsley, L.

  Laing of Dunphail, L.

  Saltoun of Abernethy, Ly.

  Laird, L.

  Scott of Needham Market, B.

  Lamont of Lerwick, L.

  Seccombe, B.[Teller]

  Lang of Monkton, L.

  Selborne, E.

  Linklater of Butterstone, B.

  Selkirk of Douglas, L.

  Liverpool, E.

  Selsdon, L.

  Livsey of Talgarth, L.

  Sharp of Guildford, B.

  Lloyd of Berwick, L.

  Shaw of Northstead, L.

  Lucas, L.

  Shutt of Greetland, L.

  Ludford, B.

  Smith of Clifton, L.

  Luke, L.

  Steel of Aikwood, L.

  Lyell, L.

  Sterling of Plaistow, L.

  McColl of Dulwich, L.

  Stewartby, L.

  Maclennan of Rogart, L.

  Stoddart of Swindon, L.

  McNally, L.

  Strathclyde, L.

  Maddock, B.

  Sutherland of Houndwood, L.

  Maginnis of Drumglass, L.

  Taverne, L.

  Mancroft, L.

  Thatcher, B.

  Mar and Kellie, E.

  Thomas of Gresford, L.

  Marlesford, L.

  Thomas of Swynnerton, L.

  Mayhew of Twysden, L.

  Thomes of Walliswood, B.

  Michie of Gallanach, B.

  Thomas of Monifieth, L.

  Miller of Chilthome Domer, B.

  Tope, L.

  Miller of Hendon, B.

  Tordoff, L.

  Monro of Langholm. L.

  Trumpington, B.

  Monson, L.

  Ullswater, V.

  Montrose, D.

  Vallance of Tummel, L.

  Moore of Lower Marsh, L.

  Waddington, L.

  Morris of Bolton, B.

  Wakeham, L.

  Murton of Lindisfarne, L.

  Waldegrave of North Hill, L.

  Neuberger, B.

  Wallace of Saltaire, L.

  Newby, L.

  Walmsley, B.

  Newton of Braintree, L.

  Watson of Richmond, L.

  Northbrook, L.

  Wedderburn of Charlton, L.

  Northesk, E.

  Wilcox, B.

  Northover, B.

  Williams of Crosby, B.

  Norton of Louth, L.

  Windlesham, L.

  NOT-CONTENTS

  Alli, L.

  Christopher, L.

  Andrews, B.

  Clarke of Hampstead, L.

  Ashton of Upholland, B.

  Corbett of Castle Vale, L.

  Bach, L.

  Crawley, B.

  Bassam of Brighton, L.

  Davies of Oldham, L.[Teller]

  Bernstein of Craigweil, L.

  Dean of Thornton-le-Fylde, B.

  Billingham, B.

  Desai, L.

  Bragg, L.

  Donoughue, L.

  Brett, L.

  Drayson, L.

  Brooke of Alverthorpe, L.

  Eatwell, L.

  Brookman, L.

  Elder, L.

  Campbell-Savours, L.

  Evans of Parkside, L.

  Carter, L.

  Evans of Temple Guiting, L.

  Carter of Coles, L.

  1011

  Falconer of Thoroton. L. (Lord Chancellor)

  Macdonald of Tradeston, L.

  Farrington of Ribbleton, B.

  McIntosh of Haringey, L.

  Faulkner of Worcester, L.

  MacKenzie of Culkein, L.

  Filkin, L.

  Mackenzie of Framwellgate, L.

  Gale. B.

  McKenzie of Luton, L.

  Gavron, L.

  Massey of Darwen, B.

  Gibson of Market Rasen, B.

  Maxton, L.

  Giddens, L.

  Mitchell, L.

  Gilbert, L.

  Morgan of Drefelin, B.

  Golding, B.

  Morgan of Huyton, B.

  Goldsmith, L.

  Morris of Aberavon, L.

  Goudie, B.

  Pendry, L.

  Gould of Brookwood, L.

  Plant of Highfield, L.

  Gould of Potternewton, B.

  Ponsonby of Shulbrede, L.

  Graham of Edmonton, L.

  Ramsay of Cartvale, B.

  Greengross, B.

  Randall of St, Budeaux, L.

  Griffiths of Burry Port, L.

  Rendell of Babergh, B.

  Grocott, L. [Teller]

  Richard, L.

  Harris of Haringey, L.

  Rooker, L.

  Harrison, L.

  Rosser, L.

  Hart of Chilton, L.

  Rowlands, L.

  Haskel, L.

  Royall of Blaisdon, B.

  Haworth, L.

  Sainsbury of Turville, L.

  Hayman, B.

  Sawyer, L.

  Henig, B.

  Scotland of Asthal, B.

  Hilton of Eggardon, B.

  Simon, V.

  Hogg of Cumbernauld, L.

  Snape, L.

  Hollis of Heigham, B.

  Stone of Blackheath, L.

  Howells of St. Davids, B.

  Symons of Vernham Dean, B.

  Hoyle, L.

  Thomas of Macclesfield, L.

  Hughes of Woodside, L.

  Thornton, B.

  Hunt of Chesterton, L.

  Tomlinson, L.

  Hunt of Kings Heath, L.

  Triesman, L.

  Janner of Braunstone, L.

  Truscott, L.

  Jay of Paddington, B.

  Tunnicliffe, L.

  Jones, L.

  Turnberg, L.

  Layard, L.

  Wall of New Barnet, B.

  Leitch, L.

  Warner, L.

  Lipsey, L.

  Whitaker, B.

  Listowel, E.

  Whitty, L.

  Lockwood, B.

  Williams of Elvel, L.

  McDonagh, B.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  11 P.m.

  MOTION B
  (LORDS AMENDMENTS 27, 31, 32)
  Lord Falconer of Thorotonrose to move, That this House do not insist on its Amendments Nos, 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C and 27D in lieu thereof.
  The noble and learned Lord said: My Lords, I shall treat this as speaking to all four Motions. We have spoken to them in detail. This Motion deals with the review clause. The positions have not changed. All of the remarks that I made at the beginning apply. Therefore, I beg to move Motion B, which deals with Lords Amendments Nos. 27, 31 and 32.
  Moved, That this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and
  1012
  do agree with the Commons in their Amendments Nos. 27C and 27D in lieu thereof.— (Lord Falconer of Thoroton.)
  Lord Kingslandrose to move, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments 27, 31 and 32 and do disagree with the Commons in their Amendments Nos. 27C and 27D in lieu thereof".
  The noble Lord said: My Lords, I beg to move Amendment B1 as an amendment to Motion B. I shall be uncompromisingly telegraphic in my remarks. I wish to speak to Motions B and C at the same time. Your Lordships might be forgiven for believing that your Lordships have just voted on the sunset clause. In fact, your Lordships have voted on the judicial process clause.
  We now come to the remaining two clauses. The first concerns the role of the Privy Counsellors and the second concerns the sunset clause. As I have had the opportunity to say earlier in the day, the two clauses are inextricably linked. The one ineluctably follows from the other.
  Moved, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments Nos. 27, 31 and 32 and do disagree with the Commons in their Amendments Nos. 27C and 27D in lieu thereof".—(Lord Kingsland.)
  11.2 p.m.
  On Question, Whether the said amendment (B1) shall he agreed to?
  Their Lordships divided: Contents, 178; Not-Contents, 110.

  Division No. 7

  CONTENTS

  Ackner, L.

  Crickhowell, L.

  Addington, L.

  Cumberlege, B.

  Ahmed, L.

  Denham, L.

  Alliance, L.

  Dholakia, L.

  Ampthill, L.

  Dixon-Smith, L.

  Anelay of St Johns, B.

  Donaldson of Lymington, L.

  Arran, E.

  Dykes, L.

  Ashcroft, L. Astor, V.

  Eccles of Moulton, B.

  Astor of Hever, L.

  Eden of Winton, L.

  Avebury, L.

  Elles, B.

  Baker of Dorking, L.

  Elton, L.

  Barker. B.

  Falkland, V.

  Bell, L.

  Falkner of Margravine, B.

  Blackwell, L.

  Fearn, L.

  Bonham-Carter of Yarnbury, B.

  Ferrers, E.

  Bowness, L.

  Finlay of Llandaff, B.

  Bradshaw, L.

  Fookes, B.

  Bridgeman, V.

  Forsyth of Drumlean, L.

  Brittan of Spennithorne, L.

  Fowler, L.

  Brooke of Sutton Mandeville, L.

  Freeman, L.

  Brougham and Vaux, L.

  Garden, L.

  Buscombe, B.

  Gardner of Parkes, B.

  Byford, B.

  Garel-Jones, L.

  Carlisle of Bucklow, L.

  Geddes, L.

  Chalker of Wallasey, B.

  Glenarthur, L.

  Clement-Jones, L.

  Glentoran, L.

  Cope of Berkeley, L. [Teller]

  Goodhart, L.[Teller]

  Craigavon, V.

  Goschen, V.

  1013

  Greaves, L.

  Northover, B.

  Griffiths of Fforestfach, L.

  Norton of Louth, L.

  Hamwee, B.

  O'Cathain, B.

  Hanham, B.

  Oakeshott of Seagrove Bay, L.

  Hanningfield, L.

  Onslow, E.

  Harris of Richmond, B.

  Park of Monmouth, B.

  Hayhoe, L.

  Pearson of Rannoch, L.

  Henley, L.

  Peyton of Yeovil, L.

  Higgins, L.

  Phillips of Sudbury, L.

  Hodgson of Astley Abbotts, L.

  Rawlings, B.

  Hogg, B.

  Razzall, L.

  Home, E.

  Redesdale, L.

  Hooper, B.

  Rennard, L.

  Howard of Rising, L.

  Renton, L.

  Howe, E.

  Roberts of Conwy, L.

  Howe of Aberavon, L.

  Roberts of Llandudno, L.

  Howe of Idlicote, B.

  Rodgers of Quarry Bank, L.

  James of Holland Park, B.

  Rogan, L.

  Jenkin of Roding, L.

  Roper, L.

  Kalms, L.

  Rotherwick, L.

  Kennedy of The Shaws, B.

  Russell-Johnston, L.

  Kimball, L.

  Ryder of Wensum, L.

  King of Bridgwater, L.

  Saatchi, L.

  Kingsland, L.

  St John of Fawsley, L.

  Knight of Collingtree, B.

  Saltoun of Abernethy, Ly.

  Laing of Dunphail, L.

  Scott of Needham Market, B.

  Laird, L.

  Seccombe, B.

  Lamont of Lerwick, L.

  Selborne, E.

  Lang of Monkton, L.

  Selkirk of Douglas, L.

  Linklater of Butterstone, B.

  Selsdon, L.

  Liverpool, E.

  Sharp of Guildford, B.

  Livsey of Talgarth, L.

  Shaw of Northshead, L.

  Lloyd of Berwick, L.

  Shutt of Greetland, L.

  Lucas, L.

  Smith of Clifton, L.

  Ludford, B.

  Steel of Aikwood, L.

  Luke, L.

  Sterling of Plaistow, L.

  Lyell, L.

  Stewartby, L.

  McColl of Dulwich, L.

  Stoddart of Swindon, L.

  Maclennan of Rogart, L.

  Strathclyde, L.

  McNally, L.

  Sutherland of Houndwood, L.

  Maddock, B.

  Taverne, L.

  Maginnis of Drumglass, L.

  Thatcher, B.

  Mancroft, L.

  Thomas of Gresford, L.

  Mar and Kellie, E.

  Thomas of Swynnerton, L.

  Marlesford, L.

  Thomas of Walliswood, B.

  Mayhew of Twysden, L.

  Thomson of Monifieth, L.

  Michie of Gallanach, B.

  Tope, L.

  Miller of Chilthome Domer, B.

  Tordoff, L.

  Miller of Hendon, B.

  Trumpington, B.

  Monro of Langholm, L.

  Ullswater, V.

  Monson, L.

  Vallance of Tummel, L.

  Montrose, D.

  Waddington, L.

  Moore of Lower Marsh, L.

  Wakeham, L.

  Morris of Bolton, B.

  Waldegrave of North Hill, L.

  Murton of Lindisfarne, L.

  Wallace of Saltaire, L.

  Neuberger, B.

  Walmsley, B.

  Newby, L.

  Watson of Richmond, L.

  Newton of Braintree, L.

  Wedderburn of Charlton, L.

  Northbrook, L.

  Wilcox, B.

  Northesk, E.

  Williams of Crosby, B.

  NOT-CONTENTS

  Alli, L.

  Carter of Coles, L.

  Andrews, B.

  Clarke of Hampstead, L.

  Ashton of Upholland, B.

  Corbett of Castle Vale, L.

  Bach, L.

  Crawley, B.

  Bassam of Brighton, L.

  Davies of Oldham, L.[Teller]

  Bernstein of Craigweil, L.

  Dean of Thornton-le-Fylde, B.

  Billingham, B.

  Desai, L.

  Bragg, L.

  Donoughue, L.

  Brett, L.

  Drayson, L.

  Brooke of Alverthorpe, L.

  Eatwell, L.

  Brookman, L.

  Elder, L.

  Campbell-Savours, L.

  Evans of Parkside, L.

  Carter, L.

  Evans of Temple Guiting, L.

  1014

  Falconer of Thoroton, L. (Lord Chancellor)

  McIntosh of Hudhall, B.

  Farrington of Ribbleton, B.

  MacKenzie of Culkein, L.

  Faulkner of Worcester, L.

  Mackenzie of Luton, L.

  Filkin, L.

  Massey of Darwen, B.

  Gale, B.

  Maxton, L.

  Gavron, L.

  Mitchell, L.

  Gibson of Market Rasen, B.

  Morgan of Drefelin, B.

  Giddens. L.

  Morgan of Huyton, B.

  Gilbert, L.

  Morris of Aberavon, L.

  Golding, B.

  Pendry, L.

  Goldsmith, L.

  Plant of Highfield, L.

  Goudie, B.

  Ponsonby of Shulbrede, L.

  Gould of Brookwood, L.

  Ramsay of Cartvale, B.

  Gould of Potternewton, B.

  Randall of St. Budeaux, L.

  Graham of Edmonton, L.

  Rendell of Babergh, B.

  Griffiths of Burry Port, L.

  Richard, L.

  Grocott, L. [Teller]

  Rooker, L.

  Harris of Haringey, L.

  Rosser, L.

  Harrison, L.

  Rowlands, L.

  Hart of Chilton, L.

  Royall of Blaisdon, B.

  Haskel, L.

  Sainsbury of Turville, L.

  Haworth, L.

  Sawyer, L.

  Hayman, B.

  Scotland of Asthal, B.

  Henig, B.

  Sewel, L.

  Hilton of Eggardon, B.

  Simon, V,

  Hogg of Cumbemauld. L.

  Snape, L.

  Hollis of Heigham, B.

  Stone of Blackheath, L.

  Howells of St.Davids, B.

  Symons of Vernham Dean, B.

  Hoyle, L.

  Thomas of Macclesfield, L.

  Hughes of Woodside. L.

  Thornton, B.

  Hunt of Chesterton, L.

  Tomlinson, L.

  Hunt of Kings Heath, L.

  Triesman, L.

  Janner of Braunstone, L.

  Truscott, L.

  Jay of Paddington. B.

  Tunnicliffe, L.

  Jones, L.

  Turnberg, L.

  Layard, L.

  Wall of New Barnet, B.

  Leitch, L.

  Warner, L.

  Lipsey, L.

  Whitaker, B.

  Lockwood, B.

  Whitty, L.

  McDonagh, B.

  Williams of Elvel, L.

  Macdonald of Tradeston, L.

  Winston, L.

  McIntosh of Haringey, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  11.12 p.m.

  MOTION C
  (LORDS AMENDMENT 33D)
  Lord Falconer of Thorotonrose to move, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof.
  The noble and learned Lord said: My Lords, I beg to move Motion C on Lords Amendment No. 33. This is the sunset clause. I do not intend to make a speech; we know what the issues are.
  Moved, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof.—(Lord Falconer of Thoroton.)
  Lord Kingslandrose to move Amendment C1, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof."

  1015
  The noble Lord said: My Lords, I have already spoken to Motion C1, I beg to move.
  Moved, as amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No, 33D and do disagree with the Commons in their Amendments Nos. 33A to 33C in lieu thereof,—(Lord Kingsland.)
  11.14 P.m.
  On Question, Whether the said amendment shall be agreed to?
  Their Lordships divided: Contents, 192; Not-Contents, 107.

  Division No,8

  CONTENTS

  Ackner, L.

  Freyberg, L.

  Addington, L.

  Garden, L.

  Ahmed, L.

  Gardner of Parkes, B.

  Alliance, L.

  Garel-Jones, L.

  Ampthill, L.

  Geddes, L.

  Anelay of St Johns, B.

  Glenarthur, L.

  Arran, E.

  Glentoran, L.

  Ashcroft, L.

  Goodhart, L.

  Astor, V.

  Goschen, V.

  Astor of Hever, L.

  Greaves, L.

  Avebury, L.

  Greengross, B.

  Baker of Dorking, L.

  Griffiths of Fforestfach, L.

  Barker, B.

  Hamwee, B.

  Bell, L.

  Hanham, B.

  Blackwell, L.

  Hanningfield, L.

  Bledisloe, V.

  Harris of Richmond, B.

  Bonham-Carter of Yarnbury, B.

  Hayhoe, L.

  Bowness, L.

  Henly, L.

  Bradshaw, L.

  Higgins, L.

  Bridgeman, V.

  Hodgson of Astley Abbotts, L.

  Brittan of Spennithorne, L.

  Hogg, B.

  Brooke of Sutton Mandeville,L.

  Home, E.

  Brougham and Vaux, L.

  Hooper, B.

  Buscombe, B.

  Howard of Rising, L.

  Byford, B.

  Howe, E.

  Carlisle of Bucklow, L.

  Howe of Aberavon, L.

  Chalker of Wallasey, B.

  Howe of Idlicote, B.

  Chorley, L.

  James of Holland Park, B.

  Clement-Jones, L.

  Jenkin of Roding, L.

  Cobbold, L.

  Joffe, L.

  Cope of Berkeley, L. [Teller]

  Kalms, L.

  Craigavon, V.

  Kennedy of The Shaws, B.

  Crickhowell, L.

  Kimball, L.

  Cumberlege, B.

  King of Bridgwater, L.

  Dahrendorf, L.

  Kingsland, L.

  Denham, L.

  Knight of Collingtree, B.

  Dholakia, L. [Teller]

  Laing of Dunphail, L.

  Dixon-Smith, L.

  Laird, L.

  Donaldson of Lymington, L.

  Lamont of Lerwick, L.

  D'Souza, B.

  Lang of Monkton, L.

  Dykes, L.

  Linklater of Butterstone, B.

  Eccles of Moulton, B.

  Listowel, E.

  Eden of Winton, L.

  Liverpool, E.

  Elles, B.

  Livsey of Talgarth, L.

  Elton, L.

  Lloyd of Berwick, L.

  Falkland, V.

  Lucas, L.

  Falkner of Margravine, B.

  Ludford, B.

  Fearn, L.

  Luke, L.

  Ferrers, E.

  Lyell, L.

  Finlay of Llandaff, B.

  McColl of Dulwich, L.

  Fookes, B.

  Maclennan of Rogart, L.

  Forsyth of Drumlean, L.

  McNally, L.

  Fowler, L.

  Maddock, B.

  Freeman, L.

  Maginnis of Drumglass, L.

  1016

  Mancroft, L.

  Ryder of Wensum, L.

  Mar and Kellie, E.

  Saatchi, L.

  Marlesford, L.

  St John of Fawsley, L.

  Mayhew of Twysden, L.

  Saltoun of Abernethy, Ly.

  Michie of Gallanach, B.

  Scott, of Needham Market, B.

  Miller of Chilthorne Domer, B.

  Seccombe, B.

  Miller of Hendon, B.

  Selborne, E.

  Monro of Langholm, L.

  Selkirk of Douglas, L.

  Monson, L.

  Selsdon, L.

  Montrose, D.

  Sharp of Guildford, B.

  Moore of Lower Marsh, L.

  Shaw of Northstead, L.

  Morris of Bolton, B.

  Sheldon, L.

  Murton of Lindisfarne, L.

  Shutt of Greetland, L.

  Neuberger, B.

  Smith of Clifton, L.

  Newby, L.

  Steel of Aikwood, L.

  Newton of Braintree, L.

  Sterling of Plaistow, L.

  Northbrook, L.

  Stern, B.

  Northesk, E.

  Stewartby, L.

  Northover, B.

  Stoddart of Swindon, L.

  Norton of Louth, L.

  Strathclyde, L.

  Oakeshott of Seagrove Bay, L.

  Sutherland of Houndwood, L.

  O'Cathain, B.

  Taverne, L.

  O'Neill of Bengarve, B.

  Thatcher, B.

  Onslow, E.

  Thomas of Gresford, L.

  Owen, L.

  Thomas of Swynnweton, L.

  Park of Monmouth, B.

  Thomas of Walliswood, B.

  Pearson of Rannoch, L.

  Thomson of Monifieth, L.

  Peyton of Yeovil, L.

  Tope, L.

  Phillips of Sudbury, L.

  Tordoff, L.

  Rawlings, B.

  Trumpington, B.

  Razzall, L.

  Ullswater, V.

  Redesdale, L.

  Vallance of Tummel, L.

  Rennard, L.

  Waddington, L.

  Renton, L.

  Wakeham, L.

  Richardson of Calow, B.

  Waldegrave of North Hill, L.

  Roberts of Conwy, L.

  Wallace of Saltaire, L.

  Roberts of Llandudno, L.

  Walmsley, B.

  Rodgers of Quarry Bank, L.

  Watson, of Richmond, L.

  Rogan, L.

  Wedderburn of Charlton, L.

  Roper, L.

  Wilcox, B.

  Rotherwick, L.

  Williams of Crosby, B.

  Russell-Johnston, L.

  Williamson of Horton, L.

  NOT-CONTENTS

  Alli, L.

  Gavron, L.

  Andrews, B.

  Gibson, of Market Rasen, B.

  Ashton of Upholland, B.

  Giddens, L.

  Bach. L.

  Gilbert, L.

  Bassam of Brighton. L.

  Golding, B.

  Bernstein of Craigweil, L.

  Goldsmith, L.

  Billingham, B.

  Goudie, B.

  Bragg, L.

  Gould of Brookwood, L.

  Brett, L.

  Gould of Potternewton, B.

  Brooke of Alverthorpe, L.

  Graham of Edmonton, L.

  Brookman, L.

  Griffiths, of Burry Port, L.

  Campbell-Savours, L.

  Grocott, L. [Teller]

  Carter, L.

  Harris of Haringey, L.

  Carter of Coles, L.

  Harrison, L.

  Clarke of Hampstead, L.

  Hart of Chilton, L.

  Corbett of Castle Vale, L.

  Haskel, L.

  Crawley, B.

  Haworth, L.

  Davies of Oldham, L. [Teller]

  Henig, B.

  Dean of Thornton-le-Fylde, B.

  Hilton of Eggardon, B.

  Desai, L.

  Hogg of Cumbernauld, L.

  Donoughue, L.

  Hollis of Heigham, B.

  Drayson, L.

  Howells of St. Davids, B.

  Elder, L.

  Hoyle, L.

  Evans of Parkside, L.

  Hughes of Woodside, L.

  Evans of Temple Guiting, L.

  Hunt of Chesterton, L.

  Falconer of Thoroton, L. (Lord Chancellor)

  Hunt of Kings Heath, L.

  Farrington of Ribbleton, B.

  Janner of Braunstone, L.

  Faulkner of Worcester, L.

  Jay of Paddington, B.

  Filkin, L.

  Jones, L.

  Gale, B.

  Layard, L.

  Gale, B.

  Leitch, L.

  1017

  Lipsey, L.

  Rosser, L.

  Lockwood, B.

  Rowlands, L.

  McDonagh, B.

  Royall of Blaisdon, B.

  Macdonald of Tradeston, L.

  Sainsbury of Turville, L.

  McIntosh of Haringey, L.

  Sawyer, L.

  McIntosh of Hudnall, B.

  Scotland, of Asthal, B.

  MacKenzie of Culkein, L.

  Simson, V.

  Mackenzie of Framwellgate, L.

  Snape, L.

  McKenzie of Luton, L.

  Stone of Blackheath, L.

  Massey of Darwen, B.

  Symons of Vernham Dean, B.

  Maxton, L.

  Thomas of Macclesfield, L.

  Mitchell, L.

  Thornton, B.

  Morgan of Drefelin, B.

  Tomlinson, L.

  Morgan of Huyton, B.

  Triesman, L.

  Morris of Aberavon, L.

  Truscott, L.

  Pendry, L.

  Tunnicliffe, L.

  Plant of Highfield, L.

  Turnberg, L.

  Ponsonby of Shulbrede, L.

  Wall of new Barnet, B.

  Ramsay of Cartvale, B.

  Warner, L.

  Randall of St. Budeaux, L.

  Whitaker, B.

  Rendell of Babergh, B.

  Whitty, L.

  Richard, L.

  Williams of Elvel, L.

  Rooker, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended agreed to.

  MOTION D
  (LORDS AMENDMENTS NOS. 38, 39, 40)
  Lord Falconer of Thorotonrose to move, That this House do not insist on Amendments Nos. 38, 39 and 40 in respect of which the Commons have insisted on their disagreement, do agree with the Commons in
  1018
  their Amendments Nos. 42A and 42B on which the Commons have insisted; and do not insist on their Amendment Nos. 42E to which the Commons have disagreed for their reason numbered 42F.
  The noble and learned Lord said: My Lords, this is about the rules and I do not believe that there is any dispute about it. I beg to move.
  Moved, That this House do not insist on Amendments Nos. 38, 39 and 40 in respect of which the Commons have insisted on their disagreement, do agree with the Commons in their Amendments No. 42A and 42B on which the Commons have insisted: and do not insist on their Amendment No. 42E to which the Commons have disagreed for their reason numbered 42F.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.
  Lord Grocott: My Lords, we are all familiar by now with the short interregnum as we send these proceedings and our decisions back to the democratic House, to see what judgment they make on behalf of their constituents and the national interest. I assume that as soon as the business returns here, we shall put an announcement on the Annunciator in the normal way. It is unpredictable quite how long it will take, of course. I beg to move that the House do now adjourn during pleasure.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 11.26 p.m. to 5 a.m.]
  [For continuation of proceedings, see Part 2.]
  Part 2
  5 a.m.
  The Deputy Speaker (Lord Brougham and Vaux): My Lords, I have to announce that in Divisions 1 to 3, and 6 and 7 earlier this evening, the number voting "Not Content" should in each case be increased by one.

  COMMONS AMENDMENTS AND REASONS
  [The page and line refer to HL Bill 34 as first printed fir the Lords.]A
  A message was brought from the Commons, That they do not insist on certain amendments to which the Lords have disagreed and propose amendments in lieu to which they desire the agreement of your Lordships; they insist on their amendments to the words to be restored to the Bill, to which they desire the agreement of your Lordships; they insist on their amendments in lieu, to which they desire the agreement of your Lordships; they insist on their disagreement to certain other Lords amendments; and they insist on the amendments in lieu thereof to which they desire the agreement of your Lordships; they insist on certain amendments to Lords amendments disagreed to by the Lords; they insist on their disagreement to certain amendments to Lords amendments; they insist on their disagreement to certain other Lords amendments and Lords amendments in lieu.
  Lord Falconer of Thoroton: My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.
  Moved, That the Commons reasons and amendments be considered forthwith.—(Lord Falconer of Thoroton.)
  On Question. Motion agreed to.

  MOTION A
  Lord Falconer of Thorotonrose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.
  The noble and learned Lord said: My Lords, Motion A covers Lords Amendments Nos. 1, 8, 12, 13, 15, 17, 22, 28 and 37. The Marshalled List reveals the
  1020
  position to be exactly as it was the previous time we considered these matters. The Liberal Democrats and the Conservatives propose nothing except what has been proposed by the House before. Therefore, if the House supports that approach, no progress whatever is being made on the issues.
  We know that the three issues are in essence: burden of proof; whether there should be a committee of Privy Councillors or an independent reviewer; and whether there should be a sunrise clause—
  Noble Lords: Sunset.
  Lord Falconer of Thoroton: Sunset clause, my Lords. It will soon be sunrise!
  We all know that the purpose and role of the House is to scrutinise legislation; not to block it. On the three issues that I have identified the Liberal Democrats and the Conservatives in this House will not engage. On a significant number of major issues in relation to the Bill the Government have listened and proposed substantial changes in another place. I went through the examples on the previous occasion. Perhaps as many as 80 per cent of this House's requests have been met.
  But now we are in a different situation. In the eight years that I have been in this House I have never seen a situation where a Bill of this importance was blocked by this House on the three issues that I have identified. What has happened is that the House believes, despite the clearest possible message from the Commons, that the view this House has expressed on the three issues must be complied with.
  It goes further than that. Unless agreement is reached by the Commons to those three issues, this House is saying that we will block a piece of legislation, the urgency of which is apparent to everyone and has been accepted by the Commons; and the content of which significantly affects the national interest. This House may be right; it may be wrong, but there is absolutely no doubt that when there is such a disagreement this House will give way to the Commons. It is a view that has informed the Liberal Democrats always. It is a view that has informed the approach of the Conservatives always. I am quite unable to understand why there has suddenly been a change in the approach of this House to issues such as this.
  The reason why we give way to the Commons is that the Commons are the democratically elected Chamber; unlike this place, every single Member of the Commons is accountable to their constituency for what they are doing about national security. However little we like it, ultimately we have to give way to the Commons. Something is happening that is unusual and different about this Bill. I respectfully ask the House that the time has come to give way and accept the view of the House of Commons. I beg to move.
  Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. I; do not insist on its Amendments Nos. 37Q to 37T in lieu of

  1021
  Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.—(Lord Falconer of Thoroton.)
  Lord Goodhartrose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do disagree with the Commons in their Amendment No. 37V in lieu.
  The noble Lord said: My Lords, the noble and learned Lord the Lord Chancellor has said that the Government have given us 80 per cent of what we asked for; the figure I would suggest would be more like 8 per cent. I have never in my experience now for some years in your Lordships' House found ourselves debating at five o'clock in the morning a ping-pong which has been thrown back at us at three o'clock in the morning by the House of Commons. This is taking place in front of full Benches at five o'clock in the morning. There is something quite extraordinary about that. I believe that it is because this is seen by those of us on these Benches and on the Conservative Benches as a constitutional issue of great importance.
  The noble and learned Lord the Lord Chancellor said there were three issues involved here: the burden of proof, the committee of Privy Counsellors and the sunset clause. Let me remind him that there is another equally or perhaps even more important issue—that judges and not the Home Secretary should make control orders. We accept, as we have always said, that control orders are necessary at least for the time being and that we will assist as we can in achieving a control order system that is fair and just and effective. But it is surely a constitutional issue of the utmost importance that decisions which are restrictive of the liberty of the individual should he taken by the judiciary on the application of the Home Secretary and not by the Home Secretary. To allow executive decisions to lead to infringements of liberty is the beginning of a downward path which leads where we dare not think.
  1022
  We believe that this is absolutely essential. That is why it is our duty as we see it to stand up for what we believe is an important constitutional issue. At the other end of this Palace we have a House where a party that received 40 per cent of the vote at the last general election has 60 per cent of the seats.
  Noble Lords: Oh!
  Lord Goodhart: That is true, my Lords. If you look at it now, it is the party membership in this House that more accurately represents the votes cast at the last general election than does the House of Commons.
  It is, we believe, our duty to stand up for constitutional rights and civil liberties. If this Bill is to fall, it will be the Government who will be responsible. We are not seeking to block legislation. There is an acceptable compromise here, but the Government are refusing to accept it. So if at the end of the day—and we can see that there may be more of these ping-pongs to come—the Government refuse to do what they should to accept the amendments that we have put forward, we believe that it will be the Government who will be responsible and the Government who will pay the price. I beg to move.
  Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments lA and 1B to Lords Amendment 1; do insist on its Amendments 37Q to 37T in lieu of Lords Amendment 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; and do disagree with the Commons in their Amendment 37V in lieu.—(Lord Goodhart.)
  Lord Richard: My Lords, I never thought that I would hear the party of Lloyd George get up in the House of Lords and claim that this House was more democratic and more representative than the one that is elected down there at regular intervals and which has been returned by the most enormous majority.
  The noble Lord, Lord Goodhart, has turned this debate not into a discussion on the merits of the Bill, but into a major constitutional issue of whether this House should prevail or that House should prevail. With great respect, he arrogates to himself the most astonishing position in saying, "We are right. and because we are right we are entitled to insist. Despite the views that have been expressed down the Corridor, we are entitled to insist that our views should prevail". That is just wrong. There are people sitting on those Benches over there, many of whom have been in government and many of whom were Ministers. They know that when they were Ministers they would never

  1023
  have accepted the proposition coming from the Liberal Democrats. There is a distinction here between the Conservative Party and the Liberal Democrat Party. At least many on the Conservative Benches have been in government and know what government is like. They know what the relations between the two Houses must be. I see some on the Liberal Democrat Benches who know about it who ought to be ashamed of themselves, because they know far better about how government works than they are displaying this evening.
  If we wish to have a major constitutional eruption, we should go on doing what we have been doing. It seems to me that the time has now come. We have asked the House of Commons to think again; it has thought again and it does not agree with us. We sent it back; and asked it to think again yet again. It did think yet again; but it did not agree with us. In those circumstances, how on earth can we in this House—which is unrepresentative, undemocratic, nominated, or in some cases hereditary—possibly maintain that it is us who are right and the House of Commons which must be wrong? The time has come for us to submit. People over there who have been in government know that it is the time. With respect to the Liberal Democrat Party, it should stop playing games.
  Lord Maclennan of Rogart: My Lords, there are two constitutional issues, and the two speakers on the Government Benches have failed to deal with the first. It may he true that this House is not democratic, and few would deny it, but that it is representative is also true.
  The issue that we face and which has kept us here, and which may keep us here for considerably longer, is that the people of this country have no desire to see absolute power entrusted to the Prime Minister by a quiescent Parliament. It is well known, and indeed it is obvious in everything that he has said, that the Prime Minister brooks no opposition. He has come to this point as a result of his overweening parliamentary majority.
  It has been, as previous Conservative Ministers have said, a supreme example of the unwisdom and misfortune of such a huge parliamentary majority in the House of Commons. This House has a duty to speak for Parliament. It has no right to duck that because it is being browbeaten by Ministers of the Crown, or former Ministers of the Crown, in support. That way lies the disruption and the threat to our liberties. If this Government were to come forward and propose to us, and persuade their supporters in the House of Commons, that in the use of torture in our own gaols lay the safety of our people, would this House accept it? I suggest that it would not.
  5.15 a.m.
  The measures before us tonight may not be so abasing of our standards, but they bear within them the threat of the corruption of our legal system and the fundamental
  1024
  protection of the freedoms of our people. That is why we shall persist as long as we are constitutionally capable of doing so.
  Lord Cobbold: My Lords, as a humble Back-Bencher from the Cross Benches who has listened to the debate in both this House and looking down from the Gallery in the other, I am amazed that there is still such a political battle on issues on which we all agree. The only issue that could solve the problem is the sunset clause. Whatever the faults, benefits or good qualities of the legislation, all the sunset clause asks is the chance to have a look at it again in a year's time. Surely we can agree among grown-up people at this time of night that that is sensible.
  Lord Kingsland: My Lords, on the substance of this matter, we are in complete harmony with the Liberal Democrats. Without a balance-of-probabilities test, many innocent people will be incarcerated. Without a role for the Director of Public Prosecutions, many people will go unprosecuted. Without a judicial process for non-derogating control orders, a politician can continue—as the noble Lord, Lord Goodhart, said—to make control orders on the basis of secret evidence, virtually unsupervised. On all those crucial issues, the Government have moved not an inch.
  The noble and learned Lord the Lord Chancellor said that this House had no democratic authority to repudiate the amendments. That argument is a complete sham. The authority that your Lordships have under the Parliament Acts 1911 and 1949 is given to this House by the democratic House. Our powers are completely underpinned by the democratic process; and we would be derelict in our duty if we did not use them in a case where we felt that they ought to be used.
  There is of course a principle of parliamentary sovereignty, but there is also in our constitution a matching principle of the rule of law. It is the rale of law that is under threat by this legislation. That is why we continue to protest. The noble and learned Lord the Lord Chancellor says that we have been inflexible, but the opposite is in fact the case. It is the noble and learned Lord who has been inflexible. On the crucial issue of the sunset clause, we have shifted our position from November to March the following year.
  Noble Lords: Oh!
  Lord Kingsland: My Lords, that is a big change. I say to the Government, where is yours?
  Lord Falconer of Thoroton: My Lords, at the request of this House, we introduced judicial scrutiny before almost all the orders were made. The Conservatives and the Liberal Democrats support the concept of control orders, yet they block the Bill.
  The noble Lord, Lord Kingsland, is right—this House gets its authority from the Commons. What we do is scrutinise; we ask the Commons to think again. In the past, we have always accepted that once the Commons

  1025
  has considered and considered our proposals, we then bow to its will. I am sure that that is what Lloyd George would have had in mind.
  5.19 a.m.
  On Question, Whether the said amendment (A1) shall be agreed to?
  Their Lordships divided: Contents, 153; Not-Contents, 98.

  Division No. 9

  CONTENTS

  Addington, L.

  Higgins, L.

  Ahmed, L.

  Hodgson, of Astley Abbotts, L.

  Alliance, L.

  Hogg, B.

  Anelay of St Johns, B.

  Home, E.

  Arran, E.

  Hooper, B.

  Ashcroft, L.

  Howard of Rising, L.

  Astor, V.

  Howe of Aberavon, L.

  Astor of Hever, L.

  Howe of Idlicote, B.

  Avebury, L.

  Jenkin of Roding, L.

  Baker of Dorking, L.

  Kalms, L.

  Barker, B.

  Kennedy of The Shaws, B.

  Bell, L.

  Kimball, L.

  Bonham-Carter of Yarnbury, B.

  King of Bridgwater, L.

  Bradshaw, L.

  Kingsland, L.

  Bridgeman, V.

  Knigt of Collingtree, B.

  Brittan of Spennithome, L.

  Laing of Dunphail, L.

  Brooke of Sutton Mandeville, L.

  Lamont of Lerwick, L.

  Brougham and Vaux, L.

  Lang of Monkton, L

  Buscombe, B.

  Linklater of Butterstone, B.

  Byford, B.

  Liverpool, E.

  Carlisle of Bucklow, L.

  Livsey of Talgarth, L.

  Chalker of Wallasey, B.

  Lloyd of Berwick, L.

  Clement-Jones, L.

  Lucas, L.

  Cope of Berkeley, L.

  Ludford, B.

  Crickhowell, L.

  Luke, L.

  Cumberlege, B.

  Lyell, L.

  Denham, L.

  McCall of Dulwich, L

  Dholakia, L.

  Maclennan of Rogart, L.

  Dixon-Smith, L.

  McNally, L.

  Donaldson of Lymington, L.

  Maddock, B.

  Dykes, L.

  Maginnis of Drumglass, L

  Eccles of Moulton, B.

  Mancroft, L.

  Eden of Winton, L.

  Marlesford, L.

  Elles, B.

  Mayhew of Twysden, L.

  Elton, L.

  Michie of Gallanach, B

  Falkland, V.

  Miller of Chilthorne Domer, B.

  Falkner of Margravine, B.

  Miller of Hendon, B.

  Ferrers, E.

  Montrose, D.

  Fookes, B.

  Moore of Lower Marsh, L.

  Forsyth of Drumlean, L.

  Morris of Bolton, B.

  Fowler. L.

  Naseby, L.

  Freeman, L.

  Neil of Bladen, L.

  Freyberg, L.

  Neuberger, B.

  Garden, L.

  Newby, L.

  Gardner of Parkes, B.

  Newton, of Braintree, L.

  Garel-Jones, L.

  Northbrook, L.

  Geddes, L.

  Northesk, E.

  Glenarthur, L.

  Northover, B.

  Glentoran, L.

  Norton of Louth, L.

  Goodhart, L.

  Oakeshott, of Seagrove Bay, L.

  Goschen, V.

  O'Cathain, B.

  Greaves, L.

  Onslow, E

  Hamwee, B.

  Park of Monmouth, B.

  Hanham, B.

  Pearson, of Rannoch, L.

  Harris of Peckham, L.

  Peyton of Yeovil, L.

  Harris of Richmond, B.

  Phillips of Sudbury, L.

  Hayhoe, L.

  Razzall, L.

  Henley, L.

  Redesdale, L

  1026

  Rennard, L.

  Stewartby, L.

  Roberts of Llandudno, L.

  Stoddart of Swindon, L.

  Rogan, L.

  Strathclyde, L.

  Roper, L. [Teller]

  Taverne, L.

  Rotherwick, L.

  Thomas of Gresford, L.

  Russell-Johnston, L.

  Thomas of Swynnerton, L.

  Ryder of Wensum, L.

  Tope, L.

  Saatchi, L.

  Tordoff, L.

  Scott of Needham Market, B.

  Ullswater, V.

  Seccombe, B. [Teller]

  Vallance of Tummel, L.

  Selborne, E.

  Waddington, L.

  Selkirk of Douglas, L.

  Wakeham, L.

  Selsdon, L.

  Waldegrave of North Hill, L.

  Sharp of Guildford, B.

  Wallace, of Saltaire, L.

  Shaw of Northstead, L.

  Walmsley, B.

  Shutt of Greetland, L.

  Watson, of Richmond, L.

  Smith of Clifton, L.

  Wedderburn of Charlton, L.

  Sterling of Plaistow, L.

  Wilcox, B.

  Williams, of Crosby, B

  NOT-CONTENTS

  Alli, L.

  Hunt of Kings Heath, L.

  Andrews, B.

  Jones, L.

  Ashton of Upholland, B.

  Layard, L.

  Bach, L.

  Leith, L.

  Bassam of Brighton, L.

  Lipsey, L.

  Bernstein of Craigweil, L.

  Listowel, E.

  Billingham, B.

  Lockwood, B.

  Bragg, L.

  McDonagh, B.

  Brett, L.

  Macdonald of Tradeston, L.

  Brooke of Alverthorpe, L.

  McIntosh of Haringey, L.

  Brookman, L.

  McIntosh of Hudnall, B.

  Campbell-Savours, L.

  MacKenzie of Culkein, L

  Carter, L.

  McKenzie of Luton, L.

  Carter of Coles, L.

  Massey of Darwen, B.

  Clarke of Hampstead, L.

  Maxton, L.

  Corbett of Castle Vale, L.

  Mitchell, L

  Crawley, B.

  Morgan of Drefelin, B.

  Davies of Oldham, L. [Teller]

  Morgan of Huyton, B.

  Dean of Thornton-le-Fylde, B.

  Morris of Aberavon, L.

  Desai, L.

  Plant of Highfield, L.

  Drayson, L.

  Ponsonby of Shulbrede, L.

  Elder, L.

  Radice, L.

  Evans of Temple Guiting, L.

  Ramsey of Cartvale, B.

  Falconer of Thoroton, L. (Lord Chancellor)

  Rendell of Babergh, B.

  Farrington of Ribbleton, B.

  Richard, L.

  Faulkner of Worcester, L.

  Rooker, L.

  Fillcin, L.

  Rosser, L.

  Gale, B.

  Rowlands, L.

  Giddens, L.

  Royall of Blaisdon, B

  Gilbert, L.

  Sainsbury of Turville, L.

  Golding, B.

  Sawyer, L.

  Goldsmith, L.

  Scotland, of Asthal, B.

  Goudie, B.

  Sewel, L.

  Gould of Brookwood, L.

  Simon, V.

  Gould of Potternewton, B.

  Stone of Blackheath, L.

  Graham of Edmonton, L.

  Symons of Vernham Dean, B.

  Greengross, B.

  Thomas of Macclesfield, L.

  Grocott, L. [Teller]

  Thornton, B.

  Harris of Haringey, L.

  Tomlinson, L.

  Hart of Chilton, L.

  Triesman, L.

  Haskel, L.

  Truscott, L.

  Haworth, L.

  Tunnicliffe, L.

  Henig, B.

  Turnberg, L.

  Hollis of Heigham, B.

  Wall of New Barnet, B.

  Howells of St. Davids, B.

  Warner, L.

  Hoyle, L.

  Whitaker, B.

  Hughes of Woodside, L.

  Whitty, L.

  Hunt of Chesterton, L.

  Williams of Elvel, L.

  Winston, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended. agreed to.

  (MOTION B)
  5.31 a.m.
  Baroness Scotland of Asthalrose to move, that this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32D in lieu thereof.
  The noble Baroness said: My Lords, my noble and learned friend the Lord Chancellor has already addressed the constitutional issues that arise in relation to this amendment. I beg to move.
  Moved, that this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C. 27D and 32D in lieu thereof.—(Baroness Scotland of Asthal.)
  Lord Kingslandrose to move, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments Nos. 27, 31 and 32; do insist on its disagreement with the Commons in their Amendments Nos. 27C and 27D in lieu thereof; and do disagree with the Commons in their Amendment No. 32D in lieu".
  The noble Lord said: My Lords, I have spoken to the substance of Amendments BI and C1. I beg to move.
  Moved, as an amendment to Motion B, leave out from "House" to end and insert "do insist on Lords Amendments Nos. 27, 31 and 32; do insist on its disagreement with the Commons in their Amendments Nos. 27C and 27D in lieu and do disagree with the Commons in their Amendment 32D in lieu".—(Lord Kingsland.)
  On Question, Whether the said amendment (B1) shall he agreed to?
  Their Lordships divided: Contents, 155; Not-Contents, 97.

  Division No. 10

  CONTENTS

  Addington, L.

  Byford, B.

  Ahmed, L.

  Carlisle of Bucklow, L.

  Alliance, L.

  Chalker, of Wallasey, B.

  Anelay of St Johns, B.

  Clement-Jones, L.

  Arran, E.

  Cope of Berkeley, L. [Teller]

  Ashcroft, L.

  Crickhowell, L.

  Astor, V.

  Cumberlege, B.

  Astor of Hever, L.

  Denham, L.

  Avebury, L.

  Dholakia, L.

  Baker of Dorking, L.

  Dixon-Smith, L.

  Barker, B.

  Donaldson of Lymington, L.

  Bell, L.

  Dykes, L.

  Blackwell, L.

  Eccles of Moulton, B.

  Bonham-Carter of Yarnbury, B.

  Eden of Winton, L.

  Bradshaw, L.

  Elles, B.

  Bridgeman, V.

  Elton, L.

  Brittan of Spennithorne, L.

  Falkland, V.

  Brooke of Sutton Mandeville, L.

  Falkner of Margravine, B.

  Brougham and Vaux, L.

  Ferrers, E.

  Buscombe, B.

  Fookes, B.

  1028

  Forsyth of Drumlean, L.

  Moore of Lower Marsh, L.

  Fowler, L.

  Morris of Bolton, B.

  Freeman, L.

  Naseby, L.

  Freyberg, L.

  Neill of Bladen, L.

  Garden, L.

  Neuberger, B.

  Gardner of Parkes, B.

  Newby, L.

  Garel-Jones, L.

  Newton of Braintree, L.

  Geddes, L.

  Northbrook, L.

  Glenarthur, L.

  Northesk, E.

  Glentoran, L.

  Northover, B.

  Goodhart, L. [Teller]

  Norton of Louth, L.

  Goschen, V.

  Oakeshott of Seagrove Bay, L.

  Greaves, L.

  O'Cathain, B.

  Hamwee, B.

  Onslow, E,

  Hanham, B.

  Park of Monmouth, B.

  Harris of Peckham, L.

  Pearson of Rannoch, L.

  Harris of Richmond, B.

  Peyton of Yeovil, L.

  Hayhoe, L.

  Phillips of Sudbury, L.

  Henley, L.

  Razzall, L.

  Higgins, L.

  Redesdale, L.

  Hodgson of Astley Abbotts, L.

  Rennard, L.

  Hogg, B.

  Roberts of Llandudno, L.

  Home, E.

  Rogan, L.

  Hooper, B.

  Roper, L.

  Howard of Rising, L.

  Rotherwick, L.

  Howe of Aberavon, L.

  Russell-Johnston, L.

  Howe of Idlicote, B.

  Ryder of Wensum, L.

  Jenkin of Roding, L.

  Saatchi, L.

  Kalms, L.

  Scott, of Neetham Market, B.

  Kennedy of The Shaws, B.

  Seccombe, B

  Kimball, L.

  Selborne, E.

  King of Bridgwater, L.

  Selkirk of Douglas, L.

  Kingsland, L.

  Selsdon, L.

  Knight of Collingtree, B.

  Sharp of Guildford, B.

  Laing of Dunphail, L.

  Shaw of Northstead, L.

  Lamont of Lerwick, L.

  Shutt of Greetland, L.

  Lang of Monkton, L.

  Smith of Clifton, L.

  Linklater of Butterstone, B.

  Sterling of Plaistow, L.

  Liverpool, E.

  Stewartby, L.

  Livsey of Talgarth, L.

  Stoddart of Swindon, L.

  Lloyd of Berwick, L.

  Strathclyde, L.

  Lucas. L.

  Thomas of Gresford, L.

  Ludford, B.

  Thomas of Swynnerton, L.

  Luke, L.

  Thomson of Monifieth, L.

  Lyell, L.

  Tope, L.

  McColl of Dulwich, L.

  Tordoff, L.

  Maclennan of Rogart, L.

  Ullswater, V.

  McNally, L.

  Vallance of Tummel, L.

  Maddock, B.

  Waddington, L.

  Maginnis of Drumglass, L.

  Wakeham, L.

  Mancroft, L.

  Waldegrave of North Hill, L.

  Marlesford, L.

  Wallace of Saltaire, L.

  Mayhew of Twysden, L.

  Walmsley, B.

  Michie of Gallanach, B.

  Watson of Richmond, L.

  Miller of Chilthorne Domer, B.

  Wedderburn of Charlton, L.

  Miller of Hendon, B.

  Wilcox, B.

  Montrose, D.

  Williams of Crosby, B.

  NOT-CONTENTS

  Alli, L.

  Corbett of Castle Vale, L.

  Andrews, B.

  Crawley, B.

  Ashton of Upholland, B.

  Davies of Oldham, L.[Teller]

  Bach, L.

  Dean of Thornton-le-Fylde, B.

  Bassam of Brighton, L.

  Desai, L.

  Bernstein of Craigweil, L.

  Drayson, L.

  Billingham, B.

  Elder, L.

  Bragg, L.

  Evans of Temple Guiting, L.

  Brett, L.

  Falconer of Thoroton, L. (Lord Chancellor)

  Brooke of Alverthorpe, L.

  Farrington of Ribbleton, B.

  Broolcman, L.

  Faulkner of Worcester, L.

  Campbell-Savours. L.

  Filkin, L.

  Carter. L.

  Gale, B.

  Carter of Coles, L.

  Giddens, L.

  Clarke of Hampstead, L.

  1029

  Gilbert, L.

  Morgan of Drefelin, B.

  Golding, B.

  Morgan of Huyton, B.

  Goldsmith, L.

  Morris of Aberavon, L.

  Goudie, B.

  Plant of Highfield, L.

  Gould of Brookwood, L.

  Ponsonby of Shulbrede, L.

  Gould of Potternewton, B.

  Radice, L.

  Graham of Edmonton, L.

  Ramsay of Cartvale, B.

  Greengross, B.

  Rendell of Babergh, B.

  Grocott, L. [Teller]

  Richard, L.

  Harris of Haringey, L.

  Rooker, L.

  Hart of Chilton, L.

  Rosser, L.

  Haskel, L.

  Rowlands, L.

  Haworth, L.

  Royall of Blaisdon, B.

  Henig, B.

  Sainsbury of Turville, L.

  Hollis of Heigham, B.

  Sawyer, L.

  Howells of St. Davids, B.

  Scotland of Asthal, B.

  Hoyle, L.

  Sewel, L.

  Hughes of Woodside, L.

  Simon, V.

  Hunt of Chesterton, L.

  Stone of Blackheath, L.

  Hunt of Kings Heath, L.

  Symons of Verham Dean, B.

  Jones, L.

  Thomas of Macclesfield, L.

  Layard, L.

  Thornton, B.

  Leitch, L.

  Tomlinson, L.

  Lipsey, L.

  Triesman, L.

  Lockwood, B.

  Truscott, L.

  McDonagh, B.

  Tunnicliffe, L.

  Macdonald of Tradeston, L.

  Turnberg, L.

  McIntosh of Haringey, L.

  Wall of New Barnet, B.

  McIntosh of Hudnall, B.

  Warner, L.

  MacKenzie of Culkein, L.

  Whitaker, B.

  McKenzie of Luton, L.

  Whitty, L.

  Massey of Darwen, B.

  Williams od Elvel, L.

  Maxton, L.

  Winston, L.

  Mitchell, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  5.42 a.m.

  MOTION C
  Baroness Scotland of Asthalrose to move, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof.
  The noble Baroness said: My Lords, I beg to move Motion C on Lords Amendment No. 33. This amendment, too, has already been spoken to and I move on the same basis.
  Moved, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof.—(Baroness Scotland of Asthal.)
  Lord Kingslandrose to move, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33F and 33G in lieu thereof."
  The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
  Moved, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33F and
  33G in lieu thereof."—(Lord Kingsland.)
  5.43 a.m.
  On Question, Whether the said amendment (C1) shall be agreed to?
  Their Lordships divided: Contents, 164; Not-Contents, 96.

  Division No. 11

  CONTENTS

  Addington, L.

  Hodgson of Astley Abbotts, L.

  Ahmed, L.

  Hogg, B.

  Alliance, L.

  Home, E.

  Anelay of St Johns, B.

  Hooper, B.

  Arran, E.

  Howard of Rising, L.

  Ashcroft, L.

  Howe of Aberavon, L.

  Astor, V.

  Howe of Idlicote, B.

  Astor of Hever, L.

  Jenkin of Roding, L.

  Avebury, L.

  Joffe, L.

  Baker of Dorking, L.

  Kalms, L.

  Barker, B.

  Kennedy of The Shaws, B.

  Bell, L.

  Kimball, L.

  Blackwell, L.

  King of Bridgwater, L.

  Bledisloe, V.

  Kingsland, L.

  Bonham-Carter of Yarnbury, B.

  Knight of Collingtree, B.

  Bradshaw, L.

  Laing of Dunphail, L.

  Bridgeman, V.

  Lamont of Lerwick, L.

  Brittan of Spennithorne, L.

  Lang of Monkton, L.

  Brooke of Sutton Mandeville, L.

  Linklater of Butterstone, B.

  Brougham and Vaux, L.

  Liverpool, E.

  Buscombe, B.

  Livsey of Talgarth, L.

  Byford, B.

  Lloyd of Berwick, L.

  Carlisle of Bucklow, L.

  Lucas, L.

  Chalker of Wallasey, B.

  Ludford, B.

  Clement-Jones, L.

  Luke, L.

  Cobbold, L.

  Lyell, L

  Cope of Berkeley, L. [Teller]

  McColl of Dulwich, L.

  Crickhowell, L.

  Maclennan of Rogart, L.

  Cumberlege, B.

  McNally, L.

  Denham, L.

  Maddock, B

  Dholakia, L.

  Maginnins of Drumglass, L.

  Dixon-Smith, L.

  Mancroft, L.

  Donaldson of Lymington, L.

  Marlesford, L.

  D'Souza, B.

  Mayhew of Twysden, L.

  Dykes, L.

  Michie of Gallanach, B.

  Eccles of Moulton, B.

  Miller of Chilthorne Domer, B.

  Eden of Winton, L.

  Miller of Hendon, B.

  Elles, B.

  Montrose, D.

  Elton, L.

  Moore of Lower Marsh, L.

  Falkland, V.

  Mooris of Bolton, B.

  Falkner of Margravine, B.

  Naseby, L.

  Ferrers, E.

  Neill of Bladen, L

  Finlay of Llandaff, B.

  Neuberger, B.

  Fookes, B.

  Newby, L.

  Forsyth of Drumlean, L.

  Newton of Braintree, L.

  Fowler, L.

  Northbrook, L.

  Freeman, L.

  Northover, B.

  Freyberg, L.

  Norton, of Louth, L.

  Garden, L.

  Oakeshott of Seagrove Bay, L.

  Gardner of Parkes, B.

  O'Cathain, B.

  Garel-Jones, L.

  O'Neill of Bengarve, B.

  Geddes, L.

  Onswlow, E.

  Glenarthur, L.

  Park of Monmouth, B.

  Glentoran, L.

  Pearson of Rannoch, L.

  Goodhart, L.

  Peyton of Yeovil, L.

  Goschen, V.

  Phillips of Sudbury, L.

  Greaves, L.

  Razzall, L.

  Hamwee, B.

  Redesdale, L.

  Hanham, B.

  Rennard, L.

  Harris of Peckham, L.

  Richardon of Calow, B.

  Harris of Richmond, B.

  Roberts of Llandudno, L.

  Hayhoe, L.

  Rogan, L.

  Henley, L.

  Roper, L.

  Higgins, L.

  Rotherwick, L.

  1031

  Russell-Johnston, L.

  Tanlaw, L.

  Ryder of Wensum, L.

  Taverne, L.

  Saatchi, L.

  Thomas of Gresford, L. [Teller]

  Scott of Needham Market, B.

  Thomas of Swynnerton, L.

  Seccombe, B.

  Thomson of Monifieth, L.

  Selborne, E.

  Tope, L.

  Selkirk of Douglas, L.

  Tordoff, L.

  Selsdon, L.

  Ullswater, V.

  Sharp of Guildford, B.

  Vallance of Tummel, L.

  Shaw of Northstead. L.

  Waddington, L.

  Sheldon, L.

  Wakeham, L.

  Shutt of Greetland, L.

  Waldegrave of North Hill, L.

  Smith of Clifton, L.

  Wallace, of Saltaire, L.

  Sterling of Plaistow, L.

  Walmsley of Richmond, L.

  Stern, B.

  Watson, of Richmond, L.

  Stewartby, L.

  Wedderburn of Charlton, L.

  Stoddart of Swindon, L.

  Wilcox, B.

  Strathclyde, L.

  Williams of Crosby, B

  NOT-CONTENTS

  Alli, L.

  Hunt of Kings Heath, L.

  Andrews, B.

  Jones, L.

  Ashton of Upholland, B.

  Layard, L.

  Bach, L.

  Leitch, L.

  Bassam of Brighton, L.

  Lipsey, L.

  Bernstein of Craigweil, L.

  Lockwood, B.

  Billingham, B.

  McDonagh, B.

  Bragg, L.

  Macdonald of Tradeston, L.

  Brett, L.

  McIntosh of Haringey, L.

  Brooke of Alverthorpe, L.

  McIntosh of Hudnall, B.

  Brookman, L.

  MacKenzie of Culkein, L.

  Campbell-Savours, L.

  McKenzie of Luton, L.

  Carter, L.

  Massey, of Darwen, B.

  Carter of Coles, L.

  Maxton, L.

  Clarke of Hampstead, L.

  Mitchell, L.

  Corbett of Castle Vale, L.

  Morgan of Drefelin, B.

  Crawley, B.

  Morgan of Huyton, B.

  Davies of Oldham, L. [Teller]

  Morris of Aberavon, L.

  Dean of Thornton-le-Fylde, B.

  Plant of Highfield, L.

  Desai, L.

  Ponsonby of Shulbrede, L.

  Drayson, L.

  Radice, L.

  Elder, L.

  Ramsay of Cartvale, B.

  Evans of Temple Guiting, L.

  Rendell of Babergh, B.

  Falconer of Thoroton, L. (Lord Chancellor)

  Richard, L.

  Farrington of Ribbleton. B.

  Rooker, L.

  Faulkner of Worcester, L.

  Rosser, L.

  Filkin, L.

  Rowlands, L.

  Gale, B.

  Royall of Blaisdon, B.

  Giddens, L.

  Sainsbury of Turville, L.

  Gilbert, L.

  Sawyer, L.

  Golding, B.

  Scotland of Asthal, B.

  Goldsmith, L.

  Sewel, L.

  Goudie, B.

  Simon, V.

  Gould of Brookwood, L.

  Stone of Blackheath, L.

  Gould of Potternewton, B.

  Symons of Vernham Dean, B.

  Graham of Edmonton, L.

  Thomas of Macclesfield, L.

  Grocott, L. [Teller]

  Thornton, B.

  Harris of Haringey, L.

  Tomlinson, L.

  Hart of Chilton, L.

  Triesman, L.

  Haskel, L.

  Truscott, L.

  Haworth, L.

  Tunnicliffe, L.

  Henig, B.

  Turnberg, L.

  Hollis of Heigharn, B.

  Wall of New Barnet, B.

  Howells of St. Davids, B.

  Warner, L.

  Hoyle, L.

  Whitaker, B.

  Hughes of Woodside, L.

  Whitty, L.

  Hunt of Chesterton, L.

  Williams of Elvel, L.

  Winston, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Motion, as amended, agreed to.
  5.55 a.m.
  Lord Grocott: My Lords, it may help the House if I repeat what 1 said a few hours ago. It takes a minimum of four hours to go through the next round, for the papers to be dealt with and sent to the other end. Those in the other place will then make their decision and the Bill will return to this House. We shall not resume before 10.30 a.m. It will not be sooner than 10.30, but if it is later, messages will be put on the annunciator.
  I beg to move that the House do now adjourn during pleasure.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 5.56 to 11.40 a.m.]

  COMMONS AMENDMENTS AND REASONS
  [The page and line refer to HL Bill 34 as first printed for the Lords.]
  A message was brought from the Commons, That they propose certain amendments in lieu to the Prevention of Terrorism Bill, to which they desire the agreement of your Lordships; they do not insist on certain amendments in lieu disagreed to by your Lordships; they insist on certain of their amendments in lieu; they insist on certain of their amendments to Lords amendments disagreed to by your Lordships; they insist on their disagreement to certain other Lords amendments and Lords amendments in lieu: they insist on certain other amendments to words to be restored to the Bill.
  Lord Falconer of Thoroton: My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.
  Moved accordingly, and, on Question, Motion agreed to.

  MOTION A
  Lord Falconer of Thorotonrose to move, Motion A, that this House do not insist on its disagreement with the Commons in their Amendments Nos. 1 A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37X in lieu.
  The noble and learned Lord said: My Lords, we meet again, over 24 hours after this sitting in this House started. Before I say anything else, may I join the whole House in thanking the staff and officers of this House for the fantastic service that we have received in what has been a very interesting but difficult 24 hours?

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  The debate on the issues that remain in play appears to have moved in two respects. The Conservatives have indicated that they are no longer holding out for a Privy Counsellor committee and are instead content with an independent reviewer. The Liberal Democrats are content with a reference to the chief officer of police rather than the DPP.
  So, the burden of proof and the sunset clause remain in issue. That is after a series of concessions that have rightly been made to this House throughout the passage of the Bill. A judge has been put in at the beginning of the process. The case has to be considered in detail inter partes within seven days. A requirement has been put in to ensure that there is an independent reviewer's report and that it will be available in good time for an annual review. There is now a requirement on the face of the Bill to confirm that prosecution is not possible. There are arrangements for annual renewal. There is a new procedure to confirm the rules of court. There are steps to ensure an even wider role for the independent reviewer. Detail of the rules has been changed to ensure that exculpatory material must be made available in every case.
  These are good, solid concessions, which improve the Bill. It has been a good result for this House. Our views are being respected and given effect to. But our ability to change legislation brings with it responsibility. That responsibility is from the unelected House to the other place. Whatever our views, ultimately we have to bow to the other place. We bow, believing this House to be right because that is what the majority voted for at an earlier stage in the process, but we bow nevertheless, because of the primacy of the Commons. Whatever we say, we cannot seek to arrogate to ourselves the final decision—for example, because we believe, as the noble Earl, Lord Onslow, says, that the Members in another place are simply "temporary politicians" or because, as the noble Lord, Lord Goodhart, said yesterday, the electoral system does not justify us giving the respect that we should to the other place.
  There is no graver issue on which the responsibility of this House should be demonstrated than antiterrorism. We have heard the arguments again and again about the sunset clause. I believe that the majority of both Houses of Parliament believe that control orders are necessary. Both Front Benches say so. Almost everybody who has intervened in the debate here takes that view. The security services believe that the threat will continue for the foreseeable future. We cannot afford to be without terrorist legislation. So we cannot accept the sunset clause; nor should we. That is the wrong thing to do. We have thought about this carefully and we have done so each time the Lords has sent the matter back to the Commons.
  Let me read to the House the words of a former Home Secretary—not a Labour Home Secretary and not a Home Secretary long deceased but a Home Secretary
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  who, I am happy to say, is here with us this very morning. In the Queen's Speech debate in November 1989, the noble Lord, Lord Waddington, said:
  "There is one acid test of a commitment to rights and the responsibilities that go with them. That is the determination of a Government to protect the citizen's right to safety from a terrorist attack".
  I shall go on with the quote—it is, I should say, a splendid quote—from the noble Lord, Lord Waddington. He continued:
  "I know that those on the Opposition Front Bench share my revulsion for the terrorist and his works, but for so long as their determination to safeguard the citizens turns on mere words, their expressions of revulsion are valueless".—[Official Report, Commons, 23/11/89; col. 255.]
  The time has come—
  11.45 a.m.
  Lord Waddington: My Lords, having paid me the compliment of drawing me into this debate, does the noble and learned Lord appreciate that one of the things that worries me is the constant harping on by members of the Government about the rights and privileges of the other place and the supremacy of the House of Commons? It sticks in our throats to hear such language when for eight years Mr Blair has dedicated most of his efforts to trying to neutralise—to neuter—the House of Commons.
  Noble Lords: Oh!
  Lord Waddington: My Lords, one has only to look at the guillotine on this Bill to see that what I am saying is correct. It really is a bit much to go on about the privileges of the other place when there is an extra burden put on us here simply because the Prime Minister has made sure that there has been inadequate debate on this measure in the other place.
  Lord Falconer of Thoroton: My Lords, the time has come for Parliament to make a decision about this Bill. So far as this House is concerned, it can heed the excellent words of the noble Lord, Lord Waddington, in the quote that I read, or it can continue to prevent there being an anti-terrorism Bill.
  The time has come to respect the supremacy of the Commons, to put aside our disputes on the debate and join together to fight the terrorist threat that we revile.
  Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1 A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to

  1035
  Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37X in lieu.—(Lord Falconer of Thoroton.)
  Lord Goodhart Lord Goodhart rose to move Amendment A1, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S and 37T in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords amendments; do insist on their disagreement with the Commons in their Amendments No. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; do disagree with the Commons in their Amendment No. 37X in lieu; do not insist on its Amendment No. 37R and do propose Amendment No. 37Y in lieu thereof:
  After Clause 3
  37Y Insert the following new Clause—
  "Power of court to make control orders
  (1) On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1036

  (b) revoke the order;

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

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

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

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

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

  (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.

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

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

  (b) it ceases to have effect under section 4; or

  (c) it is renewed.

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

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

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

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

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

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

  (11) Where, on an application for the renewal of a control order, it appears to court—

  (a) that the proceedings on the application are unlikely to be completed before the time when the order is due to cease to have effect if not renewed, and

  (b) that that is not attributable to an unreasonable delay on the part of the Secretary of State in the making or conduct of the application,

  the court may (on one or more occasions) extend the period for which the order is to remain in force for the purpose of keeping it in force until the conclusion of the proceedings.
  (12) Where the court exercises its power under subsection (11) and subsequently renews the control order in question, the period of any renewal still runs from the time when the order would have ceased to have effect apart from that subsection.
  (13) It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the court, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters in relation to which the requirements of subsection (3)(a) or (7)(a) were satisfied."
  The noble Lord said: My Lords, we have now got to the stage of daylight, having sat through the night. Perhaps in the light of day it is time to take a bit of the

  1037
  heat out of the debate which we had yesterday, particularly, perhaps, at our most recent meeting early this morning.
  Amendment A1 has been returned by us with a significant omission to show our willingness to negotiate with the Government over this. That omission, as the noble and learned Lord the Lord Chancellor mentioned, is that we no longer insist on the direct involvement of the DPP or require him to give a certificate before a full control order can be made.
  However, we are of course a revising Chamber. A revising Chamber does not and should not defeat a Bill on the grounds that we do not like it. It is plain beyond doubt that the amendments that we and the Conservatives have moved are in no sense wrecking amendments. We cannot be a revising Chamber unless we have some power to make the Government listen to our revisions. We cannot say in this case that the Government have not given an inch. They have given an inch, but no more than that.
  The normal practice is that, when there is disagreement at this stage of a Bill's progress, there are serious negotiations. That happened, for example, in a somewhat similar circumstance—the Anti-terrorism, Crime and Security Act 2001—when the Government accepted that, to get that Bill through, they would have to make substantial amendments. There have been no such moves in this case, and none of the amendments that the Government have proposed as a move towards us can be described as substantial.
  The citizen's right to safety does not justify doing anything whatever that the Government think it right to do. I shall take the extreme case: I believe that nobody here would say that the citizen's right to safety justifies legitimising the torture of suspected terrorists. That is something that we would totally reject. There is always a balance between protecting the citizen—that is, of course, the most important consideration, but it is not the only one—and preserving the liberties of the citizen.
  Our amendments would do no damage to the protection of the safety of our people, but they would help considerably in protecting their civil liberties. That is why we move the amendment. I beg to move.
  Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments 1A and 1B to Lords Amendment 1; do insist on its Amendments 37Q, 37S and 37T in lieu of Lords Amendment 8; do insist on its insistence on Lords Amendments 12,13, 15, 17,22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; do disagree
  1038
  with the Commons in their Amendment 37X in lieu; do not insist on its Amendment 37R and do propose Amendment 37Y in lieu thereof.—(Lord Goodhart.)
  Lord Morris of Aberavon: My Lords, I shall be brief. The House will know that I voted against the Government on their proposals for non-derogating orders. The Government have moved a long way since then, and I am satisfied on the principle of judicial involvement. It is a matter of vital importance. There have been other solid concessions since then.
  I say in passing that, as Attorney-General for Northern Ireland, I appointed the first special counsel, after discussion with the Bar; likewise in England and Wales. The situation has developed since then, and it can and, I am sure, will be improved. However, on the burden of proof I say, with my limited experience, that it is not possible to import what is essentially a civil connotation into what is essentially an assessment of a threat, not an assessment of whether an offence has been committed. Indeed, the test in criminal law would be much higher. You cannot cobble together a civil concept of that kind with the assessment of a threat.
  Since then, I have voted for the Government on all amendments, save one, although the Bill is far from perfect, and I doubt that I would have started from the position that the Government first took. I fear that there was a lack of realpolitik in the Government's proposals and a failure to understand what is constitutionally important.
  I voted against the sunset clause specifying 30 November. The period was ridiculously short. I abstained from voting on the proposal for a period of one year made by my noble friend Lady Hayman. There was no magic in one year. I understand, as we all do now, the distinction between an annual review and a sunset clause.
  I have only modest and limited experience of intelligence problems, as a Defence Minister in the 1960s, disappointed by intelligence sources, and as Attorney-General here, and in Northern Ireland. in the 1990s. I know a little from five departments of state the difficulties of drafting sound legislation. I believe in the primacy of the Commons. The comments made last night would make David Lloyd George, my boyhood hero, turn in his grave. He had some choice expressions. Certainly in his Poplar speech, which is too insulting to repeat, he talked about the then membership of the House of Lords. I suspect—and I say this to the Liberal Democrat Benches—that he would have had something to say tonight.
  Honour has been talked about. I heard it on the airwaves today. More important, I would suggest, is a recognition of the importance of Parliament and the place of the Commons. Is it too late for common sense to prevail? If the date of 30 November is too short—ridiculously short—and one year is felt to be too short, why not in two years from now end the present Bill, which was cobbled together in its original unsatisfactory form in two months? If the date is not acceptable, surely a proper sound Bill could be prepared in two years,

  1039
  which the Government intend to do in any event. Is not saying two years a way forward and a way to save the reputation of both our Houses?
  Lord Thomas of Gresford: My Lords, the noble Lord, Lord Richard, yesterday and the noble and learned Lord, Lord Morris of Aberavon, referred—as I must confess all Welsh politicians do from time to time—to David Lloyd George, the great Welsh wizard and inspiring Liberal leader—too mercurial, it was said, to be a safe companion for tiger shooting.
  Certainly, Lloyd George attacked the wide powers of this House of his day. It was rather different in composition. What he said about their Lordships, which the noble and learned Lord, Lord Morris, did not seem to be inclined to tell your Lordships today, was that they were 500 men, ordinary men, chosen accidentally from amongst the unemployed. There is no point in trying to engage the Liberal Democrats today by reminding us of the battles we fought and won more than 100 years ago over the aristocratic few—the owners of the soil who, as Lloyd George said, made our forefathers trespassers in the land of their birth.
  This House today takes and maintains a form which was the precise choice and responsibility of this Prime Minister. This House may properly claim a particular constitutional responsibility to act as a check upon overweening executive power. That is particularly so when power is exercised in the manner of an elective dictatorship, bolstered by an electoral system which throws up an overwhelming and, save for some very courageous voices, mainly supine House of Commons.
  On which side of today's argument would Lloyd George have been—the very question the noble and learned Lord, Lord Morris, posed'? He said just over 100 years ago last November in Bristol:
  "Britain stood practically alone in the world for constitutional freedom".
  He said that for generations it stood,
  "for freedom, for a free press, for free speech, for free conscience, and for a free Parliament".
  Legislation fashioned by the secret services? LG would have led us singing through the "Content" Lobby on this Motion.
  Lord Owen: My Lords, I intervene to support the speech made by the noble and learned Lord, Lord Morris of Aberavon. I have been privileged to serve with the noble and learned Lord in a number of governments and have learnt to respect his judgment. I believe in the primacy of the House of Commons. But I also believe that this House has one right, which is the power of delay. In a democracy that is a very valuable power for a revising Chamber. It is one in my judgment on which we should not be expected, in the words of the noble and learned Lord the Lord Chancellor, to bow to the House of Commons.
  For a variety of very good reasons it seems to me that there is a clear majority in this House who do not think that we should delay the legislation. The Law Lords' judgment and the nature of the new world of
  1040
  international terrorism in which we live make it wise and prudent for this legislation to come into being, even though many of us may have the deepest reservations about it.
  And so you come to the sunset clause. It seems to me that the sunset clause is purely and simply a delaying mechanism in circumstances where we are ready not to exercise our delaying power on this legislation. It is a way of effectively retaining the power of delay. I do not feel very strongly about whether it is a nine months' delay, a year's delay, 18 months' delay or even, at the uppermost limit, two years' delay; however, I cannot understand the argument of the Lord Chancellor that we are in some way challenging the House of Commons in an unconstitutional way by voting for a sunset clause.
  It seems to me that a sunset clause has everything to recommend it in these circumstances. I agree with the noble Lord, Lord Waddington, that we have to look at the way in which the House of Commons takes its decisions. It is not our responsibility but, when we weigh our judgment in exercising our power of delay through a sunset clause, it is wholly legitimate to take into account the procedures that have been followed.
  Many of us have spent many of our years in the House of Commons. It is almost without precedent that legislation of this magnitude and this importance should have been handled in the way in which it has been in the House of Commons. It seems to me—and this is the only matter I have voted on and the only one I intend to vote on—that I have heard no argument against a sensibly constructed sunset clause. I hope that the usual channels will come to a compromise on the timing of that period.
  Noon
  Lord King of Bridgwater: My Lords, I have not intervened in arty of the debates so far but I think the House may recognise that, by force of circumstance, I have had experience in some of these matters through the posts that I have held in Northern Ireland and the Ministry of Defence, and through my appointment by two successive Prime Ministers as chairman of the Intelligence and Security Committee. I presume to indulge on your Lordships' time to make a few comments.
  Let me deal with one point right at the start. Noble Lords on both sides of the House may feel that the most regrettable aspect is the suggestion that this has become a political football about whether one side is or is not soft on terrorism. The Lord Chancellor, I know, would not wish to be associated with that. He knows that there are on these Benches, including myself, the survivors of serious terrorist attacks, whether in the Grand Hotel at Brighton or the mortar attack when what was then called the War Cabinet was meeting. I myself have been the personal subject of IRA interest at my own home. I do not underestimate the challenges and fears that are involved. There is no question that throughout the House there is a resolute determination to face up to terrorism.

  1041
  But the reality is that in facing up to terrorism we have a responsibility to ensure that we approach it in the most constructive way. From my time in Northern Ireland—and I have heard the Prime Minister, the Lord Chancellor and Ministers say this—I know that it is often said that if the security services make proposals to you, then who are you to resist them. The noble Lord, Lord Richard, invited those of us on these Benches who have held ministerial office to bring our experience to bear on these matters.
  Proposals, including a number of sensible ones, were made to me by the police, by the RUC, by the Army and by the security services; and some proposals, including some fairly foolish ones, were made by my colleagues. One or two of my colleagues may remember what they were. But it is the Minister's job—it is what he is there for—to decide which ones are sensible and helpful.
  Anyone in Northern Ireland gets a fairly good training in recognising a recruiting sergeant for terrorism when he sees one coming down the road. I share the fears expressed by others about the way in which some of the implications of this legislation may affect the attitude of the Muslim community, as the nationalist republican community was affected when internment without trial was introduced in Northern Ireland. In the Maze prison we had a university of terror. Perhaps because of that, Chancellor Kohl was subsequently to describe the IRA as the most sophisticated and effective urban terrorist group in the world. How many deaths and scars and how much human tragedy flowed from the decision to impose that system of executive action in Northern Ireland?
  Against that background, simply passing a law, sounding resolute and taking decisive action is not enough. It is the responsibility of us all, and most of all of those with previous experience of these issues, not simply to embark on it and hope that it comes out all right in the end.
  Having listened to some of the arguments, there is no question that this has been an extraordinarily rushed parliamentary procedure. Of course guillotines have been imposed before by both sides, but I cannot recall there ever having been quite such a truncation of the House of Commons. Indeed, has not the Lord Chancellor conceded the point? When it reached this House, this was a very bad Bill. If it had not been for the House of Lords it would have been enacted in the exact form in which it was introduced in the House of Commons. The Lord Chancellor has now been gracious enough to admit that a significant number of improvements have been made. That would never have happened if we had simply said, "The House of Commons has primacy. Who are we to interfere if the Prime Minister has been given detailed advice by his security advisers?". The Bill would simply have been pushed through in that way.
  Against all that, the Government must have their Bill. They must have in place the requirements necessary to deal with the immediate circumstances.
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  But I join with the noble Lord, Lord Owen, and the noble and learned Lord, Lord Morris of Aberavon, in saying that there must be a way through.
  A suggestion arose to appoint a committee of Privy Counsellors, although I know that the Government have not accepted it. In all modesty it is possible that I would have been one of those nominated to serve on such a committee. I would not have served on it if I thought that we were going to be treated like the committee chaired by my noble friend Lord Newton when it was asked to look at these matters. Its findings were totally ignored. And with great respect to any future reviewer, if a review is produced and laid with a government response, and with a whipped majority at its present scale in the House of Commons, the idea that we will get any kind of adequate assurance is nonsense.
  I do not know if the Lord Chancellor has any other way of approaching this, but I have to say to him that we must have a bankable assurance. A sunset clause set at whatever length of time seems appropriate must be the reasonable way forward. With it, the Government and the whole House can be confident that there will be a chance of looking again at these matters.
  I want to make a brief point. When I was Secretary of State for Northern Ireland, we could hold people in detention without charge for an initial period of seven days. Having just discussed it with my noble and learned friend Lord Mayhew, I recall that owing to a judgment in Europe, the detention period had to be reduced to either four or five days. At that point, on a certificate signed by myself or subsequent Secretaries of State for Northern Ireland, the period could be extended for a further two days. Otherwise, the detainee had to be released. In the circumstances we sought, as closely as we could to fight terrorism, under the law. Despite all the suggestions being made for toughening up our approach, we were determined that we were not going to let terrorists destroy the basic principles of justice in our country, principles that we were seeking to preserve.
  Noble Lords may recall an incident when a large shipment of arms from Libya was intercepted by the French police. The ship was called the "Eksund". If that shipment had arrived successfully, it would have caused an absolute disaster in Northern Ireland. A vast quantity of Semtex was found on board, along with sniper rifles, high-calibre machine guns. and a load of Kalashnikovs. The French seized the ship and managed to bring it into territorial waters. Under the sensible French system of the examining magistrate—I plead guilty to not knowing the exact title—the French authorities were able to hold without charge the captain and the Irish crew members for some three or four years. The examining magistrate system required no derogation from the European law.
  I do not recommend that, but this is not the only way to go. Time is needed to consider an approach that is much closer to our basic system of justice than the approach represented by the Bill. In the short term, the

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  Government must have the Bill, but there must be time for a proper, guaranteed review and a guaranteed opportunity for the Bill to be replaced.
  Lord Truscott: My Lords, on the anniversary of the Madrid bombing, I ask whether a Tory Home Secretary would repeal control orders that were introduced by this House and the Commons, in the unlikely event that the party that supported internment and exclusion orders won the forthcoming election.
  Lord King of Bridgwater: My Lords, I do not know whether the noble Lord heard the report today that the Mayor of Madrid, on the anniversary of 191 people being killed and 1,200 other Spaniards being seriously wounded, has expressed his determination—he made it absolutely clear—that in fighting terrorism, he was not prepared to interfere with or seriously degrade the system of justice. He has faced just the sort of tragedy that the Government face, a threat that is, I acknowledge, in many significant ways much greater than those to which I had to respond in my time. The story is entirely anecdotal, but I understand that the Mayor of Madrid, when asked if he would like to move in the direction that the British Government propose with the Bill, was heard to say that he thought that it would be a very bad idea.
  Lord Richard: My Lords, I shall be brief. I have only two or three things to say, but I cannot help being provoked, yet again, by the noble Lord, Lord Thomas of Gresford, whose Lloyd George would not be recognised in Criccieth. There would be absolutely no chance of that. Perhaps I should not go on about David Lloyd George. It would take a long speech and would probably bore many people in this place. He was one of my boyhood political heroes, and I was surprised to hear him being dragged into the arguments coming from the other side of the House.
  Over the past few days, the House has narrowed the area of disagreement considerably. From the speeches that have been made so far this morning, it now seems that there is only one major issue left between the parties: a sunset clause of some kind or another. I had assumed that the review that the Government have offered would be in a position, if it wished, to recommend that there should be changes in the legislation. That seems to me to be implied. I see heads nodding on the Government Front Bench. If that is so and there has to be a review, and if in the course of that review the reviewers can say, "We don't like the Bill very much. We would prefer it if it were cast in a different light, or if it were amended in a certain way", the difference between that and what is being argued for so passionately on the other side is very small.
  I have not been in this House as long as some other noble Lords, merely about 16 years, but I have not come across a situation like this. I have never known ping-pong to be played with such intensity between the two Houses. In 15 years in this place, however, I have learnt that primacy between the two Houses must lie with the House of Commons. In all the arguments about reforming the composition of the House of Lords and looking at its powers, everyone agreed that
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  the primary of power should lie down the Corridor and not with this House. Now, in effect, to eat into that principle by talking about "temporary politicians who happen to have been elected" is—
  12.15 p.m.
  The Earl of Onslow: My Lords, that is the second time that quotation has been referred to. I will now say exactly what it was: I am here on my honour, as is everyone else. Temporary politicians should not be allowed permanently to remove the right of habeas corpus. That is the point, that is why I am here on my honour, and I will stand by it because I think that habeas corpus is extremely important. The noble Lord, Lord Tomlinson, yelled, "Shut up". If that is what the other side think about habeas corpus it shows exactly how intelligent their arguments are over it.
  Lord Richard: My Lords, the House will have heard what the noble Earl had to say, and will no doubt be in a position to judge what he said. There is no doubt that he used the words "temporary politicians", and there is no doubt about to whom he was referring: the people at the other end of the Corridor. The noble Earl is claiming for himself and for this House the right in certain areas to have primacy over what goes on at the other end. That is totally wrong.
  Noble Lords: Hear, hear!
  Lord Richard: My Lords, I do not see how the constitution of this country can run on any basis other than that the House of Commons is indeed superior to the House of Lords. Otherwise, there is chaos. Chaos is in front of us if on any given issue this House can decide, "We think that this is so important that we are going to stick. We are going to stand with our principles and we do not care what happens down the other end". That is just plain wrong. I therefore appeal to the House at this stage, having been through all these debates and had all these votes in both Houses, to accept that the time has now come for Parliament to decide that, in accordance with constitutional tradition, principle and the rules of both Houses, on this issue the House of Commons should prevail.
  Lord Steel of Aikwood: My Lords, I have taken no part in these proceedings. I want just two minutes to express my support for the view put forward by the noble and learned Lord, Lord Morris, and the noble Lords, Lord Owen and Lord King. After the past 24 hours, there is a risk that, as we become more tired, tempers will begin to fray and sentiments will be expressed that are best not expressed.
  Yesterday the noble and learned Lord the Lord Chancellor quite rightly upbraided a Member of this House—I do not know who it was—for suggesting that the Government were behaving as they were because if there were a terrorist outrage during the election they could blame the opposition. That was a very unworthy remark, and the noble and learned Lord the Lord Chancellor was right to condemn it.

  1045
  I have with me the report of yesterday's proceedings in the House of Commons. I also object to the phrases used by the Leader of the House, Mr Hain, who talked about the,
  "Conservative-controlled House of Lords",
  ignoring the fact that even if not a single Conservative Peer had voted, the amendment moved by my noble friend Lord Goodhart would still have been carried. That is an important point.
  In any case, it was clear that the mood of this House was not being dictated by the Conservative Benches. Mr Hain said that the House of Lords was,
  "playing politics with our constituents' safety and security".—[Official Report, Commons, 10/3/05; col. 1689.]
  That sort of language is not helpful. I am very glad that he was taken to task by the Father of the House, Mr Dalyell, who said:
  "My right hon. Friend should be a bit more careful. In whole sections of the country, the Bill is not seen as Commons versus Lords".—[Official Report, Commons, 10/3/05; cols. 1691.]
  I agree. Mr Hain and I go back a very long way. In his young days, when he was falsely accused of a bank robbery, I appeared in the witness box at the Old Bailey as a character witness. I am not certain that I would be willing to do so again today.
  To be serious, there are two clear, conflicting, important principles, on which we are probably all agreed. The first is that no legislation should arbitrarily remove the fundamental right of a citizen to liberty. The second is that exceptional legislation is needed to counter the very real threat of terrorism.
  I believe very strongly that former party leaders should not tell current party leaders what to do. I am sure that I carry the noble Baroness, Lady Thatcher, with me when I say that. I know Mr Kennedy well enough to realise that if I attempted to do that he would tell me where to go. However, I think that it is perhaps time either for the usual channels or, indeed, for Mr Blair himself, to invite Mr Howard and Mr Kennedy to look at the possibility of a compromise. It would be wrong if he were to behave like a Chinese emperor and be worried about loss of face. The press have a responsibility not to portray the arguments in that way. The party leaders should get together and proceed on the basis that the noble and learned Lord, Lord Morris, and the noble Lord, Lord Owen, have talked about, and extend the proposed sunset clause.
  I am surprised that the noble Lord, Lord Richard, with all his experience does not recognise the fundamental difference between a review conducted by a government with a majority and a sunset clause. They are light years apart.
  I conclude by saying that the weakest argument, which the Government have advanced all along, is that the security forces and the police want these powers. There are many countries where what the security forces and the police say is the law; fortunately, this is
  1046
  not one of them. It is because we do not want it to be one of them that we cannot allow this Bill to be part of our permanent legislation.
  Lord Kingsland: My Lords, the Government have accused the Opposition—
  Lord Joffe: My Lords—
  Lord Kingsland: My Lords, I beg your pardon.
  Lord Joffe: My Lords, I am a relatively inexperienced Cross-Bencher who is bemused by what is happening in this House and wants to make the right decision on which way to vote. Is the noble and learned Lord the Lord Chancellor willing to summarise the precise reasons why the Government oppose the sunset clause?
  Lord Kingsland: My Lords, the Government have accused us of intransigence in the course of the past 24 hours. Yet their concessions during this period have been derisory compared to our own. We have conceded on the rule-making powers of the Lord Chief Justice. We have conceded on placing Article 6 on the face of the Bill. We are conceding today on the insertion of a committee of Privy Counsellors to review the Bill. Yesterday we conceded on the time for the kicking in of the sunset clause.
  This morning we hear that the Liberal Party has decided to table its amendment after removing the very important role of the DPP. We shall support the Liberal amendment when it is moved by the noble Lord, Lord Goodhart, although we are extremely sad about its dilution.
  Lord Clinton-Davis: My Lords, the situation has changed in a certain material respect. We have had debates in this House in which disquiet has been repeatedly expressed. The situation that will be considered by the review committee is rather different from before. The Government would be very unwise to ignore what has happened in this House. Does the noble Lord concede therefore that when we consider the review committee we are considering something very different from what we were considering before?
  Lord Kingsland: My Lords, I certainly do not make that concession. I was not actually talking about the review committee when the noble Lord intervened; but nevertheless since he asks whether I would make that concession I do not. It is wholly different from the sunset clause and entirely unacceptable to us. Quite apart from anything else, it would not give your Lordships' House the opportunity to amend the Bill before it was renewed; and there are many other reasons why we should oppose it.
  If I may return to the DPP, this would have been a very important guarantee on the face of the Bill had we been able to sustain it as part of the amendment. This is because control orders should be kept to the absolute minimum. The most important way to deal with terrorism is through the prosecutorial process. It guarantees the individual the right to have a fair trial.

  1047
  Control orders do not. If the DPP is not obliged to investigate every case thoroughly, there is a danger that the control order system will be abused. So we regret the removal of the DPP although we will be supporting the Liberal Democrat Party in its amendment.
  In his opening speech, the noble and learned Lord addressed everything except the merits of the Motion he moved. Now is not the time to go through the arguments that have been adduced on either side during these debates. I just say this about our amendment on the sunset clause. We have been flexible on the question of time. The noble and learned Lord has, on more than one occasion, suggested that our attempt to amend the Bill has in some way assisted the terrorist cause. We wholly repudiate that suggestion and, indeed, remind the noble and learned Lord that all the advice he has been getting, on his own admission, is that the insertion of the sunset clause would not in any way affect the effectiveness of the Bill in the light against terrorism.
  Baroness Lockwood: My Lords, the noble Lord said that the review would not enable this House to move amendments to the legislation. I suggest that neither would a sunset clause, which would bring the legislation to an end. The review can make recommendations about amendments to the Bill. Then it would be up to the Government and the two Houses, after the procedure had been renewed, to come forward with amendments to the Bill on the grounds of the reviewers' recommendation.
  This is not a question of permanently withdrawing individual rights or habeas corpus. The legislation will not remain on the statute book for ever.
  Noble Lords: Oh!
  Baroness Lockwood: My Lords, the noble Lord, Lord King, himself, and several other Members referred to the Government's proposal that the whole question of the regulation of terrorism and the removal of the threat be looked at carefully so that we can all agree on the fundamentals of a new Bill—a comprehensive Bill—which will come to both Houses at a later date. So I think that we are exaggerating the importance of a sunset clause in comparison with the assurances and the amendments that have been made to the review process by the Government.
  Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her intervention and her question. I am afraid that I have, most respectfully, to disagree with her. The whole point of the sunset clause is that the Bill dies and you have a new Bill, so we can formulate it in any way we want. We cannot do that with the clause that the Government have inserted.
  Lord Falconer of Thoroton: My Lords, the noble Lord, Lord King, is right. There has been a time limit in practice on the Bill; it has come from the decision of the Law Lords, which we respect. One could have extended for a short time the Part 4 powers but,
  1048
  ultimately, because the Law Lords said that the earlier part was incompatible with human rights, we rightly took the view that we should introduce a new Bill.
  I also accept the noble Lord's definition of what has happened. There has been a significant number of improvements made in this House. That is what this House is for, and I do not for one moment shirk from that. But there comes a point when a decision has to be made. The noble Lord, Lord Joffe, quite rightly asked us to summarise the arguments for not having a sunset clause. We accept the proposition that the Bill should be kept under review. That is why we have introduced, as the Bill has gone through, provisions for renewal, which mean that annually the Bill has to be debated by both Houses, and only if both Houses approve it does it continue. We have also introduced a review by an independent reviewer. In the ping-pong that has been going on over the past 24 hours we have introduced a provision that says, in effect, that that review must be available before each annual renewal, so that at the time when the Houses of Parliament debate the renewal they are informed by the criticisms, if there are any, or the recommendations, if there are any, made by the reviewer on it.
  12.30 p.m.
  Should we go one step further and say that there is no law on terrorism if both Houses of Parliament cannot agree? That is the critical point why we do not go as far as a sunset clause. We have done what is done so often and so sensibly in this House: to introduce a review clause. I accept that the consequence of not having a sunset clause is that there is not hanging over the terrorist law the possibility that there will be no terrorist law. The reason why we do not think that that is the appropriate course is that we are advised by the security services that there is a threat and that it will continue.
  The noble Lord, Lord King, is absolutely right: no government should accept what is said by the police or the security services on a proposal such as this without interrogating them as firmly and as effectively as one possibly can. But we have done that, and we have decided to take their advice. I anticipate that people with such records as those of the noble Lords, Lord King, Lord Waddington, Lord Baker or Lord Brittan, would equally have taken the same advice.
  Lord King of Bridgwater: My Lords, the noble and learned Lord the Lord Chancellor has made the point that the reason against the sunset clause is that it runs the risk that there will be no law. At the very beginning of his response this time, he recognised that there was universal support in this House, in all parties, that there has to be law to deal with these issues. Therefore, whatever was the government, it is inconceivable that any government would not recognise the responsibility; use their majority to achieve it if necessary; and look to the responsible response of opposition parties to ensure that at all times in this country—because no one party has the monopoly of responsibility for the security of our citizens—there would be a law in place.
  Lord Falconer of Thoroton: My Lords, I quite agree that no one party has such a responsibility. We seek to

  1049
  agree on these issues. But the power to renew with the review ensures, if we are all agreed on what should be done, that the Bill—or the Act as it then would be—could be amended. We should not introduce a provision that says, "It is possible there could be no anti-terrorism law" at a time when we agree that the threat will continue.
  Baroness Williams of Crosby: My Lords, I thank the noble and learned Lord the Lord Chancellor for giving way. Perhaps I may ask him directly the following question. In a situation where the difference between a review and a sunset clause depends to a very great extent on the belief in this House that such a sunset clause would oblige a recasting of the legislation, and in the light of what happened in the Newton committee—some doubt about whether that would be equally the case with regard to an annual review—perhaps I may suggest to the noble and learned Lord the Lord Chancellor that he has in his hands the capacity to unite this House and another place in a united determination to overcome terrorism. You do not overcome terrorism if there are deep divisions between the parties, exacerbated by a general election, in a way that now confronts us all and that could present the greatest possible danger to this country.
  Lord Falconer of Thoroton: My Lords, the noble Baroness puts her finger on the problem: we do want to try to unite both Houses. That is why throughout this 24-hour period and before we have introduced sensible provisions, very similar to the provisions introduced where there are problems of this sort, which go as far as we believe we can—that is, the review and the renewal procedures—without going as far as leaving open the possibility of there being no anti-terrorism law. Does this House think it possible that it would not agree with the detail of a terrorist law that the Government produced? Look at the debates that have gone on in relation to this.
  The other place does not want a sunset clause. They have expressed that opinion time and time and time again over the past 24 hours.
  We have been striving, over the past 24 hours and before, to get to the point where there is that review but there is no uncovered period. I earnestly ask noble Lords to look and see what has been done about review and renewal through this process and to accept that it is a bona fide attempt to deal with the quite legitimate points made by noble Lords in this House.
  Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. Is not the fatal inadequacy of the renewal procedure he is pressing on the House the fact that a statutory instrument effecting the renewal is unamendable?
  Lord Falconer of Thoroton: My Lords, that is absolutely true but, in order for there to be a new terrorist Act, there needs to be agreement between both Houses.
  1050
  I think the time has come, has it not, for our disputes to be put aside? We have listened very carefully to the sunset clause argument and we have made progress in relation to it. There will be informed debates as to the efficacy or otherwise of the Bill. The difference between us is that some Members of the House want a position where an axe can fall on this anti-terrorism legislation. and we cannot accept that. I invite noble Lords to accept the amendments put forward by the Commons.
  Lord Kingsland: My Lords, before the noble and learned Lord sits down, he said that in order for a new piece of legislation to flow from the review procedure there would have to be agreement between both Houses of Parliament, if I understood him correctly. But since the noble and learned Lord has expressed such a contemptuous view of your Lordships' House and its role in the legislative process today, how can that agreement mean anything?
  Lord Falconer of Thoroton: My Lords. I have certainly not expressed a contemptuous view about this House. Since I have been here for the past seven years, I have always understood the constitutional position to be, as someone said, that we have the power to delay and we have the power by that power to delay to make the other place think again. We have used that power. There are legitimate and bona fide reasons why the other place has taken the view that the sunset clause is not the appropriate way to deal with it.
  I ask this House to accept the bona fides of the other place in that respect; I ask the House to accept the bona fides of the Government in taking this view; and I ask this House to stop blocking the Prevention of Terrorism Bill.
  Lord Goodhart: My Lords, shortly after the debate, which started at five o'clock this morning, I was walking along a corridor in your Lordships' House when I happened to pass the Home Secretary. He glared at me and said, "You made a terrible speech". I took that as something of a compliment. But that attitude shows why the ping-pong on this occasion has been so contentious. Indeed, it is by far the most contentious of any that I have seen in the past seven and a half years.
  A sunset clause is, of course, an essential element in any deal that is to be done to ensure that this legislation goes through. As my noble friend Lady Williams of Crosby said, a review is simply not good enough. One only has to look at what happened to the report of the Newton committee, which reviewed the anti-terrorism Bill. That was simply thrown into the wastepaper basket—until it had to be dug out again following the decision of the Law Lords, when the Government suddenly began to realise that they ought to take notice of what it said.
  Lord Falconer of Thoroton: My Lords, I apologise for intervening. Is it the position of noble Lords on the Liberal Democrat Benches that if we do not agree to the sunset clause they will veto the Bill?
  Lord Goodhart: My Lords, so far as we are concerned, the answer would be "Yes". I cannot, of course, speak for the Conservative Benches.

  1051
  We of course welcome the support of the noble and learned Lord, Lord Morris of Aberavon, of the noble Lord, Lord Owen, and of my noble friend Lord Steel of Aikwood for the sunset clause. We will, of course, support—and continue to support—the Motion to be moved by the noble Lord, Lord Kingsland, for a sunset clause. If he intends to continue to divide the House on that, we shall continue to support him.
  However, we believe that a sunset clause is not the only necessary element. We need to ensure that judges make—and do not just review—control orders, and all kinds of control order. We need to ensure that there is an adequate standard of proof. The noble and learned Lord, Lord Morris of Aberavon, said that the balance of probabilities was not a suitable test for analysing risk. The balance of probabilities test does not, in fact, apply to risk. It applies to the question of whether there is evidence that the defendant has been involved in terrorist activities. That issue is perfectly appropriate for test on the balance of probabilities.
  In that context, I particularly welcome the very powerful speech by the noble Lord, Lord King of Bridgwater. He made a very strong case for a judicial and not an Executive process and pointed to the severe problems which an Executive process had caused in Northern Ireland. He spoke from his enormous experience of those matters.
  Of course we on these Benches support the Government in their desire to introduce control orders. But the Government's proposals infringe civil liberties in a way which is wholly unnecessary to their purpose. I seek to test the opinion of the House.
  12.42 p.m.
  On Question, Whether the said amendment (No. A1) shall be agreed to?
  Their Lordships divided: Contents, 176; Not-Contents, 128.

  Division No. 12

  CONTENTS

  Ackner, L.

  Carlisle of Bucklow, L.

  Addington, L.

  Chalker of Wallasey, B.

  Ahmed, L.

  Clement-Jones, L.

  Alliance, L.

  Cope of Berkeley, L.

  Ampthill, L.

  Crickhowell, L.

  Anelay of St Johns, B.

  Cumberlege, B.

  Arran, E.

  Dholakia, L.

  Astor, V.

  Dixon-Smith, L.

  Astor of Hever, L.

  Dykes, L.

  Avebury, L.

  Eccles of Moulton, B.

  Baker of Dorking, L.

  Eden of Winton, L.

  Barker, B.

  Elles, B.

  Beaumont of Whitley, L.

  Elliott of Morpeth, L.

  Bell, L.

  Elton, L.

  Bonham-Carter of Yarnbury, B.

  Erroll, E.

  Bradshaw, L.

  Falkland, V.

  Bridgeman, V.

  Falker of Margravine, B.

  Bridges, L.

  Feldman, L.

  Brittan of Spennithorne, L.

  Ferrers, E.

  Brooke of Sutton Mandeville, L.

  Fookes, B.

  Brougham and Vaux, L.

  Forsyth of Drumlean, L.

  Buscombe, B.

  Fowler, L.

  Byford. B.

  Freeman, L.

  Campbell of Alloway, L.

  Garden, L.

  1052

  Gardner of Parkes, B.

  Oakeshott of Seagrove Bay, L.

  Garel-Jones, L.

  O'Cathain, B.

  Geddes, L.

  Onslow, E.

  Glentoran, L.

  Oppenheim-Barnes, B.

  Goodhart, L.

  Palumbo, L.

  Goschen, V.

  Park of Monmouth, B.

  Greaves, L.

  Parkinson, L.

  Griffiths of Fforestfach, L.

  Pearson of Rannoch, L.

  Hamwee, B.

  Perry of Southwark, B.

  Hanham, B.

  Phillips of Sudbury, L.

  Harris of High Cross, L.

  Plumb, L.

  Harris of Peckham, L.

  Portsmouth, Bp.

  Harris of Richmond, B.

  Quirk, L.

  Hayhoe, L.

  Rawlings, B.

  Henley, L.

  Razzall, L.

  Higgins, L.

  Redesdale, L.

  Hodgson of Astley Abbotts, L.

  Renfrew of Kaimsthorn, L.

  Hogg, B.

  Rennard, L.

  Home, E.

  Renton, L.

  Hooper, B.

  Roberts of Llandudno, L.

  Hooson, L.

  Rodgers of Quarry Bank, L.

  Howard of Rising, L.

  Rogan, L.

  Howe, E.

  Roper, L. [Teller]

  Howe of Aberavon, L.

  Russell-Johnston, L.

  Howe of Idlicote. B.

  Ryder of Wensum, L.

  Jenkin of Roding, L.

  Saatchi, L.

  Kalms, L.

  St John of Fawsley, L.

  Kennedy of The Shaws, B.

  Sandberg, L.

  Kimball, L.

  Scott of Needham Market, B.

  King of Bridgwater, L.

  Seccombe, B.[Teller]

  Kingsland, L.

  Selborne, E.

  Knight of Collingtree, B.

  Selkirk of Douglas, L.

  Laing of Dunphail, L.

  Selsdon, L.

  Laird, L.

  Sharp of Guildford, L.

  Lamont of Lerwick. L.

  Shaw of Northstead, L.

  Lang of Monkton, L.

  Shutt of Greetland, L.

  Linklater of Butterstone, B.

  Slim, V.

  Liverpool, E.

  Smith of Clifton, L.

  Livsey of Talgarth, L.

  Soulsby of Swaffham Prior, L.

  Lloyd of Berwick, L.

  Steel of Aikwood, L.

  Lucas, L.

  Sterling of Plaistow, L.

  Ludford, B.

  Stewartby, L.

  Luke, L.

  Stoddart of Swindon, L.

  Lyell, L.

  Strathclyde, L.

  McColl of Dulwich, L.

  Taverne, L.

  Maclennan of Rogart, L.

  Thatcher, B.

  McNally, L.

  Thomas of Gresford, L.

  Maddock, B.

  Thomas of Swynnerton, L.

  Mancroft, L.

  Thomas of Walliswood, B.

  Marlesford, L.

  Thomson of Monifieth, L.

  Mayhew of Twysden, L.

  Tombs, L.

  Miller of Chilthorne Domer, B.

  Tope, L.

  Miller of Hendon, B.

  Tordoff, L.

  Montrose, D.

  Trumpington, B.

  Moore of Lower Marsh, L.

  Ullswater, V.

  Morris of Bolton, B.

  Vallance of Tummel, L.

  Mowbray and Stourton, L.

  Waddington, L.

  Naseby, L.

  Wakeham, L.

  Neuberger, B.

  Wallace of Saltaire, L.

  Newby, L.

  Walmsley, B.

  Northbrook. L.

  Watson of Richmond, L.

  Northesk, E.

  Wilcox, B.

  Northover, B.

  Williams of Crosby, B.

  Norton of Louth, L.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Alli, L.

  Bragg, L.

  Andrews, B.

  Brett, L.

  Ashton of Upholland, B.

  Brooke of Alverthorpe, L.

  Bach, L.

  Brookman, L.

  Bassam of Brighton, L.

  Campbell-Savours, L.

  Bernstein of Craigweil, L.

  Carter, L.

  Bhattacharyya, L.

  Carter of Coles, L.

  Billingham, B.

  Christopher, L.

  Blackstone, B.

  Clake of Hampstead, L.

  1053

  Clinton-Davis, L.

  Lockwood, B.

  Condon, L.

  McDonagh, B.

  Corbett of Castle Vale, L.

  Macdonald of Tradeston, L.

  Crawley, B.

  McIntosh of Haringey, L.

  Davies of Coity. L.

  McIntosh of Hudnall, B.

  Davies of Oldham, L. [Teller]

  McKenzie of Luton, L.

  Dean of Thornton-le-Fylde, B.

  Marsh, L.

  Dearing, L.

  Massey of Darwen, B.

  Desai, L.

  Maxton, L.

  Donoughue, L.

  Merlyn-Rees, L.

  Drayson. L.

  Mitchell, L.

  Dubs, L.

  Morgan of Drefelin, B.

  Elder. L.

  Morgan of Huyton, B.

  Evans of Temple Guiting, L.

  Morris of Aberavon, L.

  Falconer of Thoroton, L. (Lord

  Paul, L.

  Chancellor)

  Pendry, L.

  Farrington of Ribbleton. B.

  Peston, L.

  Faulkner of Worcester, L.

  Plant of Highfield, L.

  Filkin, L.

  Ponsonby of Shulbrede, L.

  Gale, B.

  Prosser, B.

  Giddens, L.

  Radice, L.

  Gilbert, L.

  Ramsay of Cartvale, B.

  Golding, B.

  Randall of St. Budeaux, L.

  Goldsmith, L.

  Rendell of Babergh, B.

  Goudie, B.

  Renwick of Clifton, L.

  Gould of Brookwood, L.

  Richard, L.

  Gould of Potternewton, B.

  Rooker, L.

  Graham of Edmonton, L.

  Rosser, L.

  Greengross, B.

  Rowlands, L.

  Griffiths of Burry Port, L.

  Royall of Blaisdon, B.

  Grocott, L. [Teller]

  Sainsbury of Turville, L.

  Harris of Haringey, L.

  Sawyer, L.

  Hart of Chilton, L.

  Scotland of Asthal, B.

  Haskel, L.

  Sewel, L.

  Haworth. L.

  Simon, V.

  Henig, B.

  Smith of Gilmorehill, B.

  Hogg of Cumbernauld, L.

  Stone of Blackheath, L.

  Hollis of Heigham, B.

  Strabolgi, L.

  Howarth of Breckland, B.

  Symons of Vernham Dean, B.

  Howells of St. Davids, B.

  Thornton, B.

  Hoyle, L.

  Tomlinson, L.

  Hughes of Woodside, L.

  Triesman, L.

  Hunt of Kings Heath, L.

  Truscott, L.

  Janner of Braunstone, L.

  Tunnicliffe, L.

  Jay of Paddington, B.

  Turnberg, L.

  Jones, L.

  Turner of Camden, B.

  Jordan, L.

  Wall of New Barnet, B.

  Kilclooney, L.

  Warner, L.

  King of West Bromwich, L.

  Waverley, V.

  Laming, L.

  Weatherill, L.

  Layard, L.

  Weidenfeld, L.

  Leitch, L.

  Whitaker, B.

  Levy, L.

  Whitty, L.

  Lipsey, L.

  Williams of Elvel, L.

  Listowel, E.

  Winston, L.

  Young of Norwood Green, L.

  Resolved in the affirmative and amendment agreed to accordingly.
  On Question, Motion, as amended, agreed to.
  12.53 p.m.

  MOTION B
  Baroness Scotland of Asthalrose to move Motion B, That this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32F.
  The noble Baroness said: My Lords, for the reasons given by my noble and learned friend, I beg to move.
  1054
  Moved, That this House do not insist on its Amendments Nos. 27, 31 and 32 in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 27C, 27D and 32F.—(Baroness Scotland of Asthal.)
  On Question, Motion agreed to.

  MOTION C
  Baroness Scotland of Asthalrose to move Motion C, That the House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.
  The noble Baroness said: My Lords, I pray in aid the reasons already expounded in relation to this amendment by my noble and learned friend the Lord Chancellor. I also invite noble Lords to note that a very serious statement was made during the first debate. That was that the Liberal Democrats would be willing to veto the Bill. We now ask—
  Lord Goodhart: My Lords, I must make it clear to the noble Baroness that this is not our amendment. We said that as long as the noble Lord, Lord Kingsland, chooses to move his amendment, we will support it, even if he intends, as the ultimate weapon, to block the Bill.
  Baroness Scotland of Asthal: My Lords, the House heard what was said. I now ask Her Majesty's Loyal Opposition whether they share the view that was expressed and whether they, too, will veto this Bill.
  Moved, That the House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.—(Baroness Scotland of Asthal.)
  Lord Kingsland: My Lords, it is our earnest wish that this Bill finds its way on to the statute book.
  The Chairman of Committees (Lord Brabazon of Tara): My Lords, the Question is that Motion C be agreed to.
  Lord Kingslandrose to move, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33G, 33I and 33J in lieu thereof.
  The noble Lord said: My Lords, I have spoken to this amendment, and I beg to move.
  Moved, as an amendment to Motion C, leave out from "House" to end and insert "do insist on its Amendment No. 33D and do disagree with the Commons in their Amendments Nos. 33C, 33G. 33I and 33J in lieu thereof".—(Lord Kingsland.)
  Lord Lucas: My Lords, I think that I should give the House notice of my intentions. I and many other Back-Benchers have laboured long and hard and have listened

  1055
  to great arguments from the Front Benches and Members of the Back Benches. I think that it has been made clear what the feelings of this House are. I very much hope that the Front Benches here and in another place will be able to resolve their differences. But if we find ourselves at tea time sending back substantial disagreements again to another place, I shall after the votes move for the Adjournment of the House.
  12.56 p.m.
  On Question, Whether the said amendment (No. C1) shall he agreed to?
  Their Lordships divided: Contents, 194; Not-Contents, 123.

  Division No. 13

  CONTENTS

  Ackner, L.

  Freyberg, L.

  Addington, L.

  Garden, L.

  Ahmed, L.

  Gardner of Parkes, B.

  Alliance, L.

  Garel-Jones, L.

  Ampthill, L.

  Geddes, L.

  Anelay of St Johns, B.

  Glentoran, L.

  Arran, E.

  Goodhart, L.

  Astor, V.

  Goschen, L.

  Astor of Hever, L.

  Greaves, L.

  Avebury, L.

  Griffiths of Fforestfach, L.

  Baker of Dorking, L.

  Hamwee, B.

  Barker, B.

  Hanham, B.

  Beaumont of Whitley, L.

  Harris of High Cross, L.

  Bell, L.

  Harris of Peckham, L.

  Blackwell, L.

  Harris of Richmond, B.

  Bledisloe, V.

  Hayhoe, L.

  Bonham-Carter of Yarnbury, B.

  Henley, L.

  Bradshaw, L.

  Higgins, L.

  Bridgeman, V.

  Hodgson of Astley Abbotts, L.

  Bridges, L.

  Hogg, B.

  Britian of Spennithorne, L.

  Home, L.

  Broers, L.

  Hooper, B.

  Brooke of Sutton Mandeville, L.

  Howard of Rising, L.

  Brougham and Vaux, L.

  Howe, E.

  Buscombe, B.

  Howe of Aberavon, L.

  Byford, B.

  Howe of Idlicote, B.

  Campbell of Alloway, L.

  Jenkin of Roding, L.

  Carlisle of Bucklow, L.

  Joffe, L.

  Chalker of Wallasey, B.

  Kalms, L.

  Chorley, L.

  Kennedy of The Shaws, B.

  Clement-Jones, L.

  Kimball, L.

  Cope of Berkeley, L. [Teller]

  King of Bridgwater, L.

  Crickhowell, L.

  Kingsland, L.

  Cumberlege, B.

  Knight of Collingtree, B.

  Denham, L.

  Laing of Dunphail, L.

  Dholakia, L.

  Laird, L.

  Dixon-Smith. L.

  Laming, L.

  D'Souza, B.

  Lamont of Lerwick, L.

  Dykes, L.

  Lang of Monkton, L.

  Eccles of Moulton, B.

  Linklater of Butterstone, B.

  Eden of Winton, L.

  Liverpool, E.

  Elles, B.

  Livsey of Talgarth, L.

  Elliott of Morpeth, L.

  Lloyd of Berwick, L.

  Elton, L.

  Lucas, L.

  Erroll, E.

  Ludford, B.

  Falkland, V.

  Luke, L.

  Falkner of Margravine, B.

  Lyell, L.

  Feldman, L.

  McColl of Rogart, L.

  Ferrers, E.

  Maclennan of Rogart, L.

  Fookes, B.

  McNally, L.

  Forsyth of Drumlean, L.

  Maddock, B.

  Fowler. L.

  Mallalieu, B.

  Freeman, L.

  Mancroft, L.

  1056

  Marlesford, L.

  Saatchi, L.

  Mayhew of Twysden, L.

  St John of Fawsley, L.

  Miller of Chilthorne Domer, B.

  Sandberg, L.

  Miller of Hendon, B.

  Scott of Needham Market, B.

  Monson, L.

  Seccombe, B.

  Montrose, D.

  Selborne, E.

  Moore of Lower Marsh, L.

  Selkirk of Douglas, L.

  Morris of Bolton, B.

  Selsdon, L.

  Mowbray and Stourton. L.

  Sharp of Guildford, B.

  Naseby, L.

  Shaw of Northstead, L.

  Neuberger, B.

  Sheldon, L.

  Newby, L.

  Shutt of Greetland, L.

  Newton of Braintree, L.

  Skidelsky, L.

  Northbrook, L.

  Slim, V.

  Northesk, E.

  Smith of Clifton, L.

  Northover, B.

  Soulsby of Swaffham Prior, L.

  Norton of Louth, L.

  Steel of Aikwood, L.

  Oakeshott of Seagrove Bay, L.

  Sterling of Plaistow, L.

  O'Cathain, B.

  Stern, B.

  Onslow, E.

  Stewartby, L.

  Oppenheim-Barnes, B.

  Stoddart of Swindon, L.

  Owen, L.

  Strathclyde, L.

  Palumbo, L.

  Taverne, L.

  Park of Monmouth, B.

  Thatcher, B.

  Parkinson, L.

  Thomas of Gresford, L. [Teller]

  Pearson of Rannoch, L.

  Thomas of Swynnerton, L.

  Perry of Southwark, B.

  Thomas of Walliswood, B.

  Phillips of Sudbury, L.

  Thomson of Monifieth, L.

  Plumb, L.

  Tombs, L.

  Portsmouth, Bp.

  Tope, L.

  Quirk, L.

  Tordoff, L.

  Rawlings, B.

  Trumpington, B.

  Razzall, L.

  Ullswater, V.

  Redesdale, L.

  Vallance of Tummel, L.

  Renfrew of Kaimsthorn, L.

  Waddington, L.

  Rennard, L.

  Wakeham, L.

  Renton, L.

  Wallace of Saltaire, L.

  Richardson of Calow, B.

  Walmsley, B.

  Roberts of Llandudno, L.

  Watson of Richmond, L.

  Rodgers of Quarry Bank, L.

  Wedderburn of Charlton, L.

  Rogan, L.

  Wilcox, B.

  Roper, L.

  Williams of Crosby, B.

  Russell-Johnston, L.

  Willoughby de Broke, L.

  Ryder of Wensum, L.

  Wilson of Dinton, L.

  NOT-CONTENTS

  Alli, L.

  Elder, L.

  Andrews, B.

  Evans of Temple Guiting, L.

  Ashton of Upholland, B.

  Falconer of Thoroton, L.(Lord Chancellor)

  Bach, L.

  Farrington of Ribbleton, B.

  Bassam of Brighton, L.

  Faulkner of Worcester, L.

  Bernstein of Craigweil, L.

  Filkin, L.

  Bhattacharyya, L.

  Gale, B.

  Billingham, B.

  Giddens, L.

  Blackstone, B.

  Gilbert, L.

  Brett, L.

  Golding, B.

  Brooke of Alverthorpe, L.

  Goldsmith, L.

  Brookman, L.

  Goudie, B.

  Campbell-Savours, L.

  Gould of Brookwood, L.

  Carter, L.

  Gould of Potternewton, B.

  Carter of Coles, L.

  Graham of Edmonton, L.

  Christopher, L.

  Greengross, B.

  Clarke of Hampstead, L.

  Griffiths of Burry Port, L.

  Clinton-Davis, L.

  Grocott, L. [Teller]

  Condon, L.

  Harris of Haringey, L.

  Corbett of Castle Vale, L.

  Hart of Chilton, L.

  Crawley, B.

  Haskel, L.

  Davies of Coity, L.

  Haworth, L.

  Davies of Oldham, L. [Teller]

  Henig, B.

  Dean of Thornton-le-Fylde, B.

  Hogg of Cumbernauld, L.

  Dearing, L.

  Hollis of Heigham, B.

  Desai, L.

  Howarth of Breckland, B.

  Donoughue, L.

  Howells of St. Davids, B.

  Drayson, L.

  Howie of Troon, L.

  Dubs, L.

  1057

  Hoyle, L.

  Ramsay of Cartvale, B.

  Hughes of Woodside, L.

  Randall of St. Budeaux, L.

  Hunt of Kings Heath, L.

  Rendell of Babergh, B.

  Janner of Braunstone, L.

  Renwick of Clifton, L.

  Jay of Paddington, B.

  Richard, L.

  Jones, L.

  Rooker, L.

  Jordan, L.

  Rosser, L.

  King of West Bromwich, L.

  Rowlands, L.

  Layard, L.

  Royall of Blaisdon, B.

  Leitch, L.

  Sainsbury of Turville, L.

  Levy. L.

  Sawyer, L.

  Lipsey. L.

  Scotland of Asthal, B.

  Lockwood, B.

  Sewel, L.

  McDonagh, B.

  Simon, V.

  Macdonald of Tradeston, L.

  Stone of Blackheath, L.

  McIntosh of Haringey, L.

  Strabolgi, L.

  McIntosh of Hudnall, B.

  Symons of Vernham Dean, B.

  McKenzie of Luton, L.

  Thornton, B.

  Marsh. L.

  Tomlinson, L.

  Massey of Darwen, B.

  Triesman, L.

  Maxton, L.

  Truscott, L.

  Merlyn-Rees, L.

  Tunnicliffe, L.

  Mitchell, L.

  Turnberg, L.

  Morgan of Drefelin, B.

  Turner of Camden, B.

  Morgan of Huyton, B.

  Wall of New Barnet, B.

  Morris of Aberavon, L.

  Warner, L.

  Paul. L.

  Waverley, V.

  Pendry, L.

  Weatherill, L.

  Peston, L.

  Whitaker, B.

  Plant of Highfield, L.

  Whitty, L.

  Ponsonby of Shulbrede, L.

  Williams of Elvel, L.

  Prosser. B.

  Winston, L.

  Radice, L.

  Young of Norwood Green, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  On Question, Motion, as amended, agreed to.
  1.10 p.m.
  Lord Grocott: My Lords, if it is helpful, as I believe it has been, to give indications of time, I shall do so. As the House knows, we will once again send the Bill back to the representatives of the British people to hear their judgment on our deliberations. That will take around five hours, so the House will resume not earlier than six o'clock. I beg to move that the House do now adjourn during pleasure.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 1.11 to 6.30 p.m.]
  A message was brought from the Commons, That they insist on certain of their amendments to a Lords amendment to the Prevention of Terrorism Bill; they insist on their disagreement to certain other Lords amendments and insist on their amendments in lieu thereof; they insist on their disagreement to Lords amendments proposed in lieu of a Lords amendment; they insist on their amendments to words so restored to the Bill by their insistence to a disagreement to a certain Lords amendment; they disagree with the Lords amendments in lieu for which they assign a reason; they insist on their disagreement with certain Lords amendments and insist on certain of their
  1058
  amendments in lieu; and they do not insist on an amendment in lieu to which the Lords have disagreed but do propose an amendment in lieu thereof.
  Lord Falconer of Thoroton: My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.
  Moved, That the Commons reasons and amendments be considered forthwith.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  MOTION A
  Lord Falconer of Thorotonrose to move. That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.
  The noble and learned Lord said: My Lords, both Houses of Parliament have laboured hard to craft an effective Prevention of Terrorism Bill. This House has made a significant contribution to that process, and significant amendments have been made as a result of the work that we have done.
  We reached a point earlier today—when I say "today", I mean Thursday, which has still not come to an end in this House—at which agreement was close. The problems related to the burden of proof and a sunset clause. For a variety of reasons, a sunset clause was not acceptable and nor was the burden of proof. Concern was also raised about the need for this House to be able to amend the Bill in the future, if research revealed that it was not performing its job appropriately.
  After much work—I pay tribute to my right honourable friend the Home Secretary for the huge contribution that he made—an acceptable solution has, I believe, been found. As my noble friend Lady Scotland of Asthal made clear on 10 March—at cols. 897 and 898 of Hansard—an important method by which these matters could be dealt with was amendment of the Bill that we are about to pass through our forthcoming Bill on acts preparatory to terrorism. That depends on our ensuring that there is an effective timetable in which that process can take place, a timetable that would allow consideration in the future, after there had been a report by the reviewer who we agreed should be included in the Bill.
  In another place, my right honourable friend the Home Secretary suggested a timetable along the following lines: Royal Assent to this Bill in March 2005; the appointment of an independent reviewer of this Bill in March 2005; the publication of the draft counter-terrorism Bill, which will deal with acts preparatory to

  1059
  terrorism, and the start of pre-legislative scrutiny in late autumn 2005; and the presentation to the Home Secretary of the first report of the independent reviewer and the laying of the report before Parliament by the Home Secretary early in 2006. The report will include the reviewer's report on the operation of the current Bill and the implications of the new offences for this Bill.
  The new counter-terrorism Bill will be introduced into the Commons in spring 2006, and the renewal of this Bill's life will be in March 2006. Until approximately July 2006, we will have the passage of the new counter-terrorism Bill through Parliament, with Royal Assent—approximately—in July 2006. That will allow the process of reviewing this Bill and the passage of a vehicle in which any amendments can be made to go on at the same time. Although those amendments could, technically, include complete repeal, we believe that that will not arise. The effect of the review taking place will be that this could be looked at.
  We believe that the proposal brings together all parties' concerns but allows them to preserve the positions that they have taken, and I invite all parties in the House to recognise the value of the proposal and to rally round the Commons amendments as a result. The proposal is made in a constructive spirit and I hope that the House will view it in that way.
  Before I close, I want to thank the following people: the staff of Hansard, who will be here for several more hours; our Doorkeepers; our Clerks; the staff of the Printed Paper Office, who have performed remarkably; the Public Bill Office; the Refreshment Department, which even now remains inundated; and our security staff. This is the longest-ever recorded Sitting of the House. The previous record was 19 hours on the Gas Bill on 3 and 4 June 1986. We have overtaken that record. My only sorrow is that I was not able to go around to each of the former Conservative Home Secretaries and congratulate them on their previous speeches. I beg to move.
  Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1 A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)
  Lord Goodhartrose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have
  1060
  insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17".
  The noble Lord said: My Lords, before I speak to Motion A1, it may be helpful if I follow up on what the noble and learned Lord the Lord Chancellor has just said about the agreement reached between all three parties in your Lordships' House. We have achieved something which, while not technically speaking a sunset Bill, is pretty close to it. We have a sunset clause in all but name. We feel that it achieves the purpose we seek, which is to ensure that there is the possibility of re-debating the issues debated in this Bill and of the possible amendment—or, indeed, repeal—of its provisions. That would not have been possible if we were faced with the all-or-nothing choice that would have been presented merely by the possibility of a debate on an order for renewal.
  We rely in particular on the undertakings made to a commitment to introduce a new counter-terrorism Bill in accordance with the timetable, which we trust will be followed in the spirit if not in the letter, but certainly with a view to its completion by the end of 2006. We also rely on an undertaking that the Long Title of the new Bill should be sufficient to permit the amendment or repeal of any provision of the Prevention of Terrorism Bill.
  In order to put it on the record, I should say that, in the event of their re-election, if the Government renege on the undertakings or are guilty of an unacceptable degree of delay in implementing them, we would regard that as a justification for departing from the usual convention of your Lordships' House that we do not reject secondary legislation.
  Noble Lords: Oh!
  Lord Goodhart: My Lords, I hear certain expressions of dismay, but this is an important constitutional Bill and we have agreed to the most recent proposal on the basis of undertakings given by the Government. We trust those undertakings and I am sure that the Government have every intention of carrying them out. But I should warn Members of the party opposite that, in the circumstances, we reserve this right. We have no expectation that we will ever need to rely on it, but it could possibly arise.
  I turn now to our amendment. I shall be brief because we have already debated it on a number of occasions. If it is agreed, this amendment will ensure that control orders at all levels will be made by judges and not by the Home Secretary, and that at all levels the standard of proof should be that of beyond reasonable doubt. We understand that the Conservative Party will not now support that. They regard the sunset clause or its equivalent—its replacement—as the key issue for them on this Bill. They are satisfied with what has been achieved on that and, as I understand it, do not wish to press for anything further.

  1061
  We have always made it clear that the parts contained in Amendment No. 1 are at least as important to us. We therefore wish for a vote in order to put on the record the importance that we attribute to that amendment. I beg to move.
  Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords Amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Goodhart.)
  Lord Kingsland: My Lords, I thank noble Lords for standing firm throughout the past 24 hours, in the face of unparalleled pressure, to support what I consider to be the highest principles in our constitution. The effect of that has been demonstrated by the government overtures this afternoon, which, we find, satisfy all our requirements for the sunset clause.
  The noble and learned Lord the Lord Chancellor has set out a timetable that is entirely satisfactory and has given an unequivocal commitment that the scope of the counter-terrorism proposals will be wide enough to cover all aspects of the Bill that is about to go on to the statute book. The noble Lord, Lord Goodhart, asked the noble and learned Lord the Lord Chancellor whether he would confirm whether that was so. I do not think that I saw the noble and learned Lord blink but I took the fact that he said nothing as confirmation that his response to the question of the noble Lord, Lord Goodhart, was "Yes".
  Lord Falconer of Thoroton: My Lords, I can confirm that I gave that assurance. Indeed, the right honourable Mr Michael Howard told the world at 5.15 p.m. that I had privately given such an assurance at 4.15 p.m. to the noble Lord, Lord Strathclyde—private being a rather short-lived assurance on this occasion.
  Lord Kingsland: My Lords, in some ways I think that the reply of the noble and learned Lord the Lord Chancellor is academic, because after the general election we will be in charge of these affairs. And I can give an undertaking to your Lordships' House that we will stick to the timetable and the scope of the Bill.
  There are still many things that we do not like about this Bill, in particular those set out in the amendment tabled by the noble Lord, Lord Goodhart. However, in all the circumstances, we do not feel inclined to support his amendment. We feel that what I have described as the equivalent of the sunset clause will
  1062
  give us sufficient constitutional guarantees over the next year. I hope that the noble Lord will not mind if I invite those behind me to abstain.
  I conclude by sharing entirely the sentiments expressed by the noble and learned Lord about Hansard, and all the splendid help that we have had from there, and all the other parts of your Lordships' House that have contributed to make these 24 hours much less painful than they would otherwise have been.
  Baroness O'Neill of Bengarve: My Lords, there are one or perhaps two further undertakings that are relevant. One has been implicitly made. The noble and learned Lord the Lord Chancellor has committed his party to a certain course of action with respect to legislation, after an election, on counter-terrorism. I think that I heard the noble Lord, Lord Kingsland, make a comparable undertaking on behalf of his party, should it be in power. I hope that we may have a comparable undertaking from the Liberal Democrats.
  Lord Falconer of Thoroton: My Lords, for some reason it never occurred to anybody that we should ask for such an undertaking.
  Lord Thomas of Gresford: My Lords, I give that undertaking on behalf of my party.
  I wish to add the thanks of my party to those of the noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor to all those who have assisted us and who have been behind the scenes in what has been a very long and difficult period of time. I particularly thank my colleagues on the Liberal Democrat Benches, 85 to 90 per cent of whom have voted in every Division during the passage of the Bill.
  I shall speak briefly to the amendment. It has received a quite inaccurate title "the burden of proof". 1t is not about the burden of proof at all. It is about two very important matters of principle. The first is that a non-derogating order should be granted by a judge and not by a Secretary of State, a Minister of the Crown. Secondly, in granting such an order, that person should apply the standard of proof of "on the balance of probabilities". As I have said so many times, and shall not repeat, they are principles that are deeply rooted in the law and constitution of this country. We stand our ground on these principles.
  The Earl of Onslow: My Lords, if the groan goes up, the groan goes up. Oh why, oh why, oh why could they not have said this 24 hours ago? No, the noble Baroness did not. We have got a timetable and all the undertakings that we want. There is an expression: if it looks like a duck, quacks like a duck and swims like a duck, it is a duck. The only difference between this duck and the duck provided by the noble and learned Lord is that his duck is just efficient in one webbed foot.
  Lord Falconer of Thoroton: My Lords, at the Hansard reference that I gave, the noble Baroness, Lady Scotland, specifically identified the Act of Parliament that we were

  1063
  going to propose in respect of which amendments could be made. That has been the position for some very considerable time during the passage of the Bill. It is not a sunset clause, but it deals with the problem—the need to amend—that everybody wishes. It is not to the credit of the noble Earl, Lord Onslow, that he made the remark he just made.
  Lord Goodhart: My Lords, I think that at one point in my introductory speech I may have referred to "beyond reasonable doubt" when I meant "on the balance of probabilities". I am afraid that after the longest Thursday of my life, I am prone to one or two little slips of that nature.
  This has been a remarkable occasion. The sight of your Lordships' House with more than 250 Members present at 5 a.m. was truly astonishing. I can only say that it is one that I hope never to have to see again. But it was at least interesting. Having said that, I wish to test the opinion of the House.
  6.49 p.m.
  On Question, Whether the said amendment (A1) shall be agreed to?
  Their Lordships divided: Contents, 56; Not-Contents, 117.

  Division No. 14

  CONTENTS

  Addington, L.

  Oakeshott of Seagrove Bay, L.

  Avebury, L.

  Phillips of Sudbury, L.

  Barker, B.

  Razzall, L.

  Bonham-Carter of Yarnbury, B.

  Redesdale, L.

  Bradshaw, L.

  Rennard, L.

  Clement-Jones, L.

  Roberts of Llandudno, L.

  Dholakia, L.

  Roper, L. [Teller]

  Dykes, L.

  Russell-Johnston, L.

  Erroll, E.

  Sandberg, L.

  Falkland, V.

  Scott of Needham Market, B.

  Falkner of Margravine, B.

  Sharp of Guildford, B.

  Forsyth of Drumlean, L.

  Shutt of Greetland, L. [Teller]

  Garden, L.

  Southwark, Bp.

  Goodhart, L.

  Steel of Aikwood, L.

  Greaves, L.

  Stoddart of Swindon, L.

  Hamwee, B.

  Taverne, L.

  Harris of Richmond, B.

  Thomas of Gresford, L.

  Kennedy of The Shaws, B.

  Thomas of Walliswood, B.

  Linklater of Butterstone, B.

  Thomson of Monifieth, L.

  Livsey of Talgarth, L.

  Tope, L.

  Ludford, B.

  Tordoff, L.

  Maclennan of Rogart, L.

  Vallance of Tummel, L.

  Maddock, B.

  Wallace of Saltaire, L.

  Mallalieu, B.

  Walmsley, B.

  Miller of Chilthorne Domer, B.

  Watson of Richmond, L.

  Neuberger. B.

  Wedderburn of Charlton, L.

  Newby, L.

  Williams of Crosby, B.

  Northover, B.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Alli, L.

  Billingham, B.

  Andrews, B.

  Bledisloe, V.

  Ashton of Upholland, B.

  Brennan, L.

  Bach, L.

  Brett, L.

  Bassam of Brighton. L.

  Brooke of Alverthorpe, L.

  Bernstein of Craigweil, L.

  Brookman, L.

  Bhattacharyya, L.

  Campbell-Savours, L.

  1064

  Carter of Coles, L.

  Lipsey, L.

  Christopher, L.

  Listowel, E.

  Clarke of Hampstead, L.

  Lockwood, B.

  Clinton-Davis, L.

  McDonagh, B.

  Corbett of Castle Vale, L.

  Macdonald of Tradeston, L.

  Crawley, B.

  McIntosh of Haringey, L.

  Davies of Coity, L.

  McIntosh of Hudnall, B.

  Davies of Oldham, L. [Teller]

  McKenzie of Luton, L.

  Dean of Thornton-le-Fylde, B.

  Marsh, L.

  Dearing, L.

  Massey of Darwen, B.

  Desai, L.

  Maxton, L.

  Donoughue, L.

  Merlyn-Rees, L.

  Drayson, L.

  Mitchell, L.

  Dubs, L.

  Morgan, L.

  Elder, L.

  Morgan of Drefelin, B.

  Evans of Temple Guiting, L.

  Morgan of Huyton, B.

  Falconer of Thornton, L. (Lord Chancellor)

  Pendry, L.

  Farrington of Ribbleton, B.

  Ponsonby of Shulbrede, L.

  Faulkner of Worcester, L.

  Prosser, B.

  Filkin, L.

  Ramsay of Cartvale, B.

  Gale, B.

  Randall of St. Babergh, L.

  Gavron, L.

  Rendell of Babergh, B.

  Giddens, L.

  Richard, L.

  Gilbert, L.

  Rooker, L.

  Golding, B.

  Rosser, L.

  Goldsmith, L.

  Rowlands, L.

  Goudie, B.

  Royall of Blaisdon, B.

  Gould of Brookwood, L.

  Sainsbury of Turville, L.

  Gould of Potternewton, B.

  Sawyer, L.

  Grabiner, L.

  Scotland of Asthal, B.

  Graham of Edmonton, L.

  Sewel, L.

  Greengross, B.

  Simon, V.

  Grocott, L. [Teller]

  Slim, V.

  Harris of Haringey, L.

  Snape, L.

  Hart of Chilton. L.

  Stone of Blackheath, L.

  Haskel, L.

  Strabolgi, L.

  Haworth, L.

  Sutherland of Houndwood, L.

  Henig, B.

  Symons of Vernham Dean, B.

  Hogg of Cumbernauld. L.

  Thornton, B.

  Hollis of Heigham, B.

  Tomlinton, L.

  Howarth of Breckland, B.

  Triesman, L.

  Howells of St. Davids, B.

  Truscott, L.

  Hoyle, L.

  Tunnicliffe, L.

  Hughes of Woodside, L.

  Turner of Camden, B.

  Hunt of Chesterton, L.

  Wall of New Barnet, B.

  Irvine of Lairg, L.

  Warner, L.

  Joffe, L.

  Waverley, V.

  Jordan, L.

  Whitaker, B.

  King of West Bromwich. L.

  Whitty, L.

  Layard, L.

  Williams of Elvel, L.

  Leitch, L.

  Williamson of Horton, L.

  Young of Norwood Green, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  On Question, Motion agreed to.
  6.58 p.m.

  MOTION B
  Baroness Scotland of Asthalrose to move, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33J and 33L in lieu thereof.
  The noble Baroness said: My Lords, we have all spoken on this amendment on a number of occasions, and I do not intend to weary your Lordships by repeating it again, notwithstanding the grave temptation offered to me by the noble Lord, Lord Forsyth of Drumlean, from a sedentary position.

  1065
  I take this opportunity to thank all noble Lords who have contributed so wonderfully to these debates. If your Lordships will allow me, I particularly thank those noble Lords who have found physical movement sometimes a little more difficult than others. I mention in particular the noble Baroness, Lady Park, the noble and learned Lord, Lord Ackner, and my dear noble friend Lord Merlyn-Rees.
  Moved, That this House do not insist on its Amendment No. 33D, but do agree with the Commons in their Amendments Nos. 33C, 33G, 33J and 33L in lieu thereof.—(Baroness Scotland of Asthal.)
  On Question, Motion agreed to.
  Lord Grocott: My Lords, I beg to move that the House do now adjourn during pleasure for half an hour, pending Royal Assent, until 7.30.
  1066
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 7 to 7.30 p.m.]

Royal Assent
The Chairman of Committees: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
Prevention of Terrorism Act.
House adjourned at twenty-nine minutes before eight o'clock.