LORDS AMENDMENTS (Hansard, 10 March 2005)

HL Deb 10 March 2005 vol 670 cc846-77 846

§ 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;

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§ 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.

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§ 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"

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§ 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
(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
(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
(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).

853

§ (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.

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§ (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.

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§ (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. 859 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. 861 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, 862 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 Gresford
moved, 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
(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,

864

§ 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.

§ 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.

873

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.

876

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.

877

§ 12.38 p.m.