MOTION A

HL Deb 10 March 2005 vol 670 cc1058-64

Lord Falconer of Thoroton

rose to move. That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.

The noble and learned Lord said: My Lords, both Houses of Parliament have laboured hard to craft an effective Prevention of Terrorism Bill. This House has made a significant contribution to that process, and significant amendments have been made as a result of the work that we have done.

We reached a point earlier today—when I say "today", I mean Thursday, which has still not come to an end in this House—at which agreement was close. The problems related to the burden of proof and a sunset clause. For a variety of reasons, a sunset clause was not acceptable and nor was the burden of proof. Concern was also raised about the need for this House to be able to amend the Bill in the future, if research revealed that it was not performing its job appropriately.

After much work—I pay tribute to my right honourable friend the Home Secretary for the huge contribution that he made—an acceptable solution has, I believe, been found. As my noble friend Lady Scotland of Asthal made clear on 10 March—at cols. 897 and 898 of Hansard—an important method by which these matters could be dealt with was amendment of the Bill that we are about to pass through our forthcoming Bill on acts preparatory to terrorism. That depends on our ensuring that there is an effective timetable in which that process can take place, a timetable that would allow consideration in the future, after there had been a report by the reviewer who we agreed should be included in the Bill.

In another place, my right honourable friend the Home Secretary suggested a timetable along the following lines: Royal Assent to this Bill in March 2005; the appointment of an independent reviewer of this Bill in March 2005; the publication of the draft counter-terrorism Bill, which will deal with acts preparatory to terrorism, and the start of pre-legislative scrutiny in late autumn 2005; and the presentation to the Home Secretary of the first report of the independent reviewer and the laying of the report before Parliament by the Home Secretary early in 2006. The report will include the reviewer's report on the operation of the current Bill and the implications of the new offences for this Bill.

The new counter-terrorism Bill will be introduced into the Commons in spring 2006, and the renewal of this Bill's life will be in March 2006. Until approximately July 2006, we will have the passage of the new counter-terrorism Bill through Parliament, with Royal Assent—approximately—in July 2006. That will allow the process of reviewing this Bill and the passage of a vehicle in which any amendments can be made to go on at the same time. Although those amendments could, technically, include complete repeal, we believe that that will not arise. The effect of the review taking place will be that this could be looked at.

We believe that the proposal brings together all parties' concerns but allows them to preserve the positions that they have taken, and I invite all parties in the House to recognise the value of the proposal and to rally round the Commons amendments as a result. The proposal is made in a constructive spirit and I hope that the House will view it in that way.

Before I close, I want to thank the following people: the staff of Hansard, who will be here for several more hours; our Doorkeepers; our Clerks; the staff of the Printed Paper Office, who have performed remarkably; the Public Bill Office; the Refreshment Department, which even now remains inundated; and our security staff. This is the longest-ever recorded Sitting of the House. The previous record was 19 hours on the Gas Bill on 3 and 4 June 1986. We have overtaken that record. My only sorrow is that I was not able to go around to each of the former Conservative Home Secretaries and congratulate them on their previous speeches. I beg to move.

Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1 A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 and 37X in lieu of those Lords amendments; and do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)

Lord Goodhart

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17".

The noble Lord said: My Lords, before I speak to Motion A1, it may be helpful if I follow up on what the noble and learned Lord the Lord Chancellor has just said about the agreement reached between all three parties in your Lordships' House. We have achieved something which, while not technically speaking a sunset Bill, is pretty close to it. We have a sunset clause in all but name. We feel that it achieves the purpose we seek, which is to ensure that there is the possibility of re-debating the issues debated in this Bill and of the possible amendment—or, indeed, repeal—of its provisions. That would not have been possible if we were faced with the all-or-nothing choice that would have been presented merely by the possibility of a debate on an order for renewal.

We rely in particular on the undertakings made to a commitment to introduce a new counter-terrorism Bill in accordance with the timetable, which we trust will be followed in the spirit if not in the letter, but certainly with a view to its completion by the end of 2006. We also rely on an undertaking that the Long Title of the new Bill should be sufficient to permit the amendment or repeal of any provision of the Prevention of Terrorism Bill.

In order to put it on the record, I should say that, in the event of their re-election, if the Government renege on the undertakings or are guilty of an unacceptable degree of delay in implementing them, we would regard that as a justification for departing from the usual convention of your Lordships' House that we do not reject secondary legislation.

Noble Lords

Oh!

Lord Goodhart

My Lords, I hear certain expressions of dismay, but this is an important constitutional Bill and we have agreed to the most recent proposal on the basis of undertakings given by the Government. We trust those undertakings and I am sure that the Government have every intention of carrying them out. But I should warn Members of the party opposite that, in the circumstances, we reserve this right. We have no expectation that we will ever need to rely on it, but it could possibly arise.

I turn now to our amendment. I shall be brief because we have already debated it on a number of occasions. If it is agreed, this amendment will ensure that control orders at all levels will be made by judges and not by the Home Secretary, and that at all levels the standard of proof should be that of beyond reasonable doubt. We understand that the Conservative Party will not now support that. They regard the sunset clause or its equivalent—its replacement—as the key issue for them on this Bill. They are satisfied with what has been achieved on that and, as I understand it, do not wish to press for anything further. We have always made it clear that the parts contained in Amendment No. 1 are at least as important to us. We therefore wish for a vote in order to put on the record the importance that we attribute to that amendment. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords Amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Goodhart.)

Lord Kingsland

My Lords, I thank noble Lords for standing firm throughout the past 24 hours, in the face of unparalleled pressure, to support what I consider to be the highest principles in our constitution. The effect of that has been demonstrated by the government overtures this afternoon, which, we find, satisfy all our requirements for the sunset clause.

The noble and learned Lord the Lord Chancellor has set out a timetable that is entirely satisfactory and has given an unequivocal commitment that the scope of the counter-terrorism proposals will be wide enough to cover all aspects of the Bill that is about to go on to the statute book. The noble Lord, Lord Goodhart, asked the noble and learned Lord the Lord Chancellor whether he would confirm whether that was so. I do not think that I saw the noble and learned Lord blink but I took the fact that he said nothing as confirmation that his response to the question of the noble Lord, Lord Goodhart, was "Yes".

Lord Falconer of Thoroton

My Lords, I can confirm that I gave that assurance. Indeed, the right honourable Mr Michael Howard told the world at 5.15 p.m. that I had privately given such an assurance at 4.15 p.m. to the noble Lord, Lord Strathclyde—private being a rather short-lived assurance on this occasion.

Lord Kingsland

My Lords, in some ways I think that the reply of the noble and learned Lord the Lord Chancellor is academic, because after the general election we will be in charge of these affairs. And I can give an undertaking to your Lordships' House that we will stick to the timetable and the scope of the Bill.

There are still many things that we do not like about this Bill, in particular those set out in the amendment tabled by the noble Lord, Lord Goodhart. However, in all the circumstances, we do not feel inclined to support his amendment. We feel that what I have described as the equivalent of the sunset clause will give us sufficient constitutional guarantees over the next year. I hope that the noble Lord will not mind if I invite those behind me to abstain.

I conclude by sharing entirely the sentiments expressed by the noble and learned Lord about Hansard, and all the splendid help that we have had from there, and all the other parts of your Lordships' House that have contributed to make these 24 hours much less painful than they would otherwise have been.

Baroness O'Neill of Bengarve

My Lords, there are one or perhaps two further undertakings that are relevant. One has been implicitly made. The noble and learned Lord the Lord Chancellor has committed his party to a certain course of action with respect to legislation, after an election, on counter-terrorism. I think that I heard the noble Lord, Lord Kingsland, make a comparable undertaking on behalf of his party, should it be in power. I hope that we may have a comparable undertaking from the Liberal Democrats.

Lord Falconer of Thoroton

My Lords, for some reason it never occurred to anybody that we should ask for such an undertaking.

Lord Thomas of Gresford

My Lords, I give that undertaking on behalf of my party.

I wish to add the thanks of my party to those of the noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor to all those who have assisted us and who have been behind the scenes in what has been a very long and difficult period of time. I particularly thank my colleagues on the Liberal Democrat Benches, 85 to 90 per cent of whom have voted in every Division during the passage of the Bill.

I shall speak briefly to the amendment. It has received a quite inaccurate title "the burden of proof". 1t is not about the burden of proof at all. It is about two very important matters of principle. The first is that a non-derogating order should be granted by a judge and not by a Secretary of State, a Minister of the Crown. Secondly, in granting such an order, that person should apply the standard of proof of "on the balance of probabilities". As I have said so many times, and shall not repeat, they are principles that are deeply rooted in the law and constitution of this country. We stand our ground on these principles.

The Earl of Onslow

My Lords, if the groan goes up, the groan goes up. Oh why, oh why, oh why could they not have said this 24 hours ago? No, the noble Baroness did not. We have got a timetable and all the undertakings that we want. There is an expression: if it looks like a duck, quacks like a duck and swims like a duck, it is a duck. The only difference between this duck and the duck provided by the noble and learned Lord is that his duck is just efficient in one webbed foot.

Lord Falconer of Thoroton

My Lords, at the Hansard reference that I gave, the noble Baroness, Lady Scotland, specifically identified the Act of Parliament that we were going to propose in respect of which amendments could be made. That has been the position for some very considerable time during the passage of the Bill. It is not a sunset clause, but it deals with the problem—the need to amend—that everybody wishes. It is not to the credit of the noble Earl, Lord Onslow, that he made the remark he just made.

Lord Goodhart

My Lords, I think that at one point in my introductory speech I may have referred to "beyond reasonable doubt" when I meant "on the balance of probabilities". I am afraid that after the longest Thursday of my life, I am prone to one or two little slips of that nature.

This has been a remarkable occasion. The sight of your Lordships' House with more than 250 Members present at 5 a.m. was truly astonishing. I can only say that it is one that I hope never to have to see again. But it was at least interesting. Having said that, I wish to test the opinion of the House.

6.49 p.m.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 117.

Division No. 14
CONTENTS
Addington, L.	Oakeshott of Seagrove Bay, L.
Avebury, L.	Phillips of Sudbury, L.
Barker, B.	Razzall, L.
Bonham-Carter of Yarnbury, B.	Redesdale, L.
Bradshaw, L.	Rennard, L.
Clement-Jones, L.	Roberts of Llandudno, L.
Dholakia, L.	Roper, L. [Teller]
Dykes, L.	Russell-Johnston, L.
Erroll, E.	Sandberg, L.
Falkland, V.	Scott of Needham Market, B.
Falkner of Margravine, B.	Sharp of Guildford, B.
Forsyth of Drumlean, L.	Shutt of Greetland, L. [Teller]
Garden, L.	Southwark, Bp.
Goodhart, L.	Steel of Aikwood, L.
Greaves, L.	Stoddart of Swindon, L.
Hamwee, B.	Taverne, L.
Harris of Richmond, B.	Thomas of Gresford, L.
Kennedy of The Shaws, B.	Thomas of Walliswood, B.
Linklater of Butterstone, B.	Thomson of Monifieth, L.
Livsey of Talgarth, L.	Tope, L.
Ludford, B.	Tordoff, L.
Maclennan of Rogart, L.	Vallance of Tummel, L.
Maddock, B.	Wallace of Saltaire, L.
Mallalieu, B.	Walmsley, B.
Miller of Chilthorne Domer, B.	Watson of Richmond, L.
Neuberger. B.	Wedderburn of Charlton, L.
Newby, L.	Williams of Crosby, B.
Northover, B.	Willoughby de Broke, L.

NOT-CONTENTS
Alli, L.	Billingham, B.
Andrews, B.	Bledisloe, V.
Ashton of Upholland, B.	Brennan, L.
Bach, L.	Brett, L.
Bassam of Brighton. L.	Brooke of Alverthorpe, L.
Bernstein of Craigweil, L.	Brookman, L.
Bhattacharyya, L.	Campbell-Savours, L.

Carter of Coles, L.	Lipsey, L.
Christopher, L.	Listowel, E.
Clarke of Hampstead, L.	Lockwood, B.
Clinton-Davis, L.	McDonagh, B.
Corbett of Castle Vale, L.	Macdonald of Tradeston, L.
Crawley, B.	McIntosh of Haringey, L.
Davies of Coity, L.	McIntosh of Hudnall, B.
Davies of Oldham, L. [Teller]	McKenzie of Luton, L.
Dean of Thornton-le-Fylde, B.	Marsh, L.
Dearing, L.	Massey of Darwen, B.
Desai, L.	Maxton, L.
Donoughue, L.	Merlyn-Rees, L.
Drayson, L.	Mitchell, L.
Dubs, L.	Morgan, L.
Elder, L.	Morgan of Drefelin, B.
Evans of Temple Guiting, L.	Morgan of Huyton, B.
Falconer of Thornton, L. (Lord Chancellor)	Pendry, L.
Farrington of Ribbleton, B.	Ponsonby of Shulbrede, L.
Faulkner of Worcester, L.	Prosser, B.
Filkin, L.	Ramsay of Cartvale, B.
Gale, B.	Randall of St. Babergh, L.
Gavron, L.	Rendell of Babergh, B.
Giddens, L.	Richard, L.
Gilbert, L.	Rooker, L.
Golding, B.	Rosser, L.
Goldsmith, L.	Rowlands, L.
Goudie, B.	Royall of Blaisdon, B.
Gould of Brookwood, L.	Sainsbury of Turville, L.
Gould of Potternewton, B.	Sawyer, L.
Grabiner, L.	Scotland of Asthal, B.
Graham of Edmonton, L.	Sewel, L.
Greengross, B.	Simon, V.
Grocott, L. [Teller]	Slim, V.
Harris of Haringey, L.	Snape, L.
Hart of Chilton. L.	Stone of Blackheath, L.
Haskel, L.	Strabolgi, L.
Haworth, L.	Sutherland of Houndwood, L.
Henig, B.	Symons of Vernham Dean, B.
Hogg of Cumbernauld. L.	Thornton, B.
Hollis of Heigham, B.	Tomlinton, L.
Howarth of Breckland, B.	Triesman, L.
Howells of St. Davids, B.	Truscott, L.
Hoyle, L.	Tunnicliffe, L.
Hughes of Woodside, L.	Turner of Camden, B.
Hunt of Chesterton, L.	Wall of New Barnet, B.
Irvine of Lairg, L.	Warner, L.
Joffe, L.	Waverley, V.
Jordan, L.	Whitaker, B.
King of West Bromwich. L.	Whitty, L.
Layard, L.	Williams of Elvel, L.
Leitch, L.	Williamson of Horton, L.
	Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

6.58 p.m.