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Mr. Deputy Speaker: The sitting is suspended. Shortly before the sitting resumes, I shall cause the Division bell to be sounded.
10 Mar 2005 : Column 1796

7.50 pm

Sitting suspended.

1.20 am

On resuming—

Mr. Deputy Speaker (Sir Alan Haselhurst): I must inform the House that a message has been brought from the Lords as follows. The Lords insist on certain of their amendments to the Prevention of Terrorism Bill to which the Commons have insisted on their disagreement, for which insistence they assign their reasons. They insist on certain of their amendments to which the Commons have disagreed, for which insistence they assign their reasons. They disagree to the amendments proposed by the Commons in lieu of the Lords amendments, for which disagreement they assign their reasons. They do not insist on their remaining amendments to which the Commons have disagreed, and they agree to the remaining Commons amendments on which the Commons had insisted. Copies of the Lords reasons are available in the Vote Office, as are the Government's propositions relating to the message. All Government proposals will be debated together.

Lords reason: 1D

The Minister for Crime Reduction, Policing and Community Safety (Ms Hazel Blears): I beg to move, That this House insists on its amendments 1A and 1B to Lords amendment No. 1, insists on its disagreement to Lords amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and insists on its amendments 37A to 37C and 37E to 37O, does not insist on its amendment 37D, insists on its disagreement to Lords amendments 37Q to 37T proposed in lieu of Lords amendment No. 8 and insists on its amendments 17H to 17M to the words restored to the Bill by its insistence on its disagreement to Lords amendment No. 17 and proposes amendment (a) in lieu.

Mr. Deputy Speaker: With this we will discuss Lords reasons 8A, 12B, 13B, 15B, 17N, 22B, 27E, 28B, 31C, 32C, Government motion to insist &c., Government amendment (a), Lords reason 33E, Government motion to insist &c., Government amendments (a) and (b) and Lords reason 37U.

Ms Blears: The first amendment relates to the making and judicial supervision of control orders, including the standard of proof. The effect of my amendment is to require an inter partes directions hearing to be held within seven days of the court granting the Secretary of State permission to issue—or, as the case may be, confirming—his non-derogating control order. The purpose of my amendment is to provide yet another safeguard in the procedure to ensure that the individual concerned will be involved fully in the proceedings at the earliest possible stage. So, there would now be three stages: an application for permission from the Secretary of State; a prima facie ex parte hearing followed by an inter partes directions hearing to see how the matter might be disposed of; and then a further inter partes full hearing. My amendment would therefore provide for an additional safeguard of further intervention into that process. That would give all parties an early opportunity
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to consider how best to deal with questions of evidence, disclosure and the appointment of a special advocate if required.

As well as that amendment, we want to insist on our previous position with regard to the standard of proof. There are a couple of additional points that I want to make to the House concerning standard of proof, because it is a very important matter. I want to make it clear that these are preventive orders, not punishment, which is important to the standard of proof issue; that we are talking about an assessment of intelligence rather than necessary evidence of proof of fact; and that we are talking about a risk assessment process. I want to draw to the House's attention the statement of Lord Justice Laws when he was considering the A case in the Special Immigration Appeals Commission. I do not think that this quote has been used before. He said:

Mr. Grieve rose—

Ms Blears: I just want to finish this point. Both SIAC and the Court of Appeal accepted reasonable suspicion as the right level of proof in those cases. It is very important to make that point.

Mr. Grieve: I have to say to the hon. Lady that far from not having heard that quote before, it has been bandied around almost ad nauseam. If that is her objection, she could argue that the derogating orders that she is making, which will be made on the balance of probabilities, should not in fact be made on the balance of probabilities at all. Why does she accept that derogating orders should be made on the balance of probabilities, yet persist in this frankly cussed refusal to have the balance of probabilities on non-derogating orders?

Ms Blears: Even at this early hour of the morning, I am attempting to be moderate and measured, and I hope that the debate will be conducted in that fashion. As we have made clear on several previous occasions, we have accepted the balance of probabilities for derogating orders because deprivation of liberty is a severe sanction. However, we do not accept it for non-derogating orders because there is a distinction between restrictions on liberty and deprivation of liberty. That is a clear position.

The orders, as well as being preventive, not punitive, are about anticipating and disrupting terrorism. They are an assessment of risk, and I genuinely believe that hon. Members are trying to constrain a preventive framework in a traditional criminal justice system, which is about proof of events after the fact, evidence and an adversarial mechanism. I believe that hon. Members have not taken seriously the fact that we are trying to anticipate and prevent rather than simply prove things after the event, which happens in the traditional criminal justice system.

Mr. Kenneth Clarke: Will the Minister answer the question that I asked the Home Secretary last time we
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debated the matter? He suggested that the decision was made on the advice of the Security Service. Is the Security Service advising that we have that burden of proof rather than the balance of probabilities in the case of non-derogating orders? Can she give us an insight into that aspect of Security Service advice that we are said to be ignoring?

Ms Blears: Yes. The Security Service is concerned—[Hon. Members: "No."] Let me answer—[Interruption.]

1.30 am

Mr. Deputy Speaker: Order. We are considering serious matters and our proceedings on them are best conducted without sound effects. We want to hear whoever has the Floor. I call Ms Blears.

Ms Blears: I am making it clear—

Peter Bottomley (Worthing, West) (Con): On a point of order, Mr. Deputy Speaker. You rightly said that we must listen to the person who is speaking, but the person who should answer the question of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) is the Home Secretary. Will he please speak and give us the answer?

Mr. Deputy Speaker: I must say to the hon. Gentleman that I have called the Minister and she has the Floor.

Ms Blears: I am happy to confirm that our advice from the Security Service is that, if we use balance of probabilities, we will not be able to secure orders on some of the people about whom it has significant concerns.

Mr. Garnier : The Minister tried to distinguish between a total deprivation of liberty—house detention—and a restriction on liberty, that is, a non-derogating order. Does she not understand that the Human Rights Act 1998, which the Government introduced, makes it clear that any such conduct could amount to a penalty under that legislation? [Interruption.] The Minister may snigger, but we are considering human rights and it makes no difference whether the Government are depriving a citizen of all his liberties or merely some. It still constitutes a penalty. Surely the higher not the lower standard of proof should apply.

Ms Blears: The hon. and learned Gentleman is experienced enough in the law to know that article 5 of the European convention on human rights makes a distinction between restrictions on and deprivation of liberty. We have proceeded on that basis.

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