Examination of Witnesses (Questions 160-179)
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
1 MARCH 2005
Q160 Ross Cranston: I think that is very
helpful because a lot of these are very factual inquiries, are
they not, where cross-examination is very important?
Lord Falconer of Thoroton: Absolutely.
Ross Cranston: I find that very reassuring.
Q161 Chairman: Once somebody is the subject
of a non-derogated Order it is pretty much the equivalent of a
criminal conviction, is it not? If they fail to satisfy the terms
of the Order in any detail then they are subject to a criminal
conviction?
Lord Falconer of Thoroton: No,
I would not accept that. Indeed, I would most certainly say it
is not the equivalent. Is it not much more like an Injunction
or Restriction Order that the courts very frequently make which
they have to make for preventative reasons? If you break a Court
Order or an Injunction then you are guilty of contempt and can
be subject to fine, imprisonment etc Similarly, if you break the
Control Order you are guilty of a criminal offence which has similar
penalties to contempt. I would not think that the right way to
look at this is to say it is the equivalent of a criminal conviction.
Q162 Mr Clappison: There is one important
difference because all those forms of legal restraint you referred
to, and Anti-Social Behaviour Orders as well, they are made in
the first instance by a Tribunal, are they not, and this is being
made by a Home Secretary in relation to the non-derogation?
Lord Falconer of Thoroton: In
relation to a derogating Control Order it would be made by an
ex parte order of a judge in the light of the statement
Charles Clarke made yesterday. In relation to a non-derogating
Control Order it would be made in the first instance by the Home
Secretary but then it would be subject to judicial review.
Q163 Mr Clappison: I understand that,
but the question which was being asked yesterday in the House—and
I do not know if you can assist us any further today—it
has not conceded that the derogation Orders are going to be made
as the result of a judicial proceeding in the first instance—and
they are the more serious types of case, with the more serious
infringements of liberty. Why cannot the non-derogation Orders
be made in the same way?
Lord Falconer of Thoroton: The
distinction between the two is based upon the level of intrusion
with the subject matter of the Order, so a derogated Control Order
inevitably involves deprivation of liberty; and we think, on the
basis of representations made, that should only be made where
a judge has made the Order in the first instance.
Q164 Mr Clappison: Quite so, but those
are going to be the more serious cases where the more serious
information is at stake—all the reasons which you gave earlier
about the need for people not to see the information because of
the evidence concerning them. Why could that not be extended to
the less serious type—the non-derogation Order? What is
the problem with having a judge or some tribunal make the Order
for the non-derogation Orders?
Lord Falconer of Thoroton: In
the first instance the decision is made by the Home Secretary—that
is the non-derogating one. That is not by its nature as intrusive
and, therefore, the balance of procedural protections is different
in the non-derogating ones than it is for the derogating ones.
The crucial difference that we rely on is the level of intrusion
with the subject matter of the proceedings.
Q165 Mr Clappison: None of that is a
reason or a problem as to why there could not be a tribunal deciding
it in the first place. You are just saying that the other one
is more serious?
Lord Falconer of Thoroton: That
is right. That is why there are different procedural safeguards.
Q166 Mr Clappison: You are giving us
the reason, but there is no problem, no obstacle, to there being
a tribunal to deal with the non-derogation Order case, is there?
Lord Falconer of Thoroton: If
you are saying, could you procedurally arrange for an ex parte
application to be made to the judge in relation to the non-derogating
ones, I am sure that is right, yes. As I say, the reason for the
distinction is the extent to which we believe a distinction should
be drawn between depriving somebody of his or her liberty, as
opposed to something which, while it restricts them, does not
constitute deprivation of liberty.
Q167 Mr Clappison: Are you in fact making
a difficulty for yourself with this? Everybody has sympathy with
the problems which you are facing; nobody wants evidence to be
released to people who are under suspicion; and everybody understands
the nature of the threat which we are facing; but you are actually
doing something here which is discrediting the whole process and
raising a question mark against it. It could be easily remedied,
could it not?
Lord Falconer of Thoroton: The
sorts of Order that could be made under the non-derogating power
are things like requiring reporting to a police station; or, going
further, restricting somebody from seeing particular people; it
could include having a curfew overnight. The risk that you have
got is that you make an Order like that; there is then a period
of time before the applicant can get to court to get the Order
discharged. Is it a sufficient safeguard that a period of time,
some days, elapses before the person can get to court and get
that Order discharged? We think, in striking the balance, the
risks of injustice justify doing it on that particular basis.
Remember, you assume for these purposes that in many cases such
an Order will be required to protect the State. I understand entirely
the point you are making, but a judgment has to be made about
the precise extent of judicial involvement. I think there is also
a point about the extent to which you have got to mark clearly
the difference between the two.
Q168 Mr Clappison: I understand that.
I am specifically putting this with some sympathy for the position
you are in. I understand the nature of the problem. I think we
all have to be very responsible in the face of a problem like
this, but it does seem to be the case that you are making things
difficult for yourselves
Lord Falconer of Thoroton: We
are certainly causing a great controversy about it!
Q169 Chairman: Could I just take you
back to the review process in court of a non-derogating Order
which is covered in subsection 5, clause 7. The threshold for
that review is really rather a difficult one to meet. The Secretary
of State's decision has to be flawed, either in respect of necessity
for terrorism or that the obligations are necessarily in relation
to that person. That is a very high threshold to review, is it
not?
Lord Falconer of Thoroton: It
is judicial review basically. It is not like a derogated Control
Order where we are saying the judge decided in effect on the basis
of all the material whether he would make the Order or not. In
relation to the non-derogating Order what the court is deciding
is was there a proper legal basis on which the Home Secretary
could have made this Order?
Q170 Chairman: Bearing in mind that these
Orders are such, if a number of them were taken together, that
the Home Secretary has himself conceded that that might put them
right up into derogated category, some of them are pretty serious
and, if taken together, might constitute a derogated Order. Not
just dealing with, "You might have to report to the police
station once a week", you might be dealing with a combination
of curfew, restricted visits, no telephones—the whole lot
or a combination. It is in that context I am merely asking whether
the threshold is too high?
Lord Falconer of Thoroton: Wherever
you draw a line, the bottom end of the next category and the top
end of the previous category might be quite close. In reality
probably most of the non-derogated Control Orders would be somewhere
in the middle, rather than right close to a derogating Control
Order. Question: is it sensible to have a different test in relation
to a non-derogated Control Order? The test being that the judge
looks at what the Home Secretary has done and says, "Could
a reasonable Home Secretary have come to that conclusion?"
which is ultimately what it amounts to. That looks to me a moderately
sensible way of doing it. The courts will be very acute to ensure
that if a Home Secretary has made such an Order it should only
be made when the circumstances plainly justify it. I am confident
that the courts will provide adequate protection. If we are talking
about deprivation of liberty—which is a derogated Control
Order—then I think we need to go even further, because that
is such a significant step. Question: do we have confidence that
the judges, when confronted with the Home Secretary's non-derogated
Control Order, will be able to say to themselves, "Was it
reasonable to make that Order?" because that is ultimately
the test. I have complete faith that they will be able to.
Q171 Chairman: The test is expressed
in the form, "Was the decision flawed?"
Lord Falconer of Thoroton: If
the decision was one that no reasonable Home Secretary could make
then it was flawed. That is the test.
Q172 Mr Soley: Can I take you to the
alternatives to the current approach, which actually goes back
not so much to the Bill but to SIAC itself and, indeed, the situation
prior to that with the old Prevention of Terrorism Act. There
cannot be too many people who think we have got a clear policy
on this at the moment in the wider sense and I understand why
it is a profound threat that we face—far worse than anything
else—and it does not sit comfortably with the British style
of justice. Bearing in mind the long history of the Prevention
of Terrorism Act in this country where, contrary to popular opinion,
we have got people up on the basis of executive power with internment
and, indeed, Exclusive Orders, why do we not look again at, at
least, two possibilities: one is, for this very narrow area of
terrorism, the inquisitorial system; and, secondly, the alternative
to that, the special court system used in a number of places,
including Ireland, very successfully. Why do we go down a road
of trying to make the British system of justice fit an impossible
position where you cannot let the person see the evidence, cross-examine
and so on as you point out? Why not go down, in the narrow area
of terrorism, the inquisitorial approach or special court approach?
Lord Falconer of Thoroton: On
the inquisitorial approach I am strongly against the idea of a
judge becoming a player?
Q173 Mr Soley: Why?
Lord Falconer of Thoroton: Because
the judge has got to stand outside the process, in my view.
Q174 Chairman: There could be two judges.
Lord Falconer of Thoroton: You
have got a prosecutor and you have got somebody putting the evidence
together, but for a judge to become—
Q175 Mr Clappison: It works in France.
Lord Falconer of Thoroton: They
have got a totally different system from us. I do not know if
you saw (and I say this with grave reservation because the facts
need to be checked) but the process of the judge investigating
can take a number of years before a conclusion is reached. I would
not regard it as adding lustre to our system that three or four
years went by whilst investigation was going on. I think it would
also draw the judges into a process that would politicise them
much too much. They would become not responsible for adjudicating
on material presented by two sides; they would become responsible
for decisions being made of a semi-executive nature as to what
should happen in relation to terrorists. I am strongly against
it. I believe a much better approach is to try to preserve as
much as possible of the current arrangements, making only those
amendments necessary to deal with the particular circumstances
of the problem; and that is the Chahal approach which Canada
thought up which the Human Rights Court approved, which we then
adopted in the 1997 Act. That is a minimum change but keeping
the full scepticism of that approach but recognising you do need
to make some changes. All of my instincts say, "Don"t
throw out the existing system—amend it to the minimum necessary".
Q176 Mr Soley: First of all, I think
we need to put aside the example of France. There are other examples
in Europe of the inquisitorial system which do not have the failings
of the French system. Secondly, when you try and say just the
British system, you are acknowledging (as you have acknowledged
this morning) that you create a situation where the defendant
does not have anybody to speak for him and cannot ask questions?
Lord Falconer of Thoroton: Has
got someone to speak for him but not on particular parts of the
case.
Q177 Mr Soley: Cannot ask questions;
cannot see the evidence against them. These are very serious erosions
of the British system—very serious. If you are saying that
on the very narrow issue of terrorism (and everybody accepts terrorism
is a very special case because it is designed to undermine and
destroy the State), and coming up with an inquisitorial system
where you had set judges for that, why would that be such a terrible
thing to do? It need not impact on the rest of British law at
all?
Lord Falconer of Thoroton: A)
this Bill is making a change in the very narrow area of terrorism.
B) you are, in effect, subcontracting to a judge what is, in effect,
an executive decision, which I think is dangerous and wrong, and
loses you the benefit of the instincts of the current system.
What we are doing in particular, for example, by saying it is
the High Court and not SIAC any more, is saying that everything
has got to be as it is in looking at these issues, except we have
that special rule. I cannot do anything about the particular problem
because I think everybody around the table is accepting you somehow
have got to deal with that. I am quite sure that the right way
to do it is to say to the current justice system, "Deal with
it in accordance with your just traditions", rather than
trying to invent a wholly new system.
Q178 Mr Soley: Whether we talk about
the present Bill or whatever might emerge out of it—or whatever
was happening under the old Prevention of Terrorism Act which
got this country into a lot of trouble in international bodies
of one type or another—surely we are not making a great
success of doing the Bill in the way you are describing it?
Lord Falconer of Thoroton: We
can talk about the detail—the detail really, really matters—but
I am quite sure the approach we are taking (which is, let our
traditional courts decide as much as possible in the ordinary
way) is the way to ensure this is not the thin end of the wedge.
People refer to the internment example, and I think everybody
agrees that internment in the North of Ireland in the 1970s was
a disaster, that was the executive in effect. The debate we are
having here is: should it be as long as seven days before the
court gets to look at the issue? It is a totally different situation.
We have learned from that.
Q179 Mr Soley: I agree, but that is my
point—it was an executive decision and that is what I am
trying to avoid. Let us leave the inquisitorial system although
I suspect we will have to revisit it. What about the inquisitorial
alternative? What about the special courts alternative?
Lord Falconer of Thoroton: When
you say "special courts" what do you mean?
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