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Lord Goodhart: My Lords, before I get on to the subject of this order, I should like very briefly to say how pleased we are to see the noble Lord, Lord Kingsland, back in his place on the Conservative Front Bench.

I cannot go quite as far as the noble Viscount, Lord Bridgeman, in saying that we welcome this order. I think that the best I can do is to say that we do not oppose it. However, we do have a number of comments and questions. The issues with which we are here concerned were covered in detail both by my noble friend Lord Carlile of Berriew in his review made under Section 28 of the Act and also by the very

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thorough report of the Joint Committee on Human Rights. There was also a brief from the Law Society, which is welcome though it relied largely on the two documents already mentioned.

In the debates on Part 4 of the Act, when it was a Bill going through your Lordships' House and through another place, we on these Benches opposed the concept of detention without trial. However, we did achieve some important improvements to the Bill in conjunction with the Conservatives, such as the sunset clause and the provision for the review of the whole Act by a committee of Privy Counsellors. So I do not think that it is appropriate, and I certainly do not propose, to reopen the main issues at this stage. I should, however, like to draw attention to the criticisms by the Joint Committee on Human Rights of the procedure adopted by the Government in November 2001 of derogating first before the Bill that introduced the procedure which was incompatible with the European Convention on Human Rights was passed. Like the Joint Committee, I hope that that will not be repeated. It is surely clear that it would have been much better if the order for derogation had been introduced at the end of the debates on the Bill so that we already knew what the derogation would give effect to.

There are a number of reasons why we accept a continuation of Part 4 for another year. First, there is no reason to believe that the terrorist threat is any less serious than it was 14 months ago when the Bill was passed. Secondly, the Court of Appeal has decided that derogation from Article 5 to enable people to be detained without trial was valid—in that case having overruled the original decision of SIAC, subject to leave to appeal to your Lordships' House being given, and then, perhaps, to a further appeal to Strasbourg. The presumption now is that the derogation was valid. However, if there are contrary decisions either in the House of Lords or Strasbourg, the outlook may of course be very different in the future. Thirdly, we have noted with interest that the Joint Committee on Human Rights believes that there is no serious objection on human rights grounds to the continuance of Sections 21 to 23 for a further year.

We do, however, have a number of criticisms, three of which stand out in particular. First, both my noble friend Lord Carlile of Berriew and the Joint Committee have pointed out the profoundly unsatisfactory nature of the special advocate procedure. It is most unsatisfactory, for example, that an advocate cannot question the person on whose behalf he or she is acting. We realise that there may be exceptional cases where that is justified because of the importance of the protection of sources and not disclosing too much about what we know. However, the closed procedure, as it is called, should be adopted only where it is absolutely necessary, and evidence should wherever possible be open. Furthermore, where the special advocate procedure is used, it is absolutely essential, as the Joint Committee and my noble friend have pointed out, that the special advocate should be allowed to appear not only before

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SIAC but also in the Court of Appeal and the House of Lords, if necessary sitting in camera in order to hear the closed evidence.

Our second particular concern was the criticisms made by my noble friend about the conditions in which the detainees were being held, particularly at Belmarsh. He said that detainees should be held in remand conditions; should be held together as a group, if that was their wish; and should be allowed to associate with each other. We welcome the fact that the Government are now undertaking to consider giving effect to that recommendation.

The third main problem thrown up by the report was the refusal of SIAC to hold substantive hearings while the question of the validity of the derogation was being litigated. That led to extended delays and we believe was unjustifiable, particularly after the Court of Appeal overruled SIAC's own earlier decision. It was perhaps understandable when SIAC itself had held that the derogation was invalid, but not after the Court of Appeal had come to a different conclusion. That is a matter for the courts and not for the Government. However, we welcome what I understand is now the decision of SIAC to proceed to hear the substance of the cases even though proceedings are still pending. If leave to appeal is given or if the matter is taken to Strasbourg, those proceedings may be pending for a very considerable time to come.

The Joint Committee on Human Rights also raised doubts about the adequacy of the legal advice given to the detainees. Are the Government satisfied that that criticism is being given proper attention?

The circumstances suggest that the Government should look again at the ban on the use of intercepts in prosecutions. That might well have made it possible in many cases to bring detainees to trial. I understand the reasons why intercepts are not at the moment used as evidence in trials but other countries use them without seeming to run into intolerable difficulties. I have seen suggested in the press that the Government are thinking again about that issue. I should be interested to know whether that is true.

Both my noble friend and the Joint Committee criticised the drafting of the Act. Although those perhaps are not the most important points in either report, I understand that the Government—as I have already indicated—will consider the possibility of correcting the drafting. If that is the case, the Criminal Justice Bill could be the appropriate vehicle to carry those amendments which would be quite short.

On the credit side, I am glad that my noble friend Lord Carlile of Berriew had no criticism of any case in which a detention order had been made. It is welcome that the number of detention orders is small and totals only 15. It is also welcome that the Human Rights Act and the European Convention on Human Rights have shown through the recognised derogation procedures a flexibility which has made it possible to meet the Government's objective of detaining people who

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cannot be deported but are a threat to the security of the United Kingdom without committing a breach of the convention.

As I said, we do not oppose the order today but I warn that the position may be different next year. We shall certainly need to be satisfied that the threat from terrorism then is still serious enough to justify a further continuance of the detention powers under Part 4. We shall also need to be satisfied that the criticisms made in the two admirable reports have been fully recognised and dealt with.

Lord Carlisle of Bucklow: My Lords, I believe that the passing of the Act by the Government was both necessary and right as the Government's fundamental task must be to provide for the safety of the people of this country who are under threat of terrorist attack.

Having said that, the sections we are discussing give enormous powers to the Secretary of State through his own certificate to provide for the detention of those whom he suspects of being a risk to the nation's security and of being involved in terrorist acts. That detention may be without limit of time. I believe that we would therefore be failing in our duty as a House to scrutinise the acts of the Government if we did not—as this order enables us to do—examine how those powers are being used.

I accept entirely what my noble friend Lord Bridgeman and other speakers have said. I, too, am sure that the Government will take good heart from the report of my near namesake, the noble Lord, Lord Carlile of Berriew, who accepted that the procedures followed by the Government and the Home Secretary in this area are wholly in accord with the principles of the Act.

I have two questions for the Government. One concerns the Special Immigration Appeals Commission. I refer to the odd concept of the special advocate who is entitled to receive evidence and papers which cannot be shown to the defendant or, in this case, the detainee. That evidence or those papers cannot be disclosed to the detainee in any way by the person who is appointed special advocate to act on his behalf. As I believe that the overwhelming duty is to protect the sources of information of those from whom we get our information, I see no other way in which such an appeal can be dealt with. I think I am right in saying that the position is in some ways similar to that which applied in Northern Ireland at the time of detention without trial, but it is an odd situation.

I understand that for some reason the power to appoint a special advocate apparently does not apply should there be an appeal against the tribunal's decision to the Court of Appeal on a point of law. The Minister shakes his head. I must therefore be wrongly advised on the matter and I happily withdraw the comment. However, I was going to say that if that were the case, I should very much hope that the Minister would reconsider the matter.

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As my noble friend Lord Bridgeman said, we would be failing in our duty if we did not pass the order tonight and extend the powers for at least another 12 months as they are essential to the general security of this country at this time.

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