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Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Is he aware that his point is particularly strong because the European Court of Human Rights decided that he and the other wise men should be replaced by a judicial review procedure, or a proper court procedure? It is particularly strange now for the Home Secretary to express disappointment when that better procedure, more judicial procedure, is used, than when the three wise men did it in a way that did not comply with the full rigours of the convention? Is he aware that that makes his point even more strongly than he has just put it?

Lord Lloyd of Berwick: My Lords, obviously, I am delighted to hear that the point is stronger than I thought it was. I did not entirely follow everything that the noble Lord said because, I am afraid, I have left my hearing aid behind. I am sure that I shall read what he said.

Baroness Anelay of St Johns: My Lords, I can be brief today, first, because the issues have been so eloquently covered by all noble Lords who have spoken and, secondly, because I had the opportunity to take part in the debate on the full range of the

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Newton report last Thursday. The views that I expressed then, reported at cols. 823 to 828 of Hansard, are still relevant to this debate.

We recognise that the threat of terrorism is a real and significant danger. We agree with the Government that, without the powers in the 2001 Act, our defences against terrorism would be weakened to an unacceptable level. For that reason and despite the reservations that I expressed last week about Part 4, we support its continuance for 12 months.

Last week, I made it clear in particular that we considered that the Government should heed the request made in the Newton report and seek an alternative approach as soon as possible, because the provisions of Part 4 are such a serious infringement of civil liberties. I welcomed then the Government's undertaking to consult on Part 4 over the next six months. I pay particular heed to the words used by my noble friend Lord Newton of Braintree, which were echoed in the eloquent speech made by the noble Baroness, Lady Hayman. The reality that they highlighted so well is that, if we are here next year considering a renewal because no progress has been made, the Government may face a very different debate.

For the reasons that I gave last week and having heard the full debate today, I can say that I support the Government in the making of the order without amendment.

1.15 p.m.

Baroness Scotland of Asthal: My Lords, I thank all those who have spoken for making it clear that they support the making of the order. I say that with genuine feeling. I also thank the noble Lord, Lord Lester of Herne Hill, for his kind words about me. They were undeserved, but I say, "Thank you" anyway.

The debate has raised some important issues. The noble Lord, Lord Holme of Cheltenham, asked whether there would be a genuine discussion in the next year, between now and the time when the order comes to be debated—if it comes to be debated—in 12 months' time. The answer to that question is an unequivocal "Yes", but I need to put that in context. In our debate last Thursday, the noble Lord, Lord Holme of Cheltenham, accepted, I think, that the task given to the committee of Privy Counsellors was to consider this Act, not, perhaps, to put forward concrete substitute proposals for what would replace it. We all accepted last week that any proposals to replace Part 4 would need careful consideration, to ensure that the level of security that, we assert, Part 4 currently gives was maintained and that any substitution in procedure would not undermine that security but would give appropriate care to the rights of those who are subject to the procedure, which we all wish to preserve. So, I say right at the beginning that the aspirations of the noble Lord and others in that regard are totally shared by the Government.

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The position that we face today is that Part 4 is the best that we have at the moment. In the past year, it has proven to be robust. The noble Lord, Lord Holme of Cheltenham, said that the Act—particularly Part 4—was created in circumstances that made it over-hasty and did not allow us to have mature reflection on all the issues. Of course, I concede that the circumstances in which we found ourselves at that time were such as to cause us to take emergency action. I hope that noble Lords who have participated in the debate will agree with me that the care that this House and the other place took in crafting the provisions—albeit speedily and against a background of emergency—was very robust. That is why we have the benefit of the report by what I will call in short form the "Newton committee"—I hope that the noble Lord, Lord Newton of Braintree, will forgive me if I call it that. It is why we have the benefit of the review by the noble Lord, Lord Carlile of Berriew, and of two serious and informative debates, last week and today.

I also pray in aid the comments made by my noble friend Lady Hayman. She argued—rightly, if I may respectfully say so—that the Government should be commended for coming before the House and expressly seeking a derogation. I hope that noble Lords are not in any doubt that the Government take any derogation from the European Convention on Human Rights very seriously and do not seek one lightly. The noble Lord, Lord Holme of Cheltenham, indicated, I think, that such a derogation should not be dismissed lightly. I think he said that some would say that it was a small price to pay for the right measures. I must make it clear that the Government do not believe that it is a small price. The Government believe that it is a weighty price but a necessary one.

Lord Holme of Cheltenham: My Lords, the noble Baroness is getting close to the crux of the issue between us, as there is so much that we agree on. In trying to craft what she called a substitute, would it be one of the cardinal aims to remove the need for derogation?

Baroness Scotland of Asthal: My Lords, we must consider whether it is possible to craft something that is equally robust but would not necessitate derogation. If it were, the Government would have done so. Our view, based on the information that we have and our discussion of the issues, is that the situation that we now face can be properly met only by the provisions that we have at the moment.

Baroness Williams of Crosby: My Lords—

Baroness Scotland of Asthal: My Lords, I shall give way in a second. We have the discussion paper and all the issues that were laid out by the human rights committee and the Newton committee. There is also the discussion of the suggestions made in the report produced by the noble Lord, Lord Carlile of Berriew. All those issues will be debated, as a result of those discussions.

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Baroness Williams of Crosby: My Lords, further to the point made by my noble friend Lord Holme of Cheltenham, can the Minister say, at least, that the Government will endeavour to bring before the House, before the expiry of the present order a year from now, proposals based on the discussions in another place on 25 February and by the committee of Privy Counsellors for alternative routes to deal with the problem that she outlined, about which the noble Baroness, Lady Hayman, so powerfully argued?

Baroness Scotland of Asthal: My Lords, I say to the noble Baroness that what was said by my right honourable friend the Home Secretary in another place was absolutely his intention: there will be an open discussion of the issues. If, as a result of those discussions, the Government come to the view that that is a course that should properly be taken, it will be taken. I hope the noble Baroness understands that I cannot give any guarantee in relation to timetable because I cannot foreshadow the nature or the extent of the discussions that will take place and what may emerge as a growing consensus as to what may be the way forward.

I take very seriously what has been said in debate. I also take very seriously what my noble friend Lady Hayman said about the nature of this issue. I take seriously what was said by the noble and learned Lord, Lord Lloyd, in terms of the length of time that these provisions may remain in force. There are many considerations that arise as a result of those suggestions. Some noble Lords have said that we may need further or other legislation. Is that right? Would that be a course to go down? Those are all issues that I am sure will excite a lot of attention and discussion.

Lord Lester of Herne Hill: My Lords, I thank the Minister for giving way. As the Minister will be aware, the speeches made by the noble Baroness, Lady Hayman, and others suggest that the robust measures—words used by the noble Baroness four or five times—do not deal with her devastating point that the measures are both under-inclusive and over-inclusive. They are under-inclusive in that they do not deal with some really nasty people who are British citizens; they are over-inclusive in taking unnecessary powers that could be dealt with in a more proportionate way.

Can the Minister give an assurance that the under-inclusiveness—that they do not go far enough—and the over-inclusiveness will be dealt with urgently so that the House has options properly considered by the Home Office back with us well before a year from now? I think that that is what all sides of the House are asking the Minister to tell us.

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