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Lord Henley: My Lords, I thank the noble Baroness for repeating the Statement on the replacement of the Part 4 powers in the Anti-terrorism, Crime and
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Security Act with a new scheme of control orders, on the Belmarsh detainees and on the recent judgment of the Judicial Committee of this House.

While I agree with parts of the Statement, particularly where the Home Secretary made it quite clear that,

and while I agree that one of his principal responsibilities must be,

it cannot be much fun to have been appointed Home Secretary on the day when the Judicial Committee of this House overturned one of his schemes by a majority of eight to one.

We understand the difficulty of the Home Secretary's position. As he made clear in the Statement, he has a very real duty to ensure the protection of the people of this country from terrorism and all the associated evils. He must do that while preserving the balance to which he referred in the Statement of keeping within the law and resisting the temptation to create something that approaches a police state.

We on these Benches certainly understand the difficulty of his position. Nevertheless, there are a number of questions that I wish to put to the Minister on the Statement that she has just repeated, and I hope that she will be able to answer them. I shall also want to go on to the Written Statement, also made by the Home Secretary, on phone tapping which, I understand, came out today but presumably it will be in tomorrow's Hansard. We find it rather odd that the Home Secretary should issue that Statement at the same time as this oral Statement, when it seems that the two could have been put together. But perhaps the Minister can come to that later when she deals with my questions.

My first point concerns the discussions that the Home Secretary and, presumably, the Foreign Office—because the Minister mentioned the noble Baroness, Lady Symons—are having with a number of countries which were described as,

I do not know whether at this stage she can say with which countries the Foreign Office and, presumably, the Home Office are having discussions. How many countries are involved? What is the current state of those discussions? I presume that she would want to assure the House that, whatever assurances she obtains from those countries, one will be that anyone being sent back to those countries goes back with a guarantee that there will be no use of capital punishment and no use of torture or anything else that is unacceptable in this country.

Secondly, I come to the whole question about intercept being used as evidence—or phone tapping, as some of us would refer to it. In the Statement the Minister repeated the remarks of the Home Secretary. He said:

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That might be so. But in the Written Statement issued by the Home Secretary today, he refers to some of the evidence produced in the review and states that,

I appreciate that this is a matter of balance. However, I wonder whether the noble Baroness could say a little more about the Government's current thinking about that and whether the issue might be reviewed, because the two Statements—the oral and the Written Statement—seem to have contradictory parts.

Thirdly, I move to the new control orders that the Government propose to use to replace Part 4, which the Judicial Committee of this House found to be in breach of our human rights obligations—first, because, as I understand it, they were considered to be discriminate—that is to say, they were used only against those who are not United Kingdom citizens—and, secondly, because they were disproportionate. When the courts make a decision of that sort and the Home Office's initial reaction is to say, "Well, if they are discriminatory let's bring everyone else into it", one has some doubt whether that is the right approach. But, no doubt, the Government will set that out in due course and will also explain whether this possibly creates a new discrimination; in that now you have some who will be dealt with under new control orders who can then be deported and some who can be dealt with by the new control orders but who cannot be deported because they are United Kingdom citizens. No doubt the Home Office and the Home Secretary will deal with that in due course.

I have a number of questions about these new control orders. Obviously, before we on these Benches give any assurance of co-operation with whatever the Government want to do, we would want to see everything that the noble Baroness and the Home Secretary have said fleshed out in some considerable detail. We would want to be assured that whatever is being proposed will not be found by the Judicial Committee to be wholly disproportionate and the wrong way of going ahead.

So, first, can I have an assurance from the Government that what is proposed will not be disproportionate? Secondly, can the Minister tell us when and how we will see the details of what is proposed? What legislation precisely will be needed? What will be the timescale of that legislation? Will it be primary legislation—for example, will it have to go through both Houses in the usual way, and so on? Will she offer some sort of guarantee that noble Lords on these Benches, and, no doubt on the Liberal Democrat Benches, will be able to see whatever is proposed in good time and to see what safeguards the Government propose to include in the new control orders?

My next question is: exactly what—and here I am very confused—new criminal offences are proposed? We are told in the Statement that it will be a criminal offence to breach these new control orders, but the control orders themselves, it is implied, will not be a criminal offence.
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They seem to be something approaching anti-social behaviour orders. Again, I am confused. I think it is beholden on the Minister to let us know exactly what is proposed and what new criminal offences are proposed, other than the fact that a breach of one of these orders will be a criminal offence.

The last point I should like to make on these matters is that it seems that the Government propose to bring forward new legislation to introduce these new control orders. However much we on these Benches, our colleagues on the Liberal Democrat Benches or whoever, wish to co-operate with the Government and assist them, this will be difficult legislation that will take a considerable amount of time; certainly to take through this House. How long it takes to get through another place is another matter, but then they have their own ways of dealing with these things. But it will take time in this House. Therefore, it is necessary for the Minister to address the question of what other legislation might have to be dropped, in what is a very busy Session, to enable this legislation to go through.

It might be that the Minister does not feel able to answer the question at this stage, but, as one who was connected in the past with the business management in this House, I should be grateful if she would write to me and set out what the Government intend to do, how they intend to find time for this legislation and what other legislation they intend to drop.

Having said that, we on these Benches very much accept the difficult position the Home Secretary is in. Without obviously in anyway wishing to give a blank cheque to the Government, we accept that these are difficult issues with no easy answers, and, where appropriate, we shall offer our support; but where it is not appropriate, we will want to probe exactly what the Government are doing and seek the appropriate answers from them.

Lord Dholakia: My Lords, we take no pleasure in saying that during the passage of the Anti-terrorism, Crime and Security Act 2001, we expressed serious concerns about Part 4. But this is obviously not the time for recrimination. Nor do we wish to open up the whole debate about civil liberties of individuals against the security of our country. That is because we are in a fortunate position that the valuable work undertaken by various committees has given the most detailed and closest attention to the issues involved.

The Law Lords have ultimately determined that the Part 4 powers are discriminatory and not proportionate. Let me first of all thank the Minister for repeating the Statement in your Lordships' House and thank the Home Secretary for his advance notice of the Statement and, in particular, for the constructive approach he has taken on this particular issue. For three years the Government appeared to be dragging their feet. Now we have the sense that the Home Secretary is genuine about finding a way forward.

That is welcome and has our support. On the day that we see the return of four detainees from Guantanamo, this is indeed good news. Let me promise the Minister
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that we will give serious consideration to the control orders that the Home Secretary is suggesting, but can she confirm that the standard of burden of proof will be high before an order is made? Are the control orders the process of civil courts, which use the balance of probability, or are they part of criminal proceedings requiring proof which is beyond reasonable doubt? The idea of holding individuals in house detention is another solution that is worth examination, but is the Minister considering ways in which that could be done without requiring derogation from our human rights commitments?

I am disappointed that the Minister has ruled out the use of intercept communication in obtaining trials. Although they may not help with putting the current detainees on trial, does the Minister acknowledge that in future cases, information gained from tapping could be relevant and could be used? I simply ask the Minister to keep the door open.

We gather that there is a consensus of opinion between intelligence services and the police that such information could be of benefit in pursuing cases against individuals, yet there is confusion in government circles on the issue and an explanation from the Minister would be very helpful. There is also some confusion of interpretation that my party was against the use of such information. That has not been the case.

I remain concerned at the idea of returning the detainees to host countries, although that is better than a third country. Does the Minister acknowledge that any agreement to do that would require very strong reassurances on human rights from those countries and that any arrangement could be challenged by the detainees if they felt it was unsafe? There is provision for making in-country information available to immigration adjudicators. We should ensure that organisations such as Amnesty International and the United Nations are involved in updating such information.

However, despite all the assurances given, three questions remain. Can we trust some of the host countries whose human rights record is questionable? Would we have categorical assurances from those countries that the detainees would not be harmed? Thirdly, would the detainees' wishes on whether they remained here or were sent back to the country of origin be taken into account?

Finally, we will be constructive about helping to speed up legislation on this issue, as we are aware that the March deadline for renewing the derogation is looming. In doing so our priority will be to balance the security of our country with the need to maintain strong principles of justice. I hope that on this, we can now find cross-party agreement.

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