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Baroness Scotland of Asthal: My Lords, I thank both noble Lords for the constructive and helpful way in which they have responded to the Statement and in particular for the compliments that have been paid to
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my right honourable friend the Home Secretary. I think that I will be able to give noble Lords some assurances on a number of the matters raised. The noble Lord, Lord Henley, raised the issue of the countries with which we have had conversations about returns. As the Home Secretary said in his Statement, my noble friend Lady Symons of Vernham Dean had conversations with a number of countries last week. We have discussed with those countries their assurances in relation to our and their international obligations and Article 3. It is good that we have had positive discussions and they will continue to, we hope, helpful conclusions.

Of the other issues raised by the noble Lord, Lord Henley, I shall turn first to intercept. My right honourable friend's Written Statement, repeated by me, makes clear that the review found that interceptor product might secure a modest increase in the number of convictions of level 1 and 2 serious criminals, but not of the most serious; and that it would be unlikely to assist in prosecuting terrorist targets and would not have made a critical difference to the prospect of prosecuting people detained under the Anti-terrorism, Crime and Security Act Part 4 powers. Therefore, there is no inconsistency. However, I tell both noble Lords that of course these matters will be kept under review, as we have reviewed that from time to time, to see whether the position has changed.

Many of the details about the timescale are difficult to answer at this precise moment. We will put a great deal of energy into making sure that the legislation appears as rapidly as possible. Noble Lords will know that we have a very limited time because of the date on which the Part 4 orders will expire, so it is of the utmost importance that we put a great deal of energy into that. It will be primary legislation. It will come before both Houses. Noble Lords will have an opportunity to scrutinise the detail. I cannot today give your Lordships full details of what will be in it, but I hope that noble Lords have found that we have tried to extend the usual courtesies in regard to the legislation. We will certainly use our best endeavours to ensure that noble Lords who will be interested in the matter get access to that information as soon as reasonably practicable.

The control orders will be civil orders and a breach of those orders will be criminal. The noble Lord, Lord Dholakia, raised the issue of the standard of proof. He will know that in considering whether to certify an individual under the Anti-terrorism, Crime and Security Act Part 4 powers, the Home Secretary must reasonably believe that the person's presence in the United Kingdom is a threat to national security and reasonably suspect that the person is an international terrorist. A very strict standard has been adopted in applying that test. I hope that noble Lords will be reassured by the very small number of individuals who have been subject to those powers. We will look with great care to ensure that the standard is appropriate.

The noble Lord, Lord Dholakia, asked me a number of questions about intercept information. I hope that I have covered those in my response to the noble Lord, Lord Henley.
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3.47 p.m.

Lord Lloyd of Berwick: My Lords, I am bound to say that I find the Statement very depressing. Indeed, I find the response of the opposition parties somewhat depressing as well. Does the Minister accept that the proposed control orders will inevitably involve a deprivation of liberty contrary to Article 5 of the European convention—and, indeed, probably of Article 11, as that also involves the deprivation of the right to association? Does that not inevitably mean that there will have to be another derogation from the convention by this country to replace the order of derogation so recently quashed by this House in another capacity?

Would it not be better for the Government to come clean straight away, rather than using the pious words included in the Statement, where they say that they,

How could they be? I hope that the Minister will deal with that point in her reply, and say why we are the only country that has hitherto found it necessary to derogate from the convention and apparently intends to do so yet again.

The effect of the legislation would seem to be that we are simply extending deprivation of liberty to a wider number of people than before. How can that be regarded as a satisfactory solution to what I accept, and everyone accepts, is an extremely difficult problem? Would it not be far better to change the law so that those who are currently detained—and those who are not currently detained but are suspected of terrorism or terrorist intentions—are prosecuted in accordance with the ordinary law?

Baroness Scotland of Asthal: My Lords, of course I understand the import of what the noble and learned Lord says. However, I hope that it was made plain in the Statement that our primary responsibility must be the safety and security of this country. We will look with a great deal of care at the nature and the extent of the control orders. I am not in a position to help your Lordships with the precise detail, and we know that the devil is always in the detail. We will strive to produce a framework that is consistent with the ECHR. However, in the Statement, my right honourable friend the Home Secretary also made it plain that, in the end, he must make sure that the security of this country comes first. That heavy responsibility rests on his shoulders.

Baroness Hayman: My Lords, as I am the only member of the Privy Council review committee who is able to be here, I thank my noble friend for her kind words about its contribution. Perhaps I ought also to thank the Judicial Committee of this House for making some of our suggestions rather more palatable to the Home Office than they were at the initial stages.

Will my noble friend accept that, in trying to strike this extremely difficult balance, it is unlikely that a single measure will solve the problem? Many of us would accept that the reason for extending whatever
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measures are in place—to British nationals as well as to non-UK citizens—is one not of theoretical anti-discrimination, but of fulfilling what she described as the prime responsibility of the Home Secretary and the Government to protect citizens. The measure should be of the threat, not of the nationality or link to a particular terrorist organisation of the person posing that threat.

Is my noble friend aware, however, that there will be great concerns if the measures around control orders involve another derogation? If at all possible, could we not find a range of measures beyond some forms of control that we recommended? In that respect, I want to ask her about all the other recommendations made as alternatives to detention under Part 4, particularly the measures about improving the possibility of prosecutions being undertaken successfully and how the Government intend to address those issues apart from the simple replacement of Part 4.

Baroness Scotland of Asthal: My Lords, I wholeheartedly agree with my noble friend that there is no single golden bullet in relation to the issue, and that we will need a range of measures. However, it is right to emphasise what was said in the Statement—that prosecution must always be, where possible, the preferred option. We are looking at other solutions where prosecution is not possible, for particularly delicate and difficult reasons, but we hope that they will be rare cases indeed. I agree with her on the importance of looking at the threat posed by the individual concerned. We will continue to look at the range of measures discussed, to try to put forward the most effective package to keep this country safe.

The Earl of Onslow: My Lords, we found that internment without trial did not work during the IRA Troubles—which, let us remember, were partially financed from the United States. Large numbers of bombs went off here in London and in other parts of the United Kingdom. We found that internment without trial was not only counterproductive, but against the law and every tradition with which we should be proud to associate ourselves, so why are we taking this step? How many other common-law countries—Australia, New Zealand, Canada and the United States—have felt the necessity to introduce internment without trial?

Would the noble Baroness like to comment on the fact that asking the Egyptians to say that they will not torture people is exactly the same as asking someone whether they have stopped beating their wife yet? If they say yes they admit to doing it, and if they say no they are in a hot pickle. Whatever you ask the Egyptians or whoever it may be in north Africa, they will be forced to admit to torture so, as we have already seen in published data, that will not work either. It is a sad day when this country introduces internment without trial for its own subjects. It is an appalling issue.

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