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Baroness Anelay of St Johns: My Lords, I thank the Minister for repeating the Statement made by the Home Secretary in another place a short while ago. I also thank the Home Secretary for his courteous offer of briefings to me and my colleagues over the last week.

I join the Minister in paying tribute to the police and intelligence officers who work so hard to try to keep the British public safe. They have an arduous and dangerous task. We do not underestimate the difficulty of the problem facing the Home Secretary. There is no difference between us on the determination to protect the public from terrorism. There are no easy answers.

We believe, however, that the Home Secretary has today settled on the wrong answers—ones that sacrifice essential and longstanding British principles of liberty and justice, in a way that is unlikely materially to enhance the security of our people. For the Home Secretary to say today in another place that any alternative solution to his own is a "do nothing option" is a complete misrepresentation of what he should know to be the case.

Tempting though it is to refute the Home Secretary's allegation now, this is not the time and place—that would lead me into a Second Reading speech which is for another day. Suffice to say that we believe that this House should have proper time to consider extremely carefully all his proposals. But at present the Government seem determined to prevent that happening, despite the fact they say that this is an important Bill that raises serious and difficult issues.

The Government have been forced to this point by the decision of the Appellate Committee of the House of Lords just two months ago. The speech by the noble and learned Lord, Lord Hoffmann, who was a member of the Appellate Committee that gave the judgment in the case, is particularly relevant. He said:

In effect, that is what the Home Secretary is doing in a major part of this Bill. I accept, of course, that he has applied some limited judicial back-stop safeguards,
 
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but under these proposals a politician will be able to make the controlling order to restrain the liberties of a British subject. He will do that on the basis either of a balance of probabilities or even of simple suspicion. He will do it for reasons and on evidence that may not even be known to the British subject who may lose his or her liberty.

Today, we are told that a state of emergency exists. When a Home Secretary tells us that, we must believe that it is true. We are told that that justifies the provisions of the whole Bill. Then we are also told that the Home Secretary has been advised by the security services that they do not need to use the full extent of the powers in the Bill at this point in time. So, the Home Secretary, we are told, will not yet seek to apply the powers that require derogation. He is leaving them to some later, unspecified date when he will, if still in government, introduce them by order.

There are a thousand questions that could be asked, but I will restrict myself to a meagre two. The rest will wait until Committee. First, do the Government believe that the only control orders listed in the Bill that require derogation are those that restrict residents to a specified location? Secondly, the Minister referred to the fact that the restriction on residence could specify living in special accommodation owned and managed by the Government: what is that intended to be? Will it be Army barracks or police cells? Will it be newly built? What is the plan?

The Home Secretary has said that he wants to achieve agreement, and I, for one, believe him. However, the reality is that he has chosen to put himself at the moment in a position in which it is not possible to secure agreement on all aspects of his proposals. He is right to say that we should not wait for a terrorist outrage before we take action. I venture to suggest that nobody in the House would advocate any such course. I fervently hope that we will all use our best energies in the forthcoming days—I suspect that it will be no more than days—to work constructively towards agreement. I give my full commitment that we on these Benches will do just that.

Lord Dholakia: My Lords, I add my thanks to the Minister for repeating the Statement in your Lordships' House. I also ask the Minister to convey our thanks to the Secretary of State for the discussion that he has conducted with my party and the trouble that he has taken to explain the Government's position on the Part 4 powers, following the Law Lords' judgment. I also add my thanks to the police and the security services for the way in which they help us in protecting our citizens.

I have no doubt that the Home Secretary is genuine about finding a way forward. That is reflected in the Prevention of Terrorism Bill that is being published today. However, I also want him to know that the Liberal Democrats have been genuine in trying hard to find a solution. Following the meeting at 10 Downing Street, my right honourable friend Charles Kennedy said
 
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that we would not walk away but would give serious consideration to the control orders and to the process that the Minister was outlining.

Our position remains no different from the arguments that we advanced during the passage of Part 4 of the Anti-terrorism, Crime and Security Act 2001. We have a fundamental disagreement with the Government about the proposals in the present Bill. Put simply, we believe that the deprivation of liberty, in whichever form, must be done through a judicial process. The Home Secretary has moved, in strengthening judicial review, but the difference remains. He still sees the role of the judges as one of reviewing his decision. We believe that they should take the decision. I do not understand why, if the Home Secretary is prepared to let judges overrule his decision, he is not prepared to let them take the decision in the first place. Does he not recognise that, by applying to judges for control orders, he will still meet his responsibilities for national security as Home Secretary?

Will the Secretary of State think again about establishing a process that allows him to apply to a judge for a control order, rather than simply setting it himself? Will he also acknowledge that his current proposals are still based on reasonable proof? Should we not move towards a burden of proof beyond reasonable doubt, when it comes to removing someone's liberty?

I acknowledge that communications interception will not bring the current detainees to trial but could help in future cases. Previously, the Secretary of State said that he would leave the door open on that. I ask the Minister to go a stage further and ask the Newton committee to make specific proposals on how it could be done by the end of the year. That is a perfectly reasonable request.

The Secretary of State suggests that derogation is not needed for control orders that do not allow house arrest to be made. Is the Minister aware that the legal advice provided by Liberty indicates that derogation would be needed for any form of control order, including lesser restrictions, such as banning access to the Internet? What legal advice have the Government received?

Finally, I ask the Minister to outline the Government's plans if today's proposals fail to be approved by both Houses. Will the Minister seek a renewal of the Part 4 powers? If so, how long will it be for?

In essence, the judgments are all about the balance between the principles of justice and the maintenance of security. The proposals that the Secretary of State has outlined today get the balance wrong. That is why we shall work actively to amend the legislation.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Dholakia, for their thanks for the efforts that we have made. I also thank them in particular for their tone. All of us recognise how difficult the situation is and that we need to strive energetically to find a solution that best meets the extreme nature of the circumstances in which we find ourselves. The Home Secretary has considered the
 
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matters carefully, as have all colleagues in government who are seized of the matter. I assure noble Lords that that seriousness of approach will continue.

The noble Baroness, Lady Anelay of St Johns, asked in particular about the sort of accommodation that might be provided by the Government. The noble Baroness will know that there are bail hostels and other accommodation provided by the probation service, particularly for those who have no fixed abode. That is, of course, government accommodation, and it is those sorts of accommodation that we are thinking about in principle, so that those matters may be dealt with.

The issue of intercept information was raised. I thank the noble Lord for his acknowledgement that, with regard to the current cases, intercept evidence would not assist us. I say with the utmost humility that, in cases that are likely to be similar to the current cases, it is likely that, in the same way, intercepts would not help us. Therefore I repeat that our preference in all circumstances is to prosecute wherever possible. The legislation that we hope to introduce as quickly as we can, when parliamentary time allows, may enable us to address some of the issues, but they do not relate to those very precise issues.

Why not review the Part 4 powers? We find ourselves in a somewhat uncomfortable position. Your Lordships will know that the House of Lords has, in effect, declared that the Part 4 powers were discriminatory and were not therefore capable of being pursued. There is an argument—I put it no more strongly—that any secondary legislation that came from that source could be fundamentally flawed. Therefore, we cannot rely on that situation.

The difficulty with the particular individuals is that we cannot prosecute them. In the ordinary way, one would not be able to take advantage, for example, of the anti-terrorism legislation that would allow you to arrest those whom you reasonably anticipate that you can prosecute. So we find ourselves in a very difficult situation. It is for that reason that we have come to the conclusion that the control order is the best way forward.

We have taken legal advice. Your Lordships will know that we have consulted both within and without government on the course on which we are now set. I can assure your Lordships that we are as confident as we can be that the powers that we seek to take on the non-derogating control orders would be consistent with the ECHR. I hope we made clear in the Statement the basis on which the derogating control orders would be contemplated.


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