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Lord Hooson: My Lords, does the Minister agree that the provision of safeguards against terrorism have a parallel in the past in the provision of safeguards against espionage? The threat is the same. Surely, there are precedents, for example, in espionage cases at all levels which were heard in camera. In the Cyprus spy trial, for example, the jury was positively vetted, and it was an impeccable jury. Would it not be possible to introduce a judicial element into the process at a much
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earlier stage? The public are really puzzled about that point. At the moment, I do not see why it is not possible for the Government to ensure that a judge and, if necessary, a positively vetted jury consider the evidence.

Baroness Scotland of Asthal: My Lords, of course in the past there have been cases on very difficult issues, such as espionage, and they have been dealt with. That is why I reiterated that, where possible, the Government's preferred course is to prosecute. The situation in which we find ourselves in relation to the small number of individuals who have been subject to Part 4 powers is simply that it has not been possible to prosecute them using any of the usual strategies that we have available to us. That is why we seek a separate and different situation.

On judicial scrutiny, I hope I made it plain that there will be a high degree of judicial scrutiny both for non-derogating orders and for derogating orders. Of course, non-derogating orders will be reviewed in accordance with the usual principles of judicial review. If we ever have a situation in which such powers need to be taken and an order needs to be made, there will be judicial scrutiny because, although the Home Secretary will make the decision, within seven days the matter will go before a judge for him or her to determine, on a prima facie basis, whether the order is sound. If a judge finds that the order is not sound on a prima facie basis, he or she can discharge it and if he or she thinks there is a prima facie case, it can then be given a full substantive hearing.

Some practical points have to be considered on the steps that one needs to take. The Home Secretary may receive information that will require very speedy action to secure the safety of this nation. I emphasise that the period before such a matter will automatically go before a court will be a mere seven days. We believe that that is the better course.

Baroness Hayman: My Lords, I should like to add my thanks to those already given to my noble friend for her normal extraordinary courtesy in consulting those of us with a longstanding interest in the matter. I fear it means that she had to endure my Second Reading speech a little while ago, so I shall not inflict it on her again.

I should like to raise two issues with her—one of principle and one of process. The issue of principle returns to the issue of judicial scrutiny or judicial involvement in the original decision making. I do not believe that what has been outlined in the Bill is so far away from allowing judicial involvement in the original decision that it would not be possible to change from an executive decision, which is then scrutinised on its rationality and reasonableness, to a judicial imprimatur, which is nearer to a prosecution and we would all wish to see.

I welcome the fact that the Government have said that they will bring forward legislation to allow prosecutions in more cases. I suggest to the Minister that that would involve different forms of prosecutions. Does she accept that one would be more
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comfortable if one could deal with these provisions in the context of provisions that also made available more opportunities for prosecution?

That leads me to the issue of process. After 11 September, we legislated in haste, which was understandable. To legislate in haste on issues that are this delicate and difficult in 2005 is less easy to justify. I understand what my noble friend says about the difficulty of the renewal of Part 4 and the preference for what has been outlined here compared with what exists at the moment in Part 4, but I have the gravest reservations about the timeframe that is being allowed. If this is the least worst option, will my noble friend look very carefully at making it a least worst option that has the shortest possible parliamentary life?

Baroness Scotland of Asthal: My Lords, I thank my noble friend Lady Hayman for those comments. I understand the anxiety that she has expressed. I can see why she should suggest that it would be more comfortable if we could undertake the two parts together; namely, the legislation on changing the ability to prosecute that we hope to be able to bring forward when parliamentary time permits, and this matter. We are faced with a situation in which that simply is not possible. As the Part 4 powers need to be renewed by the 14th of next month and we are not in a position to introduce other legislation before then, we find ourselves in the unenviable and uncomfortable position of not being sure whether it would be lawful and proper for us, as has been suggested, to extend the Part 4 powers.

Noble Lords should know that the Joint Committee on Statutory Instruments has raised that issue with the Government and we have given a reply. We do not know the final view of the committee, but it would be right for us to be appropriately cautious that it may not be minded to agree with our view.

Lord Thomas of Gresford: My Lords, the noble Baroness has pointed to the flaw that cracks open this Bill. On the one hand, derogating orders are to be put before a High Court judge who will decide on the merits and may, if necessary, vary the conditions of the control order. Non-derogating orders, which are all that are proposed at the moment according to the Statement, are simply subject to judicial review and to all the limitations of judicial review, such as whether the Home Secretary has taken his decision properly or whether he has acted in a way that is so unreasonable that no sane Home Secretary could come to that decision. That is a very weak safeguard in relation to the liberty of the subject. Would it not be easy to relate the procedures for derogating orders that are proposed in the Bill to non-derogating orders, in which case many of the concerns expressed will be resolved?

Baroness Scotland of Asthal: My Lords, of course I hear what the noble Lord says. Perhaps I can help him and the House about why we disagree. All steps that we take have to be proportionate in relation to restrictions on liberty. The restriction on liberty in the non-derogating orders falls short of a denial of liberty in terms of free movement. Therefore, it is proportionate to say
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that judicial review—which has many teeth that this Government and previous governments have felt quite keenly—is an appropriate way of ensuring that such decisions are reviewed and kept within proper order. We therefore believe that the non-derogating orders are properly reviewed by judicial review.

In the case of derogating orders, the nature is changed. It is likely that we are talking about a denial of liberty. Where there is such a denial of liberty, one demands a higher degree of judicial scrutiny and intervention. In that case, instead of simply saying—as with the non-derogating orders—that the court is limited to asking whether a Home Secretary reasonably directing himself or herself to the circumstances of the case could properly have come to that decision, in the derogating control orders the court has the opportunity to substitute its own decision for that of the Home Secretary. The justification for the judicial substitution of the judge's decision for the Home Secretary's decision is the quality and extent of the deprivation of liberty which is contemplated. The proportionality issue is dealt with on that basis.

The Lord Bishop of Worcester: My Lords, I too express thanks not just for the repetition of the Statement but for the coolness with which it was delivered and with which the Minister responded. That quality is extremely important if we are to discuss this situation carefully. It is clear from the tone of the Statement and the Minister's replies that the profound nature of the decisions that face us is in the Government's mind. I appreciate that.

However, I am puzzled. As well as the practical considerations which are adduced in favour of decisions being made by the Home Secretary and only afterwards scrutinised by a judge, there seems to be a theoretical view with which I am not familiar and which I am puzzled by. That view is that responsibility for the safety of the realm rests on the executive. My understanding of my position as a citizen—let alone my position as a Member of this House—and of the position of the judiciary is that we all share the responsibility. It is not the case that one branch—namely, the Executive—exists to protect the public.

While other people prevent those decisions being too draconian, surely all of us are charged in our different roles with that responsibility. Would it not therefore be much better if we adhered to our constitutional principle that decisions in the case of derogated orders to deprive a person of liberty should be taken by—and only by—by a judge and that those decisions and judicial procedures should be able to be accommodated with all possible speed? I remain puzzled why the Government have felt it necessary therefore to go down the road of executive decision in a matter that constitutionally belongs to the judiciary.

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