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Lord Lloyd of Berwick: My Lords, can the noble and learned Lord the Lord Chancellor think of any single instance in our history in which a judge has been given the power to deprive a citizen of his liberty without a conviction by a jury?

Lord Falconer of Thoroton: Yes, my Lords; the only comparable case is bail or deprivation of freedom pending a trial where there is no conviction.

(5)Lord Pilkington of Oxenford: My Lords, in contrast to the point made by the noble and learned Lord, Lord Lloyd, can the noble and learned Lord the Lord Chancellor tell us how many times the executive has suspended habeas corpus in the past 200 years—which,
 
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I believe, is more than people think—and allowed the executive to decide to make those decisions? It has been an article of English history, although I do not know whether it did any good. We governed Ireland by coercion.

Lord Falconer of Thoroton: My Lords, it is done extraordinarily rarely; I cannot identify precisely the number of times that it has been done. We proceed on the basis that it is done extremely rarely. For it to be done there has to be a sufficient degree of risk to justify particular measures of the sort that we have described. We think that the balance, which we feel an obligation as a Government to seek to strike, has to be struck in order to balance the right to protection that people have against the freedoms that the people in this country have traditionally enjoyed.

Lord Morris of Aberavon: My Lords, could the noble and learned Lord, the Lord Chancellor, develop his argument? Now that the Home Secretary has reached a new view for derogated powers, why should the same not be done for non-derogated powers?

Lord Falconer of Thoroton: My Lords, in relation to derogated powers the reason we think it necessary for the judge to intervene at the outset—that is, before the order is made—is because the order's effect is to deprive the citizen of his liberty. The effect of the non-derogating order is not to deprive the individual of his liberty; therefore the consequences on the individual are fewer. That is the distinction on which we rely. We accept that in certain circumstances the effect of a non-derogating order could be onerous for the individual. That is why the Home Secretary also made it clear that within a matter of days it is important for the matter to go before the court.

The reason for the distinction between the two sorts of cases is the effect or impact on the citizen. Where the impact is as onerous as it is in a derogating control order, we think it right in the light of representations that have been made that the judge should make the order in the first place.

I have indicated what the effect of the amendments and the effect of a derogating order should be. Consistent with a traditional Second Reading speech, I shall indicate briefly what the Bill contains. Clause 1 provides the basis on which the Secretary of State will be making non-derogating control orders; it also sets out the sorts of order that a non-derogating control order will contain.

Clause 2 provides the basis for the Secretary of State making a derogating control order: a control order that amounts to a deprivation of liberty under article 5. It also sets out the significant judicial role in which there would be an automatic hearing of the merits of the case on an inter partes basis. That will remain the case even where the amendments make it clear that before the order becomes effective a judge must have ordered it on an ex parte basis.

Clause 3 sets out the duration of control orders and the process for renewal. Clause 4 sets out the duration of derogating control orders; Clause 5 sets out the process
 
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for modification, notification and proof of control orders; Clause 6 sets out offences linked to breaches of a control order; Clause 7 sets out the judicial process for reviewing non-derogating control orders; Clause 8 sets out the judicial process for hearings concerned with modifying derogating control orders.

Clause 9 is concerned with the jurisdiction of the court in respect of control order proceedings; Clause 10 is about the effect of the court's decisions on convictions; Clause 11 is about the process for reviewing the application of the Act; Clause 12 is concerned with interpretation of the Act; and Clause 13 provides for other supplemental provisions. The schedule to the Bill provides for proceedings in the court.

I know that many within this Chamber will continue to ask whether we are going too far in introducing these measures. Noble Lords who have raised the uniqueness and unusualness of the process are right to do so. No government would introduce such measures unless they felt compelled to do so pursuant to the duty to protect the people of this nation. We feel compelled to do so on the basis of the threat to the nation, but we are extremely conscious that in doing so we must be consistent with the rule of law and with our obligations under the European Convention on Human Rights.

I make three other points: first, as my right honourable friend pointed out in the other place last night, there are very many outside Parliament who would ask whether we are going far enough. The new forms of international terrorism pose a grave threat to the security of our country and other countries. We would all prefer simply to rely on criminal prosecutions before using measures which deprive people of their liberty, or interfere with other convention rights; but we believe, consistent with the responsible protection of the people in this country, that we have to strike a balance. The pressure is on us to make the judgment and I hope that we can persuade the House that we have made the right judgment.

Secondly, because of the passing of the Human Rights Act, we have provided ourselves in government and in the courts with a template for measuring the proportionality of our response, and ensuring that the measures we take against any individual are, in the case of deprivation of liberty, strictly required by the exigencies of the security situation; or, in the case of interference with other convention rights, necessary in a democratic society in the interests of national security, or for the protection of the rights and freedoms of others.

Some have argued that these tests were already latent in our common law, and that the Human Rights Act did nothing to advance them. We on these Benches profoundly disagree and regard the Human Rights Act and the European convention, which it incorporates, as providing a living and fundamental guarantee of our freedom under the law.

Thirdly, the existence of the Human Rights Act and the ability it offers the courts—including the Appellate Committee of this House—to scrutinise the actions of the Government and the laws we pass against the yardstick of the European convention provide a new and powerful guarantee of the rule of law. I therefore
 
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begin where I started: we are introducing this Bill in order to address the findings of the court and its decision in A and Others in this House.

We are introducing measures consistent with the convention and remedying the defects of previous laws that we introduced. I hope we all accept that a regime of preventive controls of the type set out in the Bill is urgently necessary both to protect our citizens from terrorist attack and to right the wrongs identified by the House of Lords in the case to which I referred. We must have available measures to deal with the threat but we must equally put the law into a state consistent with the European Convention on Human Rights. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)

3.39 p.m.

Baroness Anelay of St Johns: My Lords, we do not underestimate the difficulty of the problem facing the Home Secretary. There is indeed no difference between us on the determination to protect our public from terrorism. We know that there are no easy answers but, as I made clear last week, we believe that the Home Secretary has settled on the wrong answers, which may sacrifice essential and long-standing British principles of liberty and justice in a way that is unlikely materially to enhance the security of our people. The Government have quite properly, and laudably, put into effect measures to prevent the radicalisation of groups in our society; these laws, and the sense of injustice that they may create, could completely negate those efforts.

It is shocking that Parliament, and especially another place, has been given so little time to scrutinise this important Bill, one that the Government themselves agree raises serious and difficult issues. Yesterday, the Home Secretary wrote to my right honourable friend, David Davis, to announce that he would table amendments in this House with regard to the derogating orders, to which the noble and learned Lord the Lord Chancellor has referred today. Yesterday I watched the debate in another place; I saw Members around the House ask the Home Secretary to agree to a short adjournment so that those amendments could be tabled and debated, but that did not happen. Another place was denied the chance to debate vital government amendments in Committee, which means that the only time when another place can consider them is when the Bill returns to that House for the briefest consideration of Lords amendments. That in itself assumes that this House will pass those amendments unaltered. That was a shocking way in which to treat the elected Chamber by a Home Secretary legislating in such haste that we face the very real danger of getting the proposals in the Bill wrong.

We have offered the Government the opportunity to have the time to consider carefully the proper way forward. Today the noble and learned Lord the Lord Chancellor has dealt with some of our proposals and dismissed them by saying that there is a gap between security and what they would provide. In Committee, we shall need an opportunity to look at the alternative
 
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proposals in detail and in a manner that is constructive and—I believe—helpful to this House and to the Government.

We said that we were willing to support the renewal of Part 4 of the Anti-terrorism, Crime and Security Act 2001, for a limited period, specifically to allow time to get right the provisions that we need today to combat terrorism. The Home Secretary has said that he does not believe that that would work—but that still begs the question, regardless of what the noble and learned Lord said today, why the Government tabled that statutory instrument just a few weeks ago.

We are willing for a limited period to co-operate in primary legislation that limits the bail conditions that SIAC can allow, effectively guaranteeing that the control orders that the noble and learned Lord outlined today would apply to the remaining Belmarsh detainees until properly considered legislation comes into effect. That would give the Government the certainty that they are seeking for foreign nationals.

We made other practical proposals, too, with regard to allowing intercept evidence in court. Of course, I note what the noble and learned Lord said today, but we have also referred to the fact that it would be helpful to take up the Newton committee proposals that we should put in place a procedure using an investigating judge to sift, assess and present a balanced set of all sensitive evidence, including intercept and other intelligence-based evidence, in such a way as to protect our security services but also to be fair to the defendant.

The Government have said that they are now considering taking up the idea of introducing a new charge relating to acts preparatory to terrorism. We have always said that we would consider very positively such a proposal. So there are alternatives that can and should be considered in Committee, but for the moment the Government seem set on only one course: that of the control orders in this Bill.

The Bill that faces us today is, of course, unamended, and we shall not see the Government's proposals until tomorrow. It gives the Home Secretary the power of imprisonment, either at home or in government-run property, as well as powers of isolation, search, electronic tagging and removal of belongings. The Home Secretary can impose those orders on anybody whom he reasonably suspects of terrorism-related activity. Such powers go far beyond any previously known British law and have never been accepted in peacetime. He could do that on the basis either of the balance of probabilities or even simple suspicion. He could do it for reasons and on evidence that may not even be known to the British subject who loses his liberty.

We were told in the Statement last week, and it has been repeated again today, that a state of emergency exists. Last week I made it clear that when the Home Secretary tells Parliament that there is a state of emergency, we accept that statement. We also know that the Home Secretary has not sought to persuade the House that the level of that state of emergency has altered within the past 12 months. We are told, too, that the Home Secretary has been advised by the security services that they do not need as yet to use the full extent of the powers in this Bill.
 
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I believe that the Government argument in favour of the necessity of the whole of this Bill as an emergency measure now, pushed through Parliament in a mere two weeks, is fatally wounded by their own ready admission that they do not propose to use those measures that require derogation—at least, not just yet. We are told that they will be left to some later, unspecified date, when the Government would if still in power introduce them by order. So the very people whom the Government say need to be targeted by the Bill—those held in Belmarsh for so long—will walk out of those prison gates within the month.

I turn now to the substance of the Government's concessions floated in the letter yesterday to my right honourable friend. As the noble and learned Lord said today, the proposal is to amend the Bill to provide for derogating control orders to be made by a judge in the High Court rather than, as now, by the Secretary of State. I shall be brief on this matter because my noble friend Lord Kingsland will be able to tackle it in more measured detail after we have listened properly to the debate, when he winds up at some much later time today. I am sure that he is pleased with that surprise parcel from my left hand!

The most substantive concern about procedure in the Bill, though not my only concern, has been that a British citizen could lose his liberty on a decision of the Home Secretary, on suspicion alone and on evidence that the accused person never sees. But my concern throughout, since I heard the Statement last week, has been simple—that all of us, politicians and the media alike, have been caught in the glare of the Government's headlights, dazzled by the shock of proposals for the Home Secretary to have the power to put British citizens in detention.

The result, I fear, is that none of us has spent enough time examining the other extreme proposals in the Bill—for example, on the rules on evidence, the burden of proof and the impact of so-called level control orders, which will also cause a significant limitation and restriction on liberty. Paragraph 4(3)(c) of the schedule means that rules of court must ensure—not may but must—that the Secretary of State is not required to reveal any evidence upon which he does not rely in proceedings for a control order. So if he has evidence that undermines his case and might tend to show that the person was not in fact engaged in terrorist activity, he can keep it secret and use in court only that evidence that appears to raise suspicion of guilt. Surely that cannot be right. Paragraph 4(1)(a) leaves rules of court to determine the burden of proof in control order proceedings. What is the excuse for avoiding putting the burden of proof in the Bill in these important matters?

Last week, I restricted myself to only two questions on the Statement, for once, but the noble Baroness, Lady Scotland, was even more restrictive in her response and answered just the one—the easier one.

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