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Lord Newton of Braintree: My Lords, as the former chairman of the Newton committee, to which some reference has been made in these proceedings, perhaps I may make a couple of preliminary points. First, although I speak from these Benches I shall, as always on these
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matters, seek to speak in a totally non-partisan way. Secondly, I need to make this clear, especially as at least one other member of the committee is in the Chamber. I cannot speak and do not seek to speak for the committee. It has had no existence since about 18 December 2003. It has no secretariat and no continuing locus; and although I have had some informal discussion with some members of the committee I neither seek nor claim to speak on their behalf. Any view I express is my own although informed by the work and conclusions of the committee.

I intend to speak briefly, first, because of the number of speakers; and, secondly, because I have had my say on some of these matters on a number of earlier occasions, quite apart from what was said in the report by myself and eight others. I shall not spend too much time on regrets but shall record three in the wake of the work we undertook on the committee. First, there does not appear to have been much active consideration, despite what our report said, of possible alternatives to Part 4 until after the Law Lords' ruling last November—almost a year after our report. That legal judgment was not one which we could have made or sought to make. However, no one who read our report would have been surprised by the judgment which followed a year later and we should all have been in a somewhat better position if more thought had been given earlier to an alternative to Part 4.

My second regret—it was expressed by my colleague, the noble Baroness, Lady Hayman, when the Statement was made in this House—is that in this acutely difficult area where careful scrutiny and balance need to be the name of the game we now find ourselves, for the second time, considering legislation on an emergency timetable with all too little opportunity for that scrutiny. Quite apart from what has been said from the Front Benches on this side of the House, I have little doubt that the House would have readily agreed to a short extension of some months of the Part 4 order to allow time for legislation to be considered properly in a more normal timetable. That would have been my view.

My third regret is perhaps linked. Everyone in all parts of the House is agreed that the best course wherever possible is a proper prosecution. I regret that not more in this package is directed to increasing the probability of successful prosecution. I know that there has been talk of continuing to keep intercept evidence under review. I shall not rehearse all those arguments. There is now a suggestion that further legislation will bring forward new offences along the lines suggested by ourselves or the noble Lord, Lord Carlile. I welcome that. But I should welcome it even more if we were considering legislation which brought all these matters together enabling us to judge a balanced package which sought to meet the different objectives. Those are my regrets.

However, we are where we are and I do not wish to dismiss the problem which the Government seek to address. Therefore, I make three comments. First, although it is not a matter directly for the Bill, I welcome the greater efforts evidently being made in discussions with foreign governments with regard to deportation of
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those incarcerated currently in Belmarsh, because it is said that they cannot be deported without involving the human rights concerns which have led to that position.

Secondly, I remind the House of what we said in our report which for me is a quite important part of the background to this debate. At number 25 of our consolidated conclusions on page 11 we said:

I at least should acknowledge that however imperfect and, in respect of the European convention, potentially incomplete the Home Secretary's proposals may be in some respects, they clearly represent an attempt to address those concerns. That was perhaps made inevitable by the Law Lords' judgment, which reflected the same concerns, but is nevertheless something that I ought to acknowledge.

Thirdly, enough has already been said, both in this place and in another, to know that the proposals as announced were capable—at least—of significant further improvements to meet the concerns that we all share. Happily, the Home Secretary yesterday indicated his intention to bring forward amendments, described by the noble and learned Lord the Lord Chancellor earlier, to meet one aspect of those concerns. From what I have heard so far this afternoon, I have to say that I will take some convincing that it is not possible to go the further step in respect of the non-derogation orders, as was suggested by the noble and learned Lord, Lord Morris of Aberavon, at an earlier stage. I hope that that will be given further consideration.

Most important of all, and in line with what I said at the beginning, I want to welcome warmly the extent to which those on all the Front Benches—certainly on these Front Benches—have placed the emphasis on constructively seeking to improve the proposals and trying to enlarge the area of agreement. I am sure that that is how we should proceed. It is certainly how I shall proceed in any contributions that I am able to make in Committee.

4.41 p.m.

Lord Goodhart: My Lords, I recognise the serious problems facing the Government. Since 9/11, we have been faced with a terrorist threat that is indeed more serious than the threat that we faced before. Part 4 of the Anti-terrorism, Crime and Security Act 2001 has now been declared incompatible with the Human Rights Act. The Government would probably be acting unlawfully, and certainly politically unwisely, if they simply extended Part 4 for a few more months; I quite understand why they do not wish to do that.

I accept therefore that we need new primary legislation to replace Part 4, and that such legislation may involve procedures that are different from our traditional court procedures. I would have supported a
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Bill that introduced control orders if that Bill provided proper safeguards and achieved a proper balance between the security of the community and the liberty of the individual. This is not such a Bill.

What is wrong with the Bill? First, as has been pointed out already, it provides for the control order to be made by the Home Secretary, not the court. In the case of a derogating order—a house arrest order—the new proposals announced yesterday by the Home Secretary, and intended to be formulated in an amendment to be tabled tomorrow, go a considerable way to meeting our objections. That is not so in the case of the non-derogating control order—the basic type of order, which is likely to be made far more often than the house arrest order.

The basic order does not automatically go to court; the subject of the order must apply for a hearing. Much worse, he will get judicial review, not a reconsideration on the merits. The court will be able to quash that decision of the Home Secretary only if the procedure has been defective or if the decision is irrational—a decision that no reasonable Home Secretary could have reached. Even with some recent Home Secretaries in memory, that is quite a high hurdle to cross. It is surely a basic principle that, where a loss or restriction of liberty is involved, the Government make the rules but the courts apply them to the individual cases. Neglect of that principle is the starting point on a road at the end of which lie the gates to the gulag.

I accept that there is, of course, a need for some emergency procedure when instant action is needed—for instance, if it is discovered that someone is going abroad apparently with the purpose of attending a meeting of terrorists. However, the final decision must be made by a judge in court. In its present form, the Bill is unconstitutional and unacceptable.

Secondly, the Bill imposes too low a standard of proof. Only in relation to a derogating order does it require even a balance of probabilities for the order. That means that the basic control order can be made against someone who, on the balance of probabilities, is not involved in terrorist activities. The suspicion of the possibility of involvement—not probability—is enough under the Bill to justify a control order. That cannot be right. It leads to the likelihood of control orders being made against innocent people, with all the dangers that that has to the good will of the community from which that person comes.

Thirdly, the Bill contains no sunset clause or any requirement for renewal. Control orders are an exceptional power to meet exceptional circumstances. They should not be left on the statute book for ever. There must be provision for at least an annual renewal of the contents of the Bill by a resolution of each House of Parliament.

Fourthly, the Bill contains no restriction on what a control order can do. Under Clause 1(2), the Home Secretary can impose on an individual any obligation that he considers necessary to prevent or restrict the involvement of that individual in terrorist-related activities. Clause 1(3) contains a long but non-exhaustive list of what control orders can require. It is entirely wrong
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that the Home Secretary, or indeed the court, should have power to restrict liberty in ways that are not specifically authorised by Parliament. If the list in subsection (3) is to be added to, that surely must be done by an order approved by each House of Parliament.

Fifthly, the Bill is being rushed through much too fast. It needs detailed scrutiny. For example, the schedule contains power to make rules of court. As the Delegated Powers Committee says, the rules are likely to be unusual and controversial. In particular, it is those rules which will contain the provisions about the special advocate procedure and restrictions on the right of the subject of the control order to see the evidence against him. Those are matters that have caused and continue to cause serious concern. There is a need to debate the rules for control order cases, and to decide which of them should be spelt out to a greater extent in the Bill and whether they should need affirmative procedure for approval.

Because the Bill is being rushed through, it is also incomplete. It should include a new offence of acts preparatory to terrorism, authorise the use of intercept evidence in trials, and forbid the use of control orders where there is a reasonable prospect of a successful trial. In the latter case, I hope that we will see the amendment that the Home Secretary has said that he is considering.

Those are five clear reasons why the Bill is unfit for the statute book. The Government need to sit down with the opposition parties and work out what they can legitimately do in the 10 days before Part 4 of the anti-terrorism Act runs out of time. What they cannot do is force the Bill on us; that would be an affront to the constitution.

4.48 p.m.

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