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Lord Craig of Radley: My Lords, I share many of the misgivings about sacrificing highly prized and ancient liberties in the search for greater national security. Both propositions have degrees of shading. Nothing is absolute about either liberty or security. The measure of the former is far better understood and catalogued over centuries than any possible measurement of the latter—that is, of security. There is no realisable or deliverable absolute about security.

Whatever yardstick of inadequate security or of terrorism is adopted, be it numbers killed or murdered, high death tolls among women and children, major damage and destruction of buildings and facilities, wide scale disruption of the necessities of life, such as power, water or communication, or the threat to perpetrate one or more of these outrages, I cannot see it as a realistic or practical aim to safeguard the nation against them all. Some protection, and hopefully prevention, yes, but not some place or dome under which the nation can safely be sheltered from the threats and outrages of terrorists.

Inevitably the Government cannot be precise about what threats to national life have been forestalled. I understand the argument that if nothing is done—or if less than might have been done is found, after an outrage, to have been insufficient—such inadequacy
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can severely damage public trust in the competence of the Government and their security agencies. But I still think it is better for governments to argue for the benefits of liberty, and to stress that their preservation is so important. If ill befalls, the risks of it were acceptable. The ill must not be allowed to take, or be given, greater importance than the preservation and values of our liberty. That would only play into the hands of the terrorists.

The statute book already contains a raft of measures to tackle terrorism and criminal behaviour. Is it really the case that, neither singly nor in concert, these are so inadequate that this latest Bill has to be added to them? Moreover, if the Bill, or something like it, becomes law because of the extreme concern about today's threats to national security, who will be brave enough to say that the serious threat is diminished, removed or gone away, so that this draconian law is no longer required, need not be renewed and can be repealed? Part 4 of the 2001 Act is not going without replacement. Even more stringent measures than were required in the aftermath of 9/11 are deemed vital. Turning down the wick is not even contemplated.

All experience of responses to threats leads to the view that, while something can perhaps be justified in the heat and circumstances of the moment, and be put in place if the will is there, it is much more difficult to back away at some later date and withdraw the response—particularly to such a nebulous but multi-faceted thing as global terrorism.

Then there is the argument that to withdraw sends a message that you are no longer intent on maintaining your guard. You are perceived to be signalling weakness or lack of resolve. The decision to withdraw HMS "Endurance" from Antarctica was seen by the Argentinians as a loss of UK interest in the Falkland Islands, so they invaded. Now we are locked into a far more expensive posture to protect the Falkand Islands than the cost of keeping "Endurance", or a replacement ship, nearby. Cutting back is a really difficult decision to take, and can be argued to be a false economy. No change takes place.

I ask the Government: what is their exit strategy from this Bill? Do they have one? Have they thought about the long-term impact and limitations of the Bill? Surely they prize freedom and liberty highly; highly enough to wish to see their pre-eminence recognised in statute and restored to their rightful place in safeguarding our national way of life. Will this Government, or any successor government, be prepared to run the strategy, even more risky for their reputation and public support, of repealing this Act, only to be faced with recriminations in the aftermath of some terrorist outrage?

Too often do we embark down a new road, but do not give adequate thought to where it will take us, or to the need for an exit strategy. I should like to hear more from the Government about how they view the likelihood or prospects for a climate sufficiently benign, a war against terrorism won, that repeal can safely be contemplated and achieved. If the realistic prospect of repeal is not foreseeable, for me that is another strong argument for not rushing this Bill on to
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the statute book in the first place. Precious liberties are at stake, possibly in the longer term as well as today. I urge Her Majesty's Government to think again.

4.56 p.m.

Lord Plant of Highfield: My Lords, I should preface my remarks by saying that I am a member of the Joint Committee on Human Rights, and therefore I share and indeed endorse the assessment of the Bill produced by that committee at great speed last week. There will be another assessment, due later this week.

Since I shall be critical of the some of the provisions of this Bill, I want first of all to record my areas of agreement with the Government's case. First, I accept that the Bill is a genuine and, in some ways, imaginative attempt to grapple with the Belmarsh judgment. It provides a more flexible framework than Part 4 of the existing legislation. It also tries to provide a framework that would not, at least at present, require a derogation from Article 5 of the ECHR, and that supporters of the Bill claim would otherwise be convention compliant. Given that it covers both UK and foreign nationals, the Bill also overcomes the discrimination problems in Part 4 of the present Act.

I accept that there is a persistent terrorist threat. I am also prepared to accept that contemporary terrorism is different in kind from previous forms. Religiously inspired terrorism combined with a desire for martyrdom raises unique security problems. I also agree with the Government that some policy of pre-emption may be necessary in relation to terrorist suspects. In that context, I welcome the Home Secretary's proposal in his Statement last week to bring forward legislation to cover actions engaged in the commission, instigation and preparation of terrorist acts. My only comment on this, apart from expressing support for it, is that it seems long overdue, as the noble Lord, Lord Newton, said.

I also accept that it may not be possible in all cases to prosecute suspected terrorists in open court, although I welcome the Government's commitment to do so where possible. I would like the pressure to be kept up on the Home Office to agree to the use of intercept evidence. I accept that this may make a difference to prosecutions only in a small number of cases, but even those would be important in the overall attempt to make the anti-terrorism regime as compliant as possible with the rule of law, and with convention rights.

In his speech, my noble and learned friend the Lord Chancellor prayed in aid the views of the noble Lord, Lord Carlile of Berriew, on a different issue. I would like to pray him in aid as well: I approved of what he said during his interview on the wireless this morning about keeping up the pressure to get such evidence produced before the courts. I also strongly approve of the proposal of the committee chaired by the noble Lord, Lord Newton, to provide a distinctive legal space within which that evidence might be used.

It is important that the decision to prosecute someone who is suspected of being a terrorist be taken by the Director of Public Prosecutions, and not by the Home Secretary advised by the security services and by
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the police. I believe it should be the DPP. It seems to me that that would make the terrorism prevention regime much more compliant with the rule of law.

Finally—in favour of the Government's view—I accept the point made by the Home Secretary that it is the Government's and his specific duty to protect the nation's security. However, while I agree with all of those points, they do not seem to me to point wholly in the direction of the powers granted in the present Bill.

First, I believe that while the Home Secretary has to take the lead in relation to applying for control orders, and that that approach is consistent with his obligations in respect of national security, I do not believe that it should be the Home Secretary who makes such orders rather than a judge. I say that, first of all, on separation-of-powers type of grounds, about which I have spoken before in your Lordships' House in respect of the Constitutional Reform Bill. Also I think that the European Court is not likely to find that the granting of all the types of control orders by a member of the Executive will be ECHR compliant.

There can be no objection to a judge having access to all the information on which it is proposed to issue the order, as the Bill, as it now stands before amendment, allows a judge to look at a derogation order and to reject it. That implies that he is in possession of all the facts and the evidence on which the order was first made, and in the case of non-derogation orders, there is a power to review judicially such orders.

Given the current state of judicial review—although I realise there are people in the Chamber much more au fait with this than I am—and following the passing of the Human Rights Act, judicial review will come far closer to an assessment of the merits of the case, rather than just issues of procedural fairness, unreasonableness and legality. That is because of proportionality. Surely, the only way that a judge could review an order in terms of proportionality would be if he had access to the evidence on which the order was made.

There is the counter-argument put by the Home Secretary in his interview with the Human Rights Joint Committee, that such an approach will be inefficient and not sensitive to time constraints. I find that a very weak argument. It cannot be beyond the capacity of the Executive and the judiciary to arrive at an agreed time-limited procedure. Indeed, it looks as though that will happen via government amendments to their own Bill.

I think that there should be judicial involvement in all control orders, whether or not they involve derogation. That is partly for the reasons that I have given already, but for two other reasons as well. The first of those—I realise that this is delicate ground and that I shall not be thanked for this—is that, at the moment, whether we like it not, we have to recognise that following the WMD fiasco, there are major problems in the country about trust in both the current state of intelligence and its interpretation by Ministers and those who advise them. There is also the well researched and attested possibility of what is usually called "group think", arising among a small group who have access to secret information. I believe that some independent view about this evidence is crucial both in terms of getting the best view of the
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veracity of the evidence and also to ensure that "group think" does not become established. That will be the role of the judge.

In addition, in relation to intelligence, people have been detained in Belmarsh on orders signed by the previous Home Secretary. Those orders were based on intelligence material. When one of those people was let out under severe restrictions by SIAC, I believe I am right in saying that the then Home Secretary derided the decision as "bonkers". Now we are told that the present Home Secretary does not believe that it will be necessary, when the Bill becomes an Act, to apply for derogation orders, as at present there is no one who needs to be kept under house arrest.

I am very pleased with the present Home Secretary's view about that, but it has to be acknowledged that it will leave people very puzzled indeed about the quality of the intelligence that led to those people being incarcerated in the first place. If that is so, I believe that it is even more reasonable to have judicial involvement in the granting of all orders, not just derogation orders, as while the non-derogating orders may strictly speaking restrict liberty rather than deprive someone of it, some of the restrictions will be quite draconian and will be based on a standard of proof that falls even below the civil level.

While I very much welcome the Home Secretary's decision to table an amendment which will lead him to apply to the courts for a derogation order, I do not think that this goes far enough. I would certainly support amendments that would require application to the courts for all types of orders.

On the standard of proof itself for non-derogation orders, the Home Secretary said in his evidence to the JCHR that there was no reason of principle why the standard of proof should not be at the civil standard in terms of the balance of probability. The reasons for not accepting the civil standard were, in his view, to do entirely with practicalities.

Given the gravity of the claim made against someone who is to be the subject of a non-derogating control order, it seems to me vital that the standard of proof should be sufficiently high to match the gravity of the claimed involvement in terrorism. Being subject to such an order may well, in effect, destroy the life and livelihood of a family. It seems to me that at the very least the civil standard of proof should prevail and that any issues of practicality ought to be sorted out so that a defensible standard of proof may be introduced. I would certainly support any amendments along those lines.

In the case of derogation orders, which, by definition, require deprivation of liberty and derogation from Article 5 of the convention, surely the standard of proof ought to be at the criminal standard, given that someone may be placed under house arrest indefinitely as matters stand in the Bill on the civil standard. It seems to me that that is very difficult to defend.

I am also worried about the range of obligations that the Home Secretary can impose on people. He can impose any obligation he considers necessary for the purposes set out in Clause 1(2). The examples given in
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the Bill are just that—examples; they are not an exhaustive list. I would be much happier if the legislation itself set out what obligations may be imposed by control orders. Indeed, my happiness or otherwise may have nothing to do with it, as these will be orders that, because they do not imply derogation from the ECHR, may well be found incompatible with ECHR because they infringe other than Article 5 rights. I would suspect that that is very likely to happen.

Finally, I ask the Minister a very direct question, which mirrors one put to the Home Secretary when he appeared before the Joint Committee on Human Rights; namely, whether evidence against individuals which is known to have been acquired through torture in other jurisdictions, or is likely to have been so acquired, will be disregarded. Given the low standard of proof required for non-derogation orders, it seems to me absolutely vital that such contaminated evidence which, given the circumstances I am envisaging, may not be worth the paper it is written on—even if it is written on paper—should not be used with such a low standard of proof.

5.8 p.m.

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