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"My Lords, the Minister has very fairly accepted that judicial review is not a process of appeal. It is a procedure to ensure that the Government have not exceeded their jurisdiction. It is a jurisdictional matter and a procedural matter.
When it comes to the derogation orders, the Minister says that the merits of the decision, which cannot be considered on judicial reviewor very rarelythen can be scrutinised. If the merits of the decision can be scrutinised after the Minister has made his decision, why cannot they be considered before the Minister makes his decision? Why cannot the Minister go to the judge and say, "I propose to do this. Is this, on the merits, a right and valid decision?".
"because of practicality. It may be that information comes before my right honourable friend the Home Secretary or his counterpart in any future government that clearly demands immediate action. In those circumstances, it would be simply practical and easier for that decision to be made and for it to be very quickly reviewed".[Official Report, 22/2/05; col. 1115.]
A letter was published a short while ago about a judge who was woken up at three o'clock in the morning to set aside an injunction to order a person who had been a confounded nuisance to everybody to leave his premises. I remember being woken up at midnight by Sir Louis Blom-Cooper. It happens. There is no need to worry about the practicalities of which the noble Baroness, Lady Scotland, spoke; they are already provided for. I have little doubt that a number of judges could be deputed to take on this type
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of work. One would for a particular day or period act as the duty judge who would deal with any calls between, let us say, eight o'clock in the evening and eight o'clock in the morning.
What is the urgency for the Bill? Why should the matters not be dealt with in the next six months, while Part 4 of the Anti-terrorism, Crime and Security Act 2001 continues to apply? That is only a limited period, but we are in a fevered state already at the prospect of the campaigning that will precede whatever date is decided for a general election. Most people think it will be 5 May. There is no reason for such urgency.
The defendant is not to be told even the facts relied upon. That seems to be totally inequitable. Why should he not be told the facts relied on, so that he has a chance to rebut them? Robin Cook pointed out in the other place that what is proposed runs the risk of being counterproductive. That was the case in Northern Ireland. If it happens here, one may end up provoking sympathy.
The fact that all or most of the special advocates seem to have resigned or explained why their position is impossible shows that, even with special advocates, one cannot achieve the justice that is necessary.
My final point echoes that of the noble Lord, Lord Plant, and is on the onus of proof. When one is dealing with the orders that are to be made to keep a person in his own house or accommodationin other words, when one is basically destroying his liberty, albeit for a short timethe burden of proof should be the ordinary criminal standard: beyond reasonable doubt. A house arrest order is a very serious order to make, and it is thought to risk being contrary to human rights legislation. In this case, probability is not an appropriate standard.
For those reasons, I hope that your Lordships will say that all orders made should be subject to judicial safeguard and recommend how the safeguards should be applied. What the court is expected to do should of course be properly defined. It is not at the moment.
Lord Young of Norwood Green: My Lords, I hesitate to enter a debate of such legal complexity and controversy, but, as somebody who has no legal background, I felt that my opinion would perhaps have some validity. As has been said in a variety of ways, the scales of justice are a balance between the rights of the individual and the need to protect society as a whole.
I listened carefully to the noble Baroness, Lady Anelay, who talked about abandoning proven principles. She then referred to the question of the liberty of the individual versus protection and security. I looked at what the Government said on that. They state in their background briefing paper:
"The Government's preferred course of action is always to charge and convict as many of these potential terrorists as possible. From 11 September to 31 December 2004, 701 people were arrested under the Terrorism Act 2001. Of these 199 were charged under the Act, with 45 of them also being charged with
Some noble Lords have said that we have always faced a risk. The noble Lord, Lord Giddens, made it clear that the risk that we face today is of a fundamentally different nature. I admit to finding it puzzling that, in the light of events in Madrid, Bali and Mombasato name just a fewwe should imagine that we have seen the risk previously.
I turn to the question of whether the orders should be made by the judiciary or the executive. The noble Lord, Lord Thomas, who seemed to be verging on hyperbole, talked about no deprivation, no Gulags, no Guantanamo Bay. Are we really suggesting that the legislation proposed by the Government will lead to that? I find that something of an exaggeration.
Some Law Lords have expressed the view that it is inappropriate for the decision on the safety of the country to be taken by the judiciary rather than the executive. Even that is not such an open-and-shut case, as we have heard today.
"More generally, the Secretary of State will be required to report to Parliament every three months on the exercise of his powers to impose control orders, and the operation of the legislation will be reviewed annually by an independent reviewer".
We were also told that there was public clamour to remain "calmly judicial". If that is so, I must admit that I have yet to hear it. In an interesting YouGov poll in the Daily Telegraph on 28 February, 75 per cent of respondents agreed that it may be necessary sometimes to take action against people who have not yet committed any offence, but about whom the intelligence services have evidence that they are planning an act of terrorism, including 82 per cent of Conservatives, 81 per cent of Labour supporters and even 59 per cent of Liberal Democrats. If there was a public clamour, that poll suggests that it is more in the other direction.
Of course, it is right that both Houses should examine carefully a departure from proven procedure into this legislation. I was interested in the remarks made by the right reverend Prelate the Bishop of Worcester on what would be a victory for terrorists. I hope that I am not paraphrasing, but I believe that the right reverend Prelate said that a victory for terrorists would be if we undermine the capacity for calm and considered reflection.
A victory for terrorism would be to underestimate the risk, and then face a catastrophe. A real victory for terrorism would be the failure to act. The right reverend Prelate went on to quote from Pastor Niemöller, but are we really saying that this is a comparable situation to fascist Germany? I do not think that it is. Again, that is an unfortunate exaggeration.
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I was also interested in the comments made by a number of noble Lords about whether the legislation is appropriate. Are we acting in haste only to repent at some legislative time in leisure? The noble Lord, Lord Newton, said that we could and that it would not be a problem to extend Part 4. The noble Lord, Lord Goodhart, said that we could not possibly extend Part 4. I tend to take the same view as the noble Lord, Lord Goodharteven if the Government tried to extend Part 4, it would be legally challenged. We have been told that there is no reason for urgency. Clearly, that must remain a matter of opinion. Certainly, the Law Lords have deliberated. Part 4, in the opinion of many, cannot be extended.
For me, the question is: have the Government listened to the critics? In my view, they have. They have responded to criticism of the powers of the Secretary of State and to the view that on derogations there would need to be a judicial review. Responding in a number of ways, the Government have endeavoured to find a consensus. There have been a number of consultations outside the House, which is right and proper.
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