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The Duke of Montrose: My Lords, it is a great pleasure to be able to follow a fellow Scot. As noble Lords are aware, we are dealing today with laws for the whole of the United Kingdom. Therefore, the contributions from the different parts are of significance.

I hesitate to contribute further to the arguments about the content of the Bill. However, in contrast to the noble Baroness, Lady Goudie, it seems to me that we shall end up with a very different Bill from the one before us today. For most of the past generation, in particular in this country, we have been clapping ourselves on the back and taking great pride in the concept that we were dismantling the hypocrisy of previous generations who tried to pretend that everything they had to deal with was lovely when full of prejudices, inequalities and injustices. Before we
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become too pleased with ourselves, perhaps we should consider whether that is being replaced by an unstated arrogance that our civilisation has found all the answers and that our mores in society are the pattern to which everyone should adhere.

It would be interesting to ask those who do not immediately find themselves of our persuasion which attitude they find most distasteful. The reason I raise the issue is that there is bound to be among those communities a potential breeding ground for those who wish to espouse violence. Focusing on that should be the central preoccupation of our discussion today. One of the greatest challenges that the West faces is to maintain an open discussion with those who disagree which shows both understanding and a determination to strive towards a proper consensus without unilaterally compromising our central convictions.

I hope that many noble Lords will be inclined to agree with me that there are many valid criticisms of the Government's style and procedure. That is amply illustrated by the presentation of the Bill before us. But the public will not thank any of us in this Chamber if we use the debate for anything less than strengthening the UK's security for which we are all responsible. That security depends on drawing the best out of each community just as much as curbing the worst.

A matter of concern to me is how the proposed measures will affect life in Scotland. For instance, the Muslim community in Glasgow is widely recognised as a contributor to the social, commercial and political health of the country. It has supported many measures deemed necessary by the UK Parliament to safeguard society as a whole provided those are shown to be fair and applied across the board. Noble Lords may have noted yesterday in the press a comment on how the haste with which we are being asked to proceed added considerably to concern at a public meeting among the Muslim community. There was considerable unrest. The truncating of the procedure, which only yesterday produced such a storm of protest in the other place, is already a recipe for confusion in this House. I give one small illustration. Today at Second Reading we debate a Bill that the Government have already notified in writing in the other place they will amend materially. The amendment was never considered by the other place. In his opening speech, the noble and learned Lord the Lord Chancellor drew our attention to that point. However, the effect was that when I went this morning to collect the official papers for the Bill, the Printed Paper Office had no idea that the two documents put out yesterday by the Home Secretary were still a necessary part of our discussion. I had to go and dig them out from the Library.

On a slightly wider issue, when we seek to understand the mechanisms likely to be used in implementing those undevolved powers in Scotland, the provisions are not entirely clear and rather difficult to follow. It seems that the Home Secretary will not have power to direct the judicial process in Scotland. Are the Government satisfied that they can rely on the powers of the Lord Advocate in the Bill to have the controls which they wish implemented in an expeditious manner or do they have any other process in mind?
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Again, when considering the provisions introduced in the schedule, the Government wish that the courts should be subject to new and special rules. The Explanatory Notes indicate that the court in Scotland will be the Court of Session. I believe that the only person who can make rules of court for the Court of Session is the Lord President. What will the new rules consist of? Have the Government consulted the Lord President on this matter? Has he suggested that he would be in agreement with their scope?

It is a grave responsibility to be considering circumstances which may result in the deaths of others, or even of ourselves. I hope that your Lordships will forgive me if I speak about an ancestor of whom I was reminded. He had a reputation as a man of principles—perhaps some of which are not popular nowadays. However, having stuck to his principles, he was hanged, drawn and quartered on the Royal Mile in Edinburgh. In anticipation of that event, he wrote a poem. I believe that the final lines have some message for us:

7.8 p.m.

Lord Donaldson of Lymington: My Lords, as I see it, the outstanding feature of the Bill, is the extraordinary difference between the way in which derogating orders and non-derogating orders are made and dealt with. Perhaps I may go quickly through that. A derogating order is limited to six months. It is not renewable. The Home Secretary, or whoever, has to start again to produce a new order. A non-derogating order is limited to 12 months instead of six and it is renewable. One does not have to think again; one just decides whether there has been sufficient change to justify some changes.

Again, turning to the question of the intervention of the courts, a derogating order must be referred to the court immediately it is made by the Home Secretary and the court is required to start consideration of it within seven days. That consideration is on the merits, it is of vital importance to notice. It is a full appeal. It is not concerned, as is judicial review, with whether the Secretary of State had the power to make the derogating order. Whether or not he was right to do so is another matter altogether, one with which the consideration is concerned.

The non-derogating order is not referred to the court. It is left to the person subject to the order to decide whether he wishes to appeal. However, his only right of appeal is to persuade a court that the Home Secretary had no power to make the order, which is a very different matter from being persuaded that he should not have made it. It is said that proportionality redresses the balance, but I do not believe that it does. In this area, a judge would have no idea what was proportionate or not; he simply would not have the information.

What entitles there to be such a huge difference between the derogating and non-derogating order? According to the Government, it appears that the question that has to be asked is, "Is the order that we
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propose to make compatible with Article 5?". It is clear that the Government have answered that question by saying, "If it is a full arrest—a full detention—it is not compatible with Article 5 and you have to make a derogating order, but anything less is all right".

I do not agree with that, but I understand how the Government have got themselves into that position. They have looked at Article 5—we must remember that it was produced in, I think, the late 1940s—and found there exceptions where someone is completely arrested, if I might use that rather odd expression. There are the usual exceptions necessary in relation to criminal charges and bringing someone to court after an arrest in the street. Put before a magistrate in reasonable time, that is all right. That is the only situation that arose in those days. Now we face an entirely different process in which arrest in the conventional sense, although very common, is not the only way in which liberties can be interfered with.

I cannot understand how the Government have persuaded themselves that a partial restriction—by a curfew, for instance—in relation to an individual is not an interference with his liberty. I do not want to take up the time of the House unduly, but I invite those who are interested—particularly the Government, who really ought to have done it themselves and perhaps have—to go through the various forms of order set out in Clause 1(3). There are 15 or 16 of them, and it is made perfectly clear that they are merely representative. They are not exclusive in any way; it is not a comprehensive list. I have looked down the obligations and I do not think that any of them would not involve an interference with my liberty, if they were imposed on me.

I may be wrong, but I am very certain that the provisions are not limited to a total deprivation of liberty. That is not really arguable. If the Government are to persist with the division on that basis, in the very near future someone will ask the courts to set the matter aside. That will go to the House of Lords, no doubt, where I should be very surprised if the Law Lords did not say, "No—this won't do". Where they will draw the line, I do not know, but it will not be where the Government have drawn it.

We now face a different matter about to be introduced, apparently, by a government amendment. I have not had the advantage of being a politician, so am not supplied with letters between politicians. I therefore do not know precisely what is in mind. I think that it is proposed that judges will not be involved in non-derogated orders, but I may be wrong. It is certainly said that they will be involved in derogating orders but, again, I have a doubt.

The noble and learned Lord the Lord Chancellor is normally very clear in what he says, but perhaps I was not listening properly or he moved too fast, as I was not entirely clear whether—in the case of derogating orders or any other orders with which the judicial intervention will be concerned—he said that the judge gives leave for the Home Secretary to make the order or, as is sometimes said, that the judge makes the order. If the judge is to make the order, someone needs to have a good look at
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Clause 1, apart from anything else, where they will find—substituting "judge" for "Secretary of State"—that the judge,

and so on. It would mean that the judge would have to consider whether,

and so on. That is extraordinary.

It is much less extraordinary but totally unacceptable for the judge to sit, metaphorically, beside the Secretary of State, have a chat with him about the matter and then say, "You go ahead, Home Secretary". The provision is an affront to the fundamental position of judges, which is that they are umpires. They do not play. The provision involves them putting on their football boots and playing. Incidentally, they would play for a bit and, within seven days in the case of a derogatory order, take their boots off and start refereeing on the widest possible basis. That does not make any sense.

Not only does that not make any sense, but it brings the judges into a sphere that they were never appointed to enter. They were appointed as non-politicians, not as members of the executive. Now they are being asked to act as politicians and as members of the executive. It is a complete affront, and I hope that we will not allow it to be passed. I would be very disappointed if we did, because I was on radio yesterday morning saying that the Home Secretary was absolutely right to retain present provisions. Various members of the Government were kind enough to thank me for that, but by the evening I found that the Home Secretary had retreated and the whole thing had been consigned to the waste-paper basket. It has happened before, but it is very perilous to proceed with the idea.

In ordinary life, the question of deprivation of liberty is decided by different people at different levels. PC Plod will have a right of arrest, which he exercises in a vast variety of cases. He does not ask a magistrate; he does not ask anyone, necessarily. At rather more serious levels, you will find that the police will not detain people in custody before they have consulted the prosecution service. When they get an answer from it, they will release or not. The Crown Prosecution Service is much less political, as is the Attorney-General. In some statutory offences, people cannot be prosecuted without the leave of the Attorney-General. In those respects, the Attorney-General and the Crown Prosecution Service act as judicial officials, and do so without complaint so far as I am aware. So why do we have to move in someone who occupies a job where they have never been asked to wear two hats—the executive hat, and the judicial hat? This is wholly deplorable.

I apologise, I should have finished a minute ago. I will finish with this. It has been said over and over that we need time. Of course we do. I cannot understand why we cannot have a one-line Bill to extend Part 4 and then, having done so, look at the people affected by it and decide that, as a matter of discretion, we will not
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object to applications for bail on terms that would have been covered by the orders in consideration under this Bill. We would then have the best of both worlds. There would be time to consider the issues properly and consult on them, and those affected by Part 4 would be no worse off than if this Bill were passed.

7.21 p.m.

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