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Lord Desai: My Lords, as the last speaker I can say, like John the Baptist, I am not the end but the end is near. I have listened very carefully and many interesting points have been made. Not being a lawyer, but a statistician, I shall describe my dilemma. On the one hand, there are matters of civil liberties and, on the other, there is the risk of terrorism. A statistician would consider that we could make two kinds of errors: one is rejecting the true hypothesis and the other is accepting the false hypothesis. On the one hand, we could make the mistake of incarcerating an innocent person, but, on the other hand, we could make the mistake of letting go a terrorist. There is no way of eliminating both errors. The choice we have is to fix the level at which we have one error and minimise the other.

Some people would rather make no error as regards our civil liberties; they want complete certainty or as much as we have now. Then they will be willing to talk about what to do about terrorists. Others think differently. I do not believe that philosophically a single answer can be provided. This is part of a continuing process. Part 4 of the 2001 Act cannot be renewed. There are opinions on both sides, but the noble Lord, Lord Goodhart, has said that it is not possible to renew it. Even if it were renewed, what would one do about British citizens whom one believes are likely suspects?

As we cannot renew Part 4 of the 2001 Act, and because something has to be done by a particular day in March, we have this Bill before us. Unsatisfactory as it may be, I do not believe there is any other choice open to us except to do something with this Bill.

My noble friend Lady Hayman had the right idea about this matter. Think of it as an interim measure and do the best we can with it—it is a sticking-plaster job. I believe that we have to trust in the goodwill and the good faith of the Home Secretary. Clearly, he wants legislation passed very quickly and we have to give him the least bad Bill possible, but not with a formal sunset clause, which would lead to many amendments, going in and out of Division Lobbies and so on. We should say, either tonight or soon, either in this House or in another place, that a promise should be given that whoever is in power after the next election will set up a Joint Committee and consider the problem at leisure, so that we can have a Bill that is not only thoroughly scrutinised, but that we can discuss in good time. Maybe by the first anniversary of this Bill we shall have something ready in our hands which will satisfy most people and dissatisfy the least number of people. That would be one way to go.

Again as a non-lawyer, there seems to be one area of disagreement. That is, the non-derogating orders are not subject to the same procedure or the same criteria of proof as the derogating orders.
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I ask an open question. How many of the restrictions under Clause 1(3) does it take to breach Article 5? Is it each one of them? Is it the idea? I have seen lawyers disagree. There will clearly be a difference of opinion. Are we saying that each provision in paragraphs (a) to (o) under Clause 1(3) breaches Article 5, and that therefore for each of them you would need a derogation-like procedure and get in a judge? Or may there be different combinations—two here and three there? That would be where you would hit the barrier? A non-lawyer's practical way of thinking about this would be that at one end each one is a derogation and, therefore, forget about non-derogation and make everything a derogation control order.

That is an open question. I hope it is one way we can think about the Bill to see whether a way out can be found so that we can get the Home Secretary roughly what he wants as soon as possible. Then we can get on with other trivial matters, such as the election and so on. When we come back after all that, as I said, whichever government are in power—we cannot pre-judge that; we cannot even pre-judge that there will be an election—

Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. Has he consulted with his Front Bench on his idea about a Joint Committee and starting afresh and legislating within a year?

Lord Desai: My Lords, do you not know me? Do I talk to my Front Bench? Does my Front Bench talk to me? You are joking. What happens when you have to sit here and listen to 35 speeches is that eventually ideas come. Literally, I did not have these ideas until I went out to have a sandwich. Maybe that is what did the trick. But this is not a package I am offering. There is no official sanction behind this. These are just my own thoughts, sitting on the Back Benches—and the further back you sit, the better it gets.

This is a possibility. Finally, I say two things. The first is a technical matter, which the noble Lord, Lord Goodhart, has already mentioned, regarding what the Delegated Powers Committee said about the schedule, and its recommendation. When the Lord Chancellor puts forward his idea of modification of court procedures an affirmative instrument should be used, not only the first time but perhaps subsequently. That is for the House.

Secondly, I finish by saying this. I agree with my noble friend Lord Ahmed and the noble Baroness, Lady Falkner, that, either by implication or by public statement, this should not be made into an anti-Muslim Bill. It is not about Muslims. I do not predict this, but Christian fundamentalists could be the next terrorists. We hear some fairly bad things about this matter. I think we should clean our minds of that. The problem also is that, given the diaspora, given globalisation, it is difficult to make a distinction between foreigners and British subjects, because people often have not only double loyalties but perfectly legitimately double lives. So let us think just of individuals. If we are going to restrict the civil liberties of any individuals, regardless of whether they
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are subjects or foreigners, we should apply symmetric tests. If we do not carefully think about how many non-derogatory control orders would breach Article 5, as any one of them would, this Bill, if enacted, would be in danger of again and again going before higher courts and being rejected as contrary to the ECHR. To save all that waste of time, let us sit together and make it as least bad as possible.

9.15 p.m.

Lord Dholakia: My Lords, after 36 speeches, we come to the concluding part of the debate. Perhaps I may take the opportunity to thank the noble and learned Lord, Lord Falconer, for his explanation of the Bill and say how much I look forward to the explanation of the noble Baroness, Lady Scotland. She gave very little away on "Newsnight" last night, but I hope that she has some better news for your Lordships' House.

With a majority of 161 reduced to 14, the Government did not do well in the other place, and I suspect that they are in for a tough time in your Lordships' House. I have spent just about seven years in the House. I am proud to belong to a party that does not compromise on civil liberty issues. I congratulate my noble friends Lord Thomas of Gresford and Lord Goodhart on their bold stand against the Bill. Equally, I subscribe to what my noble friend Lord Phillips of Sudbury and the noble Lord, Lord Dubs, said about the hearts-and-minds arguments that we need to take on board.

Civil liberties issues matter, and they matter most because they are central to our democratic system of government. Equality and civil liberties had to be fought for over centuries. It is therefore a shame that such a short time is being given to scrutinising and revising legislation that goes to the heart of our democratic process.

Rushed legislation produces bad laws, and bad laws are difficult to implement. We learnt at least that from the judgment of the Law Lords. This is not an argument about the old style of terrorism and the new style of terrorism. At the heart of the arguments that we have advanced so far is our belief that, in any situation, the supremacy of due process must prevail.

Yesterday's debate in the other place must have been uncomfortable for the Home Secretary. He simply has to look at the headlines in today's newspapers to see the shambles that we are in. We have to see the legislation on the prevention of terrorism in the light of a number of attacks on our civil liberties by the present Administration. In the past seven years, I have seen our values eroded time and again. The noble and learned Lord, Lord Mayhew of Twysden, identified some of them. Part 4 of the Anti-terrorism, Crime and Security Act 2001 introduced detention without due process of law for non-British citizens suspected of terrorist links. We have seen major attacks on trial by jury, which is an essential bedrock of the British system of justice.

At that point, the noble Earl, Lord Onslow, said that he had run out of paper; I have not. There are other issues: attacks on our judiciary became almost
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commonplace during David Blunkett's time as Home Secretary. My noble friend Lord Goodhart has in the past highlighted how the extradition process means that British citizens can be removed abroad without adequate protection. We will soon have legislation on identity cards, and we have already succeeded in removing judicial review in asylum cases. In addition, we have seen cuts in legal aid and the disclosure of antecedents before our courts. This paints a bleak picture of the Government's record on civil liberties.

I fear two things. The constant, unremitting attacks on human rights and civil liberties have damaged our democratic values. But attacks on our justice system also undermine the law internationally. Many countries trying to develop a system of justice based on our principles now have an alibi to do less because we have retreated from our centuries-old, tried and tested system of justice.

The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable.

Our judicial system is founded on the assumption that decisions about custody or deprivation of liberty should, as a matter of principle, be for judges and that any decision to vary the effect of the order should also be for a court. That has served us well and has been instrumental in ensuring that democratic nations across the world would follow this principle. One of the central tenets of our criminal justice system is that no one is guilty of a criminal offence unless proven guilty by a court of law. Again, those are the very principles enshrined in the European Convention on Human Rights. I do not believe that we have identified any circumstances which should deny an individual a fair trial.

During the passage of the Anti-terrorism, Crime and Security Act 2001, we warned that there was an undue haste in suspending human rights, which resulted in the indefinite detention without trial or charge of a number of foreign nationals. In such cases, I do not detect much difference from those detained in Guantanamo Bay or in Belmarsh prison.

We now have the Law Lords judgment and the Home Secretary has already indicated that he intends to free the remaining detainees shortly. That begs the question, as it does with the detainees in Guantanamo Bay, that if the evidence against those detainees was so serious that they could not even be told what it was, why are they now likely to be released? We have to draw some very hard conclusions.

The Government cannot continue to hide behind the statement that disclosure of evidence may compromise our security and intelligence service. The reason why the public are sceptical has something to do with the way in which we handled the Iraq crisis. Week after week we were told about weapons of mass destruction. We have to go back to the debate in the other place. That was the central theme of the Prime Minister's message to the British people.
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That dossier on Iraq's alleged weapons of mass destruction does not sit easily with the present legislation. If the judgment was fundamentally flawed, how much trust can we place in the present pronouncement that the Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism?

We are asked to balance between civil liberty issues and the security of our nation. We are all asked to do that on the basis that we should trust the Government. That is a very cruel dilemma which we all face. On the one hand, we are aware that there has been loss of trust. On the other hand, to do nothing is not an option.

It is for these reasons that the principle of civil liberty and justice should be sacrosanct, but that we can find acceptable answers to ensure that the security of our nation is not sacrificed. It is perfectly possible to do that without the draconian measures announced by the Government.

Central to our argument is the recognition that it has never been the basis of the rule of law in the United Kingdom where the Executive decide, and are accountable to Parliament, about locking up individuals on the grounds of criminality. The noble Lord, Lord Harris of Haringey, will have to look at past decisions of the Home Secretary which were found to be in breach of law by our judiciary.

I am sure that all of us in your Lordships' House are pleased to note that even at this late hour on the Bill, the Government have recognised the principle that it is not the Executive but the judiciary which will take the decision affecting the liberty of an individual.

There is no dispute about the need for control orders. A control order may impose any obligations necessary for purposes connected with preventing or restricting an individual's further involvement in terrorism-related activity. We now have the Home Secretary's assurance that control orders involving deprivation of liberty will be made by the judiciary.

We have already been told by the Home Secretary that he does not foresee using house detention, thus removing the need to derogate further from the ECHR, and that that is based on advice received from the police and security services. If that is the case, it is hardly a concession at all. In any case, why does he need such a power, given that he already enjoys a broad range of powers under existing law to control the residence, movement, employment and liberty of persons subject to immigration control?

We have a further concern. A person subject to a non-derogatory order may appeal against its initial imposition, any renewal or non-consensual modification of that order, or a refusal by the Secretary of State to modify it. But we need to be clear about what that appeal is. It is more a judicial review examining whether the decision of the Secretary of State is flawed. We have no doubt that orders, either derogatory or non-derogatory, should be dealt with with due process and with full judicial control. We cannot accept that the court acts merely to confirm the suspicions of the executive without the safeguards of criminal law. We shall examine this
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provision very carefully in Committee to ensure that it fully meets the concerns we have expressed but I say now that it is perfectly possible to set up special courts or security-cleared juries and to appoint special judges to deal with such matters.

But let us not blur other issues in the Bill. The Home Secretary is going beyond what the Law Lords had in mind. Detention is not at present confined to foreigners. The Government wish to extend the power to UK citizens as well. There is a need for clarification. I shall, of course, be guided by those well qualified to interpret legal terminology, but the noble and learned Lord, Lord Hoffmann, stated:

In our response to the Statement to your Lordships' House, we advocated the need to admit intercepted evidence. I am glad that the Home Secretary has kept an open mind and we trust that the Intelligence and Security Committee will soon have a view. Suffice it to say that if such evidence is admissible in other parts of the world, we need to consider seriously its applicability in our courts.

My noble friend Lord Thomas of Gresford has explained our concern about the standard of proof required to impose a control order. On closer examination, the standard of proof is identical to that operating in proceedings before SIAC under Part 4 of the 2001 Act. Will the Minister confirm that in December 2001 the House of Lords found that incompatible with the Human Rights Act? If that is the case, should we not now be looking at higher standards of proof? If the appropriate standard of proof on anti-social behaviour orders is that of the criminal law—that is, beyond reasonable doubt—surely the same standard is required where the allegation is about involvement in terrorism.

I conclude by quoting a little note I received from Emma Chesterman, who wrote to me about the Bill. She is a student studying for a masters degree at King's College London. She wrote:

I assure the Minister that we will work toward maintaining the balance between matters of equality and civil liberties and the rule of law to protect the country from terrorism. It is perfectly possible to achieve that balance.

We do not simply want to claim the moral high ground on matters of human rights and civil liberties. That belongs to all of us. Equally, we do not want any one political party to claim the moral high ground about tackling terrorism. That responsibility belongs to all of us. It is not an either/or situation. It is to strike the balance that has made our justice system the envy of the world. We shall examine the provision very carefully in Committee to ensure that it fully meets the concerns that we have expressed all along.
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9.29 p.m.

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