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Lord Kingsland: My Lords, this has been an outstanding debate with many fine speeches. The balance of opinion expressed has been perfectly obvious to me and I am in no doubt that it has been perfectly obvious to the government Benches as well. Moreover, the Government can be in no doubt that they will face many amendments to the Bill.

I want to emphasise, as my noble friend Lady Anelay did at the outset, that the Opposition accept that the threat posed by terrorism is very serious and that its nature is unprecedented. My noble and learned friend Lord Mayhew said that we should all give that factor great weight when considering the solution that we are seeking in the legislation. I agree.

We on these Benches are seeking to devise a legal response that is proportionate to the threat. We have concluded that it is possible to achieve a proportionate response that is consistent both with the preservation of the fundamental values in our society and the legal processes that protect them.

We utterly repudiate any suggestion that those who seek to amend the Bill in some way become an added component of the terrorist threat.

The pre-eminent value that we seek to protect is the right of someone incarcerated by the Government to have a fair trial. That is one of the great principles of our society. That principle must lie at the heart of any proportionate response, together with the preservation of the presumption of innocence and the right of the defendant to know the case against him and to be in a position to respond to it.

I entirely agree with the noble Lord, Lord Clinton-Davis, who said that the system of control orders should be at the end of any process, not at the beginning. The beginning of the process should be a thorough search to bring the alleged terrorist in front of a criminal court at a criminal trial.

The Government have two responses: first, that many alleged acts committed by alleged terrorists do not fall within the definition of any criminal act; and secondly, even if they do, the evidence will often be inadmissible or, if adduced, it will compromise the source of that evidence or the technique that was used to garner it.

I have seen no serious attempt by the Government to consider widening the nature of criminal offences to include many of the acts preparatory to terrorism that fall into the category that will be dealt with by control orders. One of the reasons is that the Government have given themselves so little time to deal with these matters. If they had given themselves more time, they would perhaps have come up with some offences that would have enabled us to prosecute rather than to issue control orders.

Like the noble and learned Lord, Lord Lloyd of Berwick, I do not accept that the Government have seriously considered the issue of intercept evidence. Even if, at the end of the day, we have to protect the sources of certain evidence or the techniques by which it was gathered, it is still possible to invite a judge to
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engage in a sifting process whereby those elements can be sifted out, and he can then look at what remains to see whether a prosecution would be possible. In any event, I believe that the role of the DPP should be on the face of the Bill and that the process should start in the usual way.

However, I accept that there will be some categories of behaviour that will pose a threat to the state and will simply not be susceptible to the criminal process. This is where we move on to the control order. I also accept that control orders cannot be the subject of the full protection of the criminal law; but I do not accept that individuals do not deserve the full protection of the due process of law. It is the absence of the due process of law in this Bill which concerns us deeply.

As your Lordships are well aware, there are two categories of control order in this Bill, one category which derogates from Article 5 of the convention and the other which—so the Government say—does not. I shall deal first with the one that derogates from the convention.

As your Lordships are aware, the procedure here is initiated by the Secretary of State; once the order is made, he is required to send it immediately to the court and, within seven days, the court must make up its mind whether the case has been made out by the Secretary of State. If it has, there is a further stage at which the High Court considers the matter on its merits.

What concerns us deeply about the process is what appears in the beginning of paragraph 4(1) of the Schedule, on page 17 of the Bill. I shall read out the excerpt to make it absolutely clear to the Minister that she will face amendments on this matter by tomorrow evening. The paragraph states:

It is unacceptable to us that the burden and standard of proof in these matters should not appear in the Bill. As written here, it would be possible to change these in relation to each individual case. That is wholly unacceptable. Nor is it tolerable that these proceedings should be determined without a normal hearing or that the rules will make it possible for the individual accused not to have legal representation.

I move on to paragraph 4(2)(a), which states:

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I find that quite unacceptable. It is unacceptable that the reasons for decisions cannot be given to the party who is to be subject to a control order. It is hard to see how any of your Lordships can be complacent about that.

Then paragraph 4(2)(b), which state that the rules of court may,

So it would be possible for the court to proceed in the absence both of the defendant and his legal representative. Again, I am bewildered as to how the Government could possibly imagine that that could conform with the principles of due process.

I finally come to the most glaringly offensive component of the paragraph—paragraph 4(3)(c), to which the noble Lord, Lord Neill of Bladen, has already referred and which was mentioned in the speech of my noble friend Lady Anelay earlier today. This paragraph states:

The situation is therefore exactly as stated by the noble Lord, Lord Neill of Bladen. Any evidence that might be favourable to the person threatened with the control order can be withheld, both from the court and from him.

The Government told us last night, in another place, that it will substitute a judge for the Secretary of State in this procedure. I derive no comfort from that at all—though I am glad that they have, at least, moved in that direction—because, as paragraph 4 stands, a judge is being asked to engage in a process which is not a judicial process. It is a political process. Simply substituting the judge for the Secretary of State does not advance the cause of due process at all. All it does is to contaminate the judiciary by involving it in a political process.

Did I hear the noble and learned Lord the Lord Chancellor say that I ought to be subject to an immediate control order? I wonder whether he is considering bringing it in under Clause 1 or Clause 2?

Lord Falconer of Thoroton: My Lords, I most certainly did not say that—high as the temptation is. I was saying that I understood the noble Lord to have said that he accepted the principle of a control order. He appears to be convincing everybody that neither the Secretary of State nor the judge should make it. I wonder, then, who could make it?

Lord Kingsland: My Lords, I accept the principle of the control order—subject to the procedure for implementing it conforming with the principles of due process. Under the Bill, it manifestly does not do that,
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because of paragraph 4 of the schedule. I have spent the past seven or eight minutes trying to explain that. I know I am capable on many occasions of being inarticulate, but I did not think my inarticulacy had reached that degree of confusion.

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