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Lord Falconer of Thoroton: My Lords, if there is an obligation to produce exculpatory material, the noble Lord will be satisfied.

Lord Kingsland: My Lords, I shall move on. As regards the other situation for control orders, the protection for the individual is even weaker. Here, I understand that the Government remain firm that the Secretary of State will initiate the order. There will be no opportunity for automatic review by the court, which will review only if there is an appeal. That review by the court will not be on the merits. It will only be as to whether the procedure has been properly followed by the court.

That provides no due process protection at all. Non-derogating orders, like derogating orders, should be dealt with on their merits in a manner conforming with an amended schedule to the Bill.

In addition, we will propose two further safeguards. The first has already been heralded by the noble Lord, Lord Brennan. The control orders system should be regularly reviewed by a committee of Privy Counsellors; we believe that ought to be on the face of the Bill. Secondly, we believe that there should be a sunset clause in the Bill.

Of course, it will be difficult, in the time that we have in front of us, to consider all these matters as thoroughly as we ought; but at least I have the comfort of knowing that your Lordships will make a much better fist of it than those who inhabit another place.

Indeed, I see no reason why we should be rushed into these matters at all. I disagree with those of your Lordships who say that it would be illegal to renew the 2001 legislation on 14 March. It is quite clear that the declaration of incompatibility by the Appellate Committee of your Lordships' House does not prevent the Government legally extending the 2001 Part 4 legislation for a while. We know, in any case, from what the Government have said about those who currently inhabit Belmarsh under Part 4 that they have no intention of putting them under house arrest after 14 March.

The manner in which the Government have rushed this legislation has done them no credit. Those who observed the proceedings in another place are fully aware of that. The conduct of the Government was in fact worse than oppressive; it was ridiculous. There is no more damaging emotion for the electorate to experience about the Government than that of ridicule. Their conduct seemed to be orchestrated by a choreographer employed by the legendary Fred Karno. We by contrast will table our amendments tomorrow afternoon and fight very hard to win them all.
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9.46 p.m.

Baroness Scotland of Asthal: My Lords, I think I can say without fear of contradiction that we have had a wide-ranging comprehensive debate during the past almost seven hours. No one can say of this debate that it has not fully looked at a number of the issues. Let me immediately thank all my noble friends and other noble Lords who have agreed with the Government's position. However, I shall explain a little more fully those points where we have differed. If I may, I shall take up the points made by the noble Lord, Lord Kingsland, last of all. I shall try to indicate the areas where it seems to me that there is agreement.

The first is that wherever possible the first port of call in relation to any unlawful activity must be prosecution, if prosecution is possible. The second is that we should be slow therefore to reach for any alternative which does not include that possibility. I agree with my noble friend Lord Clinton-Davis and, indeed, with the noble Lord that the process about which we speak today should be one of last resort and should be the end of the process rather than the beginning. In so doing I know that I do not have to remind noble Lords that in relation to Part 4, which some may describe as slightly more draconian than those provisions which we now fall to consider, there were only 17 cases throughout the whole of that period where we resorted to its use. I hope the House will consider that that was a judicious and temperate use of the provisions.

I am sure too that I do not need to remind noble Lords that in relation to each of those cases the courts came to the view that a restriction or detention in relation to those individuals was in fact merited, and that there was and remains—I am pleased that there is an acknowledgement of this—a situation of security with which we all have to deal. It is right to remind your Lordships of what our independent reviewer, the noble Lord, Lord Carlile, said about the use of material. He said:

I join with all of those who say that that is not a comfortable place to be and, indeed, that we would prefer to live in a world where such threats were not present and where the balance between liberties and security did not have to be so finely tuned. That, I regret to say, is not the position in which we find ourselves. I am grateful to noble Lords who have acknowledged that reality.

Lord Lloyd of Berwick: My Lords, I wonder if the Minister could tell us how many of the original detainees in Belmarsh are still there. How many have already been released?
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Baroness Scotland of Asthal: My Lords, I believe 11 are still there.

I understand entirely those who say we would rather not be in a position where the orders would expire on 14 March. If we do not have some substitution of the Part 4 provisions—and, as we reasonably anticipate and the noble Lord, Lord Goodhart, agrees, if we are not in a position where we can in good conscience extend those powers—we are faced with the possibility that the Part 4 order comes to an end. There is no control alternative to be put in its place by way of substitution, and we are therefore left in a position of releasing those against whom we think proper restraint and control should be put in place.

The Government and my right honourable friend the Home Secretary have taken careful note of what has been said by the security services and the police about the nature and extent of control that would have to be put in place of substitution of full-time detention in order to give us the security that we seek. The current view is that the non-derogative provisions contained in this Bill, if implemented by Parliament and brought into force, would provide an ambit of security which would be sufficient for those currently detained.

I will not hide from the House that that is, of course, a very delicate risk assessment. I concur with those, particularly my noble friend Lord Desai, who say that there is no perfect solution. We will not have perfect security. We cannot perfectly respect and support liberty and have perfect security too. There is always a balance, a management of risk. The risk assessment at the moment is that the use of the derogative powers, which would currently entitle us to detain on a full-time basis, is not necessary.

So, I very much welcome the feeling in the House that there is a small cadre of people who fall outwith the criminal procedure and for whom the control orders may be necessary. I also understand entirely the comments made in relation to the due process of law. Of course, the noble and learned Lord the Lord Chancellor in opening, and I in replying to the Statement, made clear that we too see the necessity for careful scrutiny of that process.

We are now placed—as a result of the comments made by the noble Lord and others in relation to the position of the judiciary—in a rather interesting position. Noble Lords will know that the Government's preferred position was that the Home Secretary, being the person who on behalf of the Government shoulders the political responsibility in the main, should have the responsibility to make that initial political decision, which would then be speedily reviewed by the judges. To use the analogy proposed by the noble and learned Lord, Lord Donaldson, the judge remains the umpire and does not get on to the pitch and put on his boots. I was not sure whether the noble and learned Lord was referring to cricket boots or football boots, because otherwise we are talking about referees and boots.

However, we listened—
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The Earl of Onslow: My Lords—

Baroness Scotland of Asthal: My Lords, if I may finish this sentence I would be grateful. We listened carefully to what was said by all of those who urged with great energy that it should not be the Home Secretary who made that decision in relation to derogating orders, it should be the judges. I hear too the concern echoed on behalf of the judiciary by the noble Lord, Lord Neill. In my response I foreshadowed that that might be an anxiety, and it was for that reason I explored it when I made the Statement.

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