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The Earl of Onslow: My Lords, the noble Baroness said that the Home Secretary would be making a "political" decision. It should not be a political decision; it should be that the Home Secretary has evidence that so and so wants to do something nasty and that his nastiness justifies him being put away for a bit. Surely, he must show to the judge, or a similar person, that so and so has been sufficiently nasty that he needs to be locked up. That is not a political decision; that is essentially a policing or judicial decision.

Baroness Scotland of Asthal: My Lords, I was using the word "political" in the way in which it was used in the debate—therefore loosely—and I was seeking to indicate that it was a decision taken by the executive, as opposed to a decision by the judiciary. In making that decision, the Home Secretary would have to make sure that he had full cognisance of all those matters that might pertain, enabling him to make a reasonable decision on whether it would be proper to seek such an order or to make such an order himself.

That is the background to where we are. We have a choice to make. There is little point in our saying that we would rather not be here—we are here in terms of timing for a number of reasons. I remind the House that the decision that was made by the Judicial Committee of this House was by no means a foregone conclusion, to the extent that noble Lords will remember that the Court of Appeal had supported the Government's construct. I put that to the House by way of background. It may now, with hindsight, seem to be inevitable, but it was not always thus.

Of course, I take to heart very much the comments made by the noble Lord, Lord Newton, and by my noble friend Lady Hayman, who reminded us, and has reminded us in the past, that the Newton committee foreshadowed a number of those problems. I reassure the House that the Government did not rest on our laurels. We did consider those matters, and they remain extremely complex and difficult. Therefore, I reassert that the Government intend to bring forward legislation as soon as parliamentary time allows, to address the issues that noble Lords have raised about preparatory acts and other matters. If it is said, as a
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number of noble Lords have done, that this would be better done together, I could agree. However, it does not change the situation that we are where we are.

Baroness Hayman: My Lords, I am grateful to the noble Baroness for giving way. I accept absolutely that it does not change the situation of where we are. It might make some of us feel considerably more comfortable about agreeing to take measures to protect where we are now if we had assurances that soon in the future when we consider making prosecutions more possible we could also review and, if necessary, change what is proposed at present.

Baroness Scotland of Asthal: My Lords, of course, I hear what my noble friend says about that matter. Contrary to what has been asserted by noble Lords in this debate, we have not closed our minds because the parliamentary process continues. So, for instance, if we look at the process, at what we shall have to do with reviews, we already have a situation where the Government have indicated that this Act will be reviewed at the end of 12 months. The Home Secretary will make his report on a quarterly basis. The House will have an opportunity, therefore, to be appraised of the development of these issues as they go on. Knowing this House as I have come to know it and love it, I am confident that your Lordships will not be slow in making sure that the Government do their duty in that regard.

Lord Goodhart: My Lords, is the Minister aware that we would not be satisfied simply with a debate on a report of a review produced in some 12 months' time? What I think the noble Baroness, Lady Hayman, was suggesting, and what we would wish, is that there should be some procedures, such as putting a fairly short sunset clause into the Bill, so that the substance of the matter would have to be reconsidered by Parliament which could properly then debate the issues which we shall not have time to debate on this Bill.

Baroness Scotland of Asthal: My Lords, the noble Lord will not be surprised if from the Dispatch Box today I say that it is not currently our view that such a provision would be necessary, bearing in mind the opportunities we are already putting in place to review these issues. This is Second Reading. I have made it clear that we shall continue to look at the matter, but I give no such guarantee. But these are matters which will need to be considered continually.

Lord Thomas of Gresford: My Lords, perhaps I may—

Baroness Scotland of Asthal: My Lords, I am conscious that it is ten o'clock; I am conscious that I have been on my feet for 16 minutes; and I am conscious that I have not yet trespassed upon the many contributions made by noble Lords with which I think I should properly deal in order to make sure that there is some information for the House to have when we
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come to deal with it more fully. I give way, but perhaps I may indicate that I should be very grateful if it were for the last time.

Lord Thomas of Gresford: My Lords, the Minister says that we are where we are; but where are we? Is the noble Baroness concerned that the 11 people detained in Belmarsh will have to be released on 14 March?

Baroness Scotland of Asthal: My Lords—

Lord Thomas of Gresford: My Lords, let me finish the question. The noble Baroness has told us that if they come out under this legislation it is not necessary, so the security services say, for them to be subject to house arrest and that non-derogating orders will be sufficient to control them. Why would she object to an application for bail in the next fortnight which would enable them to come out? We should be able to come back to all these matters following the election, whichever government were in power.

Baroness Scotland of Asthal: My Lords, the conditions have not yet been set. The basis on which those orders would be made is not clear. If we possibly can, we want to move seamlessly from the position that we are in now into a position which would be better controlled under a non-derogating order.

May I come to some of the process issues raised by a number of noble Lords? Will your Lordships forgive me if I do not refer to every person by name, not least because many noble Lords mentioned all the matters with which we are now dealing? I would have to recite 35 names in relation to them. Noble Lords should assume that I am referring to them if I am dealing with their point.

I should tell the noble Lord, Lord Kingsland, that I am grateful for paragraph 4(3)(c) of the schedule having been highlighted by his noble friend Lady Anelay and by him. We think that it has been cast to wide. We intend to address that when we come to deal with it. The other process matters will be looked at. In the first instance, the noble and learned Lord the Lord Chancellor will be responsible for making the rules. If the matters continue, we will expect the ordinary rules committee to look at it.

It is not proposed that the individuals be without legal assistance. It is proposed that the special advocates would continue, and that part of the proceedings should be closed and some open. It is also intended that, so far as possible, those made subject to the orders should have as much information as it is safe and satisfactory to give them, and that it is only where information could not properly be given—for the reasons already outlined and referred to by the noble Lord, Lord Carlile, in the quotation that I read out—that it should not be disclosed. I hope that we will be able to satisfy your Lordships on that issue in due course.

A number of noble Lords, not least the right reverend Prelate the Bishop of Worcester, said that we have to look to the spirit of this country and make sure
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that we do not trespass in a way that would damage that spirit and indirectly give the terrorists the prize that they seek; namely, some deterioration and reduction in our concept of civil liberties. That is something that we value. I say to all those who made that point that we wholeheartedly concur, but are left with a situation in which a small number of cases cannot be dealt with in a way that we would ideally desire, although that is a consummation devoutly to be wished for.

Therefore, we have to craft something that is fit for the purpose, which will keep our country and our citizens safe. We must intervene only as much as is absolutely necessary with their liberties to do it. Of course there is a debate—a vibrant debate, if tonight is anything to go by—on where that line should be. However, I assure the House that the Government share the aspiration warmly.

We then come on to why there is a difference between non-derogating and derogating orders. I shall deal with that part of the debate in short form. Derogating orders involve a deprivation of liberty. Non-derogating orders involve a restriction on liberty. Of course, the question is always how far the restriction is merited. There was a genuine and proper question about what combination or constellation of those matters and conditions currently set out in non-derogating orders could amount to an Article 5 derogating order.

I make it plain that it will always be capable of being argued before the High Court that the combination alighted on by the Home Secretary trespasses against that dividing line, and could turn a non-derogating order into a de facto derogating order. If that were so, the court would be entitled to say that that was outwith what the Home Secretary was entitled to do, on a case-by-case basis, not least because no two cases are likely to be exactly the same. There may be a combination of conditions that would have to be put together, which may or may not take one to that threshold, but that will be a question of fact.

I do not accept that judicial review does not have teeth. If one looks at the governments who have been subject to it, each administration has had bite marks all over it. We know judicial review is powerful and can be effective. We also take into consideration the whole issue of proportionality. The court will be entitled to look at proportionality and at how the ECHR is affected.

We will return to what is a proper role for the judges, as we still have to debate it in more detail. My right honourable friend the Home Secretary has indicated that he is willing to move in that regard, and that tomorrow we will table amendments that will permit the substitution of a judicial decision as opposed to that of the Home Secretary. However, in the main, it will be the Home Secretary who will make the decision. Your Lordships will know that the Secretary of State is referred to in a generic form. It could be the Secretary of State for Northern Ireland, or the Home Secretary on behalf of the UK. Those issues are interchangeable.
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In relation to Scotland, while I am on my feet, in response to the question posed by the noble Duke, the Duke of Montrose, we have spoken to the president in that regard. Those matters will be dealt with in an appropriate manner.

One of the issues raised by the noble Baroness, Lady Falkner, and by my noble friends Lord Ahmed and Lord Desai, is the impact on the Muslim community. These orders are not targeted at that community. We will do, and have done, everything we can to ensure there is a proper understanding. We have taken to heart the strictures of the Newton committee, which have been referred to by the noble Lord, Lord Newton, the noble Baroness, Lady Hayman, and, in the case of Re A, where they say that the threat does not simply come from international terrorists, but also from our own nationals. People have asked, "Why the change?" That change is the result of a deepening of understanding of that threat. In 2001 it was thought that the major threat came from international terrorists; non-British nationals who may be passing through or resident here. That understanding has changed. An example of that is what we know of the "shoe bomber", a British national who has behaved in a reprehensible way.

The effect of the court's decision was also an indication that we had to think again. I remember the trenchant debate we had on this subject when we discussed the committee chaired by the noble Lord, Lord Newton. I will not put it colloquially, but our judgment was seriously being challenged. It was said that we were failing in our duty to address the threat coming from British nationals. I can only say to my noble friend Baroness Hayman that I hear you; mea culpa.

There are a number of difficult matters with which we must deal. I have already made clear that the difference between the non-derogating orders is a matter of degree. The judge has to make the derogating orders on application by the Secretary of State, and we are setting out clearly what that procedure is. We understand the need for the prosecutor clearly to make the decision whether prosecution is possible, and reassure noble Lords that we will do nothing to undermine or diminish in any way the role of the DPP. We will consider how that may need to be strengthened, and what we can say about those matters.

In probably little more than 24 hours we shall return to this issue. I hope that all the amendments will be completed and available to noble Lords first thing tomorrow morning and we shall look carefully at the amendments. I can assure noble Lords that if I have not responded to each and every matter, they will be looked at in the next 24 hours. I hope that I have dealt with the majority of the major concerns that have been raised in the debate. I thank your Lordships for your tolerance because I see that the clock is now at a quarter past the hour.

On Question, Bill read a second time, and committed to a Committee of the Whole House.
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