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Prevention of Terrorism Bill

House again in Committee on Clause 1, Amendment No. 2.

Lord Stoddart of Swindon: I have been listening with interest to the debate on the Government's amendment and on the amendment moved by the noble Lord, Lord Thomas of Gresford, and to noble Lords who seem to be extremely concerned that they may be required under the Bill, and in some of the amendments, to do the Government's work for them. I agree that that should not be the case.

We have not examined some of the impositions in Clause 1 in suitable detail. It may very well be that the Government are relying on the ignorance of the electorate about what could befall them under this clause and are hanging on the opinion poll that appeared in the Daily Telegraph a few days ago and showed that the electorate are all in favour of this obnoxious Bill and the powers contained in it.

Let us look at one of the powers on the top of page 2 of the Bill. Clause 1(3)(c) refers to,

As it reads here, that could mean that a person's livelihood is taken away from him, that his business could be ruined. People in this country subject to such an order could find themselves unable to make a living, to pay their rent or mortgage or even to eat.

Then in Clause 1(3)(d) there is a restriction on,

That means that he could be required not to talk to anyone at all, on the telephone, at his door or wherever else. Would it apply to anybody he would talk to when he went out on the street, because that is included in "other persons generally"?

Then in Clause 1(3)(e), which has already been referred to, there is:

They could presumably put a restriction on the milkman, the meter reader or anybody else. These are very severe restrictions indeed.

If we look at Clause 1(3)(m), there is:

How are they going to do it? Are we going to have a Gulag, or a few Gulags, in this country? Clause 1(3)(n) provides for,

That is not a request but a requirement.
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Those really are very onerous restrictions. People may, of course, believe that they apply only to Muslims. Indeed, the Home Office Minister, Mrs Hazel Blears, warned the Muslim community that they would be at great risk from these provisions. Yet it does not stop at Muslims. There is nothing in the Bill to say that only Muslims are going to be put under such control orders. It could be, for example, those who want to continue hunting. They could be construed as being a threat to law and order, and as committing terrorism against foxes or something like that. What would these orders have done to the miners during the miners' strike? Some people might have construed that they were putting the nation at risk.

We must get it across to the electorate generally—to the ordinary decent people in the country—that it is not only terrorists or Al'Qaeda who are at risk, it is not only Muslims or dark-skinned people, it is them. Every single one of us is at risk from the provisions in Clause 1. That is why it is essential that the amendment moved by the noble Lord, Lord Thomas of Gresford—and, later, other amendments—should be incorporated into the Bill. I do not know whether we will vote on the amendment now, but at some stage it must be incorporated. I hope that noble Lords will support it.

Lord Forsyth of Drumlean: I hesitate to intrude in the proceedings, surrounded by so many eminent lawyers, but I think that I may be uniquely advantaged—or disadvantaged—by not being a lawyer.

Listening to the speech made by the noble Lord, Lord Thomas of Gresford, and to those of other noble Lords, I believe that there is some consensus on the central issue, which is that there should be due process and people should have an opportunity to know of what they are accused and be able to answer that in some way. I have much sympathy with the point made by the noble and learned Lord, Lord Lloyd of Berwick, about the dangers of putting the judiciary into a position where they act as a kind of cipher for Ministers. It was not clear to me whether he was ruling out what was being proposed by the noble Lord, Lord Thomas, and others—that there should be some due process. I think he was saying that there should not be judicial involvement in place of the role being carried out by the Secretary of State.

I do not wish to repeat arguments that have already been made. However, I have one specific question to which I should very much like an answer. I have read the amendments, the Bill and all the material that has been made available, but I am still slightly puzzled. I apologise for raising a question that may not seem central to the larger issues in the amendments, but, in order to understand the Government's position on their amendments, I need to know how this is going to work north of the Border.

As I understand it—and again, I am not a lawyer—under the devolution settlement, the Scottish Parliament is not allowed to do anything that is in breach of the
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European convention. So, how will the provision work in respect of Scottish individuals? I understand that "Secretary of State" means any Secretary of State, but if we are talking about somebody living in Scotland, who is the Secretary of State? It is clearly not the First Minister, so is it the Lord Advocate?

2.45 p.m.

Furthermore, which police interest will be involved in making an arrest? I hope that the noble and learned Lord the Lord Chancellor can reassure me that there is no suggestion that a Secretary of State in the Home Office or for another English department would ask a police officer from England to go up to Scotland to arrest somebody there. But that is how I read the Bill. I cannot see any provision in the Bill or in any of the amendments for Scottish law and the Scottish judicial process to be carried out. The point was raised on Second Reading by my noble friend the Duke of Montrose, so it is a point of which the Minister has had notice and on which I am sure he will be able to answer fully. The very last thing one would want to see is further confusion in the media north of the Border about the precise role as it affects people in Scotland and the devolved Administrations.

Lord Desai: As another non-lawyer I have been trying to make sense of the debate so far. I will tell the House how I understand it and perhaps someone can correct me if I am wrong.

The government amendment obviously concedes that a judge has to be involved immediately when a derogating order is sought. I believe that the noble Lords, Lord Goodhart and Lord Thomas, want non-derogating orders to be treated in the same way. The noble Lord, Lord Carlisle of Bucklow, says that the Secretary of State should have to go to the DPP before all that, when there is a suspicion, and the process will be triggered only if the DPP says that he cannot proceed. Even if we accepted the amendment of the noble Lords, Lord Goodhart and Lord Thomas, there is a feeling that judges are not happy being administrators.

The amendment of the noble and learned Lord, Lord Donaldson of Lymington, would then kick in. After having gone through the Carlisle amendment process and got out of that, you could then take the route proposed in the amendment of the noble and learned Lord, Lord Donaldson. If the person cannot be tried, one might say, "You cannot let the judges do the job of the Secretary of State; therefore, let us go to the Donaldson amendment". I could be wrong, but if we went through all that process, would we not arrive at where the Government want to be, with their various little problems, if not taken care of, at least faced up to? If all of that is correct, I hope that we may be arriving at some kind of consensus, as the noble Lord, Lord Forsyth of Drumlean, said.
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Whatever reservations we have about the Bill, we have to get some sort of legislation out of this place in sufficient time to allow the Commons to debate it and to meet the deadline. It certainly helps me to think about it that way. I hope that it helps the Committee.

Lord Falconer of Thoroton: This has been a constructive and interesting debate on very important issues. I shall go through it in stages.

The first question raised was whether we need something other than the normal criminal process in order to assist in fighting the terrorist threat that we currently face. There are those among your Lordships—among whom I include, I hope not exclusively, the noble and learned Lord, Lord Lloyd of Berwick, the noble Baroness, Lady Kennedy of The Shaws, and, I think, the noble Earl, Lord Onslow—who take the view that we should not have any sort of control orders at all, but that we should just stick to the normal criminal process.

That is a view with which the Government disagree, on the advice of the security services; it is a view, I think, with which the Newton committee disagreed; it is a view, I think, with which the Conservative Party disagrees; and I think it is a view with which the Liberal Democrats also disagree. So the three main political parties are in a consensus, supported by the view of the Newton committee, that something other than the ordinary criminal process is required in order to fight against the current threat of terrorism.

If that argument is accepted, then it is necessary to work out what that process should be, seeking to balance as much as possible the rights of the individual against the need effectively to fight terrorism. I respectfully suggest that the debate we are having in Committee concerns how we bring that about. I understood the words of the noble Lord, Lord Forsyth of Drumlean—I expressed my gratitude to him at the beginning of the day—to be that he accepts that as well, but the issue is how we get to a point where we have a suitable process.

The second issue that arises, once one accepts the need for some type of process, is what that process should be. We submit that the right process is a control order process rather than, as the Newton committee suggested we look at, some type of investigating judge process. One fears that the investigating judge process would lead precisely to what the noble and learned Lord, Lord Donaldson of Lymington, warned us against, which is making the judge even more of a player than he otherwise would be. The idea suggested by the Newton committee that the judge should sift through the evidence and put the case to another judge is quite inimical to the way that our judges operate and I do not think that that would be appropriate.

In effect, that is the only real alternative that has been advanced, apart from control orders. Therefore, we are the only body—namely, the Government—who are actually proposing what that process, which is not the criminal process and which we say is necessary, should be.

The difficulty with control orders, which everyone has eloquently identified, is this: the decision about security is normally a decision that would be made by
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the Executive—in practice, the Home Secretary. But, plainly, you cannot just leave it to the Home Secretary. There must be some judicial oversight to protect the citizen in relation to it and that judicial oversight must be as fair as it possibly can be to the citizen.

Where is the balance to be struck? Our initial proposal was that, in relation both to those orders that deprive a citizen of his liberty under Article 5 and one that did not, the Home Secretary should make the order, which should then be subject to easily accessible and stringent judicial oversight—I use the word neutrally. Strong representations were made, both in another place and outside, that depriving someone of his or her liberty under Article 5 should not be done on the say-so of the Executive; it should be done only by a judge.

Despite the concerns that have been eloquently expressed by the noble and learned Lord, Lord Donaldson, that this would put a judge in a different position from that which is normal, in striking the balance, we have decided that the orders in relation to those deprivation of liberty cases should in the first instance be made by the judge, because you are depriving someone of his liberty.

The suggestion made by the noble and learned Lord, Lord Donaldson, addressed constructively the dilemma that we face. It should normally be the Executive, but—and I do not know whether he accepts it or not—if you are going to involve a judge, the noble and learned Lord is saying, "Still respect the fact that it is the Secretary of State's decision". His proposal is that although you cannot enforce it without a judge, the Home Secretary can be allowed to enforce it only "with the leave" of the judge. The noble and learned Lord accepts the principled starting point that it should normally be the Executive, but pre-order effectiveness scrutiny by the judge is provided. That is consistent with the position that we have reached and seeks to respect the fact that the judges do not normally make these types of evaluations. We need to take away that suggestion and consider it.

The impact on someone of depriving them of their liberty is why we have taken the very unusual step of saying that there should be pre-judicial intervention before the order is made. But the same arguments do not apply when you are not depriving someone of their liberty. In that case, Article 5 of the convention is not engaged, but other rights are. Articles 8, 9, 10 and 11 are all engaged. The points made by the noble Lord, Lord Stoddart of Swindon, are absolutely right; we have to be very anxious in relation to the examples of the orders contained in the Bill, such as preventing people from associating with other people or generally restricting the businesses in which they can be involved. There needs to be substantial oversight in relation to that.

When an order is made which involves an interference with, for example, your rights of association, your right to free speech or your right to privacy, it can be made without offending the European Convention on Human Rights, but only if there is a legitimate aim, such as national security, and it is proportionate. So if the Executive went too far, the courts could strike it down.
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You would not reach the circumstance posited by the noble Lord, Lord Stoddart of Swindon, because the court would strike it down, unless there was a proper basis for it. You could stop someone engaging in a particular business under these provisions only if it was necessary due to national security and the precise terms of the order were proportionate to your aim.

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