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Lord Clinton-Davis: If there was no difference between derogatory and non-derogatory orders, that complexity would not arise. As far as the law is concerned, complexity, in my view, is the enemy of freedom and I do not believe that we should go down that route.

Lord Falconer of Thoroton: I do not think that there is any complexity in relation to the matter. There is a legal template which ensures that the rule of law is preserved against which all of these orders have to be judged. Ultimately, you have to look at individual cases on a case-by-case basis and have a standard against which you measure the proportionality or otherwise of the order. That is what the European Convention on Human Rights does and the way that we have constructed the Bill seeks to respect both the fact that the Executive are making judgments on national security and that the courts must look at each individual case and ensure that a proper balance has been struck.

Lord Stoddart of Swindon: I am listening to what the Lord Chancellor is saying, which is that there would be a judicial process in relation to Part 1—non-derogation orders. But surely I am correct in believing that it would not go to a normal court, as in the normal course of events, but would go to judicial review. Is that right? That really is not the same as going to an ordinary court. As I understand it, you have first to have consent to go to judicial review and that is also a costly process. When we are told that there is a judicial process, it is in fact highly complicated and not one which is generally understood by ordinary people like myself as being a judicial process.

Lord Falconer of Thoroton: It is the High Court of England and Wales, or Northern Ireland, and it is the Court of Session in Scotland. They are the superior courts of record in all three jurisdictions. I can think of no more "normal" and no more admired courts than those three. Judicial review is a perfectly normal and proper judicial process. As far as access to the courts is concerned, in terms of expense, we have made it clear that legal aid would be available for those cases that had to be taken without means-testing. In those circumstances, the position would be that those who are the subject of a control order would have legitimate access to the courts.

3 p.m.

The Earl of Onslow: Not surprisingly, I am still in the most terrible muddle. Taking up what the noble Lord, Lord Stoddart of Swindon, said, if someone is told he
 
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cannot do something under paragraphs (d), (h), (k) and (m), the Government say that is non-derogation. If the court finds out that it is derogation, the Government will say "We have to drop this lot, because it's derogation, so we actually have to do something worse to him". Otherwise, they would be landed with the fact that all the non-derogation orders are derogation orders, and they will be in the same muddle as they are at the moment.

The Government were told before that banging people up in Belmarsh was against the ECHR, but they said it was not. Now they are saying "no" on this issue, but later on they will be told "yes", and they will face exactly the same problem again. Surely they will have to bang someone up under something more serious, because they have to do so under the derogation system rather than under non-derogation.

Lord Falconer of Thoroton: With the greatest respect, no. Derogation is required if we deprive someone of their liberty. If we say they have to stay in their house for 24 hours, or for 12 hours, and can only go out between two o'clock and four o'clock, that would probably be deprivation of liberty. However, if we say they have to report to the police station, or they cannot meet Mr X, that unquestionably would not be deprivation of liberty. Of course, in all of these areas there might be a grey area, where a combination of orders equals deprivation of liberty under Article 5. If the Home Secretary stepped over the line in relation to that, the order would be unlawful and would be set aside.

Lord Dholakia: Would the individual against whom a non-derogatory order had been made, and to whom one part of this cocktail of conditions applied, be entitled to know what the evidence was against him or her?

Lord Falconer of Thoroton: It would be subject to the special advocates procedure, under which material that it is judged would damage an informant, for example, would not be made available to the suspect. Again, the committee chaired by the noble Lord, Lord Newton, and the noble Lord, Lord Carlile of Berriew, have both looked at how that system has operated. Is it just? So has the Court of Appeal in the case between M and the Secretary of State for the Home Department. Noble Lords will be aware that the Lord Chief Justice said about that procedure:

"We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC"—

which would adopt the same procedure—

"have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process".

Again, if we accept the need for something other than the criminal process, and we also accept the proposition—which the Government and the security services do, as does the Court of Appeal in this judgment—that there are certain things that, if we let the suspect have them, could damage informants or national security, we have to seek to construct an arrangement that does justice to everyone while
 
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protecting national security. Using the special advocates procedure, which the European Court of Justice held was an appropriate procedure, is the way we have done so.

Lord Judd: I am grateful to my noble and learned friend for giving way. I have a certain amount of sympathy with the noble Earl in his anxiety that the difference between restriction of liberty and deprivation of liberty is a bit hypothetical. For the person concerned, it must sometimes be difficult to distinguish between the two. It is easier to do so on a legal basis.

Does my noble and learned friend agree that we want a secure situation for our people, as far as we can achieve it? Can my noble and learned friend think of a better rallying point for discontent and exploitation of anxiety than someone having to function every day under regulations that restrict his freedom without everything possible having been done, through due legal processes, to demonstrate to people that this has not been easily done, and has only been done after due consideration?

Lord Falconer of Thoroton: These judgments have to be made carefully. We have to balance the effect of making an order on the fight against terrorism with the need, in certain circumstances, to restrict people's movements. The security services are saying that the judgment they make now requires control orders of a non-derogating sort. We all have to take into account whether, as my noble friend Lord Judd says, making such orders would make the position better or worse. It is an incredibly difficult judgment to make. We have to bear in mind that ultimately the advice we are receiving is that it provides greater, rather than lesser, protection for the state.

Baroness Kennedy of The Shaws: I ask this question respectfully. Help us. Under ordinary terrorism legislation, a man is arrested, his computer is disembowelled, there is swabbing for forensics to see if there were explosives in his house or if he has biological components for explosives, and he can be detained for up to 14 days. What kind of information would not put those processes in train? Why is my noble and learned friend the Lord Chancellor not saying that we may need a control order after the man has to be released, as a kind of bail condition, with a limit on it?

My noble and learned friend suggested that I was not making any positive suggestion to him, but I am. We should carry on through those processes if there is an emergency and our information that the man is going to do something terrible—but suppose that the information is only that this man is sympathetic to Al'Qaeda, and he was heard down at the mosque saying he thinks Osama bin Laden is a great man, and he would like to collect money to send to him. Are we going to do these things based on that kind of information?

Lord Falconer of Thoroton: There would be a whole range of information that the intelligence services would have to evaluate to determine whether a control order was necessary. The situation posited by the
 
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noble Baroness, Lady Kennedy of The Shaws, is a continuing investigation, where presumably bail conditions could be imposed for a short period, but not, for example, 12 months, which is the period for which a non-derogating control order can be made.

I speak hypothetically, but the two particular sources of information that are extraordinarily unlikely to be usable in court are foreign intelligence and informants. It might be perfectly obvious in relation to the circumstances that we would not be able to bring a charge, coupled with other material. The question of bail, therefore, would never arise. The advice of the security services is that, in order to provide the necessary protection, we would need to impose some restrictions, although as little as possible, to provide the protection of the state.

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