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Baroness Falkner of Margravine: Can the noble and learned Lord the Lord Chancellor tell us, regarding the information that would be used in court, whether information obtained under torture from foreign sources can be used?

Lord Falconer of Thoroton: We have always made it clear that we would not wish under any circumstances to use any information obtained under torture. The position regarding the SIAC cases was, as far as the courts were concerned, that no material came from torture. In making their decision, the courts would have to evaluate what material was available to the security services, and consider that in relation to this issue. These are difficult questions, but ultimately we are talking about the protection of the state.

The Earl of Onslow: Just now the noble and learned Lord said that the intelligence services need these powers. Can he explain why, up until the Law Lords' judgment, they banged up 14 people in Belmarsh and the powers were considered to be quite enough, but suddenly, after the Law Lords' decision, there are lots of British subjects wandering about the place who they think might blow up a mosque or three or an aeroplane? Can the noble and learned Lord explain why suddenly the situation has become so much more dangerous than it was a month ago?

Lord Falconer of Thoroton: The original powers were sought in the immediate aftermath of 9/11. At that time we believed that foreign nationals provided the major Al'Qaeda risk in this country. As time has gone on by we have learnt more. It is not possible, nor sensible, to return to Parliament constantly to change the powers. In the light of the Law Lords' decision that the powers were unlawful, which we respect and accept, we now need to consider what are the appropriate powers in the context of the current situation and what we know. Having been advised by the security services, we take the view that those powers should extend not just to foreign nationals but also to UK nationals.

Lord Forsyth of Drumlean: I am grateful to the noble and learned Lord the Lord Chancellor for giving way. I put this point to him at Second Reading. I hear what
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he says, but if the Government suddenly have new information that large numbers of British citizens are involved—I believe that the other day on "Woman's Hour" the Prime Minister suggested that there were several hundred—is it not remarkable that they waited until the Law Lords' judgment? I find it puzzling that in the other place the Government tabled a statutory instrument to extend the existing powers for nine months if they felt, as a result of this new information, that the existing powers would not provide protection.

Lord Falconer of Thoroton: Again, we come back to the point that the existing powers have been deemed to be incompatible with the European convention. In order to be consistent, we need something different. Why did we not do it before and how did we survive before? We did not review the powers and the detail in the way that we are now reviewing them. In effect, the Law Lords' judgment provides the context in which to review the powers altogether.

Lord Forsyth of Drumlean: Forgive me, I do not know the exact date, but I believe that the Government tabled the statutory instrument to extend the existing powers under the Act that was passed post 9/11. Four weeks ago, they also published an explanatory memorandum. Is the Lord Chancellor saying that the Government did that in the knowledge that there was a serious threat from British citizens and that they would have to do something about it? I find that puzzling. If the Government had been told by the security services that there was a threat, what on earth were they doing extending the existing powers that the Lord Chancellor tells us are not adequate to meet that threat?

Lord Falconer of Thoroton: It is my fault for not understanding the point. The noble Lord is absolutely right. We laid an order proposing to extend the Part 4 powers. We did that as a contingency measure against not being able to put forward a Bill with more detailed proposals. Now, we have a Bill with more detailed proposals and one is absolutely right to draw attention to the different approach that we took in the autumn of 2001.

We sought to protect ourselves against not having any powers on 14 March, when the powers come to an end. Having looked at the matter fully and having taken the advice of the security services, we believe that the right level of powers that we need are those set out in the Bill. That is why we put forward the order in the first place; that is why we have now withdrawn it and why we are now proceeding with this Bill. That is our judgment of the right position.

Lord Lloyd of Berwick: The problem with that analysis is that, as recently as March 2004, the Government took a different view that it would not be justifiable to extend these powers to British subjects. The powers were taken in 2001 because it was thought to be easy to do so under the immigration procedures.
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Less than a year ago the Government thought that these were powers that they could not justifiably take, so what has changed since then?

Lord Falconer of Thoroton: Since December we have had to consider what powers we think we need. The noble and learned Lord is absolutely right to draw attention to the statements that have been made as the process has developed. I see in the Chamber noble Lords who have been Home Secretary. I am not inviting them to intervene—at which point they all perk up and appear to be about to intervene. I see another one over there. This is the biggest collection of Home Secretaries in one place that I have seen. From time to time they have seen security situations change. Advice is given and, ultimately, whatever has been the position in the past, the Government, and in particular the Home Secretary, have to make a judgment about the necessary powers on the basis of the advice that he or she receives at that time. It is absolutely right that one will see assessments change from time to time; people have different views about the threat and one can only work on the basis of the threat as perceived by the government at the time.

3.15 p.m.

Lord Forsyth of Drumlean: I apologise for interrupting but I would like to follow up a point made by the noble and learned Lord, Lord Lloyd of Berwick. He pointed out that a year ago the Government took the view that it was not necessary to extend these powers. I cannot provide the quote from Hansard, but I believe I am right in saying that the present Home Secretary has said that the threat is not significantly greater than it was a year ago. That closes the timetable. If the Home Secretary is saying that the threat is no greater than it was a year ago, and a year ago the Government were saying that it was not necessary to extend the powers, I find it very difficult to understand when this suddenly became necessary.

Lord Falconer of Thoroton: As a government, all that they can do is assess the situation as it presents itself at a particular time. The noble Lord, Lord Forsyth, is absolutely right on both basic propositions that he makes: namely, what was said in March 2004 and that the Home Secretary—I would have to check this—had said words to the effect, "The risk has not become any greater". But that does not mean, looking at the matter overall, and listening to what the security services are saying at a particular time, that one does not come to the conclusion that these are the right powers at this time. The powers in relation to foreign nationals were more extreme than the particular powers with which we are currently dealing.

The Earl of Onslow: The noble and learned Lord has just said, "I agree that the Home Secretary said a year ago that we did not need the powers, I agree that the Home Secretary said last week that the situation is exactly the same, but I now say we need new powers".
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That is not the reasoning of someone from Fountain Court Chambers; that is the reasoning of someone from form 4B kindergarten.

Lord Falconer of Thoroton: I am horrified that the noble Earl—

Lord Stoddart of Swindon: I am obliged to the noble and learned Lord the Lord Chancellor. To save him jumping up and down perhaps I can follow up with a further question that needs to be cleared up on this issue. The Prime Minister said on "Woman's Hour", as the noble Lord, Lord Forsyth, said, that there were hundreds of British citizens who were a threat. That statement was apparently challenged by a senior member of the security services who said that the number of people involved was 20 to 30. During the debate in the House of Commons in Committee, the Home Secretary said that there were only a handful. We really need to know who is right and what the figures are. Are the figures in the hundreds, is it 20 or 30, or is it a handful? When proposing such legislation we need to know exactly the extent of the problem.

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