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Lord Campbell-Savours: My noble and learned friend responded very constructively to the suggestions made by the noble and learned Lord, Lord Donaldson, and conceded that there might be a need to consider further what he had to say. I wonder whether my noble and learned friend might care to comment on the intervention of the noble Lord, Lord Carlile of Berriew. He made us think about another way of dealing with these matters that did not require immense compromise, but which tweaked the system in a way that might satisfy many Members of the Committee.

Lord Falconer of Thoroton: I have a number of stacked-up interventions to deal with. First, as far as the noble Earl, Lord Onslow, is concerned, I hope we have moved from class 5B. Whether it is to class 6 or class 7, I do not know. We will have to make a judgment.

I do not want to speculate about the numbers of people in respect of whom orders are made. It would be wrong to do so. The critical point is that independent observers, as well as the Government and the security services, believe that these additional powers—beyond the criminal justice system—are required. I should emphasise that these powers do not go as far as imprisonment—those are the powers that were struck down by the Law Lords. We need alternatives to that, which is what we are producing.

I say to my noble friend Lord Campbell-Savours that we remain of the view that it would not be appropriate for there to be court intervention before non-derogating orders were made. As I have made clear, there should be court intervention subsequently and, where necessary, as quickly as possible. That is because they do not involve deprivation of liberty, and because, in some respects, one should have the judges making the orders in advance in only the most serious cases—a point that has been made on a number of occasions in Committee. Again, it is subject to the
 
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suggestion made by the noble and learned Lord, Lord Donaldson of Lymington, which constructs the order as not being made by the judge but, in effect, enforced with the leave of the judge.

That is my comment on the very constructive suggestion of the noble Lord, Lord Carlile of Berriew. We shall need to think about it. However, it does not detract, I am afraid, from our proposition that there should not be judicial intervention before non-derogating orders.

Lord Plant of Highfield: I am sorry to disagree with my noble and learned friend on that issue. Assuming for the moment that the Government's proposal goes forward, I wonder whether he would clear up a couple of points, one of which was slightly in dispute at Second Reading. It is a straightforward thing, and it would be good to hear his view.

When it comes to the judicial review of a non-derogating order, the noble Lord, Lord Thomas of Gresford, said that this was a rather weak sort of power, because it was largely to do with procedures; whereas I thought, following the passage of the Human Rights Act, that judicial review could bite a good deal more than that because it would have to involve proportionality. How could a judge make a judgment on the issue of proportionality in a way that was independent of the merits of the case? If that is so, then it would slightly strengthen—not sufficiently to overcome my objections—the Government's view about the power of judicial review. Of course, my interpretation of that may not be correct, and it would be good to hear the view of my noble and learned friend on that point.

Secondly, I am very keen that this system of control orders, to which I am not opposed, should be made as compliant as possible with convention rights. The issue I have is that the list of obligations in respect of which control orders can be made is only illustrative. It is not a complete enumeration of all the possible obligations that might be imposed on people. Yet, as I understood it—and, again, I may be wrong about this—convention rights other than Article 5 could be infringed if it was in a way prescribed by law. Does the fact that the list of obligations is not exhaustive satisfy the principle that these obligations would be sufficiently prescribed by law if the Bill became an Act more or less as it currently is?

Lord Falconer of Thoroton: Article 5 would be infringed if somebody was deprived of his liberty.

Lord Plant of Highfield: I was talking about non-derogating orders and the way those orders would infringe articles other than Article 5. That can be justified under the convention if it is through a procedure prescribed by law. I wonder whether the non-exhaustive nature of the obligations set out in the Bill would satisfy the principle that it is prescribed by law. It does not cover every obligation that might be imposed.

Lord Falconer of Thoroton: We believe that it would satisfy the requirements. If the order made does not
 
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deprive somebody of his liberty, but engages other convention rights such as the right to association or the right to privacy, that is permissible as long as it is for a legitimate aim and proportionate. The fact that the particular order is not one of the examples given in the Bill does not prevent that principle applying. The Bill says you can make an order similar to those particular provisions. That would not prevent proportionality and a legitimate aim applying when one is looking at infringements or engagements of rights other than Article 5.

My noble friend's first point was on judicial review. He asked whether the court would consider whether a non-derogating order was proportionate and pursuant to a legitimate aim within the meaning of the ECHR. The answer is yes. The judicial review in those circumstances would have a lot more teeth than the sort of judicial review that the noble Lord, Lord Thomas of Gresford, so dramatically described yesterday.

Lord Plant of Highfield: So, in the vernacular, is it reasonable to say that the judge would be looking at the merits of the case?

Lord Falconer of Thoroton: The judge will look at the facts sufficient to determine whether or not there was a legitimate aim of national security and, having regard to all of the facts, whether the response made by the Home Secretary was proportionate in that particular case.

Lord Thomas of Gresford: Does the noble and learned Lord agree that the power of the judge would be to quash the order that had been made? He could not prevent the Secretary of State from immediately making another order on the same evidence. That is what is contained in the Bill.

Lord Falconer of Thoroton: It would presumably be quashed because it was disproportionate or not pursuant to a legitimate aim under the convention. If it was not pursuant to a legitimate aim, then he could not make any such order. If it was disproportionate, then the Home Secretary could come back only with an order that was proportionate.

Lord Judd: I apologise for interrupting yet again, but while we are on the point raised by my noble friend Lord Plant of Highfield, there are anxieties—I am sure that my noble friend will agree—about the real strength of the judicial review. We know the Human Rights Act 1998 has toughened this up a bit, but there are still doubts about how much muscle there really is in judicial review. If we are trying to ensure that justice is being seen to be done, would we not be in a stronger position if it was the balance of probabilities on non-derogating orders, rather than just a reasonable suspicion?

Lord Falconer of Thoroton: No, I do not think that is right. The courts have considered the question of the burden of proof in relation to these cases. In a recent
 
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case, Lord Justice Laws specifically addressed whether one should have a standard such as balance of probabilities. He concluded that that would frustrate the purpose of the making of the orders in many cases, because one is looking at a whole range of material and determining whether a reasonable degree of suspicion is satisfied to justify the need for an order.

We are following a course that the courts have accepted as legitimate. Having said that, because we recognise the seriousness of depriving somebody of his or her liberty, we take the view that, even though it makes it very difficult, which is what Lord Justice Laws says in this case, we nevertheless think the burden of proof—proving that somebody is or was a terrorist—should be the balance of probability in the case of derogating orders. When you are not depriving somebody of their liberty then, following the approach taken by Lord Justice Laws and in order not to frustrate the whole process, we say the right test is reasonable suspicion.

Lord Ackner: I posed a question before the adjournment regarding consultation with the Lord Chief Justice and the senior Law Lord. Much attention has been paid to the function that the judge is to perform. We have had arguments about whether it must be due process, and the extent to which the matter can be rubberstamped. Will the noble and learned Lord reply on whether there has been any discussion? If not, why not, and when will it take place?

3.30 p.m.


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