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Lord Falconer of Thoroton: Yes, there has been discussion on that between the Lord Chief Justice and myself. We both take the view that it is appropriate that Parliament should decide what should happen regarding the matter.

Lord Garden: Does the noble and learned Lord the Lord Chancellor agree that it is the perception of whether the procedures are just that matters so much? As I said on Second Reading, every terrorist organisation wants to provoke governments into repressive measures or apparently repressive measures. I have listened to the debate. I am not a lawyer, and most of this goes way above my head, as I imagine it does those of people in the Muslim communities who are going to be affected by it, but I know that if these procedures are not clear and obviously just, though there may be some short-term advantages in banging up the odd person now and again, the long-term damage in recruiting more people to terrorist causes is likely to be much increased.

Lord Falconer of Thoroton: We are extraordinarily conscious of that. We have to make it as clear as possible that the procedures we are adopting strike the right balance. That is why, for example, SIAC is not involved in any of this. The High Court of England and Wales, the Court of Session and the High Court of Northern Ireland will determine the procedures.

Our judiciary is second to none in its independence. It will make the decisions on the basis of material that is available. I hope that orders will need to be made in
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only a very few cases. However, as the noble Lord, Lord Garden, says, we need to strike a balance between providing appropriate protection and having a procedure that is as fair as possible and that people perceive as fair.

Lord Wedderburn of Charlton: Perhaps I may take my noble and learned friend back to his answers to my noble friend Lord Plant. As this debate is a record that will be scoured by many people, I think that points of uncertainty should be covered.

As I understood him, my noble friend Lord Plant suggested that Article 5 was particular in not containing the proviso, as I shall call it, regarding measures that are necessary in a democratic society and prescribed by law, and so on, in Articles 8 and 9. However, if my noble friend accepted that only Article 5 was in issue, perhaps he was suggesting that Article 6 has such a proviso. But of course it does not. I am thinking now of the civil rights protection of Article 6. I am thinking of a cocktail under what, this morning, I called the "liquorice allsorts page 2" of the Bill. It is very difficult to think of any effective cocktail of control which would not almost certainly, or at any rate very likely, infringe some right by the commission of a tort.

Those rights are protected by Article 6 as requiring,

It may be that Article 6 is not a favourite of anyone but me, but I suggest that it should be covered and that my noble and learned friend should tell us what he thinks about that article.

Lord Falconer of Thoroton: That is an entirely legitimate point. There needs to be a fair procedure in determining people's rights, whether under judicial review or under the process in relation to derogating orders. At the heart of the issue of whether there is a fair procedure is the question of whether it can be a fair procedure when the suspect does not see all the allegations against himself or herself. The courts in this country—in relation to the SIAC process, where precisely that happens—have held that that is a fair procedure under Article 6.

So we are conscious of, as my noble friend says, the need to satisfy Article 6. In the light of the fact that the courts in this country have upheld the SIAC procedure, we think that we will satisfy it in relation to these matters.

Lord Waddington: I am very grateful to the noble and learned Lord the Lord Chancellor for much that he has said. He has clarified a number of matters. But there is one matter which he certainly has not clarified. Is it not wholly artificial to give the judges a different role in the case of derogating control orders from their role in the case of non-derogating control orders, when the noble and learned Lord the Lord Chancellor himself cannot say which of the requirements in Clause 2 will offend against Article 5 and which will not?
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The Bill has had to be drafted as it has because one looks at all the different requirements that can be made of a person under Clause 2, but one cannot say with any certainty whether a derogation is necessary. If that is so, surely there is the very strongest case for simplifying the Bill by having the same judicial intervention in the case of derogating control orders as in the case of non-derogating control orders. If the noble and learned Lord would concede that, we really would have got somewhere today.

Lord Falconer of Thoroton: With respect to the noble Lord, it is not the case that it is possible that any order made under Clause 1 would offend against Article 5. It is very unlikely that if the Home Secretary intends it to be a non-derogating order, it would be anything other than that. For example, if you restrict someone from associating with one person, there would be no argument but that that was a non-derogating order. If there were any legitimate doubt about it, I have absolutely no doubt that the Home Secretary would not do it unless he derogated. In the vast majority of situations that one can think of, it would be utterly clear whether it was a derogating order or a non-derogating order.

So, with the greatest respect to the noble Lord, I do not think the difficulty arises in the way that he says. But he has raised a fundamental question which has been asked time and again in the course of the debate. What is the reason for the distinction between the non-derogating order and the derogating order? The reason for the distinction is that we think that, in principle, these are matters that the Executive should decide, but subject to judicial oversight. Because of the representations that have been made and because in a derogating order you are depriving someone of his liberty, we have accepted that a special measure should be put in; namely, a judge deciding in advance of the order being made that either it should be made or leave should be given to enforce it.

So we think that the starting point should be that the Executive should make the decision, but subject to judicial control. Because of the understandable concerns raised, in the exceptional case of deprivation of liberty, the judge comes first.

Lord Mayhew of Twysden: I am grateful to the noble and learned Lord the Lord Chancellor. Would it be clear in the vast majority of cases? The Government are saying under their scheme that it is all right not to have a judge involved in a non-derogating case, but in a derogating case he will be involved.

Quite some time ago—before the adjournment, I think, but it may have been afterwards—I was perturbed to hear the noble and learned Lord the Lord Chancellor say in relation to paragraph (o), in this long list of 15, that,

would not be an infringement of his rights guaranteed by Article 5. But if that is imposed upon me, it is an imposition upon my liberty not to be at that specified place and at that specified time. As the noble and learned Lord said a minute or two ago that Parliament was to
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decide these things, I wonder whether we are being offered anything like a sufficiently clear watershed between one category of case and the other.

Lord Falconer of Thoroton: I do not think that anybody would suggest that making the noble and learned Lord, Lord Mayhew, report to the police station, say, once a week would constitute a deprivation of his liberty under Article 5. It may well engage other of the noble and learned Lord's rights. It is wrong that he should be asked to report to a police station once a week unless there is a good reason—for example, connected with national security—and it is a proportionate response to the threat which he posed. It would never be an infringement of his liberty, therefore it would never be a derogating order, but other rights would be engaged under the European Convention on Human Rights. If the response was disproportionate or not pursuant to a legitimate aim such as national security, judicial review would strike it down, which is a perfectly sensible framework.

Lord Carlisle of Bucklow: The Minister has not answered my specific question. In his opening speech he suggested that a curfew order would not be a deprivation of liberty. I find that extraordinary. Surely if someone is to be required to stay in a building, let us say from 7 p.m. to 7 a.m., that must be a deprivation of his liberty.

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