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Lord Falconer of Thoroton: It is not a deprivation of his liberty under the jurisprudence of the European Convention on Human Rights. It would be legitimate only as a non-derogating order if it were pursuant and proportionate to a legitimate aim. Our courts, under judicial review in this scheme of things, could judge that matter and it would reach the courts quickly.

Imagine such an overnight curfew being imposed. The effect would be that someone would have to stay in his premises overnight. He could get to court, he would obtain legal aid and he could say to the courts within a matter of days, "This is disproportionate; this is not right". The court then might say, "We've looked at the material, we've heard what you've got to say, but we think that it is in order to protect national security and this is a proportionate response", because for example there was material suggesting that if the curfew was not put in place there would be a material risk of some atrocity being committed.

In the first instance the Home Secretary would have to make the balance, but the court would be able to weigh whether it was a proportionate response and pursuant to a legitimate aim. That is the scheme that we are putting in place. The judgment for this Committee, in the light of the threat and the advice that we have received from the security services, and in the light of the judgment that we and also the other political parties have made, is whether this is a sensible way of dealing with the matter.

Lord Wedderburn of Charlton: Suppose I was put under a curfew, and I did not comply with it, and when the constable manhandled me back through the front
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door I said to my legal advisers, "I think the first thing we'll do is go ex parte for an injunction and then we'll follow that up in the normal course: damages and costs will come one day". Where is my noble and learned friend's defence in the articles of the convention for an action based perhaps on trespass to the person?

Lord Falconer of Thoroton: I think that the question is directed to where is the defence for the agent of the state on the basis of the proposition advanced by my noble friend Lord Wedderburn. If the position were that it was an unlawful order because it was either disproportionate or because it was not pursuant to a legitimate aim that justified it there would not be a defence for it. That is the law because we are setting up a legal framework in respect of which those matters can be judged.

Lord Wedderburn of Charlton: I hesitate to interrupt my noble and learned friend, with his great experience of these matters, but on what authority does he base the defence of trespass to the person on the proportionality of the trespass?

Lord Falconer of Thoroton: I may have misunderstood my noble friend's proposition, but, as I understand it, an unlawful order is made, someone seeks to enforce the order and the order is then set aside. I imagine that in those circumstances a remedy would be available to the person against whom the wrongful order had been made.

Lord Cameron of Lochbroom: I was interested in what the noble and learned Lord said about proportionality. Amendment No. 55, which deals with non-derogating orders, starts with the power to make a control order against an individual if the Secretary of State,

Amendment No. 79, which seeks to add a new paragraph at the end of Clause 3, says that,

I am not entirely clear how the issue of proportionality arises in relation to a new paragraph that says that the Secretary of State can make an order and it does not have to be connected with his suspicions, although those are the grounds on which he chooses the person to be subject to the non-derogatory order. Will the noble and learned Lord satisfy my concern?

3.45 p.m.

Lord Falconer of Thoroton: In order to make a non-derogating order one must first have reasonable suspicion that the person is, or was, a terrorist; and, secondly, the circumstances must justify the making of the order. One might come back on a second occasion, having established by material on the first occasion, that there was reasonable suspicion that that person is, or was, a terrorist.
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One could then put before the court, if the issue arose in relation to court, "Here is material"—perhaps from an informant—"that suggests that this person is about to do something of great danger". That material could be entirely different from the material on which we rely to show that he is a terrorist. That is the only reason why the provision is there.

Lord Lloyd of Berwick: I promise not to interrupt again.

Noble Lords: No!

Lord Lloyd of Berwick: The problem is that there is no offence of being a terrorist. When the person is arrested it is basic English law that he must be told for what offence or offences he is being arrested. For what offence is this man being arrested? The answer might come, "Being concerned in the preparation and instigation of an act of terrorism", but that is not an offence.

Lord Falconer of Thoroton: The essence of the procedure is not about arrest. It is the Home Secretary concluding that the person is, or was, a terrorist—let us put aside the question of burden of proof for a moment—and the circumstances are such that we need a control order to protect the nation against what that person may do.

Those are in essence the two elements, whether it is a derogating or non-derogating order. That is the issue raised by the making of such an order. The committee of the noble Lord, Lord Newton, and the noble Lord, Lord Carlile, acknowledged that the difficulty is that there is some material that supports those two contentions that we cannot disclose to the suspect. Everyone agrees that if we were to do such a thing we might put the method of our surveillance or our informants at risk.

However, we know, and the court knows, what has to be satisfied before an order can be made. It can judge whether the two issues to which I have referred have been made out. In the course of that series of interventions over the past hour and 12 minutes I think that I have dealt with almost every point.

Lord Elton: A point raised by the noble Lord, Lord Stoddart, has not been dealt with. It goes back to the reasons why the provision is necessary. He asked how many suspects there were. There was a range of figures from 100 to a handful, and the noble and learned Lord replied that it was not a good thing to speculate. He is not being asked to speculate: he is being asked to say which of his colleagues was right. What is the answer?

Lord Falconer of Thoroton: I am not prepared to say how many people are currently liable to be the subject of control orders. It would not be appropriate to say that and I am not going to comment on the question.

The Earl of Onslow: Will the noble and learned Lord, during the little break, either pick up the telephone or ask one of his assistants to do so and call No. 10 Downing Street? The Prime Minister said that there were several
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hundred and a year ago the Government said that there were none. Will he get from the Prime Minister an authoritative answer to the question that goes to the core of the Bill? If there is only one spare Muslim wandering about in a slightly doolally way saying, "I think I'm going to blow up a telephone box", we do not need to undermine the whole law of England for that. If, however, there really are hundreds of people wandering about with serious intent against whom the authorities have not found evidence but think that they might, then even my objections to this thing might be slightly chipped at the edges. But so far I have found no evidence from anybody on what the threat really is.

Lord Stoddart of Swindon: Before the noble and learned Lord answers, may I elaborate a little on the noble Earl's point? It is an important one. The difference between several hundred, 20 or 30 or a handful is very important in the context of the Bill because we have to be proportionate in everything we do. The important point is this: the Prime Minister said that there were several hundred British citizens who could be engaged in, or were preparing to engage in, acts of terrorism. He said it on "Woman's Hour", which goes out to about 6 million people. That was then reported on other news broadcasts and in the newspapers, so that millions of people have got it into their heads that the Bill is about controlling several hundred potential or actual terrorists. If the message had gone out that there were 20 or 30 terrorists, then people's attitude towards the Government's actions could be entirely different. That is why it is important to know exactly what we are talking about. Is the figure several hundred? If so, what evidence is there of that? Is the figure 20 or 30, as the security services believe? Or will a handful of people be affected by this measure, as the Commons were told? It is a crucial point, which I believe has to be answered before the Committee allows the Bill to go forward in any form.

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