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Lord Carlisle of Bucklow: Assuming that this amendment is passed and, therefore, the other amendments cannot be taken, will the noble and learned Lord deal with one of the questions that I asked; namely, whether the Director of Public Prosecutions should assure himself that the conditions exist in which a fair trial would not be possible before an application is made?

Lord Falconer of Thoroton: I did not deal with that question because that issue will be dealt with
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separately when we come to Amendment No. 126. I think that it is covered also by Amendment No. 8. Amendment No. 8 is in a separate grouping so we will come to it. Enjoyable though it is to discuss it, I ask that we postpone discussion of the role of the DPP until we come to the appropriate amendment, which is Amendment No. 8.

Lord Carlisle of Bucklow: I do not think that Amendment No. 8 is movable. It relates to the first 16 lines of the Bill, which are to be deleted.

Lord Falconer of Thoroton: The Marshalled List before me shows Amendment Nos. 2 to 5 as being amendments to Amendment No. 1. If Amendment No. 8 is pre-empted, our response to the noble Lord's question is Amendment No. 126, which sets out the involvement of the prosecuting authorities in the process. That deals sufficiently with the point that has been made by my right honourable friend the Home Secretary and by my noble friend Lady Scotland of Asthal; that is, that we always regard prosecution as the preferred option, but that we recognise that, in certain cases, prosecution will not be possible. Amendment No. 126 would require the issue of prosecution to be kept under constant review while a control order is in force.

Lord Goodhart: I think that the grouping comprises Amendments Nos. 8, 13 and 126. While Amendment No. 8 will be pre-empted, Amendment No. 13 will not. It is also in the name of the noble Lord, Lord Carlisle of Bucklow.

Lord Kingsland: The noble and learned Lord referred to the usual channels. It was understood between the usual channels that a discussion on Amendment No. 8 would take place. If your Lordships were to glance at the latest list of amendments, your Lordships would see that the first amendment in the fourth group is Amendment No. 8. While we understand that, in order to be absolutely clear about the Government's case on Report, it is desirable to have all the Government's amendments included in the Bill when it reaches Report, that should not be used as a means of constraining the logical process of debate in your Lordships' House. If we are going to debate at a later stage where the DPP comes in, it would be wholly unfair to exclude the possibility of discussing Amendment No. 8.

Lord Falconer of Thoroton: I make it absolutely clear that that is not intended. There will be no preclusion of the matter coming back on Report. I put that on the record.

Lord Donaldson of Lymington: I thought that the noble and learned Lord had indicated that he was not going to accept my alternative but would give serious consideration to it over the weekend. If the usual channels have agreed that Amendment No. 1 should be voted on today, surely that precludes me saying on
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Report, "Well, let's get rid of Amendment No. 1. Let's go back to the Bill as it is at the moment, and let me amend that".

Lord Falconer of Thoroton: I can give the noble and learned Lord the assurance—the Clerks are nodding vigorously in my direction—that, assuming that there is no vote on my Amendment No. 1, the amendment tabled by the noble and learned Lord, Lord Donaldson of Lymington, would not be prevented from coming back later. I hasten to reassure all Members of the Committee that I am putting Amendment No. 1 in the Bill without in any way precluding any change that may be made subsequently. I am inserting the amendment only to ensure that there is absolute clarity about what we are debating. We all know that if we start having three or four different lists it becomes impossible.

Lord Thomas of Gresford: I am grateful to all noble Lords who have participated in this interesting and very important debate. I am particularly grateful to the noble and learned Lord the Lord Chancellor, who for well over an hour has endured an expert cross-examination by noble Lords. At times I thought that under Magna Carta he would have been facing trial by his peers, the charge being that the reason why the distinction between foreign nationals and British citizens has been dropped is that the Law Lords have said that there can be no discrimination under the European convention. His defence has been to say no, an unnamed number of terrorists who are British citizens have suddenly come out of the woodwork over the past few months.

If we were to pass judgment, we might not do so in the Lord Chancellor's favour. I was reminded of a short debate held in this House several years ago when capital punishment was finally abolished. We considered whether Life Peers should be hanged with a silken rope or by a hemp rope like everyone else. Lord Williams of Mostyn determined that a hemp rope would do very well.

Do we need control orders at all? That matter was raised by the noble and learned Lords, Lord Lloyd of Berwick and Lord Donaldson of Lymington, and by the noble Baroness, Lady Kennedy of The Shaws. I understand their position to be that the judiciary might be tainted by appearing to rubber stamp an administrative decision. I do not see it that way because, when the Government are in litigation with an individual, a judge will frequently find in favour of the Government in judicial review proceedings. No one would suggest that the judge is tainted by the fact that he has found for the Government in a case involving judicial review. Provided that there is a proper case, I respectfully suggest that no one could suspect a judge of being tainted by his conclusion.

It is more a question of trust. Do we trust the Government to reflect properly the information they receive from the security services in relation to terrorism? Members of my party have come to the conclusion that we must trust the Government in this. We are strengthened by the fact that the view that there
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is a very considerable terrorist threat has been expressed on previous occasions and again today by my noble friend Lord Carlile of Berriew. So we concede that control orders are required.

However, once we come to that conclusion, we are no longer dealing with immigration law. I am grateful to the noble Lord, Lord Stoddart, who stressed the point that everyone in this country is now involved and at risk. When in 2001 we were dealing with the legislation brought forward in the aftermath of 9/11, someone in the Home Office used the wheeze: "We cannot just intern people. We will use immigration control"; the let-out being that the people arrested and put in Belmarsh could walk out any time they wanted, provided they went abroad to a country that would receive them. My noble friends and I said at the time that that would not satisfy the European convention, and three years later we were proved right.

As for SIAC, to which reference has been made, at the time that Bill was introduced it was a rather lowly tribunal dealing with immigration appeals. When we pointed out that the provisions would be subject to judicial review, the Government's answer was to make SIAC a special court of record and therefore immune to judicial review at the time. We seem to be going in the same direction here.

The longer I listened to the debate, the more strongly I came to the conclusion that we must have a common procedure for obtaining control orders and that the Secretary of State must apply to the court. The court should follow the procedures set out in government Amendment No. 80 which, while broadly speaking they are right, we will seek to amend. At a very early stage, an application will be made to a judge, who will make an interim order.

Turning now to the point made so valiantly by the noble Baroness, Lady Hayman, if counsel for the Secretary of State applies to the judge for an interim order within a short time and asks for four or five restrictions out of the list—the liquorice allsorts set out in Clause 1—the judge could respond by saying, "If you get all you are asking for you will be in derogation of Article 5, but you can have two or three". The judge can decide the interim order under this procedure without involving a breach of Article 5.

4.15 p.m.

The next stage for the Government—except, of course, that they are limited to derogating control orders as drafted—is that there is then a full hearing when the court may confirm the control order or revoke it, but essentially make a decision on its merits. We say that this procedure can apply to all control orders, and that is what we will be seeking.

As I said initially, this is only a part of the position. Having a judge decide matters is useless unless there is proper due process. We shall debate that issue either later today or on Monday, so I hope that the Committee does not think that we are finished at this stage. This is only a part of the proposals we are putting forward.
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The noble Lord, Lord Forsyth, has pursued the point about which policemen will be involved. I have often thought of what would be the situation under the Government's proposals, where the Secretary of State makes the order and you, the suspect, are at home when the knock comes on the door in the middle of the night and you open the door. Who is there? Is it a policeman? There is no provision for that in the Bill. Is it a messenger of the Secretary of State? The Committee will remember my reference at Second Reading to Entick and Carrington and what happened in the 18th century. Is it the tipstaff from the court? Or could it be that we should have recourse to a resource which has not been used for many years—the High Sheriff?

The Committee will recall that a great deal was said about "men in tights" when there was an invasion of the House of Commons. We have a nationwide matrix of men in tights carrying swords who, since the abolition of hanging, which they used to organise, have been looking for a role. Perhaps this is it. When the knock comes on the door and the terrorists go to the door, there is the man in tights, not dressed as Black Rod would be dressed but in a velvet suit in addition.

I shall not detain the Committee much longer. We shall return to this matter on Report. For the moment, I beg leave to withdraw my amendment to the amendment.

Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.

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