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Lord Kingsland: I may not have been following the proceedings as intimately as I should have, but have we passed Amendment No. 1?

The Deputy Chairman of Committees (Baroness Lockwood): No. The next amendment is an amendment to Amendment No. 1.

Lord Thomas of Gresford moved, as an amendment to Amendment No. 1, Amendment No. 3:

The noble Lord said: The purpose of these amendments is to confine the obligations that are set out in Clause 1. Subsection (3) states, "the obligations may"; we believe that the word "may" should be omitted and that the obligations should be confined to those listed.

The Bill as drafted permits the Secretary of State to make any obligation; he is not restricted to the ones set out in the Bill. The purpose of the amendment is to say, "Well, if you are going to have a list of this length, that is as far as those obligations should go". I beg to move.

Lord Kingsland: I rise to speak to this amendment and to a number of our amendments that are grouped with it, in particular Amendments Nos. 14, 16, 19, 21, 22, 24 and 26 to 29.

I respectfully agree with the noble Lord, Lord Thomas of Gresford. The measures that are set out on the face of the Bill, and in particular certain combinations of them,
 
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are punitive measures if imposed by the court. In our submission, therefore, it would be quite wrong to set them out purely as examples of what can be done. If somebody is going to be on the wrong end of one of these orders, they ought to know in advance exactly what the wrong end will look like.

I share the noble Lord's view that this list ought to be conclusive and that no other kind of order can be advanced unless there is an amendment of the legislation. I agree that a cocktail of what is on the face of the Bill could be asked for by the Secretary of State.

I move on now to the particular list. Most of these amendments, save one, would fall after Clause 1(3)(o); in other words, after page 2, line 39 of the Bill. Amendment No. 20 states:

We believe that ought to be on the face of the Bill because it is not clear that that would be the case, bearing in mind the earlier orders that the court could make.

Amendment No. 26 states:

The noble and learned Lord the Lord Chancellor has made it clear that these are not orders that result from criminal convictions. Therefore it is wholly inappropriate that someone subject to a control order should be prevented from voting.

Amendment No. 27 states:

Once again, it seems to me to be wholly inappropriate to prevent a controlled person from standing as a candidate or attending his own election count. I accept that certain stipulations under Clause 1 (3), if approved by the court, would limit the powers of the controlled person to campaign in the three weeks running up to the election.

Amendment No. 28 states:

The logic of that amendment flows from the two previous amendments.

I should like to draw your Lordships' attention to Clause 1(3)(n) on page 2, line 35 of the Bill. It states with reference to the potential controlled person:

The order requires somebody to answer questions. In particular, the implication of Clause 1(3)(n) could require that person to answer questions from a foreign agent. If he refused to do so, it would result in a lengthy gaol sentence. The penalty for not complying with orders is a conviction with a sentence up to five years.
 
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Amendments Nos. 19, 21, 22, 29 and 24 seek to provide some protection against that situation. Amendment No. 19 would delete paragraph (n). Amendment No. 21 would provide that:

Amendment No. 22 states:

Amendment No. 24 states:

The logic of that amendment flows from my concerns, which I have already expressed, about Clause 1(3)(n). Amendment No. 29 states:

Again, the logic of that does not require any further explanation from me.

A matter touched on a number of times in the course of the exchanges between the noble and learned Lord and other Members of the Committee during the noble and learned Lord's winding-up speech on Amendment No. 1 is the role of Article 6 of the European Convention Human Rights in relation to this farrago of measures. The noble and learned Lord has already accepted that Article 6 of the European Convention on Human Rights bites in so far as a civil right is affected. But let us suppose that the European Court of Human Rights found that the list of constraints and restraints set out in Clause 1(3) amounted, not to civil penalties, but to the equivalent of criminal penalties. Would not the noble and learned Lord then agree that the more demanding requirements of the criminal dimension of Article 6 would bind the state? If that is so, it would have profound implications for what the Bill subsequently says on due process.

The Duke of Montrose: In the truncated way in which we are addressing the Bill, two amendments to which my name is attached are in this group. I wish to speak to Amendments Nos. 37 and 38 now. So far as I can see, the main reason that they are in this group is that they relate to Clause 1 and we have simply lumped together as many amendments relating to Clause 1 as can conveniently be grouped.

Amendment No. 37 provides that nothing in the Bill,

That issue has been put to me by the Law Society of Scotland. The reason for it is that Clause 1(3)(n) makes provision to require an individual to comply with a demand to provide information. Article 8 of the European Convention on Human Rights enshrines the right to privacy. Scots law has traditionally protected the relationship between a solicitor and his or her client, and has made provision for the doctrine of legal
 
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privilege. To ensure that such communications remain protected, provision should be made in the Bill to the effect that Clause 1 will not extend to the disclosure of such information. This amendment seeks to achieve that.

Amendment No. 38 would ensure that reference is made in the Bill to the protection against self-incrimination when an individual is providing information pursuant to a requirement of the Act. The reason that the Law Society of Scotland believes that protection against self-incrimination should be referred to in the Bill is to ensure that an individual's rights are preserved.

The European Court of Human Rights found a violation of Article 6(1) of the European Convention on Human Rights in the case of Funke v Funke [1993], in which the applicant complained about the imposition of a fine for his refusal to produce bank statements and legal papers that Customs authorities believed to exist but could not find during a legal search of the applicant's premises.

Similarly, in the case of Saunders v UK [1996] the court found a breach of Article 6(1) in circumstances where a company executive was compelled to provide information about the business activities of the company to one government authority which turned the information over to prosecuting authorities for use in subsequent criminal proceedings against him. By referring to the protection on the face of the Bill, an individual responding to a request made under this Bill will be aware of the extent of his or her rights and responsibilities.

4.30 p.m.


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