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Lord Falconer of Thoroton: The noble Baroness's recollection is absolutely correct. By a majority, the Court of Appeal said exactly that. The Court of Appeal concluded that there was no evidence that in fact had been obtained by conditions that we would regard as torture, but the legal conclusion to which the noble Baroness referred is exactly the legal conclusion that the court came to, having concluded that it was obiter dictum, because there was no evidence of torture before it at the time.

Lord Desai: In his answer, will my noble friend clarify two issues? Would each person have only one control order from paragraphs (a) to (o) placed on him, or more than one? If the latter is the case—and he alluded to this question earlier—is there a threshold, beyond which, if a person is subject to more than one control order, it violates Article 5, as opposed to being
 
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non-derogatory? Has he formed an opinion whether there is a uniform threshold, or whether it depends upon which combination of orders are used?

Lord Stoddart of Swindon: Surely, we must agree to Amendment No. 3, moved by the noble Lord, Lord Thomas of Gresford. If not, the Home Secretary can do anything. He can impose any obligation on the individual—not just the obligations listed in Clause 1(3), but anything at all. At least the amendment limits his actions to what is set out in the Bill. If we do not have that limitation, he can do virtually anything he likes.

In the normal course of events we trust Ministers to act reasonably. But the very appearance of the Bill and the time that Parliament is being given to consider it, persuades many of us that Ministers and the Government are being completely and utterly unrealistic and unreliable—and simply cannot be trusted. Therefore we need this limiting amendment in the Bill.

There is another group of amendments, which have been spoken to by the noble Lord, Lord Kingsland, and the noble Duke, the Duke of Montrose, which expose the exact problems which will arise from the restrictions set out in Clause 1(3). They have had only a couple of days to think about those—but how many have they not thought about? How many more would they think about if they had proper time between the stages of the Bill? My guess is that people will go home over the weekend and will think about more restrictions which should be placed on the list of obligations that appear in Clause 1(3).

I must reiterate my view and that of virtually every other Member of the House holds—at least, those who are non-Labour—that this is a rushed job and is too important a matter for it to be a rushed job. It is regrettable that the Prime Minister, because it seems to be his fault, will not allow proper consultation between the parties to see if some arrangement can be made to deal with the present emergency caused by the Law Lords' ruling and then for a cross-party approach be taken to tackle the whole problem of terrorism so that an acceptable piece of legislation can be brought forward. I reiterate what I said at the beginning. We must have Amendment No. 3, otherwise the Government can go gaily on and do virtually anything they like to anyone they like.

The Earl of Onslow: A paper was circulated to us saying that Members with Amendments Nos. 6 to 15 could speak, and I think that is a reasonably satisfactory arrangement.

I will move Amendment No. 7, along with Amendments Nos. 63 and 93. As your Lordships can see, they are drafted by a complete non-lawyer, so they probably make no legislative sense whatever. The aim behind them, however, is clear. A system of locking people up because the Home Secretary thinks they ought to be is not satisfactory. I hope that the Home Secretary, with the help of the amendment in the name of my noble friend Lord Carlisle of Bucklow regarding the DPP, would go to a judge and say to him, "We have this evidence against so-and-so. Some of it is extremely good but we dare not use it, but it is of the standard of
 
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proof we require. Please lock him up". At least there would be a form of trial. Or he might say, "Please can you stop him cycling to the mosque on Thursdays", or whatever they wanted to do to him.

Equally, that should be done by a judge, who should set a term on it. In other words, the man may only not cycle to the mosque on Thursdays for the next three or five weeks, or however long it may be. That way, the judge sets a sentence of some sort and it becomes a judicial process, with a sentence and subject to proof.

I accept that there are terrorist implications, although I am confused by the numbers. I am still not clear whether they are the still small hand of the noble Lord, Lord Stoddart, or the Prime Minister's hordes of Midian. I am arguing for a due process of law, where someone goes to a judge, shows him there is a definite case to answer, with a high standard of proof, and, consequent upon that, the chap can be stopped going to the mosque on Thursdays. Or, I suppose, in this instance, that he might be taken out to the bicycle sheds and beaten up.

Lord Carlisle of Bucklow: I am not sure whether the noble and learned Lord the Lord Chancellor wishes to reply individually to the mini-debates, or whether he would rather hear various people moving their amendments and then reply at the end.

Lord Falconer of Thoroton: As the note mentioned by the noble Earl, Lord Onslow, says, if the amendment the noble Lord, Lord Carlisle, is referring to is between Amendments Nos. 6 and 15, the most appropriate course is for the noble Lord to speak to it now.

Lord Carlisle of Bucklow: I wish to speak to Amendments Nos. 8 and 10. Although I said earlier that I was totally confused, the situation has been made considerably clearer by the last, very long intervention of the noble and learned Lord the Lord Chancellor. I am now a little wiser, as well as being better informed.

I am still concerned that there is no method in the Bill that starts the whole process. I accept that there are cases involving terrorists that cannot possibly be tried in the normal courts of this country. We have, therefore, to find some means by which those people who would otherwise be a danger can be dealt with, in a way as near as possible to that which would provide for a reasonable trial. It follows that both sides of the House should desire control orders to be limited in numbers. Such an order, whether or not it deprives an individual of their liberty, could still be of a draconian nature. That being so, one should be sparing in its use and be absolutely sure that before the procedure starts, someone has satisfied himself that it is not a case that can be dealt with by the normal courts.

The purpose of my Amendments Nos. 8 and 13 is to achieve that end. As it stands at the moment, whether one looks at the Bill or the amendments that we are about to pass, it says that the control order shall be made by the Secretary of State.
 
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I believe that the Secretary of State should have that power only on application being made to him. I suggest that that application should be made by the Director of Public Prosecutions or on his behalf, and before making that application he should have done all that he can to satisfy himself that it is not a case that can be tried in the normal way.

With respect to the Lord Chancellor, it seems that such a provision provides a greater safeguard than leaving it, as it does at the moment, to the idiosyncrasies of the Home Secretary of the day. I hope that the Lord Chancellor will say that some means must be found—whether I have the right one or not—whereby, before a control order is applied for, someone satisfies himself that no other method of trying the case is possible.

While on my feet, I turn to the next group of amendments, as Amendment No. 10 happens to be in my name. The group deals with the burden of proof. At the moment the Bill, as originally drafted, says that,

I do not believe, with respect, that "reasonable grounds for suspecting" is adequate. It is important that on the face of the Bill there should be words that make it clear that the burden of proof rests on the Secretary of State when he makes the application and that there should be a standard of proof before he makes that application.

Lord Clinton-Davis: Is the noble Lord prepared to accept "balance of probabilities", rather than "beyond reasonable doubt" as the filter?

Lord Carlisle of Bucklow: I was just coming to that. I have put it as high as the criminal burden of proof because I was equating it with those criminal cases where people end up in prison and, on this occasion, may end up under house arrest. I realise that I am in a minority on that issue and I realise that my—I was going to say "elders" but I had better say—"youngers" and betters on both sides believe it should be "balance of probabilities" rather than "beyond reasonable doubt". Therefore, although I still believe that there is a strong argument in favour of the criminal standard of proof, at least the insertion of the words "he must be satisfied on the balance of probabilities"—the test taken by the civil courts—would improve the Bill as it is at the moment.

I commend these amendments to the Lord Chancellor. I do not ask him to say that Amendment No. 13 is drafted in a way that is appropriate—there are probably much better words that could be used—but I hope that he will agree to the principle of these amendments and that the Bill must make it clear that there is a burden of proof on those who are making an application for an order.


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