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Lord Kingsland: Amendments Nos. 8 and 13 also appear in my name. I agree wholly with the remarks made by my noble friend Lord Carlisle of Bucklow. I
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would like to underline again that this issue is of central importance to the Opposition. I am talking about the DPP.

5 p.m.

Lord Falconer of Thoroton: My attention flickered for a moment, and when the noble Lord, Lord Kingsland, said it was central to the Opposition, I wanted to work out whether it was the burden of proof or the DPP. I apologise for interrupting.

Lord Kingsland: I am much obliged for the generosity of the noble and learned Lord the Lord Chancellor in his admission.

I say again, this is a central issue for the Opposition, not only because anyone restrained has a right to be tried by his peers—a fundamental principle of our constitution throughout the ages—but also because, if consideration about the feasibility of prosecution is not a precondition, then there will, inevitably, be a temptation for any Government to take the easier course, and go for a control order rather than a prosecution. So there must be stringent requirements on the face of the Bill for the prosecutorial route to be considered and either accepted or rejected at the beginning of the process.

This point was made at Second Reading. I am grateful to the Government for clearly having given it consideration. We find their response in Amendment No. 126. That amendment will be debated later in the day; but it has the same subject matter as Amendments Nos. 8 and 15. I suspect that the difference between us is not over whether or not there should be active consideration about whether to prosecute, but at what stage that obligation should kick in.

We believe that nothing further than an interim control order should be made before the DPP has considered the matter fully, and informed the court as to whether, in his opinion, it would be possible to prosecute the potential subject of a control order. By contrast, it appears that the Government simply want the possibility of prosecution to be kept under continual review once a control order has been made. That is the issue between us. The Government have given ground but, in our submission, insufficient ground. There is nothing in Amendment No. 126 to require the Government to reach a clear conclusion, stated to the court, that prosecution is not possible.

Lord Goodhart: We on these Benches have tabled Amendment No. 59, which is technically in a different group but is on the same subject. It is phrased slightly differently, but the purpose is entirely the same as that of the amendment noble Lord, Lord Kingsland. We make it clear that our position is the same as his, and we too feel that Amendment No. 126 does not make sufficiently clear the essential nature of ensuring that, where a prosecution is possible, it happens, and that a control order is a last resort and not the first.

Lord Judd: I do not often find myself differing with my very good personal friend the noble Lord,
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Lord Clinton-Davis. I always genuinely admire his desire to find a balance and a constructive compromise. However, I say to the noble Lord, Lord Carlisle of Bucklow, that I am sorry if he feels tempted to back off from his stated position. He compared somebody who faces legal proceedings which may end up with his being in prison with somebody who faces being under house arrest indefinitely. That is a very strong comparison.

From the standpoint of our concern, in the midst of all our anxieties about the dangers that confront us to protect the principles which are worth protecting in our society, it would be better in this situation to stick by the terms of the amendment of the noble Lord, Lord Carlisle of Bucklow. Perhaps he was not backing off, but—

Lord Carlisle of Bucklow: I was not backing off. I still believe that it would be better to have the criminal burden of proof. I was facing reality. Faced with amendments by both Front Benches that chose balance of probabilities, I said that at least if we got something on the face of the Bill about the burden of proof that would be an advantage. Of course I would like people to go the whole way, but I am being realistic.

Lord Judd: I thank the noble Lord for that clarification. That is a very reasonable and rational way to approach the matter. It is a serious compromise to make because there is a fundamental principle here which he was right to spell out. I would settle for the balance of probability as the baseline for non-derogated control orders. It seems to me that when it comes, as I said earlier in our proceedings, to a judicial review, it puts those conducting the judicial review in a stronger position than they would otherwise be.

I should like to underline that, if in the name of making progress and getting something on the face of the Bill, it would be unfortunate if we modify the language from that originally put forward by the noble Lord, Lord Carlisle of Bucklow.

Lord Clinton-Davis: I agree entirely with the line taken by the noble Lord, Lord Carlisle of Bucklow. We may prefer, ideally, the solution which is before us, but we have to be realistic. When two Front Benches have agreed on the way we should proceed, we must be realistic about it.

Although I have great regard for my noble friend Lord Judd, I think that he is, as always, being idealistic about the matter. I am afraid that we cannot afford to be. But we have to get something on the statute book. The provision "on the balance of probabilities" is better than nothing.

Lord Plant of Highfield: I rise to say that I strongly agree with the points made about the role of the DPP in the amendments of the Liberal Democrats and the noble Lord, Lord Kingsland. At Second Reading I said that I thought the role of the Director of Public Prosecutions was going to be fairly central to this and that it should not be either the Government or the security services who determine whether an individual
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was capable of being prosecuted in the ordinary courts. That is a very important principle that we should not abandon. I am quite happy to accept that there are people who cannot be prosecuted in the ordinary courts, but I believe that that decision should be informed by the judgment of the Director of Public Prosecutions.

On the issue of the burden of proof, I suppose I start slightly at the other end. I very much agree with what my noble friend Lord Judd said. I am not very much in favour of the idea of the burden of proof for non-derogation orders being reasonable suspicion. That threshold seems to me to be much too low. As the noble Lady, Lady Saltoun of Abernethy, said, the effect of those orders can be draconian. To have them imposed on an individual on the basis of reasonable suspicion seems to be much too low a threshold.

I am not unsympathetic to the view that there is a distinction to be drawn on the idea of deprivation of liberty and restriction of liberty. So if in my view the balance of probabilities threshold is appropriate for those orders that do not in the Government's view deprive people of liberty, the way to distinguish between them in terms of the burden of proof would be the balance of probabilities in terms of non-derogation orders and the criminal standard of proof in relation to derogation orders.

I agree with my noble friend Lord Judd that the effect of a derogation order leading to house arrest, which can be indefinite although reviewable, is such a draconian imposition that it should meet the criminal standard of proof, albeit in a judicial proceeding that is different from that in the normal criminal courts.

The Minister of State, Home Office (Baroness Scotland of Asthal): I may be able to help in relation to one matter. It may be helpful to noble Lords to know the process that is gone through before my right honourable friend the Home Secretary or someone in his position decides whether a control order would be appropriate. It might help the noble Lord, Lord Carlisle of Bucklow, and my noble friend Lord Plant in relation to the first part to know why it might not be necessary or appropriate to have the Director of Public Prosecutions engaged at that time.

Before my right honourable friend the Home Secretary could make a decision that a non-derogating control order was necessary, information would have to be brought before him by both the security services and the police. One of the matters that they would have to consider is whether prosecution was possible. As your Lordships may know, we have changed the charging rules so that before the police can charge they have to receive advice and support from the Crown Prosecution Service to say whether a charge on the basis of the matters complained of is possible. So when they bring before my right honourable friend the Home Secretary information about those cases they will already have made an assessment that prosecution in this case is not possible and will have to provide my right honourable friend with reasons why they came to that view.
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My right honourable friend will also have had the advantage of special counsel who will have looked at the papers and will be able to assist in deciding whether the position is sound and will have advised him in relation to it. He will therefore have available to him the broadest spectrum of information and advice in relation to those matters and will, as a result, be able to come to an informed view.

The role of the Director of Public Prosecutions, as noble Lords are only too well aware, is to make decisions on whether to prosecute. It is not his role to apply for control orders and he is not responsible for preventive orders. It is important that we feel that he maintains his independence from the Home Secretary or anyone else fulfilling that role.

Noble Lords will know that the usual conduit between the Director of Public Prosecutions and the Home Secretary will be the Attorney-General, a position with which the noble and learned Lord, Lord Mayhew, among others, has great familiarity, having discharged his duty with great distinction. I hope that that intervention has been helpful and that I have described the process that will have taken place before my right honourable friend comes to his decision.

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