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Lord Kingsland: I am most grateful to the noble Baroness. Given what she has just said, I see no reason why the Government cannot accept an amendment which would put the DPP on the face of the Bill, requiring the DPP to say to the court that he is satisfied, in all the circumstances, that a prosecution cannot be brought.

For the sake of economy I want also to make an observation about another aspect of what the noble Baroness has said. I share her enthusiasm for bringing forward this new offence. Over the past few months the Government have expended a great deal of intellectual energy in thinking about how to define it. Would not this Bill be the ideal place to introduce it, or perhaps the Serious Organised Crime and Police Bill which we shall consider in a week or two? What is holding the Government up?

Baroness Scotland of Asthal: We have all agreed that this is a complex area. If I have been enjoined once, I have been enjoined a thousand times in various debates to get the new set of offences right. They will be difficult; they will have to be carefully considered; and they will have to be closely scrutinised and debated. We have made it clear that we are bringing forward provisions in this Bill which are absolutely necessary right now and need to be put in place speedily—by 14 March. We must consider with
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greater care and in more depth the other provisions in order to make sure that the structure we put in place is right.

Moreover, while I hear the enthusiasm that has greeted the provisions in this debate, as I have come to know and love this House very much, I am confident that noble Lords are likely to be less enthusiastic about them when they are brought forward. They will want to scrutinise them fully and with great care. That is the reality of the position.

5.30 p.m.

I have said already that the role of the DPP and his decision whether to prosecute does not apply in relation to control orders; he is not responsible for preventive orders. It is important that he maintains his independence from the Home Secretary.

We intend to bring forward an amendment which will place a duty on the relevant chief officer to keep under review the investigation of individuals who are subject to control orders during the duration of the order, with a view to their possible prosecution for any terrorist related offence. The chief officer must consult the relevant prosecution authorities where appropriate. These provisions will ensure that there continues to be an active review of the scope for prosecuting an individual throughout the life of any control order.

The amendment that we are bringing forward reflects existing practice. It is already the case that there is a regular assessment of whether there is any prospect of prosecution. This assessment is carried out by the law enforcement agencies in consultation with the prosecuting authorities as appropriate. I emphasise that decisions as to prosecution are for the relevant prosecuting authorities; they are not for the Home Secretary. We should keep a clear divide between the two and ensure the independence of the prosecuting authorities to make those decisions without any improper interference by the executive, in the form of the Home Secretary or otherwise. It is to be hoped that the provisions we are putting forward will achieve that balance.

I understand the concern of the noble Lords, Lord Carlisle of Bucklow and Lord Kingsland, and of the noble and learned Lord, Lord Lloyd, and others in relation to the whole issue of prosecution being the first port of call. I hope that I have been able to reassure noble Lords that we take these issues seriously and that we will, through the amendment we propose, seek to address that very knotty issue. I think that I have now interfered in the debate enough.

Lord Kingsland: I shall have one more quick try on this issue. The solution that the noble Baroness is offering the Committee contravenes the principle that the noble Baroness has just adumbrated. She said that the Director of Public Prosecutions must remain completely independent of the Home Secretary. We entirely agree with that principle. That is why we want the Director of Public Prosecutions to report directly to the court in public. If the Director of Public Prosecutions reports to
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the Home Secretary in private, there will be a suspicion—no doubt wholly unfounded—that there is the possibility of some arrangement being made.

So, in order to avoid the perception that that might be so, would it not be much better to stipulate in the Bill that the Director of Public Prosecutions plays an independent role reporting to the court?

Baroness Scotland of Asthal: Let me make it clear that the Director of Public Prosecutions does not report, as the noble Lord said, to the Home Secretary. When the security services and the police come to make representations, the police will have already consulted the Crown Prosecution Service as to whether prosecutions are possible.

We do not think it is proper for the Director of Public Prosecutions to be involved in the way suggested by the noble Lord. Indeed, the Committee will recall that there is a conduit through which the Director of Public Prosecutions may have contact; that is, through the office of the Attorney-General.

The Earl of Onslow: There must be something in the Bill that says how the Home Secretary arrives at his conclusion—the mechanism that must be on the face of the Bill. If it is not via the DPP, perhaps the noble Baroness and the noble and learned Lord the Lord Chancellor, who have tonnes of brains between them, can think up a way in which this could be set out on the face of the Bill. That is absolutely essential.

Baroness Scotland of Asthal: As your Lordships will know, we feel that we have set out the ways in which my right honourable friend the Home Secretary or someone in his position would address this matter. Our first amendment to Clause 1 addresses the way in which these matters will operate and how the procedure will be undertaken. It has never been the case that the minute detail of practice to which I referred earlier has ever been put on the face of any Bill.

It will be a matter of record that this is the way in which we propose that matters should be dealt with. We feel that that is the most appropriate way forward. After the conclusion of this debate, we shall look at everything that has been said and see whether further or other things may be done. However, the amendment we currently have in mind, which places the duty on the relevant chief officer to keep under review the investigation of individuals, very much speaks to the concern that noble Lords have.

Lord Blackwell: Before the noble and learned Lord responds to this debate, perhaps I may raise just one question which I hope he will address. As a non-lawyer, I hesitate to trespass in this tricky territory. However, having read the Bill and listened to this debate, I believe that the one thing that is missing is clarity about what opportunity individuals subject to a control order will have to understand and respond to the cases against them. I can find only one mention of it, in Amendment No. 12, tabled by my noble friend Lord Kingsland. Perhaps I have missed it or it is
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implicit in the procedure. However, it is important that we are clear on this. There are obviously difficulties in laying out evidence, but we need to make clear what opportunity the individual will have to understand the case and respond to it.

Lord Falconer of Thoroton: I shall try to reply to all of the amendments that we are dealing with. I shall deal first with the entirely legitimate point raised by the noble Lord, Lord Blackwell. We discussed it before lunch and after lunch, but there is no harm in going back to it again.

The Home Secretary has to lay out as fully as he can the case which the suspect has to meet. We all acknowledge that there is certain material that the suspect cannot see because of the damage it might do to national security. That would be dealt with by the process of special advocates. That process has already been adopted in the SIAC courts, and the Court of Appeal has held that that process is a just process and one that complies with Article 6, which sets out basic procedures that must be followed to ensure that people have a fair trial. I hope that that adequately answers the questions from the noble Lord, Lord Blackwell.

I should like to go back now to Amendments Nos. 3, 5 and 6. They all raised the issue of whether the list of obligations that could be imposed are exhaustive. I respectfully submit that they do not have to be exhaustive. Indeed, it would be a bad idea if they were. They lay out the sorts of obligations that can be imposed. We should remember, however, that these obligations are subject to a number of conditions.

First, they must be obligations placed upon the individual for purposes connected with protecting members of the public from a risk of terrorism. Secondly, they can only be obligations which are proportionate to the risk the individual poses. Thirdly, they can only be obligations imposed with a legitimate aim that justifies an interference with Articles 8 to 11. So there are all those restrictions on the obligations that can be made.

It would be wrong, when each case would have to be looked at on a case-by-case basis, to restrict the sorts of orders that can be made. Noble Lords who have been involved in the courts over a long period know how good the courts are at identifying precisely the form of a particular order to meet the particular need. It would be wrong, in my respectful submission, to restrict it to the ones set out in Clause 1(3). It is a sensible way of dealing with it. It is the limits on the obligation that are critical, not the precise formulation of them.

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