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Lord Phillips of Sudbury: I am most grateful to the noble and learned Lord for giving way. Does he really think that the proportionality protection is practical in the circumstances that we are talking about? And how could a court assess proportionality in the absence of all the information about the background?

Lord Falconer of Thoroton: I have absolutely no doubt that proportionality is an appropriate test and that it is enforceable. I am satisfied that it is because there has been considerable jurisprudence on proportionality in
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the European Court of Human Rights. Equally, I have no doubt that our courts, in addressing those issues, could ask themselves the questions: what does the applicant say is the need for this order, and on the basis of what the applicant says is the need for this order is this the minimum means by which protection could be given against the risks to national security? That is a task that the Home Secretary is capable of doing and that the courts are prepared and able to do. Therefore, I have considerable confidence that those sorts of issues can be addressed. They have been addressed in other countries, by the ECHR and in the decisions of the European Court of Human Rights.

Lord Phillips of Sudbury: Would the court be entitled, then, to all the information upon which the Home Secretary reached his decision? If not, how can it make an assessment?

Lord Falconer of Thoroton: The court can do what it does in all cases: make such orders as it thinks appropriate to ensure that all the available material is before it before it comes to a decision. The noble Lord, who is a distinguished lawyer himself, will know that the courts can make orders to require discovery and disclosure to assist in reaching its conclusions. So the court has more than enough powers to ensure that it has all the right orders. But the matter is to be determined in accordance with the rules of procedure of the High Court of England and Wales, and Northern Ireland, and the Court of Session. They have myriad powers that will allow them to get to the right answer.

Amendments Nos. 17, 31, 33 and 34 would limit the Secretary of State's ability to restrict a controlled person's movements. We submit that that would undermine the ability of the control order properly to address the risk that certain individuals may pose. The control order scheme already requires any restrictions on movement to be necessary to prevent or restrict terrorism-related activity. As I have already indicated in my exchange with the noble Lord, Lord Phillips of Sudbury, general ECHR requirements will add a proportionality test. That being the case, the removal altogether of the ability to restrict movement to any degree is inappropriate. You can craft the order to meet the facts of the individual case.

Amendments Nos. 18, 19 and 21 place limitations on the information that the controlled person is required to supply under a control order. There will be a number of circumstances where the provision of information by the controlled person will be essential to the operation of the control order; for instance, to monitor financial activities or movements. Important points have been raised about self-incrimination, which I shall come to in a moment. The noble Earl, Lord Onslow, was about to rise to speak, but he subsides in the hope of some answer later, for which I am grateful to him.

Amendments Nos. 20 and 22 both deal with the controlled person's access to legal representation. Again, issues regarding access to legal representation must ensure that the person has the right to fair
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process. But the issues regarding how SIAC operates—namely, that there is certain closed material that cannot be given to the suspect—must be complied with in relation to this.

Amendments Nos. 23 and 24 would prevent a control order requiring a controlled person to talk to, meet or allow entry to any specified person or any other person who is not a British citizen or who is working for a foreign government. That would mean that Commonwealth or EEA citizens legitimately working with the police or Immigration Service, including translators, could not be engaged in a control order's process. Furthermore, the second aspect of that provision would prevent, for example, a representative from the relevant foreign embassy receiving the surrendered foreign passport from a controlled foreign national.

Amendment No. 25 would give controlled persons unfettered access to family members regardless of other obligations, which would allow the suspect to pass on messages via family members. Furthermore, it would prevent an order restricting contact with a family member known to be part of the terrorism-related activity which gave rise to the order in the first place.

Amendments Nos. 26, 27 and 28 deal with voting and other electoral issues. Control orders would not interfere with the controlled person's political rights, and in the majority of cases, therefore, the activities that are the subject matter of the amendments should not be affected. However, it might be that in rare cases to vote in person or to stand as a candidate would be inconsistent with the other necessary and proportionate restrictions on the controlled person's movements. When that is the case, such restrictions should not be prevented.

Amendment No. 29 proposes that a controlled person may not be required to leave the United Kingdom. It is not envisaged that a control order would ever require such a thing in any event, as that would effectively be an immigration measure. When appropriate, necessary deportation action will be taken. The main purpose of the control orders is to control the activities of the person within the UK. Furthermore, international obligations may prevent the effective expulsion of a British citizen from the United Kingdom. We see no need to include an express prohibition of this nature.

Going back to the point raised by the noble Earl, Lord Onslow, about the right not to incriminate oneself, that right, stemming from Article 6, does not prevent the requirement of information to prevent or restrict terrorism-related activity, which is the objective of a lawfully imposed preventive order such as the control orders.

It is perfectly proper to require such information as is needed to address the risk, such as bank statements and telephone records. The fact that the information may result in criminal breach proceedings does not of itself breach Article 6. Indeed, if such requirements were prohibited it would totally undermine any preventive regime. A control order imposed on an individual suspected of being involved in bank fraud to fund terrorism could continue with such activity by hiding behind the right not to self-incriminate.
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For all those reasons we cannot accept Amendment No. 30. However, while any information provided under a control order obligation could be used in a criminal prosecution for breach of a control order, we accept that the right not to incriminate oneself would operate to prevent a prosecution for the underlying offence.

In the example that I gave it would mean that the information obtained pursuant to the control order regime could not be used in a prosecution for banking fraud offences. However, Amendment No. 38 is unnecessary as the control order requirement to provide information does not affect the admissibility status of information in respect to other criminal proceedings—other than that of breach.

The Earl of Onslow: I want to go back to this. Clause 1(3)(n) refers to,

If the order says that you will answer a question from PC Plod about where you were going and you refuse, you will be slammed up. That is the offence.

Lord Falconer of Thoroton: The point that I am answering in a lumbering way is that you can ask questions to prevent a terrorist outrage, but you cannot ask questions to convict the person of a criminal offence. It is perfectly legitimate that if, for example, you have information that suggests somebody has planted a bomb on the Tube, you are entitled to ask, "Where is that bomb?". If the person says, "No. I won't answer", breach of proceedings could be brought.

You are able to ask that question because you are trying to avoid an atrocity. What you cannot do is simply ask questions with a view to convicting that person of another criminal offence. That is the distinction I was making—rather slowly, I accept—in my answer. With respect, that seems to me to be perfectly reasonable.

Lord Kingsland: I am most grateful to the noble and learned Lord for giving way. Is this not a distinction without a difference? If one refuses to answer questions under Clause 1(3)(n) one can be prosecuted, convicted and sent to prison for five years for not answering. Either way, one is going to go to prison.

Lord Falconer of Thoroton: The question is what is the legitimate question. The illegitimate question is, "Did you commit this bank raid last year?". That is not trying to prevent terrorism; it is investigating a crime. As to the legitimate question, I take the hypothesis of there being reliable information that suggests that there is an explosive device in a place where many people gather. Would it then be legitimate to ask that person, with the power of an offence being committed if he or she did not answer, "Could you please say where that bomb is?"? I shall be interested if noble Lords think that that is a wrong question to ask. As the noble Lord, Lord Kingsland, implies, it would almost
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certainly lead to self-incrimination in relation to the offence of planting the bomb, but because the purpose is to avoid the atrocity, it is legitimate.

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