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The Earl of Onslow: If the question is, "Did you commit a bank raid last year?", and the answer is, "No", then the suspect does not go inside because he does not have to answer. If it is, "Did you plant a bomb a week ago?", the chap is still being asked whether he committed a crime because placing a bomb is not a legal thing to do. So asking, "Have you placed a bomb?"—

Baroness Hayman: I shall enter the debate, but it probably will not help at all. Asking where a bomb is is a completely legitimate question but there are two possible answers. If the answer is, "I know, but I'm not going to tell you", that is a breach and I could find that being a criminal offence acceptable. The problem comes when the suspect says, "I don't know. You've got the wrong person here". If that is not answering the question, and is therefore a criminal offence punishable by five years' imprisonment, it is very difficult. How do you decide which of the two it is?

Lord Falconer of Thoroton: I am very grateful to the noble Baroness, Lady Hayman, who gave such straightforward and clear support for the proposition. The noble Earl, Lord Onslow, should think of joining Fountain Court Chambers: the distinctions he drew were so lawyerly and beyond reality.

The point made by the noble Baroness, Lady Hayman, is exactly right. If one thinks that there is a bomb somewhere, it is perfectly legitimate to ask the suspect where it is. If the answer is, "I know, but I'm not telling you", plainly there is a breach. If the answer is, "I don't know", the only way in which a criminal offence is committed and somebody could be convicted of it is if the prosecution were able to show, beyond a reasonable doubt, that the person did know and yet refused to tell. The circumstances in which I could envisage that happening would be where the suspect says, "I don't know", when he is asked; the atrocity then occurs and he subsequently says, "I knew all along where it was, but I wasn't telling you because I wanted the atrocity to occur". Speaking entirely for myself, I have no difficulty, in those circumstances, with the person being subject to prosecution and, if the jury is satisfied beyond a reasonable doubt that he had failed to tell and the atrocity had occurred, I do not see any—

Baroness Hayman: It could have been averted.

Lord Falconer of Thoroton: Exactly. So that is the position relating to discrimination—

Lord Kingsland: This has been a useful exchange of views about Clause 1(3)(l). I suggest to the noble and learned Lord that the answer is that, between now and Report, he goes back and tries to refine this clause because there are a large number of circumstances in which it could operate extremely oppressively. The exchanges between the noble and learned Lord, the
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noble Earl, Lord Onslow, and the noble Baroness, Lady Hayman, will help the noble and learned Lord the Lord Chancellor, with the enormous intellectual resources he has at his disposal, to come up with a much more specific and sophisticated description of what he is targeting under this clause. Then, I think, he might find a more sympathetic response.

Lord Falconer of Thoroton: I am grateful for the help that the noble Lord, Lord Kingsland, has given me in that respect. I hope, by the example I have given, that I am identifying the sorts of question that it is legitimate to ask the person who you believe is a terrorist and who might have information that might stop an atrocity. It will not be limited to the sort of information I have given; it could also be, for example, to give the names and numbers of bank accounts where there is money that is being used to fund terrorism. It could be to identify other people who are in league with you in relation to this particular proposition. That seems to be particularly legitimate.

There is an additional answer which I have not yet given; that sort of question is legitimate if, as the noble Earl, Lord Onslow, rightly identifies, it inevitably involves you in identifying the fact that you have committed a crime. By saying where the bomb is, you might necessarily indicate that you are involved. That could not be used against you in the subsequent prosecution, but it is a perfectly legitimate question to ask.

The Duke of Montrose: I think this covers the point raised in my Amendment No. 38 and I back up my noble friend Lord Kingsland in saying that we hope that the Government can think of some more sophisticated way of defining this issue.

Lord Falconer of Thoroton: It is not defined at the moment because it is about what the current law is in relation to self-incrimination. I am trying to explain—very inadequately—what the effect of the current jurisprudence is in relation to it under Article 6. I have no intention of putting anything on the face of the Bill. However, in the light of what was said by the noble Lord, Lord Kingsland, and the noble Duke, the Duke of Montrose, the right thing for me to do is to think about whether there are situations with which one is concerned, and whether there would be any value in putting forward an amendment. At the moment, I cannot think that there would be, but in the light of the points that have been so eloquently raised, I will certainly consider what the right course in relation to that is.

With regard to Amendment No. 36, standing in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Anelay of St Johns, Clause 1(4)(b) is a clarifying provision included for the avoidance of doubt. To remove it, we believe, would be unhelpful.

With regard to Amendment No. 37, standing in the name of the noble Duke, the Duke of Montrose, legal professional privilege is a fundamental human right that can be overridden by statute, but only by express
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words or necessary implication. The Bill does not seek to do that, so I hope that satisfies the noble Duke in relation to that.

On the basis of the many editions of the groupings, the next group contains Amendments Nos. 7, 63, and 93, which have been tabled by the noble Earl, Lord Onslow, and which I think we have debated already as they all concern the role of the court.

The effect of Amendment No. 17, tabled by the noble Lady, Lady Saltoun of Abernethy, would be to limit the Secretary of State's ability to restrict the controlled person's movements. Again, I referred to that earlier when discussing other amendments. The noble Lady made various points about what could be done, but again I refer to the restrictions on the making of any non-derogating control order—it has to be necessary to prevent the consequences of terrorism, it has to be pursuant to a legitimate aim under the convention, and it also has to be proportionate. So, again, the balance would have to be struck between the rights of the individual and ensuring protection. I hope that will satisfy the noble Lady.

Lady Saltoun of Abernethy: No, it does not satisfy me. I put down that amendment not in order to delete the clauses, but to find out what the arrangements and logistics were for house arrest. I am not satisfied that we should have house arrest unless these matters are taken into consideration. What thought has been given to it, and what arrangements are going to be made? Otherwise, I might want to table another amendment for Report stage.

Lord Falconer of Thoroton: Again, one comes back to the fundamental question: is the order necessary to prevent the consequences of terrorism? The human rights protections are there. One is striking a balance between intruding on a person's rights and preventing a terrorist event occurring. Precisely what that involves requires the facts to be considered on a case-by-case basis.

6 p.m.

The Earl of Onslow: I agree with the noble Lady, Lady Saltoun. House arrest is, in effect, imprisonment and asking the prisoner to pay for his own gaoler.

Lady Saltoun of Abernethy: Exactly.

The Earl of Onslow: Who is going to feed him? Who is going to water him? Who is going to look after him if he is locked up, is not allowed out and he cannot go to the social security office to pick up his cheque, because he has lost his job? If that is not seen as unfair, at least in the nick there is a thumping great warder from the Prison Officers Union who will probably beat him up behind the bike sheds, but who will at least shovel some filthy food down his throat.

Lord Falconer of Thoroton: Every one of those questions is legitimate but can only be answered on the basis of an individual case. Plainly, it would be
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disproportionate to impose orders that prevented someone being fed and seeing people unnecessarily. In each individual case you look at all the facts and then ask yourself, where is the balance to be struck? Of course the noble Earl and the noble Lady, Lady Saltoun, are right. If the consequence was that the person would starve, no such order could possibly be made.

There is no template that fits all, because we recognise and accept that simply to say that you can imprison people—which was Part 4—is no longer an adequate answer. The facts have to be looked at in each individual case. The consequences to the individual must be considered and the need to take that action, due to the consequences for national security, must be considered. Ultimately, a proportionate response must be reached.

We covered the role of the prosecution during the interventions with my noble friend Lady Scotland of Asthal. In terms of principle, I do not think that there is much between us. As the noble Baroness made clear, prosecution would be our preferred route, but if that is not possible, we then need to use the control orders.

I hope that that has dealt with every point that has been raised, but if anyone would like me to deal with a particular point, I would be happy to do so.

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