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Lord Plant of Highfield: I have one point which may be out of order, as I am a little mixed-up, procedurally. The noble Lords, Lord Carlisle and Lord Judd, and I referred to the burden of proof. It may be best to deal with that at some other stage, but it was an issue that was ventilated.

Lord Falconer of Thoroton: The burden of proof, as provided for in the Bill for a non-derogated order, is reasonable suspicion that he is or was a terrorist and, for a derogated order, satisfying the balance of probabilities that he is or was a terrorist. There is no burden of proof specified in relation to whether an order is necessary to prevent terrorism—those are not the exact words, but give the broad thrust. Regarding a non-derogating order we use the words "reasonable suspicion" because it will involve analysing a large amount of material and reaching a conclusion that there is a sufficient degree of suspicion to justify the making of a non-derogating control order.

As I said earlier, Lord Justice Laws in one case considered whether or not that was an appropriate level of proof. He said, not just that it would be, he also said that "a requirement of proof" of the type being argued for, which was, I think, the balance of probabilities, would,

In effect, he said that there needs to be a sufficient degree of suspicion. If you set a burden of proof in a conventional way, you will end up not being able to target the people at whom the policy is aimed.

Having said that, we accept the "balance of probability" standard of proof for the derogating order, because deprivation of liberty involves such an
 
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intrusion on people's rights, despite the difficulty that it imposes. The noble Lord, Lord Carlisle of Bucklow, suggested "beyond a reasonable doubt". We think that is wholly inappropriate. Unlike criminal proceedings, the orders are being made to prevent something happening in the future. We are trying to stop terrorist activity later. That is why the concepts of criminal burden of proof are not appropriate.

Lord Tebbit: Can the noble and learned Lord the Lord Chancellor tell me if the suspected acts relating to terrorism have to be within British jurisdiction, or can they be acts that it is believed are being planned in another jurisdiction?

Lord Falconer of Thoroton: The material relied on to justify the making of the order can come from anywhere.

Lord Tebbit: I was not asking about where the information comes from, but where the act that is feared is planned to be carried out. For example, it might be a suspicion that someone connected with ETA was planning an outrage in Spain. Would that be covered by these provisions?

Lord Falconer of Thoroton: Yes, it would be. The only jurisdictional requirement is that the "terrorist" is actually in the United Kingdom.

Lord Stoddart of Swindon: Will my noble and learned friend the Lord Chancellor remind me of his answer to Amendment No. 27, which states:

I must have missed the answer to that.

Lord Falconer of Thoroton: Amendment No. 27 is one of the three amendments that deals with voting and other electoral issues. We do not seek to interfere with the controlled person's political rights. In the majority of cases, therefore, the activities that are the subject of this amendment, as well as by Amendments Nos. 26 and 28, would not be affected. In rare cases, it might be that to vote in person or stand as a candidate would be inconsistent with the other necessary and proportionate restrictions on the controlled person's movements, but I regard that as extremely unlikely.

Lord Stoddart of Swindon: That is what I was afraid of. I recall that many people who have been suspected or convicted of terrorist activities have in fact been allowed to stand in elections. They do not have to electioneer only by going outside their prison cell or their house. If they stood in a parliamentary election, they would be allowed at least one free post. Do I understand from my noble and learned friend's reply that there are certain circumstances in which a terrorist subject can be prevented from standing as a candidate in any election in the United Kingdom?
 
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Lord Falconer of Thoroton: The words I used were

That is an important thought from my noble friend Lord Stoddart, which I need to consider. All my noble friend's thoughts are important, but that one is particularly so.

Lord Phillips of Sudbury: Is the noble and learned Lord the Lord Chancellor satisfied that, when he said a minute ago that this is not a criminal process, the reality is not that it actually fundamentally is? The sanctions are as severe as many criminal sanctions. The issue to which the whole business relates is the most serious form of violence. Has he been advised whether there is likely to be a finding in the European Court at Strasbourg, if it gets that far, that, on what is called autonomous meaning, this is going to be viewed as a criminal procedure, therefore breaching criminal safeguards in terms of standards of proof?

Lord Falconer of Thoroton: The reason I describe the process as not being criminal proceedings is that it is about not convicting someone of a criminal offence but taking action to prevent a person, or a group of people, doing something. I fully accept that the consequence of making an order is intrusive as far as the individual is concerned. Both because of the European Convention on Human Rights and because we, as a country, would always accept this, there has to be a process that ensures fairness. That is the process measured by Article 6. I believe that we satisfy Article 6.

Lady Saltoun of Abernethy: Amendment No. 17 stands in my name, but I shall not press it—at least certainly not today. However, I am not happy. It would be far more honest to put a suspect in prison, whatever the Law Lords may say, so that everyone knows where they are. That would be far more honest.

Lord Falconer of Thoroton: The Law Lords have said that that is unlawful.

Lord Carlisle of Bucklow: Perhaps I may ask a question about the amendment on the burden of proof. At the moment, it is right that, in the Bill as it stands, the Secretary of State has to be satisfied that there are reasonable grounds for suspecting someone. Later the Bill says that under a derogating order, he may make a control order imposing an obligation that is incompatible if he is satisfied on the balance of probabilities that that person is involved. In other words, he has brought in the standard of proof. Is the noble and learned Lord satisfied that he has done so in the amendments?

Notice has been tabled of noble Lords' intention to oppose the Question that Clause 2 stand part of the Bill. I hope that we shall debate it on Monday rather than today. However, at the moment that clause contains the standard of proof and there is nothing
 
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equivalent to the words "reasonable grounds to suspect" in Clause 1. We would then have a situation where, under the amendments that we have debated, a control order "shall be made" by the Secretary of State but the provisions would not say on what grounds.

Lord Falconer of Thoroton Amendment No. 55 brings back the burden of proof. It states:

If I have understood the noble Lord, Lord Carlisle of Bucklow, correctly, that is where it comes back in. In relation to the burden of proof for a derogating order, the relevant provision is subsection (7) of Amendment No. 80, on page 12 of the Marshalled List.

Lord Carlisle of Bucklow: It would have been helpful if we had had a little longer to study the amendments rather than receiving them all yesterday.

Lord Plant of Highfield: On the burden of proof point, although we shall return to it later, when my right honourable friend the Home Secretary gave evidence to the Joint Committee on Human Rights—it was an open session with the public present, so I do not believe that I am breaching any convention of the House by mentioning this—he was asked about the burden of proof for non-derogating orders and whether it should be the "balance of probabilities" as opposed to "reasonable suspicion". I cannot quote his answer verbatim, but it was more or less that there was no reason of principle why it could not be the "balance of probabilities"; it was just a matter of practicality. Are we to assume that the issue of practicality to which he was alluding, on which he did not elaborate, was the same kind of consideration in aid of which my noble and learned friend the Lord Chancellor has cited Lord Justice Laws?


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