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Moved, That, in the event that the Prevention of Terrorism Bill has been reported to the House, Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with tomorrow, to allow the Bill to be taken
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through its remaining stages that day; and that Standing Order 49 (Amendments on Third Reading) be dispensed with to allow amendments for Third Reading of the Bill to be tabled tomorrow.(Baroness Amos.)
The noble Lord said: As the Minister will remember, this issue was debated last Thursday. However, as this amendment is tabled for today, and a number of other amendments are grouped with it, I shall move the amendment and speak to it briefly, but I shall withdraw it at the appropriate stage.
We are dealing with the power of the Secretary of State to make orders that derogate from the liberty of the individual. The noble and learned Lord the Lord Chancellor has said that they are the gravest orders and that they involve, at least, house arrest.
The Bill as it now stands allows the Secretary of State to make such an order, imposing an obligation that is incompatible with Article 5 of the European Convention on Human Rights, if he is satisfied on a balance of probabilities that an individual is or has been involved in terrorism-related activities. I believe, as I said on Thursday, that that standard of proof is too low. Where the Secretary of State is minded to make an order which, it is accepted, is intended to deprive the individual of his liberty in the circumstances we discussed, he should at least be required to be satisfied beyond reasonable doubtnamely, on the criminal standard of proofprior to making that order.
As I say, there is no purpose in repeating everything that was said on the last occasion, but it is important to remind the Committee that we are dealing with the most serious orders which it is intended that the Secretary of State should be able to make. On that occasion I realised that the majority of those on both Front Benches, while accepting that there should be a clause which puts the burden of proof on the Home Secretary, nevertheless said that the standard of proof should be on the basis of the balance of probabilities. Therefore, it would be pointless to pursue an amendment which was bound to fail if that was the view of other Members of the Committee.
At least two noble Lords on the government Benches begged me not to withdraw the amendment at that stage because they felt, like myself, that the criminal burden of proof is the appropriate burden of
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proof for such an order. All I need say at this moment is that we debated the matter last Thursday. I beg to move.
The Earl of Onslow: My name is also on the amendment. Before we came into the Chamber I was nobbled by a Whip who said to me, "You are not to talk for too long". When I saw my name on the amendment I just thought to myself that you should not have to talk for too long in order to say that it is completely wrong to take away the liberty of a subject and lock him up on the balance of probabilities. I shall now sit down.
Lord Lloyd of Berwick: I support as strongly as I can the amendment proposed by the noble Lord, Lord Carlisle. The difficulty is that we are concerned with what are supposed to be civil proceedings. I do not think that that is how they will seem to the suspect who is made subject to these proceedings. The only analogy in the civil law that I can think ofI have mentioned this alreadyis the non-molestation order in domestic proceedings and the anti-social behaviour order. One only has to mention those orders to see how many million miles they are away from what is proposed under Clause 2.
If those were in truth and in reality civil proceedings, of course the balance of probabilities would be the right burden of proof. But here the consequences, as is accepted, are the deprivation of liberty, which is a criminal and not a civil sanction. It follows to my mind that the correct burden of proof, whether it be applied to the Secretary of State or the judge, is the criminal burden of proof: he should be satisfied beyond reasonable doubt before he makes an order with these consequences. That is why I support the amendment.
The Lord Bishop of Chester: It is difficult for those of us who are not legally qualified sometimes to follow all the details of these matters, but the comparison between the civil and the criminal standard arose recently in the Church of England when a new clergy discipline measure went through the Synod and was approved by Parliament.
Members on the Ecclesiastical Committee will know that there was much discussion about the Church moving from the criminal standard to the civil standard in the application of the discipline measure, particularly because for clergy their livelihood and the place where they live would be at stake. There was a strong mood, both in the Synod and to some extent on the Ecclesiastical Committee, to retain the criminal standard for that reason.
The Synod was persuaded to move to the civil standard because it was told that when more serious offences were under consideration the civil standard had a certain flexibility in it so that it would be more difficult to apply the more drastic, as it were, the outcome. That was recognised in the report of the Ecclesiastical Committee when it declared that the measure was "expedient". The Ecclesiastical Committee, as I recall, said that if a cleric's livelihood and home were at stake the civil standard approximates to the criminal standard.
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Is there flexibility in the application of the term "balance of probabilities", to recognise the point which the noble and learned Lord, Lord Lloyd, has just made that if someone's liberty is at stake, even if the standard is technically a civil standard, in practical purposes it needs at least to approximate to the "beyond reasonable doubt" standard?
We all agree that it would be much better for these cases to be prosecuted in the criminal courts. The noble and learned Lord, Lord Lloyd, has often and rightly made that point. But there is a danger of a temptation slipping in. If the standard of proof for a derogating control order is significantly lower than the criminal standard, will there not be a danger over the years for the authorities to default to it too quickly?
One also has to thinkthis point was slightly raised at Second Reading, but perhaps not enoughwhat the actual social impact will be of these orders. Somebody under house arrest will become a cause célèbre very easily. If that cause célèbre is seen to be under-girded by anything other than a fairly thorough standard of proofhowever we express it legallythere is a real danger of that cause célèbre being socially disruptive in ways we have not anticipated. So, what does the term "balance of probabilities" mean to a layman like me in relation to the sense of natural justice which has just been referred to?
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