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Lord Rees-Mogg: I should like to support the amendment on these grounds. I think that the Committee would be very anxious to avoid miscarriages of justice arising out of this Bill if it becomes an Act. We know that miscarriages of justice tend to arise when there is a fear of terrorism or in terrorist cases. Regrettably, there are many examples of that in our fairly recent history, even when the criminal standard of proof was being applied. It must logically be the case that there will be more miscarriages of justice if the standard of proof is probability rather than reasonable certainty. Reasonable certainty is therefore preferable. The consequences in terms of the confidence of any community which may be affected by this Bill will depend on miscarriages of justice, which will happen, being kept to a minimum.

Viscount Bledisloe: I have great sympathy with the amendment, which seems at first sight to be right. Perhaps the proponents of the group of amendments could explain to me how they resolve the following problem. As I understand it, the Government have resort to control orders only where they cannot bring a prosecution. They cannot bring a prosecution because they dare not reveal to the defendant the evidence that is before them because it is secret or will imperil their sources. If the defendant—as I shall continue to call him—cannot be told the evidence against him, how on earth can any court or any person ever be satisfied beyond reasonable doubt as, by definition, they cannot hear what the explanation of the accused persons is because he cannot behold the evidence?

So if you can make a control order only when you are satisfied beyond reasonable doubt, are you not in fact saying that you can never make a control order?
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The defendant cannot be given the evidence against him. Therefore the court cannot know. There is a lingering doubt that it has the wrong bod and that if only he could be given all the information about him, he would be able to explain it away. I do not see the way out of that dilemma. Does not this apparently very sensible amendment defeat the whole purpose of the Bill?

Lord Kingsland: This group of amendments essentially covers three issues. First, it covers the issue that has already been much debated about whether the burden of proof should be on a balance of probabilities or beyond reasonable doubt. Secondly, it covers the question of whether the appropriate test should be a judicial review test or a test on the merits, with the court looking at the Government's assertion that reasonable suspicion is justified. Thirdly, it covers the stage at which the Director of Public Prosecutions ought to intervene to give a view on whether a prosecution should be brought, perhaps making the control order procedure otiose.

I shall start with the last point, which we have already debated. It is crucial that every effort is made to ensure that the prospective subject of the control order can be prosecuted before the reluctant conclusion is reached that, despite the fact that prosecution is not possible, nevertheless the person must be subject to one or other of the restraints in Clause 1.

We believe that it is crucial that the Director of Public Prosecutions is brought in at the beginning, and that only when the director certifies that a prosecution is not possible can the control order procedure kick in.

There might be two reasons why the Director of Public Prosecutions reaches that conclusion. The first is when the alleged danger is not capable of falling within any definition of any crime on the statute book. The second is when, as the noble Viscount, Lord Bledisloe, said, it would be counter-productive to the national interest to reveal to the prospective subject of the control order either the source of the intelligence or the manner in which it had been garnered. In those circumstances, one must then reluctantly move to the control order procedure.

I am always extremely nervous about disagreeing with my noble friend Lord Carlisle of Bucklow and, perhaps even more so, with the noble Earl, Lord Onslow. Nevertheless, on this occasion the Opposition reached the conclusion that the balance of probabilities test is more appropriate than the beyond reasonable doubt test.

I can truncate my submissions by simply asking the Committee to recall the speech that has just been made by the noble Viscount, Lord Bledisloe. It is precisely for those reasons that it will be almost impossible to impose a control order if the judge is required to find that the case is established beyond reasonable doubt.

As the noble and learned Lord the Lord Chancellor said last Thursday, control orders are all about prevention. They prevent anticipated adverse action. In those circumstances the authorities are always in the
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business of trying to assess risk. The people involved will already have been under surveillance for a long time, and there will come a point when imminent danger is perceived. At that moment the state will intervene.

The balance of probabilities test is a much more appropriate way to assess risk than a test of beyond reasonable doubt. I thought long and hard before reaching that conclusion. I do not like that conclusion, but if it is impossible to prosecute somebody who is about to do something very dangerous, we have to accept that the balance of probabilities test is the more appropriate.

I turn to the subject of my Amendment No. 52, which I shall not move in favour of the Liberal Democrat amendments which deal with the same matter. The Government do not have a case for asserting that non-derogating orders ought to be dealt with by judicial review, whereas derogating orders should be dealt with by a merits test. Both sets of orders ought to have the same test, and the judge should be entitled to go beyond the principles of judicial review, and look at the facts on which the Government base their allegation that somebody should be restrained.

I have another reason for saying that. How can the authorities know at the time they first seek an order whether it will contravene Article 5 of the convention? There is a range of possibilities in Clause 1(3). We do not know what combination of those forms of restraint the Government will go for, and the Government do not know what conclusion the judge will reach about the relationship with Article 5. Therefore, it is common sense that the procedure should be the same. To decide otherwise would not only be an inappropriate way of confronting the Article 5 issue, but would waste an enormous amount of everybody's time.

Lord Campbell of Alloway: I agree with my noble friend. I shall be brief.

We are dealing with intelligence, much of which comes from abroad by telephone and other means. When dealing with a mass of intelligence it is unlikely that you can be certain beyond all reasonable doubt whether there is a reason to make a prevention order.

Therefore, I, too, with regret, have to accept the logic of my noble friend Lord Kingsland. I think he is right. I do not see how the measure will work in practice if it is otherwise.

Lord Goodhart: This is a large and extremely important group, which contains some very important amendments in our names, so it is necessary for me to speak to them now.

Our amendments in the group are Amendments Nos. 56 to 62, 73, 81 to 90 and 113 to 115. Except for Amendment No. 73, which deals with a minor point, all are amendments to government Amendments Nos. 55, 80 and 112. We hope to amend those government amendments, which we would then support, as amended by us.
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The amendments have four purposes. The first, and perhaps the most important, is to ensure that all control orders are made by judges and not by the Home Secretary. The lead amendment on that is Amendment No. 56. That issue was originally raised in the debate on Thursday but not voted on then because we decided to concentrate votes today and tomorrow. If we succeed today, we shall have to sort out government Amendment No. 1 on Report. We had a full debate on the principle behind this issue on Thursday.

The Bill imposes serious restrictions on liberty which may amount to the actual deprivation of liberty in some cases. It is an essential principle that the Government make the laws about the restriction or deprivation of liberty but it is the courts that apply those laws to individual cases, unless there is a crisis so extreme that the Civil Contingencies Act has to be invoked. The Government have accepted the principle that the decision should be taken in individual cases by judges, not the Home Secretary, for derogating control orders, but not for non-derogating control orders.

We see no logical distinction between the two kinds of order for this purpose. The Government offer only judicial review for the non-derogating control orders. That is inadequate because the court is not making the order; the court can quash the order only if the procedure is defective or if the Home Secretary's decision is unreasonable. Indeed, judicial review would probably not meet the test of a fair trial under Article 6 of the European Convention on Human Rights which, we believe, will apply to control orders. That was a brief coverage, but in view of the full debate that we had on Thursday I propose to add nothing further.

3.30 p.m.

The second purpose of the amendments is to have a single procedure for all control orders. The lead amendment on that is Amendment No. 81. The Government's new clause, introduced by Amendment No. 80, introduces a new procedure, which we regard as broadly satisfactory, that applies only to the making of derogating control orders. We want to extend the new clause to non-derogating control orders as well.

Amendments Nos. 82 to 85 and 88 to 90 are consequential on that. They are not strictly consequential on the decision that all control orders should be made by a judge, because it would still be possible to have two different procedures, but pretty close to it. If all control orders are to be made by a judge, it is surely right that the same procedures should be followed for both derogating and non-derogating control orders. In particular, there must be an immediate preliminary hearing, as provided for by the new clause, with a temporary order made by a judge, followed by a full hearing and confirmation, or modification, or revocation, of the temporary order as may be appropriate. That is an essential supplement to the decision that all orders should be made by judges.

The third purpose of these amendments, and the one that I have found the most difficult of all, is to raise the standard of proof to the balance of probabilities.
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The lead amendment on that is Amendment No. 58. I cannot see how anything less than the standard of balance of probabilities could justify the making of a control order. If someone, on the balance of probabilities, is involved in terrorist activities, it is reasonable to allow the courts to impose proportionate restrictions, falling short, at any rate, of deprivation of liberty.

As used in the Bill, "reasonable grounds for suspicion" is a weaker test than that of balance of probabilities. It seems plain that we cannot impose a control order on someone who may possibly be involved in terrorist activities but more likely than not is not involved in such activities. That would result in restrictions on the liberty of innocent people, and that is surely the quickest way to alienate the communities from which those people come. We should therefore have the standard of balance of probabilities as the minimum requirement before any control order can be made, not just derogating control orders.

We have very seriously considered the question whether there ought to be a higher standard, at any rate, for derogating control orders, and whether that standard should be basically equivalent to the criminal standard. If we had had more time to debate the matter, I would very much have wished to put it forward for debate; indeed, there is an amendment tabled in our name that would achieve that result. But one must look at where we are now. The Government have put us into a situation where we must move very quickly indeed. We recognise that there are arguments—those, for instance, put by the noble Viscount, Lord Bledisloe—for saying that the balance of probabilities should apply throughout.

The noble Lord, Lord Kingsland, has made it clear that the Conservative Front Bench does not support a proposal for a higher standard of proof on derogating orders or a standard of proof higher than that of the balance of probabilities. That being so—and I regret that it is the case—I believe that the appropriate course for us to take is not, on this occasion, to press for a higher standard than the balance of probabilities. I regret it, and I am sure that it will cause regret to many members of my own party, but the situation in which we have been placed by the Government—the extreme shortage of time—makes it inappropriate to press amendments on which it is unlikely that we will succeed. I hope that we will in due course have a further debate on a successor to this Bill, following a sunset clause, in which this issue can be redebated.

The fourth and final purpose of our amendments is to make it a requirement on the face of the Bill that no control order can be made where there is a realistic prospect of a successful prosecution. The arguments on that point were put very firmly by the noble Lord, Lord Kingsland, and I do not intend to add to them. It is plain that control orders should be orders of last resort and not of first resort. There are other very important issues in the Bill, which appear later in it and not in this group, such as due process, rule-making, and reviews and sunset clauses. Those will be reached in due course. All the issues in this group were debated to a significant extent on Thursday. I hope that we will
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be able to speak and vote on those issues relatively quickly and move on to the other important issues later in the Bill.

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