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Lord Judd: I do not want to be tedious on this matter. However, I hope that the noble Lord will forgive me for saying that what he has just said could be interpreted—it would be very ungenerous, I am sure—as possible equivocation. Could he make it absolutely, categorically clear that, speaking from the Liberal Democrat Front Bench, he believes that "beyond reasonable doubt" would be the appropriate terminology, and that it is simply because of time pressures and expediency that he is settling for the alternative?

Lord Goodhart: As our amendments make clear, we believe that, in the circumstances that we now face, the balance of probabilities is the appropriate standard of proof for non-derogating control orders. We would have proposed and supported the higher standard of proof—in effect, the criminal standard of proof—for orders that amount, not to a restriction, but to a deprivation of liberty under Article 5. For the reasons that I have put forward, we do not intend to move such an amendment now, but my belief and that of my party is that that would be the appropriate standard of proof. If we get a chance to debate the Bill again, we will debate that issue separately and, no doubt, move to a separate vote.

Lord Phillips of Sudbury: I support my noble friend and wish to make a single point. On the role of the court, under Amendment No. 56, which would replace that of the Home Secretary, I believe that the intensity of pressure on a Home Secretary in exercising the very wide powers under Clause 1, is almost unreasonable for him to have to bear unaided. I think that the public will take the view that the wider the powers given to the Home Secretary under Clause 1 the more he would be expected to exercise them in a way that relieved the public of risk from terrorist activities. That may be unfair but it is a reasonable supposition. Surely, that in turn will put the Home Secretary of the day under enormous strain to be cautious in exercising those powers—cautious, that is, in exercising them rather than in refraining from exercising them. He or she will say, "I have been given by Parliament these unprecedented, enormously wide powers, in the expectation that I will use them to prevent a terrorist attack". If, therefore, there was such an attack, he or she may well come under an unfair, yet very intense, public outrage that those powers had not been used.

To give the judges the responsibility of exercising those powers under the non-derogating control orders is not only to give more objectivity to the process—as, plainly, it will do—but also to lend a degree of protection to the Home Secretary of the day in relation to this extraordinary measure. For that reason alone, there must be the best sense in having the court replace the Home Secretary in the exercise of non-derogating control orders.

Lord Clinton-Davis: I have great sympathy with the point which the noble Lord has just made. As the
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Committee will know, I have expressed intense reservations before about this Bill. I speak as one who cares about civil liberties issues.

I beg my noble friends to take into account the report on the Bill which has just been issued by the Joint Committee on Human Rights. In every material particular, the committee has concluded that we ought to be very careful indeed about abandoning the principles which we cherish regarding human rights. The onus of proof weighs very heavily on my noble and learned friend in concluding that we ought to interfere with that provision in any way. I sympathise with those who express the view that there ought to be a provision that abandons, in all material particulars, the standard of proof which we require in criminal cases. I do so with some hesitation, but—for the reasons already adduced—we have no alternative to that conclusion.

It is not my natural bent to differ with my noble friends. I do so now only because I feel very strongly about the provisions we are considering. We have another occasion—tomorrow, and, I think, on Wednesday—on which to come to a different conclusion. I plead with my noble and learned friend to do precisely that. As I have said, I can see no difference between derogatory orders—I am sorry; I meant to say derogating orders—and non-derogating orders. I cannot see where common sense implies a difference between the two. My noble and learned friend will have to persuade me and many others that the course that he is apparently approving should be favoured by this House. I do not think that he will succeed.

3.45 p.m.

Lord Waddington: There are the strongest reasons for the role of the judge being the same in the case of non-derogating control orders as in the case of derogating control orders. I touched on this matter in an intervention last Thursday. I mention it again because the Committee is owed a fuller explanation of the objections to the point that I made.

Looking at the list in Clause 1(3), I submit that it is impossible to say with anything like complete certainty which orders or combination of orders will be found by the courts to involve an infringement of Article 5. If it had been possible to make that distinction with any certainty, I suspect that Clause 1(3) would have been drafted in an entirely different manner. One would have found a list in Clause 1 of the powers which would involve derogating control orders, while the exercise of other powers would involve only non-derogating control orders. It is wholly unrealistic, and storing up trouble for the Government, to say that the judges should have one role in the case of derogating control orders, but an entirely different role in the case of non-derogating control orders.

Lord Monson: As a non-lawyer, perhaps I may ask the noble Lord, Lord Goodhart, whether it is not the case that, under recent legislation, if the police have reasonable grounds to believe that an individual may be planning to get involved in football-related disorder, that individual may have his passport removed, albeit on a
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temporary basis, and be ordered to report to the police at specified times. There does not appear to be any need for proof that there is a balance of probabilities that the individual may get involved in football-related violence.

Baroness Kennedy of The Shaws: Your Lordships know my position on the Bill. I think that it is wholly misconceived. I would not want to see orders being made on anything less than the criminal burden of proof. However, I shall support the amendments that have been tabled by the opposition parties, simply because they have to be better than the awfulness in the Bill. I would therefore urge Members of the Committee who are concerned about liberty to take the same course. When my noble and learned friend Lord Clinton-Davis—he is a learned friend, but I meant to say noble friend—accidentally referred to these as "derogatory" powers, he was perhaps using the right word.

As we come to a whole series of votes on such important issues, I should like to remind the House of a quote from Martin Luther King which I am sure is familiar to many on these Benches. He said:

That is what the Committee is being asked to do today. I hope that we will remember it as we are asked to go to the Lobbies.

Lord Elton: I rise to remind noble Lords that the principal amendment is Amendment No. 56, which substitutes a court for the Secretary of State. I also remind noble Lords that it is not just the current Secretary of State, but all the Secretaries of State down the perspective of years for the duration of the Bill, if we do not add a sunset clause. With closer and closer co-operation between the police and Government, the idea of a politician being able to put people that they do not like in prison reminds one of the motto of the National Lottery: "It could be you".

Lord Plant of Highfield: Like many other noble Lords I had a chance to speak on Thursday, so I shall be brief. However, since I am going to support the opposition amendment before us, I want to say a few words about my position. I am not opposed to control orders, but they have to be made as compliant as possible with our human rights legislation and with common law ideas of natural justice. These amendments go some way towards achieving that.

It is perfectly legitimate to restrict liberty for the sake of liberty, as the American philosopher John Rawls argued, or as Isaiah Berlin put it more poetically: freedom for the pike is death for the minnow. Sometimes we have to restrict liberty for the sake of liberty, but we should do so in a principled way that is consistent, so far as it possibly can be, with our existing human rights legislation.
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Given that, the decision being made by a judge on an application from the Home Secretary is the right way around. I also agree with the argument put by the noble Lord, Lord Kingsland, about the Director of Public Prosecutions. I am very pleased that the Home Secretary has committed himself to the view set out in his evidence to the Joint Committee on Human Rights that,

However, once this Bill becomes an Act and is institutionalised, there is a danger of non-prosecution at a lower standard of proof becoming the default position. That would be a very bad thing. So I am in favour of the argument about the role of the DPP.

On the burden of proof, as I explained to the noble Lord, Lord Carlisle of Bucklow, in the Cloakroom the other evening, I am as anxious about the standard of proof for derogation orders as for non-derogation ones because the test of "reasonable suspicion" seems far too low. Moreover, the point made by the right reverend Prelate that a much lower standard of proof in the form of reasonable suspicion might actually encourage the default position is one that I had not thought of.

For those reasons, I am keen on the idea of raising the standard of proof for non-derogating orders to the balance of probability and, as other noble Lords have pointed out, I see both types of order as similar in their effect on liberty. After all, my liberty is restricted when I am required to do what I would not otherwise do or required not to do what I otherwise would do. Non-derogating orders restrict my liberty in those respects in just the same way as derogating orders. So if the two kinds of orders are symmetrical, there ought to be the same standard of proof for both.

Although I am not unsympathetic to the view that the standard should be higher than the criminal standard, I thought that the point made by the noble Viscount, Lord Bledisloe, was very telling. Rather regretfully, therefore, I will support the idea of the balance of probabilities, but for both types of order.

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