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Lord Lester of Herne Hill: Since I was not able to be present for the Second Reading debate, I should like to make one or two brief points. First, I am no longer a member of the Joint Committee on Human Rights and therefore I am in a good position to say how pleased the House ought to be with the speed with which the committee has been able to produce not one, but two reports under great pressure of time. I am only sorry that that pressure of time has prevented the committee dealing with all the issues. It is plain that it had to concentrate on addressing only the most important, and I agree entirely with what has been reported.
Secondly, on the standard of proof, the great advantage of a standard based on probability is that the courts have made it quite clear that that is a flexible standard and that the more serious the interference with basic rights and freedoms, the higher the standard will be within the spectrum of probability. Therefore the great advantage of the standard of probability, if it
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is adopted by the House, is that it will give the courts the necessary flexibility so that, for example, where a fairly serious control order is sought, they will no doubt require a higher standard of probability than they would for an order seeking minimal interference.
I continue to be puzzled by the Government's approach to judicial involvement. I cannot understand why, if a warrant is needed from a magistrate merely to search premises or papersthat is often a ritual, but it is an important safeguardthe Government have resisted the notion of a similar form of judicial control from the outset.
Last but not least, I have enormous respect for Sir John Stevens, the retiring Commissioner of the Metropolitan Police, but I very much regret the headline in yesterday's News of the World over an article:
Indeed, one or two passages in the piece surprised me, given my respect for Sir John. He suggested, for example, that the Law Lords had instructed that the Belmarsh detainees should be released immediately. That is just wrong because it was not within their remit. More importantly, however, he suggested that there is a human rights lobby that is somehow acting against the interests of the people of this country. I am sure that that is not the view of the Government.
Lord Donaldson of Lymington: I strongly support the substitution of "court" for "Secretary of State". Earlier my noble and learned friend Lord Lloyd said that the only two equivalent quia timet preventative orders he had been able to find in civil proceedings were non-molestation orders and ASBOs. While I agree with him that they are many miles away from this, they are in fact a million miles away when we note that those two types of order are imposed by the courts. It is unique in civil proceedings for a Secretary of State to be able to proceed on his own and without hearing the views of the person to be subject to these control orders. All that is left to the person is the right to appeal. That is wholly unique.
I would add one cautionary word about using the courts to make the order. It ought to be a preliminary order, a temporary one subject always to the requirement to look at the merits of the case put by the person subject to it. By all means have a preliminary ruling without that requirement, but it must be followed almost immediately by a substantive investigation by the court.
Lastly, as has just been pointed out, it is absolutely right that the civil burden of proof is immensely flexible. The greater the seriousness of the allegation, and of course of the possible consequences, the greater care the court will take before it is satisfied on the balance of probabilities. Other considerations will enter into the balance.
Lord Forsyth of Drumlean: I rise to make one brief point. I do not know if the Lord Chancellor had an opportunity to watch the BBC "Question Time"
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programme last Thursday night. I ask that because the audienceadmittedly a BBC audienceexpressed pretty much universal astonishment at the provisions in this Bill. There is no time to go over all the arguments, but I wish to put one point to him in respect of the arguments that have now been put all around the House for treating derogating and non-derogating orders in the same way and subjecting them to the same tests and procedures.
No doubt the Government will get their Bill in the end, but laws need to carry consent. Just listening to the arguments being put forward in this House by experienced and knowledgeable lawyers, or by former Home Secretaries such as my noble friend Lord Waddington, or by noble Lords such as myself who cannot understand the distinction if you have a combination of non-derogating restrictions, how do we expect this to carry the consent of the country? If someone is told that they cannot go to their place of work, that they cannot go on holiday and that they cannot see their friends, and they are told, "You do not have these rights that would apply if it were a denial of liberty because all these restrictions are not a denial of liberty", that flies in the face of common sense. It will not be understood, it will not carry consent and it will be used by the very people whom Ministers are trying to undermine to whip up support for their cause.
So I say this to the noble and learned Lord the Lord Chancellor: think about this proposal in practical terms. Consider what Rory Bremner would make of the provisions set out in Clause 3(2) and the argument that this is not a restriction on liberty, and how that would be interpreted in the country.
Lord Lloyd of Berwick: Perhaps I may add just one or two sentences, in the light of an observation made by the noble Lord, Lord Phillips. He took me a bit by surprise when he said that he was supporting Amendment No. 56 because it would mean that the judge would be there "to protect", I think he said, the Secretary of State. That was the ground on which he was going to support the amendment. Exactly the opposite is true. Judges are not there to protect Secretaries of State. They are there to stand between Secretaries of State and the individuals, in case individuals happen to be innocent. That is not a ground on which we should support the amendment.
As Members of the Committee know, I am against control orders altogether. If there are to be control orders, whether made by judges or by Secretaries of State, I can see no answer to the argument that the same procedure ought to apply to both. On that I am entirely in agreement with the amendment, which is now supported on all sides.
Lord Phillips of Sudbury: Perhaps I may briefly clarify my point in response to the noble and learned Lord. I was not seeking to protect the Home Secretary,
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but to relieve the Home Secretary of a burden that is much more objectively undertaken by a judge. Forgive my inappropriate use of "protect".
Lord Ackner: I would like to make it clear that I think that the House and the country have been rushed into a wholly unsatisfactory position. I appreciate that compromise has become essential, but that compromise is the product of a wholly unnecessary, rushed approach to a significant piece of legislation. I would therefore like to voice my unhappiness. Undue emphasis on speed has brought about the obligation to compromise some of our most serious and lasting values.
In view of what has just been said, it would be proper to say that we have found ourselves in an immensely difficult situation. We, too, have felt that we are dealing with one of the most profound issuesabsolutely central to our responsibilitieswith which we have ever been asked to deal. We have found that the time constraints have made that task very difficult indeed. That is why we had no option in the end but to prioritise our discussion.
I should like to make three points. First, we would all agree, whatever our position, that there is not a perfect solution. We are going for the best possible available solution. I respect the argument, and certainly the quarters from which it comes, that the judge should not be put in the position of taking over political responsibility. However, when I look at statements by the Government, not least by the Prime Minister and Home Secretary, I think that they are to be commended for their candour. Both, it seems, have been at pains to say that they would not want to be accused by the public of not having done everything possible to protect the public.
That seems a very responsible political position, but that is precisely why they are not in the best position to judge what should be done with someone who has been apprehended and arrested. That is exactly whybecause they have that responsibility. Arguably, that responsibility undermines their objectivity in this situation.
My second point is related to what the noble Lord, Lord Forsyth, said. I do not live my life in legal circles. I have been involved in community work. I am accustomed to community dynamics. What has always seemed crucial to me in the credibility of the administration of the law in our country, is that we take seriously the issue not only of justice being done, but of it being seen to be done. The difficulty is that in the present security situation it is not possible for it to be transparent all the time. That is why we should do everything possible, push as far as we responsibly can, to demonstrate that the proper processes have been followed and that cases have been carefully and objectively considered.
My last point is simply that I happen to believe that we are facing not only one of the greatest human rights issues with which we have ever been faced, but also one
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of the most dangerous situations we have ever faced. I believe that history will never forgive us, in the pressure and acute nature of the danger we face, for doing things that prove counter-productive, historically, in winning the battle for hearts and minds.
We shall never be able to eliminate the possibility of terrorism. The best way, the only effective way, in which we shall be able to contain those dangers is to win the battle for hearts and minds. That is why objectivity, due legal processes and the rest are so important.
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