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Lord Desai: As a non-lawyer, I have been following this debate carefully. On Thursday I was persuaded that it was not good enough for a judge to replace the Secretary of State in giving orders. The noble and learned Lord, Lord Ackner, and many others said that judges were unhappy at being made to do the job of the Secretary of State. Then I thought that the noble and learned Lord, Lord Donaldson, had proposed a third way. I am now lost about what happened to the third way. The third way was a good way.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): This is an incredibly important debate. It follows on from the debate that we had on Thursday. The starting point of the debate and the first issue is whether noble Lords believe that something beyond surveillance and short of the criminal process is required. It is the view of the security services that it is, it is the view of the police that it is, it is the view of the committee of the noble Lord, Lord Newton, that it is. We think it is necessary in the face of the new threat that terrorism poses to this country.

I understand that the position of the Conservative Party and of the Liberal Democrat Party is that they too support the concept of something that is not a criminal process, some sort of court order that restricts the movement or activity of the subject and assists the fight against terrorism. We take the view strongly that that is required, but we do not take the view that that should be done by throwing civil liberties out the window. We think that it has to be done by balancing civil liberties against those requirements.

That is the starting point. If you accept that starting point, as the three Front Benches do, as the law-enforcement agencies do, as the independent bodies that have looked at it do, then I believe that the task for this House and another place is to seek to craft a solution that balances civil liberties against the need to protect the nation in a way, to pick up the words of the noble Lord, Lord Forsyth, that has common consent. That, I believe, is the work that we should be engaged upon.

This group of amendments raises four issues. First, should the court be involved first, before an order becomes effective, in relation to a non-derogating order? That is an order that does not deprive somebody of his liberty.
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We say that is neither necessary nor appropriate for the following reasons. The judgment about whether security will be assisted by a non-derogating order is made by the Home Secretary in the first place; and then, in order to protect civil liberties, there must be proper judicial involvement. The Home Secretary will assess the risk to the nation and ask himself whether the intrusion on an individual's rights—and this is not about deprivation of liberty but about the individual's rights, for example, to associate with someone else or to be in contact with other people—is justified by that risk.

The Home Secretary makes the order in the first place and the arrangements then involve the matter coming before the court as quickly as possible. We need to consider whether the Bill should be amended to ensure that the matter comes before the court as quickly as possible. In applying a judicial review test, the court considers, on the basis of the evidence put before it, whether the risk that the Home Secretary has identified is such that it justifies the intrusion on to that individual's rights. In effect, it is asking whether the intrusion is justified by the risk identified by the Home Secretary.

That is a very sensible judicial way of looking at matters and is a perfectly possible task. It also makes absolutely clear the Home Secretary's role and the judge's role. There is clarity and protection. That is why we submit that, in relation to non-derogating orders, the Home Secretary should make the order in the first place and then, within a very short time indeed, the matter should come before the court. In relation to non-derogating orders, it should be clear that the Home Secretary makes the judgment, but subject to judicial control.

Lord Forsyth of Drumlean: The point has been made many times—perhaps I am being thick—but I do not understand, and the Lord Chancellor has not really explained, how it is, for example, that, as he said at an earlier stage in the debate on this legislation, a curfew restriction would not be a deprivation of liberty.

If you are an ordinary mortal and not a lawyer, and you are told that you have to stay in a certain place and are not allowed to leave it, you think that is a deprivation of liberty. I understand that the Lord Chancellor is making a distinction between the provisions in the European convention, but ordinary mortals do not understand the distinction. It seems to be a deprivation of liberty if you are told that you cannot go to your place of work, that you cannot have certain people in your home and that you have to stay in your home at a certain time. People do not make a distinction between that and house arrest.

Does the Lord Chancellor see the point? Can he help me to understand why he says there is clarity in respect of derogation and non-derogation orders? For me, it is as clear as mud.

Lord Falconer of Thoroton: We draw the line between the two because the European Convention on Human
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Rights draws the line between the two. There needs to be a lawful basis—one selected not by the Government but by an accepted body of jurisprudence—as to why the distinction is drawn. It would not be enough for us to say, "We draw the line here but not there". Let us draw the line based on the European Convention on Human Rights, to which this country has signed up.

Of course it is possible to say that the connection between the lower end of the derogating order and the upper end of the non-derogating order might be close, but in practice there will be a very significant difference.

Baroness Hayman: I thank my noble and learned friend for giving way. Is it not true that it is really difficult to find that distinction when my noble and learned friend has accepted that a combination of non-derogating orders might, even within the technical framework of the European convention, amount together to a deprivation of liberty? I recognise what he says about needing a legal basis, but we are in the process of creating that legal basis in UK law.

Lord Falconer of Thoroton: If you said, "You cannot go out and see this person and you cannot go out and see that person; you have got to be in your house from six in the evening until midday the next morning", any sensible person would say that constitutes a deprivation of liberty even though it is taken from the Clause 1(3)(c) list identified by the noble Lord, Lord Forsyth. There will not be a great deal of difficulty in identifying what is or is not a deprivation of liberty.

The non-derogating orders intend to focus on matters such as reporting to the police a particular number of times a week and not seeing individual people. It is very important that we take an approach based in law rather than distinctions drawn simply for the purpose of the Bill.

4.15 p.m.

Lord Carlisle of Bucklow: To my mind, the Lord Chancellor has not answered the question raised by the noble Lord, Lord Forsyth. The noble and learned Lord said that we have to make a distinction because the distinction is clear in the convention itself. But Article 5 states that everyone has the right to liberty. On what basis is the Lord Chancellor saying that a curfew, or a refusal to allow someone to work somewhere or to go to different people's houses, is not a restriction of liberty?

Lord Falconer of Thoroton: Under the jurisprudence of the European Convention on Human Rights it is not a deprivation of liberty. It might well constitute infringements of Articles 7 to 11 but, as I said during the debate on Thursday, that matter does not require a derogation and can be dealt with by the courts. We see as fundamentally different the deprivation of liberty that derogating orders could involve.

The Earl of Onslow: When we passed the Terrorism Bill, the Lord Chancellor's colleagues were making
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exactly the same noises about Part 4, saying that it was not against the Human Rights Act. Almost as night follows day, someone will go to the court and prove the Lord Chancellor wrong. What will happen then? Everyone else will have an enormous amount of pleasure in saying, "I told him so".

Lord Falconer of Thoroton: The Bill provides that you can make a derogating order only if you have derogated from the convention. We are not derogating at the moment. If any order constitutes a deprivation of liberty, it will be struck down by the courts. So we are providing judicial protection against any deprivation of liberty.

I think the noble Lord, Lord Lester, should intervene first; then the noble Lord, Lord Brittan, and then my noble friend Lord Clinton-Davis.

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