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Lord Falconer of Thoroton: I accept completely that they could engage the other articles and infringe prima facie those other articles; but those are qualified rights. No derogation is required to engage or infringe them so long as there is a legitimate aim pursuant to which they are infringed and proportionate steps are taken.

What am saying is that the courts have to judge that, not this House. As a result, setting up a judicial arrangement whereby the court can consider the matter provides the protection that the citizen requires.

4.30 p.m.

Lord Maclennan of Rogart: I am most grateful to the noble and learned Lord the Lord Chancellor for attempting to answer my difficulties. However, is not Article 5 also a qualified right, so there is no distinction to be drawn in that way?

On a wider question on the whole approach, how will it be possible for the courts to be provided with the means to make the judgment that the noble and learned Lord proposes that they should be permitted to make? As the courts are to be deprived of the evidence that might be advanced by those against whom the orders are directed—if they themselves know the substance of the evidence that they have to rebut—is it not more likely that they will be faced with the task of rubber stamping?

Lord Falconer of Thoroton: No, the courts would have access to all the evidence. The issue in such cases is not whether the court has access to the evidence, but whether the citizen who makes the application sees all the material. That is the reason for the special advocate procedure. So the court would have sufficient material to judge whether there was a legitimate aim against which the order had been made, whether the steps were proportionate and what was the level of risk.

Baroness Kennedy of The Shaws: Has the noble and learned Lord the Lord Chancellor—a Labour Lord Chancellor—noticed that among the critics of this Bill are a former Home Secretary on the Opposition Benches and members of the judiciary, such as the noble and learned Lord, Lord Donaldson, none of whom could be considered lily-livered liberals? Has he
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noticed that they are critics of what he is proposing to the House and that they are concerned by the illiberality of the legislation?

Lord Falconer of Thoroton: We have to do what we think is right. We think that it is right to seek to strike a balance between protecting people from terrorism and, at the same time, preserving people's civil liberties. I have noticed the widespread expression of views. As someone said to me the other day, "It is a pretty pass when the headline in the Morning Star reads 'Back the Law Lords'". That is an odd grouping.

Baroness Ludford: I was not present at Second Reading as I was fulfilling other duties. However, have I understood correctly that the noble and learned Lord the Lord Chancellor is to table another amendment to institute what he said about the scope of appeal and bringing in proportionality? As I understand it, there is only the judicial review standard on the face of the Bill. Secondly, the importance of what is happening here this week will echo around Europe. We are talking about the European Convention on Human Rights and what we enact into UK law will be watched very closely in the rest of Europe.

Lord Falconer of Thoroton: I believe that that is entirely right. On the point made by the noble Lord, Lord Lester, I believe that that is already in the Bill. However, I want to make it clear that, in relation to a non-derogating order, the court can consider that proportionality is a legitimate aim in relation to the convention, as I said on Thursday. If that is not in the Bill, the Bill will be amended to achieve that aim.

I turn to the involvement of the DPP, which we discussed on Thursday. The position of the Government is that a control order should be sought only where a prosecution is not possible. We submit that it is not appropriate to put the DPP on the face of the Bill, as proposed, but we give a clear undertaking that, before any application is sought, the Home Secretary will have satisfied himself that prosecution is not a possible alternative.

Lord Elton: The noble and learned Lord can take that position only for the present Government. I return to my earlier point: we are legislating for the future, unless we have a sunset clause.

Lord Falconer of Thoroton: I respectfully submit that that position is one that any sensible government would take in relation to these orders. When considering whether a matter is proportionate, the court would be able to say that it would not be proportionate if prosecution were possible. So in practice the court would have to see material and ask, "Why don't you prosecute?", and if there were no satisfactory answer, it would not be a proportionate order.

I turn to the most important issue, which is burden of proof. Control orders, as the noble Lord, Lord Kingsland, said, are preventive orders. They are designed to prevent atrocities happening in future. They are not designed to punish a person for past
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events. They require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures, from a potentially wide range, are necessary and appropriate to meet those risks. The assessment must be carried out on the basis of a wide range of complex intelligence material and would involve inferences and evaluations being made in relation to matters affecting national security.

For those reasons it is not an area where the Secretary of State or the court will deal with proof of issues of fact. Essentially it is an exercise in risk assessment and evaluation of intelligence material.

The Earl of Onslow: If the Home Secretary thinks that Mohammed al-Smith wants to do, or is planning to do, something, and he has talked to others about doing something nasty, can the noble and learned Lord explain why that is not conspiracy? If it is only one man dreaming, the Home Secretary cannot possibly get inside his mind. If there is evidence that someone wants to do something very nasty, I do not understand how he has not, by the very nature of the situation, committed a criminal offence or a common law offence of conspiracy.

Lord Falconer of Thoroton: There are two problems with that. On the previous occasion I gave the following example: if a foreign intelligence organisation has arrested someone, interrogated him and acquired information, that information will almost certainly not be available to an English court, but it might be regarded by sensible people as reliable. Secondly, there may be information that does not constitute the high standard of proof that is required in a criminal court, but, quite legitimately, it may give rise to a particular risk. Thirdly, someone could be preparing for a terrorist act which does not constitute a criminal offence at the moment but, legitimately, it gives rise to a possible risk. Those are three areas where control orders could provide practical assistance but where prosecution would not be possible.

On the burden of proof, I shall deal first with non-derogating orders as opposed to derogating orders. In relation to non-derogating orders, having reasonable grounds to suspect that an individual is or has been involved in terrorism-related activities is just one part of the overall assessment of the risk posed by the individual and the measures necessary to meet that risk. That is the first part of a two-pronged test in relation to a non-derogating order.

The courts have recognised in very similar contexts that that is an appropriate test to apply. In the case of Rehman, which concerned a deportation order on the ground that it would be conducive to the public good in the interests of national security, the noble and learned Lord, Lord Hope, said:

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The noble and learned Lord, Lord Hope, is saying that conventional burdens of proof issues are not appropriate in considering this matter. The reasonable suspicion test is the appropriate one.

I shall give way to the noble Lord, Lord Lester of Herne Hill, in two minutes, but perhaps I can complete my line of argument.

In effect, Lord Justice Laws, in a subsequent case in the Court of Appeal, thoroughly endorsed the Rehman approach and said what, in effect, I am saying, which is that this is about evaluating risk and identifying preventive orders that are consistent with people's human rights, but provide appropriate protection for the rest of the public in relation to it. In both those cases, the judges said, rejecting arguments made by counsel, that there should be some conventional standard of proof, and that reasonable suspicion was an appropriate level of proof. We accept that reasoning in relation to non-derogating orders. However, because a derogating order deprives someone of their liberty, we impose a higher standard—namely, balance of probabilities—which we recognise would make the granting of orders in those circumstances very difficult indeed. As people are deprived of their liberty by derogating orders, we take a different stance on them.

Finally, I shall quote what Lord Justice Laws said about the argument that a burden of proof like balance of probabilities should be inserted. He said:

That is the distinction that has been drawn.

Noble Lords have a choice as to whether, in the light of what Lord Justice Laws has said, and having heard all the arguments, that balance of probabilities is the right course. If your Lordships conclude that it is, as Lord Justice Laws said, you will go a long way to frustrating the purpose of the control orders. We come back to where we started from. Do noble Lords think that we need something apart from the criminal process and surveillance? We believe—and we are told as much by the security services and the police—that we do.

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