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Lord Lester of Herne Hill: I intervene because I am now hopelessly bewildered by what I have just heard. I thought the noble and learned Lord the Lord Chancellor said a little while ago that the court would effectively be in the same position as the Strasbourg court; that is, it would look at the necessity and proportionality of a restriction on a fundamental right or freedom. That is what I thought he said, and he nods.
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If that is so, will he agree with me that, because the order has an impact on a fundamental convention civil right, the burden is upon the state to justify the interference? That is standard. We know from Strasbourg that the exception must be strictly construed. The burden of proof is therefore on the Home Secretary, and the standard of proof—whether one calls it "probability" or otherwise—must provide sufficient cogent and convincing evidence to justify the interference. Quoting Sir John Laws on other matters is not central to the point here, which is that the burden is upon the Home Secretary to justify according to proportionality, and he must do so by cogent and convincing rebuttal evidence.

Lord Falconer of Thoroton: No, that is completely wrong. The test is, "What is the risk?". We are talking about—convention rights are engaged here—the level of risk for the future, which cannot be proved by conventional burdens. If the degree of risk is sufficient, the steps that can be taken can be justified. There is no difficulty in asking oneself, "Is the risk shown by the Secretary of State"—and he has to show that risk—"such that the steps he has taken are proportionate and justified?".

Lord Brittan of Spennithorne: The noble and learned Lord the Lord Chancellor has cited judicial authorities and general arguments in favour of the proposition that, when risk is being considered, the burden of proof is an irrelevant and improper consideration. If that is so, on what grounds of principle—as opposed to political expediency, which may be convenient for us—does he then introduce the concept of the balance of probabilities in the most serious cases, where he wishes to take the most draconian measures?

Lord Falconer of Thoroton: Because they are the most serious cases, and because depriving someone of their liberty, which requires a derogation from the European convention—of which the noble Lord has said that he is second to none in his admiration—requires a special step to be taken. That is the view we take, which is why we have introduced this additional measure.

Lord Brittan of Spennithorne: It is not just a question of a "special step". A moment ago, the noble and learned Lord was arguing that the whole question of risk was completely divorced from the question of the balance of probabilities. Whether or not it is a special consideration, it is an illogical step to be producing, even though it may be politically convenient. Surely the right step is to accept the argument of the balance of probabilities for both types of order.

Lord Falconer of Thoroton: No. I respectfully submit to the Committee that we must recognise that the further up the spectrum we go, the more both the judicial protections, and therefore the protections of the citizen, need to be. That is the argument why we must insert a very high hurdle before we deprive someone of their liberty, and that is entirely appropriate.
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I have dealt with the four critical points. I would only weary the Committee by going on and on. I submit, in those circumstances, that noble Lords agree to the Government's amendments that I described before, and not move their own amendments.

4.45 p.m.

The Lord Bishop of Chester: I do not wish to extend things unnecessarily, but can I press the noble and learned Lord the Lord Chancellor to say a little more about what the test of balance of probabilities actually means? He has just told us that it will be "very difficult" to get an order on the balance of probabilities. To a lay person like myself, that balance could be 51 per cent one way and 49 per cent the other, which sounds different from being "very difficult".

The noble Lord, Lord Lester of Herne Hill, picked up on something I said in my earlier contribution, saying that the civil courts were used to a flexible application of the balance of probabilities, so that if you intend to make a control order to deprive someone of their liberty, you am not that far from the criminal standard—bearing in mind the technical difficulties with that, as we heard earlier. Can my noble and learned friend confirm to us that his understanding is the same as that of the noble Lord, Lord Lester of Herne Hill?

Lord Falconer of Thoroton: Regarding the balance of probabilities, the test is defined as whether it is more likely than not that the suspect is or has been a terrorist. The courts have said in other contexts that the more serious the allegation you make against someone, the more you have to prove it is more likely than not that they are a terrorist. A very serious allegation is being made, and it is for the court to determine how they would construe it. The flexibility means that the standard of proof can go not down but, rather, goes up. If the right reverend Prelate was wondering whether, in these circumstances, the balance of probabilities is closer to "beyond reasonable doubt" than it would be in other cases, I cannot say so for certain, but that would be the trend.

Lord Forsyth of Drumlean: Before the noble and learned Lord the Lord Chancellor sits down, and while he is in the mode of helping laymen, I will just return to the point about the curfew, where someone is prevented from going out at certain times.

I do not want to repeat that point, but if the test is not to be balance of probabilities, and if that balance means that it is more likely than not, surely that cannot mean that the Home Secretary, faced with a situation where he was not certain that it was more likely than not—perhaps it was more unlikely than likely—would still be able to proceed with these serious restrictions on people's movements and ability to do their job. Someone could lose their job and their right to move freely about on the basis of a test where the Home Secretary could not hold that it was more likely than not. That seems strange to a layman.

Lord Falconer of Thoroton: It is for the Committee to decide whether it is "strange" that, if the Home
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Secretary thinks there are reasonable grounds to suspect that someone is a terrorist, preventing him associating with X or working in a particular place is necessary to protect the public from terrorism. Those are the two tests in the Bill, and that seems to be a perfectly proportionate approach to take.

Lord Carlisle of Bucklow: When I rose to my feet an hour and forty minutes ago to move a modest amendment of a few words, changing the burden of proof in one area of the Bill, I did not realise it was going to lead to such a wide-ranging debate. Much of that debate has not even referred to the burden of proof on which my amendment was based, but has gone on instead to the whole issue of whether those orders that require derogation and those that do not should nevertheless be dealt with in the same way. I had thought that that would be the effect of the first amendment in the next group, which I tabled, but as we have obviously had the debate on both of them, I will merely say on that issue that the noble and learned Lord the Lord Chancellor's explanations are wholly unimpressive.

My noble friend Lord Forsyth is right. The idea that the man in the street will look upon an order that prevents him working, or that requires a curfew to be imposed on him, as in some way not being an interference with his liberty that justifies derogation, is nonsense. The overwhelming argument has been that we should deal with all these matters in the same way judicially.

I have accepted, as I have done every time I have spoken during these debates, that there is a group of terrorist cases where one knows that people are a danger to this country but it is impossible for them to have a fair trial as the evidence and its sources cannot be disclosed without damage to the state as a whole. I was delighted to hear my noble friend Lord Kingsland say that the Opposition were proposing to stand by the principle that before any of these orders come into force, there should be some system by which the director or some other body should be satisfied, having looked at the case, that no normal trial can take place. All I was saying in the amendment was, that having been done, if the Secretary of State is satisfied that a person is or has been involved in terrorism, that is a matter on which he should have been satisfied beyond reasonable doubt rather than on the balance of probabilities. With great respect, I do not accept the argument of the noble Viscount, Lord Bledisloe, and those who have said that merely because you cannot provide a defendant with the sources of the case against him or, indeed, give him the evidence against him, it does not prevent you being able to be satisfied beyond reasonable doubt whether he is or is not involved in terrorist activity.

These issues have been debated several times. I stick to my view that the criminal standard of proof is right. I hear what others say; I hear the many views expressed by other people; and I do not propose to press the amendment to a Division at this stage, as my noble friend Lord Kingsland will be glad to know. I indicated last week that I would not do so, and I do not propose
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to. However, I propose to see what has been said during this debate, and I do not promise that we will not come back to it on Report. But for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 48 to 54 not moved.]

Clause 2 negatived.

Clause 3 [Duration and renewal of non-derogating control orders]:

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