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Baroness Scotland of Asthal: I shall deal with the mischief first. It is likely that in the majority of cases an application would be made before the court and the court would make an order in relation to a person who has been identified as subject to a control order.

That deals with the situation where information may have reached the security or other services that someone is, for example, about to get on an aeroplane. The fear may be that the person has a bomb or other device. Before it is possible to go before the court it is necessary to stop him getting on the plane. Therefore, in those circumstances that person would have to be stopped and detained in some way.

It is anticipated that that person would be notified that they are being arrested and detained pursuant to—if it were to become—the new section of the Prevention of Terrorism Act, which permits the Home Secretary to apply to make orders and to detain people where there is a reasonable suspicion and/or—whatever the amendment now says—whether the Secretary or the judge is satisfied on the balance of probabilities about the person. It is perfectly possible to tell the person under which section he is being detained.

We are dealing with the practical situation, as my noble and learned friend Lord Morris points out. It may not be possible to go before the 24-hour duty judge. A
 
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telephone application may be made just as the man or woman is about to step on to the aeroplane, when it is essential that the person does not do so.

Lord Tebbit: I am grateful to the noble Baroness. I understand exactly the circumstances that she is describing. The chap is going up the steps of the aeroplane and you believe that he has a bomb that will blow up the aeroplane, so why on earth not arrest him on suspicion of being about to blow up an aeroplane? That surely is an offence for which someone could be arrested. I imagine that it is. There must be something somewhere in the law. Having arrested him, you could then investigate him for a while. Surely it does not need this Bill to arrest somebody who is on the way up the steps of an aeroplane with a bomb in his pocket.

Baroness Scotland of Asthal: That may not be the best example, but there are all sorts of other examples, such as people having information. The important point that I wished to make is that it may be necessary to stop and/or detain that person to enable due process to take place and come before the court. We are contemplating the situation of the new procedure when the Home Secretary will not of his own motion be able to so confine or restrain a person, but it will be incumbent on him to apply to a judge so to do. Therefore, certain logistical realities may arise in those circumstances, and it is for that lacuna that we seek to provide.

In relation to the issue raised by the noble Duke, the Duke of Montrose, I shall say what I said earlier in relation to this type of activity. It is not a devolved matter. It is a free-standing power to arrest and detain, which would arise in the context of a reserved matter, such as terrorism. It is not related to a criminal investigation and it is analogous to the powers of arrest and detention in the context of immigration law, which is another reserved matter. Therefore, it is not a case when the devolution issue comes into play.

I can reassure the noble Duke that we have already been in consultation with our colleagues north of the Border. On this occasion the Procurator Fiscal, as opposed to the Lord Advocate, will be involved, but we are very much alive to the difference in structure that applies in relation to matters that take place north of the Border. Such matters are being taken into account.

Viscount Bledisloe: Before the noble Baroness sits down, surely in the example that she gave, the constable is arresting the person not so that he is available to give notice, but to prevent him committing the crime. I can understand that.

Let us suppose that the person is flying to somewhere within the jurisdiction with his bomb to blow up the plane. He is not being stopped so that he will be available to be given notice; he is being stopped to prevent the crime. That is what ought to be in the Bill.
 
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Will the noble Baroness answer my second question? Is it intended to extend the power to apply to all control orders now that they all have to be made by the court?

Baroness Scotland of Asthal: I am bound at this stage by the expression of the Committee' view. The Government do not propose to so extend the power, but we shall have to reflect on the consequences of the vote this afternoon and consider the position further. But we do not at the moment propose to so extend the provisions.

The provisions were limited to deal with the derogating orders only. However, I have to accept that the Committee has decided to conflate the two procedures into one. That is not a view with which the Government agreed—as evidenced by the vote—or may not continue to disagree. We now have to consider that matter.

Perhaps my example was not the best, as we could use Section 41 provisions if the person actually had a bomb. Let us suppose that a person who was identified as being involved in terrorist activity was about to disappear. It would be important to detain him if the court thought it appropriate. He would become subject to a control order so that we could better control his activity, thereby keeping our citizens safe. It would be nonsensical to have no method by which that person could be so contained, permitting him to disappear and thereby enhance the nature, quality and extent of the threat that he may pose.

Of course, the period is limited to 48 hours. It is reasonably anticipated that within that time the matter could be swiftly brought before a judge who would be able to consider whether such detention by way of a control order is appropriate, to consider the extent to any condition that may apply and either to release or deal with the individual in a way that was proportionate and in accordance with the outline of the powers herein contained.

That is the practical situation facing us. We think that it would be better to enable the person to be so detained and the matter thereafter speedily dealt with—evidenced by the 48 hours—by the court which would be seized of the matter as soon as reasonably practicable.

The Committee should remember that before derogation the Home Secretary would have to have done a number of things. First, an order has to be laid, which identifies the group or persons against whom the derogation is needed or merited. Secondly, the nature of the conditions that amount to a derogation must be outlined in the order. The Secretary of State then has 40 days in which to bring the matter back to your Lordships' House and the other place. Immediately, and only after he has so laid that order can the Secretary of State apply for an order before the court. Logistically it may take more than a couple of hours to do that. In that time, the person involved may have disappeared. The whole purpose of the provisions is to ensure that that does not happen.

Lord Lloyd of Berwick: The noble Baroness has not quite dealt with my point. I see the need, but equally
 
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there is a need to inform someone who is arrested of what offence he is thought to be guilty. It has never happened before that someone could be arrested and the policeman has to say, "I'm afraid I don't know what offence you have committed, but I'm told you should be arrested". That is not how it has been done.

Baroness Gibson of Market Rasen: Before my noble friend sits down, I want to say that I am not a lawyer, but I have listened carefully to the debate. If a policeman arrested me, as the noble Lord, Lord Tebbit, said, my first question would be, "What am I being arrested for?".

As I understood the reply earlier, the policeman would say that I was being arrested under the Prevention of Terrorism Act. That would seem to indicate that I was regarded as a terrorist. It is common sense in these difficult circumstances. We are facing something that we have never had before in this country. If we were to say that the arrest was made under the Prevention of Terrorism Act, would the noble and learned Lord, Lord Lloyd, still ask for more? I think that that would be enough to indicate to me why I had been arrested.

6 p.m.

Lord Tebbit: I am most grateful to the noble Baroness. She should have no fear that I differ with her on the need for a provision to ensure that a terrorist or suspected terrorist does not disappear. Of course we all agree with that. But it is a mark of the confusion, the rush and the haste with which this legislation is being brought forward not only that this amendment could have been tabled at this late stage—after all, it should have been discussed in the Commons last week—but also that the noble Baroness, who is normally so absolutely in command of her brief, should have brought forward such an absurdly inappropriate example as that of the man going up the aeroplane steps with a bomb. We all know about him, and about what has happened in the past.

Fifty years ago, when I was a young second officer on an aeroplane, I was instructed by the captain to go back and sort out a passenger who appeared to be a threat to the safety of the aeroplane. I took the fire axe with me, I demonstrated to him that it was available, and his behaviour then seemed not to constitute an offence any longer. So I am certainly with the Government in how they approach some of these matters, but it is being done in an unpardonable rush, and 50 years on I might have second thoughts about whether my behaviour was perhaps over the top.


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