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The powers are analogous to the powers of arrest and detention in immigration law, which is another reserved matter. They arise in a very similar way. It is not a criminal matter. My noble friend Lady Gibson is absolutely right in how she describes it; she has not misunderstood. As I have tried to make plain, detainees would be told that Section 91A of the
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Prevention of Terrorism Act was being used, and that my right honourable friend the Home Secretary had made an application for an order in their respect, so they would know precisely why they were being detained. It is right that they would not know all the evidence, but there would be no difficulty in their understanding fully that they were not being detained for their health.
Lord Phillips of Sudbury: I wonder whether the noble Baroness is right in saying that. The definition of "terrorism-related activity" in Clause 1(8) covers somebody who is acting without any intention to encourage terrorism. I do not think that someone whose conduct gives encouragement but who does so unintentionally would have any such knowledge.
Baroness Scotland of Asthal: They would be told, "You are being detained because the Home Secretary is at this very moment applying for an order in relation to the control orders pursuant to the Prevention of Terrorism Act". People so detained would know that they had been arrested under those terms. As I said earlier, in all these cases the usual provisions regarding facilities for lawyers and such matters will be made, and obviously there will be an opportunity for them to make representations when the matter comes before the court in due course.
To take the point made by the noble Lord, Lord Tebbit, the whole point of this provision is that we listened very seriously to the comments of Members on our Benches in the other place, and others, who wanted a judge element to be introduced in the case of derogating orders. Having taken that practical issue into account, it became apparent that there would be a possibility of a time lag between the time in which the court could make the order and the time in which the person might disappear. For that reason, having accepted the rationale that a judge-made order will take a little more timea judge will act more slowly than the Home Secretary could actit was necessary to insert this provision for the odd case where it may not be possible to get an order from the court first.
Lord Elton: Does that continuous availability of the Home Secretary mean that in practice there will be some administrative means by which permission will be given in his name by somebody else? If not, why is he more readily available than members of the judiciary on a rota?
Baroness Scotland of Asthal: There are two factors. My right honourable friend the Home Secretary remains responsible for those issues throughout the whole period in which he remains in that role. As noble Lords would expect, and a number of noble Lords who have been in this position will know, the Home Secretary will get regular briefings on the state of security matters as they pertain to our country. Therefore, it is likely that he will be in a better position to take immediate action, the security services and the
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police having identified a particular activity. He will be able to act quickly to ensure that that is brought under control.
It will then be necessary for the Home Secretary to put before the court the evidence upon which he seeks to rely to verify and justify the act that he has so taken, and the court will be able to carry out merit-based scrutiny of derogating orders and decide whether the judgment exercised by the Home Secretary was correct. I will talk about derogating orders, as they are the parts on which we are all agreed, notwithstanding the vote that has just taken place.
Baroness Scotland of Asthal: It will work in the ordinary way. My right honourable friend the Home Secretary will make the decision, and that decision will be communicated. If the noble Lord is asking whether that can be done only in writing, all of us know of situations where we are contacted over the telephone and decisions are made that are subsequently reduced into writing. But it will be the decision of my right honourable friend the Home Secretary. The Bill provides that, if the Home Secretary should be indisposed for some reason which would make it physically impossible for him so to do, the Secretary of State can act on his behalf.
Lord Tebbit: I recollect an occasion while I was, I think, the Secretary of State for Trade and Industry, when I signed an order under the Prevention of Terrorism Act in relation to Northern Ireland, on the basis of the evidence that was presented to me, because the Secretary of State was not available. I understood that that was the normal rule, and that in this sense "the Home Secretary" means the Secretary of State, and that any Secretary of State may exercise those powers. Is that correct?
Baroness Scotland of Asthal: The position remains the same. Obviously if the Home Secretary is available he or she will make that decision. In extremis, the most important thing is that a Secretary of State, properly vested with that authority on behalf of our country, makes the decision.
The Deputy Chairman of Committees: My understanding is that if Amendment No. 101 were agreed to, Amendments Nos. 102 to 115 could not be moved, because of pre-emption. I understand the difficulty, because there are government amendments.
Lord Falconer of Thoroton: Can we deal with the situation in this way? The noble Lord, Lord Goodhart, has moved his amendment which, in effect, deletes provisions allowing the controlled person to apply to the Secretary of State to have a control order modified. That is, I think, the effect of the amendment that the noble Lord moved. It is in an earlier group; we have never actually discussed this particular provision. The noble Lord moved it with such conspicuous speed thatand this is entirely my faultI failed to pick up that it was not consequential on anything we had done before. It involves a wholly new point.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland says, in order to accentuate my humiliation, that it was moved with inconspicuous speed. I agree with that completely. I suggest the following procedure: that the noble Lord, Lord Goodhart, should outline a little why we should remove the power to modify, then we will reply, and that way we will know where we are.
Lord Goodhart: The modification in subsections (1), (2) and (3) provides for a power of the Secretary of State to revoke or modify an order. In view of what has happened earliersince the Secretary of State will not
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have power to make an orderit is, therefore, effectively consequential that he cannot revoke or modify it. However, there does need to be a provision for revocation or modification. That did seem to be effectively provided, subject to a couple of minor consequential amendments, by Amendment No. 112. If it were simply insertedas, in a sense, that is consequential on the removal of subsections (1), (2) and (3)then it provides a system which we think is necessary.
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