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Lord Falconer of Thoroton: I am happy to go along with the approach that the noble Lord, Lord Goodhart, is proposing. However, I am being told by the Clerk at the Table that we cannot do that, as it has been pre-empted. I do not know if we can vote. It would be most inappropriate of us to suggest that we over-ride the Table, but we broadly agree on how we want to proceed on this amendment. If we are not going to be allowed to vote on Amendment No. 112, then I would oppose the amendments of the noble Lord, Lord Goodhart. I would have thought the right course is for us is to have voted on Amendment No. 101 and, having allowed that, then vote on Amendment No. 112 in as well.

Lord Desai: Would it be helpful to adjourn for about 15 minutes, while the Front Benches sort this matter out? They are talking to each other, but we at the back cannot hear what is going on. It is in such a muddle, I think it would be helpful if the usual channels would agree to an adjournment for 15 minutes.

Lord Davies of Oldham: I beg to move that the Committee do now adjourn until 6.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 6.17 to 6.25 p.m.]

Lord Falconer of Thoroton had given notice of his intention to move Amendment No. 116:

The noble and learned Lord said: I am very grateful for the time given to the Front Benches. So that we all know where we are, Amendment No. 101 was passed by the Committee and we accept that several subsequent amendments have been pre-empted. However, we are all agreed that a provision similar in substance to government Amendment No. 112 should be put in the Bill. We will bring forward on Report an amendment to that effect. We accept entirely the instruction from the Deputy Chairman of Committees that government Amendment No. 112 has been pre-empted. Given that, the sensible course is the one we have adopted.

I think that that brings us to Amendment No. 116, which was tabled in the first grouping under Amendment No. 47. I could say that the amendment has already been spoken to, but our conversation on it was exiguous, to say the least. It provides that the controlled person will be bound by modifications to derogating control orders imposed by the court as well
 
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as all other modifications made by the Secretary of State or the court as appropriate. In effect, it is a drafting amendment.

Lord Elton: So that I and other noble Lords understand what is going on, Amendment No. 116 is an amendment to Amendment No. 112, which was not moved. What are we amending?

Lord Falconer of Thoroton: I think that the noble Lord is correct. We should wait to move Amendment No. 116 until we are able to move Amendment No. 112. I shall not move the amendment. I thank the noble Lord.

[Amendment No. 116 not moved.]

Lord Kingsland moved Amendment No. 117:

The noble Lord said: I advance this amendment with a degree of trepidation. I shall probably find that, by the time I am half way through the second sentence, I shall be informed by a noble Lord that it is also attached to a subsection which has disappeared from the Bill.

I readily accept, that in the light of our earlier vote, the other amendment to which I shall be speaking in this group, Amendment No. 199, now makes no sense because it places obligations on the Secretary of State in circumstances in which he is no longer in a position to act. The provisions set out in Amendment No. 117 are therefore relevant not to anything done by the Secretary of State, because he is no longer going to make the control order, but to what is done by the court.

However, the principle is just as important with respect to the court as it is to the Secretary of State. When the control order is issued, the reasons for the making of the order, its renewal or its modification, must be plain to the person who is subject to the order. I do not need to go as far as the European Convention on Human Rights to derive authority for that proposition. I need simply to look at the first chapter of a novel by Mr Kafka, The Trial, for noble Lords to understand exactly why my amendment should be in the statute.

It goes wholly against all the principles to which we subscribe, as a society based on the rule of law that, if someone is to be restrained in any way, they are not given the reasons. In the context of control orders, for example, if someone is about to be imprisoned as a consequence of surveillance, we may not be in a position to say that that surveillance was conducted by Mr Smith employed by MI5 or MI6 or it may not be appropriate to say that the equipment used in the surveillance was of a certain type produced by a well known telecommunications company.

Nevertheless, the fact that he was surveilled, and the results of that surveillance, ought to be clear to the person before a control order can be legally issued.
 
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We shall be returning to these matters in more detail when we come to Schedule 4 and look at the rules of the court. There must be limits on laying those employed to conduct surveillance open to exposure to the wrong people and we must protect the advanced techniques that play a part in our surveillance systems. Within those constraints, however, I suspect that it is the controls that we in your Lordships' House impose by amendment on the rules of the court that will ensure that we reflect the fundamental traditions of our society. We ought to be able to devise such a set of rules. I beg to move.

6.30 p.m.

Lord Thomas of Gresford: I wholly support Amendments Nos. 117 and 119, for the reasons given by the noble Lord, Lord Kingsland. Since it is a subject to which we will be returning when we come to the schedule, as he said—it is all a question of due process—I do not propose to say anything further at this stage.

I will just draw the attention of Members of the Committee to Amendment No. 118, in my name and that of my noble friend Lord Goodhart, which ensures that if a control order, or its renewal or modification, is served upon an individual it should be in a language that he understands, whether it be Welsh or Urdu. Certainly it should be in a language that he understands, so that he can obey the control order. The importance of this is that the breach of the order is a criminal offence, punishable with up to five years' imprisonment. He must know why he is going to prison—for breaking the order—as well as knowing the contents of the order itself.

Baroness Scotland of Asthal: First, these orders would not differ from ordinary orders in as much as, if there is to be breach, the order would have to state clearly what those acts and/or omissions that the individual would have breached were.

My second point is about the notice containing a statement explaining why the control order was being imposed, renewed or modified. One of the difficulties in such cases is that the reason for the modification or the control order might be within the ambit of information that cannot be given precisely to the individual. We have already spoken about the procedures and the matters that may be closed information or open. For these reasons, we say that Amendments Nos. 117 and 119 are flawed, because they do not seek to acknowledge closed information, which may be the basis on which the modification is made and, therefore, which may not be able to be disclosed to the individual.

On Amendment No. 119, which requires the Secretary of State to serve a summary of the case upon which he has relied to the controlled person, there is the same issue as for Amendment No. 118. It will be of the utmost importance for there to be a great degree of clarity on the precise nature of the restrictions and the conditions. That individual should know precisely what he is or is not permitted to do by way of the
 
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control order and the consequences of breach. Those matters could easily be provided in a way that would provide clarity.

The noble Lord, Lord Thomas of Gresford, talked of notes "intelligible to him". Those words would apply to each and every order that is made to these or other proceedings. We would say, with the greatest respect, that they are unnecessary.

Lord Kingsland: I am most grateful to the noble Baroness for her reply.

We accept that, as I think I said in proposing the amendment, that there would be many occasions upon which it would be inappropriate to name the source of the information and the techniques that were used to garner that information. That does not prevent telling the proposed controllee that the reason for the order being issued is because he has been seen to be doing X at a certain place. It seems to be perfectly consistent with protecting our sources to say that.

These are matters that we will be returning to in more detail when we consider Schedule 4, but a lot of our problems on these Benches in relation to all the evidential issues to which control orders give rise would be solved if the Government were prepared to accept that the rules of court would be made by the Lord Chief Justice, on consultation with the Lord Chancellor. This is the reverse of a familiar refrain that we have been listening to during the course of the Constitutional Reform Bill, where it has been the Lord Chancellor making rules after consulting the Lord Chief Justice. The best possible protection that one can give to due process in this Bill is to reverse that situation. It should be the Lord Chief Justice who determines the rules, after consulting the Lord Chancellor, who has this twin role of sitting in the Cabinet, representing both the views of the judiciary to the Cabinet and the views of our political masters to the judiciary. That is an amendment that will come later. If we succeed in getting it, it will wrap up a lot of these issues in an elegant way, and in a way that best protects our fundamental freedoms.


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