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Baroness Scotland of Asthal: Of course, I understand that Amendments Nos. 129 and 139 provide the Secretary of State with the right to appeal against the court if it decides not to modify the control orders. Amendment No. 129 refers to non-derogating control orders and I believe it is based on the assumption that all control orders will be made by the court. Amendment No. 139 refers to derogating control orders. I do not believe I need to repeat the arguments in favour of the Secretary of State making the non-derogating control orders because we have to bear in mind the effect of the matters that have already been dealt with. In the ordinary way, we would be suggesting on behalf of the Government that these amendments should be rejected because they are outwith the construct that we have.
We say that Amendment No. 139 could also be rejected because it seeks to give the right of appeal from the first-instance court decisionfor example, to the Court of Appeal in England, Wales and Northern Ireland and the Inner House of the Court of Sessions in Scotlandbut we say that that is unnecessary as, in any event, there would be a right of appeal to the Court of
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Appeal from an initial decision by the court. That does not need to be provided for expressly. For that reason I urge the noble Duke not to press Amendments Nos. 129 and 139.
Government Amendment No. 132 seeks to amend a reference in Clause 7 to appeals against non-derogating control orders to the test that the Secretary of State will have to apply to impose a non-derogating control order. It amends that reference in the light of government Amendment No. 55, which preserves the same test as currently in the Bill, but in the proposed amended structure. I therefore commend Amendment No. 132, but I also take into account the fact that, in view of our earlier amendments, these amendments would fall.
The noble Lord said: I will say something about this, because it is dealt with in both Clause 7 and Clause 8. Since we are now moving towards a single procedure, the principle that lies behind the amendment is important, and I want to speak to it briefly.
The amendment is aimed at a set of circumstances in which a control order is issued and then subsequently quashed, and, while it is in place, damage is unreasonably caused as a consequence of its imposition. Many of the consequences of the restraints that are sought to be imposed in Clause 1(3) will imply serious financial costs for the person who is the target of the control order. If that person incurs those costs unreasonably, it seems only right to us that he or she ought to be appropriately compensated. I beg to move.
Lord Thomas of Gresford: I wholly support this amendment, although the whole of Clause 7 will fall shortly. It is important that compensation should be paid, when one of the controls suggested for a control order is a prohibition on a person carrying out his business or trade. It is not compensation for the loss of
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liberty but for actual financial loss, which should be recompensed to the person who has suffered it. I hope the Government will accept the amendment when it comes in the next clause.
Lord Falconer of Thoroton: This is an important point. We will, however, not accept the amendments. The High Court already has power to award costs in court proceedings, and the rules relating to costs will apply in future to parties to control order proceedings. However, this is a more profound issue than simply costs. I do not think costs are a difficulty.
The High Court also has the power to award damages, either under the Human Rights Act 1998 with regard to breaches of convention rights, or at common lawfor example, with the remedy for trespass to land or to the person, or false imprisonment. The circumstances in which they could award that would depend upon the circumstances of the application for the order and the making of that order. We do not think it would be right in those circumstances to establish a statutory right to compensation for loss or damage resulting from the imposition of control orders. If such an order is unlawfully made and subsequently quashed, that individual may, depending on the facts, bring a separate action for damages for any breaches of his convention rights, and so on. In those circumstances, we do not think it is either right or necessary to make provision in the Bill.
Lord Neill of Bladen: The language in the proposed amendment is "unreasonably caused", which I think would involve a scrutiny into the basis on which the order was originally sought and made. I wonder whether there are any considerations to which the noble and learned Lord would like to refer that might make it difficult to investigate the unreasonableness of the initial order? We are not talking about whether loss has been suffered. That is demonstrated by my example of a man being ordered not to work. He proves his loss. The issue, I think, is whether that loss was unreasonably caused by the seeking of the order in the first place, which may take us into the heartland of extreme sensitivity. Does he have any observations to make about that?
Lord Falconer of Thoroton: Of course, it might take us into the heartland of extreme sensitivity. However, the hypothesis on which the noble Lord's amendment is made is that an order has been made, subsequently investigated by the courts and then discharged. I am saying, in effect, "Don't create a special statutory regime. Leave the common law of the Human Rights Act to deal with it". I say that that would be sufficient.
The Earl of Onslow: The noble and learned Lord says that we should not make a special statutory excuse under
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this amendment, but this whole Bill is a special statutory operation anyway. Therefore, special protection is exactly what is needed.
Our approach is that certain changes need to be made to the law, but that we should leave the normal procedures of the law to deal with a situation, for example, where an order is wrongfully made. We should leave it to the High Court to make as many of the rules of procedure as possible, because we think the normal rules should apply as much as they can. However, we recognise that some changes are required.
Lord Kingsland: The noble and learned Lord says that we should leave this issue to the High Court and its rules. If the system for making High Court rules was the system recognised under the normal procedure, I would feel entirely comfortable. However, the problem is that, in the schedule to the Bill, the normal way in which the High Court rules are made for all cases is displaced.
Lord Falconer of Thoroton: The rules are displaced for the first occasion only. The rules that apply to the ordinary England and Wales High Court need to be amended to deal with this situation, and they will need to be ready by the end of the week. That is why, in the schedule, the Lord Chancellor can make changes for the first time. Thereafter, the changes can be made in the ordinary way, which is entirely consistent with what the noble Lord, Lord Kingsland, urges, and I support him on that. However, I recognise the difficulty of that first set of rules.
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