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The noble Lord said: Amendment No. 177 is the most radical in this group. It seeks to expunge the whole of paragraph 4 of the schedule to the Bill. This paragraph makes special rules of court. They are quite astonishingly different from the rules that one would normally find when engaging in litigation.
I am torn between two solutions on these matters. The first is simply to hand the whole thing over to the Lord Chief Justice and ask him to make a set of rules in the light of his experience and understanding of the matters which would have to be dealt with by control orders. On the other hand I am inclined to think that we need to do rather more than that on the face of the Bill. I am inclined to think that we need to put in some guarantees for the individual who is likely to be the subject matter of a control order. I have done that in two ways, partly by making some suggested excisions from paragraph 4 and partly by making some suggested additions to it. The excisions are contained in one line of the amendment and the additions are in the following line.
Paragraph 4(1)(a) deals with the burden of proof. I believe this matter is currently resolved because we have included in the Bill this afternoon the test of
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balance of probabilities. So paragraph 4(1)(a), at least at the moment, no longer belongs in the Bill. I must say I find
Lord Falconer of Thoroton: The matter is dealt with even more extensively. The problem with using the phrase "burden of proof" in the rules was that it might be said to give the rules the power to overturn the provisions about burden. Therefore, I have tabled an amendment that deletes the words "burden of", which I think solves the problem completely.
Paragraph 4(1)(b) to the schedule enables or requires control order proceedings to be determined without a hearing. I find that rather alarming. In the extreme circumstances in which it might be inappropriate in some unforeseeableat least by me at the momentset of conditions not to have the defendant present, it would certainly be necessary to have the defendant's legal representative present at an oral hearing. I cannot understand how this paragraph can be justified when considered together with the imposition of a control order that is denying a citizen the rights that he has had since time immemorial.
I view paragraph 4(1)(c), which entitles the rules to make provisions about legal representation in such proceedings, with the gravest suspicion. It suggests to me that there might be some circumstances in which the defendant might not be legally represented. That suspicion is confirmed by the last line of paragraph 4(2)(a), which refers to:
"Rules of court made in exercise of the relevant powers may also, in particular . . . make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative".
I find that quite unacceptable. It may well be that a sifting process would have to take place so that the reasons given effectively disguise the sources of evidence or the means by which that evidence has been gathered, but I can see no justification for the terms of the clause itself.
"The Secretary of State is not required for the purposes of any control order proceedings or relevant appeal proceedings to disclose anything to the relevant court, or to any other person, where he does not propose to rely on it in those proceedings".
The noble and learned Lord the Lord Chancellor and I had an earlier exchange about this matter, but I remain unclear about what his intentions are with respect to it.
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It seems to me to be contrary to all the principles that have been developed in the criminal courts over recent years. To deny access by the defendant to information which is favourable to him seems to be grotesquely and inexplicably one-sided. Quite apart from anything else, it offends one's basic sporting instincts.
It is very important that there should be a judicial decision for control orders if the principle of control orders is to be accepted. But, as we have said on previous occasions, the other side of the coin is that there must be due processsomething resembling a judicial hearing to enable a judge to take a judicial decision.
Almost everything seems to be excluded in this paragraph. There are provisions to be made about the mode of proof in control order proceedingsobviously hearsay is involved in that; intercept evidence gets a paragraph to itself; but it also permits evidence that has been obtained by torture. I find it shocking that the Court of Appeal could recently decideas it is entitled tothat it is part of the law of England that the courts will receive evidence obtained by torture subject only to one condition: that we do not do the torturing ourselves. I cannot understand why it is more reliable if the torture is carried out in Chechnya, Azerbaijan or some other place.
We have seen an unbelievable decline in standards, both in the United States through the way it has behaved at Abu Ghraib and Guantanamo, and, I regret to say, in our own behaviour in Iraq, as has been found by recent hearings in the courts martial. This is another part of the decline of the judicial system being given statutory form. I find it absolutely shocking.
We will come on to sub-paragraph (3) of paragraph 4 in due course. But the one matter that really made me stand up and throw the Bill away was sub-paragraph (3)(c) which deals with disclosure. Under the terms of this, it would no longer be necessary for the Secretary of State to disclose matters that were exculpatory as far as the suspect was concerned. Part 4 of the present Act has been condemned by the Judicial Committee of this House: but in that Act there are proper provisions for disclosureadmittedly unsatisfactory in that it is disclosure to lawyers who have no opportunity of carrying out their fundamental duty of taking instructions from their clients. But here it is left to the Secretary of State to conceal from the claimant matters that are contrary to the Secretary of State's case or which might assist the claimant's case.
We wholeheartedly support the amendment moved by the noble Lord, Lord Kingsland. We emphasise and will continue to emphasise the role played by torture in obtaining evidence that is put before these tribunals.
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We will deal with that matter in due course. We shall look to see the complete rewriting of this paragraph along the lines of the proposed amendments.
On the points raised by the noble Lord, Lord Kingsland, everybody is entitled to legal representationindeed, it is vital in the proceedings which are being consideredunless the defendant or the person concerned refuses legal representation. That is an entirely different course of events.
I want to talk primarily in my short remarks about torture. I entirely agree with the noble Lord. Any evidence adduced by torture is both unacceptable and unreliable. It does not matter whether that torture occurs in another jurisdiction or in our own. For that reason and because I think that torture is odious and moreover unreliable we should reject the whole idea. I hope that my noble and learned friends will accept the idea that evidence adduced by torture is not to be relied on by our courts in any shape or form.
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