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Lord Thomas of Gresford: Before we leave the topic altogether, the noble and learned Lord has quoted from the judgment of the Court of Appeal. Was it not the argument of the Government before the Court of Appeal that evidence obtained by torture, so long as it
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was not obtained by people under the control of the Government, was admissible and acceptable? Is that not encouraging the use of torture in other countries?
Lord Falconer of Thoroton: The Government's argument was that no material relied on by the Home Secretary had been obtained by torture. That was the first submission. The second submission was that, if, contrary to that first submission, it was obtained by torture and it was reliable, in certain circumstances it would be necessary for the Home Secretary to rely on it if he were to prevent an atrocity. Both arguments were accepted by the court, provided that the Secretary of State was acting in good faith. A recognition of his responsibility for national security was required when assessing his approach to the material available to him. The House of Lords will have to decide whether that is right or wrong.
I shall be interested to know the view of the noble Lord, Lord Thomas, if the Home Secretary were confronted by material that was reliable, because it was confirmed in another placefor example, material relating to another country had been provided by that source and it turned out to be rightand that material suggested that an atrocity might be about to occur. To what extent would the forces of the state be entitled to rely on that? Perhaps that argument is for another day.
Baroness Falkner of Margravine: I appreciate that the noble and learned Lord's words are not addressed to me but to my noble friend Lord Thomas. I believe he goes to the heart of the matter. If the Home Secretary found that the evidence was reliable, perhaps the noble and learned Lord can tell the Committee how the Home Secretary would expect to know that the evidence is reliable when it might have been obtained by torture and he does not have any information on the veracity of the material. Will there be some definitional test whereby the Home Secretary will certify that the information on which he bases his decision is not obtained by torture? Ergo, essentially we do not know. Therefore, how can we take serious decisions, based on a serious perception of a threat when we simply do not know. We know empirically that evidence obtained by torture tends on the whole to be unreliable.
Lord Falconer of Thoroton: I would much prefer that the noble Baroness, Lady Park, or my noble friend Lady Ramsay, answer that question. My instinctive reaction is to say, "How is the Home Secretary supposed to know?". He has to make a judgment and he has to take advice. In relation to intelligence, it may be that one of the most indicative signs that something is to be relied upon is whether the source had produced material in the past that had turned out to be reliable. It might depend on what the source was, whether human intelligence or technological intelligence. One would put everything together and come to a judgment in relation to where, overall, the intelligence points.
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That involves making a judgment and it involves the Home Secretary taking sensible advice and being able to evaluate all the material before him.
Before I make my concluding remarks, I would like to press the noble and learned Lord on paragraph 4(3)(c), which deals with exculpatory evidence. The noble and learned Lord said he was not sure whether his undertakings about exculpatory evidence were consistent with that paragraph. It seems to me that they are not.
It would make a great deal of difference to me in this whole debate if the noble and learned Lord were prepared to make a clear distinction between revealing this evidence to the court and revealing it to any other person.
I accept the powerful speeches made by the noble Baroness, Lady Ramsay, and my noble friend Lady Park, saying that there will be circumstances where it would be fatal to the national interest to reveal either the source of intelligence information or the method by which that source succeeded in gleaning it. I accept that it follows that evidence about the source and the methodology should not be revealed to any other person except the special advocate.
Does the noble and learned Lord agree, however, that the court ought to have all the evidence made available? By that, I mean the judge, because he would be in a position to sift that evidence and ensure that "any other person", at the end of the day, was only aware of the consequences of what had been discovered, and not the manner in which it had been discovered or the person who discovered it. If the judge could render down the information they had to what he considered was essential for the prospective subject of the control order to know, in all fairness, I would derive a great deal of comfort from what the noble and learned Lord said.
To say that the Secretary of State can simply assert that evidence is reliable, however, and to have to do no more, would make these control orders an executive act, not the consequence of a judicial decision, even though they would be made by a judge.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland, exactly follows what I was saying. I am happy to go away and, if necessary, amend paragraph 4(3)(c) to make it clear that nothing must preventindeed, there must be rules that requirethe disclosure of exculpatory material to the court and to the special advocate.
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The firewall relates to material that could damage national security by going beyond the court or the special advocate to the suspect or his legal representative. I completely agree that exculpatory material has to go to the court and the special advocate. The question is where the line is drawn after that. I am not sure whether paragraph 4(3)(c) prevents that, but if it does, then we will amend it to ensure that the court and the special advocate, at least, see it. That is what I was saying and what I think the noble Lord, Lord Kingsland, is saying.
Lord Kingsland: I am much obliged to the noble and learned Lord the Lord Chancellor for that helpful response. More generally, I share what I suspect was behind the remarks of the noble Baroness, Lady Falkner, that the Government will probably be wrong to assume that, as far as the European Convention on Human Rights is concerned, what is good for SIAC deportation proceedings is also good for proceedings against British citizens who cannot be deported.
I believe that if the noble and learned Lord the Lord Chancellor simply applies the jurisprudence about SIAC to devising his rules, he will fall well short of what the law of this country now requires. He does not have a very long time in which to come to that conclusion but I believe that he will be driven to it by the law.
Our approach to this part of the Bill will remain as I laid it down at the outset. We will seek to remove paragraph 4 as presently drafted and replace it with a different draft which we believe will meet the standards that Article 6 of the convention requires. Meanwhile, I beg leave to withdraw the amendment.
"( ) make provision for supplying to a relevant party to control order proceedings or his legal representative (if he has one) a summary of the nature of the allegations against him and (where the court so orders) of the evidence upon which such allegations are based."
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