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Lord Thomas of Gresford: My Lords, we believe that the clause as drafted would not leave it open to the court, at the preliminary stage, to make a final determination on the validity of a derogation order passed through Parliament. That would be a matter for the full hearing; but, as happened in the case of A—which eventually ended up in the Judicial Committee of the House—it would be open to the High Court to consider that very question. If I may reply—
Lord Donaldson of Lymington: My Lords, may I ask a perfectly simple question before the noble Lord replies? I wholly support the idea of the DPP looking at these cases, and, if possible, bringing a criminal prosecution. I am wholly in favour of Amendment No. 12, which provides for that. However, could there be a problem, in an exceptional case, with subsection (1)(c) of the new clause in Amendment No. 9? It requires that the DPP shall consider the matter and advise that no criminal prosecution is possible at the moment, before a control order is made. Could we not face an urgent case in which we could not afford the delay, and that it ought to be possible to make a control order at the ex parte stage, but no further, before the DPP has had time to answer?
Lord Thomas of Gresford: My Lords, it would be entirely out of order for me to respond at this stage. We have discussed and voted on that particular point. Indeed, the particular subsection to which the noble and learned Lord, Lord Donaldson, referred is already in the Bill as originally drafted. It is not new material that we are putting in with this amendment.
Baroness Scotland of Asthal: My Lords, if I may respectfully say so, the noble and learned Lord, Lord Donaldson, makes a powerful point. If I have not made it plain, I should do so by saying we do not believe that Amendment No. 12 simply repeats what happened yesterday. It goes further, in suggesting that the Director of Public Prosecutions will continue to keep the matter under review. The DPP has no duty to keep cases under review in the way suggested.
Lord Evans of Temple Guiting: My Lords, may I help the House by reminding your Lordships that we are on Report—
Lord Kingsland: My Lords, in the most unusual circumstances.
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Lord Evans of Temple Guiting: My Lords, we are in the most unusual circumstances, as the noble Lord, Lord Kingsland, tells me. Paragraph 6.126 of the Companion says that:
"Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister".
We should keep that in mind, otherwise things may get out of hand.
Lord Thomas of Gresford: My Lords, I do not propose to enter into a debate now on Amendment No. 12—which is, in any event, not my amendment. We take the view that the proper way to deal with the Bill as it stands is to send it to the other place in the "construct", to use the words of the noble Baroness, which the whole House—and not, as the noble Baroness put it, the Members opposite— has decided upon. For that reason, I propose to press Amendment No. 1.
The Chairman of Committees: The Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content".
The Chairman of Committees: I think the Contents have it.
On Question, amendment agreed to.
Baroness Scotland of Asthal had given notice of her intention to move Amendment No. 3:
The noble Baroness said: My Lords, in view of Amendment No. 1, Admendment No. 3 is not moved.
Lord Kingsland moved Amendment No. 5:
The noble Lord said: my Lords, this amendment was well canvassed both on Second Reading and in Committee. Once again, I need only dwell on it briefly.
The issue here is extremely simple and well established. If a statute is going to take away the liberties of a British citizen, the manner in which it takes those liberties away must be clearly set out on the face of the Bill. Each liberty from which it is intended to resile should expressly appear on the face of the Bill. Clause 1(3) does not accord with that approach; it sets out a range of possible restraints that might be imposed on the subject of a control order. However, it does not exclude the possibility—or, perhaps, the probability—that a whole range of other restraints that do not appear on the face of the Bill could also be imposed upon a potential controllee.
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Therefore, what we are seeking to achieve by this amendment is simply consistent with our best constitutional traditions. If the Government want to restrain somebody in a certain way under a control order—where he has, in reality, no entitlement to a criminal trial—then each and every restraint that might be placed on this person must appear on the face of the Bill. That is the beginning and end of Amendment No. 5. I beg to move.
Lord Goodhart: My Lords, we certainly support Amendment No. 5. It seems to us that it is wholly improper for there to be no restriction whatever on the kind of obligation that can be imposed on the person who is subject to the control order. It is not even suggested, for example, that any addition to the list should require the affirmative resolution by both Houses of Parliament, which might be an acceptable variation. Certainly, we think it improper to say that—subject, I accept, to the Human Rights Act—the kind of order that can be imposed here is entirely within the discretion of the Secretary of State.
Lord Plant of Highfield: My Lords, I made a speech at Second Reading in favour of that view. I still hold to that view, having listened to all the speeches since. I would certainly support the noble Lord, Lord Kingsland, in the view that he is taking. As I said yesterday, while I am in favour of control orders, they should be made as compliant as possible with both human rights legislation and, more broadly, common law assumptions about constitutionality, the rule of law, and so on. The argument, it seems to me, is that the control orders, which are currently both indefinite in their formulation and open-ended in their number, should be frozen in their present form.
Lord Lester of Herne Hill: My Lords, I see that in the next amendment we shall consider, Amendment No. 6, it is proposed that there should be a requirement to allow someone to be photographed. Can the Minister indicate why that is necessary? I believe it to be desirable, but why is it necessary if there is this inclusive definition, which we are seeking to delete? Surely it would be better to do as we suggest in this amendment.
Baroness Scotland of Asthal: My Lords, I shall deal with the point made by the noble Lord, Lord Lester, last.
It is absolutely clear that we have tried to make the list that we have provided as comprehensive as possible. But Amendment No. 6 demonstrates with acute clarity why it is difficult to make the list restrictive, without giving any flexibility. One of the reasons for Amendment No. 6, which relates to photographs, is that it is understood, particularly given the experience of previous cases, that it can be very important to have up-to-date photographs of individuals, because they have been known to change
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and/or adapt their appearance, making it more difficult to track what they are doing and where they are.
Lord Forsyth of Drumlean: My Lords, I am most grateful to the Minister. Is not the fact that a matter of such importance is being added to the list at this stage an indication that it is very important to take time to consider these matters before rushing legislation through the House?
Baroness Scotland of Asthal: My Lords, that point has been made; I shall start to count how many times it is made. On every amendment, I have accepted that we are where we are and that this matter had to be looked at very quickly. If I may respectfully suggest, repetition does not enhance the value of a comment.
Lord Forsyth of Drumlean: My Lords, I know that the Minister thinks that I am just being an irritant, but that amendment seems important. It makes me wonder whether fingerprints or other things should be included. It worries me that, if such provisions are being added at this stage, perhaps the matter has not been thought through. The difficulty with having a list is that you need to know that it is comprehensive. The speed with which this is being considered is a legitimate consideration and makes one wonder whether the Government have thought it through.
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