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Lord Lester of Herne Hill: My Lords, I wish to make two points, one on torture and the other on due process. I was party to the recommendation of the Joint Committee on Human Rights, to which the noble Lord, Lord Judd, has just referred. Of course, that gives effect to the obligations already imposed on Parliament, the Government and the judiciary in international law by the torture convention. The only reason the Court of Appeal decided the torture convention could be put into the waste paper basket, effectively, was that it has not been incorporated into domestic law.
I am normally a bad prophet, but I prophesy that the Law Lords, if the Government do not accept the amendment, will decide that the Court of Appeal was wrong and that certainly the use of torture in evidence would breach the convention and would be contrary to the law of the country. The great virtue of the amendment is that it would put the matter beyond doubt and give effect to our treaty obligations under the torture convention. That is my first point.
As to my second point on due process, the noble Baroness, Lady Ashton of Upholland, will remember that during the Inquiries Bill the noble and learned
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Lord, Lord Howe of Aberavon, pressed the Government for due process in the rule making. The Government, commendably and very sensibly, agreed that there should be on the face of the Bill, in the rule-making power, a recognition that the rules had to give effect to the overriding necessity for fairness. In this Bill, for some reason, that has not been put into the rule-making power, and yet it is dealing with something much more serious than the Inquiries Bill—it is dealing with the determination of important civil rights and obligations once control orders have finality.
I should be grateful if the Government would think very carefully indeed about that point. I see no good reason why the need for fairness in the rule-making power should not be written into this Bill, whether spelt out in this amendment—which I would support—or in some other way. If not, it will be very strange indeed that the rule-making power can have regard to all kinds of things but not the overriding necessity for fairness. I would be grateful if thought could be given to that in the response to the amendment.
Baroness Park of Monmouth: My Lords, I simply make the point that, when we hear the noble Lord, Lord Judd, and a number of others, it sounds more and more as if we practice torture, and we do not. That should be made very clear because the public—including the public about whom the noble Lord, Lord Judd, is worried—would be entitled to think that they have to fear that from this country, and they do not.
This is something that happens elsewhere and, when we are expressing these concerns, it has to be made very clear that we are not suggesting that it is a rational expectation or fear here.
Lord Judd: My Lords, before the noble Baroness sits down, perhaps I may make the point that in no way was I suggesting that we use torture. I was suggesting that if in decisions we were making information which had become available because of torture elsewhere was being used, this would be to hand the extremists a propaganda weapon.
Lord Clinton-Davis: My Lords, not for the first time, I support the arguments adduced by my noble friend Lord Judd. I do so on several grounds. Evidence acquired by torture is totally unreliable and, for that reason, it ought to be no part of our law.
The argument adduced by the noble Baroness, Lady Park, is wholly irrelevant, in my respectful submission. Of course torture is excluded by our own practice, but if the Home Secretary were to come to the view that, however unlikely, torture may have been used, that should be excluded. In other words, if the Secretary of State knows, or ought to have known, that torture had taken place—it does not matter in what jurisdiction—it should be omitted from our considerations.
Although it was a minority occasion, I am afraid that I was not totally convinced by the noble and learned Lord, Lord Falconer, last night. It may be that he has had second thoughts. I hope so. I have so far
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referred exclusively to sub-paragraph (c) of the amendment and I hope that he will consider that, in any event, any question of torture ought to be excluded.
As to the other points that have been raised, I go along with what the noble Lord, Lord Thomas of Gresford, said. The provisions of the amendment would undoubtedly improve the situation that we are now considering.
Lord Lloyd of Berwick: My Lords, this is an important amendment because its purpose is to ensure that the subject in these novel proceedings should have a fair trial. It would, of course, be the duty of the court to ensure that the suspect had a fair trial in any event. That has always been the way in which we have conducted our judicial proceedings. It would also be obliged to apply Article 6 of the Human Rights Act, quite apart from this amendment. Perhaps the noble Lord, Lord Thomas of Gresford, could confirm whether these are civil proceedings, as they are supposed to be, or criminal proceedings, as they seem more nearly to be, when he comes to reply.
It is good that the main provisions of Article 6 of the convention should be set out in this clear way, including sub-paragraph (6), which, of course, is not strictly covered by Article 6. Setting them out like this will do much to reassure the public, who may not be intimately acquainted with the precise provisions of Article 6. I strongly support the amendment.
Lord Carlisle of Bucklow: My Lords, while fully accepting, understanding and agreeing with the principle which the noble Lord, Lord Thomas of Gresford, is trying to achieve, I am concerned about some of the wording of this particular amendment, and whether it is obtainable as the noble Lord has expressed it.
As a general question, does the noble Lord consider that the preliminary hearing is a control order proceeding? I should have thought it must be, because it comes under these proceedings. If so, then, with the greatest respect, the Liberal Democrats' amendments are totally self-contradictory. In the rules which the noble Lord is saying must now be made, it specifically says that they must,
"ensure that the relevant party and his legal representatives are given notice of all control order proceedings and relevant appeal proceedings and are able to attend".
Yet if one goes to new Clause 2(2), which the Liberal Democrats introduced earlier today, they say it shall be the duty of the court,
"The preliminary hearing under subsection 1(a) may be held in the absence of the individual in question; without his having notice of the application for the order; and without his having been given an opportunity (if he was aware of the application) of making any representations".
Unless it is made clear that the control order proceedings only apply to a full hearing rather than the preliminary hearing, what they are trying to do on the face of this Bill is totally self-contradictory.
It is not realistic to believe that the sort of principles which the noble Lord, Lord Thomas of Gresford, is setting out could be achieved in a preliminary hearing which will, of its very nature, be immediate and quick, as has been accepted on all sides.
I query this amendment in one or two other respects. I share with the noble Lord, Lord Thomas of Gresford, the view that we should do everything, by regulation and rules, to make the hearing as near to a normal hearing of a criminal trial as possible. We have all agreed that, and the House has passed an amendment which provides that these proceedings should not come into being unless the Director of Public Prosecutions is satisfied that there is no possibility of a reasonable trial.
It is almost inevitable that there is going to be certain evidence which must be excluded from the defendant. Yet the wording and tone of these amendments is that an application being made to exclude certain evidence would somehow be the exception rather than the rule. Inevitably, once one gets to the situation where one is going for a control order—having decided an ordinary trial is not possible—it is likely that there will be evidence which is not available.
6.45 p.m.
Furthermore, but along the same lines, if one looks at the matters which must be covered by the regulations, they allow representatives to question witnesses. The trouble is that, in many of these cases, the one thing one will not be able to do is disclose the name or identity of the witness giving evidence. That is why one is having these proceedings in the first place: to do so might put people at risk.
It is sadly unrealistic to suggest that one can have rules which must ensure that the relevant party—that is, the person against whom the application has been made—is entitled to question witnesses. Equally, I question whether it is realistic to say, as it does in sub-paragraph (d), that he is entitled to disclose any
In this type of procedure there will be some areas that we will be unable to cover. Therefore, while I think we should do everything we can to get as close to the rules of a normal criminal trial as possible, we must think further to see what is achievable and what is not. That may be another argument for having more time on this Bill.
I notice something in this Bill that is not referred to elsewhere within it. If the evidence the Secretary of State has is exculpatory of the individual then, in that case, that evidence should clearly be provided to him. When it is said that the evidence should be of a kind that may harm the party's case, it is not realistic to require rules to be made which require that disclosure, or the right to question those witnesses.
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