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Baroness Williams of Crosby: My Lords, I thank the noble and learned Lord the Lord Chancellor for giving way. Perhaps I may ask him directly the following question. In a situation where the difference between a review and a sunset clause depends to a very great extent on the belief in this House that such a sunset clause would oblige a recasting of the legislation, and in the light of what happened in the Newton committeesome doubt about whether that would be equally the case with regard to an annual reviewperhaps I may suggest to the noble and learned Lord the Lord Chancellor that he has in his hands the capacity to unite this House and another place in a united determination to overcome terrorism. You do not overcome terrorism if there are deep divisions between the parties, exacerbated by a general election, in a way that now confronts us all and that could present the greatest possible danger to this country.
Lord Falconer of Thoroton: My Lords, the noble Baroness puts her finger on the problem: we do want to try to unite both Houses. That is why throughout this 24-hour period and before we have introduced sensible provisions, very similar to the provisions introduced where there are problems of this sort, which go as far as we believe we canthat is, the review and the renewal procedureswithout going as far as leaving open the possibility of there being no anti-terrorism law. Does this House think it possible that it would not agree with the detail of a terrorist law that the Government produced? Look at the debates that have gone on in relation to this.
We have been striving, over the past 24 hours and before, to get to the point where there is that review but there is no uncovered period. I earnestly ask noble Lords to look and see what has been done about review and renewal through this process and to accept that it is a bona fide attempt to deal with the quite legitimate points made by noble Lords in this House.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. Is not the fatal inadequacy of the renewal procedure he is pressing on the House the fact that a statutory instrument effecting the renewal is unamendable?
I think the time has come, has it not, for our disputes to be put aside? We have listened very carefully to the sunset clause argument and we have made progress in relation to it. There will be informed debates as to the efficacy or otherwise of the Bill. The difference between us is that some Members of the House want a position where an axe can fall on this anti-terrorism legislation, and we cannot accept that. I invite noble Lords to accept the amendments put forward by the Commons.
Lord Kingsland: My Lords, before the noble and learned Lord sits down, he said that in order for a new piece of legislation to flow from the review procedure there would have to be agreement between both Houses of Parliament, if I understood him correctly. But since the noble and learned Lord has expressed such a contemptuous view of your Lordships' House and its role in the legislative process today, how can that agreement mean anything?
Lord Falconer of Thoroton: My Lords, I have certainly not expressed a contemptuous view about this House. Since I have been here for the past seven years, I have always understood the constitutional position to be, as someone said, that we have the power to delay and we have the power by that power to delay to make the other place think again. We have used that power. There are legitimate and bona fide reasons why the other place has taken the view that the sunset clause is not the appropriate way to deal with it.
I ask this House to accept the bona fides of the other place in that respect; I ask the House to accept the bona fides of the Government in taking this view; and I ask this House to stop blocking the Prevention of Terrorism Bill.
Lord Goodhart: My Lords, shortly after the debate, which started at five o'clock this morning, I was walking along a corridor in your Lordships' House when I happened to pass the Home Secretary. He glared at me and said, "You made a terrible speech". I took that as something of a compliment. But that attitude shows why the ping-pong on this occasion has been so contentious. Indeed, it is by far the most contentious of any that I have seen in the past seven and a half years.
A sunset clause is, of course, an essential element in any deal that is to be done to ensure that this legislation goes through. As my noble friend Lady Williams of Crosby said, a review is simply not good enough. One only has to look at what happened to the report of the Newton committee, which reviewed the anti-terrorism Bill. That was simply thrown into the wastepaper basketuntil it had to be dug out again following the decision of the Law Lords, when the Government suddenly began to realise that they ought to take notice of what it said.
Lord Falconer of Thoroton: My Lords, I apologise for intervening. Is it the position of noble Lords on the Liberal Democrat Benches that if we do not agree to the sunset clause they will veto the Bill?
We of course welcome the support of the noble and learned Lord, Lord Morris of Aberavon, of the noble Lord, Lord Owen, and of my noble friend Lord Steel of Aikwood for the sunset clause. We will, of course, supportand continue to supportthe Motion to be moved by the noble Lord, Lord Kingsland, for a sunset clause. If he intends to continue to divide the House on that, we shall continue to support him.
However, we believe that a sunset clause is not the only necessary element. We need to ensure that judges makeand do not just reviewcontrol orders, and all kinds of control order. We need to ensure that there is an adequate standard of proof. The noble and learned Lord, Lord Morris of Aberavon, said that the balance of probabilities was not a suitable test for analysing risk. The balance of probabilities test does not, in fact, apply to risk. It applies to the question of whether there is evidence that the defendant has been involved in terrorist activities. That issue is perfectly appropriate for test on the balance of probabilities.
In that context, I particularly welcome the very powerful speech by the noble Lord, Lord King of Bridgwater. He made a very strong case for a judicial and not an Executive process and pointed to the severe problems which an Executive process had caused in Northern Ireland. He spoke from his enormous experience of those matters.
Of course we on these Benches support the Government in their desire to introduce control orders. But the Government's proposals infringe civil liberties in a way which is wholly unnecessary to their purpose. I seek to test the opinion of the House.
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