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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 committee—some doubt about whether that would be equally the case with regard to an annual review—perhaps 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 can—that is, the review and the renewal procedures—without 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.

The other place does not want a sunset clause. They have expressed that opinion time and time and time again over the past 24 hours.

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?

Lord Falconer of Thoroton: My Lords, that is absolutely true but, in order for there to be a new terrorist Act, there needs to be agreement between both Houses.
10 Mar 2005 : Column 1050

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 basket—until 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?

Lord Goodhart: My Lords, so far as we are concerned, the answer would be "Yes". I cannot, of course, speak for the Conservative Benches.
10 Mar 2005 : Column 1051

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, support—and continue to support—the 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 make—and do not just review—control 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.

12.42 p.m.

On Question, Whether the said amendment (No. A1) shall be agreed to?

Their Lordships divided: Contents, 176; Not-Contents, 128.

Division No. 12


Ackner, L.
Addington, L.
Ahmed, L.
Alliance, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridgeman, V.
Bridges, L.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Cope of Berkeley, L.
Crickhowell, L.
Cumberlege, B.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of High Cross, L.
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Jenkin of Roding, L.
Kalms, L.
Kennedy of The Shaws, B.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Mowbray and Stourton, L.
Naseby, L.
Neuberger, B.
Newby, L.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palumbo, L.
Park of Monmouth, B.
Parkinson, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Portsmouth, Bp.
Quirk, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L. [Teller]
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
St John of Fawsley, L.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tombs, L.
Tope, L.
Tordoff, L.
Trumpington, B.
Ullswater, V.
Vallance of Tummel, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.


Alli, L.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Blackstone, B.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
Desai, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Kilclooney, L.
King of West Bromwich, L.
Laming, L.
Layard, L.
Leitch, L.
Levy, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Marsh, L.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Paul, L.
Pendry, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Waverley, V.
Weatherill, L.
Weidenfeld, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Winston, L.
Young of Norwood Green, L.

Resolved in the affirmative and amendment agreed to accordingly.

10 Mar 2005 : Column 1053

On Question, Motion, as amended, agreed to.

12.53 p.m.

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