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Noble Lords: Oh!

Lord Goodhart: My Lords, I hear certain expressions of dismay, but this is an important constitutional Bill and we have agreed to the most recent proposal on the basis of undertakings given by the Government. We trust those undertakings and I am sure that the Government have every intention of carrying them out. But I should warn Members of the party opposite that, in the circumstances, we reserve this right. We have no expectation that we will ever need to rely on it, but it could possibly arise.

I turn now to our amendment. I shall be brief because we have already debated it on a number of occasions. If it is agreed, this amendment will ensure that control orders at all levels will be made by judges and not by the Home Secretary, and that at all levels the standard of proof should be that of beyond reasonable doubt. We understand that the Conservative Party will not now support that. They regard the sunset clause or its equivalent—its replacement—as the key issue for them on this Bill. They are satisfied with what has been achieved on that and, as I understand it, do not wish to press for anything further.
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We have always made it clear that the parts contained in Amendment No. 1 are at least as important to us. We therefore wish for a vote in order to put on the record the importance that we attribute to that amendment. I beg to move.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q, 37S, 37T and 37Y in lieu of Lords Amendment No. 8; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 37O and 37X in lieu of those Lords Amendments; and do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17.—(Lord Goodhart.)

Lord Kingsland: My Lords, I thank noble Lords for standing firm throughout the past 24 hours, in the face of unparalleled pressure, to support what I consider to be the highest principles in our constitution. The effect of that has been demonstrated by the government overtures this afternoon, which, we find, satisfy all our requirements for the sunset clause.

The noble and learned Lord the Lord Chancellor has set out a timetable that is entirely satisfactory and has given an unequivocal commitment that the scope of the counter-terrorism proposals will be wide enough to cover all aspects of the Bill that is about to go on to the statute book. The noble Lord, Lord Goodhart, asked the noble and learned Lord the Lord Chancellor whether he would confirm whether that was so. I do not think that I saw the noble and learned Lord blink but I took the fact that he said nothing as confirmation that his response to the question of the noble Lord, Lord Goodhart, was "Yes".

Lord Falconer of Thoroton: My Lords, I can confirm that I gave that assurance. Indeed, the right honourable Mr Michael Howard told the world at 5.15 p.m. that I had privately given such an assurance at 4.15 p.m. to the noble Lord, Lord Strathclyde—private being a rather short-lived assurance on this occasion.

Lord Kingsland: My Lords, in some ways I think that the reply of the noble and learned Lord the Lord Chancellor is academic, because after the general election we will be in charge of these affairs. And I can give an undertaking to your Lordships' House that we will stick to the timetable and the scope of the Bill.

There are still many things that we do not like about this Bill, in particular those set out in the amendment tabled by the noble Lord, Lord Goodhart. However, in all the circumstances, we do not feel inclined to support his amendment. We feel that what I have described as the equivalent of the sunset clause will
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give us sufficient constitutional guarantees over the next year. I hope that the noble Lord will not mind if I invite those behind me to abstain.

I conclude by sharing entirely the sentiments expressed by the noble and learned Lord about Hansard, and all the splendid help that we have had from there, and all the other parts of your Lordships' House that have contributed to make these 24 hours much less painful than they would otherwise have been.

Baroness O'Neill of Bengarve: My Lords, there are one or perhaps two further undertakings that are relevant. One has been implicitly made. The noble and learned Lord the Lord Chancellor has committed his party to a certain course of action with respect to legislation, after an election, on counter-terrorism. I think that I heard the noble Lord, Lord Kingsland, make a comparable undertaking on behalf of his party, should it be in power. I hope that we may have a comparable undertaking from the Liberal Democrats.

Lord Falconer of Thoroton: My Lords, for some reason it never occurred to anybody that we should ask for such an undertaking.

Lord Thomas of Gresford: My Lords, I give that undertaking on behalf of my party.

I wish to add the thanks of my party to those of the noble Lord, Lord Kingsland, and the noble and learned Lord the Lord Chancellor to all those who have assisted us and who have been behind the scenes in what has been a very long and difficult period of time. I particularly thank my colleagues on the Liberal Democrat Benches, 85 to 90 per cent of whom have voted in every Division during the passage of the Bill.

I shall speak briefly to the amendment. It has received a quite inaccurate title "the burden of proof". It is not about the burden of proof at all. It is about two very important matters of principle. The first is that a non-derogating order should be granted by a judge and not by a Secretary of State, a Minister of the Crown. Secondly, in granting such an order, that person should apply the standard of proof of "on the balance of probabilities". As I have said so many times, and shall not repeat, they are principles that are deeply rooted in the law and constitution of this country. We stand our ground on these principles.

The Earl of Onslow: My Lords, if the groan goes up, the groan goes up. Oh why, oh why, oh why could they not have said this 24 hours ago? No, the noble Baroness did not. We have got a timetable and all the undertakings that we want. There is an expression: if it looks like a duck, quacks like a duck and swims like a duck, it is a duck. The only difference between this duck and the duck provided by the noble and learned Lord is that his duck is just efficient in one webbed foot.

Lord Falconer of Thoroton: My Lords, at the Hansard reference that I gave, the noble Baroness, Lady Scotland, specifically identified the Act of Parliament that we were
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going to propose in respect of which amendments could be made. That has been the position for some very considerable time during the passage of the Bill. It is not a sunset clause, but it deals with the problem—the need to amend—that everybody wishes. It is not to the credit of the noble Earl, Lord Onslow, that he made the remark he just made.

Lord Goodhart: My Lords, I think that at one point in my introductory speech I may have referred to "beyond reasonable doubt" when I meant "on the balance of probabilities". I am afraid that after the longest Thursday of my life, I am prone to one or two little slips of that nature.

This has been a remarkable occasion. The sight of your Lordships' House with more than 250 Members present at 5 a.m. was truly astonishing. I can only say that it is one that I hope never to have to see again. But it was at least interesting. Having said that, I wish to test the opinion of the House.

6.49 p.m.

On Question, Whether the said amendment (A1) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 117.

Division No. 14


Addington, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Clement-Jones, L.
Dholakia, L.
Dykes, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Forsyth of Drumlean, L.
Garden, L.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Kennedy of The Shaws, B.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Ludford, B.
Maclennan of Rogart, L.
Maddock, B.
Mallalieu, B.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Roper, L. [Teller]
Russell-Johnston, L.
Sandberg, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Southwark, Bp.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
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.
Bledisloe, V.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, 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.
Gavron, L.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Greengross, B.
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 Chesterton, L.
Irvine of Lairg, L.
Joffe, L.
Jordan, L.
King of West Bromwich, L.
Layard, L.
Leitch, 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, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Pendry, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
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.
Slim, V.
Snape, L.
Stone of Blackheath, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Waverley, V.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

10 Mar 2005 : Column 1064

On Question, Motion agreed to.

6.58 p.m.

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