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The noble Baroness, Lady Falkner, expressed concern, which I share, about young people, but the Bill has safeguards. Section 58 of the Terrorism Act and the new offence both include a statutory defence to protect

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those who have a reasonable excuse for their actions. To establish this defence, the defendant needs only to claim to have a reasonable excuse and it is then for the prosecution to prove, beyond reasonable doubt, that there was no such excuse. Further, the DPP must authorise prosecutions under Section 58A. Its decision will take account of the possibility of the person having a reasonable excuse for his or her actions. Therefore, safeguards are in place. It is clear that this is not information that people would normally have, but that, by putting it around, they would put someone at risk. I therefore ask the noble Baronesses to withdraw the amendment.

Baroness Falkner of Margravine: I am grateful to other noble Lords who have supported the amendment. I am disappointed that the Minister feels that no further clarification or tightening is needed, particularly in light of the examples that he gave, because they were precisely the kind of examples that we were concerned about in the first place; for instance, information that is published in newsletters of groups or communicated in writing—I was thinking not necessarily of journalists, but of more innocent groups and organisations that might, for example, have someone from the armed services come to speak at a social function. Before I withdraw the amendment, may I ask the Minister whether he believes that another form of words to express the same levels of intent would be satisfactory or whether he just believes that the clause as it stands under Section 58 is adequate?

Lord West of Spithead: The safeguards that the noble Baroness seeks are in the Bill, but I am happy to have a dialogue outside the Committee to see whether some form of words would make her feel happier. I am content that the Bill aims only at people who produce information that is clearly intended to pinpoint somebody. However, I am happy to have a discussion outside the Chamber to see whether there is a form of words that would be acceptable. As it stands, I believe that the clause is quite secure.

Baroness Falkner of Margravine: I thank the Minister for that. I shall take him up on his offer. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 agreed to.

Schedule 7 [Offences relating to information about members of armed forces etc: supplementary provisions]:

Lord West of Spithead moved Amendment No. 129:

129: Schedule 7, page 95, line 30, leave out “a member of Her Majesty’s Forces” and insert “—

(a) a member of Her Majesty’s forces,

(b) a member of any of the intelligence services, or

(c) a constable,”

The noble Lord said: On Report in the Commons, we added the police and members of the security and intelligence agencies to the new offence to be inserted at Section 58A of the Terrorism Act 2000 by Clause 83. The result is that the Armed Forces, police and members of the security and intelligence agencies will all now be protected under this offence.

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A corresponding consequential amendment should have been made to Schedule 8A to the 2000 Act but was not. Schedule 8A makes provision to ensure that the offence complies with the e-commerce directive in so far as it applies to internet service providers. The amendment corrects the earlier omission of this minor and consequential amendment on Report. I beg to move.

On Question, amendment agreed to.

Lord West of Spithead moved Amendment No. 130:

130: Schedule 7, page 95, line 34, at end insert—

“( ) In this paragraph “the intelligence services” means the Security Service, the Secret Intelligence Service and GCHQ (within the meaning of section 3 of the Intelligence Services Act 1994 (c. 13)).”

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 84 agreed to.

Clause 85 [Control orders: powers of entry and search]:

Baroness Miller of Chilthorne Domer moved Amendment No. 130A:

130A: Clause 85, page 62, line 7, at end insert “unless ownership of the premises referred to in paragraph (b) has changed since the order requiring access to be granted was made, or other circumstances have changed such that it would no longer be within the controlled person’s power to grant access.”

The noble Baroness said: This is a probing amendment to see whether the Minister agrees with me that, as the clause is drafted, a constable who suspects that a controlled person has absconded may force his way into that person’s home or any other premises to which the controlled person has ever been required to grant access under the order. The difficulty with the proposal is that it does not foresee any point at which the premises may, for example, have changed hands; the premises may for ever be subject to this legislation, while the person who was the reason for access being granted has long since moved. Although it is hard to foresee any circumstances in which an officer would wish to enter premises that the controlled person had long since left, can the Minister assure me that the restrictions in new Section 7C(5) are tight enough to prevent the warrant being inappropriately used after it has been legitimately granted but when it no longer applies to such premises? I beg to move.

Lord West of Spithead: I understand the noble Baroness’s intention in moving this probing amendment. There was no intention whatever to allow the police to go into properties that someone had lived in years ago and which now belong to somebody else. However, if someone has a family home that he has been living in and then gets a flat and moves there and is using both places, the police need to be able to go into both places to see whether somebody has absconded and whether there is material relating to that absconding, or whatever.

I was briefed that it was too difficult to come up with a form of words that captured the differences that the noble Baroness outlines. I assure her that we have absolutely no intention of granting the police an ability to search all sorts of premises that no longer

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have anything to do with them. However, on reflection, I should like to try again to see whether it is possible to find a form of words that captures that although, as it stands, it is quite clear—and we have put safeguards in place to ensure that the police will not do that. We could discuss the matter outside the Committee with my Bill team to see whether there is a different form of words. If there is not, I shall leave the drafting as it is, because I believe that it captures the essence of what we are trying to do—not to broaden the search to all sorts of premises but to allow police to go to the places that we know that the particular man or woman is using.

Baroness Miller of Chilthorne Domer: I am very grateful to the Minister for his willingness to look at this again, because there are safeguards that it might be useful to have in there. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 130B not moved.]

Clause 85 agreed to.

Clauses 86 to 88 agreed to.

Lord Lester of Herne Hill moved Amendment No. 131:

131: After Clause 88, insert the following new Clause—

“Control orders: obligation to give reasons

After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 (c. 2) insert—

“(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in section 2(1) above are made out.””

The noble Lord said: As Members of the Committee will have seen, I am the only member present from the quartet of names put down to this and subsequent amendments—that is to say, myself, the noble Earl, Lord Onslow, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs. We are all members of the Joint Committee on Human Rights and each of them apologises for the fact that they cannot be here. It has the great disadvantage that the Committee can listen to only one speech rather than four speeches on these issues. I sympathise with the Committee, which will have to bear with that with all the fortitude that it can muster.

5 pm

The groupings are luxurious, in the sense that there is a series of groupings dealing with control orders. The first group is Amendments Nos. 131 and 137 to 141, and then there are separate groupings for Amendments Nos. 132 to 134, Amendments Nos. 135 and 136, and Amendment No. 142. This bundle of amendments dealing with control orders have all been tabled after the Joint Committee on Human Rights unanimously came to the conclusion that we should recommend a number of amendments to the control order regime which in our view are necessary to render it human rights compatible.

We have explored this matter in previous reports. I do not need to go through any of them. Most recently, we dealt with it in our report of 8 October, beginning at paragraph 128. We noted with interest that the UN

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Human Rights Committee—that is to say, the quasi-judicial body that monitors countries’ records in complying with the International Covenant on Civil and Political Rights—in its concluding observations on the UK compliance with the covenant was concerned about the control order regime. That distinguished committee recommended,

I speak to all the amendments in a single speech to sum up the matter up as briefly as we did in our latest report. First, on priority of prosecution, we said:

“We recommend that the Prevention of Terrorism Act 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. We also recommend that the Secretary of State should be subject to an express statutory duty to review the possibility for prosecution on a regular basis, and an amendment to increase the transparency of decisions that prosecution is not possible”.

That is very important because it underlines emphatically that priority should be given not to imposing control orders but to prosecuting for these most serious offences.

Then under “Deprivation of liberty”, we state:

“We recommend an amendment to clarify the approach to be taken by courts when deciding whether the effect of a control order is to deprive a person of their liberty in the Article 5 ECHR sense; and an amendment to impose a 12 hour maximum limit on daily curfews imposed by control orders to make it less likely that control orders will be in breach of”,

the right to liberty in Article 5. Article 5 is of course the European habeas corpus provision, and it is very important that deprivations of liberty should be no more than necessary.

Then, as regards due process, we recommend a number of amendments, all to be found in these groupings. The first is,

I will come back to that before I conclude. The second is,

making control orders. The third is,

The fourth is,

The fifth is,

The sixth is,

Then, under “Maximum duration of control orders”, we state:

“We recommend an amendment to set a statutory maximum duration of 2 years for a non-derogating control order”.

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I realise that much of this is technical at first sight. In reality, however, it is much more than mere lawyers’ stuff. It is about fundamental principles concerned with liberty and fairness in how we deal with those subjected to the draconian regime of control orders. Members of the Committee will see in the Marshalled List, starting at Amendment No. 131, useful headings explaining which amendments do the work that I have just tried to summarise. It is extremely important that these amendments are looked at carefully and, if necessary, after we have heard from the Minister, that we reflect further on what he says about them.

I add one important point to what the Joint Committee has already explained carefully. There was last week a decision of the Court of Appeal about control orders and procedural fairness. The members of the Court of Appeal were divided, and the case is undoubtedly destined for the House of Lords. I therefore would not dream of saying anything about the merits of the case. However, matters were referred to in the dissenting speech of Lord Justice Sedley that are of sufficient general importance for me to mention them to the Committee.

All three members of the Court of Appeal were concerned with a point of natural justice. What happens if a judge, looking at material that is not shown to the person subject to the control order, comes to the view that it is an absolutely obvious case without hearing anybody speak on behalf of that person? Is it fair that he or she should decide the matter then and there, and impose the order without giving the person concerned—the detainee—the opportunity of rebutting the case against him in some form? Lord Justice Sedley said:

“It is easy to conclude that there can be no answer to a case of which you have heard only one side. There can be few practising lawyers who have not had the satisfaction of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by 10 minutes of well informed cross-examination, or convincingly explained away by the other side’s testimony. Some have appeared in cases in which everybody was sure of the defendant’s guilt, only for fresh evidence to emerge that makes it clear that they were wrong. As Mark Twain said, the ‘difference between reality and fiction is that fiction has to be credible’. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the Bench. It reminds them that you cannot be sure of anything until all the evidence has been heard and, even then, you may be wrong”.

A little later, Lord Justice Sedley continued:

“Judges are not proof against the human delusion that one has heard enough to be sure that there is no answer. They must guard themselves against it. The way in which the law ensures that they do so—not only the common law, but all the systems governed by the ECHR and many others besides—is to insist not that everything is to be known before judgment is given, but that everyone affected must have had a proper chance, which they may of course forfeit, to advance as much material as may help the tribunal in reaching a judicious conclusion”.

He continued:

“It seems to me that a doctrine that an otherwise unfair hearing will become fair if the material which the party affected has had no opportunity to answer is sufficiently convincing is pragmatically unsustainable. It is also constitutionally subversive because, as it seems to me, it negates the judicial function which is crucial to the control order system”.

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After referring to the wartime case of Liversidge v Anderson and the famous dissent of Lord Atkin, he recalled Lord Denning’s comments in his memoirs about Regulation 18B, the work that Lord Denning did in Leeds when people were being detained under that regulation, and Lord Denning’s attack on the system.

The judgment continued:

“There is nothing in the nature of a control order, with its potentially devastating effect on the life of the individual affected and his family, which calls for less than the maximum judicial oversight before it is confirmed. Nor, it seems to me, is the necessary rigour diluted by the fact that what has to be established is only that there are reasonable grounds to suspect involvement in terrorist-related activity. It is perfectly true that reasonable grounds to suspect something can coexist, at least in theory, with proof of the contrary, but facts have to be proved before they can found suspicion, and if a convincing explanation is offered that such facts are proved, the suspicion may cease to be reasonable”.

I cannot do justice to the whole of that judgment or to the whole of the judgments in general, but I hope that the non-lawyer Members of the Committee as well as the lawyers get the drift, which is that it is extremely important to ensure that natural justice in some form really is done in practice in dealing with these control orders. We understand all the difficulties about disclosure of sensitive material and special advocates, but it is the unanimous view of the Joint Committee on Human Rights that these procedural safeguards are needed to bring the regime fully into line with our obligations under the European convention and the international covenant. As I say, I have spoken to all the relevant amendments. I beg to move.

Lord Kingsland: The noble Lord, Lord Lester of Herne Hill, has moved Amendment No. 131 and spoken to all the amendments in the next four groups, which is a perfectly logical approach for him to have taken, given that the substance of what he said forms part of a jurisprudence spread over three cases earlier in the year. I hope that the Minister will forgive me if I follow the noble Lord, Lord Lester, in my approach. Rather than taking each line blow by blow, I shall deal with all the issues which fall within the next four groups of amendments.

I think it is fair to say that the landscape of control orders has been transformed by three cases this year, all of which have been decided by your Lordships’ Appellate Committee. These are: JJ and others; MB and E. The question for the Government is, to what extent, if any, they ought to amend the 2005 legislation to incorporate this new jurisprudence. There is no doubt that the Joint Committee on Human Rights, admirably represented today by the noble Lord, Lord Lester of Herne Hill, feels strongly that the Act should be amended. With some qualifications, that is also our view.

The noble Lord, Lord Lester of Herne Hill, began by taking us to the issues which were raised in the case of E, which concerned what he rightly called the priority of prosecution. This is an area in which the Act is particularly weak. It requires the Secretary of State to refer himself to the police, but beyond that there is no formal set of obligations at each stage of the control order procedure to require the political arm of the constitution to communicate with those responsible for bringing prosecutions.

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5.15 pm

The point was very well put by the noble and learned Baroness, Lady Hale, in her speech in the case of E in your Lordships’ House, in which she said that,

In our view, that of the noble Lord, Lord Lester, and that of the Joint Committee on Human Rights, the safeguards to ensure that prosecution comes first are inadequately represented in the Act. What is required is well set out in paragraphs 66 to 70 of the Joint Committee on Human Rights report, HL Paper 57/HC356. First, the Secretary of State should be required to get a statement from the Director of Public Prosecutions to say in terms that a prosecution is not possible in the particular circumstances of the proposed control order, and that the matter should be kept under continuing review.

Once again, the Secretary of State was found at fault in the case of E for, once a control order had been imposed, not keeping the possibility of prosecution thereafter under constant review. The report quoted with approval a statement from the Court of Appeal:

“Once it is accepted that there is a continuing duty to review ... it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful ... it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution”.

No doubt the Minister will recall that in his second report the noble Lord, Lord Carlile of Berriew, particularly emphasised the inadequacy of the process of continuing review.

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