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Lords Chamber

Volume 670: debated on Thursday 3 March 2005

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House Of Lords

Thursday, 3 March 2005.

The House met at eleven of the clock ( Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Derby): The CHAIRMAN OF COMMITTEES on the Woolsack.

Chechnya

asked Her Majesty's Government:

When they last discussed the conflict in the Chechen Republic with the Russian Government and what was the outcome.

My Lords, Her Majesty's Government most recently raised the issues facing Chechnya with the Russian Government during Bill Rammell's visit to Moscow on 21 and 22 February to announce the launch of the North Caucasus Education Initiative. As the incoming EU President, we also participated fully in the EU-Russia consultations which took place this week, at which human rights issues in Chechnya were discussed at length.

My Lords, I thank my noble friend for that reply. Does she agree that at a time of great preoccupation about global terrorism, there is anxiety that the way in which the Russians are conducting the operation in Chechnya is driving young people and others into the arms of the extremists? The Russians' conduct is recruiting for the extremist cause. Is it not, therefore, crucial to make this a major issue at the most senior levels of government? Would it not be appropriate, as we take the presidency of the European Union and lead the G8 this summer, to ensure that this issue is high on the agenda with our allies and colleagues there so that they can join us in the pressure on the Russians?

Is my noble friend aware that Memorial, one of the most courageous and respected NGOs in Russia, has said that last year in Chechnya 397 people disappeared? They were abducted. In England, proportionately, that figure would be 14,000 to 15,000 people who disappeared in a year. Yet that is a country which claims to be a member of the Council of Europe and to share all its aspirations and objectives.

My Lords, I very much agree with my noble friend's opening comments about the way in which ongoing problems in Chechnya to do with militants will have a knock-on effect when it comes to recruiting young people. However, the UK regularly underlines with our Russian partners our conviction that acknowledging and addressing the problem of human rights abuses is an important part of building confidence in a lasting settlement in Chechnya.

My noble friend mentioned the human rights group Memorial. It has suggested that the number of abductions in Chechnya has fallen this year. However, despite that, we believe that the continuing problem of abductions in the region is totally unacceptable.

My Lords, did not the UN Commission on Human Rights, when it looked at this appallingly difficult problem, recognise that there were atrocities on both sides? Would not the balanced view be that while the Chechen people want greater local autonomy, the Russians see this as a hotbed area of A1'Qaeda activity and Islamic extremism, with some evidence to support that, and that if it broke away altogether it would trigger the unravelling of the entire Russian Federation? So is not the right approach to applaud what the noble Lord, Lord Judd, expresses in his concern for human rights but also to recognise the Russian dilemmas and encourage the round-table talks which are proposed to be held in either Moscow or Grozny and support the aim of all sides, including the Russians, to try to resolve this eternally difficult problem in a less violent way?

My Lords, we strongly support the proposed round-table talks. There is evidence to link elements of the militants in Chechnya with parts of Al'Qaeda. The thrust of the noble Lord's contribution is absolutely right. We recognise Russia's genuine security concerns in the region. Terrible terrorist attacks have taken place across Russia and have claimed many lives.

My Lords, does the Minister agree that the round table discussions will not be effective unless they genuinely include representatives of Aslan Maskhadov? Is it still the Government's policy to offer asylum to supporters of Maskhadov who seek it in this country?

My Lords, it is not for us to say to whom the Russians should talk. We believe that peace in Chechnya will be secured only through a successful political process that is truly representative of the Chechen people. That further underlines the need for early parliamentary elections in Chechnya. The Deputy Prime Minister and Foreign Minister of the Chechen separatist government are currently claiming asylum in the UK.

My Lords, will my noble friend and Her Majesty's Government remind the Russian Government of their obligations as members of the Council of Europe? With particular regard to a recent case that was taken to the European Court of Human Rights which found against the Russian Government in six cases of human rights abuses, will Her Majesty's Government remind them that they should fulfil the terms of that court judgment and pay compensation to the Chechen families involved?

Yes, my Lords, we hope that the Russian Government will take this judgment very seriously and act on its findings.

My Lords, will the Government also make representations to the Russian Government that they should not use this as another excuse for further intervention in Georgia? I understand that the Russian Government think that the OSCE border monitoring force over the Pankisi Gorge should be withdrawn but also that the Pankisi Gorge is being used by Chechen separatists and therefore wish to have joint patrols with the Georgian Government on Georgian territory.

My Lords, we are continually concerned about the possibility of problems in Chechnya spilling over into the North Caucasus region. The noble Lord talked about Georgia, and, on the Caucasus region generally, it is important to have fair and transparent political processes as the ultimate goal because we do not believe that military intervention is the answer.

My Lords, is the Minister aware that a meeting of the All-Party Group on Human Rights under the chairmanship of Ms Ann Clwyd, MP, heard on Tuesday from a group of Russian lawyers and NGOs about the extreme difficulty that they have in raising human rights violations in Chechnya? Will the Government urge the Russians to sign up to the UN Commission on Human Rights' remit of inviting all the Special Procedures to visit Russia at their discretion, particularly the Working Group on Disappearances?

My Lords, we continue to be committed to co-operating with the Russians to generate concrete solutions to the human rights and socio-economic issues facing Chechnya and the wider region.

Female Genital Mutilation Act: Prosecutions

11.8 a.m.

asked Her Majesty's Government:

How many prosecutions there have been under the Female Genital Mutilation Act, which received Royal Assent on 3 March 2004.

My Lords, there have been no such prosecutions although there are some ongoing investigations. But the success of the Act is not necessarily to be measured solely in terms of the number of prosecutions. Prosecution after the fact does not relieve the victim of a lifetime of pain and discomfort. Ideally, we want to obviate the need for prosecution by preventing this practice occurring in the first place. To that end, the 2003 Act is intended to send a powerful message of deterrence.

My Lords, I thank my noble and learned friend for his Answer. Does he agree that part of the reason for there being no prosecutions may be the widespread ignorance among the public and some health professionals that female genital mutilation is against the law? Is he aware that, in research by the Development Support Agency, 50 per cent of those interviewed did not know that female genital mutilation was an illegal practice and 31 per cent of those questioned said that they did not care if it was and still intended to go on doing it? Is the Attorney-General aware also that of 50 midwives attending a recent midwifery conference, fewer than five knew that female genital mutilation was against the law?

My Lords, I absolutely agree with my noble friend that raising awareness, particularly among the practising communities, and educating them about the dangers and unacceptability of this brutal practice is essential. I had not been aware of the details that the noble Baroness has just mentioned until she kindly provided them in advance.

The Government are doing a lot to raise awareness. They are promoting work through FORWARD, which is the leading body actively working with communities to bring an end to the practice; the ACCM, the Agency for Culture and Change Management; and BWHAFS, Black Women's Health and Family Support, which is giving significant financial support. I agree with my noble friend that it is important that that work continues. To that end, I have invited those groups to meet me along with the FGM group of the Women's National Commission to discuss the issues further.

My Lords, the noble and learned Lord the Attorney-General referred to the organisation, FORWARD. Is he aware that it estimates that 74,000 first-generation African women in this country have undergone mutilation of this type and that 7,000 girls under the age of 16 are at risk every year? In what way are health professionals encouraged to report this illegal, and therefore criminal, activity to the police?

My Lords, those are statistics that I have seen before. One has to be a little careful about the "at risk" figure because it is based to some extent on the number of girls of a certain age in communities that have practised the procedure. Each of the major professional bodies has issued guidance or position statements on FGM, particularly since the 2003 Act came into force. I can provide hereafter a list of those bodies if the noble Lord wants it. I agree with him though that it is important that we should continue that work and, particularly, bring home the message, which I know that police are doing at least in London, that it is important to report such events, that they will be taken seriously and that, where appropriate, prosecutions will take place.

My Lords, am I correct in thinking that there has never been a prosecution, even since the 1985 Act? Under the 2003 Act, it is a question of whether you have taken someone abroad to have the procedure carried out. It is difficult to know who has been abroad and for what purpose. Therefore, the only way to discover mutilation would be when a midwife or an obstetrician or some medical person subsequently examined someone. The professional would know according to the age of the woman, particularly if she was young, that it had been done somewhere. What is the actual procedure of reporting? If, as the noble Baroness, Lady Rendell, said, so few people are even aware that the practice is illegal, is there not a need to publicise more widely to the health profession the fact that it is?

My Lords, I think that the noble Baroness is right to say that no prosecutions have been made. At least I have not come across any examples. One of the reasons why the 2003 Act was passed was to deal with some of the difficulties involved in prosecution; that is, if it was suggested that the procedure had taken place abroad, it was difficult, if not impossible, to prosecute. I agree with the noble Baroness also about the importance of raising awareness, and that is going on. I take some small comfort from the fact that the research that I have seen in relation to other countries indicates that they too have difficulties in prosecuting.

My Lords, in reply to the noble Baroness, Lady Rendell, my noble and learned friend mentioned that some investigations were ongoing under the 2003 Act. Is he able to indicate how many such investigations there are?

My Lords, I cannot. The noble Lord will understand why it would be undesirable to go into too many details. It is important that the message is given out strongly to health professionals and others that the matter will be taken seriously. It is a brutal practice; it causes lifelong damage to the girls and women to whom it is applied; and we really must do all we can to stamp it out.

My Lords, is the noble and learned Lord the Attorney-General aware that most of these unfortunate children are taken abroad for the operations and, when they come back here, they can have horrific infections and terrible problems? Can he set up some form of reporting system for such conditions because the women concerned may visit GPs or hospitals?

My Lords, the noble Baroness is of course right to draw attention to the consequences of female genital mutilation, not just in the long term, but immediately in the aftermath of the procedure being carried out. Seven specialist clinics in the NHS provide healthcare for girls and women who have undergone FGM, including reversal surgery. So the Government are taking steps to deal with this in the ways that I have indicated.

Bosnia-Herzegovina: War Criminals

11.16 a.m.

asked Her Majesty's Government:

What representations they have made to widen the mission of the European Union force, which has taken over from the NATO force in Bosnia, to include apprehension of war criminals as defined by the International Criminal Court.

My Lords, the European Union-led force, EUFOR, in Bosnia and Herzegovina works in close co-operation with the NATO headquarters in Sarajevo to provide assistance to the International Criminal Tribunal for the former Yugoslavia. That includes action to detain fugitive persons indicted for war crimes. The Government do not see a need at this stage to widen further the mandate of EUFOR in that respect.

My Lords, does the Minister agree that the failure to apprehend either Karadzic or Mladic so many years after Srebrenica really shames us? At a meeting that I attended towards the end of last year, I understood from the French general who had taken over the EU force that had replaced NATO that their apprehension was not a priority mission of the EU force, nor was it of NATO. I do not understand why not, because I am sure that a determined effort to find those people would work.

My Lords, I hope I can reassure the noble Lord on his first point. The British force commander for EUFOR, who took over at the beginning of this year—Major General Leakey—has underlined in his public statements that EUFOR would lead efforts to tackle networks that sheltered and financed war criminals. In the first month of its mission, EUFOR, under the British general, mounted an operation to secure bunker complexes that were believed to have been used to shelter the fugitive, Ratko Mladic.

The noble Lord was concerned about the mandate. I can reassure him that EUFOR has full authority to monitor the military aspects of the general framework agreement for peace in Bosnia and Herzegovina. Both EUFOR and NATO have the authority to apprehend persons indicted for war crimes. Their mandate explicitly states that.

My Lords, I associate myself entirely with the remarks of the noble Lord, Lord Russell-Johnston. As we are talking about the International Criminal Court, which is referred to in the Question, would it be stretching the issue too far to ask what the Government's view is about alleged war criminals in Sudan and in the western region of Darfur? Have they been referred to either the International Criminal Court or to a separate tribunal?

My Lords, it is a bit of a stretch. I thought that I had tried to cover all the main aspects of the issue, but I am afraid that Sudan did not come into that. However, we believe that the international community should fully co-operate with the International Criminal Court.

My Lords, while returning the Question to order but nonetheless slightly widening its scope, will the Minister confirm that the encouraging aspect and broad background here is that in respect of both these particular issues and NPT adherence, WMD and the human rights aspects of the EU constitution when it has been ratified by all member states, along with the European Convention on Human Rights, those that are now putative new members of the European Union have to do all those things, not just some of them?

My Lords, the noble Lord is absolutely right. Balkan watchers in the House know that conditionality is the key here. If countries in the Balkans want to integrate further with Europe or NATO, it is a prerequisite that they co-operate fully with the International Criminal Tribunal for the former Yugoslavia.

Asylum Seekers: Detention Of Children

11.20 a.m.

asked Her Majesty's Government:

What is their response to the Save the Children report on the detention of children, No Place for a Child.

My Lords, we welcome the report as a valuable contribution to the debate about family detention. This is a detailed report and we will need to consider the contents and recommendations extremely carefully before responding in full, which we will do in due course.

My Lords, why does the noble Lord need more time to consider the recommendations made in this report when it simply reinforces what has already been said by the Chief Inspector of Prisons, the United Nations Committee on the Rights of the Child, the United Nations Human Rights Committee and the UNHCR? All have criticised our policy of detaining 2,000 children a year, half of them for longer than the 28-day period which the noble Lord himself has said should be the upper limit. Does he not agree that, in the light of all the reports, there should be a root-and-branch review of the policy of detaining children with a view to complying with the Government's own enunciated policy of keeping as few as possible in custody for the minimum length of time?

My Lords, the Government received the report on Monday. I ought to pay a compliment to Save the Children because this report is the fruit of a very good dialogue between Save the Children and the Home Office. We now look forward to continuing discussions with the charity so that we can consider its recommendations in a spirit of co-operation. We are at one with the noble Lord in wanting children to be detained for only the shortest possible period. We want also to ensure that such children are well looked after and cared for. It is clear that there are shared objectives here and we very much welcome the report in that light.

My Lords, are the Government taking seriously the very widespread concern, beyond even the question of children, about the privatised detention and removal of people from this country? Has the noble Lord himself looked into the allegations of racism, bullying and the use of excessive force in both detention centres and during the removal process?

My Lords, we take allegations of racism and excessive force very seriously indeed. Those matters have to be properly investigated. It is in no one's interest if such allegations have any substance. If anything substantial is found, those responsible need to be rooted out of the service. However, it is true that the vast majority of those working in detention centres and who are part of the removals process are honest, hardworking people with decent values. However, where we do come across unacceptable behaviour or practice, we need to ensure that they are brought to an end.

Whether care is better conducted by private contractors or by direct labour organisations is a matter for conjecture. In general terms, however, we find that the services provided by the private sector are of an extremely high quality.

My Lords, I do not know whether the noble Lord was able to see the programme on television last night showing incidents of real abuse, racial intolerance and total indiscipline on the part of certain members of staff. I know that he has duties in this House, so perhaps it is a little unfair to hurl this at him. However, when Home Office representatives have had time to watch the programme and digest its implications, will he please arrange for a Statement in this House on the whole issue of poor discipline among Immigration Service guards?

My Lords, regrettably I was not able to watch the programme shown last night. I wish that I had been able to because, like all other Members of Her Majesty's Government and particularly those with responsibilities for and interests in Home Office affairs, I take very seriously any allegations of racism and racist abuse. I like to think that I am part of a proud record of dealing with those issues. However, I can tell the noble Earl this morning that later today the Home Office will produce a Written Statement on the issues arising from the television programme. However, in fairness to all the other staff at Oakington who have not been implicated in any way—there are some 900 staff at the centre—I ought to place on the record our tribute to their hard work and determination to act in an entirely proper way when dealing with immigration detainees. I understand that the allegations relate to only a small number of people, many of whom have already had their licences to act as staff revoked. and quite rightly so.

My Lords, as my noble friend pointed out in his supplementary question, this issue has been raised not only in the Save the Children report, but also by both the UN Committee on the Rights of the Child and the UN Human Rights Committee under two international human rights treaties. Is the noble Lord aware that they have found the United Kingdom to be in breach of its international legal obligations? Given that, why on earth are the Government now procrastinating over a proper answer to the question posed by Save the Children in its report? Is it not time to end this abuse as soon as possible, in accordance with our international legal obligations?

My Lords, I reject the allegation that this Government are procrastinating on these issues. I think that we have a very good human rights record and I would argue with the noble Lord that the treatment of failed asylum seekers who have to be detained before they are removed is fair and proportionate. Where there are abuses, we wish to know about them. Where there are abuses, we will tackle them. That is precisely why I replied as I did to the noble Earl, Lord Onslow, just a few moments ago.

My Lords, does not my noble friend agree that the action being taken by the Government to bring home the fact that they will not tolerate racism in the Immigration Service and elsewhere makes it appropriate to argue strongly that the way immigration policy is administered is absolutely central to the battle for hearts and minds in the context of global security; that is, by winning friends and not driving people into the arms of extremist opposition?

My Lords, my noble friend makes an extremely important point. We have to be seen to be acting fairly and properly by running a decent and humane Immigration Service. In large measure, I invite my noble friend and other noble Lords to agree that that is exactly the approach undertaken by this Government over the past few years.

My Lords, I want to pursue slightly further the question put by my noble friend Lord Lester. Do the Government subscribe to international standards and guidelines which state that asylum-seeking children should not be detained? If that is the case, why is it necessary to put down a reservation on this matter with the UNCRC?

My Lords, in appropriate circumstances, particularly where families are being removed because their application has failed. it is only decent and proper to ensure that those children are held together with their families before they return to their country of origin. The noble Lord will know also that it is our policy to place unaccompanied asylum-seeking children in the care of local authorities, not to hold them in detention centres. That, too, is right and proper.

My Lords, has the noble Lord noticed among the findings set out in the Save the Children report that there is a severe lack of legal representation for many children being held in detention? Does that not undermine completely the principle of bail in detention?

My Lords, this clearly is an important issue. It is part of the report and one of the 21 recommendations that we, as a government, need to digest carefully and consider further. I am sure the noble Earl will have heard at the outset of my responses that we desire to have a continued dialogue with Save the Children. We believe that the report is a very important contribution to that debate, which needs to continue. We will of course endeavour to respond in detail to all the recommendations in order that we can come to an agreed and acceptable way of ensuring that such children are well looked after and cared for.

My Lords, will the Minister take note of the concerns expressed in the report on the voluntary aided return programme? People working both in the Home Office and outside are concerned that the voluntary aided return programme is not being raised more clearly with asylum seekers, both at the initial stage of application and in detention centres. Indeed, it was a recommendation of the Home Affairs Committee of the other House in 2003 that more work should be done in this area. Will the Minister look carefully at this matter?

My Lords, we take all of the recommendations seriously. This is clearly an important one to which we will give fair consideration. We of course wish to have a dialogue with the charities and NGOs involved in those discussions.

Parliamentary Commissioner (Amendment) Bill Hl

Read a third time, arid passed, and sent to the Commons.

Business Of The House: Prevention Of Terrorism Bill

11.31 a.m.

My Lords, perhaps I may offer the House a short explanation of where we are in regard to the grouping of amendments for the Prevention of Terrorism Bill. We are extremely close—by "we" I mean the usual channels and everyone with an interest in the Bill—to getting agreement on a sensible grouping of amendments, but I am afraid that we are about 10 minutes short of the deadline, which is so often the case.

For the convenience of the House and everyone who wants to ensure—as we all do—that there is an orderly debate, it would be sensible to adjourn until quarter to twelve so that there can be absolute clarity about the first group. We can then do what we all want to do, which is to have a sensible debate on a sensible group.

My Lords, we have done our best to accommodate the Government's perceived need to complete the Bill quickly but the House is being placed in a very difficult position today, not only in regard to the groupings but altogether. I remind your Lordships that the clauses of the Bill were never discussed at all in Committee in another place—they never reached that stage—because of a very tight timetable. So the clauses of the Bill have never been discussed at all.

Since then, I think 37 government amendments have been tabled this morning—they are all starred amendments—and they involve knocking out some clauses and inserting whole new ones. At the same time, as we have just heard, we have no groupings to go by. So it is not only difficult for the Front Benches to sort out where we are but also particularly difficult for individual Members who wish to take part in the various debates.

I am absolutely sure that we should adjourn for at least a quarter of an hour, but I am not sure whether we will be able to resolve matters satisfactorily in that time. I draw your Lordships' attention to the fact that the Constitution Select Committee of this House—an all-party committee, obviously, as all Select Committees are—has this morning reported that the proposals in the Bill are of major constitutional significance and that they and any possible amendments—it is referring to the Government's amendments as well as to others—should be given particularly careful consideration. The Select Committee is quite right, but the House will have a very difficult time doing that.

My Lords, from these Benches I wish to associate myself with the remarks of the Opposition Chief Whip and to add that, for us to do our job properly and to consider the Bill carefully, it is extremely important on this occasion that we get the groupings right and that we separate the different issues so that we can consider them properly. I believe that the delay is in the interests of the whole House and therefore we support it.

My Lords, I appreciate that these are usually matters for the usual channels but, as a humble Back-Bencher—perhaps not so humble—I would like to protest in the strongest possible terms. I have cleared my diary because of the importance of this matter. As far as I can see, there is not even a Minister on the Bench responsible for the Bill. People have had to work all night on these amendments and it really is outrageous if Ministers cannot get their act together when we are faced with the presentation of legislation on this kind of timetable.

I struggled this morning to understand the government amendments and those tabled by other Members of the House. It is impossible to follow matters because the Government are rewriting the whole Bill by amendments which have not been considered by the other place. If I were a Member of—the other place—which I was for a number of years; and I have never seen anything like this—I would feel grossly offended by the Government's treatment of the House of Commons. Given the Government's past treatment of the House of Lords, it is rather ironic that we should be here to save the Government's bacon in pursuing procedures which are unheard of and which are making it impossible for this place to do its job properly.

My Lords, following up on the point made by my noble friend, I hope the Government Chief Whip will help the House on this matter. We are about to embark on a most unusual procedure. The House of Commons has at no time discussed, even for a moment, the proposals now being put forward by the Government, and we are to be invited, I understand, to send back to the other place a very different Bill incorporating the radical amendments put forward by the Government.

We know from reading the papers and Hansard that the way in which the Government have conducted themselves over this matter did not find favour with the House of Commons the other day. We have some responsibility here not to stir up trouble between this House and the other place, and I wonder how the other place will feel we have conducted ourselves if we send back radical amendments with which it has to deal under a ridiculously tight timetable.

The Government Chief Whip at least owes us this: that we should not embark on any discussion of these amendments today without a clear statement from the Government on the amount of time that will be made available in the Commons to discuss these amendments, if and when they get there. If the answer is that they will all be discussed under a timetable which restricts debate to one hour, I cannot see that we would be right to deal with these amendments at all.

My Lords, perhaps I may put the counter view that this is Parliament working at its best. The Commons protested—indeed it rebelled; the Government listened and introduced amendments that are now to be debated in this House. This is Parliament working at its best.

My Lords, was not the Government Chief Whip slightly optimistic when he indicated just now that a postponement of a quarter of an hour would achieve as a result absolute clarity? It seems to me very unlikely that absolute clarity is ever going to be found in the pages of the Bill.

I agree entirely with what has been said about the way in which Parliament is being treated. The House of Commons is having no chance to discuss these matters and the House of Lords is being treated by the Government as their wash-pot.

My Lords, I have been in Parliament for nearly 60 years, in both Houses, and never before have I witnessed the way in which the Government are conducting this Bill of some national importance.

My Lords, this is not a Bill to reorganise Scunthorpe Borough Council but a Bill which will allow—or which will attempt to allow—the Government to lock up a British subject founded on bizarre rumours and enhanced by evidence from overseas intelligence services which could well have been extracted by torture. That is what the Bill will allow.

It is completely disgraceful that this should be rushed through on a timetable Motion of the House of Commons. The amendments produced for your Lordships' House are not yet even ready in proper order. Suddenly, we have to overturn 800 years of British liberties as a result of what will politely be called a foul-up—though I could think of a lot of other terms. I totally agree with the noble Lord, Lord Campbell-Savours. Parliament, for once, is doing its duty.

My Lords, perhaps I can be helpful. It is vitally important that we have sufficient time in this House to deal with all the amendments. I suggest that, in those circumstances, as I am sure all noble Lords will agree, we would be willing to work this evening until ten o'clock and, if needs be, to come in tomorrow.

My Lords, may I make this short intervention? There is growing apprehension among the judiciary about exactly what they are being asked to do. There is great concern that they may be dragged into the political scene by being asked to rubberstamp a procedure quite alien to their function. During all these discussions, I hope that someone has had the good sense to raise this type of question with the senior Law Lord and the Lord Chief Justice. Unless that has been properly covered, we are really in the dark on the position.

My Lords, perhaps I too can help. Is it not a fact that we now have in front of us a proposal from the Chief Whip that we adjourn for a certain period of time—in other words, a business Motion? That should exclude some of the comments which have been made about the substance of the Bill. The issue before us currently is not the Bill's substance; it is the business Motion moved by my noble friend the Chief Whip.

My Lords, surely the muddle is being caused by the unnecessary speed with which the Government are trying to get the Bill through both Houses of Parliament. The Government have said that, with a Bill of this importance, they wish to achieve a degree of unanimity. However, they tabled amendments only yesterday, and have rewritten the Bill in a major way. As my noble friend Lord Waddington very sensibly suggested, we should adjourn the debate not for half an hour but until the beginning of next week. We could then see whether there is a chance of getting the various amendments together and making sense of the Bill.

My Lords, I have listened to the discussion and will now suggest that we should adjourn until twelve o'clock. Given that the first grouping of amendments was agreed a short while ago, that should give us all enough time.

I am very tempted, although I shall resist the temptation, to respond to a number of former Ministers. Unless my memory has gone completely askew, they were not at all averse to supporting guillotine Motions in the House of Commons over—if my memory serves me correctly—18 years. I routinely remember the arguments used at those times, including those of the noble Lord, Lord Forsyth, who said that he was grossly offended by what had taken place. I can remember being grossly offended on numerous occasions in another place when the positions were reversed.

I will leave it there. However, I have to say to the noble Earl, Lord Onslow, that he has to be careful about what he says about the people of Scunthorpe. I think that that will travel back to the people of Scunthorpe and, if he is not careful, it might be interpreted as the Conservative view of them.

I simply repeat that I think that it would be sensible to adjourn until noon.

My Lords, before the noble Lord sits down, will he say whether he will get me an answer to my question by twelve o'clock? How much time will be allotted in the House of Commons to consider amendments put to them by this place?

My Lords, I can give the noble Lord, Lord Waddington, an answer to his question now. He would be grossly affronted, I think, if the House of Commons issued rules and edicts about how long we in the House of Lords should spend debating Bills. He would never have done that while he was in the House of Commons. I certainly cannot give him an answer to that question now. It would be quite improper for me to do so.

My Lords, could the Government Chief Whip explain one thing? He suggested originally that we adjourn the House until 11.45 a.m. That caused so much steam that everyone discussed it, and now it is 11.45 a.m. I cannot see why we now have to adjourn until twelve o'clock. Presumably the point of adjourning until 11.45 a.m. was to allow the Government to get the facts straight so that we could proceed. Does the noble Lord really mean that the Government do not have the facts straight and that they therefore need another quarter of an hour?

No, my Lords; it simply means that I have been listening to the debate. I am just anxious to make everyone happy. Another quarter of an hour might do that. I beg to move that the House do now adjourn during pleasure until noon.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 11.45 to noon.]

Prevention Of Terrorism Bill

The Secretary of State for Constitutional Affairs and Lord Chancellor
(Lord Falconer of Thoroton)

My Lords, I beg to move on behalf of the noble Baroness, Lady Scotland of Asthal, that the House do now resolve itself into a Committee upon the Bill.

Moved, That the House do now resolve itself into a Committee upon the Bill.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Before calling Amendment No. 1, I should point out that if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 6 to 15 inclusive because of pre-emption.

Before the Minister moves Amendment No. 1, would it not be much better if she gave an undertaking not to insist on putting her amendment in the Bill at this stage, so that the amendments that would otherwise be excluded could be discussed properly and in the right place? Then, if the Committee proceeds along the lines of some form of agreement, her amendment could be moved on Report, and it in turn may have to be amended after the Government have listened to what Members of the Committee have had to say.

First, neither I nor the Government want in any way to preclude discussion on those other amendments. Secondly, we make it clear that if the amendment in the name of my noble friend goes into the Bill it would not preclude any amendments being made to those amendments on Report or at Third Reading. We do not wish to curtail debate in any way. It seems to us convenient to put the amendment into the Bill so that there is at least clarity about what the Government propose and everything is in one document. I make it clear to the noble Earl that we seek neither to curtail debate nor to preclude any attempts to amend the Bill.

The Chairman of Committees has just said that if Amendment No. 1 is agreed, and the 16 lines are removed, all those amendments relating to Clause 1 as it stood previously would drop and could not be moved. It would not therefore be possible to debate them in this Committee. I accept that the noble and learned Lord the Lord Chancellor is not attempting to avoid debate on all those matters. However, could it not be agreed at least that the Minister should give notice that at the end of the debate on the amendment she will withdraw it, making it clear that she will bring it back at a later stage having heard the further arguments?

That seems a perfectly reasonable suggestion, if it helps noble Lords. That means that I will not move the amendment formally but may bring it back at a later stage. In that way there would not be a problem of pre-emption.

I am sorry to take a different view on this, but I think that the government amendment should go in at this stage. We are in a chaotic position, partly because we are at the same time considering amendments to the Government's new amendments and amendments to the Government's original version. We do not want that to happen again on Report. Although I entirely take the point made by the noble Lord, Lord Carlisle, who has an important amendment to be debated, Amendment No. 10, that issue is raised by others that are not pre-empted and it can be raised again by a different amendment on Report. It is important that we have a coherent government Bill on Report. If the government amendments are withdrawn, we will not get that.

As Members of the Committee can see, I have sympathy with both points of view. The group that we are starting with is quite big; it allows debate of the issues that the noble Earl quite legitimately wants to raise. I suggest that we get going and then see whether Members of the Committee feel that there has been a satisfactory debate about the issues that they want to raise. I understand that the noble Earl feels strongly about the matter; I was going to say that, unless noble Lords feel strongly about it, my inclination is just to start.

I understand completely the position of the Liberal Democrat Front Bench. They have tabled their amendments to a government amendment, and if it is not moved, their points cannot be raised. It just shows what a total foul-up the whole procedure has been. I have great sympathy with that. Would it not be possible to discuss the amendments to the government clauses and the government amendment and perhaps not move any of them? If there were some form of agreement, all the amendments could be tabled again on Report, when most of the work will have been done. That will still enable us to discuss some of the other issues. I quite understand the situation; Scylla and Charybdis have moved into this Chamber.

I am really getting worried. The Government Chief Whip got to his feet at about half past eleven and said one of the most optimistic things that I have ever heard: that if the House were adjourned for a quarter of an hour we would achieve absolute clarity. The prospect of absolute clarity has since then receded considerably.

I do not want to make a long speech but I wish to refer to what has gone on over the past few years. We have been reminded again and again from government Benches that this House is inferior to, and subordinate to, the other place. Now, suddenly, we are being put in the driving seat and told to have no regard, or very little regard, for the other place. That seems a quite intolerable reversal of a fundamental position by the Government. It is an impertinence for them in these circumstances to ask us just to go ahead and see whether the muddle will not sort itself out. I beg to move that the House do now resume.

Moved, That the House do now resume.—(Lord Peyton of Yeovil.)

My Lords, I think that the Committee should debate the individual amendments. I do not think for one moment that either the noble Earl, Lord Onslow, or the noble Lord, Lord Goodhart, want to prevent that. I do not think that the Committee would have any difficulty debating the issues raised both by the Government's amendments and those tabled by the noble Earl. We do that regularly, particularly when one amendment pre-empts a later one. We are perfectly capable of debating an amendment that might pre-empt another one because we are good at debating the issues. With respect, I suggest that we proceed and get on with debating the actual issues.

Is the noble and learned Lord really suggesting that we would have no difficulty in discussing 29 government amendments, all of which are starred? I do not agree; we have absolute difficulty. That is why I have formally moved that this House do now resume.

My Lords, I have some sympathy with my noble friend, but I should quite like to get on with discussing the Bill and using the time available.

However, the Government are making it extremely difficult for us to do so. We were promised that there would be groupings—we have one set. The Government hold the ring. It is a matter for the Government, and I took grave exception to the comments made by the Chief Whip that when we were in government we behaved like this. We never had such a shambles. We used the guillotine, but we gave people a proper opportunity to discuss matters.

Serious issues are involved. The Chief Whip obviously has not grasped what is causing so much anger and concern not only on these Benches but also throughout both Houses. A sensible Government would get their act together and perhaps come back on Monday. I can see why my noble friend is moving the adjournment of the proceedings as it reflects our anger that we have been placed in such a position that we cannot do the job that we have been sent here to do.

My Lords, I have great sympathy with the views expressed by my noble friends Lord Onslow and Lord Peyton, and I can perhaps suggest a way round the dilemma.

It is highly likely that our debate on the first line of amendments will take us to 1.30 p.m. We shall then have a period of repose during which I trust further groups of amendments can be produced. That will also give us time to reflect on the wider issue that was raised by my noble friend Lord Onslow about whether the government amendments should go on the face of the Bill in Committee, or whether we should wait for Report.

I am instinctively extremely sympathetic to the suggestion about asking the Government not to move their amendments today because we disagree with the substance of many of them. On the other hand, if we arrive at Report with the Bill in its present state, whose structure is a very long way from the structure that the Government intend, we shall face exactly the same dilemma to which the noble Lord, Lord Goodhart, drew our attention.

Let us debate the first line of amendments, including those that would be struck down if the government amendment were put to the vote. We can then go away at 1.30 p.m. and reflect on what has happened and decide whether the Government should put that first amendment to the vote.

We shall at least get through a very important issue and waste the minimum amount of parliamentary time. We do not like what the Government have done from first to last, but as the Opposition we have given an undertaking to do what the Government have asked us to do, which is to get the Bill through by Tuesday. We are committed to that and in that sense we want to be as helpful as possible.

My Lords, we on these Benches agree with the noble Lord, Lord Kingsland, that we should make progress. We are here to debate an important and main issue, which is whether the decision on the imposition of a control order should he made by a judge or the Secretary of State. We all understand that that is the burden of the first grouping, however it may be expressed.

To answer the point made by the noble Earl, Lord Onslow, by the end of today we should at least try to have a version of the Bill that one side agrees with, rather than going to Report with the current version with which nobody agrees.

My Lords, before my noble friend on the Front Bench sits down, I believe he said that he has given a commitment to the Government that they will have the Bill by Tuesday. I hope that the Government do not get the Bill at all. It is a rotten, stinking Bill. I am normally an admirer, a friend and a loyal supporter of the noble Lord, Lord Kingsland, but on this one he is being ever so slightly wobbly.

12.15 p.m.

My Lords, there are not many of my noble friends on the Front Bench—most of them are absent, unless I have misunderstood.

My noble friend Lord Kingsland declared that this party is committed to getting the Bill through by Tuesday. At most I am an extremely reluctant passenger on the vehicle that my noble friend is driving for the moment. I am not greatly influenced, therefore, by his plea that we should go on as best we can.

I was, however, influenced by my noble friend Lord Forsyth who understood my disgust at the way in which this matter has been handled and the mess that we are now in. But I am persuaded that it would be foolish if I were now to insist on pressing the Motion to adjourn the proceedings. With great reluctance, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Clause 1 [Power to make control orders]:

moved Amendment No. 1:

Page 1, line 3, leave out from beginning to "include" in line 16 and insert
"(1A) In this Act "control order" means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism.
(1B) The power to make a control order against an individual shall be exercisable—
  • (a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and
  • (b) in the case of an order imposing obligations that are or include derogating obligations, by the court on an application by the Secretary of State.
  • (1C) The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
    (1D) Those obligations may"

    The noble and learned Lord said: It would be helpful if I explained briefly the overall effect that the main government amendments will have on the structure of the Bill. There is a Marshalled List and Bill for those who want to look at the detail.

    The government amendment will delete all of subsections (1) and (2) and the first line, together with the word "person" in subsection (3). Those words will be replaced by Amendment No. 1 on the Marshalled List.

    Amendment No. 1 draws a distinction in relation to the making of an order between the non-derogating control order, which is made by the Secretary of State, and the derogating control order, which is made by the court on an application by the Secretary of State. The amendment raises four-square the issue of the role of the court in the making of both derogating and non-derogating orders.

    To assist the Committee, I shall refer to the other main government amendments to give a clear view of the structure of the Bill. As I said, Clause 1(1), (2) and the first line of subsection (3) plus the word "person" on the second line will be replaced by Amendment No. 1 on the Marshalled List.

    We have tabled Amendment No. 43 to the end of Clause 1, which transposes some definitions that are already in the Bill.

    Clause 2 will be deleted. Amendment No. 55 on the Marshalled List will amend Clause 3, and sets out the circumstances, the test and burden of proof for a non-derogating control order. At the end of Clause 3, Amendment No. 80 will be inserted, which is a new clause dealing with the power of the court to make derogating control orders. They are orders that deprive a suspect of his liberty.

    I draw the Committee's attention to the process by which that occurs. An application is made by the Secretary of State to the court, almost invariably on an ex parte basis. Proposed subsection (3) of Amendment No. 80—

    Amendment No. 80 is not in the grouping that we are discussing.

    I agree but I believe that the appropriate course is to put the whole Bill in context before coming to the critical point.

    I am not precluding anybody from making points on the detail of the amendment when we come to it. But to help the Committee it is appropriate to explain the basic structure of the new amendments so that people can see where they fit into the Bill and understand the role of the court at each stage. As the noble Lord, Lord Goodhart, rightly said, the intention is to talk about the involvement of the court.

    So, in effect the noble and learned Lord is reading Amendment No. 2A. Is that right?

    I am explaining what the government amendments do, in order to put them in their context. I apologise for doing so at some length, but it seems to me that that is what the debate is about.

    I ask noble Lords to return to Amendment No. 80, which deals with derogating control orders. The process involves an application being made by the Secretary of State to the court, which will almost invariably be on an ex parte basis.

    "At the preliminary hearing—
    the ex parte hearing—
    "the court may make a control order against the individual in question if it appears to the court that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity; that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation … and that the obligations that there are reasonable grounds for believing should be imposed … are or include derogating obligations".
    That means those that, in effect, deprive a subject of his liberty. So there is an ex parte hearing at which the court, if satisfied of those conditions, may make an order. There is a discretion.

    If the court makes the order, then, in effect, it gives directions for a full hearing. What is to be decided at the full hearing is set out in Amendment No. 80, subsection (7):
    "At the full hearing, the court may confirm the control order (with or without modifications) only if it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity; it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a … derogation",
    and the obligations are necessary to prevent the risk arising.

    So in relation to a derogating order ex parte application, if satisfied that there is a prima facie case—those words are not in the Bill—the court may make the order. There is then a full hearing and the order is continued only if, having heard both sides of the argument, the court concludes that there is justification and is satisfied, on the balance of probabilities, that the controlled person is an individual who is, or has been, involved in terrorism.

    I have a very simple point. This derogation has been worrying me because there cannot be a derogation in escrow. The derogation operates under Article 15 only if the European Court of Human Rights grants it. How on earth can the Government move with a derogation that has no effect until it has been granted by the court? Perhaps I have got it wrong, but it is worrying me.

    Sections 15 and 16 of the Human Rights Act 1998 allow the Secretary of State to lay an order. The derogation takes effect from the point that the order is laid. That order is subject to a resolution of both Houses of Parliament. If either House refuses to back the derogation, then it falls, but it takes effect immediately upon the laying of the order by the Secretary of State.

    Amendment No. 80 sets out the position in relation to derogating orders. In relation to non-derogating orders, I take noble Lords back to Amendment No. 55:
    "(A1) The Secretary of State may make a control order against an individual if he—
  • (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
  • (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.
  • (A2) The Secretary of State may make a control order against an individual who is for the time being bound by a control order made by the court only if he does so—
  • (a) after the court has determined that its order should be revoked".
  • I do not think that I need to read any more. Subsection (A1) is the critical part. Unlike the derogating control order, the non-derogating control order is made by the Secretary of State.

    If we are going to set the scene for a semi-Second Reading, then all sorts of other amendments are material and relevant to the point the noble and learned Lord is making. I have Amendment No. 79 in mind especially. I have a list of others, but it is a good illustration of what, if we are going to have this sort of debate, noble Lords must have in their minds, not merely the amendment that the noble and learned Lord is citing.

    I fully understand the point that my noble friend is making. It is very difficult to have the debate about court or non-court without first identifying the relevant provisions. If it is not helpful to the House, I shall not go on, but it seems to me to be helpful to identify the relevant provisions so that we can then have the critical debate on whether it should be the court.

    I refer noble Lords to Clause 7 in the existing Bill. In practice, it provides that if a suspect wishes to appeal against a non-derogating order made by the Secretary of State, he must bring it to the court. The court will then approach the issue on a judicial review basis.

    Those, broadly, are the effects of the amendments and the distinctions between the involvement of the court on derogating control orders and on non-derogating control orders.

    Why have we drawn a distinction between the two? Because, in relation to the derogating control order, the effect on a suspect is that he is deprived of his liberty under the European Convention on Human Rights. After listening to representations, we believe that that should not be done except by a court. That is why we have involved a court. In relation to non-derogating control orders, while a wide range of orders can be made, stretching from things such as reporting to a police station once a month to an overnight curfew being imposed, we think that it is appropriate for the Home Secretary, subject to judicial supervision, to make them as he thinks appropriate.

    The protection of the citizen comes from the fact that he can apply to the court to challenge the order and see whether the process is flawed. We rely on the distinction between deprivation of liberty and the lesser impositions of non-derogating control orders. I hope that I have adequately explained where this fits into the new structure of the Bill and I invite noble Lords to agree to Amendment No. 1, subject, of course, to the point made by the noble Lord, Lord Kingsland, about discussing at lunch the precise procedure to be followed.

    I am grateful to the noble and learned Lord. Can he sort out some confusion in my mind? If the police want to search my premises or my papers—nothing to do with liberty—they have to get a warrant from a magistrate. I do not understand why a similar safeguard does not apply to control orders that affect basic rights and freedoms, but not the right to liberty. Why should there not be at least the initial safeguard of having to go to a judicial officer at that stage?

    A judgment has to be made. For example, the noble Lord will know that the police can impose bail conditions that are very similar to the conditions to which we refer in the Bill. An individual is entitled to go to the magistrates' court and complain about bail conditions, if he wishes, but the police have those limited powers. It is a question of judgment about how intrusive the powers should be before the court has to make them in the first place. I believe that that is the issue raised by determining whether there should be judicial intervention beforehand, in relation to the deprivation of liberty cases, or not, although there is judicial supervision—which is the position related to in the later part. It is a question of drawing a line. Our debate should be whether we have drawn the line in the right place.

    12.30 p.m.

    Before the noble and learned Lord sits down, having sorted out the confusions in the mind of the noble Lord, Lord Lester, could he attempt to do the same for me? Under subsection (1B)(b) of his new clause, the court comes into operation only if the Government have made a derogation order and are seeking to impose an obligation which is expressed to be within the scope of that order. On the other hand, the Secretary of State's power, under subsection (1A), applies only to an obligation which is not incompatible with the right to liberty. Therefore, if the Secretary of State makes an order which is found to be incompatible with the right to liberty, then that order is a nullity. If there is a situation in which no derogation order has been made, he cannot go to court; but, if he thinks that the order goes too far and imposes obligations that are incompatible with Article 5, he cannot make an order either. At that stage, nobody can make an order. Is that right?

    Correct. If the position was that the Secretary of State thought the appropriate order was one which deprived the suspect of his liberty, he could not make that order without a derogation. He would have to derogate before he made the order. If he concludes that the right way to protect the state is by a derogating order, he can apply for such an order only once he has derogated. If, on the other hand, the order does not deprive the subject of his liberty, he does not need a derogation. The implication of what the noble Viscount is saying is also right; if he has not got a derogation, but he makes an order which inadvertently deprives the person of his liberty, such an order is either quashable or a nullity. It is unlawful because he can make such an order that deprives the suspect of his liberty under Article 5 only if there is a derogation in existence before he makes the order for derogation.

    For clarification, the clause as it stands, and as it is proposed to be amended, refers to obligations imposed on the individual. The impression given in the other place was that these obligations are civil obligations, such as obligations imposed under non-molestation orders in domestic cases, or the most recent anti-social behaviour orders. First, is that the area we are in?

    Secondly, if that is the area we are in, would the defendant be entitled to a fair trial under Article 6 of the convention, before such an order could be imposed? Does the noble and learned Lord the Lord Chancellor accept that in order to have a fair trial he would be entitled to know the case against him? In other words, does he accept that we are concerned not just with Article 5 but also with Article 6?

    I accept that we are concerned with Article 6, but there is a balance to be struck as to what the process involves. We submit in relation to Article 6 that under these procedures, in certain circumstances it will be appropriate not to tell the suspect of all of the information relied against him—as has already happened in relation to the SIAC process. That is not inconsistent under the current circumstances with Article 6; it is based on the decisions of the European Court. I beg to move.

    moved, as an amendment to Amendment No. 1, Amendment No. 2:

    Line 7, leave out from beginning to "by" in line 11.

    The noble Lord said: The noble and learned Lord the Lord Chancellor has set out his stall to a degree. I will say briefly and in broad terms where we are going in relation to the amendments that we have to set down. We believe there should be a single procedure for these control orders, the principle of which we have accepted for some time as your Lordships know. That single procedure should be that an application is made by the Secretary of State to a court and that a judge should decide the matter on the merits.

    It is not enough that the matter should be placed in the hands of the court, as the noble and learned Lord, Lord Ackner, pointed out today. It is important that the judge has a proper hearing and, in addition to the matter being put before a judge in a court, there should be due process. For example, the defendant or suspect should know the nature of the case against him and the nature of the evidence, and he and his counsel should have the opportunity to reply to that case. If that does not happen, a judge becomes—as the noble and learned Lord, Lord Ackner, put it—simply a rubber stamp of a decision that has been taken by a member of the executive. We hope as a House—I adopt the comments at Second Reading of the noble Lord, Lord Brennan, that this is not just a matter for us on these Benches—that when the Bill goes back at the end of the day, the basic principle will be underlined that it is a court that deprives people of liberty—or restricts it—and that it does so with a judicial hearing where there is due process.

    I hope your Lordships will forgive me, but to illustrate this a little, last Sunday I was sitting in a restaurant on the Île de la Cité in Paris, celebrating the greatest victory of the Welsh over the French since the battle of Agincourt. I was reminded of the Terror in the French revolutionary times. Your Lordships may recall that in a period of about nine months in 1793–94, some 20,000 people were taken before a judge. They were not allowed to say anything in their defence; they were declared to be enemies of the state. The judge pronounced that they be executed, and they duly were the following day. The prosecuting authority was called the Committee of Public Safety, and that has a ring about it today when we consider that everything is being done in the name of public safety and public security. It is not just enough to have a judge sitting in a court; he has to be able to make a decision.

    Amendment No. 2, grouped with Amendment No. 4, is to bring together the different types of control orders—we shall be saying in due course that we do not accept the principle of a derogating control order anyway—with a single procedure that enables the court to make the decision, and not the Secretary of State. Of course we shall later address your Lordships on due process and on the matters that are required to be amended in the schedule to the Bill. I hope that all of us—I include the whole Committee apart from the Front Benches, who are sitting in their trenches with no man's land in between—will see that due process is not contained in the schedule. I beg to move.

    Before others of your Lordships intervene in this most important stage of the debate, perhaps I can also set in context our approach to these amendments.

    We start off from the position that it is vital that every effort is made to engage the criminal process when someone is detained. We believe, in particular, that the DPP should be brought in at an earlier stage to consider actively and urgently whether the criminal courts are the most appropriate forum to deal with the matter for which the potential controlled person was restrained. It is only after that exercise has been completed, and it is found that it is not possible to bring criminal proceedings, that we believe the control order system should bite—so the orders are at the end of the process, not the beginning.

    As far as the control orders themselves are concerned, we agree with the noble Lord, Lord Thomas of Gresford, that there should be a single procedure for both derogating and non-derogating orders. That is not only the most obviously logical approach, but also the most practical. Often the Secretary of State will not know in advance whether the order he has imposed will be derogating. There is a range of permutations of restraints that might be in place. Some of them will amount to a derogation requirement, others will not.

    If the Secretary of State has misjudged the situation, and believes the controls he wants to impose are non-derogating, the matter will be reviewed in due course by a judge who might decide differently. In those circumstances the procedures will have to start all over again, this time under the derogation procedure.

    In my submission, for practical as well as logical reasons, it is desirable to have a single procedure under which the Secretary of State applies to the court. Plainly, the first thing the court will have to do is decide whether the cocktail of measures that are proposed to restrain the party amounts to a derogating situation.

    I am grateful to the noble Lord for giving way. Could he clarify whether the logic of that position is that there would have to be an immediate application for a derogation? If he is suggesting that the same process has to be gone through for both, because some combination of what are considered non-derogating orders might in fact be derogating, it would be impossible within his terms of practicality to deal with the situation unless we immediately had a derogation. That is a situation that many of us would like to avoid.

    The noble Baroness makes an important point. At the time the Secretary of State either, under the Government's plan, makes the order, or, under our and the Liberal Democrats' plan, makes an application to the court, he cannot know for certain whether the order for which he is applying will he derogating or non-derogating, because, in the last resort, that is a matter for the courts. Only the courts can decide whether Article 5 is breached. Thus, there is a built-in situation of uncertainty in both the Government's solution and ours, unless it is accepted right at the beginning that any order is potentially capable of being a derogating order.

    The third and final part of our approach to the Bill is the importance of due process. In terms of the fundamental liberties in our country, simply exchanging a judge for the Secretary of State will get us nowhere at all. If the draconian measures on due process in the Bill are not radically changed, the judge will merely become the creature of the Executive. The judge and the due process rules go together.

    I was relieved to hear the noble and learned Lord say he accepted that Article 6 applied. In his exchange with the noble and learned Lord, Lord Lloyd, there was a suggestion that it was only the civil rights portion of Article 6 he thought would hold sway in these circumstances. Does he not agree with me, however, that certain permutations of the penalties set out at the moment in Clause 1 could, under the jurisprudence of the European Court of Human Rights, in fact amount to criminal, and not civil, penalties? If I am right about that, the full text of Article 6 will come into play in all its glory. The Government will then be faced with the kind of issues raised by the amendments of my noble friend Lord Carlisle of Bucklow about the appropriate burden of proof. I have set out my stall on behalf of the Opposition. I hope that will help simplify matters as we go through the amendments.

    12.45 p.m.

    I declare my interest as the current independent reviewer of the detention provisions under Part 4 of the 2001 Act. From that viewpoint, I thought it wrong to intervene at Second Reading of the Bill. However, it may be of assistance to the Committee if, without expressing any opinion on the merits of the amendments, I make a few comments in the form of questions.

    My starting point is that there is undoubtedly a serious and immediate threat of widespread harm to the public arising from the actions of Al'Qaeda-connected terrorists. Perhaps I could add a sentence to that. Al'Qaeda-connected terrorists are different from anything we have ever experienced, and every step they take is more different. They do not have a command structure. They are a disparate co-fraternity rather than any kind of formal confederation, which makes the threat all the greater.

    Something has to be done. Some effective measure has to be found to replace the detention provisions, following the decision of the Law Lords on 16 December. My role as independent reviewer is not to review the merits of the provisions, but their working. The comments I will now make relate to that working. I have five points to make, if the Committee will bear with me.

    First, I invite the noble and learned Lord the Lord Chancellor to comment on the standard of proof required before any form of control order is made. I dealt with this, perhaps slightly elliptically, in a report published last week, which I produced as independent reviewer of the detention provisions. One of the issues that has caused difficulty on all sides of the Committee, and elsewhere, is the provision for merely reasonable grounds for suspecting as the basis for control orders, and indeed for detentions.

    In my report I drew an analogy between the situation we are considering now and the position faced by the managing director of a company researching into pharmaceuticals using animal experimentation. Such a person would be able to obtain a civil injunction from the courts if he was able to show, on the balance of probabilities, that a person or group of persons was posing a serious threat to his safety, or that of those associated with him. Such a civil injunction could have a number of conditions attached to it, including a penal sanction, if those who were enjoined failed to obey that injunction.

    I wonder what harm would be done, and what disadvantage there would be, if a balance of probabilities test were applied to all control orders. From the workability point of view, which is my viewpoint, it is arguable that if the Secretary of State made a control order against an individual because, on the balance of probabilities, he was satisfied that the individual was or had been involved in terrorism-related activity—and here I am looking at what is now Amendment No. 55, mentioned earlier by the noble and learned Lord the Lord Chancellor—there would be no disadvantage to the Government, the control authorities or the protection of the public. My first point concerns a better working standard of proof.

    My second point concerns the involvement of the judiciary. I listened with great care to the remarks made during the Second Reading debate on Tuesday by the noble and learned Lord, Lord Donaldson of Lymington, which may have been reflected, to some extent, in what was said by the noble and learned Lord, Lord Ackner, earlier today. Although I have carried out no formal consultation, I have a sense that senior judges are anxious about being placed in what is, in reality, the role of a Minister. I understood that to be the burden of what was said by the noble and learned Lord, Lord Donaldson, on Tuesday. I sense that to be a real concern with which I have some sympathy.

    The Supreme Court is now to be called the Senior Court, which is perhaps an ugly but more accurate expression of what it is. Of course, the Supreme Court or the Senior Court is a court of record. I believe that there is a distinction to be drawn intellectually and accurately between a superior court of record and a court that is not a court of record.

    If control orders are to exist, one must recognise that there may be emergencies that could not be brought before a court immediately as it simply would not be practical so to do. I hope one can accept that there is a necessity to deal with emergencies, but I shall leave those out of the equation for the moment.

    Would it be workable for a court which is not a court of record to be involved at a very early stage? I refer to those district judges at Bow Street magistrates' court who, on an everyday basis, if necessary, and at 24 hours-a-day availability, already deal with extensions under the Terrorism Act 2000. If someone is arrested under that Act and taken, say, to Paddington Green Police Station, and if the police, advised by the CPS, believe that 48 hours is an insufficient period of detention, they can apply for an extension and now if they believe that seven days is an insufficient amount of time, they can apply for an extension to 14 days. That matter was debated in this House some time ago.

    Such applications go before district judges, led by the chief magistrate at Bow Street. They are a small cadre of district judges who are very experienced in such matters and who understand the whole terrorism penumbra. Would it not be practicable and would it not make these provisions work better if applications for all forms of control order were brought before a district judge at Bow Street, or other suitably ticketed district judges, at the earliest possible stage—possibly before the order is made if there is time—so that they could be considered by an examining magistrate—a term I use advisedly?

    I believe that that would link well with one of the recommendations made by the Newton committee which expressed a desire to have something more like the continental system in this country. I do not favour that because I believe that we would be throwing out the baby with the bathwater. But there is an element of what the Newton committee said in this, as the suggestion I have just made would result in a workable system.

    I am very grateful to the noble Lord for giving way. Is there not all the difference in the world between an extension of time granted by a magistrate or district judge and indefinite detention as proposed in this Bill?

    Yes, I understand and I anticipated that that point might be made, which brings me to my next point. If the application were made to the district judge in what is not a court of record, would providing an immediate right of appeal to a superior court of record be workable? It seems to me that a High Court judge would exercise a normal, legitimate judicial function, and not the function of a Minister. For that to be successful, I would very respectfully suggest to the Lord Chancellor and to the Government that one might consider removing this perhaps slightly illusory distinction between judicial review and a review on the merits.

    When I was first called to the Bar and possibly even when the noble and learned Lord, who is a little younger than me, was called to the Bar, judicial review was granted only on Wednesbury unreasonableness principles—one was looking for perversity—but things have changed an enormous amount. Nowadays one looks at proportionality, which inevitably involves an examination of the facts.

    Therefore, I pose the question: what would be lost by allowing the superior court of record, exercising its proper non-executive function, to consider the merits as part of an automatic right of appeal? Rules of court, I hope supervised by the court itself, could be set out with the effect that cases would be brought before the court very quickly.

    Perhaps the noble Lord would give way and help me to understand this point. Am I to understand that, in effect, he proposes that a Bow Street magistrate signs a warrant to detain a gentleman who then goes before a judge in a superior court of record who carries out the trial? For those of us who do not like the present provisions, that is much nearer to what we would like.

    I am suggesting something that is possibly better than the noble Earl has suggested: that the examining magistrate should hear the application—it may be ex parte—which would involve some examination of what one might call either information or evidence. I believe that we all recognise that in such cases it might have to be a hybrid. There are difficulties with the way in which evidence is presented in terrorism cases. But, yes, there would be an examination on the merits, with an automatic right of appeal in which, as I have said, a High Court judge would perform the usual function for which he is appointed, without his independence being undermined in the way feared by the noble and learned Lord, Lord Donaldson of Lymington.

    I do not want to speak repeatedly in the debates on this Bill, so I hope I shall be forgiven for raising this point now. In relation to the special advocates, who are dealt with in the schedule to the Bill, I hope that the Government will accept that currently there are some deficiencies, with which I have dealt in my most recent report, that have made it difficult for special advocates to function to full effect. Having examined a lot of material, including closed material, I am unequivocally of the view that some of the special advocates have been extremely effective. They have been able to carry out their jobs properly, as some cases show beyond any doubt.

    However, the atmosphere in which the special advocates work, particularly their difficulty in obtaining full instructions and in being able to have appropriate contact with the people whose interests they represent, is in need of reform. I also suggest to the Government that perhaps a rather larger number of people should be on the list of potential special advocates and that they should now include, with great deference to those brilliant administrative lawyers who have been very good special advocates up to now, a substantial body of people experienced in analysing criminal evidence who may, on a daily and professional basis, be better suited to the function.

    I hope that those are useful suggestions to the Committee. If the concerns that I have expressed could be met, I believe that whoever is the reviewer of these new provisions would be looking at something more workable than what is at present set out in the Bill.

    I have one simple question. Reference has been made to the anxiety of senior judges and to the need for due process. Has there been any form of consultation or communication between the Lord Chief Justice and/or the senior Law Lord on this subject? If there has been communication, what was the substance of the interchange? If there has been no communication, why is that and can thought be given to instituting that now?

    1 p.m.

    The point made by the noble Baroness, Lady Hayman, during the speech of my noble friend Lord Kingsland strikes me as extremely important. From what I have heard, the moment a non-derogating order goes in front of my learned friends, they will find that they are in breach the European Convention on Human Rights. So the Government will be back slap in the middle of the same difficulty in which they now find themselves, if they do not accept something along the lines of the Liberal Democrat proposal.

    I hope the noble and learned Lord the Lord Chancellor can convince us otherwise. I sincerely hope that this is all produced under one heading, that the person has a proper trial and that the amount of time for which they are incarcerated is defined.

    I also suggest to your Lordships that being told that one cannot use one's mobile telephone, or go to work, or that one has to stay at home overnight or cannot travel outside a radius of three miles, or whatever the border may be, are deprivations of liberty. Everybody else can do that—unless they have not paid their telephone bill, which is different.

    We, however, can use a telephone. We can travel where we like. The passport says "without let or hindrance". People should be allowed to travel without let or hindrance unless they have done something wrong and been convicted by a court. That is the fundamental core of what we are talking about.

    If the Liberal Democrat proposal is accepted, the corollary is that a lot more has to be derogated, and we go even further down what I would genuinely and realistically call the tyrannical road. That is why we have got to improve this Bill even more than has it has been. Unless we have a proper trial system involved, the Government are going to find themselves in exactly the same muddle that they are in at the moment.

    I raise a point of procedure. As far as I am aware, the noble and learned Lord, Lord Donaldson of Lymington, has not yet moved his amendment, and every other group has been moved. Should we not proceed on to substantial discussions after that amendment has been moved?

    I must confess that I am equally confused about the situation, and what we are actually debating. I am reminded of the judge—whose name escapes me, but the noble and learned Lord the Lord Chancellor will remember it—who once said to F E Smith, having heard his argument, "Mr Smith, I am none the wiser". To which F E Smith replied, "Your Lordship is none the wiser, but at least you are better informed". I feel I am better informed as a result of the speech of the noble and learned Lord the Lord Chancellor, but I am none the wiser as to where we really are.

    If I understand it correctly, we are all having a Second Reading heart-bearing session, where we say where we stand personally on the basis of amendments we have tabled. I was grateful to hear that my noble friend Lord Kingsland had been kind enough to add his name to an amendment I tabled, which starts the procedure at an earlier stage. Rather than leaving it to the Secretary of State on his own volition to choose to make an order, it must be on an application by, I suggested, the Director of Public Prosecutions. The Director of Public Prosecutions can make that application only if he is satisfied that it is not possible for the person to be tried in the normal way. I think we all agree that, where possible, people should be tried in the normal way in the courts of this country. The powers that we are giving in this Bill should be used only in exceptional cases.

    The purpose of my Amendments Nos. 8 and 11 is to say that the Director of Public Prosecutions should be required to satisfy himself that the man is not able to face a fair trail before he makes an application for such an order to the Secretary of State.

    The other matter, which is covered in amendments that I have tabled to Clause 2, is that it is surely right that the control orders, whether derogating or non-derogating orders, should be treated in the same way by the courts. I was surprised to hear the noble and learned Lord the Lord Chancellor imply that an order that merely consisted of a curfew would be a non-derogating order. Surely any form of curfew, any form of order which required a person to live in a particular place or not to do a particular kind of work and all the various matters set out in the first clause of this Bill, are interferences with that individual's liberty. The noble and learned Lord the Lord Chancellor may therefore find that Article 5 goes far wider than the impression that has been given, that you need a derogating order only in a case in which a person is being locked up for ever.

    There is therefore an argument to be advanced that derogating and non-derogating cases—if they are to be included—should go before the courts in the same way.

    My final point, which has not yet been mentioned, is about the burden of proof. Currently, the Secretary of State merely has to have,
    "reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity".
    That seems to be far too weak.

    With great respect, the Bill should make it clear on the face of it that the burden of proof rests upon the Secretary of State to make out his case for an order. I have suggested that it should be as high as the criminal burden of proof, although I appreciate that an alternative has been put down that it should be on the balance of probabilities. Having "reasonable grounds for suspecting" are not adequate grounds for the Home Secretary to act in a way which would lead to the person losing his liberty. The phrase should be either "satisfied beyond a reasonable doubt", as I have suggested, or, at the very least, "on the balance of probability". That also applies to the later clause, which deals with the derogation orders made by the Home Secretary.

    Listening to my namesake, the noble Lord, Lord Carlile of Berriew, I believe there is a real possibility that we could get a good deal more agreement in this Committee on these matters than appeared possible some time ago. It requires reflection, thought and the Government to give on various issues of principle which still remain.

    I speak to Amendment No. 6, which is included in the group. The Government have put forward a whole range of amendments, as the noble Baroness, Lady Scotland of Asthal, said in a letter which we have all received. Fourteen of the amendments stem from the Government's decision that these orders shall be made by the judge. If something could be produced which achieves the Government's objective but does not involve the court in that way, surely that would be better.

    Amendment No. 6 is designed to bring a third way before your Lordships for our consideration. It is currently suggested that the Secretary of State should have complete freedom, so far as the courts are concerned, in making a non-derogating order in whatever terms he likes. On the derogating orders the provision suggests that he shall not make the order at all, that the judge should make it. The various reasons why that was necessary were expressed in the other place—you did not want a politically-minded Home Secretary to do this, that, or the other. I say nothing about that; that is not my role.

    I do say that there is a third way. You can provide that the Secretary of State cannot make any order unless he has the leave of the court. The traditional function of a court is to protect the individual from wrong action by the Executive. That would meet entirely the result which the Government seek.

    That is the conventional way. This provision under which a court will make an executive order is, as far as I know, totally unique in the annals of the courts. There are plenty of examples—no doubt we shall hear them—where people make ex parte applications for restraining orders in one form or another. The classic example is where a party to a litigation fears that if he wins there will not be any money to satisfy the court's judgment. So he goes to the court on an interlocutory application—ex parte because once defendants know what is up the money might vanish—and says, "I want this order".

    The judge makes that order, but it is an umpire's order. It is making certain that the ultimate order—the judgment—can have some meaning. But that is not a player's order, it is a judgment. You will find that every one of those cases—I do not know whether they are ex parte—with applications for interlocutory orders, in the sense that they have not reached the end of the case, is designed to maintain a level playing field; to make sure that the court's ultimate judgment is successful; or to point to the order in which matters are to be dealt with—a summons for directions in effect.

    I most earnestly suggest to the Committee that this is a better way, which meets the Government's objectives, does not do violence to the position of judges and is the conventional way of doing it. I do not understand at the moment why you cannot do it in that way. It would apparently save an enormous number of government amendments—but I do not put it forward on that ground alone, although it is a good idea. I hope the Government will explain why we cannot do it in that way. They probably will want a little time to think about it, but at some stage I hope that we will hear from them on that point.

    As noble Lords have pointed out, many of the proposals are based on the fact that you would know whether you are in Article 5 territory and that the necessary derogation may not be made in time for it to work. But, surely, the matter does not concern just Article 5. The noble Lord, Lord Carlile of Berriew, on the Liberal Democrat Benches, gave us a report a long time ago, which pointed out that some obligations imposed by the Home Secretary from the list on page 2 of the Bill may also amount to the termination of a civil right. Article 6 surely demands a fair trial on the deprivation of a civil right.

    I have had conversations with noble Lords who seem to think that it is a weird idea that the liquorice allsorts list on page 2 could have a selection for an application for a control order, of whatever kind, restricting the liberty of the controlled person and not depriving him of it.

    Even if one found that very difficult line with certainty, the list of controls that can be imposed from the liquorice allsorts list is so extensive that some civil rights are bound to be in jeopardy. If so, Article 6 demands a fair trial with all the jurisprudence that that entails in the European Court at Strasbourg.

    Although the Government refer to Article 5 in their papers, including those from the Secretary of State by way of a copy of his letter to Mr Davis and the odd note that came with it, which is unsigned but which I take to be his as well, and in their list, I do not understand why they refer only to Articles 8, 10 and 11, which provide for exceptions in cases determined by law.

    1.15 p.m.

    Why did the Government not address Article 6? Why did my noble and learned friend the Lord Chancellor not refer the Committee to Article 6? And why is there not a huge risk in virtually any effective order being made up of bits taken from Clause 1(3)? With respect to the noble Lord, Lord Carlisle of Bucklow, on the other Benches, who knows much more about the matter than I, this involves questions of burden of proof.

    The Government used to think that it involved questions of burden of proof because they have had three goes at dealing with the point. First, the Secretary of State was to make the order on a very slender basis as far as concerns burden of proof; secondly, they quoted, in the note that came with the Secretary of State's letter, a dictum—or they thought more than a dictum—to the effect that burden of proof was not really the way to look at it with all risk assessment. They said that that was in the speech of the noble and learned Lord, Lord Hope, in the Rehman case. I was puzzled. I thought I must have missed it because the noble and learned Lord, Lord Hope, did not sit in the Rehman case. So I had to read it all again.

    This is an official government document with many weeks of preparation. The passage is from the speech of the noble and learned Lord, Lord Hoffmann. That is very significant. It is not a technicality, because not every member who sat in the Rehman case agreed with the approach of the noble and learned Lord, Lord Hoffmann. Indeed, the Government have sometimes had difficulty with the approach of the noble and learned Lord, Lord Hoffmann, to these matters.

    One might have thought the Government would be careful about that, especially because the noble and learned Lord, Lord Steyn, was sitting on the Rehman case. He deliberately and carefully set out in a lecture in Belfast last November the reasons why he disagreed with the whole approach of the noble and learned Lord, Lord Hoffmann. Indeed, towards the end of that lecture to the Judicial Studies Board, he observed that some people found it strange that both he and the noble and learned Lord, Lord Hoffmann, came to the same result in Rehman, so different are their approaches.

    So, the Government quoted a dictum from the noble and learned Lord, Lord Hope, who did not sit on the case. They then omitted to notice that the dictum made by the noble and learned Lord, Lord Hoffmann, had been subjected not merely to academic commentary—I know that does not help much in some quarters—but had been put in doubt by the noble and learned Lord, Lord Steyn. Why was that not disclosed to people who do not regularly read the relevant law journals and law reports?

    That was the second tack that the Government had. They now seem to have gone off the burden of proof, although they are moving a later amendment to remove the word "burden", which makes the clauses they are trying to amend very strange indeed. However, we can deal with that later. It comes down to reasonable grounds for the application. It seems to me from the speeches made that we are getting very near to an agreement that the civil burden of proof is going to dominate in this process. At least that is an advance. But it certainly does not solve all the problems which I especially mentioned of knowing whether you are in Article 5 territory; and, whether or not you are, whether Article 6 is brought into play. What is the answer to those moving amendments on that?

    I have very great difficulty in knowing whether to oppose or support the main government amendment, for the simple reason that I am against control orders altogether. I am against the Bill as it stands, as I do not find it acceptable that the Secretary of State should deprive a British citizen—or indeed anyone within the jurisdiction—of his liberty without a trial, as proposed in Clause 2. I find it equally unacceptable that he should be able to restrict the liberty of a British citizen without a trial as proposed in Clause 1.

    On that basic point I find myself substantially in agreement with the views expressed from the government Back Benches in the other place. I read those speeches with admiration and I entirely agreed with them. But someone seems to have had the bright idea—it might have come from the Liberal Democrat Benches in the other place—that it might improve things to substitute a judge for a Secretary of State. The Secretary of State himself jumped at the idea, although he said that it was against his better judgment, in the hope—one imagines—that it might have enabled the Government to get the Bill through this House.

    One has to balance those two alternatives. I have come to the conclusion, odd though it may seem, that the Secretary of State's first thoughts were best—or perhaps I should say better. I accept of course that it looks better for a judge to make that sort of order, but that is a purely cosmetic point. It has been taken up widely in the press but what it would mean has not been fully understood. It would place judges in an awkward and exposed position for all the reasons mentioned first by the noble and learned Lord, Lord Mayhew of Twysden, and since by many others including my noble and learned friend Lord Donaldson.

    That is something we should not do; indeed, it is our duty in this House to ensure that judges are not exposed to a political backlash, as they would be if the orders were made by judges in the first place. They have never been asked to do such a thing before: judges have never deprived anyone of their liberty without the prior verdict of a jury. They have certainly never done so, as is now proposed, in civil proceedings on a balance of probabilities and without a fair trial in accordance with article 6 of the convention. That is my difficulty. On the whole, I come down in favour of the Government's original thoughts rather than this alternative put forward at the last moment.

    The noble and learned Lord, Lord Lloyd, was kind enough to mention that when the Statement was made on 22 February I drew attention to the danger that I saw in the constitutional standing of the judges if the Bill was to proceed, conferring on the judges the jurisdiction to make an order in the case of derogating orders. From everything that I have heard and considered since, the danger seems substantial.

    It is extremely important that we pay attention to the issue, although it may seem ancillary. It has attracted far more influential and respectable support than mine. I simply wish to add that because today judges in the exercise of the jurisdiction of judicial review are drawn into matters of political sensitivity without in the slightest degree being required to make political judgments, it is all the more important that their standing in the public eye should be preserved as impartial and non-partisan in political or any other terms.

    That is why I support Amendment No. 6 in the name of the noble and learned Lord, Lord Donaldson. It has the clever and elegant virtue of preserving the judge's proper function; namely, to consider whether the procedural matters that Parliament has laid down have been complied with, so that leave may be given to the Secretary of State to make the order, thus preserving the judge from being seen to make an executive order, especially one that leads to detention.

    I want to reiterate something I said at Second Reading. I agree with the noble and learned Lord, Lord Lloyd. Some members of opposition parties in seeking to be conciliatory and not to look as though they were being soft on the issue came up with the idea of having the judges replace the Secretary of State. It has the serious risk of tainting our judiciary. I strongly urge that the Committee does not go down that route.

    The independence of the judiciary is something to be protected; it is precious to us. I foresee that this is a form of co-option. With the best will, judges will end up being undermined in the public eye if they end up playing that role. We find it unacceptable if performed by a politician and it will become unacceptable if it is performed also by a judge.

    We must go back to the argument that somehow something incredibly different is taking place here. Intelligence has always been a starting point in terrorist cases. In many of the Irish Troubles cases in which I was involved, the starting point would be intelligence that said someone was involved in an active service unit, they had disappeared from their home, it looked as though they were going to Britain and would be likely to be involved in a bombing campaign.

    At that point the police would go into overdrive with the security services as back-up. There would be intensive surveillance of the person, looking at who they were meeting and greeting and who they were with. That would be followed up ultimately with arrest and interrogation but also the forensic work carried out to gather evidence.

    Noble Lords on these Benches have said that this issue is about globalisation and that it is on a different level: so too is our policing and intelligence. The very things used by terrorists internationally—mobile phones, computers, e-mail and so on—are an invaluable resource to the police in obtaining evidence against those people. If we were told, based on the information of an informant, that someone was involved with Al'Qaeda and might be planning activity in Britain that would endanger people's lives, we would immediately arrest that person.

    But if we found that we could not come up with any other evidence to support that intelligence, it could be that that intelligence was duff; that it was not good intelligence. I have heard it said by former Cabinet Ministers, from the noble and learned Lord, Lord Howe, through to many others, that intelligence is straws in the wind, and that is how we approach it.

    The problem is that I can sympathise with those who are policing: you keep someone in custody for up to 14 days during which time you seek to gather evidence and contact police in other countries. If after 14 days of carrying out all that intensive work with the great resources we have in our policing you come up with nothing else, under the current legislation— the Terrorism Act 2000—you are unable to detain suspects beyond that period. I can understand the frustration at that point and that you might want some other order to come into place then, but it has to be time limited.

    What should come into place at that point is surveillance: you neutralise the person if you still suspect that they might be involved in something, but you do not by official sanctioning invade that person's liberty. Those problems are being faced by countries around the world. Some of them are undemocratic and lock people up—we see it happening in places that we would not respect or admire—but other places with decent systems do precisely that.

    I sat on an international task force on terrorism set up by the International Bar Association which had a number of leading judges from around the world. It was headed by Justice Goldstone from the Constitutional Court of South Africa. At the end the acceptance of the idea that when we take away people's liberty it becomes punishment was clear. Unless it is for a limited period of time, it turns into punishment. The only people who should punish should be the judges after a trial process.

    That is what the noble and learned Lord, Lord Lloyd, is saying. We hold dear the fact that we cannot punish people unless we have a due process and the high standard of proof that has been part of our tradition. That is for good reason, because otherwise we surrender liberties that are really important.

    People suggested at Second Reading that we are being supine and are expected to do nothing apart from put people on trial. No—you can neutralise people by the use of very good surveillance and by other means but you should not be taking people's liberty away without a clue process. That is why this whole process is wrong and what the Secretary of State is seeking is unacceptable.

    Before my noble friend sits down. will she respond to one point? I find her argument extremely persuasive. But does she agree that we are in danger in our deliberations of looking at this from a very legalistic point of view? As the noble Lord, Lord Carlile of Berriew, has reminded us, we are dealing with a very sinister and dangerous threat. To be able to deal with that effectively, the battle for hearts and minds is crucial. What has always been central to the layman in our legal system—and I speak as a layman—is that justice is seen to be done. That is why due process and the balance of probabilities are so important.

    We cannot simply look at this from the perspective of noble Lords in this House. We have to look at it from the perspective of a young member of the Islamic community in Bradford. subject to a lot of pressure and manipulation, who needs to be able to turn to a clear, convincing illustration that justice is being pursued as we have always understood it to be pursued in this country. Does my noble friend agree that that relates to her argument?

    I think that we would all agree on that. I chaired a meeting only recently of the Islamic Human Rights Commission, which was packed with young members of the Muslim community who feel that they are being targeted. Whatever good words are said on Front Benches about this not being a direct assault upon certain communities, that is how it is being perceived and felt. It is perceptions of injustice that lead to terrorism and support for terrorism.

    I accept entirely that there are problems with an organisation such as Al'Qaeda, as the noble Lord, Lord Carlile, said, which is not like other organisations with a command structure. Conspiracy charges can be difficult because an isolated young man in Slough could decide that he will take part in a suicide bombing without reference to any other leadership but simply because he agrees with bin Laden. However, the way to deal with that is to introduce the charge of acts preparatory, as the noble and learned Lord, Lord Lloyd, suggested. There are other methods for dealing with this within the structure that we know and respect and which are tried and true. That is where, I am afraid, the Government are getting this wrong. They are not sticking to the principles that we know work.

    My Lords, I beg to move that debate on Amendment No. 2 be adjourned.

    Moved accordingly, and, on Question, Motion agreed to.

    My Lords, I beg to move that the House be resumed. In moving the Motion, I suggest that the Committee stage begin again not before 2.35 p.m.

    Moved accordingly, and, on Question, Motion agreed to.

    House resumed.

    Child Benefit Bill

    1.34 p.m.

    The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport
    (Lord McIntosh of Haringey)

    My Lords, I beg to move that this Bill be now read a second time.

    I am very pleased to have the opportunity today to introduce the Child Benefit Bill to the House. It is very short, but it paves the way for significant improvements in the financial support available for young people who continue in education and training beyond the age of 16.

    Before I explain the detail of the Bill, I think it would be useful if I began by setting it in the context of the Government's commitment to ensure that all young people reach the age of 19 ready for higher education or skilled employment, regardless of their background.

    Reaching the age of 16 is, of course, a major milestone in the transition from childhood to adult life, not least because it marks the end of compulsory education. At this point, young people, for the first time in their lives, have the freedom to choose what to do with their days. The choices they make are of great importance in shaping their future life chances and opportunities. Opting to continue in learning to develop further skills and qualifications brings many benefits to the individual. All the evidence shows that the level of educational achievement is linked to future success in the labour market, and that basic skills and level 2 qualifications in particular are key to preventing social exclusion.

    What young people do matters a great deal to the country as a whole because it directly determines the level of skills flowing into the labour market. Raising the participation of young people in education and training is essential to meet the demand for skills in a dynamic, modern economy such as the United Kingdom. By 2010, it is forecast that 80 per cent of new jobs will require high and intermediate levels of qualifications and that 95 per cent will require at least a level 2 qualification.

    The Government are committed to supporting post-16 choices, ensuring that all young people reach the age of 19 ready for higher education or skilled employment. We have much more to do to reach this objective. We have increased the number of young people participating in education and training after the age of 16 but a quarter of 15 to 19 year-olds are still not in formal learning. The UK compares badly internationally in this respect: we currently lie 25th out of 30 OECD countries for participation in education at age 17. That goes a long way to explaining the skills gap in this country. More than 30 per cent of UK workers—about 7.8 million people—have low skills, compared with less than 20 per cent in Germany and 15 per cent in the United States.

    The Government are determined to reverse the historic failures in the education system which have caused this skills shortage. We have made much progress since 1997, with pupils now getting the best ever results from primary through to GCSE and A-levels. But some historic weaknesses still remain, particularly in the post-16 phase. Over the next 10 years, we want to raise our post-16 participation to match the best in the OECD, increasing it from 75 per cent to at least 90 per cent at age 17.

    Our strategy to achieve this has three strands. First, as set out in the 14 to 19 education and skills White Paper published last week, the Government are reforming the curriculum structure in Britain to make it more flexible, rewarding and engaging. However, I shall not repeat the arguments which have already been put forward on that issue.

    Our second strand, designed to underpin these curriculum and training reforms, is to strengthen the advice, guidance and support we offer young people to ensure they are able to make informed choices about the range of learning options and opportunities.

    The third and final element of the Government's strategy is to remove the financial barriers to learning. The Chancellor announced in Budget 2003 that the Government would review financial support for 16 to 19 year-olds, with the aim of delivering a more accessible system which provides every young person with the support and incentive they need to participate in education or training. The review sought to build on the success of the educational maintenance allowance pilots which have demonstrated the important role of financial support in delivering higher rates of post-16 participation. It was rolled out nationally for 16 year-olds in September last year, with a framework of rights and responsibilities for young people who decide to stay on at school and college.

    The review of financial support for 16 to 19 year-olds sought to find ways in which the principle could be extended to other groups of young people to ensure that all individuals are supported and encouraged to make the most of their potential. The initial findings and proposals of the review were set out in the report, Supporting Young People To Achieve, which was published alongside last year's Budget. The evidence collected during the review indicated that the complexity and anomalies in the current system of financial support create major barriers to learning for some young people, particularly the most vulnerable. To remove those obstacles, the review proposed a long-term vision of a single, coherent system of financial support, designed to engage young people and support their post-16 choices and transitions. The consultation with young people, parents, voluntary sector organisations and employers has demonstrated strong support for that approach. The Government will respond to that consultation and setting out the next steps in the Budget on 16 March.

    In addition to these radical, long-term proposals, the review identified two specific, short-term measures to tackle some of the worst distortions in the current system. The first aims to support young people's choices between classroom-based and work-based learning by creating a level playing field in the financial support available for both.

    About three-quarters of young people at 16 choose to continue in full-time education at school or college, and a further 10 per cent enter waged apprenticeships with an employer. But some young people, particularly the most disadvantaged, may not be ready or willing to enter structured learning. They may need basic skills training such as the Entry to Employment programme in England provides. At the moment, what activity an individual decides to pursue at 16 determines the financial support to which they are entitled. If they continue in education at school or college, a very generous package of child benefit and child tax credit is paid to their parents, and educational maintenance allowance is paid directly to them. That can total around £75 a week for a low-income family, depending on household circumstances.

    Some young people prefer to continue learning in the workplace; for example, through an apprenticeship programme. Most apprentices do not need financial support from the Government because they are based—

    My Lords, I did not quite catch what the Minister said was "paid directly to them". I presume he means the "child".

    My Lords, the educational maintenance allowance is paid directly to them, in addition to the child benefit and child tax credit paid to the parents.

    Most apprentices do not need financial support because they are based with an employer who pays their wage. The review recommended that all employer-based apprentices should be paid a weekly wage of at least £70 to £80.

    Some young people in some occupations may need preparatory training before they are ready to proceed to a waged apprenticeship. For example, they may need to acquire basic skills or develop personal and social competencies, particularly if they have been disengaged from mainstream education. The Learning and Skills Council for England and the devolved administrations therefore fund and manage unwaged training places for such young people. An example of this is the Entry to Employment programme in England, which is delivered on behalf of the Learning and Skills Council by local training providers such as voluntary organisations.

    This is why I call the Bill the Padraig Harrington Bill. My wife is the chair of a charity in north London called the Harington Scheme. It provides horticultural training for young people with learning disabilities. They are exactly the kind of people for whom this programme is designed, because they are simply not able to stay in school or college and they are not able to get paid jobs. The charity, with the support of the Learning and Skills Council, provides horticultural training. Fifty per cent of the trainees land up in jobs at the end, and the others are able to join a scheme where assisted work is available for them. The problem which that scheme addresses is that those who are aged 16 to 19 simply do not have the support that they would enjoy if they had stayed in school or college. That is what this Bill is designed to correct.

    At the moment, young people who want to pursue an unwaged training programme such as the Harington Scheme are entitled only to a minimum training allowance of £40 a week. The difference between the financial support available for that form of learning and the generous package available for those who stay at school or college distorts the choices of young people. Together, child benefit and child tax credit make up an important stream of income for a young person's family. The loss of that money may mean that some low-income parents are no longer able to support their child. The young person may be forced into a course at college— if he can get in—that may be inappropriate for him, rather than join a course with a training provider because of the additional financial support available. He may end up dropping out of learning altogether if the course does not suit him.

    We believe that young people should be able to choose their learning route, rather than making a decision based on the amount of financial support available to them. That is why the Bill is important. It is the first step in removing the distinction between education and unwaged training in the financial support system. The changes will strengthen young people's choices between learning in the classroom and the workplace. They will bring about additional investment in financial support for unwaged trainees of around £100 million a year, delivering more money for tens of thousands of young learners, especially those from low-income families who are unable to live in the family home.

    The second damaging anomaly that the Child Benefit Bill will enable us to remove is the automatic cut-off in financial support at the age of 19. The current rules are based on the assumption that post-16 participation consists of two years of A-level study at school or college, completed before the 19th birthday. That model of post-16 education does not match the pathways and experiences of many young people who continue in learning today. Each year, thousands of young people reach the age of 19 while still studying for non-advanced qualifications. Many will be in that situation because their education has been disrupted. Vulnerable groups such as care leavers, young offenders and homeless young people often face challenges that prevent them from completing their non-advanced education before the age of 19.

    Under the current rules, child benefit and child tax credit cease on the young person's 19th birthday, irrespective of whether they are studying. Young people from low-income households may be forced to leave their course before achieving their qualification because of the pressures on family finance. The situation is even worse for young people who cannot live in the family home. Their entitlement to income support may cease, and they must instead claim jobseeker's allowance, which requires them to be available for work rather than studying full-time. The loss of income support triggers the loss of housing benefit, making it impossible for those young people to continue on their course without losing their home or running up rent arrears. The personal testimonies which the Government received during the review revealed the distress and frustration caused by those rules. It is a wasted investment for government and young people if they drop out. That is why we are proposing to reform the rules on child benefit, child tax credit and income support so that young people who reach 19 while still studying for non-advanced qualifications are supported until they complete their course, up to an age limit of 20. About 80,000 young people a year will benefit from the measure.

    The Child Benefit Bill is the essential first step in implementing these two important reforms. The Bill restructures the existing definition of a "child" in child benefit rules by introducing a separate definition of a "qualifying young person". A "child" will be defined as a person who has not reached the age of 16, so there is absolutely no impact on the universal payment of child benefit for under-16s. The Bill enables the Treasury to lay regulations prescribing the circumstances in which someone aged 16 and over is defined as a "qualifying young person". That replicates the approach that is already used in the legislation for child tax credit, ensuring greater consistency in the criteria for the two streams of support.

    The Treasury published draft regulations on 10 January to indicate how it intends to use the powers in the Bill setting out the proposed new entitlement for unwaged trainees and 19 year-olds completing a course. The Government intend to implement these reforms in April 2006, along with the corresponding changes to child tax credit and income support which will be made via separate amending regulations.

    It is essential that we equip all our young people with the skills and qualifications they need to face the challenges and opportunities of global economic change over the next few decades. Choices made at 16 matter a great deal. The Bill will help to support those choices by removing some of the worst financial barriers to learning. I have great pleasure in commending the Bill to the House.

    Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)

    1.50 p.m.

    My Lords, I am pleased to speak in this debate and to express my support for the Bill. I know that it will be welcomed by many organisations. It deserves praise because it will put young people and families in a much better financial position, especially those on low incomes and young people who are unable to live at home and are already independent of their families.

    The Bill is long overdue and puts right a wrong which has existed for a long time. I refer to the loophole which, in certain circumstances outlined by the Minister, prevents many 19 year-olds obtaining any money or benefit. I have some knowledge of this, which is why I am particularly interested in the Bill.

    I became aware of the anomaly under which young people studying a full-time course at a further education college no longer qualify for child benefit when they reach their 19th birthday. That affected a member of my own family. The young man concerned was aged 18 years and 11 months when he enrolled on a course due to start in the September. By the next month, with approximately one year and 11 months left to complete the course, he reached the age of 19, the cut-off age for child benefit. His single parent mother could no longer claim child benefit for him. This meant that either she had to keep him financially or he would have to give up his course and find a job. Giving up the course would mean that he would not have any qualifications. Fortunately, he was able to continue with it, although it was quite a struggle financially.

    I had not previously been aware of this and I did not believe it was correct, so I asked the Library to check the facts for me. The information I received showed that it was correct and that the Government, aware of the loophole, were carrying out consultation on it. I am pleased that the Government have responded to that consultation in such a positive manner.

    Although my initial concern was for the over-19s, I am pleased about the other measures in the Bill, such as removing the distinction between education and unwaged training in the financial support system. This is a good Bill which will help low-income families to provide support at a time when their children need to obtain qualifications. We badly need to help our young people in this regard as our record is not that good, a point already outlined by my noble friend.

    I appreciate that there are other schemes to help young people, such as the education maintenance allowance which has been available since September 2004. That weekly payment has been a great help in supporting and encouraging young people to stay on in education. I understand that it has to be a means-tested allowance based on parental income, so not all young people receive it. But anything which helps young people to obtain qualifications, especially those who are not academically minded, is to be welcomed. We need plumbers in this country as much as we need professors. Dawn Primarolo MP, the Paymaster General, said at Second Reading in another place that:
    "We all know that skills matter, but we also know that the United Kingdom education system has unfortunately suffered from historical underachievement. Although we perform strongly in higher education and have a large number of highly skilled workers compared with other countries, the historic failure to invest in training and education until recently has led to major shortfalls in terms of the intermediate skills that we need to secure sustainable employment and opportunities for all. As a result, far too many young people and adults are prevented by their lack of skills from getting secure, well paid jobs and all the social and personal benefits that go with them".—[Official Report, Commons, 12/1/05: cols. 316–317.]

    I believe that this Bill will go a long way to improving our skills shortfall because the financial support will encourage more young people to stay on in education and training. However, I hope that the Minister can clear up one point. The Bill states that support for 19 year-olds will continue either until they reach the age of 20 or until the end of their course, whichever comes first. Someone like the young man I mentioned earlier will be over the age of 20 before his course ends. I do not know if I have this right, but it would mean that their entitlement to benefit would end at 20, even though the course may have six or more months to run. That would put them in a difficult position. Would it not be better for the Bill to provide for whichever date comes later?

    Despite that, this is a really great Bill and I am sure that it will meet with the agreement of your Lordships' House. It is much to be welcomed.

    1.56 p.m.

    My Lords, I, too, thank my noble friend for introducing this Bill, and I want to join my noble friend Lady Gale in saying a few words in support. In various incarnations, both in government and in opposition, I have spoken up in support of skills training in the DTI. But do not just listen to me. Listen to what Steve Stewart has to say about the Bill.

    Mr Steve Stewart is the Deputy Chief Executive of Wakefield District Council in Yorkshire. He is facing the difficult problem of young people coming into the labour market without basic skills—and I mean basic numeracy and literacy. He is busy developing a public service agreement with local partners to tackle worklessness and skills development, because in the district of Wakefield 24 per cent of boys and 13 per cent of girls enter the labour market at 16. That is significantly higher than the national average for both sexes.

    Mr Stewart has said that the proposals in this Bill will help clear some of the hurdles identified by Wakefield council in terms of supporting skills development. It will assist the council in encouraging students to stay on at 16 to develop skills in sectors such as the construction industry, which are vital to the regeneration of the district.

    He also pointed out that the proposals will contribute to beating the poverty trap that encourages young people in Wakefield to enter low-paid jobs with low prospects at the age of 16 rather than remain in learning. He thinks that the Bill will help to send a clear message to the traditionally hard-to-reach communities about the advantages of remaining in learning and training. These are communities where the lack of educational achievement and basic skills goes back generations. Noble Lords have long recognised the need to break that chain. It is hoped that the Bill will be one more small way of doing that.

    The point I want to make is that this is not a politician speaking. This is a public official at the sharp end, trying to deal with the social and economic effects of a lack of skills. Mr Stewart is reluctant to put youngsters into dead-end jobs, and, frankly, very few unskilled jobs now exist, either dead end or otherwise. He needs the flexibility and freedom to provide some benefit or allowances while the public service agreement is in operation. That is precisely what this Bill addresses.

    Wakefield is not alone: 25 per cent of our youngsters reach the age of 19 without a level 2 or equivalent qualification. We compare very badly with other countries.

    As the Minister explained, one of the purposes of the Bill is to introduce the educational training allowance. I agree with him that the minimum training allowance distorted choice and made the transition from school to work more difficult. Parents of young people aged 16 and over and under 19 in non-advanced education receive child benefit and child tax credit, but the parents of young people of the same age group in unwaged training do not. It is this which distorts the choice and sometimes pressures young people into a course at college who might otherwise have benefited from training at work. The move to an education maintenance allowance is to be welcomed as it helps to remove this distortion.

    I understand that there are around 80,000 unwaged trainees across the UK and that the Bill will provide the same financial support for either education or work-based learning. The choice will be theirs.

    The more suspicious-minded of us will perhaps ask, "Ah, does this mean that businesses can stop paying their trainees by encouraging them or their parents to take advantage of these allowances?". Perhaps the Minister can tell the House how the Government are going to safeguard against that. There are safeguards with education maintenance allowances. The EMAs are strictly monitored; there is a learning agreement and FE colleges are set up to track a student's progress to make sure that the money is not wasted. Will there be similar requirements where young people receive unwaged training at businesses or at charities? There is a great deal of administration involved in this which small firms or voluntary organisations may not be able to provide.

    In addition, the Minister told us that replacing the minimum training allowance with EMAs will move money away from the young person to the family. Are the Government satisfied that this will not be exploited by the adults to the detriment of the youngsters?

    Some may say that with employment at record levels in Britain, who needs this? The answer is that the skill gaps in Britain remain stubbornly persistent. Those who attend business meetings—and I see in their places one or two noble Lords who do attend such meetings, particularly business breakfasts—will agree that the most common complaint is a shortage of skilled staff. Obviously the Government must and are taking action to tackle this, of which the Bill is a small part.

    I hope that noble Lords on all sides of the House will join me in supporting the Bill so that tomorrow I can send a copy of the Hansard containing the record of this debate to Wakefield council, with a note saying, "Keep up the good work. Help is on its way".

    2.3 p.m.

    My Lords, it is a pleasure to follow the constructive and thoughtful speeches of the noble Baroness, Lady Gale, and the noble Lord, Lord Haskel. I am happy to make it clear from these Benches that, like them, we support this modest but sensible Bill. I am not sure whether I should be here at all. Many of the issues we have been discussing are educational and this feels as much an education Bill as a Treasury one. But we have an all-encompassing Treasury these days and so I shall do my best.

    As I read through the record of the debates in Committee in the other House, I felt that there had probably been a certain amount of manufactured controversy. It did not seem to me that many serious issues were raised, and I was not quite sure why it took as long as it did. I am sure that, in this House, we will not go down that route.

    The main question that arises on the Bill concerns the 80,000, or however many it is, unwaged trainees and unpaid youngsters on job experience. Given the question of whether the Bill is intended to cover assistance only for trainees on government-supported training schemes, how many families of unwaged trainees, in total, will receive child benefit and child tax credit? The debates in the other place seemed to turn on that issue.

    Will the Government expand the eligibility criteria for those in unwaged training or unpaid work experience? Barnardo's, in particular, has made a very good case for the need to expand the criteria to cover the large group of young people who are often disaffected and do not necessarily fit easily into the benefit and educational assumptions made by governments, which tend to suit the majority of young people who pass through the educational and training systems. It is very important to ensure that benefit and training systems are sufficiently flexible to allow groups of young people who do not fit into those simple categories to be properly provided for.

    The noble Lord, Lord Haskel, pointed out the risk of not very well qualified young people falling through the net, as it were. It is very important that we try to be as inclusive as we can to these people and reduce the risk of them being alienated from society and possibly even falling into crime.

    We have received other representations, making a similar point, from the Prince's Trust. It stated:
    "If it is only approved 'Government supported schemes' that are eligible, then young people may not feel that they have the financial support to participate in",
    more informal training activities. It asks for clarification of,
    "what is meant by 'Government supported schemes' and whether voluntary work, work experience and other more informal forms of training are going to be eligible for Child Benefit".

    Skill shortages clearly are a major problem in our economy. The statistics quoted by the noble Lord, Lord Haskel, about our relatively low position in the skills and training league internationally are a serious problem. It is a major problem for the British economy and, particularly in London and the south-east, it is quite clear that we are suffering from very strong skills shortages. At its most obvious, where would the London building trade be without Polish workers, to name just one group, let alone those from other countries? So anything that will help in the medium term to ease our skills shortages is obviously essential.

    We also face ever increasing competition in many areas of our economy and industry, from China and India in particular, and the levels of educational achievement among some of our young people clearly leave a great deal to be desired. We will not be competitive internationally unless we can raise our game.

    The other matter arising from the debates in the Commons which I should like to pursue here is the substantial question raised by both major opposition parties about the Government's reluctance to make any estimate of likely behavioural changes arising out of the Bill and the consequent cost effects. Now that the Government have had a month since the debate on 3 February in the other place, will they have a first stab at estimating the behavioural changes, which I think it fair to say are likely to be quite significant?

    Perhaps I may make a general point about unpaid work experience and how it is developing into almost a pre-condition for getting a job in some sectors, certainly in the media and parts of the financial services. The way in which this is developing is very unfair. I have a 19 year-old son and I am very lucky that I am able to afford to support him if he needs to do extended work experience. The current arrangements really discriminate against children from poorer families.

    I am to some extent sympathetic to Ministers when they ask why they are not given more credit for the good things they have done. We are happy to recognise that, particularly in areas such as the tackling of child poverty. However, as Vince Cable, my colleague in the other place, pointed out, the problem is that many people simply do not understand the complex system of benefits with which they have to grapple. The situation is the same with pensions. People have to wander through such a quagmire of complication that they do not realise how the system works.

    The Bill deals with only part of that problem. Nevertheless, it is useful legislation. We are happy to support it and speed it on its way through the currently very crowded legislative seas in order to get it on to the statute book.

    2.10 p.m.

    My Lords, the purpose of this Bill is clear and we support the objectives. We have had a short and interesting debate about a short and interesting Bill. There is no doubt that the case made by the Minister and other speakers for more action in this area is overwhelming. The regulatory impact assessment spells it out in considerable detail, so I do not need to stress its importance. However, one or two points must be made.

    This Bill is unusual, in present circumstances, because it reaches your Lordships' House in quite good shape. That has not been the case of many other Bills. Your Lordships will no doubt have noted that, before Third Reading in another place, complaint was made that the programming of Bills there is applied across the board regardless of the extent to which any programming may be necessary. A complaint was made that only half an hour was allocated in the original programming Motion for debate in the House of Commons at Third Reading. This is a matter for great concern.

    The reason this Bill is in good shape is that the Minister responsible showed flexibility. However, the way in which programming is used means that normally your Lordships have a heavy task, as we experienced on the Pensions Bill. We must hope that that does not continue because the other place is not fulfilling its legislative function.

    I have some specific points which need to be considered. The Bill is to be administered by the Treasury; so, rather strangely, this is a Treasury Bill. The reason for that is the way in which the Chancellor of the Exchequer has tended to take everything in relation to work and pensions away from that department and put it under the aegis of the Treasury. This is done not only with regard to actual policy but also the way in which it is operated. Thus we suddenly find that because child tax credit is something that the Chancellor has taken over, this should apply also to child benefit.

    I will not go over the same ground that we covered last Monday in our debate on various tax credit orders, but the degree of complexity now is extraordinary. We pointed out then that the Inland Revenue is better at collecting money than dispersing it. Allegedly, it has wrongly dispersed a number of payments to people who are affected by this Bill. Against the background of this Bill, the Revenue would be seeking to claw back alleged overpayments on the child tax credit. This will create even greater confusion.

    One can understand the Treasury getting involved up to a point if it is a means-tested benefit or depends on means. My understanding is that the provision in this Bill will not be so. The noble Baroness, Lady Gale, said it was means-tested. Perhaps the Minister can confirm whether that is so, because that is not my understanding.

    My Lords, I was making the point on the education maintenance allowance, which is means-tested based on parental income, but that does not apply to the child benefit element.

    My Lords, I may have misunderstood what the noble Baroness said, but it does mean we have a hotchpotch of proposals for helping children. Some are means tested—the child tax credit, for example—while this one is not. That brings me to my next question. Who pays out the various allowances and who is receiving them? We seem to be in a slightly strange situation where the child tax credit and child benefit are paid to the parents; but, if I understood it correctly, the education maintenance allowance will be paid to the child.

    As the noble Lord, Lord Haskel, observed: is it all going in the right direction? If it is paid to the parents, will it be used by the children or go towards some other expenditure? This is a matter of some concern. We are also raising the age limit further and further. I entirely understand the case for raising it beyond 19, because, as has been rightly pointed out—the Bill provides for this—there may be people who have not yet completed a course. Indeed, the allowance may continue for some considerable time after the so-called "child" has reached the age of 19. However, as the education maintenance allowance is paid direct, is there not also a case for this benefit to be paid direct? We need to look at the actual age limit.

    The other point that has been regularly raised is the question of the cost estimates. No doubt the Minister can help us, but we are not clear about the costs or the scope of provision made for paying child benefit. The noble Lord, Lord Oakeshott, pointed out that, apparently, it is so if it is clearly a state scheme; it is so if it is a state-supported scheme; but it is not so if it is something that may increase the skills of the working population outside the public sector. The Minister speaks with passion because of his interest in the Harington Scheme, which I gather this Bill will assist. However, other trusts with educational aims would, apparently, not benefit from these provisions.

    Noble Lords on this side of the House welcome the Bill's proposals. Some further points may need to be discussed following representations from outside bodies but, overall, this is a sensible measure and one which we will need to ensure reaches the statute book quickly.

    This morning a report was given to me by an organisation called Sodexho, which has carried out a study on how the money provided by this Bill will be paid. The study shows an enormous percentage increase in expenditure for children going to and from school. A large amount of money is spent on what they call the "four Cs"—confectionary, chocolate, crisps and canned drinks. Indeed, the money provided by this Bill may do little to solve the problem of obesity. None the less, this is a Bill which we ought to support and which no doubt will find its way on to the statute book far faster than some of those that the Government sought to accelerate by imposing an unfair restriction on the amount of time available for debate.

    2.20 p.m.

    My Lords, I am grateful to all noble Lords who have spoken in support of the Bill. I am particularly encouraged to hear the noble Lord, Lord Oakeshott, say that it should proceed with all due speed and to hear the noble Lord, Lord Higgins, say that the Bill is in good shape. I hope that that means that no amendments will be tabled for Grand Committee, or if anyone has probing amendments, perhaps we could talk about them beforehand, as that would certainly help.

    It is not that I am anxious to inhibit discussion. I do not agree with the noble Lord, Lord Higgins, about the time of Third Reading. The time allotted was 45 minutes, and the Opposition spokesman who opened the debate said that they would not really need 45 minutes. I think they did in the end, but there was no particular complaint about that.

    My Lords, in fact it was half an hour, not 45 minutes. The system is vastly different from the one that we used to have. If it was necessary to curtail debate because of filibustering or some urgency, at least half a day's debate was allocated to justify it. Now everything is programmed, which was unheard of 10 years ago. The way in which debate has been curtailed in the other place is deplorable.

    My Lords, I am reluctant to have a debate on the procedures of the House of Commons, although I appreciate the noble Lord's motive if it were to affect the quality of the legislation that comes to us. But as he said, it has not. It has come to us in good shape. I shall not pursue that matter further.

    My Lords, I am just responding to the Minister's request. Subject to his summing up and answering the points that I have raised, I have no plans to table amendments.

    My Lords, that is helpful.

    My only other introductory remark—if I can get to it—is to comment on what the noble Baroness, Lady Gale, said about plumbers and professors. Some people would say that there is a greater need for plumbers than professors. I rather think that if you called out a professor you would get one in 10 minutes in many parts of the country.

    The noble Baroness made a valuable contribution because it was from personal experience involving a member of her family. She is right to say that one of the virtues of the Bill is that it removes the distinction—the discrimination—between education in a college and unwaged training. To that extent, I very much agree with her.

    I find it more difficult to respond to her question about what happens after the 20th birthday. The member of her family started unwaged training at the age of 18 years 11 months. The benefit of the Bill will expire on the 20th birthday, which is well before the programme of unwaged training is complete. The reason for not making it a later date was because we thought it undesirable from a young person's point of view unnecessarily to delay entering an unwaged training programme. The Paymaster General heard that point in the House of Commons and undertook to have a review.

    The noble Lord, Lord Haskel, made a valuable contribution. It referred to experience in Wakefield where, as he said, there is a significant lack of basic skills. That reminds me that I forgot to say when mentioning the Harington Scheme that it is for people with learning disabilities—those who would not get into further education or training in FE or sixth form colleges. I confirm to the noble Lord, Lord Higgins, that they are on entry to apprenticeship schemes funded by the Learning and Skills Council. Local LSCs are able to fund skills, although they have their own policies. But in most of the country funding is available to voluntary organisations.

    The noble Lord, Lord Haskel, asked whether there was a risk that businesses would stop paying trainees. They pay trainees when it is to their advantage to do so, and do not when it is not. Programmes are funded by the Learning and Skills Council and frequently include an element of college attendance. If there were a risk of businesses stopping paying trainees, they would not do it by this method. The number of apprenticeships has increased significantly under this Government. I do not have the figures in front of me, but the TUC has indicated support for these measures, which it would not do if employers were capable of exploiting them.

    The noble Lord also questioned whether young people could be exploited by their own families. If that were the case, it would apply much more widely to those in further education. I do not think that there is any evidence that they do. The benefits provide some money for the young person and some for the family, which is generally agreed to be the right way round.

    The noble Lord, Lord Oakeshott, asked how many of the 80,000 in the cohort would benefit. The answer is all of them. We have provided in draft regulations a full list of all the government-arranged training programmes, including entry to employment and comparable schemes in Scotland, Wales and Northern Ireland. None of the 80,000 will not benefit. It is a coincidence that there are 80,000 unwaged traineeships and also 80,000 between their 19th and 20th birthdays. No one should be led to think that there is anything other than coincidence in that figure.

    The noble Lord asked me a proper question from the Prince's Trust about why there are only government-supported training schemes and not work experience and more informal training schemes. That question was asked of the Paymaster General in another place who recognised that it is a significant issue. She said that there would be a response in the Statement accompanying the Budget in two weeks' time.

    The noble Lord also asked about likely behavioural training changes and their cost effect. The answer to the latter question can be answered very easily. It is a zero sum game between further education or sixth form colleges and unwaged training. Both will now get the same financial support. The movement between those in colleges and those in unwaged training will not cost the Exchequer any more. We have given figures of £105 million, but the continuing costs will not be significant.

    As to whether it will bring in behavioural changes in the sense of new entrants, that is a valid point to which we do not yet know the answer. We have been unable to do a pilot as we did for educational maintenance allowances. It provides a better choice that is not distorted by financial considerations at the age of 16 or later. If the choice is between education and unwaged training, neither affects the Exchequer.

    I shall not go back to the little discussion with the noble Lord, Lord Higgins, about proceedings in the House of Commons but, as so often, he queried why the Treasury is responsible for this legislation. It is because Parliament passed it in the Tax Credits Act, the purpose of which was to integrate the tax system with family support. Since we now have 6 million families on tax credit, I do not think that there can be any serious doubt that it has not been advantageous. If there are queries about the administration of tax credits, I would only say that the Office of Government Commerce stated:
    "This is an exemplar of good programme management".

    My Lords, a situation in which child tax credit has been wrongly paid by the Inland Revenue, which then claims it back from the poor families concerned, who have spent the money, cannot possibly be described in that way.

    My Lords, we have debated this in this Chamber within the past week, as the noble Lord, Lord Higgins, knows. There is a trade off. Either a system is simple and is assessed only once a year—which leads to overpayment that has to be recovered—or the payment is continually reassessed. There can be different views about which is the better option, but no one can deny that they are legitimate options and that there is a trade off between them.

    The noble Lord asked whether this means means-testing child benefit. We are talking about over-16s and there is already a test for child benefit: the independence of the young person and whether he is working 24 hours a week or more. He acknowledged that the Harington scheme would benefit from this legislation and asked whether there were other schemes that would not. As I think I indicated before, the programme of schemes set out in the draft regulations is pretty comprehensive. The noble Lord accused the Treasury of liking to take over social policy, but I think I am allowed to refrain from commenting on the views of Sodexho about obesity. That is one thing for which the Treasury is not responsible.

    I hope that I have answered the questions raised in debate.

    On Question, Bill read a second time, and committed to a Grand Committee.

    My Lords, I beg to move that the House do now adjourn during pleasure until 2.35 p.m.

    Moved accordingly, and, on Question, Motion agreed to.

    [The Sitting was suspended from 2.32 to 2.35 p.m.]

    Prevention Of Terrorism Bill

    House again in Committee on Clause 1, Amendment No. 2.

    I have been listening with interest to the debate on the Government's amendment and on the amendment moved by the noble Lord, Lord Thomas of Gresford, and to noble Lords who seem to be extremely concerned that they may be required under the Bill, and in some of the amendments, to do the Government's work for them. I agree that that should not be the case.

    We have not examined some of the impositions in Clause 1 in suitable detail. It may very well be that the Government are relying on the ignorance of the electorate about what could befall them under this clause and are hanging on the opinion poll that appeared in the Daily Telegraph a few days ago and showed that the electorate are all in favour of this obnoxious Bill and the powers contained in it.

    Let us look at one of the powers on the top of page 2 of the Bill. Clause 1(3)(c) refers to,
    "a restriction in respect of his work or other occupation, or in respect of his business".
    As it reads here, that could mean that a person's livelihood is taken away from him, that his business could be ruined. People in this country subject to such an order could find themselves unable to make a living, to pay their rent or mortgage or even to eat.

    Then in Clause 1(3)(d) there is a restriction on,
    "his association or communications with specified persons or with other persons generally".
    That means that he could be required not to talk to anyone at all, on the telephone, at his door or wherever else. Would it apply to anybody he would talk to when he went out on the street, because that is included in "other persons generally"?

    Then in Clause 1(3)(e), which has already been referred to, there is:
    "a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence".
    They could presumably put a restriction on the milkman, the meter reader or anybody else. These are very severe restrictions indeed.

    If we look at Clause 1(3)(m), there is:
    "a requirement on him to co-operate".
    How are they going to do it? Are we going to have a Gulag, or a few Gulags, in this country? Clause 1(3)(n) provides for,
    "a requirement on him to comply with a demand made in the specified manner to provide information".
    That is not a request but a requirement.

    Those really are very onerous restrictions. People may, of course, believe that they apply only to Muslims. Indeed, the Home Office Minister, Mrs Hazel Blears, warned the Muslim community that they would be at great risk from these provisions. Yet it does not stop at Muslims. There is nothing in the Bill to say that only Muslims are going to be put under such control orders. It could be, for example, those who want to continue hunting. They could be construed as being a threat to law and order, and as committing terrorism against foxes or something like that. What would these orders have done to the miners during the miners' strike? Some people might have construed that they were putting the nation at risk.

    We must get it across to the electorate generally—to the ordinary decent people in the country—that it is not only terrorists or Al'Qaeda who are at risk, it is not only Muslims or dark-skinned people, it is them. Every single one of us is at risk from the provisions in Clause 1. That is why it is essential that the amendment moved by the noble Lord, Lord Thomas of Gresford—and, later, other amendments—should be incorporated into the Bill. I do not know whether we will vote on the amendment now, but at some stage it must be incorporated. I hope that noble Lords will support it.

    I hesitate to intrude in the proceedings, surrounded by so many eminent lawyers, but I think that I may be uniquely advantaged—or disadvantaged—by not being a lawyer.

    Listening to the speech made by the noble Lord, Lord Thomas of Gresford, and to those of other noble Lords, I believe that there is some consensus on the central issue, which is that there should be due process and people should have an opportunity to know of what they are accused and be able to answer that in some way. I have much sympathy with the point made by the noble and learned Lord, Lord Lloyd of Berwick, about the dangers of putting the judiciary into a position where they act as a kind of cipher for Ministers. It was not clear to me whether he was ruling out what was being proposed by the noble Lord, Lord Thomas, and others—that there should be some due process. I think he was saying that there should not be judicial involvement in place of the role being carried out by the Secretary of State.

    I do not wish to repeat arguments that have already been made. However, I have one specific question to which I should very much like an answer. I have read the amendments, the Bill and all the material that has been made available, but I am still slightly puzzled. I apologise for raising a question that may not seem central to the larger issues in the amendments, but, in order to understand the Government's position on their amendments, I need to know how this is going to work north of the Border.

    As I understand it—and again, I am not a lawyer—under the devolution settlement, the Scottish Parliament is not allowed to do anything that is in breach of the European convention. So, how will the provision work in respect of Scottish individuals? I understand that "Secretary of State" means any Secretary of State, but if we are talking about somebody living in Scotland, who is the Secretary of State? It is clearly not the First Minister, so is it the Lord Advocate?

    2.45 p.m.

    Furthermore, which police interest will be involved in making an arrest? I hope that the noble and learned Lord the Lord Chancellor can reassure me that there is no suggestion that a Secretary of State in the Home Office or for another English department would ask a police officer from England to go up to Scotland to arrest somebody there. But that is how I read the Bill. I cannot see any provision in the Bill or in any of the amendments for Scottish law and the Scottish judicial process to be carried out. The point was raised on Second Reading by my noble friend the Duke of Montrose, so it is a point of which the Minister has had notice and on which I am sure he will be able to answer fully. The very last thing one would want to see is further confusion in the media north of the Border about the precise role as it affects people in Scotland and the devolved Administrations.

    As another non-lawyer I have been trying to make sense of the debate so far. I will tell the House how I understand it and perhaps someone can correct me if I am wrong.

    The government amendment obviously concedes that a judge has to be involved immediately when a derogating order is sought. I believe that the noble Lords, Lord Goodhart and Lord Thomas, want non-derogating orders to be treated in the same way. The noble Lord, Lord Carlisle of Bucklow, says that the Secretary of State should have to go to the DPP before all that, when there is a suspicion, and the process will be triggered only if the DPP says that he cannot proceed. Even if we accepted the amendment of the noble Lords, Lord Goodhart and Lord Thomas, there is a feeling that judges are not happy being administrators.

    The amendment of the noble and learned Lord, Lord Donaldson of Lymington, would then kick in. After having gone through the Carlisle amendment process and got out of that, you could then take the route proposed in the amendment of the noble and learned Lord, Lord Donaldson. If the person cannot be tried, one might say, "You cannot let the judges do the job of the Secretary of State; therefore, let us go to the Donaldson amendment". I could be wrong, but if we went through all that process, would we not arrive at where the Government want to be, with their various little problems, if not taken care of, at least faced up to? If all of that is correct, I hope that we may be arriving at some kind of consensus, as the noble Lord, Lord Forsyth of Drumlean, said. Whatever reservations we have about the Bill, we have to get some sort of legislation out of this place in sufficient time to allow the Commons to debate it and to meet the deadline. It certainly helps me to think about it that way. I hope that it helps the Committee.

    This has been a constructive and interesting debate on very important issues. I shall go through it in stages.

    The first question raised was whether we need something other than the normal criminal process in order to assist in fighting the terrorist threat that we currently face. There are those among your Lordships—among whom I include, I hope not exclusively, the noble and learned Lord, Lord Lloyd of Berwick, the noble Baroness, Lady Kennedy of The Shaws, and, I think, the noble Earl, Lord Onslow—who take the view that we should not have any sort of control orders at all, but that we should just stick to the normal criminal process.

    That is a view with which the Government disagree, on the advice of the security services; it is a view, I think, with which the Newton committee disagreed; it is a view, I think, with which the Conservative Party disagrees; and I think it is a view with which the Liberal Democrats also disagree. So the three main political parties are in a consensus, supported by the view of the Newton committee, that something other than the ordinary criminal process is required in order to fight against the current threat of terrorism.

    If that argument is accepted, then it is necessary to work out what that process should be, seeking to balance as much as possible the rights of the individual against the need effectively to fight terrorism. I respectfully suggest that the debate we are having in Committee concerns how we bring that about. I understood the words of the noble Lord, Lord Forsyth of Drumlean—I expressed my gratitude to him at the beginning of the day—to be that he accepts that as well, but the issue is how we get to a point where we have a suitable process.

    The second issue that arises, once one accepts the need for some type of process, is what that process should be. We submit that the right process is a control order process rather than, as the Newton committee suggested we look at, some type of investigating judge process. One fears that the investigating judge process would lead precisely to what the noble and learned Lord, Lord Donaldson of Lymington, warned us against, which is making the judge even more of a player than he otherwise would be. The idea suggested by the Newton committee that the judge should sift through the evidence and put the case to another judge is quite inimical to the way that our judges operate and I do not think that that would be appropriate.

    In effect, that is the only real alternative that has been advanced, apart from control orders. Therefore, we are the only body—namely, the Government—who are actually proposing what that process, which is not the criminal process and which we say is necessary, should be.

    The difficulty with control orders, which everyone has eloquently identified, is this: the decision about security is normally a decision that would be made by the Executive—in practice, the Home Secretary. But, plainly, you cannot just leave it to the Home Secretary. There must be some judicial oversight to protect the citizen in relation to it and that judicial oversight must be as fair as it possibly can be to the citizen.

    Where is the balance to be struck? Our initial proposal was that, in relation both to those orders that deprive a citizen of his liberty under Article 5 and one that did not, the Home Secretary should make the order, which should then be subject to easily accessible and stringent judicial oversight—I use the word neutrally. Strong representations were made, both in another place and outside, that depriving someone of his or her liberty under Article 5 should not be done on the say-so of the Executive; it should be done only by a judge.

    Despite the concerns that have been eloquently expressed by the noble and learned Lord, Lord Donaldson, that this would put a judge in a different position from that which is normal, in striking the balance, we have decided that the orders in relation to those deprivation of liberty cases should in the first instance be made by the judge, because you are depriving someone of his liberty.

    The suggestion made by the noble and learned Lord, Lord Donaldson, addressed constructively the dilemma that we face. It should normally be the Executive, but—and I do not know whether he accepts it or not—if you are going to involve a judge, the noble and learned Lord is saying, "Still respect the fact that it is the Secretary of State's decision". His proposal is that although you cannot enforce it without a judge, the Home Secretary can be allowed to enforce it only "with the leave" of the judge. The noble and learned Lord accepts the principled starting point that it should normally be the Executive, but pre-order effectiveness scrutiny by the judge is provided. That is consistent with the position that we have reached and seeks to respect the fact that the judges do not normally make these types of evaluations. We need to take away that suggestion and consider it.

    The impact on someone of depriving them of their liberty is why we have taken the very unusual step of saying that there should be pre-judicial intervention before the order is made. But the same arguments do not apply when you are not depriving someone of their liberty. In that case, Article 5 of the convention is not engaged, but other rights are. Articles 8, 9, 10 and 11 are all engaged. The points made by the noble Lord, Lord Stoddart of Swindon, are absolutely right; we have to be very anxious in relation to the examples of the orders contained in the Bill, such as preventing people from associating with other people or generally restricting the businesses in which they can be involved. There needs to be substantial oversight in relation to that.

    When an order is made which involves an interference with, for example, your rights of association, your right to free speech or your right to privacy, it can be made without offending the European Convention on Human Rights, but only if there is a legitimate aim, such as national security, and it is proportionate. So if the Executive went too far, the courts could strike it down. You would not reach the circumstance posited by the noble Lord, Lord Stoddart of Swindon, because the court would strike it down, unless there was a proper basis for it. You could stop someone engaging in a particular business under these provisions only if it was necessary due to national security and the precise terms of the order were proportionate to your aim.

    If there was no difference between derogatory and non-derogatory orders, that complexity would not arise. As far as the law is concerned, complexity, in my view, is the enemy of freedom and I do not believe that we should go down that route.

    I do not think that there is any complexity in relation to the matter. There is a legal template which ensures that the rule of law is preserved against which all of these orders have to be judged. Ultimately, you have to look at individual cases on a case-by-case basis and have a standard against which you measure the proportionality or otherwise of the order. That is what the European Convention on Human Rights does and the way that we have constructed the Bill seeks to respect both the fact that the Executive are making judgments on national security and that the courts must look at each individual case and ensure that a proper balance has been struck.

    I am listening to what the Lord Chancellor is saying, which is that there would be a judicial process in relation to Part 1—non-derogation orders. But surely I am correct in believing that it would not go to a normal court, as in the normal course of events, but would go to judicial review. Is that right? That really is not the same as going to an ordinary court. As I understand it, you have first to have consent to go to judicial review and that is also a costly process. When we are told that there is a judicial process, it is in fact highly complicated and not one which is generally understood by ordinary people like myself as being a judicial process.

    It is the High Court of England and Wales, or Northern Ireland, and it is the Court of Session in Scotland. They are the superior courts of record in all three jurisdictions. I can think of no more "normal" and no more admired courts than those three. Judicial review is a perfectly normal and proper judicial process. As far as access to the courts is concerned, in terms of expense, we have made it clear that legal aid would be available for those cases that had to be taken without means-testing. In those circumstances, the position would be that those who are the subject of a control order would have legitimate access to the courts.

    3 p.m.

    Not surprisingly, I am still in the most terrible muddle. Taking up what the noble Lord, Lord Stoddart of Swindon, said, if someone is told he cannot do something under paragraphs (d), (h), (k) and (m), the Government say that is non-derogation. If the court finds out that it is derogation, the Government will say "We have to drop this lot, because it's derogation, so we actually have to do something worse to him". Otherwise, they would be landed with the fact that all the non-derogation orders are derogation orders, and they will be in the same muddle as they are at the moment.

    The Government were told before that banging people up in Belmarsh was against the ECHR, but they said it was not. Now they are saying "no" on this issue, but later on they will be told "yes", and they will face exactly the same problem again. Surely they will have to bang someone up under something more serious, because they have to do so under the derogation system rather than under non-derogation.

    With the greatest respect, no. Derogation is required if we deprive someone of their liberty. If we say they have to stay in their house for 24 hours, or for 12 hours, and can only go out between two o'clock and four o'clock, that would probably be deprivation of liberty. However, if we say they have to report to the police station, or they cannot meet Mr X, that unquestionably would not be deprivation of liberty. Of course, in all of these areas there might be a grey area, where a combination of orders equals deprivation of liberty under Article 5. If the Home Secretary stepped over the line in relation to that, the order would be unlawful and would be set aside.

    Would the individual against whom a non-derogatory order had been made, and to whom one part of this cocktail of conditions applied, be entitled to know what the evidence was against him or her?

    It would be subject to the special advocates procedure, under which material that it is judged would damage an informant, for example, would not be made available to the suspect. Again, the committee chaired by the noble Lord, Lord Newton, and the noble Lord, Lord Carlile of Berriew, have both looked at how that system has operated. Is it just? So has the Court of Appeal in the case between M and the Secretary of State for the Home Department. Noble Lords will be aware that the Lord Chief Justice said about that procedure:

    "We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC"—
    which would adopt the same procedure—
    "have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process".

    Again, if we accept the need for something other than the criminal process, and we also accept the proposition—which the Government and the security services do, as does the Court of Appeal in this judgment—that there are certain things that, if we let the suspect have them, could damage informants or national security, we have to seek to construct an arrangement that does justice to everyone while protecting national security. Using the special advocates procedure, which the European Court of Justice held was an appropriate procedure, is the way we have done so.

    I am grateful to my noble and learned friend for giving way. I have a certain amount of sympathy with the noble Earl in his anxiety that the difference between restriction of liberty and deprivation of liberty is a bit hypothetical. For the person concerned, it must sometimes be difficult to distinguish between the two. It is easier to do so on a legal basis.

    Does my noble and learned friend agree that we want a secure situation for our people, as far as we can achieve it? Can my noble and learned friend think of a better rallying point for discontent and exploitation of anxiety than someone having to function every day under regulations that restrict his freedom without everything possible having been done, through due legal processes, to demonstrate to people that this has not been easily done, and has only been done after due consideration?

    These judgments have to be made carefully. We have to balance the effect of making an order on the fight against terrorism with the need, in certain circumstances, to restrict people's movements. The security services are saying that the judgment they make now requires control orders of a non-derogating sort. We all have to take into account whether, as my noble friend Lord Judd says, making such orders would make the position better or worse. It is an incredibly difficult judgment to make. We have to bear in mind that ultimately the advice we are receiving is that it provides greater, rather than lesser, protection for the state.

    I ask this question respectfully. Help us. Under ordinary terrorism legislation, a man is arrested, his computer is disembowelled, there is swabbing for forensics to see if there were explosives in his house or if he has biological components for explosives, and he can be detained for up to 14 days. What kind of information would not put those processes in train? Why is my noble and learned friend the Lord Chancellor not saying that we may need a control order after the man has to be released, as a kind of bail condition, with a limit on it?

    My noble and learned friend suggested that I was not making any positive suggestion to him, but I am. We should carry on through those processes if there is an emergency and our information that the man is going to do something terrible—but suppose that the information is only that this man is sympathetic to Al'Qaeda, and he was heard down at the mosque saying he thinks Osama bin Laden is a great man, and he would like to collect money to send to him. Are we going to do these things based on that kind of information?

    There would be a whole range of information that the intelligence services would have to evaluate to determine whether a control order was necessary. The situation posited by the noble Baroness, Lady Kennedy of The Shaws, is a continuing investigation, where presumably bail conditions could be imposed for a short period, but not, for example, 12 months, which is the period for which a non-derogating control order can be made.

    I speak hypothetically, but the two particular sources of information that are extraordinarily unlikely to be usable in court are foreign intelligence and informants. It might be perfectly obvious in relation to the circumstances that we would not be able to bring a charge, coupled with other material. The question of bail, therefore, would never arise. The advice of the security services is that, in order to provide the necessary protection, we would need to impose some restrictions, although as little as possible, to provide the protection of the state.

    Can the noble and learned Lord the Lord Chancellor tell us, regarding the information that would be used in court. whether information obtained under torture from foreign sources can be used?

    We have always made it clear that we would not wish under any circumstances to use any information obtained under torture. The position regarding the SIAC cases was, as far as the courts were concerned, that no material came from torture. In making their decision, the courts would have to evaluate what material was available to the security services, and consider that in relation to this issue. These are difficult questions, but ultimately we are talking about the protection of the state.

    Just now the noble and learned Lord said that the intelligence services need these powers. Can he explain why, up until the Law Lords' judgment, they banged up 14 people in Belmarsh and the powers were considered to be quite enough, but suddenly, after the Law Lords' decision, there are lots of British subjects wandering about the place who they think might blow up a mosque or three or an aeroplane? Can the noble and learned Lord explain why suddenly the situation has become so much more dangerous than it was a month ago?

    The original powers were sought in the immediate aftermath of 9/11. At that time we believed that foreign nationals provided the major Al'Qaeda risk in this country. As time has gone on by we have learnt more. It is not possible, nor sensible, to return to Parliament constantly to change the powers. In the light of the Law Lords' decision that the powers were unlawful, which we respect and accept, we now need to consider what are the appropriate powers in the context of the current situation and what we know. Having been advised by the security services, we take the view that those powers should extend not just to foreign nationals but also to UK nationals.

    I am grateful to the noble and learned Lord the Lord Chancellor for giving way. I put this point to him at Second Reading. I hear what he says, but if the Government suddenly have new information that large numbers of British citizens are involved—I believe that the other day on "Woman's Hour" the Prime Minister suggested that there were several hundred—is it not remarkable that they waited until the Law Lords' judgment? I find it puzzling that in the other place the Government tabled a statutory instrument to extend the existing powers for nine months if they felt, as a result of this new information, that the existing powers would not provide protection.

    Again, we come back to the point that the existing powers have been deemed to be incompatible with the European convention. In order to be consistent, we need something different. Why did we not do it before and how did we survive before? We did not review the powers and the detail in the way that we are now reviewing them. In effect, the Law Lords' judgment provides the context in which to review the powers altogether.

    Forgive me, I do not know the exact date, but I believe that the Government tabled the statutory instrument to extend the existing powers under the Act that was passed post 9/11. Four weeks ago, they also published an explanatory memorandum. Is the Lord Chancellor saying that the Government did that in the knowledge that there was a serious threat from British citizens and that they would have to do something about it? I find that puzzling. If the Government had been told by the security services that there was a threat, what on earth were they doing extending the existing powers that the Lord Chancellor tells us are not adequate to meet that threat?

    It is my fault for not understanding the point. The noble Lord is absolutely right. We laid an order proposing to extend the Part 4 powers. We did that as a contingency measure against not being able to put forward a Bill with more detailed proposals. Now, we have a Bill with more detailed proposals and one is absolutely right to draw attention to the different approach that we took in the autumn of 2001.

    We sought to protect ourselves against not having any powers on 14 March, when the powers come to an end. Having looked at the matter fully and having taken the advice of the security services, we believe that the right level of powers that we need are those set out in the Bill. That is why we put forward the order in the first place; that is why we have now withdrawn it and why we are now proceeding with this Bill. That is our judgment of the right position.

    The problem with that analysis is that, as recently as March 2004, the Government took a different view that it would not be justifiable to extend these powers to British subjects. The powers were taken in 2001 because it was thought to be easy to do so under the immigration procedures. Less than a year ago the Government thought that these were powers that they could not justifiably take, so what has changed since then?

    Since December we have had to consider what powers we think we need. The noble and learned Lord is absolutely right to draw attention to the statements that have been made as the process has developed. I see in the Chamber noble Lords who have been Home Secretary. I am not inviting them to intervene—at which point they all perk up and appear to be about to intervene. I see another one over there. This is the biggest collection of Home Secretaries in one place that I have seen. From time to time they have seen security situations change. Advice is given and, ultimately, whatever has been the position in the past, the Government, and in particular the Home Secretary, have to make a judgment about the necessary powers on the basis of the advice that he or she receives at that time. It is absolutely right that one will see assessments change from time to time; people have different views about the threat and one can only work on the basis of the threat as perceived by the government at the time.

    3.15 p.m.

    I apologise for interrupting but I would like to follow up a point made by the noble and learned Lord, Lord Lloyd of Berwick. He pointed out that a year ago the Government took the view that it was not necessary to extend these powers. I cannot provide the quote from Hansard, but I believe I am right in saying that the present Home Secretary has said that the threat is not significantly greater than it was a year ago. That closes the timetable. If the Home Secretary is saying that the threat is no greater than it was a year ago, and a year ago the Government were saying that it was not necessary to extend the powers, I find it very difficult to understand when this suddenly became necessary.

    As a government, all that they can do is assess the situation as it presents itself at a particular time. The noble Lord, Lord Forsyth, is absolutely right on both basic propositions that he makes: namely, what was said in March 2004 and that the Home Secretary—I would have to check this—had said words to the effect, "The risk has not become any greater". But that does not mean, looking at the matter overall, and listening to what the security services are saying at a particular time, that one does not come to the conclusion that these are the right powers at this time. The powers in relation to foreign nationals were more extreme than the particular powers with which we are currently dealing.

    The noble and learned Lord has just said, "I agree that the Home Secretary said a year ago that we did not need the powers, I agree that the Home Secretary said last week that the situation is exactly the same, but I now say we need new powers". That is not the reasoning of someone from Fountain Court Chambers; that is the reasoning of someone from form 4B kindergarten.

    I am obliged to the noble and learned Lord the Lord Chancellor. To save him jumping up and down perhaps I can follow up with a further question that needs to be cleared up on this issue. The Prime Minister said on "Woman's Hour", as the noble Lord, Lord Forsyth, said, that there were hundreds of British citizens who were a threat. That statement was apparently challenged by a senior member of the security services who said that the number of people involved was 20 to 30. During the debate in the House of Commons in Committee, the Home Secretary said that there were only a handful. We really need to know who is right and what the figures are. Are the figures in the hundreds, is it 20 or 30, or is it a handful? When proposing such legislation we need to know exactly the extent of the problem.

    My noble and learned friend responded very constructively to the suggestions made by the noble and learned Lord, Lord Donaldson, and conceded that there might be a need to consider further what he had to say. I wonder whether my noble and learned friend might care to comment on the intervention of the noble Lord, Lord Carlile of Berriew. He made us think about another way of dealing with these matters that did not require immense compromise, but which tweaked the system in a way that might satisfy many Members of the Committee.

    I have a number of stacked-up interventions to deal with. First, as far as the noble Earl, Lord Onslow, is concerned, I hope we have moved from class 5B. Whether it is to class 6 or class 7, I do not know. We will have to make a judgment.

    I do not want to speculate about the numbers of people in respect of whom orders are made. It would be wrong to do so. The critical point is that independent observers, as well as the Government and the security services, believe that these additional powers—beyond the criminal justice system—are required. I should emphasise that these powers do not go as far as imprisonment—those are the powers that were struck down by the Law Lords. We need alternatives to that, which is what we are producing.

    I say to my noble friend Lord Campbell-Savours that we remain of the view that it would not be appropriate for there to be court intervention before non-derogating orders were made. As I have made clear, there should be court intervention subsequently and, where necessary, as quickly as possible. That is because they do not involve deprivation of liberty, and because, in some respects, one should have the judges making the orders in advance in only the most serious cases—a point that has been made on a number of occasions in Committee. Again, it is subject to the suggestion made by the noble and learned Lord, Lord Donaldson of Lymington, which constructs the order as not being made by the judge but, in effect, enforced with the leave of the judge.

    That is my comment on the very constructive suggestion of the noble Lord, Lord Carlile of Berriew. We shall need to think about it. However, it does not detract, I am afraid, from our proposition that there should not be judicial intervention before non-derogating orders.

    I am sorry to disagree with my noble and learned friend on that issue. Assuming for the moment that the Government's proposal goes forward, I wonder whether he would clear up a couple of points, one of which was slightly in dispute at Second Reading. It is a straightforward thing, and it would be good to hear his view.

    When it comes to the judicial review of a non-derogating order, the noble Lord, Lord Thomas of Gresford, said that this was a rather weak sort of power, because it was largely to do with procedures; whereas I thought, following the passage of the Human Rights Act, that judicial review could bite a good deal more than that because it would have to involve proportionality. How could a judge make a judgment on the issue of proportionality in a way that was independent of the merits of the case? If that is so, then it would slightly strengthen—not sufficiently to overcome my objections—the Government's view about the power of judicial review. Of course, my interpretation of that may not be correct, and it would be good to hear the view of my noble and learned friend on that point.

    Secondly, I am very keen that this system of control orders, to which I am not opposed, should be made as compliant as possible with convention rights. The issue I have is that the list of obligations in respect of which control orders can be made is only illustrative. It is not a complete enumeration of all the possible obligations that might be imposed on people. Yet, as I understood it—and, again, I may be wrong about this—convention rights other than Article 5 could be infringed if it was in a way prescribed by law. Does the fact that the list of obligations is not exhaustive satisfy the principle that these obligations would be sufficiently prescribed by law if the Bill became an Act more or less as it currently is?

    Article 5 would be infringed if somebody was deprived of his liberty.

    I was talking about non-derogating orders and the way those orders would infringe articles other than Article 5. That can be justified under the convention if it is through a procedure prescribed by law. I wonder whether the non-exhaustive nature of the obligations set out in the Bill would satisfy the principle that it is prescribed by law. It does not cover every obligation that might be imposed.

    We believe that it would satisfy the requirements. If the order made does not deprive somebody of his liberty, but engages other convention rights such as the right to association or the right to privacy, that is permissible as long as it is for a legitimate aim and proportionate. The fact that the particular order is not one of the examples given in the Bill does not prevent that principle applying. The Bill says you can make an order similar to those particular provisions. That would not prevent proportionality and a legitimate aim applying when one is looking at infringements or engagements of rights other than Article 5.

    My noble friend's first point was on judicial review. He asked whether the court would consider whether a non-derogating order was proportionate and pursuant to a legitimate aim within the meaning of the ECHR. The answer is yes. The judicial review in those circumstances would have a lot more teeth than the sort of judicial review that the noble Lord, Lord Thomas of Gresford, so dramatically described yesterday.

    So, in the vernacular, is it reasonable to say that the judge would be looking at the merits of the case?

    The judge will look at the facts sufficient to determine whether or not there was a legitimate aim of national security and, having regard to all of the facts, whether the response made by the Home Secretary was proportionate in that particular case.

    Does the noble and learned Lord agree that the power of the judge would be to quash the order that had been made? He could not prevent the Secretary of State from immediately making another order on the same evidence. That is what is contained in the Bill.

    It would presumably be quashed because it was disproportionate or not pursuant to a legitimate aim under the convention. If it was not pursuant to a legitimate aim, then he could not make any such order. If it was disproportionate, then the Home Secretary could come back only with an order that was proportionate.

    I apologise for interrupting yet again, but while we are on the point raised by my noble friend Lord Plant of Highfield, there are anxieties—I am sure that my noble friend will agree—about the real strength of the judicial review. We know the Human Rights Act 1998 has toughened this up a bit, but there are still doubts about how much muscle there really is in judicial review. If we are trying to ensure that justice is being seen to be done, would we not be in a stronger position if it was the balance of probabilities on non-derogating orders, rather than just a reasonable suspicion?

    No, I do not think that is right. The courts have considered the question of the burden of proof in relation to these cases. In a recent case, Lord Justice Laws specifically addressed whether one should have a standard such as balance of probabilities. He concluded that that would frustrate the purpose of the making of the orders in many cases, because one is looking at a whole range of material and determining whether a reasonable degree of suspicion is satisfied to justify the need for an order.

    We are following a course that the courts have accepted as legitimate. Having said that, because we recognise the seriousness of depriving somebody of his or her liberty, we take the view that, even though it makes it very difficult, which is what Lord Justice Laws says in this case, we nevertheless think the burden of proof—proving that somebody is or was a terrorist—should be the balance of probability in the case of derogating orders. When you are not depriving somebody of their liberty then, following the approach taken by Lord Justice Laws and in order not to frustrate the whole process, we say the right test is reasonable suspicion.

    I posed a question before the adjournment regarding consultation with the Lord Chief Justice and the senior Law Lord. Much attention has been paid to the function that the judge is to perform. We have had arguments about whether it must be due process, and the extent to which the matter can be rubberstamped. Will the noble and learned Lord reply on whether there has been any discussion? If not, why not, and when will it take place?

    3.30 p.m.

    Yes, there has been discussion on that between the Lord Chief Justice and myself. We both take the view that it is appropriate that Parliament should decide what should happen regarding the matter.

    Does the noble and learned Lord the Lord Chancellor agree that it is the perception of whether the procedures are just that matters so much? As I said on Second Reading, every terrorist organisation wants to provoke governments into repressive measures or apparently repressive measures. I have listened to the debate. I am not a lawyer, and most of this goes way above my head, as I imagine it does those of people in the Muslim communities who are going to be affected by it, but I know that if these procedures are not clear and obviously just, though there may be some short-term advantages in banging up the odd person now and again, the long-term damage in recruiting more people to terrorist causes is likely to be much increased.

    We are extraordinarily conscious of that. We have to make it as clear as possible that the procedures we are adopting strike the right balance. That is why, for example, SIAC is not involved in any of this. The High Court of England and Wales, the Court of Session and the High Court of Northern Ireland will determine the procedures.

    Our judiciary is second to none in its independence. It will make the decisions on the basis of material that is available. I hope that orders will need to be made in only a very few cases. However, as the noble Lord, Lord Garden, says, we need to strike a balance between providing appropriate protection and having a procedure that is as fair as possible and that people perceive as fair.

    Perhaps I may take my noble and learned friend back to his answers to my noble friend Lord Plant. As this debate is a record that will be scoured by many people, I think that points of uncertainty should be covered.

    As I understood him, my noble friend Lord Plant suggested that Article 5 was particular in not containing the proviso, as I shall call it, regarding measures that are necessary in a democratic society and prescribed by law, and so on, in Articles 8 and 9. However, if my noble friend accepted that only Article 5 was in issue, perhaps he was suggesting that Article 6 has such a proviso. But of course it does not. I am thinking now of the civil rights protection of Article 6. I am thinking of a cocktail under what, this morning, I called the "liquorice allsorts page 2" of the Bill. It is very difficult to think of any effective cocktail of control which would not almost certainly, or at any rate very likely, infringe some right by the commission of a tort.

    Those rights are protected by Article 6 as requiring,
    "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
    It may be that Article 6 is not a favourite of anyone but me, but I suggest that it should be covered and that my noble and learned friend should tell us what he thinks about that article.

    That is an entirely legitimate point. There needs to be a fair procedure in determining people's rights, whether under judicial review or under the process in relation to derogating orders. At the heart of the issue of whether there is a fair procedure is the question of whether it can be a fair procedure when the suspect does not see all the allegations against himself or herself. The courts in this country—in relation to the SIAC process, where precisely that happens—have held that that is a fair procedure under Article 6.

    So we are conscious of, as my noble friend says, the need to satisfy Article 6. In the light of the fact that the courts in this country have upheld the SIAC procedure, we think that we will satisfy it in relation to these matters.

    I am very grateful to the noble and learned Lord the Lord Chancellor for much that he has said. He has clarified a number of matters. But there is one matter which he certainly has not clarified. Is it not wholly artificial to give the judges a different role in the case of derogating control orders from their role in the case of non-derogating control orders, when the noble and learned Lord the Lord Chancellor himself cannot say which of the requirements in Clause 2 will offend against Article 5 and which will not?

    The Bill has had to be drafted as it has because one looks at all the different requirements that can be made of a person under Clause 2, but one cannot say with any certainty whether a derogation is necessary. If that is so, surely there is the very strongest case for simplifying the Bill by having the same judicial intervention in the case of derogating control orders as in the case of non-derogating control orders. If the noble and learned Lord would concede that, we really would have got somewhere today.

    With respect to the noble Lord, it is not the case that it is possible that any order made under Clause 1 would offend against Article 5. It is very unlikely that if the Home Secretary intends it to be a non-derogating order, it would be anything other than that. For example, if you restrict someone from associating with one person, there would be no argument but that that was a non-derogating order. If there were any legitimate doubt about it, I have absolutely no doubt that the Home Secretary would not do it unless he derogated. In the vast majority of situations that one can think of, it would be utterly clear whether it was a derogating order or a non-derogating order.

    So, with the greatest respect to the noble Lord, I do not think the difficulty arises in the way that he says. But he has raised a fundamental question which has been asked time and again in the course of the debate. What is the reason for the distinction between the non-derogating order and the derogating order? The reason for the distinction is that we think that, in principle, these are matters that the Executive should decide, but subject to judicial oversight. Because of the representations that have been made and because in a derogating order you are depriving someone of his liberty, we have accepted that a special measure should be put in; namely, a judge deciding in advance of the order being made that either it should be made or leave should be given to enforce it.

    So we think that the starting point should be that the Executive should make the decision, but subject to judicial control. Because of the understandable concerns raised, in the exceptional case of deprivation of liberty, the judge comes first.

    I am grateful to the noble and learned Lord the Lord Chancellor. Would it be clear in the vast majority of cases? The Government are saying under their scheme that it is all right not to have a judge involved in a non-derogating case, but in a derogating case he will be involved.

    Quite some time ago—before the adjournment, I think, but it may have been afterwards—I was perturbed to hear the noble and learned Lord the Lord Chancellor say in relation to paragraph (o), in this long list of 15, that,
    "a requirement on him to report to a specified person at specified times and places",
    would not be an infringement of his rights guaranteed by Article 5. But if that is imposed upon me, it is an imposition upon my liberty not to be at that specified place and at that specified time. As the noble and learned Lord said a minute or two ago that Parliament was to decide these things, I wonder whether we are being offered anything like a sufficiently clear watershed between one category of case and the other.

    I do not think that anybody would suggest that making the noble and learned Lord, Lord Mayhew, report to the police station, say, once a week would constitute a deprivation of his liberty under Article 5. It may well engage other of the noble and learned Lord's rights. It is wrong that he should be asked to report to a police station once a week unless there is a good reason—for example, connected with national security—and it is a proportionate response to the threat which he posed. It would never be an infringement of his liberty, therefore it would never be a derogating order, but other rights would be engaged under the European Convention on Human Rights. If the response was disproportionate or not pursuant to a legitimate aim such as national security, judicial review would strike it down, which is a perfectly sensible framework.

    The Minister has not answered my specific question. In his opening speech he suggested that a curfew order would not be a deprivation of liberty. I find that extraordinary. Surely if someone is to be required to stay in a building, let us say from 7 p.m. to 7 a.m., that must be a deprivation of his liberty.

    It is not a deprivation of his liberty under the jurisprudence of the European Convention on Human Rights. It would be legitimate only as a non-derogating order if it were pursuant and proportionate to a legitimate aim. Our courts, under judicial review in this scheme of things, could judge that matter and it would reach the courts quickly.

    Imagine such an overnight curfew being imposed. The effect would be that someone would have to stay in his premises overnight. He could get to court, he would obtain legal aid and he could say to the courts within a matter of days, "This is disproportionate; this is not right". The court then might say, "We've looked at the material, we've heard what you've got to say, but we think that it is in order to protect national security and this is a proportionate response", because for example there was material suggesting that if the curfew was not put in place there would be a material risk of some atrocity being committed.

    In the first instance the Home Secretary would have to make the balance, but the court would be able to weigh whether it was a proportionate response and pursuant to a legitimate aim. That is the scheme that we are putting in place. The judgment for this Committee, in the light of the threat and the advice that we have received from the security services, and in the light of the judgment that we and also the other political parties have made, is whether this is a sensible way of dealing with the matter.

    Suppose I was put under a curfew, and I did not comply with it, and when the constable manhandled me back through the front door I said to my legal advisers, "I think the first thing we'll do is go ex parte for an injunction and then we'll follow that up in the normal course: damages and costs will come one day". Where is my noble and learned friend's defence in the articles of the convention for an action based perhaps on trespass to the person?

    I think that the question is directed to where is the defence for the agent of the state on the basis of the proposition advanced by my noble friend Lord Wedderburn. If the position were that it was an unlawful order because it was either disproportionate or because it was not pursuant to a legitimate aim that justified it there would not be a defence for it. That is the law because we are setting up a legal framework in respect of which those matters can be judged.

    I hesitate to interrupt my noble and learned friend, with his great experience of these matters, but on what authority does he base the defence of trespass to the person on the proportionality of the trespass?