My Lords, the usual channels have proposed that, for the convenience of the House, the amendments should be grouped by topic and that a single Motion should be moved on each group of amendments. Therefore, I beg to move Motion A, which will be found on page 15 of the Marshalled List and covers Lords Amendments Nos. 1, 8, 9, 12, 13, 15, 16, 17, 22, 23, 28 and 37. The Motion is that this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.

I think it would be wearisome for the House to go through all the issues at the same length as we have debated them over the past few days. Perhaps I may make three preliminary points. First, we proposed this Bill on the advice of the security services and the police to provide protection for the nation against the threat of terrorism. I hope that everyone in the House will accept our good faith in doing that, and I would expect any other government in power, having received that advice, almost certainly to have acted on the same advice.

Secondly, I hope that we can debate calmly the issues relating to the steps that we have taken. I heard one noble Lord say on the radio this morning that this was being done by the Government only so that, if there were an atrocity during any election campaign, there would be someone else to blame. I deprecate such remarks. They are inappropriate and they bring this House into disrepute.

Thirdly, I very much hope that people will recognise that we have made significant changes to the Bill in relation to representations made both here and in another place.

I shall deal, first, with Motion A and identify the three significant changes or issues effected by this group of amendments. The first is judicial involvement in non-derogating orders. The Government listened very carefully to your Lordships on that matter. They very much understand the concerns expressed about ensuring that the rights of those made subject to such orders are properly considered and protected and that the measures imposed on them are appropriate and proportionate.

Therefore, amendments introduced by the Government provide that the Secretary of State must apply to the High Court for leave to make a non-derogating order, save only where urgent action is required or any person is covered by the Part 4 provisions of the current 2001 Act. I shall return to those two categories in a moment.

The procedure will therefore be that the Secretary of State will consider whether there are reasonable grounds for believing that a person is involved in terrorism-related activity on an assessment of all the intelligence material provided. If he considers that there are, he will apply to the High Court for leave to make the order. If the court refuses leave, the order will not be made. There is therefore an important judicial assessment of the Secretary of State's judgment in each case before any order is made, subject to the two exceptions—urgency and Part 4—to which I referred a moment ago.

If the court agrees that there is a case, it will give permission to the Secretary of State to make the order. Once made, the order will then be referred automatically to the court, which will arrange for a full hearing to take place as soon as possible thereafter. At the full hearing, the court will consider all the relevant material. It can decide what procedure it adopts. It will be able to hear the case in both open and closed sessions.

As with derogating control orders, the subject will have access to the open material and his interests will be represented both by the lawyer of his choice in open sessions and by a special advocate in closed sessions. Again, the subject of the order will have access to the open judgment.

The test to be exercised by the court in its full consideration will be one of judicial review. I make it clear again, as I did before, that that will include consideration of the proportionality issues and the legitimate aim issues in the European Convention on Human Rights.

My Lords—

My Lords, I am sorry to stop the noble Lord but perhaps I may describe what has happened and then take interventions. As the House will know, the Government's view remains that it is most appropriate for these orders to be made by the Secretary of State. But, to ensure that in the vast majority of cases there is judicial involvement before the order is made, we have in effect adopted the third way, or something very similar to it, proposed by the noble and learned Lord, Lord Donaldson of Lymington. In effect, it was that, while the Secretary of State makes the orders, he can do so only with the leave of the court. We think that that is the right approach.

My Lords, does the noble and learned Lord the Lord Chancellor accept that what we are left with here is still a case of judicial review and not of the court making the order, and that therefore the statements that appear to have been made by the Government for publicity purposes—that they are extending judicial making of the order to non-derogating orders—is not in fact the case?

My Lords, the Government have said that in the vast majority of cases the judge will be involved before the order is made. That is the effect of the change. The noble Lord is right that the test for judicial scrutiny is judicial review, but that test for judicial scrutiny will involve considering whether or not the order being made is proportionate to the risk identified within the meaning of the Human Rights Act.

My Lords, with respect to the noble and learned Lord, where would he find any commitment by the judges that proportionality is an issue in judicial review cases?

My Lords, in relation to these cases and in the terms that we are putting the measure into the Bill, our view of the law is that proportionality and whether it is a legitimate aim is something that the courts could consider. But I make it clear that that is what the Government intend by this wording.

Moving on from the question of pre-judicial scrutiny before an order is made, I indicated that there are two exceptions. The first is urgency. There may be urgent cases where waiting for permission from the court is not an option. Those are cases where the Government need to take action immediately. In such circumstances, we submit that the Secretary of State should be able to make the order immediately. The Secretary of State will have to certify the urgency of the case in the order and, in that case, the order will take effect immediately. Where the urgent procedure is used, the Secretary of State must immediately refer the order to the court for confirmation within seven days and, if it is confirmed, the court will make arrangements for a full hearing.

We have carefully considered whether it is possible to define "urgency" on the face of the Bill. We do not think it is either appropriate or necessary to do so. "Urgency" is a word in ordinary usage. The Secretary of State can make a judgment on it. Urgent procedure is likely to be used only rarely. The most likely circumstances would be where the subject matter of the order looked likely to disappear quickly. In those circumstances you would need to make an order very quickly to make it effective.

The other exception is the Part 4 detainees under the terrorism legislation of 2000. The Government amendment also makes provision for the Secretary of State to make a non-derogating control order, without leave from the court, against the current Part 4 detainees, subject to a requirement that the cases must be referred to the courts immediately for confirmation of the order within seven days.

In these cases, the courts have already considered and determined that there are grounds for suspecting each of them of being involved in terrorism, and that they pose a real threat to national security. It is extremely important in terms of protecting national security that we take immediate action in respect of them, so that they can be immediately controlled on being released from detention under the Part 4 powers. Any orders made against the current Part 4 detainees must be immediately referred to the High Court for confirmation and, if confirmed, then, again, the court will make arrangements for a full hearing of their cases as quickly as possible thereafter. For these reasons, in relation to the judicial involvement in non-derogating orders, the Government believe that they have listened, and have put a system in place which appropriately strikes a balance between the need for the Secretary of State to be able to reach judgments on national security issues, and the need to ensure that those decisions are subject to legal scrutiny in the vast majority of cases before being actioned. In that small minority of cases where that is not possible, it will be brought before the courts as quickly as possible.

The second issue raised in this group is a very important one, namely burden of proof. Control orders are preventive orders, not punishments. They are designed to prevent future terrorist acts being committed, not to punish what has been done in the past. That can only be done by the criminal process. What is required is an assessment of the overall security situation, of the risks posed by particular individuals, and of what measures are necessary and proportionate to meet those risks.

"Balance of probabilities" is a high test, and the Government do not believe that it is appropriate for a once-for-all control order. The making of such orders involves the assessment of threat posed through the individual's past conduct and the risk of further such conduct, based on intelligence material as opposed to evidence about what has happened in the past. It is then for the Secretary of State and the court to determine what controls are needed to meet the threat and mitigate the risk that has been identified. It is an assessment of what is best in order to reduce the risk to the public. It must take the interests of the suspect into account. A balance needs to be struck.

"Reasonable suspicion" is a better and more appropriate test when analysing intelligence material and drawing inferences from it. Both the Special Immigration Appeals Commission and the Court of Appeal have accepted this as being right not only in relation to the Part 4 target, but in relation to what Lord Justice Laws said in the A case. He said that if you imposed a balance of probabilities test at this stage it would frustrate the purpose of the policy, particularly when you are looking at disparate groups, where you are bringing together evidence from a wide range of sources and seeking, not to prove whether they did something in the past, but whether, looking at everything, the risk justifies the order that is made. On the basis of the advice that we have received, the effect of requiring a "balance of probabilities" test for this would frustrate the policy in precisely the way that Lord Justice Laws, sitting judicially, thought it would.

This matter has been back to the Commons. Whatever view this House takes on this policy, I cannot believe that its wish is to frustrate the effectiveness of the non-derogating control orders. My understanding of the view of the vast majority of Members of this House is that they accept that there should be something in place. I earnestly ask them to think carefully about the burden of proof issue. If you introduce a burden of proof that makes it impossible for the policy to be effective, that would, in effect, frustrate the policy that the other place has accepted and that the Government are putting before the House. The courts have already said that it would frustrate that policy.

My Lords, the noble and learned Lord the Lord Chancellor relies on the judgment of Lord Justice Laws in the case of A (No. 2), as a ground for supporting reasonable suspicion in relation to non-derogating orders. How does that square with the Government's acceptance that balance of probability is the appropriate test for derogating orders? It does not make sense. Everybody accepts that derogating orders are more serious, but why should the same burden of proof not apply?

My Lords, we have dealt with this point on a number of occasions, arid the noble and learned Lord, Lord Lloyd of Berwick, has asked the same question on a number of occasions. I shall give the answer again.

We accept that, in relation to an order that deprives somebody of his liberty, which requires a derogation from the European Convention on Human Rights, very high hurdles should be set. If we can get over those hurdles—which should be possible only in exceptional cases—then, and only then we should be allowed to have a derogating control order. With the non-derogating control orders, however, where the suspect is not deprived of his liberty and the security services are saying that this would make a significant difference in the fight against terrorism, we believe the that appropriate burden of proof is one that makes those orders effective.

My Lords, I am listening to the noble and learned Lord the Lord Chancellor, but perhaps he could help me on the issue of safety and security. Given that the derogating orders are going to be used in respect of the most serious cases— the people who represent the greatest danger to the public—I do not understand the argument that says "We must have a lesser test for the non-derogating orders, because otherwise we would not be able to take action; but we are going to have a tougher test for the most serious people, because we are concerned about security". On both legal and practical grounds, like the noble and learned Lord, Lord Lloyd of Berwick, I do not understand the logic of this.

My Lords, we are doing this because we are seeking to strike a balance between the rights of the suspect and the danger to the public. If you deprive somebody of their liberty, which is the effect of a derogating control order, then we accept that there needs to be a high test. The advice we are currently receiving is that we do not need to do that in the case of anybody. In those circumstances, we are prepared to accept a high test, because that is the advice we are getting from the security services.

I keep coming back to this point: I hope that noble Lords would respect the fact that this is being done on a purely policy-driven basis, not remotely on a political basis at all. I come to the third issue in this group of amendments: ensuring that prosecution is pursued. The stated policy has at all stages been that, if prosecution is an option, that route would be adopted in preference to the control orders. This House put a requirement in the Bill that the Director of Public Prosecutions express a view about the position in relation to prosecution. We have listened to what has been said. In Committee, we provided that where a control order has been made, that fact would be passed to the chief officer of police of the relevant area, so that he could investigate the individual's activities with a view to any criminal prosecution, consulting with the relevant prosecuting authorities as he or she felt necessary.

However, in the light of continuing concerns, we have decided to provide what we believe is sought: an assurance in the Bill that prosecution will always be considered before a control order is sought. Amendment No. 16D therefore requires the Secretary of State to consult the chief officer of the relevant force—before making or applying for a control order—on the prospect of the individual being prosecuted for a terrorist offence. In considering the matter, the chief police officer will consult the relevant prosecuting authority where he considers it necessary and right to do so.

That is the proper course. It is important to preserve the integrity and independence of the prosecuting system. We do not believe that the existence of a control order will preclude necessarily in every case successful prosecution at a later date. I remind the House that two of those certified under the Part 4 powers were subsequently charged and successfully prosecuted for terrorist-related offences.

Those are the three issues raised by Motion A on page 15. There are amendments that noble Lords may speak to and move. In relation to two out of the three—namely, pre-judicial involvement before a non-derogating order is made and certifying that prosecution is not possible—we have listened and have moved considerably in the light of what this House has said. In relation to the balance of probabilities issue—which, I respectfully submit, is the critical issue—we have not moved because, on the basis of the advice that we are receiving and of the way that the courts have looked at it in the past, the effect of this House insisting on the balance of probabilities test would be very seriously to undermine the effectiveness of non-derogating control orders.

In the light of the views expressed in the other place, I respectfully ask the House to respect the fact that we have moved in accordance with two out of three but on the third, a very important issue, the view of the other place should prevail.

Moved, That this House do agree with the Commons in their Amendments Nos. 1A to 1C to Lords Amendment No. 1, their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; do not insist on its Amendments Nos. 8, 9, 12, 13, 15, 17, 22, 28 and 37 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 37A to 370 in lieu thereof; and do agree with the Commons in their Amendments Nos. 17A to 17F to the words restored to the Bill by the Commons disagreement to Lords Amendment No. 17.—(Lord Falconer of Thoroton.)

moved, as an amendment to Motion A, Amendment Al:

Leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. lA and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed; do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A to 16G to Lords Amendment No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".

My Lords, how can the noble Lord say that that is simply the concession? That is a massive concession. It means that all these cases will now go before a judge. In view of those circumstances, how can the noble Lord possibly maintain that this is, as I think I heard him say, smoke and mirrors?

My Lords, I say that because it is simply what was in the Bill before. The difference is that before it was the person who was the subject of the control order who had to go to the court for judicial review, now it is the Secretary of State who goes to the court for judicial review, but the procedure is the same.

He has to, my Lords.

My Lords, certainly he has to. The point that I sought to make a moment ago is that it is inconceivable that a person against whom a control order had been made as proposed in the original Bill would not have sought to test it in the courts as soon as he possibly could.

Under the present proposal, the courts will still not be able to decide the case on its merits, nor to decide which obligations are appropriate and necessary. It will still be the Secretary of State who makes those decisions. He will make an executive order that may severely limit the liberty of the individual, whether he be a foreign national or a British citizen. It is that which is so objectionable, so contrary to the genius of the common law of this country, as I referred to it on Second Reading, referring, as your Lordships may recall, to a 1765 case.

Our amendments, therefore, bring together the procedures for both the derogating and non-derogating orders into a single procedure and ensure that it is the court which makes the orders, based on evidence placed before the court by the Secretary of State, and that it is also the court which decides on the particular obligations in the particular case. It will be for the court to judge whether the control order deals with the risk presented by that individual proportionately to the degree of restraint that is required of him.

My Lords, does the noble Lord appreciate the opening statement of my noble and learned friend the Lord Chancellor, when he described the whole of this process as about protecting the people of our nation? Like many of us in the Chamber, I have sat through three days of debate. I intervene early today on the basis that I am not a lawyer and will not make legal points, but I am someone who is in touch with people out there, who feel very threatened and nervous that the dilution of the Government's original policy will be such that they will not have protection. Surely the noble Lord should have that at the forefront of his mind.

Noon

My Lords, I am grateful to the noble Baroness for her intervention. She may have missed what I said at the very beginning, which was that we accept the principle of control orders, and even, in a national emergency, of a derogating control order. The difference between us is whether the order should be made by the Secretary of State or whether it should go to the court for a judge to make the decision. The latter is the tradition of this country, and part of its liberties that we seek to defend. Why it should be a "watering down" for a judge to take that decision rather than the Secretary of State, I simply do not understand. It ensures that the decision is just, and arrived at on the evidence, not on prejudice or anything else.

Our amendment ensures that the standard of proof that the court will apply is the civil standard, proof on a balance of probabilities. I share with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth of Drumlean, an inability to comprehend why the more serious the risk that is envisaged of a terrorist outrage, the more difficult it should be to establish that a person is a terrorist, and why, when the risk is less, it should be easy to impose controls and limitations on liberty through a control order. I fail to see the logic in that. It makes no sense.

We reject the concept of diminution of liberty on the basis of hearsay or evidence that may be obtained by torture in a foreign jurisdiction, and which may come from tittle-tattle and cannot be tested or known by the individual concerned.

I do not wish to speak at length. There are some tidying-up and consequential amendments, whereby the words "the Secretary of State" are replaced by "the court". Disagreeing with certain of the Commons amendments means that we remove from the Bill the provisions that were specific to non-derogating orders. That is all part of the process of putting together the procedures that are separate, as the Government want them, but that we say should be single.

Government Amendment No. 37E is a clause headed "Power of court to make derogating control orders". While we accept most of its structure and wording, we have removed from that amendment all references that seek to draw a distinction between the procedures necessary for derogating and non-derogating orders so as to ensure a single, understandable and comprehensive system whereby the judge makes the decision, whatever type of order it is.

We have added a requirement that at the full hearing, not at the preliminary hearing, it will be necessary for the Director of Public Prosecutions to inform the court that there is no reasonable prospect of a successful prosecution of the individual for terrorist-related activity. I heard what the noble and learned Lord the Lord Chancellor said about the provisions that have been put in that there must be consultation with the chief of police. For perhaps the past 20 years, we have tried to ensure that decisions about prosecution are in the hands of the Director of Public Prosecutions and the Crown Prosecution Service, to the point where we have now placed—I entirely agree with it—members of the Crown Prosecution Service in police stations to assist the police in the way they conduct their business. Why, then, should the noble and learned Lord go only half-way and consult with the chief of police rather than those whose responsibility and duty it is to consider whether a prosecution should be brought?

As to matters of substance rather than consequential amendments, we insert a provision that, when modifying a derogating control order, if one is ever made, the court takes into account whether the risk of terrorism arises from the public emergency that has given rise to the designated derogation.

I come back to the basic principle: no diminution of liberty by the order of a Minister. It is for the courts to decide and determine these control orders. It should be done through proper and due process, so that the person whose liberty is affected does not suffer from a feeling of injustice that spreads through his community and creates a greater risk of terrorism. I beg to move.

Moved, as an amendment to Motion A, Amendment A1, leave out from "House" to end and insert "Do disagree with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1, but do agree with the Commons in their Amendment No. 1C to Lords Amendment No. 1; do not insist on its Amendment No. 8 to which the Commons have disagreed but do propose Amendment No. 37P in lieu thereof; do not insist on its Amendment No. 9 to which the Commons have disagreed: do insist on its Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 and do disagree with the Commons in their Amendments Nos. 37A to 37O in lieu of those Lords amendments; do agree with the Commons in their Amendments Nos. 16A o 16G to Lords Amendrnent No. 16 and their Amendment No. 23A to Lords Amendment No. 23; and do propose Amendments Nos. 37R to 37T as consequential amendments to the Bill".—(Lord Thomas of Gresford.)

My Lords, the noble and learned Lord the Lord Chancellor mentioned three points in support of his amendment from another place. The first was the balance of probabilities and the general question of the burden of proof test. The second was the role that the prosecutorial authorities ought to play in control orders. The third was the judicialisatiton of the non-derogating procedure. I should like to deal with each one of those.

First, regarding the burden of proof, our amendment makes a big move in the direction of the Commons. We now accept that, at the leave stage, the test should be reasonable suspicion, and not balance of payments—balance of probabilities, rather. My mind must have been on other things.

We listened carefully to what the noble and learned Lord said about that, and responded constructively. I am extremely surprised that he has not been prepared to do the same thing towards us. As to his arguments about the balance of probabilities, I can only refer the noble and learned Lord to the interventions made by the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Forsyth. My noble friend made a telling intervention when he said that we would come to an absurd situation if the more serious the anticipated offence to be committed by the potential controllee, the more demanding the test that had to be applied before he was restrained. That is precisely the position the Government would get themselves in if they followed the logic of the noble and learned Lord the Lord Chancellor.

Secondly, although we accept that control orders will have a part to play in the new situation of international terrorism that we now face, prosecution must nevertheless be the first option. I am bewildered as to why the noble and learned Lord has not been prepared to accept our amendment on the DPP. As the noble Lord, Lord Thomas of Gresford, has said, the DPP is now the designated prosecutor. We have gone to a great deal of trouble to make the DPP completely independent of the political process; yet what does the noble and learned Lord do? He seeks to replace the DPP with the Secretary of State referring cases to the responsible police authority. That is a politicisation of the process. It removes the independence that we have inserted and reintroduces the role of a politician, which we deplore.

Finally, and perhaps most importantly, there is the question of the role of the judge. The noble and learned Lord contends that the amendment from the Commons on the non-derogating procedure is a judicialisation of what was previously a political process. It is not. Whether innocently, negligently, or even, dare I say it, intentionally, it is deeply misleading to say that this will become a judicial process just because of the amendment put in by another place.

First, the Secretary of State can still make an order if there is an emergency. He is perfectly entitled, if he wants, to say that every situation he deals with is an emergency. What is to prevent him doing that? There is nothing in the Bill to prevent him doing that. Even if it goes before the court, the test of "obviously flawed" that the court has to meet is well below even the test that applies in judicial review. It is almost inconceivable that a court would ever be able to find that an order of that nature was flawed.

It is incomprehensible that the Government are not prepared to accept our approach. The noble Baroness, Lady Hayman, spoke tellingly of the foolishness of trying to have two separate procedures for derogating and non-derogating orders, when no one knows which one it is going to be until the judge has made a pronouncement. We have produced an amendment which meets many of the points made by the Government and, at the same time, ensures the security of the country, but is fair to the citizen.

My Lords, there were three points there. First, regarding the burden of proof, no one during the debate has addressed the point put by Lord Justice Laws. He made it absolutely clear that if you are seeking to assess risk, introducing "balance of probabilities" as the test would frustrate the policy. That is also the view of the security services. Yes, points can be made about the derogating orders, which it is said at the moment are not necessary. Yes—absolutely right—we are making it very difficult for ourselves to obtain a derogating order due to the intrusion on the freedom of the individual concerned. But we are acting on the basis of the advice of the security services that the protection at the moment will come in relation to non-derogating orders.

The noble Lord, Lord Kingsland says that he has solved the problem by saying that there should be reasonable suspicion until you have a full hearing. So you can have an order for a matter of weeks until the court considers it. At which point, when the balance of probabilities test is applied, as the noble Lord would have it, then the order would probably be discharged. It is a very difficult judgment to make. We have had the benefit of the court looking at the matter already in relation to the SIAC material and it has concluded that the approach that we have taken is right. That is a view with which the Government agree. It is a view with which the people who are involved in it agree.

In this group, this is almost certainly the most important issue. It is one where this House is, in effect, saying, "We know better than the courts. We know better than the other place and we know better than the advice that the Government are receiving in relation to it". It might be that noble Lords are right, but I would respectfully ask this House to think carefully before it takes that step.

My Lords, the noble and learned Lord the Lord Chancellor has pointed out a number of times that the other place has taken a view. The other place had three hours yesterday to consider every single amendment plus a Bill which it had not seen. Of the three hours, more than half the time was taken up by Front Bench speeches. It is ridiculous to suggest that the other place has discussed these matters in any detail—for it has not, because the Government have not given it the time to do so.

My Lords, there are two points in relation to that. First, this issue was debated in some considerable detail in the other place on the previous occasion. Secondly, the way that our system works is that, while we in this place should appropriately ask the other place to consider issues, to think again, as we have done in relation to two out of three of the issues here, ultimately, if important points of principle remain after proper consideration—and I believe that there has been proper consideration—the way that we normally operate is that we give way to the other place.

In relation to the other two issues, which, I would respectfully submit, are not nearly as critical as the burden of proof, this House asked for pre-judicial scrutiny before an order was made. The noble and learned Lord, Lord Donaldson, conscious of the differing roles of the executive and the judiciary, suggested the use of some form of words that respected the different roles. We have done that.

12.15 p.m.

With the greatest of respect to the noble Lord, Lord Thomas of Gresford, in terms of perception, the difference between the Home Secretary having power to make an order only with leave and the court making an order is a distinction that will not be widely understood outside this House. But it is an important constitutional distinction, which we are right to put in. The critical thing that we have done is to say that in the vast majority of cases for non-derogating orders, there will be a judge who makes the decision on whether it is appropriate to make an order. That is what this House asked for.

My final point relates to certification of prosecution. The right people to go to are the police, because it is the investigating body. It can seek advice in relation to the CPS. That is the way that matters are dealt with in this country. It is the appropriate way to deal with it.

My Lords, the noble and learned Lord has presented us with a package of three separate points. If we agree with him on some of them, but disagree with him on others, we have to decide which way to compromise. It would be an enormous help to us to know whether we were doing this in relation to a Bill which is going to become an Act of Parliament for an indefinite period or become an Act of Parliament which is going to come to an end and be totally reconsidered within a reasonable time. Could the noble and learned Lord enlighten us as to whether he is going accept Amendment No. 33D, in the name of the noble Baroness, Lady Hayman? If he is, for my part, I would find it much easier to accept a number of his other propositions, even if they produced a Bill which was not wholly satisfactory.

My Lords, no, we are not going to accept the amendment in the name of the noble Baroness, Lady Hayman. No, we are not going to accept the sunset clause. We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it. We believe that it sends out the wrong signal to say that this is temporary legislation and we believe that, by putting in a sunset clause, the consequence would be that one would simply have these debates again in a very short period.

So, no, we are not going to support a sunset clause; we are going to put in an annual renewal clause, as the other place has done. We believe that that is the right approach.

My Lords—

My Lords, could I ask the noble and learned Lord—

Lord Ackner!

My Lords, can the noble and learned Lord assist me on just two matters? Regarding non-derogation orders, it was generally accepted that it would be very easy for a combination of two or more to result in a loss of liberty. How will he deal with that? Will he ignore the consequence and treat non-derogation orders that result in a loss of liberty as being different from derogation orders? My second point relates to onus. He said that the question was: does the risk justify the order? Why should not the onus be: is it more likely than not that the risk justifies the order?

My Lords, regarding the first question, I do not say that it easy for the mistake to be made that a non-derogator becomes a derogator. I accept that it is possible. The consequence of that under the current Bill would be that the non-derogator would be a nullity, because there would not be a derogation from the ECHR and I accept that that is the position.

The balance of probabilities test is not appropriate to risk assessment. Burden of proof is not the way that the courts consider whether to make an order to avoid a risk in the future. That is the view that the noble and learned Lord, Lord Hope, expressed in Rehman and we believe that that is the right approach.

My Lords, the noble and learned Lord, Lord Hope, did not sit in the Rehman case and my noble and learned friend has just repeated an appalling error which appeared in the document that came from the Secretary of State. The passage that was chosen, and to which my noble and learned friend presumably referred, was by the noble and learned Lord, Lord Hoffmann, whose reasoning the noble and learned Lord, Lord Steyn, has questioned, in that it was not central to the other judgments in the Rehman case. If a Government cannot put forward arguments when they do not know their Hopes from their Hoffmanns, they are very likely not to get their way.

My Lords, the noble Lord, Lord Wedderburn, is absolutely right. It was the noble and learned Lord, Lord Hoffmann, not the noble and learned Lord, Lord Hope. I apologise to the House, to the noble Lord, Lord Wedderburn, but most of all to the noble and learned Lords, Lord Hope and Lord Hoffmann, in that respect. However, I respectfully submit that the noble and learned Lord, Lord Hoffmann, is saying that the courts traditionally would not approach a decision about what order to make on the basis of a burden of proof issue. The burden of proof issue is about determining facts. This matter is about where the risk lies and the appropriate course to be taken to deal with the risk.

My Lords, it may be that we have come to the moment when we should make a decision on this matter.

My Lords, I think that the noble Lord, Lord Thomas of Gresford, should allow some views from the rest of the House.

Hear, hear!

My Lords, the noble Lord, Lord Thomas of Gresford, said that he was absolutely baffled and could not understand how people could accept reasonable suspicion as a ground for non-derogated orders and a higher burden of proof for the higher ones, and he quoted the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Forsyth, as saying that.

As a non-lawyer, having listened very carefully to all this, I just say that I cannot understand why they cannot understand the difference between those two matters. It seems to me perfectly logical that the most severe order, which will only be gone for in the most severe cases and therefore also presumably has the strongest and most solid evidence on which to take that decision, is the one where you have the evidence that you can produce, and that in the slightly less serious but still very worrying cases for which you would want a non-derogated order, you may not have exactly the same kind of solidity of evidence but you would in fact go ahead and have a reasonable suspicion case.

The second point that I would like to make is—

Order!

My Lords, this is on the amendment.

My Lords, permit me to read paragraph 4.18 of the Companion:

"It is not in order for Members to continue the debate on a motion or an unstarred question after the government's reply has been given, save for questions to the minister before the minister sits down".

My Lords, in that case, will the Minister agree? I will not go into the question of the Secretary of State and the judge now, because I have to tell the House right away that I would not have given way from the original positions. I do not think that a judge should make these decisions. I think that they should be made by a Secretary of State. Would he further agree that there is no reason why this could not be the same kind of parallel as in the Interception of Communications Act, where the Secretary of State signs and the judge then comes in on review? Would he not agree—

Order!

My Lords, the Leader of the House is our servant and should ensure that the House functions properly. I know that the noble Baroness, Lady Ramsay, feels strongly about this matter, but please, dear Leader, as they say in certain other places, help us to maintain order.

My Lords, I totally agree with that. However, the House needs to adopt a degree of consistency in the way in which it treats Members who seek to make points on this matter. We do not want to curtail the debate on this issue, because there is very strong feeling in the House about it. However, I entirely agree with the point made by the noble Lord, Lord Elton. that Members are permitted to make only very brief interventions after the Minister has spoken and before the Minister sits down. That convention has been broken across the Chamber today in the time that I have been sitting here. If the House is to behave appropriately, I would suggest that we apply our conventions in a consistent way across the House.

Hear, hear!

My Lords, I feel that we should bring this debate to a close. I want to say only a brief word on the standard of proof. It seems to me that the Government risk real injustice when they seek to act on reasonable suspicion. It almost inevitably follows that people will have restrictions on their liberty when they are innocent. I ask your Lordships to recall the problems that we have had in Northern Ireland as a result of miscarriages of justice that have taken place on the mainland of England when the standard of proof was "beyond reasonable doubt" but nevertheless there were miscarriages of justice.

That is all I wish to say and I seek to test the opinion of the House on my amendment.

My Lords, I beg to move Motion B, which will be found on page 19 of the Marshalled List, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. This amendment deals with the amendment tabled by the noble Lady, Lady Saltoun of Abernethy, on the previous occasion.

Control orders are designed to disrupt terrorist-related activity, except to the extent of those restrictions deemed necessary for the purposes of safeguarding the public. They are not designed to interfere with a person's ability to live a law-abiding life and to support or sustain himself.

Where an individual is or becomes eligible for benefits—whether unemployment, housing or other type of benefit—obligations imposed by a control order will not interfere with such entitlement. Nor would individuals be denied access to healthcare. It is accepted, of course, that in certain cases, special arrangements for precisely how normal services are accessed may need to be made because of particular obligations imposed on an individual; for example, restricting movement within a certain area at certain times.

However, control orders are flexible: hence, the provision in the Bill which provides that an individual is not in breach of an obligation if prior permission to undertake the specific activity in question has been obtained. Clearly, the Secretary of State or the court, as the case may be, will need to have regard to individual circumstances when determining the precise conditions to be applied and how they will operate in practice.

In addition, the individual concerned may apply for a variation of the obligations imposed should circumstances change. Nor is it true to say that there is no experience of working within this type of framework. One of the 2001 Act detainees—for example, G—is subject to stringent bail conditions which have been tailored to his particular circumstances. Restrictions which take account of personal circumstances often form part of bail and licence conditions in criminal cases.

The provisions which the noble Lady put forward, therefore, are not necessary. The point that she seeks to make will be covered by the ability both of the Secretary of State and the court to tailor the order to the circumstances. I hope, in those circumstances, that this House will not insist on its amendment.

Moved, that this House do not insist on its Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.—(Lord Falconer of Thoroton.)

moved, as an amendment to Motion B, Amendment B1:

Leave out from "House" to end and insert "do insist on its Amendment No. 6".

The noble Lady said: My Lords, before I speak about the amendment, I want to say how disgusted I was to hear the Home Secretary's misleading reference on the "Today" programme yesterday morning, to,

"the surreal example of Lady Thatcher going into the Division Lobby to vote for increased social security for people suspected of being terrorists".

There is not, and never has been, any question of increased social security payments in my amendment. There is only the matter of such social security payments to which such people are already entitled, or have become entitled due to government action. I reiterate that suspects are innocent until they are proved guilty in a court of law. I dislike intensely my amendment being made a vehicle for a cheap party-political jibe.

The noble and learned Lord has explained to me very carefully why my amendment is unnecessary. Having listened very carefully to what he said, I am reasonably satisfied. However, I hope, by some means or other, to keep a fairly sharp eye on how the whole system will operate. Therefore, I am minded to withdraw the amendment—

My Lords, before the noble Lady sits down, I too heard the intervention by the Home Secretary on the radio and I heard him in the other place yesterday saying that the amendment was not necessary because the existing law provides for social security payments to be made. Therefore, both statements by the Home Secretary cannot be correct. He caricatured the noble Baroness, Lady Thatcher, as having voted for increased benefits. In reply, I hope that the Government will take the opportunity to apologise to those Members who voted for the amendment and for the misleading statements that were made to the country.

My Lords, before I beg leave to withdraw the amendment, it is of course open—

My Lords, perhaps I may proffer some advice, which is often a dangerous thing to do. I sense that there is a desire for a small debate on the amendment, so it is entirely appropriate for the noble Lady to move it and, in due course, the noble and learned Lord can respond. If, after that, she is still satisfied, she can withdraw her amendment.

My Lords, I beg to move.

Moved, as an amendment to Motion B, Amendment B1, leave out from "House" to end and insert "do insist on its Amendment No. 6".—(Lady Saltoun of Abernethy.)

My Lords, I originally put my name to the amendment because I thought that what the noble Lady, Lady Saltoun, had said was extremely valid. It is easy to see circumstances in which someone could be incapable of drawing social security benefits. Had the Minister, at the beginning, given the explanation that he has now given the House—the noble Baroness, from a deliciously sedentary position, says that the Minister did.

My Lords, I find the statement made by the noble Earl surprising. In responding, as I hope I did courteously, to the amendment of the noble Lady, Lady Saltoun, I made it very clear that there was provision for benefits and that they were in no way adversely affected by this legislation. a fact that my noble and learned friend the Lord Chancellor has just repeated. To suggest that that was not firmly before the House is not only, if I may respectfully say so, an inaccurate statement, but also suggests that I did not properly inform the House of the true position. If noble Lords consult Hansard, I am sure that they will see that I was at pains so to do.

My Lords, I am not accusing the noble Baroness of not telling the truth as she sees it, but it was not clear to us. I am very sorry that the noble Baroness puts on that face, but she did not make it clear to us. The noble and learned Lord, with his forensic ability, has now made it very clear to us. The fact that the Government have not known what they are doing, do not know how to present their case and change their case half-way through is the whole trouble with this Bill. I am pleased that the issue has been aired. I was disgusted when I heard what had been said about the noble Baroness, Lady Thatcher, but I am equally pleased that the noble Lady, Lady Saltoun, has indicated that she will withdraw her amendment.

My Lords, we could have an inquest about what has been said in the House in the build up to this point, and we could have an inquest about what has been said on the airwaves, but that would be extraordinarily unhelpful and extraordinarily divisive. Let us focus on the issues.

Say sorry!

My Lords, if a person in the position of the Home Secretary makes the kind of remarks that he made about the noble Baroness, Lady Thatcher, which have apparently no basis in fact at all, surely it is courteous for i he government Front Bench to accept that and to apologise. I had the great privilege of being a junior Minister in the Home Office when Mr Maudling was Secretary of State and he said that the duty of the Home Secretary was to try to be above the political battle and to take an interest in the country as a whole. With respect, the remarks made by Mr Clarke yesterday morning on the eight o'clock programme were in very poor taste.

My Lords, I genuinely do not want to inflame the situation in any way. I cannot start apologising for every statement made. The situation would become a ridiculous to and fro. Perhaps noble Lords heard what some people said this morning about me on the radio. It was absolutely outrageous. I am bearing it with as much equanimity as I can muster. Keep on bashing me and let us get on with the detail of the Bill.

My Lords, before I withdraw the amendment, it is open to any noble Lord in any part of the House, when an amendment is withdrawn, to be Not-Content. I beg leave to withdraw Amendment B1.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

My Lords, I beg to move Motion C, that the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A. I shall speak also to Lords Amendment No. 33, which will be decided on under Motion D. I will endeavour to speak slowly and clearly, just in case my command of English is insufficient to enable your Lordships to understand what I say.

Since we last discussed this matter, matters have moved on. As I said, the Bill provides that the Secretary of State must report to Parliament at quarterly intervals on the exercise of the control order powers. That provides Parliament with an opportunity to review the way in which the provisions are working. The Bill also provides for the Secretary of State to appoint a person to carry out reviews of the operation of Clauses 1 to 6—on the making, operation and duration of control orders—on an annual basis.

The Secretary of State would be obliged to lay the reports produced by these reviews before Parliament as soon as reasonably practicable. The Secretary of State has further undertaken that he will ask the reviewer in carrying out his duties to take into account other counter-terrorism legislation and its relationship to control orders. The reason that is important is that we reasonably anticipate that there will be in a very short time further legislation that will come before both Houses so that we can better consider the whole issue of acts preparatory to terrorism. That is a matter which we have debated to some great extent in this House, particularly over the past few days. It will be important for the reviewer to assess and analyse the juxtaposition of this Act with any new legislation that falls within the same ambit of consideration.

In addition, we have now provided for an annual renewal of the powers so that both Houses will have an opportunity to reconsider and debate the legislation. Further, there will continue to be the existing committees—Home Affairs and Human Rights—with a locus in this area, which can review the legislation. Speaking practically for a moment, we will have our opportunity to consider at a little more leisure than we have now what we need to put into place in order to make sure that the full ambit of the new nature of terrorism is dealt with in a way that better addresses some of the issues raised by my noble friend Lady Hayman and the noble Lords opposite who were members of the committee. That is a very important opportunity.

In many cases where there is an annual review it is against a backdrop of there not being another legislative vehicle. One of the reasons that there is quite often a difficulty about annual reviews where both Houses have an opportunity to use the review forcefully is that there is nothing in place of that legislation. If you get rid of the Bill and there is nothing in its place the House may feel obliged to continue the legislation. In this instance we have a realistic opportunity for such another vehicle to come along. So if we have the annual review the House can consider whether the provisions in place are necessary, whether the new legislation is finished and whether the annual review is justified and can be renewed. It is important that we see the provision for the review in that light. We will talk more deeply about the way in which the annual review will work when I come to the next section.

I invite your Lordships to look carefully at the role that we have given the reviewer who will look at how this legislation interacts with any new legislation that we may have passed or be in the process of passing at the time he or she makes their report. There are ample review mechanisms in place and an opportunity for Parliament to consider the results. These provisions provide the appropriate means to keep the legislation under regular and proper scrutiny in the way that both Houses indicated is merited. I beg to move.

Moved, That the House do not insist on its Amendments Nos. 27, 31 and 32, to which the Commons have disagreed for their reasons numbered 27A, 31A and 32A.—(Baroness Scotland of Asthal.)

moved, as an amendment to Motion C, Amendment Cl:

Leave out from "House" to end and insert "do insist on its Amendments Nos. 27, 31 and 32".

The noble Lord said: My Lords, in speaking to this Motion I shall also speak to Motion D. As your Lordships are aware, we regard the substance of Motion C and Motion D as being intimately linked.

Motion C deals with the role that the Privy Council committee would play preparatory to the sunset clause biting. It is vital when we reconsider the Bill at the end of its life that proper preparation has been made for the new measure. Since the main purpose of the Bill is to deal with matters connected with security and evidence which derive from security sources, it is wholly appropriate that the committee charged with this responsibility should be composed of Privy Counsellors.

It is equally true that, without the sunset clause dealt with under Motion D, it would be extremely difficult for this committee of Privy Counsellors to be taken seriously. We have evidence about that from the experience of the committee presided over by the noble Lord, Lord Newton of Braintree. That committee spent a great deal of time investigating the issues that are currently before your Lordships' House under this Bill, yet its recommendations were wholly ignored. That would not be the case if there were a sunset clause.

As far as the Motion is concerned—the sunset clause—we have already had several long debates on this matter. There are two issues. First, should there be a sunset clause? Secondly, if there is, when should it bite?

Our view on the first issue is that this situation unquestionably requires a sunset clause provision. The Bill suspends the fundamental rights of the citizen of this country. It should he reconsidered by Parliament on a regular basis until we no longer need it. That complies with the most vital principles of our constitutional history. I hope that none of your Lordships would feel, in any way, that that principle ought to be questioned.

The second issue is when the sunset clause should come into operation. Our amendment gives the appropriate date as next. November. I gave the reasons for this in the course of the Committee and Report debates. The Bill has been looked at at such speed, and scrutinised so inadequately, that as soon as it can be replaced by a better version the better. In our view, November gives adequate time for the Government to consider these matters.

There is a particular issue here to which I trust the Government will give special attention—that is, the issue of devising a new offence for those who are in the process of preparing to commit a terrorist offence. It is vital that we get such an offence on the statute book as quickly as possible so that in future those who would largely be covered by control orders over the next six months are thereafter dealt with by the criminal law under a proper prosecutorial process ending up with the final decision taken by the jury. We want that measure on the statute book, I repeat, as quickly as possible. I see no reason why that cannot be achieved by November.

The noble Baroness, Lady Hayman, has also tabled a sunset clause; and we are delighted that she has been prepared to accept the principle that we regard as so important. For the reasons that she gave at Report, the noble Baroness feels that the November deadline is too tight. She would prefer a deadline of 30 March 2006. The noble Baroness will no doubt have the opportunity to talk to her amendment in the course of this debate and I look forward with interest to hearing what the noble Baroness has to say. I beg to move.

Moved, as an amendment to Motion C, Amendment Cl, leave out from "House" to end and insert "do not insist on its Amendments 27, 31 and 32".—(Lord Kingsland.)

My Lords, it may assist the House if I say a few words about the process of review. As the person who has had the responsibility of conducting the reviews of the detentions under the 2001 Act, I do not wish to speak about the uncertain consequences of my reviews, which have been brought home to me in recent days. I have had the experience of hearing my reviews cited in support of entirely opposite arguments on the same issue within minutes of one another, even on the much referred to "Today" programme. I shall reflect on the consequences of reviews that bring about that result.

I want to say something that I regard as important about the process of the type of review that I have been conducting, which would be removed if the Lords amendments, rejected by the Commons, were reinstated. The effect of one of those amendments would be to remove the role of a reviewer from the procedures. It may therefore be of assistance to the House if I explain very briefly some of the things that the reviewer has to do, which I do not believe can be carried out effectively by a committee—even, dare I say, a committee of Privy Counsellors.

That is not to say that I am venturing a judgment on the issue of whether there should be a committee of Privy Counsellors. The last committee of Privy Counsellors chaired by the noble Lord, Lord Newton, who is sitting next to me, was very effective and it is not for me—indeed, it would be inappropriate for me—to give an opinion about whether there should be a committee of Privy Counsellors.

If control orders are to be introduced, even if they were only non-derogating control orders, they would have an effect on the lives of the controlees. There would be certain things that they would be able to do, certain things they would be completely unable to do and many things that they would be able to do only under the circumstances controlled by the court orders. In dealing with the detainees, I have done some of the following things that I do not believe could be done by a committee. I have sat with the detainees, having private conversations, at length, alone. I have taken steps to improve the dental care of detainees. I was involved in an interesting incident that arose from the description on a Belmarsh menu of one of the lunch options as "halal pork chop". I was told later in a letter from the Prison Service that that was a piece of inadvertence by a member of the staff—you can say that again.

I have been involved in looking at the prayer arrangements that are made, which could be a very significant issue for people who are the subject of control orders. I have been involved in issues concerning visits by families and the interpretation offered at those visits. I have been involved in issues concerning the visit of members of a detainee's family from abroad. I could cite a host of such issues which have been referred to only in the most general terms in my report.

What I really want to say is this: if there is to be no reviewer carrying out the kind of reviews that I have been conducting under this legislation, something potentially of significance and importance to the controlees will be lost. That would be detrimental. It would diminish the opportunity of people whose liberty is constrained to an extent by control orders, to enjoy to the maximum the civil rights that remain available to them. If there is to be any change in the draft legislation in relation to the reviews, it should not remove the position of the reviewer. In my view, the role that I have carried out—I am not making a personal point because I very much do not want to do that—on the 2001 Act and indeed the role that I and my predecessors have carried out—and there have been several much more distinguished predecessors than me—under the Terrorism Act 2000 and its predecessors have been of considerable value.

My Lords, I voted with the Government in the previous Division in this House not because I was wholly tranquil or serene—in the words of the prayer—with the arrangements that we have finally come to about judicial control of control orders, burden of proof or any of those other matters. I did so because I believe that we are at the stage in our deliberations when we have to stand back and we have a responsibility seriously to focus on that with which we cannot hold. We must try to understand that other people have other issues about which they feel equally strongly.

In order to reconcile those points of view, I have come to the conclusion that we ought to stop arguing now about the specific details of parts of the Bill. There are two reasons for that. One is that we have improved the Bill considerably from its original drafting. The other is because I believe that it is better than Part 4 of the 2001 Act. That is fundamentally important to me.

I believe that control orders in some form are a necessary evil and that we are legislating to make them as palatable as possible. However, I do not believe that what we have done is incapable of improvement. The process by which we have done it has not been satisfactory in this House and, in another place, as we all recognise, it has been unacceptable in many ways. Therefore, my sticking-point is that we have the opportunity for a comprehensive reassessment of what we have done so far and to have proper legislation in a proper parliamentary process. That takes us to a sunset clause.

The reason that I tabled my amendment and do not wish to support the noble Lord, Lord Kingsland, is that frankly I do not believe that the timetable that he suggests is sensible or practical. I believe that my noble friend is right. Finding consensus on a new offence of "acts preparatory to terrorism" will be a complex and difficult issue that will require time and pre-legislative scrutiny. I believe that we will need a little experience of this legislation to be able sensibly to return to it and see in what areas it needs change, amendment and tweaking.

My Lords, would my noble friend also agree that, for much of the period until 30 November the House is in recess? This is not a job only for civil servants. It is a job for Members of Parliament; Members of this House. Am I right about that?

My Lords, my noble friend is absolutely right. It is also a job for other people as well. We have had very little opportunity to hear what interests people outside this House in terms of this Bill. We have not had the normal process where those with interest and expertise consult their own memberships, look at their own views, and put those forward to us. I want to see that before we next look at the legislation.

For the reasons that my noble friend has adumbrated, among others, November is not a sensible date, and nor would much longer than a year be acceptable, given that we all know we are dealing with imperfect legislation. I want a comprehensive review within a year's time. My noble friend, in her introduction, said that we can have that, but that the Government are giving it to us by different means; by an annual renewal order after a review. She explained clearly why; because there would be another legislative vehicle, there would be more opportunity than normal in a renewal order to have a proper look at this.

I am not yet convinced that that is true, not because I question the goodwill at all, but for two reasons. First, we have experience of renewal orders on Part 4 of the 2001 Act, on the Prevention of Terrorism (Additional Powers) Act, and in all sorts of circumstances. It is easy for renewal to become a ritual rather than a proper review. Secondly, it is also very difficult. When you are simply looking at an order, you have no opportunity to amend, and you get to the situation where it is this legislation or nothing. We will have the same sorts of debate about how, if we do not have renewal, the security situation will be damaged. That is my fear of relying solely on renewal.

I understand that in another place yesterday and today my noble friends on the Front Bench are trying hard to make this "renewal plus"; to make it seem a better and more comprehensive procedure. Yet, for the very reason my noble friend put forward—that we will be having another legislative vehicle and these issues will inevitably be discussed as part of that—putting in the sunset clause seems less of a problem than it would normally be.

In recognising that we have not legislated perfectly—that we need to look at these provisions in more detail, not in the heat of a pre-general election campaign and not with a huge and artificial deadline before us—I hope that the Government will reconsider whether so much will in fact be lost from their proposal if they accept my amendment.

My Lords, I am deeply grateful to my noble friend for giving way. I am struck by her amendment and the way she is putting it forward. However, will she not agree that the issue is not as simple as she has put it? Is there not a danger that we are all drifting into a situation in which we are accepting the historical and long-lasting inevitability of removing certain principles in our justice system when that is necessary? Is it not therefore vital for us to emphasise that it is essential to review this legislation, in the sense that it is incumbent on this House and the Government annually to prove that this legislation is necessary, rather than to prove that it is not necessary?

My Lords, I do not think there is any incompatibility between what I am saying and what my noble friend says. I am being tougher than he is, and saying that we have only one review for this legislation because we only have one year of it. In the successor legislation, my noble friend may be exactly right. Because it will involve major issues of constitutional relevance, the House will want to consider what the review provisions are in that legislation. I am talking about this legislation now, and am afraid I believe it should be considered as a temporary measure.

My Lords, I am glad again to follow the noble Baroness as I did a day or so ago, and again find myself in complete agreement with everything she has said. This House has a limited constitutional right to delay non-money Bills. It is said that the Bill before us could not be delayed because of the 14 March deadline, but I have never accepted that there was the urgency in this matter that others seem to have accepted. There is, so far as I know, no evidence that the danger today is any greater than it was in 2001—if anything, it is slightly less and, since then, this sort of legislation has not been applied to British citizens. The existing legislation has been adequate to protect us.

Let us suppose that there is the urgency which is suggested. If we cannot for that reason delay the Bill, surely we have a constitutional right to see that the Bill is considered again at the earliest opportunity. That is why, for all the reasons mentioned by the noble Baroness, I shall be voting for the sunset clause, whether for November, or for March as she suggests. It must be a sunset clause as a renewal of the Bill is not enough for all the reasons mentioned so often. It must come to an end at a defined date so that, before that date, we can have a chance to reconsider what the proper legislation is to put in its place.

On the question of what we could be doing until the sunset date, it seems apparent that the suggestion of a review by five Privy Counsellors is eminently sensible. However, I had not realised that the effect of the present situation, as the noble Lord, Lord Carlile of Berriew, has brought to our attention, is that if we have the five Privy Counsellors, we will not have him. I would be entirely against that. I had not realised that that was the effect, and am sure it is not the intended effect.

Clearly, the noble Lord must continue with the noble work he is already doing, but what he is doing is not enough for this purpose—that is no discredit to him because it is not what he is required to do. I am in favour of a review by the five Privy Counsellors, and do not see the difficulty—in entire agreement with my noble and learned friend Lord Ackner—in that being done between now and November. What actually is the difficulty?

My last question is on the proposed new offence of preparing to commit an act of terrorism, which I am delighted to hear the Government now favours. I actually recommended this offence 10 years ago. Five years ago, I tried to get it into the Terrorism Act. 2000, but the Government resisted it. It is wonderful that even at this time they are at last converted to the idea, but again, why can we not have that before November, before the sunset date? It does not take that long to draft a new offence—we get one every three days anyway.

My Lords, we support the noble Lord, Lord Kingsland, in proposing to set up the review by Privy Counsellors. It is a useful procedure. We support even more strongly the proposal for a sunset clause. It is not only useful but absolutely essential, for all the reasons proposed by the noble Baroness, Lady Hayman.

We believe that if we do not have a sunset clause, Parliament as a whole and in particular your Lordships' House will have no opportunity to reconsider this matter. If it is done simply by an annual review, an order to extend will be put before each House, which will of course be passed by the House of Commons with a government majority of whatever government may be in power at that time. Your Lordships have a long-standing convention that we do not reject, save in the most extreme circumstances, secondary legislation. The result would be that all that we would be able to do would be to pass a meaningless, non-fatal amendment to the Motion proposing the order.

To achieve an effective reconsideration, which is necessary because of the wholly exceptional speed with which this important Bill has been passed through your Lordships' House, it is absolutely necessary to have a sunset clause which will bring the Bill—or the Act, as it will then be—to a full stop, so that we will have to start over again with a fresh debate, with adequate time to debate these important issues.

My Lords, the speech made a few moments ago by the noble Baroness. Lady Hayman, seemed to make eminent sense. Looking around your Lordships' House, I believe that there are few people—with the exception of those who are on the Government Front Bench and under instruction— who would disagree with the sense of that. I do not want to rehearse the arguments that the noble Baroness put, as she put them far more eloquently than I could. But there are a couple of other reasons why I believe that a sunset clause is important.

The atmosphere at Prime Minister's Questions yesterday was not good, and for the Prime Minister to characterise this as some sort of political test was not helpful. It is being suggested that the Conservatives and others should vote down this legislation and let the people decide. The sunset clause would put the legislation in place, the Government would get their Bill and the people could decide whom they wish to be the next government—but I am less concerned about that than about the parliamentary process itself.

One constitutional argument in favour of our supporting the sunset clause, on which my noble friend Lord Waddington touched at an earlier stage in our proceedings, is that the House of Commons has the right to consider the legislation properly. It has not had that opportunity. By having a sunset clause, there would be an opportunity after the election, when the atmosphere is less frenetic, for the House of Commons to consider it properly. If the elected House has a proper length of time to debate and consider all these matters and if people outside have a chance to make their representations, with a proper timetable between the various stages of considering the legislation, then I accept that the Government must have their legislation.

But for the Prime Minister to say that he is prepared to lose the Bill, rather than have a sunset clause, reminds me of a time when I was a Minister and my private secretary came in and said, "Now, Minister, you've got five minutes to throw your toys out of the pram, and then we'll focus on the reality of this issue". The Prime Minister is throwing his toys out of the pram at the moment. Any rational person would come to the conclusion that if he could have his Bill, provided that he made an opportunity for the House of Commons and the House of Lords to consider it properly at a later date—any Prime Minister who was concerned about the security of our country and the integrity of the House of Commons and the House of Lords—he would grab that with both hands.

I want to make one other point, which relates to what the noble Lord, Lord Clinton-Davis, has been saying repeatedly—I mean no criticism of making a point repeatedly if it is a good point. He has made the point repeatedly that perhaps 30 November may be too soon. Now, I am not wedded to the 30 November date; apart from anything else, it is St Andrew's Day, which does not seem to me an appropriate day on which to discuss such matters, as it is a day for celebration. So whether the date is 30 November or 31 March, as the noble Baroness, Lady Hayman, suggests, seems to me a side issue. The real issue is that there should be proper consideration of this matter.

I respectfully suggest to the noble and learned Lord the Lord Chancellor that he should lean on his colleagues and draw their attention to the proposal made by the noble Baroness, Lady Hayman, and the feeling in this House, and not seek to get us into a game of parliamentary chicken on an issue as important as the security of our country.

My Lords, I had not considered the issue of St Andrew's Day at all until now, but I am persuaded that we should not adopt the idea that 30 November is sacrosanct. For all the reasons adduced by my noble friend Lady Hayman, it is appropriate that we consider 31 March. For that reason, we should have an adequate opportunity to consider the effect of the Bill. I am very chary about certain aspects of it, but I may be wrong. But it is absolutely vital that at least we have a report from the review committee before us and can consider the effect of the position taken by people outside the Houses of Parliament.

I was very disappointed when my noble and learned friend the Lord Chancellor said that the idea of the sunset clause was not acceptable to the Government. I beg of them to think again about the matter. It is not as though we are considering a perfect Bill; in many ways, it is imperfect. I am prepared to give the Government the benefit of the doubt, but there must be a provision that we consider the legislation again not on 30 November, which for reasons that I have already explained I believe is entirely appropriate, but on 31 March next year, which would be wholly appropriate.

My Lords, the Government are trying to have it both ways. I was in the other place yesterday, when I heard people on the government Front Bench repeat the argument that no sunset clause was needed at all and in the same breath say that if there were to be a sunset clause, the end of November would be too soon. As far as I can see, this Bill was put together in about two months. It is precisely because it was so hurried— although I understand the reasons for that—and precisely because it has such huge constitutional import, that we are saying that a total review is necessary and therefore a sunset clause is necessary.

The noble Baroness, Lady Hayman, made a good case for offering the Government an extended period for the sunset clause. That is a mark of good faith. But for the Government to go on saying that a sunset clause is not needed when this huge ramshackle Bill was put together in only two months seems to me a contradiction.

My Lords, not for the first time, I find myself in almost total agreement with the noble Baroness, Lady Hayman. Because she put her case so clearly and because my noble friend Lord Forsyth made many of the points that I wished to make about the Prime Minister's stance, I can be very brief.

I sat in another place yesterday to hear the debate and I heard my right honourable friend David Davis say that if the Government came back and said that there would be a review after 12 months, he would not object. I also heard my right honourable friend Kenneth Clarke remind the House that David Davis had been generous in saying that there had been eight days to debate this Bill, as in the House of Commons there were only three hours and the first hour and 10 minutes of those three hours was taken up by a speech from the Home Secretary. This was a completely new Bill for the Commons. It has been amended again, and when it leaves this House it will again be very different. So we can be certain that this is a deeply flawed piece of legislation.

Therefore, for all the reasons set out so eloquently by the noble Baroness, Lady Hayman, we clearly do need a sunset clause, and the procedures of a 12-monthly review are wholly inadequate. All we need from the Government is to say, "Okay, we accept a sunset clause", and all the other disagreements can be put aside and we can get on with the legislation and deal with terrorism. There is a consensus in the House on so many of the issues and I believe that we can find a consensus on the time needed.

1.30 p.m.

There are clearly doubts among a number of noble Lords that the November deadline is adequate. In the light of the remarks made by my right honourable friend David Davis in another place and what has been said today I suggest to my noble friends on the Front Bench that we should seek a consensus on the issue, accept the case put by the noble Baroness, Lady Hayman, and go for a sunset clause that ends on 31 March.

My Lords, during the foot and mouth disease outbreak we used to say how sensible and well the noble Baroness, Lady Hayman, presented her case. After about the third time she got frightfully ratty at the Dispatch Box and said that she was fed up with compliments from Members on our side of the House.

On this occasion I risk inciting her ire yet again. I hope that my noble friends on the Front Bench will accept what she had to say. It is perfectly reasonable, although I dislike vast chunks of the Bill even as it stands, for it to he extended for another four months, which is not that much.

The noble Baroness, Lady Scotland, was so near to arguing for a sunset clause. She was saying that we are going to have something in place. That is why a sunset clause becomes possible. What happens if for some reason either this House or the other place decides not to renew the Bill under annual renewal? The Government would be in a worse position than they are now with Part 4 and Belmarsh. I strongly suggest that we support the noble Baroness, Lady Hayman, which shows that it is an all-party matter and not just a Conservative matter to score party political points.

We agree with the noble Baroness, Lady Scotland, about the necessity to have a proper Bill in place. By 31 March of next year it can be in place and the transition can be seamless.

My Lords, I am sure that noble Lords opposite who have any involvement in business will know that in a partnership relationship in any business wherever we have an agreement we have a review clause. We do not renegotiate the whole of the agreement but we look at the consequences of the agreement into which we have entered and we review the effects.

I find it bewildering. I am talking to people who have a great deal of experience, which is mostly judicial; people who, I am sure, when it comes to legal matters, are extremely important. But in reality we are dealing with an issue that can he reviewed. There is already built into the Bill the opportunity to look at the orders on a yearly basis. I do not understand why there is a distinction between that and any other part of our lives.

My Lords, I want to say to my noble friend Lady Wall that we are talking about something much more substantial in our lives than making a business contract. We are talking about fundamental rights and liberty; the stuff that this House particularly can speak to in the interests of all the citizens of this country.

In supporting the propositions of my noble friend Lady Hayman I want to say that I have heard over the past 24 hours aggressive adversarial comment that the Bill is about party machinations. That has not been my experience in talking with people in this House—I cannot speak about elsewhere. I know that many people; particularly people who have spoken from the Labour Benches, are motivated by genuine concern about the quality of the Bill and the lack of time to discuss such important issues.

I would hate to see the issue being seen purely as to do with party positioning before an election. It is too important for that. In relation to my noble friend Lady Hayman's sensible propositions, because of the reservations about the Bill and because it is being presented as something to do with party politics, many people on the Labour Benches last night voted with the Government because they felt deeply uneasy about the fact that they were being accused of disloyalty. There was a sense that they were expected to vote for amendments coming from somewhere else that may have been motivated by party advantage.

On some issues we have to leave party aside. I strongly urge this House not to present these matters as opportunities for scoring points against the other side, but to discuss them in the interests of justice and liberty. Many people on these Benches feel alarmed about the Bill for good reason. The idea of a sunset clause weighs heavy on my heart because I think that the Bill should not be going through the House at all. I ask for a sunset clause only because it is a backstop so that we can reconsider such important issues at more leisure.

I say to all noble Lords: leave party aside for a moment and think about things that are about everyone's interest—the national interest—and about liberty and principles that we have fought for in this country for so many years. I know that some Members on our Benches have deep unease about the Bill but also feel a great sense of loyalty to party. They would feel relieved if some kind of veil would come down to enable us to think again and to start with a blank sheet so that we get the legislation right.

My Lords, having practised as a human rights lawyer in South Africa at a time when house arrest and a range of other oppressive laws had been passed allowing the authorities arbitrarily to deprive citizens of the protection of the courts, I would like to speak briefly. I will make only one significant point on the sunset clause.

Those laws in South Africa were used indiscriminately: both against individuals of whom the Government had good reason to be suspicious; and against those who in criticising the Government were simply exercising their democratic right to freedom of speech. They resulted in great hardship and harm both to innocent people and—perhaps even more importantly—to their spouses and children.

I do not for one moment compare the evil former South African Government with our own Government, many members of which in those days were ardent supporters of human rights in South Africa. However, sadly, in one respect our Government are using the same tactics as the South African Government used by insisting that the safety of the population is at risk unless the laws that they are seeking to rush through are urgently passed without proper consideration and deliberation.

In South Africa that unjustified urgency and implicit threat led to a spineless opposition—with the exception of one courageous Member of Parliament, Helen Suzman—that supported the appalling legislation, because they thought that they would be seen to be weak on terrorism. Fortunately, unlike the former South African opposition parties, the Opposition in this Parliament have behaved courageously and with integrity and a proper respect for the laws and traditions of this country despite the Government's efforts to portray them as weak on terrorism.

It makes no sense for the Government to suggest that a sunset clause would be an indication of weakness in the fight against terrorism. A sunset clause must surely be the rational response to the issues raised in the House. It gives the Government what they seek for enforcing the law until the clause becomes operative. It also gives the opportunity to those who oppose this legislation to ensure that proper and thoughtful legislation is crafted which will properly balance the requirement to defend the country against terrorism while ensuring that there is only the minimum diminution of the rights of individuals, through the protection of the courts.

My Lords, I think that I shall await the noble and learned Lord's answer to this debate with considerable interest. I shall be particularly interested to hear how he reacts to the speech that was made just now by the noble Baroness, Lady Kennedy. It was a superb speech. It was a sincere speech. It had nothing to do with parties. I say in passing that I have frequently wondered since I have been in your Lordships' House how useful political parties are or how full of menace they can he when their power is abused, as it very frequently is.

I wish to avoid overstatement, because I have been pursued for this before now. I shall therefore content myself with saying that this Bill has not been widely applauded. Perhaps I may refer briefly to the article in the Times of yesterday, which said:

"Labour is facing its sternest test of how to handle the whole issue of terrorism … The inept handling of this Bill"—

this is surely something for which the noble and learned Lord has to take a little blame—

"has had the worst possible effect. It has politicised an issue that should command a consensus among all responsible MPs to safeguard Britain and its liberties".

I very much wonder what the Prime Minister's position is in the matter of a sunset clause. He is—I must not be too excessive about this—noted for the agility of his footwork. On 2 March, in answer to my right honourable friend Michael Howard, Leader of the Opposition, he said:

"I point out to the right hon. and learned Gentleman that that will effectively be subject to a sunset clause, because if we introduce it, and we will introduce it only if there is another vote of the House of Commons and the House of Lords, my understanding is that it becomes annually reviewable and renewable. In other words, that part of the Bill is already subject to a sunset clause".—[Official Report, Commons, 2/3/05; col. 953.]

If this debate means anything, it means that there is no sunset clause of any value at all.

It has been said that this is not a matter for party politics. I agree. But perhaps the noble and learned Lord will tell us, when he comes to reply, what it was that the Prime Minister meant yesterday when he said:

"We will have this debate here, and we will have this debate in the country, and we will see where the shame lies; but in my judgment the shame will lie with the Conservatives, who, faced with legislation to prevent terrorism—faced with legislation on which we were advised by our police and security services—are going to vote against it. If they want to vote against it, let them: we will be content ultimately to have the verdict of the country on it".—[Official Report, Commons, 9/3/05; col. 1512.]

Perhaps the Prime Minister will explain to the country, at some stage or other, why he has so flat-footedly refused to contemplate any sunset clause, which would give some effective chance for a review, instead of endowing what in most people's opinion is a rotten Bill. He is endowing it with, if not eternal life, a degree of survival which it does not merit.

I have been in Parliament for a very long time. I cannot recall any other occasion when I felt so deeply distressed and sick at what a government are doing. I say quite mildly to the noble and learned Lord, who appears to take so many of the serious points made against him with a light-hearted air and to think that the passage of this Bill and its effect in operation will not cast a long shadow over the future, that I think he is entirely wrong and will have something to be ashamed of for the rest of his days.