Terrorism Prevention and Investigation Measures Bill

That is the point that the noble Lord has already made on many occasions during the course of the debate. I fully accept that he opposes the Bill because he would make it stronger. I oppose the Bill because I think that it is already too strong, so obviously I have no hope there. I will use my remaining minutes to say how the Bill could be improved. That is not difficult to do. The Bill currently provides for an order to be made by the Home Secretary but only after permission by the court and subject to review by the court as soon as is practicable after the order has been served. This is a most unusual and cumbersome procedure. It would surely be better and simpler for the Home Secretary to apply for the order and for the court to make the order in the normal way. In her response to the excellent 16th report of the Joint Committee on Human Rights, the Home Secretary said that prevention orders of the kind we have before us in the Bill have become an established principle in our legal system. She cites anti-social behaviour orders, serious crime prevention orders and so on as examples. If serious crime prevention orders are to be the model, why does the Home Secretary not follow it through? Under the Serious Crime Act 2007, the Crown makes the application and the High Court or Crown Court makes the order. The same is true of anti-social behaviour orders except that the magistrate makes the order. I know of no case, and the Home Secretary cites none, where the order has been made by the Executive. The noble Lord may argue that terrorism is different and that in terrorist cases the Home Secretary is in a better position to form a judgment than a court. That argument will not run as the courts have already held, in a case called Home Secretary v MB, that it is for the court to form its own view on the facts whether the individual has been involved in terrorism activity. If the court disagrees with the Home Secretary then it is the duty of the court to quash the order. The Government have accepted that that decision will apply when a review takes place, very shortly after a notice has been served under Clause 9. That being so, and it being accepted that it is the court’s decision that will prevail, what on earth is the point of the Home Secretary making the order in the first place? In answer to the noble Lord, Lord Hunt, again—I hope to have better luck this time—there is no need to consult the judiciary about that proposal because the judges are already involved as the control order is currently administered at this stage of reviewing the orders made by the Home Secretary. There is nothing new for the judges in this. The sensible, logical order is for the Home Secretary to make the application—in that sense there will be a role for the Home Secretary—but for the court to make the order. There is one other point, briefly. Why has the Home Secretary watered down the burden of proof? I agree on this with the noble Baroness, Lady Hamwee. Under the Serious Crime Act, which is apparently to be the model, the judge makes the order on the balance of probabilities—which is the normal standard of proof in civil cases. If the Serious Crime Act is the model, why should the same standard of proof not apply here? Once again, the noble Lord may argue that terrorism is in some way different. Once again, that argument will not run. If we want a precedent for the balance of probabilities being the appropriate standard of proof in terrorist cases, one need only look at Section 4 of the very Act that we are now being asked to repeal. In derogation cases, it is the court that makes the order on the application of the Home Secretary. The court decides the matter on the ordinary civil standard of proof. Why has that model not been adopted here? One gets the same from Section 26 of the Act, which has been referred to, where the test is the balance of probabilities rather than the reasonable belief of the Home Secretary. What is the logic of having one test in Clause 3 and a different test in Section 26? I shall in due course propose amendments very simply to the effect—incidentally, they are quite simple to draft—that the order should be imposed by the court on the application of the Home Secretary and that the decision of the court should, as in all other cases, be the balance of probabilities.