My Lords, Clause 40 stand part is grouped with Amendment 31 in the names of the noble Lords, Lord Hunt and Lord Bach, which is very different. I shall confine my remarks to the clause. A curfew can be more than overnight. All the points about amendments we have debated this evening are relevant to the time—the hours of the day and night—during which a subject may be required to remain wherever he is living—plus, of course, in particular, engaging Article 5 of the European Convention on Human Rights, on the deprivation of liberty.
The ECHR memorandum published with the Bill is explicit that this provision is so that an individual can be required to observe longer curfew hours. That is not a justification, however. We have some case law, as I am sure other noble Lords may mention. In JJ, Lord Bingham said that account should be taken of
“a range of factors such as the nature, duration, effects and manner of execution or implementation”
of a measure—very much as noble Lords said on a previous group. The noble and learned Lord, Lord Brown, took the view that the absolute limit was 16 hours, and I understand that no curfew has been for a period longer than 16 hours since.
The ECHR memorandum makes the point that the principle of curfew does not breach Article 5, and I take that point, but the particular issue I want to raise in this connection is that the clause—that is, the change—makes it that much easier for the limits to be pushed longer and longer and throws on the individual the need to challenge them, rather than having clear limits set on the Secretary of State through legislation.
I am sure that noble Lords will understand, when it comes to the appetite, and indeed the ability, of an individual to challenge each measure, or extended measure, it is not an easy task. The balance—I think it is called “equality of arms”—moves completely out of balance through this clause. I beg to move.