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Lord Falconer of Thoroton: It would be wrong to say how many it is envisaged would be covered by the Bill.

Lord Stoddart of Swindon: The Prime Minister has said it.

Lord Campbell-Savours: Will my noble and learned friend remind the Committee that it was one bomber who blew up the Grand Hotel in Brighton, another one who flattened the centre of Manchester and another one who blew up Canary Wharf? That is only three.

Lord Falconer of Thoroton: What my right honourable friend the Prime Minister said on "Woman's Hour"—probably a more challenging forum than this—was words to the effect that some hundreds were under surveillance. I am not quoting directly. That is a very different issue from how many control orders would be needed. I shall not speculate on how many control orders would be needed, save to say two things. For foreign nationals, the number of Part 4 orders made was under 20—I think that it was 17 at most. In relation to what was anticipated, my right honourable friend the Home Secretary said in another place that he would expect these powers to be used very, very sparingly.
 
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There is no inconsistency between what the Prime Minister or the Home Secretary have said. The issue is whether it is right to take these powers. I keep coming back to the proposition that the people who have looked at this, including the security services and the noble Lord, Lord Newton—I do not say for a moment that he says it should be these powers—accept the need for something other than the normal criminal process. What we are trying to do, and we are doing it constructively, is craft the fairest, least intrusive process that provides the necessary protection that all those wise people have said is required. It is not without significance that both the Conservative and Liberal Democrat Front Benches agree that we need something. The question is what it should be.

As I was saying rather optimistically, I thought that I had dealt with almost every point that had been made. However, the noble Lord, Lord Forsyth of Drumlean, is shouting with enthusiasm the words, "Scotland, Scotland", and I understand what he means. The Bill extends to the whole of the United Kingdom. There is a specific difference in relation to Scotland in this respect. Whereas the Lord Chancellor—myself—will make the rules that apply to Northern Ireland, England and Wales, in Scotland the Lord President of the Court of Session will make the rules that determine how these processes are dealt with.

The specific question of the noble Lord, Lord Forsyth of Drumlean, was whether the Home Secretary, as opposed to the Secretary of State for Scotland, would make these orders when they apply to somebody in Scotland. The answer is we would expect that the Home Secretary would make an order in relation to somebody covered by the provisions who was in Scotland.

Lord Forsyth of Drumlean: I am most grateful to the noble and learned Lord. That is quite a departure; in the past it would have been the Secretary of State for Scotland. Detention and arrest have a different meaning north of the Border, as the noble and learned Lord knows. If the Home Secretary made an order to arrest someone living in Scotland, he has no operational interest in respect of the Scottish police. Does that mean that an English policeman would be sent to Scotland to make the arrest?

Lord Falconer of Thoroton: Save in relation to the effect of Amendment No. 91, we must remember that these orders are made either by the Home Secretary or by a court and that they impose particular restrictions. If there is a breach of those orders, it will be necessary to use the local police force to enforce the offence. But this is not abnormal; arrangements have traditionally been that the Secretary of State for Northern Ireland deals with terrorism and orders under provisions relating to Northern Ireland, while the Home Secretary deals with terrorism issues in the rest of the United Kingdom.

I hope—

Lord Forsyth of Drumlean: I am sorry to press the noble and learned Lord on this matter, but it is
 
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important. I can think of no precedent where the Home Secretary has exercised power in Scotland involving officers from any force. If there was a requirement in the past, the Home Secretary would have taken action in consultation with the Secretary of State who had responsibility for the Scottish police, and arrangements were made for that.

I live in Scotland so I would like to know the answer to this question. Under these proposals, if the Home Secretary had reasons to exercise the powers which are set out in Amendment No. 91 providing that a constable may arrest and detain an individual and if that person lives in Scotland, will the Home Secretary send a policeman from London or from England to do that? If not, how would he be able to direct the police who are subject to the devolved Administration? I suspect that that is the position, but I think we are entitled to know.

Lord Falconer of Thoroton: As the noble Lord, who is a distinguished former Secretary of State, will know, no Secretary of State can direct the police to do anything. If an arrest is required under Amendment No. 91 and the person was in Scotland, that would almost certainly be dealt with by the arrest warrant being handed to the Scottish police who would then decide how to execute it. If it happened in Strathclyde, it would be dealt with by the Strathclyde police, not by a constable coming across the border. There would be no need for that.

Lord Forsyth of Drumlean: So the noble and learned Lord is saying that the Home Secretary would give a direction to a chief constable in Scotland.

Lord Falconer of Thoroton: The constitutional position is that no Minister can give a direction to a police officer. If an arrest is required because of a court order, the arrest warrant can be given to the police and it will be for them to decide what they do about it. There is no question of direction in that respect.

I have not dealt with the point made by the noble Lord, Lord Carlile of Berriew, about special advocates. He said that special advocates needed more support than they were getting at the moment; that more of them were needed; and that special advocates were needed who had experience in, for example, criminal law and cross-examination. I agree entirely with what the noble Lord said. I gave evidence two or three days ago to the Constitution Committee, which was as concerned as the noble Lord about that point. I indicated that we would address the points that he made. At the heart of the problem for special advocates is the fact that, until now, they have been, as it were, on their own. They do not have an instructing solicitor; they do not have somebody who is development-cleared to see the material that that they have seen. We need to solve that problem.

There are certain issues that we may not be able adequately to resolve; for example, the process by which the special advocate takes instructions for, or is accountable to, the suspect after he has seen the closed material. The difficult question is whether one then
 
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gives to the suspect information that endangers informants. But, in broad principle, I accept what the noble Lord, Lord Carlile of Berriew, has said about the problems of special advocates, and we have already made proposals which I hope will deal with the points that I have made.

I hope in the light of what I have said that I have cleared up any misunderstandings about what we are proposing and that noble Lords will feel able to support Amendment No. 1. Subject to the views of the Committee and after discussions through the usual channels, we have agreed that the appropriate course, which does not in any way prevent noble Lords tabling amendments later, is that we should put the Government's amendments in the Bill, without prejudice to what may happen to them subsequently, simply with a view to ensuring that there is absolutely no doubt in people's minds about the detail of the Government's proposal. I think that that would be the most convenient way for Members of the Committee to continue the debate.

4 p.m.

Lord Stoddart of Swindon: Before the noble and learned Lord sits down, will he clear up one more misunderstanding? He said that the Prime Minister referred on "Woman's Hour" to several hundred people being under surveillance. I had been led to believe that he said on "Woman's Hour" that,

That is quite different from saying that there were hundreds under surveillance. Can he clear that up? What exactly did the Prime Minister say? Is he right or am I right?

Lord Falconer of Thoroton: As I hope I made clear, I do not have a record of the precise words that my right honourable friend the Prime Minister said on "Woman's Hour". I would need to look at it. The essential point that I am making is that the numbers to which the Prime Minister referred on "Woman's Hour" are not the same as the numbers in respect of whom control orders would be made.

There is no real inconsistency between what my right honourable friend said on "Woman's Hour" and the fact that my right honourable friend the Home Secretary said in another place that he expected the powers to be used sparingly and that there would not be that many cases in respect of which an order would be made. I am not prepared to speculate on what the precise number would be. The Committee should remember that the powers have been in existence for some time.


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