My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
moved Amendment No. 105J:
Before Clause 69, insert the following new Clause—
"Application to set aside asset freezing decision
(1) This section applies to any decision of the Treasury in connection with the exercise of any of their functions under—
(a) the UN terrorism orders, or(b) Part 2 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (freezing orders).
(2) Any person affected by the decision may apply to the High Court or, in Scotland, the Court of Session to set aside the decision.
(3) In determining whether the decision should be set aside the court shall apply the principles applicable on an application for judicial review.
(4) If the court decides that a decision should be set aside it may make any such order, or give any such relief, as may be made or given in proceedings for judicial review.
(5) Without prejudice to the generality of subsection (4), if the court sets aside a decision of the Treasury—
(a) to give a direction under any of the UN terrorism orders, or(b) to make a freezing order under Part 2 of the Anti-terrorism, Crime and Security Act 2001 (c.24),
the court must quash the relevant direction or order.
(6) This section applies whether the decision of the Treasury was made before or after the commencement of this section.
(7) After the commencement of this section an application to set aside a decision of the Treasury to which this section applies must be made under this section."
The purpose of Part 5 is to make express provision for circumstances where the basis for a designation, or any other decision of the Treasury regarding the freezing of a person's assets under the UN terrorism orders, is challenged in court proceedings, but where the reasons for the decision cannot be disclosed because disclosure would be contrary to the public interest and involve closed source material. The proposal is that closed source material relevant to the Treasury's decision would be considered at a closed hearing for which a special advocate, a security-vetted barrister, would represent the interests of the designated person.
The provisions will align the procedure for court proceedings relating to asset freezes with other similar national security procedures—for example, control order reviews and appeals, appeals to the Special Immigration Appeals Commission or the Proscribed Organisations Appeal Commission. The Treasury aims to keep the special advocate provisions in the Bill as close to those other procedures as possible.
The amendments make one extension of scope and one procedural change. They extend the provision of Part 5 to cover freezing orders under Part 2 of the Anti-terrorism, Crime and Security Act 2001. This extension will ensure that challenges to asset freezes under the Act are subject to the same court procedure as applies to those made under the UN terrorism order. It will ensure that the court is able properly to review the reasons for the Treasury's decision, applying judicial review principles, even where the reasons for the decision, or part of those reasons, cannot be disclosed openly because they involve closed source material.
The amendments also seek to ensure that all decisions made under the ATCSA and the UN terrorism orders can be challenged under the Part 5 procedure by providing a statutory basis for any challenge under the UN terrorism orders and Part 2 of ATCSA to be challenged, and by providing for that challenge to be governed by the Part 5 procedure which we will set out in detail in Rules of Court to be made under Part 5.
The amendment is an improvement on the existing provision that lists the specific decisions to be taken by the Treasury, which has the potential to give rise to uncertainty where the decision challenged does not fall precisely into one of the categories listed. In practical terms, we do not see the amendment as widening the scope of the provisions. The amendments revoke the provisions in the current legislation relating to challenges while providing more coherent replacements. I commend the amendments to the Committee. I beg to move.
In so far as these are technical amendments which bring the legislation into line in the way described by the Minister, we shall not challenge them. I shall save my more substantial remarks for the question of what should fall within the scope of this when I move Amendment No. 105NZA, which concerns definition. As we are content with the definition of what the Minister is talking about, we have no argument with the amendments.
As I understand it, the provisions currently in the Bill are to ensure that sensitive information used in the making of a UN terrorism order can be considered during an appeal. These amendments extend those provisions to cover Part 2 of the Anti-terrorism, Crime and Security Act 2001, which allows asset freezing in the case of detriment to the United Kingdom economy or to a UK national or resident. The Government presumably wish to align all procedures in the case of asset freezing, which seems to us to be sensible. For those reasons, we support the amendment.
moved Amendment No. 105K:
Before Clause 69, insert the following new Clause—
"UN terrorism orders
(1) For the purposes of section (Application to set aside asset freezing decision) the UN terrorism orders are—
(a) the Terrorism (United Nations Measures) Order 2001 (S.I. 2001/3365);(b) the Al-Qa'ida and Taliban (United Nations Measures) Order 2002 (S.I. 2002/111);(c) the Terrorism (United Nations Measures) Order 2006 (S.I. 2006/2657);(d) the Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006/2952).
(2) The Treasury may by order amend subsection (1) by—
(a) adding other Orders in Council made under section 1 of the United Nations Act 1946 (c.45),(b) providing that a reference to a specified Order in Council is to that order as amended by a further Order in Council (made after the passing of this Act), or(c) removing an Order in Council.
(3) An order under subsection (2) is subject to negative resolution procedure."
On Question, amendment agreed to.
Clause 69 [Asset freezing proceedings]:
moved Amendments Nos. 105L and 105M:
Clause 69, page 48, line 39, leave out "to set aside an asset freezing decision" and insert "under section (Application to set aside asset freezing decision) or on a claim arising from any matter to which such an application relates".
Clause 69, page 48, line 40, leave out from beginning to end of line 21 on page 49
On Question, amendments agreed to.
Clause 69, as amended, agreed to.
Clause 70 [General provisions about rules of court]:
[Amendments Nos. 105MA and 105MB not moved.]
Clause 70 agreed to.
Clauses 71 to 73 agreed to.
moved Amendment No. 105N:
After Clause 73, insert the following new Clause—
"Qualification of duty to give reasons
In paragraph 11 of Schedule 3 to the Anti-terrorism, Crime and Security Act 2001 (c. 24) (Treasury's duty to give reason why person is specified in freezing order), make the existing provision sub-paragraph (1) and after it insert—
"(2) Sub-paragraph (1) does not apply if, or to the extent that, particulars of the reason would not be required to be disclosed to the applicant in proceedings to set aside the freezing order."."
On Question, amendment agreed to.
moved Amendment No. 105NZA:
After Clause 73, insert the following new Clause—
"Amendment to Anti-terrorism, Crime and Security Act 2001
(1) Section 4 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) is amended as follows.
(2) In subsection (1), before "The Treasury" insert "In cases involving terrorism-related activity,".
(3) After subsection (4) insert—
"(5) For the purposes of this section, "terrorism-related activity" has the same meaning as defined in section 1(9) of the Prevention of Terrorism Act 2005 (meaning of involvement in terrorism-related activity).""
This amendment is aimed to probe exactly what is caught within the scope of the legislation that the Government are using to make the freezing orders. Laid before the House at the moment is also the Landsbanki Freezing Order 2008, which we may well debate later. For today, I want to take the Chamber back to the original legislation that the Government passed in order to progress the freezing of assets in cases of terrorism, which was of course the Anti-terrorism, Crime and Security Act 2001. That Act was passed in 2001 in a hurry as emergency legislation in response to the
"The emergency legislation will build on the provisions of the Proceeds of Crime Bill to deal specifically with terrorist finance through monitoring and freezing the accounts of suspected terrorists".—[Hansard, Commons, 15/8/01; col. 923.]
In other words, it was quite clear when they were brought in that these powers were intended for use against terrorists, and we supported them at that time.
In this House there was a little more scrutiny, and Members asked the Minister why there was no explicit reference to terrorism in the drafting of the clause. When she was so challenged, the Minister, the noble Baroness, Lady Symons of Vernham Dean, insisted that the reason why there was no direct mention of terrorism was that,
"it is not possible to separate out the matters in a practical sense because the other crimes are the source of revenue for terrorists".
She also said:
"The Government do not believe that it is possible to define terrorism in a way that would distinguish it from activities related to it".—[Hansard, 3/9/01; col. 600.]
In other words, the powers were meant to tackle terrorism; they could not be defined too closely but were certainly supposed to tackle crimes connected with terrorism.
The problem that the Government have had in recent weeks is that there was no intention on the part of those supporting this legislation that it should be used in matters economic, so that the Government might in this way freeze the assets of another country's bank, as in the case of Landsbanki. I have tabled this new clause so that the Committee can discuss the principle at stake here. Parliament has provided very serious new powers on terrorism since 2001, and this is one example of where such a power is being used somewhat differently from the way we envisaged. Whether the Government were right, in economic terms, to take the action they did is a different question. The question here is whether we should be using terrorism legislation and associated legislation to achieve a very different end.
At this stage, this is a probing amendment to try to make sure that the Government are quite clear under what legislation and to what ends they will be using these powers. I beg to move.
I would like to take a little further the argument that has just been put forward by my noble friend and look at the important question of how the courts would, or will, interpret Section 4 of the 2001 Act if the order relating to the Icelandic bank is brought forward. It is very difficult to read Section 4 of the 2001 Act as it stands as applying to purely economic matters. For example, if a foreign country, perfectly understandably and legitimately, bans the import of British beef on the grounds of foot and mouth disease or mad cow disease, that would unquestionably be an act to the detriment of the United Kingdom's economy. I cannot imagine any court interpreting that order banning the export of British cattle as being within the operation of Section 4.
The Government have to face the fact that if Section 4 in its present form comes in front of a court, there will be great difficulty in interpreting it. It is perfectly possible that that court might come to the conclusion that the use of these powers in the present circumstances against the Icelandic bank was not, in fact, a legitimate use of Section 4. The Government will have to consider not only what Section 4 should mean but what it in fact means now.
Section 4 of Part 2 of the Anti-Terrorism, Crime and Security Act 2001 was recently used, as the noble Baroness indicated, to freeze the assets of an Icelandic bank. On the face of it, this does not appear to be appropriate legislation to use against a friendly state. However, I should make it absolutely clear that we, the Opposition, supported the Government's move. There is no doubt that the purpose of the legislation, in the light of its legislative history set out admirably by the noble Baroness, is, to a degree, an occluded one.
I think that there is merit in trying to seek greater certainty about the objects of this legislation. For that reason, I believe that the noble Baroness has made an important contribution to a debate which I know she intends to continue on Report.
I wonder whether I may raise a question which I respectfully suggest goes even deeper than those raised by the noble Lords, Lord Goodhart and Lord Kingsland. Does the golden rule of statutory interpretation which I was taught as a law student a very long time ago still hold good? That rule, as I understand it, is this. Where the language of an Act of Parliament is perfectly clear to understand, that is the meaning of that Act of Parliament, whatever Parliament intended. If, on the other hand, the language is in some way ambiguous, one is entitled to look behind the words of the Act and consider what the intention of Parliament was. It is a very old rule which is common not just to Acts of Parliament but to the interpretation of wills and documents. Is that golden rule still in existence? If it is, then even though there may be a moral obligation on the Government to think twice whether they should use that legislation in a context that may never have been intended in the first place, it does not affect the validity of that situation. I apologise to the Minister for raising that question, but it goes to the very root and foundation of this issue.
I thank noble Lords for their input and the noble Baroness for her query and probing amendment. Although I was slightly surprised when I realised that the Anti-Terrorism, Crime and Security Act was being used to freeze the assets of a bank in Iceland, there is no doubt that Section 4 of the Act allows the Treasury to make freezing orders when an action is to the detriment of the UK economy or constitutes a threat to the life or property of a UK national.
As I understand it, it does allow that. The Defence (Armed Forces) Regulations 1939 used to allow it, and the Emergency Laws (Re-enactments and Repeals) Act 1964 contained the same abilities. Those were then subsumed by this Act to allow freezing action of this kind. The ATCSA was not intended to be a purely counter-terrorism Act. At the time, the noble Lord, Lord McIntosh, explained in this place that the power was intended to provide wide-ranging protections against threats to the national security. The noble Baroness has expressed a slightly different view. The legislation also addresses things such as pathogens, toxins and nuclear security. It addresses a raft of other issues. It is slightly unfortunate that the title of the Act begins with "anti-terrorism", as the reaction of the Icelandic Government has demonstrated.
In its previous incarnation, the power has been used twice before: in 1990, when Iraq invaded Kuwait, in order to protect Kuwaiti assets in the UK and prevent the Iraqis misapplying funds; and as a defensive measure to freeze the assets of Iraq. As has been pointed out, the power was used this month over the assets of Landsbanki. As noble Lords will know, any use of the ATCSA has to be debated and approved by both Houses. Without that approval, the freezing order will cease automatically after 28 days. The debate regarding this asset freeze is scheduled to take place later this month and will provide an opportunity for Members to raise concerns regarding use of the power. The noble Lord, Lord Goodhart, raised some interesting points and that debate will be a good opportunity to debate them.
The amendment would limit the ability of the UK Government to act effectively in an emergency and protect the interests of our country. As the noble Lord, Lord Kingsland, said, it was absolutely right that we did so in this case. We need an ability to do this. That is the current position, and it will be an interesting debate. The Act was not intended to be confined to terrorist threats. Given that the amendment would have consequences outside the scope of the Bill, we do not consider it appropriate and would like it to be withdrawn.
The noble Lord, Lord Elystan-Morgan, mentioned the golden rule. I am not sure how to address the point, as it is a little beyond my competence, but I could look at it. If the golden rule is that we need an ability to do this, and the ability lies somewhere in some Act, and if this is not the best way to do it, then we need to think about that. However, we certainly need the ability because we need to take this kind of action.
I thank all those who have spoken in this debate. There are some very important points of principle here, and I am glad that the House will have the opportunity to discuss them further when the order is debated. Noble Lords who are much more expert than me—my noble friend Lord Goodhart, the noble Lords, Lord Kingsland and Lord Elystan-Morgan—have all spoken about the courts' interpretation of this provision. That is one angle to be debated when we debate the order. Of course, there is also quite a large issue about the economic angle. There will no doubt be some ripples throughout the financial world as a result of this situation, and it would be very unfortunate if there was not total confidence that our laws—and the interpretation of them—were firm. A knock-on consequence might easily be that other countries and Governments would choose not to leave their assets here, with a provision that could be open to wide interpretation.
There is an awful lot more to debate here, but in the mean time I beg leave to withdraw the amendment.
moved Amendments Nos. 105P and 105Q:
Clause 76, page 53, leave out line 26
Clause 76, page 53, leave out line 32
On Question, amendments agreed to.
Clause 76, as amended, agreed to.
Clause 77 [Certificate requiring inquest to be held without a jury: England and Wales]:
[Amendments Nos. 106 to 111 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 77 shall stand part of the Bill?
Clause 77 and some of the following clauses propose that inquests could be held without a jury and with a specially appointed coroner, appointed by the Secretary of State. The Government proposed that this could happen in three cases: in the interests of national security; in the interests of a relationship between the UK and another country that might become embarrassing; and in the public interest—which is extremely wide. As the Minister has been kind enough to put his name to my opposition to clause stand part, I do not intend to make a very long speech on why the Government's proposition is such a dangerous and undesirable one. However, the Minister said in his letter—for which I thank him—that the Government are withdrawing the proposal only so that they can bring it back in the more appropriate Coroners Bill. I therefore need to make a few substantial points on the Government's thinking. We agree that the Coroners Bill is a far better place to debate the proposals, but we hope that the proposals will be far more focused and much narrower when they are brought back.
The historical precedent for having coroners deal with deaths, particularly those that occur at the hands of the state, is extremely important, and one that we do not intend to see either diluted or given up. The office of coroner dates from 1194. Coroners investigate more than 200,000 deaths a year in this country and hold inquests into some 25,000. Very few of these cases involve deaths at the hands of the state and its agents, but it is especially these cases that need to be investigated and need an independent coroner and jury. How else can society maintain confidence in the state when people are, for example, shot by the police or die in custody? It is very important that the laws are followed and society's interests are guarded. It is critical for maintaining the confidence of society that this is not seen as an executive decision followed by a secret executive inquest.
Many Members of the Committee have a far greater knowledge of the 1988 SAS shootings in Gibraltar than I do. The state's effort to keep that matter out of the public gaze—and the battle to allow screening of the "Death on the Rock" film which was won by my late and much lamented friend Lord Thomson of Monifieth—is a lesson that we should all take. The incident shook the public core, and there are important lessons to be drawn from it.
I declare an interest in that I was one of the Northern Ireland Ministers at the time of this Gibraltar shooting. Perhaps the noble Baroness would care to tell the Committee a little more about the lessons she thinks should have been learnt from the incident.
As I mentioned, a number of Members of the Committee have more experience on this. I have already mentioned my noble friend, who was closely involved. The noble and learned Lord, Lord Howe, is another. The noble Lord, Lord Windlesham, with an eminent QC, produced a book on the case for allowing the media to cover the incident. The lesson that I have taken from it, from a greater historical distance, is that the attempt to keep it out of the public gaze only exacerbated an already very difficult situation. I hope the noble Lord will share his thoughts on the subject when I have finished speaking on clause stand part, because he clearly has some. I am sure that some of my noble friends will also speak.
It is not clear why the national interest regarding inquests cannot continue to be covered by national interest immunity. This system allows the judiciary to make a judgment. It is for the courts to reconcile the potential conflict between two public interests—between the public interest in the administration of justice, which demands that the relevant materials are available to the parties; and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging to the state. That balance is currently held by the judiciary. One of the questions we are asking is why that should not continue.
Who should ultimately decide which of those interests should prevail in a particular case? The answer, as I said, has long been clear in law—it is a function of the courts. The Government were saying, before they put their name to my opposition to clause stand part, that they should in future make this judgment. We feel that that would be a drastic step. I note the comments of the Joint Committee on Human Rights, which was very exercised by the proposal. I look forward to hearing the views of noble Lords who have vast experience on this subject.
I am a member of the Joint Committee on Human Rights, which has just been mentioned. I was perhaps the only person who spoke on this subject at Second Reading on
The Joint Committee on Human Rights explained in its report in October why it did not find that explanation satisfactory. In January 2008, shortly after the Bill was published, the committee made clear the nature of the human right concerns over the provisions. They do not rest on any claim that the convention requires inquests to be held with a jury. They concern the effect of the provisions on the ability of the UK to comply with the positive obligation in Article 2 of the convention to provide an adequate, effective and independent investigation, including sufficient public scrutiny and involvement of the next of kin where an individual has been killed as a result of the use of force, particularly by state agents. The committee said:
"We find extremely regrettable the Government's continuing failure to provide an accessible explanation, in the Explanatory Notes to the Bill, for its view that the provisions are compatible with Article 2 ECHR".
Why does that matter? It matters because there is a dedicated committee of both Houses whose job it is to monitor whether proposed legislation is or is not compatible with convention rights. That role cannot properly be performed unless the government department concerned plays with its cards face up on the table rather than concealing them. Otherwise, there is then a wholly unnecessary procedure in which the committee has to ask the Home Office and Ministers to deal with points that the Explanatory Notes could have dealt with perfectly well in the first place. This wastes time and resources, and hampers the role of both Houses of Parliament in scrutinising government legislation.
Many departments are not guilty in this respect. I am not suggesting that the Home Office is alone in being guilty, but there was a deplorable lack of candour and thought by the department when the Explanatory Notes were first drafted. The committee takes a serious view of the matter. I am not suggesting that it is worth going into past history any more, but the committee hopes that this will not happen again.
We on the committee greatly welcome the fact that the Government have at last seen fit to take these provisions out of the Bill. Indeed, in my speech in July, I said that I hoped that sunset would come in October; it has done so, in the sense that we will now have these unsightly provisions excised. What is not good news is that the Home Office proposes to come back to them in a coroners Bill. We ask that there should be full public consultation on that proposal before that happens. I hope that the Minister will be able to assure us that there will be.
The convention requirements—the positive obligations on all states—are clear. During the debate in the other place on
The procedure imposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury and with a special coroner if, in the Minister's opinion, it is in the interests of national security or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. Therefore, the Secretary of State seeks, or was seeking, sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. I described the Government's excuse for this as an example of what I called Home Office chutzpah, but most of your Lordships did not know what that meant. It means in Yiddish an infernal cheek, and that is what I think this was.
Independence is essential and a system based on the special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations because it would be fatal to any appearance of independence. Dominic Grieve MP rightly asked:
"What is the point of suddenly dispensing with juries? ... it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. ... If ... the Government came forward with other ideas and proposals ... that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake".—[Hansard, Commons, 10/6/08; col. 249.]
I entirely agree with that and I agree with the Justice Committee in the other place, which called for the proposals to be withdrawn pending more detailed scrutiny and the proposed coroners Bill, as did the Joint Committee on Human Rights.
So for all those reasons it is most welcome—
I am very grateful to the noble Lord. I am not at all clear what the purpose of this now is. I thought there was common ground that these parts of the Bill will not be proceeded with now. If we are going to hear about them later under the fresh coroners Bill, why do we need to go into it now?
We do not need to go into it now and I am about to stop going into it at all. The reason I am making this short speech is to put up a marker because if, having rightly taken these provisions out, the Government are proposing to put them back in again without heeding the concerns about the convention rights—they have not dealt with the convention rights arguments—it is very important for the Joint Committee, myself and others to make it clear to the Home Office that we shall have exactly the same battle next time. Therefore, this is simply a way of welcoming the withdrawal of these provisions, which I now do, and indicating that enough is enough.
As far as I am aware—but the Minister will explain this—what they have listened to is the desirability of removing it from the Counter-Terrorism Bill. But as I understand it, they are proposing to do exactly the same in another Bill, and that is what I am protesting about now.
When the Minister replies, I hope that he will tell me what the position is in Scotland. These clauses apply to England, Wales and Northern Ireland. Of course, the procedures are different in Scotland, but is there no risk of endangering national security there? I hope the Minister can tell me that. Perhaps I should know the answer, but I do not.
I have put my name to the four clause stand part entries on the Marshalled List. I thank the Government for reflecting on this matter and deciding to hold their fire until the coroners Bill begins its journey, as I imagine it will, in the next legislative Session. I share many of the hesitations expressed by the noble Baroness, Lady Miller, and the noble Lord, Lord Lester, about the clauses. I look forward to the opportunity to express my own fears about what the Government want to do if they are foolish enough to go ahead with this matter.
I thank the noble Lord, Lord Kingsland, for his support and for his kind words. Both this House and the other place have expressed a strong desire to debate the inquest provisions in Part 6, and one got a flavour of that here today. That will now happen in the context of the wider reform of the coronial system; and that is probably the correct way of doing it. Consequently, that is why we are seeking to remove Clauses 77 to 79 and Clause 81 from the Bill and to have that debate when we go forward with the reform of the coroner system. That will provide both Houses with an appropriate context in which to consider all the issues that they are seeking to meet across the totality of the change.
The noble Lord, Lord Lester, mentioned the JCHR points. If the Explanatory Notes are not up to speed in their coverage of some of the issues to do with human rights in Article 2, we will absolutely make sure that happens when it comes up for review in the totality of the coroners Bill. I was not aware that they were so poor; I will look into that to see what the problem was.
The noble Baroness, Lady Carnegy, asked specifically about the position in Scotland, which apparently uses a system of fatal accident inquiries rather than coronial inquests. The noble and learned Lord, Lord Cullen, is currently reviewing the law and the greater use of those inquiries, and he is due to report next year. That is the position as I have had it reported to me from the Box, but I have no detailed knowledge of that.
I oppose that Clauses 77 to 79 and 81 stand part of the Bill, but I should like to speak to Clause 80 standing as part of the Bill. This is a technical provision to correct an anomaly in the procedure established for inquiries under the Inquiries Act 2005. At present, Section 18(7) of the Regulation of Investigatory Powers Act—RIPA—permits intercept material to be disclosed to the panel of an inquiry alone only where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference. Section 18(7) does not permit intercept material to be disclosed to the person appointed as counsel to the inquiry. That means that the panel can currently share all of the sensitive material that it receives with counsel to the inquiry, apart from intercept material, because the RIPA provision covering inquiry panels does not also include their own counsel.
Clause 80 is intended to correct that anomaly, so that the panel may order disclosure of intercept material to the person appointed as counsel to the inquiry where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference. That will enable counsel to the inquiry to advise the panel on all sensitive material, rather than just all sensitive material other than intercept.
The proposals will operate in a very limited number of cases and do not undermine the current level of secrecy around intercept material. As such secrecy is maintained, the proposal does not undermine in any way the current prohibition on the use of intercept material in prosecutions, which would of necessity require disclosure of the material to the defendant personally.
Clause 80 will ensure that the panel and counsel to an inquiry can always have the information that they need to ensure that the inquiry can fulfil its role, whatever the source of that information on those very exceptional circumstances.
I entirely support what the Minister just said about Clause 80. It seems to me that if the panel has access to the intercept communication, it must be obvious that the counsel to the panel must also have access to that intercept material. As he stated, it is a technical provision, which should be supported.
Can the Minister expand a little on why the public interest immunity system that stood the test of time for so long is not now viewed by the Government as adequate, which is why they want to bring these provisions back, I understand, in the coroners Bill? Or is there a different reason? I understand the frustration of the noble and learned Lord, Lord Lloyd of Berwick, that we are pursuing this matter in depth, but that is important if we are to be asked to look at it again in what could be only a couple of months from now.
Perhaps the noble Baroness would allow me to give her the reasons in writing, rather than have a long debate now.
As I understand it, Clause 80 refers to inquiries.
Absolutely, but I thought that the noble Baroness had gone back to the coroners.
I may have misunderstood the noble Baroness, but my understanding was that the matter to which the noble and learned Lord, Lord Lloyd, has just spoken was on Clause 80, which relates to inquiries. Rather confusingly, it comes in the middle of clauses on inquests, but is not related to them.
The noble Lord, Lord Kingsland, is absolutely right that the clause relates to inquiries. It is confusing that it is included there. I thank the noble and learned Lord, Lord Lloyd, for supporting me. It makes absolute sense to do that. I thought that the noble Baroness was returning to the issue of coroners, and that is why I said that I would come back to her in writing on the public interest immunity system in relation to coroners.
moved Amendment No. 126A:
After Clause 80, insert the following new Clause—
"Inquests: intercept evidence
(1) In section 18(7) of the Regulation of Investigatory Powers Act 2000 (c. 23), after paragraph (c) insert—
"(d) a disclosure to a coroner or to a person appointed as counsel to an inquest or to members of a jury or to any properly interested person where—(i) the coroner holding the inquest is a judge of the High Court; and(ii) the coroner has ordered the disclosure to be made to the coroner alone or (as the case may be) to the coroner and the person appointed as counsel to the inquest or to members of a jury or to any properly interested person."
(2) In that section, after subsection (8A) insert—
"(8B) A coroner shall not order a disclosure under subsection (7)(d) except where the coroner is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained."
(3) In that section, after subsection (11) insert—
"(11A) References in this section to a coroner apply only where the coroner is a judge of the High Court."
(4) This section has effect in relation to inquests that have begun, but have not been concluded, before the day on which it comes into force as well as to inquests beginning on or after that day."
When the question of inquests was first raised as an issue that would be included in the Bill, the Government made much of the fact that one inquest was unable to take place unless certain provisions were made to hold it in secret. In relation to the inquest into the Rodney death, which opened on
For that reason, I tabled the amendment to suggest that if the difficulty was that coroners were unable to deal with such inquests, because the original Act, RIPA, which allowed intercept evidence to be dealt with in a way that covered inquests and complied with Article 2 of the ECHR, the answer might be to have High Court judges sitting in coronial courts to see evidence that concerns interceptions.
The point of my amendment is to allow some debate as to whether that would be a way of resolving the difficult matter of the Rodney case. Since tabling the amendment, it has transpired that a second parallel case is now in court: the case of Terry Nicholas who was shot by police in west London on
As more inquests are held up, one questions the Government's intention. Do they think that my amendment would be a solution? I am very grateful to the noble Baroness, Lady Stern, for putting her name to my amendment. She is not able to be here today, but she feels that serious questions need to be answered. Would this amendment be an answer so that these inquests can be held, or will the families be left in limbo indefinitely? There are much wider questions. The rest of us need answers about such operations. I do not suggest that anything untoward took place—we simply do not know, which is the point of having inquests. I beg to move.
I declare an interest: I recently appeared on behalf of the Association of Chief Police Officers in the judicial review challenge to the Independent Police Complaints Commission in relation to two tragic cases where men were killed as a result of shooting by police officers in unusual circumstances. My simple point, which I am sure is entirely well-known to the Minister, is that in the scheme of things it is vital, as the learned judge, Mr Justice Underhill, pointed out in giving judgment on the Saunders and Tucker cases—I think last week—that Article 2 of the European Convention on Human Rights is fully satisfied not only by having a proper independent investigation by the IPCC, but by having an inquest which fully satisfies the requirements of the convention. One has to look at the whole process, not just the IPCC investigation, but also, ultimately, the adversarial process which takes place before a coroner. Therefore, anything which can be done to make inquests happen more speedily and in a way that wins the confidence of the public, the next of kin and so on is to be desired. Whether this or some other amendment achieves that, I am sure that that is the right objective.
We are now back on to inquests as opposed to inquiries. As I understand it, it will be common ground that Clause 81 should not stand part. If that is so, it does not seem to me to make sense to accept Clause 80, which deals with intercept evidence at inquiries. Like everything else to do with inquiries, they must surely wait until we have the coroner's view.
I thank the noble and the learned Lord, Lord Lloyd of Berwick, because I absolutely agree with what he has said on that point. Amendment No. 126A would allow for the wide disclosure of very sensitive material, such as intercept, to juries and other interested parties. That creates a potential for public disclosure of all types of sensitive material, including intercept and other things, and undermines the very real need to protect such material, and the sources and techniques by which we get it, from public disclosure. Although Amendment No. 126A will allow the finder of fact to have access to all the relevant material, it does so at the expense of preserving the "ring of secrecy", which, as I said, is necessary to protect sensitive techniques and capabilities. It is also unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests involving the consideration of such material.
We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible, but it is necessary to strike a balance between the interests of families and the public interest when material central to the inquest cannot be disclosed publicly. It is much better to debate all these matters when we take it in the round of the new coroners legislation. We are confident that the measures we intend to bring forward—containing, as they do, the safeguards of a cadre of security-cleared coroners and arrangements for counsel—strike the right balance, but I do not think that there is much more to be gained by debating this further. On that basis, I resist the amendment.
I am sorry that the Minister's reply is quite so negative, because by the time that we have debated the Coroners Bill in both Houses and it receives Royal Assent, four years will have passed since the death of Azelle Rodney. I may be missing something here, but I do not think that I am. If a High Court judge was sitting as a coroner and decided that public interest immunity was served by nondisclosure of facts that were particularly sensitive in either that case or the other one to which I referred, I cannot understand why the inquest cannot go ahead.
I would be very sorry if the House took the attitude that it is perfectly permissible, all right and something that we should not question that an inquest can take four years, or more, to come to pass. It does not matter whether the inquest is of someone who was undertaking criminal activity or not. We now have not just one but a second person who was shot by the police. They may have been taking part in criminal activity, but their deaths are still liable to be properly investigated by an inquest. They are not being investigated because the Government will not take them forward, prevent the coroner from undertaking them and then say, "You will have to wait until more legislation is in place". That is not a satisfactory position for the Government to take.
It is not only a question of natural justice for the families. When it was one case, it was really worrying. Now it is two cases; it seems that the Government are drifting into a habit on this. The House should be challenging that. I will withdraw this amendment in Committee, but the Minister should not feel confident that I will not bring it back on Report, because I shall. I beg leave to withdraw the amendment.
This is a probing issue, and one to which we may return on Report. I am not clear why it is necessary to amend the definition of terrorism in the way proposed. Can the Minister conceive of a circumstance in which a "racial" cause is not already encompassed within the phrase "political, religious or ideological"? The term "racial" is not substantive with regard to motivation or end, as are the terms "political", "religious" or "ideological".
I am aware that the noble Lord, Lord Carlile, who proposed the change in his report in March 2007, said that he believed that it was covered by current law, which, frankly, is good enough for me, but that it would "send a positive message" as well as achieve "some"—some—"increase in legal clarity". I am not convinced of this. It is bad legislation to add unnecessary categories. Will the Minister say where he thinks he should take this added word?
Finally, given that we do not yet have an internationally agreed definition of terrorism, will the Minister say what efforts the Government are making and what progress is being made to secure one?
The noble Baroness has touched on an issue that is not of huge import, because, as she rightly says, we could probably catch terrorists who are involved in that sort of thing without having "racial" in the definition. As she said, the March 2007 report by the noble Lord, Lord Carlile, on the definition of terrorism brought this up to enhance clarity. We accepted this in our response to his report, which we published on
Clause 82 puts it beyond doubt that racially motivated terrorism is included in the definition. It will not widen the scope at all. It would not, for example, bring the activities of far-right groups within this definition. These are already covered where they meet the tests set out in the definition of terrorism in Section 1 of the Terrorism Act 2000. The clause is included for those reasons and for clarification, and should stand part of the Bill.
I would not quite put it in those terms. I hope that my explanation that it should be there because it fits in with a number of other pieces of legislation can be taken at face value.
Is the point that if terrorists say that they want to kill Jews not because they are a religion but because they are a race, they might somehow not be within the definition of terrorism, and that the advantage of bringing race into the definition is that it covers killing Jews, whether they are regarded as a race or a religion?
We want to ensure that people do not argue that racially motivated terrorism has been specifically excluded. The reality is that "racial" encompasses people anyway. It is just for clarity and because some people might well argue that we are trying to exclude it for some reason. We are not. It simply makes sense to include it on that basis.
I did not intend to speak, although I was intrigued by the clause, as was the noble Baroness, Lady Neville-Jones. The Minister's reply concerns me, because he has more or less said to the Committee that the word is there only because my noble friend Lord Carlile thought that it was appropriate to have it there. We do not know why the noble Lord wanted it there, and the Minister seems to think that it will reduce confusion because "racial" and "religious" have tended to go together in recent times. Many of us who have opposed the insertion into recent legislation of as much religion as there is would argue that it adds to confusion. It is completely erroneous to argue that adding "racial" because "religious" and "racial" have tended to go together for the past five years or so will reduce confusion. Ethnicity will be brought in, and there will be all sorts of other confusions, such as whether we consider Jewish people to be a religious group or a racial one. In case the Conservatives suggest that the opposition to the Question was only probing, I suggest that it may well turn out to be more and might come back on Report.
I totally disagree with what the noble Baroness has said. The provision is for the avoidance of any doubt and is included on the basis that I explained. I do not believe that it will add to any of the issues she mentioned. It will stop arguments and debates being made on the basis that racial factors are excluded. It is quite a standard way of having things: we refer to racially and religiously aggravated offences, and so on. That is the sole basis on which the provision has been included.
I remain to be convinced, I must admit. The principle of simplicity seems better than complication, but I will reflect on what the Minister has said and may return on Report.
moved Amendment No. 127:
After Clause 82, insert the following new Clause—
"Amendment to Terrorism Act 2006
(1) The Terrorism Act 2006 (c. 11) is amended as follows.
(2) In section 19, after subsection (3) insert—
"(4) In deciding whether to give consent under subsection (2), the Attorney General or the Advocate General for Northern Ireland shall have regard to—
(a) any reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights,(b) the extent to which the government is accountable to its citizens through free and fair elections, and(c) the nature of the acts of terrorism which the person against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged.""
The amendment is similar to one that my noble friend Lady Williams of Crosby and I tabled to what is now Section 19 of the 2006 Act. Section 19(2) is concerned with offences connected with foreign countries that come within the definition of terrorism for the purposes of our legislation. Section 19(2) provides that the prosecution needs the consent of the Attorney-General or the Advocate-General for Northern Ireland.
As I think has become apparent, a wholly satisfactory definition of terrorism is extremely difficult, if not impossible, to achieve. The definition in Section 1 of the Terrorism Act 2000 is not wholly satisfactory, as I think the noble and learned Lord, Lord Lloyd of Berwick, who can be described as the father of that Act, would accept. In particular, the definition can extend to actions which would broadly be considered by most or many in this country as justifiable or at least not a terrorist matter.
I can perhaps describe this as a Mandela problem. In the days of apartheid, the African National Congress would unquestionably have fallen within the definition of "terrorists" under the 2000 Act. Its armed struggle involved serious damage to persons and property; it was intended to influence the Government of South Africa, and it was made for the purpose of advancing a political cause. Members of the ANC could therefore have been prosecuted in the United Kingdom had that legislation been in force when apartheid was still going strong. That is so, even though non-whites in South Africa were subject to grave oppression and had no voice in politics as voters, and the ANC did not use violence against civilians—indeed, it used little of it against anyone. The ANC, of course, had wide support in the United Kingdom and in many other countries.
The first question is: can terrorism be redefined to exclude members of organisations in the future which may be comparable to the ANC? At the time of the 2006 Act it was a matter of hope that something could be achieved, but it has become very difficult to believe that that is the case. As has already been pointed out, following the 2006 Act, the Government asked my noble friend Lord Carlile of Berriew to report on possible changes to that definition. His report recommended only minor changes and he was unable to come up with any major improvements to the definition in the 2000 Act. For my part, I doubt whether it was possible to do so and that he went as far as he could.
However, my noble friend Lord Carlile concluded that the requirement for an authority—either the DPP or the Attorney-General under Section 19(1) and (2) of the 2006 Act—to approve a prosecution was a real protection against the abusive use of anti-terrorist laws. The Government, in paragraph 6 of their reply to the report, accepted this conclusion.
This amendment would place in the Bill some of the issues that the Attorney-General must take into account. I accept that they will not be the only ones and that there will be a number of other matters. These perhaps are three of the most important considerations. Under subsection (2) of my proposed new clause, the Attorney-General has to take into account, first,
"any reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights".
That is the necessary starting point for refusal to prosecute. Unless that condition is satisfied, it is most unlikely that there ought to be a prosecution.
Secondly, the Attorney-General has to take into account,
"the extent to which the government is accountable to its citizens through free and fair elections".
The undemocratic nature of a Government is an important factor in deciding whether prosecution is needed, although it is not necessarily the decisive factor. Thirdly, he has to take into account,
"the nature of the acts of terrorism which the person against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged".
That would point out that members of any organisation which approves of the murder of innocent people—for example, 9/11—should not expect to avoid prosecution even if its cause is otherwise a good one.
All those matters are circumstances which any reasonable Attorney-General would take into account. While I should like to see them in the Bill, I would be content if the Minister is prepared to acknowledge on the record that these are matters which an Attorney-General should take into account when considering whether to authorise a prosecution under Section 19 of the 2006 Act. I beg to move.
I am afraid that we have some difficulties with this amendment. As I understand it, the Attorney-General would have to take into account what sort of Government were being preyed against by a terrorist offence. A despotic Government whom no one liked very much might be treated differently from a Government of a democratic regime. That appears to be the purpose of this amendment.
We would say that terrorism is terrorism, whatever its nature. One should not refer to the motivation or political agenda of those who perpetrate an act of terrorism. There is no right to resort to terrorism under any circumstances. Therefore, we do not support the amendment.
Surely an Attorney-General would have to take into account a number of factors, one of which is the degree of despotism when deciding whether to prosecute for terrorism. The whole point of requiring the approval of the Attorney-General is that it is not merely a matter of whether the act of a particular prospective defendant falls within the definition of terrorism, but whether in all the circumstances, which may and indeed should include the nature of the Government against which the action is taken, it is appropriate to go ahead with the prosecution. Had this legislation been in force at the time, I wonder if the noble Baroness would have said that it was appropriate for the Government to prosecute those members of the ANC who from time to time were resident in London.
I support the amendment moved by my noble friend. The conspicuously moderate way in which he has moved it indicates that he would be content with an assurance from the Minister that the factors set out in his amendment would be regarded by any reasonable Attorney-General as the kind to be taken into account in acting as guardian of the public interest and deciding whether a prosecution should go forward. We have a system in which the Attorney-General remains a politician as well as chief legal adviser to the Government in deciding whether to prosecute for terrorist offences. The Attorney-General must consider the huge breadth of the offences—some of which involve barbaric and horrendous violence and others which are essentially political in nature. While I understand perfectly the point of the noble Baroness, Lady Hanham, that violence is violence in all circumstances, I nevertheless believe the need for the Attorney-General to consent to a prosecution is a vital safeguard that should be exercised not only on subjective, political grounds but also on objective ones.
When the terrorist offence essentially comprises a speech crime, as in some acts of the glorification of terrorism through speaking or writing, there is a safeguard that the Attorney-General must act in accordance with the European Convention on Human Rights, including the guarantee of freedom of political expression. It is desirable to spell out objective criteria that do not fetter the discretion of the Attorney-General, which would be quite wrong in that there needs to be flexible discretion. But, as the amendment states,
"the Attorney General or the Advocate General for Northern Ireland shall have regard to"—
the factors that my noble friend Lord Goodhart has set out in paragraphs (a), (b) and (c), that does not mean that he or she is restricted to a rigid framework, only that these must be relevant factors. I suggest that my noble friend is perfectly right to point out that in law as elsewhere context is everything, and that there will be cases of the kind suggested in paragraphs (a), (b) and (c) which surely are the kind of factors to which any reasonable Attorney-General should have regard in deciding whether a prosecution should go forward. If one does not have something like this, we are in danger of having a legal system in which there are no sufficient safeguards against abuse and of the right to vindicate democratic principles internationally where one has a truly despotic and horrendous regime, provided that the individuals concerned have not been involved in acts of terrorism of a kind that paragraph (c) seeks to rule out.
This is a balanced, sensible and pragmatic approach based on principle. I hope the Minister will at least say that these are the kinds of factors that the Attorney-General or the Advocate General for Northern Ireland would surely wish to take into account.
We fully recognise the sensitive issues that arise in relation to international cases. As has been said, Clause 41 expands Section 19 of the Terrorism Act 2000 so that the Attorney-General or Advocate General for Northern Ireland has to consent to all prosecutions in the United Kingdom for terrorism offences committed outside the United Kingdom. In Scotland, the Lord Advocate is already responsible for all prosecutions and so there is no need for a consent mechanism. Clause 41 was drafted in response to one of the recommendations in the report of the noble Lord, Lord Carlile, on the definition of terrorism. This is not another sop being given to him; it is what it is based on.
The decision of the Attorney-General, or the Advocate General for Northern Ireland, to prosecute is taken having regard to well-established principles of evidential sufficiency and public interest. Where Parliament provides for prosecutions to be commenced with the consent of the Attorney-General or the Advocate General for Northern Ireland, the decisions taken by those office holders will take account of all the relevant factors and should not be artificially fettered in the way proposed in the amendment. It would also be highly undesirable to create unnecessary opportunities for litigation regarding a decision to prosecute or not to prosecute.
I agree with the noble Baroness, Lady Hanham, that there can be no justification for any acts of terrorism and that it is inappropriate to draw any moral distinction between the different causes which inspire such activity. Apart from it being amazingly difficult, it is inappropriate. The use of serious violence to terrorise and kill the public—to kill indiscriminately—is not acceptable regardless of motivation. There cannot be good and bad terrorists.
There have been no cases of which we are aware where people have been inappropriately charged using offences provided for in terrorism legislation, or where the definition of terrorism has led to inappropriate use of specific counterterrorism powers. I therefore ask that the amendment be withdrawn.
I had not intended to intervene but some interesting points have been raised. Surely terrorism which is geared not to kill civilians—or, indeed, to kill anyone—but is merely confined to the blowing up of electricity pylons and so on, is in a totally different category from terrorism which involves widespread, or even minimal, death and injury.
We get into great difficulty when we focus on this. Is it all right, for example, to kill members of the Armed Forces in some country? But, generally, terrorism—the threat to the public, the desire and willingness to kill members of the public, families and so on—is not acceptable no matter what the cause.
I have been struck during the debate by the European-centric view of this. I am sorry that the Conservative Benches will not join in supporting a moderate amendment; my noble friend requested only an assurance from the Minister.
I refer, in particular, to that part of the amendment which relates to the Government of another country being involved in grave breaches of human rights, or where violence may have been committed which involved blowing up property. I am thinking of countries in Central America where some struggles may be caught by this legislation. So if people write magazine articles in support of a struggle that is happening there, are they really going to be prosecuted under our terrorism laws? I fail to see what right we have to judge their struggle, particularly where it has not involved any loss of life.
I regret that the Minister has not gone even so far as suggesting that these are matters that any reasonable Attorney-General would have to take into account, though I firmly believe that they are. The Government, in their reply to the report of my noble friend Lord Carlile, have recognised that the definition of terrorism under the 2000 Act may lead to the inclusion in that definition of people who would not in fact be regarded as terrorists. Paragraph 6 of that reply says:
"The definition of terrorism is broad enough to ensure that all cases of what would generally be considered terrorism are caught. The definition does however contain a number of tests that need to be met".
It goes on to set out what those tests are, and concludes:
"These tests mean that most of the actions which would generally be accepted as non-terrorist in nature fall outside the definition. It does not mean that non-terrorist activities will never fall within the definition but in such cases we rely on the police and Crown Prosecution Service in making sure that the definition is not inappropriately applied".
That is exactly what I am asking the Minister to confirm. Here is a case in which it is clear that the definition sometimes goes too wide. It is not an answer to say, "Terrorism is terrorism and should always be prosecuted".
With specific reference to African National Congress issues, no doubt the Minister will recall that during a time when the ANC was carrying out or planning what it described as its "armed struggle", there were resident and active in the United Kingdom a number of exiled members of the ANC who were openly assisting their colleagues remaining in South Africa. No one suggested at that time that they ought to be prosecuted for what they were doing. Now that it is clear that the definition of terrorism extends to activity of that kind, that needs to be modified in line with what the Government said in making sure that the definition is not inappropriately applied. I shall withdraw my amendment this day, but it may well be that we will wish to consider bringing it back on Report. I beg leave to withdraw the amendment.
I have a great deal of sympathy with the Government's position in bringing forth these amendments, and I can see that they are needed in the light of recent actions against members of the armed services. However, there are two problems with Clause 83. The first is that a person commits an offence who elicits, or attempts to elicit, information about an individual who is or has been a member of the Armed Forces. It says that the eliciting of this information must be,
"likely to be useful to a person committing or preparing an act of terrorism".
That is far too widely drawn. It is a catch-all phrase. In several circumstances that one can think of, a person may wish to elicit some information and might do so quite innocently through conversation through a social contact, and would not necessarily know that doing so was "likely to be useful".
New Section 58A(1)(b) of the 2000 Act also makes it an offence to publish or communicate any such information. Again, we believe that this provision is extremely widely drafted. Although subsection (2) of the new section allows for a defence for a person charged with an offence under this section to prove that that they had a reasonable excuse for their action, we find it to be the other way round. If you innocently commit an offence of which you are not aware, once you are charged, it can be a defence that you were not doing it for the purpose of terrorism.
On the third day of our proceedings, we talked extensively about young people's culpability in involvement in terrorism. The Minister had some sympathy with the idea that there is manipulation of young people and that they are often drawn in, as we have seen in recent terrorism trials, by those who are older and more experienced. If we left Clause 83 as widely drafted as it is, we would be catching people we did not wish to catch. They would be able to use the defence available, but it would in any effect have a hugely disruptive and grave effect on their lives.
We seek through our amendment simply to insert a provision to clarify that it would be necessary to show clear intent that the information procured or communicated would be useful to someone committing or preparing an act of terrorism. On that basis, we hope that the Minister will be sympathetic to clarifying the law in this area. I beg to move.
In contrast with the previous amendment, we support this one. As the noble Baroness has said, the clause needs tightening up if it is not to leave exposed to prosecution people who should not be exposed. I hope that the Minister will be able to say that he is treating this amendment sympathetically.
I had not intended to speak on this amendment until I heard it moved, but I am bound to say that I have some sympathy with it. It is reminiscent of debates we have had on similar subjects. The publication of this information should surely be an offence only if it is intended to be of use in exactly the language which the amendment adopts, and this is something the Minister might consider.
We are not in favour of the amendment because making such an action intended would undermine the effectiveness of the offence provided for in this new section. Section 5 of the Terrorism Act 2006 already caters for preparatory acts which are done with the intention of assisting others to commit terrorist acts. Section 58 of the Terrorism Act 2000 and the new offence provided for in proposed new Section 58A are wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists but do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism.
Importantly, I am advised that in the case of R v K, the Court of Appeal held that to commit the offence under Section 58 of the 2000 Act, the information collected or possessed needs to be such as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism, and be of a kind that is likely to provide practical assistance to terrorist organisations. We believe that similar tests will apply for the new Section 58A offence. So there should not be any concerns that, for example, a journalist publishing the names of service chiefs which are already in the public domain would be caught by this offence. But if someone said, "Sergeant so-and-so lives in this house, normally gets such-and-such a bus between here and there and uses this pub", we would be very concerned about such material.
We should also remember that the range of information covered by the new offence is narrower than the information covered by the Section 58 offence, being restricted to information about specified groups of personnel working on the front line against terrorism.
The noble Baroness, Lady Falkner, expressed concern, which I share, about young people, but the Bill has safeguards. Section 58 of the Terrorism Act and the new offence both include a statutory defence to protect those who have a reasonable excuse for their actions. To establish this defence, the defendant needs only to claim to have a reasonable excuse and it is then for the prosecution to prove, beyond reasonable doubt, that there was no such excuse. Further, the DPP must authorise prosecutions under Section 58A. Its decision will take account of the possibility of the person having a reasonable excuse for his or her actions. Therefore, safeguards are in place. It is clear that this is not information that people would normally have, but that, by putting it around, they would put someone at risk. I therefore ask the noble Baronesses to withdraw the amendment.
I am grateful to other noble Lords who have supported the amendment. I am disappointed that the Minister feels that no further clarification or tightening is needed, particularly in light of the examples that he gave, because they were precisely the kind of examples that we were concerned about in the first place; for instance, information that is published in newsletters of groups or communicated in writing—I was thinking not necessarily of journalists, but of more innocent groups and organisations that might, for example, have someone from the armed services come to speak at a social function. Before I withdraw the amendment, may I ask the Minister whether he believes that another form of words to express the same levels of intent would be satisfactory or whether he just believes that the clause as it stands under Section 58 is adequate?
The safeguards that the noble Baroness seeks are in the Bill, but I am happy to have a dialogue outside the Committee to see whether some form of words would make her feel happier. I am content that the Bill aims only at people who produce information that is clearly intended to pinpoint somebody. However, I am happy to have a discussion outside the Chamber to see whether there is a form of words that would be acceptable. As it stands, I believe that the clause is quite secure.
moved Amendment No. 129:
Schedule 7, page 95, line 30, leave out "a member of Her Majesty's Forces" and insert "—
(a) a member of Her Majesty's forces,(b) a member of any of the intelligence services, or(c) a constable,"
On Report in the Commons, we added the police and members of the security and intelligence agencies to the new offence to be inserted at Section 58A of the Terrorism Act 2000 by Clause 83. The result is that the Armed Forces, police and members of the security and intelligence agencies will all now be protected under this offence.
A corresponding consequential amendment should have been made to Schedule 8A to the 2000 Act but was not. Schedule 8A makes provision to ensure that the offence complies with the e-commerce directive in so far as it applies to internet service providers. The amendment corrects the earlier omission of this minor and consequential amendment on Report. I beg to move.
moved Amendment No. 130:
Schedule 7, page 95, line 34, at end insert—
"( ) In this paragraph "the intelligence services" means the Security Service, the Secret Intelligence Service and GCHQ (within the meaning of section 3 of the Intelligence Services Act 1994 (c. 13))."
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
Clause 84 agreed to.
Clause 85 [Control orders: powers of entry and search]:
moved Amendment No. 130A:
Clause 85, page 62, line 7, at end insert "unless ownership of the premises referred to in paragraph (b) has changed since the order requiring access to be granted was made, or other circumstances have changed such that it would no longer be within the controlled person's power to grant access."
This is a probing amendment to see whether the Minister agrees with me that, as the clause is drafted, a constable who suspects that a controlled person has absconded may force his way into that person's home or any other premises to which the controlled person has ever been required to grant access under the order. The difficulty with the proposal is that it does not foresee any point at which the premises may, for example, have changed hands; the premises may for ever be subject to this legislation, while the person who was the reason for access being granted has long since moved. Although it is hard to foresee any circumstances in which an officer would wish to enter premises that the controlled person had long since left, can the Minister assure me that the restrictions in new Section 7C(5) are tight enough to prevent the warrant being inappropriately used after it has been legitimately granted but when it no longer applies to such premises? I beg to move.
I understand the noble Baroness's intention in moving this probing amendment. There was no intention whatever to allow the police to go into properties that someone had lived in years ago and which now belong to somebody else. However, if someone has a family home that he has been living in and then gets a flat and moves there and is using both places, the police need to be able to go into both places to see whether somebody has absconded and whether there is material relating to that absconding, or whatever.
I was briefed that it was too difficult to come up with a form of words that captured the differences that the noble Baroness outlines. I assure her that we have absolutely no intention of granting the police an ability to search all sorts of premises that no longer have anything to do with them. However, on reflection, I should like to try again to see whether it is possible to find a form of words that captures that although, as it stands, it is quite clear—and we have put safeguards in place to ensure that the police will not do that. We could discuss the matter outside the Committee with my Bill team to see whether there is a different form of words. If there is not, I shall leave the drafting as it is, because I believe that it captures the essence of what we are trying to do—not to broaden the search to all sorts of premises but to allow police to go to the places that we know that the particular man or woman is using.
moved Amendment No. 131:
After Clause 88, insert the following new Clause—
"Control orders: obligation to give reasons
After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 (c. 2) insert—
"(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in section 2(1) above are made out.""
As Members of the Committee will have seen, I am the only member present from the quartet of names put down to this and subsequent amendments—that is to say, myself, the noble Earl, Lord Onslow, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs. We are all members of the Joint Committee on Human Rights and each of them apologises for the fact that they cannot be here. It has the great disadvantage that the Committee can listen to only one speech rather than four speeches on these issues. I sympathise with the Committee, which will have to bear with that with all the fortitude that it can muster.
The groupings are luxurious, in the sense that there is a series of groupings dealing with control orders. The first group is Amendments Nos. 131 and 137 to 141, and then there are separate groupings for Amendments Nos. 132 to 134, Amendments Nos. 135 and 136, and Amendment No. 142. This bundle of amendments dealing with control orders have all been tabled after the Joint Committee on Human Rights unanimously came to the conclusion that we should recommend a number of amendments to the control order regime which in our view are necessary to render it human rights compatible.
We have explored this matter in previous reports. I do not need to go through any of them. Most recently, we dealt with it in our report of
"that the Government should ensure that the judicial procedure whereby the imposition of a control order can be challenged complies with the principle of equality of arms, and also that those subjected to control orders are promptly charged with a criminal offence. Both of these concerns are addressed in the amendments we recommend".
I speak to all the amendments in a single speech to sum up the matter up as briefly as we did in our latest report. First, on priority of prosecution, we said:
"We recommend that the Prevention of Terrorism Act 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. We also recommend that the Secretary of State should be subject to an express statutory duty to review the possibility for prosecution on a regular basis, and an amendment to increase the transparency of decisions that prosecution is not possible".
That is very important because it underlines emphatically that priority should be given not to imposing control orders but to prosecuting for these most serious offences.
Then under "Deprivation of liberty", we state:
"We recommend an amendment to clarify the approach to be taken by courts when deciding whether the effect of a control order is to deprive a person of their liberty in the Article 5 ECHR sense; and an amendment to impose a 12 hour maximum limit on daily curfews imposed by control orders to make it less likely that control orders will be in breach of",
the right to liberty in Article 5. Article 5 is of course the European habeas corpus provision, and it is very important that deprivations of liberty should be no more than necessary.
Then, as regards due process, we recommend a number of amendments, all to be found in these groupings. The first is,
"to include express references to the right to a fair hearing for those subject to control orders in the Prevention of Terrorism Act 2005".
I will come back to that before I conclude. The second is,
"to create a statutory obligation for the Secretary of State to give reasons for",
making control orders. The third is,
"to require the Secretary of State to provide a summary of any material on which he intends to rely".
The fourth is,
"to allow a High Court judge to sanction communication between special advocates and controlled persons, on application by the special advocate".
The fifth is,
"to make clear that the standards of procedural protection are to be commensurate with the seriousness of the consequences for the controlee, including the standard of proof".
The sixth is,
"to allow special advocates to call expert witnesses".
Then, under "Maximum duration of control orders", we state:
"We recommend an amendment to set a statutory maximum duration of 2 years for a non-derogating control order".
I realise that much of this is technical at first sight. In reality, however, it is much more than mere lawyers' stuff. It is about fundamental principles concerned with liberty and fairness in how we deal with those subjected to the draconian regime of control orders. Members of the Committee will see in the Marshalled List, starting at Amendment No. 131, useful headings explaining which amendments do the work that I have just tried to summarise. It is extremely important that these amendments are looked at carefully and, if necessary, after we have heard from the Minister, that we reflect further on what he says about them.
I add one important point to what the Joint Committee has already explained carefully. There was last week a decision of the Court of Appeal about control orders and procedural fairness. The members of the Court of Appeal were divided, and the case is undoubtedly destined for the House of Lords. I therefore would not dream of saying anything about the merits of the case. However, matters were referred to in the dissenting speech of Lord Justice Sedley that are of sufficient general importance for me to mention them to the Committee.
All three members of the Court of Appeal were concerned with a point of natural justice. What happens if a judge, looking at material that is not shown to the person subject to the control order, comes to the view that it is an absolutely obvious case without hearing anybody speak on behalf of that person? Is it fair that he or she should decide the matter then and there, and impose the order without giving the person concerned—the detainee—the opportunity of rebutting the case against him in some form? Lord Justice Sedley said:
"It is easy to conclude that there can be no answer to a case of which you have heard only one side. There can be few practising lawyers who have not had the satisfaction of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by 10 minutes of well informed cross-examination, or convincingly explained away by the other side's testimony. Some have appeared in cases in which everybody was sure of the defendant's guilt, only for fresh evidence to emerge that makes it clear that they were wrong. As Mark Twain said, the 'difference between reality and fiction is that fiction has to be credible'. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the Bench. It reminds them that you cannot be sure of anything until all the evidence has been heard and, even then, you may be wrong".
A little later, Lord Justice Sedley continued:
"Judges are not proof against the human delusion that one has heard enough to be sure that there is no answer. They must guard themselves against it. The way in which the law ensures that they do so—not only the common law, but all the systems governed by the ECHR and many others besides—is to insist not that everything is to be known before judgment is given, but that everyone affected must have had a proper chance, which they may of course forfeit, to advance as much material as may help the tribunal in reaching a judicious conclusion".
"It seems to me that a doctrine that an otherwise unfair hearing will become fair if the material which the party affected has had no opportunity to answer is sufficiently convincing is pragmatically unsustainable. It is also constitutionally subversive because, as it seems to me, it negates the judicial function which is crucial to the control order system".
After referring to the wartime case of Liversidge v Anderson and the famous dissent of Lord Atkin, he recalled Lord Denning's comments in his memoirs about Regulation 18B, the work that Lord Denning did in Leeds when people were being detained under that regulation, and Lord Denning's attack on the system.
The judgment continued:
"There is nothing in the nature of a control order, with its potentially devastating effect on the life of the individual affected and his family, which calls for less than the maximum judicial oversight before it is confirmed. Nor, it seems to me, is the necessary rigour diluted by the fact that what has to be established is only that there are reasonable grounds to suspect involvement in terrorist-related activity. It is perfectly true that reasonable grounds to suspect something can coexist, at least in theory, with proof of the contrary, but facts have to be proved before they confound suspicion, and if a convincing explanation is offered that such facts are proved, the suspicion may cease to be reasonable".
I cannot do justice to the whole of that judgment or to the whole of the judgments in general, but I hope that the non-lawyer Members of the Committee as well as the lawyers get the drift, which is that it is extremely important to ensure that natural justice in some form really is done in practice in dealing with these control orders. We understand all the difficulties about disclosure of sensitive material and special advocates, but it is the unanimous view of the Joint Committee on Human Rights that these procedural safeguards are needed to bring the regime fully into line with our obligations under the European convention and the international covenant. As I say, I have spoken to all the relevant amendments. I beg to move.
The noble Lord, Lord Lester of Herne Hill, has moved Amendment No. 131 and spoken to all the amendments in the next four groups, which is a perfectly logical approach for him to have taken, given that the substance of what he said forms part of a jurisprudence spread over three cases earlier in the year. I hope that the Minister will forgive me if I follow the noble Lord, Lord Lester, in my approach. Rather than taking each line blow by blow, I shall deal with all the issues which fall within the next four groups of amendments.
I think it is fair to say that the landscape of control orders has been transformed by three cases this year, all of which have been decided by your Lordships' Appellate Committee. These are: JJ and others; MB and E. The question for the Government is, to what extent, if any, they ought to amend the 2005 legislation to incorporate this new jurisprudence. There is no doubt that the Joint Committee on Human Rights, admirably represented today by the noble Lord, Lord Lester of Herne Hill, feels strongly that the Act should be amended. With some qualifications, that is also our view.
The noble Lord, Lord Lester of Herne Hill, began by taking us to the issues which were raised in the case of E, which concerned what he rightly called the priority of prosecution. This is an area in which the Act is particularly weak. It requires the Secretary of State to refer himself to the police, but beyond that there is no formal set of obligations at each stage of the control order procedure to require the political arm of the constitution to communicate with those responsible for bringing prosecutions.
The point was very well put by the noble and learned Baroness, Lady Hale, in her speech in the case of E in your Lordships' House, in which she said that,
"a control order must always be seen as 'second best'. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course".
In our view, that of the noble Lord, Lord Lester, and that of the Joint Committee on Human Rights, the safeguards to ensure that prosecution comes first are inadequately represented in the Act. What is required is well set out in paragraphs 66 to 70 of the Joint Committee on Human Rights report, HL Paper 57/HC356. First, the Secretary of State should be required to get a statement from the Director of Public Prosecutions to say in terms that a prosecution is not possible in the particular circumstances of the proposed control order, and that the matter should be kept under continuing review.
Once again, the Secretary of State was found at fault in the case of E for, once a control order had been imposed, not keeping the possibility of prosecution thereafter under constant review. The report quoted with approval a statement from the Court of Appeal:
"Once it is accepted that there is a continuing duty to review ... it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful ... it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution".
No doubt the Minister will recall that in his second report the noble Lord, Lord Carlile of Berriew, particularly emphasised the inadequacy of the process of continuing review.
Secondly, there is the question of procedures, to which the noble Lord, Lord Lester, devoted a considerable part of his speech. This matter was dealt with in some detail in the Appellate Committee's judgment in MB. I recall the noble and learned Baroness the Attorney-General standing at the government Dispatch Box—it must have been in March—when the last statutory instrument came up for renewal, saying that it was very important to note that the legislation had not been found to be in breach of the European Convention on Human Rights. It was found not to be in breach only by a vigorous reading-in under the interpretation section of the Human Rights Act 1998. Otherwise, the Appellate Committee said in terms that the Act would have been in breach, in which case it would have had to make a declaration of incompatibility. The point is very well dealt with in paragraph 53 of the JCHR report, which states:
"The House of Lords in MB, however, recently held, by a majority of four to one, that the procedures contained in the PTA 2005 and the Rules of Court made under it would not be compatible with the right to a fair hearing to the extent that they could lead to the upholding of a control order where the essence of the case against the controlled person remained entirely undisclosed to him or her. In their opinion, the statutory regime could only be made compatible with the right to a fair hearing by using s. 3 of the Human Rights Act to read into the legislation additional words guaranteeing the right of the controlled person to a fair hearing".
Surely, the Government must recognise that this is an extremely unsatisfactory situation for them to find themselves in. Simply to leave the law at that would not provide the precision necessary, nor the fairness to which every citizen of this country should be entitled. It is simply not sufficient to leave the matter to be wholly dependent upon the interpretation by the House of Lords by means of Section 3(1) of the Human Rights Act 1998. Here we are also looking to the Government to provide an amendment which, if not precisely in terms of that tabled in the Marshalled List, approximates to the intention of the amendment.
The third issue dealt with by this triumvirate of cases, including JJ and others, is the question of identifying the borderline between restriction and deprivation of liberty. I freely accept that casting an amendment to deal with that problem is less easy than in the case of the other two, because although your Lordships' House found that 18 hours a day crossed the borderline, it is really not possible to assess the compliance of a control order unless one looks at all the circumstances of the case, of which the length of the curfew is only one. I note that Amendment No. 136 contains a figure of 12 hours; there is some merit in approaching the matter in those terms; but we on the opposition Benches are more hesitant about being specific about hours in such amendments than perhaps is the Joint Committee.
I urge the Government not simply to hold their ground on this, but to get to grips with what was decided in those cases and reformulate the various provisions in the 2005 Act to make them not only more human rights-compliant in terms of the convention and the Act itself, but more generally to be just fair, as the noble Lord, Lord Lester, said. Obviously, the Act relates to very serious circumstances involving terrorist threats to the security of the country; but, nevertheless, even those whom we suspect of terrorism deserve the protections of our constitution that are appropriate to the circumstances. We do not believe that those protections are in the Act at the moment and the approach of the Joint Committee on Human Rights is correct.
In supporting these amendments from our Front Bench, the Government should not think that that means we are coming round to supporting the entire regime of control orders, which we have consistently opposed, for reasons of which the Committee is well aware, which I shall not rehearse now. However, these are important amendments and, for the reasons spelt out by my noble friend Lord Lester, ably amplified by the noble Lord, Lord Kingsland, we look forward to the Minister's response.
I should make it clear that our preferred option with someone whom we suspect is a terrorist is always prosecution. If we cannot get a prosecution, because all we have is intelligence rather than pure evidence, we would go for deportation with assurances. This is the next case. Control orders are there to protect our citizens and only a very small number of them have ever been enacted. I understand why the noble Lords, Lord Lester and Lord Kingsland, approached this in a general sense, but it is probably not the way in which I should reply to the debate. I think I will have to go through these amendments in turn because clearly different lawyers have different views. The Government's lawyers have drawn different inferences and conclusions from—
Perhaps it will help the Minister if I say that I propose to move each of the amendments to give him an opportunity to reply to each of them with complete clarity.
I thank the noble Lord for that. I would much prefer that. I am stepping into dangerous territory here. For example, the noble Lord, Lord Lester, quoted only the dissenting judge regarding the Court of Appeal judgment and not the majority who disagreed. It is dangerous territory and I understand more and more why, when I was First Sea Lord and the Attorney-General gave the legality of war, I sought other opinion because, at times, there seem to be varying opinions within legal circles.
Although Lord Justice Sedley was dissenting, he was not dissenting on the point that I quoted. All members of the Court of Appeal were of the basic fairness point of view, with different nuances. We do not have to go into that now.
I apologise to the noble Lord if what I said was incorrect. I would love to go through them amendment by amendment. As we consider these to be very important issues, I have considerable responses to each one and it is important they go on the record.
Amendments Nos. 131 and 137 to 141 are all concerned with ensuring that a controlee has the right to a fair trial accorded to him under Article 6 of the European Convention on Human Rights. As noble Lords will be aware, this issue has been considered at length, including extensively by the courts. Indeed the House of Lords handed down a series of judgments on control orders in October 2007, one of which, MB, already referred to by the noble Lord, Lord Kingsland, dealt explicitly with the right to a fair trial.
In MB, the Law Lords did not say that any control order case before them had breached the right to a fair trial. But the majority view was that, in rare cases, the provisions in the 2005 Act might lead to a breach of Article 6. The Law Lords therefore applied Section 3 of the Human Rights Act to make the 2005 Act compatible with Article 6 in all cases. The Law Lords also concluded that the High Court should consider compatibility with Article 6 on a case-by-case basis. The cases before the Law Lords on this issue were referred back to the High Court.
As a result of the MB judgment, the 2005 Act is fully compatible with the European Convention on Human Rights. No further changes were required by the Law Lords. That sets the context for our discussion of these amendments. In broad terms, the Government do not think that second guessing or ignoring the Law Lords' judgment, as this group of amendments seeks to do, is either necessary or desirable.
I am sorry to interrupt, but I am very anxious that we have complete clarity across the Committee. The noble Lord, Lord Kingsland, with devastating effect, raised in his speech the issue of the principle of legal certainty: a common law principle that the citizen is entitled to know what the law is and what its limits are, especially where there is an adverse impact on the right to liberty. The noble Lord, Lord Kingsland, and the Joint Committee have said that it is not good enough to rely on a reading-in of safeguards by Law Lords in their judgments. On the face of the statute, the law should be sufficiently clear so that everyone knows what the law is and what its limits are.
That is the thrust of the speech of the noble Lord, Lord Kingsland, with which I completely agree. It is a systemic problem; it is no use saying, "We do not need to make changes because the Law Lords did this, that, or the other". The two Opposition Benches are saying to the Government: "Please make sure that the statutory scheme is clear and gives effect to what the Law Lords have required as a matter of procedural fairness".
Forgetting the detail of the amendments, surely the Minister would like to go away to think about that and see what amendments he could bring back to ensure that what the Law Lords have ruled is reflected in statute. There is an ancient English, as well as European, principle that legal certainty should be provided when there is a deprivation of liberty of the kind involved here.
As I understand it, we are talking here about giving the person details of what he is being charged with, why he is being charged and what is the case against him. Is that what we are talking about; is that legal certainty?
What we are talking about—I am dealing with the whole bunch of amendments in saying what I have—is ways of writing in the necessary procedural safeguards that the Law Lords have insisted on, using Section 3 of the Human Rights Act to do so. All that I am saying is that, as a matter of principle, surely the Government should now take away the JCHR's suggestions and the Law Lords' judgments and come back with amendments that will not be controversial, as they will reflect the law of the land as laid down by the Law Lords.
Before my noble friend responds, I wonder whether the Committee agrees that fewer interventions from the noble Lord, Lord Lester of Herne Hill, might be more beneficial to the rest of us in Committee in trying to assess the Minister's reply. We cannot get past the opening remarks from the Minister because of incessant interventions—in my view, too frequent.
For the clarity of these Benches, I do not agree at all with the noble Lord's comments, because my noble friend has just drawn from the Minister the comment, "Will the persons who will be subject to the control order be charged?". In my understanding of control orders, people are not even charged.
I have just got into my opening remarks. As I said, I have a highly complex answer here and I went through it in detail before with those in the Box. I do not want to get into toing and froing because use of language is clearly extremely important, as the noble Baroness has just shown. Those people are not charged in the formal sense, although I hope that people understood what I was referring to. That highlights exactly why I have to follow very precisely what is written here. Some of these issues are fine points of law. If I may run through my preliminary remarks and then go through each amendment, at the end of that, I will be very happy to consider and debate particular points.
There is ongoing litigation about what the judgment to which I referred means in practice, but that is about practical implementation. It does not mean that further substantive changes of principle are required. Noble Lords will be aware that in last week's Court of Appeal judgment on the right to a fair trial in a number of different cases, the majority view essentially supported the Government's position.
Amendment No. 131 obliges the Secretary of State to give as full as possible an explanation of the reasons why the individual is reasonably suspected of involvement in terrorism-related activity and why a control order is necessary to protect the public from a risk of terrorism. Currently, a control order always explains that the Government suspect that the individual is or has been involved in terrorism-related activity, and that the control order is necessary to protect the public from a risk of terrorism. After service of a control order, the individual is provided with the open case against him. Even before the Law Lords' judgment of October 2007, the starting point was that the open case must contain as much material as possible, subject only to legitimate public interest concerns. Special advocates can and do make submissions that further information should be disclosed to the individual.
I should add that, subject to public interest and Article 6 considerations, the court rules underlying control order proceedings require disclosure of all relevant material. That effectively goes beyond providing reasons to providing underlying material. That includes providing any material that undermines the Secretary of State's case or assists the controlees' case, as well as material helpful to the Secretary of State. Moreover, the duty to disclose relevant material is a continuous obligation that remains in place throughout the hearings. Thus, the individual is already given as full an explanation as possible of the reasons for the imposition of a control order. Any requirement to place as full as possible reasons in the control order is an unnecessary bureaucratic duplication, given that existing material—in particular, the open case—already fulfils that function.
In Article 6 terms, following the MB judgment, as part of the review of each control order, the High Court must consider compatibility with Article 6. A control order hearing could therefore never conclude in a way incompatible with Article 6, including in relation to disclosure of reasons for the making of the control order.
To the extent that the amendment simply requires that existing practice continues, it is entirely nugatory. To the extent that the amendment is interpreted as requiring something beyond existing practice, it would be highly damaging to the public interest, reducing the Secretary of State's ability to protect the public from terrorism. That is because the Secretary of State already puts in open court what she can. Anything further would require providing an explanation that would include disclosure of sensitive material against the public interest. In such cases, the Secretary of State, taking the advice of the agencies, would not agree to provide the material, and the case would have to be dropped.
Amendment No. 137 amends the 2005 Act to reflect the read down by the Law Lords in MB. Subsections (2) and (3) add in the exact words already effectively added to the Act by the MB judgment and so are redundant.
Subsection (1) was not part of the read down by the House of Lords and is not necessary. As a result of the read down, a judge will not be put in a position where he has to uphold a control order where the proceedings have not been compatible with Article 6. If the amendment is intended to go beyond the MB judgment, making it the court's job to quash the order without first putting the Secretary of State to her election, the amendment would be undesirable as damaging to the public interest, not merely unnecessary.
Subsection (4) reflects the wording included within the asset-freezing provisions of the Bill in Clause 71(6). This is also unnecessary. This provision in Clause 71(6) is included in the asset-freezing clauses instead of the words of the MB read down to give effect to the MBjudgment in legislation to which the judgment did not directly apply but which makes provision for a comparable situation. There is no need to include the wording of Clause 71(6) in the 2005 Act on top of the MB read down, which already makes the position clear for the 2005 Act. That would be unnecessary duplication.
The amendment highlights one element of the Government's response that is common to a number of amendments in the group, and to amendments in other groupings. As noble Lords will be well aware, we operate under a common law system. It is widely accepted that public authorities—among others—are bound not just by statute, but by case law. There is therefore no need to legislate to reflect judgments handed down by the courts. Indeed—and on a related point—as noble Lords will also know, it is considered bad practice to legislate unnecessarily.
There is an additional reason why this amendment is unnecessary. It undermines the purpose of Section 3 of Human Rights Act. There would have been no need for the Government or Parliament to make provision for the courts to read down legislation if the intention had been that any adverse court judgment on human rights would require legislative amendment.
As an aside, even if one were minded to legislate—which, as I have already made clear, the Government are not—it would be odd to legislate at this stage, when there is ongoing litigation on the point. The Court of Appeal cases are likely to be considered by the Lords.
Lastly, in general terms, legislating for a read down also carries an unnecessary risk of unintended consequences, because the courts would then be required to interpret what was meant by the new legislation and operate to that. That is different from interpreting the existing Act as read down, and could lead to different outcomes. Although that outcome may not be likely in this context, it cannot be ruled out. Moreover, if it happened there would in effect be two systems in operation: one for new controlees, and one for existing controlees. The amendment is therefore not only unnecessary but potentially damaging to the public interest. It is simply wrong to suggest that legislating would automatically clarify the issue further.
Amendment No. 138 would oblige the Secretary of State to provide a gist of all material to the controlee. This would be unnecessary and potentially damaging to the public interest for reasons that are similar to our objections to Amendment No. 131. As I explained, the individual is given as much material as possible, subject only to legitimate public interest concerns. If material could not be provided, consideration must be given to whether a summary of that material can be provided. The court, not the Secretary of State, determines whether material or a summary should be withheld.
If the court considers that disclosure of material would be contrary to the public interest but that such material must in any event be disclosed in order for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. This means that the Secretary of State is given a choice whether to disclose the information or to withdraw it from the case. If the latter, the case proceeds without that material. Either way, the case continues in a manner compliant with Article 6. If the material is withdrawn from the case, the judge must consider whether it was so crucial to the Secretary of State's case of reasonable suspicion or necessity that, in the absence of such evidence, the decision on the order is flawed and so should be quashed.
Crucially, however, the final decision on whether to use the material remains with the Secretary of State. The rules governing control order proceedings are designed to ensure that the public interest is properly safeguarded. Introducing a requirement always to provide a summary is not appropriate. It would expose sensitive material, meaning that the Secretary of State, taking the advice of the agencies, would not agree to provide the material or reasons and the case would have to be dropped, thus exposing the public to an unnecessary risk of terrorism. Thus the judgment in MB did not require the provision of a gist to be necessary in every case to provide individuals with a substantial measure of procedural justice, despite this being the controlees' explicit submission in the Law Lords hearing. Although litigation on this issue is ongoing, the majority conclusion in last week's Court of Appeal judgment was that:
"There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed".
In any case, compliance with Article 6 is exclusively concerned with disclosure. The proceedings as a whole must be assessed for compliance with Article 6. For example, proceedings could be Article 6-compliant because of the contribution of the special advocates, even where disclosure has been very limited. I should add that, on a practical level, an amendment along these lines would not necessarily further clarify Article 6. It could lead to further litigation on how a gist or a summary should be defined, and whether that definition had been met in any given case.
Amendment No. 139 would make provision for special advocates to communicate with a controlee after the service of closed material without having to give notice to the Secretary of State. The current position allows the special advocate to receive written instructions from the individual after he has seen the closed material. A special advocate can also communicate with the individual after he has seen the material, provided that it is with the permission of the High Court. The special advocate must notify the Secretary of State when seeking permission, giving the Secretary of State time to object to the communication if she thinks it necessary to the public interest, although the final decision is that of the court. In a number of cases, the special advocate has obtained permission to communicate legal points and factual matters to the controlee and take instructions from the controlee on specific issues.
The Government remain of the view that this change would be inappropriate and potentially damaging to the public interest. The current position, including giving notice to the Secretary of State, is an appropriate safeguard to ensure that sensitive sources are protected and the security of the UK is not compromised. The courts cannot safely determine the potential damage to national security without having heard any representations from the Secretary of State and from the originators of the material, who may be aware of wider material considerations that are not apparent on the face of the closed case.
The problem becomes even more immediately obvious when considering circumstances in which judges new to national security matters are presiding. How would they sensibly take a decision without any advice from the owners of the material? Indeed, it would be unprecedented to have a procedure by which matters bearing on national security were to be decided in the absence of the relevant Secretary of State. No prejudice is caused by putting the Secretary of State on notice if permission is sought. The suggestion that the Secretary of State is at an advantage in seeing the questions that the special advocates wish to put to the controlled person is overstated. All that the questions will indicate is what will already be apparent to the Secretary of State; that is, areas of the closed case where the special advocates would be assisted by further information from the controlled person.
I emphasise that if the court grants permission, the special advocate's subsequent communication with the controlee remains confidential. There is no foundation to the claim that the Secretary of State might gain an advantage if a question was asked and no information was received in response and this was subsequently deployed in the proceedings. The courts have already it made clear that they will not draw a negative inference from a controlee's silence.
As with all the other amendments proposed by the JCHR, Amendment No. 139 was not a requirement of the Law Lords' judgment in MB. Nor was it a requirement of last week's Court of Appeal judgment, despite explicit argument to this effect. The majority view was that,
"the special advocates seem to us to be too gloomy ... It is clear that there is in practice an ongoing dialogue between the special advocates and the representatives of the"—
Secretary of State—
"in every case which is very encouraging ... it seems likely to us that, with an appropriately flexible attitude on the part of the"—
Secretary of State—
"it will be possible to afford the controlee with an appropriate measure of procedural protection".
Lastly, the court is required by control-order proceeding rules to ensure that information is not disclosed contrary to the public interest. If it authorised a communication that was damaging, it would be in breach of the rules. The court could in practice be unwilling to permit such communications without the Secretary of State first having had the opportunity to make representations to ensure that it did not disclose material that it would be contrary to the public interest to disclose.
Amendment No. 140 would provide that in control order hearings, the controlee is,
"entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person".
The whole purpose of the MB hearing was to decide whether the procedural protections in the Prevention of Terrorism Act 2005 were sufficient. As a result of the Law Lords' judgment in MB, the 2005 Act is fully compatible with convention rights. The procedural protections in the Act, as read down by MB, are thus by definition commensurate with the gravity of the potential consequences to the controlee of the order.
The argument made by the controlees during the Law Lords hearing—that a control order was in effect a criminal charge and so commensurate criminal protections should apply—was explicitly rejected by the Law Lords. Moreover, as I have already made clear, the Government already disclose to the controlee all the material that they can. The amendment was not a requirement of the MB judgment, and is unnecessary and potentially damaging to the public interest.
Amendment No. 141 would make provision for special advocates to call expert witnesses. This is not a matter for primary legislation. Any amendment would more appropriately be to control-order proceeding rules. Regardless of that, the amendment was not a requirement of the judgment in MB. It is unnecessary not only for that reason but because in principle it is already open to those at hearings, including special advocates, to apply to the court to call expert witnesses. However, the Government are minded to ask the relevant bodies making rules of court to amend the control-order proceeding rules in due course to make it explicit that special advocates can cross-examine witnesses and adduce evidence. This would bring this element of the rules into line with the SIAC rules, which have already been amended in this way.
That said, there would still be significant practical difficulties to overcome in special advocates questioning an expert specifically on closed material. Either the expert would need to have developed vetting security clearance—an expensive and time-consuming process that would also broaden the closed environment and thus make it harder to obtain consent to use the closed material—or the questions would need to be in open but posed after the notification of the Secretary of State. More generally, it is hard to see who the expert witnesses in closed material would be and what value they could add to the proceedings. That is why the Security Service provides training to special advocates to enable them to understand and analyse the closed evidence that is disclosed to them and thus to make arguments of the kind that would ordinarily be assisted by expert witnesses. Moreover, during hearings, both the special advocate and the judge always have an opportunity to cross-examine a Security Service officer extensively. These ensure that in this regard, too, the controlee always receives the substantial measure of procedural justice to which they are entitled.
In conclusion, the Government do not agree with Amendments Nos. 131 and 137 to 141. At best, they would be unnecessary; at worst, they would be damaging to the public interest. None of them was required by the highest court in the land, even though some of the points were explicitly argued for in front of the Law Lords.
I am very grateful to the Minister and thank him for a full speech on all the amendments. It was much fuller than my opening speech, which, I am afraid, taxed the patience of at least one member of the Committee. They will have to bear just a few moments more of me before I sit down.
The Joint Committee on Human Rights will need to carefully consider everything the Minister has said before deciding what to recommend to the House on Report. It is not normally appreciated that the Joint Committee gives both Houses independent legal advice on compatibility with the European Convention on Human Rights that is not available to Parliament in any other way. We hope, therefore, to do a proper job in responding to the Minister's full account.
I agree with the Minister's summary of the majority decision of the Court of Appeal. What needs to be added, however, is that that court gave a postscript in paragraph 105 of the judgment, in which it said:
"This court rarely gives permission to appeal to the House of Lords. However, the approach to be adopted to hearings under Section 3(10) where the SSHD seeks to avoid open disclosure of relevant material to a controlee under a non-derogating control order, is a matter of general public importance. While we have tried to interpret the views of the majority in NB and AF there is undoubted scope for argument on the question whether our interpretation is correct. While we will consider submissions to the contrary, we have concluded that it would be in the public interest to give permission to appeal to the House of Lords in AE, AF and AN on all Article 6 related issues but not otherwise".
I remind the Minister of that because it is perfectly clear that, whatever view the Home Office and Ministers may take of the complex legal position, even the majority in the Court of Appeal reached their decision with sufficient hesitation to invite the House of Lords to reconsider the whole of this.
Although one could say "Let's wait and see" and, no doubt, have yet another Bill once all that has been decided, I agree with the noble Lord, Lord Kingsland, that it would be very sensible for the Government to write into this Bill whatever procedural safeguards flow from the various decisions of the House of Lords, in the interests of reasonable legal certainty.
I thank the noble Lord, Lord Kingsland, for his wholly brilliant speech, in which he made the points that I sought to make much better than I have done.
The Minister's response included the extraordinary suggestion that the approach put forward by the opposition parties and the Joint Committee on Human Rights was somehow incompatible with Section 3 of the Human Rights Act, which requires judges to read in safeguards where it is possible to do so to save a statute from being held to be incompatible with the European Convention on Human Rights.
I think that I can say that I am one of the architects of the Human Rights Act. It is wholly wrong to think that, once the judges have done their interpretative job under Section 3, that is the end of the matter for Parliament. On the contrary, once the judges have done their job of reading in safeguards, it is the job of government and Parliament to see whether what the courts have done can be properly translated into statutory form for the benefit of users of the legal system.
I very much hope that that particular heresy will not be repeated. We are concerned that the three branches of government—the judiciary, the executive and the legislature—should act in co-operation, in the sense that each has its own function but all strive to secure compatibility with our basic rights and freedoms. It is very important, however, that the Government should not, once the judges have read in safeguards, say that the matter is ended and that they will not consent to Parliament putting the legislation into proper form. That is my bad summary of one of the points that the noble Lord, Lord Kingsland, made.
Having said all that, we will carefully consider the Minister's speech and respond as soon as possible. I beg leave to withdraw the amendment.
moved Amendment No. 132:
After Clause 88, insert the following new Clause—
"Control orders: pre-conditions
In paragraph (b) of section 2(1) of the Prevention of Terrorism Act 2005 (c. 2), at the end insert "; and
(c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.""
I thank the noble Lord for his comments. Certainly I do not want to commit any heresies; I will talk to my team about that. During this debate I have learnt a great deal about areas of legal process that I did not think I would ever have to know about. I reinforce that we take the JCHR very seriously. I do not want anything to create the feeling that we do not. I know that there are very deep feelings about this.
I have another very long speech on these amendments, which I am very happy to make. I could let noble Lords see the response so that they can consider it in terms of the JCHR, but I am very happy to make the speech, as I insisted with my Box that I had very detailed reasons for not accepting the amendments. I will take noble Lords' views on this.
I congratulate the Minister on his astonishing legislative stamina. I had thought that we had heard all the components of the various speeches he had prepared in response to a number of amendments. I, for one, would be perfectly happy to read the rest in written form rather than listen to the noble Lord—not that he does not have a sonorous mode of delivery.
I wholly endorse what the noble Lord, Lord Lester, said about the context in which these amendments have been tabled. In dealing with each amendment, the Minister mentioned on many occasions that they were against the public interest. I do not think that the Joint Committee would ever have tabled an amendment unless it thought it was in the public interest. I would not want the Minister to think that the committee was thinking of anything other than the public good.
I share the astonishment of the noble Lord, Lord Lester, that every amendment should have been given the same heave-ho, if I may use a nautical term. I myself think that some are better than others, but I think that two or three are essential for the statute book. The Minister can be in no doubt that, once we have read the rest of his speech and considered what to do before Report, we will come back to these issues.
I am about to say something extremely unpopular, but I think that I need to say it. It would be better if the Minister gave his speech, for the reason that we are not a club—well, not only a club—and it is quite important for it to go on the record so that those who cannot be here have the benefit of looking at it. I am sorry that I have to say that, but, since the Minister and his officials have taken the trouble to produce full answers, it is better that we hear them.
Among the choice of evils, I am in favour of the control order regime. I fully understand, as I think does the Committee, the problems about closed hearings, public interest immunity, the need for secrecy and the special advocate procedure. We are not just taking an irresponsible position, which I know the Minister appreciates. However, I should be grateful if he would respond. Obviously, any Member of the Committee is free to leave during his response, but I will listen with great interest.
Although it may be wearying for the Committee, for those of who are not experts or lawyers, interventions during the Minister's long and complex reply, which may be hard to take on board, are sometimes very helpful. This is Committee stage, so I hope that Members of the Committee, with their particular expertise, will not feel constrained from elucidating certain points.
I thank the noble Lord, Lord Lester, for making those points. I am glad that he supports control orders, which I have to say are nowhere near a preferred option. The Government would be much happier if there was another way. I am probably paraphrasing when I say that it is the best of a bad job. It is not the option that one would like to use, but it is necessary for public safety. I also take the point about having something in the Bill to take into account an agreed view on some of these serious and major issues of law. If we look at that, perhaps it can be taken account of beyond here.
Having asked my team to look at each amendment and to say why they felt that it was wrong, they have worked hard to do that. I have already said that our preferred approach is prosecution, but there are a number of robust safeguards. First, there is consideration of the prospects for prosecution before a control order is imposed. Under Section 8(2) of the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. In turn, under Section 8(5) of the Act, the police must then consult the Crown Prosecution Service.
I emphasise that this consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the CPS. The position is set out in a letter from the police to the Home Office. It is laid before the High Court as part of the court's review of each order. The letter explains the conclusion that the police, in consultation with the relevant prosecuting authority, have reached and how it was arrived at. This information is available to the controlee.
The second key safeguard concerns the ongoing consideration of prosecution. Under subsections (4) and (5) of Section 8 of the 2005 Act, the duty of keeping the prospects of prosecution under review is on the chief officer of the police force, who must consult the CPS as appropriate.
The third key safeguard is fulfilled by the control order review group. This group, consisting of law enforcement and intelligence agencies and the Home Office, formally reviews the prospects of prosecution of controlees on a quarterly basis. Closed and open records of this consideration are laid before the High Court as part of the court's review of each control order.
The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This was reflected in the court judgments in the case of E, where the High Court concluded that it should quash a control order because the prospects of prosecution had not been kept properly under review, meaning that the test of necessity was not met. This was overturned by the Court of Appeal, but on the basis that in this case the failings in relation to review would not have made a practical difference—that is, in reality prosecution was still not possible—rather than because such a remedy was necessarily inappropriate if the failure would have made a difference.
Those four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, wherever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the House of Lords.
The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time the control order was made there was, and continued to be, no realistic prospect of prosecution. Moreover, since control orders are designed to prevent, restrict or disrupt individuals' involvement in terrorism-related activity, it also arguably indicates that the control order against them has been successful in disrupting their terrorism-related activity. Certainly, that assessment is made by the agencies.
Amendment No. 132 proposes that non-urgent control orders could be imposed only if the DPP has certified that there is no reasonable prospect of successful prosecution. First, I want to query the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the Crown Prosecution Service is to prosecute suspected terrorists. This amendment rather supposes that the opposite is the case, and that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no basis for that assumption: indeed, more than that, it is counterintuitive. That in itself should lead Members of the Committee to question the necessity of this amendment.
There are a number of reasons why the Government oppose this amendment. The Law Lords scrutinised this matter at length and concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were "strong practical reasons" for the current approach and that changes would have the,
"potential to emasculate what is clearly intended to be an effective procedure".
As I explained earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS, even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less its results, is rightly not a condition precedent of making an order. There are good reasons for this. Providing certification by the DPP, as the amendment proposes, may not be practicable before the making of an order.
Amendment No. 132 makes an exception for urgent control orders to try to address the urgency point. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are principled and practical reasons for this, in addition to the issue of urgency. First, the amendment would undermine the constitutional position. It would effectively give the Director of Public Prosecutions a veto over the Secretary of State's decision to impose a control order. This clearly is inappropriate, as such decisions are properly a national security matter.
Secondly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. For example, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if evidence is available that may be sufficient to prosecute; for example, a prosecution could bring into the public domain a valuable intelligence gathering technique, reducing its future efficacy. Another example might be that prosecution of a particular individual for a particular offence could damage a more complex, ongoing investigation of that individual and a wider group of individuals. If that individual is already aware of the law enforcement agencies' interest in him, imposing a control order would not alert him to the wider investigation, and that information could be protected in control order proceedings. But a prosecution for a particular offence could well alert him and the wider group to the ongoing wider investigation. The information could not be protected as in control order proceedings as it would probably form the evidence on which he was charged. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element.
Thirdly, it could leave a public protection gap. A control order may be necessary to protect the public from a risk of terrorism posed by an individual even though prosecution of that individual is possible. For example, an individual may be on bail pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions a judge would lawfully be able to impose on the individual. In those circumstances a control order might be required in the interim to manage that risk.
Fourthly, it would be resource intensive, does not take account of operational realities and would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. Providing an answer to whether an individual can be prosecuted is a much longer and more complex task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, in circumstances where the national security case meant that a certificate could not be waited for any longer. This would mean that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply.
Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck.
Amendment No. 133 deals with the ongoing review of the prospects for prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) provides that the Secretary of State should ensure that the prospects for prosecution are reviewed every quarter. This is inappropriate. It is important that we do not undermine the independent role of the CPS and the police. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine its role. The Act reflects this constitutional position. Nor would it make organisational sense to require the Secretary of State to "ensure" the actions of a department not under her supervision or control—the CPS is independent of the Secretary of State. Under Section 8(4) and (5) of the 2005 Act there is already a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period the control order is in force and to consult the CPS as appropriate.
Proposed new subsection (6A)(a) is unnecessary, as are proposed new paragraphs (b) and (c). The statutory obligations of the Act, combined with court judgments, already deliver the intention behind the amendment. The courts have confirmed that the Secretary of State must periodically consult the police on the prospects of prosecution and do what she can to ensure that the police's consideration is meaningful by providing any relevant information available to her to the police. This was described by the Court of Appeal as,
"a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review".
This, though, is not the same as a duty on the Secretary of State to ensure that the prospects of prosecution are kept under review.
As I made clear in relation to the previous group of amendments on the right to a fair trial, we operate under a common-law system and it is widely accepted that public authorities, among others, are bound not just by statute, but by case law. There is therefore no need to legislate on these latter points. Indeed, it is considered bad practice to legislate unnecessarily. Moreover, the Home Office formally checks the position in relation to prosecution at the quarterly CORG meetings. Amendment No. 133 is therefore neither necessary nor desirable. The courts, including the House of Lords, have considered this point at length. They confirmed the extent of the Secretary of State's responsibilities on this matter and that no changes to this section of the Act were required.
Amendment No. 134 proposes that if there are no realistic prospects for prosecution of a controlee, the chief officer of police must provide reasons for this view both to the Secretary of State and, so far as is not contrary to the public interest, to the controlee. Neither of these proposals is appropriate or necessary. As I stated earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution, and the police are in turn obliged to consult the CPS. The police write a letter to the Home Office setting out the prospects for prosecution and explaining how decisions as to prosecution were arrived at.
Following recommendations from the independent reviewer of counterterrorism legislation, the noble Lord, Lord Carlile of Berriew, the police and the CPS have reviewed the content of the letters sent to the Home Office by the police. The letters now include more detail than previously, but it would not be appropriate to go any further. There is no need to undermine the constitutional independence of the CPS and the police by requiring them to include further justification in the material sent to the Secretary of State. The CPS is an independent legal body. It is not appropriate for the advice given to be scrutinised or second-guessed by others, including the Secretary of State, because the decision whether to prosecute or not is an independent prosecutorial decision for the CPS. Nor is it necessary; what the High Court and indeed the Secretary of State and the individual need to know is that the prospect of prosecution has been considered.
The letter is laid before the High Court as part of its review of the control order, and is thus available to the controlee as part of the court proceedings. Providing any further information on the reasons for not proceeding with the prosecution of a particular individual to that individual may well be against the public interest in all circumstances, rendering this element of the proposal nugatory. It would risk prejudicing future prosecutions because it would reveal the evidential gaps in the investigation to the controlee and could give that person an opportunity to frustrate the investigation so that no prosecution ensues. It would be inappropriate to disclose to the controlee advice given by the CPS to the police in these circumstances, and it may risk breaching current law if some of the information is based on intercept. It would also be highly unusual. In control order cases where there is ongoing review of the prospects of prosecution, it is perhaps slightly contradictory to require the giving of "definitive" reasons to the controlee as to why he has not been prosecuted. Lastly, again, the House of Lords judgment in E did not require any changes to this section.
In short, robust safeguards are already in place to ensure that the prospects of prosecution for current or prospective controlees are kept under regular, rigorous review, with appropriate consultation. The reasons for each decision are laid before the court and are available to the controlled individual. Amendments Nos. 132 to 134 are therefore either unnecessary, as the proposals are already in place, or damaging, as they would undermine the independent role of the police and the CPS. None of the amendments is required by the House of Lords judgment in E. For these reasons, the Government are firmly against these amendments and I hope that the noble Lord will not press them.
Along, I am sure, with the rest of the House, I am extremely grateful to the noble Lord for that extraordinarily full and interesting explanation. I learnt a great deal and I am sure that the whole of his speech will need to be carefully considered. I thank the Minister and I beg leave to withdraw the amendment.
moved Amendment No. 136:
After Clause 88, insert the following new Clause—
"Control orders: maximum limit on daily curfews
After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 (c. 2) insert—
"(5A) The duration of any prohibition or restriction on the controlled person's movements shall not exceed 12 hours in any 24 hour period.""
I wish to give the Minister an opportunity to add to his comments if he wishes to do so. I beg to move.
Amendment No. 136 poses a distinct threat to the ability of the Government to protect the public from terrorism. It seeks to impose a maximum 12-hour limit on a curfew that can be included in a control order. It is argued that this will make it less likely that control orders will be found to be in breach of Article 5. But the position in terms of the length of curfew that would be in breach of Article 5 is now clear following the House of Lords consideration of the issue. By a 3:2 majority, an 18-hour curfew was found to be in breach of Article 5. From our point of view, this was a disappointing outcome in terms of public protection. However, one Law Lord who found against 18 hours did provide helpful clarity on where the boundary actually lies. He explicitly said,
"rather than leave the Secretary of State guessing as to the precise point at which control orders will be held vulnerable to Article 5 challenges, I state that for my part I would regard the acceptable limit to be 16 hours".
While I know that the Joint Committee regards this as a "slender legal basis" for imposing 16-hour curfews, the Government do not agree that that is a fair representation of the position, given that as two other judges believed that 18-hour curfews did not deprive individuals of their liberty, effectively three Law Lords gave clear support to 16 hours.
In addition, their Lordships unanimously agreed that a 14-hour curfew did not represent a deprivation of liberty. The suggestion that a 12-hour curfew is the maximum that can be imposed without depriving an individual of his liberty is therefore not credible. It is inconsistent for noble Lords to argue the importance of judicial oversight but then to ignore the courts, and in this case the highest court of the land, where the judgment of the courts does not accord with their own view.
What is clear is that the approach taken by the courts to interpreting deprivation of liberty is case-specific and carefully nuanced. In last week's Court of Appeal judgment on various control order matters, a 16-hour curfew was upheld. However, there has also been a case where a 16-hour curfew was not upheld in the High Court in the context of the circumstances of that individual. The Government are appealing that decision.
The concerns I outlined in addressing other amendments relating to the dangers of legislating with regard to what is meant by a deprivation of liberty are potentially relevant in relation to this amendment, too. The JCHR also suggests that the Government need to provide evidence of the significant damage done to the public's protection against terrorism while shorter curfews were in place. That is unrealistic. In any event, it is not the right way of looking at the issue. The key is the degree of protection that the curfew provides. In some cases, a curfew of 12 hours or less is sufficient to meet the risk posed by the individual. That is reflected in the orders currently in place and in the most recent report of the noble Lord, Lord Carlile, on the operation of the 2005 Act. But in others a 12-hour curfew will not provide the necessary assurance. That is why we have in place a number of curfews set at 14 and 16 hours. These take account of the national security case against each individual concerned and the behaviour that the curfew is seeking to restrict. In short, the obligations imposed are rightly tailored to meet the risk posed by the individual. To restrict the ability of the Government to tailor obligations to the risk posed by individuals within the clear framework now established by our courts would certainly not be in the interests of security.
On a common-sense level, it is clear that a 12-hour curfew is not as effective as a 16-hour curfew against someone who is, for example, trying to make a certain communication. Control orders are designed to help manage the risk posed by suspected terrorists but, as the Committee is well aware, they cannot eliminate that risk entirely.
I am grateful to the Minister. I should like to say how helpful these answers are and what a good process this is. I cannot imagine any other legislative body in the world where this process would be carried out in this way. As I listen to the Minister praising and relying upon the approach of the courts to these problems, I look forward to his speeches and those of the Home Secretary in which they rebuke the red-top newspapers for constantly attacking both the Human Rights Act and the judiciary when we should be grateful to the judiciary for the careful way in which it has interpreted and applied the law. All of the points that have been made will be carefully considered. I beg leave to withdraw the amendment.
moved Amendment No. 137:
After Clause 88, insert the following new Clause—
"Control orders: right to a fair hearing
(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 (c. 2) insert "except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 insert "except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 insert "except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(4) After paragraph 4(5) of the Schedule to the Prevention of Terrorism Act 2005 insert—
"(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights.""
I think I addressed Amendment No. 137 when I spoke to Amendments Nos. 138, 139, 140 and 141.
In which case, I beg leave to withdraw the amendment.
moved Amendment No. 142:
After Clause 88, insert the following new Clause—
"Control orders: maximum duration
After section 3 of the Prevention of Terrorism Act 2005 (c. 2) insert—
"3A Duration of non-derogating control orders
A non-derogating control order ceases to have effect at the end of the period of two years from the date on which it was made, unless there are exceptional circumstances justifying its renewal.""
Amendment No. 142 proposes that no control order should be allowed to last for more than two years other than in exceptional circumstances. This was a recommendation originally made by the noble Lord, Lord Carlile. I appreciate the broad concern behind the amendment that control orders may be applied indefinitely. Clearly that is not something that one wants and is unfounded
My first point in responding is that the Government agree that control orders should be imposed for as short a time as possible commensurate with the risk posed by each individual. There are a number of safeguards in place. First, the legislation requires that every control order renewed by the Home Secretary must remain necessary to protect the public from terrorism, and its obligations must be necessary for purposes connected with the preventing or restricting of involvement in terrorism-related activity.
Secondly, the decision to renew a control order can be appealed by the controlee and the High Court must agree that these tests have been met. This is in addition to the automatic review of the original order. Each control order is therefore subject to extensive, rigorous judicial scrutiny. As the Committee will know, the courts are not afraid to quash control orders. It is a good thing that they are not.
Thirdly, all control orders are subject to regular and rigorous internal assessment, including formal review every quarter by the control order review group. Consideration of exit strategies is an integral part of these quarterly reviews. These safeguards ensure that control orders remain in place only where it is necessary and proportionate to do so. The test of necessity is already a high hurdle for the renewal of an order and is a test that is well understood and rigorously applied. I hope the Committee will indulge me in repeating that point: a control order can be renewed only where it is necessary to do so. At any appeal against renewal of the control order by the controlee, the High Court will consider this issue. This provides sufficient protection to an individual on its own. A new provision that includes a test of exceptional circumstances does not add any value to the existing test and, in any case, would lead to greater legal uncertainty as there would be litigation over its meaning.
The second broad point relates to the practical position, which is that the Government continue to work hard to identify exit strategies for every control order case. This consideration of exit strategies is not only a theoretical exercise. As we have made clear, exit strategies have been implemented for a number of individuals subject to control orders. In nine cases a control order was no longer necessary as it was possible to instigate deportation proceedings because of the development of a Memorandum of Understanding with the relevant country. For four individuals, the control order was revoked. In these cases the decision was taken because the necessity test could no longer be satisfied. This does not mean that there was no justification for making the order in the first place but acknowledges that the passage of time and the impact of obligations in the order on an individual may alter the position. For similar reasons, two further cases were not renewed.
Since the control order legislation came into effect just over three years ago, only 38 individuals have ever been subject to control orders and there are currently 16 in force. Of those currently subject to a control order, one has been subject to an order for less than six months and another seven have not yet reached the 12-month point. At the other end of the spectrum, one individual has been subject to an order since the legislation took effect—just over three years.
The third broad point relates to the national security implications of the amendment. While we think it right and proper that the case for renewing a control order should be looked at very carefully and be subject to judicial scrutiny as necessary, we do not accept that there should be an assumed arbitrary end date for each control order. In some cases a period of less than two years on a control order will be sufficient to mitigate the risk posed, but experience to date suggests that in other cases the arguments remain sufficiently compelling at the two-year point, and even the three-year point, to require renewal in the interests of protecting the public. That is our primary concern. The application of an exceptional-circumstances rule would not be helpful in this context.
Indeed, we need to be careful about assuming that individuals no longer pose a threat after a defined and relatively short period. Each order addresses individual risk. If it is necessary and proportionate to extend a control order beyond two years to protect the public from terrorism, it is the Government's responsibility to do so. A definite end date to every control order would also mean that the individuals subject to them could simply disengage from involvement in terrorism-related activity on the basis that they know they could re-engage at the end of that period. The near certainty of a two-year limitation would encourage such behaviour in a way that the current provisions do not.
While I understand the concerns that have been expressed—and, indeed, to an extent, share them—I cannot agree with the amendment.
This is the last of the amendments that have been tabled and moved on behalf of the Joint Committee on Human Rights. I thank the Minister for his answer. More than that, I thank him and his advisers for the outstanding care that has been taken to respond to the points raised by the Joint Committee on Human Rights. To return the compliment, I am sure that the committee will review what the Minister has said in response to this and the other amendments with the same care and respond, I hope, in a suitable way. I thank the Committee for its patience in allowing this procedure to take place in this way. Having heard the Minister, it is important that it was not dealt with by correspondence among a privileged few so that the wider public could not listen, read or understand all the arguments that have been put forward. On that basis, I beg leave to withdraw the amendment.
moved Amendment No. 142A:
After Clause 97, insert the following new Clause—
(1) The Secretary of State shall, within three months of the day on which this Act is passed, report on the progress of the implementation committee set up following the Privy Council Review of intercept as evidence.
(2) The Secretary of State shall, within six months of the report of the implementation committee, bring forward legislation to implement the recommendations of the Privy Council Review of intercept as evidence."
Given the hour, I shall endeavour to be brief. These are probing amendments concerning intercept evidence, but ones that I hope the Government will feel able to accept. In January this year, the report of the Privy Council review of intercept evidence, which was chaired by Sir John Chilcot, was published. When the review was announced, the Prime Minister said that he,
"favoured the principle of using intercept material as evidence in criminal cases—if—but only if—a way can be found to do so while protecting the higher interests of national security".
The review concluded that it should be possible to find a way to use intercept evidence in a manner that protected the interests of national security. It set out nine conditions to that effect, and recommended that further extensive work be done to see if those conditions could be met. The Government accepted that. At the same time the Prime Minister said:
"The Chilcot team have made it clear to me that the necessary work should be led by an implementation team within government; and that that team should move ahead comprehensively and quickly".
It is that particular point that I am interested in.
The Prime Minister announced that an implementation team would be formed within Government, overseen by a steering group and advised by a cross-party group of privy counsellors to produce a detailed implementation plan. Since then the Government have not, at least on their own initiative, updated your Lordships' House or indeed another place on the progress of that implementation team. In response to a Written Question from me in July the Minister said:
"A work programme has been drawn up and endorsed by the steering group ... This is now being taken forward. Subject to the Chilcot tests being met, we would hope to bring forward legislation in due course".—[Hansard, 22/7/08; col. WA 267.]
I suppose the question is: how due is that course?
The first part of the amendment would require the Government to update your Lordships' House and another place on the progress of the implementation team within three months of the Bill receiving Royal Assent. Indeed, I would hope that that period could be reduced. Perhaps the Government will now take it upon themselves to keep your Lordships' House updated on the work of the implementation committee. Will the Minister place in the Library of the House a copy of the work programme referred to in his Answer? It would be helpful to know what he reckons the timetable is and when we might be likely to see the committee's report, and it would certainly be helpful to see the guidance the committee has been given.
The second part would require the Government to bring forward legislation to implement the recommendations of the Privy Council review within six months of the implementation team reporting or concluding. Obviously this is dependent on the outcome of the work of the implementation team and whether the Chilcot tests can be met—which, I trust, they can. Assuming those tests can be met, will the Minister accept this part of the amendment?
That leads me to one last point. Is there really a willingness and a desire across government to use intercept evidence while protecting the interests of national security, which is our shared objective? That desire and that will seem to be a crucial prerequisite for the success of the implementing team, so I would be interested to have the noble Lord's response to these various points. I beg to move.
When he met the Counter-Terrorism Public Bill Committee on
I am sure I can put a copy of the work programme in the Library of the House. I assure the noble Baroness that I will try to ensure that that happens. We hope that the update on phase 1 progress will be before the Christmas Recess.
The cross-party Chilcot report, published in February, concluded that it should be possible to find a way of using intercept material as evidence but, as has been said, it would need to meet key operational requirements or tests. That is fundamental; we have to meet those, because if we fail in any of those tests it could mean that we would lose these amazing intercept skills because there would be a risk to them. In doing so, the report clearly recognised both the public protection and law enforcement benefits achieved from the non-evidential regime at present and the real damage that could be done from hasty or ill-considered implementation of intercepted evidence. It concluded, for instance, that,
"any material risk to the strategic capability of the UK's intelligence agencies would be unacceptable",
"Before legislation could be introduced ... further extensive work would be required to develop a detailed regime".
The work programme currently under way is closely based on that recommended at paragraph 214 of the report, and will be consistent with legislation in the 2009-10 Session.
Also consistent with the Chilcot report, however, the Government believe that in order to ensure that the regime is workable, and to protect vital national security and law enforcement interests, legislation should be introduced only when the necessary work has been completed and the operational requirements identified have been clearly met. Further, the Chilcot report underlines the importance of creating confidence in stakeholders, including communication service providers and international partners. Any departure from, or pre-emption of, the agreed Chilcot process would jeopardise that confidence and potentially damage national security and public protection, even if the Chilcot tests could be met.
It is interesting to reflect on the fact that, while we are keen to make this happen, twice during the previous Conservative Administration and five times in this Labour Administration we have looked at this issue and each time, for whatever reason, the Government in power have decided that one could not ensure that safety. It is an important issue that a Government in power have to look at very closely.
Reflecting that, the Government are unable to accept the proposed amendment, but I hope I am giving a feel for what lies behind it. I hope that noble Lords will continue to back the implementation process for change recommended by Chilcot and the work we and others are committed to doing to fulfil it. The process is underpinned by the cross-party advisory group of privy counsellors, so I think that all parties are aware of what is going on, reflecting the successful example of the original Privy Council review, in order to ensure that the key objectives of safeguarding intelligence capability and protecting the public are not harmed as this work develops and is progressed. On that basis, I ask the noble Baroness to withdraw the amendment.
I thank the Minister for that helpful reply. I am glad to hear that the design phase is coming to an end. It will be helpful to be able to see the work programme that he has agreed can be put in the Library. I hope that the further phase of work on what I would perhaps regard as the operational regime does not take too long. Any indication that the Minister can give us regarding the timetable for that would be helpful, as that is the key to bringing intercept evidence into use in court.
We entirely agree with the Government about the need for care, but the admissibility of intercept evidence would help the legal process. As the Joint Committee on Human Rights has noted, its absence is,
"the single biggest obstacle to bringing more prosecutions for terrorism".
The Crown Prosecution Service is clear that the use of intercept evidence would lead to more guilty pleas and fewer abortive trials. In addition, the Director of Public Prosecutions was told in Australia that prosecutors who do not use intercept evidence in terrorist cases are not being serious. I would not put it in quite those terms, but the point itself is serious, as this can assist the judicial process. The situation in this country is the more anomalous, given that intercept evidence is admissible in organised crime cases.
Having said that, I am grateful to the Minister for his response and look forward to receiving further information on the timetable. For the moment, I beg leave to withdraw the amendment.
moved Amendments Nos. 143 and 144:
After Clause 99, insert the following new Clause—
"Meaning of "ancillary offence"
(1) In this Act "ancillary offence", in relation to an offence, means any of the following—
(a) aiding, abetting, counselling or procuring the commission of the offence (or, in Scotland, being art and part in the commission of the offence);(b) an offence under Part 2 of the Serious Crime Act 2007 (c.27) (encouraging or assisting crime) in relation to the offence (or, in Scotland, inciting a person to commit the offence);(c) attempting or conspiring to commit the offence.
(2) In subsection (1)(b) the reference to an offence under Part 2 of the Serious Crime Act 2007 (c.27) includes, in relation to times before the commencement of that Part, an offence of incitement under the law of England and Wales or Northern Ireland."
After Clause 99, insert the following new Clause—
"Meaning of "service court" and "service offence"
(1) In this Act "service court" means the Court Martial, the Service Civilian Court or the Court Martial Appeal Court.
(2) Until the commencement of the relevant provisions of the Armed Forces Act 2006 (c. 52), the following is substituted for subsection (1)—
"(1) In this Act "service court" means—
(a) a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53); (b) the Courts-Martial Appeal Court; or(c) a Standing Civilian Court.".
(3) In this Act "service offence" means an offence under—
(a) section 42 of the Armed Forces Act 2006 (c. 52),(b) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or(c) section 42 of the Naval Discipline Act 1957 (c. 53).
(4) References in this Act to the "corresponding civil offence" in relation to a service offence are—
(a) in relation to an offence under section 42 of the Armed Forces Act 2006 (c. 52), to the corresponding offence under the law of England and Wales within the meaning of that section;(b) in relation to an offence under section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), to the corresponding civil offence within the meaning of that Act;(c) in relation to an offence under section 42 of the Naval Discipline Act 1957 (c. 53), to the civil offence within the meaning of that section."
(5) Section 48 of the Armed Forces Act 2006 (supplementary provisions relating to ancillary service offences) applies for the purposes of subsection (4)(a) above as it applies for the purposes of the provisions of that Act referred to in subsection (3)(b) of that section."
On Question, amendments agreed to.
Clauses 100 to 102 agreed to.
Clause 103 [Repeals]:
moved Amendments Nos. 145 and 146:
Clause 103, page 70, line 14, after "repealed" insert "or revoked"
Schedule 8, page 97, line 36, at end insert—
"Part 4AAsset Freezing
|Title and number||Extent of revocation|
|Terrorism (United Nations Measures) Order 2001 (S.I. 2001/3365)||Article 4(7) and (8).|
|Al-Qa'ida and Taliban (United Nations Measures) Order 2002 (S.I. 2002/111)||Article 8(7) and (8).|
|Terrorism (United Nations Measures) Order 2006 (S.I. 2006/2657)||Article 5(4) and (5).|
|Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006/2952)||Article 5(4) and (5).|
On Question, amendments agreed to.
Clause 103, as amended, agreed to.
Schedule 8, as amended, agreed to.
Clause 104 agreed to.
Clause 105 [Extent]:
moved Amendment No. 147:
Clause 105, page 70, line 37, at end insert—
"( ) Nothing in this section shall be read as restricting the application of any provision of this Act in relation to service courts or service offences."
On Question, amendment agreed to.
Clause 105, as amended, agreed to.
Clause 106 agreed to.
In the Title:
moved Amendments Nos. 148 and 149:
In the Title, line 5, leave out "under United Nations terrorism orders"
In the Title, line 6, leave out "inquests and"
On Question, amendments agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.