I beg to move,
That the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, which was laid before this House on 2nd February, be approved.
The Prevention of Terrorism Act 2005 was introduced last year in recognition of our need to be able to tackle the threat posed to national security by individuals whom we could neither prosecute nor deport. The Government's response to the Law Lords' ruling on powers under part 4 of the Anti-terrorism, Crime and Security Act 2001 was the Prevention of Terrorism Act 2005, which introduced control orders enabling tailored obligations to be placed on an individual to protect the public from the risk of terrorism. The Act came into force—after, we recall, some fairly intense parliamentary scrutiny and debate—on
The threat posed to the life of the nation by terrorism and the consequences of terrorism is a subject that has necessarily occupied this House on too many occasions. The tragic events of last July brought home to everyone the fact that this is a very real and continuing threat.
I apologise for interrupting the Minister so soon. Does she agree, given the debates on control orders last year, that the Government would not have got the 2005 Act on the statute book, were in danger of losing a Bill and saved it only by promising fresh legislation in spring 2006, when both Houses of Parliament could reconsider, from the base up, the principle of the Home Secretary having powers to deprive someone of or limit their liberty? Is not it a disgrace that that promise is reduced to one-and-a-half hours' debate about an order on the eve of a recess, thus enabling the Government to retain powers that the vast majority of Members of Parliament in both Houses did not believe they should hold when they first sought them?
The right hon. and learned Gentleman is right to raise the undertakings that were given when the legislation was being considered. However, he, like all of us, knows that significant changes and events have occurred since that debate, not least the events of
The right hon. and learned Gentleman also knows that we wanted to reconsider control orders when we had had the opportunity to examine Lord Carlile's report. He acknowledges that we have not yet had a full cycle of control orders because many of them are subject to the appeal provisions and various aspects of judicial scrutiny.
There has been cross-party agreement and my right hon. Friend the Home Secretary made a statement indicating that we would introduce draft legislation, which would be subject to pre-legislative scrutiny, to try to bring together much of our law on terrorism. That will provide an opportunity to reconsider the issues. That position is accepted by hon. Members of all parties.
The original undertakings have been affected by subsequent events. There will be an opportunity to reconsider control orders, but it is better to do that when they have been through their full cycle. Our deliberations will be better informed by some of the legal judgments on some of the appeals and applications.
Does the Minister accept that the reason for the long timetable for any consolidating Bill stems from the need for a definition of terrorism, on which my noble Friend Lord Carlile of Berriew is working? Does she also accept that that work would not apply to control orders and that we should deal with them in primary legislation earlier rather than later?
The hon. Gentleman makes the important point that we have asked Lord Carlile, as the independent reviewer, to review the definition of terrorism. As he knows, there are some difficulties with that. The United Nations is considering a definition of terrorism, and it is not an easy matter to resolve. However, we should consider control orders in the overarching context of our counter-terrorism legislation. They are one of the tools that we can use, together with our law enforcement agencies and the legislation that we have passed this afternoon, to counter terrorism in this country.
There is broad agreement that we should have pre-legislative scrutiny and take a good, long, cool, hard look at our counter-terrorism legislation to ensure that it is appropriate. I hope that the hon. Gentleman appreciates the sense of going through a full cycle of control orders before considering whether to make changes and amendments.
The UK Government must continue to tackle terrorism. As I said, control orders have a vital role to play alongside other existing powers and the new measures in the Terrorism Bill, which we debated earlier. My right hon. Friend the Home Secretary set out in his statement to the House on
Today's renewal debate takes place in accordance with section 13 of the 2005 Act. Section 13 provides that the powers on control orders will automatically lapse after one year unless they are renewed by order subject to the affirmative resolution in both Houses of Parliament. I have dealt with the opportunity for legislative change and the time scale for that.
Prosecution is and will always remain the Government's preferred course of action in dealing with individuals suspected of terrorism and priority will continue to be given to prosecution. However, it is not always possible, for a variety of reasons. There might be insufficient admissible evidence—clearly there is a reliance on intelligence in some cases—an overriding need to protect sensitive sources and/or techniques, and other reasons why a prosecution is not in the public interest.
"I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons."
Does the Minister accept that that is unsatisfactory? What steps will the Home Office take to rectify the situation?
Lord Carlile makes a number of recommendations on how the position might be improved. He also makes recommendations on keeping the prohibitions under regular review. We agree with him in regard to both those recommendations. The principle behind his recommendation on providing more information is absolutely sound. We should have as much information as possible about why a prosecution is not possible, but in some cases the information is based on intelligence and we have to take into account the operational implications when determining how much information can be put forward, particularly if it is to be disclosable in proceedings. Lord Carlile also makes reference to that. So, although it is a sound recommendation in principle, we want to take a little more time to consider the operational implications for the cases involved.
Deportation is also an option for foreign nationals, as removal can provide an alternative means of disrupting their activity and reducing the threat to national security. Again, however, this is not always possible, although we have made considerable progress in agreeing memorandums of understanding with a number of countries, which will provide a means by which individuals can safely be returned to their countries of origin.
We have signed memorandums of understanding with three countries. I cannot give the hon. Gentleman the exact number of individuals involved. I am sure that he will understand that these are complex, difficult and sensitive arrangements, but we are determined to continue our negotiations with a range of other countries, to determine whether we can agree memorandums of understanding with them. I was pleased that Lord Carlile's report stated that the memorandums of understanding were appropriate in the context of deportation. When commenting on arguments that it was inappropriate to proceed in this way, he stated:
"It really is a counsel of despair to suggest that no verifiable or satisfactory agreement can ever be reached with apparently recalcitrant countries. There are international organisations and mechanisms available and devisable to ensure an appropriate level of verification, and the effort is certainly well worth making."
I am pleased that Lord Carlile believes that our attempts in this difficult area are worth pursuing.
The Terrorism Bill that is now before Parliament will introduce some new offences, including the offence of acts preparatory to terrorism, but there will remain a comparatively small number of cases in which we are unable to prosecute but in which individuals pose a very real terrorist threat. In such circumstances, it is vital that the Government and the law enforcement agencies are able to act to reduce the risk that such individuals pose. Again, Lord Carlile has provided support for this view. His report states, in paragraph 61:
"As a last resort (only), in my view the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society."
Lord Carlile has clearly thought deeply about these issues, and come to that conclusion. I would like to thank him for the way in which he has conducted his analysis of the information he has seen. As he said in the introduction to the report, he has attempted to give a proper technical analysis of the operation of the Act, but he has tried to do it in a way that is accessible to the lay reader. Technical reports often do not have those characteristics, but Lord Carlile's report genuinely strikes the right balance between good operational information and accessibility. I would also like to thank the Joint Committee on Human Rights, which has produced a very informative report and a detailed reflection of the legislation and its operation. Both reports will be invaluable in informing the House in our consideration of these important issues.
I shall turn now to the working of control order powers. Sections 1 to 9 of the Prevention of Terrorism Act 2005 provide for the making of control orders. Control orders are preventive orders that enable one or more obligations to be placed on individuals that are designed to prevent, restrict or disrupt their involvement in terrorism-related activity. They can be applied to any individual, whether a UK or foreign national, when the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorist activity and considers that it is necessary for the purposes of protecting members of the public from a risk of terrorism. The grounds that must be set out before an order can be made therefore have two limbs—that an individual is involved in terrorism and that it is necessary to make an order to protect the public. The obligations that can be set out in the order should be tailored to tackle particular terrorism activities on a case-by-case basis. Any breach of those obligations in a control order without reasonable excuse is a criminal offence punishable with a prison sentence of up to five years and/or an unlimited fine.
The Act makes provision for two types of order: derogating control orders and non-derogating control orders. The distinction between the two is that a derogation would be required if the obligations, individually or in total, amounted to a deprivation of liberty within the meaning of article 5 of the European convention on human rights. We have not sought to make any derogating control orders. At this stage, we have simply made non-derogating control orders. The Secretary of State must apply to the court for permission to make an order. Under the Act, in a case of urgency, the Secretary of State himself can make the order, but that must be referred immediately to the court, which must start considering that case within seven days. The judicial scrutiny is therefore pretty intense, arising from many of our discussions when the provisions were first considered.
Once the control order is made, an automatic review process is triggered. That judicial review of the Secretary of State's decision provides independent judicial scrutiny. When we considered this legislation previously, the question whether judicial review provided robust examination was debated. Lord Carlile, in paragraph 67 of his report, says that, in his view, judicial review is a robust jurisdiction, and points out that the way in which judicial review has developed means that the courts take a close and rigorous interest in such issues.
The Minister is giving an extraordinary description of what she makes sound like a robust judicial process, which was at the heart of the reluctance of both Houses of Parliament to let the Government have the Bill 12 months ago. Will she confirm that, throughout the process, the Secretary of State has to have only reasonable suspicion that he has got the right person and that that person is involved in terrorism, and that a court can set aside what the Secretary of State does only if the judge is satisfied that the Secretary of State's decision is seriously flawed? Therefore, as long as the Secretary of State can say that he has reasonable suspicions and grounds to suspect that someone is involved in terrorism, there is little that the court can do.
I am aware that the right hon. and learned Gentleman has extensive legal experience, and he will know, as I do, that the courts take their responsibilities on judicial review extremely seriously. We had a long debate on what the appropriate standard of proof should be. For non-derogating orders, we decided that it should be reasonable suspicion. Were there to be derogating orders, we decided that it should be on a balance of probabilities, because the standard of proof should be higher. That was debated at great length in both Houses of Parliament, and the legislation was passed on the basis of that standard of proof. As he will know, the courts will need to consider whether the Secretary of State acted reasonably in coming to his conclusion, whether he took into account all relevant considerations, and whether he excluded all irrelevant considerations. He will also know that judicial review is no rubber-stamp process and entails rigorous consideration by the courts. Indeed, Lord Carlile expresses that view from an independent standpoint.
Once a control order is made, the automatic review process is triggered. Control orders have a maximum duration of 12 months, and can then be renewed by the Secretary of State. After 12 months, however, a separate right of appeal is provided, which is another safeguard. An individual can also make an appeal for an order to be revoked or an obligation to be modified when there is a change in circumstance. Again, a separate right of appeal is provided when the obligations are varied—another safeguard built into the system. I therefore feel that the Act provides full judicial oversight and proper rights of appeal.
In addition to those individual rights, there are reviewing and reporting requirements, including an independent review by Lord Carlile and the report that the Secretary of State must bring to Parliament every three months—which he has done on three occasions so far, I think—on his exercise of the powers, giving information such as how many orders have been made. The system contains robust safeguards, subject to reporting requirements and independent oversight. A delicate balance must be struck between safeguarding society and safeguarding the rights of the individual, and I think that the 2005 Act strikes that balance.
The Minister will know that the report from the Joint Committee on Human Rights focuses on the human rights of the families of individuals affected by control orders. It speaks of the unjustifiable interference that often takes place, the severe impact that it has on the human rights of those family members—rights to family life, freedom of association and freedom of expression—and the mental suffering and anguish to which they are often subject. What rights will those family members have in respect of the establishment of a more satisfactory regime?
The Secretary of State considers the impact on family rights before making a control order. He has information about those important issues. Representatives of families have raised them with the courts, and they can be considered by the courts when each case is automatically reviewed.
Family rights are important, but they are part of that delicate balance between safeguarding the rights of the individual and safeguarding the rights and security of the wider community. I understand the implications for families, but we are dealing with people who are deemed to be a threat to national security, who cannot be prosecuted or deported but whose activities need to be controlled to protect the security of the nation.
The renewal debates here and in the other place are a further requirement of the Act. Affirmative resolution is required in both Houses of Parliament. The debates give all Members an opportunity to consider Lord Carlile's report and the merits of control orders more generally.
Lord Carlile made recommendations for improvement in the operation of the control order regime, including a procedure to monitor closely the necessity and proportionality of control order obligations and fuller information from the Government on why a prosecution cannot replace a control order. My right hon. Friend the Home Secretary has welcomed the recommendations. He has said that he will need to consider them after consulting the Intelligence Services Commissioner and the director general of the Security Service, as required by the Act.
The first of the two main recommendations concerns the procedure for monitoring and reviewing the obligations. We accept that there is scope for additional review of the obligations throughout a control order's life cycle, and we are discussing with our stakeholders how best to achieve that. We think that the second recommendation is sound in principle, but we shall want to examine the operational implications.
Without the order, the power to make control orders will lapse at midnight on
Let me quote from a paragraph that, for me, sums up the way in which the report highlights the issues while also being accessible. Lord Carlile says that
"the nature of the activities of which I have seen information"
—and we should not forget that Lord Carlile sees all the information—
"is sufficiently alarming for me to re-emphasise, as I have in other reports, the real and present danger of shocking terrorism acts involving suicide bombings . . . further suicide bombings in the UK must be expected and the target unpredictable".
Those are indeed chilling words, and it is crucial that we never underestimate the threat that we now face. Control orders are one of a number of options that the Government are employing to counter the very real threat of terrorism. They have an essential role to play, not just in countering the threat but in contributing to a more hostile environment for terrorists. Any Government's first consideration must be protecting the security of the nation.
When the legislation was originally considered, we were in some ways discussing this issue in theoretical terms. Since then, the events of
I can probably anticipate the point that the hon. Gentleman is going to make, but I gladly give way.
I am most grateful to the Minister for giving way. Given events in America, Madrid, Bali and elsewhere, her saying that we engaged in a theoretical debate on this issue is extraordinary. Surely she remembers what happened to this country at the hands of the Irish Republican Army, and she has seen what other terrorist groups have done to other countries. This is no theoretical debate.
No, it is not, but the hon. Gentleman will acknowledge that, in discussing control orders, the tenor of the debate in some quarters was to underplay the threat. Many people in the House did not recognise to the extent that he clearly does the real and ever-present terrorist threat. I am on record as saying that it is indeed a real and serious threat following events not just in America but throughout the world in the past decade, during which time many countries have been attacked. The point that I was making was that in some quarters the reality of the threat was perhaps not recognised; that threat has now been put beyond any doubt.
With the greatest respect, the right hon. Lady is totally misrepresenting the atmosphere that surrounded the introduction of the Prevention of Terrorism Act 2005. I recall saying that I expected major terrorist outrages to be committed in this country in time to come, and that there was no way of guaranteeing that we could prevent them. Sadly, I—along with the right hon. Lady—was proved right on
The right hon. and learned Gentleman will have noticed that I chose my words carefully. I used the phrase "in some quarters", and in doing so I was not including him. However, it is undeniable that some people were not seized of the real and serious nature of the terrorist threat.
Reference has been made to miscarriages of justice, and I refer Members to Lord Carlile's report, in which he points out that although he regards control orders as a last resort, he also considers them a proper, justifiable and proportionate way of proceeding. He had access to all the papers, cases and information on which the Secretary of State based his decisions. He says that he would have reached the same conclusions, but that that does not necessarily mean that those conclusions were correct. That is why it is important that judicial consideration be given to all such cases, and that there is a series of checks, balances and safeguards to ensure that we get the balance right between individual rights and the security of the nation. That is a very difficult balance to strike, but everything that I and the Government have done has been aimed at ensuring that we strike that balance in the right way and preserve the essential freedoms that are so precious to us, while at the same time ensuring that we bear down in the best way that we can on those who would commit terrorist atrocities against this country.
I make no apology for seeking to ensure that this legislation is renewed, so that we can continue to exercise these powers. As I have said, we will have a further opportunity to examine these issues. Broad agreement has been reached with the Opposition parties and the timetable has been set out. In the early part of 2007, we will introduce draft legislation, which will be subject to proper pre-legislative scrutiny. We will try to achieve as much consensus as we can in getting our counter-terrorism law right and making it as robust and fair as possible. Such legislation is in the interests of this nation, and I am sure that all parties will take a very active part in scrutinising it and making sure that the powers are properly framed and used.
I therefore commend the order to the House and ask that the legislation be renewed for a further 12 months.
I am grateful to be able to speak on this subject. As always, I was very interested in what the Minister had to say, especially about the lack of understanding of the seriousness of the threat that faces us.
My right hon. and learned Friend Mr. Clarke has said that, when this order came before the House a year or so ago, the disagreement between the Opposition and the Government was one of the most serious of this Government's term in office. That is certainly my experience, although I have been in the House only a short time. The Minister has spoken about consensus, so I shall return to the subject of that disagreement on a number of occasions.
There is no doubt that the review and renewal procedures for control orders are the result of the contest in both Houses that took place before the last election. Lord Carlile's report supports the Government, and lays special emphasis on the close personal attention that the Home Secretary has paid to each case. This time last year, that was definitely a cause for concern and I, for one, was not convinced that the Government would give the right level of scrutiny to a measure with which I disagreed. However, Lord Carlile has said that the scrutiny has been appropriate, and we should acknowledge that the Home Secretary has done his job to the extent that Lord Carlile is happy to congratulate him.
"you have got to give us powers in between mere surveillance of these people—there are several hundreds of them in this country who we believe are engaged in plotting or trying to commit terrorist acts—you have got to give us power in between just surveilling them and being sure enough to prosecute them beyond reasonable doubt. There are people out there who are determined to destroy our way of life. There is no point in us being naive about it."
It is interesting that the Prime Minister should have said that before the July attacks, and even more so in light of the past three weeks or so. In that time, there have been appalling demonstrations in the centre of the capital and the case of Abu Hamza, which I am sure that the Minister will agree could have been handled very much better.
The Minister said that several hundred people were out there, but the fact is that a maximum of 18 individuals have been placed under control orders. Only nine remain under those orders, with the other nine awaiting deportation. How does the Minister rationalise what the Prime Minister said with the reality of the past year?
In his report, Lord Carlile makes two specific recommendations. First, he said that a Home-Office led monitoring system should ensure that the restrictions imposed were the minimum necessary, consistent with public safety. Secondly, he said that we must ensure that the police reach clear conclusions that the evidence needed to prosecute individual controlees is not available. The report supports the Government's case for control orders, at least in the short term, but Lord Carlile told the Home Affairs Committee yesterday that 20 imams were trying to recruit in prisons and universities.
I have already referred to the Abu Hamza case, and Lord Carlile's remark about the imams prompts me to ask the Minister how control orders are intended to be used against such targets. I am sure that all hon. Members respect the views of Lord Carlile. Given that only nine people are subject to control orders at present, what measures will be taken against the 20 imams to whom he referred? We are told that the security services have a list of nearly 100 people in this country who continue to preach hatred and to radicalise. I do not think that it is stretching a point to suggest that those people may adopt the sort of persuasive language that led to the attacks that took place on 7 and
I am not certain whether the hon. Gentleman is criticising the Government because too few people are subject to control orders, but I was present for Lord Carlile's evidence to the Home Affairs Committee yesterday and I tried to get him to give a figure. He was good enough to give me a figure, but he did not suggest that it was an accurate figure because he could not know that. Even if 20 people were involved, would it really be useful for them to be subject to control orders? Would not it be far better—as I suggested yesterday—for the congregation concerned to take action to clear out those who are no more than hate merchants?
That would of course be a much better solution. If people were committing criminal acts, it would be much better if they were arrested, prosecuted and sent to prison. I am interested to know whether the Minister sees any overlap between what Lord Carlile said and the working of the control orders. I hope that that answers the hon. Gentleman's question.
I did not get the impression from Lord Carlile that the people concerned were actually committing a crime as such, but their sermons are undesirable, to say the least. It is a rather sensitive subject, involving worshippers as it does, and we have to be careful not to make martyrs where that can be avoided. However, I am in favour of control orders.
I was not at the Committee sitting, but I appreciate the hon. Gentleman's comments. I would also be interested to hear what the Minister has to say on that subject.
I turn to the practical working of control orders. I wonder whether the limited surveillance resources that we have allow control orders to be exercised properly. I have heard from some of the individuals involved in mounting such covert and overt operations that such matters as the working time directive make covert surveillance very difficult. Can the Minister give me an indication of whether we have enough resources to carry out the surveillance for the number of control orders that she has mentioned so far?
That question leads me to speculate about the limited number of infringements of control orders. While I am delighted that such infringements are very few, I am cynical, because I have been involved in such matters in the past, and I wonder whether infringements simply have not been detected because of the lack of resources available for surveillance. I appreciate that I may be treading on ground of which the Minister is not necessarily aware in great detail, but I would be grateful if she would reply, verbally or in writing.
We have been told that the Joint Committee on Human Rights has five distinct reservations about the control order regime as it stands. First, the Joint Committee questioned whether a renewal should be allowed without Parliament having had the opportunity to debate whether a derogation to permit deprivations of liberty that challenge article 5.1 of the European convention on human rights should be allowed. That is the point that my right hon. and learned Friend the Member for Rushcliffe made earlier.
Secondly, the Joint Committee asked whether procedural protections are compatible with article 5.4 of the ECHR and the right to a fair trial in determination of a criminal charge and to a fair hearing in the determination of civil rights under article 6.1. Thirdly, it asked whether controlees are being subjected to inhuman and degrading treatment, contrary to article 3 of the ECHR. Fourthly, the Joint Committee wondered whether the control order regime has a disproportionate impact on the rights of family members—we have already heard about that particular proviso—under articles 8, 10 and 11. Lastly, it asked whether the control order regime is being applied disproportionately to foreign nationals in breach of article 14 of the ECHR. Those are serious charges against the control order regime and I would be interested to hear how sure the Government are that they could survive a challenge in the courts on whether they are able to derogate from those aspects of the ECHR, or whether they would get egg on their face. Again, if the Minister can give me some reason to feel confident about that it would reassure me.
We view the control order approach only as a temporary measure, to be replaced by proper judicial process. That is why it needs to be reviewed constantly, kept to a minimum and eventually replaced. The Minister is aware of the consensus produced by the attacks of 7 and
In a speech on
We have already referred to memorandums of understanding, about which I have two questions. First, how will the Government deal with an illegal challenge to deportation under the ECHR, where an MOU has already been achieved? There will be difficulties in achieving more than the few MOUs to which the Minister has already referred so, secondly, how will the Government deal with controlees whose parent country fails to agree on an MOU? What will happen to them?
In paragraphs 71 and 72 of his report Lord Carlile says that it would not be acceptable for significant restrictions on liberty to continue for years on end. If the MOUs cannot be agreed, what course of action will be open to the Government? How will they bring themselves into line with Lord Carlile's statements in paragraphs 71 and 72?
I welcome the Home Secretary's intention to simplify and consolidate terrorism legislation. That is the building brick for Conservative Members, because too many laws lie unused and too many hastily designed laws are used for inappropriate purposes. Despite the different stories in the press, I hope that we can try to move forward on a consensual basis for the remaining period of the legislation, so I am delighted that the Chancellor seems to be edging towards the creation of a single budget for security purposes. I have no doubt that that will lead to a single Department and a single Minister. If the Government are heading in that direction, I could not be more delighted, and on that aspect they will enjoy consensus in full measure and my 110 per cent. support.
Although we shall not oppose the further extension of the control order regime by 12 months, I accept the conclusions of Lord Carlile's report and I understand that control orders must be replaced by a proper judicial process. I look forward to effective legislation that will defend not just the lives of our constituents but their liberties as well.
First, I acknowledge the contribution made in preparation for the debate in the report by my noble and learned Friend Lord Carlile of Berriew and in the trenchant report issued yesterday by the Joint Committee on Human Rights. Both take a careful and detailed look at the subject. The tone of the two reports is not necessarily immediately compatible, but it is clear on a close reading that their conclusions have a great deal in common, even though they may not be expressed with the same force.
It is worth reminding the House of the parliamentary history that has brought us to where we are today. On
What we got was a rushed and controversial Bill. We performed our own version of the parliamentary "Nessun Dorma", as I recall, and we went from Second Reading to Royal Assent in just two and a half weeks. Our preference at the time—indeed, this was the Home Secretary's stated preference—was to find ways to prosecute such suspects in the criminal courts. Given the impending renewal of the derogation order, a stop-gap had to be found. I remind the Minister that we were willing to co-operate in finding an appropriate interim measure and that we started from the premise that control orders were acceptable on that basis, provided that the appropriate safeguards could be found.
We had serious reservations on two points, however. We believed that the standard of proof required for the Secretary of State to sign a non-derogating control order was too low and that the standard of proof should have been raised to that of whether an offence had occurred on the balance of probabilities. We also argued that the power to impose a non-derogating control order should reside with the court, not the Home Secretary.
Those points were echoed by the Joint Committee's report yesterday. On the first point, it said:
"As far as non-derogating control orders are concerned, reasonable suspicion is in our view too low a threshold to justify the potentially drastic interference with Convention rights which such orders contemplate."
On the second point, the Committee said:
"We agree with the view expressed by the European Commissioner of Human Rights, that Article 6 ECHR properly requires that non-derogating control orders should initially be made not by the executive but by the judiciary. We also consider that our own constitutional traditions of due process, and of the separation of powers between the executive and the judiciary, requires no less."
The Committee, however, reserves its strongest criticism for the way in which the various restrictions on liberty available to the Home Secretary in designing a control order have been used. The Committee makes a strong case that the impact of the restriction on liberty is so severe that, in fact, it breaches several of the convention's articles.
Lord Carlile very helpfully provided a standard list of control order restrictions as an annexe to his report. He notes:
"The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel."
If that regime is being imposed on controlees, with little or no variation to account for different risks and different personal circumstances, the Committee is surely correct to state that the obligations are
"so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR"
Thus a deprivation of liberty is taking place without due legal process, contrary to the convention requirements. Similarly, the Committee believes that individuals are being denied a fair trial under articles 5.4 and 6.1, that control orders
"carry a very high risk of subjecting those who are placed under them to inhuman and degrading treatment contrary to article 3", that there is strong evidence to suggest that the regime
"has a disproportionate impact on the rights of family members under Articles 8, 10 and 11" and that the law impacts disproportionately on foreign nationals and is therefore in danger of breaching article 14. In fact, that is the very point that started our parliamentary journey with the judgment in 2004.
Let us also remember that the whole point of control orders was to remove the need for a derogation under the ECHR. The Act contains powers for the Home Secretary to issue a derogating control order. We were given to understand that that meant 24-hour house arrest, but that a vote of Parliament would be necessary to approve a formal derogation of the sort that was required by the Belmarsh legislation. The Act, however, neglected to set out any criteria for determining the dividing line between the control orders that would require a derogation and those that would not. This is a question that will ultimately be tested in the courts. In the meantime, can the Minister tell me where she thinks the line lies? What legal advice has she received and how sure can she be that the pro forma list of restrictions that was reproduced in Lord Carlile's report does not cross that threshold?
The Minister has prayed in aid Lord Carlile's report a great deal tonight. The truth is, however, that it is not the glowing endorsement that she claims it to be. Lord Carlile expresses very serious concerns about the question of proportionality. He says:
"On any view those obligations are extremely restrictive. They have not been found to amount to the triggering of derogation, indeed there has been no challenge so far on that basis—but the cusp is narrow."
Of course, the Home Secretary could have chosen to treat these control orders as meeting the threshold for derogation, in which case the higher safeguards in terms of the standard of proof and the role of the court would have applied. On what basis was the decision not to do that taken? The Minister may not be able to answer that question tonight, but I suggest that it is something that the Home Secretary should inform the House about. I hope that if he does not do so by placing information in the Library, he will, as is customary, do so in a letter to myself and Patrick Mercer.
As we have heard, Lord Carlile does not call for a derogation but for
"the establishment of a Home Office led procedure whereby officials and representatives of the control authorities meet regularly to monitor each case, with a view to advising on a continuing basis as to the necessity of the obligations imposed on each controlee."
I hope that that will be acted upon with rather more dispatch than the Minister indicated in her speech. There is not a great deal of time; a great deal of urgency is attached to the matter.
I again make the point about prosecution that I made to the Minister in an intervention earlier. Lord Carlile says:
"I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons."
Is that not reminiscent of the situation that we had with the Belmarsh detainees? Some of them were detained for several years, yet answers to parliamentary questions indicated that the police conducted no ongoing investigation during that time with a view to bringing them to trial. That demonstrated a complacency on the part of the Government. Once these extraordinary powers are in place, there is surely a moral duty on the Home Secretary to pursue prosecutions. That is the undertaking that we have always been given in the House. In the case of the 2005 Act, there is a statutory duty and it concerns me that the Home Secretary does not appear to be fulfilling it.
Neglect would also be an appropriate word to describe the unintended consequences of the Act on the innocent families of those who are subject to control orders. That is the point on which David Taylor intervened on the Minister earlier. She cannot afford to be complacent or blasé on that issue.
The annexe attached to Lord Carlile's report reveals another interesting fact. Hon. Members will have noted that it shows that there is essentially a fill-in-the-gaps exercise that allows the Home Office to tailor a document to include details such as a suspect's address and a list of individuals with whom he is not allowed to communicate. I was rather surprised to read the following examples of statements that are used:
"You shall not outside of the residence . . . attend any pre-arranged meetings or gatherings (other than attending, but not leading, group prayers at a mosque)" and
"You shall only attend one mosque of your choosing, subject to prior approval from the Home Office before your first visit."
The system seems pretty much like one designed for Muslims. It is unfortunate that Keith Vaz is not in the Chamber because he said during our earlier debate on the Terrorism Bill that in his experience, which is probably more substantial than that of anyone else in the House, the Muslim community was beginning to feel persecuted by the nature of the Government's terrorism legislation. When one sees conditions framed in such terms, one can certainly understand why. Why are not more neutral phrases used, such as "place of worship", instead of "mosque"? Do not the documents lend credence to those in the community who argue that the Government's anti-terrorism powers are used disproportionately against Muslims? Will such an approach build the inter-community harmony on which the Government put so much stress?
The Government's approach to terrorism is a mess—it has been a mess since November 2001. We want to hear from the Government how we shall get out of that mess. In the closing debate on the Prevention of Terrorism Bill, the Home Secretary produced a timetable for further legislation that would have given the House the opportunity to consider in detail and change the control orders regime. A commitment was given to produce a draft Bill in the late autumn of 2005 and introduce a substantive counter-terrorism Bill in spring 2006. The events of
The Home Secretary indicated in his statement on
My hon. Friend is making important points. The events of July may have given the Government room to drop back from their earlier timetable—he was right to point out that that has happened—but the Government asked Lord Carlile to review the definition of terrorism to avoid conflict on another matter and the process is not the sort of force majeure that should allow the timetable on control orders to move. The review is delaying a decision on the definition of terrorism and substantive action to deal with control orders.
I do not think that I can add to my hon. Friend's good point.
We accept the need for a consolidating Bill to bring together the disparate elements of anti-terrorism legislation, and the debate has demonstrated that control orders must be dealt with soon. The Joint Committee on Human Rights report shows that they cannot be left in place for as long as the Government seem to propose. Although the renewal of the powers is deeply unsatisfactory, we shall not oppose the order, for the simple reason that we believe that there should be a credible alternative on the statute book before we take that step. However, if the Terrorism Bill is passed by Parliament, that will change. The new offences of acts preparatory to terrorism and encouragement to terrorism are designed to plug gaps in the law and should have a major impact in the area that we are discussing tonight, and by the end of the year we shall have a good idea of how those powers are working.
I ask the Minister to look again at the proposed timetable for legislation. It is surely possible to produce a Bill that will allow the House to consider the case for amending the control orders legislation by January next year, and to make time available to make those amendments to the law before the order before us tonight comes up for renewal again next March. As I said, we shall not oppose the renewal order tonight, but I put the Minister on notice: if the Government fail to honour the commitments that they made, our position cannot be guaranteed this time next year.
In conclusion, I cannot do better than quote the view of Liberty, set out in its briefing for tonight's debate. It says:
"Terrorism poses a threat to the rule of law, to our democratic values and to our human rights. By responding to terrorism with legislation which undermines these very values we also undermine the ultimate antidote to the threat from terrorism and the values that separate us from the terrorist."
I begin by protecting myself against allegations that I might be regarded as soft on terrorism if I query the order. I am sure that we face a continuing and serious threat of terrorism, and I do not think that anyone in this House can guarantee that we will not experience again attacks on the scale of the ones seen on
I accept that the people who pose that threat cannot always be dealt with by the ordinary process of the criminal law. I have never queried the fact that, in certain circumstances, one has to anticipate the dangers that such people might create and take preventive measures. I also accept that one cannot always resolve such cases by producing criminal charges to be considered by a jury in the ordinary, open process that, in normal circumstances, everyone in this country cherishes.
I do not think that any significant opponents of the Act on which control orders are based challenged either of those propositions when the Government got into so much trouble. The Government are now in trouble for failing to explain why, for several years, no prosecution took place of a man who has just been convicted under a 19th century law when he was parading up and down the country plainly inciting violence—but the case of Abu Hamza lies outside the scope of this debate, so I shall not dwell on it.
Let me remind the House of the circumstances in which the 2005 Act was passed, which gave rise to the need for the order before the House tonight. The Government were in a state of acute crisis when they produced that legislation and they came within a whisker of losing the entire Bill because they could not persuade the House of Lords, certainly, and a substantial body of opinion in this House that they were entitled to have control orders in the form that they preferred.
The legislation aroused great public concern—it was the dominant political issue of the day. There was a great crisis, with the Prime Minister's views on how Parliament should be handled and how the matter should be resolved clearly in conflict with the views of his then new Home Secretary. The public were aware that, for the first time, the Government were proposing that someone in this country should be deprived of their liberty, or have substantial constraints put on their liberty, on the order of a politician—the Secretary of State—and not of a judge. It was a dramatic change to all our traditions. I am not criticising the Home Secretary, who is a distinguished holder of his post and whom I hold in regard, but a fundamental principle was being changed in the proposal that a politician, not a judge, should be able to deprive a person of their liberty.
On the question whether there would be any judicial review the Government resisted even the involvement of a judge, and a modest system was then put in place. Finally, there was tremendous debate in both Houses about the standards that were set for the Secretary of State before he could use his powers. The Bill, alas, was eventually accepted on the basis that under non-derogating orders it was necessary only for the Secretary of State to have reasonable suspicion of someone who was subject to those orders. There was no requirement that he should be certain that he had the right person and there was no balance of probabilities to assess whether someone was probably responsible or had threatened to do things of concern. It was merely sufficient for the Secretary of State to have reasonable suspicion about someone and for the threat to be so grave that the powers should be used.
That was the nature of the crisis facing the Government. I do not believe that the Bill would have survived the process to which we give the absurd name of "ping-pong" if the Government had not said that they would legislate in the near future so that Parliament could address all those matters. The procedure was rushed, as Mr. Carmichael reminded us—proceedings on the Bill took two and a half weeks from start to finish, and it was drastically rewritten—and we were promised a repeat of the legislative process in spring 2006 in which the principle of control orders and many other things in the measure could be addressed. That undertaking has not been honoured.
There is all-party agreement because of the arguments about
The hon. Gentleman's arithmetic is better than that of the Government Chief Whip, although hers has improved.
I therefore have severe doubts about whether we have moved further forward. The Minister kindly thanked the all-party Joint Committee on Human Rights for its work. It could only look at the order after it was announced on
"The Committee's overall conclusion on this matter is that it has significant concerns about whether, in the absence of sufficient safeguards, this regime of control orders is compatible with the rule of law and with well-established principles governing the separation of powers between the executive and judiciary."
The Committee complained—I quote from page 9—that
"Instead of detailed debate and scrutiny of a Bill there will now be a single debate in each House with no opportunity to amend the legislation".
That refers to the present debate. The Committee argued strongly against the renewal of the legislation unless Parliament had time to debate it.
That underlines the fact that the matter must not be allowed to be buried. It is a feature of modern politics that the agenda moves on. What is an issue of great principle upon which the political futures of Ministers and the stability of Governments depend may last for a week while it takes the headlines, and it returns only if some event or some whim of the media brings it back again. If we are not careful, we are in danger of the tremendous near-constitutional crises of 12 months ago being reduced to renewal orders such as this 12 months later and steadily becoming part of the routine background of politics and our law, where what we all thought were great principles 12 months ago are regarded as silly and fuddy-duddy and will never again be revisited.
We are told that there will be a consolidating Bill early in 2007. I endorse the comments of the hon. Member for Orkney and Shetland about that. It would be utterly shameful if for any reason that timetable slipped. I take it from everything that the Minister of State said that that Bill will address in principle the content of the legislation. She implied strongly that that was the case.
Consolidating legislation normally just puts together existing Acts of Parliament. It is out of order to start challenging the content of a consolidating Bill on its merits. I have not served on one of those Committees for very many years, but my recollection of the Committee stage of a consolidating Bill is that one is in order if one queries whether it is correctly being consolidated and correctly being restated, but to query whether the measure should ever have been passed in the first place is completely out of order.
I trust that the word "consolidating" is not being used in its strict sense, and that the Minister will be able to reassure us that what she means is that in 2007 a Bill will be introduced covering the entire scope of our exceptional terrorism legislation and that it will be redrafted in the light of experience, so giving the House and the other place an opportunity to consider and amend it. Because of the rushed Bill 12 months ago and because of today's debate, neither House has ever had a chance to consider properly and at length the principles of control orders and of whether a politician should be allowed to deprive someone of his liberty without a trial and without that person having any opportunity of knowing exactly what is the basis of the charges that are being made against him.
I hope we will get the reassurance that the timetable will not slip again and that we will have a proper debate on the fundamentals. My major fear, which I have already expressed, but it is the most important feeling I have and the reason that I come along to take part in the debate again, is that these matters cease to be a crisis, become routine and then the use of them grows.
The first of the extraordinary pieces of legislation that the Government introduced in this field was in 2001 and has already led to the most extraordinary uses. We accept that vast numbers of people are being stopped and searched under anti-terrorism legislation, far beyond anything we ever expected. A heckler at a party conference was detained under anti-terrorism legislation because he upset the Foreign Secretary, and a lady reading a document at the cenotaph with a list of names was arrested—anybody, it seems, but somebody waving a placard demanding death for those who defame their religion, is getting arrested quite causally under some of the provisions.
Control orders are a more serious matter. At present only nine people are subject to them. One is a British citizen, which gives rise to the question whether the orders are being used in a discriminatory fashion. If this House gets relaxed about control orders and we stop hearing concern about the underlying principles, how quickly will that number grow? How long will it be before 50 people are held for one reason or another and scrutinised more or less adequately? Quite a lot of people may be deprived of their fundamental liberty to know what they have been charged with. What chance will they have of challenging such an allegation, satisfying a judge of their innocence and not being subject to a decision made by a political officeholder who has been given far too many powers by Parliament?
If those powers are left on the statute book, someone will abuse them one day. The current Home Secretary is extremely conscientious and would not abuse any of the powers that his office gives him. However, the legislation is there for the future, and who knows what future Home Secretaries will do if we become complacent about the legislation, which in my personal opinion we should never have passed in the first place.
I want to address the same point as Mr. Clarke. When the House debated the legislation, it agreed to enact this unusual process on the basis that the measures were proportionate to the threat that faced the country at the time. If hon. Members had been able to read the Joint Committee on Human Rights report on the impact of the measure on the individuals concerned and, more importantly, their wives, children and families, I wonder whether they would have accepted that it was proportionate. In the report, Lord Carlile states:
"The key to the obligations is proportionality. In each case they must be proportionate to the risk to national security presented by the controlee. I would urge that in each case the individual risks are examined closely, and the minimum obligations consistent with public safety are imposed."
Page 63 of the report includes evidence from Liberty about the impact of the operation of control orders on the individuals concerned. The evidence is not only distressing, but well beyond what hon. Members assumed would be the impact when they agreed to the process. One person was
"required to comply with his curfew between the hours of 7 pm and 7 am, was entirely isolated in the premises in which he was placed in March 2005 after being taken abruptly from Broadmoor Hospital and had no means of contacting the outside world. He . . . became an outpatient of concern to his local psychiatric hospital. On several occasions"
"became aware he was attempting to take his life, on one occasion by attempting to throw himself out of a window. His life, after release under a Control Order, has been one beset by serious psychiatric, physical and emotional difficulty."
It behoves a Government who place an individual in such circumstances to ensure that support is available.
Page 72 of the report includes evidence from Gareth Peirce about
"The return home of men already mentally damaged by indefinite detention for three and a half years to homes where families had also been damaged, or had been unaccustomed to the presence of their father or husband for a number of years."
"created circumstances in which considerable flexibility and adjustment could be anticipated as being required, and where support for those in those homes including support on an easily accessible basis would clearly be needed. Instead, the Control Orders have ensured that in large part support is not available . . . The families believe themselves to be imprisoned in their own homes, to be stigmatised and isolated from society".
The evidence includes cases in which children have been affected by what has happened to their parents. When we enacted the legislation on control orders, no one appreciated the scale of the Government's lack of concern about individual cases, their failure to provide support and the impact on the children involved.
Today's debate is limited, and I concur with the right hon. and learned Member for Rushcliffe that it was predictable that instead of its becoming a major debate each year, a derisory amount of time would be allocated and few hon. Members would be interested.
The hon. Gentleman may recall that I was very concerned about control orders in the first place, but perhaps for somewhat different reasons from those of the hon. Gentleman, who speaks eloquently on these matters, and my right hon. and learned Friend the Member for Rushcliffe. Does he agree we should insist upon habeas corpus, a fair trial, and due process within the terms of our own legislation instead of getting caught up in the tortuous attempts to provide for compliance with the European convention on human rights, which creates more problems than it solves?
I made my position clear in the previous debate. I believe that, as the hon. Gentleman says, we should apply habeas corpus and have due process of law. If the Government wanted to propose alterations to those processes, they should have done so swiftly with primary legislation and a thorough debate. We had a debate about the enactment of control orders and the promise of an opportunity of primary legislation, that would be fully debated in this House within a limited period of time. That has not occurred and has yet again been put off.
Several people are suffering as a result of control orders—not only the individuals themselves, who have as yet had nothing proven against them in law, but more importantly their wives and children, against whom we have no objections or allegations. They are suffering through a lack of support from the state and a lack of adequate consideration of the proportionality of the effects of control orders in these individual cases.
I urge the Minister not only to bring back as swiftly as possible the debate about primary legislation but to provide a report on the impact of control orders on the individuals concerned, on a case-by-case basis, which could be examined by Members who were involved in the original debate on the process. It is the Government's responsibility to protect those individuals, who have not as yet been prosecuted for anything, and, more importantly, to protect their families and give them adequate support.
I will do my best to respond to the remarks that Members have made. Although, as has been said, the House is not particularly full, that did not undermine the quality of the contributions that they made to the debate on these very important matters.
I am grateful to Patrick Mercer for recognising that the Home Secretary has considered all these cases in detail and in depth, personally making the decisions and looking at the intelligence and information. Lord Carlile confirms that the Home Secretary has fulfilled his duties in a very responsible manner. I am also grateful to Mr. Clarke for his comments about the Home Secretary's approach.
We regard these matters as extremely serious and important because they inevitably involve constraints that are put upon people to limit their freedom of action. They are certainly not taken lightly.
The hon. Member for Newark raised some practical issues about the surveillance resources made available to the police and the security service to allow them to monitor control orders. He will have heard me say on previous occasions that we have substantially improved the resources available to the police, special branch and the Security Service. There have been dramatic increases in the numbers of people working in those services, and we are confident that there are sufficient resources for the control order regime, as it currently operates, to run effectively. I cannot go into any further detail than that—I am sure that the hon. Gentleman would not expect me to—but there are certainly enough resources in place to ensure proper monitoring of the conditions that have been imposed on people.
The hon. Member for Newark, among others, raised issues that were highlighted in the report by the Joint Committee on Human Rights. Let me go through some of those briefly, as I cannot give an in-depth analysis in the time available. Members asked about non-derogating control orders being operated in a way that amounts to a deprivation of liberty. The orders were considered by the court and made with the permission of the court, which did not consider that they amounted to derogating control orders. None of the people concerned, all of whom are legally represented, has made a legal challenge to say that the prohibitions placed upon them are such that in total they would amount to a derogating order.
There has been no legal challenge to that effect. Lord Carlile says that the prohibitions are restrictive in some cases, but he does not believe that they fulfil the definition of deprivation of liberty, although they approach the cusp of that. Those are his words and he clearly takes a careful view. The fact that the orders have not been challenged is important because it is always open to those subject to them to make such a challenge.
The compatibility of the procedural protections with the provisions of the European convention on human rights has been questioned. It is important to stress that we do not accept that control order proceedings amount to a criminal charge, which engages all the rights that pertain to a trial situation. We are considering an application for a civil order and the proceedings are regulated by civil rules of procedure. As I have said, it involves a two-stage test. First, is there a reasonable suspicion that the person is involved in terrorism? If so—the second test—is it necessary to make the order to protect the public from whatever action the person might commit? There is therefore a range of civil procedure regulations for making control orders. I am not convinced at this stage that the view of the Joint Committee on Human Rights constitutes the right approach.
Hon. Members asked whether the subjects of control orders suffered inhuman and degrading treatment. We do not accept that to be the case. The European Committee for the Prevention of Torture has visited the UK and it will report on some issues in March. Our view is that the prohibitions do not constitute inhuman and degrading treatment.
My hon. Friend John McDonnell asked about the families of those subject to control orders. Those are serious questions and we are trying to get the balance right—Lord Carlile said that proportionality was key. He is satisfied that, as a last resort, control orders are a proportionate "safety valve", as he put it, to protect the public. Lord Carlile had access to all the information and intelligence and he said that he would have made the same decisions as the Home Secretary. With great respect, Liberty has not had access to that information and intelligence. It cannot therefore strike the balance between prohibitions on a person who is involved in terrorism and for whom it is necessary to make an order and the rights of the family. One has to see the situation in the round, with access to the information about how dangerous the individual may be.
We are considering circumstances in which there are fairly dangerous people whom one cannot prosecute for various reasons, or deport. We therefore have control orders. The alternative is no prohibitions or restrictions on them and allowing them to walk the streets in freedom. I am sure that many people would be seriously worried about that.
Is my right hon. Friend aware that the Joint Committee on Human Rights met on Monday and that it divided on several paragraphs in the report? I draw that to hon. Members' attention because the report was not unanimous. Does my right hon. Friend agree that there is a great difference between being the subject of a control order and being in a category A prison such as Wakefield in my constituency? The freedom and ability to have contact are different in those two circumstances.
My hon. Friend shows that there is not unanimity on those difficult issues. However, I shall study the Committee's report in great detail. She makes the important point that a control order, even if it requires fairly extensive restrictions on liberty, means that family contact, which it is clearly important to maintain, can continue.
On the court judgment that the control orders do not require derogation, I draw the Minister's attention to the paragraph in the Joint Committee report that points out that the obligations by themselves may not amount to a deprivation of liberty but that they may be combined with other obligations. Lord Carlile drew attention to the fact that duration, which is not known at the outset, and all the specifics of a case may have a bearing on whether it amounts to a deprivation of liberty, which would require article 5 derogation.
I have made the point that none of the orders has been subject to challenge. I take the hon. Gentleman's point about the totality of the restrictions, and I shall come to the length of the orders in a moment.
On the question of discrimination, we reject the possibility of the orders being applied disproportionately to foreign nationals. Control orders are made on the basis of risk, not of nationality. Indeed, there is a control order in place on a UK citizen at the moment. The orders last for only 12 months, and have to be reviewed and renewed after that period. All the circumstances have to be looked at afresh. It is possible that, after an order has been in place for a year, the danger that was posed by an individual might have decreased—in regard to their contact with other individuals, for example—but all those issues would have to be examined. Lord Carlile expressed a genuine concern that orders should not remain in place for years and years, but they can be reviewed after 12 months.
The hon. Member for Newark mentioned memorandums of understanding and asked what would happen if no memorandum were agreed. I can assure him that we detain people pending deportation only if we are satisfied that there is a reasonable prospect of their being deported. That is why we are so keen to work on getting the memorandums of understanding in place as quickly as possible. We have had some success, and we are continuing to work on that.
Mr. Carmichael mentioned the standard of proof. We have debated that issue at length, and the House decided on an appropriate standard. He asked whether the obligations passed the threshold. We sought the permission of the court in relation to the orders containing more stringent conditions, and the court did not think that they amounted to derogating orders. He also mentioned the pro forma that contained a prohibition on attending a mosque. I am informed that that is simply an example from an individual case, and that it is not a pro forma that applies to everyone. These obligations are tailored to the individual concerned. They do not pick out people from a particular faith or community.
No, I have only 30 seconds left.
The right hon. and learned Member for Rushcliffe brought to our attention the great importance of these issues. I am grateful for his continuing contribution to the debate, and I have no doubt that he will continue to raise the issues at every possible opportunity. I can confirm that, although we have referred to this as consolidating legislation, there will be an opportunity to examine each element of the terrorism legislation, especially the amendments on the control orders. He commented earlier on the time scale for this debate. We are not on the eve of a recess; there is a full day's sitting tomorrow, and we have had a proper debate today.
Question put and agreed to.
That the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, which was laid before this House on