Prevention and Suppression of Terrorism

Part of the debate – in the House of Commons at 5:59 pm on 15th February 2006.

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Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Home Affairs) 5:59 pm, 15th February 2006

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 16 December 2004, the House of Lords ruled that the detention of the nine foreign nationals held at Her Majesty's Prison Belmarsh was incompatible with the European convention on human rights. The powers created by the Anti-terrorism, Crime and Security Act 2001 were found to be in breach of ECHR on two counts. First, they only offered the possibility of indefinite detention where lesser restrictions on liberty could have been more proportionate. Secondly, they were discriminatory by reason of the fact that they applied only to foreign nationals. Either the detainees would be released, or new and proportionate restrictions had to be devised in the space of a few weeks.

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 7 July led to renegotiation among the three main parties. It was agreed that control orders would be decoupled from other new offences and considered in a separate Bill in the early part of 2006.

The Home Secretary indicated in his statement on 2 February that he favoured a further rethink, with draft legislation produced in spring 2007, followed by a Bill that would almost certainly be carried over into the next Session. I have no difficulty with the concept that a consolidating Bill is necessary. Such a Bill is inevitable because of the extremely rushed way in which we deal with much of the terrorism legislation that comes before the House. It is almost certainly inevitable as a result of the way in which the Government use programme motions, which mean that Bills do not receive proper scrutiny. The principal reason given for the time scale was the fact that the various reviews on the definition of terrorism needed to be concluded, but the definition is not central to the operation of control orders, although it is central to other measures, such as those in the Terrorism Bill.