I beg to move,
That the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, which was laid before this House on 1st February, be approved.
The Prevention of Terrorism Act 2005 received Royal Assent in March 2005. The Act provides for control orders to address the risk posed to public safety by individuals believed to be involved in terrorism who can neither be prosecuted nor deported.
The purpose of the order before us is simple. Today's renewal debate is taking place in accordance with section 13 of the 2005 Act. The powers contained in the Act will automatically lapse after one year unless renewed by order subject to affirmative resolution in both Houses. They were renewed last year but without this new order will lapse at the end of
The effect of the order will be to continue the power in force until the end of
There is a serious and sustained threat from international terrorism to the UK and UK interests overseas. The current threat level is assessed as severe and an attack is judged to be highly likely. Moreover, since the tragic events of July 2005, the police and security services have had considerable success in disrupting alleged terrorist plots. Let me be clear that prosecution remains our preferred option for tackling individuals involved in terrorism. Indeed, that is why the Government strengthened the ability to prosecute for involvement in terrorism-related activity in the Terrorism Act 2006. That is demonstrated by the fact that, in 2006, 85 individuals were charged after being arrested under the 2006 Act or under other legislation where the investigation was conducted as a terrorist investigation.
Similarly, we seek to deport foreign nationals involved in terrorism, but that will sometimes not be possible, even with a memorandum of understanding and other agreements that are in place with a number of countries to enable us to return individuals safely to their country of origins. Consequently, there will remain a comparatively small number of individuals for whom neither prosecution nor deportation is viable.
The noble Lord Carlile recently suggested, or appeared to suggest, that some cases that are subject to control orders could be pursued to prosecution. When control orders were first discussed, the previous Home Secretary agreed to consider a process by which the Crown Prosecution Service would formally declare that it had reviewed the files on a case that was coming up for a control order and confirm that there was no prosecutable case. Has any further consideration been given to that process, which might provide some reassurance that people would not be pushed down this route when, in fact, there was some sort of prosecutable case?
I thank my right hon. Friend for that intervention. I will be coming on to precisely that point, dealing not only with the relationship between the Home Office, the Crown Prosecution Service and the police, but the processes to which Lord Carlile refers and on which we may be able to improve. If, when I discuss those matters, my right hon. Friend is not satisfied, I will happily allow him to intervene again.
As I was saying, there is a comparatively small number of individuals for whom neither prosecution nor deportation is viable. The Security Service assesses that they are involved in terrorism and that they pose a risk to public safety, but without control orders those individuals would be free to continue to engage in terrorist-related activity. That is clearly a risk that the Government are not prepared to take.
This assessment of the necessity for control orders is shared by the noble Lord Carlile of Berriew, whose annual report on the operation of the Prevention of Terrorism Act 2005 was published on
"I would prefer it if no control order system was necessary. However, in my view, it remains necessary given the nature of the risk of terrorist attacks and the difficulty of dealing with a small number of cases. Control orders provide a proportional means of dealing with those cases, if administered correctly."
I would like to place on record the Government's gratitude to Lord Carlile, who has produced another carefully considered, valuable report, which should—and, I know, will—inform today's debate. The two other statutory consultees—the director-general of the Security Service and the intelligence services commissioner—are also content with the intention to renew the legislation.
However, some hon. Members may argue that the legislation should not be renewed because control orders are not working. Let me underline to the House that control orders have been successful in preventing, or at least limiting, these individuals' involvement in terrorist-related activity—a view shared by the Security Service. No one is pretending that control orders are 100 per cent. effective. They are weaker and less effective than we would want, not least because of recent court judgments. As a result, there is inevitably a real risk that individuals on control orders will re-engage in terrorism or abscond. No one, I think, from whatever side of the argument they come, would agree that control orders are entirely satisfactory.
The Minister may know that I sympathise with the Government's dilemma to a very considerable extent, particularly on the question of court judgments and the application to those judgments of the Human Rights Act 1998, which he has not yet mentioned, and the difficulties to which it gives rise. In the light of what the Lord Chancellor said on
Not the hon. Gentleman's last point. I had the good fortune of making a subsequent speech at RUSI during the same event, but it was more readily on these matters than on the Human Rights Act 1998. My noble Friend the Lord Chancellor said that the Act was a shield in defence of democracy and against the terrorists—a very important point to make. I quite understand why the hon. Gentleman would, from his own perspective, choose to pick out from the Lord Chancellor's speech that which would accord with his own argument—I fully accept that; it is entirely fair—but the hon. Gentleman should not hold his breath if he thinks that somehow soon the Human Rights Act is going to fall away from the statute book. There are a number of substantial reasons why that should be the case. The issue clearly underpins much of our deliberations today, but you will know, Mr. Deputy Speaker, that this is not a debate on the pros and cons of the Human Rights Act, although it has some bearing on the case.
No one is pretending, as I said, that control orders are 100 per cent. effective. I emphasise the inevitable and real risk, given the unsatisfactory nature of the control order regime, that individuals on control orders will re-engage in terrorism or abscond. Indeed, as the House will know, there have already been three well publicised absconds, but Lord Carlile addresses the point cogently in his report in paragraph 59, where he states that
"the disappearance of a small minority does not necessarily undermine the benefits of the orders in relation to the majority".
More encouragingly, the police, prosecution authorities and the courts take enforcing control orders seriously. In January, the courts sentenced an individual to five months' imprisonment for breaching his control order. Charges against other individuals are pending.
The short answer is that I do not know specifically. If, during the course of our debate, I receive some inspiration, I will slide it into my remarks at some stage. In general terms, I have deliberately not gone down to that level of detail for a debate of a mere hour and a half. I just want to present the highlights of the arguments for the order rather than get into the specifics. I will gladly let my hon. Friend know the answer in another way, if necessary.
We think that the need for the powers is clear. Parliament can also be reassured that a comprehensive set of safeguards is in place under the Prevention of Terrorism Act 2005 to ensure the appropriate use of the powers. Indeed, we remain firmly of the view that the legislation and the order before us today are fully compliant with the European convention on human rights—if I may say that with Mr. Cash in his place.
The 2005 Act provides full judicial oversight and rights of appeal. The courts must give permission for the Secretary of State to make a non-derogating control order or confirm within seven days an urgent control order made by the Secretary of State—and I should add that that power has not been used at any stage thus far. There is automatic, independent judicial review of the decision to make or renew a control order. Individuals subject to control orders can appeal the Secretary of State's decision to modify a control order and apply themselves to have one revoked or modified where there is a change in circumstance and the Secretary of State's decision can be appealed.
In the past, some people have questioned the sufficiency of the safeguards put in place by the 2005 Act, but events over the last year demonstrate the robustness of those safeguards. Hon. Members will be aware that the judiciary has been actively overseeing the Act, which is right and proper.
First, we welcome the Court of Appeal's conclusion in August 2006 that the judicial review procedure within the Act was compatible with article 6 of the ECHR, which deals with the right to a fair trial. That overturned an earlier High Court ruling against the Government. Secondly, the Court of Appeal upheld an earlier High Court decision that the particular control orders imposed in respect of six individuals breached article 5 of the ECHR on the right to liberty. We have appealed and both those points of law will now be heard before the House of Lords.
Thirdly, there have now been three control order review hearings in which all the substantive evidence has been put before the courts. Previous hearings had dealt only with legal issues. The High Court handed down judgment on the first such case last Friday. We were of course disappointed that the judge chose to quash the order when the judge himself agreed that the individual was reasonably suspected of being a terrorist, and that the decision to keep the individual under a control order on an ongoing basis was necessary. We will appeal against this decision. Meanwhile, to protect the public, we have made a new—but, inevitably, weaker—order against this individual in the light of the judgment.
My hon. Friend has just used the term "reasonably suspected". He will be aware that the test of reasonable suspicion has caused some concern. Does he propose to revisit the issue of the burden of proof and perhaps to lay down clearer safeguards?
I think that the safeguards are clear. The threshold test involved in establishing reasonable suspicion is very clear. It has been judged and tested on any number of occasions throughout the judicial process and it has not been found wanting. So I am not entirely sure that my hon. Friend's point is a reasonable one.
I know that David Davis, the shadow Home Secretary, has spoken to the Home Secretary about the case that has been alluded to. In that judgment—an open judgment, which is why I can talk about it—reference was made to evidence from Belgium in a similar case that pointed to there being sufficient admissible evidence for a prosecution. I can tell the House, however, that the CPS and the police have looked at the evidence in considerable detail—because it was in the judgment—before imposing the second, weaker, control order. They found, however, that the evidence from the Belgian case was insufficient to be considered admissible for a prosecution in the case of that individual.
In view of there being very few Members here, I hope that the Minister will not mind if I refer to certain matters, all of which went through the House of Commons literally overnight only a short time ago. Would not this problem have been avoided if we had legislated here in Westminster on our own terms, excluding the application of the Human Rights Act 1998, to deal with these extremely important matters, as well as providing for the full application of habeas corpus and ensuring a proper right of liberty for the alleged suspects—which I would insist on, as would the courts—instead of leaving ourselves with this extremely expensive and protracted legislation for the sake of an ideology?
With the greatest respect to the hon. Gentleman, that is not the case. It would not be right to suggest, from whatever perspective, that we are having to sort things out in this twilight zone, in which people are sufficiently suspected but there is insufficient evidence, only because of the Human Rights Act and the ECHR. That is not the case. Even if we were operating in a completely ECHR-free zone—as the hon. Gentleman would like—these would remain extremely complex legal difficulties. It is wrong to suggest that we are in this twilight zone of control orders simply because we are working against the backdrop of the ECHR and the Human Rights Act. These are difficult and complex circumstances. Contrary to what many critics suggest, there is only a very small number of these cases. That in itself is not a virtue, but the notion sometimes put about that these provisions have universal application and are somehow a prelude to quasi-internment is simply not the case. We are simply seeking to renew the order, as I have said.
We are constantly seeking to improve the way in which we administer control orders, and Lord Carlile's new report includes some specific recommendations which we will consider carefully, consulting interested parties as necessary. We will respond to the noble Lord in due course. The recommendations include suggestions of areas for possible legislative amendment, which we will of course examine. In addition, Lord Carlile notes the need for an exit strategy, so that individuals are not subject to control orders indefinitely. Control orders are valid only for a maximum of 12 months at a time.
Indeed, following Lord Carlile's recommendation last year, we established the control order review group to keep all control orders under quarterly, formal and audited review. This helps to ensure that obligations in control orders remain tailored to the individual, and that they are necessary and proportionate. If the individual is no longer considered to represent a significant risk, the control order would be revoked. As part of the review group's work, a fresh look is being taken at whatever body of evidence is available in relation to the ability to prosecute. That is part of its work.
Lord Carlile also states his belief that there is a need for thorough, documented consultation in every case as to whether a prosecution could be brought against individuals subject to a control order. That relates to the point raised earlier by my right hon. Friend Mr. Denham. Following Lord Carlile's recommendations, we are looking in some detail at all the administrative and more general processes in relation to establishing a more detailed audit trail between the CPS and the police, in order to make a full assessment of the evidence presented by the police if it is just short of being admissible.
My hon. Friend may or may not share my enthusiasm for some elements of the French system in this context. As he will know, in France there is often a three-way meeting between the police, the investigating magistrate and the justice department, at the stage when the files are looked at. A tactical and strategic decision is then taken whether to proceed to detention, as the French often do, or to allow the investigation to run further—perhaps for two or three months—in the hope of obtaining prosecutable evidence. I hope that the review will allow the British system to evolve in that way. If the proper audit trail showed that a prosecution could not be mounted, but that it might be possible in a few months if extra evidence had been accumulated, it should be possible to take the decision to allow the investigation to run.
I think that that is broadly right, in the sense that much of what my right hon. Friend describes does pertain, albeit not as formally as suggested by Lord Carlile. Lord Carlile referred to cases in which there was a real threat but very little evidence, resulting in the exchange between the CPS and the police being almost perfunctory. Such cases need to be looked at in more detail. Without being privy to the details of every single discussion between the police and the CPS, I am sure that the process will evolve in the way that my right hon. Friend has suggested. This relates to the tactics involved in issuing a control order immediately, and the need to strike a balance between having more time to gather evidence in the hope of being able to prosecute, and the real public safety threat that endures at the same time. This is always a matter of balance. The review will look at all these elements, and we will ensure that the House is kept up to date on our deliberations, either through our regular report on control orders or through some other channel. That is an entirely fair point, as is Lord Carlile's broader point about an exit strategy and about keeping those elements constantly under review.
The Secretary of State always consults the police, before making an order, on whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism. But the Government, with the police and the CPS, will review procedures for consultation in the light of Lord Carlile's recommendation. The only thing that I am not sure about, in relation to the point raised by my right hon. Friend, is the constitutional point that the Home Office, the CPS and the police would all have to sit down together to consider each and every case. The Home Office is the strategic safeguard of the law, and these cases are certainly a matter for the police and the CPS. I will keep the House informed of any developments.
To sum up, although unsatisfactory, as I have said, it is the Government's belief that control orders are necessary to address the continuing threat posed by terrorism. That belief is supported by Lord Carlile in his annual report. He explicitly reiterates his conclusion from his previous report, stating:
"I remain of the view that, as a last resort (only), 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."
The Government's role, first and foremost, must be to protect the public. Control orders help to achieve that while maintaining the necessary safeguards to protect individuals' rights. They are focused, almost by definition, on a very small number of individuals, but, none the less, given the seriousness of the conditions imposed, it is right and proper that there are judicial and parliamentary safeguards on the scheme. It is necessary to renew it for a further year and I commend the order to the House.
I am grateful to the Minister for reintroducing this piece of legislation. The most focusing thing that he said was his reminder that the threat level is still at severe; he also reminded us of the successes of our intelligence and security agencies. May I add my congratulations to those agencies? We owe a huge debt of gratitude to the men and women who keep us safe in a hugely under-sung way on a day-to-day basis. I suggest to the Minister that, from time to time, it would be nice to hear officially, as much as we can, about those successes. They are terribly important.
The Minister knows how deeply uneasy I am about the control order regime and I suspect that he shares some of that unease. A lot of his language was revealing. He talked about weaker control orders and the unsatisfactory nature of the control order regime. I understand that he has reservations, like everybody else. My personal views are based on the fact that detention without trial, which the control order regime replaced, was hugely unsatisfactory. He referred to it as perhaps a quasi-internment. I saw the effects of internment. I saw the effects of men and women who were released after months in detention without charge and the damaging influence that they had on the counter-terrorist campaign in Northern Ireland. One of my objections to control orders, among many others, is that they impose a sort of terrorist ASBO status on the individual. Those individuals cannot help but become iconic in the communities to which they return.
Bearing in mind the Minister's reservations, I think that Lord Carlile's annual report makes many points that are deeply damaging to the system that we have at the moment. I must remind the Government that, after the collapse of their anti-terrorist measures as a result of their incompetence in dealing with their own Human Rights Act 1998, we gave them the chance to continue and to put in place a system that would work. Clearly, this system does not work and it has to be replaced by something competent. [ Interruption. ] I hear the Minister saying that it works, but there have been a series of shambles.
First and foremost, there were the three absconders. One escaped from a hospital due to a lack of resources and surveillance. One absconded immediately after the quashing of one order, before the next order could be served. That caused Lord Carlile to say:
"In the future there should be provision for this eventuality—in the sense that there should be minimum delay".
The third person absconded after being served with orders. He entered a mosque and apparently disappeared, and yet the police did not pursue him. I am open to correction from the Minister on that point.
It strikes me as particularly odd that we thought that those people posed a sufficient threat to the safety of our citizens to warrant putting them on this curious and deeply intrusive form of detention, and yet when they abscond, we get strange comments from the Home Office. For instance, the Home Secretary said:
"The individual is not believed to represent a direct threat to the public in the UK at this time."
Why was that individual on a control order? Why bother? As my memory serves, the individual had proclaimed the fact that he intended to carry out jihad and to try to make himself into a suicide bomber elsewhere. When the Opposition suggested that the individual should be named and identified, the Home Secretary said—I repeat:
"The individual is not believed to represent a direct threat to the public in the UK at this time."
What about the British public not in the UK: namely, our soldiers, sailors and airmen serving abroad? It is entirely possible that that individual could have directed his attacks against them. Why was it not possible to identify that man—and others in a similar position—and publish his photograph? I suggest to the Minister that that is shambolic.
The question of anonymity remains the preserve of the police. If the police say clearly that, for operational reasons, they want anonymity to remain in place, it does so. They are free to say to us, for operational reasons, "Please now lift the anonymity order." As and when that happened, of course that would be granted. That, and nothing else, is the case in terms of anonymity, so adding the issue of anonymity to the shambles is not entirely accurate.
I accept the Minister's intervention, but comments from the Home Office such as the one that I have quoted are deeply unhelpful. If he, or another Minister, had come forward at the time and elaborated in the way that he now has and articulated the case much more clearly, perhaps that would have been acceptable. But there was a desperate feeling of complacency from the Home Office about this matter: "Yes, okay, they've gone absent. It is a problem? Not really. We won't bother identifying them. They are on a weakened form of control order."
The matter was brought to my attention and I went on "Newsnight" that night and explained that very point to Mr. Paxman. In relation to the person who entered the mosque, Lord Carlile says clearly that the individual had not been served the order, so he was not in breach of it, and there was no substantive operational reason why the police could enter the mosque. I accept that that needs to be looked at and gone into in more detail, but there are clear reasons in many of these cases. I accept that they are unsatisfactory, but not for many of the reasons that the hon. Gentleman suggests.
I fear that the Minister does not really believe what he is saying. With the greatest respect, he did not convince me on "Newsnight". We have to move on. I just do not see that this system is ever going to work.
There was a full-ranging debate on Monday on the Human Rights Act. The question of the publication of photographs came up. It is a matter of grave concern that the application of universal principles has a precautionary and inhibiting effect on the police, in that they often simply do not know what to do. It is in those circumstances that we get into the shambles that the Minister has just been talking about.
I am grateful to my hon. Friend for his intervention. I have no doubt that the Minister will pick up on that. Again, we should listen to the language used. The system does not work. It is unconvincing. We allow dangerous people to abscond and to be in the community and our community abroad at our peril.
Yes, I will: we are going to support the motion, with great reluctance, and, if the hon. Gentleman will allow me to proceed, I will conclude by pointing out why.
Well, that is fine.
The comments that Lord Carlile makes in his annual report are quite clear. There are still areas in relation to which people might be prosecuted. For instance, in section 58 of his report, he says:
"continuing investigation into the activities of some of the current controlees could provide evidence for criminal prosecution and conviction."
The Minister will be aware of the court case in Manchester last week, in which Mr. Justice Beatson quashed the control order on suspect E, ruling that the Home Office had evidence that could have been used as a basis for prosecution.
The Minister touched on the question of bringing the regime to an end in the fullness of time, but we had this argument last year. The inception of control orders was deeply contentious in the Commons. I worry very much that we will be rehearsing precisely the same argument this time next year and that nothing will have been resolved. Where are the provisions to end control orders?
How do individuals ever get off a control order? Lord Carlile concludes that the
"orders cannot be continued indefinitely—that was never intended and would not be permitted by the courts. As a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee".
The noble Lord, whom the Government have charged with the oversight of the orders, is coming up with precisely the point that they must be urgently sorted out. A much more workable system must be put in place.
The Minister referred to the control order review group. How many times has the group sat to date, and, in his view, how effective has it been?
Surely the whole raison d'être for putting someone under surveillance is that he or she can eventually be charged, brought to court, tried and, if found guilty, sent down. We thus need to address yet again—exactly as we said this time last year—the whole argument about intercept evidence, its admissibility in court and the reason why we seem to continue stalling on this particularly important subject. We must also address the question of interviewing post-charge. There is legislation that allows that to happen, so I cannot understand why it is not applied and why we do not use the measure physically to bring people up in court and take them off control orders by either locking them up or setting them free.
What are the Minister's views on the efficacy of the control order regime? Only last week we heard that three individuals who had been intercepted on the Kenyan border were brought back to this country under grave suspicion of terrorism, yet released into the community without, as far as we know, any form of supervision—certainly any form of overt supervision. Might it not have been reasonable to use control orders to supervise those three individuals?
Countries such as Singapore, Malaya, Indonesia and the Philippines have rehabilitation programmes for their suspects who are either behind bars or on the equivalent of control orders. What have the Government done about that? What sort of rehabilitation programme do we have to try to bring these individuals round to a more rational, sensible and sane way of thinking? I have never heard anything about such an initiative from the Government at any stage.
In conclusion, and to answer the question asked by Mr. Browne, we will support the extension with great reluctance, but we must put the Government on notice that, in view of Lord Carlile's latest report, we will not be able to sustain our position this time next year. Will the Minister assure me that there will be a review of all control order cases with the explicit intention of prosecuting when the evidence is available to do so? We have to bring the system to an end and we have to end the injustice. We have to take dangerous and subversive people off our streets, but the system does not allow that to happen.
I was grateful to the Minister for his response to my right hon. Friend Mr. Denham, because he dealt with one of the two critical aspects of the Carlile report: that regarding proposals to ensure that prosecution is considered fully in every case. I am also especially grateful that the Minister intends to report to the House about how the process goes forward. That nails one of the critical issues that we should be addressing in the debate, so I will focus on the other: the issue of time.
In many areas of the Home Office's operations, it fails to understand the impact of time on human beings' lives. It has a perfectly sensible sets of policies. However, the most obvious example of the problem is the situation regarding immigration. Over time, people grow up, get married and change their lives. A policy that was sensible to apply at one time in a person's life is thus not necessarily sensible after the five or six years for which the Home Office has been brooding about the right thing to do about that person's case. I raised that matter on several occasions with the Minister in his previous incarnation as the Minister for Immigration, Citizenship and Nationality.
I am worried that we are at risk of floating down the same river with control orders. I do not believe that that is the Minister's intention, and I think that we can avoid that risk. I hope that he will be able to assure the House today that there is a clear programme of work in hand to avoid the risk of individuals being subject to control orders that are renewed time after time. That was why I intervened to ask whether the two individuals whose control orders were renewed in March 2006 would have those orders renewed next month, if the order is passed. They have already been under control orders for two years. Will they be under control orders for three years, and what will happen after that?
The control order is an important tool in the Government's armoury against terrorism and we cannot underestimate its possible value. However, we must stop and think about using a control order constantly over time. I am certain that introducing more robust ways of considering prosecution will be a way of addressing the situation. However, Lord Carlile was very clear that there
"has to be an end of the order at some point, in every case."
"Some of the controlees have already been the subject of their orders for a considerable time. Their orders cannot be continued indefinitely—that was never intended and would not be permitted by the courts. As a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee: to fail to prepare for this now whether on a case-by-case basis or by legislation (if appropriate) would be short-sighted."
I hope that the Minister—he is a good Minister and I am confident that he has a plan—will be able to assure us in his winding-up speech that, in respect of the two individuals whom I cited and the situation more generally, he has a proposal that will ensure that we will not allow this moral horror to continue. Although a control order is a necessary tool, it is not sufficient to say, "Well, it's necessary, so we'll allow it to keep floating on." I hope that we will hear about what will be done about the longest-running cases.
Patrick Mercer mentioned control orders on individuals who have signalled their intention to join jihad overseas. We are potentially missing two tricks. First, we should publicise more widely the fact that that could lead to a control order. A number of people—not a very large number, thank goodness—see themselves as future martyrs and think that they can achieve that internationally. If they knew that they were likely to be subject to a control order, their activities would be more circumscribed.
Secondly, what efforts have been made to try to straighten out the perverted thinking of these people? I suspect that it is possible to do that in some cases. Often we are not talking about people who have been directly involved in planning acts of sabotage in the UK. Some of them may not have thought through the full consequences of their actions. The work on the rehabilitation of violent prisoners shows that it is possible to change some thinking. I do not know whether the Minister has the power to make such efforts, but I would be interested to know whether there is any such power, or any prospect of working with people who are subject to control orders to help them confront the possible consequences of their plans. That might help to divert them and it would certainly help to make the rest of us safer.
On the fundamental point, the most important issue in Carlile's report is time, and I hope that the Minister will be able to reassure the House that he is developing proposals to ensure that control orders are used not as a long-term solution to the problem of terrorism but appropriately as a shorter term solution to enable the state to develop effective prosecutions or take other actions—for example, against breaches of the control order. Unless we can show that we are doing that, we risk breaching international human rights standards—unlike Mr. Cash, I am glad that those standards apply to this regime—and bringing ourselves into international disrepute, and I do not think that this country deserves that.
"there will be every opportunity for people...to put forward amendments to make arguments about the legislation without putting at risk the entirety of that legislation".
We had hoped that today would provide that opportunity because we believe that the control order regime is, for various reasons that have been explained, imperfect and in need of extensive revision.
In particular, we maintain our serious concerns that the standard of proof required for the Secretary of State to sign non-derogating control orders, which was referred to earlier, is too low; that the power to impose such orders should reside with the court, not the Home Secretary; that they should be strictly time-limited; and that they should be subject to regular and thorough reviews on the possibility of proceeding beyond the orders and towards prosecution.
Those are not flippant reservations. They have been expressed already in the debate today. They have been reinforced by the excellent work of the Joint Committee on Human Rights and others. They cannot simply be ignored from one annual debate to the next. Yet, despite repeating those reservations at every turn of the debate during the last two years since the legislation was introduced, we find ourselves forced into a corner on a vote that provides no opportunity for amendment. It is reasonable to ask whether those long-standing reservations have been strengthened or weakened by the experience of control orders since we last debated them here 12 months ago.
The record is not an encouraging one. As has already been observed, three of the 18 controlees have absconded, escaping the strictures of their control orders altogether. The High Court has ruled against the Home Secretary on no fewer than three occasions. The latest ruling, from Mr. Justice Beatson, made last week, is typical: the control order was quashed on the grounds that it amounted
"to a deprivation of liberty and only the courts, not the Secretary of State, have power to make such orders"— in other words, the Secretary of State exceeded the powers given to him—and because
"the Secretary of State failed to consider properly and fully whether the controlee could be prosecuted for criminal offences rather than being made subject to a control order".
The latter observation, as others have pointed out, is crucial, and it is echoed in the second report of the independent reviewer of control orders, my noble and learned Friend Lord Carlile of Berriew, released two days ago, in which he states that
"continuing investigation into the activities of some of the current controlees could provide evidence for criminal prosecution and conviction".
That builds on his telling observation in his first report, published a full 12 months ago—this is not new—in which he said:
"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."
That is compelling evidence, and our fears that control orders would remove the pressure on the police and others to bring charges and pursue prosecutions have considerably increased, rather than diminished, with time.
We should be devoting more time to working out how to bring more terror suspects to court rather than simply renewing an increasingly flawed control order regime, which even the current Home Secretary has agreed is "full of holes". More could be done, for example, to clarify the so-called threshold test used by the Crown Prosecution Service in terror cases so that charges can be brought even in cases where all the necessary evidence is not yet fully available, for instance because of the complexity of computer-based evidential trails, but there is a good prospect that it will become available.
As the Attorney-General has tentatively suggested, we should re-examine the circumstances in which the police can question suspects after charge. If we relax the rules to allow more extensive questioning, with clear safeguards against abuse in place, we would make it far easier for the police to continue investigations after formal charges had been laid.
We must find a way to introduce phone-tap evidence in court, with protections for the security services so that agents and surveillance methods are not compromised. As the Government have accepted, intercept evidence could be vital in delivering terrorist suspects to trial.
Does my hon. Friend share my concern that the reason for the delay in dealing with the question of intercept communication may be not concerns from the intelligence service but objections from the commercial elements of the providers of mobile phones and telecoms in this country?
My hon. Friend makes an interesting and intriguing observation. I was not aware that that might be the case. Frankly, I am in the dark about precisely what the objections are. The Government seem to be not entirely of one mind. The Attorney-General has said in public, for example on a recent visit to the United States to see the use of intercept evidence there, that it could be a powerful tool in our common struggle against the contemporary terror threat. I hope that the Government will follow up their attempts to emulate the practices of France, the US and others, who find our reticence on this point very difficult to comprehend.
Finally, we could use plea bargaining more actively to encourage so-called super-grasses—lower order suspects on the periphery of plots—to give evidence against more serious criminals. The Government have already passed plea-bargaining legislation to tackle organised crime. Why not use it also to thwart terror plots? Combined with essential efforts to build trust in our Muslim communities, that could help encourage individuals to testify and help us bring terrorist masterminds to court.
It is not unreasonable then to conclude that the persistence of the current control order regime is proving increasingly difficult to sustain in the courts and increasingly flawed in practice. It removes, or appears to remove, the pressure to charge and prosecute the criminals whom we all want to see apprehended. It diverts energy and attention away from other important innovations that we should be examining to strengthen our criminal justice system, and it infringes the most fundamental principles of due process and human rights.
We understood the exceptional circumstances facing the Government when these powers were rushed on to the statute book. We enthusiastically supported the then Home Secretary's promises that the control orders would be comprehensively reviewed in a wider review of anti-terror legislation. We acknowledged that the
On the question of human rights, as the hon. Gentleman will remember, there was an understanding between my Front-Bench colleagues and his party that there would be ring-fencing of the Human Rights Act 1998 with respect to control orders, so I hope that he understands that if I go into the No Lobby to vote against the continuance of the measures, which are huge, it is entirely because I am against the proposition that the Human Rights Act should be ring-fenced in relation to the provisions.
The hon. Gentleman is clarifying his position, and obviously he is free to do so, but I do not agree with the supposition, and judging by the way in which my hon. Friend Mr. Oaten shakes his head—he would have been party to the understanding to which the hon. Gentleman alludes—it is not an event that he can recall.
Surely in the circumstances it would be irresponsible not to signal that we should today pause and reflect on the changes that are necessary to the flawed control order system. Surely it is the role of the House to scrutinise the effect of control orders, and to draw a line in the sand when it is abundantly obvious to all that they need to be reviewed and replaced. I hope that the Minister will respond to our objections and reservations, accepting the seriousness with which they have been held and developed over a prolonged period. Those objections are sincere and have been confirmed by experience.
I listened to the hon. Gentleman's concerns, many of which are valid, and to the concerns of the respected hon. Member for Newark (Patrick Mercer), who in a sense has put the Government on one year's notice. If Mr. Clegg intends to lead his party in opposing the renewal order today, will he tell the House what he thinks the effect of failing to renew the provisions will be on people who are subject to control orders, and what will that do for public confidence in our security services?
If control orders were no longer a tool that could be used on the 18 individuals in question, I hope that two things would happen. First, I hope that those for whom there is evidence would be charged and prosecuted. We have learned in Lord Carlile's report that it appears that that would be the case in at least some of the 18 cases, but I do not know in how many of them. Secondly, as to the others, of course I hope that the police and other authorities would be able to subject them to surveillance, as happens in many other cases, so that they can gather evidence and bring charges that lead to full prosecutions.
If I may, I shall conclude, because there is not much time in this short debate. We have reservations; the Minister shakes his head, but we have been here before. There was the original debate two years ago, when the legislation was first passed, and our reservations were repeated 12 months ago, too. I have at least attempted to demonstrate that the experience of the courts, and the practical difficulties in implementing the control orders, have made those reservations more, rather than less, acute. On that basis, we will seek to divide the House today and will vote against another annual renewal of the control orders.
My first point is that I am extremely glad that Lord Carlile has produced yet another report. We are fortunate to have him to provide insights into the way in which the Prevention of Terrorism Act 2005 operates. I have to say that I was anything but convinced on the subject. The Minister will understand that I have taken a position of principle on the matter, with regard to the former Home Secretary, Mr. Clarke. I have the gravest reservations about the way in which the Act was passed, after an all-night sitting, and about the construction of the Act.
We are not talking about merely technical matters; questions of liberty are raised, and I am deeply worried about the fact that people are not necessarily being given the full opportunity to have their cases adequately considered in the courts in the right manner. I was so concerned about the Prevention of Terrorism Bill when it was before the House that I produced my own Bill, called the Prevention of Terrorism (No.2) Bill, the essence of which was to provide, in a couple of clauses, that we would not ring-fence the Human Rights Act 1998. However, my Front-Bench colleagues insisted on doing so through an amendment to the Government's Bill. It is essential that it is understood that my Bill would have provided for due process, a fair trial and habeas corpus for alleged suspects.
As I say, a question of liberty arises, but unfortunately, the 2005 Act has a convoluted construction because of the problems of entirely avoiding having to deal with the unfortunate implications of the Human Rights Act. There was the whole concept of non-derogating control orders to consider, as well as the Act's convoluted language, and the struggle within it. As one reads the Act, one can picture the draftsman desperately trying to achieve the objectives, which are to provide for proper public security, and to keep under proper control people who are, or who are alleged to be, a serious danger to the public. By the way, given that three of the people subject to control orders have absconded, it does not seem to have worked. One can sense from the very wording of the statute the desperate struggle of parliamentary counsel, who were trying to keep themselves within the framework of the Human Rights Act as far as possible, and that became the object of the exercise. It is a simple fact that if we had legislated without reference to the Human Rights Act, we could have come up with solutions that would have enabled us to achieve all the objectives, namely public security, giving a fair trial to the people against whom there are allegations, providing them with due process, and ensuring that there was habeas corpus.
A red judge, as we call them, can be made available at any time, and as Lord Justice Steyn has said, the most sacred duty of any judge is to support the notion and the practicality of habeas corpus. However, as I put it to the former Home Secretary, who was in such a muddle when answering questions that I asked during proceedings on the Government's Bill and before then, what has been created is a mish-mash—an inadequate, unstructured Act of Parliament that simply does not serve the purpose of maintaining public security on the one hand, or of ensuring fair trial, due process and habeas corpus on the other. Those are my intrinsic objections, and they cannot get more lethal than that.
I understand entirely why my hon. Friend, and good friend, Patrick Mercer said that the Opposition will, with great reluctance, support the Government today. In all fairness, I appreciate that there are complications, but the Minister himself admits that the current situation is not a satisfactory way of dealing with things. Surely this is not the basis on which Parliament should be legislating. Today, the Front-Bench spokesmen on both sides of the House are agreeing, in a virtually empty House, to continue an order that is of huge importance, not only because of the noble Lord Carlile's report, but because of the intrinsic questions that it raises about the relationship of the state to the individual, the liberty of the subject and public security. The measures are to be put to the House on a Thursday afternoon, in a continuation order, after one and a half hours of debate. The issue is of great importance, and we were kept up all night to discuss these incredibly important matters on an emergency basis, but everybody knows that the legislation is not working properly.
I will not carp and be disrespectful, but with the greatest respect to my hon. Friends and Government Members, I point out that we are faced with legislation that is inadequate, hopeless and convoluted. It aims to deal with the central problem of how to balance the needs of public security in relation to terrorism with the issue of liberty, but I regret that we could not come up with a better solution, and that we will continue in limbo for another year. That is extraordinary, which is why I intend to vote against the order, and I have informed the Whips accordingly. It is a matter of concern that we have not had a long enough debate to deal with these serious issues.
There has not been a single mention of the 28-day period. Although it was agreed in the House that 28 days would be the maximum, I have always expressed grave doubts about whether that period would be sufficient. We have only one and a half hours to deal with a matter that led a Home Secretary to resign and provoked enormous debate and, given the Prime Minister's insistence on 90 days, revolt in the Cabinet. So far, however, that period has not even been mentioned. Two former Attorneys-General in the House of Lords said that the minimum period ought to be 45 days. No doubt, they talked to Lord Carlile about the implications of his report and the issues that arose from it. I accept that at this stage it has not been necessary to take up the full 28 days, but that is not the issue, as we must consider whether or not it is necessary to increase that period in the coming year.
I do not know the answer, but we have an arbitrary cut-off date. I am not wedded to 90 days, and would probably settle for 60 or even 45. When the matter was first debated, I believe that Conservative Front-Bench spokesmen did not even want to change the limit to 14 days, although I may be wrong about that. The limit gradually increased until the 28-day period was accepted. However, whether it is 28 or 14 days, that will not necessarily solve the problem at a given time. If we provide proper, fair trials—even the worst terrorists are entitled to a fair trial—and if there is due process, with habeas corpus and proper safeguards from a red judge to ensure that suspects are not ill-treated, alleged suspects can be held for a reasonable length of time. Given modern communication methods and the difficulties highlighted in reports by the Metropolitan police and others, it may be necessary to extend the period beyond 28 days.
Is not the alternative approach to the matters in the order to allow questioning post-charge and wire-tap evidence? If both of those were adopted, there would not be any need for the hon. Gentleman's proposals.
As ever, I listen carefully to the hon. Gentleman, who is a distinguished lawyer. Often, we nearly agree on things to the point of voting together, but he will accept that my decision to vote against the order is not based by any means on the Liberals' position. It is based on my own position, which I have maintained over a period of time. I accept, however, what he said, and the business of wire taps and evidence adduced in court is important in these exceptional circumstances. Recent reports on phone tapping strongly suggest that the practice takes place on a massive scale.
I am glad that the Minister is shaking is head, because I am not trying to make a cheap point, and would never do so. There are substantial grounds for believing that there are many cases in which a lesser degree of evidence is required than in the cases that we are discussing. I take very seriously the point about intercepts made by David Howarth. We must consider the matter carefully, as it leads to a fundamental question that arises again and again. At the heart of my concern about the legislation, as with identity cards, is the balance between the application of the Human Rights Act 1998 and the protection of the public. I have frequently written about that in national newspapers in the past few years. We face enormous terrorist threats and, as the Minister conceded, the danger from terrorism is still severe. He knows that better than me, as he is in possession of facts that are not available to the public at large—I accept entirely the reasons for that. Given the severe danger facing the public and the necessity of maintaining a proper system of liberty for alleged suspects it is essential that we think more carefully—a one-and-a-half hour debate is not sufficient—about the continuation of an Act that spokesmen on both Front Benches believe is wholly unsatisfactory. I have never in my life been more convinced that a piece of legislation has led to a wholly unsatisfactory state of affairs. The Government, the official Opposition and the Liberal party all agree, to adapt the famous words of Thomas Becket in "Murder in the Cathedral", that this is bad legislation for all the best reasons. That is the crucial question that faces us:
"Now is my way clear, now is the meaning plain:
Temptation shall not come in this kind again.
The last temptation is the greatest treason:
To do the right deed for the wrong reason."
I have no intention of voting for the control order.
I wish to make a couple of points about the report by the Joint Committee on Human Rights on the renewal of the order last year. The Committee expressed a number of concerns to which the Government have responded.
It is unfortunate that we should have to debate renewal without the benefit of a further report from the Joint Committee. Lord Carlile's report was published on
The Joint Committee has produced a further report, "Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention", which identifies how we can overcome obstacles to prosecution and provides alternatives to non-jail detention. It supports the points made by my hon. Friend Mr. Clegg about the use of intercept evidence and overcoming other obstacles to prosecution, and it strengthens arguments against the renewal of control orders in the Joint Committee's previous report. Alternatives have been canvassed and examined in detail, and important judicial decisions have been made.
Yes. There are a number of wrong ways of going about this, and we have heard several of them. I believe that control orders in their current form are a wrong way, and that we need an alternative to all detention that breaches civil liberties and, in my view, that of the Joint Committee and that of some judges, breaches the Human Rights Act because of a lack of derogation. The same could well apply to lengthy pre-charge detention of the kind described by Mr. Cash, against which Mr. Winnick has campaigned so assiduously.
In its 24th report on the renewal order, published last year, the Joint Committee argued that the case for a consolidating Act was "potentially quite strong", and that
"the effect of the Home Secretary exercising his power to renew the Prevention of Terrorism Act, rather than to bring forward a Bill, is significantly to reduce the opportunity for parliamentary scrutiny and debate of the control orders regime".
I realise that there was a renewal last year without that opportunity because of exigencies that had arisen in the meantime and the need to introduce further legislation to deal with that. But now we are discussing a second renewal without a clear prospect that any consolidating legislation will be in time for the next renewal, and that both Houses will have an opportunity to debate and amend the provisions that we are currently debating, in an unamendable form, for one and a half hours. Will the Minister assure us that before the next renewal there will be an opportunity for substantive amendment?
The Government's response to our recommendation stated that the Home Secretary was
"grateful to the Committee for its support of consolidating counter-terrorism legislation", and that the Government intended
"to put forward a further terrorism Bill, which will be subject to pre-legislative scrutiny, in 2007."
It is not clear whether those two sentences amount to agreement with the point that we had made.
I also want to say something about the question of compliance with our treaty obligations under the European convention on human rights. We said we were concerned about the fact that non-derogating control orders were
Since then judicial decisions have upheld that view in a number of cases, and disagreed with the Government's view. I hope the Minister will explain why he feels that he has received judicial support for his disagreement with our statement that there is a clear danger that without derogation there will be a breach of the Human Rights Act, and the courts will be able to quash orders.
I would be the first to defend the right of judges to make their decisions according to the rule of law, but the question is which law. That is where the problem lies. Far too much discretion is given to judges, as is clear from the judgment by Mr. Justice Sullivan mentioned in Lord Carlile's report. The degree of deference is now being qualified. I am concerned about the degree of judicial activism that is taking us further and further down the road of entrenching the whole concept of the human rights legislation.
The hon. Gentleman's intervention gave him a good opportunity to set out his very clear view.
The conclusion of the Joint Committee's report deals with the House's right properly to debate whether there should be derogation:
"We... conclude at this stage that we cannot endorse a renewal without a derogation and believe that Parliament should therefore be given an opportunity to debate and decide that question."
We have not been given that opportunity, which is another reason—in addition to those given by my hon. Friend the Member for Sheffield, Hallam and, although without the vote to go along with them, by Patrick Mercer—why I, and others, will vote against the renewal. We recognise, as does the Joint Committee, the need to tackle terrorism, but we believe that without adequate parliamentary scrutiny we risk making matters worse and providing for bad law that will be counter-productive in the long run.
I value the work of the Joint Committee, as I have said before. Its reports are extremely useful.
Lord Carlile's report was published for Parliament at the earliest opportunity, given the recess, namely on Monday.
I shall try to deal with many of the points that have been raised, and correct one, if not two, of my own comments. I recognise the furrow that Mr. Cash is ploughing, but I cannot let him get away with the assertion, for it is no more than that, that if the Human Rights Act is taken away, the need for control orders will disappear entirely. Nor do I accept the assertion that it will disappear, as if by magic, if we introduce intercept as evidence and post-charge questioning. It is simply that: an assertion.
I want to make some progress before I give way. As the hon. Gentleman has made very clear, our time is limited.
It was interesting to note that the hon. Gentleman had no answer to the intervention from my hon. Friend Mr. Watson, other than to express the plaintive hope that somehow evidence would be found against the 18 people currently under control orders and that public safety would prevail.
I clearly stipulated the four areas in which we wanted revisions to the control order regime, a process that is not available to us. I did not claim that flanking legislative measures might serve as a wholesale replacement for control orders; they are necessary in addition to a thorough review and revision of the control orders.
My hon. Friend asked a clear question: what would happen if the control orders governing those 18 were struck down tomorrow. The hon. Gentleman responded that hopefully there would be a bit more surveillance, and hopefully some evidence would come out of the woodwork so that they could be prosecuted. That is not sufficient. [Interruption.] These are not the politics of terror. This is not a little schoolboys' club; we need to be very serious. [Interruption.] I was merely responding to the words of the hon. Gentleman.
Patrick Mercer mentioned a gentleman who entered a mosque. I said that he had not been served with a control order. That was an error: he had been served with an order, but paragraph 26 of the Carlile report makes it clear that he had not breached it. Given that entrance to the mosque was permissible under the control order, there was no obvious reason for the police to pursue the matter.
Not at the moment.
The issue of control orders will not go away. Lord Carlile has expressed the hope—which I share—that the advances we made in the 2006 Act might obviate the need for more and more of them. I think everyone broadly agrees with what has been said about Acts preparatory and other legislation, but Members are wrong if they think there is some legalistic nirvana in which there will be no individuals who remain the gravest of threats to the public but against whom there is not sufficient admissible evidence for a prosecution. To say otherwise is not correct.
Anybody who has dealt with intercept evidence in practice, as I have, knows that it is no magic wand. It might—it will, probably—assist, but it cannot be the be-all and end-all of producing evidence in these cases. I asked the Government to explain why there continues to be a delay in making it admissible in court.
Simply put—the matter is incredibly complex, as I know the hon. Gentleman will understand—the reason is that there needs to be the appropriate legal framework within which that can happen. The Attorney-General and others are considering that and will report in due course.
My hon. Friend has said that aspects of the Prevention of Terrorism Act worry him, and that he has heard recommendations for revisions to the Act. Will he confirm that in 12 months, when we renew the powers, we will be dealing with a revised Act? Will he also answer in more detail the question that I put to the Liberal Democrat Front-Bench spokesman? What would be the effect on British security if the House rejected the renewal order today?
On my hon. Friend's initial point, which was also raised by Dr. Harris, who is a member of the Joint Committee on Human Rights, I cannot give an absolute assurance that within a year we will be looking at revised legislation, rather than a renewal.
We spent the summer, not least because of activities over the summer, examining carefully not only the Government structures, but the legislative framework for dealing with terrorism. As hon. Members know, the report has been sent to the Prime Minister and there will be a response in due course. There may be an additional counter-terrorism Bill, as indicated in the Queen's Speech, before the next renewal is due. I hope that the House would agree that consolidation would be foolish if we were about to introduce a subsequent Bill, given the timing of the Bill if it were introduced—I emphasise the word "if". If there were further changes to our terrorism legislation, that would move consolidation down the line a little, which means that I cannot guarantee that the annual review will not be on renewal, rather than otherwise.
The point about intercept is similar to the excellent point from Mr. Watson. The Minister and I have been talking about intercept for at least two years. I fully understand the complexities, the sensitivities and the delicacies of the issue. Will he give me some assurance that we will not be having this same debate next year and that he will not be giving the same excuses?
I fervently hope so. I want to move to a stage where we can determine, one way or the other, whether the legal framework, the technology and so on are in place to allay the fears of many about intercept evidence. I cannot give the hon. Gentleman the assurance that he seeks because others far mightier and more expert than me will determine those matters, but I fervently hope so. I agree that getting to a stage where there is a definitive collective view in the body politic about intercept evidence is a goal that we all want to achieve. I accept that.
Now that we have covered all those points, I shall make a few more comments; I promise to give way to the hon. Gentleman with at least 20 seconds to spare.
On the point made by my hon. Friend Fiona Mactaggart, we have an elaborate preventive strategy that tries to engage communities, work in all the areas that she suggests to counter radicalisation, and work with those who have been radicalised and are trying to come back from that. On her other point, as far as I am aware, and in the light of all the inspiration that I have had since, the two original and lengthiest control orders do not relate to individuals who are subject to any criminal proceedings for breach. These matters are kept under constant review, but I understand and will consider her point about time and its impact on individuals.
The hon. Member for Newark asked about the control order review group, which has met quarterly since May 2006 and reviews each case. I will explore further whether that is sufficient and whether the review should cover welfare and other aspects identified by my hon. Friend the Member for Slough. Part of the review process deals with exit strategies for individuals coming off control orders and cases where there are not sufficient reasons for a control order to remain in force—a matter to which I have alluded, but which I may not have covered sufficiently.
I hope my comments will not make the Minister's cough worse. I hope he will accept that I am not against controlling alleged terrorists—quite the opposite. My concern and my reason for voting against the order is that control orders will not achieve the objectives that he sets. There are intrinsic contradictions within them between human rights, which should be safeguarded by Westminster, not the Human Rights Act, and public protection, which is the first duty of any Government.
That is absolutely the first duty. I will not go over the arguments with which we began the debate.
I end by responding to the four points from the hon. Member for Sheffield, Hallam. Whatever one's position, it is not right to suggest or imply that control orders, as he said, remove the pressure on the police to prosecute, rather like Lord Carlile's remark in passing—no more—that control orders are used as a feeble excuse by those who cannot be bothered to undertake a full prosecution or, in his colourful terms, as a prophylactic. I do not think that that is fair on the police. It is entirely unreasonable.
The notion of a threshold test has been thrashed around. We are confident that the present test for prosecution or control orders is about right. Clearly, it will always need to be reviewed. The hon. Gentleman knows that the threshold is far higher for derogation orders. We think that that is about right, but it is not necessarily a panacea.
We have told the Joint Committee on Human Rights, among others, that we will seriously consider the issue of post-charge detention. That was alluded to in previous debates as well. I can assure the House that we will do so. If we think there is some merit in that, we may introduce such proposals in a Bill, if there is a Bill between now and the next chance for renewal.
As I said, a substantive debate is needed on intercept evidence, and that will take place. The hon. Gentleman is right that we should reach a conclusion sooner rather than later, but in an informed fashion. He is right to suggest that the legislative basis exists for dealing with supergrasses and people in lower positions involved in conspiracies against those higher up. So in at least two of the four aspects that he identified, provisions are in place, although I admit that they should perhaps be utilised more by the authorities—