'After sub-paragraph (b) in section 2(1) of the Prevention of Terrorism Act 2005 there is inserted—
"; and (c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence."'.— [Mr. Dismore.]
Brought up, and read the First time.
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With this it will be convenient to discuss the following:
New clause 6— Control orders: ongoing review of possibility of prosecution—
'After subsection (6) of section 8 of the Prevention of Terrorism Act 2005 there is inserted—
"(6A) The Secretary of State shall, throughout the period during which the control order has effect—
(a) ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every three months;
(b) consult the police prior to such review; and
(c) share with the police such information as is available to him which is relevant to the prospects of a successful prosecution."'.
New clause 7— Control orders: reasons for decisions on prospects of prosecution—
'After subsection (2) of section 8 of the Prevention of Terrorism Act 2005 there is inserted—
"(2A) If the chief officer advises the Secretary of State that there is no realistic prospect of prosecution, he shall give reasons for his view.
(2B) The chief officer's reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest."'.
New clause 8— Control orders: cumulative effect of restrictions relevant to determination about deprivation—
'After subsection (10) of section 3 of the Prevention of Terrorism Act 2005 there is inserted—
"(10A) In determining whether the effect of a non-derogating control order is to deprive a person of their liberty, the factors to which the court shall have regard must include,
(a) the nature, duration, effects and manner of implementation of the restrictions, and
(b) the cumulative effect of the obligations.
(10B) The combination of obligations may amount to a deprivation of liberty even if no individual obligation amounts to such a deprivation."'.
New clause 9— Control orders: maximum limit on daily curfews—
'After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 there is inserted—
"(5A) The duration of any prohibition or restriction on the controlled person's movements shall not exceed 12 hours in any 24 hour period."'.
New clause 10— Control orders: right to a fair hearing—
'(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 there is inserted—
"except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"except where to do so would be incompatible with the right of the controlled person to a fair hearing".
(4) After paragraph 4(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights."'.
New clause 11— Control orders: obligation to give reasons—
'(1) After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 there is inserted—
"(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in section 2(1) above are made out."'.
New clause 12— Control orders: obligation to provide gist of closed material—
'(1) At the end of paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"and must require the Secretary of State to provide a summary of any material on which he intends to rely and on which fairness requires the controlled person to have an opportunity to comment."'.
New clause 13— Control orders: communications between special advocate and controlled person—
'After sub-paragraph 7(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"(5A) Rules of court must secure that persons appointed under this paragraph may apply to a High Court judge, without notice to the Secretary of State, for permission to communicate with the controlled person after the service of closed material."'.
New clause 14— Control orders: proportionality of procedural protection—
'After subsection 3(11) of the Prevention of Terrorism Act 2005 there is inserted—
"(11A) In a hearing to determine whether the Secretary of State's decision is flawed, the controlled person is entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person."'.
New clause 15— Control orders: power of special advocates to call expert witnesses—
'After paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted—
"(ea) that, where permission is given by the relevant court not to disclose material, persons appointed under paragraph 7 may call witnesses to rebut the closed material."'.
New clause 16— Control orders: maximum duration—
'After section 3 of the Prevention of Terrorism Act 2005 there is inserted—
"3A Duration of non-derogating control orders
A non-derogating control order ceases to have effect at the end of the period of two years from the date on which it was made, unless there are exceptional circumstances justifying its renewal."'.
Amendment No. 11, in clause 74, page 54, line 8, leave out subsection (2).
Amendment No. 12, line 40 , leave out subsection (4).
This group of new clauses and amendments relates to control orders. When we debated the renewal order in February, the control order regime was subject to considerable criticism. I agree with the Government that the control order regime is the second best option after prosecution. If the control order regime is to stay, we must review the safeguards and ensure that it is compatible with human rights law. We are discussing restrictions on liberty without a criminal charge or trial.
New clauses 5 to 7 refer to the importance of prosecution; new clause 8 relates to the nature of control orders themselves; new clauses 10 to 15 concern due process; and new clause 16 relates to an exit strategy. In the case of E, the House of Lords said that there was an implicit duty on the Government to keep the possibility of prosecution under review. Baroness Hale said that control orders were second best and that the public were far better protected, because even while criminal proceedings are pending, the controlled person is subject to serious restrictions on the basis of mere suspicion.
I welcome the introduction of the control order review group's quarterly meetings to consider whether prosecution can take place, but not one controllee has ever been prosecuted. New clause 5 would put an extra check on whether prosecution was possible by requiring the Director of Public Prosecutions to certify that there was no reasonable prospect of prosecution before an order could be made. We know that the DPP is quite important in such matters because of the debate that we are likely to have tomorrow.
New clause 6 would make statutory the duty to keep matters under review. It is current practice; the Government agreed recently with the control order review group. In the case of Secretary of State for the Home Department v. E, they argued that they needed to have only periodic inquiries into whether the matter should go forward, so we need to ensure that the provision is included in the legislation. It is also important to ensure that the police see all the material available to the Home Secretary. They may well be able to turn some of what is currently inadmissible into admissible evidence; they have had some success in doing so in other terrorist cases. Lord Carlile, in his third report on control orders, made the point that the continuing investigation of current controllees could provide evidence for prosecution and conviction, so the new clause would give effect to his recommendation, too.
New clause 7 would provide for more transparency in the process and, again, would give effect to a recommendation from Lord Carlile in his third report, when he said that more detail about the reasons why there were no reasonable prospects of prosecution should be given by the chief of police to the Home Secretary. The new clause would also give effect to recommendations from Lord Carlile's first report in 2006, when he said that the reasons should be disclosed to the controllee unless that would be contrary to the public interest. The new clauses would give effect to his recommendations in those two reports.
New clauses 8 and 9 are about the nature of the control order and whether it amounts to a deprivation of liberty—against article 5 of the European convention on human rights. If it does, it should become a derogating control order. That would happen only if the courts authorised it. Whether the order amounts to a deprivation of liberty is a question of not just the length of the control order, in terms of the number of hours per day, but the conditions imposed in combination. In the case of Guzzardi v. Italy, the European Court of Human Rights found that when combined with other restrictions, nine hours maximum amounted to a deprivation of liberty. We must have a more nuanced approach than simply stipulating the number of hours and a curfew.
Lord Bingham in the case of the Secretary of State for the Home Department v. JJ said that one should take account of the individual's whole situation, and that it was inappropriate to draw a sharp distinction between a period of confinement that would amount to a deprivation of liberty and one that would not. New clause 8 would make that point in the Bill, looking at the overall factors that must be taken into account.
The period of daily confinement is, of course, important in the overall assessment, and new clause 9 therefore seeks to limit the daily length to a maximum of 12 hours. There is no guarantee that it would be compliant with article 5. After previous court cases, the Government reduced some periods to 12 hours. In fact, there is little evidence of any significant damage to public protection in reducing control orders to 12 hours. If there were any such evidence, the Government should and would have produced it by now.
"It may be, indeed, that 16 hours itself is too long" , but that he wanted to leave it to the Strasbourg Court to decide. That is hardly a ringing endorsement of the Government's view that 16 hours is permissible. We have no clear judicial guidance and Parliament therefore ought to form its own view, which my new clause would enable it to do.
The most important issue that we must face is the lack of due process. New clauses 10 and 15 are based on the recommendations that the Joint Committee on Human Rights put forward in our 10th counter-terrorism report in May. They are rooted in the evidence that we received from the special advocates who deal with such cases. I hope that my right hon. Friend the Minister will meet them, as he has promised to do, to discuss their concerns further.
Once a controllee enters the twilight zone of dubious legality, he faces restrictions on where he can go and when, who he can meet, his use of his phone and computer and his transfer of money and goods. He also faces requirements to report to the police, to allow the police into his home without a further warrant and many other restrictions. The controllee enters a Kafkaesque world in which, like those unfortunates who were brought before Henry VIII's Star Chamber, he is not told of the case against him, is not allowed to discuss his case with his special advocate, sees the case against him decided on the ground of mere reasonable suspicion and, at the end of the process, is not given the reasons why the order against him was made. On that basis, people have been subjected to controls for three years so far, and remain so indefinitely—in some cases on top of three years' previous detention without trial in Belmarsh. We know that the security services can make mistakes, not only in the de Menezes case but in the Lotfi Raissi case, which has had such a serious impact on an innocent man for the rest of his life. It is essential that safeguards are brought into play so as to have at least some element of due process in the control order regime if they are to continue to be used to protect the public.
The Government say that the House of Lords approved their procedures in the MB case, but some of our criticisms were upheld—for example, of the entirely undisclosed nature of the prosecution case. The Government have ignored the evidence given to us by the special advocates, and the guidance on MB is somewhat confusing. Indeed, another case is going to the Court of Appeal next month. This area of the law desperately needs clarification. I accept that some of the points that we have put forward are not required in relation to MB, but they are needed to achieve a modicum of fairness. New clause 10 would avoid the need for mental gymnastics by ensuring that the controllee would be entitled to a fair hearing. There is a lack of certainty in the Bill that needs correction.
New clause 11 would require an explanation to be given to the controllee of why the grounds for the control order were made out. New clause 12 would require the controllee at least to be aware of a summary of the material—the gist—which fairness requires him to be able to comment on. New clause 13 would allow the special advocate to apply to the court for authority to discuss aspects of the case with the controllee. That would be a safeguard from the security services' point of view. It would ensure that there was an independent assessment so that the special advocate did not disclose matters that he should not disclose, but at the same time provide a degree of fairness. New clause 14 would provide a procedural protection for what was happening on a scale concomitant with the seriousness of the conditions to be imposed. New clause 15 would allow a rebuttal of expert evidence to be brought. Together, these new clauses, which are based on recommendations from the Joint Committee on Human Rights and rooted in the evidence that we received from the special advocates, would provide a greater degree of legal certainty and procedural fairness, which are essential if the control order regime is to continue into the future.
We should also consider the duration of control orders. Seven of the 15 people involved have been under control orders for more than two years, and two for more than three years, on top of three years' detention in Belmarsh that was later found to be unlawful. Not one of them has ever been prosecuted. Nine controllees were serving deportation notices and six have been deported. One control order has been revoked and two were not renewed. Lord Carlile drew our attention to the fact that after that length of time such people are of somewhat questionable utility to terrorist groups, which prefer to operate with "clean skins", not those who are so clearly compromised. The restrictions on freedom may not be Guantanamo Bay conditions, but they certainly provide a gilded cage in which people are confined indefinitely, and we therefore need to see an exit strategy. My new clause suggests a sunset clause of a maximum of two years on a control order unless there are exceptional circumstances. There is no clear human rights argument as to what should be the maximum length of time, but that chimes with Lord Carlile's recommendation of a maximum two-year presumption unless there is a genuinely exceptional need. It is a question for Parliament to debate and decide.
Control orders are definitely a second best option to prosecution. We have to ensure that they are not unduly oppressive, that they are subject to due process and procedural fairness, and that there is ultimately an end to them in sight.
Mr. Dismore and his Committee have done the House a good service in coming up with these new clauses and amendments and an opportunity to debate control orders. Many in this House will remember our original debate on the introduction orders in 2005. It is rather engraved on my heart as a debate that went on for some 36 continuous hours of ping-pong between the other place and this House. The curiosity of that debate was that although considerable anxiety had been expressed about the introduction of control orders, the issue on which consensus eventually disappeared was whether we should have a sunset clause in the measure to ensure by bringing it to an end within a reasonable period that the House would have to revisit it and think afresh.
I sometimes think that the opinion of those of us who wanted a sunset clause has been borne out by events. In fairness to the Government, I can fully understand why they have been coming back to the House year by year asking for the renewal of the power. I suspect that no one in this House likes control orders; certainly, none of us should. I think that I used the word "repellent" to describe the concept when we debated them in 2005, and I have seen nothing since to make me change my mind. The principle of enforcing restrictions on individuals and their liberties without the ordinary trial process is something that we cannot be happy about, although I have always accepted that there may be a necessity in view of the threat that we face. Being realistic about it, I can see that the Government are in a position to continue making a powerful case that renewal may be needed for the foreseeable future. All the more reason, therefore, why we should take the opportunity provided by the Bill to revisit what the architecture of control orders involves.
The Committee chaired by the hon. Member for Hendon has made an extremely important contribution to this debate, and the amendments that he has tabled are extremely valuable, even if each one probably needs to be considered separately. On new clause 5, the principle that there should be a requirement for a certification process that prosecution is not possible is one of the important safeguards that should be introduced into the control orders system. I do not doubt the Government's good faith, and I have no reason to doubt the good faith of the Crown Prosecution Service, in respect of the fact that every effort must be made to ensure that individuals who are subject to control orders are prosecuted wherever possible. I leave to one side the debates that we have had about intercept evidence. I do not want to return to that subject and get bogged down in it, although I believe passionately that it might be of some assistance, if not a panacea, to have intercept evidence admitted. Nevertheless, it would be a valuable contribution to have a situation whereby, irrespective of whether we have intercept evidence, the Director of Public Prosecutions could provide such a certification process on the basis of the available evidence that is admissible in court. I very much hope that the Minister might feel able to respond positively to new clause 5, because I find it difficult to see why any rational individual should object to it.
Many of the hon. Gentleman's other amendments are very sensible. I am bound to say that I am sympathetic to his view that there should be a finite period for control orders that do not involve a derogation. It might be premature for the Government to accept it at this stage, but I think that it is time for us to look carefully at the relationship between the special advocate and the person who is to be made subject to a control order to see whether we can make the system more flexible to enable better representation to take place.
Perhaps more controversially, the hon. Gentleman raises in new clause 9 the possibility of restricting to a period of 12 hours control orders for which derogation is not required. We are certainly in a grey area. We seem to have some confidence that 14 hours may be acceptable, but that 16 hours may, in some cases, not be acceptable. Having greater certainty might be valuable, but it is a matter on which I would want to hear from the Minister what he thinks would be appropriate.
I can only repeat that I am grateful to the hon. Member for Hendon for having introduced the new clauses, but before I allow time for further debate, and mindful of the fact that we have only half an hour to conclude the debate on this group, I repeat my view that new clause 5 merits the Government's acceptance, even if they cannot accept anything else. Such acceptance would be a symbol of their good intent, and I do not see how it would interfere with the current system. If they are prepared to make some concession in the proposed direction, they will be in a much better position, when we come to renewing control orders next year, to say that they have made some progress in this matter.
If the Minister were minded to look sympathetically at new clause 5, and perhaps assure us that even if he does not accept the other new clauses, the process of debate in the other place might prove productive in seeing whether we can adopt some of the suggestions raised by the hon. Member for Hendon and his Committee, the House would have made good progress this afternoon. I would then be in a position to say even nicer things to the Minister at the end of the debate on this group than I did at the beginning. New clause 5 is important, and I hope that the House will have an opportunity to express its view on it.
The Liberal Democrats oppose control orders. However, when proposals are made to ameliorate them, they are worth looking at, and Mr. Dismore has introduced on behalf of his Committee a raft of sensible proposals that would go a long way towards improving the orders. Unfortunately, the way in which they were rushed through meant that they are not watertight; indeed, the former Home Secretary described them as full of holes.
The hon. Member for Hendon, through new clauses 5 to 7, is encouraging prosecution as an alternative to control orders, and we would all support that. In new clauses 8 and 9, he seeks to improve conditions for people on control orders. I do not know whether other hon. Members have seen the book by Gareth Peirce, in which she describes in some detail the impact that control orders have on people:
"The electronic tag they had to wear, which registered every entry and exit from the house, was only one element of the family's altered existence; a voice recognition system was supposed to confirm the detainee's presence at home during curfew, but the machines, of US manufacture, often failed to recognise the accents of Arabic speakers, with the result that uniformed police officers would enter the house in significant numbers at all times of day and night. No visitor would come near their homes because to enter required first to be vetted by the Home Office. Children could do no schoolwork that involved the internet, the use of which was forbidden. Families had endlessly to involve lawyers in the most trivial matters: to obtain permission to go into the garden; to attend a parent-teacher meeting; to arrange for a plumber to enter the house."
We should not underestimate the significant impact that control orders have on the people to whom they are applied. It is therefore entirely right that the hon. Member for Hendon and his Committee should seek ways to improve the conditions of people subject to those orders.
The hon. Gentleman's new clauses 10 to 15 would tighten the rules on hearings, and new clause 16 would restrict control orders to a maximum length of two years, except in extraordinary circumstances. We believe that the system is unjust and that the proposals made by the hon. Gentleman and his Committee are sound. If there is a vote on this matter, it is our intention to support his proposals.
As others have said, control orders are a difficult concept. Many of us have experience of control orders in respect of other legislation and know how they have worked and how their effects have been felt. Although Mr. Dismore and his colleagues have not been able to challenge fundamentally the use of control orders as provided for in the 2005 legislation, their new clauses propose that preconditions and conditions should be attached to the use and deployment of such orders, which is to be commended to the House.
The preconditions and conditions that would be attached to control orders are entirely reasonable. If the Government are telling us in respect of other measures in the Bill that the opinions, feelings and findings of the Director of Public Prosecutions should be relevant and should motivate moves by the Secretary of State and Parliament, surely in the case of control orders, we can hear from the DPP about the prospects of a prosecution. That would not become a one-off, jeopardy judgment, because the other proposals provide that it could be subject to further review, on a timely basis, every quarter, while other aspects of the control order would also be subject to review.
It would be entirely unreasonable, given all we have said about control orders being repellent to some of us, and given what the Government say about such orders being a matter of last resort, to refuse the proposals of the hon. Member for Hendon and others. I know that time is tight because of the programme motion, so we cannot go through them all, but I endorse what was said by Mr. Grieve—the Government could signal a degree of openness and consideration by agreeing to new clause 5. That would allow further consideration of the consequential and related issues as the Bill progresses.
I am not opposed to control orders, but I see them very much as a last resort. I return to the continuous concern that whatever we do must be seen in the context of accepting last resort measures only when they are necessary. It is for that reason that I support the request that the Minister should agree to new clause 5. We need to remove from the penumbra of control orders any aspects that can be reasonably seen, as Mark Durkan said, to be redolent of circumstances in which powers were used in a manner about which we feel sorry in retrospect; one aspect is a constant understanding that there is no alternative, albeit the alternative of a trial and prosecution. That is one of the things we have to do to earn the right to have control orders in a free society.
The Minister can help the Government to recover their necessary reputation on such issues, which perhaps has been lost because of their determination to push in what many of us feel to be an illiberal direction on a number of other issues, some of which we shall come to later tomorrow. My hon. and learned Friend Mr. Grieve is right to suggest that it would be much more elegant for the Government to accept the changes than to allow them to be put to a vote. I use the word "elegant", but I mean that it would be useful for the Government if they were seen to understand what some of us have felt it necessary to harry them about—their attitude in the matters that we feel unhappy about. They could show themselves able to reinforce the consensus, even among those of us who accept the need for control orders, that such orders should be subject to regular review. That could begin with the suggestion that it is necessary to ensure that there no alternative. That is, after all, not much to ask in a free society.
Personally, I am adamantly opposed to control orders, but they are a reality, and we are told that they serve a purpose. The proposals in the group would go some way towards ameliorating some of the concerns out there about the use of control orders. Requiring that
"the DPP has certified that there is no reasonable prospect of" a successful prosecution is not asking a great deal in the circumstances. If a person has been put on an 18-month or two-year control order, with stringent conditions attached thereto, that requirement is the very least that we could call for. New clauses 6 and 7 propose the periodic review of whether there is a reasonable prospect of prosecution, which is also utterly reasonable, bearing in mind the huge limitations on the liberty of the individuals who are the subject of such orders.
The proposals are all well meant and would improve the control order mechanism. They would not render the mechanism unworkable or in any way less effective, but they would—if I can use this word—humanise it and send out a positive signal to the people out there who are desperately concerned about the purport of such orders. In so doing, the proposals would address quite a few of the human rights questions on this area of law that concern us all.
With those few words, I fully endorse the ideas behind the new clauses and amendments in the group. I urge the Minister, as others have, to consider accepting new clause 5 at the very least.
I, too, welcome the work of the JCHR on control orders. Indeed, dwelling on control orders has become one of its fixations—and, given their unique and extraordinary nature, quite rightly so for a Joint Committee on Human Rights. I therefore do not deprecate its work at all. However, the Government would look to the highest court in the land, the House of Lords, for our legal reference point, rather than the JCHR, however munificent—or whatever the word is—it is.
To tackle things backwards, I do not accept anything in new clauses 10 to 15 that challenges directly the conclusions of the most recent House of Lords judgment on the process and whether a fair trial, or otherwise, has been accorded under article 6. Nor do I accept the passing reference that my hon. Friend Mr. Dismore made to the dubious legality of control orders. We might not like control orders; they might sit in a twilight zone and they might be deeply unsatisfactory compared with persecution—I do apologise; I meant prosecution—which of course they are, but it is simply not good enough to say, "We're against them."
On one level, we are all against control orders. I start from the premise that Mr. Gummer set out of "as much normality as possible". In fact, I got into trouble last September for saying that the strongest lesson that we should have learned post-7/7 was that the rules of the game had not changed, and not the opposite. That was indicated by the Government of whom I was part at the time.
I will therefore resist the blandishments of my hon. Friend the Member for Hendon on new clauses 10 to 15, however well intentioned the work of the Joint Committee was. We think that they are unnecessary. Given the choice between a report, however well intended, by the JCHR and a judgment by the House of Lords, we find ourselves, as we always are, of course, on the side of the Law Lords.
There is much to commend in the broad thrust of my hon. Friend's new clauses 5, 6 and 7 on the renewal of control orders, as, from memory, I think I indicated last time. However, the formalisation that he seeks simply goes too far. There are reasons why I do not think that it would be appropriate always to go for non-urgent control order certification by the DPP, as proposed by new clause 5. My hon. Friend will know that the Lords scrutinised the matter at length. They concluded that no changes to section 8 of the Prevention of Terrorism Act 2005 were required. The Lords considered that there were "strong practical reasons" for the current approach and that the changes would have the
"potential to emasculate what is clearly intended to be an effective procedure".
As I have already said, consultation arrangements are built into the legislation. As I think I said at the last annual review, should we make it clear that the processes for reviewing the potential for prosecution are all the sharper and clearer? Yes, we should. Should we look seriously into—and prove that we have looked seriously into—exit strategies for particular individuals? Yes, we should. Indeed, we have set out a range of ways in which we are seeking to do that. However, there are both principled and practical reasons for me to resist the substance of new clause 5, if not, in part, the spirit.
First, new clause 5 could leave a public protection gap. A control order may be necessary to protect the public from the risk of terrorism posed by an individual, even though prosecution of that individual is possible. For example, an individual may be on bail, pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions that a judge would lawfully be able to impose on the individual, meaning that a control order is imposed in the interim to manage that risk.
Secondly, new clause 5 could damage other investigations or prosecutions, or otherwise damage the public interest. My hon. Friend will be more than aware that, in addition to the purely evidential threshold, the Crown Prosecution Service is obliged to consider prosecution in the context of the wider public interest. Thirdly, and more practically, the proposal would be resource-intensive and does not take account of operational realities.
By the by, if that last point were the only one, it would not be sufficient, given the seriousness of the deprivation of liberty. Taken together, all three points militate against accepting new clause 5. However, I accept the spirit, if not the intent, of the comments that my hon. Friend and Mr. Grieve made in saying that we need to be as clear as possible that we have considered everyone's collective preference—that is, prosecution—in great detail and that, in addition, we have properly reviewed the prospects for a prosecution in future and an exit strategy. In part, that is what my hon. Friend is trying to get to in new clause 6. Again, however, new clause 6 as drafted, and probably in intent—although I am not imputing any malign intent—, is inappropriate.
It is important that we do not undermine the independent role of the CPS and the police. Very often—I say this merely in passing and no more—the very committee that should be more jealously guarding than any other the difference between the police, the CPS and the various arms of the state, and the interaction between the judiciary, the legislature and the Executive, couches some of its reports in terms that suggest that the Executive run the judiciary and legislature, which is not entirely appropriate. [ Interruption. ] I thought I heard my hon. Friend Mark Durkan say something then, but he points to the Liberal Democrat Benches—he must have thrown his voice.
The independence of the CPS and the police is important. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in that responsibility could undermine its role. So the notion of the review group looking at the future prospects for prosecution is, given the interface between the police and the CPS, appropriate. I would say that the proposed new subsection (6A)(a), (b) and (c) are unnecessary. The statutory obligations of the 2005 Act, combined with court judgments, already deliver the intention behind the amending provisions, and the courts have confirmed that the Secretary of State must consult the police on the prospects of prosecution and do what she can to ensure that the police's consideration is meaningful by providing any relevant information available to them. We looked into the matter at the last review and we undertook to try to achieve that significantly better and in a clearer way, but it is not necessary to build it into the Bill in the way that my hon. Friend the Member for Hendon intends in new clause 6.
The Minister talks about the prospects of prosecution and who is involved in the process, but may I take him back to new clause 5? He relies heavily on the issue—to be debated tomorrow—of involving the Director of Public Prosecutions in decisions about the number of days for which people should be detained, so why is he now resisting the idea of the DPP saying whether there is a reasonable prospect for successful prosecution in respect of control orders?
For precisely the reasons that I have just outlined— what that might do to broader public protection, what it does in respect of resources and what it might well do to the interface between the decision on whether to prosecute an individual and the myriad of other potential prosecutions going on around it. The threshold test does not live or die on its own in this or any other regard; and alongside that is the notion that the prosecution is in the public interest. The interplay between the three factors is important. It is not to denigrate here or anywhere else the role of the DPP, but it is important to understand the interface between those three elements. I wholly appreciate the professional role of the DPP and, of course, the Crown Prosecution Service, to date and subsequently.
I believe that Mr. Gummer raised the question about the legitimacy, particularly the political legitimacy, of the process with the general population and the people who may be subject to these orders. Surely the safeguard is that people affected would have some sort of verification that someone in the process, such as the DPP, in whom the Minister invests a lot of confidence, was involved. Is that not only politically useful, but useful in respect of the utility of the process?
But I—or, rather, the courts—have already suggested that we are obliged to ensure that the review and monitoring of the prospects for prosecution are constantly kept under review. That is already an obligation imposed by the courts. It is the specifics of the certification by the DPP that trouble me in relation to the interface between resources, other prosecutions that may be germane and the very real risks relating to public protection.
On the Minister's point about the DPP, I find it difficult to envisage circumstances in which it could be said that it was in the public interest to subject somebody to a control order, but not to prosecute them, when the evidence on which to do so was available. That is the first point. The second, which I would add in a spirit of being conciliatory to the Minister, is that I did not mention amendments Nos. 11 and 12. They are relatively minor, but they would deal with the introduction of some retrospective legislation, to which we profoundly object. We will vote against retrospective legislation even though we have no objection to what the Government are otherwise trying to do.
That is entirely fair, and I am grateful to the hon. and learned Gentleman for dropping me a note to explain that he was going to do that. I am happy with that.
In summary, in respect of where the House of Lords is now in view of the latest judgment—to be perfectly fair, it was not as clear as anyone would want in respect of article 5 or 6 or more generally—it is a sort of score draw for everyone. I have already said that I do not regard new clauses 10 to 15 as appropriate or necessary, given what the House of Lords has said about the process. I also disagree with my hon. Friend the Member for Hendon about the "dubious legality" of control orders overall, but it is right and proper for him to have tabled the provisions to allow us to discuss them. I repeat that it may seem churlish to be against new clauses 5, 6 and 7 and to resist the invitation to stay in emollient mood and carry on skipping happy-clappy into consensual uplands—that mood might even prevail tomorrow, who knows?—but I shall do so, not least because the absolute formulaic formulisation, if I may put it in those terms, of those new clauses does not aid the process of securing greater clarity and greater efficiency in the use of control orders in the way intended. That is true because of the obligations we are already under from the courts to do much of what my hon. Friend suggests.
That is not to say that if the amending provisions are not passed, what remains and pertains at the moment is perfect. With the gallant assistance of the courts, we are regularly getting clarity about what should or should not prevail in respect of control orders. I do not doubt that that clarity will continue irrespective of whether the new clauses are passed. In effect, the courts provide as useful a safeguard in the broader sense as possible in dealing with circumstances that I accept are, given the normality of the backdrop of our rule of law, abnormal. I do not doubt either that my hon. Friend the Member for Hendon will, with assistance at the other end of this building, ensure that these matters continue to be up for discussion. As I said at the annual review, given the unsatisfactory nature of control orders, it is right and proper that they should be. I am afraid, however, that I must in the end disappoint the House by resisting the amending provisions.
I gain the impression that my right hon. Friend is bringing his remarks to a close. I would like to press one final point on him—the question of whether it is appropriate to have a maximum period for a control order. I am not wedded to two years, which was simply the suggestion put forward by the Government's own independent reviewer. We tabled the new clauses to allow Parliament to consider that, but let us remember that some of these people have been subject—without a criminal trial and without being found guilty of anything—to six years of control either in Belmarsh or under control orders. Does my right hon. Friend accept that, apart from in exceptional circumstances, there is a case for specifying a maximum length of time, or not?
In the broadest sense there is, but only within the context of everything else that is going on, rather than as an absolute. Given that we are talking about an unsatisfactory provision in the first place and that we are utilising such an unsatisfactory provision to deal with those who sit between the twilight zone of being fully prosecuted or otherwise, I do not see how, even with all the safeguards I have mentioned—monitoring and constantly reviewing prosecutions—there is anything magical about putting a limit of two years in statute regardless of wider public protection and public safety concerns that are part of the reason for the control order architecture in the first place.
I would rather get to the position implied by Lord Carlile of effectively having an operational norm and then going beyond it in respect of the number of years by exception, while concentrating more readily on the monitoring and evaluation of prosecution. We also need, as I mentioned at the annual review, a proper exit strategy for those who have had their order revoked, which has now happened, albeit only in a few instances. If we can get all the assorted paraphernalia of safeguards, monitoring and evaluation right, we could, as Lord Carlile suggested, think about having some nominal length of time for the order, but it is hard to equate putting such a provision in the Bill with wider public safety and protection considerations.
As with new clauses 5, 6 and 7, I am with my hon. Friend the Member for Hendon and his Committee in spirit, but not in respect of holding down the Government and the control order regime to an architecture of elaborate statutory provisions and responsibilities. In the end, that would only unpick the efficacy, such as it is, of the control order process in all its finest glory.
Although it has been a useful discussion, I must disappoint my hon. Friend and urge the House to resist new clause 5 and the other amendments in this group. However, let us keep discussing how we can collectively improve what I accept is an unsatisfactory process.
It being half-past Six o'clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].
Question put, That the clause be read a Second time:—
The House proceeded to a Division.