Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006

– in the House of Lords at 7:26 pm on 15th February 2006.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 7:26 pm, 15th February 2006

rose to move, That the draft order laid before the House on 2 February be approved [17th Report from the Joint Committee and 23rd Report from the Merits Committee].

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, the Prevention of Terrorism Act 2005 was introduced last year in recognition of our need to be able to tackle the threat posed to national security by individuals that we could neither prosecute nor deport. The Government's response to the Law Lords' ruling on the Anti-terrorism, Crime and Security Act Part IV powers was the Prevention of Terrorism Act, which introduced control orders. Control orders enable tailored obligations to be placed on an individual to protect the public from the risk of terrorism. The Prevention of Terrorism Act came into force on 11 March 2005.

The threat posed to the life of the nation by terrorism and the consequences of terrorism is a subject that has necessarily occupied this House on too many occasions. The tragic events of last July brought home to everyone that this is a very real and continuing threat. The UK Government must continue to tackle terrorism. Control orders have a vital role to play alongside other existing powers and the new measures contained in the Terrorism Bill, which was debated earlier in the other place.

My right honourable friend the Home Secretary set out in his Statement to the other place on 2 February why he thought the powers were necessary and why we were seeking to renew these powers for a further 12 months. The report of the noble Lord, Lord Carlile of Berriew, on the operation of the 2005 Act was laid on the same day.

It is in accordance with Section 13 of the 2005 Act that today's renewal debate is taking place. Section 13 provides that the powers contained in the 2005 Act relating to control orders will automatically lapse after one year unless renewed by order subject to the affirmative resolution in both Houses of Parliament.

When the Prevention of Terrorism Act was going through Parliament we gave an undertaking that we would provide the opportunity for legislative change. My right honourable friend the Home Secretary outlined in his Statement on 2 February how we would take this forward and his proposals for the development of a draft Bill to be published in the first half of 2007 for pre-legislative scrutiny.

We would then seek to introduce the legislation later that year. This would provide the opportunity to make legislative changes to the 2005 Act—if that was thought necessary—once the processes in the Act had been through a full cycle and we had the benefit of a further report from the noble Lord, Lord Carlile of Berriew, on the operation of the Act.

I turn to the specific need for the powers. We face a continuing threat from terrorists and terrorism-related activity. Prosecution is and will always remain the Government's preferred course of action in dealing with individuals suspected of terrorism and priority will continue to be given to prosecution. But prosecution is not always possible for a variety of reasons. There may be insufficient admissible evidence, an overriding need to protect sensitive sources and techniques, or other reasons why a prosecution may not necessarily be in the public interest. Deportation is also an option for foreign nationals since removal can provide alternative means of disrupting their activity and reducing the threat to national security. But again this is not always possible, although we have made a considerable amount of progress in agreeing memoranda of understanding with a number of countries which we believe will provide a means by which individuals can safely be returned to their countries of origin.

The Terrorism Bill currently before Parliament will introduce some new offences, including the offence of acts preparatory to terrorism. But there will remain a comparatively small number of cases where we are unable to prosecute, but where individuals pose a very real terrorist threat. In these circumstances, it is vital that the Government and the law enforcement agencies are able to act to reduce the risk that such individuals pose. The report of the noble Lord, Lord Carlile of Berriew, provided support for this view. Paragraph 61 states:

"As a last resort (only), in my view the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society".

Once again I want to take the opportunity to thank the noble Lord, who conducted his analysis with great care and attention. I should also like to thank the Joint Committee on Human Rights for its informative report and detailed reflection on the legislation and its operation. These contributions will be invaluable in informing the House in our consideration of these important issues.

Sections 1 to 9 of the Prevention of Terrorism Act 2005 provide for the making of control orders. These are preventive orders that enable one or more obligations to be placed upon individuals that are designed to prevent, restrict or disrupt their involvement in terrorism-related activity. They can be applied to any individual, whether a United Kingdom or foreign national, where the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorist activity and he considers it necessary for the purposes of protecting members of the public from the risk of terrorism. The obligations can be tailored to tackle particular forms of terrorist activity on a case-by-case basis. Any breach of the obligations in a control order without reasonable excuse is a criminal offence punishable with a prison sentence of up to five years and/or an unlimited fine.

The Act makes provision for two types of order—derogating control orders and non-derogating control orders. The distinction between the two is that a derogation will be required if the obligations either individually or in total amounted to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights. We have not sought to make any derogating control orders. For non-derogating control orders the Secretary of State has to apply to the court for permission to make an order. There is provision in the Act, in the case of urgency, for the Secretary of State to make a control order. This must then be referred immediately to the court. The court must then begin its consideration of the case within seven days. Once a control order is made, an automatic review process is triggered. This judicial review of the Secretary of State's decision provides independent judicial scrutiny.

Control orders have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. An individual may also apply to the court for the order to be revoked or an obligation to be modified where there is a change in circumstances, again with separate rights of appeal. The Act provides full judicial oversight and rights of appeal. Additionally, there are other reviewing and reporting requirements, such as the independent review in the form of the annual report of the noble Lord, Lord Carlile of Berriew, while the Secretary of State has to make three-monthly reports to Parliament on the exercise of his powers.

There is a delicate balance to strike between safeguarding society and safeguarding the rights of the individual. As I have outlined, a number of safeguards are set out in the Act, and the renewal debates today both here and in the other place are a further requirement of the Act. Renewal requires an affirmative resolution in both Houses. These debates give honourable Members and noble Lords an opportunity to consider what is said in the report of the noble Lord, Lord Carlile of Berriew, and the merits of control orders more generally.

The noble Lord has made some important recommendations in relation to improving the operation of the control order regime, including developing a procedure to monitor closely the necessity and proportionality of control order obligations and for the Government to provide fuller information as to why a prosecution cannot be brought instead of a control order. My right honourable friend the Home Secretary has welcomed the noble Lord's recommendations and explained that he will need to consider these once he has consulted the Intelligence Services Commissioner and the Director General of the Security Service, as required by the Act.

In relation to the first of the two main recommendations, we agree with the noble Lord, Lord Carlile. While a number of internal mechanisms are already in place to review control orders, we accept that there is scope for an additional review of the obligations throughout a control order's life cycle, and we are discussing with stakeholders how best to achieve this. On the second recommendation, for the police to provide more information on why a prosecution is not possible, I think we all acknowledge the soundness of the principle here and we undertake to examine further with stakeholders how this might work in practice.

I turn to the specific working of the draft order before the House. Without the order the power to make control orders will lapse at midnight on 10 March 2006. The effect of the order is to continue it in force until 10 March 2007. It requires approval by both Houses of Parliament. It is the Government's strong belief that control orders are an essential element of the range of measures that are necessary to address the continuing threat posed by terrorism. This belief is supported by the noble Lord, Lord Carlile of Berriew, in his report to the House on the first nine months of the operation of the prevention of terrorism legislation. In his report the noble Lord pointed out:

"The nature of the activities of which I have seen information is sufficiently alarming for me to re-emphasise, as I have in other reports, the real and present danger of shocking terrorism acts involving suicide bombings . . . further suicide bombings in the United Kingdom must be expected and the target unpredictable".

Those are chilling words and it is crucial that we never underestimate the threat we now face. Control orders are one of a number of options that the Government are employing to counter the very real threat of terrorism. They have an essential role to play both in countering the threat and contributing to a more hostile environment for terrorists to operate in.

The Government's role, first and foremost, must be to protect the general public. Control orders are helping to achieve this while maintaining the necessary safeguards to protect individual rights. It is with this very much in mind that I commend the order to the House. I beg to move.

Moved, That the order laid before the House on 2 February be approved [17th Report from the Joint Committee and 23rd Report from the Merits Committee].—(Lord Bassam of Brighton.)

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

rose to move, as an amendment to the above Motion, at end to insert, "but this House regrets that the safeguards against misuse of the powers conferred by the Act are inadequate given the need for compliance with the obligations of the Human Rights Act 1998".

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, the noble Lord, Lord Bassam, referred to the case before the Judicial Committee of this House in December 2004 which concerned the nine foreign nationals who were being detained in Belmarsh prison without trial. The Judicial Committee held that the powers under which they were held, pursuant to the Anti-terrorism, Crime and Security Act 2001, were a serious breach of the European Convention on Human Rights. So the Prevention of Terrorism Act was rushed through in some two and a half weeks of February and March last year. Many noble Lords will remember our disputes at the time.

We agreed to co-operate in finding appropriate stopgap measures subject to there being appropriate safeguards. In our debate on 10 March last year, when the Commons amendments came back to this House, I stated that,

"we agree that there is a serious terrorist threat. We agree that the principal means of reducing that threat is by criminal prosecutions brought against a suspect in the regular criminal courts"— a point echoed today by the noble Lord, Lord Bassam. I continued:

"We agree that there will still be a small number of cases in which there may be insufficient evidence for a prosecution, yet a means of control, a control order, is appropriate, imposing stringent conditions".—[Hansard, 10/3/05; col. 864.]

It was in the light of that—agreeing in principle to control orders but looking for safeguards—that I proposed amendments to those clauses of the Bill dealing with control orders. The amendments were intended to be constructive; I thought that they would help the Government to avoid obvious breaches of the ECHR. We sought to ensure that the decision to improve a control order was not an arbitrary decision of the executive, in the shape of the Home Secretary, but a judicial decision, made in accordance with due process and with necessary safeguards and guarantees against injustice.

I argued that it was wrong to make an order based merely on the reasonable suspicion of the Home Secretary that an individual was involved in terrorism. I suggested that that was far too weak a basis on which to put a person on house arrest. We were saying that the standard of proof of such involvement should at least be on a balance of probabilities. I also put forward the proposal that the chief of police in the relevant area or the Director of Public Prosecutions, whichever was the more appropriate, should provide a certificate stating that no probability of a prosecution existed. I heard the noble Lord, Lord Bassam, say today that the Government are still investigating that a year later, but at the time they opposed the suggestion root and branch.

So the amendments I put forward on behalf of these Benches were rejected by the Government. Regarding the burden of proof, the noble and learned Lord the Lord Chancellor said that the Home Secretary was engaged in assessing risk of involvement in terrorism and that introducing the need to establish such involvement on a balance of probabilities would frustrate that policy. But he made a concession on judicial control, as your Lordships will recall: the Home Secretary would have to bring the making of an order before a court. The weakness of the procedure, which we pointed out at the time and continue to maintain, was that the judge before whom the order was brought would not be permitted to determine the merits of the actual making of the order. Whether it is justified or not, all the judge can do is see that the Home Secretary has followed the right procedures.

We were anxious, along with those on the Conservative Benches, to emphasise the temporary nature of control orders. However, the proposal of a sunset clause, made by the Conservatives and supported by us, was rejected in favour of an annual review. The noble and learned Lord the Lord Chancellor said about that:

"We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it".—[Hansard, 10/3/05; col. 871.]

So instead of seeing this legislation come to an end—and, with it, control orders—we have an annual review. That is why we are here tonight. But it was always intended that by now the stopgap measures of control orders would have been reviewed, and, if necessary, revised or replaced. As part of the final package that allowed the Bill finally to go through after ping-ponging about, the Home Secretary made the commitment to which the Minister has referred, that he would produce a more comprehensive draft counter-terrorism Bill in the late autumn of 2005 for pre-legislative scrutiny, to be followed by a substantive Bill now, in the spring of 2006.

Following the events of 7 July, however, and by agreement between the three parties, that undertaking was renegotiated. There was an agreement that the new offences, which we from these Benches have supported in the current Terrorism Bill—namely, the acts preparatory to terrorism and encouragement to terrorism—should be addressed at once and that the question of control orders should be decoupled with a view to a further Bill in the early part of this year. However, on 2 February—this month—the Home Secretary said, unilaterally this time and not by agreement between the parties, that he favoured a further rethink. He revised the timetable, with draft legislation proposed for the spring of 2007 and a Bill that could not come into effect until 2008. Last year we were discussing control orders in the context that the measure would last only a year and that there would be an annual review instead of a sunset clause, because we would agree a timetable to look at it again, but that has not been carried out. That is the context in which we are asked tonight to renew the 2005 Act.

The Joint Committee on Human Rights, in paragraph 12 of the report published yesterday, to which the Minister has referred, says:

"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".

There is just one shot at it—tonight—as opposed to the procedures if a fresh Bill were brought forward. In particular, the committee pointed out that there was no way in which the legislation could be amended to reflect concerns about its actual operation, including its compatibility with human rights standards.

In its reports, the Joint Committee has echoed and underlined the concerns that I expressed on behalf of these Benches last March. For example, it says at paragraph 68 of the report:

"We agree with the view expressed by the European Commissioner of Human Rights, that Article 6 ECHR properly requires that non-derogating control orders should initially be made not by the executive but by the judiciary".

As I have told your Lordships, that was the point I was seeking to make with one of my amendments. The committee goes on:

"We also consider that our own constitutional traditions of due process, and of the separation of powers between the executive and the judiciary, requires no less".

No doubt that last sentence was put in for those for whom the name of Europe always sends a shiver down their spine. It is part of our constitutional traditions that the judiciary should make these decisions.

On the issue of proof of involvement in terrorism—another matter that we put forward—the committee has rejected the Home Office's argument that the Secretary of State was merely concerned to assess risk or evaluate intelligence. It points out that the threshold question for the exercise of the powers is pre-eminently factual. Has the individual the Home Secretary is considering been involved in terrorism-related activity? That is not a question of assessing risk; first of all it has to be established factually that he is involved in such activity. The committee concluded that the test of reasonable suspicion in the Act was set at too low a level and that a test of the balance of probabilities would be appropriate.

The committee had many other criticisms about the special advocates procedure, which denies to an individual knowledge of the evidence against him and gives him no opportunity to test or challenge by way of cross-examination any witness against him. But its strongest criticisms are reserved for the way in which standard conditions are imposed upon those who are subject to control orders. The idea had been that a particular person who was seen to be a danger would have a control order imposed that would be tailored specifically to him. It is interesting that annexe 2 to the first report on the Prevention of Terrorism Act of my noble friend Lord Carlile, to which the Minister has also referred, sets out a pro forma of conditions for a control order, drawn up by the Home Office. Fill in the blanks. The pro forma contains gems; condition 5(b) says:

"You shall not . . . attend any pre-arranged meetings or gatherings (other than attending, but not leading, group prayers at a mosque)",

Condition 10 says:

"You shall only attend one mosque of your choosing subject to prior approval from the Home Office before your . . . visit".

There is no doubt at which section of the community the control orders have been aimed.

My noble friend said in his report that the obligations of these control orders are extremely restrictive, and your Lordships can find his assessment of those obligations in that report. The Joint Committee goes further. Having considered all the evidence, it concludes that there is a very high risk that those placed under control orders suffer inhuman and degrading treatment, contrary to Article 3 of the European convention.

About the regime as a whole, the Joint Committee says in paragraph 76:

"In the context of the control order regime we find it difficult to see how a procedure in which a person can be deprived of his liberty without having any opportunity to rebut the basis of the allegations against them, can be said to be compatible with the right to a fair trial in Article 6(1), the equality of arms inherent in that guarantee, the right of access to a court to contest the lawfulness of their detention in Article 5(4), the presumption of innocence in Article 6(2), the right to examine witnesses in Article 6(3), or"— it adds, for those who do not like the European convention—

"the most basic principles of a fair hearing and due process long recognised as fundamental by English law".

This is a huge indictment of the Prevention of Terrorism Act—and it was foreseen. The Government were warned, from these Benches, from the Conservative Benches and from the Cross Benches, that their Act would offend against the convention. By failing to carry out their undertaking to revise the Prevention of Terrorism Act, which was part of the deal to allow the Bill to go through in the first place, the Government must now simply wait—inevitably and ignominiously for them, as happened in December 2004 with the Belmarsh decision—for the courts to hold the Act to be in breach of the European convention. I have no doubt that we will then have another sustained attack upon lawyers and upon the judiciary, which is the hallmark of the present Home Secretary whenever he is in a tight corner.

That is why this non-fatal amendment has been brought forward. I urge the House to pass it. It will warn the Government to get their house in order, to comply with the undertakings that they have given and to pass legislation that complies with the standards of a civilised legal system and with the international requirements of human rights. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 7:45 pm, 15th February 2006

My Lords, I support the amendment of the noble Lord. Most of those who were present during that long night of 10 to 11 March 2005 will remember in particular the speech of the noble Baroness, Lady Hayman. She made the point that the annual renewal of the 2005 Act by order was not the way forward. She had two reasons: first, the importance of the subject matter of the Bill, affecting as it does the liberty of the subject; but, secondly, the inordinate haste with which that Bill was pushed through Parliament.

The noble Baroness therefore proposed a sunset clause, to take effect on 31 March 2006, the consequence of which would have been that the Act would lapse on that day unless renewed by primary legislation. Her amendment to that effect was carried by 205 to 100—a huge majority. However, the Prime Minister had indicated that he was against a sunset clause, so when the Lords amendment went to the Commons it was rejected. However, at 11.12 pm, this House voted again to have a sunset clause, this time by 192 to 107. This House did so again at 5.43 am, by 164 to 96, and yet again at 12.56 pm the next day, by 194 to 123. A more convincing expression of the view of this House would be hard to imagine.

The House then adjourned until 6.30 pm on 11 March. In the mean time, the parties were able to reach an agreement. That agreement was announced by the Lord Chancellor. It is set out in the Hansard for 10 March—part 2—at col. 1058. The agreement was that this House would have an opportunity to review the 2005 Act in the spring of this year, after the noble Lord, Lord Carlile, had published his report on the operation of the Act. The whole object was that we in this House should have an opportunity of reviewing the 2005 Act and of amending it, if necessary, before being asked to renew it. That, one might think, was reasonable enough.

That was not all, however. In July 2005, the Home Secretary repeated his undertaking that he would return to control orders in the spring of this year. Yet, on 2 February, the day the noble Lord, Lord Carlile, published his report, the Home Secretary announced that the 2005 Act would not be reviewed in spring after all, but would instead be renewed by order on 15 February, which is of course today. The review promised for the spring of this year would not now take place until the end of 2007. That Statement by the Home Secretary was one of great importance, but for some reason—which I have not been able to find out—it was never repeated in this House, which is why it came as quite a surprise to many of us. I suggest to the House that the course that is now proposed is a clear departure from what was agreed on 11 March 2005. It was on the basis of that agreement that this House let the 2005 Bill go through. It is also a clear departure from the undertaking given by the Home Secretary in July that he would return to control orders in the spring.

The Home Secretary gave three reasons why we are not to have the opportunity of reviewing the 2005 Act now. The first, he said, was that it would be premature, because the validity of control orders had not yet been tested in the courts. That presumably means that we must wait until the first case reaches the House of Lords. In any event, that difficulty must have been appreciated when the Home Secretary gave his undertaking in 2005. Secondly, he said that we must wait until the noble Lord, Lord Carlile, has completed his review of the current Terrorism Bill and produced a new definition of "terrorism". What the relevance of that would be is entirely beyond me. Thirdly, he said that the current legislation is in a mess and needs to be consolidated. I entirely agree with that, and the reason is not far to see.

None of those reasons explains why a short Bill could not have been introduced so that the 2005 Act could be renewed by primary legislation instead of by order and so that we could have had the opportunity promised to review the Act now. That was something which the Home Secretary did at least consider, according to his Statement, yet he rejected it for the three reasons which I have given. It is all the more important that we should have had that opportunity in view of two things: first, the facts now revealed by the Carlile report; and, secondly, the view of the Joint Committee on Human Rights, described by the noble Lord, Lord Bassam, in a marvellous understatement, as "informative". I describe it as damning, because damning is what it is.

The fact is that nine men are currently being detained pending deportation with no idea when a memorandum of agreement may be reached with the countries to which they are supposed to be deported. Of those nine, four have been granted bail on very severe restrictions, amounting in all probability to deprivation of liberty. Another nine are subject to control orders, described by the noble Lord, Lord Carlile, as extremely restrictive. The Joint Committee on Human Rights correctly pointed out that, whereas a single restriction may not amount to a deprivation of liberty, a number of restrictions cumulatively may well do so. That is the view which it has formed about those currently subject to control orders. I will read one short paragraph—paragraph 38—of its 12th report, which states:

"In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".

That was exactly my view when the Bill was going through this House and that is why I have always opposed control orders. But it is now too late to ask for a review of this legislation; we can do nothing but renew it. Meanwhile, the nine who are currently detained must presumably wait until the winter of 2007 for the legislation under which they are currently being detained—which may well be contrary to the Human Rights Act—to be properly reviewed by Parliament. In the interval, their only hope is to appeal. I regard that as profoundly unsatisfactory.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 8:00 pm, 15th February 2006

My Lords, I too support the amendment and echo what has just been said by the noble and learned Lord, Lord Lloyd. It is most unsatisfactory that we do not have the opportunity to debate such serious erosions of liberty. I thank the noble Lord and the noble and learned Lord who described in detail the way in which this legislation was debated with such concern a year ago. They described the concern that was expressed in this House about what it meant for us to pass legislation that did not comply with our great traditions and which flew in the face of international human rights. For us to do that it was crucially important that opportunities were provided to ensure that we did not slide complacently into an acceptance of the unacceptable. For us to be placed in a situation today where we are not able to do anything and where there is no opportunity for us to remind the nation and our people why liberty matters and why this is such an affront is something of concern, I hope, to all of us.

This House was absolutely at its best a year ago. While people may in many ways have supported aspects of that legislation, the nation admired the fact that the House stood up to pressure to push through legislation without the appropriate level of debate on a matter as serious as this. Unfortunately, one can be left only with a feeling that this House is being slighted in what it was calling for at that time, and that that also flies in the face of our democratic traditions. Not only are we seeing the rule of law undermined but we also are seeing democracy undermined because debate is absolutely at the heart of our democratic processes.

I want to remind people that having control orders means that on the lowest standard of proof—merely on suspicion—we will take away many of the things which we all hold dear. Opportunities to be with others, to go out of one's home, to take the air will be limited considerably and, as has been described, when put together, some of those controls on behaviour inevitably mean a deprivation of liberty. Further, there is no access by the accused person—the person suspected—to the evidence. Their own lawyers do not have access to the evidence, which is the suspicion on which the Home Secretary bases his decision to have control orders put into effect.

The special advocate is something that we really should have the opportunity to debate again in this House. To call such a person—albeit someone skilled and a member of my own profession—an advocate is a denial of what the role of advocacy is all about. The whole purpose of advocacy is that on behalf of your client you are able to contest the allegation made and to do it acting as—if you like—the spokesperson for that person and to challenge evidence in a way that they would do themselves were they able to and versed in the law. The special advocate has no such possibility. Having had access to the evidence, the special advocate is denied the opportunity of speaking with the person who is going to be subject to the control order. To call such a lawyer an advocate for the person is a corruption of language as we know and understand it within our system of law.

I am deeply saddened by the way that this has developed. Like others, I hope that we have the opportunity to express our view by way of a vote. I do not know whether that is intended but I would welcome a Division on this issue.

Photo of Lord Plant of Highfield Lord Plant of Highfield Labour

My Lords, although critical of control orders during the debates on the Bill last year, I am not opposed to them in principle, as I said in my Second Reading speech then. They are potentially a constructive way of dealing with a problem where the Government are caught between the Belmarsh judgment, the difficulty or impossibility of deportation because of the threat of death or torture and their own reluctance to prosecute by allowing intercept evidence. On that last point—which has been raised a few times in the House since last year's Bill, particularly by the noble and learned Lord, Lord Lloyd of Berwick—I have an open mind. The noble Baroness, Lady Ramsay of Cartvale, is very knowledgeable about this and her arguments are very powerful but I am not entirely convinced by them; I still have an open mind on the matter. I hope that it will be possible—in time at least—to allow such evidence. Given the circumstances, I am not utterly opposed to control orders but I want to make them as compliant as possible with human rights and civil liberties.

Of course, most people will say that we have to get a proper balance between security and liberty, and of course we have. I am as much concerned with security as anybody else. I use public transport in London four or five days a week and I almost never take a taxi, as is true of the vast majority of Londoners. But while previously words like "security" and "liberty" could be bandied about and given more or less persuasive definitions to fit one's own point of view, this is no longer the case following the passage of the Human Rights Act and the incorporation of most of the ECHR. Now liberty and rights have a much more formal and in a sense objective basis, and a much more structured set of interpretations of these terms are found in the judgments of the domestic courts and the Strasbourg court. We are now like Ulysses and the sirens; we have chosen to bind ourselves in good times and in bad to a set of basic rights and liberties, to avoid the siren voices inviting us to abjure them. That was the will of the UK Parliament, the Labour Government and the Labour manifesto of 1997. Control orders have to be made as compliant as possible with this different legal order, which the Government have chosen to set up.

After modification, as has been explained, the Act was passed last year. I am pleased that the noble Lord, Lord Carlile of Berriew, has confirmed that the Home Secretary has exercised his powers under the Act judiciously, fairly and scrupulously. That is what I would expect from my right honourable friend. Despite our disagreements, I have always admired his clarity of mind and straightforwardness, and it is good to have that reinforced by the report produced by the noble Lord, Lord Carlile. The problem remains of whether these powers, however sensibly exercised, are as human rights-compliant as they should be and as they could be. I accept that the judgment about this is not an exact science and that the legal advice given by the noble and learned Lord the Attorney-General has to be taken by the Government as definitive on it. However, Parliament has a right and a duty, it seems to me, to probe and if necessary to challenge the Government's position on compatibility and to seek explanations on why they think that these powers and the way in which they are exercised are compatible. That is what the Joint Committee on Human Rights, of which I am pleased to be a member, sees itself as doing.

How rights-compliant is the present regime of control orders? In the report of the JCHR, as has been made clear, a large number of points were made, but I will concentrate on two. First, all the orders that have been made so far are non-derogating orders. If the obligations imposed on someone subject to an order add up to the deprivation of that person's liberty, that has to imply a derogation from Article 5. The question is whether the duties of non-derogating orders are sufficiently onerous to imply a deprivation of liberty. The approach of the European Court has been to say that this is not an all or nothing matter, as the noble and learned Lord, Lord Lloyd of Berwick, says, and that judgment has been echoed in the United Kingdom courts. The cumulative effect of the obligations can add up to the deprivation of liberty. It seems to me, and to the JCHR, that the effect of the orders as reported by the noble Lord, Lord Carlile, can in fact lead to the deprivation of liberty. They are supposed to be non-derogating orders, and yet their effect may well be the same as that of a derogating order. I am well aware that the Government will argue that short of what has come to be called house arrest we are talking about a restriction of liberty rather than a deprivation of liberty. However, I would have thought that if one looked at the details of the orders and their cumulative effect that would be a difficult judgment to sustain.

Secondly, I am thankful that so far no derogating order has been made, although as I said I think that some of the non-derogating orders add up to the same thing or have the same effect. A derogating order does involve deprivation of liberty for an indefinite period and if adopted would require derogation. In those circumstances, the level of proof that the Home Secretary should satisfy himself about must be at the criminal level. The regime imposed on the individual would be the most onerous imaginable outside of imprisonment. On the principle that the higher the punishment the higher should be the threshold of evidence, the criminal standard should be employed by the Home Secretary in his deliberations and judgments. The legal answer to that point will be, "This is not a punishment; it is rather administrative action taken against someone". However, that is not how it will be seen. We would live in a Humpty Dumpty world—in which words would mean whatever I wanted them to mean—if a derogating order was not seen as the same thing as punishment.

For those reasons, I am very unhappy with the idea of renewing the orders on the basis that they have been proposed to us tonight. However, I will not vote against the order if it comes to a vote. I could not do that because I have endorsed and contributed to the critique offered by the JCHR, and it would not be honourable for me now to vote in favour of my party and the Government's position, having endorsed that critique. However, I do not agree with the detailed wording of the amendments. It is not so much a matter of the safeguards in relation to the powers where the problem lies; the powers themselves are incompatible with human rights legislation.

I have one question for the noble Lord, Lord Thomas of Gresford, which is of some interest to me. He said today and in the debates last year that judicial review would be entirely procedural. I wonder how far that fits in with the point made in paragraph 66 on page 21 of the report by the noble Lord, Lord Carlile:

"In lay language, the decision of the Secretary of State will be upheld [by the administrative court] unless shown to be founded on a mistake of law"— which clearly fits into what he was saying—

"or on a disproportionate assessment of the facts in their legal context, or perverse".

It is rather obscure how a court could make those judgments without straying into the issue of the merits of the case. I am slightly mystified about how the noble Lord, Lord Carlile, could say that, if judicial review is entirely on the procedures. I fully sympathise with the critique of the order by noble Lord, Lord Thomas of Gresford, but I will abstain if it comes to a vote.

Photo of Baroness Stern Baroness Stern Crossbench 8:15 pm, 15th February 2006

My Lords, I wish to make just a few remarks arising out of the report of the Joint Committee on Human Rights of which I am a member and which, thanks to the valiant efforts of the staff, was agreed late on Monday evening and published on Tuesday morning. I am glad that it is proving useful to so many noble Lords. I hope that eventually noble Lords will read the full report. I will confine myself to one aspect that particularly concerns me—the actual operation of the control orders and their effects on the people being controlled and on their family members.

It appears from the report by the noble Lord, Lord Carlile, that most of the 18 people so far made subject to these orders have been put under what he has called "extremely restrictive obligations", which fall,

"not very far short of house arrest", and,

"involve deprivation of much of normal life".

I remind noble Lords that the control order requirements include an 18-hour curfew; electronic tagging that is monitored twice a day by a private tagging company; a ban on the use of the garden; limitation on visitors and meetings to persons approved in advance by the Home Office; allowing the police to enter the house at any time to search and remove any item and to allow the installation of monitoring equipment; prohibitions on phones, mobile phones and Internet access; and restrictions on movement to within a defined area.

The committee received evidence that has not been seen by the noble Lord, Lord Carlile, which bears out his conclusions about the severity of the control order regime and its problematic nature. We received evidence from a group of lawyers and civil liberty campaigners, CAMPACC, who are volunteers who visit people who are subject to control orders; although once they do visit such people it appears that they become classified as,

"a known associate of a terror suspect".

It said in evidence to our committee that it is almost impossible for people without a family home—that is, single people—to be released on a control order because no landlord will have them—I am sure that we find that understandable—and very few friends if any will take them in because the consequences for the friend are so extreme.

There is probably more information available about the control order regime to which we do not have access. Here I am making a point about the visit of a delegation from the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In July 2005, they sent a delegation which included a lawyer and a psychiatrist on a five-day visit to the UK. According to its press release, the delegation,

"examined the practical operation of the Prevention of Terrorism Act 2005 and met various persons served with control orders".

In November 2005, the same delegation came here again for six days. In addition to looking at the treatment and conditions of detention of certain people recently detained under the Immigration Act 1971, it also interviewed two persons under house arrest and met persons served with control orders under the Act that we are discussing today.

In view of the importance of this evening's discussions, it seems strange that the Government have not informed Parliament whether the Committee for the Prevention of Torture made any immediate observations at the end of its visits in July and November 2005 in pursuance of Article 8, paragraph 5 of the European Convention for the Prevention of Torture. Noble Lords will know that the Committee for the Prevention of Torture makes immediate observations when it considers that a member state needs to take urgent action to prevent inhuman and degrading treatment, so it should be noted that we are being asked to make a decision on the renewal of this order in the absence of information that could be very relevant to the view that the House may take.

Finally, the Joint Committee on Human Rights made some comments on the implications of these orders for the human rights of family members of those who are controlled. I shall summarise them briefly. The wives and children of controlled persons—I understand they are all men—are also subject to interference in their right to respect for private family life and home because of frequent access to their premises by outsiders without notice. That can include affront to religious and cultural sensitivities, particularly for the women in the household. In one part of our evidence we read that the women always went to bed fully clothed in case there was a visit from a monitor late in the evening. They are subject to restrictions on their use of telephones and access to the Internet; they have difficulty maintaining family connections and friendships because their houses are under surveillance; and all visitors have to be approved beforehand. They are living under constant anxiety that their family member may break the terms of the order by mistake or be rearrested.

I appreciate the point made by the noble Baroness, Lady Kennedy, that it is important for us to express our views on this and I hope that we shall be able to vote on the amendment.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I am able to speak briefly because I agree with a great deal of what my noble friend Lord Plant of Highfield said. A year ago, my concern was not with the principle of whether control orders were part of the appropriate armoury for our society to defend itself against terrorism but with the process and the degree of scrutiny that Parliament was able to give in a situation where the highest order issues had to be considered and where the balances between liberty and security were very hard to strike.

Like my noble friend, when I look at the amendment tabled by the noble Lord, Lord Thomas of Gresford, I am not drawn to support it for two reasons. One is pedantic or semantic—however one chooses to define it—as it prejudges the issues that, I feel, we need to debate. I have regrets about losing the ability to have that debate rather than about the content of the amendment.

On the other basis, I am not drawn to non-fatal amendments. I prefer fatal amendments, if one is to vote on something. If we have a take-it-or-leave-it renewal order, that is the difficulty in which we will find ourselves tonight. It would be inappropriate and irresponsible to leave it and, therefore, we have to take it and accept that we are renewing it. It is disappointing that we are renewing without being in the position to consider a draft Bill that is comprehensive, and we now have a timetable that means that we shall probably be doing the same thing next year. It reinforces the difficulties that happen in such a situation.

I cast no aspersions on my right honourable friend the Home Secretary. Since he made the commitments a year ago, we have had the horror of 7 July, and we have had cross-party talks about how best to deal with the situation, the need for more terrorism legislation and how the timetable has changed. Those are all absolutely understandable reasons, to which any Minister will respond. I reflect on the fact that we have to deal with this as parliamentarians and not as Ministers. Perhaps the reason why there was so much support at the time for a sunset clause rather than renewal was the recognition that "events, dear boy" can always intervene. Perhaps the only real defence is to be very tough as parliamentarians. I was not tough right through to the end, so it is mea culpa, as much as anything else.

I end on a positive note. I welcome my noble friend's commitment to take up the suggestion of the noble Lord, Lord Carlile of Berriew, about reviewing the cases and ensuring, at regular intervals, that the restraints are the minimum necessary. We recommended that case management approach in the Newton committee with regard to the detainees, and I am grateful for the commitment that he has given tonight to do that with control orders.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, at the climax of the great debates of March 2005, to which the noble and learned Lord, Lord Lloyd of Berwick, referred, the Home Secretary undertook to revisit control orders in primary legislation at the earliest possible moment after the publication of the report of the noble Lord, Lord Carlile. That has not happened. In a debate in another place, on 2 February this year, the Secretary of State explained why. Essentially, he said that he would meet his undertaking, not in 2006, but most probably in 2007. Meanwhile, he wanted another 12 months' grace. What has happened is precisely what so many of your Lordships feared in March last year.

The noble Baroness, Lady Hayman, has extremely generously—rather unfairly to herself—said that she was not tough enough. That could equally be said of ourselves. One stage later than the noble Baroness, we took the view that the offer made by the Home Secretary in another place in all the circumstances ought, on balance, to be accepted. We were wrong. We ought to have been even tougher than we were. That is the situation that we face. We must decide whether or not to renew the order for another 12 months.

The right honourable gentleman the Home Secretary was at his most emollient and constructive in the debate in another place on 2 February. He prayed in aid three reasons for asking for another year of grace. The first was that there are now, as I understand it—I know that the noble and learned Lord, Lord Lloyd of Berwick, is extremely pleased about this—constructive negotiations going on between the Government and the Opposition and, indeed, between the Government and its own security advisers about a way through the difficulties the Government see in allowing intercept evidence in court proceedings. The right honourable gentleman the Home Secretary referred to that in specific terms:

"the Government are undertaking to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence".—[Hansard, Commons, 2/2/06; col. 479.]

We on these Benches welcome that statement; but we also understand that, as the model is not yet in existence, the Government will need extra time to put it in place.

A second reason why the right honourable gentleman wished to delay the matter was that the noble Lord, Lord Carlile of Berriew, was undertaking an intense study into the definition of "terrorism". The absence of a definition has to some degree blighted the progress of the Terrorism Bill in your Lordships' House. We therefore recognise that the Government will need time to absorb the conclusions of the noble Lord, Lord Carlile of Berriew, before coming forward with a definition worthy of inclusion in legislation.

The right honourable gentleman also suggested a third reason and claimed support from the noble Lord, Lord Carlile of Berriew, in advancing it. It was that none of the current control order litigation had reached the point of judgment in the courts and that consequently we should wait and see what the courts said before reconsidering the position of control orders in our legislation.

I beg to differ with the right honourable gentleman that that is a valid reason for waiting. Suppose that the courts find against the Government, especially if the basis for those findings discloses one or more breaches of the European Convention on Human Rights. In those circumstances, will the Government not be placed in exactly the same situation as in December 2004, following the Belmarsh decision? If your Lordships agree with that, it adds great weight to the observation of the noble Lord, Lord Thomas of Gresford, that the Government will find themselves in the most ignominious position. They are not leading the nation in finding the right solution but following the courts—institutions about which they have repeatedly expressed deep reservation. What an irony if that were to occur. Whatever the merits of the right honourable gentleman's observations about intercept evidence and the definition of terrorism, in my respectful submission, the argument that we should wait for the courts is quite unacceptable.

Many of your Lordships have referred to the report of the Joint Committee on Human Rights. I pay tribute, as did the noble Baroness, Lady Stern, to all the work done to ensure that that report was before your Lordships' House tonight. It is worth quoting from the concluding paragraph of that report, which flowed from a detailed analysis of the compatibility of control orders with the European convention:

"In light of the concerns expressed in this Report, we seriously question renewal without a proper opportunity for a parliamentary debate on whether a derogation from Articles 5(1), 5(4) and 6(1) ECHR is justifiable, that is, whether the extraordinary measures in the Prevention of Terrorism Act 2005, which the Government seeks to continue in force, are strictly required by the exigencies of the situation. It would be premature for us to express a view on that question. We merely 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 had an opportunity to debate the report in detail. We have only seen it for a day and a half, and tonight the Government are asking us to take a decision about the whole system of control orders.

It is worth noting, however, that the Joint Committee's concerns went not just to one article in the convention but to a large number: to Article 5(1) and Article 5(4), which concern the access to courts and the adequacy of court procedure to ensure that those subject to control orders are given proper rights; to the fairness of trials under Article 6(1); as the noble Baroness, Lady Stern, explained, to the convention's provisions on family life; and finally, because only one of the 18 people subject to control orders is a British national, to whether or not there was also a breach of Article 14. That is indeed a rich jurisprudential tapestry; and your Lordships have not had the opportunity to consider it in any detail.

However, I wish to draw your Lordships' attention in particular to one point in the Joint Committee's report. In the final sentence of paragraph 38, the Joint Committee states:

"In our view, those obligations"— a reference to the obligations in the control orders—

"are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article".

The noble Lord, Lord Carlile of Berriew, had something to say about that matter at paragraph 43 of his report, to which the noble Baroness, Lady Stern, referred. He is referring to the nine of the 18 who are still subject to control orders:

"The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably".

It is true that the noble Lord, Lord Carlile, said previously in relation to the decisions taken by the Secretary of State at, confusingly, paragraph 38 of his own report:

"I would have reached the same decision as the Secretary of State in each case in which a control order has been made".

The noble Lord was making that observation, of course, in the context of the particular law that had to be addressed by the Home Secretary and therefore not in the additional context of the human rights convention.

Only nine of the 18 people initially subject to control orders are now subject to control orders. A further nine have been removed from the control order regime and incarcerated pending deportation. They are divided into two classes. One of the nine is a Jordanian and, if deported, will go back to Jordan. The Government have, as I understand it, signed a memorandum of understanding with Jordan. I have not seen the document, but I suppose that the Jordanian Government undertake not to breach Articles 2 and 3 of the European convention in relation to the treatment of that individual. No doubt the matter will be litigated in the courts, and we shall wait with interest to see what conclusion the courts reach about the viability of memorandums of understanding when signed.

However, the other eight come from countries with which we have not yet concluded memorandums of understanding. Therefore, it follows, as night follows day, that it will be impossible to deport those individuals in the absence of such memorandums. Those people are incarcerated with no idea about how long they are going to be there. Is that compatible not only with the European Convention on Human Rights but with the sense of fairness that runs through our common law traditions? We have to ask ourselves those questions.

I have one final observation, your Lordships will be relieved to hear. I go back to the point made so elegantly by the noble Baroness, Lady Hayman, in the opening stages of her speech. Control orders, while necessary in certain circumstances, are measures of last resort. What we all want to see is prosecution, not control orders. Every opportunity must be taken to ensure that we prosecute those individuals.

A great battle took place during the debates of March 2005 over how the Government could guarantee that, in every control order case, the individual concerned was not capable of being subject to a prosecution in our criminal courts. We on these Benches pressed for an undertaking from the Director of Public Prosecutions that prosecution was impossible before the control order regime should become activated. The Government resisted that, in the end successfully, and substituted for our view that it should be the DPP who took the final decision the view that it should be the chief constable of the area concerned that should take the final decision.

The noble Lord, Lord Carlile of Berriew, had something to say about this as well. At paragraph 58 of the report 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. Whilst I have no evidential basis for doubting the genuine nature of the section 8 exercise, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution".

It is plain that the system put into operation by the Government in respect of chief constables and chief police officers is not working properly. I particularly ask the Minister to address that point in his remarks because it goes right to the core of the control order system. The control order system must be limited to cases where prosecution is simply not possible. Once it starts to encroach in the wrong direction over that line, we will, indeed, enter an extremely dangerous world. I look forward to the Minister's reply.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 8:45 pm, 15th February 2006

My Lords, first, I thank all noble Lords who have made contributions to an intriguing and difficult debate. One has to accept it is a very difficult debate, but I start from the point—I am grateful that there now seems to be almost universal recognition of this—that we face a continuing threat from terrorism and terrorism-related activity. There must always, I would argue, be an acceptance that it is the role of government to tackle terrorism, to tackle it head on and to deal with the issues that flow from it. That is where we start from; and that is where, I think, we can have a point of agreement.

It is also the Government's strong belief—a belief that has found support in your Lordships' House—that control orders have an essential role to play in countering the threat of terrorism and in contributing to a more hostile environment for terrorists to operate in. That view is shared by the independent reviewer of the legislation, the noble Lord, Lord Carlile of Berriew. He has been much quoted but is sadly absent from the Chamber this evening. I made it clear in my opening remarks that we would closely study the practical recommendations that the noble Lord, Lord Carlile, made in his report.

That is where we start from. From that easy start, we begin to diverge in our analyses of the current situation and the import of where we are at the moment and how we have got there. I listened carefully to what the noble Lord, Lord Thomas of Gresford, had to say. His comments, particularly those rehearsing the history of where we were, I listened to more carefully than most. He, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Kingsland, and others were critical of the fact that we will not have the opportunity, as they see it, to revisit the issue of control orders—rather than, as we are at the moment, looking at the renewal—and go back to first principles in the debate. The suggestion was powerfully made that in some way the Government had reneged on their commitment. I certainly accept that the situation has changed since we had those important, long fought-over debates last year when we considered the Prevention of Terrorism Act 2005.

The noble Lord, Lord Thomas of Gresford, made the point that the undertaking the Government made has, in a sense, been renegotiated. He was right to make that point. Events, as my noble friend Lady Hayman made clear, have somewhat overtaken us. For that reason, we have had to review the situation. As has been said in your Lordships' House, the Home Secretary in his Statement of 2 February drew attention to the fact that we now have a report produced by the noble Lord, Lord Carlile, as an independent reviewer of the Act on its first nine months of operation. At that stage we did not believe that legislative changes were required. We did not believe that a purpose would be served by introducing further legislation at this stage. We preferred to have a different timetable, but a timetable that meant that we would consider a draft Bill in the spring of next year, and that Bill would be the subject of some pre-legislative scrutiny.

That is a practical view that the Home Secretary has taken of his initial commitment. He also made the point that there had not been an opportunity for a complete cycle of control orders to be reviewed and that legal challenges brought by those who have been the subject of those control orders have yet to be completed. I agree that it would be premature, in those circumstances, to bring forward legislation in advance of that. It is right, too, that we consider the importance of the review of the Terrorism Act 2000 by the noble Lord, Lord Carlile, and his conducting of a review of the legal definition of terrorism. We think that that is probably a better, more coherent and cohesive way of looking at the subject, and it will provide Parliament with the opportunity in the fullness of time to have another look and to interrogate the issues.

Much of the comment made by noble Lords in this debate focused on the report by the Joint Committee on Human Rights. We acknowledge that report as being important and will take careful note of what it has said. Noble Lords have drawn attention to particular points in that report. The noble Lord, Lord Kingsland, in particular, drew attention to Paragraph 38 and the issue of whether the non-derogating control orders were being operated in practice in a way that amounted to a deprivation of liberty and therefore required a derogation from Article 5(1) of the European Convention on Human Rights. We think that the existing control orders, with the more restrictive obligations referred to in the report of the noble Lord, Lord Carlile, were made with the permission of the court. The court did not consider that the orders amounted to derogating control orders, so we are not in agreement with that particular observation from the JCHR.

We also take issue with the other assertion made in the report on whether the procedural protections are compatible with Article 5(4)—the right of access to a court to determine the lawfulness of detention and the right of a fair trial in determination of a criminal charge and a fair hearing in the determination of civil rights obligations under Article 6(1) of the European Convention on Human Rights and with the common-law right to a fair trial and hearing. We do not accept that control order proceedings amount to a criminal charge. They are civil proceedings with civil procedure rules, and those have been debated in both Houses of Parliament. We think that there is appropriate judicial oversight, provided for in the legislation. There is an automatic judicial review of the Home Secretary's decision. The review will be a full hearing before the High Court or a Court of Session. There are separate rules of court set out in the civil procedures that allow the court to hear both open and closed material. Control orders also have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. If a control order obligation is modified without the consent of the controlled person, that also gives rise to a right of appeal, and any individual may also apply to the court for an order to be revoked or an obligation to be modified where there is a change of circumstances.

The noble Lord, Lord Kingsland, made particular reference to the committee's overall conclusions. We do not accept that any of the control orders that we have made impose obligations on individuals that amount to a deprivation of liberty. Therefore, we do not accept the point that they are derogating control orders, nor that a derogation is required. We have not sought to make a derogating control order, but were we to do so, derogation would have to be approved by both Houses of Parliament. Therefore we cannot accept their final conclusion in that regard.

I heard what the noble Lord, Lord Kingsland, said about that. He cited the report of the noble Lord, Lord Carlile of Berriew, at paragraph 53. We certainly accept the seriousness of that observation but, in conclusion, it must be said that, although the noble Lord, Lord Carlile of Berriew, says that they fall not far short of house arrest, they do not, in the end, amount to house arrest. It is certainly true that they place rigorous conditions on the controlee in those circumstances.

It is also worth dwelling on the report of the noble Lord, Lord Carlile. He makes important points about how the control order regime works. At paragraph 35—I think that is worth reading this into the record—he states:

"As part of my function as independent reviewer, I task myself to replicate exactly the position of the Home Secretary at the initiation of a control order. I call for and am given access to the same files as were placed before the Secretary of State when he was asked to determine whether a control order should be made. These files include detailed summaries of evidence and intelligence material, as well as the draft Order and obligations. The summaries describe not only the activities alleged against the individual and the sources of information but also the context of those activities in a wider and very complex terrorism picture".

At paragraph 38, to which reference has also been made, he states:

"I would have reached the same decision as the Secretary of State in each case in which a control order has been made. He asks questions and certainly does not act as a mere cipher when the papers are placed before him. The process is rigorous and structured in an appropriate way, so that the decisions are very definitely those of the Home Secretary, not his officials".

I think that the noble Lord, Lord Carlile of Berriew, is saying that the process is very rigorous. It is a process that has been taken very seriously by the Home Secretary. Yes, if you like, there is a deprivation of some liberties; that much is clear from reading the report and the way in which the draft control order— referred to as a pro forma—is set out. But that process is gone through with great seriousness because it needs to be and because the potential threat that may arise from that person being entirely at liberty is real and current, as the noble Lord, Lord Carlile, states in parts of his report.

Other points were raised during the debate that I felt that I should respond to. The noble and learned Lord, Lord Lloyd of Berwick, asked why we were not bringing forward a short Bill to renew the 2005 Act. The noble Lord, Lord Carlile, made no recommendations regarding the operation of the control order system that require primary legislation. If the sole purpose of such a Bill was to renew the Act, today's order, which your Lordships are free to vote against, serves the same purpose.

The noble and learned Lord, Lord Lloyd of Berwick, asked me a short question: why the Home Secretary's Statement on the important issue of why we could not have full consideration of the Bill was not repeated in your Lordships' House. Simply, that was because the opposition parties did not believe that it was essential for the Statement to be repeated. Statements are repeated in your Lordships' House essentially on request.

The noble Baroness, Lady Stern, referred to the European Committee on the Prevention of Torture and recommendations that it may make. We understand that the ECPT will report in March of this year, but it has made no immediate recommendations to us, following its visit to us last July. I understand that, in November, it made one recommendation about an individual who is the subject of a control order, to which the Government are, of course, giving careful consideration, but it made no general observations to the way in which the control order regime worked.

I think that I have covered most of the points raised. The noble Lord, Lord Kingsland, asked me about prosecutions. I entirely agree with the noble Lord that it would be greatly preferable if we could bring a prosecution in every case. The noble Lord, Lord Carlile of Berriew, made that point in his report, and we do not fundamentally disagree with it. But we must accept that there are circumstances—your Lordships' House has accepted the point in the past—in which it would not be appropriate to bring cases. The noble Lord, Lord Kingsland, made the point, as he has done before, as has the noble and learned Lord, Lord Lloyd of Berwick, that it was possible that more cases would be brought before the courts if telephone interceptions and material derived from them were part of evidence that could be fashioned into bringing a case. The noble Lord, Lord Carlile of Berriew, says this:

"Although the availability of such evidence would be rare and possibly of limited use, I remain of my previously expressed view that it should be possible for it to be used and the Law should be amended to a limited extent to achieve that".

As the noble Lord, Lord Kingsland, said, the Home Secretary is considering that, and with some seriousness.

We accepted the other point made by the noble Lord, Lord Carlile of Berriew, about prosecutions. I referred to it in my opening remarks; perhaps the noble Lord missed it. On the police providing more information about why prosecutions were not possible, I said that we accepted and acknowledged the soundness of the principle, and we will examine carefully with stakeholders how that might work in practice. So the court may be provided with that level of explanation.

I am grateful for the seriousness with which your Lordships' House has approached the matter. Clearly, the issue will need to be kept under very careful review. There are opportunities for both Houses of Parliament to do so. I am grateful for the debate and the quality of the contributions. Our overall role as government must first and foremost be to protect the general public. Whatever one thinks about control orders, how they operate and the difficulties with them, we believe that they are helping and making a major contribution to public protection. They do so while maintaining safeguards to protect the rights of individuals.

With that very much in mind—we clearly respect individuals' rights, but we view the terrorist threat very seriously—I commend the order to your Lordships' House.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 9:00 pm, 15th February 2006

My Lords, I am most grateful to the Minister for his careful reply to this debate, as I am to all noble Lords who have taken part in it. I was taken back by the noble and learned Lord, Lord Lloyd of Berwick, to the night of 10 and 11 March last year. I wondered to myself whether we missed all that sleep in vain as a result of the arrangements that were finally arrived at but which have not really been followed through.

I also thank the noble Baroness, Lady Hayman. I remember that, even as the sun was rising, she was still pursuing her sunset clause. It was only in the final stages that she felt obliged to give up the struggle. Her Majesty's Official Opposition gave up the struggle the next time. We fought it out to the end, which is why we are here today—to seek to make this amendment.

The noble Baroness, Lady Kennedy of The Shaws, reminded us, as always, of her deep devotion to the common law of this country and to the principles which she has always exhibited. We are very grateful for her support. We are also grateful for the support of the noble Lord, Lord Plant of Highfield. He asked me—the debate gives me an opportunity to reply—to explain the procedure in judicial review, which the noble Lord, Lord Carlile of Berriew, explains in paragraph 66:

"In lay language, the decision of the Secretary of State will be upheld unless shown to be founded on a mistake of law, or on a disproportionate assessment of the facts in their legal context, or perverse".

The first and last concepts are easily understood. The middle concept is: where an administrative decision is frequently attacked, did the Minister ask himself the right question? That is where it comes from. If one can establish that the Minister asked himself the wrong question, his decision may be set aside. The court approaches judicial review by saying, "Parliament has given it to the Minister to make that decision; I will not second-guess his decision. I will not make the decision myself on the merits; I will just see that he has followed the required procedures in the proper way".

I am grateful to the noble Baroness, Lady Stern, for reminding us of the Joint Committee's findings about the inhibitions imposed by control orders on family life and the liberty of the subject of the order, to the extent that the committee was quite sure that it amounted to unusual punishment.

I think it is appropriate that I should seek the opinion of the House on my amendment. It would not cause the order to fall. I took the criticism of the noble Baroness, Lady Hayman, on that, but I say to her that, if the Home Secretary on 2 February says, "You are going to decide this on 15 February", less than a fortnight ahead, at a time when the Joint Committee has had no opportunity to consider the matter and to report, it is not easy to get together the battalions we had on the night of 10 and 11 March, which she will remember so well. I hope that she will not oppose the amendment on that basis. I ask her to support it because the primary safeguard that was built into the Bill was derived from her attempt to get a sunset clause. It was negotiated that there would be an annual renewal, but that has not proved an adequate safeguard, and that is the purport of my amendment.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 81.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.