Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008

– in the House of Lords at 7:59 pm on 27th February 2008.

Alert me about debates like this

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the purpose of the order before the House is to renew the Prevention of Terrorism Act 2005. The Act automatically lapses after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of this order will therefore be to maintain the powers set out under the Act until the end of 10 March 2009. This will allow us to continue to use control orders to tackle the threat posed to national security by suspected terrorists whom we can neither prosecute nor deport. The other place voted in favour of renewal on 21 February.

Over the past few years, we have witnessed a number of appalling attacks on our country. Those attacks have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people. The director-general of the Security Service stated in November last year that,

"the number of people ... involved in terrorist-related activity", in the United Kingdom,

"has increased to at least 2,000. And we suspect that there are as many again that we don't yet know of."

The threat is clearly real and it is serious. Faced with a threat of this scale, it would be naive to suggest that there is a simple solution. We need a range of responses to reduce the risk of further terrorist attacks. The balance between individual liberty and public security is key. We must ensure that we protect all our values and civil liberties while defending the most fundamental of these—the right to life.

Let me make this clear. Prosecution is, and will continue to be, our preferred approach when dealing with suspected terrorists. In 2007 alone, 37 people were convicted of terrorism-related offences in 15 cases, and so far in 2008 16 people have been convicted of significant terrorist-related offences. However, we need to ensure that we maximise our ability to prosecute suspected terrorists, and we have sought to do this in a number of ways.

First, we have introduced new offences in the Terrorism Act 2006, which have already been used successfully. We are also studying the recent Court of Appeal judgment overturning convictions under Section 57 of the Terrorism Act, including any implications that it may have for our wider counterterrorism legislation and strategy. However, the Director of Public Prosecutions has already stated that the judgment was,

"specific to the facts of the case", and was therefore unlikely significantly to affect existing convictions or forthcoming prosecutions. Secondly, we have proposed measures in the Counter-Terrorism Bill to extend post-charge questioning of suspected terrorists. Thirdly, we have accepted the recommendations set out in the Chilcot recommendation for the introduction of intercept as evidence, provided that the conditions outlined can be met. However, as the Chilcot report states:

"We have not seen any evidence that the introduction of intercept as evidence would enable prosecutions in cases currently dealt with through control orders".

Finally, two other proposals made at the renewal debates last year—the threshold test and turning Queen's evidence—are already in place.

If we cannot prosecute suspected terrorists and they are foreign nationals, we aim to deport them. The European Convention on Human Rights currently does not allow us to deport suspected terrorists back to their country of origin if there are grounds for believing that there is a real risk that they might be tortured or subjected to inhuman or degrading treatment on return. Therefore, to provide the necessary assurance as to treatment, we have agreed, and are continuing to negotiate, appropriate arrangements with other countries to protect deported individuals' human rights.

Separately, we are also working to persuade the European Court of Human Rights to reconsider current jurisprudence on the deportation of terrorist suspects in order to ensure that the rights of the individual are appropriately balanced by the interests of national security.

Despite these advances, there remain a very small number of suspected terrorists whom we can neither prosecute nor deport. Control orders remain the best available means of dealing with these individuals. Since their introduction in 2005, control orders have been an important part of our fight against terrorism. A tailored set of obligations, such as restrictions on their finances or communications equipment, can be applied which help to prevent, restrict and disrupt individuals engaging in terrorism-related activity.

Control orders are not imposed arbitrarily. A judge must agree that they are necessary and proportionate, and they are subject to regular and rigorous review. As of today, only 11 control orders are in force and only 31 individuals have ever been subject to a control order. They are an important tool in protecting the public from the very real threat from terrorism.

Over the past year, there has been continued support for control orders from outside government. First, there was the landmark judgment by the Law Lords in October last year. Crucially, they upheld the control order system, although we were disappointed that they did not agree with the Government on every issue.

On Article 5 of the European Convention on Human Rights, the Law Lords judged that no control order then in effect needed to be weakened. Indeed, the judgment puts the Government in a stronger position than before, as the Law Lords effectively indicated that a 16-hour curfew does not breach Article 5.

On Article 6, the judgment was more complex and has been widely misreported. The Law Lords did not say that any case before them had breached the right to a fair trial. They said that in some, possibly exceptional, cases, the current provisions in the Act might breach Article 6. The Act was therefore "read down" to ensure that the procedure adopted under it would be compatible with Article 6 in every case. They concluded that the High Court should consider the point on a case-by-case basis. This forms part of the mandatory review of each individual control order by the High Court—one of the many safeguards in place to secure the rights of the individual. We therefore remain firmly of the view that the legislation, and the order before us today, are fully compliant with the ECHR.

Secondly, the independent reviewer of the operation of the Prevention of Terrorism Act, the noble Lord, Lord Carlile of Berriew, continues to view control orders as necessary. He states that,

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

Both the other statutory consultees—the Intelligence Services Commissioner and the director-general of the Security Service—share this view. I place on record my, and the Government's, thanks to the noble Lord, Lord Carlile, for another thorough report, which I am sure will add a great deal to today's debate. A formal reply will of course be produced in due course.

Let me be clear that control orders are not ideal. They are a last resort for those involved in facilitating or executing acts of terrorism who cannot be prosecuted or deported. However, over the past year, much hard work has gone into improving them. For example, exit strategies continue to be sought for those currently on control orders. Although I am not convinced by the suggestion of the noble Lord, Lord Carlile, that there should be an arbitrary end date for individual control orders—in part because each order addresses individual risk—I am firmly of the view that control orders should be imposed for as short a time as possible, in line with the risk posed. Exit strategies are considered as an integral part of the formal quarterly review for every control order, and an order can be renewed only if it is necessary to do so. Indeed, over the past year, we have seen two control orders revoked and another two orders not renewed. Deportation is another exit strategy. Previously, nine individuals who were at one time subject to control orders have been served with notices of intention to deport, and six of them have been deported.

To clarify a matter raised by honourable Members during the debate in the other place, there are currently five individuals who have been subject to control orders for longer than two years. Two further cases would have reached the two-year point on Saturday. However, those control orders have now lapsed, as the orders were those imposed on two of the individuals who absconded in May 2007.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, can the noble Lord comment on that? Has anything been heard of those who absconded? Have they done any harm? Have they done anything wrong or caused any havoc and hassle?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, so far as I am aware, we have no information whatever about them.

As was made clear last year, the Government continue to consider the prospects of prosecuting individuals subject to control orders for terrorism-related offences on an ongoing basis and review it formally each quarter. Over the past year, we have put new procedures in place and the police provide more detail to the Home Secretary on the prospects of prosecution.

As well as greater use of exit strategies, the noble Lord, Lord Carlile, also notes the difficulties of enforcing so-called light-touch control orders. We agree that these can be problematic. Since the renewal debates last year, all current control orders and the monitoring procedures that they are subject to have been reviewed to ensure that they are as effective as possible. In a number of cases, where it was necessary and proportionate to do so, the control orders were strengthened. However, we are not convinced by the use of ASBOs or civil proceedings for an injunction against specified activities—alternatives that the noble Lord, Lord Carlile, suggested.

Legislative improvements to control orders have also been worked on over the past year. The Counter-Terrorism Bill was introduced on 24 January and includes measures to improve the policing of control orders. I note the amendment to the Motion tabled by the noble Baroness, Lady Miller. I should emphasis that the Bill will also, of course, give noble Lords further opportunity to debate and to consider amendments to the control order system more generally, including the many detailed points raised in the JCHR report published last week.

In conclusion, we face a threat from terrorism which is determined, indiscriminate and brutal. We must protect the public, while ensuring that our fundamental rights and values are protected. Control orders are an important part of this delicate balancing act. They are one of a significant number of measures that can be deployed to protect the public from terrorism. The risk to the public would surely increase if we did not renew the Act. This is a prospect we cannot allow. I commend the order to the House.

Moved, That the draft order laid before the House on 30 January be approved. 9th Report from the Joint Committee on Statutory Instruments, 9th Report from the Merits Committee, 10th Report from the Joint Committee on Human Rights.—(Lord West of Spithead.)

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 8:11 pm, 27th February 2008

rose to move, as an amendment to the above Motion, at end to insert "but this House regrets that Her Majesty's Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005".

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, annually the Government are required to come before Parliament to ask that Sections 1 to 9 of the Prevention of Terrorism Act 2005 remain on the statute book. This should be far more than a rubber-stamping exercise. This debate should be undertaken to ensure that the exceptional measures, taken to deal with an exceptional threat, are continued only if necessary. The parliamentary debate should prevent a drift into acceptance of these exceptional measures because the danger is that they will become the normal default position. Sadly, the downgrading of the order in this year's business to a one-hour debate in the dinner break from last year's two-hour afternoon debate shows that the Government already regard this as a rubber-stamping exercise. On these Benches we regard this as a very regrettable move; we are concerned to keep the necessity for these orders in proper review and to ensure that Parliament is given due opportunity to do so.

The Prevention of Terrorism Act should be reviewed to see which provisions should be retained, which updated in the light of experience and which dispensed with. I shall explain briefly why we on the Liberal Democrat Benches feel that we should review and substantially amend rather than simply rubber-stamp, which is really all that the Government are offering Parliament by this order. Liberal Democrats have consistently had deep concerns about two issues on these orders: first, that the standard of proof required for the imposition of an order should be raised from the Home Secretary's reasonable suspicions to a balance of probabilities; and, secondly, that non-derogating control orders should be granted through the judicial system by a judge and not through the political system by a politician. Neither of those points are mere niceties.

I believe that on all sides of the House we agree that we must take measures to minimise the threat of terrorism. However, we on these Benches, believe that the Government are making some bad mistakes in those efforts. In its 10threport, the Joint Committee on Human Rights makes the point powerfully when it says,

"Counter-terrorism measures which breach human rights are ultimately counter-productive and therefore worse than ineffective in countering terrorism".

The same point was made very eloquently last year by the noble Lord, Lord Judd, when he said:

"Protecting the public involves protecting liberty and those principles which, by being essential to the rule of law—habeas corpus, due process, the presumption of innocence and standards of proof—are the cornerstones of liberty. To erode them ourselves is to score a goal for the extremists, who seek their destruction".—[Hansard, 5/5/07; col. 18.]

How right he was.

As regards prosecution, the figures in front of me vary slightly from those of the Minister. I put it to the Minister that, although the points he makes are valid, the Government are still not pursuing prosecution as strongly as they might. But I would concede that, after considerable pressure, including from these Benches, we are pleased that the Government are to include provisions for post-charge questioning in the Counter-Terrorism Bill and that they are finally accepting that there is merit in using intercept evidence, given the necessary safeguards for national security.

There are three substantial reasons that have occurred in the past year, since this House last debated this order, for the Government to amend this legislation substantially. Those reasons are: the experience of another year in how the regime works; the Law Lords' judgments; and the fact that there is now the opportunity in the forthcoming Counter-Terrorism Bill to look at amendments.

The opportunity presented in the Counter-Terrorism Bill has been taken by the Government in some small degree. They propose to narrow the definition of involvement in terrorist-related activity; they propose to define the seven days allowed for representations in favour of the controlled person; and they propose to enable the anonymity of controlees to be protected from the start. However, I agree with the Joint Committee on Human Rights, which calls these minor, tidying up amendments. In fact, the Counter-Terrorism Bill as it stands fails to address the most significant defects of the control orders regime. These are brought to light by the recent House of Lords' judgments. I hear what the Minister says about these being widely misreported, but I turn his attention to paragraphs 43 to 47 of the report of the Joint Committee on Human Rights, where it details the concerns. In light of the time available tonight I shall not list them, but I urge the Minister to look at them. Although I am no lawyer, even I can see that it cannot be right that what constitutes a fair hearing should be decided on a case-by-case basis. Surely this must be laid down in statute, together with some reference to proof and the ability to rebut such evidence.

The Law Lords' judgment should have been sufficient to persuade the Government that the statutory framework needs amending. They have the opportunity to do so with their forthcoming Bill and I urge the Minister to look at those issues again. Furthermore, the Joint Committee on Human Rights points to a measure of disagreement with how well the special advocate scheme is working. It also recommends that the Secretary of State should be required by statutory obligation to give reasons for making a control order.

I turn briefly to the practical experience of what has been learnt over the past year. I would be grateful if the Minister could comment a little further on the efficacy of the orders. The point behind the orders, of course, is to prevent acts of terrorism and to prevent individuals likely to plan or incite such acts from progressing their plans. As opposition Members not privy to intelligence, it is impossible to know how successful any of the orders have been in that regard. The fact that two individuals have absconded while subject to two orders—the Minister has said tonight that he has no idea where they are or what they are doing—means that the orders are by no means completely reliable. Two out of a fairly small number is a pretty high failure rate.

Will the Minister also comment on the fact that although the Government stated in their response to my noble friend Lord Carlile's 2007 recommendation that orders should not continue indefinitely, there is not so much evidence before us that the Government have been implementing exit strategies? The Minister gave us further figures but that criticism still stands. I would be interested to know the cost of control orders versus the cost of covert surveillance. Similarly, can the Minister comment on the efficacy of control orders versus covert surveillance, on the assumption that they are not mutually exclusive?

There is no evidence that the Government intend to further use the Counter-Terrorism Bill to amend this legislation. It is quite likely that this time next year we will be faced with rubber-stamping these orders yet again. I warn the Minister that if this is the case—we shall certainly seek strenuously to amend the forthcoming Bill if the Government do not bring forward their own amendments—it will be a missed opportunity and make us more vulnerable in several ways. I encourage the Minister to rethink in the mean time because we have the benefit of a couple of months before the Bill comes to the House. I beg to move.

Moved, as an amendment to the Motion, at end to insert "but this House regrets that Her Majesty's Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005".—(Baroness Miller of Chilthorne Domer.)

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I rise to speak because I am on the Joint Committee on Human Rights, which produced this report. The noble Baroness, Lady Stern, and I have been hunting as a couple—if that is the right word—on this. I shall be interested to hear from the Minister, because after his comments on 42 days, it crossed my mind that had he been in command at Trafalgar, he would have said, "England expects—oh I don't mean that—England does not expect that every man shall do his duty". Perhaps that is a little unkind. He has given us an enormous amount of amusement—to put it mildly—over that volte-face; or as the taxi driver said, "We must now do an Admiral West", as he did a U-turn in the road.

We on the JCHR have had several uncomfortable thoughts about this process. Our 10th report has major concerns over the parliamentary—or rather lack of parliamentary—oversight of the control order regime. The present system is not human rights-compatible and we have identified amendments that must be made to the Counter-Terrorism Bill. If the House of Commons goes through the Bill, as it has been doing, missing out great chunks and producing ill-thought-out legislation, the duty will fall on your Lordships. I hope that noble Lords will stand as firm as possible on individual liberty and the human rights of the subject, which is one of the most important things that we can do.

As we are debating an order we cannot amend it, so all I can do is gloss over some of the main amendments, which I hope will be made in the new Bill. We were also disappointed that the report of the noble Lord, Lord Carlile, was not ready until extremely shortly before the Bill was published and the renewal orders came out. That was despite promises. Please can we have reports in time for people properly to take notice of them before more discussion on recommendations takes place?

We make several recommendations in the report, which are for discussion on another occasion. In light of Guzzardi v Italy and the judgment of the noble and learned Lord, Lord Brown of Eaton-under-Heywood in the JJ case, we recommend that the PTA be amended to make a maximum curfew time of 12 hours. I did not quite agree with what the Minister said on this subject. It must be possible to have a curfew time that is no longer than 12 hours. In our previous report, we made six recommendations for amendments to the control order framework. These are,

"the insertion of an express reference to the right to a fair hearing, making clear that nothing in the PTA requires a court to act incompatibly with the right of a controlled person to a fair hearing ... the addition of an obligation on the Secretary of State to give reasons for the making of a control order ... the imposition of an obligation on the Secretary of State to provide a statement of the gist of any closed material on which fairness requires the controlled person have an opportunity to comment ... provision for judicially authorised communication between the special advocate and the controlled person without having to disclose the questions to the Secretary of State ... the insertion of an entitlement of the controlled person to such measure of procedural protection (including the standard of proof) as is commensurate with the gravity of the potential consequences for the controlled person ... and the provision of a power for special advocates to call witnesses to rebut closed material".

It is true that we were made very unhappy by the evidence we heard from the special advocates. It seemed almost impossible for them to do their job. It was incredibly difficult for them to discuss what they were supposed to be doing with their clients. After some stage they were not allowed to discuss the case with their client and had to represent them without talking to them. That cannot be satisfactory, especially if it is eventually found that they can be prosecuted and evidence will have to come out in court anyway. It is a most unsatisfactory arrangement.

We think that the legislation may not clearly allow the High Court to set aside a control order based on factual error or new evidence showing a substantial change in the situation since the order has been made. That must again be wrong. If there is a factual error and the chap has been made to live in his villa in Ealing and is not allowed to go out surely he should have the right to appeal if the error is found out.

To ensure priority of prosecution, control orders should be imposed only when the Secretary of State,

"is satisfied that there is no reasonable prospect of successfully prosecuting", as it says in paragraph 67 of our report. There should be a statutory limit on how long a control order should last.

I am sure that after a bit a potential terrorist becomes spent, stale and of no use, so there is a very strong case for not allowing a controlee to be controlled for longer than two years. A very exceptional case has to be made for that.

As I said, we disagree with the noble Lord, Lord Carlile, on the fairness of the special advocate procedure, and I have given some reasons for that. The Government's failure to improve parliamentary review is disappointing. The lack of ability for real communication between special advocates and their clients I have already mentioned. The inability of the accused to hear evidence against them I have also already mentioned, which of course would be proper if brought to trial. No controlee has ever been prosecuted. I believe that two people have gone AWOL and just vanished into thin air with no apparent damage to society, and there have only been 34 in total. The Minister said that there are 2,000 known potential terrorists out there and up to twice that figure who are unknown. Somehow, those figures do not quite add up. If there are 2,000 potential terrorists out there and 34 people who, thank goodness, have been charged and prosecuted—34 people are under control orders—I hope that we are not exaggerating the terrorist effort.

We say that there has been this great increase in terrorism. Northern Ireland was much nastier. I quite concede that the new factor is suicide bombing, which makes a great difference. Of course we must take that very seriously, but we must look at it in proportion, given the horrors that go on around us in other societies. It is nasty, but we could be in danger of exaggerating it.

I have tried to be quite quick over this, and I have rather skimped in my précis of what we have said. The report is available and I urge people to read it, but I thought that it was important to bring the salient points to the notice of your Lordships, and I hope that I have done my duty as best I can.

Photo of Baroness Stern Baroness Stern Crossbench 8:30 pm, 27th February 2008

My Lords, I am very glad to have the opportunity to speak at this annual event. I agree very much with the noble Baroness, Lady Miller, that the time available has been cut in half, which is highly undesirable. I, too, am a member of the Joint Committee on Human Rights, and I thank our staff for their tremendous working in getting our report into the public domain for debates in the other place and here this evening. I am very grateful to the noble Earl, Lord Onslow, for introducing the report, and I was very glad to hear the Minister say that the preferred option is prosecution.

My particular concern in this matter has always been to ensure that we do not at any time forget the severity of this measure and the effect that it has on those subject to it. Those subject to it include the families and friends of those under control orders. I am very glad that that is referred to in the report of the noble Lord, Lord Carlile, where he states:

"In the past year I have again been aware of the potential psychological effects of control orders".

He goes on to say,

"where the State takes coercive measures that could affect the physical or mental well-being of the individual, it is under a duty to monitor effectively the impact of those measures".

Since our first debate on renewing the order on 15 February 2006, there have been some very welcome changes and more recognition of the impact that the measure can have on the mental health of an individual and his or her family. I note that the terms of reference of the Control Order Review Group, which reviews each control order on a quarterly basis, include,

"monitoring the impact of the control order on the individual, including on their mental health and physical well-being, as well as the impact on the individual's family", and to,

"consider whether the obligations as a whole and/or individually require modification as a result".

Can the Minister tell us how that is done? Presumably, someone makes a report on the individual and on the family. Who makes the report and what are that person's qualifications? As it is a report on physical and mental health, presumably it is done by a doctor; is it an independent doctor? I should be grateful if the Minister could answer that question. I also suggest that the Control Order Review Group might be assisted in its work if there were an express duty in statute on the Home Secretary to monitor that closely and to seek independent expert evidence about the impact on the individual and his or her family.

Clearly, this is a complicated matter and it is hard to find information on the effects of the control order regime, but I learnt from an ITN news report that Mr Bullivant, whose control order was quashed, told ITN:

"Since the imposition of the ... control order ... I have been subjected to the most extreme pressures which have thrown my life into turmoil ... my wife has left me and my family and friends have become deeply distressed. The Home Office's own psychiatrist has confirmed that I am now suffering from severe depressive illness which was caused by the imposition of the control order".

Have the Government learnt anything from this case, and has it affected how they make their assessments of physical and mental health?

Also relevant to the point about the effect on the individual is the length of time of the curfew each day. The view of the Joint Committee on Human Rights is that 16 hours a day is too long. Our view is that 12 hours would be a more appropriate maximum. It is worth noting that the European Court of Human Rights in a case involving Italy has found that nine hours, when considered together with other severe restrictions, amounted to deprivation of liberty.

The Kafkaesque nature of the process may also have an effect on the mental health of the person being controlled. That person gets no reasons from the Secretary of State. If the material is closed, the controlled person may not know even the outline of the case against him or her. The special advocate cannot discuss the case with the controlled person. The JCHR believes that the Secretary of State should give reasons for the making of the control order.

We have discussed the length of the order. As I understand it, seven of the controlled people have been living like this now for two years; two of them have been under a control order for almost three years; and for the three years before that, those two were being held in Belmarsh prison. As the chairman of the Joint Committee, Andrew Dismore, pointed out:

"That makes six years, all together, in detention or under control for people who have not been convicted of any offence at all. We run the risk of creating Guantanamo-style martyrs".

I note that the noble Lord, Lord Carlile, recommended a maximum of two years, other than in genuinely exceptional cases. I heard the Minister say that he does not agree with the noble Lord's proposals, but I think the Government take the view that control orders should not be indefinite. The law as it stands allows them to be indefinite, so I would be grateful if the Minister could tell the House what amendment the Government are considering to ensure that control orders cannot be indefinite.

Photo of Lord Judd Lord Judd Labour

My Lords, no one anywhere should underestimate the responsibility that falls on government in this exacting area. I for one do not underestimate the very direct and heavy responsibilities that fall on my noble friend who has spoken to the order this evening. It is essential that we emphasise that point in everything that we say.

Two things trouble me in our approach to policy in response to terrorism. The noble Baroness, Lady Miller of Chilthorne Domer, has referred to something that I said in the debate last year. I assure her and other noble Lords that I stand by every word that I said last year; I feel at least as strongly now as I did then. We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example.

Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice. I feel that, and I am not afraid to say it. Some might accuse me of being a bit chauvinistic about it, but I feel, as a Briton who is proud to be a Briton, that we are giving the extremists a victory when we do that. I was a youngster in the Second World War, and I remember how, even as a very young boy, I was struck by how determined we were to try against all that adversity to stand by the principles of law as we then saw them. That part of me is real. The other part of my concern is that we do not inadvertently begin to act out the script that might have been written for us by bin Laden or other cold, calculating and manipulative extremists—doing the very things that they want us to do to discredit our declared commitment to justice and the principles on which our legal system works.

I miss being on the Joint Committee on Human Rights. I very much enjoyed my time on it, and I have been very impressed by the report that it has brought out again this time. The noble Earl, Lord Onslow, is absolutely right that we should all read it. If I might say so with great deference to my noble friend, it is incumbent on him and the Government to give a considered response to your Lordships to the points made in the report by the Joint Committee, which does such sterling work on our behalf.

In our approach to the response to terrorism, we must beware of counterproductivity. The Joint Committee makes that point. The Government have a human rights responsibility, as well as a political responsibility, to protect from terrorism the people within their jurisdiction. However, if by the things that they are doing they cross a line which means that they begin to provoke terrorism or drive impressionable people into the arms of extremists, they are not doing the job of protecting the British people. I have always felt that that argument is incredibly important. We must not play into the hands of the extremists.

Sometimes I catch myself saying in the evening, "But do I still believe in human rights? I am making all these points on the basis of a rather political analysis". I passionately believe in human rights; I just happen to believe that there is a correlation between what makes hard, tough political sense and the cause of human rights. In fact, I am prepared to put forward the thesis that if you do not have a human rights problem, you will minimise the chances of extremism: if you have human rights problems, you will always increase the chances of extremism.

The noble Baroness, Lady Miller, might have gone on to refer to some other things that I said last year, and I shall. I refer to that very important speech to the Criminal Bar Association made by the Director of Public Prosecutions in which he argued that we should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice, and that in the wake of 9/11 some of the values enshrined in the European convention and in common law appear to be losing their status. Some people now seem to think that such fundamental rights as the right to a fair trial and the right to liberty can be compromised even when the life of a nation may not be entirely at stake. He argued that one of the worst manifestations of this approach has been the resort to parallel jurisdictions where standard protections, quite deliberately, are no longer available, and suspects are removed from the protections of criminal justice and are placed instead in quasi-judicial or even non-judicial fora deliberately hostile to due process.

I was a member of the Joint Committee on Human Rights when the special advocates gave evidence. I shared the anxiety which has been expressed today. They were explicit. When asked, they said that they could see very little in common between what they were expected to do and all that they had previously understood to be the British system of justice. It was a simply impossible job to be expected to defend someone without being able to discuss the case in any meaningful way with their client.

My noble friend has said tonight again that the Government's professed policy is the priority of prosecution. But the Joint Committee on Human Rights, in its report, has again underlined—to sum up its argument—that,

"the fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order, seems to us to be significant. We therefore continue to question the extent to which in relation to certain individuals priority is really given to criminal prosecution rather than the indefinite and extensive control which is currently available through the use of control orders".

I believe that there are some very serious issues here.

It also seems that the noble Baroness was right to say that we must not allow ourselves to drift into a rubber-stamping process. This is a very significant evening in the life of Parliament. We are re-enacting measures which cannot be held to be consistent with the traditions of British justice, and we are doing it in a dinner break with an hour at our disposal. How can that be right? We are in a very serious predicament. I hope that my noble friend, whose responsibilities are immense and whom I greatly admire in the way in which he tackles them in so many respects—including his first, instinctive response rather than his tailored response, which may come subsequently—will deal with the gravity of the situation when he comes to reply, not in terms of the terrorist threat about which we all agree, but in terms of the gravity of the situation for the quality of British justice.

Photo of Lord Teverson Lord Teverson Whip, Spokesperson in the Lords, Environment, Food & Rural Affairs 8:45 pm, 27th February 2008

My Lords, when the Minister talked about deportation, he used the word "currently" when saying that under European human rights legislation we are not able to deport people to countries where they are likely to suffer pain or torture. Does he feel that that will change in some way? I cannot see how, but I was very interested that he used the word "currently". Like other noble Lords, the key issue for me is around prosecutions. We want to see, not people under control orders, but those who are guilty of terrorist offences put away from society for a considerable period of time in prison under due process of law.

Where are the Government in terms of their decisions on intercept evidence? Perhaps I may tempt the noble Lord into giving some opinion on how necessary control orders will be if, when and, I hope, as intercept evidence is allowed. Will this current type of legislation in terms of this order become redundant?

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, we last debated this matter at considerably greater length on 5 March 2007. We acknowledge of course the gravity of the terrorist threat and share the Government's concerns about it. We also take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently pose dangers to a society based on the principles of democracy and the rule of law. Terrorism menaces those values as well; but responding to terrorism with legislation that is itself capable of undermining those values can, if it is not limited to what is absolutely essential and subject to regular review, achieve precisely the objects that the terrorists seek.

It is worth reminding ourselves of the history of these orders. In early March 2005, when the Prevention of Terrorism Bill was being considered, those noble Lords who were involved will recall that this House was at loggerheads with another place on four or five issues, the most important of which was a sunset clause. In the end the deadlock was broken by the Home Secretary, who undertook to introduce legislation the following year which would give us ample opportunity to amend Sections 1 to 9 of the Prevention of Terrorism Act.

Not long after that debate, in July 2005, we had the awful tragedy of London Underground suicide bombings. The Government speedily drafted and introduced a new terrorism Bill, and all noble Lords around the House acknowledged that because of the importance of swiftly getting that Bill on the statute book, it was not the appropriate context in which to reconsider Sections 1 to 9 of the 2005 Act.

However, the Home Secretary gave additional reasons for not making the new Bill a vehicle for reconsideration of control orders. The first of these was the absence of the report of the noble Lord, Lord Carlile. The second was the consideration at the time by the noble Lord, Lord Carlile, of a separate issue, which was the legislative definition of terrorism and whether it should be amended. The third reason was that it was the beginning of the Government's own departmental work on intercept evidence, seeking a way to allow such evidence to be part of the prosecution's armoury. So the Home Secretary was moving away from the absolute commitment he had given the House in March 2005.

The following year, when the noble and learned Baroness, Lady Scotland of Asthal, was in charge of Home Office matters in your Lordships' House, a further reason was given for not offering the House an early opportunity to reconsider Clauses 1 to 9, and that was a series of cases that had reached the Court of Appeal but not yet the House of Lords. I refer here to what I can encapsulate as the JJ case, the E case and the MB case.

We now have the report of the noble Lord, Lord Carlile, and he has given his view on the new legislative definition of terrorism; a committee of Privy Counsellors has been set up and is guardedly optimistic about the possibilities of using intercept evidence in future prosecutions; and the House of Lords has taken a view on these three cases. In those circumstances, there is absolutely no reason whatever why when the Counter-Terrorism Bill reaches your Lordships' House we should not have a full opportunity to consider in detail and in depth Clauses 1 to 9 of the Prevention of Terrorism Act. Indeed, I believe the Government are taking their opportunities in another place to introduce certain amendments, albeit limited, as the noble Baroness said, to make some changes.

I have been given private undertakings by the Leader of the House that we will have a full opportunity to consider all those clauses in the forthcoming Counter-Terrorism Bill, but I would be greatly indebted to the noble Lord, Lord West, if he will confirm that to your Lordships' House when he responds to the debate.

I thought the noble Lord's conclusions about their Lordships' Appellate Committee's judgments were somewhat sanguine. As far as JJ is concerned, he fastened on to the speech of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he hazarded that, perhaps in certain circumstances, 16 hours would not fall foul of Article 5 of the convention. That remark has to be seen, as I am sure the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would wish, in context. The noble and learned Lord, Lord Bingham, said in that case that one cannot simply look at the absolute number of hours and reach a conclusion as to whether or not it breached Article 5; one had to look at all the components of the control order. So it is quite possible that 16 hours with some particularly onerous other ingredients could push the 16 hours over into a breach of Article 5. The Home Office is being extremely optimistic if it simply thinks it can put 16 hours into every single control order from now on. In any case, the noble and learned Lord, Lord Brown of Eaton-under-Heywood may not be sitting on the next House of Lords Appellate Committee case on this, so I urge caution on the noble Lord.

As far as MB is concerned, it is true that the House of Lords was not tempted by the suggestion that there should be a declaration of incompatibility with respect to Article 6; but it did say that Section 3(10) of the Prevention of Terrorism Act 2005 would be compatible with the convention only if you read into it Article 6 of the convention. That is a very substantial alteration of the position the Government asserted during the debates in your Lordships' House. It is quite clear that the court will now ascribe to itself two very important powers which the Government sought energetically to deprive it of when the legislation was initially introduced.

The House of Lords says that the court, when considering whether there are grounds for a reasonable suspicion, was entitled to consider that as a matter of objective fact and that the courts should therefore look closely at the considerations that the Home Office took into account to decide whether they were reasonable. Secondly, the component parts of the control order and the extent to which they were excessively onerous was also a matter that the courts should take into account, although there they would give the Home Office a considerable margin of appreciation because the Home Office has at its disposal a great deal of intelligence information that is, for obvious reasons, not available to the court.

I come now to the final judgment in E. I agree with a number of noble Lords who said that the most important thing is to prosecute these cases rather than to subject individuals to control orders. Here, the Joint Committee on Human Rights report is particularly powerful and convincing. This was again a matter of serious dispute in March 2007. The conclusion of the House of Lords judgment in E is that it is implicit in the scheme of the 2005 Act that it is the Secretary of State's duty to keep the possibility of prosecution under continuing review. The House of Lords endorsed the Court of Appeal's approach. The Court of Appeal said:

"Once it is accepted that there is a continuing duty to review ... it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful ... it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution".

It went on to say that that duty ought to be expressed in statute.

I am not convinced by anything that I have heard in the past three years, either in the report of the noble Lord, Lord Carlile, or from the Government on the Floor of this House, that that is what is happening. The Government give a certain amount of airtime to the desirability of prosecution, but operationally they are not seeking to make that a reality. We know that, quite apart from anything else, in practical terms quite a lot of people have just absconded from control orders. It is much more difficult to abscond from prison. That is the safest place for these people who threaten our security.

I hope that the Minister will pay particular attention to those issues. It is vital that we can review all these matters when the Counter-Terrorism Bill comes to your Lordships' House. I would like the Minister to confirm that that is what we will be able to do.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 9:00 pm, 27th February 2008

My Lords, I thank all noble Lords who have contributed so powerfully to this debate. I shall try to cover all the points raised. If I do not manage to do so, please come back to me, and I shall try to do so in writing.

It is an unfortunate fact of life that when explosions are not going off and we are successfully stopping attacks, the nation as a whole and people in general tend to forget the threat that exists. That is very British and very commendable in many ways, but, equally, recent convictions of terrorists demonstrate the magnitude and nature of the threat. The chilling brutality of some of the plots that have been unwound during the past seven months—the aspiration to use a dirty bomb, the targeting of large shopping centres, nightclubs and our transport infrastructure, and the attempted kidnap and beheading of a member of our Armed Forces—highlights the severity of the threat that the UK faces. That threat ranges from the possibility of beheading one individual to inflicting mass casualties. I take this opportunity to thank the police, Special Branch, the Security Service and ordinary private citizens for their work in thwarting these plots. I have no doubt that their professionalism and dedication, and what has been achieved even during the past seven months, have saved hundreds—I do not want to exaggerate because it is important not to exaggerate threats—and probably thousands of lives. We have to ensure that they continue to be provided with an across-the-board toolkit to counter the threat.

Photo of The Earl of Onslow The Earl of Onslow Conservative

The Minister said, and I have no reason to doubt him, that large numbers of plots have been aborted. How many prosecutions have resulted per plot? There must be a plot/prosecution ratio. If hundreds of plots have been aborted, there should have been more prosecutions. I am fishing for information; I am a seeker after the truth.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

The number of plots in the past 12 months is about 15. Those plots would have involved some of the issues that I touched on. I have no doubt that that scale of casualties would have ensued.

The noble Earl asked a precise question about Northern Ireland. I am afraid that Northern Ireland is not nastier than this. The Irish terrorists had a focus in what they were trying to do—we might not have agreed with their methods—and they were generally not trying to kill as many civilians as they could. Northern Ireland was different in its scale and nature.

I disagree with the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. As noble Lords will be aware, the Counter-Terrorism Bill was introduced to Parliament on 24 January. I explained in my opening speech that the Bill, as well as proposing a number of measures to strengthen the policing of control orders, will give noble Lords extensive opportunity to debate control orders more generally and to table amendments to the Prevention of Terrorism Act. I hope that that reassures the noble Lord, Lord Kingsland, also.

I look forward to debates on the Bill, which will be valuable. What has continually come across to me is that all of us want to achieve the same thing, which is the safety of the British people. It is a question of exactly how we achieve that without removing the important freedoms that we have talked about and playing into the terrorists' hand by destroying our way of life, which is exactly what they are trying to do.

We do not intend for control orders to become our default position. They are very much a second-best option. As I said a number of times, we wish to prosecute terrorists. They are criminals—I object sometimes to calling them terrorists—and they should be behind bars, which is without doubt the best place for them.

We cannot always achieve that. We are in a very strange and difficult situation—I do not think that we have been in a comparable situation in the past 10 or 20 years—where we cannot take the risk of allowing these people to achieve what they want, because the results are so devastating. They are aiming at mass casualties. When we move on to dirty bombs and CBRN—again, one must not scaremonger—it becomes even more important to move quickly, which raises all sorts of difficult issues.

Yes, we want to prosecute terrorists first and have them behind bars. If they are foreign, let us get them out of the country, which we do with assurances that we would never send someone to a country where there was a risk of torture or inhumane treatment. We obtain MOUs with the countries concerned to ensure that that would not take place. It is not the sort of thing that we would do as a nation.

I am very glad to hear of the support given by the noble Baroness for post-charge questioning and intercept as evidence. There is a long way to go on that latter proposal; nine things have to be achieved before it could happen, but it is a good move forward. Will it give us a gold or silver bullet to achieve things, however? I fear not—and as Sir John Chilcot said, it would not have that much impact on control orders. That is sad and I wish that it would, because that would be wonderful—and I go back to the point that we would rather not have them.

I believe that the Law Lords' judgment will support us. I shall come back to that in a minute when I have answered the specific points put to me by noble Lords opposite. The CT Bill will be very much looked at.

The first thing that I should say on the Joint Committee on Human Rights is how welcome is the huge amount of very valuable work that it does. I am not saying that the Government agree with every single thing in the report, but it raises the right sort of issues that we need to look at. We will look in detail at a number of those and come back when we have done so with a response to the various points.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, can we have an undertaking from the Government that they will look very favourably on the recommendations for amendment to the Bill that are not yet in the Bill? Will they produce some amendments along the lines of those recommended in our report, because that would ease the passage of the Bill very considerably?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, can I think about that and come back to the noble Earl in writing? I am still enough of a newcomer to be wary of committing myself to something like that and being shot when I leave the Chamber, so I have to be a little careful on that sort of thing.

The noble Earl also very kindly raised the issue of U-turns, or a battle "turn together", as I would prefer to think of it. I would rather think of it as flexibility. At one stage all sorts of options were being put forward, and I did not necessarily agree with all of them. Where we stand now is a much better position. We will have a chance to debate the matter in the House. I am very content with how the issue has gone.

As for the report from the noble Lord, Lord Carlile, I am very glad that we got it out before the debate. We did not achieve that last year, which was not very clever, and we got it out this time as soon as was practical. We received it on Sunday 10 February, approved it on Thursday 14 and it was laid before the House on 18 February. I take the point that it would have been better if it had been before that, even, but we did as best we could to get it out.

The noble Earl and the noble Lord, Lord Kingsland, raised the point about controlees who have absconded, saying that therefore this could not be that tight a system. One could look at that in a rather different way, because possibly those controlees have done a deportation with assurances without us having to do it. However, I am being a little bit cheeky there because we are not sure exactly where they are. It is difficult to talk about precise circumstances.

The noble Earl asked about exit strategies. We look at those every quarter and we take them very seriously; we want an opportunity to do that. From the fact that no controlees have been prosecuted, which a number of noble Lords mentioned, it could be argued that the system works and that we have stopped them being so deeply involved in what they are trying to achieve. I have to be very careful not to talk specifics, but I refer to people who are encouraging and training other people to go abroad and kill coalition forces—to kill our people who are doing their duty for this country abroad. If we can stop them doing that, slowly change their view and make them decide not to do it, that would be an achievement.

The noble Earl got a little confused on figures. There is a figure of 31, which is the total number of people ever subject to control orders; 11 is the current number and 37 was the number of people prosecuted in 2007, as I have already mentioned.

The noble Baroness, Lady Stern, again talked about the Joint Committee on Human Rights. As I have mentioned, we will be looking at this in great detail. She made a very useful contribution and raised important points that we need to look at.

In terms of the review of mental and physical health, we take the impact of the control orders on individuals very seriously and we seek representations from them about the impact of the order. We give consideration to the unintended impacts on their families. We do not underestimate that these are difficult and serious things, but we are dealing with unpleasant and unfortunate affairs—things that are not particularly nice. In terms of the review, the individual can present their own medical evidence. We sometimes choose to obtain our own medical reports, if we are particularly worried, and they are considered by the court as part of the process. We take mental and physical health very seriously and continually check to make sure if there are any problems. I hope that answers that particular case.

We were disappointed with the High Court decision on Ceri Bullivant. The court accepted that the decision to make a control order was justified. I welcome that Mr Justice Collins said that the Secretary of State's decision to make a control order was justified and that there were reasonable grounds for the relevant suspicion.

I will turn to the point about the 16 hours in a moment.

Whenever closed material is involved, the special advocate system ensures that the interests of the appellant are fairly represented without compromising sources. It is important that we do not compromise those sources. The system was supported by the House of Lords judgment.

My noble friend Lord Judd rightly gave a clear exposition about how important it is that we balance our rights and our freedoms—all the things we hold dear within the nation—with the ability to ensure security. I could not disagree with what he said, but actually we have to look after that right of our individuals which is their lives. Therefore, I believe that these things are balanced and appropriate. The danger of being counterproductive is absolutely right. If one looks at our counterterror strategy—which is being refreshed at the moment; I have put in a lot of work on that and it should be finished later this year—one of the key strands is known as the prevent strategy. One of the things we are looking at is exactly this balance of making sure that we are looking after our people and not making things much worse.

There is no doubt that the rights of our people are absolutely paramount. Our liberty and such things are so important to us, but we have to weigh all these things up, and we need this quiver of options to enable us to do what we believe is absolutely required.

The noble Lord, Lord Teverson, raised the DWA issue. I hope that I have covered that. We would never send people to a country on that sort of base. I have touched on the issue of Sir John Chilcot. I do not think—I am sad to say—that this will be a silver bullet; it just will not be. We are working to persuade the European Court of Human Rights to reconsider current jurisprudence. We are negotiating deportation assurances with a number of countries. We want to make sure that we get those assurances because we would not deport unless we absolutely had them.

I am most impressed with the noble Lord, Lord Kingsland. As a watch-keeping officer he has done most of the afternoon—both dog-watches—and he is now well into the first watch. That is a very long time to stay on deck. Of course, as ever, he eloquently expressed the point a number of noble Lords have made about this crucial balance between our freedoms and imposing these things.

I touched on the importance of the forthcoming CT Bill, and I hope I have given assurances on that. We will be able to discuss all those points. One of the things that frightens me in the Chamber is that I am always surrounded by judges and people who know all these things. If I paraphrase what the noble Lord said about the House of Lords judgment, it is open to interpretation; I use that word because that is what naval lawyers always used to say to me when I was trying to come to some difficult conclusion. We may have interpreted it slightly differently from the way he has. As noble Lords would imagine, I think that the way we have interpreted it is absolutely right.

The noble Lord also referred to absconding, which I touched on—I hope that I covered it—and the fact that we have not prosecuted anyone. As I say, perhaps that shows that the measure has been useful. I have great respect for the Security Service—this covers a point made by the noble Baroness—which assesses that these people are involved in terrorism-related activity and pose a risk to public safety. Without a control order they would be free to continue their activities. The Security Service believes that control orders help to prevent, restrict and disrupt individuals engaging in terrorism-related activity. What is the difference between that and normal surveillance? That is a difficult question and I cannot go into detail on that. However, the Security Service believes that these measures are valuable and important and I take it at its word. So often I find that I am asked questions here that I have asked. That reassures me although I do not know whether it reassures noble Lords. I have asked these questions. They are important and they are being looked at.

I do not want to go on for ever but I reiterate that our preferred option is to prosecute—to put these criminals behind bars. Where we cannot do that if they are foreigners, we want to deport them. However, that does not change the fact that despite these improvements there are a small number of these people with whom we cannot do either of those things. I believe that control orders are the best of a lot of bad options available to us for dealing with these individuals. As was shown by the report of the noble Lord, Lord Carlile, they are used very selectively. They are used currently with only 11 individuals and have only ever been used with 31 people. They are only one of a package of different measures. The noble Earl said that the figure did not seem very high but we are doing many other things as well.

I believe that not reviewing the Prevention of Terrorism Act would allow these individuals to continue to engage in terrorist-related activity and would put public safety at risk. That is a risk that the Government cannot take. That view is supported by the director-general of the security services and the Intelligence Services Commissioner. Therefore, I have no hesitation in commending this order to the House once again.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 9:15 pm, 27th February 2008

My Lords, I am very grateful to the Minister for his very full reply. I am also grateful to the House and the Government for allowing us latitude in the extent of this dinner-hour debate to enable us to explore these very important issues at length. We are lucky to have the Minister responsible for terrorism strategy in this House so that when we debate the Counter-Terrorism Bill we shall have the benefit of his expertise. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.