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.