Motion to Approve

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009 – in the House of Lords at 11:38 am on 5 March 2009.

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Votes in this debate

Moved By Lord West of Spithead

That the draft order laid before the House on 3 February be approved.

Relevant Documents: 6th report from the Joint Committee on Statutory Instruments and 5th report from the Joint Committee on Human Rights.

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) 11:39, 5 March 2009

My Lords, the purpose of the order before the House today is to renew the Prevention of Terrorism Act 2005. Sections 1 to 9 of the Act will automatically expire after one year, unless renewed by order, subject to affirmative action by a 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 2010. 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.

We remain firmly of the view that the legislation and the order before us today are fully compliant with the European Convention on Human Rights. The other place voted in favour of renewal on 3 March. Since last year's debate on the renewal of the Act we have, of course, had the opportunity to consider the control order powers in some detail. During the passage of the Counter-Terrorism Act 2008 we considered a number of government and opposition amendments to the original powers. Some minor changes were made to the 2005 Act as a result.

In setting the scene for our debate today, it is important to remember that in recent years we have witnessed a number of significant attacks, and attempted attacks, on our country. These have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people. The threat to the UK from international terrorism remains real and serious. Recent trials and investigations have shown that terrorist networks continue to plan and attempt to carry out attacks. We need a broad range of responses to reduce the risk of further terrorist attacks. These responses must ensure public security while protecting our values and civil liberties. Prosecution has been, and continues to be, our preferred approach, since terrorists are criminals who attack the values that we all share.

In 2008, 51 people were convicted in 18 terrorism cases, with 21 individuals pleading guilty. These figures underline the considerable success that the police and intelligence agencies have had in disrupting terrorist plots and that the CPS has had in prosecuting these individuals. We remain absolutely committed to enhancing the ability to prosecute terrorists. Thus, the Home Office is currently taking work forward to implement the recommendations in last year's Privy Council review report on the use of intercept as evidence. However, the report explained that, in a review of nine control order cases by an independent senior criminal counsel, the use of intercept as evidence would not have enabled criminal prosecutions in any of those cases. In other words, it would not have made any practical difference. From this, one cannot hold out much hope to resolve all the problems.

Where we cannot prosecute suspected terrorists and the individual concerned is a foreign national, we look to detain and then deport them. Last month's Law Lords' judgments in three cases—including that of the Jordanian Abu Qatada—demonstrated that the Government's policy of deportation with assurances, or DWA, is compatible with the ECHR.

Despite improvements in our ability to prosecute or deport individuals who pose a threat to national security, there remains a small group of individuals whom we can neither prosecute nor deport. Control orders are intended to protect the public from the risk posed by those individuals. For the past four years, they have been a valuable and targeted tool in our fight against terrorism. Each order places a tailored set of obligations on an individual to help to prevent or restrict him from engaging in terrorism-related activity. They are not imposed arbitrarily—a judge must agree that they are necessary and proportionate—and they are subject to regular and rigorous review. I know this because I am deeply involved in those reviews. There are currently only 15 control orders in force.

We accept that control orders cannot entirely eliminate the risk of an individual's involvement in terrorism-related activity. Indeed, the independent reviewer of the operation of the Act, the noble Lord, Lord Carlile of Berriew, notes in his most recent report that he has seen material showing that a few controlees,

"manage to maintain some contact with terrorist associates and/or groups".

However, it is absolutely clear that the obligations in place make such involvement more difficult. It is for that reason that the Act itself refers to,

"preventing or restricting ... involvement in terrorism-related activity".

There continues to be a school of thought that control orders should be time limited. That is superficially attractive. However, our position is that orders should be imposed for as short a time as possible, commensurate with the risk posed. Of the individuals currently subject to control orders, only five have been subject to them for more than two years. We do not believe that an arbitrary time limit is an appropriate way to manage the risk.

We would also like to remind noble Lords that the High Court has supported our view that a control order can be justified beyond two years. Mr Justice Collins recently found that, if there is evidence that an individual remains a danger, the control order should continue for as long as necessary.

There continue to be those who argue that the control order regime is an affront to human rights. Let me be clear: that is not the case. The highest court in the land has upheld the whole regime, reflecting the substantive and rigorous judicial checks and balances in the control order regime.

The Law Lords are currently considering what measures are necessary to safeguard the right to a fair trial in control order cases. Their deliberations will undoubtedly take into account relevant jurisprudence, including the House of Lords judgment in 2007, the Court of Appeal judgment of October 2008 and the recent European Court of Human Rights judgment in the case of A and others. The judgment of the European Court last week relates to detention proceedings in SIAC rather than the control order proceedings in the Administrative Court. The cases considered by Strasbourg are historic. There have been many developments and improvements in the operation of the special advocate system since the time of the cases in 2004.

Our view remains that supported by the Court of Appeal last October, which is that there is no irreducible minimum level of disclosure that is necessary to ensure that control order review hearings are compatible with a right to a fair trial. The individual is already given as full an explanation as possible of the reasons for the imposition of a control order, subject only to legitimate public interest concerns, and each case is determined by an independent High Court judge who has all the relevant material.

I place on record the Government's thanks to the noble Lord, Lord Carlile, for yet another thorough report, which will no doubt inform today's debate. We will, of course, respond formally in due course, as we will to the JCHR's most recent report on control orders. The noble Lord, Lord Carlile, continues to view control orders as,

"a largely effective necessity for a small number of cases".

He further notes that,

"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".

That view is shared by the other two statutory consultees, the Intelligence Services Commissioner and the director-general of the Security Service.

We currently face a threat from terrorism that is sustained and indiscriminate. Indeed, the threat level is severe. We need to protect the public while ensuring that our fundamental rights and values are safeguarded. Control orders are by no means the whole answer—they are one small part of the panoply in our armoury to protect this nation—but they help to deal with the threat that we face. They are an important part of this overall approach. The risk to the public would increase were these provisions not to be renewed and I do not believe that we can allow that to happen. I commend this order to the House.

Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

To move, as an amendment to the above motion, to leave out from "that" to the end and insert "this House declines to approve the draft Order laid before the House on 3 February".

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 11:45, 5 March 2009

My Lords, in moving this amendment, I want to look at what has changed in the four years that Parliament has been approving and reapproving these control orders. In doing so, I will explain why we have, for the first time, tabled a fatal amendment to them.

The House will recall that when these orders were put on the statute book, they were supposed to be a short-term measure to deal with a very real gap in capacity and in measures to deal with the terrorist threat. On 5 March 2007, when these orders were being debated, my noble friend Lord Goodhart reminded the Government of the history of the orders. He said:

"The fact is that the Government are reneging on the undertaking given on 10 March 2005 which was central to the compromise that enabled the Prevention of Terrorism Bill to go through that day".—[Hansard, 5/3/07; col. 29.]

In 2007, my noble friend Lord Dholakia tabled a non-fatal amendment as we were still waiting for revised legislation that would bring the orders regime back within the framework of the normal legal processes of this country. Last year, I did the same—the Counter-Terrorism Bill, with all its possibilities to revise the system, was only weeks away from its passage through your Lordships' House. In fact, the long-awaited revision never happened. As the Minister said, there were simply some minor amendments. The Government have resisted any substantial change and this year they have expected that we will simply rubber-stamp these orders again.

The noble Lord, Lord Carlile, has talked continually last year and this year about an exit strategy, yet the Government have not produced any evidence of work on one. The Liberal Democrats Benches recognise all the changes that have happened over the past four years and we believe that the time has come to challenge the Government to fulfil the undertaking of which the noble Lord, Lord Goodhart, spoke.

What has changed that should have prepared the Government for a change of regime? There is a growing body of legal opinion, both national and international, that the system is not within the law. In 2007, as the Minister mentioned, the Law Lords found many things wrong with the control order regime, starting with closed hearings and continuing through the day-to-day operation of the orders. They asked for revision rather than finding them unlawful. However, the Government cannot count on that happening again with the latest challenge. The Minister has referred to the appeal which was heard last Monday on procedural unfairness and we await the judgment from that with great interest. The European Court of Human Rights has delivered fundamental criticisms which should have prepared the Government either to radically revise the orders regime or withdraw it altogether. I am sure that members of the Joint Committee on Human Rights will today tell us their view.

Finally, the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights published its opinion on 17 February this year expressing concern about a parallel legal system developing. It felt that that undermined the rule of law. In international terms, that is extremely serious. I hope that today noble Lords will expand on just what due process should be in British law and just how far short these orders fall.

The Government have also had four years to increase the capacity of the security services, which I am in no doubt they have done. They have increased expenditure and reorganised their strategies and staff. Despite the continuing threat, this must have had some effect that would feed through into allowing a return to the normal rule of law. Last year, the noble Lord, Lord West, in opening this debate, said:

"We must protect the public, while ensuring that our fundamental rights and values are protected. Control orders are an important part of this ... balancing act. They are one of a significant number of measures that can be deployed to protect the public from terrorism".—[Hansard, 27/2/08; col. 722.]

So he does recognise the balance.

We are not suggesting that the terrorist threat has diminished. Indeed, with the Mumbai bombings and this week the bombing in Pakistan of the Sri Lankan cricket team, we have had a very stark reminder overseas; and here, every day on our screens, we are reminded that the threat remains high. I am sure we are all well aware of it every time we take a tube or a flight or read about the cases that are coming to court. I pay tribute to all those involved in discovering the plots and networks of terrorists. The threat does not seem to have diminished since the last time we renewed these orders and in moving this amendment I recognise that. However, we are suggesting today that the intervening years should have been used to ramp up the other measures and get rid of this one. It was pretty hard to accept in the first place and is certainly not acceptable as the long-term measure it has become. Indeed, it is not even a very effective measure. The Minister mentioned people subject to these orders who have stayed in touch with other groups. Why have they not been prosecuted under the various relevant statutes? There are also the people who have absconded while subject to these orders, so they are not very effective.

Should the Government pray in aid the independent reviewer's report, I stress that the noble Lord, Lord Carlile, has done a very difficult job with all the considerable skills at his disposal, but he was asked to look at a tool to see if it is working in the way for which it is designed. His job is not to look at the other tools in the tool box; that is for the Government to do. We want the Government to take that look today and to take it very seriously.

We have heard from the Conservatives about this issue over the years, and I look forward to hearing their view again today. Last year, in the debate on 22 February 2007, Patrick Mercer said in the other place that the Conservatives supported control orders with great reluctance but would not be able to do so the following year. He said in conclusion,

"we will support the extension with great reluctance, but we must put the Government on notice that, in view of Lord Carlile's latest report, we will not be able to sustain our position this time next year".—[Official Report, Commons, 22/2/07; col. 443.]

I do hope, especially given the sort of speeches that Conservatives Members made at the convention on liberty this year, they will agree that the time has come to follow their words with their votes.

In the debate in this House on 5 March 2007, the noble Lord, Lord Dear, said:

"Anyone who knows anything about the laws of physics knows that whereas it is easy to go up on the ratchet, it is well nigh impossible to come down".—[Hansard, 5/3/07; col. 29.]

He reminded the House how important in winning hearts and minds it is not to be seen as repressive. Our amendment today is offering this House the chance to get the Government to think again and to bring the orders regime back from a parallel system to our tried and tested legal system, a system which has won hearts and minds through centuries.

In the introduction to the splendid British Museum "Taking Liberties" exhibition, which I am sure many noble Lords will have visited, the guide reminds us of how Britain has always been seen. The American revolutionary Patrick Henry said in 1788:

"We are descended from a people whose government was founded on liberty; our glorious forefathers of Great Britain made liberty the foundation of everything. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation".

As a country we do have a choice to return to a normal rule of law where suspects are charged and tried and where the highly suspicious may be held under surveillance within all the strict codes and guidelines, but where no one is subject to effective house arrest year after year after year. The Government have prepared no exit strategy. They have invited no discussion, even on a draft exit strategy. Parliament—this House—should make the choice. I invite your Lordships to do that today. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, last year my noble friend Lord Kingsland eloquently set out the position of these Benches. He said:

"We ... 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".—[Hansard, 27/2/08; col. 731.]

Indeed, such orders are obnoxious. He went on to say that the system must be limited and that the need for control orders must be reduced.

We are told by the Government that control orders are necessary because it is not possible to prosecute or deport some terrorist suspects and that indeed there is a gap between the court's requirement for evidence and the ability of the state to meet it without prejudice to wider interests of security. These are real issues. However, despite warnings from opposition Benches in both Houses, and despite successive reports from the statutory reviewer of terrorism, the noble Lord, Lord Carlile, on the need to reduce reliance on control orders, the Government have done very little to help close the gap they have identified. Their lack of interest in so doing says very little for their attachment to civil liberties. It is not as if the Government were powerless to improve the situation. They could have taken serious steps to increase the possibility of obtaining admissible evidence, and the likelihood of successful prosecution.

I will examine two possible routes to reduce reliance on control orders over which the Government are dragging their feet. On the issue of intercept evidence, the noble Lord, Lord Carlile, in his annual review of the control order system, clearly stated that using intercept evidence had the potential to reduce the need to resort to control orders. Despite the Chilcot review accepting as long ago as January last year that using intercept evidence could be beneficial and could be introduced without threatening security sources and methods, the Government have proceeded very slowly. More than a year later, there is no sign of the implementation committee finishing its work. That it should do a proper job is a given. However, the last statement by the Home Secretary was equivocal and, crucially, conveyed no sense of urgency on the part of the Government.

The deportation of foreign suspects is another route to reducing the number of control orders; but despite the Government declaring that this was an important part of their policy, little progress has been made. The Government in 2005 put in place memoranda of understanding with three countries: Jordan, Libya and Lebanon. They exchanged letters with Algeria in 2006. Nearly three years later, there has been only one more: Ethiopia. In a parliamentary Answer given last July, the Government said that they were pursuing agreements with a number of countries. Does the Minister have progress to report? Is the necessary muscle being put into achieving what the Government call an important part of their policy?

Last month's House of Lords judgments in three cases, including that of Abu Qatada, demonstrated that deportations with assurances are compatible with the European Convention on Human Rights—which of course is the point. The Government need to pursue their own policies with more vigour. I ask the Minister if the Government have made a quantitative assessment of how far using intercept evidence and deporting suspects would reduce the number of control orders. Have the Government looked into whether individuals presently subject to control orders can be prosecuted now that the range of terrorism offences has been extended significantly? Legislation such as the Counter-Terrorism Act 2008 included a number of new offences, and also made terrorist connections an aggravating factor in prosecuting and sentencing. The statutory reviewer, the noble Lord, Lord Carlile, stresses time and again in his reports that the cases of those subject to control orders should be under constant review. If, in the light of their own legislation, the Government have not reviewed the possibility of successful prosecution, could the Minister explain why? What is the point of all this legislation if the Government do not use the powers they take?

As well as doing very little to reduce the need for control orders, the Government have also refused suggestions from all sides of your Lordships' House that would have made the current system significantly more compatible with our notions of the rule of law and with our human rights obligations. With this aim in mind, during the passage of the Counter-Terrorism Bill 2008, we on these Benches tabled two amendments on control orders. The first would have required the Director of Public Prosecutions to decide whether prosecution was the appropriate course of action to take in respect of each potential controlee. The DPP would have had to declare that the prosecution was impossible before a control order could be activated.

The decision on whether to prosecute is taken currently by a chief police officer. However, in previous reports, the noble Lord, Lord Carlile, has raised two objections to this. He described the wording of Sections 8(4) and 8(5) of the relevant Act as strange. It contains an obligation—the word "must" is used—for the police to consult the relevant prosecuting authority, but—here is the critical and odd point—it goes on to say only,

"to the extent that he considers it appropriate to do so".

The noble Lord, Lord Carlile, also 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, 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".

Those are important words.

The noble Lord further suggested that the letters should make it clear why no additional investigation will be undertaken and why different forms of evidence-gathering would not or could not be undertaken. To get the reasons, and to get the reasons out in the open as to why a prosecution was not possible, was the reason why we on these Benches thought that a decision on whether to prosecute would be better taken by the DPP.

The second amendment would have ensured that the prospect of prosecution, if legitimately considered and properly rejected at the outset, should nevertheless be kept under regular review. That point is picked up by the Joint Committee on Human Rights. It said recently that it,

"has questions regarding the seriousness of the Government's commitment to prosecution as its first preference, in light of the lack of continuing investigation of controlled individuals and a lack of effective system to keep the prospects of prosecution under review"— precisely. As I said, the amendment that we tabled would have ensured that the prospect of prosecution would be kept under regular review. I do not know why the Government could not have accepted these amendments; they would have been wise to do so. The Court of Appeal has previously said that the Secretary of State's duty to review the prospects of prosecution should be expressed in statute.

There are other problems with the current system of control orders. We did not table amendments on these, but they are well known and need to be addressed. The first is the need for due process. We are not happy with the use of special advocates and the fact that the defendant receives no information on the case against him. As the noble Baroness, Lady Miller, said, the recent report by the international eminent jurists panel said that control orders could give rise to a parallel legal system. I know that the Law Lords are currently considering what measures are necessary to ensure a fair trial, but should not the Government take the lead and themselves be active on this?

Finally, let me turn to what the noble Lord, Lord Carlile, calls the "end game" for control orders. The noble Lord has consistently recommended that there be a recognised and statutory presumption against the extension of control orders beyond two years. He has not set an arbitrary limit; he has set a presumption. He has given reasons for this:

"It is only in a few cases that control orders can be justified for more than two years. After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorists will know that the authorities will retain an interest in his or her activities, and will be likely to scrutinise them in the future. For those organising terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her".

Do the Government accept the reasoning of the noble Lord, Lord Carlile? In another place, the Minister of State said:

"The Government believe that control orders should be imposed for as short a time as possible, commensurate with the risk posed".—[Hansard, Commons, 3/3/09; col. 738.]

The Minister has made that point. Is this view being seriously reflected in what actually happens?

If the Government had accepted our two amendments to the then Counter-Terrorism Bill, and if they had made progress on addressing other well-known problems with the control orders regime, we would have been much more sympathetic to their renewal today.

As it stands, we are most certainly not sympathetic. As shadow Security Minister, I am in a difficult position. I am clear that the Government have been less than energetic in their efforts to close what they call "the gap". Mostly because of this, I cannot prove that none of the orders is necessary, and I am not in a position to assert that there is no valid security reason for them that justifies obstructing their renewal. Let me be clear—just as there is a positive obligation on Government, imposed by human rights law, to take effective steps to protect the public from real threats of terrorism, so human rights law imposes obligations and tests on our counterterrorism legislation. My constant objection to the policies of this Government is that they show too little regard for the second set of obligations.

As my noble friend Lord Kingsland said,

"responding to terrorism with legislation that is itself capable of undermining our 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".—[Hansard, 5/3/07; col.32]

That is our problem here today.

In the light of this guiding principle, a Conservative Government would, should we enter office, not only review the current control order regime but review, rationalise and consolidate the plethora of existing counterterrorism legislation. In so doing, we would take measures to close "the gap" and would replace the present control order system. We would find ways of bringing the UK into line with other comparable democracies on the use of intercept evidence in court in terrorist cases. We would end the abuse of stop-and-search powers, which are available under terrorist legislation—those powers are being used for non-terrorist related incidents. We would stop inappropriate surveillance by public bodies and re-examine controversial offences relating to distribution of literature and glorification.

As for today, if the House divides, I invite my colleagues on these Benches to abstain.

Photo of Baroness Stern Baroness Stern Crossbench 12:00, 5 March 2009

My Lords, I cannot say that I welcome or enjoy this annual renewing of the order. However, in the circumstances, it seems important that it should take place, so that at least once a year Parliament gets the opportunity to consider this measure, those subjected to it, the way in which it is implemented and its implications for the rule of law and human rights. As I said last year, my 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, who include the families and friends of those under control orders.

The noble Lord, Lord Carlile, has once again given us a considerable amount of information in his report on the conditions imposed and their intensity. I thought that it would be helpful to put on the record some of the detail of just one case, to indicate the everyday reality of these orders for the individuals who are subject to them. This is Case 15, and can be found in Annexe 1 of the report of the noble Lord, Lord Carlile.

Case 15 has 20 of the 22 possible restrictions. He is electronically tagged. He is under curfew for 16 hours a day. He must report daily by telephone. His visitors are restricted, except for some family members. He cannot meet anyone outside his home without approval. He is issued with a list of people with whom he must not associate. He must let the police in at whatever hour they come. Communications equipment in the house is restricted. He can attend only a specified mosque—the text says "mosque", and I am not sure what one should conclude from that. There are places that he cannot go to at all. He must tell the Home Office if he intends to leave the UK. He can have only one bank account. He needs approval to send anything abroad, apart from personal letters. He must surrender his passport. He cannot leave the UK. He cannot go to a port or a railway station. He must report daily to a specified police station. He must tell the Home Office if he works. Finally, he must get prior approval to study. He was exempted from two of the 22 possible conditions.

Some more light on the reality of this measure comes from the very helpful table of litigation on pages 15 to 17 of the report of the noble Lord, Lord Carlile. From this, we learn that a control order was quashed on this ground:

"Evidence of sympathy with insurgents insufficient on its own".

From another case, we learn that the detainee was required to,

"move to a specified city where he knew nobody".

From another we read:

"Controlee recently sectioned under Mental Health Act 1983".

This is the same controlee who the court said was:

"No longer required to report by telephone to a police station in the early hours of the morning; nor to obtain prior approval for female visitors to his family at home".

For another case, there was a,

"refusal to permit controlee to attend AS Level science courses ... attendance would enable him to acquire skills and information re production of pathogens and explosives".

A court said:

"Relocation to unfamiliar area and 16 hour curfew not of themselves disproportionate. However, those restrictions combined with ban on attending pre-arranged meetings outside his home, and consequent social isolation, made this deprivation of liberty contrary to Art 5".

Those give a helpful insight into the experiences of some individuals.

The Home Office's Control Order Review Group, which reviews each control order on a quarterly basis, has an important role. One of its functions is:

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

This is vital and I was glad to hear the Minister say that it is rigorous. I am sure that it is, but it would be very helpful for the House to know how it is done. Is there an independent doctor or a social worker? Who makes the assessments about mental health and physical well-being? Does someone interview the family members and the children? If the Minister could give the House some information on how the Control Order Review Group satisfies itself on these matters, it would help noble Lords to understand, as I am sure is the case, that this responsibility is taken very seriously, for these are extraordinarily stringent measures.

I cannot begin to imagine what it must be like to be a family member living in a house where the husband or father is subject to a regime such as this. It can be imposed without a charge, a trial, a jury or any public scrutiny of the proceedings, and for time without end. Last year, I raised the question of the length of control orders. Two of them have now been in place for more than three years.

The more one finds out about this system, the more anxieties arise. I agree very much with the words of Douglas Hogg MP, in the debate on Tuesday in the other place. He said that,

"it is very difficult for the House, the public or the press to know whether what we are doing is really justified or proportionate, and whether it is being done in a way that is right, proper and justified. We just do not know, and that is profoundly unsatisfactory".—[Hansard, Commons, 3/3/09; col. 756.]

I agree that it is indeed profoundly unsatisfactory. I am sure that we could do better than this with all the experience that we now have and I am very grateful to the noble Baroness, Lady Miller, for moving her amendment, which I shall support.

Photo of The Bishop of Norwich The Bishop of Norwich Bishop 12:15, 5 March 2009

My Lords, in February last year the General Synod of the Church of England requested,

"an early review by the Government of the restrictions and other obligations that may be imposed on individuals under the Prevention of Terrorism Act 2005 and the use of undisclosed material in control order proceedings".

That was passed nearly unanimously; for the General Synod to do anything nearly unanimously is a bit of a miracle in itself.

The impact of the restrictions imposed on individuals through control orders, as the noble Baroness has just illustrated, can be cumulatively highly repressive, leading to mental health problems not just for the person being controlled but for their wider family. This is deeply serious for someone who is legally innocent. When do cumulative restrictions on liberty become the deprivation of liberty? Where do we set the boundary? This is a crucial question for what we still describe as a free society, of which control orders are meant to be protective. In some cases, the cumulative impact of restrictions gets very close to house arrest. That is what greatly concerns these Benches.

This order is an unsatisfactory expedient for many reasons. When you can neither deport nor charge someone about whom strong security suspicions exist, it is hard to see an immediate alternative. However, Governments can get used too easily to the exercise of such powers. That is why it is important to voice concerns about the conditions and restrictions that may be applied. Issues of natural justice arise when the reasons why someone is subject to a control order are withheld from them while the special advocate presenting their case is aware of them. We need to recognise the ways in which this system can offend natural justice and be vigilant about finding a better way. At least being subject to annual debate and renewal indicates the seriousness of the exceptional provision.

The breadth of the powers given to the Secretary of State under this order present a considerable temptation and we pray daily in this House that we shall not be led into temptation. A separate, urgent and considered review of the restrictions that may be imposed might be one way of resisting the temptations that go with this order.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, I speak as a member of, although not on behalf of, the Joint Committee on Human Rights. Having listened to the noble Baroness, Lady Stern, all I can say is that our committee is very sorry that she is not still a member, as her contribution was incredibly important.

I had written in my notes about the limit of time and the fact that somebody could be held in a one-room flat in Ealing for 16 hours with curtailment on whom he sees outside and what he is allowed to do. The noble Baroness, Lady Stern, very reasonably and with great impact, filled out the details of what a control order means to the controlee. It is as near imprisonment without trial as it is possible to get. Our final paragraph in the Joint Committee on Human Rights report states:

"As in previous years, we therefore have very serious reservations about the renewal of the control order regime unless the Government is prepared to introduce the safeguards we have identified as necessary to render it human rights compatible. Without those safeguards, the use of control orders will continue to give rise to unnecessary breaches of individuals' rights to liberty and due process".

The liberty issue has been completely and utterly shown by the noble Baroness, Lady Stern. The due process issue is the fact that the persons are not allowed to see the evidence against them. We took the view that it is only just that someone who has been accused of something should be able to see the evidence against them, although I accept that it may have to be slightly edited.

Our other concern was on intercept evidence. Why, as my noble friend Lady Neville-Jones said, has it taken such a long time to make a decision? The Government seem to be acting like Fabius Maximus the Cunctator—the delayer. I hope that they are as successful as he was.

The other extremely unpleasant fact is that these people can be held for a limitless time. That cannot be right under any circumstances. People are held in pretty unsavoury conditions, which certainly lead to mental health problems. They are held without hearing the evidence against them and they can be held for an interminable time. That is completely unsatisfactory and it goes against the grain of all our ancient liberties and constitution. It should be, and can be, rectified.

We accepted that the Government should publish the report of the noble Lord, Lord Carlile, a month before renewal to allow for information to be put in the public domain and for a better debate to take place. The noble Baroness, Lady Miller, raised the issue of people who absconded—four or five of them, I think. They just went absent and we heard no more about them. Have they gone back to play with the ungodly? Have they gone back to doing things of which they were suspected, or have they just vanished? If they can just vanish without any further damage, they were not really doing very much damage; otherwise, they should have been prosecuted.

Finally, they must, must, must be prosecuted. If I were my noble friend Lady Neville-Jones, I would have said to Her Majesty's Government, "This time you can get it, but not next time". Next time I would support an amendment moved by the noble Baroness, Lady Miller, or even move one myself, that the regime should not be renewed, because it is unsatisfactory, it is against our traditions and the Government are being idle in allowing it to carry on.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, for all the reasons that have been expressed, control orders are in principle objectionable. They may also have an adverse effect on the children of detainees in such minor ways as the children being unable to use, or have very limited use of, computers, which of course all children nowadays have to use at school. It is perhaps a small matter, but it could be alleviated for the children of these suspects.

I also agree with the criticisms of the Government's failure to deal with intercept evidence. It really is time that it was looked at properly and that something was done about it. The Government should seek other methods in addition to control orders.

However, the Minister tells us that among the 15 suspects, intercept evidence, if it had been put forward, would not have been relevant to the trials of some of them. One has to bear that in mind if that is the case. The Government should be looking at alternatives to reduce the number of control orders, but, with the greatest possible reluctance, I recognise that if one balances the importance to the public of security against the tension of control orders for this number of people, with the provisos that have been mentioned, I cannot see how we can legitimately oppose today's order. It extremely important that the order should be renewed and that the criticisms made today should be met by the Government before this time next year.

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) 12:30, 5 March 2009

My Lords, I thank all noble Lords who have spoken for their important contributions. I have thrown away my detailed speaking notes because to go this through point by point again and again—I did a lot of that in my introduction—would be meaningless. Do we like control orders? The answer is no. They are a least-worst option. That is reflected in the numbers involved. Fifteen people are on control orders and yet we are monitoring more than 2,000 people, many of whom, as we know from intelligence, intend us harm. These are the people who are really capable of doing us harm. We would much prefer, as a number of noble Lords have said, to go through the courts. It is unfair to say that we do not try very hard to do that. The CPS and the police would be most upset to think that they are not seen as trying extremely hard to proceed against these people in court.

The problem is the difference between intelligence and evidence. The noble Baroness, Lady Manningham-Buller, spoke eloquently on that when we discussed control orders during proceedings on the Counter-Terrorism Bill. One of the issues, as she said, is that it is hearsay. That does not mean that there is not incredibly compelling intelligence. Can you imagine what the Government would face on the Floor of the House if there was an outrage such as 7/7? If one looks at some of the people involved in that, they were the most unlikely people. There might have been the odd strand of intelligence, but if there had been really serious intelligence against these people and we had allowed them to commit such an outrage, quite understandably we would be culpable and I would be hammered and slapped around about it and so would the Government. We cannot take any chances; the issues are too dangerous.

We talked about deportation with assurances. Clearly, if the person is not British, it is a wonderful way of getting them out of here. It is amazing how people who hate us, our system and our way of life will fight so hard to stay in this country. I do not blame them because this country is amazing; it is a wonderful country and we bend over backwards to give all those freedoms to our people that we have to balance all the time in this. They may hate us but you try and get rid of them. We have put a lot of effort into dealing with a number of countries. Ethiopia was mentioned. I went there myself to do the final push to get an agreement with them. It is quite hard and we have to be careful which countries we get a DWA agreement with. There are some countries, I fear—I would not be so stupid as to mention them on the Floor of the House—which we would be very worried about sending someone back to because they would be far worse placed than they are in this country, living in their own home with certain restrictions.

To pretend that we are not doing anything is not correct. The Government are working extremely hard on this. We do not have control orders for some weird authoritarian reason. I do not particularly like having to keep coming here and talking about control orders, but the people involved with them have to work extremely hard. It is not an easy option. There is a lot of work involved in reviewing these things, making sure we get them right and going through the correct judicial procedures. It is a lot of extra work and it is not the easy way out. This is not political posturing; I do not do political posturing. This is something that we feel really has to be done to make the nation safer. If we did not have to do it, we would not, because it is not an easy option.

I want to reinforce the important difference between intelligence and evidence. As I said, the noble Baroness, Lady Manningham-Buller, spoke extremely eloquently on the issue and it would be worth looking back in Hansard at what she said. There is a huge difference and that is part of our problem with a number of these issues and with counter-terrorism as a whole. We know of threats and attacks that have happened because we have been very successful at putting people away—as I mentioned before, 51 people in 18 cases last year with 21 of them pleading guilty. We are using the Counter-Terrorism Act to do this and, as an aside, I should like to see a rationalisation of the Counter-Terrorism Act. The noble Baroness, Lady Neville-Jones, mentioned that and I agree with her. I should like to see a simplification. But we are using all those powers and we have been very successful in putting people away. That is a good thing because it is what we want to do. It has shown us clearly what evil these people want to do against us, which is sobering and very unpleasant.

We are using composite measures to look after the safety and security of this nation. When my right honourable friend the Prime Minister asked me to join the Government in 2007, he said, "I think you can do something to help the security of the nation". I was not big-headed enough to think I could but he thought I could, so I was willing to try. I can assure the House that every day since then I have thought about that safety and security and have looked at things like control orders. I was not happy with control orders. I have pushed extremely hard to make sure that the CPS and the police work to get a prosecution and I have pushed extremely hard on the DWA side. I have asked, "Are we sure we cannot get exactly the same surety by some other means if we throw resources at this? What if we were to put more Security Service, more Special Branch people, onto this? Could we get the same level of surety that we are getting from control orders? Because if we can, perhaps that is worth doing". That work is ongoing; I am still looking at that and prodding.

A certain number of people will be involved and there will be issues of prioritising because, as I say, we are looking at more than 2,000 people who wish to do us harm. The ones I really worry about are the ones we do not know about, because there will be people like that. If we can get the same level of surety by using 200 to 300 specialists to look at the 15 people on control orders in more detail, on top of what we already have—because they have to be looked at around-the-clock in such a way that they do not know it is being done—then perhaps we should get rid of control orders. But you noble Lords imagine the impact. We have doubled the size of the Security Service but we would be taking that number of people away from other operations. As it is, we have a batting order; we look at this at the weekly security meeting. It is quite worrying but I can assure this House that I am pushing all the time to try to make a difference. We do not do this lightly; we do it for the safety and security of this nation.

There has been a certain amount of talk about intercept as evidence. It is naïve to think that it is a panacea for control orders or for anything else. I object to anyone thinking that we have not been taking this seriously and pushing it forward. There has been cross-party involvement. The Chilcot study came up with a number of conditions that had to be met. As I have said a number of times on the Floor of the House, one of the huge capability advantages we have is some of the techniques we use. Those techniques are not known by the people who wish to do us harm and that is very important for the safety of this nation. We must not lose that edge, as we move forward with the Chilcot report—and we want to be able to accept that and do it. For example, 15 years ago UBL used a mobile all the time. I know that because I was involved in the intelligence world and we knew that he did that. There is no way on earth that he would do that now or be anywhere near one that was being used. Why not? Because he has heard, because of court cases and other things, that would point to exactly where he was. We could get in and find out everything he said. If he was unlucky enough to be hit by a predator, by the Americans, you never know what might happen, but he knows that they pick these things up. We must not give that away. We have to be very careful about intercept as evidence. We want to be able to use it, but that has to be looked after.

I know from my involvement in Northern Ireland that you need people who have been listening for months if not years to the dialect and the words they use. I know from a particular incident there that even at the moment a man was about to kill one of our soldiers we could not tell from listening to that. When we looked back at it, we could work out that that was going to happen, but we could not tell at the time because you need such skill to do it. Juries are not going to be able to work that out, so we have to be really careful in this area.

On the loss of life, I was delighted that the noble Baroness, Lady Miller, paid tribute to our people in the agencies, in the police and in the OSCT who are doing very hard, detailed jobs extremely well. These are good people, just like us. They are not some evil, authoritarian bunch; they are good people who come from among us and do very hard work. I must just say, because it makes me so angry at times, that they have to work for about 20 years to earn the same amount of money as an incompetent banker gets in one year of his pension. However, that is an aside. They work extremely hard and we should be very proud of them.

I will write to the noble Baroness, Lady Stern. I have two pages on the Control Order Review Group and all the things that we go through. The things that the JCHR has picked up are absolutely right, and I agree that the input of the noble Baroness, Lady Stern, into the JCHR was extremely valuable. These things are very important. These restrictions are placed on people, although these people are in their own homes, so I do not necessarily agree with the noble Earl, Lord Onslow, that they are in particularly squalid conditions. Some of the homes are, I am sure, delightful. We are aware that these restrictions are there and that this is very important, so many things are checked. I will return to the noble Baroness in writing on that point, if I may.

I do not intend to go into all the legal issues again; I touched on them in my opening comments. The Government remain very firmly of the view, as I said, that the order fully complies with the European Convention on Human Rights and that everyone will be fully aware after the debate of all the things that are being looked at by the Lords.

The amendment tabled by the noble Baroness, Lady Miller, is, I fear, misguided. I understand why she tabled it, but it is misguided if it goes through as it is. If this House votes for it, 15 highly dangerous men will be taken off the control order regime next Tuesday. The advice of the Security Service and the police force to me—this is also my judgment, because I have pushed and prodded them for 18 months about this—is that they will not be able to monitor these men as effectively as they have. We will be putting our nation and its people at risk, which is not what we should do. Indeed, I cannot imagine that that is the intention of this House. I urge the noble Baroness to withdraw her amendment. If she decides to press it to a vote, I strongly urge all noble Lords to vote against it.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I thank all those who have spoken in this debate. The Government should take from it a very strong marker that, even if we do not win the vote today—should I push my amendment to a vote—this will be the very last time that this House will take that view.

The noble Baroness, Lady Neville-Jones, laid out very well the frustration felt by those on her Benches about some of the things that have not happened, such as progress on intercept evidence. There has also been very little progress on deportation. I am happy to share the Minister's two insults. I am sure that they were not intended as insults, but the noble Baroness was called naive by the Minister and I have been called misguided. I am in very good company with her if I am going to share the Minister's displeasure. He is in the difficult position of trying to defend the lack of progress that has been made in bringing in what the noble Earl, Lord Onslow, called the safeguards, which should arrive at due process. The Government could have moved the control orders regime towards that regime in the way that has been suggested before and has been spelt out again today in the Chamber, but they have failed to do that.

I fully appreciate what the Government are saying about the danger that might be posed next Tuesday if the regime is not in place, but I notice that the Minister did not respond at all to the questions about all the absconded terrorists. That, to my maths, is almost a third of—

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, that is very good news. The Minister gave us some of the detail of his operational experience, for which I have tremendous respect, but we are talking here about a different choice in operational terms. He knows that other choices could be made.

In his winding-up remarks, the Minister used a very surprising phrase, which I will check later in Hansard. He said that,

"we bend over backwards to give all those freedoms to our people".

As we on these Benches see it, we have the freedoms and sometimes the Government take them away, with the consent of Parliament, when really necessary.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, I am delighted that the Minister agrees, because it is an incredibly important point. We want to draw a line today and say that this is such an important issue and that the Government have failed in every direction to move towards due process in this case. For that reason, I beg to test the opinion of the House.

Division on Amendment to the Motion.

Contents 48; Not-Contents 135.

Amendment disagreed.

Division number 1 Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009 — Motion to Approve

Aye: 46 Members of the House of Lords

No: 133 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Motion agreed.