Clause 1 - Abolition of control orders

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 9:00 am on 23 June 2011.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

Good morning to you, Mr Scott, and to members of the Committee.

Clause 1 repeals the control order regime. It will come as no surprise to the Committee that I am very unhappy about that, and I will give my reasons as we move along. Let me say right at the outset that I was impressed by the evidence sessions on our first day, and the commitment and contributions of those involved were illuminating. I am sure that that will shape the Committee’s view on how we proceed.

The Opposition are upset about the proposals. We accept that the control order regime is not perfect, and everybody has said that prosecution is the preferred option, which they would want to see. The reality, however, is that that cannot be achieved in certain cases. We all agree that the duty of any Government is to put people’s security and safety at the highest level, and that will, on occasions, limit the rights of individuals.

That is the situation we face. The risk level is at “severe”. We face threats from a whole range of people. When I was Prisons Minister, I visited some of our prisons and I saw some of the terrorists who had been prosecuted, and they really are scary people. Next year, a large number of them will be released on licence, and they will be back in society, so the threat is always there. It is always worth putting on record our thanks to the police and security services for the work that they do in protecting us from such threats.

The control order regime is necessary. Its repeal through clause 1 is the result of the coalition Government’s position, and we heard evidence about that from Lord Carlile and Lord Howard on Tuesday. There is nothing wrong with that; if that is what the Government want to do, that is what they want to do, but as we heard from the police, the control order regime seems to be working okay, and they are at ease with what happens. The Director of Public Prosecutions also felt that the regime was working.

People thought that we needed a review, and we understand that, but they seemed confident that that the powers the control order regime gave them were useful tools to deal with the difficult individuals we are  talking about. Lord Carlile, the former independent reviewer—he was in that job for 10 or 11 years—thought that the regime was appropriate and was being dealt with in the best possible way. The counter-terrorism review suggests that we will need further emergency legislation in the near future and that such legislation will require even more draconian powers.

Who is asking for the Prevention of Terrorism Act 2005 to be repealed? It is not the police, the security services or the public, but the coalition. It had to reach an arrangement, and there was a long debate before it reached an agreed position. We now have a terrorism prevention and investigation measures résumé, which makes it clear that control orders will not be as tight as they are under the existing legislation, and I fear what that will mean, because the risks will increase, which is a danger to the public. The Government, and we as politicians, should reflect on that. We are creating a greater risk than that which exists at the moment. Furthermore, if we repeal the 2005 Act, we will be bringing in a Bill that lifts a lot from the Act, so one could ask whether we need the Bill at all.

We heard from Deputy Assistant Commissioner Osborne about the Bill’s resource implications. We will lose a number of powers, particularly the relocation powers. He said that in the bid that the police submitted to the Home Office, the resources and assets required would be immense. Lord Carlile said that the resources now are about £1.8 million, which could go up to £18 million to deal with the training and development of people and assets to put the new regime in place. Losing the power of relocation, which we will come on to in later clauses, is of great concern, given that the Olympics and the Paralympics take place next year. If the power is lost, we know that a number of the controlees could be back in London.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I am listening carefully to the hon. Gentleman. Would he tell the Committee whether he thinks there is a balance to be struck between liberty and public protection? The Leader of the Opposition has sought to telegraph the fact that the Opposition seek to make a change on these issues by taking a slightly different approach and a different view. Is the hon. Gentleman saying that he wants to keep everything as it is?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

No, I am not saying that. I am saying that it is right that there is a review and in later clauses we will discuss some of the things with which we agree.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

We do, but we want to ensure that the balance is right for protecting the public. Control orders came about as a result of the horrendous events around the world and in London, and we are in a position where difficult decisions have to be taken about the balance. I think that the new regime that the Government are introducing is a step too far, because it gives more freedoms to the controlees, which is a problem that we will discuss later in relation to the issue of agreed locality. I accept that it is a difficult balance, but for the sake of the nation’s safety and security, the Government—   [ Interruption. ] It is clear, and if the coalition gets the Bill through, they must accept that they have changed their position. The balance has changed from safety to a more libertarian outlook. I think that is dangerous, and it is not only me who says so—it is the police and the security services, too. Those of us who have had to make difficult decisions in the past have had to weigh up the facts.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The issue of balance between security and liberty weighs heavily on all in a free democracy, and it is a very important issue at the heart of the Bill. Does my hon. Friend agree that the starting point in framing legislation has to be national security and public safety? After that, we should look at the consideration of getting the balance right, but for any Government the premise of legislation has to be the protection of the public?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I certainly agree with my right hon. Friend, and she has been in the position of having to make some difficult decisions over the years in her various ministerial roles.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Further to that question, where would the hon. Gentleman place the principles of the rule of law and normal legal process by comparison?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

At a very high point. Prosecution and putting people in prison for terrorist activities is where we want to be, but it is accepted that there are occasions when that cannot happen as a result of the sensitivity of the information from the security and intelligence services. Unfortunately, there are times when people have to be outside the legal framework.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

Did the hon. Gentleman just say that the rule of law can therefore be qualified in some sense?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

No, I did not say that. Part of the problem, as a non-lawyer, is dealing with the many lawyers on the Committee. I hope, Mr Scott, that you will forgive my lack of legalistic terms. I am a working-class MP.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I think I am a pretty working-class MP, like the hon. Gentleman. I am not a lawyer, and there are lawyers here, but I thought we were talking about making law. Is this not law we are making? It is not outside the rule of law. Are we not in the process of making law primarily for the safety of our country?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I know that the hon. Gentleman, like me, is a working-class MP, and he is certainly right that we are making laws. [ Interruption. ]

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

As my right hon. Friend the Member for Salford and Eccles has just pointed out, there are such things as working-class lawyers.

The hon. Member for Beckenham makes an important point. We are making laws here. Does my hon. Friend the Member for Bradford South agree that it would have been a more honest and better position had the Minister amended the 2005 Act? He could have tabled all the amendments that he wanted—schedule 1, you name it—rather than introduce clause 1.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I agree with my right hon. Friend. My point is that we have before us a coalition agreement on a difficult issue where the two parties had different views on what should occur. Let us not dress it up as anything different. We will still have a form of control orders—mini-control orders—and we will come on to that later. Why are we getting rid of the existing Act at a time when there is a need for transitional support, because of the time required to train officers for surveillance and the time required for the assets to be developed? There is also the cost of all of that. Can we not take that into consideration?

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

While the hon. Gentleman is comparing control orders with TPIMs, will he place on the record his party’s perspective on Lord Macdonald’s call to use the bail system instead of TPIMs or control orders?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I have serious concerns about police bail and whether it would be appropriate. I understand that it has been considered in the past and rejected, because of that. It may be appropriate on charges under pre-detention. The evidence that we heard from Lord Carlisle, the police and, indeed, Lord Howard about issues such as relocation, which we will come on to later, suggested that the balance should stick with the security services and not letting risk increase. That is my concern.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I want to bring the hon. Gentleman back to an earlier intervention and the soundbite that we should always fall down in favour of security rather than liberty. Does he agree that that is rather glib? On security, he might argue that control orders were not tough enough and that, for security reasons, people should be detained permanently under a control order, because that would maximise security.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I would not argue that. At the outset, prosecution is where we would all want to be, as that has the clearest effect. The reality, however, is that that cannot happen, because of issues around intelligence gathering and evidence that is inadmissible in court, despite security services knowing that individuals pose a threat. That is the difficulty.

The move towards TPIMs changes that balance where the risk is increased. That cannot be right in the present context of a severe threat level and with high-profile events coming up. On Tuesday, Lord Carlile said that the Bill

“arose from coalition politics—I am aware of the process that occurred—and it is a compromise. As I said in my last report, and in the note that I sent to the Committee, it is the sufficient lowest common multiple, and it will do. However, it does not provide as much public protection as control orders, and it would be foolish  to ignore that fact.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21, Q66.]

That is what we are saying. It would be foolish to get rid of the existing regime until transitional arrangements are in place and until costs and resources are considered. The Committee would be making a grave mistake if it allows clause 1 to be introduced.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The hon. Gentleman has frequently mentioned the extra cost. As I understand it, most of the money is going into greater surveillance and evidence gathering with the aim of prosecution. Surely he would welcome the idea that we will do our best to prosecute such people, if such evidence can be gained.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

Again, I am sure that the hon. Gentleman listened to the evidence in the same way that I did. The Director of Public Prosecutions said that once an order is in place, it is more difficult to get a prosecution, if not unlikely. It is right that the coalition Government and the members of the Committee will make the arguments to get the Bill through—I have been in the Minister’s position, ensuring that Bills go through—but this is a serious issue for national security. There are a number of reports that are critical of what the Government are doing, such as the report by the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which was published this morning and is critical of the scheme’s workability.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

My hon. Friend has mentioned the report that was published today. Members of the Committee may not have had a chance to read it, but I encourage them to do so. It is the considered conclusion of a Joint Committee, with members from both Houses and all parties, reflecting on one of the outcomes of the Government’s counter-terrorism review. Taking evidence in a calm way, rather than going for a political fix, has led to a different conclusion.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

That conclusion should be the outcome. I agree with my right hon. Friend. I said on Second Reading—other Members have mentioned this—that this should not be a political football. This should be about how we can consensually agree what is best for the security of the country, from a libertarian point of view.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East 9:15, 23 June 2011

The thrust of the hon. Gentleman’s argument is that Lord Howard and Lord Carlisle were not supportive of TPIMs. That is the impression I am getting. I refer to the evidence session, and question 66, which the hon. Gentleman posed, and to which Lord Howard responded:

“I am not a critic of the Bill…the Bill, with its change in the burden of proof and in the scrutiny provisions that are contained within, is an improvement over the control order system. I am by no means a die-in-the-last-ditch control order person, and in a significant number of ways, this regime is superior to the control order regime.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21, Q66.]

Lord Carlile responded to that by saying, “I agree broadly”. As senior lawyers, they have differences of opinion on certain aspects of the Bill, but, in general, they are supportive of TPIMs.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

I beg to differ on Lord Carlile’s position, although I accept the hon. Gentleman’s description of Lord Howard’s position. Lord Howard said that he had concerns about the relocation issue. He also expressed concern about the time of the implementation. The police are concerned that the bid only went in last Friday. We do not yet know whether the resources will be made available, how large they are or the cost. There was not an accrual of feeling that this is a wonderful replacement to control orders. Lord Howard said that he supported TPIMs, but Lord Carlile said that he did not and that it was the lowest common denominator. [ Interruption. ]

Photo of Lee Scott Lee Scott Conservative, Ilford North

Order. If the hon. Member for Bournemouth East wants to intervene, will he do so officially?

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

It is not unusual for Government Members to disagree on interpretations of what we heard, but I heard what I heard.

Photo of Mark Tami Mark Tami Opposition Whip (Commons)

My hon. Friend may recall that Lord Carlile said:

“Control orders inevitably provide greater protection to the public than the suggested TPIM regime”.––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 17, Q53.]

Photo of Jessica Morden Jessica Morden Labour, Newport East

Does my hon. Friend agree that one of the most startling pieces of evidence that we heard was from the police, who said that the relocation issue in the 2005 Act was the most effective measure that they had? Removing that power gave them serious concern.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

Very much so. My hon. Friend hits on a major point, about relocation being a useful tool to assist the process, to which I am sure the Committee will return.

The clause repeals the 2005 Act, which we think is a big mistake. I am interested to hear the Minister’s comments. I am sure that he will be truthful about the measure, which is not based on a request from the security services, the police or anyone else; it is a political compromise to ensure that the coalition can continue.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

It is a pleasure to serve under your chairmanship, Mr Scott, for what is my first Public Bill Committee. I am concerned about some of the comments that we heard at the beginning of our debate, because it seems that people fundamentally misconceive the purpose of Parliament. We live in a state of liberty. Parliament’s role is to circumscribe that liberty, so everything that we do in the House decides how our liberty is curtailed in various ways: whether it is smoking in the car, as it we debated yesterday, having to wear a seat belt or being prosecuted for murder. Our  purpose is not to decide what is in the national security interest and then allow people to live outside that bound.

I am concerned about the tenor of discussion by Opposition Members. There are many things in the Bill to be debated, and I look forward to going through it in great detail. However, the first thing we must do is make sure that all our freedoms are protected as far as possible, and strike a balance. I am worried about the arguments that arise from the principal proposition of the hon. Member for Bradford South that national security comes first, not liberty, and the idea that this is some sort of political football. There is something decent and honest about the measure came about, and the position is not as the right hon. Member for Wythenshawe and Sale East said.

The hon. Member for Bradford South said that the public have not asked for the Bill, but the Liberal Democrats achieved almost the same share of the vote as his party at the previous election on a manifesto which specifically committed them to getting rid of control orders. We have a coalition Government. There are strong views on both sides of the Government about the nature of control orders and how we circumscribe liberty. There is no objection to the Labour party; it is just that we have a difference of opinion. In coming together, we have come up with a new way of addressing the very difficult problem of just 12 people who are consuming huge amounts of parliamentary time and enormous state resources. It is great that we are here, and there is nothing dishonest about that. We are fulfilling the democratic mandate that we have together, and which the Opposition are quite rightly challenging.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am listening carefully to the hon. Gentleman’s argument, which he has also put effectively in the Chamber. He talks about the rights and freedoms of people, and we focus necessarily in such debates on the rights of individuals who might be a threat to the community. Does his consideration of rights, liberty and freedom extend to the rest of the population, who are at risk of being killed by those people?

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

I am not denying that point. I am not trying to turn our discussions into a metaphysical argument. I was careful not to speak about rights, because the foundation of our democracy is one of liberty, how that is curtailed, and how the state and the Crown specifically ensure that we do not do things or that we might do things. Our starting point is that we are free people and that we are doing serious things to people’s liberty. On Tuesday, there was a searing shaft of testimony by the doctor who knew some of the controlees and who had a complete understanding of what terrible acts many such people might wish to do, but the effect of being put under permanent incarceration for reasons that they do not know is profound. We must be terribly careful about the ease with which we talk about the importance of national security, when it is taking away someone’s own knowledge of their existence and why they are in that space.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

With the exception of relocation, will the hon. Gentleman explain why he believes TPIMs are fundamentally and practically different from control orders?

Dr Huppert rose—

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

Before responding to the hon. Lady, I shall give way to my hon. Friend.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I thank the hon. Gentleman for giving way twice in a sense. He is making a well-argued point, which is interesting for the Committee. Does he agree that there are several cases, even under a normal legal system, in which the courts have made mistakes and as a result of which people have been imprisoned inappropriately? It is hard to imagine that none of the people under control orders has similarly been subjected to such errors. We should also be worried about people who do not have the chance properly to demonstrate their innocence and who may, in fact, not be guilty of what has been suggested.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

I completely agree with my hon. Friend. The process of the courts themselves is not perfect. After all, “innocent until proven guilty” is the key distinction between our own jurisdiction and that in France. We believe in liberty in this country, and it is the foundation of our constitution.

As for the points made by the hon. Member for Bradford South, I hope that over the next few days we will discuss in great detail the balance that we are about to strike. I would not like to start off this incredibly fruitful and interesting discussion with the idea that there is one group of Members in Committee who are keen on national security and the protection of people at the Olympics and who are turning that into some great cause célèbre, and another group of Members who are ignorant of the considerable threats that we face. Underlying everything that we do, we must remember that we are defending something very precious—our ability to go about our business without harassment.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

It is a pleasure to serve under your chairmanship, Mr Scott. As hon. Members would expect, I shall oppose the position expressed in amendment 9. Let me explain briefly why control orders should go. Principally, it is because the balance between security and liberty, to which the hon. Member for Bradford South referred, was struck incorrectly. The 2005 Act was introduced in a rush. That is not a criticism, because it was due to the circumstances at the time, but it was one of the reasons why that legislation was so flawed.

On TPIMs-plus, I welcome the fact that there will be an opportunity for pre-legislative scrutiny. The right approach is to review legislation at leisure, when possible, hopefully to ensure that there is a degree of cross-party agreement and that it is fit for purpose, if it is ever invoked. I hope that that will not be the case in this instance.

The Opposition make great play of the fact that control orders have been effective, but in Tuesday’s evidence session, Mr Osborne said that they had not been particularly effective, given that seven controlees have absconded.

Hazel Blears rose—

Paul Goggins rose—

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I have a plethora of Labour Members to choose from. The whereabouts of six controlees are unknown. I know that Mr Osborne was going to come back to us with some additional information, so perhaps the Members who are leaping up and down want to update me on that.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am baffled by the hon. Gentleman’s remarks. Let me read him one sentence from the Government’s own counter-terrorism review:

“the review recognised that the regime had had success in mitigating risk and took detailed evidence in support of that claim from the agencies.”

How can he say that control orders have been ineffective in the face of that evidence in the Government’s own report?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The right hon. Gentleman did not comment on the fact that a number of people who were subject to control orders had absconded.

Hazel Blears rose—

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The right hon. Lady has experience in this matter, so she will no doubt explain how absconding controlees adds to our security.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I hope that the tenor of our proceedings will be as in the contribution made by the hon. Member for Ipswich.

These are really serious matters. We have a duty to have a good discussion and to explore our differences, as well as even some of the things on which we might agree. The hon. Member for Carshalton and Wallington referred to the fact that seven people who were subject to control orders had absconded. Is he aware that it was four years ago, in 2007, when the last of those people absconded? Many of those people on control orders were foreign nationals and not British citizens? It is unfair on the Committee to keep trying to suggest that the orders are ineffective because people have absconded, because that does not represent the current situation.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The right hon. Lady is perfectly right to state that no people on control orders have absconded in the past three or four years. However, the regime still allowed a number of people to abscond, and that clearly did not add greatly to our security. To move on—

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

Before the hon. Gentleman moves on, I would be interested to hear his answer to the point that I made in my intervention.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I thought that I had given the right hon. Gentleman an answer to his question. Perhaps he would like to pose it again so that I can ensure that I deal with it sufficiently.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am happy to spell out again one of the conclusions reached in the Government’s review—it is in paragraph 16 on page 38, if the hon. Gentleman would like to look at it. The document states:

“the review recognised that the regime had had success in mitigating risk and took detailed evidence in support of that claim from the agencies.”

How can he argue that the regime was not effective when the agencies and the Government’s review say that it was?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington 9:30, 23 June 2011

I do not necessarily want to prolong this because, as the right hon. Member for Salford and Eccles rightly said, we need to focus on what is going to be effective. However, I should point out that the same report—this is the line above the one that the right hon. Member for Wythenshawe and Sale East cited—states:

“The review examined whether control orders are effective. It noted that the regime had clearly not been fully effective – the seven abscondees in 2006-07 demonstrate its limitations.”

We can both quote as we would like from the report, but the important thing is to ensure that whatever the Government put in place to replace control orders is effective. I believe that that will be effective, and that is why we should get rid of control orders.

Control orders contain measures that are very damaging to the families of the controlees. Some people may have no sympathy for the controlees themselves, although it is worth pointing out that they have not been found guilty, but control orders can have a very heavy impact on families, particularly due to the relocation aspect, on which I know that the Opposition will focus, as did many of our witnesses. That is why the coalition is right to ensure that additional resources are in place to ensure that there is additional surveillance. Relocation clearly has a heavy impact on families.

Controls around access to the internet also have an impact on families, and particularly on children. As anyone who has children will know, they rely very heavily on the internet to do their homework, to access school sites and so on. It is therefore right for the coalition to provide internet access in a way that is secure and that will be monitored and controlled effectively. Clearly, the controlees—or the people subject to TPIMs—will know that if they use the line they have been granted, it will be monitored at all times. That will provide the security that hon. Members on both sides of the Committee want.

Control orders include lengthy curfews that preclude controlees from taking part in a normal life. Of course, that is a double-edged sword, because if controlees are able to take part in a normal life, that might provide them with the opportunity to do things that one wants to stop them from doing. However, at the same time, if there were any prospect of some controlees being encouraged to reintegrate, preventing them from leading a normal life would stop that.

I have spent time with Michael Korzinski, from whom we heard evidence, which included spending an hour with someone who had been subject to a control order that was subsequently quashed. It was clear from talking to that person that the level of control that he was under at all times of the day and night had literally driven him mad.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

The hon. Gentleman talks about curfews. Will he explain how a curfew of 16 hours is practically and fundamentally different from the overnight residence measure envisaged under the TPIM regime?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The hon. Lady makes a very sensible intervention. The matter she raises is something with which the Government are familiar, and it perhaps requires more clarity. If there is no precise definition, it might be that “overnight” could be challenged in the  courts in the future, but I would expect that most courts would not consider a 16-hour curfew to be an overnight curfew, as I do not think that that would be anyone’s understanding of the meaning of “overnight”. I am sure that that matter will be resolved in the courts at some point in the future.

Another point about control orders is that they are not effective in securing prosecutions. I was disappointed that at least some of the witnesses from whom we heard evidence felt that TPIMs would be no more effective at securing prosecutions than control orders. I do not think that they were right, but the Government could look further at enhancing the prospect of prosecution.

When Mr Osborne was asked about the role of the police under TPIMs, it was interesting that he said that it would be:

“exactly the same as that under control orders, in that it is for us to monitor and enforce the order”––[Official Report, Terrorism Prevention and Investigation Public Bill Committee, 21 June 2011; c. 3, Q1.]

He did not mention securing prosecutions as part of the priority or objective of a control order or a TPIM. The Government—I am sure that we would receive Opposition support for this—must ensure that there is a greater prospect of prosecution under TPIMs. We should fight hard for anything we can do to achieve that objective.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

This takes us to an important part of the debate. Obviously we all want more prosecutions—we genuinely do—but which aspects of the TPIM regime will enable the security services, the police and the agencies to increase the number of prosecutions? All the evidence we heard on Tuesday was that if a suspect is alerted to the fact that they are under surveillance—whether under a TPIM, a control order or police bail—further evidence of sufficient robustness for a prosecution is most unlikely to result. Which measures does the hon. Gentleman feel will enable more prosecutions to happen?

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Additional surveillance clearly opens an opportunity for obtaining more information—that has to be the case—and the reporting requirement might add to that. Perhaps we ought to ensure, for instance, an independent analysis of whether there is an ongoing investigation. The Government could consider an outside reviewer looking at police activity to ensure that an ongoing and active investigation is under way. I agree with the right hon. Lady that, given the scale of things, the helpful measures might not be particularly extensive, but there are some, so I hope that our debates in Committee might identify additional ways of maximising the prospect of securing prosecution because the Government and the Opposition are in total agreement on that point. We want to ensure that as many people who are subject to control orders—soon TPIMs—as possible will be prosecuted when that is achievable.

Although the Labour party says that it does not want to make the change a political football, it has done so by suggesting that it is a political fix. It is nothing of the sort. Both coalition parties agree that control orders should be subject to review. The Liberal Democrats voted against control orders year after year, and the Conservative party certainly argued against them in successive debates on their renewal. Both coalition partners agreed that we would review control orders, and that is exactly what we have done. Accusing us of a political fix  is a disparaging allegation, because the implication is that our two parties have put our political interests above the security of the country.

Mark Tami rose—

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I am sure that the hon. Gentleman is about to dispel that allegation.

Photo of Mark Tami Mark Tami Opposition Whip (Commons)

I wondered what the hon. Gentleman thought of the view of Lord Carlile, who said that it was very much a fix. The last time I checked, Lord Carlile was a member of the Liberal Democrats.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

I have great respect for Lord Carlile, but he does not necessarily speak for the Liberal Democrats, as the hon. Gentleman knows full well. Lord Carlile does not represent the mainstream view of the Liberal Democrats on the issue.

The coalition Government were right to undertake a review of control orders. We were right to call for their abolition and we are right to replace them with TPIMs. We will deal with the issue even more effectively if we can secure, as part of our debates on the Bill, an even greater prospect of prosecuting those who are subject to TPIMs. On that point, at least, hon. Members can agree.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

In some ways I envy the hon. Gentleman. He finished his contribution by saying, “We are right to do this; we are right to do the other.” Our whole debate will actually be very nuanced and quite delicate because there no such degree of certainty or of being right about the issues. As our debates continue, we will all appreciate that.

In 2005, when the Prevention of Terrorism Bill was brought in, as the Minister responsible for counter-terrorism, I had the unenviable task of taking it through Parliament. I remember the arguments that went on long into the night. It was one of the few occasions in our Parliament when we literally sat through the night debating the Bill, and that showed how contentious and difficult it was. People had to search their consciences and beliefs to try to frame legislation that would respond to a court declaration that detention under the immigration powers was no longer tenable. We were faced with the very practical problem of having a number of people whom everyone recognised were seriously dangerous to the future of the country and of trying to craft a framework within which we could balance the essential liberties of people with considerations of national security. My first point is that while this is a balance between liberty and security, it is also a balance that involves a consideration of things in the abstract: principles and the rule of law—and I am a lawyer, of whatever class. We believe very strongly in our country, and this is the way I was brought up, that we value freedom.

What is interesting is what happens whenever anyone sees the intelligence. Lord Carlile has carried out 10 reviews. He has examined every control order in detail. He has seen the intelligence and talked to the agencies, and he has reached the view that however distasteful and unwelcome the regime is, it is the best thing that can be done to contain the threat. We can consider the legal cases. It is interesting that the High Court judges who  see the intelligence and the threat that the people whom we are discussing often pose conclude—again reluctantly—that they are willing to confirm the Secretary of State’s control order. There have been some Appeal Court judgments in which judges have specifically denied themselves access to the intelligence because they want to consider the issue in principle—on the basis of legal principles. We often find that they are then less keen to impose the control order, so there is a big distinction there.

I am not saying that because people are Ministers and have access to intelligence, they are somehow cleverer and brighter and can make the right decisions. However, it does something to us, as human beings, when we see the scale and nature of the problem and how dangerous these people are. We then see how far we are prepared to move away from a pure principle of liberty so that we do our very best to protect normal, ordinary people in the country as they go about their everyday lives.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

A common argument used by Labour Members is that if people just knew what they knew, they would make the same decision. I trained as a scientist. While I place great faith in evidence, it is hard always to place faith in people who tell us that they have seen the evidence. Let me give the right hon. Lady a counter-example. Lord Macdonald, who gave us such cogent evidence on Tuesday, saw the papers during his review, but that clearly did not change his opinion. He was very clearly against the control order regime. Having seen the evidence, he does not think that it is necessary.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

Equally, Lord Carlile has seen the evidence and has reviewed every control order imposed since the regime was brought in. He has expressed the view time and time again that the control order regime, although not perfect, has been effective in helping to mitigate risk.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

Is it not true that the present Home Secretary has used the powers successfully and defended them in court?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

My hon. Friend is absolutely right to say that that has happened, and in no case was it more important than in that of CD just a few months ago. We will come to that later under the relocation clause. I cannot for the life of me understand why the Home Secretary would see fit to use that power to protect the public and then defend it on appeal but then, within weeks, present legislation that will tie her hands and deny her the possibility of using relocation provisions.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 9:45, 23 June 2011

The right hon. Lady makes some powerful points about difficulties in relation to the balance of the judgment that has to be reached and about the heavy burden placed on all those engaged in work that keeps our country safe. On her last point, does she accept that a context needs to be acknowledged in relation to the focus of the security services and the police, and that looking at legislation in isolation does not provide the full picture? In the same way as she says  that we need to look at information, we also need to look at the overarching approach to dealing with terrorism and making sure that we are safe. Focusing on one particular case and looking at legislation in isolation does not give that full picture.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I am perfectly content to agree with the Minister that this is a complex jigsaw, as is collecting intelligence. On the point made by the hon. Member for Cambridge about evidence, these are matters of evidence, intelligence and judgment. That is absolutely key. It is not just about the judgment of politicians, although I have great respect for the judgment of politicians of all parties, but of people who are engaged day to day in the business of protecting our national security.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

The right hon. Lady makes a powerful argument and I have a lot of respect for the experience that she brings to this Committee and the House. She mentioned the 2005 Act, but she also raises the important balance between intelligence and chargeable evidence, and the fact that, were we to see that intelligence, we would be minded to go down a particular route. I worked briefly in military intelligence, and that involves an opinion, an angle and a perspective that has to be judged. As my hon. Friend the Member for Ipswich mentioned, we are not always privy to that intelligence and it is not always correct. We have to work towards chargeable evidence—that is our base, so we have to weigh it up. If we are not privy to certain information, we have to make judgments on the chargeable evidence. Intelligence can be very wrong indeed, such as that in the lead-up to the Iraq war.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I take the hon. Gentleman’s point. I want to get to an irreducible minimum of people for whom we would rely on intelligence rather than evidence. We all want evidence that can be produced in court and tested through cross-examination in an adversarial system so that a judgment can be reached. Unfortunately, however, that does not apply in a small minority of cases—and it is a tiny minority. We have had only 48 control orders during the six years in which the legislation has been in existence and we now have 12. They have been subject to the most intense legal scrutiny arising from any piece of legislation, which is probably right, because they represent an intrusion into people’s liberty. There is, however, an irreducible minimum of people.

We have a choice. It is an honourable and principled position if one rejects the whole regime and believes that we should never control people unless there is evidence with which we can charge them, but the consequence of that is that we would have to be prepared—politically, morally and in every other way—to take responsibility for making that decision. There is a dividing line. If we tell people that they will come through the conventional criminal justice system and that there will be no intrusion into their liberty, we have to be prepared to take responsibility, because that will involve seven or eight people who are very dangerous to this country. It is perfectly proper to make that choice, but I wish there was some honesty in this debate. The Bill will introduce a mirror image of the control order regime. I will go through the five changes that the Government could have made to the 2005 Act, but we have to be honest and the Committee should recognise that an irreducible minimum of people have to be controlled.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

My worry about this entire debate is that we are focusing on those who are involved in control orders, yet we have heard from the head of MI6 that we have concerns about at least another 1,000 individuals in the UK, if not more. Those who are under control orders are at least known. Does the right hon. Lady agree that the thrust should be that if the security services have concerns about individuals, they should be allowed to pursue them, no matter who they are, and whether they are under control orders or not, pursuant to obtaining hard evidence that can lead to a charge?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

That is precisely what the agencies do. The whole point is that there must be prioritisation. There is probably knowledge of nearly 2,000 people in this country who are involved in various degrees of plotting, attack planning or association with terrorism-related activity. We heard yesterday about the resource implications of 24/7 surveillance on perhaps 12 people—we would be looking at between £11 million and £18 million for each one. The country’s entire budget could be spent on surveillance, but I do not want to live in such a state, thank you very much. The agencies must prioritise. Let us never forget that the intelligence is seen by not just politicians, but by High Court judges who have a complete review regime. It is for those High Court judges, with the panoply of their legal training and their emphasis on liberty, to decide whether to quash or revoke a control order, or to vary its conditions. There is a series of checks and balances within the regime.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

The right hon. Lady’s argument has been utterly consistent. I remember hearing her on “Any Questions?” and “Question Time” several years ago. She has never taken a glib line and has always been consistent in her projection of these difficult balances. She rightly says that this is a moderation of existing legislation, given her experience as a Minister when the 2005 Act was drawn up, I would be interested to know the number of people whom it was anticipated might be placed under a control order—I recognise that this was only a few months after the atrocities in 2005—and what proportion would be foreign nationals. What surprises me in this debate is that we are dealing now with 12 people, of whom perhaps three or four are foreign nationals. I would be interested to know what the likely size of that population was thought to be when the Bill was conceived.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The hon. Gentleman is right, and the picture has been moving and developing since 9/11. Before 9/11, we dealt with Northern Ireland terrorism, but we did not have international terrorism from al-Qaeda and home-grown terrorism. The picture has developed and the legislation was an attempt, when possible, to keep up with that.

Importantly, the 2005 Act was passed before 7/7. Some people thought that the legislation was a knee-jerk reaction to something that had happened in this country, but it was not. People had previously been held in detention under the Special Immigration Appeals Commission Act 1997, and we were trying to deal with a situation in which, following a challenge in the courts, it was decided that that was discriminatory because it applied to foreigners but not British citizens. The control  order regime was an attempt to introduce a non-discriminatory regime that applied to everyone, but it was passed before 7/7. That was its genesis. It was considered quickly but, importantly, it was not an emotional reaction to something that had happened in our country.

I want to put on record the fact that none of us at that time introduced the regime with relish. Some people have tried to portray us as rubbing our hands with glee at the prospect of putting people under house arrest, subjecting them to internal exile, and being an authoritarian Government disposing of the rule of law. We took that path with a heavy heart. We were confronted with an almost insoluble problem, and it was clear, following the courts’ declaration that the previous regime was unlawful, that we had to take action to protect the public.

Some of those foreign nationals could not be deported at the time because of huge concerns about whether they would be ill treated or tortured at the hands of their own regime, so we were in a Gordian knot that was impossible to resolve. They could not be prosecuted under the conventional justice system because the information about them was intelligence that could not easily, if at all, be converted to evidence. If that information had been brought forward, the lives of our own security services agents might have been at risk, our techniques would certainly have been at risk, and we could not have deported those people. In those circumstances, what does one do? It could have been decided in principle that a control order regime was a step too far and that people would be let out. That would have been fine, but if people had been let out, there would have been a political and moral responsibility to bear for that happening.

I welcomed Shami Chakrabarti’s comments in evidence on Tuesday. She acknowledged that no one had entered into legislating lightly, and that there was an incredibly difficult set of circumstances to confront. I am not saying that that was the first time I had heard Shami say that, but it was very refreshing that she acknowledged that we were not a bunch of authoritarian, illiberal people and that we had struggled with the issue in a proper manner.

I remind the Committee—we are all very conscious of this—that in the 10 years since 9/11, the security threat facing this country has not receded. Many of us would have hoped—this was why we included a sunset clause—that somehow peace would have been restored and that because we would now be living in a country where the threat had diminished, we would no longer need such a regime.

Unfortunately, the opposite is the case. The threat level remains severe. There are probably 2,000 people of interest to the police and security agencies, and there are several active plots at any time. In my view, it is only because of the dedication, commitment and ingenuity of the police and security services, who have been able to disrupt many of those plots—this is where control orders are very important, because they provide disruption rather than simply surveillance—that there has not been further mayhem and carnage on the streets of this country. I am convinced that their ability to deal with the threat has protected us from that.

Control orders are intrusive and in many ways unwelcome, but they are unfortunately necessary if we are to continue to protect the public from those who are determined to do us harm. I therefore do not understand  why we are abolishing control orders and replacing them with TPIMs. We shall debate the “mini control orders” later. I refer to them as that because they are small, although they are not perfectly formed. The Government should have brought forward an honest amendment to the Prevention of Terrorism Act 2005.

I do not want any political footballs in this debate, but it is important that the public know the “genesis” of the debate on this legislation—I cite the term used by Lord Carlile in his evidence on Tuesday. I was surprised that he said:

“I have a concern about the genesis of the Bill. It arose from coalition politics—I am aware of the process that occurred—and it is a compromise…it is the sufficient lowest common multiple, and it will do. However, it does not provide as much public protection as control orders, and it would be foolish to ignore that fact.”

He added that his party

“made a serious mistake in committing itself to the abolition of control orders. It made that mistake understandably, however, because it did not have the information.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21-22, Q66 and 67.]

That is a powerful passage. Lord Carlile has been intimately involved in this area for the past decade. What he said about the genesis of the Bill is telling. This is not a party political point, but it leads me to feel great concern. One party wanted to abolish the orders completely, and I think it is still unhappy with a measure that is a mirror image of control orders, albeit weakened and watered down.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

The right hon. Lady said that her point was not party political and drew the Committee’s attention to a passage in the evidence of Lord Carlile. We all agree that it is necessary to strike a balance between safety and the need in a civilised society to protect the liberty of the individual. We may all have different views about that, but the previous legislation might, for example, have permitted those who are subject to control orders simply to be locked up. It might have derogated from the European convention of human rights. That would have provided a greater protection for the public. I am afraid that the right hon. Lady’s point is party political. She is saying, in essence, that she takes a different view from the Government and that, as a result, we are merely changing the name. In fact there are changes of substance in the Bill, so how does she deal with that issue?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 10:00, 23 June 2011

I have great respect for the hon. and learned Gentleman, so I will make my final points, which relate absolutely to the issue he raised.

What are the real points of difference between the Prevention of Terrorism Act 2005 and the Bill? First, there is a different name. Secondly, there is the raising of the threshold from reasonable suspicion to reasonable belief, and I am absolutely content with that. Indeed, Lord Carlile said again on Tuesday that none of the control orders that have been made would have fallen  below the threshold of reasonable belief, and he indicated that the High Court had made the threshold even higher.

The third change is the introduction of an absolute limit—the two-year limit on renewal without evidence of new involvement in terrorism-related activity. That is a difference. Lord Carlile said that he was still of the view that there could be exceptional circumstances, without evidence of new involvement, in which people posed such a serious threat that it would be legitimate to extend the order beyond two years, and we will debate that later.

There are some changes to the measures that can be imposed. There is no relocation. There are the measures on mobile phones and on work and study, so there are some changes to the measures. The legislation is also made permanent: there is no sunset clause and no review by Parliament.

Basically, therefore, there are five changes, and there was nothing to prevent the Government from coming forward with five amendments to the Prevention of Terrorism Act 2005. We could be having a much more honest debate, which recognised the fact that there is a small number of people we cannot prosecute or deport and for whom we must make provision. That will involve some intrusion into their liberty, and the debate is about where the balance lies. It is, however, dishonest to introduce a Bill, to rename control orders TPIMs and to have absolutely the same essence and a mirror-image regime. That is not the way we should proceed.

We will no doubt debate the five differences in the Bill, but, in essence, we have a repeat of the regime. I welcome that, because it represents a realistic acknowledgement by the Minister, who occupies the position I held for three years, that these issues are not easy to resolve and that we cannot simply make a manifesto promise to abolish a regime, because, as Ministers and Members of Parliament, we are responsible for ensuring the safety and security of the people of this nation.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

It is an absolute pleasure to follow my right hon. Friend the Member for Salford and Eccles, who has spoken with her customary expertise and authority, which are based on considerable experience of these issues in government and on her wider responsibilities.

In response to the hon. and learned Member for Sleaford and North Hykeham, I should say that it is inevitable that we will have our party political hats on to some degree; we cannot escape that, because we stood for election, and we are here as Labour, Conservative and Liberal Democrat MPs. However, on important issues, that should not stop us seeking consensus where we can.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I completely agree with the right hon. Gentleman, and we cannot, of course, escape the fact that we are all members of political parties. However, the Bill’s subject matter is important, and in striking the right balance, we are really concerned with the substance of the measures that should be put in place to deal appropriately with the small number of individuals who must, unfortunately, be controlled. Does the right hon. Gentleman not agree, therefore, that the amendment to remove clause 1 is simply a party political measure and  that we are wasting our time debating it, when we should be concentrating on the substance of the measures, not silly party political points?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I will come on to that. I respect the hon. Gentleman, but there is more to it than that. We should see the whole process of grappling with this difficult issue, which the Minister has to grapple with every day, as an evolutionary process, rather than as a matter of one side having got things wrong and the other side bringing in a set of measures to put them right.

Yesterday, I took part in a sitting on a private Member’s Bill. The hon. Member for Mole Valley (Sir Paul Beresford) is assiduous in introducing private Members’ Bills to further the protection of vulnerable children. His Bill amended the Domestic Violence, Crime and Victims Act 2004, which I took through the House of Commons, and I was there to support him because he was doing something evolutionary. The time is now right to make such a change, although it was not right in 2004, and I wanted to say that to him. Where there is common ground, we should grapple with the detail and try to reach consensus—that should be our approach. I sense from the comments made by the hon. Gentleman and others that there is real potential in the Committee for us to do that.

There are really two options that we ought to consider. The Minister should either have introduced a Bill that only has clause 1 in it or he should have introduced a Bill that amends the 2005 Act. Choosing the first option—introducing a Bill with only clause 1 in it—is a perfectly respectable position to take. It is not one that I agree with, but I suspect that there are Members of this Committee who would take that position. We have heard from people in evidence who take the position that we should use other measures outwith the control orders regime. So it is a perfectly honest and honourable position to take, and it is one that I respect even if I do not agree with it.

If the Government’s own counter-terrorism review had concluded that the risk from terrorism had reduced to such an extent that these measures were not needed and that there was another way of imposing the kind of restrictions that control orders imposed, or if it had concluded that control orders were wholly disproportionate and therefore ought to be swept away, we could have had an interesting and vigorous debate about those choices. To reach either of those conclusions would have been an honest position to take, but the counter-terrorism review did not reach either of those conclusions.

My right hon. Friend the Member for Salford and Eccles has already made that clear. Point 9 on page 37 of the counter-terrorism review says:

“The review accepted that for the foreseeable future there are very likely to be a small number of people in this country who are assessed to pose an immediate and significant terrorist threat but who we can neither prosecute nor deport.”

So the Government’s own counter-terrorism review clearly came to the conclusion that the previous Government had come to, namely that there is this group of people who need to be dealt with in a different way and that doing that would pose a set of legal questions and other questions that would need to be answered. This Government did not walk away from that challenge and I pay credit to them for doing so. There are some problems with  some of the measures that they are seeking to introduce, and we will debate those measures in the coming days. However, to say that that group of people needs to be dealt with is an honest position to take.

The counter-terrorism review also came to the conclusion that surveillance alone could not mitigate risk to the level of a control regime. Not only is surveillance more expensive but it is not as effective in controlling and disrupting those who seek to attack and destroy our way of life. That conclusion—that surveillance alone is not enough—is another important conclusion that the Government came to in the review.

I had an interesting exchange with the hon. Member for Carshalton and Wallington earlier. I concur with him that the control order regime was not fully effective; it was not 100% effective. I acknowledge that there were some “abscondees” in the early days, but there have not been any since 2007. Critically, the counter-terrorism review recognised that the regime had been successful in mitigating risk and detailed evidence in support of that claim was taken from the agencies involved. The agencies that deal with this issue daily made it very clear to the Government that the regime in operation had been effective and the Government seem to have accepted that, at least to some degree.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

If people abscond when they are under control orders, they will abscond under TPIMs too. Unless we lock someone up, they will run if they really want to, even if they have something around their ankle. In a sense, that argument does not work either way, because quite frankly the only way to stop someone doing a runner is to put them in a jail, and of course we all want that. So the argument about TPIMs or control orders, and saying that seven people did runners a few years ago, is largely irrelevant, because some people would run under any regime unless they were locked up. Is that not the case?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I agree completely with the hon. Gentleman’s point. I think that it is a matter of fact that during the last four years the control order regime has been effective in ensuring that people did not run, but if they wanted to run they could find the opportunity to do so and that is at least as true of the TPIMs regime as the control order regime.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

While we are talking about the Government review, does the right hon. Gentleman agree with Lord Macdonald, the independent reviewer? He stated in the report:

“The evidence obtained by the Review has plainly demonstrated that the present control order regime acts as an impediment to prosecution.”

Does he agree that that does not help if we do want to prosecute?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I am happy to keep repeating this for as long as the hon. Gentleman keeps raising the subject. Of course prosecution should always be a priority. No Minister from the previous Government and no Minister in this Government would disagree with that, but sometimes when faced with the high-level of threat that certain individuals pose and when it is not possible to prosecute or deport, the Government have to do something, and  legislation must be in place to give them that power. The previous Government had the control orders regime, and this Government want to introduce some changes.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Perhaps I was not entirely clear. My question was not whether the hon. Gentleman shares the aim of prosecution—I am sure that he does—but about Lord Macdonald’s comment:

“the present control order regime acts as an impediment to prosecution.”

Does he agree with that statement?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

No. The point that was made in evidence the other day was that the TPIM regime, when in place, will not assist in furthering prosecutions. That was made perfectly clear by Keir Starmer, the Director of Public Prosecutions—the man in charge of the Crown Prosecution Service. He told us that in evidence to this Committee, and it is well worth reflecting on that point.

I was making the point to the Minister that he might adopt the more helpful position of deleting clause 1. We could all then disappear out of this Committee Room and he could come back to us with a series of amendments. We could have a lively discussion about the measures that Opposition Members believe should be included in the Bill. Relocation—as mentioned by my right hon. Friend the Member for Salford and Eccles—is probably the key one, but there are others as well, including the time limit that the Minister wants to implement. There are things that we could debate, but we would at least see some continuity if he tabled amendments to the 2005 Act.

I shall give the Minister one or two examples. Section 2(1)(a) of the 2005 Act talks about “reasonable grounds for suspecting”. He would no doubt want to come back with an amendment that substituted “believing” for “suspecting”, and I would vote for such an amendment with no hesitation whatsoever. I also draw the Minister’s attention to section 1(3) of that Act:

“The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary”.

He might want to table an amendment to that provision, in the form of schedule 1, saying that we should list out the measures that should be in place rather than simply leaving that decision to the discretion of the Secretary of State and the court. Again, we would have an interesting discussion. In that way, the Minister could provide some continuity, and ensure that we were debating the issues in an evolutionary way rather than in the way proposed.

I wish to reflect on an earlier comment by the shadow Minister, my hon. Friend the Member for Bradford South. He referred to the report published this morning by the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has been considering the Government’s proposals for draft emergency legislation for when, in exceptional circumstances, the pre-charge detention period might need to be extended beyond 14 days. I will be honest with the Committee: when I was in government I supported 28 days, and 42 days, but I have had cause to reflect on that and now accept that 14 days—

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

I can confirm to the hon. Gentleman that we never got that far. May I draw his attention to the Joint Committee’s report? I am sure that he will enjoy reading it. Interestingly enough, at one point Lord Macdonald believed in 90 days. That was his opinion then and I never shared it, but the report is an interesting reflection of the shift in his position on some of the issues.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Leaving aside the Government’s proposal on 90 days, which I agree was stopped, as Lord Macdonald has seen more and more evidence, and as he has undertaken an independent review, he has taken a different line. He has moved away from 90-day detention and control orders towards police bail. I agree that the evidence shows that people should go that way.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 10:15, 23 June 2011

Lord Macdonald believed in 90 days when he was the Director of Public Prosecutions with access to all the information on cases. I do not want to concentrate on Lord Macdonald, but I thought it would be interesting, as he has been brought into the debate a few times this morning by the hon. Gentleman, to alert him to one piece of evidence in the report.

The important point is that when the Government in their review had to deal with the political problem of what was in certain manifestos and how to deal with the subject, they arrived at an outcome. However, in the cross-party Committee, with Members of both Houses serving under the brilliant chairmanship of Lord Armstrong of Ilminster, a more considered approach was taken. On that Committee, we heard evidence from a wide range of people, including some who gave evidence to us earlier this week. My plea to the Minister is that it is best to proceed calmly, carefully and in a considered and evolutionary way, rather than seeking to deal with a political conundrum and not primarily dealing with public safety.

My right hon. Friend the Member for Salford and Eccles was perfectly correct in pointing out the many ways in which changes have already occurred to the control order regime, which was an evolutionary move forward from the detention of suspects in Belmarsh prison. I remember visiting the prison as Prisons Minister when suspects were held there. That was ruled unlawful, so control orders were introduced. There have been many legal challenges to control orders that have necessitated changes. Probably one of the most significant was the case of AF, as a result of which any suspect now has to be told the gist of the case against them. That was a dramatic change that has had huge implications not only in relation to control orders but in relation to many other circumstances. I am delighted that, in the forthcoming Green Paper, the Government will deal with the issues of disclosure that bedevil any regime—controls orders or TPIMs—and many other decisions. In relation to sustaining controls and making the necessary decisions, the rules on disclosure are problematic.

My plea is simply that the Minister should go away and come back with a series of amendments to the 2005 Act; we do not need clause 1. If he does so , we can have constructive discussions and, although we would no  doubt lose some votes because the Minister has a majority, that would be a more honest, considered and consensual way of moving forward than proceeding with the Bill.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

I welcome and endorse the powerful and persuasive contributions made by my right hon. and hon. Friends. Given the detail of the arguments already made, I will keep my remarks brief, but I have two points to which I hope the Minister will respond. I shall focus on the fact that clause 1 seeks to abolish control orders and the rest of the Bill will essentially bring them back. I endorse the point made by my right hon. Friends the Members for Salford and Eccles and for Wythenshawe and Sale East that, to have an honest debate, the Government should have tabled amendments to the 2005 Act.

The overnight residence measure, which we will debate at length, highlights the fiction that the Government are getting rid of control orders and introducing something fundamentally different because, very conveniently, the overnight residence measure is not defined in the Bill. Under the control order regime at the moment, a curfew can be imposed for up to 16 hours. The hon. Member for Carshalton and Wallington believes that it will be left to judges to decide—from cases that will no doubt flow from the measure—what the overnight residence measure really means. I am sure that some Conservative Members will be astonished to discover that the Government are inviting judicial activism under the Human Rights Act 1998 and the European convention on human rights. I think that that is the wrong way to proceed.

I take on board very strongly the point made by the hon. Member for Beckenham, who said that we are making law. If the Government believe that curfews of 16 hours are wrong and they want to do something that is fundamentally different and much shorter in practice for the people who are not under curfew for 16 hours, they should spell that out. They should have the courage of their convictions and put that in the Bill. They have left it open, because the Home Secretary, since coming to power, has imposed and defended curfews and control orders of up to 16 hours.

The counter-terrorism review reported in January, and at that point, it was open to the Home Secretary to say that she would not seek to impose any measures in a control order that fell foul of the new TPIMs regime that she was going to introduce and that fall foul of the findings of the counter-terrorism review. That is obviously not the case.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

Does the hon. Lady appreciate that—similar to the point I made earlier—legislation is framed in a context? Part and parcel of the context envisaged under the Bill is enhanced support for the security services and police. Her comments seem to suggest that the Home Secretary should make changes out of context. The other regime is not there, so she suggests that the Home Secretary could effectively bring in the TPIM regime by the back door, without any context.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

No, that is not what I am saying. The point is that the Government have committed themselves to a counter-terrorism review and its findings, so they should be consistent. It was open to the Home Secretary to say that she would not seek to impose restrictions that fell foul of the review, but that is not the case, because she has supported 16-hour curfews and relocation, and she has defended them since the review was published. I want the Minister to focus on those points when he explains to us why control orders have been abolished and not been brought back by the TPIMs regime, because in fact they have.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I do not think the hon. Lady has understood the Minister’s point; she certainly has not answered it. The previous control order regime established a framework of measures that could be imposed. The Bill would establish a different framework, in connection with which the Government have undertaken to provide additional resources to the security services and police, as they are necessary for the purposes of the legislation.

The point that the Minister was making, which the hon. Lady has not answered, is that that resource was not present in relation to control orders. For that reason, the Home Secretary had to use control orders in the way that the previous Government had established them. With the greatest respect, what the Minister was really saying to the hon. Lady was that the point is a bad point. I would add that it is also a party political point. The subject matter of the Bill is too important for her to be making such points in Committee.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

I entirely disagree with the hon. and learned Gentleman. The additional resources that would be needed by the police will not be online and deployable by them even when the Bill is passed. [ Interruption. ] No, that is exactly the same point. We heard from Mr Osborne that it would take up to a year, possibly more, to train the extra surveillance officers who will be needed and to make them deployable to meet the requirements of the new regime. That is not what the Bill envisages. The measure will come into force 28 days after the Bill is passed. The Minister needs to focus on resources when he responds.

This is an important and sensitive topic. We must debate it in an honest and open way so that we do not present a picture to the public that says that we have got rid of control orders and we have something fundamentally different when that is patently not the case.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I was not going to contribute this morning, but I am afraid I cannot let the remarks of the hon. Member for Birmingham, Ladywood pass without making the position clear.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.