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

rose to move, as an amendment to the above Motion, at end to insert, ““but this House regrets that the safeguards against misuse of the powers conferred by the Act are inadequate given the need for compliance with the obligations of the Human Rights Act 1998””. The noble Lord said: My Lords, the noble Lord, Lord Bassam, referred to the case before the Judicial Committee of this House in December 2004 which concerned the nine foreign nationals who were being detained in Belmarsh prison without trial. The Judicial Committee held that the powers under which they were held, pursuant to the Anti-terrorism, Crime and Security Act 2001, were a serious breach of the European Convention on Human Rights. So the Prevention of Terrorism Act was rushed through in some two and a half weeks of February and March last year. Many noble Lords will remember our disputes at the time. We agreed to co-operate in finding appropriate stopgap measures subject to there being appropriate safeguards. In our debate on 10 March last year, when the Commons amendments came back to this House, I stated that,"““we agree that there is a serious terrorist threat. We agree that the principal means of reducing that threat is by criminal prosecutions brought against a suspect in the regular criminal courts””—" a point echoed today by the noble Lord, Lord Bassam. I continued:"““We agree that there will still be a small number of cases in which there may be insufficient evidence for a prosecution, yet a means of control, a control order, is appropriate, imposing stringent conditions””.—[Official Report, 10/3/05; col. 864.]" It was in the light of that—agreeing in principle to control orders but looking for safeguards—that I proposed amendments to those clauses of the Bill dealing with control orders. The amendments were intended to be constructive; I thought that they would help the Government to avoid obvious breaches of the ECHR. We sought to ensure that the decision to improve a control order was not an arbitrary decision of the executive, in the shape of the Home Secretary, but a judicial decision, made in accordance with due process and with necessary safeguards and guarantees against injustice. I argued that it was wrong to make an order based merely on the reasonable suspicion of the Home Secretary that an individual was involved in terrorism. I suggested that that was far too weak a basis on which to put a person on house arrest. We were saying that the standard of proof of such involvement should at least be on a balance of probabilities. I also put forward the proposal that the chief of police in the relevant area or the Director of Public Prosecutions, whichever was the more appropriate, should provide a certificate stating that no probability of a prosecution existed. I heard the noble Lord, Lord Bassam, say today that the Government are still investigating that a year later, but at the time they opposed the suggestion root and branch. So the amendments I put forward on behalf of these Benches were rejected by the Government. Regarding the burden of proof, the noble and learned Lord the Lord Chancellor said that the Home Secretary was engaged in assessing risk of involvement in terrorism and that introducing the need to establish such involvement on a balance of probabilities would frustrate that policy. But he made a concession on judicial control, as your Lordships will recall: the Home Secretary would have to bring the making of an order before a court. The weakness of the procedure, which we pointed out at the time and continue to maintain, was that the judge before whom the order was brought would not be permitted to determine the merits of the actual making of the order. Whether it is justified or not, all the judge can do is see that the Home Secretary has followed the right procedures. We were anxious, along with those on the Conservative Benches, to emphasise the temporary nature of control orders. However, the proposal of a sunset clause, made by the Conservatives and supported by us, was rejected in favour of an annual review. The noble and learned Lord the Lord Chancellor said about that:"““We believe that an annual renewal provision, which allows both Houses of Parliament every year to debate and not to approve the Bill, is an appropriate way to deal with it””.—[Official Report, 10/3/05; col. 871.]" So instead of seeing this legislation come to an end—and, with it, control orders—we have an annual review. That is why we are here tonight. But it was always intended that by now the stopgap measures of control orders would have been reviewed, and, if necessary, revised or replaced. As part of the final package that allowed the Bill finally to go through after ping-ponging about, the Home Secretary made the commitment to which the Minister has referred, that he would produce a more comprehensive draft counter-terrorism Bill in the late autumn of 2005 for pre-legislative scrutiny, to be followed by a substantive Bill now, in the spring of 2006. Following the events of 7 July, however, and by agreement between the three parties, that undertaking was renegotiated. There was an agreement that the new offences, which we from these Benches have supported in the current Terrorism Bill—namely, the acts preparatory to terrorism and encouragement to terrorism—should be addressed at once and that the question of control orders should be decoupled with a view to a further Bill in the early part of this year. However, on 2 February—this month—the Home Secretary said, unilaterally this time and not by agreement between the parties, that he favoured a further rethink. He revised the timetable, with draft legislation proposed for the spring of 2007 and a Bill that could not come into effect until 2008. Last year we were discussing control orders in the context that the measure would last only a year and that there would be an annual review instead of a sunset clause, because we would agree a timetable to look at it again, but that has not been carried out. That is the context in which we are asked tonight to renew the 2005 Act. The Joint Committee on Human Rights, in paragraph 12 of the report published yesterday, to which the Minister has referred, says:"““the effect of the Home Secretary exercising his power to renew the Prevention of Terrorism Act, rather than to bring forward a Bill, is significantly to reduce the opportunity for parliamentary scrutiny and debate of the control orders regime””." There is just one shot at it—tonight—as opposed to the procedures if a fresh Bill were brought forward. In particular, the committee pointed out that there was no way in which the legislation could be amended to reflect concerns about its actual operation, including its compatibility with human rights standards. In its reports, the Joint Committee has echoed and underlined the concerns that I expressed on behalf of these Benches last March. For example, it says at paragraph 68 of the report:"““We agree with the view expressed by the European Commissioner of Human Rights, that Article 6 ECHR properly requires that non-derogating control orders should initially be made not by the executive but by the judiciary””." As I have told your Lordships, that was the point I was seeking to make with one of my amendments. The committee goes on:"““We also consider that our own constitutional traditions of due process, and of the separation of powers between the executive and the judiciary, requires no less””." No doubt that last sentence was put in for those for whom the name of Europe always sends a shiver down their spine. It is part of our constitutional traditions that the judiciary should make these decisions. On the issue of proof of involvement in terrorism—another matter that we put forward—the committee has rejected the Home Office’s argument that the Secretary of State was merely concerned to assess risk or evaluate intelligence. It points out that the threshold question for the exercise of the powers is pre-eminently factual. Has the individual the Home Secretary is considering been involved in terrorism-related activity? That is not a question of assessing risk; first of all it has to be established factually that he is involved in such activity. The committee concluded that the test of reasonable suspicion in the Act was set at too low a level and that a test of the balance of probabilities would be appropriate. The committee had many other criticisms about the special advocates procedure, which denies to an individual knowledge of the evidence against him and gives him no opportunity to test or challenge by way of cross-examination any witness against him. But its strongest criticisms are reserved for the way in which standard conditions are imposed upon those who are subject to control orders. The idea had been that a particular person who was seen to be a danger would have a control order imposed that would be tailored specifically to him. It is interesting that annexe 2 to the first report on the Prevention of Terrorism Act of my noble friend Lord Carlile, to which the Minister has also referred, sets out a pro forma of conditions for a control order, drawn up by the Home Office. Fill in the blanks. The pro forma contains gems; condition 5(b) says:"““You shall not . . . attend any pre-arranged meetings or gatherings (other than attending, but not leading, group prayers at a mosque)””," Condition 10 says:"““You shall only attend one mosque of your choosing subject to prior approval from the Home Office before your . . . visit””." There is no doubt at which section of the community the control orders have been aimed. My noble friend said in his report that the obligations of these control orders are extremely restrictive, and your Lordships can find his assessment of those obligations in that report. The Joint Committee goes further. Having considered all the evidence, it concludes that there is a very high risk that those placed under control orders suffer inhuman and degrading treatment, contrary to Article 3 of the European convention. About the regime as a whole, the Joint Committee says in paragraph 76:"““In the context of the control order regime we find it difficult to see how a procedure in which a person can be deprived of his liberty without having any opportunity to rebut the basis of the allegations against them, can be said to be compatible with the right to a fair trial in Article 6(1), the equality of arms inherent in that guarantee, the right of access to a court to contest the lawfulness of their detention in Article 5(4), the presumption of innocence in Article 6(2), the right to examine witnesses in Article 6(3), or””—" it adds, for those who do not like the European convention—"““the most basic principles of a fair hearing and due process long recognised as fundamental by English law””." This is a huge indictment of the Prevention of Terrorism Act—and it was foreseen. The Government were warned, from these Benches, from the Conservative Benches and from the Cross Benches, that their Act would offend against the convention. By failing to carry out their undertaking to revise the Prevention of Terrorism Act, which was part of the deal to allow the Bill to go through in the first place, the Government must now simply wait—inevitably and ignominiously for them, as happened in December 2004 with the Belmarsh decision—for the courts to hold the Act to be in breach of the European convention. I have no doubt that we will then have another sustained attack upon lawyers and upon the judiciary, which is the hallmark of the present Home Secretary whenever he is in a tight corner. That is why this non-fatal amendment has been brought forward. I urge the House to pass it. It will warn the Government to get their house in order, to comply with the undertakings that they have given and to pass legislation that complies with the standards of a civilised legal system and with the international requirements of human rights. I beg to move.