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

My Lords, although critical of control orders during the debates on the Bill last year, I am not opposed to them in principle, as I said in my Second Reading speech then. They are potentially a constructive way of dealing with a problem where the Government are caught between the Belmarsh judgment, the difficulty or impossibility of deportation because of the threat of death or torture and their own reluctance to prosecute by allowing intercept evidence. On that last point—which has been raised a few times in the House since last year’s Bill, particularly by the noble and learned Lord, Lord Lloyd of Berwick—I have an open mind. The noble Baroness, Lady Ramsay of Cartvale, is very knowledgeable about this and her arguments are very powerful but I am not entirely convinced by them; I still have an open mind on the matter. I hope that it will be possible—in time at least—to allow such evidence. Given the circumstances, I am not utterly opposed to control orders but I want to make them as compliant as possible with human rights and civil liberties. Of course, most people will say that we have to get a proper balance between security and liberty, and of course we have. I am as much concerned with security as anybody else. I use public transport in London four or five days a week and I almost never take a taxi, as is true of the vast majority of Londoners. But while previously words like ““security”” and ““liberty”” could be bandied about and given more or less persuasive definitions to fit one’s own point of view, this is no longer the case following the passage of the Human Rights Act and the incorporation of most of the ECHR. Now liberty and rights have a much more formal and in a sense objective basis, and a much more structured set of interpretations of these terms are found in the judgments of the domestic courts and the Strasbourg court. We are now like Ulysses and the sirens; we have chosen to bind ourselves in good times and in bad to a set of basic rights and liberties, to avoid the siren voices inviting us to abjure them. That was the will of the UK Parliament, the Labour Government and the Labour manifesto of 1997. Control orders have to be made as compliant as possible with this different legal order, which the Government have chosen to set up. After modification, as has been explained, the Act was passed last year. I am pleased that the noble Lord, Lord Carlile of Berriew, has confirmed that the Home Secretary has exercised his powers under the Act judiciously, fairly and scrupulously. That is what I would expect from my right honourable friend. Despite our disagreements, I have always admired his clarity of mind and straightforwardness, and it is good to have that reinforced by the report produced by the noble Lord, Lord Carlile. The problem remains of whether these powers, however sensibly exercised, are as human rights-compliant as they should be and as they could be. I accept that the judgment about this is not an exact science and that the legal advice given by the noble and learned Lord the Attorney-General has to be taken by the Government as definitive on it. However, Parliament has a right and a duty, it seems to me, to probe and if necessary to challenge the Government’s position on compatibility and to seek explanations on why they think that these powers and the way in which they are exercised are compatible. That is what the Joint Committee on Human Rights, of which I am pleased to be a member, sees itself as doing. How rights-compliant is the present regime of control orders? In the report of the JCHR, as has been made clear, a large number of points were made, but I will concentrate on two. First, all the orders that have been made so far are non-derogating orders. If the obligations imposed on someone subject to an order add up to the deprivation of that person’s liberty, that has to imply a derogation from Article 5. The question is whether the duties of non-derogating orders are sufficiently onerous to imply a deprivation of liberty. The approach of the European Court has been to say that this is not an all or nothing matter, as the noble and learned Lord, Lord Lloyd of Berwick, says, and that judgment has been echoed in the United Kingdom courts. The cumulative effect of the obligations can add up to the deprivation of liberty. It seems to me, and to the JCHR, that the effect of the orders as reported by the noble Lord, Lord Carlile, can in fact lead to the deprivation of liberty. They are supposed to be non-derogating orders, and yet their effect may well be the same as that of a derogating order. I am well aware that the Government will argue that short of what has come to be called house arrest we are talking about a restriction of liberty rather than a deprivation of liberty. However, I would have thought that if one looked at the details of the orders and their cumulative effect that would be a difficult judgment to sustain. Secondly, I am thankful that so far no derogating order has been made, although as I said I think that some of the non-derogating orders add up to the same thing or have the same effect. A derogating order does involve deprivation of liberty for an indefinite period and if adopted would require derogation. In those circumstances, the level of proof that the Home Secretary should satisfy himself about must be at the criminal level. The regime imposed on the individual would be the most onerous imaginable outside of imprisonment. On the principle that the higher the punishment the higher should be the threshold of evidence, the criminal standard should be employed by the Home Secretary in his deliberations and judgments. The legal answer to that point will be, ““This is not a punishment; it is rather administrative action taken against someone””. However, that is not how it will be seen. We would live in a Humpty Dumpty world—in which words would mean whatever I wanted them to mean—if a derogating order was not seen as the same thing as punishment. For those reasons, I am very unhappy with the idea of renewing the orders on the basis that they have been proposed to us tonight. However, I will not vote against the order if it comes to a vote. I could not do that because I have endorsed and contributed to the critique offered by the JCHR, and it would not be honourable for me now to vote in favour of my party and the Government’s position, having endorsed that critique. However, I do not agree with the detailed wording of the amendments. It is not so much a matter of the safeguards in relation to the powers where the problem lies; the powers themselves are incompatible with human rights legislation. I have one question for the noble Lord, Lord Thomas of Gresford, which is of some interest to me. He said today and in the debates last year that judicial review would be entirely procedural. I wonder how far that fits in with the point made in paragraph 66 on page 21 of the report by the noble Lord, Lord Carlile:"““In lay language, the decision of the Secretary of State will be upheld [by the administrative court] unless shown to be founded on a mistake of law””—" which clearly fits into what he was saying—"““or on a disproportionate assessment of the facts in their legal context, or perverse””." It is rather obscure how a court could make those judgments without straying into the issue of the merits of the case. I am slightly mystified about how the noble Lord, Lord Carlile, could say that, if judicial review is entirely on the procedures. I fully sympathise with the critique of the order by noble Lord, Lord Thomas of Gresford, but I will abstain if it comes to a vote.