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Prevention and Suppression of Terrorism

In view of the shortness of this debate, I intend to be much briefer than I would be otherwise. It is a great pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews) and I shall be in the same Lobby as him this evening. Let me begin by stressing how draconian such orders can be. It is perhaps worth reminding the House of Mr. Justice Sullivan's comments in the case of the Home Secretary v. J.J. He described and outlined the nature of such orders thus:""Each respondent is required to remain within his 'residence' at all times, save for…six hours,"" although that is not quite right now. Respondents were held in one-bedroom flats. They were not allowed to receive visitors other than those approved in advance by the Home Secretary. The residences were subject to spot checks by the police. The respondents were allowed out only within carefully defined areas, not including, for the most part, where they happened to live in the past. For the most part, respondents were not allowed to meet by prearrangement any person not approved by the Home Secretary. They were required to wear tags. They were required to notify the monitoring authority before they left and when they returned. They were not allowed to have any communication equipment other than monitored fixed lines. The practical effect, of course, was that they could not work. It is therefore perhaps not surprising that Lord Bingham said that the control order system is a form of house arrest, but without the benefit of association with fellow prisoners. It is very bad indeed. My next point deals only with non-derogating orders. The evidence on which such orders can be made falls far short of the evidence required to sustain a criminal conviction. All that is required is reasonable grounds for suspecting that a person has been involved, or is involved, in a terrorist organisation, and a belief that the order is necessary. My third point is that the judicial supervision involved in all this is very slight. In the case of non-derogating orders, the court will review on judicial review principles only whether the order is flawed. That is not a review on the merits; it simply asks whether the making of the order was flawed. It is true that, in the case of the derogating orders, there will be a review on the merits, but using the relatively low standard of the balance of probabilities, so the judicial intervention is slight. I shall take up a point that was raised earlier, before I rapidly conclude. The judicial process involved is inherently flawed because the relevant material—or at least most of it—is not disclosed to the controlee. The controlee has a special advocate, but that advocate is unable to communicate to the controlee what he has been told of the intelligence, and thus cannot obtain proper instructions or learn what the controlee wishes to say on the matter. I want to make two final points before I sit down. There is very little independent oversight of this process. It is true that the Minister must report quarterly to the House, and that we have the benefit of the independent reviewer, the noble and learned Lord Carlile. We also occasionally have reported decisions of the superior courts, but it is very difficult for the House, the public or the press to know whether what we are doing is really justified or proportionate, and whether it is being done in way that is right, proper and justified. We just do not know, and that is profoundly unsatisfactory. Lastly, because these powers are in existence, the momentum for seeking alternatives is very much less. It is remarkable, given that Sir John Chilcot reported on intercept evidence as long ago as February 2008, that we have still made no serious progress on that. I suspect that, because these powers exist, many people who could be prosecuted are not being prosecuted, because it is so much easier for the Home Secretary to make a control order. Had more time been available, I would have drawn the House's attention to a number of suggestions that I have for improving these orders, if we must have them. I am not going to do that today, however, because other right hon. and hon. Members wish to speak. I am going to vote against the control orders, because they are unacceptable in a free and open society. We condemn indefinite Executive detention wherever we see it—think of the criticisms that we make of the Government of Israel—yet, in truth, we are doing exactly the same thing. We should not be doing so.