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Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2010

My Lords, I support the amendment of the noble Baroness, Lady Hamwee. In doing so, I should declare an interest since I was one of those who opposed the very idea of control orders when they were first introduced in 2005. I did so for two main reasons. First, I did not like the idea of the Home Secretary confining individuals on the advice of the Security Service and imposing on them restrictions that, at the severe end, are very severe, without the Home Secretary being satisfied on at least the civil standard of proof—the balance of probabilities—that they really are terrorists. Reasonable suspicion on the part of the Home Secretary is, in my view, much too low a threshold. No doubt it will be said—it always is said, and has been said—that the imposition of control orders is subject to the supervision of the court and that that makes all the difference. I do not agree. It is true that the Home Secretary must obtain the consent or permission of the courts before imposing a control order if there is time to do so. It is also true that the decision of the Home Secretary can be quashed at a later stage if it is obviously flawed. That is the test applied in judicial review. However, the decision itself is still the decision of the Home Secretary and not of the court; still less is it the decision of the jury. The powers given to the Home Secretary to restrict the freedom of individuals under the 2005 Act are very great. We are used to such powers being given to the Executive in time of war. It happened in 1939 and again at the beginning of the first Iraq war in 1991. It was my job at that time to visit Iraqi nationals detained in Pentonville on the advice of the security services. Having heard their stories, I was required to advise the Home Secretary of the day whether there were any grounds for detaining them. Many were thereupon released, so I have at least some experience of what these things are like at the receiving end. However, that was in wartime. The powers given to the Home Secretary under the 2005 Act have never, as far as I know, been given to the Executive in time of peace. They do not exist in France or Italy, as I know to my certain knowledge. Nor, as far as I know, do they exist in Spain, Germany, Canada or the United States, if one excludes Guantanamo Bay—a point made forcefully by Sir Kenneth Macdonald in his evidence to the Home Affairs Committee in the House of Commons. If all those countries can deal with the terrorist threat—and they have all suffered the terrorist scourge as we have—without resort to control orders, why are we the exception? Putting it the other way round: if control orders or anything like them are not necessary there, why are they said to be necessary here? My second objection to the principle of control orders lies in the field of procedural justice. An individual has a right to be heard in his own defence. Everyone has that right however dangerous they may seem to be. There is no problem where the evidence can be produced at the hearing. The difficulty arises when the evidence cannot be disclosed—the so-called closed material. What happens then? Under paragraph 7 of the schedule to the 2005 Act, the Attorney-General can appoint a special advocate to represent the suspect’s interest. However, the special advocate is not like an ordinary barrister. Once he has seen the closed material, he can have no further communication with the suspect. That is the critical point. I was not the only person to doubt the justice of that arrangement. It would mean that, in many cases where the only evidence against the suspect was in the closed material, he would have no idea of the case against him. It would mean that, as regards his barrister, he would be shooting at a moving target in the dark. Others took that view as well as myself. In the debate in March 2004, on the renewal of the Anti-terrorism, Crime and Security Act 2001, the noble Baroness, Lady Hayman, said that she had made people laugh when she said that the special advocate procedure was like Kafka being played by the rules of cricket. She went on to say: ""That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed—fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them".—[Official Report, 11/3/04; col. 1356.]" That was a very wise and prescient observation, because that was the very point decided nine years later by nine Law Lords in the AF case. If the suspect does not know the gist of the case against him, he cannot have had a fair hearing. It was as simple as that. That brings me to the facts of that case, which are important and should be much more widely known than they are. AF was one of three appellants, AE, AF and AN. I take AF’s case as being typical. He was served with a control order on 2 June 2006, which imposed an 18-hour curfew together with very severe restrictions. On 1 August, it was held by the Court of Appeal that the 18-hour curfew had the effect of depriving him of his liberty, which the Secretary of State of course had no power to do without derogation. So the Home Secretary appealed to the House of Lords and five Law Lords upheld the Court of Appeal. AF’s control order was revoked, but it was replaced by other control orders with varying curfew hours of 12 to 16 hours. His last curfew order was imposed this time last year, but it was revoked by the Home Secretary on 27 August 2009 as a result of the decision in the AF case. Thus AF had been subject to successive control orders for a continuous period of three years and 15 days, of which 184 days were spent in prison because of minor breaches of the terms of his control order. That brings me to the final chapter in the case of AF, which was written by Mr Justice Silber. In his judgment on 18 January, he held that the original control order of 2 June 2006 and all subsequent control orders must be quashed, because AF had never had a fair hearing. He was never told of the case he had to meet—the very point that the noble Baroness, Lady Hayman, foresaw back in 2004. The Home Secretary described Mr Justice Silber’s decision as disappointing—a word that he has used on several occasions to describe recent decisions of the courts. The effect of Mr Justice Silber’s decision is that AF is now free to claim compensation. He has been told that, even if he succeeds, the compensation is likely to be modest. Even so, the Home Secretary has decided, true to form, to appeal to the Court of Appeal; no doubt, if he loses, he will appeal to the Supreme Court, as it now is. I shall not predict the outcome; instead, I shall simply comment on what, with a nice understatement, the noble Lord, Lord Carlile, calls the considerable court activity in 2009. There have been 15 separate hearings at High Court level or above. In 2008, it was rather more; there were 18 separate hearings at High Court level and above. That explains the figures that the noble Baroness has given, with £8 million out of £10 million having been spent on legal fees, which I work out at about £360,000 per individual for the 30 or so individuals during the years in question. I turn to AE, one of the other appellants, who was subjected to control orders for three years and seven months, again without ever having a fair hearing. Two others have been confined for more than two years and one for as much as five years; he is in the middle of his fifth year. I do not believe that it was ever anticipated, when we passed the 2005 Act, that control orders would be used in that way. They were intended as a stop-gap to cover a particular emergency resulting from the decision of the House of Lords in December 2004 in A’s case—a decision that clearly took the Government by surprise. That was the reason why we in this House insisted on a sunset clause after an all-night sitting. Yet now, after five years, control orders have become part of the criminal justice landscape. We should never have allowed that to happen. I have so far spoken only about curfew as part of the control orders and their duration. The restrictions imposed on AF go far wider than that and, again, should be far more widely known than I suspect they are. I quote the noble and learned Lord, Lord Bingham, about AF: ""He was required to wear an electronic tag at all times. He was restricted during non-curfew hours to an area of about 9 square ""miles bounded by a number of identified main roads … His flat was liable to be searched by the police at any time. During curfew hours he was not allowed to permit any person to enter his flat except his father, official or professional visitors, children aged 10 or under or persons agreed by the Home Office in advance … He was only permitted to attend one specified mosque. He was not permitted to have any communications equipment of any kind … He had three times been refused permission to visit his mother. His sister and her family were unwilling to visit because of the traumatic experience of one child when AF was first arrested. Friends were unwilling to visit. He only had one Libyan or Arabic-speaking friend in the area he was allowed to frequent"." All those restrictions are made infinitely worse when the so-called relocation procedure is followed, when he will be relocated to an area in which he knows simply nobody. I understand that of the 11 controlees currently subject to control orders, eight have been relocated in that way. I suggest that relocation is absolutely unacceptable. Lastly, I return to a point that I have already mentioned. AF’s control order was revoked in August 2009. Since then, he has been a free man. Yet a year ago on 5 March the noble Lord, Lord West, described him as "highly dangerous". He was one of 15 highly dangerous men who, if released the following Tuesday, would put the nation and its people at risk. That was the advice which the noble Lord had received from the Security Service and the police, and which he had accepted. Yet AF, that highly dangerous man, is now free, without the dire consequences which were then predicted. What is the explanation for that? The answer can be only this: the Home Office has indeed found some other means of dealing with him. If other such means exist now, they must have existed in March 2009 when AF’s control order was renewed. In which case, it must follow that the Home Secretary had no power to renew the control order in March 2009, because it was not necessary to do so. He could have used means then—whatever they may have been—to deal with this highly dangerous man, such as those which the Home Secretary is using now. If using a control order was not necessary in the case of AF, why should we accept that it is necessary in the case of the other 11 individuals who are subject to control orders? The answer is, of course, that it is not necessary. We know now that other means can be found to contain the risk posed by these few remaining wretched individuals. If that is so, it is high time that we brought control orders to an end. They are, and always have been, a blot on our jurisprudence. They are universally condemned by Justice, Liberty, the Home Affairs Committee in the House of Commons and the Joint Committee on Human Rights. The noble Lord never referred to their reports in his introduction. If the noble Baroness, Lady Hamwee, takes this matter to a vote, I would be more than happy to support her.