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

My Lords, we are considering an order which goes to the fundamentals of a free society which seeks to live by the rule of law. I doubt that there is any Member of this House for whom the existence of control orders or the fact that we have to have them is anything but a matter of regret. The issue is whether they are still judged to be effective and necessary in practice, even if highly undesirable in principle. We have heard very strong sentiments expressed to the effect that control orders are not necessary or effective. I must say that I wish I could wholly share that confidence. Nevertheless, let me say straightaway that I share the aim of other noble Lords, including those who have spoken—the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hamwee—of finding a way forward which would permit us to dispense with control orders. The question is how we do that. However, their removal must not at the same time aggravate the terrorist threat or undermine the security of the British people. Several issues are involved: the security situation, the possibility of reducing or eliminating the need for control orders by taking other measures, re-examining the prospects for successful prosecution and reforming the system itself. All of these aspects have been mentioned by previous speakers and I wish to refer to them briefly. I begin with the security situation. The noble and learned Lord, Lord Lloyd, said that we are not at war. Of course, he is right; we are not at war in a traditional sense. We do, however, have a severe security threat which I take seriously. But part of our problem is that the Government have failed to update this House on the current general security situation, even though, as the Minister himself said, the terrorist threat was raised again to "severe" in January. But we have not had a proper report to Parliament to either explain or justify that. In June last year, I called on the Government to issue a report on the current threat and security situation in time for discussion on renewed orders for counterterrorism measures. It is not good enough to expect the renewal on the basis of keeping people in the dark and preventing us giving informed consent. I am well aware of the limits of what may be said in public, but the Government make no attempt to get anywhere near those limits. That is very regrettable, because we ought to be having a discussion against a much more informed general background, and there is also the question of the threat posed by the individual controlees. It is unlikely that all controlees will be threats for all time; indeed, some of the orders have been lifted. The noble Lord, Lord Carlile, has reported on individuals currently subject to control orders, but his function, important as it is, does not relieve the Government of reporting on their own account. It is most unsatisfactory that they do not do that. However, having said all that, precisely because, in the view of the statutory reviewer, the control order regime remains necessary in a limited number of cases and is not capable of being replaced by other measures currently available, I do not feel able to support the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Lloyd, in their amendments to the Motion, and I am obliged to take seriously the judgment of an informed person—in other words, the noble Lord, Lord Carlile. These Benches will therefore abstain on the amendments before the House. It follows from what I have said that on these Benches we want to see at least significant reform of the arrangements surrounding control orders and, at best, the replacement of the regime itself. If we are elected to office that will be an early aim. The noble Baroness, Lady Hamwee, asked if we were to be elected and conduct such a review, how long it would take and with what aim in mind. I can assure her that it will be with the aim, if we possibly can, of eliminating the control order regime. It will be an early piece of work, we will not delay on the matter, and it will be seriously conducted. We will aim to come back to the House with what we hope will be a justified conclusion at an early date. It has been well said that there is no silver bullet—no single thing that would enable us to do away with this regime. But there is a range of measures that should be investigated with a view to making control orders unnecessary. I shall list them briefly, because they are well known. First, there is the possibility of deportations. We know that they are difficult but they should be pursued with vigour. There is the question of using intercept material as evidence. We have been cautioned as to its likely limited value. But that is not the same as having no value, and we know that non-British-sourced intercept evidence has been useful in securing prosecutions. Given that the public interest in securing successful prosecutions is very great, the Government are right to revisit the conditions laid down in the Chilcot report. I very much hope that the further work being done will lead to an outcome which enables that material to be used in court. I know that a report has been promised before the Easter Recess. If it is necessary to do more work in order to get the right outcome, I would much prefer that to being told that publishing a report by Easter is not possible. I also have some question marks on the way that decisions are currently made about whether or not to prosecute individuals in control order cases. This has a bearing on whether control orders remain in place. These decisions are taken by a chief officer of police, and the CPS has only an advisory role to the extent that the police consider it appropriate to consult. The noble Lord, Lord Carlile, has criticised this—indeed he might—as well as the lack of evidence and reasons given for discounting prosecution or discontinuing investigations, as contained in letters sent by the police when they report to the Home Secretary on what they have done. This year, the noble Lord, Lord Carlile, said in his report that the quality of the letters "continued to improve". When I was at school, that was another way of saying, "Could do better". I am not happy that the last word lies with those whose priority will be security. It is right that they should be involved, but with the much heftier weight of setting another public interest in the balance alongside this—the rule of law. The Director of Public Prosecutions has said that there should be, ""a presumption in favour of prosecution"." I agree. All this is more relevant given the raft of new terrorist offences that the Government have created, as mentioned by the Minister. With all these new offences, can we not get more prosecutions? It would be helpful for the Minister to say whether the individuals presently subjected to control orders could be prosecuted in the light of these extensions. I will cite the report of the statutory reviewer, the noble Lord, Lord Carlisle. He referred to the activities of, for example, control orders 11 and 12. These individuals have been trained abroad in terrorist activity, have been involved in considerable terrorist planning and facilitation in the UK, and continue to attempt to remain active despite the control orders. Another two persons, CO4 and CO5, are associated with extremist groups. Their activities are continuing, according to the statutory reviewer. Do the activities not now enable, and indeed warrant, prosecution? Has there been any review of this possibility; and if so, with what outcome? I will ask the reverse question: if there has been no review, why not? In addition to those steps, which I hope would lead us down the road of being able to secure more prosecutions, others have suggested—this has been touched on by other speakers—that control orders could be replaced with surveillance. It has been said, and I am prepared to believe it, that surveillance is very expensive. However, this should be set against other costs, including ones that have been mentioned by the noble and learned Lord, Lord Lloyd, who talked about the costs of going to appeal all the time. Have the Government made a comparison of relative costs when everything is taken into account? If we are seriously to try to find alternatives to control orders, we must look at the overall cost of where we are now and compare it with going down another road, which may be that of surveillance. The noble Lord, Lord Carlisle, has come up with a different recommendation in relation to certain controlees. He says: ""Control orders are … no longer suitable for cases where the main objective is to prevent travel abroad. In such cases, after further legislation, there should be available a Travel Restriction Order, with a limited range of obligations"." Will the Minister say whether the Government agree with this, and whether legislation to this effect will be introduced? This would be less onerous, and the suggestion has come from the statutory reviewer. I am not in a position to assert that measures of the kind that I have outlined will allow us to remove every control order; but they would permit the Government to meet their obligation to reduce reliance on the system. That brings me to the last set of issues that I will tackle. If the control order regime is to continue even in limited numbers, it is clear that it cannot be on the basis on which it is now being implemented. The Joint Committee on Human Rights has said that the system, ""cannot be operated fairly without fundamental reforms which have so far been resisted"." Reform of the system need not await the advent of a new Government: it is something that the Government are already charged by the courts with doing, and which they appear to be doing minimally and reluctantly. I say that reluctantly, but they are acting minimally and reluctantly. The judgment of the Law Lords in the case of AF required the individual subject to a control order to be given, ""sufficient information about the allegations against him to enable him to give effective instructions"" to counsel. In other words, there was an irreducible minimum that had to be disclosed. The question is—and I hope that the Minister will be willing to go into this—how the Government have interpreted and implemented this judgment. This is key to whether there is a serious attempt to reduce the onerous nature of control orders. In recent evidence to the Joint Committee on Human Rights, no lesser persons than the special advocates said that the Home Office took a minimalist view of the requirements imposed by the judgment. It is interesting that this should come from that source. They took the view that it was primarily up to them, and not the Secretary of State, to make the running when reviewing the evidence base and making proposals for disclosure. One special advocate went so far as to say that this behaviour was not in keeping with the spirit of the judgment. It would be helpful to have the Minister’s comments on this. The Joint Committee on Human Rights shares this view and concluded in a recent report that, ""the impact of the … decision"—" the decision of the Law Lords— ""on improving fairness in practice may have been limited by the Government’s passive and minimalist approach to compliance"." The Government say that, following the judgment, they carried out a review of all the control order cases to see whether further disclosure was or would be required, and whether it was possible to make the disclosure. The Home Office’s post-legislative assessment refers to the Secretary of State having made "sufficient disclosure". Will the Minister say how "sufficient disclosure" is defined? Apart from the internal review of control order cases, will the Minister say whether the outcomes have in all cases been tested in court? Perhaps he will also clarify—it may be helpful to say that he can do this in writing—how the Government have interpreted the judgment, and how they have gone about implementing it. Obviously, that is a detailed matter. Closely related to the point about disclosure is the context of the special advocate system. There is a prohibition on the ability of special advocates—this was mentioned by the noble and learned Lord, Lord Lloyd—once they have seen closed material, to communicate it to the defendant or to open representatives, at least without the Government knowing what has been said between them. One has therefore to ask: can an individual effectively instruct his legal team? Will the Minister also comment on complaints made by the special advocates about the late disclosure to them of documents? Even within the limits of the system, this is surely unacceptable. Will the Government be willing to review how the special advocate system operates? A number of other speakers also feel that it is unsatisfactory. As I mentioned, it is well known that the Conservative Party wants to review the consolidation of all terrorism legislation, and will do so if it comes to office. The control order system will form a significant part of that review, and we will look at the various areas that I have covered. It will be a task. We cannot proceed only from the principle, with which we agree, that this is obnoxious: we also have to look at the facts of the situation. However, our aim will be to reduce the reliance on control orders and, consistent with the security situation, to replace them. Were we to conclude that such a system were still needed, as the noble Lord, Lord Carlile, put it, ""for a small number of cases where robust information is available to the fact that the suspected individual presents a considerable risk to national security, but and conventional prosecution is not realistic"," we still believe that the system would need reform. We are not content with it, even if it needs to continue. So today we on these Benches will abstain, but I make it clear that the Government have left the House in an unsatisfactory position. They have not done enough to introduce other measures that would allow them to replace control orders, or greatly to reduce their scope. They have not reformed the system to make it consistent with the rule of law. At the same time, the Government have not reported on the security situation and the risk posed by the individuals in question, thus not allowing us to judge whether the control orders can be removed consistent with the security situation and the duty of Government to protect the public. In the future, we believe that the Government must make a good deal more effort to enable the House to make validly based decisions.