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

My Lords, for my recent birthday, I was given by a very clever brother-in-law of mine a book by the noble and learned Lord, Lord Bingham. In it he talks about the rule of law and mentions the Court of Star Chamber, and what I think were called the prerogative courts. This system of control orders reminds me irresistibly of the methods used by both Henry VIII and Charles I, which one would think by now, thank goodness, have mostly been consigned to history. It is interesting to note that when Charles Clarke introduced the Bill in February 2005, he said it was for, ""those dangerous individuals who we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in this country"." The noble Lord, Lord West, has repeated that statement today when asking for the order to be renewed. How does it mesh with the fact that when two of the gentlemen under control orders absconded, a junior Home Office Minister said that he, ""did not believe that the public was at risk from the escaped men"?" Either they are dangerous or they are not dangerous. It appears that they were dangerous before they escaped, but they were not dangerous after they escaped. The noble Lord, Lord Carlile, agreed that the disappearances, ""present little direct risk to public safety in the UK at the present time"." We cannot lock up people who represent no danger, or rather if they only represent a danger when they are locked up and not when they have escaped. I turn now to what the House of Lords said in the AF case, and I remind your Lordships that nine judges were sitting. The noble and learned Lord, Lord Phillips, said recently in the Supreme Court that: ""A trial procedure could never be considered fair if a party to it is kept in ignorance of the case against him"." The nine Law Lords held unanimously that the Government’s failure to disclose sufficient details of their case against a person subject to control orders breached their right to a fair trial under Article 6 of the ECHR. They also said that it was against common law and the European Convention on Human Rights. We should not be behaving like this. It is a disgrace, as the country that invented the rule of law—that invented Magna Carta. Let us remember that Magna Carta was not new law; it is what they persuaded the King to say was the ancient law of England. That is what I find so moving about this country: that we go in for the rule of law. Unfortunately, for the past 13 years or so, there have been some rather shoddy little bits of legislation—not only this one, but others—which have taken away from that great standard. The noble and learned Lord, Lord Hope of Craighead, the deputy president, said: ""The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him"." I turn to the JCHR report; I have the privilege to be on the committee. The report was solidly unanimous in its acceptance. We were all shocked by some of the witness statements that we heard. I will start with where we considered what the noble and learned Lord, Lord Lloyd, talked about, which can best be described as "internal exile". I think that it was the noble Baroness, Lady Kennedy, who used that expression when representing someone, and did so quite deliberately. That is what Tsar Nicolas I did to the Decembrists: they were sent to Siberia for 30 years. I accept that if you are sent from Bradford to Chipping Sodbury, Chipping Sodbury is not exactly a salt mine to the north of the Arctic Circle, but it is the same principle, and a principle that is abhorrent to any of us who care about the liberties of the subject, as I do. The damage to children and wives and the unfairness of the whole principle has been referred to. I turn to special advocates. The rules have been changed a little, but special advocates continue to have no access in practice to evidence or expertise that will enable challenge to the expert assessment of the security services. Someone cannot challenge the evidence that is against them properly and, above all, the special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest. Late disclosure also means that they cannot address the case properly. I think that it was said that someone applied for release to attend a course, but by the time that the okay came through, the course had finished. It gets worse and worse. We state in the report: ""By seriously hampering special advocates in their performance of the role they are intended to perform, it creates the risk of serious miscarriages of justice. The inability of special advocates to communicate with the controlee after seeing the closed material, identified as a source of unfairness by the Constitutional Affairs Committee in 2005, remains unchanged, notwithstanding the clear evidence that it seriously affects the special advocates' ability"." The committee considered whether the whole order regime could be made to operate in a way compatible. We said that we had maintained an open mind until now, but that: ""Our assessment now, in the light of five years' experience of the operation of the system, is that the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted"." I could go on citing chunks of the report and trying to précis it, but I think that most of your Lordships have read it. It is an excellent report; it is one that we all felt strongly about; and it concludes by stating: ""For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable"." The cash has been talked about—the cost of lawyers. To end on a marginally flippant note, I would much rather that the cash went to Plod than to my learned friends, and that there was surveillance rather than keeping lawyers in good claret or villas in the south of France. If there is a vote, I will disobey my Front Bench and vote with the noble Baroness, Lady Hamwee.