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Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

My Lords, as all your Lordships know, control orders were introduced in March 2005 as an emergency measure. We in this House, after an all-night sitting which I shall never forget, insisted that the Government should have to come back after 12 months in order to justify the extraordinary powers which had been conferred on the then Home Secretary. They were indeed extraordinary powers, because they enabled him, on suspicion, to impose what amounted in effect to house arrest on an individual who had never been charged with any offence. Yet here we are, six years later, being asked to renew those very same powers yet again. In a powerful briefing note which I am sure the Minister has read with care, Liberty describes the control order regime as being ““completely discredited””. It would be difficult indeed to disagree with that view. However, Liberty is equally critical of what is now proposed in place of the control order regime, the so-called terrorism prevention and investigation measures —TPIM for short. We do not, of course, know what the Bill will contain, and it is the greatest pity that we do not have a draft of the Bill before us today. When we do get it, I hope that it will be subject to pre-legislative review. The present indications are that the Bill will contain many of the objectionable features of the existing control order regime. Indeed, Liberty describes the new regime in its briefing note as simply control orders under a different name. Whether or not that is right is not a question for discussion today; that will be a matter for great debate when we see the Bill. No doubt the Government will then argue—as the Minister has indicated already—that there is a real difference between the Home Secretary being required to believe that a person is a terrorist and the Home Secretary being required to suspect that he is. Similarly, the Government will no doubt argue that the overnight residence requirement is much less restrictive than the curfew, which is to be abolished, and no doubt they will argue that the TPIM will allow access to the internet and much greater freedom to communicate and associate with others. As I say, that is an argument for another day. For the purpose of today’s discussion, I am prepared to assume that the Government are right about all that. We know that eight individuals are currently subject to control orders. One has been subject to a control order for more than four years; three have been subject to a control order for between two and three years; and four have been subject to a control order for between one and two years. No doubt they will all have been glad to hear that control orders are to be abolished at any rate by December. To extend the control orders beyond December—I understand the Minister to say that that will not happen—in the light of what may then be yet another emergency, would be the gravest injustice. Is there not something else that we could and should be doing now for those wretched individuals in anticipation of the regime? I have already mentioned that under the new regime the Home Secretary must believe that an individual is a terrorist; it is not enough that she should suspect. That being so, surely she should now review each of those eight cases and see whether they satisfy the stricter test which will be the order of the day from December onwards. If they do not in any case satisfy the stricter test, it is surely the duty of the Home Secretary now to quash those control orders rather than to wait and see what the new Bill says when it is ultimately in force. Even if the Home Secretary decides in the case of all eight individuals that the control orders satisfy the stricter test, there is still much that could be done. There is a body of which the Minister will be aware called the control order review group. It is its duty to keep under continuous review the obligations to which each of those eight individuals is subject and to ensure that their current obligations are proportional to the risk that they currently pose. One of the eight individuals currently subject to a control order is subject to a 14-hour curfew. Happily, the curfew will be abolished in December, or at least not later, and replaced by what is called the overnight residence requirement. On no view would an overnight residence requirement extend to 14 hours. Surely it is therefore the duty of this body, CORG, and of the Secretary of State to consider that case and to see whether there is any ground for keeping the curfew as long as 14 hours. Surely it could be reduced now to eight hours, or whatever is thought to be a likely period of an overnight residence requirement. It may be said that there is no harm in asking those individuals, who have waited so long without being charged, to wait at least until the new regime is in force. We are dealing here with human beings who have been subjected to the most unusual restrictions on their liberty for many years, under a system which is now discredited. In the cases that I mentioned, it has been in operation for more than two years, which will be the maximum under the new regime. Surely it is time to show these individuals a little humanity. It might even increase the chances of mounting a successful prosecution against one or more of them if we take the course which has been so strongly advocated by the noble Lord, Lord Macdonald—who I am glad to see in his place—in the report on the review. I hope that the noble Baroness will take the points that I have made back to the Secretary of State and let us know in due course whether there is not something that can be done now in anticipation of what will be in the Bill.