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

My Lords, I declare an interest as the independent overseer of the review of counterterrorism and security powers. Like the Joint Committee on Human Rights in its recently published report, I strongly welcome the Government’s conclusion that the current control order regime can and should be repealed, consistent with public safety. It is obviously essential that it is replaced with something that is very different in character and not simply a pale imitation. We shall have to look closely at the legislation that comes forward to ensure that that is not what the Government have in mind. The review has clearly shown that the present regime is inefficient, grants excessive power to the Government, and undermines traditional British norms and respect for the rule of law. This may not be surprising. It was introduced by accident, following a series of court judgments adverse to the last Government. It has been a bad mistake. I also strongly welcome the Government’s renewed and strengthened commitment, expressed in their response to the review, to the absolute priority of criminal prosecution. Where people are involved in terrorism they must be detected with all the considerable power at the disposal of the state, then prosecuted and locked up. It is not just public confidence that demands this but also our traditional common-law attachment to the supremacy of due process in criminal justice and our courts. The fact is that the evidence gathered by the review has made it clear that the present control order regime acts as a fundamental impediment to prosecution. This is because the restrictions placed upon controlees forbid the very contact and activity that, under proper surveillance and investigation, lead to evidence fit for prosecution. It is also because far too many controlees are simply warehoused under the supervision of the security services, beyond the scrutiny of criminal investigation, and therefore beyond any real possibility of prosecution. For good reasons, the instincts of the security services are protective rather than prosecutorial in nature but this practice, and the Security Service’s primacy within it, means that some serious terrorist activity remains completely unpunished by criminal law. This is a serious and continuing failure of public policy. Any new scheme introduced by the Government must not replicate this failure. To give reality to the primacy of prosecution, which is the Government’s stated aim, it should clearly become an intrinsic part of any new regime that restrictions placed upon individuals should be linked to a continuing criminal investigation. After all, if the Home Secretary, under the new regime, is to go to the High Court to assert her belief that an individual is involved in acts of terrorism so that she may obtain an order placing restrictions upon that person, it would be quite absurd for there to be no active criminal investigation into the individual in question attendant upon the Home Secretary’s application. Yet that is the position that we are in at the moment. Of course, if there were always such an investigation in progress, court-approved restrictions mandated for the duration of that investigation, up to a maximum period of two years, would become much more constitutionally acceptable—a form of pre-charge bail. I have no doubt that such a reform would garner broad support for the Government’s new regime, including among those most bitterly critical of the current arrangements. This reform would encourage evidence gathering and therefore increase the likelihood of prosecution. It would bring the new regime much closer to criminal justice, which is an obvious good in itself with all the protections that criminal justice implies for suspects. The Government should urgently reconsider their preliminary view on this issue which, frankly, has been hostile. Again frankly, any Security Service opposition to intense police activity around controlees should not be a trump card. The public interest is wider than the instincts of the Security Service. In fact, the trump card should always be found in locking up those people who want to wreak violence upon our communities and putting them in prison cells for long, long years. This is the true deterrent and it is also the process that truly protects the public in a way that control orders never have. There is a separate issue. A further conclusion of the review was that relocation—the practice under which people were forced to move to other parts of the country away from home, family and friends—should be abolished, and that long curfews should go. These were among the most bitterly resented aspects of the old regime and for good reason. They were also the most offensive to our traditional norms, imposed as they were without prosecution let alone conviction, and without the controlees being told any more than the mere gist of the allegations against them. Whoever would have thought that in Britain we would have a form of internal exile without prosecution or conviction? The Government have now agreed that these provisions are excessive, disproportionate and, unnecessary—and I would add offensive. We do not need them, as the Government have now determined. They intend to abolish relocation and long curfews under their new regime. In those circumstances, they should do so now. How can it be right for this House to be invited to extend powers that the Government themselves have conceded are wrong in principle and excessive in practice, particularly when those powers impact so vividly upon civil liberties? I invite my noble friend to consider a way to proceed that does not include renewal of these quite excessive and, as we now know, unnecessary intrusions. Those subjected to them should not have to labour under these oppressive measures any longer. There can be no conceivable public interest in obliging them to do so when the measures themselves are serving no useful purpose. Finally, it will be critical for this House and the other place to examine with great care the legislative proposals that come forward. It is always tempting for the bad old stuff to slip back into a piece of draft legislation. We must not end up in the position of approving a system later this year or early next year which is a form, as some people have put it, of ““control order light””. We need real reform in this area. If there are to be restrictions, they must be coterminous with criminal investigation. There must be no restrictions which destroy the ability of the state to obtain evidence against people who might have been involved in terrorism, which is precisely the effect of the present regime. It has failed and must stop.